Diagnosis for 11.3.22: Checking the pulse of Florida health care news and policy

 Welcome back to Diagnosis, a vertical that focuses on the crossroads of health care policy and politics.

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Florida Gov. Ron DeSantis is poised to get a ban on gender-affirming care for minors in place just as voters will decide whether to give him a second term in office.

The Boards of Medicine and Osteopathic Medicine are meeting this Friday in Orlando where they are expected to consider a draft rule on gender-affirming care that was crafted and approved last week by a joint rules committee.

That rule, which has drawn sharp criticism from LGBTQ advocates, would bar physicians from providing their patients under the age of 18 with hormone and puberty blockers unless they are taking part in an institutional independent review board clinical trial affiliated with a university.

The proposed rule is silent on what will happen to patients younger than 18 who are currently being treated with hormone blockers, though the board is expected to make accommodations for existing patients.

The two medical boards are acting at the request of State Surgeon General Joseph Ladapo, but it also comes as DeSantis has made his opposition to gender-affirming care a recurring point in campaign stump speeches.

The Governor did it again Wednesday during a late afternoon stop in Pasco County where DeSantis asserted it is wrong to give gender-affirming care to minors, contending gender dysphoria “will resolve itself” for many teenagers once they become adults.

He said the term “gender-affirming care” is “a euphemism to try to hide the grotesqueness of what they are doing.”

“If a 15-year-old can’t get a tattoo, is it really appropriate that they can have their body parts taken off?” DeSantis asked.

National medical organizations support gender-affirming care for adults and adolescents and those opposed to the proposed rules point out that surgery is rare. Supporters of procedures also say such care leads to lower rates of depression and suicide risk for transgender youth.

Florida has already moved ahead with a rule that bars Medicaid from reimbursing for gender-affirming care, a decision that sparked a legal challenge in federal court.

Florida Medicaid Director Tom Wallace released a report June 2 showing the standard medical care for gender dysphoria does not meet generally accepted medical standards and is experimental and investigational. The “findings” led the agency to pass a rule banning Medicaid from reimbursing providers for gender-affirming care. The rule is being challenged in federal court.

Meanwhile, Yale physician Meredithe McNamara joined six other scientists and a lawyer to review the June 2 report. McNamara was one of a handful of providers who testified before a joint legislative and rules committee last week.

“We are alarmed that Florida’s health care agency has adopted a purportedly scientific report that so blatantly violates the basic tenets of scientific inquiry. The report makes false statements and contains glaring errors regarding science, statistical methods and medicine. Ignoring established science and long-standing, authoritative clinical guidance, the report instead relies on biased and discredited sources, including purported ‘expert’ reports that carry no scientific weight due to lack of expertise and bias,” the group wrote. “So repeated and fundamental are the errors in the June 2 Report that it seems clear that the report is not a serious scientific analysis but, rather, a document crafted to serve a political agenda.”

I welcome your feedback, questions and especially your tips. You can email me at SextonHealthNewsletter@gmail.com or call me at 850-251-2317.

— From defense to offense —

Tallahassee physician Dr. Joseph Dorn has been on the winning side of a legal tussle with state health care regulators who have tried to temporarily rescind his license, fine him and ban him from ordering medical marijuana for patients.

And now he wants the state to fork over hundreds of thousands of dollars to cover legal fees he incurred defending his license.

Dorn’s attorney, Ryan Andrews, filed a motion asking for a determination that Dorn is entitled to an award of reasonable attorneys’ fees and costs incurred and that a hearing is held to decide the proper amount of fees and costs.

According to the motion, Dorn had, as of Nov. 2, “incurred a total of $316.613.08 in attorneys’ fees and costs in connection with this action.”

Dorn also is contemplating suing the Department of Health (DOH) and/or some of its employees and former employees for negligence, fraud, civil conspiracy and tortious interference.

In addition to sending a notice to the DOH, Dorn’s attorneys have sent notice to former DOH General Counsel Louise St. Laurent; Office of Medical Marijuana Use Director Chris Ferguson; Medical Quality Assurance Chief Andre Moore; and Brent Johnson and Ben Lanier, the two investigators who posed as patients with post-traumatic stress disorder seeking care.

“This claim against DOH and others is predicated on the negligence of DOH, including specifically the negligent training and negligent supervision of its employees in connection with its actions against Dr. Dorn as outlined in the attached documents,” the legal notice reads.

— Back to the beginning —

One of the first physicians to be qualified to certify patients for medical marijuana, Dorn’s most recent legal victory comes in the form of a 15-page recommended order issued by state administrative Judge W. David Watkins.

Though Watkins in March issued a recommended order for the DOH to dismiss its administrative complaint against Dorn, the Florida Board of Medicine (BOM) took exception to the recommended order at its June meeting.

Members of the BOM voted to remand the recommended order back to Watkins alleging the judge failed to issue “findings of fact” on three specific issues: whether Dorn performed a physical examination on patients; checked the prescription drug monitoring program for the patients; and/or engaged in a trick or scheme by charging 3,000 new patients $299 for a medical marijuana certification without having any necessary medical equipment in his office.

To that end, Watkins issued a 15-page supplemental findings of fact Oct. 22 making clear Dorn’s time and exchanges with the patients amounted to a physical examination and that the Board of Medicine has not provided a definition of a physical examination in its rules.

“The Department argues that the term ‘physical examination’ is not confusing or ambiguous. The competent substantial evidence of record does not support this claim. Indeed, at (the) hearing, no Department witness articulated the specific components of the physical exam that it contends Dr. Dorn failed to perform. Had the term been as clear and unambiguous as the Department contends, then one of its witnesses certainly could have specified the required components of the exam. This it did not do.”

Moreover, in the supplemental findings of fact, Watkins argued the DOH’s position that Dorn was required to physically examine patients who suffer from PTSD by taking vital signs or otherwise laying hands on the patient, is “not supported by the persuasive evidence of record.”

Watkins wrote that Dorn’s “visual physical examination of the two “patients,” in conjunction with his review of the patient intake forms, review of the available medical records and face-to-face interview, satisfied Dr. Dorn’s obligation to conduct a physical examination of the two patients.”

The department alleged Dorn did not have the necessary medical equipment in his office to conduct the appropriate physical examinations that are required by statute. The department also stated that charging each new patient $299 to get registered in the medical marijuana use registry was an abuse of his authorization as a qualifying physician and that he registered more than 3,000 patients in a year.

But in his Oct. 22 supplemental findings of facts, Watkins said there was no evidence presented during the hearing that supported the department’s argument about lack of equipment or the $299 charges. Additionally, Watkins noted in the ruling the department did not make an issue of Dorn’s patient load during the administrative hearing.

“DOH also conceded that Dr. Dorn was not the top prescriber of medical marijuana in Florida for that same time period,” Watkins wrote. “Assuming normal working hours and that Dr. Dorn took a two-week vacation during the period at issue, he would still have had the ability to see 4,000 patients, each with a 30-minute appointment. There is nothing in this record to suggest that there was anything inappropriate in the sheer volume of medical marijuana certifications issued by Dr. Dorn.”

According to a Board of Medicine transcript, board members briefly discussed whether it should take exceptions with three other portions of the March recommended order but decided against it.

Watkins said he reviewed the transcript and, “in order to avoid another remand from the board,” he addressed the three outstanding provisions finding that the DOH failed to establish by clear and convincing evidence that Dorn’s physical examination failed to meet the requirements in the medical marijuana law or that Dorn made deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick or scheme in the practice of medicine.

The BOM will review Watkins’ supplemental findings of facts and decide whether to accept the recommendations or appeal them to the 1st District Court of Appeal.

— Court: Hospital staff texts not private —

Noting there is no absolute right to privacy, a Tallahassee appeals court refused to intervene in a medical malpractice case in which hospital employees were ordered to turn over copies of text messages to the former patients of a surgeon they worked with.

A three-member panel of the 1st District Court of Appeal denied a request from seven employees at Ascension St. Vincent’s for the appellate court to take jurisdiction in the lawsuit filed by scores of former patients and orthopedic surgeon R. David Heekin.

Writing for the three-member panel, Judge Thomas Winokur noted the state constitution does provide protections and the Florida Supreme Court has determined the privacy clause in the constitution applies to “informational privacy.”

“However, the Supreme Court has also held that our state constitution’s privacy right is not absolute … recognizing that Florida’s right to privacy ‘was not intended to be a guarantee against all intrusion into the life of an individual,” Winokur wrote in an opinion that was agreed to by Judges Timothy Osterhaus and Judge Robert Long Jr.

Heekin, who is suffering from a progressive neurological condition that caused him to lose his balance and slur his speech, is being accused of botching surgeries, according to Jacksonville media following the case.

The patients allege Heekin and Ascension St. Vincent’s knew or should have known he was unfit to practice medicine but allowed him to continue anyway.

The patients filed suit in Jacksonville and sought to obtain text messages with observations about Heekin’s purported behavior from the seven hospital employees.

Under Florida’s broad discovery rules, any non-privileged information, including electronically stored information such as text messages, is discoverable so long as it is relevant to the subject matter of the action.

The seven hospital employees sought a protective order, arguing the state constitution provides them a global right to privacy, which includes the text messages sent from and received by their personal phones. They also argued producing the information would constitute an undue burden and cost.

The trial court ruled the text messages were generally discoverable. The judge then directed the employees to compile privacy and privilege logs containing the individual text messages they intended to argue should be excluded.

The employees subsequently submitted a privacy log withholding thousands of pages of text messages and images that were identified as “private conversations on personal cellular phones re: Heekin.” They also filed a privilege log that identified around 20 text messages they alleged were subject to various other privileges and protections.

After submitting the logs, the employees filed a motion in circuit court for a protective order, again arguing the state constitution protects their right to privacy. The motion also requests that the text messages, if ordered to be produced, be treated as confidential and filed under seal.

The circuit court judge denied the employees’ petitions and opined that producing the information wouldn’t be an undue burden or cost because St. Vincent’s Medical Center was paying the costs.

The employees appealed the rulings to 1DCA in Tallahassee, filing for a “writ of certiorari” review that, if approved, would have allowed the appellate court to take jurisdiction of the case.

Considered an extraordinary step, to grant the request, the petitioner must prove that the judge’s discovery order departed from the essential requirements of the law and that the impending result caused a material injury for the rest of the case that cannot be remedied on direct appeal.

“Under the particular facts of this case, (St. Vincent’s Medical Center employees) have failed to show that they have a clearly established global right to privacy in personal text messages that is sufficient to outweigh the tailored need for discovery. Certiorari review should not be used to create new law where the law at issue is not clearly established,” the opinion notes. “No Florida court has ever recognized an absolute right to privacy in text messages.”

The post Diagnosis for 11.3.22: Checking the pulse of Florida health care news and policy appeared first on Florida Politics – Campaigns & Elections. Lobbying & Government..