STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF OSTEOPATHIC MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1814

)

JULES J. DOSSICK, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on December 27 and 28, 1976 at Miami, Florida.

APPEARANCES

For Petitioner: Ronald C. LaFace, Esquire

Post Office Box 1752 Tallahassee, Florida 32302

For Respondent: Harvey Robbins, Esquire

1100 Northeast 125th Street North Miami, Florida 33161

Harvey Richman, Esquire

407 Lincoln Road

Miami Beach, Florida 33139

By Administrative Complaint filed July 22, 1976, the Board of Osteopathic Medical Examiners, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Jules J. Dossick, D. O., Respondent. As grounds therefor it is alleged that on or about April 9, 1975, Respondent gave a prescription to John Guynn for 30 Placidyl (ethclorvynol); that on or about May 1, 1975 Respondent gave a prescription to Robert Diedesch for 30 Placidyl; that on or about January 9, 1976 and February 2, 1976 Respondent gave prescriptions to Sara Lee Milius a/k/a Sarah Bernhardt for 30 Placidyl 750 mg. The complaint further alleges that these prescriptions were given without good faith and not in the course of Respondent's medical practice in that said prescriptions were issued without inquiring into or substantiating any physical or psychological need for such drugs and without inquiring into patients' past medical history, thus violating Section 893.05 F.S. and Section 459.14(2)(M) and (n) F.S. Nine witnesses were called by Petitioner and 14 exhibits were offered into evidence. Ruling on the admissibility of Exhibit 2 was reserved at the hearing and since the exhibit involved the medical records of Gary Partridge who was never connected to Respondent by any evidence, the objection to the admission of Exhibit 2 into evidence is hereby sustained.

Respondent's Motion to Dismiss the charges on the grounds that Respondent had been acquitted of criminal charges based upon the same allegations was denied. Thereafter the parties stipulated that Jules J. Dossick, D. O., Respondent, is licensed by the Florida State Board of Osteopathic Medical Examiners and holds License Number 874.

That portion of the hearing held December 28th was scheduled to commence at 8:00 A.M. to hear one medical witness who was unable to appear on December 27.

Respondent, through his attorney, had indicated he would call no witness and all parties expected the December 28 portion of the hearing to be completed prior to 10:00 A.M. at which time the Hearing Officer had another hearing scheduled and Respondent's attorney had another commitment.

Shortly after 8:00 A.M. Respondent advised the Hearing Officer that he had just received a telephone call from his attorney to advise that his car had broken down enroute to the hearing and that he would like a continuance of one or two days. Respondent was advised that such a continuance was impossible and that he should contact his attorney and suggest he proceed to the hearing via taxi and that the hearing would be delayed a reasonable time to allow Mr.

Robbins to appear. The hearing reconvened at 8:45 A.M. without Respondent's attorney present.

During the proceedings on December 28, Albert Gersing M.D. testified regarding the results of a physical examination he gave Sara Milius on January 9, 1976 immediately prior to her visit to Respondent's office. Respondent cross examined this witness. When the Board rested no witnesses were present to testify on behalf of Respondent and Respondent did not testify.

On January 13, 1977 the Hearing Officer received a Brief filed by Respondent's attorney in which he alleged Respondent was denied due process by reason of the proceedings held on December 28 without Respondent's attorney present and Respondent being denied the right to present witnesses in his behalf.

By Notice of Continued Hearing entered February 15, 1977 the case was reopened to allow Respondent to submit evidence at the continued hearing on March 29, 1977.

On March 2, 1977 Harvey Robbins entered a Notice of Withdrawal as Attorney of Record.

At the continued hearing on March 29, two witnesses were called by Respondent.

FINDINGS OF FACT

1. Jules J. Dossick, D. O. is duly licensed by the Florida State Board of Osteopathic Medical Examiners and the Hearing Officer has jurisdiction over the Respondent and the events as alleged. Placidyl (ethchlorvynol) is shown as a Schedule IV controlled substance in Chapter 893.03(4) F.S.

   
   

2. On or about April 9, 1975 John Guynn, while serving as an informer with the Hialeah Police Department, visited the office of Respondent Dossick to obtain prescriptions for controlled substances. Guynn was "wired for sound" by having a transmitter concealed under his clothes to transmit the conversation between Guynn and Dossick to a recorder monitored by the police in a car on the street outside the office. After telling Dossick that he was having trouble

   sleeping Guynn received a dissertation from Dossick on how much easier life the young people have today than they had 30 to 40 years ago. This was followed by general conversation on the life styles today and Dossick then issued a prescription to Guynn for 30 Placidyl 750 mg. plus a prescription for Valium (Exhibit 10) without any physical examination to determine if Guynn had a medical problem. These prescriptions were turned over to the police as soon as Guynn left Dossick's office.

   
   

3. Guynn was not present to testify. Exhibit 1, copies of the medical records of the Dade County Medical Examiner's office show that John Guynn died at 12:30 a.m. May 30, 1975 of ethchlorvynol intoxication. The police investigation concluded the overdose was intentional and the death was ruled a suicide.

   
   

4. On May 1, 1975, Robert Diedesch, also working with the Hialeah Police, made his first visit to Dossick's office to make a "controlled buy" of Placidyl. Diedesch too was "wired for sound" but the conversation recorded was not intelligible to the hearing officer; however, Diedesch was present to testify.

   
   

5. Upon entering Dossick's office Diedesch advised Dossick that he was a diabetic and that he was having trouble sleeping. After inquiring if Diedesch's diabetes was under control, Dossick, without further examination, gave Diedesch a prescription for 30 Placidyl 750 mg. and one for 100 Valium. These prescriptions were turned over to the police as soon as Diedesch left the office. Copies of these prescriptions were admitted into evidence as Exhibit 5. In his testimony Diedesch contended that his visit to Dossick's office occurred in 1976 instead of 1975. However, he was obviously mistaken as all other evidence clearly placed the time of Diedesch's visit to Dossick on May l, 1975 as alleged.

   
   

6. Sara Lee Milius, a/k/a Sarah Bernhardt, was given prescriptions by Dossick for 30 Placidyl 750 mg. each month for nearly a year. Her examination by Dossick consisted of taking blood pressure, temperature and weight. Not only did Ms. Milius not have any need for the drug, in fact she was getting them for her brother. Occasionally she obtained the prescription by calling the doctor and getting his consent to let her brother pick up the prescriptions.

   
   

7. In early January, 1976 Ms. Milius offered to assist the police in their investigation of Dossick. Immediately prior to her January 9, 1976 visit to Dossick she was given a physical examination by Albert Gersing, M.D. At this time she weighed approximately 117 pounds. At Gersing's examination she appeared pale and malnourished. Her blood count and history of having menstrual flow led him to prescribe iron (ferrous sulphate) and to recommend that she cut down on her smoking.

   
   

8. Immediately thereafter Ms. Milius was "wired for sound" and taken to Dossick's office to keep the appointment previously made. The tape of this visit was bad due to interference and was not introduced into evidence. Ms. Milius' testimony of the events that transpired was not contradicted or rebutted.

   
   

9. Upon arrival in Dossick's office Milius sat in the waiting room for about one half hour and was then with Dossick for about one half hour. During this time no medical examination was made other than blood pressure and weight. She told Dossick she would like to lose ten pounds and asked for diet pills. During her time with Dossick medical problems were not discussed; only general gossip about friends and relatives was the subject of their conversation. Upon

   her departure she was given prescriptions for Placidyl 750 mg., Tepanil 25 mg., and Lasix 40 mg. Upon her departure from the office these prescriptions were turned over to the police and admitted into evidence as Exhibit 7.

   
   

10. On January 14, 1976 Milius called Dossick from the police station to make an appointment. This conversation was recorded and the tape thereof was admitted as Exhibit 12. Milius advised Dossick that the diet pills he had prescribed for her on January 9, 1976 were not working and she was told to come in and see him.

    
    

11. On her January 14 visit to Dossick she was again wired for sound, but the conversation that transpired was not on the tape that was admitted into evidence. At this visit Dossick gave Milius Presate (65 mg.) (Exhibit 6)

    
    

12. Milius' third visit to Dossick under the supervision of the Hialeah Police occurred on February 2, 1976. Again she was "wired for sound" but that tape is unintelligible to the hearing officer. Prior to that visit she called Dossick to ask if she could come in to get Valium for her nerves. On her arrival to Dossick's office he asked her about her depression but when she replied that she had no depression only nerves no further medical problems were discussed. She was weighed but no medical examination was conducted. Upon her departure she was given prescriptions for Placidyl 750 mg., Presate 65 mg, Lasix

    40 mg. and Valium. These prescriptions were admitted into evidence as Exhibit 8.

    
    

13. Exhibit 4 indicates the largest quantity capsule of Placidyl marketed is 750 mg. Other quantities are 100 mg., 200 mg., and 500 mg. 750 mg. capsule of Placidyl is a very high dosage to induce sleep. Exhibit 4 states greater caution is indicated in administering Placidyl "to mentally depressed patients with or without suicidal tendencies; it should also be administered with caution to those who have a psychological potential for drug dependence."

    
    

14. At the time Placidyl was prescribed for John Guynn by Dossick, Guynn was on Methadone or had been on the Methadone program. This should make it obvious that Guynn had psychological potential for drug dependence.

    
    

15. Placidyl, if taken regularly, can lead to dependency on the drug, and once dependent, severe withdrawal problems can result if the drug is not available. Because of this many doctors do not prescribe Placidyl.

    
    

16. Community medical standards require a physical examination be given before Placidyl is prescribed for a patient.

    
    

17. Richard D. Kaplan, D. O., in general practice and David Masters, D. O., who specializes in psychiatry, testified on behalf of Respondent at the March 29th hearing. The former opined that he did not consider the drugs prescribed by Respondent to be administered in good faith. Before prescribing Placidyl he would fully discuss with the patient why he wanted the drug.

    
    

18. Dr. Masters does not usually perform a physical work-up before prescribing Placidyl to patients and he uses this drug occasionally. However, he does not prescribe either Placidyl or Presate for weight problems. Unless a medical or psychological reason for giving Placidyl was determined, in his opinion prescribing Placidyl was not necessarily all right.

19. Both of Respondent's witnesses agreed that drug users are not fully honest with the doctor and often try to manipulate the doctor to get drugs. Placidyl is not a drug commonly used by "street people".

    
    

    CONCLUSIONS OF LAW

    
    

20. Section 459.14 F.S. provides in pertinent part that upon a finding by the State Board of Osteopathic Medical Examiners that a licensee has committed one of the acts contained therein the board may, inter alia, revoke or suspend licensee's right to practice in this state. Among those grounds are:

    
    

    "(2)(m). A finding by the board that the individual is guilty of immoral or unprofes- sional conduct. Unprofessional conduct shall include any departure from, or failure to conform to, the minimum 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.

    
    

    (n). Violation of any statute or law of

    this state or any other state or territory of the United States or of any foreign country, which statute or law relates to the practice of medicine."

    
    

21. Chapter 893 F.S. relates to drug abuse prevention and control. In addition to listing the various controlled substances and defining a practitioner to include an osteopath licensed pursuant to Chapter 459 F.S., Section 893.05 F.S. provides in part:

    
    

    "(1) A practitioner, in good faith and in

    the course of his professional practice only, may prescribe, administer, dispense, mix or otherwise prepare a controlled substance..."

    
    

22. The essence of the charges here involved stem from a similar set of facts for each count. Therefore alleging the acts of Respondent to constitute offenses under both subsections (m) and (n) above quoted does not change one offense into two. Stated differently a finding of guilty in this case of violation of both subsections (m) and (n) would warrant no greater disciplinary action than a finding of guilty of violating either subsection or subsection (n)

    
    

23. Since the Respondent obviously prepared the, prescriptions here involved in the course of his professional practice, the issue to be resolved is whether, under the facts presented, Respondent issued the prescriptions in good faith.

    
    

24. "Good faith", as contemplated in Section 893.05 F.S. was considered by the Florida Supreme Court in State v. Weeks, 335 So.2d 274 (Fla. 1976). Physicians activities as practitioners under the drug control laws are authorized only if they are within the usual course of professional practice.

    In the Weeks case, supra, the court stated at p. 277:

    "...we approve the definition of 'good faith' in the context of this statute to mean that the practitioner 'has got to act in an honest endeavor to carry

    out his profession' of healing patients."

    
    

25. Failure to dispense drugs controlled pursuant to Chapter 893 F.S. in good faith, is tantamount to failure to conform to the minimal standards of acceptable and prevailing osteopathic medical practice.

    
    

26. Here we do not have a situation where Respondent's primary motivation appears to be financial. If this were so the prescriptions could be written and the patients' fee collected in a very few minutes. Respondent shared upwards of a half hour with these patient-witnesses for a $10.00 fee. Adequate time was given to perform physical examinations, get extensive medical histories and do whatever else may be required by the minimum standards of acceptable and prevailing osteopathic medical practice.

    
    

27. Failure to ascertain, by the use of generally accepted medical practices, that patients have a physical need for the drugs they request before prescribing them constitutes lack of good faith in the course of professional practice and constitutes a failure to conform to the minimal standards of acceptable and prevailing osteopathic medical practice.

    
    

28. From the foregoing it is concluded that Jules J. Dossick D. O., dispensed drugs controlled by Chapter 893 F.S. not in good faith in the course of his professional practice and that in dispensing these drugs he failed to conform to the minimum standards of acceptable and prevailing osteopathic medical practices and thereby violated Section 459.14(m) and (n) F.S. It is therefore,

RECOMMENDED that the license of Jules J. Dossick, D.O., be suspended for a period of six (6) months.

DONE and ENTERED this 19th day of April, 1977, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

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

COPIES FURNISHED:

Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302

Harvey Robbins, Esquire 1100 Northeast 125th Street North Miami, Florida 33161

Harvey Richman, Esquire

407 Lincoln Road

Miami Beach, Florida 33139

Docket for Case No: 76-001814

Orders for Case No: 76-001814