Dasilva v. Dep't of Health

384 So.3d 795

ADLEY DASILVA, P.A., Appellant,

v.State of Florida DEPARTMENT OF HEALTH, Appellee.

No. 4D2023-0856

District Court of Appeal of Florida, Fourth District.

[April 17, 2024]

Appeal from the State of Florida, Board of Medicine, Department of Health; L.T. Case Nos. 2022-17017 & 2022-08713 (DOH), 2022-2480PL & 2022-2481PL (DOAH).

Sean M. Ellsworth of Ellsworth Law Firm, P.A., Miami, for appellant.

Sarah Young Hodges, Chief Appellate Counsel, Florida Department of Health, Prosecution Services Unit, Tallahassee, for appellee.

Gross, J.

Adley Dasilva appeals a final order of the Board of Medicine revoking his license to practice as a physician assistant. We affirm in part and reverse in part.

This case arises out of disciplinary proceedings brought by the Department of Health against Dasilva, a licensed physician assistant ("P.A."), based on allegations that he committed a variety of professional misconduct, including performing complex plastic surgery procedures beyond the scope of his license.

The Department’s Administrative Complaint

The Department’s amended administrative complaint against Dasilva contained eight counts. The following counts are relevant to this appeal.

Count I alleged that Dasilva practiced beyond the scope permitted by law, or performed professional responsibilities which he knew or had reason to know he was not competent to perform, in violation of section 456.072(1)(o), Florida Statutes (2021), by independently performing liposuction, VASER liposuction, Brazilian Butt Lifts, abdominoplasty, breast augmentation, and blepharoplasty procedures.

Count IV asserted that Dasilva disseminated or caused the dissemination of an advertisement without clearly identifying himself as a physician assistant by displaying his VASER liposuction course certificate on his office wall, thereby violating section 458.331(1)(nn), Florida Statutes (2021), through a violation of Florida Administrative Code Rule 64B8-30.011(5).

Count V alleged that by independently performing those plastic surgery procedures identified in Count I, Dasilva violated section 458.331(1)(nn), Florida Statutes, (2021), through a violation of Rule 64B8-9.009(2)(o), which provides that all physicians performing office surgery must be qualified by education, training and experience to perform any procedure performed in the office surgery setting.

Count VI asserted that by performing a "Level II and/or Level III surgery" at his office on one or more occasions without staff privileges at any hospital or satisfactory training such as board certification, Dasilva violated section 458.331(1)(nn), Florida Statutes (2021), through a violation of Rule 64B8-9.009(4)(b)2.a. and/or Rule 64B8-9.009(6)(b)1.a.

Dasilva disputed the factual allegations and requested a formal hearing.

The Formal Hearing

The hearing evidence revealed the following facts.

A. The Department’s Case

In early 2022, Dasilva performed Brazilian Butt Lifts, liposuction, VASER liposuction, abdominoplasty, breast augmentation, and blepharoplasty procedures on patients without a physician in the operating room or on the premises. For example, on January 5, 2022, Dasilva performed VASER liposuction, an abdominoplasty, a breast augmentation, and a BBL on patient T.M. at Dasilva’s office without a physician on the premises.

During the Department’s investigation of this case, Dasilva’s supervising physician, Dr. Vinas, stated he was not present at Dasilva’s office on January 5, 2022, he was at his own office seeing patients, he had no record of T.M. ever being his patient, and he never consulted on T.M.’s case. In early February 2022, Dr. Vinas sent Dasilva an email stating that "[w]e have seen many patients in Instagram with surgeries you should NOT be doing. A Rhinoplasty, breast augs, eyelid surgeries, male gynecomastia, facelifts, buccal fat pads removal, etc. These are not approved by me." Dr. Vinas added that their arrangement was "for liposuction only."

Dr. Pat Pazmino, a board certified plastic surgeon, testified as an expert on behalf of the Department. To become a licensed physician, he explained, one must complete four years of medical school after college. And to become a plastic surgeon, one must complete a six-year residency where one performs surgeries on a daily basis.

Dr. Pazmino considered all of the plastic surgery procedures at issue in this case to be "complex." Without undergoing a "medical school program, residency or an equivalent type of training and education program," one would not be competent to perform any of these procedures. Short-term training or education programs in plastic surgery are not intended to replace a medical school curriculum or residency program.

Having reviewed Dasilva’s deposition testimony, Dr. Pazmino opined that Dasilva "does not have the education, training or experience to competently perform any of these procedures." Dr. Pazmino explained that Dasilva completed a 27-month physician assistant program, where Dasilva would have received "no education in abdominoplasty, liposuction, Brazilian butt lift, blepharoplasty or breast augmentation." Dr. Pazmino further explained that Dasilva "does not have training to independently perform these procedures," adding: "I did see that he does have training and experience in assisting plastic surgeons in performing this but that is completely different than independently performing them."

Dr. Pazmino concluded that the "plastic surgery procedures outlined in the complaint" were "not in accordance with Dasilva’s education and training." He further explained how Dasilva’s improper care resulted in one patient, T.M., having widespread necrosis of her abdominal skin.

A clinical professor at a physician assistant school testified that physician assistants complete a 24-to-27 month program which does not include any courses or clinical rotations teaching students how to perform plastic surgery procedures.

The remaining testimony concerned Count IV of the complaint.

In March 2022, a Department investigator inspected Dasilva’s plastic surgery office and observed various certifications and licenses on the wall in the reception area, including a certification of attendance at a "Vaser High Definition Lipo Course." The certification was issued to Dasilva, but the credential after his name was whited out. The investigator believed someone had whited out the letters "P.A."

However, when shown a better copy of the certificate on cross-examination, the investigator acknowledged that the credential "M.D." had been whited out, not the designation "P.A." The certification was hanging on the wall near Dasilva’s diploma from his P.A. program.

B. Dasilva’s Case

Dasilva testified about his training and experience. He explained that he shadowed a plastic surgeon in physician assistant school, but he never assisted him with any surgery.

After graduation, Dasilva volunteered as a "first assist" at a med spa for about a year so he could learn about plastic surgery. From 2013 to 2017, Dasilva worked for a plastic surgery practice as a "first assist" who also did injections.

Beginning in 2017, Dasilva worked at a different plastic surgery practice, where he assisted with about 40 procedures. Most of the time, the physician would start the procedure and then leave, allowing Dasilva to complete the procedure by himself. The procedures included liposuction, facelifts, BBLs, tummy tucks, and breast augmentations.

In 2018, Dasilva acquired a practice from a retiring physician and brought on Dr. Vinas as his medical director and supervising physician. Over the years, Dasilva attended a "significant amount" of one-to-two day training sessions covering various procedures.

From 2018 to 2022, Dasilva performed about 200 procedures at his practice under "indirect supervision," including liposuction, BBLs, facelifts, blepharoplasties, breast augmentation, and tummy tucks. He said that "indirect supervision" is when the physician is available through telecommunication but is not physically present in the operating room. Dasilva paid Dr. Vines a commission for every procedure Dasilva performed under indirect supervision. Dr. Vines remeined Dasilva’s supervising physician until February 11, 2022. Immediately thereafter, another physician became his medical director and supervising physician.

C. Dasilva’s Deposition

Dasilva’s deposition was admitted into evidence. When asked about each of the surgeries on the patients at issue in this case, Dasilva testified that he performed the surgeries under the indirect supervision of Dr. Vinas. Dasilva admitted that he did not know whether Dr. Vinas was in a different surgery at the time Dasilva performed surgeries. Dasilva nonetheless assumed Dr. Vinas was available by phone during the surgeries at issue, because someone at Dr. Vinas’s office would always pick up the phone if he reached out, though he admitted it was not always Dr. Vinas. Dasilva acknowledged that Dr. Vinas would not stop a surgery to talk to him on the phone, but he noted that "at least there would be some type of communication."

Recommended Order

The administrative law judge (ALJ) entered a recommended order making the following findings of fact relevant to this appeal.

Relying on the "persuasive and credible" testimony of Dr. Pazmino, the ALJ found that Dasilva "lacks the sufficient education, training, and experience required to competently perform liposuction, VASER Liposuction, a BBL, abdominoplasty, breast augmentation, and blepharoplasty independently." The ALJ concluded that a person who has not completed medical school and a medical residency, or an equivalent type of training and education, "is simply not competent to perform" such procedures.

Emphasizing that Dasilva is not a medical doctor and has no formal education beyond his 27-month physician assistant program, the ALJ found that Dasilva "lacks the education, training, and experience necessary to perform these complex medical plastic surgeries." Additionally,...