STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2362

)

ALDEN SCHEWE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Marathon, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on March 24, 1982. Further proceedings were had on April 2, 1982, and May 6, 1983, on Plantation Key, Florida. The Division of Administrative Hearings received the final volume of the hearing transcript on July 10, 1983, and the original of Exhibit 3 on August 22, 1983. The parties are represented by counsel:

APPEARANCES

For Petitioner: Joel S. Fass, Esquire

626 North East 124th Street North Miami, Florida 33161

Alfred K. Frigola, Esquire Post Office Box 177 Marathon, Florida 33050

For Respondent: Ellis S. Rubin, Esquire and

S. Richard Kaplan, Esquire

265 North East 26th Terrace Miami, Florida 33137

By administrative complaint dated September 9, 1983, petitioner alleged that respondent, "a licensed physician having been issued license number ME 0018477 . . . prescribed and dispensed scheduled controlled substances to himself . . . [and so] violated Section 458.331(1)(r), Florida Statutes (1979)"; and that [r]espondent is unable to practice medicine with reasonable skill and safety to patients based upon his physical and/or mental condition .

. . [in violation of] Section 458.331(1)(s), Florida Statutes (1979).

Both parties filed posthearing submissions including proposed findings of fact which have been considered in preparation of the following findings of fact. These proposed findings have been adopted in large measure. To the extent they have not been, they have been rejected as unsupported by the evidence, immaterial, subordinate or cumulative.

FINDINGS OF FACT

1. Respondent Alden Craig Schewe is a 50-year-old, board certified surgeon who practiced in Pittsfield, Illinois, before relocating to Plantation Key, Florida, in 1973, where he joined the staff of what is now Mariners Hospital.

   He was originally licensed to practice in Florida in 1970, and the parties stipulated that he was licensed to practice medicine in Florida at all pertinent times.

   
   

   MISFORTUNES

   
   

2. Respondent had a series of accidents, beginning in 1976, that left him able to perform surgery, but which nevertheless caused painful injuries. At hearing Dr. Schewe recounted a "number of misfortunes." The first was an electrical shock from an auxiliary generator at his home which knocked him unconscious. He hurt his back as he fell. Later the same year, a 23-foot boat fell on him when a davit cable parted, injuring his left shoulder and his back. He was not hospitalized on either occasion, but he began taking pain killers.

   
   

3. Some time later Dr. Schewe was at the controls of a helicopter which plunged into the water shortly after taking off. He swam to shore unassisted. Still later he broke his foot when an engine was dropped on it. Finally, in 1978, he stepped through a rotten dock and injured his right shoulder.

   
   

   PILLS PRESCRIBED

   
   

4. Demerol or meperidine, T: Vol. I, p. 28, Vol II, p. 145, is a synthetic narcotic, an analgesic for relief of pain. Vol. I, p. 11. Percodan and Tylox are trade names for compounds that include a Class II narcotic. T: Vol. I, p. 33. Vol II, p. 173. They are very similar. The only difference between them may be that Tylox contains Tylenol, while Percodan contains aspirin. They are both "morphine derivatives. They contain an isomer of codeine called Oxycodone and will create a positive finding in the urine in the morphine or codeine screen." Vol. I, p. 12. These drugs are prescribed as pain relievers, and are occasionally used in weaning a heroin addict from heroin. T: Vol. I, p. 35.

   
   

5. On January 29, 1976, Dr. Schewe wrote a prescription for 100 Percodan tablets for himself for use "as directed." He wrote other prescriptions for 100 Percodan tablets for himself for use "as directed" on February 16, 1976, and March 16, 1976. On April 1, 1976, he wrote himself another prescription for 100 Percodan tablets. Dr. Schewe wrote additional prescriptions for 100 Percodan Tablets for himself for use "as directed" on April 22, 1976, on May 20, 1976, on June 10, 1976, on June 25, 1976, on July 19, 1976, on August 3, 1976, on August 30, 1976, on September 17, 1976, on October 7, 1976, on October 30, 1976, on November 15, 1976, on November 29, 1976, and on December 17, 1976. In all, Dr. Schewe prescribed 1700 Percodan tablets for himself in 1976.

   
   

6. At various times throughout 1976, respondent also wrote 15 prescriptions for himself for Demerol or meperidine. Three of these were marked "as directed," and three were marked "office use" or had the word "office" on the prescription form elsewhere than in the address blank.

7. The following year saw Dr. Schewe prescribe an additional 1700 Percodan tablets for himself. He wrote 100- tablet Percodan prescriptions for himself for use "as directed" on January 3, 1977, on January 14, 1977, on February 16, 1977, on March 17, 1977, on May 16, 1977, on June 30, 1977, on July 12, 1977, on July 28, 1977, on October 31, 1977, and on November 14, 1977. He also wrote 50- tablet Percodan prescriptions for himself for use "as directed" on April 27, 1977, on May 26, 1977, and on October 13, 1977. He wrote a prescription for himself for 50 Percodan tablets on May 11, 1977, on which he made the notation "office stock." "Office stock" was also written on prescriptions respondent wrote for himself on June 4, 1977, on June 13, 1977, on August 9, 1977, on August 26, 1977, and on September 1, 1977, each for 100 tablets.

   
   

8. At various times during 1977, respondent also wrote 10 prescriptions for himself for Demerol or meperidine. Three of these prescriptions had the notation "as directed", four had the notation "office stock" and one read "for med bag."

   
   

9. In 1977, DEA agents came to Mariners' Hospital to investigate, and the medical staff of the hospital met with respondent in or about December of 1977. He was asked why he had prescribed so many controlled substances for himself, and was advised that it was against the law to write such prescriptions for himself.

   
   

10. On March 7, 1978, on April 24, 1978, in May of 1978, in June of 1978 and on two other occasions in 1978, Dr. Halvor Leopoldo Franco wrote prescriptions for respondent for a total of 550 Percodan pills, after respondent told him that "he needed them for his chronic pain in his back or in his right shoulder, for his bursitis." Vol. II, p. 40. Dr. Franco is the anesthesiologist who regularly worked with respondent in surgery. He kept no medical records on Dr. Schewe because Dr. Schewe was not "an official patient of [his]." (Vol. II, p. 35)

    
    

11. During 1979, Dr. Schewe wrote Percodan prescriptions for himself and for his second wife, Judy. For himself he prescribed 100 tablets of Percodan on August 12, 1979, 100 tablets of Percodan on September 24, 1979, and 50 tablets of Percodan on October 24, 1979, all for use "as directed." Respondent prescribed 50 Percodan tablets for Mrs. Schewe on April 16, 1979, another 50 on June 16, 1979, and another 50 on July 18, 1979. Dr. Halvor Franco prescribed

    1. Percodan tablets for respondent in 1979. On June 26, 1979, and again on July 21, 1979, Dr. Franco prescribed 100 Percodan tablets for respondent as needed for bursitis of the right shoulder.

       
       

12. During the following year, Dr. Franco again prescribed Percodan tablets for respondent. On April 24, 1980, Dr. Franco wrote a 100-tablet prescription for Dr. Schewe for "acute pain in rt shoulder." On February 12, 1980, on August 6, 1980, and on November 21, 1980, Dr. Franco prescribed Tylox tablets for respondent Each prescription was for 100 tablets. The April and August prescriptions were ostensibly for "lumbar pain." On December 1, 1980, Dr. Ross prescribed 100 Tylox tablets for respondent. At various times during 1980, Dr. Schewe wrote Percodan and Tylox prescriptions for his wife.

    PILLS INGESTED

    
    

13. All of the foregoing prescriptions were filled by the Mariners Hospital pharmacy. Respondent took almost all of these pills. He may have given some away to indigent patients, as he testified, but the nurse who began working for him on June 24, 1974, and worked in the office he shared with three other physicians for three and a half years testified that she could not remember respondent ever dispensing Percodan. The Percodan and Demerol in the office were not obtained pursuant to Dr. Schewe's prescriptions, in any event. When the Percodan supply was replenished, moreover, it was in batches of "perhaps twenty-four..."

    
    

14. He might have given some Demerol to the son of a business associate who was addicted to cocaine or heroin. There was some testimony to that effect. But, by and large, respondent himself took the pills prescribed for him by himself and others, including the Percodan he prescribed for himself after July 1, 1979. The evidence was circumstantial but it was overwhelming.

    
    

15. Mrs. Schewe took some of the pills respondent prescribed for her. She was ill and in pain for some time. But she did not like the side effects of Tylox and told her physician so, at the time. Respondent took some of the Tylox pills he prescribed for his wife. She saw him do it. In fact, even though she saw him take these pills several times, she never saw him take Percodan or Tylox that he prescribed for himself. Vol. II, pp. 137 and 140.

    
    

16. Respondent never told Dr. Franco that he was getting Percodan or Tylox elsewhere when he made his repeated requests for prescriptions. Once, when he asked Dr. Ross for Tylox and Dr. Ross prescribed ten tablets, Dr. Schewe "refused because of the numbers, and [Dr. Ross] increased that number to 100 at his request." T: Vol. I, p. 17.

    
    

    PATIENTS' SAFETY

    
    

17. Dolores A. Morgan, a board-certified family practitioner with considerable experience and expertise in treating physicians with chemical dependency problems, testified that a functional addict is one who seems to function normally so long as he maintains a certain blood level of an addictive substance, such as oxycodone. When respondent voluntarily submitted to an evaluation by her, no oxycodone was detected in his system, but Dr. Morgan was nevertheless persuaded, principally because of what she took to be his evasiveness, that Dr. Schewe was an "impaired physician." Sanford Jacobson, a psychiatrist, disagreed.

    
    

18. More than one witness recalled Dr. Franco's expressing concern because Dr. Schewe's hands shook while he was operating. At hearing, however, Dr. Franco denied that he had ever seen respondent's hands shake or that he had ever told anybody that he had. Because the only testimony of shaking hands was hearsay to which timely objection was made, respondent's motion to strike was granted and there is no evidence to support a finding that Dr. Schewe's hands shook in surgery.

    
    

19. All the competent evidence was the other way. Fellow physicians and operating room nurses all said that they had never seen any indication that Dr. Schewe's abilities as a surgeon were in any way diminished. He performed surgery at something like the rate of 250 operations a year during the period in question, and at all hours of the day and night. There was no showing that

    respondent has ever made any error in the practice of medicine for any reason, on any patient other than himself.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Board of Medical Examiners is authorized to revoke or suspend a physician's license, impose a fine, issue a reprimand, place a physician on probation or restrict a physician's practice whenever a physician is shown to be guilty of "[p]rescribing, dispensing, or administering any medicinal drug appearing on any schedule set forth in Chapter 893 by the physician to himself, except one prescribed, dispensed or administered to the physician by another practitioner authorized to prescribe, dispense, or administer medicinal drugs," Section 458.331(1)(r), Florida Statutes (1981), or of "[b]eing 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 Section 458.331(1)(s), Florida Statutes (1981). The state law prohibition against physicians prescribing or dispensing scheduled drugs to themselves dates from July 1, 1979. Ch. 79-302, Laws of Florida (1979). Petitioner's motion for leave to amend to allege such conduct prior to that date as a basis for disciplinary action, on the theory that it was then (as now) prohibited by federal law, was denied at the hearing, without prejudice to the filing of a new administrative complaint on those grounds.

    
    

21. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d

    1. (Fla. 1979). License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d

    391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980)

    
    

22. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

    
    

23. The evidence clearly and convincingly established the allegations of count one. On three occasions after July 1, 1979, viz., August 12, 1979, September 24, 1979, and October 24, 1979, the respondent prescribed Percodan tablets for himself. Percodan contains oxycodone which is a scheduled drug, pursuant to Section 893.03(2)(a), Florida Statutes (1981). Respondent's testimony that he ingested none of these pills has been rejected as incredible in view of his long history of using the drug and its addictive properties.

    
    

24. Petitioner did not prove that respondent is or was unable to practice medicine with reasonable skill and safety to patients as alleged in count two of the administrative complaint.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for six (6) months and place him on probation thereafter for five (5) years.

DONE and ENTERED this 14th day of September, 1983, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 14th day of September, 1983.

COPIES FURNISHED:

Joel S. Fass, Esquire 626 N.E. 124th Street

North Miami, Florida 33161

Alfred K. Frigola, Esquire Post Office Box 177 Marathon, Florida 33050

Ellis S. Rubin, Esquire and

S. Richard Kaplan, Esquire

265 N.E. 26th Terrace Miami, Florida 33137

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Deborah J. Miller, Esquire Department of Professional

Regulation

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director

Department of Professional Regulation

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 81-2362

ALDEN CRAIG SCHEWE, M.D.

License No. 18477

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter came before the Board of Medical Examiners (Board hereinafter) pursuant to Section 120.57(1)(b)9, Florida Statutes, on October 9 1983, in Amelia Island, Florida, for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled matter. The Petitioner was represented by Joseph T. Lawrence II, Esquire. The Respondent was represented by S. Richard Kaplan, Esquire. After review of the Recommended Order, the argument of the parties, and after a review of the complete record in this matter, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The hearing officer's findings of fact are approved and adopted in toto and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence in the record to support the Board's findings of fact.

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated herein by reference.

2. There is competent, substantial evidence in the record to support the Board's conclusions of law.

   
   

3. The Board, after a review of the entire record, finds the hearing officer's recommended penalty to be inappropriate under the circumstances of this case and rejects the proposed penalty of a six (6) month suspension followed by five (5) years of probation.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent, Alden Craig Schewe, M.D., is found guilty of violating Section 458.331(1)(r), Florida Statutes, as charged in Count I of the Amended Administrative Complaint. The Florida medical license of the Respondent be and is hereby revoked. However, the revocation is stayed and Respondent's license is suspended until such time as he can demonstrate to the Board's satisfaction that he can practice medicine with reasonable skill and safety to his patient.

This Order becomes effective upon filing.

DONE AND ORDERED this 19th day of October, 1983.

Raul Valdes-Fauli, Jr., Esquire Chairman, Board of Medical Examiners

cc: All Counsel of Record Alden Craig Schewe, M.D.

Docket for Case No: 81-002362

Orders for Case No: 81-002362