‘Fiasco’ leads to DOH housecleaning
By Carol Gentry
12/11/2009 © Health News Florida
The physician-prosecution unit at the Florida Department of Health is undergoing a makeover to get rid of a backlog of complaints following a “fiasco” in October, top lawyers for DOH told the Board of Medicine.
The chief prosecutor’s job is now vacant following an apparent demotion, and Kathryn Price, chief legal counsel for the Medical Quality Assurance Division, is filling in, said Josie Tamayo, DOH general counsel.
Price said she acted when she saw that too many complaints were being settled with insufficient discipline in order to keep down the backlog of cases awaiting official hearings. As a result, several cases that board members were prepared to hear at the October meeting – each one involving a lot of time to study -- were pulled at the last minute, infuriating board members.
“October was a fiasco and I apologize for that,” Price said. “There was a need for prosecutors to get a little push.”
Pressure had been building all year on the prosecution staff, which had to process cases more quickly because of a new statute of limitations and yet stiffen the disciplinary action after criticism from the board.
One of the cases that was pulled back from the October agenda was that involving Emanuel Falcone, who had been working as a senior psychiatrist at Florida State Prison at Raiford. He lost that job in early December when top corrections officials learned from a reporter that Falcone had lost his New York license in a sexual-abuse complaint involving a patient with multiple personalities.
Instead of following New York’s example, Florida at first had offered Falcone a settlement that would enable him to keep working. That was pulled back, and no settlement was reached. At the December hearing, the board revoked Falcone’s license.
In fact, altogether there were four revocations, six suspensions and nine cases in which doctors who faced charges voluntarily turned in their licenses. It was a remarkable change from the usual meeting, where even a reprimand is a rare event.
The former chief prosecutor for medical cases, Ephraim Livingston, had said several times at board meetings throughout the year that he needed to cut down on the backlog of old cases to keep them from expiring under a six-year statute of limitations imposed in 2001 by the Legislature. The time limits don’t apply in some offenses, including sexual misconduct, drug dealing, or a deliberate cover-up.
In a written report, Livingston indicated there were more than four dozen medical complaints that had had to be dropped without action because the clock ran out, including some involving patients’ deaths.
Price told the board last week that after looking into the matter, she had determined that the actual number of cases that “fell through the cracks” – in other words, cases that there had actually been time to do the work but the work didn’t get done – was only five.
Most of the others involved civil suits that dragged on so long they used up the six-year statute of limitations before reaching a resolution and being reported to the state, she said. The state’s time clock starts ticking from the date of the questionable event, not from when the state learned of it.
Price told the board the medical caseload now stands at 1,518 cases, of which 614 are still waiting to go to a “probable-cause” hearing. In those closed-door meetings, a three-member subcommittee of the board decides whether there is sufficient evidence to file an official complaint.
Complaints against health professionals become public only after probable cause is found. If it is not – or if the statute of limitations runs out first – the case remains secret.
After the complaint is filed, the doctor decides whether to dispute the accusations in an official hearing before an administrative law judge. It’s not an easy path, since it means years of delay and a mountain of legal bills. Price said 67 cases are now pending an official hearing.
But most cases end up in a negotiated settlement, in which the doctor neither admits nor denies the charges in the complaint but agrees to accept discipline -- a fine, courses on medical records or risk-management, etc.
Price said her goal is to bring the number of unresolved cases that are more than a year old to zero. Currently that number is 281, or 18.5 percent, she said, down from 32 percent when she became Chief Legal Counsel two years ago.
Board Chairman Fred Bearison thanked the two DOH lawyers for the “dramatic turnaround,” for listening to the board’s concerns and acting on them.
“We’re not 100 percent there but we’re a lot closer,” he said.
Bearison, an internist from Valrico, is ending his term as chairman. The new chair will be Onelia G. Lage, a pediatrician at the Mailman Center for Child Development in Miami.--Carol Gentry, Editor, can be reached at 727-410-3266 or by e-mail.