STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2182

)

ROBERT S. FAIRCLOTH, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on October 3, 1983, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Barbara K. Hobbs, Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Joel Miller, Esquire

500 Northeast Third Avenue Ft. Lauderdale, Florida

Petitioner, Department of Professional Regulation (Petitioner), has filed a twelve count Administrative Complaint charging Respondent with various violations of Chapter 458, Florida Statutes, relating to his treatment of his patients Hilda Bullard, Bill Caudill, and E. O. Walker. Further, Petitioner has charged Respondent with a violation of Section 458.331(1)(r), Florida Statutes, by virtue of his having allegedly prescribed controlled substances to himself.

Final hearing in this cause was scheduled October 3, 1983, by amended notice of hearing dated August 8, 1983. At the final hearing Petitioner called Mel Waxman and Dr. William Richman as his witnesses. Petitioner offered Petitioner's Exhibits 1-7, which were received in evidence. Respondent testified in his own behalf, and called William Weimer, Anatole Mizell, Jack Goodman, Dr. Bruce Jones, Dr. Evelyn Dayton, E. O. Walker, Bill Caudill and Dr. David Lang as his witnesses. Respondent offered no exhibits for inclusion in the record, but Hearing Officer's Exhibit 1 was marked and received.

Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the hearing officer. To the extent that those proposed findings of fact are not included in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Respondent is a licensed medical doctor, having been issued license number ME004427. Respondent maintains a general practice of medicine in Fort Lauderdale, Broward County, Florida.

   
   

2. The parties have stipulated that the following are Schedule II Controlled Substances pursuant to Chapter 893, Florida Statutes: dilaudid; tuinal; percodan; dexedrine; quaalude; and seconal.

   
   

   COUNTS I - III (HILDA BULLARD)

   
   

3. In early 1981, Anatole Mizell had been employed as a medical assistant in Respondent's office for approximately two years. In early 1981, she approached Respondent and explained to him that her mother, who was a resident of the Bahamas, had been diagnosed as having terminal cancer. Ms. Mizell explained to Respondent that physicians in the Bahamas had prescribed dilaudid to relieve her mother's pain, but that dilaudid was much more expensive in the Bahamas than in the United States. As a result, Ms. Mizell requested that Respondent write prescriptions for dilaudid in the United States which she could then have filled for use by her mother in the Bahamas. As a result of this conversation, Respondent, without ever having examined either Ms. Mizell's mother, Hilda Bullard, or any medical records concerning Hilda Bullard, began writing prescriptions for dilaudid in March of 1981. From March through October 1981, Respondent wrote prescriptions for Hilda Bullard totaling 1,072 two- milligram dilaudid tablets.

   
   

4. According to the information furnished to Respondent by Ms. Mizell, her mother had had exploratory surgery in approximately 1977, at which time she was diagnosed as terminally ill. Ms. Mizell did not approach Respondent to write dilaudid prescriptions for her mother until early 1981. Having written dilaudid prescriptions for Ms. Bullard for March through October, 1981, Respondent began to suspect that perhaps he should examine Ms. Bullard in light of the fact that patients with illnesses of the severity described to him by Ms. Mizell seldom live for as long as Ms. Bullard apparently had. As a result, Ms. Bullard came to the United States and was first examined by Respondent on October 23, 1981. At that time, Respondent discovered that the patient had an enlarged abdominal mass, and sent her for blood samples and a liver scan. As a result of these procedures, Ms. Bullard was diagnosed as having cirrhosis of the liver, rather than terminal cancer. Respondent immediately discontinued prescribing dilaudid for Ms. Bullard.

   
   

5. Although the record in this cause establishes that it is not uncommon, and oftentimes is appropriate, for physicians to prescribe a controlled substance for use by patients without first examining them, this procedure is justifiable only when the prescribing physician is prohibited by emergency conditions from personally examining the patient, or is so familiar with the patient's history that an examination might not be necessary. In this instance, Respondent wrote prescriptions for a controlled substance for use by Ms. Bullard for a period of six months without either having reviewed her medical records or personally examining her. There is no evidence, however, from which it could be concluded that Respondent did not act in a good faith effort to assist his employee's mother. Further, it is significant that, upon determining that the patient did not suffer from terminal cancer, Respondent immediately ceased prescribing dilaudid.

   COUNTS IV-VII (BILL CAUDILL)

   
   

6. William Caudill has been a patient of Respondent's since approximately 1957. At the time of final hearing in this cause, Mr. Caudill was 59 years old. For as long as he can remember, Mr. Caudill has suffered from severe headaches of unknown etiology. His headaches are so severe, in fact, that Mr. Caudill has been unable to work, and is presently receiving Social Security disability benefits. Since he became a patient of Respondent, Mr. Caudill has been referred by Respondent to several specialists, including a neurologist, for procedures to determine the cause of his headaches. To date, the cause of Mr. Caudill's headaches remains undetermined, and he still suffers almost constant pain.

   
   

7. In approximately 1978, Mr. Caudill ceased visiting Respondent, and instead was treated by a physician in Pompano Beach, Florida. Upon his return as a patient to Respondent in approximately July of 1980, Respondent was taking approximately 800 to 1,000 percodans per month for relief of pain associated with his headaches. The record in this cause is undisputed that percodan was moderately effective in assisting Mr. Caudill with headache pain, and that percodan is, in fact, an appropriate medication for that purpose. Upon his return as a patient, Mr. Caudill was advised by the Respondent that he was taking too many percodans, and that Respondent was instituting a procedure to decrease his habituation to that drug. In fact, during his treatment of Mr. Caudill from July, 1980, until the time of this hearing, Mr. Caudill had reduced his ingestion of percodan from in excess of 800 per month down to approximately

   50 per month. During the period July, 1980, through December 1981, Respondent prescribed 2,959 two-milligram percodan tablets and 489 two-milligram tuinals to Mr. Caudill. This procedure of reducing the patient's dependence upon percodan by gradually reducing the dosage over an extended period of time is both medically justifiable and appropriate under the circumstances here present. However, Respondent's patient records on Mr. Caudill for the period July, 1980 through December, 1981, are virtually absent any information other than the identification of medication, and the date and amount of the prescription to justify Respondent's course of treatment for Mr. Caudill. Respondent was, of course, intimately familiar with Mr. Caudill's condition, having treated him since 1957. Respondent did, however, fail to keep records sufficient to justify his course of treatment, document the patient's progress or lack thereof, and any alternative treatment modalities considered or rejected.

   
   

   COUNTS VIII-XII (E. O. WALKER)

   
   

8. At the final hearing in this cause, E. O. Walker was 72 years old, and had been a patient of Respondent's for approximately 20 years. Respondent ceased treating Mr. Walker when Mr. Walker moved to California in 1975. Respondent forwarded Mr. Walker's patient records to a physician in California, and did not retain copies of those records in his files. Mr. Walker returned as a patient to Respondent in 1980. At that time, Mr. Walker was suffering almost constant pain as a result of earlier heart surgery, disc disease in his lower back, and arthritis. In addition, Mr. Walker had difficulty sleeping, and was depressed as a result of a recent divorce. Because of the pain associated with the above-described ailments, Mr. Walker is totally disabled.

   
   

9. For the period of September, 1980 through December, 1981 Respondent prescribed 650 percodans, 500 quaaludes, 500 dexedrines, and 400 seconals to assist Mr. Walker in coping with the pain, enabling him to sleep, and assisting him with his depression. The record in this cause establishes that, given Mr. Walker's history and his existing condition, the prescription of these

controlled substances in two-milligram dosages over the period in question was reasonable, medically justifiable, and not excessive in quantity or dosage.

There is no evidence to support a conclusion that Respondent's treatment of Mr. Walker from September, 1980 through December, 1991 in any way departed from medically acceptable levels of care.

COUNT XII (SELF PRESERVATION)

10. On July 14, 1980, November 10, 1980, January 20, 1981, August 2, 1981 and December 18, 1981, Respondent prescribed demerol tablets and injectables in the name of "R. S. Faircloth" or "Robert S. Faircloth". These controlled substances were used by Respondent in the treatment of his patients. All such controlled substances received by Respondent as a result of these prescriptions were either administered to Respondent's patients or were accounted for by Respondent at the time of final hearing. Further, the prescription blanks used to obtain these controlled substances had the notation "Office Use" on their face

CONCLUSIONS OF LAW

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

   
   

2. Section 458.331, Florida Statutes, provides, in pertinent part, as follows:

   
   

   1. The following 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.

      (l) 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 standards of treatment in the medical community.

      (n) Failing to keep medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

      1. 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. . .

      2. Prescribing. . .any medicinal drug appearing on any schedule set forth in chapter 893 by the physician to himself, except when prescribed, dispensed, or administered to the physician by another practitioner authorized to prescribe, dispense, or administer medicinal drugs.

      (t) Gross or repeated malpractice or the failure to practice medicine with that level

      of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances

      
      

3. Section 893.05(1), Florida Statutes, provides, in part, that ". . .[a] a practitioner in good faith and in the course of his professional practice only, may prescribe, administer, dispense, or mix, or otherwise, prepare a controlled substance. . ."

   
   

4. Section 458.331(2), Florida Statutes, empowers the Board of Medical Examiners to impose one or more of the following penalties upon a finding of a violation of any provision of Section 458.331(1), Florida Statutes:

   
   

   1. Refusal to certify to the department an application for licensure

   2. Revocation or suspension of a license.

   3. Restriction of practice.

   4. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

   5. Issuance of a reprimand.

   6. Placement of the physician on probation for a period of time and subject to such condition as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

   
   

5. It is specifically concluded that Respondent has violated the provisions of Sections 458.331(1)(q), 458.331(1)(h), and 893.051(1), Florida Statutes, as alleged in Counts I and II of the Administrative Complaint by prescribing a controlled substance other than in the course of his professional practice. There is no evidence to support the Petitioner's allegation that the prescriptions were not issued in good faith, or that Respondent in any way violated Section 458.331(1)(1), Florida Statutes, as alleged in Count III.

   
   

6. It is specifically concluded that Respondent violated the provisions in Section 458.331(1)(n), Florida Statutes, as alleged in Count VII of the Administrative Complaint, in that he failed to keep written medical records justifying the course of his treatment of E. O. Walker. However, the evidence in this cause fails to substantiate the allegations of Counts IV through VI that Respondent prescribed a controlled substance other than in the course of his professional practice; failed to prescribe controlled substances in good faith; and that Respondent made deceptive, untrue, or fraudulent representations, or employed a trick or scheme in the practice of medicine.

   
   

7. It is specifically concluded that the record in this cause does not support a finding of a violation of Section 458.331(1)(q), as alleged in Count VIII of the Administrative Complaint.

   
   

8. The evidence in this cause does not support a finding of any violation by Respondent of the provisions of Section 458.331(h), Florida Statutes, as alleged in Count IX of the Administrative Complaint.

9. The record in this cause does not support a finding that Respondent violated the provisions of Section 458.331(1)(l), Florida Statutes, as alleged In Count X of the Administrative Complaint.

   
   

10. The facts in this cause fail to establish that Respondent violated any provision of Section 458.331(1)(t), Florida Statutes, as alleged in Count XI of the Administrative Complaint.

    
    

11. In Count XII of the Administrative Complaint, Respondent is charged with a violation of Section 458.331(1)(r), Florida Statutes, which prohibits a physician from prescribing a controlled substance, "to himself." When that subsection of the Statute is read in its entirety, it is apparent that it was intended to prohibit the prescription of controlled substances by physicians for their own use. Here, Respondent clearly prescribed substances as alleged in Count XII for use by his patients in an office setting. While it is recognized that Section 458.331(1)(bb), Florida Statutes, prohibits the prescribing of these substances "for office use", Respondent has not been charged with a violation of that section. Accordingly, the record in this cause does not establish a violation of law as alleged in Count XII of the Administrative Complaint.

Accordingly, based upon the foregoing findings of fact, and conclusions of law, it is

RECOMMENDED that a final order be entered by the State of Florida, Department of Professional Regulation, Board of Medical Examiners, finding Respondent guilty of the charges contained in the Counts I, II, and VII of the Administrative Complaint, dismissing the charges contained in the remaining counts, and placing Respondent's license to practice medicine on probation for a period of one year from the date of the final order entered in this cause.

DONE and ENTERED this 27th day of July, 1984, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

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 27th day of July, 1984.

COPIES FURNISHED:

Barbara K. Hobbs Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joel Miller, Esquire

500 Northeast Third Ave. Ft. Lauderdale, Florida

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

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

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DOAH CASE NO. 82-2182

vs. DPR CASE NO. 0019668

ROBERT S. FAIRCLOTH, M.D., LICENSE NO. 4427,

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This cause came before the Board of Medical Examiners (Board) pursuant to Section 120.57(1)(b)(9), Florida Statutes on October 13, 1984, in Ft.

Lauderdale, Florida for the purpose of considering the hearing officer's recommended order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by William Furlow, Esquire; Respondent, Robert S. Faircloth, M.D. was presented by Joel Miller, Esquire. Upon review of the recommended order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The exceptions to the recommended order previously filed by Petitioner were withdrawn by Petitioner.

   
   

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

   
   

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

CONCLUSIONS OF LAW

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

   
   

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

PENALTY

Upon review of the complete record, and upon consideration of the gravity of the offenses leading to disciplinary action, the Board determines that the penalty recommended by the hearing officer be increased. WHEREFORE, it is hereby

ORDERED AND ADJUDGED that Respondent's license to practice medicine be suspended for one year, but that the suspension be stayed and Respondent placed on probation for a period of three years during which time Respondent shall appear semiannually before the Board. Respondent has waived confidentially with regard to the investigative reports prepared by the department during the period of probation. Respondent shall convey his knowledge of the law regarding appropriate prescribing practices to the Board during his appearance at the December 1984 Board meeting. This Order takes effect upon filing.

Respondent may appeal this Final Order within 30 days of its filing pursuant to Section 120.68, Florida Statutes and the Florida Rules of Appellate Procedure.

DONE AND ORDERED this 6 day of November, 1984.

BOARD OF MEDICAL EXAMINERS

Richard J. Feinstein, M.D. Chairman

Docket for Case No: 82-002182

Orders for Case No: 82-002182