STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2672

) NORMAN G. BECKER, JR., D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on January 13, 1982, in Orlando, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: James F. Page, Jr., Esquire

Post Office Box 3068 Orlando, Florida 32802

BACKGROUND

By Administrative Complaint dated September 29, 1981, Petitioner, Department of Professional Regulation, Board of Dentistry, has charged Respondent, Norman G. Becker, Jr., with having violated Subsections 466.028(1)(q) and (1)(z), Florida Statutes, for which disciplinary action against his dental license should be taken. Specifically, it is charged that

1. on or about September 8, 1980, Respondent wrote one William R. Northlick a prescription for Dimethyl Sulfoxide (DMSO) for relief of severe elbow pain; that DMSO was a legend drug available by prescription only pursuant to Section 500.1516, Florida Statutes (Supp. 1980); and that said act constituted a violation of Subsections 466.028(1)(q) and (1)(z), supra; and (2) Respondent wrote or telephoned on behalf of one Gary Weintz an undated prescription for DMSO to relieve pain due to "golfers elbow"; and that this act constituted a violation of the same aforesaid statutory provisions.

   Respondent disputed the allegations set forth in the Adninistrative Complaint and reouested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. The matter was transmitted by Petitioner to the Division of Administrative Hearings on October 28, 1981, with a request that a Hearino Officer be assigned to conduct a hearing. By Notice of Hearing dated November 23, 1981, the final hearing was scheduled for January 13, 1982, in Orlando, Florida.

   
   

   At the final hearing Petitioner presented the testimony of Nita Edington and William Kennedy and offered Petitioner's Exhibits 1-4, each of which was received into evidence. Respondent testified on his own behalf and presented the testimony of Dr. Neil G. Powell, Lisa Cox and Rebecca Duff and offered Respondent's Exhibits 1 and 2, both of which were received into evidence.

   
   

   The transcript of hearing was filed on February 3, 1982. Proposed findings of fact and conclusions of law were filed by Respondent and Petitioner on February 15 and 16, 1982, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant, not supported by competent and substantial evidence, or immaterial to the results reached.

   
   

   On November 20, 1981, Respondent filed a Motion to Dismiss and/or Strike from the Administrative Complaint paragraphs 6 and 7a of Count I and Count II in its entirety. A telephonic hearing with both parties was held on January 4, 1982. Thereafter, by Order dated January 7, 1982, paragraphs 6 and 7a of the Complaint were striken; the remainder of the Motion was denied. Remaining at issue is whether Respondent (1) wrote a prescription for DMSO in violation of the prohibition against practicing or offering to practice beyond the scope permitted by law, and (2) wrote or telephoned in a second prescription for DMSO, and in so doing, prescribed a legend drug other than in the course of his professional practice, and practiced or offered to nractice beyond the scope permitted by law.

   
   

   Based upon all the evidence, the following facts are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, Norman G. Becker, Jr., is a licensed dentist having been issued license number DN 0002281 by Petitioner, Department of Professional Regulation, Board of Dentistry. He has practiced dentistry in the State since 1958.

      
      

   2. On or about September 8, 1980, Respondent furnished one William R. Northlick, 101 North Grandview, Mount Dora, Florida, a written prescription for four-ounces of dimethvl sulfoxide (DMSO). Northlick had been a patient of Respondent for approximately ten years, had complained of severe elbow pain, and inquired as to the status of DMSO and where it could be obtained. Respondent told him it was available at a local drug store and advised he could try a small amount.

      
      

   3. At an undisclosed date in 1980, Respondent was approached by a professional golfer named Gary Weintz who commlained of golfers elbow and who asked about the availability of DMSO. Respondent is active in arranging golf functions on the Professional Golf Association-(PGA) tour and presumably met Weintz, uho is a member of the PGA, in that capacity. Respondent telephoned William Kennedy, a pharmacist at Thayer's Colonial Pharmacy in Orlando, Florida, and asked whether DMSO could be legally prescribed. Kennedy replied that he

      believed it permissible for Becker to assist Weintz in obtaining the drug and thereafter took a prescription for the same over the telephone. Before filling the prescription, Kennedy required Weintz to sign a patient release form acknowledging that DMSO was a veterinary product and releasing anyone from liability due to its use.

      
      

   4. Other than the two occasions referred to above, Becker has not prescribed DMSO at any time. He did not charge Northlick or Weintz for his assistance nor did he provide any follow-up care or treatment to either individual. Respondent has never personally used DMSO or applied it to any other patient or friend.

      
      

   5. Respondent has been a practicing dentist in Florida since 1958, and has lived in Winter Park, Florida, for the last eighteen years. His specialty is periodontics and he was the founder and first president of the Florida Society of Periodontics. He enjoys an excellent personal and professional reputation in the community. This was attested to by Dr. Neil G. Powell, immediate past president of the Florida Dental Association. Other than the present incident, Respondent's record has been exemplary, and he has never been subject to prior disciplinary action.

      
      

   6. Although Becker wrote the prescription for Northlick on a prescription pad, he did not consider it to be a prescription item". Rather, he considered it the same as when giving customers written instructions for obtaining water piks, electric toothbrushes and other non-prescription items. For this reason, he wrote the words "use as directed" on the prescription pad in lieu of the detailed instructions typically given when writing a normal prescription.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

      
      

   8. Subsection 466.028(1)(q), Florida Statutes, provides in part as follows:

      
      

      1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

         (q) Prescribing . . . a legend drug . . . other than in the course of a dentist's professional practice. . .

         
         

         Respondent is charged in Count II, inter alia, with having prescribed a legend drug (DMSO) to Gary Weintz other than in the course of his professional practice. Dimethyl sulfoxide became L legend drug effective October 1, 1980. Section 500.1516, Florida Statutes (Supp. 1980). In a pleading dated December 4, 1981, the Department has conceded that DMSO was characterized as a "new drug" prior to October 1, 1980. The Department has failed to establish that the prescription for Gary Weintz was telephoned in after October 1, 1980. This being so, the prohibition in Subsection 466.028(1)(q) does not apply to the

         .Weintz prescription, and that portion of Count II of the Administrative Complaint should be dismissed.

         
         

   9. Subsection 466.028(1)(z), Florida Statutes, prohibits the following

      act:

      (z) Practicing or offering to practice beyond the scope permitted by law or accepting and performing Professional responsibilities which the licensee knows or has reason to know that he is not competent to perform.

      
      

      Petitioner charges Respondent with having violated this statute on two occasions by prescribing DMSO to individuals in a manner beyond the scope permitted by law.

      
      

   10. The record discloses that Respondent did indeed twice prescribe the drug in 1980. Respondent readily acknowledged that in neither instance was the administering of the drug related to treatment of a patient in the ordinary and accepted practice of dentistry and clearly was not so intended. It is concluded, therefore, that Respondent is guilty, albeit unintentionally, of violating Subsection 466.028(1)(z), supra, as set forth in the Administrative Complaint.

       
       

   11. A private reprimand is appropriate given the nature of the acts, Respondent's lengthy unblemished record and his full and complete cooperation with the Board in this matter. The drugs in question were intended only to relieve "golfers elbow" and cannot be characterized as harmful. Moreover, Respondent did not intentionally violate the law, but genuinely believed the drug could be lawfully administered.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsection

466.028(1)(z), Florida Statutes, as charged in the Administrative Complaint and that the remaining charge in paragraph 11a be dismissed. It is further

RECOMMENDED that Respondent be issued a private reprimand.

DONE and ENTERED this 22nd day of February, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 22nd day of February, 1982.

COPIES FURNISHED:

Theodore R. Gay, Esquire

130 North Monroe Street Tallahassee, Florida 32301

James F. Page, Jr., Esquire

P.O. Box 3068

Orlando, Florida 32802

Salvatore A. Carpino, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002672

Orders for Case No: 81-002672