STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1653
)
ADOLPH B. CONE, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative held before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on March 12, 1982, in Jacksonville, Florida.
APPEARANCES
For Petitioner: Joseph W. Lawrence, II, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Lacy Mahon, Jr., Esquire
350 East Adams Street Jacksonville, Florida 32202
An Administrative Complaint was filed against the Respondent, Adolph B. Cone, M.D., charging him with violation of Chapter 458, Florida Statutes.
Specifically, it is alleged that the Respondent is guilty of being unable to practice medicine with reasonable skill and safety to patients by reason of illness or alcohol, drugs, narcotics, chemicals, or as a result of physical or mental condition in violation of Section 458.331(1)(s), Florida Statutes. It is alleged that the Respondent prescribed or dispensed controlled substances other than in the course of his professional practice, failing to prescribe or dispense controlled substances in good faith or in the course of his professional practice, an alleged violation of Section 458.331(1)(h), Florida Statutes. Additionally it is alleged that the Respondent engaged in deceptive, untrue or fraudulent representations in the practice of medicine, employing a trick or scheme in the practice of medicine, an alleged violation of Section 458.331(1)(l) Florida Statutes. It is further alleged that he engaged in the practice of exercising influence within his patient-physician relationship for the purposes of engaging his patient in sexual activity, an alleged violation of Section 458.331(1)(k), Florida Statutes. Finally, it is alleged that he is guilty of gross or repeated malpractice or failing 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. Section 458.331(1)(t), Florida Statutes.
In support of its allegations in the Administrative Complaint, the Petitioner presented the testimony of a former law enforcement officer, Drew Rose Warrener, a former employee and medical assistant of the Respondent, one Marcelle P. Alford Nolan and two medical physicians, Dr. S. J. Alford, Jr. and Dr. Joseph Virzi. The Respondent presented his own testimony as well as Exhibits A through F. Exhibits A, B, D and E were received into evidence on the Respondent's behalf. Exhibit B, admitted on behalf of the Respondent, was admitted to the extent that it is an accurate representation of the words and sounds of the tape-recording admitted as Respondent's Exhibit A. Petitioner's Exhibits 1 through 4 were received into evidence.
At the conclusion of the Petitioner's case, Counts 7 and 8 of the Administrative Complaint were voluntarily dismissed. Inasmuch as the Petitioner had already tried its portion of the case against the Respondent, the dismissal of these counts was with prejudice. At the conclusion of the proceeding, the parties requested a transcript of the record and an extended briefing schedule, in conjunction therewith waiving the 30 day requirement for rendition of the Recommended Order contained in Rule 28-5.402, Florida Administrative Coda.
The issue for determination in this proceeding concerns whether disciplinary action should be taken against the Respondent in his licensure status as a physician for the specific reasons alleged in the Administrative Complaint and if so, to what extent should such disciplinary action be taken.
FINDINGS OF FACT
The Respondent, Adolph B. Cone, at all times pertinent to these proceedings, held a medical doctor's license issued by the Petitioner, valid in the State of Florida.
The Petitioner is a regulatory agency charged with the licensing, regulation and disciplining of those persons licensed to practice medicine in the State of Florida.
The Respondent, at all time material hereto, has been engaged in the general practice of medicine at Jacksonville Beach, Florida. The Respondent has resided in Jacksonville Beach, Florida, since 1939, and has been licensed to practice medicine in the State of Florida for 43 years. He is 69 years of age, divorced and the father of 4 children, the oldest of whom is 22 years of age and attending the University of Florida Medical School, and the youngest of whom is gravely ill with cancer (hemangiocytoma). The Respondent continues to maintain his medical practice and contributes substantially to the support of his children.
On or about January 21, 1971, a Final Order was entered by the Board of Medical Examiners suspending the Respondents license to practice medicine until such time as he could demonstrate his competency to resume active practice. In connection with that disciplinary proceeding, Joseph Virzi, M.D. first encountered Dr. Cone as a psychiatric patient in November of 1970, when the Respondent was an inpatient at Memorial Hospital in Jacksonville, Florida. By Final Order dated July 31, 1972, the Board of Medical Examiners reinstated Dr. Cone's license on a 5 year probationary status, with one of the stipulated conditions being that he continue medical treatment under the direction of Dr. Virzi. Dr. Virzi at first treated Dr. Cone as a psychiatric patient in November of 1970, when he was at Memorial Hospital in Jacksonville due to depression, and overuse of alcohol. An additional proceeding was instituted against the doctor
which culminated in a Final Order of the Board on January 31, 1973, placing his license on a 5 year probationary status, with the condition that the first 12 months of that term of the licensee would be limited to supervised practice of medicine under the personal supervision of a physician and that he continue medical treatment under Dr. Virzi's direction. The allegations in the Administrative Complaint, culminating in that Final Order of January 31, 1973, involved the Respondent's alleged abuse of alcohol which allegations were upheld and found to be true in that Final Order.
Dr. Virzi continued his treatment of the Respondent as a patient and saw the patient for the last time in April of 1973. At the time Dr. Virzi discharged him, he felt that the Respondent had a characterological disorder, wherein he had difficulty accepting how he affects other people and difficulty in operating under stress with a tendency to become hostile and argumentative. Dr. Virzi found, however, that his depression at that time had been successively treated and he had undergone a complete recovery from his depression. Dr. Virzi felt that Dr. Cone had a problem with alcohol from 1970 to 1973. Dr. Virzi testified that in his opinion Dr. Cone suffers from alcoholism which is a chronic and recurrent disorder, but Dr. Virzi had not seen Dr. Cone since 1973, and could not testify regarding his more recent drinking habits and thus was unable to testify as to whether Dr. Cone has been impaired in his ability to safely and competently practice medicine due the abuse of alcohol or drugs. Similarly, although Dr. Virzi testified that Dr. Cone had a characterological disorder, his testimony was nonspecific in describing it as manifested by a suspicious nature, difficulty in personal relationships with others and a denial of any problem with alcohol. Dr. Virzi's testimony does not, within reasonable medical probability, relate any characterological disorder believed to exist in 1973 with any current impairment and with Dr. Cone's ability to safely and competently practice medicine. Subsequent to his treatment of the Respondent in 1973, Dr. Virzi, in 1973, opined that the Respondent was capable of resuming the practice of medicine at that time. It was Dr. Virzi's opinion in testifying in this proceeding, that if the Respondent does not drink or take drugs that would impair his mind, he would be able to practice medicine with reasonable skill and safety.
Dr. Virzi corroborated the testimony of Dr. Cone himself, establishing that Dr. Cone has suffered from hypoglycemia, which, according to Dr. Virzi, is a rather mild impairment, but if combined with alcohol would produce more severe temporary symptoms of mental impairment, such as decreased judgment and temporary impairment of memory. The injestion of alcohol during a hypoglycemic state tends to aggravate the overt symptoms caused by the alcohol's effect on the body according to Dr. Virzi. Dr. Virzi, however, was unable to testify that Dr. Cone had taken any alcohol either in or out of the course of his practice of medicine since he last saw him in 1973. He could only speculate that had he had such information regarding more recent use of alcohol it would be consistent with his 1973 diagnosis and prognosis. Such speculation cannot serve as the basis of a finding of fact that the Respondent has abused alcohol, within times pertinent to this Administrative Complaint.
The only other witness testifying regarding the issue of the Respondent's alleged abuse of alcohol was Marcelle P. Alford-Nolan. She was employed as a medical assistant in Dr. Cone's office from March, 1978, through March 1979. Ms. Nolan testified that she observed Dr. Cone intoxicated in his office on several occasions. She had, however, never observed him drinking an alcoholic beverage, but merely felt that he was under the influence of alcohol to one degree or another by observing his speech pattern, unsteady gait and general demeanor. It is established in the record, however, that during this
time he was also suffering from hypoglycemic reactions which produce similar symptoms involving unsteady gait, slurred speech and sometimes impaired memory or judgment. This witness did testify she saw the Respondent in possession of alcoholic beverages in a bottle during 1977 or 1978 (she could not specifically recall when), she never observed the Respondent actually consume any alcoholic beverages on the premises of his office or at any other location however. In short, there is insufficient proof to establish that the Respondent has consumed alcohol or used any controlled substances since 1973, aside from his own testimony that he took an occasional beer or wine and there is an absence of proof that the use of alcohol or controlled substances has had any effect on his practice of medicine. The Respondent's unrefuted testimony is that his hypoglycemia is under control at the present time and he has not had a reaction in approximately the last 6 months prior to the hearing.
On February 28, 1981, Drew Rose Warrener, an undercover law enforcement officer for the Duval County Sheriff's Office, made an appointment to visit Dr. Cone in his office at 4:00 p.m. that day. She appeared at Dr. Cone's office shortly prior to that time, using the name Joanne Wells. Dr. Cone was not at his office when she arrived and while she waited for him to arrive she filled out a patient information and patient history card. The patient history form included questions about her family, family illnesses or conditions as well as any illness or medical condition which she suffers or had suffered from in the past. When Mr. Cone arrived they proceeded into his medical office and she explained to Dr. Cone that she was having trouble with fatigue and staying awake in her job, that she was a dancer at a lounge and she wanted "something" (a medication) to help her dance better and stay awake. She informed the doctor that she actually had no health problems requiring treatment. Dr. Cone at first told her that he could not prescribe something for that reason, but in response to her entreaties he called a local pharmacy and inquired of the pharmacist regarding what drugs he could legally prescribe Ms. Warrener for "fatigue," questioning the pharmacist regarding which drugs were on, a "prohibited list." After consulting with the pharmacist, Dr. Cone ultimately determined that he could prescribe Ritalin and reluctantly prescribed her 15 Ritalin tablets on a non-refillable basis. Prior to prescribing the drug, he questioned her in some detail regarding her physical or medical condition and observed her appearance, her manner of speaking and her general condition, although he did not actually perform a physical examination before making the prescription. He did, as mentioned early, take a written and verbal patient history from Ms. Warrener prior to prescribing the Ritalin.
Prior to departing his office, Ms. Warrener and the Respondent entered into a discussion concerning her living arrangements with the Respondent informing her that he had a vacant apartment for rent which she might wish to look at. Accordingly, he invited her across the street from his office to his apartment house to look at the vacant apartment, with the view that she might wish to rent it. Ms. Warrener declined at that time, but promised to return a short time later. She then proceeded to a nearby pharmacy to fill the Ritalin prescription.
She filled the prescription at the pharmacy and then returned to Dr. Cone's medical office and was informed by his employee that he had returned home and she was directed to his apartment-house across the street. She was invited into the apartment by Dr. Cone and he proceeded to show her around the apartment, suggesting that she might be interested in living there. During the course of the conversation, Dr. Cone asked her certain questions concerning her life-style, occupation and living arrangements and suggested at one point in the conversation that she move into his apartment with him. She did not answer his
question to that effect directly, but responded that she was really interested at that time in obtaining some Preludin tablets. Dr. Cone repeatedly advised her against taking such drugs, warning her that it was not healthy to do so. He ultimately went, or made a pretext of going, to his bathroom and looking through his supply of medications, informing her that he had no Preludin. After approximately 30 minutes she informed him that she had to report to her job and so she left. At the point of leaving his apartment he informed her that he might be able to obtain some Preludin for her if she came back later that night.
On that same evening, at approximately 10:00 p.m., Ms. Warrener returned to Dr. Cone's apartment pursuant to his earlier invitation. As she was entering the door of his apartment he peered down the front of her blouse at her breasts which he commented upon in an admiring way. He showed her a bedroom which he offered to let her use and engaged in a conversation with her regarding her personal life, discussing to some extent her sex life, her supposed occupation as a dancer in a night club and her present living arrangements, as making a renewed offer to have her come live with him in his apartment. Dr. Cone never offered to give her drugs in return for sexual favors, but sexual ideas and inferences were expressed in his statements to her a number of times and her general response was that what she was really interested in was obtaining drugs, particularly Preludin. During the course of this visit, Dr. Cone showed her 4 pills which he described as Preludin and gave her 2 of them, although she requested all 4. These pills proved to be aspirin. During the course of this conversation, Dr. Cone repeatedly remonstrated with her concerning her ill-advised wish to obtain and take drugs. He informed her that he would give her the 2 Preludin (aspirin), but would give her no more. He finally relented to the extent of writing her a prescription for 24 Valium tablets. After receiving this prescription she left his apartment on the pretext that she had to return to her place of employment as a dancer. Dr. Cone conducted no physical or medical examination prior to prescribing the 24 Valium tablets and asked for and received no payment for this visit or prescription. Ms. Warrener was suffering no illness or condition for which Valium was medically indicated at the time.
Dr. S. J. Alford testifying on behalf of the Petitioner and qualified as a expert medical witness, established that Ritalin and Valium are scheduled controlled substances pursuant to Chapter 893, Florida Statutes. Valium is a short term drug used for nervousness, anxiety and a muscle relaxer. It is a depressant type of drug which can produce sleep. It should not be used in conjunction with Ritalin. A medical examination should be performed prior to prescribing Valium which should consist of a full medical history as well as a physical examination, including examination of a patient's blood pressure, heart and lungs in order to detect any contraindications associated with the prescription, which can be dangerous for patients with certain physical conditions. Although Dr. Cone took a medical history of Drew Warrener that day, and visually examined her, listened intently to her conversation in order to check her emotional status, and observed her skin color, her conversation, tone of voice and general manner of talking, he failed to actually do an examination of blood pressure, heart or lungs which Dr. Alford established to be required by good medical practice prior to prescribing Valium.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The Petitioner has charged the Respondent with violations of Sections 458.33(1)(h), (k), (l), (q), (s) and (t), as well as Section 893.05(1), Florida Statutes. These statutory subsections provide pertinently as follows:
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.
Exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full and informed consent to sexual activity with his or her physician.
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 stan- dards of treatment in the medical community.
(q) 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 other- wise 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.
Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this para- graph, the department shall have, upon probable cause, authority to compel a physician to sub- mit to a mental or physical examination by physicians designated by the department. Failure of a physician to submit to such examination when so directed shall constitute an admission of the allegations against him, unless the failure was due to circumstances beyond his control, consequent upon which a default and final order may be entered without the taking of testimony or presentation
of evidence. A physician affected under this paragraph shall at reasonable inter- vals be afforded an opportunity to demon- strate that he can resume the competent practice of medicine with reasonable skill
and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by
the board shall be used against a physician in any other proceeding.
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. . .
Subsection 893.05(1), Florida Statutes, provides as follows: Practitioners and persons adminis-
tering controlled substances in their absence.
A practitioner, in good faith 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. . .
At the conclusion of its case, the Petitioner moved to dismiss Count 8 without prejudice inasmuch as the Petitioner was unable to produce the witness supportive of the charges contained in Count 8 of the Administrative Complaint. Count 8 should be dismissed for lack of proof but the dismissal should be with prejudice, inasmuch as the Petitioner had already put on its case against the Respondent and had rested. The Respondent should not be placed in jeopardy of having to defend against the same charges at a later time. Likewise, Count 7 was voluntarily dismissed for lack of proof. Count 7 should be dismissed with prejudice for the same reasons attributable to Count 8. Count 9 should be dismissed with prejudice as duplicitous of the other counts. Count 8, which was voluntarily dismissed, contains paragraphs 29 through 32, which were realleged in Count 9, thus, that much of Count 9 is duplicitous of a count already voluntarily dismissed. The remaining allegations of Count 9 are the same allegations contained in Count 1, to wit: paragraphs 3 through 12, which were realleged in Count 9. These allegations, paragraphs 3 through 12, are already realleged in Count 3 as sustaining the exact same charge which is alleged in Count 9, therefore Count 9 is duplicitous and should be dismissed in its entirety with prejudice.
The allegations contained in Count 1 relate to the Respondent's allegedly violating Section 458.331(1)(s), Florida Statutes, by being unable to practice medicine with reasonable skill and safety because of illness, use of alcohol or drugs, or as the result of a mental or physical condition. There has been absolutely no proof that the Respondent has been abusing medication as charged in paragraph 9 of Count 1. Further, although the evidence establishes that up until the last time D. Virzi saw the Respondent in April, 1973, he had had a history of excessive use of alcohol, there is no showing in this record by even a preponderance of the evidence, much less clear and convincing evidence, that the Respondent at the time of the hearing and at the times alleged in the Administrative Complaint is or was unable to practice medicine with reasonable
skill and safety to his patients because of the use of alcohol, nor as the result of any mental or physical condition. Dr. Virzi testified that the Respondent's depressed condition had been totally alleviated by the time of his last contact with the Respondent in 1973 and though he felt he had a characterological disorder at that time, he was unable to say with any definitiveness that that disorder manifested itself in any impairment of the ability to practice medicine with reasonable skill and safety at the times pertinent to this proceeding. Further, the Respondent's hypoglycemic condition, although it had been debilitating in a transitory way several times in the past, was shown to be under control and he had suffered no recent attacks or impairments of his physical or mental abilities as a result of that condition.
In summary, there was simply no showing by a preponderance of the evidence or by clear and convincing evidence that the Respondent is physically or psychologically incapable of practicing medicine at the present time or that he is addicted to alcohol or controlled substances at the present time and accordingly the charges contained in Count 1 have not been sustained.
Similarly, there has been a failure to present proof that the Respondent is guilty of violation of Section 458.331(1)(l), Florida Statutes, in that it has not been shown that he made deceptive or fraudulent representation in the practice of medicine or employed a trick or scheme in the practice of medicine. Although the medications were given by the Respondent to Drew Warrener, the Petitioner's agent, for improper reasons and without the course of his professional practice, the prescription of the medication to her was not done through the use of any deception or fraudulent representation, that is, both the Respondent and Ms. Warrener knew she was getting Valium and he voluntarily, although somewhat reluctantly gave her that prescription which was what he represented it to be and what she understood it to be at the time. Although he made various suggestions having sexual connotations to her, there is no evidence that he obtained sex in return for the prescription of the medication and the most that can be concluded is that he possibly hoped to become more intimate with her in the future. There was no showing that he made any deceptive, untrue or fraudulent representations to her in the course of their contact on the day in question and in the course of his arriving at a decision to prescribe 24 Valium tablets for her. Thus, no violation of Subsection (1) has been established.
The evidence does not establish that the Respondent exercised influence within the patient-physician relationship for the purposes of engaging a patient in sexual activity. The record clearly shows that the Respondent invited the Petitioner's agent, Drew Warrener, posing as night club dancer, Jo Wells, to come to his apartment first to look at a rental unit he had which he initially offered to rent her as a residence. The evidence clearly shows in the course of their conversations at the doctor's apartment on the afternoon and again at approximately 10:00 p.m. on the evening in question that he made various suggestions on the theme that she should move in with him rather than just be a mere "arms-length" tenant. He indeed made a number of suggestions of a sexual connotation, the overall theme of which was that he desired a more intimate relationship with Drew Warrener. It was clearly not established, however, that at the times in question he was engaged in a patient-physician relationship with Drew Warrener. She initially came to him freely admitting that she had no illness or health problem, but merely wanted a medication to help her "stay awake". He knew, and she knew, that she was not seeking to be his patient for the treatment or cure of an illness, disease or condition, but was merely seeking to use his capacity and profession as a physician to obtain drugs, which of course he ultimately assented to. When she received the Valium at his apartment sometime after 10:00 p.m. on the night in question, she had no
medical illness, disease, or condition which he was treating nor did she represent that she had. She did not view him as her physician for any form of treatment, nor did he view her as a patient for such purposes. This was merely a more "arms-length" transaction wherein she hope to obtain medication by being friendly to some degree to the doctor (or at least played that role) and he possibly hoped to attain an intimate relationship with her then or in the future. No dependent, fiduciary patient-physician relationship had been established and Subsection 458.331(1)(k) clearly envisions a violation to involve actions by a physician toward a patient-using the undue influence inherent in the dependency of a patient on her physician to extract sexual favors from her, hence the reason the subsection speaks of the presumption that a patient is, incapable of giving free, full and informed consent to sexual activity with his or her physician. No such situation existed here since no relationship with Ms. Warrener as the patient of Dr. Cone, on an ongoing basis, with an attendant opportunity to gain undue influence over her ability to consent to sexual activity, had ever been established.
His conversation, in which he had made various suggestions evidencing the hope of an intimate relationship with her, together with the Valium prescription, for which he received no money and, parenthetically, it should be noted no sexual favors either, although violative of the law and not in the proper course of his professional practice, is not violative of Subsection (k) because he was not exercising any influence within an existing patient relationship. His efforts at obtaining an intimate relationship with her were no different and no more legally reprehensible from that standpoint than countless other such transactions between men and women ,similarly situated. There can be no violation of Subsection (k) since no such relationship existed but, paradoxically, that is the very reason prescribing any drug to Ms. Warrener under such circumstances and on such an occasion is otherwise violative of the law and is clearly a violation of Subsection (q) of Section 458.331(1).
Section 458.331(1)(q) makes such prescribing of legend drug, including any controlled substance, other than in the course of a physician's professional practice a violation with the presumption that prescribing inappropriate quantities or inappropriate types of drugs or inappropriate prescription methods 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 unrefuted evidence adduced from Dr. Alford clearly establishes that the prescribing of 24 Valium on the same day that Ritalin were prescribed, is not in the best interest of a patient since Ritalin is a drug designed to stimulate a person past a normal fatigue point and Valium is drug acting as a depressant and muscle relaxer which relieves anxiety, nervousness and produce sleep, the two drugs tend to have opposing effects and it is certainly not within the course of the physician's professional practice to prescribe these drugs to the same person on the same day. Further, the record clearly establishes that Drew Warrener never represented that she had any medical condition for which Valium might be required nor did Dr. Cone perform any physical examination of heart, lungs or blood pressure to determine whether Valium might be contraindicated. Further, he prescribed the Valium on the basis of friendship or rather, more properly, hoped for friendship and demanded no compensation for the prescription of the Valium. That, together with the prescription issuance at his personal residence, at a late hour of the evening, after the conversation between the Respondent and Ms. Warrener containing a number of sexual references and inferences is clear and convincing evidence that this prescription was not in the course of Dr. Cone's professional practice and violative of Section 458.331(1)(q). The prescribing of medication in this way also clearly violates Section 893.05(1), Florida Statutes, delineated above and resultantly, also
represents a violation of Section 458.331(1)(h) in that Dr. Cone clearly failed to perform a statutory or legal obligation placed upon a licensed physician by virtue of the inherent violation of Section 893.05(1). This activity was only shown to have occurred one time, however, which clearly precludes any finding that he violated Section 458.331(1)(t), to the extent that it cannot as a matter of law be deemed to be gross or repeated malpractice.
In view of the fact that this was not demonstrated to be a recurrent pattern or course of conduct in Dr. Cones practice with only an isolated instance proven, outright revocation of his license is certainly not warranted by the evidence adduced. Howeveralso, in view of the fact that he has previously had his license suspended and placed on probationary status for a somewhat similar violation by the Final Order entered January 21, 1971, the conclusions reached in this case render the further conclusion inescapable that Dr. Cone has not sufficiently heeded the lessons that he derived from his earlier miscreant conduct and therefore a substantial penalty is warranted.
Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore
RECOMMENDED:
That Dr. Adolph Cone be found guilty of a violation of Section 458.331(1)(q), Florida Statutes, and that his license as a medical doctor be suspended for one (1) year, but with that suspension held in abeyance and a one
(1) year probationary term imposed in its stead provided the Respondent successfully completes, under close supervision of the board, a comprehensive continuing medical education course of the board's designation designed to further and sufficiently enlighten him on the appropriate prescribing, dispensing, administering, mixing and preparing of legend drugs, including controlled substances as a prerequisite to his reinstatement.
DONE and ENTERED this 29th 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 29th day of November, 1982.
COPIES FURNISHED:
Joseph W. Lawrence, II, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Lacy Mahon, Jr., Esquire
350 East Adams Street Jacksonville, Florida 32202
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
================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,
Petitioner,
vs. FOSH CASE NO. 81-1653
CASE NO. 8530
ADOLPH B. CONE, M.D.,
License No. 2225, 15 South First Street, Jacksonville, Florida 32250,
Respondent.
/
FINAL ORDER OF
THE BOARD OF MEDICAL EXAMINERS
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 February 12, 1983, in Tampa, 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 by the Respondent, Adolph B. Cone, M.D. A transcript of the proceedings is available, if necessary.
FINDINGS OF FACT
Following a review of the complete record, the Respondent's exceptions to the findings of fact contained in Paragraphs one (1) through four (4) of the Respondent's Objections to Findings of Fact and Conclusions of Law in Recommended Order are rejected inasmuch as the Hearing Officer's findings of fact are supported by competent substantial evidence.
Following a review of the complete record, the Board hereby adopts and incorporates by reference the findings of fact of the Hearing Officer.
CONCLUSIONS OF LAW
Following a review of the complete record the Board of Medical Examiners hereby rejects the conclusions of law of the Hearing Officer on page
16 of the Recommended Order which states that the Respondent is not guilty of violating Section 458.331(1)(t), Florida Statutes.
Petitioner's exceptions to the conclusions of law contained in Paragraphs one (1) of Petitioner's Exceptions to Recommended Order of the Hearing Officer are accepted and the Board finds that based upon the findings of fact found above, the Respondent did violate Section 458.331(1)(t), Florida Statutes.
The Respondent's exceptions to the conclusions of law contained in Paragraphs one (1), two (2), three (3) and five (5) of the Respondent's Objections to Findings of Fact and Conclusions of Law in 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 adopts and incorporates them herein by reference.
Petitioner's exception to the recommended penalty contained in Paragraph two (2) of Petitioner's Exceptions to Recommended Order of the Hearing Officer, and Respondent's exceptions to the recommended penalty contained in Paragraph five (5) of Respondent's Objections to Findings of Fact and Conclusions of Law in Recommended Order are found to be without merit and are rejected. Additionally, the Board hereby rejects in part and accepts in part the Recommendation of the hearing officer. Accordingly, based upon a review of the complete record by the Board, the Findings of Fact and the Modified Conclusions of Law, IT IS THEREFORE
ORDERED AND ADJUDGED that the license to practice medicine in the State of Florida of Adolph B. Cone, M.D., be and hereby is suspended for one (1) year, said suspension to be stayed and the Respondent's license to practice medicine be placed on probation for a period of five (5) years, subject to the following terms and conditions: that the Respondent shall make semiannual appearances before the Board; that the Respondent shall obtain at least fifty (50) hours of Category I, American Medical Association approved continuing medical education annually; that the Respondent obtain physical and psychiatric examinations by Board approved physicians immediately, and when requested by the Board during the probationary period; that the Respondent shall successfully complete, under close supervision of the Board, a comprehensive continuing medical education
course of the Board's designation designed to further and sufficiently enlighten him on the appropriate prescribing, dispensing, administering, mixing and preparing of legend drugs, including controlled substances; that in the event the Department, the Board or the Board's Probable Cause Panel find sufficient evidence to believe probable cause exists that Respondent has violated any of the conditions of probation as outlined above, Respondent's probation may be vacated and his license to practice medicine in the State of Florida subject to automatic immediate suspension, with further disciplinary proceedings pursuant to the Medical Practice Act, Chapter 458, F.S. In such event, Respondent shall have the right to an immediate hearing in accordance with Chapter 120 and 458, F.S., with regard to the facts upon which such determination of probable cause was predicated.
Additionally, Respondent was informed that during his period of probation, semiannual investigative reports will be, compiled concerning his compliance with the terms and conditions of this probation and the rules and statutes regulating the practice of medicine. Respondent orally waived confidentiality with regard to these reports and/or investigations relative to compliance therewith, thus permitting the Board to review and investigate during his term of probation, notwithstanding any statutory or rule provisions to the contrary.
This Order shall take effect on the date of filing. DONE AND ORDERED this 28th day of February, 1983.
BOARD OF MEDICAL EXAMINERS
By DOROTHY FAIRCLOTH
cc: All Counsel of Record.
Adolph B. Cone, M.D.
| Issue Date | Proceedings |
|---|---|
| Aug. 29, 1990 | Final Order filed. |
| Nov. 29, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 28, 1983 | Agency Final Order | |
| Nov. 29, 1982 | Recommended Order | Comprehensive continuing education courses on prescribing and monitoring for one-year probation for doctor who rescribed legend drugs other than in course of practice. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MICHAEL I. ROSE, M.D., 81-001653 (1981)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs NATHAN R. PERRY, JR., M.D., 81-001653 (1981)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs NATHAN R. PERRY, JR., M.D., 81-001653 (1981)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs DAVID W. WANG, M.D., 81-001653 (1981)
