By Carol Gentry
6/10/2010 © Health News Florida
An appeals court has set aside the Department of Health’s emergency suspension of Miami psychiatrist Steven L. Kaplan, accused of over-prescribing anti-psychotic medication to an autistic child.
The boy, Denis Maltez, died in May 2007 at age 12. The medical examiner said he stopped breathing in part because of the heavy prescription drugs he was taking, but the psychiatrist disputes that.
The May 26 ruling by the First District Court of Appeal stayed the May 7 emergency suspension issued by Surgeon General Ana Viamonte Ros “pending a final disposition” of the case, records show. That can take months, and if the physician contests it, years.
While the court didn’t offer a reason for granting the stay, Kaplan's attorney Monica Rodriguez did: “Dr. Kaplan did not harm this child.”
Kaplan is now free to practice, Rodriguez said. It is not clear whether he has decided to do so; Kaplan did not return a call to his office.
If he is practicing, his client base will be somewhat different. The state Medicaid program sent him a letter in mid-April stating it was terminating his contract in 30 days; no reason was stated.
Meanwhile, the DOH Internet site where the public can look up health professionals’ records still lists Kaplan’s license as “clear (and) active” and says there are no pending complaints against him.
As the Miami Herald recounted in April, the Department of Children and Families and two other agencies knew about the overmedication concerns for years. Records showed the psychiatrist dismissed their concerns, the Herald said.
The DOH’s delayed action may have figured into the court’s ruling. DOH stated in the suspension order and in pleadings that it did not receive the complaint against Kaplan regarding Denis’ death until November 2009, and that the intervening period was taken up with investigating the case.
However, as Health News Florida reported last month, the state Medicaid program sent messages to DOH as long ago as 2006 requesting an investigation of Kaplan for over-medicating. DOH has not explained whether that occurred, or what the findings were.
DOH’s attorney Elizabeth Renee Alsobrook argued that an emergency action was “not unreasonable or unfair because of the nature of the population to be protected, in this instance, the developmentally disabled in residential facilities.
“Dr. Kaplan’s practices may be viewed as egregious, as he is taking advantage of a vulnerable population …,” she wrote.
In her request for the stay, Rodriguez argued that DOH’s own expert who reviewed the case disagreed with the medical examiner on Kaplan’s role in the boy’s death.
Rodriguez declined a request to provide a copy of that expert opinion. DOH spokewoman Eulinda Smith also declined, saying it is part of the investigative file, which does not become a public record until after a panel of the Board of Medicine rules that there is "probable cause" to believe the law was violated.
DOH's court petition said Kaplan’s case would be presented to the probable-cause panel of the Board of Medicine on May 28. Smith said today there is still no public information in this case.
Howard Talenfeld, who represented Denis’ mother Martha Quesada in a civil suit over the boy’s death, said today that he had not heard about the appeals court ruling. In any event, the suit against Kaplan “is over,” Talenfeld said, indicating it has been settled.
The suit against Rainbow Ranch, the facility where Denis was living in foster care, continues, Talenfeld said.
--Carol Gentry, Editor, can be reached at 727-410-3266 or by e-mail at carol.gentry@healthnewsflorida.org.