       Third District Court of Appeal
                                State of Florida

                          Opinion filed October 10, 2018.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D18-1825
                          Lower Tribunal No. 17-22531
                              ________________


                             Arnaldo Valls, M.D.,
                                     Petitioner,

                                         vs.

                 State of Florida, Department of Health,
                                    Respondent.



      A Case of Original Jurisdiction - Petition for Review of Non-Final Agency
Action.

      Patino & Associates, P.A., and Ralph G. Patino, for petitioner.

      Christine E. Lamia (Tallahassee), Chief Appellate Counsel, for respondent.


Before EMAS, LOGUE and LUCK, JJ.

      PER CURIAM.
      INTRODUCTION

      Dr. Arnaldo Valls petitions this court for review of a nonfinal agency action

by the Florida Department of Health (“the Department”), which issued an Order of

Emergency Restriction of License (“the Order”) against Dr. Valls’ license to

practice as a physician performing suction-assisted lipectomy and fat transfer in

the State of Florida. For the reasons that follow, we deny the petition for review.

      BACKGROUND

      Below is a summary of the factual allegations relied upon by the

Department, as set forth in the Order on review:

      On December 4, 2017, Dr. Arnaldo Valls performed a suction-assisted

lipectomy and fat transfer, a surgical procedure commonly marketed and referred

to as a “Brazilian Butt Lift.” The Brazilian Butt Lift is a surgical procedure in

which the patient undergoes liposuction of fat from the abdominal area, which is

then injected into the gluteal area. Dr. Valls removed fat from the patient’s

abdomen and then turned the patient over to begin the transfer of fat to her gluteal

area. As Dr. Valls was injecting fat into the patient’s gluteal area, the patient’s

oxygen levels fell. Dr. Valls and the surgical team turned the patient over, began

CPR and called emergency medical services. Miami-Dade Fire Rescue responded

and transported the patient to the hospital. However, the patient could not be

resuscitated and was pronounced dead.



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      Ten days later, an autopsy was performed on the patient. The medical

examiner determined that the cause of death was fat embolism associated with

liposuction and fat transfer. The medical examiner discovered the presence of fat

emboli in the heart and lungs, and a hemorrhage of the right inferior gluteal vessel.

      The Department thereafter requested Dr. Christopher Salgado, M.D., to

conduct a review of this matter. Dr. Salgado is a board certified plastic surgeon

with expertise in liposuction with fat transfer to the gluteal region. Based upon his

review of the case (which included a review of the autopsy report and Dr. Valls’

curriculum vitae), Dr. Salgado opined, inter alia:

      ● Dr. Valls’ treatment of the patient fell below the minimum standard of
      care;
      ● Dr. Valls’ treatment fell below the standard of care because he injected fat
      into the deeper plane rather than the superficial plane. In doing so, Dr. Valls
      injected fat into the inferior gluteal vein, which then traveled to the lungs,
      causing immediate cardiac arrest;
      ● Dr. Valls received training in general surgery but not in plastic and
      reconstructive surgery. General surgical training does not include training in
      liposuction for fat injection;
      ● Dr. Valls did not receive sufficient training to be able to perform this
      procedure;
      ● Dr. Valls practiced outside the scope of his training when he performed
      this procedure on the patient;



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      ● A reasonable physician with Dr. Valls’ training and experience would not
      have performed this procedure.

      Relying upon the autopsy findings and the expert review conducted by Dr.

Salgado, the Order concluded that Dr. Valls’ treatment of the patient failed to meet

the minimum standard of care, resulting in a significant medical emergency and,

ultimately, the death of the patient.    The Department further concluded that,

because Dr. Valls practiced outside the scope of his training in performing this

procedure, the danger caused by Dr. Valls’ continued unrestricted practice of

suction-assisted lipectomy and fat transfer is likely to continue, posing an

immediate serious danger to public health, safety or welfare.

      On August 8, 2018, the Department issued the Order, signed by the State

Surgeon General, which included the above-described allegations, findings of fact

and conclusions of law. The Order restricted Dr. Valls’ license to practice as a

physician by prohibiting him from performing suction-assisted lipectomy and fat

transfer in the State of Florida, pending a full administrative proceeding,

concluding that any lesser restriction would be insufficient to stop the harm and

protect the public from the immediate serious danger posed by Dr. Valls’

continued unrestricted practice as a medical doctor.

      DISCUSSION




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      Section 458.331(1)(v), Florida Statutes (2017), subjects a physician to

discipline, including license restriction, for practicing beyond the scope permitted

by law or accepting and performing professional responsibilities which the

physician knows or has reason to know he or she is not competent to perform.

      Section 120.60(6), Florida Statutes (2017) authorizes the Department to take

emergency action to restrict a physician’s license under the following

circumstances and with the following safeguards in place:

            (6) If the agency finds that immediate serious danger to
            the public health, safety, or welfare requires emergency
            suspension, restriction, or limitation of a license, the
            agency may take such action by any procedure that is fair
            under the circumstances if:

            (a) The procedure provides at least the same procedural
            protection as is given by other statutes, the State
            Constitution, or the United States Constitution;

            (b) The agency takes only that action necessary to protect
            the public interest under the emergency procedure; and

            (c) The agency states in writing at the time of, or prior to,
            its action the specific facts and reasons for finding an
            immediate danger to the public health, safety, or welfare
            and its reasons for concluding that the procedure used is
            fair under the circumstances. The agency's findings of
            immediate danger, necessity, and procedural fairness are
            judicially reviewable. Summary suspension, restriction,
            or limitation may be ordered, but a suspension or
            revocation proceeding pursuant to ss. 120.569 and 120.57
            shall also be promptly instituted and acted upon.




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      Where such an order of emergency restriction has been issued by the

Department, the licensee may seek immediate review of that nonfinal agency

action by a petition for review filed with an appellate court. § 120.60(6)(c), Fla.

Stat. (2018); § 120.68(1)-(2), Fla. Stat. (2018); Fla. R. App. P. 9.100(c)(3).

      Where, as here, the order of emergency restriction is issued prior to a

hearing, our review is limited to the four corners of the order itself, and every

element necessary to its validity must appear on the face of the order. Nath v.

Dep’t of Health, 100 So. 3d 1273, 1276 (Fla. 1st DCA 2012); Bio-Med Plus, Inc.

v. Dep’t of Health, 915 So. 2d 669, 673 n. 3 (Fla. 1st DCA 2005); Witmer v. Dep’t

of Bus. and Prof’l Reg., 631 So. 2d 338, 341 (Fla. 4th DCA 1994). The factual

allegations in the order of emergency restriction must show the complained of

conduct is likely to continue, the order is necessary to halt the emergency, and the

order is sufficiently narrowly tailored to be fair. Kaplan v. Dep’t of Health, 45 So.

3d 19, 21 (Fla. 1st DCA 2010); Bio-Med Plus, 915 So. 2d at 672.

      We deny the petition for review of this nonfinal agency action, and hold

that, on its face, the specific and detailed nine-page Order of Emergency

Restriction amply demonstrates that Dr. Valls’ continued performing of suction-

assisted lipectomy and fat transfer would present an immediate, serious danger to

public health, safety or welfare, and that this conduct is likely to continue in the

absence of the Order. Robin Hood Group, Inc. v. Fla. Office of Ins. Reg., 885 So.



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2d 393, 396 (Fla. 4th DCA 2004); Broyles v. Dep’t of Health, 776 So. 2d 340, 341

(Fla. 1st DCA 2001). We further hold that the Order is narrowly tailored to be fair,

as it does not prohibit Dr. Valls from performing all plastic surgery or all surgery

in general; rather it restricts Dr. Valls’ license by specifically prohibiting him from

performing suction-assisted lipectomy and fat transfer. See Nath, 100 So. 3d at

1276; Sanchez v. Dep’t of Health, 225 So. 3d 964 (Fla. 1st DCA 2017).

      Petition denied.




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