Robert B. Sklaroff, M.D.

IN RE; THE PETITION FOR DECLARATORY STATEMENT OF RAYMOND GABB, M.D., EDUARDO INFANTE, M.D. AND JAMES YELTON,M.D.

THIS CAUSE came before the Board of Medicine (hereinafter Board) pursuant to §120.565, Florida Statutes and Rule 28-105, Florida Administrative Code, on April 8, 2000, for the purpose of considering the Petition for Declaratory Statement 9attached as Exhibit A) filed on behalf of Raymond Gabb, M.D., Yolanda C. Hernandez, M.D., Eduardo Infante, M.D. and James Yelton, M.D. (hereinafter Petitioners). Having considered the petition, documents and arguments filed by Petitioners and the Department of Children and Families (hereinafter DCAF), other correspondence and testimony, and being otherwise fully advised in the premises, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The Petitioners, Raymond Gabb, M.D., Yolanda Hernandez, M.D., Eduardo Infante, M.D. and James Yelton, M.D., are all medical doctors licensed to practice medicine in Florida. They are all psychiatrists who are employed by the State of Florida Department of Children and Families at the North Florida Evaluation and Treatment Center (NFETC) in Gainesville, 
2. The Petition sets forth the following facts, in pertinent part:

In July, 1999, the administrator of NFETC announced that the petitioning physicians would no longer have final clinical decision-making authority regarding the treatment of patients at the facility. Rather, a new "Shared Responsibility Treatment Model" would be adopted which would shift final decision-making authority to a team of health professionals including physicians, psychologists, and administrators. A copy of this new treatment model is attached hereto as Exhibit {B}. As set forth in this model, in cases which the treatment team cannot reach agreement on treatment, the matter will be referred to a panel or individual chosen by the administration whose decision will be final.

In September, 1999, the NFETC administration distributed a document entitled "Rationale for Determining Assignment of Leadership Responsibilities for Multidisciplinary Treatment Teams" which provided further details regarding how the shared decision-making model was to be implemented. A copy of this document is attached as Exhibit C.

3. At the hearing before the Rules Committee, Petitioners testified that even decisions such as allowance or deprivation of canteen privileges have such potential impact on the medical treatment of psychiatric patients as to constitute medical decisions.
4. At the hearing before the Probation Committee, the parties and DCAF representatives testified that the Health Coordinator referred to in the Matrix and in the proposal is not a physician.
5. Petitioners expressed to the Department and, through their Petition, to the Board their concerns that "lack of final decision-making authority regarding treatment of their patients would conflict with their professional obligations as established by the accepted standards of practice of psychiatry and the obligations imposed by state law, including Chapter 458, Florida Statutes(1999).
6. Specifically, Petitioner asked for the Board’s interpretations of Section 458.331(l)(g),(t) and (w), as applied to the treatment model proposed, insofar as the Board finds that a physician’s agreement or acquiescence to the proposal might subject him or her to disciplinary action. Petitioner’s concerns were as follows:

As a result of the above described events, Petitioners are in doubt whether they would be subject to discipline pursuant to Section 458.331, Florida Statutes (1999), or any other state statute regulating physicians, if they followed the shared responsibility treatment model. In particular, Petitioners are concerned that they would be subject to civil liability as well as disciplinary action pursuant to Section 458.331, Florida Statutes (1999), should their professional medical opinion on the treatment of one of their patients be overruled by the multidisciplinary team and harm results to the patient which could have been avoided had the Petitioner’s medical judgment been followed.

In particular, but without limitation, Petitioners are in doubt whether they could be disciplined pursuant to Sections 458.331 (2)(g), (t) or (w), as a result of complying with the shared treatment responsibility model as described in the proceeding paragraph.

The Petitioners believe that the shared treatment responsibility model violates the ethical standards for psychiatrists set forth by the American Medical Association Council on Ethical and Judicial Affairs stating that "in relationships between psychiatrists and practicing licensing psychologists, the physician should not delegate to the psychologist, or in fact, to any non-medical person any matter requiring the exercise of professional medical judgment". The Principals of Medical Ethics, 1998 edition, Section 4.

7. DCAF filed a memorandum of law in support of its proposed policy relying on Section 916.107(3)(a), F.S. as authorizing the policy.
8. This petition was noticed by the Board in Vol. 26, No.2, dated January 14, 2000. Of the Florida Administrative Weekly (p.159).

1. The Board has jurisdiction over this matter pursuant to Section 120.565, Florida Statutes, and Rules 28-105, Florida Administrative Code.
2. The Petition filed in this cause is in substantial compliance with the provisions of Section 120.565, Florida Statutes and Rule 28-105 Administrative Code, and Chapters 458 and 455, Florida Statutes.
3. Section 458.331, Florida Statutes cited by Petitioners, provides, in pertinent part, that it is grounds for disciplinary action by the Board if licenses are:

(g) Failing to perform any statutory or legal obligation placed upon a licensed physician.

(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s.766.102 when enforcing this paragraph. As used in this [paragraph, "repeated malpractice" includes but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $25,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and conditions," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice to practice medicine in order to be disciplined pursuant to this paragraph.

(w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such a person is not qualified by training, experience, or licensure to perform them..

4 The Board finds that reliance on the multidisciplinary team matrix, if agreed to or acquiesced t to by the physician, would constitute a breach of the standard of care as set forth in Section 458.331(l)(t), F.S., would constitute improper delegation of professional responsibilities, as prohibited by Section 458.331(l)(w), F.S. Failure to perform any legal obligation is a violation of Section 458.331(l)(g), Florida Statutes. Although the Board supports the use of multidisciplinary teams in patient care, it finds that the Medical Practice Act requires the physician to make or concur with any final medical decision and be held accountable for the decision made.

5. The provision of Section 916.107(3)(a), Florida Statutes, are not generally applicable to the questions raised in the Petition. That statutory scheme applies to only the issue of providing treatment to patients in a forensic facility when the patients refuse to consent and DCAF petitions the circuit court to order the treatment the multidisciplinary team deems necessary. That statute us a judicial issue and not one of relevance here.
6. This Final Order responds only to the specific facts set forth and specific questions set forth by the Petitioners in their Petition for Declaratory Statement. In this regard, the Board declines the invitation by Petitioners to identify "any other state statute" that may apply. By the statutory terms, a Declaratory Statement is limited to the facts presented and the laws or rules identified by the Petitioners. Section 120.565, F.S. Similarly, this Board has no authority to determine whether Petitioners may be civilly liable if the practice in conformance with the matrix. Finally, this Board also has no authority to enforce the ethical standards for psychiatrists published by the AMA Council per se. It does, however, have the authority to interpret the "standard of care" for physicians as set forth in Section 458.331(l)(t), Florida Statutes, and does herein do so by finding that conformance with the proposed multidisciplinary team model would constitute, "failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and conditions." The conclusions of the Board are with regard to the specific statutory provisions addressed and should not be interpreted as commenting on whether the proposed facts may or may not violate other provisions of Chapter 458, Florida Statutes, or other related obligations placed on physicians in Florida.

WHEREFORE, the Board hereby finds that under the specific facts of the petitions, as set forth above, the arrangement described by Petitioners is prohibited pursuant to 458.331(l)(g)(t) and (w), Florida Statutes.

DONE AND ORDERED, 
GEORGES A. EL-BAHRI, M.D., CHAIRMAN, 
BOARD OF MEDICINE

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS MAY BE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE CLERK OF THE DEPARTMENT OF HEALTH AND A SECOND COPY, ACCOMPANIED BY THE FILING FEES REQUIRED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES OR THE FIRST DISTRICT COURT OF APPEAL. THE NOTICE OF APPEAL MUST BE FILED AS SET FORTH ABOVE AND WITHIN (30) DAYS OF RENDITION OF THIS FINAL ORDER.

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail to Thomas W. Brooks, Attorney for Petitioners, 2544 Blairstone Pines Drive, P.O. Box 1547, Tallahassee, Florida 32302.

To contact me--Robert B. Sklaroff, M.D.--just send an e-mail (rsklaroff@comcast.net).