STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-227

)

ELADIO E. MAZON, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 6, 1983, in Coral Gables, Florida.

APPEARANCES

For Petitioner: Charlie L. Adams, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Adolfo Z. Aguila, Esquire

Midway Professional Building

55 Grand Canal Drive, Suite 404 Miami, Florida 33144

Petitioner filed an Administrative Complaint against the Respondent seeking to suspend, revoke or take other disciplinary action against him as licensee and against his license as a medical doctor under the laws of the State of Florida. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, the issues for determination are whether Respondent is guilty of the charges contained in that Administrative Complaint and, if so, what disciplinary action should be taken against him, if any.

Petitioner presented the testimony of John P. McDonough and John V. Handwerker, Jr., M.D. The Respondent testified on his own behalf.

Additionally, Petitioner's Composite Exhibit numbered 1 and Respondent's Exhibit numbered 1 were admitted in evidence. Although both parties requested leave to file post hearing proposed findings of fact in the form of a proposed recommended order, only the Petitioner did so. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a medical doctor having been issued license number 0029773 by the State of Florida.

   
   

2. At all times material hereto, Respondent was an employee of the Atlantic Stress and Obesity Clinic, Inc., located in North Miami Beach, Florida. While employed there, Respondent treated Daniel Wolfenstein, Cindy Vegazo, Neal Schoenberg, James F. McDonald, Scott Brown and Virginia Hagerty at the Clinic.

   
   

3. On or about October 9, 1981, Respondent prescribed 45 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 893, Florida Statutes, for Daniel Wolfenstein.

   
   

4. Respondent did not prescribe the above-described controlled substance to Daniel Wolfenstein for a medically justifiable purpose. That prescription was inappropriate and in an excessive or inappropriate quantity.

   
   

5. Between the dates of approximately March 10, 1981, and February 8, 1982, Respondent prescribed 405 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 893, Florida Statutes, for Cindy Vegazo.

   
   

6. Respondent did not prescribe the above-described controlled substance to Cindy Vegazo for a medically justifiable purpose. Those prescriptions were inappropriate and in excessive or inappropriate quantities.

   
   

7. Between the dates of approximately October 9, 1981, and January 5, 1952, Respondent prescribed 90 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 593, Florida Statutes, for Neal Schoenberg.

   
   

8. Respondent did not prescribe the above-described controlled substance to Neal Schoenberg for a medically justifiable purpose. Those prescriptions were inappropriate and in excessive or inappropriate quantities.

   
   

9. Between the dates of approximately September 9, 1981, and January 22, 1952, Respondent prescribed 225 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 593, Florida Statutes, for James F. McDonald.

   
   

10. Respondent did not prescribe the above-described controlled substance to James F. McDonald for a medically justifiable purpose. Those prescriptions were inappropriate and in excessive or inappropriate quantities.

    
    

11. On or about October 13, 1981, Respondent prescribed 45 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 593, Florida Statutes, for Scott Brown.

    
    

12. Respondent did not prescribe the above-described controlled substance to Scott Brown for a medically justifiable purpose. Said prescription was inappropriate and in excessive or inappropriate quantity.

    
    

13. Between the dates of approximately August 4, 1981, and December 29, 1981, Respondent prescribed 135 methaqualone tablets 300 mg., a scheduled controlled substance pursuant to Chapter 893, Florida Statutes, for Virginia Hagerty.

14. Respondent did not prescribe the above-described controlled substance to Virginia Hagerty for a medically justifiable purpose. Said prescriptions were inappropriate and in excessive or inappropriate quantities.

    
    

15. The medical records of each of the above-listed patients indicate that each patient was given a prescription for 45 methaqualone tablets each time that patient came to the Atlantic Stress and Obesity Clinic to see Respondent. All patients indicated on the form checklist given to them at the Clinic that they were seeking medical aid because they were depressed, tense, unable to sleep, and/or without ambition. The progress notes for each patient are identical to the notes from prior visits, all progress notes appear in two different handwritings, and all patients are diagnosed as suffering from anxiety and insomnia, thereby requiring 45 more methaqualone tablets. There appears no variation in dosage or in diagnosis.

    
    

16. Methaqualone is a depressant, and, therefore, prescribing methaqualone to depressed patients is contraindicted.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties here to Section 120.57(1), Florida Statutes (1981).

    
    

18. As to each of the six patients involved in this cause, Counts I through XVIII of the Administrative Complaint charge Respondent with having violated Section 458.331(1)(q), Section 893.05(1) and therefore Section 458.331(1)(h), and Section 458.331(1)(1), Florida Statutes (1981). Additionally, Count XIX of the Administrative Complaint charges Respondent with violating Section 458.331(1)(t), Florida Statutes (1981). Those sections read as follow:

    
    

    1. The following acts 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.

       * * *

       (1) 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.

       * * *

       (q) 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.

       * * *

       (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.

       The board shall give great weight to the provisions of section 765.45 when enforcing this paragraph.

       
       

       593.05 Practitioners and persons administering controlled substances in their absence.--

       (1) A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix, or otherwise prepare a controlled substance, or he may cause the same to be administered by a licensed nurse or an intern practitioner under his direction and supervision only . . .

       
       

19. Since there was no medically justifiable purpose for the prescribing of methaqualone to any of the six patients involved in this cause, and since in fact the prescribing of methaqualone to those "depressed" persons was medically contraindicated, and since Respondent prescribed 45 tablets of methaqualone to each person who returned to him once a month without varying the medication prescribed or the dosage thereof, and since the medical records of these six persons are clearly simply form records which could as easily have been photocopied as to the complaints of the patient and the format of the examination and the diagnosis given to each, and since the Respondent's employment at the Atlantic Stress and Obesity Clinic appears to have been an economic alliance rather than a professional practice of medicine, Petitioner has clearly met its burden of proving both the factual allegations contained in the Administrative Complaint and the statutory violations charged against Respondent.

    
    

20. In its proposed recommended order, Petitioner has recommended that Respondent's license to practice medicine in the State of Florida be permanently revoked. Such a recommendation is appropriate, since Respondent's conduct as a medical doctor appears little different than the prohibited conduct of a drug dealer.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of

Counts I through XIX of the Administrative Complaint and permanently revoking Respondent's license to practice medicine in the State of Florida.

DONE and RECOMMENDED this 27th day of July, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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, 1983.

COPIES FURNISHED:

Charlie L. Adams, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Adolfo Z. Aguila, Esquire Midway Professional Building

55 Grand Canal Drive, Suite 404 Miami, Florida 33144

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy J. Faircloth, Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000227

Orders for Case No: 83-000227