By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law"A menace to society," "board-certified in medical fraud," "one of the most dangerous doctors I've seen in a long time." These are some of the harsh words coming from the Florida Board of Medicine. The Board used those statements to describe a Sarasota, Florida, urologist who specializes in prostate problems. The urologist is accused of using unconventional diagnostic and treatment methods, even referring some patients to Mexico for treatment not yet approved in the United States.On June 6, 2014, the Florida Board of Medicine rejected a proposed settlement agreement between the urologist and the Florida Department of Health (DOH). In response the Board of Medicine made its own offer: suspension of the doctor's medical license.Click here to read the administrative complaint filed against the urologist. Unconventional But Not Unheard of.According to Health News Florida, the urologist diagnosed prostate cancer through the use of a specialized form of MRI scans, rather than the traditional medically accepted method of biopsies. After a patient was diagnosed with prostate cancer, the doctor often recommended that the patient go to Mexico where he met them and performed a procedure not approved in the U.S. The procedure is called a high-intensity focused ultrasound (HIFU) that involves the burning of prostate tissue by using intense sound waves. The procedure is legal in Europe, Japan, Mexico and Canada. The doctor pleaded with the Board, stating that in about a year the method he used will be approved by the U.S. Food and Drug Administration (FDA).Click here to read the entire Health News Florida article.Caught Between a Rock and a Hard Place.Rather than accept the proposed settlement, the Board unanimously adopted a "counter offer." It proposed the urologist's license be suspended at least a year, that his practice be evaluated, that he pay $80,000 in fines and be placed on probation for five years.The urologist's other option is to request a formal hearing in front of an administrative law judge, who would make a recommendation to the board on a penalty after hearing the evidence. A formal hearing is similar to a trial in civil court, except that the DOH has the burden of proving the charges against the doctor. The doctor has many more due process of law protections in a formal hearing and could very well win it.What is a Formal Administrative Hearing?If a party desires to contest the facts alleged against it in an Administrative Complaint, such as this doctor, then this must usually be requested in writing. If the material facts in a case are disputed, then the Board or the DOH (note: all health professional boards are under the DOH in Florida) must forward the case to the Division of Administrative Hearings (DOAH) where a neutral, objective administrative law judge will be appointed to hold a formal hearing in the case. This is the only way for a respondent named in an administrative case to prove that the facts alleged are incorrect or that the respondent is not guilty of the charges. The DOH carries the burden of proof in this proceeding. The DOH must prove the charges and the material facts alleged with clear and convincing evidence. Often, the DOH is unable to carry this burden at a formal administrative hearing.However, due to the technicalities of evidentiary law and administrative law, we do not recommend that a nonlawyer attempt to represent himself or herself at a formal hearing. You could make technical mistakes (such as answering requests for admissions incorrectly) that would severely compromise any defense you may have. We recommend that you always retain the services of an experienced health lawyer in any such matter.If the doctor in this case wins at a formal hearing, then the DOH must pay his attorney's fees and costs up to $50,000.
Comments?What do you think of Board's counter offer? Do you think the urologist should be punished at all? Please leave thoughtful comments below.
Consult with an Experienced Health Law Attorney for Representation before the Board of Medicine.Do not wait until action has been taken against you to consult with an experienced attorney in these matters. Few cases are won on appeal. It is much easier to win your case when there is proper time to prepare and you have requested a formal hearing so that you may actually dispute the facts being alleged against you.The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing physicians and other health care providers in investigations and at Board of Medicine hearings. Call now or visit our website www.TheHealthLawFirm.com.Sources:
Gentry, Carol. "Rebel Urologist Called "Menace.'" Health News Florida. (June 6, 2014). From: http://health.wusf.usf.edu/post/rebel-urologist-called-menaceAdams, Robin. "Medical Board Places Doctor on Probation." The Ledger. (June 6, 2014). From: http://www.theledger.com/article/20140606/news/140609422Department of Health v. Ronald Evan Wheeler, M.D. Case No. 2013-06688. Administrative Complaint. (February 28, 2014). From: http://ww2.doh.state.fl.us/DocServiceMngr/displayDocument.aspx
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.Tag Words: Florida Board of Medicine, BOM, Florida Department of Health, DOH, doctor, physician, urologist, high-intensity focused ultrasound, HIFU, prostate cancer, administrative complaint, Florida Board of Medicine settlement, administrative law judge, administrative hearing, formal hearing, defense attorney, defense lawyer, doctor attorney, doctor lawyer, representation before the Florida Board of Medicine, Florida Board of Medicine attorney, U.S. Food and Drug Administration, FDA, health law firm, The Health Law Firm
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