DEPARTMENT OF HEALTH, Petitioner, STATE OF FLORIDA DEPARTMENT OF HEALTH v. DOH Case No. 2017-00602 RICHARD C. MENDEL, M.D., Respondent. / ADMINISTRATIVE COMPLAINT Petitioner, the Florida Department of Health (the Department), hereby files this Administrative Complaint before the Florida Board of Medicine (the Board) against Respondent, Richard C. Mendel, M.D. (Respondent), and in support thereof alleges: 1. The Department is the state agency charged with regulating the practice of medicine in Florida pursuant to section 20.43, Florida Statutes, and chapters 456 and 458, Florida Statutes. 2. At all times material hereto, Respondent was a licensed physician in Florida, having been issued license number ME 98035. 3. At all times material hereto, Respondent was certified in Neurological Surgery by the American Board of Neurological Surgery.
4. The Department's address of record for Respondent is 652 Palm Springs Drive, Altamonte Springs, Florida 32701. 5. On or about January 28, 2013, Patient S.H. (the patient) was injured in a slip-and-fall accident. 6. On or about February 20, 2013, the patient underwent magnetic resonance imaging (MRI) of her lumbar spine after complaining of low back pain and lower extremity radiculopathy. 7. The MRI found disc herniation at the L2-L3 level (lumbar vertebral level 2 and lumbar vertebral level 3), disc herniation at the L3-L4 level, disc herniation at the L4-L5 level, and anterolisthesis at the L4-L5 level. 8. On or about March 27, 2013, the patient presented to Respondent complaining of low back pain. 9. Respondent obtained a medical history, performed physical and neurological examinations, and reviewed the patient's diagnostic imaging. 10. Respondent did not identify any neurological deficits in the patient's lower extremities. 11. Respondent diagnosed the patient with lumbar HNP (herniated nucleus pulposus) at the L2-L3, L3-L4, and L4-L5 levels, anterolisthesis at the L4-L5 level, and lumbago. Administrative Complaint Page 2 of 14
12. Respondent referred the patient to pain management for evaluation and treatment. 13. On or about April 24, 2013, the patient presented to Respondent complaining of unimproved low back pain after pain management therapy. 14. Respondent diagnosed the patient with cervicalgia (cervical muscle spasm), lumbar HNP at the L2-L3, L3-L4, and L4-L5 levels, anterolisthesis at the L4-L5 level, and lumbago. 15. The parties discussed the patient's treatment options including direct lateral L4-L5 interbody fusion versus microdiscectomy with posterior pedicle screw and rods fixation. 16. On or about May 7, 2013, the patient presented to Respondent for a transforaminal lumbar interbody fusion (TLIF) at the L4-L5 level. 17. Post-operatively, the patient awoke complaining of left leg numbness and an inability to move her toes. 18. On or about May 8, 2013, the patient's husband reported the following post-operative problems: "[s]he is having some pain... Patient still has numbness to [left] leg." 19. On or about May 15, 2013, the patient presented to Respondent complaining of continued back pain and left leg weakness. Administrative Complaint Page 3 of 14
20. On or about May 24, 2013, the patient presented to Respondent complaining of continued unimproved back pain and left leg weakness. 21. The patient underwent an X-ray exam of her lumbar spine which reportedly showed displacement of the TLIF. 22. The parties discussed the patient's treatment options including exploration and revision of the TLIF. 23. On or about May 28, 2013, the patient presented to Respondent for a TLIF exploration and a Nuvasive MAS (maximum access surgery) TLIF. 24. Pre-operatively, Respondent diagnosed the patient with persistent post-operative leg numbness and discomfort status post TLIF at L4-L5. 25. Inter-operatively, Respondent identified a durotomy (dural tear), which had caused a cerebrospinal fluid leak, as well as a retro-pulsed lumbar interbody cage. 26. Respondent repaired the durotomy, replaced the lumbar interbody cage, packed bone around the cage, and affixed pedicle screws. 27. On or about May 29, 2013, the patient reported the following post-operative problems: "she cannot feel her legs from the knee down... she cannot tell when she has to urinate as it feels numb in her bladder." Administrative Complaint Page 4 of 14
28. Later the same day the patient presented to Respondent continuing to complain of leg weakness and incontinence. 29. Respondent did not legibly document an impression or diagnosis for the patient's May 29 complaints and symptoms. 30. On or about June 5, 2013, the patient presented to Respondent complaining of persistent back pain and unimproved radiating pain. 31. Respondent wrote the patient a prescription for EMG (electromyography) and NCS (nerve conduction study) testing. 32. Respondent did not legibly document an impression or diagnosis for the patient's June 5 complaints and symptoms. 33. On or about June 7, 2013, Respondent prescribed the patient a course of post lumbar surgery home care. 34. On or about June 12, 2013, the patient presented to Respondent complaining of unchanged pain symptoms. 35. Respondent performed a physical examination of the patient and noted she had left foot drop. 36. Respondent prescribed the patient a DME (durable medical equipment) left foot drop brace. Administrative Complaint Page 5 of 14
37. Respondent recommended the patient undergo EMG/NCS testing and wrote the patient a prescription for this purpose. 38. Respondent also recommended the patient see a physical medicine and rehabilitation specialist (physiatrist). 39. Respondent did not legibly document an impression or diagnosis for the patient's June 12 complaints and symptoms. 40. On or about June 18, 2013, the patient presented to the physiatrist complaining of constant low back pain, left leg pain, bilateral foot numbness and tingling, loss of feeling "when she wipes," and bowel and bladder incontinence and retention issues. 41. The physiatrist's impressions were low back pain, bilateral lower extremity radiculopathy, left foot drop, and loss of sphincter tone. 42. The physiatrist recommended EMG/NCS testing, a left ankle/foot orthotic, a urology evaluation, a GI (gastrointestinal) evaluation, and followup appointments with Respondent as scheduled. 43. On or about June 18, 2013, the patient also underwent EMG/NCS testing to rule out radiculopathy versus entrapment neuropathy. Administrative Complaint Page 6 of 14
44. The EMG/NCS report found deinnervation in the left L5 and S1 nerve distributions; decreased amplitude in the right peroneal and posterior tibial nerve distributions, and paravertebral muscle spasm. 45. The physiatrist interpreted the EMG/NCS report findings as left L5 and S1 radiculopathy; axonal neuropathic changes in the right peroneal and posterior tibial nerve distributions; and paravertebral muscle spasm. 46. On or about June 26, 2013, the patient presented to Respondent complaining of unchanged pain symptoms, severe left leg weakness, and bowel and bladder incontinence. 47. The patient underwent an X-ray examination of her lumbar spine which reportedly showed the TLIF in good alignment. 48. Respondent noted part of the EMG/NCS report findings of axonal neuropathic changes in the right peroneal and posterior tibial nerve distributions and paravertebral muscle spasm. 49. Respondent again recommended the patient see a physiatrist and scheduled the patient for a follow up appointment in two weeks. 50. Respondent did not legibly document an impression or diagnosis for the patient's June 26 complaints and symptoms. Administrative Complaint Page 7 of 14
51. On or about June 26, 2018, the patient presented to M.S., M.D., for a second opinion and continuing complaints of low back pain, weakness, loss of urine and stool control, numbness, and tingling. 52. Dr. M.S.'s initial impressions were possible neuropraxia, pseudo meningocele, arachnoiditis, and cauda equina syndrome. 53. Dr. M.S. prescribed an MRI and computed tomography (CT) of her lumbar spine which were performed on or about June 28, 2018. 54. The MRI and CT scan found severe spinal stenosis at L4-L5. 55. Dr. M.S.'s impressions were cauda equina syndrome, neurogenic bladder, and severe spinal stenosis at the L4 and L4-L5 levels. 56. On or about July 29, 2013, the patient presented to Dr. M.S. for a L4 vertebrectomy, L4-L5 discectomy, TLIF revision, and durotomy repair. 57. Pre-operatively, Dr. M.S. diagnosed the patient with spinal stenosis, cauda equina syndrome, loss of bowel and bladder function, left lower extremity paralysis, and right lower extremity paraplegia. 58. Symptoms of cauda equina syndrome include severe low back pain; pain, numbness, or weakness in one or both legs; loss of or altered sensations in the legs, buttocks, inner thighs, backs of the legs, or feet; and bladder and/or bowel retention or incontinence problems. Administrative Complaint Page 8 of 14
59. At all times material hereto, the standard of care required Respondent to: a. Recognize the symptoms of cauda equina syndrome based on a patient's history, complaints, and examinations; b. Timely order diagnostic studies and tests, including a CT, a CT myelogram, and/or MRI of the lumbar spine, when the symptoms of cauda equina syndrome are present; and/or c. Offer immediate re-exploration of the surgical site if the foregoing diagnostic studies and tests cannot be performed in a timely manner. COUNT I 60. The Department re-alleges and incorporates paragraphs one (1) through fifty-nine (59) as if fully set forth herein. 61. Section 458.331(1)(t)1., Florida Statutes (2012), subjects a licensee to discipline for committing medical malpractice as defined in section 456.50, Florida Statutes. Section 456.50(1)(g), Florida Statutes (2012), defines the term "medical malpractice" to mean "the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure." Section 766.102(1), Florida Statutes (2013), provides the prevailing professional standard of care for a given healthcare provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as Administrative Complaint Page 9 of 14
acceptable and appropriate by reasonably prudent similar health care providers. 62. On one or more occasions between on or about May 29, 2013, and June 26, 2013, Respondent failed to: a. Recognize the symptoms of cauda equina syndrome based on the patient's history, complaints, and examinations; b. Timely order diagnostic studies and tests, including a CT, a CT myelogram, or MRI of the lumbar spine, when symptoms of cauda equina syndrome were present; and/or c. Offer immediate re-exploration of the surgical site if the foregoing diagnostic studies and tests could not be performed in a timely manner. 63. Based on the foregoing, Respondent violated section 458.331(1)(t)1., Florida Statutes (2012). COUNT II 64. The Department re-alleges and incorporates paragraphs one (1) through fifty (50) as if fully set forth herein. 65. Section 458.331(1)(m), Florida Statutes (2012), subjects a licensee to discipline for failing to keep legible medical records that justify the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, Administrative Complaint Page 10 of 14
dispensed, or administered; and reports of consultations and hospitalizations. 66. Rule 6468-9.003(2), Florida Administrative Code (revised September 11, 2006), provides that a licensed physician shall maintain patient medical records with sufficient detail to clearly demonstrate why the course of treatment was undertaken. 67. Rule 6468-9.003(3), Florida Administrative Code (revised September 11, 2006), provides that the medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment, and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon the by the physician in determining the appropriate treatment of the patient. 68. Section 458.331(1)(nn), Florida Statutes (2012), subjects a licensee to discipline for violating any provision of chapters 456 or 458, Florida Statutes, or any rules adopted pursuant thereto. Administrative Complaint Page 11 of 14
69. On one or more occasions between on or about May 29, 2013, and June 26, 2013, Respondent failed to legibly document an impression or diagnosis for the patient's complaints and symptoms. 70. Based on the foregoing, Respondent violated section 458.331(1)(m), Florida Statutes, and/or section 458.331(1)(nn), Florida Statutes, by violating rule 6468-9.003, Florida Administrative Code. WHEREFORE, the Department respectfully requests the Board enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education, and/or any other relief the Board deems appropriate. [This space intentionally left blank.] Administrative Complaint Page 12 of 14
SIGNED this 16th day of November, 2018. Celeste Philip, M.D., M.P.H. Surgeon General and Secretary Geoffrey M. Christian FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK: (314;18#2 Cprzt407 DATEjath- 0 Geoffrey M. Christian, Esq. Assistant General Counsel Florida Bar No. 0010325 Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Telephone (850) 245-4661 Facsimile (850) 245-4684 E-mail Geoffrey.Christian@flhealth.gov Attorney for Petitioner PCP Date: November 16, 2018 PCP Members: G. El-Bahri, M.D.; J. Orr, Jr., M.D.; Ms. B. Goersch Administrative Complaint Page 13 of 14
DOH V. RICHARD C. MENDEL, M.D. DOH CASE NUMBER 2017-00602 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. A request or petition for an administrative hearing must be in writing and must be received by the Department within twenty-one (21) days from the day Respondent received this Administrative Complaint, pursuant to rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within twenty-one (21) days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in this Administrative Complaint pursuant to rule 28-106.111(4), Florida Administrative Code. Any request for an administrative proceeding to challenge or contest the material facts or charges contained in this Administrative Complaint must conform to rule 28-106.2015(5), Florida Administrative Code. Mediation under section 120.573, Florida Statutes, is not available to resolve this Administrative Complaint. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that the Department has incurred costs related to the investigation and prosecution of this matter. Pursuant to section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on Respondent in addition to any other discipline imposed. Administrative Complaint Page 14 of 14