Court lifts Miami doctor's suspension in autistic child's death

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http://www.miamiherald.com/2010/06/11/1674318/suspension-of-psychiatrist-is.html

Posted on Friday, 06.11.10

Court lifts Miami doctor's suspension in autistic child's death

A court ruled that a psychiatrist accused of overmedicating an autistic child

who died can continue practicing, at least for now.

BY CAROL GENTRY

Health News Florida

An appeals court has set aside the Department of Health's emergency suspension

of Miami psychiatrist L. Kaplan, accused of over-prescribing

anti-psychotic medication to an autistic child.

The boy, Denis Maltez, died in May 2007 at age 12. The medical examiner said he

stopped breathing in part because of the heavy prescription drugs he was taking,

but the psychiatrist disputes that.

The May 26 ruling by the First District Court of Appeal stayed the May 7

emergency suspension issued by Surgeon General Ana Viamonte Ros ``pending a

final disposition'' of the case, records show. That can take months, and if the

physician contests it, years.

While the court didn't offer a reason for granting the stay, did:

``Dr. Kaplan did not harm this child.''

Kaplan is now free to practice, said his attorney, . It is not

clear whether he has decided to do so; Kaplan did not return a call to his

office.

If he does practice, his client base will be somewhat different. The state

Medicaid program sent him a letter in mid-April stating it was terminating his

contract in 30 days; no reason was stated.

Meanwhile, the DOH Internet site where the public can look up health

professionals' records still lists Kaplan's license as ``clear [and] active''

and says there are no pending complaints against him.

As The Miami Herald recounted in April, the Department of Children & Families

and two other agencies knew about the overmedication concerns for years. Records

showed the psychiatrist dismissed their concerns, The Herald said.

The DOH's delayed action may have figured into the court's ruling. DOH stated in

the suspension order and in pleadings that it did not receive the complaint

against Kaplan regarding Denis' death until last November and that the

intervening period was taken up with investigating the case.

However, the state Medicaid program sent messages to DOH as far back as 2006

requesting an investigation of Kaplan for over-medicating. DOH has not explained

whether that occurred or what the findings were.

DOH's attorney, Alsobrook, argued that an emergency action was

``not unreasonable or unfair because of the nature of the population to be

protected in this instance, the developmentally disabled in residential

facilities.''

``Dr. Kaplan's practices may be viewed as egregious, as he is taking advantage

of a vulnerable population ,'' she wrote.

In her request for the stay, argued that DOH's expert who reviewed the

case disagreed with the medical examiner on Kaplan's role in the boy's death.

However, the expert's opinion has not been made public because it is part of the

DOH investigative file, which does not become public record until 10 days after

a Board of Medicine panel rules there is ``probable cause'' to believe the law

was violated.

DOH's court petition said Kaplan's case would be presented to the probable-cause

panel of the Board of Medicine on May 28. Complaints become public 10 days after

probable cause is found.

DOH spokeswoman Eulinda said Thursday there is still no public information

in this case. It isn't clear whether the case review was postponed or whether it

was rejected.

Talenfeld, who represented Denis' mother, Martha Quesada, in a civil suit

over the boy's death, said Thursday he had not heard about the appeals court

ruling. In any event, the suit against Kaplan ``is over,'' Talenfeld said,

indicating it has been settled.

The suit against Rainbow Ranch, the facility where Denis was living in foster

care, continues, Talenfeld said.