STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2114

)

NEIL SAGER, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for Administrative Hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on March 23, 1983, in Jacksonville, Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Lacy Mahon, Jr., Esquire

350 E. Adams Street Jacksonville, Florida 32202

This cause was initiated on an Administrative Complaint filed against the Respondent alleging that he has violated Section 459.015(1)(aa) for pre-signing blank prescriptions forms; Section 459.015(1)(h), Florida Statutes, by failing to perform a statutory or legal obligation as a licensed osteopathic physician. It is alleged that the Respondent aided, assisted, procured or advised unlicensed persons to practice osteopathic medicine by providing pre-signed prescription forms for use by unlicensed clinic personnel in violation of Section 459.015(1)(g). It is further alleged that the Respondent delegated to persons duties which the Respondent knew the person was professionally unqualified to perform, contrary to Subsection (1)(w). Finally, it is charged, pursuant to Subsection (1)(h), that the Respondent is guilty of gross malpractice by failing to practice medicine with the level of care recognized by reasonably prudent, osteopathic physicians as being acceptable under similar conditions and circumstances. Specifically, it is charged that the legal obligation the Respondent failed to perform was an alleged failure to complete prescription forms which he had pre-signed and that unlicensed, unqualified personnel were permitted to prescribe medications and used pre-signed prescription forms. Additionally, it is alleged in essence that the Respondent aided or advised unlicensed persons to practice osteopathic medicine by providing pre-signed prescription forms for use by those unlicensed clinical

personnel and by allowing those personnel to prescribe medication and perform pre-abortion counseling.

Petitioner offered Exhibits 1 through 8 into evidence, and Petitioner's Exhibits 1 through 6, as well as Exhibit 8, were received into evidence.

Petitioner's Exhibit was offered but not received after hearing argument from counsel regarding the Respondent's objection thereto. The substance of Petitioner's Exhibit 7 was proffered in evidence by the Petitioner. The Petitioner also presented four witnesses in support of its allegations.

The Respondent presented Exhibits A through F, and all were received into evidence. The Respondent also presented the testimony of the Respondent himself, and in addition presented the testimony of Holly Miller, a Petitioner's witness, on behalf of the Respondent. The issue to be resolved in this proceeding concerns whether the acts charged against the Respondent were actually committed and, if so, whether a suspension, revocation. or other disciplinary action predicated on the facts alleged in the Administrative Complaint is warranted.

At the conclusion of the proceeding, the parties requested the benefit of a transcript of the proceeding and requested an extended period to file proposed findings of fact and conclusion of law and a memorandum, concomitantly waiving the requirements of Rule 28-5.402, Florida Administrative Code.

All proposed findings of fact and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein, they have been accepted, and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited.

FINDINGS OF FACT

1. The Respondent is a licensed osteopathic physician appropriately licensed to practice osteopathic medicine and surgery in the State of Florida,

   .having been issued license number OS 0003505 on August 19, 1974.

   
   

2. The Petitioner is an agency of the State of Florida charged, pursuant to Chapter 459, Florida Statutes, with licensure of and regulation of the standards of licensure and practice of osteopathic physicians in the State of Florida.

   
   

3. The Respondent was engaged to perform abortion procedures two days per week and to supervise a registered family planning nurse practitioner who provided family planning counseling service for the All Women's Health Center clinic. The family planning counseling service was operated at all times pertinent hereto by Ester Sangster Rose. Nurse Rose is a graduate family planning nurse practitioner, appropriately licensed as such by the Florida Board of Nursing. Nurse Rose, pursuant to a "written protocol" between herself and the Respondent, counseled patients desiring family planning services concerning birth control methods and family planning generally. Nurse Rose delivered prescriptions for oral contraceptives, which had previously been signed by the Respondent, and managed these patients during the course of their oral

   contraceptive therapy. These efforts by Nurse Rose were at the direction and supervision of the Respondent both during his presence and through the formal, written protocol established between the Respondent and Nurse Rose. Only Nurse Rose utilized the pre-signed oral contraceptive prescriptions, which contained the medication dosage, but only were lacking the patient's name and address, for Nurse Rose to supply upon her counseling with a particular patient.

   
   

4. The protocol between Nurse Rose and the Respondent established definite, written, detailed procedures under which she was to operate. For instance, oral contraceptives could only be selectively prescribed at the discretion of the family planning nurse practitioner (Rose) after careful screening of the patient and a determination that some 19 conditions or problems were absent in the patient. Further, after initiating the oral contraceptive therapy, if the patient developed any symptomology related to taking them at all, then the family planning nurse practitioner (FPNP) would be required to refer the patient to the physician. The symptomology initiating that procedure is listed specifically in the protocol, consisting of headaches, elevated blood pressure, depression, mood swings, and leg cramping. Further, the method of dosage is specified in detail, as well as appropriate procedures to follow in the event pregnancy is suspected during the patient's course of taking oral contraceptives. Additionally, detailed instructions are provided concerning: insertion of intrauterine devices, which FPNP's may perform, and their appropriate indication for removal; instructions for the fitting and prescriptions of diaphragms and their removal; and the prescription of medications for minor infections observed during the course of contraceptive management of patients. Finally, the FPNP was instructed in the protocol to refer all patients exhibiting any abnormal finding which might affect their contraceptive management directly to the physician and the same is true of any gynecological problems observed. It has not been demonstrated that Nurse Rose, or the Respondent for that matter, departed whatever from this protocol.

   
   

5. Although the Respondent frequently did not see an abortion patient until the day of the proposed abortion, each patient was thoroughly, physically examined by the Respondent and a complete and full medical history reviewed before any abortion procedure was performed. No abortion procedure was performed on patients advanced beyond the 14th week of pregnancy. An extensive interview of the patient was conducted both by the Respondent and by registered medical assistant Holly Miller. Holly Miller did pre-abortion counseling to the extent that she explained to patients what to expect before and after the abortion and took a standard type of medical history. She did not, however, engage in any sort of medical practice concerning advice to abortion patients.

   
   

6. The Respondent was contract physician and had no ownership interest in the clinic, nor any employer/employee relationship with the other personnel in the clinic. His supervisory duties only extended to supervising the registered FPNP with regard to the family planning clinic and the nurse or registered medical assistant who assisted him with specific abortion procedures. No personnel of the clinic performed any diagnosis, treatment, operation or prescription for any symptomology or condition for any patient in a manner outside of the direct supervision of the Respondent, or his written protocol in the case of Nurse Rose, the FPNP. Appropriate blood tests, urinalysis and eliciting of medical history was performed by the registered medical assistant. Only Nurse Rose used pre-signed oral contraceptive prescriptions. When a patient came In for abortion consultation or for an abortion itself, either Holly Miller or Nurse Reeder would take a history and advise the patient of pertinent information about what to expect concerning the abortion, both before and after the procedure was done. Neither of them advised the patient on

   whether to have the abortion performed or not and all information elicited was given to the doctor prior to the abortion procedure.

   
   

7. In addition to the pre-signed prescriptions for oral contraceptives used in the family planning clinic by the registered FPNP, Mrs. Rose, there were a limited quantity of Respondent's pre-signed prescriptions for various antibiotics and a mild analgesic, Wygesic, a "schedule four controlled substance," which were prescribed to patients in conjunction with the abortion procedures performed. None of these prescriptions (other than the oral contraceptives prescribed by the family planning practitioner) were given to any patient in a manner other than under direct supervision of the Respondent in conjunction with the abortion procedures. The Respondent would direct the nurse or medical assistant to give the patient the particular prescription. He would then chart that dispensation of medication himself. It was shown, however, that these pre-signed prescriptions were maintained in a locked cabinet at the clinic at times when the Respondent was not present or using them and when other personnel had access to them.

   
   

8. The registered family planning practitioner only dispensed, in addition to oral contraceptives, a few antibiotics and Methergine, which were appropriately in the course of her family planning practitioner's authorized therapy pursuant to the authority cited below, as well as the written protocol established between herself and the Respondent. The protocol initiated by the Respondent with the family planning practitioner, Ms. Rose, was an appropriate protocol in the context of the authority cited below and reasonably prudent medical practice. Dr. Sager has had significant experience in creating such proper drug and treatment protocols especially by teaching proper protocol procedure between nurses and physicians in the course of his teaching and residency program at the University of Florida Medical School.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this dispute. Section 120.57(1), Florida Statutes (1981).

   
   

10. The Respondent is charged with having violated Subsections 459.015(1)(g), (h), (t) and (w), Florida Statutes (1981). Subsection 459.015(2), Florida Statutes (1981), empowers the Board of Osteopathic Medical Examiners to impose disciplinary action, upon a finding of guilt, by revocation or suspension of license, restrictions of practice, or an imposition of an administrative fine not to exceed $1,000 for each count or separate offense. Subsections 459.015(1)(g), (h), (t), and (w) provide as follows:

    
    

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

       * * *

       1. Aiding, assisting, procuring, or advising any unlicensed person to practice osteopathic medicine contrary to this chapter or to a rule of the department or the board.

       2. Failing to perform any statutory or legal obligation placed upon a licensed osteopathic physician.

       * * *

       (t) Gross or repeated malpractice or the fail- ure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteo- pathic physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.

       * * *

       (w) Delegating professional responsibilities to a person when the licensee delegating such

       responsibilities knows or has reason to know that such person is not qualified by training, exper- ience, or licensure to perform them.

       
       

11. It must be concluded at the outset that the charge under Count IV related to alleged violation of Subsection (t) above has not been substantiated. The Petitioner relied solely on the deposition of Dr. Crane, of Tallahassee, as an expert witness to demonstrate gross malpractice or the Respondent's failure to practice osteopathic medicine with that level of care skill and treatment recognized by reasonably prudent similar osteopathic physicians as being acceptable under similar conditions and circumstances. The Respondent's counsel was only given two day's notice of the deposition and was unable to attend upon that date, although Respondent's counsel attempted to accommodate Petitioner's counsel and offered to attend the deposition In Tallahassee (Respondent was located in Jacksonville) on the intervening Saturday or Sunday, which Petitioner's counsel refused to do. Because Rule 1.310 of the Florida Rules of Civil Procedure requires reasonable notice of such deposition to be in writing and inasmuch as the Hearing Officer found that the notice of deposition was neither reasonable in terms of timeliness nor was there written notice, the deposition was excluded; consequently no evidence has been offered to substantiate the charges related to Paragraph (t) of Subsection 459.015(1), therefore that count should be dismissed.

    
    

    Section 464.012, provides pertinently as follows:

    1. Any nurse desiring to be certified as an advanced registered nurse practitioner shall apply to the department and submit proof that he holds a current license to practice profes- sional nursing and that he meets one or more of the following requirements as determined by the board:

       * * *

       (d) Family planning practice nurse practitioner.

       * * *

       1. An advanced registered nurse practitioner shall perform those functions authorized in this section within the framework of an established protocol. A practitioner currently licensed under chapter 458, chapter 459, or Chapter 466 shall maintain supervision for directing the specific course of medical treatment. Within

          the established framework, an advanced registered nurse practitioner may:

          1. Monitor and alter drug therapies.

          2. Initiate appropriate therapies for certain conditions.

          3. Perform additional functions as may

             be determined by rule in accordance with s. 464.003(3)(c)

       2. In addition to the general functions specified in subsection (3), an advanced registered nurse practitioner may perform the following acts within his specialty:

       * * *

       1. The family-planning nurse practitioner may provide family-planning services.

       
       

12. Additionally, Section 464.003, the definition section, provides pertinently as follows:

    
    

    (c) "Advanced or specialized nursing practice" means, in addition to the practice of professional nursing, the performance of advanced-level nursing acts approved by the board which, by virtue of cost-basic specialized education ,training, and experience, are proper to be performed by an advanced registered nurse practitioner. Within the context of advanced or specialized nursing

    practice, the advanced registered nurse practitioner may perform acts of nursing diagnosis and nursing treatment of alterations of the health status.

    The advanced registered nurse practitioner may also perform acts of medical diagnosis and treat- ment, prescription, and operation which are identified and approved by a joint committee composed of three members of the Board of

    Nursing . . . The Board of Nursing shall adopt rules authorizing the performance of

    any such acts approved by the joint committee. Unless otherwise specified by the joint com- mittee, such acts shall be performed under

    the general supervision of a practitioner licensed under chapter 458, chapter 459, or chapter 466 within the framework of standing protocols which identify the medical acts to be performed and the conditions for their performance.

    
    

13. Rule 210-11.22, Florida Administrative Code, promulgated pursuant to Section 464.003(3)(c), provides at Subsection (6):

    
    

    The provision of family planning services under s.464.012(4)(d), F.S., by an advanced registered nurse practitioner certified in the category of family planning nurse practi- tioner shall include but is not limited to:

    1. Insertion/removal of intrauterine device.

    2. Fitting of diaphragm.

    3. Management of patients on oral contraceptive therapy.

    
    

14. Given the above authority and Findings of Fact, it cannot be concluded that Ester Rose, who is a licensed advanced registered nurse practitioner,

    certified in the category of "family planning nurse practitioner," was not legally permitted to "manage" patients with regard to family planning procedures, including management of oral contraceptive therapy and giving appropriate prescriptions, especially in view of the protocol in evidence as Respondent's Exhibit E. The Hearing Officer concludes that that protocol comports with the protocol required in the above authority. There was no preponderant evidence to show that the Respondent also had improperly delegated professional responsibilities to unqualified persons for purposes of Count III with regard to those persons who performed pre-abortion "counseling." There has been no showing that those persons are required to be licensed personnel and the "counseling" that was done merely consisted of taking a medical history and discussing with the potential patient what to expect before and after an abortion procedure. The counseling included no advice regarding the patient's decision as to whether or not to undergo an abortion procedure. Thus, petitioner's evidence failed to establish that nurse practitioner Rose was not properly licensed and qualified and failed to establish any rule or statute requiring licensure of persons who perform pre-abortion "counseling," nor any other requirements for such persons to comply with in the performance of such "counseling."

    
    

15. With regard to Count II, Petitioner has not proven by a preponderance of the evidence that Respondent aided, assisted, procured or advised unlicensed persons to practice osteopathic medicine. It was established that the only pre- signed prescriptions used, other than under the direct supervision and presence of the Respondent, were those prescriptions for oral contraceptives used in the family planning clinic by Nurse Rose, the registered family planning nurse practitioner. This use by the nurse practitioner was authorized by the authority cited herein and thus the violation enumerated in Count II of the Administrative Complaint has not been substantiated.

    
    

16. It was proven that the Respondent is technically in violation of Section 459.015(1)(h) , Florida Statutes, for failing to perform a statutory or legal obligation placed upon a licensed osteopathic physician in that he did pre-sign blank prescription forms in violation of Section 459.015(1)(aa). While it is true that these prescription forms were shown to be used under his direction, it is also true that various medications and especially a mild analgesic (Wygesic), a "schedule four drug," were drugs for which prescriptions were pre-signed. Even though the Respondent only allowed use of these pre- signed prescription forms under his direct supervision, the evidence reveals that a limited quantity of these prescriptions were maintained in a locked cabinet during times when the Respondent was not actually present on the premises of the clinic where the related abortion procedures were performed and

    that other persons had access to that cabinet. It was not established, however, that personnel at the clinic dispensed medications without written prescriptions, as was also charged in Count I, nor was it established that inappropriate personnel performed pre-abortion counseling. Finally, there was no demonstration by the Petitioner that any of the medical practice and procedures used for the abortion patients failed to measure up to the level of osteopathic medical practice, skill, care and treatment recognized to be required by reasonably prudent similar osteopathic physicians as being acceptable under similar conditions and circumstances.

    
    

17. Thus, it is concluded that the Respondent is guilty of a technical violation of sections 459.615(1)(aa) and (h), Florida Statutes. Since there is no evidence to show that any other disciplinary action has been taken against the Respondent and since no patients have shown to have suffered as any consequence of the Respondent's actions, a minimal penalty is warranted.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, it is

RECOMMENDED:

That the Respondent, Neil Sager, D.O., be found guilty of violating Subsection 459.015(1)(h) and Subsection 459.015(1)(aa), Florida Statutes (1981), and that the Board of Osteopathic Medical Examiners impose the penalty of a two- week suspension.

DONE and ENTERED this 19th day of September, 1983, 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 19th day of September, 1983.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Lacy Mahon, Jr., Esquire

350 E. Adams Street Jacksonville, Florida 32202

Dorothy Faircloth, Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NOS. 0019497 (DPR)

82-2114 (DOAH)

NEIL SAGER, D.O., LICENSE NO. 0003505

Respondent,

/

FINAL ORDER

THIS MATTER came before the Board of Osteopathic Medical Examiners pursuant to Section 120.57(1)(b)9., Florida Statutes (1981), on December 10, 1983, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer in the case of Department of Professional Regulation vs. Neil Sager, D.O., Case Nos. 0019497 and 82-2114, and the objections filed by Respondent.

The Petitioner was represented by James H. Gillis, Esquire. The Respondent was represented by Lacy Mahon, Jr., Esquire. At the hearing before the Board, counsel for Respondent waived objection to the conclusion of law that he had committed a technical violation of Section 459.015(1)(h), Florida Statutes (1981) in conjunction with Section 459.015(1)(aa), Florida Statutes (1981), by pre-signing preprinted prescription forms.

Upon consideration of the hearing officer's Recommended Order, the Objections, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings.

FINDINGS OF FACT

1. The hearing officer's findings of fact are hereby approved and adopted in toto.

   
   

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

   
   

   CONCLUSIONS OF LAW

   
   

3. The hearing officer's conclusions of law, are hereby approved and adopted in toto.

   
   

4. The hearing officer's recommended penalty is rejected as being inappropriate under the circumstances of this case.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

1. Respondent was given an oral reprimand.

   
   

2. Respondent shall be, and hereby is, given a written reprimand.

   
   

3. Respondent shall attend a course on proper management and control of controlled substances, if such a course is available in Florida.

   
   

4. Respondent shall pay an administrative fine of five hundred dollars ($500) to the Executive Director of the Board within thirty (30) days of the filing of this Final Order.

   
   

5. Two years from the date of the filing of this Final Order, Respondent shall appear before the Board to report on the status of his practice of osteopathic medicine. If the Board finds that no further violations of the laws and rules have occurred and Respondent has complied with the terms of this Final Order, the written reprimand shall be removed from Respondent's record.

DONE AND ORDERED this 4th day of January, 1984.

Morton T. Smith, D.O. Vice Chairman

Board of Osteopathic Medical Examiners

cc: James H. Gillis, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Lacy Mahon, Jr., Esquire

350 East Adams Street Jacksonville, Florida 32202

Neil Sager, D.O.

4131 University Boulevard South Building 16

Jacksonville, Florida 32216

Docket for Case No: 82-002114

Orders for Case No: 82-002114