STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF OSTEOPATHIC ) MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 75-476

)

GEORGE F. GRAVES, D.O. )

)

Respondent. )

)

RECOMMENDED ORDER

The hearing was held on March 22-23, 1976 pursuant to notice in the above styled cause in Court Room No. 1, Old Pinellas County Court House, Clearwater, Florida.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

LaFace and Baggett, P.A.

101 East College Avenue Tallahassee, Florida

For Respondent: David Rein, Esquire

Forer and Rein

400 Woodward Building 733 15th Street, N.W. Washington, D.C.

Crockett Farnell, Esquire Nixon and Farnell

521 Oak Avenue Clearwater, Florida

STATEMENT OF FACT

George F. Graves, D.O., was charged under three complaints, the last of which (Second Amended Complaint), constitutes the charging document upon which the hearing was held. The Second Amended Complaint consists of two counts, the second of which was dismissed without prejudice at the commencement of the formal hearing. Count one thereof provided as follows:

"That you, George F. Graves, between the period between (sic) August, 1974 and January 1975, did prescribe, deliver, distribute and dispense the substance dilaudid (an opium derivative known as hydromorphone) which is controlled by virtue of 893.03(2) to one Marcie Loomas and Marian Mullins in the names of Marcie Loomas, Marian Mullins,

Sherry Zauner and Margaret Schreffler without good faith and not in the course of proper professional practice. The above constitutes violations of 893.05, and/or 893.13(2)(a), F.S., and as such constitutes a violation of 459.14(2)(m)(n) and that you, George F. Graves, are guilty of unpro- fessional conduct and have violated the laws of the state."

FINDINGS OF FACT AND CONCLUSIONS OF LAW

1. George F. Graves is a Doctor of Osteopathy, licensed by the Florida Board of Osteopathic Medical Examiners, holding License No. 2972.

   
   

2. The participants stipulated that dilaudid is a Class II controlled substance as defined by Chapter 893, Florida Statutes.

   
   

3. The basic theory of the Board's case, as revealed in the Original Complaint and First Amended Complaint, was that George F. Graves did conspire to obtain and did in fact obtain narcotic drugs under false and fraudulent pretenses and did sell prescriptions for such narcotic drugs in violation of

   459.14 (2)(c)(h)(m)(n), F.S. and Rule 21R-3.21 F.A.C. Although Count I of the Second Amended Complaint does not allege any conspiracy, the evidence presented at the hearing was intended to prove a conspiracy existing between George F. Graves and Marian Mullins involving the sale of prescriptions for the drug dilaudid, and to prove that Dr. Graves had prescribed dilaudid in the names of individuals who were not his patients or who he was not at the time treating.

   
   

4. The Board's evidence against Dr. Graves relating to the proof of his conspiring to sell prescriptions for dilaudid was based solely upon the testimony of Marian Mullins, who was Dr. Graves' co-conspirator or accomplice. The law in Florida is very clear that the testimony of a co-conspirator or accomplice shall be received with great caution. See Weiss v. State, 120 So 2d

528. The Hearing Officer, having carefully considered the testimony of Marian Mullins, finds several matters which relate adversely to her credibility as a witness in this cause, as follows:

1. Marian Mullins testified that she had never sold drugs. Marcie Loomas, who was a witness for the prosecution and close associate of Marian Mullins, testified that from the very first time that Marian Mullins shared her dilaudid with her, that Marian Mullins had invited Loomas to sell drugs for her. Further Marcie Loomas testified that she had had prescriptions filled in her name which she had received from Marian Mullins, that for having these prescriptions filled she received $50.00 in cash and that for selling a 36 pill prescription on the street she had received an additional $55.00 to $60.00 from Marian Mullins.

   
   

2. Marian Mullins testified that she began to acquire dilaudid from Dr. Graves in the spring of 1974. The record of Class II prescriptions issued by Dr. Graves introduced at the hearing and prepared by the police department from a survey of pharmacies in the Pinellas County area indicate that the earliest prescription for dilaudid issued by Dr. Graves from which Marian Mullins received dilaudid was issued on August 29, 1974.

   
   

3. Marian Mullins testified that she learned of her impending arrest from Marcie Loomas, after Marcie Loomas had been arrested. Marcie Loomas

   testified that she did not contact Mullins between the time of her arrest and the time Marian Mullins was arrested.

   
   

4. Marian Mullins, upon her first interview by the authorities in February, indicated that she was under Dr. Graves care for heroin addiction. It was only after her arrest in July that she implicated Dr. Graves in any sale of prescriptions for narcotics.

   
   

5. Marian Mullins was unable to provide information concerning specific dates, amounts of money and other matters which could be independently verified. She stated that she had difficulty remembering the particulars of the year 1974 because of the level of her narcotic addiction.

1. The Hearing Officer finds no creditable proof of the sale of prescriptions for controlled substances by Dr. George F. Graves.

   
   

2. The record of prescriptions for Class II controlled substances by Dr. Graves referred to above indicated that prescriptions for approximately 1,750 four mg dilaudid pills were delivered by Dr. Graves to Marian Mullins in the name of Marian Mullins, Margaret Schreffler, and Sherry Zauner. Dr. Graves admitted having written these prescriptions and having delivered them to Marian Mullins. Except for the first prescription for dilaudid dated August 29, 1974 in the name of Sherry Zauner, Dr. Graves could provide no explanation of why he had prescribed drugs for Marian Mullins in the names of other individuals beyond the fact that Marian Mullins had asked him to do so. Dr. Graves did state that the reason he prescribed dilaudid for Marian Mullins was to treat her addiction by maintaining her on the drug dilaudid until she entered a drug treatment program as she had indicated to him that she would do. Dr. Graves further testified that be had developed a treatment program for Marian Mullins to reduce her dependency on dilaudid in the interim.

   
   

3. The record of prescriptions referred to above indicates that Dr. Graves delivered to Marian Mullins prescriptions for 385 four mg dilaudid pills in September, 576 four mg dilaudid pills in October, and 864 four mg dilaudid pills in November. Marian Mullins testified that her level of addiction was between 10-15 four mg dilaudid pills per day. Dr. Graves provided Mullins with an average of thirteen pills per day in September, nineteen pills per day in October, and twenty-nine pills per day in November. This shows a steady increase, not a reduction, in her supply of dilaudid.

   
   

4. If one assumes that Dr. Graves was treating Marian Mullins for narcotics addiction and that such treatment falls within the professional practice of osteopathy, the record of prescription and Dr. Graves' testimony indicate that he did not control his patient and institute his treatment plan. Dr. Graves knew or should have known that the quantity of drugs that he was prescribing for Marian Mullins was in excess of that needed to maintain or reduce her level of addiction.

   
   

5. Section 893.05, F.S., requires that a practitioner not only prescribe drugs in the course of his professional practice but also in good faith. Good faith is an honesty of intention and freedom from knowledge of circumstances which ought to put an individual upon notice to inquire.

   
   

6. Under the circumstances, Dr. Graves did not exercise good faith in prescribing quantities of dilaudid in excess of what was indicated as necessary for treatment of Marian Mullins' addiction, and did so in violation of 893.05, F.S.

7. Section 459.14(2)(m), F.S., provides that the State Board of Osteopathic Medical Examiners may suspend a license to practice upon a finding by the Board that the individual is guilty of immoral or unprofessional conduct. Unprofessional conduct is defined to include any departure from or failure to conform to the minimal standards of acceptable and prevailing osteopathic medical practice, without regard to the injury of a patient or the committing of any act contrary to honesty, whether the same is committed in the course of practice or not. Dr. Gravest prescription of gross quantities of dilaudid to Marian Mullins and his failure to require her adherence to his treatment plan does not conform to the minimal accepted standards of osteopathic medical practice.

   
   

8. Based upon the evidence presented by the Board and the evidence presented by Dr. Graves relating to his professional and personal character, the Hearing Officer finds that Dr. Graves did not violate 823.05 and 459.14(2)(m) for his personal gain or profit. The Hearing Officer further finds that, except for the findings above, Dr. Graves is a knowledgeable osteopathic physician who has a fine reputation both personally and professionally within his community.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the license of Dr. George F. Graves to practice osteopathic medicine in the State of Florida be revoked but that the Board in its discretion consider the reinstatement of Dr. George F. Graves restricting his practice of osteopathic medicine in such a manner that he may not prescribe any drug which is listed or may be listed in Schedules I through V of section 893.03 of the Florida Statutes.

DONE and ORDERED this 10th day of August, 1976 in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304

904 488-9675

COPIES FURNISHED:

Ronald C. LaFace, Esquire LaFace and Baggett, P.A.

101 East College Avenue Tallahassee, Florida

David Rein, Esquire Forer and Rein

400 Woodward Building 733 15th Street N.W. Washington, D.C.

Crockett Farnell, Esquire Nixon and Farnell

521 Oak Avenue Clearwater, Florida

Docket for Case No: 75-000476

Orders for Case No: 75-000476