STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2908

)

ALBERT SNEIJ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on April 20, 1983, in Miami, Florida. The parties are represented by counsel:

APPEARANCES

For Petitioner: Charlie L. Adams, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Edward Howard Reise, Esquire 1/

4849 Connecticut Avenue, Northwest Suite 826 East

Washington, DC 20008

The issue for determination at the final hearing was whether the medical license of the Respondent Albert Sneij should be suspended, revoked, or otherwise disciplined for allegedly prescribing inappropriate or excessive quantities of controlled drugs and failing to maintain adequate records concerning such prescriptions.

At the final hearing, James V. Handwerker, a medical doctor, testified for the Petitioner Department. Petitioner's Exhibits 1(a)-(h) and 2 were offered and admitted into evidence. The Respondent Sneij testified on his own behalf.

Proposed Recommended Orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.

When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinative, cumulative, immaterial or unnecessary have not been adopted.

FINDINGS OF FACT

1. The Respondent Albert Sneij is a licensed medical physician, having been issued license number ME 0034499.

   
   

2. The current office address of the Respondent is 125 Fifth Street, Miami Beach, Florida.

   
   

3. Dr. John V. Handwerker, a licensed physician was the Petitioner's sole witness. Dr. Handwerker, who has served as an Assistant Professor of Pharmacology at the University of Miami, was requested by the Department to examine the patient records obtained from the Respondent during the course of a Department investigation, evaluate whether the prescriptions contained in the patient records were appropriate or excessive and whether such prescriptions were adequately documented in the patients' clinical records.

   
   

4. Dr. Handwerker evaluated the Department's investigative file and the Respondent's clinical records, involving eight patients: Charles Thomas Whitecup, John Marsden, Carole Rosen, Thomas T. Bellamy, John Barbosa, Rex Bridwell, Thomas Sestito and Margaret Lee Baker. Dr. Handwerker's testimony was based solely on his review of the records since none of the patients involved in this case were seen or examined by him.

   
   

5. Charles Whitecup's records revealed that he suffered an injury four years prior to his being prescribed Dilaudid by the Respondent. The injury was a gunshot wound to his left leg on which an exploratory laparotomy was subsequently performed. At that time it was discovered that the gunshot had torn the femoral artery and inflicted substantial nerve plexus damage. Upon examination of Whitecup, the Respondent noted weakness and atrophy in the left extremity and numbness in the anterior portion of his leg. Additionally, Whitecup suffered from bursitis in the knee with pain in the knee and patellar ligament. The Respondent diagnosed chronic left leg pain due to femoral nerve plexus damage and asked Whitecup to bring his medical records to his next appointment which as scheduled in ten days. Based on this diagnosis, the Respondent prescribed 30 Dilaudid, 4 milligrams. Thereafter, Whitecup lost his original prescription and a replacement prescription was issued on April 7, 1982. This was the only prescription which was filled and the only prescription recorded in the Respondent's clinical records for this patient. The records of this patient, Petitioner's Exhibit 1(a) and the Respondent's examination justify and document prescribing the Dilaudid for this patient.

   
   

6. Additionally, Whitecup specifically requested that the Respondent prescribe Dilaudid since this was the only medication which relieved his chronic pain.

   
   

7. John Marsden was issued a single prescription by the Respondent for Dilaudid, 4 milligrams, on March 8, 1982. Although no clinical records exist to justify this prescription, the Respondent remembered Marsden as suffering from a long-standing chronic pain problem. During the time that the Marsden prescription was written, the Respondent was in the process of moving his office and the clinical records for this patient were probably lost during the move.

   
   

8. The Respondent wrote two prescriptions for 20 and 25 Dilaudid, 4 milligrams, to Carol Rosen on February 9, 1982 and March 8, 1982, respectively. Both prescriptions were written when the Respondent was located in his old office and like Marsden, were probably among the records lost in the course of moving offices. The Respondent has no recollection of this particular patient.

   2/ In response to the missing Marsden and Rosen records, the Respondent has instituted a new record keeping system and detailed records for all patients are now kept.

   
   

9. The Respondent wrote six prescriptions for Thomas Bellamy between March and May of 1982, for 171 Dilaudid, 4 milligrams. Bellamy suffered from back and neck spasms for nine years prior to his initial examination by the Respondent. He was Bellamy had ever obtained for pain was when he was prescribed Dilaudid. During a follow-up examination, the Respondent noted that Bellamy's activities were limited and that his pain was primarily centered in the lower back in the area of L-5, S-1, with occasional radiation to the left leg. The Respondent wanted to take an x-ray but did not because Bellamy was unwilling to incur the cost. Although six prescriptions were written by the Respondent based on only two examinations of the patient, the clinical records for Bellamy, Petitioner's Exhibit 1(d), and the Respondent's examinations of the patient justify and document the prescribing of Dilaudid for this patient.

   
   

10. The Respondent examined John Barbosa on May 5,1982, and diagnosed an injured disc between L4-5 during the week prior to the exam. This patient demonstrated spinal spasms during the exam with limited mobility. A single prescription of 36 tablets of Dilaudid, 4 milligrams, was written for the patient. This proscription was justified and documented by the clinical records, Petitioner's Exhibit 1(e) and the examination performed by the Respondent on the patient.

    
    

11. In January, 1982, the Respondent first examined Rex Bridwell, a double knee amputee. Bridwell consulted the Respondent due to a vascular disease which caused grangrene and resulted in the amputations. Bridwell's legs had not healed and ulcerous lesions were visual at the amputation sites. Bridwell, who had been unsuccessfully treated for the previous six years, was understandably in a great deal of distress and pain as a result of his condition. The Respondent prescribed painkillers, antibiotics, vitamins and discussed with Bridwell alternative therapy including, prayer, hypnosis and meditation. Bridwell was subsequently examined by the Respondent on February 2, 1982 and March 4, 1982. The Respondent prescribed Tuinal on March 3, 1982, 30 tablets, 3 grams; and Dilaudid on March 23, 1982, 40 tablets, 4 milligrams and April 8, 1982, 24 tablets, 4 milligrams, for Bridwell. These drugs were prescribed for Bridwell's severe pain. Bridwell's clinical record, Petitioner's Exhibit 1(f), and the examinations performed by the Respondent demonstrate that these prescriptions were justified and documented. 3/

    
    

12. On January 26, 1982, the Respondent examined Thomas Sestito, a carpenter, who came to the Respondent complaining of severe back aches which resulted from his falling off a roof in 1979 and subsequently reinjuring his back. X-rays from Baptist Hospital confirmed that Sestito suffered a facture at L2. Sestito's pain was at L4 and LB and radiated into his right thigh. The Respondent diagnosed sciatica and prescribed a total of 70 Dilaudid, 4 milligrams, on January 27, 1982, March 7, 1982 and March 11, 1982 and 30 Tuinal,

    200 milligrams, on February 10, 1982. 4/ The prescribing of Dilaudid in this case was justified and is documented by the patient's clinical record, Petitioner's Exhibit 1(g) and the Respondent's examination on January 26, 1982.

    
    

13. Finally, the Administrative Complaint charges the Respondent with unlawfully prescribing Dilaudid on April 8, 9 and 14, 1982 to Lee Baker. The clinical record, Petitioner's Exhibit 1(h), indicates that two of these prescriptions were written to "Margaret Baker" and only the April 9, 1982, prescription was written to "Lee Baker." Although Margaret Baker's middle name

    is "Lee", insufficient testimony was introduced to establish that all three prescriptions were written for the same person. Additionally, the Petitioner did not attempt to amend the Administrative Complaint prior to hearing to conform the allegations contained in the Complaint to the evidence which was to be introduced at final hearing. Accordingly, only the prescription written on April 9, 1982, to Lee Baker is relevant to the allegations contained in Counts 29-32 of the Administrative Complaint.

    
    

14. Due to the lack of certainty that "Margaret Lee Baker" and "Lee Baker" are the same person, it follows that the clinical record introduced at final hearing, Petitioner's Exhibit 1(h), might contain two sets of records or one set of incomplete records. Under such circumstances, the Petitioner has failed to prove through the introduction of the clinical record of Margaret Lee Baker, that the Respondent unjustifiably prescribed controlled drugs or kept inadequate records concerning Lee Baker.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. By a thirty-nine count Administrative Complaint, the Respondent Sneij has been charged with violating Sections 458.331(1)(h), 458.331(1)(a), 458.331(1)(n), 458.331(q) and 893.05(1), Florida Statutes, in his care and treatment of Charles Whitecup, John Marsden, Carol Rosen, Thomas Bellamy, John Barbosa, Rex Bridwell, Thomas Sestito and Lee Baker. Section 458.331(1), Florida Statutes empowers the Board of Medical Examiners to discipline a physician found guilty of, inter alia:

    
    

    1. Failing to perform any statutory

       or legal obligation placed upon a licensed physician.

    2. Making or filing a report which

       the licensee knows to be false, intentionally or negligently failing to file a report

       or record required by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.

       * * *

       (n) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited

       to, patient histories, examination results, and test results.

       * * *

       (g) 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 otherwise

       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.

       
       

17. The violation of Section 458.331(1)(h), Florida Statutes, is alleged to have occurred by virtue of Respondent's violation of Section 893.05(1), Florida Statutes, which requires a physician to prescribe controlled substances in good faith and in the course of professional practice.

    
    

18. In proceedings of this type where a regulatory agency seeks to discipline a person in a manner affecting the practice of a profession, the Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Gans v. Department of Professional and Occupational Regulation, 390 So.2d 107 (Fla. 3d DCA 1980); Walker v. Board of Optometry, 322 So.2d 612 (Fla. 3d DCA 1975). The evidence in license disciplinary proceedings must be as substantial as its consequences. Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

    
    

19. In the instant case, the Petitioner failed to establish by clear and convincing evidence that the Respondent, in his care and treatment of the eight patients named in the Administrative Complaint, inappropriately prescribed controlled substances or prescribed excessive amounts of controlled substances, made deceptive or untrue or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine, or prescribed controlled substances without good faith and outside the course of his professional practice. The Petitioner did establish by clear and convincing evidence, violations of Section 458.331(1)(n), Florida Statutes, in that the Respondent failed to keep written medical records justifying the course of treatment of John Marsden and Carol Rosen, as alleged at Counts 8 and 12 of the Administrative Complaint.

    
    

20. In considering an appropriate penalty for the violations of Section 458.331(1)(n), Florida Statutes, consideration has been given to the steps that the Respondent has taken since these incidents to correct the problems he has encountered with his medical record system. Additionally, pursuant to Section 458.331(4), Florida Statutes, the Board was required to establish by rule guidelines for the disposition of disciplinary cases involving specific types of violations of Section 458.331, Florida Statutes. Rule 21M-20.01, Florida Administrative Code, implements Section 458.331(4), Florida Statutes, but fails to establish guidelines for violations of Section 458.331(1)(n), Florida Statutes. Generally, however, Rule 21M-20.01, Florida Administrative Code, recognizes that in determining an appropriate penalty under Section 458.331, Florida Statutes, such factors as, inter alia, harm to the public, severity of the offense, the actual damage to a patient, and efforts by the licensee toward rehabilitation should be considered. Measured by these standards, the Respondent's violations of Section 458.331(1)(n) do not warrant suspension or revocation of his medical license. Instead, Respondent should be placed on probation for three months subject to the condition that he demonstrate to the Board by the end of that period the adequacy of his present record keeping system.

    
    

21. Finally, the Respondent's Motion to Dismiss the Administrative Complaint filed June 27, 1983, and Motion to Vacate the Hearing filed August 19,

1983, are denied. The Respondent's Motion to Admit the Affidavit of the Respondent into the record as a late filed exhibit is granted, and the Affidavit will be admitted as Respondent's Exhibit 1.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Petitioner Board of Medical Examiners enter a Final Order finding the Respondent Sneij guilty of violating Counts 8 and 12 of the Administrative Complaint, not guilty of violating the remaining counts, and placing him on probation for three months subject to the condition that the Respondent demonstrate to the Board of Medical Examiners the adequacy of his present medical record keeping system prior to the end of this period.

DONE and ORDERED this 29th day of September, 1983, in Tallahassee, Florida.

SHARYN L. SMITH, 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 September, 1983.

ENDNOTES

1/ At the final hearing conducted on April 20, 1983, the Respondent Sneij was not Represented by counsel. Subsequent to the hearing, the Respondent retained counsel who entered an appearance on June 6, 1983.

2/ The release of medical records obtained by the Department from Carol Rosen, Petitioner's Exhibit 1(c), is neither dated nor witnessed.

3/ As to the Tuinal prescription, admitted into evidence as part of the patient's clinical records, the Administrative Complaint does not charge the Respondent with illegally prescribing this drug.

4/ Id.

COPIES FURNISHED:

Charlie L. Adams, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Edward Howard Reise, Esquire 4849 Connecticut Avenue, N.W. Suite 826 East

Washington, DC 20008

Dorothy Faircloth, Executive Director Florida Board of Medical Examiners Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

ORDER ON REMAND

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

BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

CASE NO.: 002183

vs. DOAH NO.: 82-2908

ALBERT SNEIJ, M.D.,

Respondent.

/

ORDER ON REMAND

THIS CAUSE came before the Board of Medical Examiners on December 1, 1984, in Miami, Florida, upon remand of this cause by the District Court of Appeal, Third District of Florida. Petitioner was represented by Cecelia Bradley, Esquire. Respondent was present and represented by Jonas J. Schattner, Esquire.

In its review of this Board's previous final order, the appellate court affirmed in part, reversed in part, and remanded this cause for further action by the Board. Specifically, the court upheld the Board's finding that Respondent was guilty of failing to keep appropriate medical records, but reversed the Board's findings with respect to all other charges. Because of the reversal of some of the essential findings upon which the penalty was based, the Court also reversed the penalty imposed by the Board and remanded the cause with directions that the Board modify the Order to accept the hearing officer's findings and impose a new penalty based solely on the record keeping violations.

Upon consideration of the directions from the appellate court, the record in this cause, and the arguments of the parties, and being otherwise fully advised in the premises,

IT IS HEREBY ORDERED AND ADJUDGED:

1. The findings of the Hearing Officer set forth in the Recommended Order in this cause are hereby accepted, adopted and incorporated herein by reference. The findings to the contrary in this Board's previous final order are hereby vacated.

   
   

2. The Board determines that the appropriate penalty for the violations of failure to keep medical records is a three-month non-reporting probation. The Board further determines that the term of probation has already been served and Respondent's license to practice medicine shall be fully reinstated effective December 1, 1984.

DONE and ORDERED this 9th day of January, 1985.

Richard Feinstein, M.D. Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order on Remand has been provided by certified mail to Albert Sneij, M.D., 420 Lincoln Road, Suite 507, Miami, Florida 33129 and Jonas Jeffrey Schattner, Esquire, 3801 University Drive, Suite 31, Sunrise, Florida 33321; by regular mail to Sharyn L. Smith, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and by hand delivery to Cecilia Bradley, Esquire, 130 North Monroe Street, Tallahassee, Florida 32301 this 16th day of January, 1985.

Docket for Case No: 82-002908

Orders for Case No: 82-002908