By STEPHEN HOBBS, SUN SENTINEL, OCT 26, 2017.
It has been more than nine years since Florida health regulators concluded that Dr. Barry Jack Kaplan botched a woman’s breast implants and shouldn’t practice cosmetic surgery. In the time since, he’s been accused of injuring two other women, one so seriously she had to have her nipples removed.
Florida officials finally decided a year ago to revoke Kaplan’s license – but have yet to follow through.
Today, the website for Kaplan’s two cosmetic surgery centers in Central Florida highlights his medical license and boasts that he is a “leading breast augmentation doctor.”
When it comes to taking action against doctors, the state of Florida takes its time – and that puts people at risk, a South Florida Sun Sentinel investigation found. Florida regularly allows doctors to continue to see, treat, and operate on people for years after accusing them of endangering patients.
The Sun Sentinel examined more than seven years of state data, hundreds of disciplinary cases, and interviewed patients, attorneys, doctors and experts. The review revealed a system often slow to punish doctors and quick to let them settle charges without accepting responsibility.
The investigation found:
— State law says prosecutors for the Florida Department of Health should decide whether to charge a doctor within six months of a complaint being filed. But on average, they take more than twice as long to file charges.
— State law requires department prosecutors to expedite cases that take a year or longer. But on average, doctor prosecutions take two years.
— State law empowers the department to ask the Florida Surgeon General to suspend the licenses of doctors while cases against them are prosecuted. The state rarely does.
— State law requires the health department to investigate doctors who settle three or more medical malpractice lawsuits for more than $50,000 each over a five-year period. The law has triggered 1,500 investigations in the past 10 years – but only seven led to discipline.
Florida currently has a backlog of nearly 400 unresolved, longstanding cases against doctors including those accused of mistreating patients in episodes ranging from routine checkups to emergencies.
They include a Panama City doctor who removed the wrong side of a patient’s thyroid; a Pompano Beach doctor who shut down his office without telling patients, abandoning their records inside; and a Miramar doctor who didn’t show up for 92 minutes to help a pregnant mother in distress. The mother died hours after her son was born.
The Department of Health declined to let the Sun Sentinel interview its prosecutors for this article.
Agency spokesman Brad Dalton in August said that there are many reasons for delays in prosecuting cases, including witnesses and patients who are reluctant or slow to cooperate and the difficulty of tracking down doctors who move out of state.
Dr. Magdalena Averhoff, chair of the Board of Medicine, which regulates medical doctors, said the cases that come before the board are complicated, making them hard to resolve quickly.
“We are doing much better than we were before but there is always room for improvement,” said Averhoff, who was appointed to the board in 2012. “I think it does work.”
Four dead patients, kept practicing
Paramedics banged on the locked door of Dr. Mark Kantzler’s health care clinic as his patient’s life slipped away.
Margaret Mroz, 69, had hoped Kantzler could alleviate the symptoms of her emphysema. But the procedure went awry, and she grew pale and weak, state records show.
When Mroz’s husband called 911, Kantzler refused to get on the phone with the dispatcher, according to state records. Later in the call, Kantzler’s assistant told the dispatcher that paramedics were not needed.
“We think we have it under control here,” the assistant said.
Minutes later, Mroz died in Kantzler’s Sarasota clinic.
It wasn’t the first time Kantzler had been implicated in the death of a patient in his care.
He settled four medical malpractice lawsuits from 1999 to 2011, state records show. Three involved accusations he overprescribed painkillers to patients who overdosed and died.
State officials twice suspended his license, in 1991 for abusing pain medication himself and in 2008 for overprescribing pain medication to patients. The first suspension lasted less than two months. In the second case, officials suspended his license for a year but immediately reduced the suspension to a month.
By 2013, Kantzler was administering experimental stem cell treatments. He performed one of them on Margaret Mroz, extracting cells from her belly and pumping them back into a vein in her ankle, her husband later told investigators.
It was then that she suffered a seizure, according to state records.
Kantzler didn’t mention her death in his record of her visit that day in June 2013, state investigative records show. He didn’t notify state authorities a patient had died in his care, as the law required. He didn’t send her body to be autopsied.
His records falsely stated that he gave her a shot and sent her home, a state investigation found.
Despite those findings and Kantzler’s troubled history, state regulators still didn’t stop him from practicing medicine. They again charged him with medical malpractice and allowed him to continue to see patients as his case proceeded – for the next four years.
Margaret Mroz’s widower, Michael, recalls his disgust at seeing Kantzler’s name on an advertisement for facelifts at a gym and a sandwich shop near his Clearwater-area home. His wife was long dead, but Kantzler was still practicing.
“It sickens me,” said Mroz, 73.
Even after Kantzler was charged in Margaret Mroz’s death, he racked up new accusations. Department of Health prosecutors in April filed charges against him in two separate cases for not properly documenting patient visits in 2014 and 2016.
In August, state officials voted to drop one case and fine him $5,000 for the other.
Only now are state authorities moving to take away his license to practice medicine in Florida – after Kantzler in September volunteered to give it up instead of fighting the charges in Mroz’s case. Kantzler, 64, declined to comment.
Cases drag on
The health department currently has nearly 400 doctor cases that have been pending for a year or more, state data shows. They include at least 19 doctors who racked up new charges while their initial cases languished.
Complaints against doctors are pursued by prosecutors with the Department of Health. These attorneys make their cases to state boards comprised of doctors and consumer representatives.
The vast majority of the open cases involve medical doctors, regulated by the Board of Medicine. The others are osteopathic physicians, who receive the same training as medical doctors but take a more holistic approach, and are overseen by the Board of Osteopathic Medicine.
Board members are appointed by the governor. They can approve settlements between doctors and health department attorneys or issue their own sanctions, which can include license restrictions, revocations and fines.
Dalton, the Department of Health spokesman, said the department’s prosecutors sometimes wait for cases to be resolved by other authorities before proceeding against doctors.
But the Sun Sentinel found the state is also slow to act in those cases, even after state prosecutors more than a year ago said the doctors should be disciplined.
Among them: a radiologist who pleaded no contest to a charge of possessing child pornography and is a registered sex offender, and a doctor who had his license revoked in Ohio after he pleaded guilty to two felonies after he violated a state drug testing requirement.
Former health department officials say the department’s prosecutors are overworked and outmatched against seasoned defense attorneys who have represented doctors in front of state boards for years. The department currently has 28 attorneys juggling more than 800 cases involving doctors.
Because the state allows most doctors to keep practicing while their cases are ongoing, doctors may have an incentive to drag them out as long as possible. Evidence gets outdated. Patients who filed complaints die. Memories fade.
Florida settles, doctors dodge blame
The willingness of Florida’s medical boards to settle cases with doctors enables doctors to keep their licenses even after repeated accusations of wrongdoing.
While state boards can strip the licenses of doctors they have found to have committed medical malpractice, cases that end in settlements don’t count. In most settlements, doctors don’t admit or deny the allegations against them and there is no finding of malpractice.
Eighty percent of all doctor discipline cases resolved by state medical boards in the last seven years ended in settlement agreements, state data shows.
The state’s willingness to settle has even nullified the impact of a 2004 voter initiative aimed at cracking down on problem doctors. The so-called “three strikes” law requires state boards to revoke the licenses of doctors found to have committed malpractice three or more times.
The Sun Sentinel found no evidence that any doctors have had their licenses revoked under the law.
The newspaper’s review found the state has brought 24 cases against Tampa-area back surgeon Alfred Bonati since 1992 – more than any physician currently practicing in the state, records show.
The state said in one of the cases that Bonati failed to immediately send a patient for emergency help after she couldn’t move her legs, lost consciousness, and had to be resuscitated during back surgery. In another, the state said Bonati performed nine unsuccessful surgeries on a patient over three months “without the skill training or ability” to resolve her back problem.
Four of the state’s cases against Bonati came after the three strikes law passed.
Department of Health prosecutors in 2015 resolved the four charges with one settlement in which Bonati did not admit to the charges but agreed to pay $75,000 in fines and costs, take medical education courses, and give a lecture. Four cases became one, and because that one case was settled, Bonati does not have a single strike on his license.
Bonati, 78, has sued his attorneys for mishandling that settlement.
His current attorney, Samuel Heller, released a statement on behalf of the doctor, dismissing the validity of the past complaints against him. Bonati said they were largely “filed as a strategy in related civil litigation” and because state regulators didn’t believe his innovative method of back surgery met state standards.
“Spine surgery has advanced at an exponential rate because Dr. Bonati was able to fight those complaints and continue to innovate,” the statement said.
Bonati also criticized the three-strikes law.
“More than a decade later, the ‘three strikes’ law has had little impact since it does not appear that any physician’s license has ever been revoked as a result of the amendment.”
“I looked like I had been butchered”
The Board of Osteopathic Medicine decided to revoke Dr. Barry Jack Kaplan’s license a year ago. But because he didn’t agree, the state still hasn’t taken his license away.
The disciplinary history of the Central Florida cosmetic surgeon illustrates how slow the state can move against doctors accused of flouting board rules – and how doctors can delay their own discipline.
Kaplan, 67, is an osteopathic physician with offices in Melbourne and Altamonte Springs.
Health department prosecutors accused him of mishandling three breast surgeries from 1999 to 2005. In 2008, state officials said he couldn’t perform cosmetic surgery with an incision until he’d gotten additional certification. Records show no indication that he did.
But in 2012 he took part in another breast implant surgery and improperly handled the woman’s care after the operation, the state said. The 24-year-old patient later got an infection and had to have her implants removed, state records show. She told an investigator she was concerned Kaplan was performing more surgeries on women and potentially harming them.
The health department charged Kaplan in January 2014, but let him continue to practice.
In July 2014, with the case unresolved, Kaplan performed a breast implant procedure on Shirley Woodhall, according to a lawsuit she filed against him.
Woodhall, 72, said the anesthesia used was ineffective and she woke up in pain during her surgery.
She wore a bandage for about a week after the procedure, and said she was unaware of what her chest looked like until she had a follow-up with a doctor who assisted Kaplan with the surgery. Woodhall said she was horrified with what she saw: Her breasts were deformed. Her nipples turned black and later had to be removed.
“I looked like I had been butchered,” she said.
Kaplan declined to give her a refund and offered to try the surgery again. She refused and went to another surgeon who reshaped her breasts and unsuccessfully tried to recreate nipples.
Kaplan did not respond to requests seeking comment.
The state’s attempt to resolve the 2012 allegations against Kaplan shows how the health department, doctors and medical boards interact in these cases. The health department and Kaplan reached a settlement stipulating that he would pay about $13,000 in fines and costs, undergo additional training, and again be prevented from doing cosmetic surgery involving incisions. The osteopathic board in November 2016 rejected that settlement and “counter-offered” that Kaplan’s license should be revoked.
Kaplan’s attorney, Julia Ingle, said the doctor rejected that counter-offer and plans to appeal the decision. Though his license remains active, Ingle said Kaplan is not currently practicing due to health issues.
Woodhall sued Kaplan in state court in December 2016. The lawsuit is pending and Kaplan has denied the allegations, court records show.
The Department of Health, which was notified of the lawsuit, has not filed charges against Kaplan for his involvement in her surgery. Because cases are confidential until charges are filed, it’s unclear what action the state may be taking in her case.
“I want him stopped,” Woodhall said. “He should never touch another woman with a scalpel.”
DOCTOR DISCIPLINE: HOW IT WORKS IN FLORIDA
A complaint is filed with the Florida Department of Health and the doctor is notified.
Should charges be filed?
Within six months, health department officials are supposed to recommend whether charges should be filed.
Recommendations are submitted to a subcommittee of the state boards that regulate doctors (the Board of Medicine for medical doctors or the Board of Osteopathic Medicine for osteopathic physicians). The panel decides whether the health department should file charges. If charges are filed the case becomes public.
The state can restrict or suspend a doctor’s license while charges are pending.
Department of Health prosecutors work to build a case. During this time, they may negotiate settlement agreements with the doctors. The majority of cases are resolved through settlements.
State boards review settlement
If both sides agree on discipline, the case goes to the full boards, which are comprised of doctors and consumer representatives. Board members can agree to the settlement, or impose harsher or more lenient discipline.
If the case can’t be settled
Cases occasionally also make their way before a judge with the Florida Division of Administrative Hearings. This agency gets involved when the health department and the accused doctor cannot agree on a settlement and when the doctor disputes the facts of a case.
The recommendations of the administrative judge go back to the board for a final decision.