STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 80-2093
) NEWELL JEROME GRIFFITH, M. D., )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in the above captioned matter, after due notice, at Winter Haven, Florida, on February 13, 1981, before the undersigned Hearing Officer.
APPEARANCES
For Petitioner: Deborah J. Miller, Esquire
Assistant General Counsel
Department of Professional Regulation Board of Medical Examiners
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Robert A. Pyle, Esquire
Post Office Box 557
Lake Alfred, Florida 33850 ISSUE
Whether Respondent's license to practice medicine should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 453, Florida Statutes, as set forth in Amended Administrative Complaint, dated January 23, 1981.
In this proceeding, Petitioner seeks to discipline the Respondent for alleged excessive and inappropriately prescribed controlled substances to three patients in violation of various provisions of Chapter 458, Florida Statutes.
Three witnesses for the Petitioner testified at the hearing. Respondent testified in his own behalf and called four witnesses. Eight exhibits were admitted in evidence for the Petitioner and two exhibits for the Respondent.
FINDINGS OF FACT
Respondent Newell Jerome Griffith is a licensed physician and, at all times pertinent to this proceeding, was engaged in the practice of medicine at Winter Haven, Florida. (Testimony of Respondent)
During the period 1979-1980, Respondent's investigator, Lawrence E. Dodd, Jr., conducted routine audits of pharmacies in the Winter Haven area. The purpose of his audits was to review prescriptions for controlled substances in order to determine if irregularities had taken place in the prescribing and dispensing of such substances by pharmacists and physicians. During the course of these audits, Dodd found that Respondent had issued a large number of prescriptions in preceding years for various controlled substances which fell into the category of Schedule II under Chapter 893, Florida Statutes. The prescriptions in questions were prescribed for and obtained by Gerald Cooney, Annette Groover, and Peggy Moore. (Testimony of Dodd, Petitioner's Exhibits 1- 9)
The following facts relate to each of the above named individuals: Gerald Cooney
Respondent has treated Gerald Cooney as a patient since approximately 1974. Medical records reflect that Respondent treated Cooney for a medullary sponge kidney or similar chronic urinary infection, and acute and chronic recurrent infection of the left knee area which originally had been caused by a bicycle injury and was aggravated by shrapnel wounds in the same area during wartime service in 1970. Since that time, he has had multiple problems with his left leg requiring hospitalizations and has had a chronic recurrent cellulitis. Be has never had full use of the extremity since that time and has had recurrent swelling and extreme pain requiring narcotics. To alleviate the pain, Respondent prescribed both oral and injectable Dilaudid.
In 1977, Respondent referred Cooney to the University of Florida College of Medicine regarding his renal difficulty. On April 1, 1977, Respondent wrote the Chief, Division of Urology, at the College that Cooney continues to require, and receive oral Dilaudid in amounts greater than I am comfortable with, but see no alternative to prescribing." On April 7, 1977, the Division Chief wrote Respondent that he had been unable to find any reason for Cooney's protracted pain requiring narcotics.
In July 1978, Cooney was admitted to the Veteran's Hospital in Tampa for urinary tract infection and underwent a cystoscopy. The patient was discharged with instructions to return to Respondent for treatment of his "narcotic dependency." Respondent's office notes on February 19, 1979, stated that Cooney had been taking from 14 to 24 Dilaudid tablets daily and was able to make a reduction in dosage for a day or two, but then exacerbation of all illnesses recurred. The medical records further reflect a letter written by Respondent on August 17, 1979, "To Concerned Treating Physician or Physicians" which stated that Respondent had been treating Cooney for Dilaudid abuse which had come about because of symptoms associated with his left knee and urinary problems. In September of 1978, Cooney was again admitted to a Veteran's Hospital for a urinary tract infection, sponge kidney, and Dilaudid addiction. The attending physician noted that since Cooney's dependency had not been treated by his private doctor in Winter Haven, after his last discharge, it was decided that it should be treated at that time by withdrawing Dilaudid. Cooney, however, disagreed and was discharged to be treated at a drug center in Orlando. He did not seek such treatment but obtained further prescriptions for Dilaudid from Respondent.
During the period November 1976 to June 1979, Respondent prescribed over 12,500 tablets of Dilaudid 4 mg for Cooney. Additionally, Dilaudid was
prescribed in injectable form in the amount of 2 mg./cc. 14 x 20 vials. Between July and December 1979, Respondent prescribed over 2500 tablets of Dilaudid 4 mg, and 24 tablets of Dilaudid 2 mg. Between December 1979 and January 1981, Respondent issued prescriptions to Cooney for almost 7500 tablets of Dilaudid 4 mg, and a prescription for 20 1 cc ampules of injectable Dilaudid.
Dilaudid is a Schedule II controlled substance listed under Chapter 893, Florida Statutes. It is customarily used for pain and has addictive qualities.
Respondent is of the opinion that there was no alternative to the treatment which he gave to Cooney. He recognized that the patient was addicted to Dilaudid and attempted to assist him with detoxification in 1976. At one time, Cooney was taking as many as 20 tablets per day and, although Respondent limited him to between 16 to 20 tablets per day, he acknowledged that this amount was excessive. Respondent had prescribed other drugs for the patient, but he had allergic reactions to them. (Testimony of Dodd, Deatsch, Respondent, Petitioner's Exhibits 5, 6, 9, Respondent's Exhibit 1)
Annette Groover
Annette Groover has been a patient of Respondent's for over 26 years and was once employed by him as a nurse's assistant and receptionist. During this period, Respondent treated her for severe migraine headaches and seizure disorder. During the course of treatment, Respondent referred the patient to neurologist for consultation at various times who placed her on anticonvulsive medication.
Respondent had prescribed Talwin for the patient's headaches, but in 1970 he became aware that she had used the drug excessively and for feelings of depression at times rather than for headache relief. In September 1979, Respondent's office notes reflect that Groover had been using a Variety of medications including Talwin, and that she had revealed that if she did not take the drug "her legs start to tremble, nose starts running, and I get jittery." Respondent thereafter counseled the patient regarding drug habituation and she thereafter was successful in withdrawal from Talwin. He then placed her on a regime of injectable Demerol because other drugs did not provide headache relief. In 1977, a consulting neurologist examined the patient and characterized her headaches as a chronic problem which was most likely related to tension.
Between November and June 1979, Respondent prescribed for the patient more than 1850 cc. of injectable Demerol, 50 mg./cc. In addition, 12 tablets of 50 mg. Demerol and 100 tablets of Dexedrin Sulphate, 5 mg., were prescribed. Between July 1980, and November 1980, Respondent prescribed 66 2 cc. vials of Demerol, 100 mg./cc. Although Respondent's patient records do not reflect that Respondent examined Mrs. Groover between October 7, 1977 and March 23, 1978, he issued 29 prescriptions for injectable Demerol to her during that period.
Respondent maintained at the hearing that his treatment of Mrs. Groover was legitimate and that she has never shown any withdrawal symptoms during periods of several weeks when she has gone without the drug. Mrs. Groover's husband is a medical technician in the Naval Reserve and normally administers her Demerol injections. Although she has tried other drugs, most of them have conflicted with her seizure problem and Demerol does not affect her in that manner.
Demerol is a Schedule II controlled substance under Chapter 893, Florida Statutes. It is a central nervous system depressant which relieves pain, but is addictive. (Testimony of Respondent, Groover, Dodd, Deatsch, Petitioner's Exhibits 1-2, 7)
Mary E. (Peggy) Moore
Mrs. Moore is a legal secretary who has been a patient of Respondent for over 20 years. Respondent has treated her primarily for diabetes and pancreatitis. Over a number of years, she was hospitalized several time after referrals by Respondent to gastroenterology specialists. Demerol was prescribed both by Respondent and specialists to control the pancreatitis attacks. Her medical records reflect that she has been subject to episodes of hypoglycemia-- insulin reaction, usually complicated by epigastric pain and vomiting. In December 1979, after Mrs. Moore had been admitted to the Winter Haven Hospital for insulin reaction, the gastroenterologist who treated her stated in his report that the patient takes an appropriate amount of properly monitored narcotics in the form of Demerol at intervals of one to three months when experiencing pain from pancreatitis.
Respondent also prescribed Quaaludes for Mrs. Groover in order that she could sleep because she had been under extreme pressure and stress. She took two tablets at night off and on for two to three years. She needed Demerol in the past at particular times when she had pancreatitis attacks. In 1980, Respondent referred her to Emory University Diagnostic Clinic and it was discovered that diabetic neuropathy was causing pain rather than pancreatitis. She is not taking Demerol at the present time and no longer suffers from her former attacks. During the period when she took Demerol, her daughter who was a registered nurse administered the injections and later her husband performed this task. On one occasion in 1978, her Demerol supply was stolen when she was on a trip. During the period when she was using Demerol, her husband destroyed any that she did not use between attacks. Respondent testified at the hearing that Demerol did become a problem with her before she went to Emory University Clinic, but she has not used it since that time.
Demerol is a Schedule II controlled substance under Chapter 893, Florida Statutes. Quaaludes are a sedative and also a Schedule II controlled substance which is suitable periodically for sleep, but the patient is subject to rapid tolerance of the drug. One-half tablet of 300 mg Quaalude is usually sufficient for infrequent users. Mrs. Moore terminated the use of Quaaludes in the summer of 1980.
Respondent's medical records concerning Mrs. Moore reflect that he did not examine her during the period May 9, 1979 and October 1, 1979, but continued to issue prescriptions to her for Demerol and Quaalude.
Between December 1976 to June 1979, Respondent prescribed for Mrs. Moore in excess of 1400 cc. of injectable Demerol, 50 mm./cc., and 1900 tablets of 300 mg. Qualudes. Between July 1979 through December 1979, he prescribed 400 tablets of Quaalude,300 mg., 277 cc. of Demerol 50 mg./cc., and 230 cc. of Demerol, 100 mg./cc. Between July and November 1980, Respondent prescribed 101 cc. of Demerol, 50 mg./cc., 46 cc of Demerol 100 mg./cc., and 172 cc. of Demerol, 75 mg./cc. (Testimony of Dodd, Deatsch, Respondent, Moore, Petitioner's Exhibits 3-4, 8, Respondent's Exhibit 2)
In the opinion of physicians who are experts in the field of drug treatment and internal medicine who reviewed the medical records of Gerald
Cooney, Annette Groover, and Peggy Moore, Respondent exercised poor judgment in prescribing known addictive medicine in excessive amounts for prolonged periods to those patients, without properly monitoring their course of treatment. They therefore are of the opinion that Respondent failed to treat those patients in conformity with recognized acceptable standards of medical practice.
Specifically, they based their opinions in the case of Cooney upon the fact that Respondent was aware of the patient's addiction to Dilaudid, yet prescribed inordinate amounts of the drug over an extended period of time without taking definitive action to either cut off the patient's supply or to change the medication. A normal dose of Dilaudid would be from four to six 4 mg. tablets a day and never should exceed 12 or 14 during limited time periods for acute pain. Respondent's dosage of 16 to 20 tablets per day on a continuing basis resulted in perpetuation of the patient's addiction.
As to Annette Groover's case, the expert testimony reflects the opinion that since the Respondent was aware of the patient's former dependency upon Talwin, he should have prescribed other addictive drugs, such as Demerol, in limited amounts and attempt to use non-addictive medication for the patient's migraine headaches, particularly where, as here, they result from periods of tension. They also are of the opinion that the use of Demerol by the patient reflects a pattern of abuse, but not necessarily addiction. Further, a patient with a history of drug abuse should not have been permitted to administer Demerol by injection at her home, but should have been required to have such treatment administered by a nurse or at a hospital emergency room.
The basis of the expert opinion in the case of Peggy Moore is that Respondent prescribed excessive amounts of Demerol and Quaalude for the patient without adequate monitoring of the need for such drugs, and that he permitted home administration rather than at his office, or a hospital site in spite of his expressed concern over the possibility that the patient may have been abusing the use of such drugs.
The above opinions are confirmed by the evidence and accepted as a basis for this finding of fact. Other opinions expressed by the expert witnesses during the course of their testimony are not considered to be supported by the evidence. (Testimony of Deatsch, Davenport)
Dr. John Smythe, a Winter Haven physician who has known the Respondent for a period of 27 years, is of the opinion that although Respondent's treatment of the patients in question was perhaps "unorthodox," he was dealing with severe chronic patients and perhaps showed too much compassion in prescribing greater drug amounts than he (Smythe) might have prescribed under similar circumstances. Respondent's reputation in the Winter Haven medical community is that of an intelligent, sincere, and conscientious physician who does not hesitate to refer patients to specialists as necessary. (Testimony of Smythe)
Dr. William T. Steele, a Winter Haven physician who has known Respondent since the latter has practiced in Winter Haven, is of the opinion that he is an outstanding physician with high moral character who conducts his practice as well as any physician in the community. (Testimony of Steele)
CONCLUSIONS OF LAW
The Amended Administrative Complaint contains seven counts wherein Petitioner seeks to take disciplinary action against Respondent based on various grounds set forth in Section 458.1201 (1), Florida Statutes (1978), and Section 458.331(1), Florida Statutes (1979). Some of the charges embrace alleged
violations of federal law which in turn become grounds for discipline under Chapter 458. In its posthearing Proposed Recommended Order, Petitioner abandoned certain of these grounds and recommended dismissal thereof. The following are the pertinent statutory provisions on which Petitioner still seeks disciplinary action:
458.1201 Denial, suspension, revocation of license; disciplinary powers.--
The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who has been adjudged
unqualified or guilty of any of the following:
* * *
(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.
* * *
(k) Violating a statute or law of this state, any other state, or the United States (without regard to its designation as either felony or misdemeanor), which statute or law relates to the practice of medicine or in part regulates the practice of medicine.
* * *
(m) Being guilty of . . . unprofessional conduct. . . .Unprofessional conduct shall include any departure from, or the failure to conform to, the standards of acceptable
and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of his practice, whether committed within or without this state.
458.331 Grounds for disciplinary action; action by the board.--
The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken;
* * *
(q) Prescribing. . . .a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purpose of this paragraph, it shall be legally presumed that prescribing . . . legend
drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his intent.
Petitioner asserts that Respondent's actions in connection with the three patients, Cooney, Groover, and Moore, warrant discipline under Sections 458.331(1)(q) and 458.1201(1)(k) Florida Statutes, in that he prescribed controlled substances in excessive or inappropriate quantities. As to subsection 458.1201 (1)(k), Petitioner alleges that Respondent violated Section 893.051), F.S., which therefore gave rise to application of the disciplinary ground. Subsection 893.05(1) provides that a practitioner, in good faith and in the course of his professional practice only, may prescribe controlled substances. Petitioner apparently is of the view that Respondent either lacked good faith or did not prescribe controlled substances to the three patients in the course of his professional practice. It is noted that the later version of Chapter 458 in Section 458.331(1)(q) raises a presumption that prescribing controlled substances inappropriately or in excessive or inappropriate quantities is not in the course of a physician's professional practice. Such presumption, however, was not contained in the 1978 law and cannot be utilized therefore for pre-1979 incidents. The evidence does not establish that Respondent acted other than in good faith with respect to his patients or that his actions were so unreasonable as to take them outside the scope of his professional practice. Accordingly, it is concluded that Petitioner has not established a basis for discipline under subsection 458.1201 (1)(k) in that respect.
As to the contention that subsection 458.331(1)(q,) applies, it is considered that even though the evidence establishes that Respondent prescribed controlled substances in excessive quantities to the three patients under circumstances whereby such prescriptions were not always in the best interests of the patients, it again cannot be said that by so doing, Respondent clearly departed from the course of his professional practice. The evidence shows that Respondent's failings consisted of poor judgment, as conceded by Petitioner's experts, and his excessive compassion for the afflictions and needs of his patients. It is therefore concluded that the statutory presumption was overcome by the totality of the evidence.
The allegation regarding subsection 458.1401(1)(m), is predicated upon Respondent's alleged departure from or failure to conform to the standards of acceptable and prevailing medical practice by the prescribing of controlled substances in excessive or inappropriate quantities. This charge appears to lie under the concept of "unprofessional conduct" as defined in the statutory provision. The allegation is established by the evidence presented at the hearing, including as to Cooney, Respondent's acknowledgment that he prescribed excessive quantities of Dilaudid because he saw no "alternative" to his course of treatment. As to the three patients in general, the evidence discloses a pattern by Respondent of acceding to patient desires for increasing amounts of drugs and no real effort on his part to seek out or provide other adequate means of dealing with their conditions. The mere fact that Respondent referred the patients to various outside consultants cannot serve to relieve him of culpability in this regard. On several occasions, the evidence reflects that the various hospitals and specialists to whom he had referred his patients had directly or indirectly criticized his failure to reduce the amount of drugs being prescribed. Accordingly, it is determined that grounds for discipline exist under subsection 458.1401(1)(m), with regard to Respondent's actions in prescribing excessive amounts of drugs to the patients in question during the period prior to July 1979, in which the cited provision was in effect.
Petitioner predicates Respondent's amenability to discipline under subsection 458.1201(1)(h) for his alleged conduct which was harmful to the public, i.e., the patients involved, in maintaining an addiction and/or abuse of
controlled substances, and delaying appropriate treatment of the maladies suffered by the patients." It is concluded for the reasons stated in the preceding paragraph that grounds for discipline exist under this statutory provision in that Respondent's conduct was harmful to the well being of his patients and thus the public.
The final asserted ground for discipline is also under subsection 458.1201(1)(k) based upon Respondent's alleged dispensing of narcotic drugs to Gerald Cooney for the maintenance of his addiction in violation of 21 USC, 823 (g). That federal statute provides that practitioners who dispense narcotic drugs to individuals for maintenance treatment or detoxification treatment shall obtain an annual separate registration from The Attorney General. Aside from the question of whether or not Respondent dispensed such drugs to Cooney for maintenance treatment within the purview of federal law, the allegation cannot stand because Petitioner failed to meet its burden of establishing that Respondent was not properly registered.
In assessing any penalty which should be imposed against Respondent for his conduct as found above, consideration should be given to the fact that he has been a practicing physician since 1948, enjoys an excellent reputation in his community for his professional qualities, and that no apparent disciplinary action has been taken against him in the past. Additionally, the facts of this case show that Respondent is a conscientious physician who was dealing with chronic diseases in the three patients over a long period of time. His culpability lies not in bad intentions or grossly incompetent treatment, but simply a negligent failure to exercise vigilance and control over the administration of controlled substances, and failure to seek viable alternatives to such use. Petitioner has recommended as a penalty that Respondent's privilege to prescribe Schedule II controlled substances be revoked, but that the revocation be stayed and such privileges be suspended until Respondent has completed 50 contact hours of course work in pharmacology approved by the Board, at which time his privileges would be reinstated. Reinstatement would be contingent upon a period of probation which contains terms that the Board feels is necessary to protect the public against inappropriate prescribing of controlled substances.
It has not been shown that Respondent is unqualified or otherwise lacks knowledge of the propensities and use of controlled substances, but rather that he has not sufficiently monitored their use. Subsection 458.1201(3), F.S. (1978), authorized the Board to suspend or limit a physician's license to practice and to suspend enforcement of penalties and place a physician on probation for violations of subsection 458.1201(1).
Petitioner's Proposed Recommended Order has been fully considered and those portions not adopted herein are considered to be irrelevant, unnecessary, or unwarranted in law or fact.
That Petitioner suspend Respondent's privilege to prescribe Schedule II controlled substances as defined by Chapter 893, Florida Statutes, for a period of one year, but that the suspension be stayed and Respondent be placed on probation for a like period under appropriate terms and supervision established by the Board to protect the public against inappropriate prescribing of controlled substances.
DONE and ENTERED this 13th day of March, 1981, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1981.
COPIES FURNISHED:
Deborah J. Miller, Esquire Assistant General Counsel Department of Professional
Regulation
Board of Medical Examiners
130 North Monroe Street Tallahassee, Florida 32301
Robert A. Pyle, Esquire Post Office Box 557
Lake Alfred, Florida 33850
| Issue Date | Proceedings |
|---|---|
| Mar. 13, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 13, 1981 | Recommended Order | Respondent overprescribed controlled substances in violation of statute. Recommend Respondent's prescription privileges be suspended for a year. |
