STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, ) BOARD OF MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1320

)

ROBERT L. SAMPLE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearing, by its duly designated Hearing Officer, held a public hearing in the above styled case on 26 September 1980 at Sarasota, Florida.

APPEARANCES

For Petitioner: Deborah J. Miller, Esquire

Staff Attorney

Department of Professional Regulation 2005 Apalachee Parkway

Tallahassee, Florida 32301 Respondent was not present or represented.

By Administrative Complaint dated 24 April 1980 the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the physician's license of Robert L. Sample, Respondent. As grounds therefor it is alleged that in purporting to treat one Idalene Orr, Respondent prescribed on excessive amount of a controlled substance, to wit, Demerol; that Respondent's diagnosis of Orr as suffering from kidney cancer was untrue and known by Respondent to be untrue; and that Respondent prescribed controlled substances in the course of his professional practice other than in good faith, all in violation of various provisions of Chapter 458, Florida Statutes (The Medical Practices Act).

When this case was noticed for hearing, Respondent was represented by Ernest S. Marshall, Esquire, Bradenton, Florida. By letter dated 2 September 1980, Mr. Marshall advised the Hearing Officer that he had been in contact with Dr. Sample, who advised Marshall that he did not want to incur legal expenses to defend himself in these proceedings and for Marshall not to make an appearance at the hearing. Thus, although Respondent was not present at the hearing, he had received Notice and was aware of the time and place of the scheduled hearing. At the hearing Petitioner called three witnesses and seven (7) exhibits were admitted into evidence.

Proposed findings submitted by Petitioner and not included below were not supported by substantial competent evidence or were deemed immaterial.

FINDINGS OF FACT

1. Robert L. Sample, M.D., is registered as a physician and medical practitioner with respondent and holds License Number 29928. At all times here relevant he was so registered.

   
   

2. Between approximately April 13, 1978 and August 1, 1978 Mrs. Idalene Orr was a patient of Respondent. Between May 1, 1978 and August 1, 1978 Respondent authorized 106 prescriptions for injectable Demerol for Mrs. Orr. These prescriptions were filled by Oliver Bradley, the pharmacist-owner of Sharp's Pharmacy in Bradenton, Florida.

   
   

3. During this period Mrs. Orr resided at a nursing home in Bradenton operated by Betty McKee. At this time, Mrs. Orr was a 70-year old retired school teacher suffering from senility and requiring nursing home care.

   
   

4. Some of the prescriptions for Mrs. Orr were called in by Mrs. McKee and others were called in by Respondent. When Bradley received a call form Mrs. McKee for Demerol he called respondent, who would give telephone authorization to Bradley to fill the prescription. Bradley would then mail the prescription form to Respondent, who signed and returned these prescriptions to Sharp's Pharmacy. About one-half of those prescriptions were delivered to Mrs. McKee's nursing home, the remainder were picked up by Mrs. McKee or a messenger bearing authorization form Mrs. McKee to pick up the prescriptions.

   
   

5. In an informal conference with an attorney representing Petitioner, Respondent stated that he had diagnosed Mrs. Orr as suffering from cancer of the colon and he considered the prescription proper. He also stated that in June or July, 1978, while at Sharp's Pharmacy looking over the prescriptions he had signed for Mrs. Orr, Respondent became alarmed at the quantity of Demerol prescribed by him for Mrs. Orr.

   
   

6. Demerol is a Class II controlled substance. If all Demerol prescribed by Respondent had been administered to Mrs. Orr during the period covered by the prescriptions she would have received 150 mgs each hour twenty-four hours per day. This quantity of Demerol would have rendered Mrs. Orr comatose and could have been fatal.

   
   

7. Respondent stated he based his diagnosis of Mrs. Orr's cancer of the colon on blood in patient's stool, earlier medical records, an abdominal scar and statements of Mrs. McKee that patient had terminal cancer.

   
   

8. Mrs. Orr was hospitalized in G. Pierce Wood Memorial Hospital, Arcadia, Florida, in 1972 and 1973. Her voluntary discharge summary (Exhibit 5) from this hospital indicates that patient's primary problem was Involutional Melancholia with visits to medical and surgical services for several bouts of constipation. While still a geriatric chair patient, Mrs. Orr was released in 1973 to the Bradenton Convalescent Center in Bradenton with her condition "Improved non-psychotic" but "prognosis guarded". Apparently she was first seen by Respondent in December, 1977 (Exhibit 6).

   
   

9. Relatives of Mrs. Orr, who had been told by Respondent that patient suffered from terminal cancer of the kidney, became concerned by the quantity of

   Demerol prescribed for Mrs. Orr and requested Dr. Polis, a urologist with surgical training, to examine Mrs. Orr.

   
   

10. Pursuant to this request Mrs. Orr was admitted to Manatee Memorial Hospital August 1, 1978 for urological observation and discharged August 11, 1978. During his examination of Mrs. Orr, Dr. Polis found no evidence of carcinoma, no abdominal scars but multiple sites of induration on on each buttock apparently caused by injections.

    
    

11. Testifying as an expert, Dr. Polis opined that before a diagnosis of cancer of the colon could be made, a physical exam, including a proctoscopic examination and X-rays, should be made and that it was below prevailing medical standards in the community to make a diagnosis upon the insufficient data Respondent stated he used to diagnose Mrs. Orr.

    
    

12. During her hospitalization at Manatee Memorial Hospital, Mrs. Orr received no Demerol, exhibited no withdrawal symptoms, and exhibited no need for Demerol.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

14. It is noted that tile Administrative Complaint alleges, and the evidence submitted supports, the acts of the Respondent complained of occurred in 1978. Some of the charges here presented allege violations of Chapter 79- 302, Florida Statutes, which became effective subsequent to the the commission of these acts. Only acts proscribed by statute when committed will be here considered as offenses for which disciplinary action may be taken.

    
    

15. It is alleged that Respondent violated the following provision of Chapter 458.1201, Florida Statutes (1977):

    
    

    (1)(b) Making misleading, deceptive, untrue, or fraudulent representations in the practice of medicine. . .

    (1)(h) Engaging in any unethical, deceptive, or deleterious conduct or practice harmful to the public, in which proceeding proof of actual injury need not be established;

    (1)(k) Violating a statute or law of this state. . .which statute or law relates to the practice of medicine or in part regulates the practice of medicine.

    
    

16. Section 893.05(1), Florida Statutes, provides in pertinent part:

    
    

    A practitioner, in good faith and in the course of his professional practice only, may prescribe. . .a controlled substance.

    
    

17. Section 893.13, Florida Statutes, makes it unlawful for any person to sell, deliver or possess with intent to deliver a controlled substance other than as authorized by this chapter.

18. Section 458.1201(3)(a) (Florida Statutes 1977) provides in pertinent part:

    
    

    When the board finds any person. . .guilty of any of the grounds set forth in subsection (1), it may enter an order imposing one or more of the following:

    1. Administer a public or private reprimand.

    2. Suspend or limit or restrict his license to practice medicine for a period of up to 5 years;

    3. Revoke indefinitely his license to practice medicine.

       8. Require him to practice under the direction of a physician in a public institution, a public or private health-care program, or private practice for a period of time specified by the board.

       
       

19. Considering the facts presented in the light of the statutory provisions above quoted it is clear that Respondent made a diagnosis of Mrs. Orr based upon insufficient data and that this was or should have been known by Respondent to be so based. Whether these acts of Respondent were deliberate or resulted from gross negligence would not alter the conclusion that they were far below the standard of care required by a medical practitioner.

    
    

20. On one or more occasions Respondent reviewed the quantity of Demerol he had prescribed for Mrs. Orr and knew, or should have known, that a larger quantity of Demerol was being prescribed than could be safely administered to the patient. Not only is such overprescribing unethical, but it also constitutes a danger to the public by making available for illegal usage a controlled substance.

    
    

21. By advising relatives of Mrs. Orr that she was suffering from terminal cancer of the kidney, Respondent made misleading, deceptive and untrue representations involving the practice of medicine which he knew, or by the exercise of reasonable diligence would have known, were untrue.

    
    

22. Finally, the evidence clearly supports the conclusion that, in signing prescriptions for such a large quantity of Demerol in the time frame here involved, Respondent violated the provisions of Chapter 893, Florida Statutes, above quoted, and thereby violated provisions of Chapter 458, above quoted.

    
    

23. From the foregoing it is concluded that Respondent, in the diagnosis and treatment of Mrs. Idalene Orr, violated the above quoted provisions of the Medical practices Act. It is also concluded that although two prescriptions on Exhibit 4 were for Percodan, no evidence regarding this drug was presented and no finding respecting this drug has been made. Accordingly, no issue respecting Percodan has been submitted or considered. It is therefore

RECOMMENDED that the license of Robert L. Sample, License No. 29928, to practice medicine in this State be revoked.

Entered this 14th day of October, 1980.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1980.

COPIES FURNISHED:

Deborah J. Miller, Esquire Staff Attorney

Department of Professional Regulation

2009 Apalachee Parkway

Tallahassee, Florida 32301

Harold M. Knowles, Esquire Knowles, Randolph & Cooper

121 1/2 South Monroe Street Tallahassee, Florida 32301

Ernest S. Marshall, Esquire 615 9th Street, West Bradenton, Florida 33505

Robert L. Sample, M.D. Post Office Box 326

Andrews, North Carolina 28901

Ms. Nancy Kelley Wittenberg Secretary

Department of Professional Regulation

The Oakland Building 2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 80-001320

Orders for Case No: 80-001320