The opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ADLEY DASILVA, P.A.,
Appellant,
v.
STATE OF FLORIDA DEPARTMENT OF HEALTH,
Appellee.
No. 4D2023-0856
[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
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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.
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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. Vinas a commission for every procedure Dasilva
performed under indirect supervision. Dr. Vinas remained Dasilva’s
supervising physician until February 11, 2022. Immediately thereafter,
another physician became his medical director and supervising physician.
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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, the ALJ found that the procedures at issue were office
surgeries performed while the patients were under general anesthesia with
intubation. The ALJ also made extensive findings regarding Dasilva’s care
of T.M.
The ALJ found by clear and convincing evidence that the VASER
liposuction course certification was an advertisement and that “neither the
term ‘physician assistant,’ nor initials ‘P.A.’ appeared anywhere on the
certificate.” However, the ALJ also found that the certification was “next
to” Dasilva’s “physician assistant license, which clearly identified him as a
physician assistant.”
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The ALJ drew the following conclusions of law.
As to Count I, the Department proved by clear and convincing evidence
that Dasilva practiced beyond the scope permitted by law, or accepted and
performed professional responsibilities which he knew, or had reason to
know, he was not competent to perform, by independently performing the
complex plastic surgeries on five patients. Even if Dasilva performed the
plastic surgeries under the indirect supervision of a physician, this does
not mean that the surgeries were within Dasilva’s scope of practice and
that he was competent to perform them.
As to Count IV, the ALJ found that the VASER liposuction course
certification constituted an advertisement, which violated an
administrative rule because it contained his name without clearly
identifying him as a physician assistant.
As to Counts V and VI, the ALJ found that Dasilva violated
administrative rules by performing office surgeries while the patients were
under general anesthesia with intubation, which were Level III surgeries
that were required to be performed by a physician.
The ALJ recommended revoking Dasilva’s license to practice as a
physician assistant.
The Final Order
The Board entered a final order denying Dasilva’s exceptions, adopting
the ALJ’s findings of fact and conclusions of law, and approving the
recommended penalty that Dasilva’s license be revoked. This appeal
ensued.
Standard of Review
In an appeal from final administrative action, we review the agency’s
findings of fact for whether they are supported by competent substantial
evidence, but we review the agency’s conclusions of law de novo. Q.H. v.
Sunshine State Health Plan, Inc., 307 So. 3d 1, 8 (Fla. 4th DCA 2020).
The Parties’ Arguments
Dasilva primarily argues that the Board erred as a matter of law in
concluding that Florida law requires the completion of medical school and
a medical residency to perform the plastic surgery procedures at issue in
this case. He contends that such requirements would categorically
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prohibit physician assistants from performing such procedures, even
when delegated by a board-certified supervising physician.
The Department responds that the Board properly interpreted the law
in concluding that Dasilva practiced outside the scope of a physician
assistant and lacked the competency to perform the complex surgeries he
undertook. The Department disagrees with Dasilva’s suggestion that mere
delegation by a supervising physician imputes competency. Even if a task
is delegated by a supervising physician, the Department argues, a
physician assistant has the independent responsibility to refuse
delegations outside their training and education. The Department
contends that it was not imposing a “categorical prohibition,” but rather
proved with competent, substantial evidence that Dasilva did not have the
training or experience to perform the procedures, regardless of the level of
supervision.
Competent Substantial Evidence Supports the Board’s
Determination That Dasilva Accepted and Performed Professional
Responsibilities He Knew, or Had Reason to Know, He Was Not
Competent to Perform
A. The Relevant Statutes and Administrative Rules as to Count I
In Count I, Davila was charged with violating section 456.072(1)(o),
Florida Statutes (2021), which provides for discipline of a licensee for
“[p]racticing or offering to practice beyond the scope permitted by law or
accepting and performing professional responsibilities the licensee knows,
or has reason to know, the licensee is not competent to perform.”
Section 458.347(4)(h), Florida Statutes (2021), contained within the
statute governing physician assistants, states that “[a] licensed physician
assistant may perform services delegated by the supervising physician in
the physician assistant’s practice in accordance with his or her education
and training unless expressly prohibited under this chapter, chapter 459,
or rules adopted under this chapter or chapter 459.” “The purpose of
[section 458.347] is to authorize physician assistants, with their
education, training, and experience in the field of medicine, to provide
increased efficiency of and access to high-quality medical services at a
reasonable cost to consumers.” § 458.347(1), Fla. Stat. (2021).
Florida Administrative Code Rule 64B8-30.012, implementing section
458.347(4)(h) and existing in its current form since 2016, authorizes a
supervising physician to permit a physician assistant to perform a task or
procedure within the supervising physician’s scope of practice, under
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direct or indirect supervision based on reasonable medical judgment, so
long as the supervising physician is “certain” that the physician assistant
is knowledgeable and skilled in performing the assigned task or procedure:
(1) A supervising physician shall delegate only tasks and
procedures to the physician assistant which are within the
supervising physician’s scope of practice. The physician
assistant may work in any setting that is within the scope
of practice of the supervising physician’s practice. The
supervising physician’s scope of practice shall be defined for
the purpose of this section as “those tasks and procedures
which the supervising physician is qualified by training or
experience to perform.”
(2) The decision to permit the physician assistant to
perform a task or procedure under direct or indirect
supervision is made by the supervising physician based on
reasonable medical judgment regarding the probability of
morbidity and mortality to the patient. Furthermore, the
supervising physician must be certain that the physician
assistant is knowledgeable and skilled in performing the tasks
and procedures assigned.
Fla. Admin. Code. R. 64B8-30.012(1) & (2) (emphasis added).
“Direct supervision” means “the physical presence of the supervising
physician on the premises so that the supervising physician is immediately
available to the physician assistant when needed.” Fla. Admin. Code R.
64B8-30.001(4).
“Indirect supervision” means “the easy availability of the supervising
physician to the physician assistant, which includes the ability to
communicate by telecommunications. The supervising physician must be
within reasonable physical proximity.” Fla. Admin. Code R. 64B8-
30.001(5).
The legislature enacted section 458.347(4)(h) as part of the 2016
amendments to the physician assistant statute. Ch. 2016-125, § 1, Laws
of Fla. Consistent with the legislature’s adoption of section 458.347(4)(h),
the Board of Medicine amended rule 64B8-30.012 in 2016 to remove
language that prohibited certain tasks from being delegated to physician
assistants at all, and that prohibited other tasks from being performed by
physician assistants under indirect supervision. See Proposed Rules, Fla.
Admin. Reg. Vol. 42/102 (May 25, 2016) (striking such language); see also
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Notice of Development of Proposed Rules, Fla. Admin. Reg. Vol. 42/46
(Mar. 8, 2016) (“The Board proposes the development of a rule amendment
to remove language which prohibits physician assistants from performing
certain delegated tasks.”).
B. Discussion
The Board correctly interpreted the law when it found that Dasilva
practiced outside the scope of his physician assistant license and
performed complex plastic surgeries he was not competent to perform.
Section 456.072(1)(o) authorizes discipline of a licensee for “[p]racticing or
offering to practice beyond the scope permitted by law or accepting and
performing professional responsibilities the licensee knows, or has reason
to know, the licensee is not competent to perform.”
The ALJ made a finding of fact, adopted by the Board, that “[a]n
individual who has not completed medical school and a medical school
residency, or an equivalent type of training and education, is not
competent to perform liposuction, VASER liposuction, a BBL,
abdominoplasty, breast augmentation, and blepharoplasty.”
This finding of fact is supported by competent, substantial evidence.
Dr. Pazmino testified that Dasilva “does not have the education, training
or experience to competently perform any of these procedures”
independently. Based on the context of the testimony and the ordinary
meaning of the term “independently,” Dr. Pazmino clearly used the term
“independently” to refer to Dasilva performing procedures without a plastic
surgeon present. For example, when Dr. Pazmino described his own
training, he suggested that performing a surgery “independently” meant
doing so without direct supervision. He explained that he learned to
perform abdominoplasties by “working under direct supervision and then
ultimately independently in my plastic surgery residency . . . .”
The protracted development of professional competence for plastic
surgeons contrasts with the abbreviated training period for physician
assistants. To become a licensed plastic surgeon, a physician must
complete four years of medical school plus a six-year surgical residency.
Physician assistant programs last about two years and do not train
students to perform plastic surgery procedures. The Department’s expert
testified that short-term training or education programs in plastic surgery
cannot substitute for a medical school curriculum and a residency
program. Dasilva’s training and experience—shadowing a plastic surgeon
in P.A. school, acting as a “first assist” on plastic surgeries, and attending
one-to-two-day training sessions—do not approach the education and
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experience required to become competent to perform the procedures at
issue.
Dasilva maintains that “Florida law permitted him to perform such
procedures when delegated by, and under the indirect supervision of, a
qualified Florida licensed physician.” However, the flaw in this argument
is that Florida law prohibits a physician assistant from performing
professional responsibilities he knows or should know he is not competent
to perform. Mere delegation does not automatically confer competency
within the meaning of section 456.072(1)(o).
Although no statute or rule expressly prohibits a physician assistant
from performing the plastic surgeries at issue, section 458.347(4)(h)’s
plain language requires that any services delegated to a physician
assistant must be “in accordance with his or her education and training.”
Section 458.347(4)(h) and rule 64B8-30.012 do not specifically enumerate
the tasks a physician assistant may or may not perform. Instead, those
provisions require an individualized approach to determining a physician
assistant’s scope of practice. Some tasks or procedures may be too
complex as a practical matter to be “in accordance with” the “education
and training” of a physician assistant, such that those procedures could
not be delegated to a physician assistant under indirect supervision.
Contrary to Dasilva’s argument, the Department did not adopt a
“categorical rule” prohibiting physician assistants from performing the
subject procedures as a matter of law. Rather, the Department presented
competent, substantial evidence that a physician assistant who has not
attended medical school and completed a medical residency in plastic
surgery, or undergone an equivalent type of education and training, is not
competent to perform the procedures as a matter of fact. This is not the
same as adopting a categorical rule as a matter of law. For example, a
foreign-trained medical doctor who later became a physician assistant in
the United States might be able to demonstrate competence to perform
certain plastic surgeries. Here, the Department established that Dasilva
lacked sufficient education and training to perform complex plastic
surgeries independently.
The Final Order as to Count IV Must be Set Aside Because the
Undisputed Evidence Showed that Dasilva Clearly Identified
Himself as a Physician Assistant
Dasilva was charged with violating Florida Administrative Code Rule
64B8-30.011(5), which provides that no physician assistant “shall
disseminate or cause the dissemination of any advertisement or
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advertising that contains the licensee’s name without clearly identifying
the licensee as a physician assistant (P.A.).”
We do not need to decide whether the VASER liposuction course
completion certificate was an “advertisement” because, as the hearing
officer found, it was hung in the office reception area “next to” Dasilva’s
“physician assistant license, which clearly identified him as a physician
assistant.”
The only reason why the course certificate could plausibly constitute
“advertising” is that it was displayed on an office wall to influence potential
patients. Thus, the display must be analyzed in its entirety, considering
the collective impression left on the viewer, rather than isolating individual
documents. Because the course certification was displayed on an office
wall next to a document clearly identifying Dasilva as a physician
assistant, we hold that Dasilva did not violate Rule 64B8-30.011(5).
Dasilva’s Challenge to Counts V and VI Was Not Preserved for
Appellate Review
Dasilva argues that the Board’s conclusions as to Counts V and VI must
be set aside because the requirements in the office surgery rules apply to
the supervising physician who delegates the task, not the physician
assistant operating under supervision. We do not reach the merits of
Dasilva’s challenge to Counts V and VI because the issue was not
preserved. “An appellant cannot raise issues on appeal that were not
properly excepted to or challenged before an administrative body.”
Colonnade Med. Ctr., Inc. v. State, Agency for Health Care Admin., 847 So.
2d 540, 542 (Fla. 4th DCA 2003). Here, although Dasilva raised this
argument in his proposed recommended order, he failed to raise any
challenge to Counts V and VI in his exceptions to the ALJ’s recommended
order.
Conclusion
We affirm in part, reverse in part, and remand to the Department of
Health to reconsider the proper penalty in the absence of a violation of
Count IV. Our remand for such reconsideration is not intended to exclude
the possibility of reimposing Dasilva’s license revocation as a proper
penalty. Rather, we offer no comment as to the proper penalty to be
imposed.
Affirmed in part, reversed in part, and remanded.
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GERBER and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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