STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1609
)
ROBERT H. WRAY, M. D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an Administrative Hearing was held before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on May 12, 1982, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Joseph W. Lawrence, II
Chief Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Thomas L. Powell, Esquire
Douglass, Davey and Cooper
211 East Call Street Tallahassee, Florida 32302
By an Administrative Complaint dated May 13, 1981, the Respondent, Robert
Wray, M.D., was charged with violations of Chapter 458, Florida Statutes. Specifically, it was alleged that the Respondent prescribed excessive amounts of controlled substances to a Patient, Steven Paul Maggiacomo. It is alleged that those controlled substances were not prescribed for medically justifiable reasons and that the prescriptions were inappropriate or in excessive a inappropriate quantities, in violation of Section 458.1201(1)(h) and (m), Florida Statutes (Supp. 1978). Additionally, it was alleged that the Respondent did not hold the required federal certificate to prescribe controlled substances at the times pertinent hereto and therefore violated Section458.1201(1)(k), Florida Statutes (Supp. 1978).
The Petitioner presented the testimony of two psychiatrists by deposition and four other exhibits, including a statement from the Respondent, Dr. Wray. Petitioner's Exhibits one through six were received into evidence. The Respondent presented his own testimony and five exhibits, A through E, which were received into evidence, including the affidavits of two psychiatrists which the parties stipulated into evidence. The Respondent's Motion to Dismiss will be treated in the Conclusions of Law below.
The issue for determination is whether disciplinary action should be taken against the Respondent's licensure status as a medical physician for the alleged violations asserted in the Administrative Complaint. Subsequent to the hearing, the parties obtained the benefit of transcript and elected to exercise their right to file proposed findings of fact and conclusions of law.
FINDINGS OF FACT
Dr. Robert H. Wray is a licensed medical doctor in the State of Florida and was so licensed at all times pertinent hereto, having been issued license number MEII89I.
The Petitioner is a regulatory agency of the State of Florida charged with the supervision and regulation of the licensure status and practice of medical doctors in the state.
During the period of January 15 through March 8, 1979, the Respondent did not possess a controlled substance certificate of registration, issued by the United States Department of Justice, Drug Enforcement Administration and the Respondent was technically not authorized to dispense, administer, prescribe or possess scheduled controlled substances pursuant to the applicable federal statutes and regulations. The Respondent did not possess that certificate because of an inadvertent oversight on his part in that he forgot to timely renew his application therefor, which oversight he corrected promptly upon being made aware of it sometime prior to March 8, 1979.
During the period of January 15 through March 8, 1979, the Respondent issued prescriptions to the patient Steve Maggiacomo, as follows:
CONTROLLED SUBSTANCES | QUANTITIES |
Quaalude, 300 mg. (Methaqualone | 700 |
Valium, 10 mg. (Diazepam) | 1500 |
Biphetamine, 20 | 300 |
Tuinal, 3 gr. (Secobarbital) | 300 |
Percodan, (Oxycodone) | 100 |
Placidyl (Ethchlorvynol) | 200 |
Dexadrine Spansules (Amphetamine) | 300 |
Demerol (Meperidine) | 50 |
Parest (Methaqualone) | 100 |
Parest, 400 mg. (Methaqualone) | 100 |
Fiorynal | 100 |
The Petitioner presented the testimony of two (2) psychiatrists regarding the question of whether the prescribing of such medication in those amounts for a medically justifiable purpose is outside the realm of generally accepted medical practice of physicians limiting their practice to violet patients and whether any harm might come to the public or the patient by such practice.
Dr. Ernest C. Miller is a medical doctor licensed to practice in Louisiana, Arkansas and Florida, but is not board certified. At the time of his testimony he was Director of the Community Mental Health Center at the University Hospital in Jacksonville, Florida, and has half some experience in the treatment of violent psychiatric patients. His experience is limited, however, because the Community Mental Health Center is a receiving facility under the Baker Act rather than a treatment facility, therefore his duties are largely administrative in nature.
Dr. Miller looked askance at the drug prescribing record or protocol of Dr. Wray in this case and opined that the patient should have been hospitalized, either voluntarily or involuntarily. Dr. Miller was unaware, however, that the patient had indeed been hospitalized for a period of five or six months with no beneficial effects. Dr. Miller was unable to testify with reasonable medical probability that the purpose of the prescriptions involved herein were for other than a medically justifiable purpose. Dr. Miller found that none of the drugs, accept percodan and demerol, were inappropriate in and of themselves, and Dr. Miller was unaware of the patient's hand injury for which the Respondent prescribed percodan and demerol as analgenics, hence all drug types prescribed are found to have been appropriate for the patient's condition.
Although he felt that the quantity of drugs prescribed in the subject situation could have been excessive, Dr. Miller felt that that would depend on the circumstances of the individual case and he conceded that there may be circumstances where the quantities of drugs prescribed in the instant case would be medically justifiable and appropriate and he acknowledged that he did not have sufficient information and patient-history to make that judgment. Dr. Miller could not establish that any member of the public or the patient was harmed by the action of the Respondent in this instance.
Although he himself felt that hospitalization would be the appropriate treatment modality, either voluntary or involuntarily, Dr. Miller admitted that there are certain violent persons who are not proper candidates for hospitalization, who would not benefit from such hospitalization and indeed might even be harmed by it. Dr. Miller established that there are possible circumstances under which the prescribing of a normally inordinate amount of drugs over a five (5) year period could be justified and appropriate in a case such as this one where the patient's propensity for violent acts and aggressive behavior was demonstrably allayed and he was able to contain his anxiety and personal conflicts so that he did not hurt himself or others during the five (5) year period.
Dr. Phillip Rond is a psychiatrist who has had limited experience in treatment of violent or homicidal psychiatric patients. He has not treated a violent patient within the past ten years and has no experience in the outpatient treatment of violent psychiatric patients. Although testifying for the Petitioner, Dr. Rond corroborated the testimony of the Respondent that not all violent persons are psychiatric cases, nor are they all subject to hospitalization. He acknowledged that he did not have enough information at his disposal to advance an opinion regarding whether Steve Maggiacomo could be appropriately hospitalized involuntarily pursuant to the Baker Act.
Although Dr. Rond evidenced some difficulty in justifying the amounts of drugs prescribed by the Respondent and the manner of prescribing them, he admitted that there may be some justification for prescribing those drugs in smaller amounts and it was certainly possible that he might find the actual prescriptions involved herein appropriate if he had different or additional facts regarding the patient which he did not have the benefit of at the time of his testimony. Dr. Rond thus acknowledged that there could be circumstances where such prescriptions were appropriate for such a patient being treated for violent tendencies on an outpatient basis. Dr. Rond was unable to find that the Respondent's prescriptions were for any reason other than a medically justifiable purpose. Although he felt that the percodan prescription was inappropriate, Dr. Rond was unaware at the time he testified of the Respondent's prescription of that drug to Steve Maggiacomo for alleviating discomfort due to
his severe hand injury. Dr. Rond also felt that, although he questioned the amount of drugs prescribed in January and February of 1979, he also showed that that might be justifiable under proper circumstances. Dr. Rond established that the quantity of drugs prescribed during the time in question might be acceptable if prescribed over a longer period of time.
Dr. Rond further corroborated the testimony of Dr. Miller and the Respondent in demonstrating that no "immoral conduct" had been committed by the Respondent nor that any of his practices had been deleterious or harmful to the public. Further, although he asserted that the appropriate treatment modality would have been hospitalization for this patient, Dr. Rond could not state with any reasonable medical probability that the patient should have been involuntarily hospitalized. He found no evidence to support that procedure and admitted that the Respondent had benefited the patient medically by curtailing his violent tendencies without doing any harm to the patient or the public.
Dr. Rond asserted that he would not become involved in a psychiatrist/patient relationship with a patient such as the one treated by the Respondent, but acknowledged that once Dr. Wray undertook to treat him he could not ethically extricate himself from that relationship. Nor was he able to say that the prescription of the subject drugs and the amounts involved is outside the generally accepted medical practice of those limited numbers of psychiatrists, like the Respondent, who limit their practice to violent patients. Dr. Rond had little experience with outpatient treatment of violent patients and did not wish to become involved with that type of patient. He stated that if he became involved treating such a patient he would disengage himself as readily as possible and hospitalize such a patient if possible and, if not, he would drop the patient. He admitted however that to so desert a patient would be a violation of the proper standards of ethics and medical care in the community. Dr Rond was ultimately unable to express an opinion regarding the appropriateness of the Respondent's actions given the facts at his disposal in arriving at an opinion and conceded the possibility that indeed Patient Maggiacomo was appropriately treated based upon the totality of the circumstances peculiar to his situation.
Dr. J. F. Mason, M.D., a psychiatrist, and Dr. Phillip B. Phillips, also a psychiatrist, the latter of whom is a life Fellow of the American Psychiatric Association, past President of the Florida Psychiatric Society and current President of the Southern Psychiatric Association, established that there was no unethical or unprofessional conduct of the Respondent in his undertaking a therapeutical alliance or relationship with this patient and his manner of treatment. Dr. Mason also opined that the Respondent had indeed been trapped into a treatment relationship before he realized the difficulty of treating such a patient on an outpatient basis. Dr. Phillips has testified in countless legal cases involving violent patients in all courts, usually involving patients who exhibit antisocial, violent behavior. Dr. Phillips commended the Respondent's willingness to accept such a difficult patient initially and noted that few psychiatrists would accept such a patient. The Respondent is a highly reputable and competent psychiatrist. Dr. Phillips found nothing inappropriate in the Respondent's generous use of suppressive medication for this patient and opines that such is an appropriate course of treatment for such an extremely violent patient and, indeed, felt it commendable in this patient's situation.
The Respondent elected to testify in his own behalf. He claimed the psychiatrist/patient privilege and was unable thus to reveal certain details of the patient's history and background and his relationship with him. As will be indicated hereinbelow, that claim of the psychiatrist/patient privilege has been upheld by the Court of Appeals for the First District and Dr. Wray's refusal to attempt to waive that privilege on behalf of the patient has been justified by that opinion. Nevertheless, Dr. Wray was able to testify in sufficient detail to convince the Hearing Officer of the extremely violent nature of his patient's disorder and that the particular drugs prescribed, in the amounts prescribed, up through February of 1979, benefited that patient and prevented him from harming himself or members of the public.
The Respondent was referred the patient, Steve Maggiacomo, by John Bordon, Ph.D., a psychologist. The Respondent began treating the patient under contract with the Veterans Administration to render psychiatric services to him. At the time he accepted the patient for treatment, he was unaware of the extent of the violent tendencies of the patient. He began his treatment of Maggiacomo very conservatively, relying chiefly on his therapeutic alliance or rapport with the patient as well as low doses of non-dangerous medication, suck as valium.
The Respondent treated the patient on this conservative basis for approximately a year and a half. During the course of that period of treatment, evidence of the patient's severe violent tendencies became increasingly apparent. The Respondent regularly communicated with the Veterans Administration, informing them of his methods of treatment for the patient and the patient's progress thereunder. The Veterans Administration, during that time, consistently approved that course of treatment. Despite his violent tendencies and considerable past difficulties the patient was able to maintain sufficient control of his disorder during this time by Dr. Wray's therapeutic alliance and medication therapy, to attend college and obtain his masters degree.
The patient's violent tendencies became more pronounced after the first year and a half of treatment and upon the Respondent's investigating the full extent of his violent history, Respondent persuaded the patient to voluntarily hospitalize himself. He was hospitalized for four or five months without success and returned to treatment with the Respondent. The hospitalization proved to be of no benefit to the patient and indeed seemed to have been harmful. The Respondent at this point in his course of treatment realized that more drastic measures were necessary in order to prevent the patient from hurting himself or someone else. He began to increase the variety and quantity of the patient's medications in order to suppress his increasingly violent tendencies. The Respondent regularly informed the Veterans Administration during this time of his method of treatment of the patient and stressed to the Veterans Administration the unique problems presented by the patient and the importance of the unusual treatment modalities which he felt it necessary to employ.
The Respondent closely monitored the effects of the increased variety and quantity of medications on the patient and was constantly observing for signs of drug addiction or other related problems. The Respondent actively investigated the possibility that the patient might be selling or giving away the drugs, including contacting various persons of his acquaintance with law enforcement agencies. That investigation was negative and the Respondent obtained no indication that the patient was doing other the taking the medications as the Respondent prescribed them. The patient had good insight into the need for and use of the medications and no evidence was established to
show that he was using them inappropriately. The increased medication treatment modality employed by the Respondent was having beneficial effects on the patient. In order to guard against the possibility of addiction or other adverse effect from the medication, the Respondent had the patient examined by an internal medicine specialist, Dr. Brett. This thorough examination indicated no adverse physical effects from the course of medication.
Sometime prior to March of 1979, the Respondent determined to leave the practice of psychiatry to enter lab-school as a full-time student. He informed the patient of his decision. The patient, for his part, decided to leave Florida and return to Connecticut. The Respondent was unaware of any psychiatrist or other therapist to whom he could refer the patient in Connecticut and, accordingly, over a period of several days, prescribed a large amount of medication for the patient to enable him to maintain control over his violent behavior for a sufficient period of time to safely allow him to locate another therapist in Connecticut. The types of medication prescribed throughout the course of treatment, including March of 1979, were appropriate to the condition and peculiar circumstances of this unique patient.
The Respondent has extensive experience in the treatment and control of violent patients. He has treated over a thousand violent patients both on an inpatient and outpatient basis during his professional career. There are only approximately a dozen psychiatrists in this country who so specialize in the treatment of violent outpatients with a degree of experience equal to that of the Respondent. No harm came to the patient or to the public during treatment of this patient and, in fact, the patient was benefited by the course of treatment.
The Respondent's one effort at a "follow-up" of his former patient's progress indicated that the patient had successively located another therapist in the Connecticut area and was continuing treatment under the same regime of medication originally prescribed him by the Respondent with the same beneficial results. The Respondent established that the only alternative to the extraordinary treatment he rendered the patient would have been to leave the patient to his own devices with the likely result that innocent persons or the patient himself would be violently injured or killed.
It is unfortunate, however, that the Respondent failed to establish that he made any significant efforts to contact a suitable therapist in the Connecticut area to assume responsibility for Steve Maggiacomo's case prior to his entry into law school and Maggiacomo's migration to Connecticut. Rather than make substantial efforts to contact such a therapist in an attempt to aid the patient in establishing a therapeutic alliance with a new therapist he chose instead to prescribe several months supply of the medications Maggiacomo had been successively treated with. Although Dr. Wray established that Maggiacomo had consistently followed his directions in taking the medications as prescribed and had a good insight into his illness, the need for the medication, and the manner in which he should take them, he, in effect, allowed the substitution of the patient's judgment and discretion for his own in this regard, without actively working to obtain his referral to another therapist. The therapeutic alliance was established by the Respondent himself, as well as Dr. Miller, to be as important an element of the treatment as the controlled substances prescribed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings ha jurisdiction of the parties to and the subject matter of these proceedings, pursuant to Section 120.57(1), Florida Statutes.
The Petitioner has charged the Respondent with violation of Sections 458.1201(1)(h), (m), and (k) Florida Statutes (1977), as substantially reenacted by Sections 458.331(1)(1), (q), (t), and (h), Florida Statutes (1979).
Sections 458.1201(1)(h), (m), and (k), Florida Statutes (1977), provide as follows:
(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.
* * *
(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence or willful misconduct. Unprofessional conduct shall include any departure from or the failure to conform to the 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 practice whether committed within or without this state.
* * *
(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.
Section 458.331(1)(q) and (t) provide in pertinent part as follows:
. . . 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.
* * *
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment
which is recognized by a reasonably prudent similar physician as being acceptable
under similar conditions and circumstances
. . . .
In his Motion to Dismiss, the Respondent contends that the above statutory subsections under which he has been charged have been repealed and that, contrary to the Petitioner's contention, they have not been substantially reenacted in the 1979 subsections cited above. In view of the conclusion and result reached herein, it is only necessary to discuss and treat the question of substantial reenactment of Subsection (m) above by the enactment of Subsections
(q) and (t) of the 1979 section involved herein. The undersigned concludes that Subsections (q) and (t) of the 1979 law are indeed substantial reenactments of Subsection (m) of the 1977 law referenced above. As such, the proscribed conduct referred to in the 1977 Subsection (m) , and which is the subject matter of this proceeding, is the same as that treated in Subsections (q) and (t) of the 1979 statute. The type of conduct involved in the proceeding is generally proscribed and condemned, in part implicitly, in the 1977 subsection and the Legislature merely made the standards more explicit with the 1979 enactment.
The proscription of unprofessional conduct including a departure from or failure to conform to acceptable and prevailing medical practice in a physician's area of expertise is the same or similar subject matter to that in the 1979 subsections wherein the dispensing or prescription of drugs inappropriately or in inappropriate quantities is; presumed in Subsection (q) to not be in the course of a physician's professional practice or the best interest of his patient. The conduct proscribed in Subsection (t) in the 1979 enactment, where the Legislature refers to gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent, similar physician is the same or similar to that more generally prohibited in Subsection (m) of the 1977 Act. A statute that is simultaneously repealed and then reenacted is regarded as continually enforced. Goldenberg v. Dome Condominium Association, Inc., 376 So.2d 37 (Fla. 3rd DCA 1979). An amendment and reenactment of a statute constitutes a continuation of those provisions which are carried into the new act and permits a prosecution under the original act irrespective of nominal repeal. McKibben
v. Mallory 293 So.2d 48 (Fla. 1974); Raines v. State, 42 Florida 141, 28 So. 57 (1900); Skinner v. State, 383 So.2d 767 (Fla. 3rd DCA 1980).
In Solloway v. Department of Professional Regulation/Board of Medical Examiners, 3rd DCA, Case number 81-615 (opinion filed October 5, 1982); 7 Florida Law Weekly, 2159, the court for the third district considered the effect on former Section 458.1201(1)(m) of the enactment of Section 458.331(1)(t)(as well as the not-here-germane Subsection (k)). The court held in this essentially identical situation that the applicable provisions in both enactments of Section 458 are similar, and both proscribe the conduct that is the subject matter of this proceeding. According to the court, the Legislature merely more explicitly condemned conduct which previously it had generally or implicitly condemned. Thus, this decision explicitly establishes that Subsection (t) is indeed the substantial reenactment of former Subsection (m) of the 1977 statute under which the Respondent herein is charged. Subsection (q) is also concluded to be a substantial reenactment of Subsection (m) in that it concerns identical or similar prohibited conduct, specifically regarding the prescription of drugs inappropriately, as not being in the course of the
physician's professional practice. Thus, to this extent the Respondent's Motion to Dismiss should be denied.
The Respondent's Motion to Dismiss with regard to his putative failure to be accorded appropriate due process safeguards in that he contends he has been required to, in effect, hinder his own defense because of his appropriate assertion of the psychiatrist/patient privilege, is not concluded to be an appropriate ground for granting of a Motion to Dismiss. The case of Wray v. Department of Professional Regulation, case number AG-465 (opinion filed March 1, 1982, by the 1st D.C.A.), leaves no question that only the patient can waive the psychotherapist/patient privilege. As the court found therein, there is no evidence that the patient has ever waived the psychotherapist/patient privilege at the time the court entertained this matter and the undersigned finds no evidence in this record that the patient ever waived such privilege. The Respondent thus has an affirmative duty to assert the psychotherapist/patient privilege on behalf of his patient and to refrain from violating this privilege. However, because of the findings made herein and the conclusion reached below, the undersigned must conclude that the Respondent's assertion of the privilege herein occasioned no detrimental or "chilling effect" in derogation of his efforts to preserve his rights in this proceeding. The testimony of the Respondent established without question the violent nature of his patient's disorder and the appropriateness of the course of treatment throughout his therapeutic relationship with that patient, such that it was not necessary to embellish his defense with matters could have testified to, were they not privileged. The testimony of the Petitioner's witnesses by deposition did not establish by even a preponderance of the evidence that the treatment regime was clothed with that impropriety which the Legislature treated and proscribed in the stated subsections with which the Respondent has been charged. The one transaction or instance of conduct with which the Respondent is concluded below to be blameworthy does not involve arriving at findings of fact or a conclusion of law requiring delving into privileged matters whatever. Matters involving confidential communications or other confidential aspects of Dr. Wray's relationship with the subject patient are simply not germane to the findings of fact and conclusions of law supportive of the ultimate conclusion below. Thus, it is deemed that the assertion of the psychotherapist/patient privilege by Dr Wray in this instance did not hinder in a prejudicial way his defense to this prosecution. The Motion to Dismiss should be denied.
It is patently apparent and uncontradicted both from the evidence adduced by the Petitioner, as well as the Respondent's own testimony, that indeed the Respondent did proscribe an unusually large amount of medication far the patient, Steven Paul Maggiacomo, between the period of January 15 and March 8, 1979. It is equally obvious, and the unrebutted evidence establishes, that that patient presented unique and extraordinary treatment problems calling for extraordinary remedies. The patient was initially seen by Dr. Wray when he did not have full knowledge of the violent character or personality disorder from which the patient suffers. By the time the therapeutic relationship was established and Dr. Wray became aware of the extraordinary violent tendencies of the patient, he could not in accord with ethical considerations and good professional practice, withdraw from the therapeutic relationship with that patient. It is to Dr. Wray's credit that he recommended and the patient voluntarily agreed to hospitalize himself for his psychiatric problem. The patient underwent five or six months of hospitalization and the unrefuted evidence in the record establishes that he did not benefit from treatment in a hospital setting and indeed was probably harmed by it. Thus, Dr. Wray found himself in a rather untenable position because hospitalization was shown not to have helped his patient and yet he could not terminate the relationship with
that patient without substantial danger to the public at large and to the patient himself. Dr. Wray thus chose to treat him by prescribing increasing large amounts of medication and the unrefuted evidence propounded by the Respondent establishes that that treatment had a beneficial effect on the patient and served to protect him from his violent nature and to protect the public as well. Had Dr. Wray unilaterally terminated the psychiatrist/patient relationship, he would have released that patient to a situation of substantial risk to the patient and members of the public which course of action would have subjected Dr. Wray to severe professional criticism. It is also to his credit that throughout his course of treatment of this patient he chose that course of action best calculated to protect the community at large, even though he knew the use of large amounts of medication might subject him to professional and legal criticism. With that in mind he sought on a number of occasions to inform and explain his unusual, but beneficial, course of treatment to the officials of the Veterans Administration, as well as to the Petitioner.
The evidence adduced by the Petitioner in the form of the testimony of Drs. Rond and Miller is equivocal at best and is not clear and convincing, such that it could establish that the prescriptions issued by the Respondent during the period of time in question were inappropriate or in inappropriate quantities, in the fact of the Respondent's testimony establishing the unique, extraordinary treatment problem posed by this patient. Indeed both of the Petitioner's expert witnesses, Drs. Miller and Rond, although they appeared to decry the course and scope of the medication protocol for this patient, also testified that the prescribing of these quantities and types of medications could be appropriate in extraordinary circumstances and that they had insufficient knowledge and information upon which to determine whether those sufficient extraordinary circumstances were present. The Respondent's evidence supplied that information which justifies the prescription of these types and amounts of medication during the course of this patient's treatment until the point of the severing of the relationship. The testimony of Drs. Phillips and Mason for the Respondent corroborates the Respondent's testimony to that effect and aids in establishing the Respondent's somewhat unique and extraordinary expertise in treating violent psychiatric patients. Drs. Phillips and Mason are also practitioners of this a rather unique specialty and the three, Drs. Wray, Phillips and Mason, are part of a group of perhaps only twelve psychiatrists in the country who narrowly specialize in violent outpatient treatment. Their testimony, in corroboration of that of Dr. Wray establishes that his actions were not only professionally justifiable, given the unique circumstances of Patient Maggiacomo's case, but indeed were to some extent commendable because of the protection afforded to the public and patient when not even hospitalization was shown to be beneficial. Thus, no deleterious conduct or practice harmful to the public has been proven so as to establish the charge in Count I of the complaint.
The evidence adduced by the Petitioner coupled with the testimony of Dr. Wray himself, however, does establish that Dr. Wray departed from acceptable and prevailing medical practice standards within his area of expertise, departed from that level of care, skill and treatment recognized by reasonably prudent similar physicians and engaged in unprofessional conduct to the extent, and only to the extent, that he failed to make diligent efforts to secure a referral of his patient to a qualified psychiatrist or therapist in Connecticut when he had ample, advance knowledge that the patient was going to move to that state. Although it was not demonstrated by clear and convincing evidence that the amounts and types of medications prescribed during the periods in question were inappropriate or represented a departure from the statutory standards of conduct under which he is charged, Dr. Wray's failure to secure immediate and certain
referral of this patient to a qualified practitioner in the area to which he was moving, but, instead, allowing the substitution of the patient's judgment concerning when and how to take these large amounts of otherwise appropriate medications, does constitute an isolated lapse in Dr. Wray's otherwise appropriate course of professional conduct and must be concluded to constitute unprofessional conduct, and a failure to practice medicine with that level of care, skill and treatment recognized by reasonably prudent, similar physicians. Thus, the allegations in Count II of the complaint have been proven to this extent only. It is also true and undisputed, with regard to Count III, that Dr. Wray inadvertently failed to timely renew his active registration with the Federal Drug Enforcement Administration before prescribing scheduled controlled substances and thus violated Section 458.1201(1)(k), Florida Statutes (1977) as substantially reenacted by Section 458.331(1)(h), Florida Statutes (1979). In view of the Respondent's outstanding record as a physician and a leader in his particular specialty, in view of his commendable and largely beneficial efforts in treating this patient, in view of the fact that his error was an isolated one and represents a sole departure of record from his hitherto consistent adherence to appropriate standards of professional practice and in the view of the fact that he has never been the subject of any disciplinary proceedings in the past, only minimal penalty is warranted.
The Petitioner, the Department of Professional Regulation, Board of Medical Examiners, has failed to meet its burden of proof as to Counts I and II of the Administrative Complaint, except as delineated and concluded above. License revocation proceedings are penal in nature. The prosecuting agency is required to prove its charges by clear and convincing evidence--by evidence as substantial as the consequences facing the licensee. See, Bowling v. Department of Insurance 394 So.2d 165 (Fla. 1st DCA 1981); Walker v. State, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). The prosecuting agency bringing the charges must offer proof commensurate with the potential penalty facing the licensee:
The violation of a penal statute
is not to be found on close interpretations and problematic evidence, but the violation must, in all its implications, be shown by evidence which weighs as 'substantially'
on a scale suitable for evidence as the penalty does on the scale of penalties.
Bowling, supra. Further, penal statutes are strictly construed and any ambiguities must be construed in favor of the person charged. School Board of Pinellas County v. Noble, 384 So.2d 205, 206 (Fla. 1st DCA 1980).
Having considered the foregoing findings of fact conclusions of law, the evidence in the record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is
RECOMMENDED that a final order be entered by the Petitioner finding that the Respondent, having engaged in an isolated instance of unprofessional conduct occurring at the end of his relationship with the subject patient, be found guilty of unprofessional conduct as defined in Section 458.1201(1)(m), Florida Statutes (supp. 1978) as substantially reenacted in Section 458.331(1)(q) and (t), Florida Statutes (1979) and for the inadvertent technical violation involving failing to timely renew his certificate of registration with the
United States Department of Justice, Drug Enforcement Administration, that he be found guilty of the charge in Count III of violation of Section 458.1201(1)(k), Florida Statutes (supp. 1978), as substantially reenacted in Section 458.331(1)(h), Florida Statutes (1979); that as a penalty for these violations, the Respondent be required to enroll in a continuing education course designed to enhance his professional knowledge concerning the appropriate prescription, dispensing, administering or possession of controlled substances and that his professional practice be monitored by the Board of Medical Examiners for a period of one (1) year to ensure that he appropriately and timely enrolls, participates in and completes such continuing education course.
DONE and ENTERED this 12th day of November, 1982, in Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer 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 12th day of November, 1982.
COPIES FURNISHED:
Joseph W. Lawrence, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Thomas L. Powell, Esquire
211 East Call Street Tallahassee, Florida 32302
Dorothy Faircloth, Executive Director Board of Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Samuel R. Shorstein, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
BEFORE THE BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO. 81-1609
ROBERT H. WRAY, M. D.,
License No. 11891,
Respondent,
/
ORDER
This matter came before the Board of Medical Examiners (Board hereinafter) on October 9, 1983, in Amelia Island, Florida, pursuant to the August 15, 1983, Mandate and July 8, 1983, Opinion of the First District Court of Appeal in the case of Robert B. Wray, M.D. v. Department of Professional Regulation, Board of Medical Examiners, So.2d (Fla. 1st DCA, Case No. AQ-2l5, Opinion issued July 8, 1983), for the purpose of reconsidering the penalty imposed upon Respondent. The Petitioner was represented by Joseph W. Lawrence, II, Esquire. The Respondent appeared on his own behalf. After a review of the First District Court's Opinion, the complete record from the administrative proceedings, the argument of the parties, and being otherwise advised in the premises, the Board makes the following findings and conclusions.
FINDINGS OF FACT
On May 13, 1981, the Department filed a three (3) count Administrative Complaint against the Respondent charging him with violations of Sections 458.1201(1)(h), (k) and (m), Florida Statutes (Supp. 1978).
The hearing officer concluded there was sufficient substantial evidence to establish violations of Section 458.1201(1)(m), Florida Statutes (Count II), and Section 458.1201(1)(k), Florida Statutes (Count III), and recommendsd that Respondent obtain continuing education and that his practice be monitored for one year. The Board adopted the hearing officer's findings of fact and conclusions of law in toto. The Board rejected the hearing officer's recommended penalty and instead reprimanded Respondent and placed his license on probation for two (2) years subject to the conditions that he make semi-annual appearances before the Board and that he perform one hundred and twenty-five
(125) hours per year of community service.
On appeal, the First District found sufficient substantial evidence to sustain the Board's finding of a violation of Section 458.1201(1)(k), Florida Statutes (Count III). However, the Court reversed the Board's finding of guilt
on Count II and remanded the matter to the Board for reconsideration of the penalty to be imposed for the violation under Count III.
The Board finds that Respondent presented sufficient persuasive reasons why this Board should modify the penalty it previously imposed in its December 17, 1982, Order.
CONCLUSIONS OF LAW
The Board has jurisdiction over this matter pursuant to the August 15, 1983, Mandate and July 8, 1983. Opinion of the First District Court of Appeal in the case of Robert B. Wray v. Department of Professional Reulation. Board of Medical Examiners, So.2d (Fla. 1st DCA, Case No. AQ-215,Opinion issued July 8, 1983).
The Board concludes that in vies of the nature of the sole violation found to have been proven by the Court, the penalty previously imposed on Respondent is inappropriate and the penalty imposed by the Board in its December 17, 1982, Order is modified to only a letter of caution.
There is competent, substantial evidence to support the Board's findings and conclusions.
WHEREFORE, it is ORDERED AND ADJUDGED that the penalty originally imposed upon the Respondent in the Board's December 17, 1982, Order in the matter of Department of Professional Regulation v. Robert H. Wray, M.D., DOAH Case No. 81- 1609, is modified and the sole penalty to be imposed upon Respondent for the the violation proven is a letter of caution.
| Issue Date | Proceedings |
|---|---|
| Oct. 27, 1983 | Final Order filed. |
| Nov. 12, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 24, 1983 | Agency Final Order | |
| Nov. 12, 1982 | Recommended Order | Respondent is guilty of isolated malpractice drug dispensing violations and technical violation in failing to renew drug certificate. |
TITESHEIA SHERMAN | T. S. vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 81-001609 (1981)
DIVISION OF REAL ESTATE vs. ANDREW R. MILLER, 81-001609 (1981)
LEWIS J. MCLEAN vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 81-001609 (1981)
MELVIN ROBINSON vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 81-001609 (1981)
