STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOARD OF MEDICAL EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 81-192
) RUSQUIN DUANY GONZALEZ, M. D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal administrative hearing was conducted in the above matter on March 16 and 17, and April 1, 1981, in Miami, Florida. The following appearances were entered: Deborah J. Miller, Tallahassee, Florida, appeared on behalf of the Petitioner, Board of Medical Examiners, Department of Professional Regulation; and Maurice M. Diliberto, Miami, Florida, appeared on behalf of the Respondent, Dr. Rusquin Duany Gonzalez.
On or about January 22, 1981, the Petitioner issued an Amended Administrative Complaint seeking to suspend or revoke the Respondent's license to practice as a physician, or to take other disciplinary action against the Respondent as a licensed physician. The Respondent requested a formal hearing, and the matter was forwarded to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was originally scheduled to be conducted on March 12 and 13, 1981, but by Amended Notice of Hearing was rescheduled as set out above. Due to the unavailability of a witness, the hearing could not be completed as originally scheduled, and was reconvened and concluded on April 1, 1981.
The parties presented testamentary evidence, and Petitioner's Exhibits 1 through 9, 11 and 12, and Respondent's Exhibits 1, 2 and 3 were received into evidence. Petitioner's Exhibits 10, 13 and 14 were marked for identification, offered into evidence, but were rejected, and are not a part of the record. The parties have submitted posthearing recommended orders which include proposed findings of fact and conclusions of law. Proposed findings and conclusions have been adopted only to the extent that they have been expressly adopted in the Findings of Fact and Conclusions of Law which follow. They have otherwise been rejected as either contrary to the evidence or irrelevant to the issues.
The issues in this proceeding are whether the Respondent has committed various violations of Chapter 458, Florida Statutes, relating to medical practice, and of the Florida Comprehensive Drug Abuse Prevention and Control Act, Chapter 893, Florida Statutes. The Administrative Complaint is in thirty- six counts which relate to alleged prescriptions of controlled substances to nine individuals. The Respondent denies the allegations.
FINDINGS OF FACT
The Respondent is licensed by the Petitioner to practice medicine in the State of Florida. The Respondent is a native of Cuba. He has been licensed as a physician in Florida since 1975, and has been practicing since then in Dade County. The Respondent has not been subject to any prior disciplinary action.
Antonio Martos is a resident of Miami Beach. He is a native of Cuba, and does not speak English well. He testified at the hearing through an interpreter. Antonio Martos was a patient of the Respondent during 1976, 1977, 1978 and 1979. Among his complaints were that he had trouble sleeping. Antonio Martos did not see the Respondent at the Respondent's office, but rather saw him at his neighbor's house. Beginning in September, 1976, and once each month thereafter, through May, 1979, the Respondent issued prescriptions for forty- five 300 milligram Quaalude tablets for Antonio Rosario.
Three specific prescriptions for these drugs were received into evidence, and the Respondent's medical records reflect the additional prescriptions. Quaalude is a brand name for Methaqualone, a "Schedule II" controlled substance under Section 893.03(2), Florida Statutes. Quaalude tends to induce dependency and tolerance. Long-term use of it is inappropriate because of the prospects for abuse. Prescriptions for Quaalude in the quantities and over the period of time for which they were prescribed by the Respondent for Antonio Martos are not in accord with community standards in Dade County, Florida, and are inappropriate and excessive and not in the best interest of the patient. The prescriptions are excessive to such a degree that they could not have been issued in good faith by the Respondent.
The Respondent's records respecting Antonio Martos reflect that the Respondent saw him as a patient each month from September, 1976, through May, 1979. With the exception of five of the visits, the records reflect that all of them occurred on the first day of the month. Nearly all of the entries respecting Antonio Martos relate that he complained of insomnia and that his blood pressure was 120/80 and that his pulse rate was 80. It is not medically possible that an individual's pulse rate and blood pressure readings would be identical over such a long period of time on so many occasions. The Respondent fabricated these records to reflect visits that did not occur as indicated in the records. While no evidence was offered to establish with any definitiveness the purpose of the fabrications, it is apparent that the Respondent had a motivation to fabricate his records to reflect proper visits and prescriptions to the patient.
Antonio Rosario and his wife testified that he had not been a patient of the Respondent's. This testimony has not been credited. The Martoses' testimony was false with respect to the nature of their relationship with their neighbor, in whose home they visited the Respondent. They were both actually seen to visit the Respondent in a patient relationship at their neighbor's home. It does not appear that the Martoses fabricated their testimony for any malicious reason. They were confronted by police, they clearly did not understand the nature of the confrontation, and it is logical to assume that they were fearful, and that they sought to absolve themselves from any difficulties.
Rosario Martos is a resident of Miami Beach, and a native of Cuba. She is married to Antonio Martos. Rosario Martos does not speak English well, and she testified at the hearing through a translator. Rosario Martos was a patient of the Respondent during 1977, 1978, and 1979. She complained primarily of
insomnia and high blood pressure. She did not visit the Respondent in his office, but rather saw him at her neighbor's house. Commencing in January, 1977, and each month thereafter through August, 1979, the Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets for Rosario Martos. Eight of these prescriptions were received into evidence at the final hearing, and the remainder are reflected in the Respondent's medical records.
Prescriptions for Quaalude in these quantities over this period of time is not in accord with community standards in Dade County, Florida. Such prescriptions are inappropriate and excessive, and not in the best interest of the patient.
The prescriptions are so excessive as not to have been issued in good faith.
The Respondent's records reflecting Rosario Martos reflect that he visited her once each month from January, 1977, through January, 1979. With a few exceptions, the records reflect that he visited her on the first day of each month. The records reflect that her complaint was always the same, high blood pressure and insomnia. Except for a few occasions, her blood pressure and pulse were 120/80 and 80, respectively. These records were fabricated. It is not medically possible that a patient's pulse and blood pressure could be so consistent on so many occasions over such a long period of time. It is apparent that the records were developed in order to reflect visits which either did not occur, or did not occur in the manner reflected in the records.
Rosario Martos testified that she was never a patient of the Respondent, and that she did not receive the prescriptions. Her testimony has not been credited for the reasons set out in paragraph 2 above.
Enrique Nebot was a patient of the Respondent's during 1976 through 1979. The Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets to Enrique Nebot once each month beginning in October, 1976, and continuing through June, 1979. Four of these prescriptions were received into evidence at the final hearing, and the rest are reflected in the Respondent's medical records. The Respondent's records reflect only that Enrique Nebot complained of insomnia. Prescriptions of Quaalude in these quantities over this period of time are not in accord with community standards in Dade County, Florida. Such prescriptions are inappropriate and excessive and not in the best interest of the patient. The prescriptions are so excessive that they could not have been issued in good faith.
The Respondent's records reflect that Enrique Nebot visited him generally on the fifteenth day of each month beginning in October, 1976, and continuing through June, 1979. The records reflect the same complaints, and a pulse rate of 80 and a blood pressure of 120/80 on each visit. It is not possible that a patient could have the same pulse and blood pressure readings on so many occasions over such a long period of time. The records were fabricated to reflect visits either that did not occur, or that did not occur in the manner described in the records.
Gerardo Montes was a patient of the Respondent during 1977 through 1979. The Respondent's records reflect that Gerardo Montes complained of insomnia. Once each month beginning in September, 1977, and continuing through August, 1979, the Respondent issued a prescription to Gerardo Montes for forty- five 300 milligram Quaalude tablets. Seven of these prescriptions were received into evidence at the final hearing. The remainder of them are reflected in the Respondent's medical records. Prescriptions for Quaaludes in these quantities over this period of time are not in accord with community standards in Dade County, Florida. The prescriptions are inappropriate and excessive, and not in
the best interest of the patient. The prescriptions are so excessive that they could not have been issued in good faith.
The Respondent falsified medical records respecting Gerardo Montes. Records were created to reflect visits once each month commencing in September, 1977, and continuing through August, 1979. The records were written all at one time, rather than in response to individual appointments or visits.
Lidia Tabio is a resident of Dade County, Florida, and a native of Cuba. She was a patient of the Respondent during 1976 through 1979. Her complaints were generally hypertension and insomnia. She visited the Respondent either in his office or at home in response to her symptoms. Once each month commencing in September, 1976, and continuing through July, 1979, the Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets to Lidia Tabio. Five of these prescriptions were received into evidence at the final hearing, and the remainder are reflected in the Respondent's records. Prescriptions for Quaaludes in these quantities over this period of time are not in accord with community standards in Dade County, Florida. The prescriptions are inappropriate and excessive and not in the best interest of the patient.
The prescriptions are so excessive that they could not have been issued in good faith.
The Respondent's records respecting Lidia Tabio reflect that he saw her once each month commencing in September, 1976, and continuing through July, 1979. The visits are reflected to be on the second day of each month. On each occasion the patient's blood pressure reading was related as 120/80, and her pulse reading was reflected, commencing at least in May, 1977, as 77. It is not possible that a patient would reflect such constant blood pressure and pulse readings over such a long period of time. The patient herself testified that she visited the Respondent only in response to symptoms, and not on the second day of each month as reflected in the records. The Respondent fabricated Lidia Tabio's records.
Juan Morales Tabio is a resident of Dade County, Florida, and a native of Cuba. Juan Tabio was a patient of the Respondent during 1976 through 1979. His complaints were generally hypertension and insomnia. He visited the Respondent generally in the Respondent's office. The Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets for Juan Tabio once each month commencing in September, 1976, and continuing through August, 1979. One of these prescriptions was received into evidence at the hearing, and the remainder are determined from the Respondent's records. Prescriptions for Quaaludes in these quantities over this period of time are not in accord with community standards in Dade County, Florida. The prescriptions are inappropriate and excessive and not in the best interest of the patient. The prescriptions are so excessive that they could not have been issued in good faith.
The Respondent's records respecting Juan Tabio reflect that he visited the Respondent once each month commencing in September, 1976, and continuing through August, 1979. On each occasion the patient's pulse is indicated as having been 80, and blood pressure as 120/80. Such consistent blood pressure and pulse readings over such a long period of time are not possible. These portions of the records are fabricated.
Ramon Gonzalez is a resident of Dade County, Florida. He was a patient of the Respondent's during 1976 through 1979. His complaints generally were nervousness and that he could not sleep well. Once each month commencing
in March, 1976, and continuing through July, 1979, the Respondent issued prescriptions for forty-five 300 milligram Quaalude tablets for Ramon Gonzalez. One of the prescriptions was received into evidence at the hearing, and the remainder are reflected in the Respondent's medical records. Prescriptions for Quaalude in these quantities over this period of time are not in accord with community standards in Dade County, Florida. The prescriptions are inappropriate and excessive and not in the best interest of the patient. The prescriptions are so excessive that they could not have been issued in good faith.
The evidence does not establish that the Respondent's records respecting Ramon Gonzalez were fabricated.
Counts XXIX through XXXII of the Administrative Complaint relate to Susan Waxman, an alleged patient of the Respondent. The evidence does not establish that inappropriate prescriptions were issued to Susan Waxman nor that her medical records were in any way fabricated or altered.
Counts XXXIII through XXXVI of the Administrative Complaint relate to a person named Lueinea Gonzalez. No evidence was offered with respect to the allegations set out in Counts XXXIII through XXXVI of the Complaint.
There was no evidence from which it could be concluded that any of the prescriptions for Quaalude that the Respondent issued were used either by himself, or by persons other than those for whom the prescriptions were issued.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.
In Counts I, V, IX, XIII, XVII, XXI, and XXV of the Amended Administrative Complaint, the Respondent is charged with violating Section 458.331(1)(h), Florida Statutes. The section provides:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(h) Failing to perform any statutory or legal obligation placed upon a licensed physician.
Section 893.05(1), Florida Statutes, relates to administration of controlled substances. It provides:
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, or he may cause the same to be administered by a licensed nurse or an intern practitioner
under his direction and supervision only. . . .
The prescriptions for Quaalude that the Respondent issued for Antonio Martos, Rosario Martos, Enrique Nebot, Gerardo Montes, Lidia Tabio, Juan Tabio, and Ramon Gonzalez were inappropriate and excessive, and therefore not issued in the
course of the Respondent's professional practice. Section 458.331(1)(q) Florida Statutes. The prescriptions were in each case so excessive, as not to have been issued in good faith. The Respondent failed to perform the legal obligation imposed by Section 893.05(1) with respect to each of these patients, and has therefore violated the provisions of Section 458.331(1)(h) as alleged in Counts I, V, IX, XIII, XVII, XXI, and XXV of the Administrative Complaint.
Counts II, VI, X, XIV, XVIII, XXII, and XXVI of the Amended Administrative Complaint charge violations of Section 458.331(1)(q), Florida Statutes, in connection with the prescriptions of Quaaludes to Antonio Martos, Rosario Martos, Enrique Nebot, Gerardo Montes, Lidia Tabio, Juan Tabio, and Ramon Gonzalez, respectively. The section provides that the following conduct constitutes grounds for taking disciplinary action:
Prescribing, dispensing, administering, mixing, or otherwise preparing
a legend drug, including any controlled substance, other than in the course
of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing 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.
The Respondent's prescriptions constitute violations of this provision as alleged.
Counts III, VII, XI, XV, XIX, and XXIII of the Amended Administrative Complaint charge violations of Section 458.331(1)(1), Florida Statutes, in connection with the Respondent's Quaalude prescriptions for Antonio Martos, Rosario Martos, Enrique Nebot, Gerardo Montes, Lidia Tabio, and Juan Tabio. The statute provides that disciplinary action can be taken if the Respondent is found guilty of the following conduct:
Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.
The Respondent's falsification of medical records constitutes violations of this provision.
In Count XXVII of the Amended Administrative Complaint it is alleged that the Respondent violated the provisions of Section 458.331(1)(1), Florida Statutes, with respect to Ramon Gonzalez. These allegations have not been sustained.
In Counts IV, VIII, XII, XVI, XX, XIV, and XXVIII it is alleged that the Respondent prescribed, dispensed, or administered a scheduled substance to himself in connection with the prescriptions issued for Antonio Martos, Rosario Martos, Enrique Nebot, Gerardo Montes, Lidia Tabio, Juan Tabio, and Ramon Gonzalez, respectively. These allegations are not sustained by the evidence.
In Counts XXIX through XXXII of the Amended Administrative Complaint it is alleged that the Respondent committed similar violations to those enumerated above with respect to Susan Waxman. The allegations of these Counts have not been sustained by the evidence.
In Counts XXXIII through XXXVI of the Amended Administrative Complaint it is alleged that the Respondent committed similar violations to those enumerated above in connection with prescriptions for Lueinea Gonzalez. These allegations have not been sustained.
Section 458.331(2), Florida Statutes, provides:
(2) Where the Board finds any person guilty of any of the grounds set forth in subsection
, it may enter an order imposing one or more of the following penalties:
Refusal to certify to the Department an application for licensure.
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time and subject to such conditions as the Board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.
The Respondent has committed numerous serious violations of the provisions of Section 458.331(1). It is appropriate that he be removed from the practice of medicine for a significant period, that he be subjected to an administrative fine, and that his practice be permanently limited so that he is not in a position to prescribe or administer controlled substances.
Based upon the foregoing findings of fact and conclusions of law, it is, hereby,
RECOMMENDED:
That the Board of Medical Examiners enter a final order finding the Respondent guilty of the charges enumerated in paragraphs 2, 3 and 4 of the Conclusions of Law above; suspending the Respondent's license to practice as a physician in the State of Florida for a period of two years; imposing an administrative fine against the Respondent in the amount of $2,000; and
permanently restricting the Respondent's practice so that after the period of his suspension, the Respondent is not permitted to prescribe, dispense, administer, mix, or otherwise prepare any controlled substance.
That the Board of Medical Examiners enter a final order dismissing Counts IV, VIII, XII, XVI, XX, XXIV, and XXVII through XXXVI of the Amended Administrative Complaint.
RECOMMENDED this day of April, 1981, in Tallahassee, Florida.
G. STEVEN PFEIFFER Assistant Director
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 day of April, 1981.
COPIES FURNISHED:
Deborah J. Miller, Esquire Assistant General Counsel Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Maurice M. Diliberto, Esquire Suite 800, Ainsley Building
14 Northeast First Avenue Miami, Florida 33132
Ms. Nancy Kelley Wittenberg, Secretary Department of professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 81-192
RUSQUIN DUANY GONZALEZ, M. D.,
Respondent.
/
FINAL ORDER
This matter came for final action by the Board of Medical Examiners pursuant to Section 120.57(1)(b)9., F.S., at a public meeting on September 12, 1931, in Lake Buena Vista, Florida, for review of the recommended order of the hearing officer entered herein, and the exceptions filed by the Petitioner, Department of Professional Regulation; and the exceptions filed by the Respondent, Rusquin Duany Gonzalez, M.D. A transcript of the proceedings is available, if necessary.
FINDINGS OF FACT
Based upon a review of the complete record, the Petitioner's exceptions to the findings of fact contained in Paragraphs one (1) and two (2) of Petitioner's Exceptions to Recommended Order are accepted as corrections to findings of fact by this Board as being supported by competent substantial evidence, and are incorporated herein by reference.
Based upon a review of the complete record, the Respondent's exceptions to the findings of fact contained in Paragraphs one (1) through three (3) of the Respondent's Exceptions to Findings of Fact, Conclusions of Law and Recommended Order are rejected by this Board, inasmuch as the hearing officer's findings of fact are supported by competent substantial evidence.
Following a review of the complete record, the Board adopts the findings of fact of the hearing officer not inconsistent with the above and incorporates them herein by reference.
CONCLUSIONS OF LAW
Following a review of the complete record, the Board hereby rejects the conclusion of law which states that the Respondent did not violate Section 453.331(1)(1) F.S., with respect to Ramon Gonzalez, and that Count XXVII of the Amended Administrative Complaint be dismissed.
Petitioner's exception to the conclusions of law contained in Paragraph two (2) of Petitioner's Exceptions to Recommended Order is accepted, and the Board finds that based upon the findings of fact found above, the Respondent did violate Section 458.331(1)(1), F.S., with respect to Ramon Gonzalez.
The Respondent's exceptions to the conclusions of law contained in Paragraphs one (1) and six (6) of Respondent's Exceptions to Findings of Fact, Conclusions of Law and Recommended Order are found to be without merit and are rejected.
The Board does, however, adopt the remainder of the hearing officer's conclusions of law and incorporates them herein by reference.
Petitioner's exception to the recommended penalty contained in Paragraph one (1) RECOMMENDED PENALTY of Petitioner's Exceptions to Recommended Order is found to be without merit and is rejected. Respondent's exceptions to the recommended penalty contained in Paragraph four (4) of Respondent's Exceptions to Findings of Fact, Conclusions of Law and Recommended Penalty is accepted, but the exception listed in Paragraph five (5) is found to be without merit and is rejected. Accordingly, based upon a review of the complete record, the modified Findings of Fact and Conclusions of Law, IT IS THEREFORE
ORDERED AND ADJUDGED that the license to practice in the State of Florida of Rusquin Duany Gonzalez, M.D., be and hereby is suspended for a period of two
years, to be followed by a five year period of probation subject to the following terms and conditions: successful completion of fifty (50) hours of Category I, A.M.A. approved continuing medical education annually; semiannual appearances before the Board; further, Respondent shall not, so long as this Order is in effect, prescribe, dispense, administer, mix or otherwise prepare a controlled substance as set forth in Schedules 1-5, 893.03, Florida Statutes, until Respondent has demonstrated to the Board and the Board determines that the Respondent is able to prescribe, dispense, administer, mix or otherwise prepare such controlled substances with reasonable skill and safety to patients, based upon Respondent's education, training and experience. Respondent shall have the sole burden of proof to demonstrate to the Board that he is able to comply herewith. Immediately upon the issuance or this Order by the Board, Respondent shall surrender to the Drug Enforcement Administration agency all licenses and certificates issued by said agency to him, and shall not thereafter apply for or obtain a license or certificate from the Drug Enforcement Administration agency to prescribe, dispense, administer, mix or otherwise prepare control substances as set forth in 893.03, Florida Statutes.
DONE AND ORDERED this 25th day of September, 1981.
BOARD OF MEDICAL EXAMINERS
By Robert N. Webster, M. D.
Chairman
cc: All Counsel of Record Rusquin Duany Gonzalez, M. D.
| Issue Date | Proceedings |
|---|---|
| Nov. 16, 1981 | Final Order filed. |
| Apr. 10, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 25, 1981 | Agency Final Order | |
| Apr. 10, 1981 | Recommended Order | Respondent improperly prescribed controlled substances over long periods of time to many patients. Recommend suspension and administrative fine. |
