STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-245

)

CAMILIA DWYER )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this case was heard on April 6, 1983, in Miami, Florida, by Stephen F. Dean, the assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint filed by the Board of Medical Examiners against Camilia Dwyer, M.D., which alleges that she has violated provisions of Chapter 458, Florida Statutes, by prescribing medications in, a manner other than in good faith and in the course of her professional practice, and by prescribing a legend drug in excessive or inappropriate quantities.

APPEARANCES

For Petitioner: Charlie L. Adams, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Brian Hal Leslie, Esquire 1/

1795 Northeast 164th Street

North Miami Beach, Florida 33162 ISSUES

The factual issues presented in this case are whether the Respondent, Camilia Dwyer, M.D., properly prescribed medication in good faith and in the course of her professional practice; and whether the Respondent prescribed excessive or inappropriate quantities of a legend drug.

The Petitioner submitted post hearing proposed findings of fact in the form of a proposed recommended order. To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.

FINDINGS OF FACT

1. The Respondent, Camilia Dwyer, is a licensed medical doctor holding license number ME 0025985 issued by the Board of Medical Examiners.

   
   

2. At all times relevant to this proceeding, the Respondent was employed as a physician at South Miami Medical Services, located at 2400 South Dixie Highway, Miami, Florida, a health service organization holding itself out to the public as a clinic for the treatment of stress.

   
   

3. Quaalude is the trade name for methaqualone, which is a legend drug and a controlled substance.

   
   

4. Ms. G. T. Auspitz, an investigator for the Department of Professional Regulation, was seen as a patient by the Respondent on January 25, 1982, as part of an investigation conducted by Ms. Auspitz. Ms. Auspitz had called the clinic previously and made an appointment for her visit. On this first visit, Ms. Auspitz filled out a medical history and personal questionnaire, was weighed, was seen by a psychologist, and had a blood sample taken by the Respondent, who also physically examined her. Ms. Auspitz's presenting complaints were sleeplessness, loss of weight, irritability, nervousness and migraine headaches. The medical history given by Ms. Auspitz, which was reviewed by the Respondent, was not accurate. Ms. Auspitz had not suffered any loss in weight, did not suffer from migraine headaches, did not have trouble sleeping and was not irritable or nervous.

   
   

5. During Ms. Auspitz's 15- to 20-minute interview with the psychologist, she was questioned concerning her presenting complaints and personal history. This discussion centered on her work, her personal relationships, and areas of her personal life which could give rise to her presenting complaints. Ms. Auspitz indicated that she was angry with her boyfriend and did not feel secure in the relationship. The psychologist noted that her presenting complaints arose out of Ms. Auspitz's problem with her boyfriend. The basic information given the psychologist by Ms. Auspitz concerning her personal life was not correct but was part of her investigative cover story.

   
   

6. After seeing the psychologist, Ms. Auspitz was examined by the Respondent. The Respondent asked Ms. Auspitz about her weight loss, checked her chest, examined her torso and her extremities, and took blood for a blood test. The Respondent asked Ms. Auspitz if she had previously taken Quaaludes, to which Ms. Auspitz answered in the affirmative. The Respondent wrote a prescription for 45 Quaaludes for Ms. Auspitz and placed the prescription in Ms. Auspitz's medical folder.

   
   

7. Ms. Auspitz took the medical folder to Richard Lubin (phonetic), the operator of the clinic, to whom she paid $100 in cash and received the prescription for Quaaludes and another prescription for multiple vitamins.

   
   

8. On January 26, 1982, Ms. Auspitz was seen and examined by John V. Handwerker, M.D. Dr. Handwerker had been employed by the Department of Professional Regulation for the purposes of examining Ms. Auspitz, rendering his expert opinion regarding her health and need for a prescription for Quaalude, and to testify in any subsequent proceedings if necessary. Ms. Auspitz did not tell Dr. Handwerker she was suffering from stress, and the medical history which she gave him was complete and accurate. Dr. Handwerker's objective findings were that Ms. Auspitz was a white female in her late 30's or early 40's in apparent good health. Based upon his objective findings and the medical history

   which Ms. Auspitz gave him, Dr. Handwerker concluded that Ms. Auspitz was physically and emotionally healthy and did not require medication with Quaalude. Dr. Handwerker also had an SMA/26 blood test run on Ms. Auspitz.

   
   

9. The results of the SMA/26 blood test revealed the presence of mephobarbital 2/ in Ms. Auspitz's blood at a therapeutic level. Ms. Auspitz stated that she was not taking this drug and to her knowledge had not taken any medication containing said drug. Ms. Auspitz surmised that this medication was dispensed by mistake in a possible mix-up at a pharmacy instead of a prescription of Provera, which she was taking, due to the similar appearance of both medications.

   
   

10. On February 26, 1982, Ms. Auspitz again saw the Respondent. On this occasion, she did not see a psychologist. In response to an inquiry from the Respondent, Ms. Auspitz said that she felt fine. The Respondent told Ms. Auspitz that her blood test revealed she had a low potassium level and advised her to eat bananas, a food with high potassium content. The Respondent wrote a second prescription for Ms. Auspitz for 40 Quaaludes. Ms. Auspitz paid Lubin for the office visit and left the clinic.

    
    

11. Records from two pharmacies of prescriptions written by the Respondent were introduced. These records reflect that the Respondent wrote 1,855 prescriptions for over 80,000 Quaaludes in the four and a half months she was employed at the clinic.

    
    

12. Dr. Handwerker testified and offered his opinion on the medical necessity for the prescription of Quaalude in such quantity. Dr. Handwerker stated that even without seeing the patient records he could say with reasonable medical certainty that prescription of that quantity of Quaalude was excessive. Dr. Handwerker buttressed his opinion with the fact that prolonged use of Quaalude (more than two weeks) causes the body to produce an enzyme which counteracts the effect of Quaalude as a sleeping medication.

    
    

13. The Respondent testified concerning the charges against her. Respondent's medical specialty is anesthesiology. She graduated from medical school in 1962 and interned in anesthesiology at Case Western Reserve, where she practiced until 1974. From the time the Respondent came to Miami, Florida, in 1974, until approximately 1977, she was the anesthesiologist at Coral Gables Hospital. Thereafter, she was the anesthesiologist at Victoria Hospital in Miami until 1980, when she suffered a heart attack. During the period of her practice as an anesthesiologist, the Respondent had little if any contact with nonsurgical patients and little occasion to prescribe Quaalude. After she had recovered from her heart attack, the Respondent wanted to return to practice, but initially not in a full-time capacity and not as an anesthesiologist. She responded to an advertisement placed by South Miami Medical Services for a physician to practice part-time in a clinical setting. After an interview with Mr. Lubin, the Respondent took the position and began work in November of 1981. When she first went to work for the clinic, the Respondent felt it was a legitimate medical facility providing treatment to its patients who were suffering from stress. She was advised by other physicians at the clinic that Quaalude was the drug of choice to treat patients.

    
    

14. The Respondent further stated that in January of 1982 she began to have doubts about the operation of the clinic and the prescription of Quaalude to patients as a drug of first choice. Subsequently, however, she continued to work at the clinic and continued to prescribe Quaalude as the drug of first choice.

15. In late February 1982, the Respondent had a direct confrontation and fight with Lubin over the prescription of Quaalude for patients, and at that time she quit her employment. However, she returned to work for the clinic for approximately two weeks to give Lubin time to replace her. During this period, the Respondent continued to use Quaalude as the drug of choice in the treatment of patients.

    
    

16. Linda C. Lewis, R.N., testified concerning her employment at South Miami Medical Services. Ms. Lewis was employed at the clinic from August 1981 until January 1982 while taking a respite from her nursing specialty as a dialysis nurse. Ms. Lewis described the general operation of the clinic, which was consistent with that described by both the Respondent and Ms. Auspitz. Blood tests were screened by Ms. Lewis, and she called any patients who exhibited severe abnormalities. All patients were seen by appointment only and were generally seen by the psychologist and medical doctor on each visit. Ms.

    Lewis believed that the clinic was a legitimate health service organization until reports in January 1982 indicated that there were problems in general with stress clinics. These reports influenced Ms. Lewis to quit her job shortly after January 25, 1982, the date of Ms. Auspitz's first visit to the clinic.

    Said reports are not deemed to be accurate or truthful and are mentioned only as they related to Ms. Lewis's state of mind.

    
    

17. The Respondent was cooperative with Ms. Auspitz when interviewed by her after the Respondent ceased to work at the clinic. Respondent stated that she did not realize Quaalude was a problem as a street drug until her 19-year- old son told her about Quaalude abuse after she had left the clinic. The Respondent is currently practicing in her own small general practice in Miami. The majority of her patients are elderly.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Board of Medical Examiners has jurisdiction to discipline the Respondent under the provisions of Chapter 458, Florida Statutes. The Division of Administrative Hearings has authority to enter this Recommended Order pursuant to the provisions of Section 120.57, Florida Statutes.

    
    

19. The Respondent is alleged to have prescribed a controlled substance other than in the course of her professional practice and in good faith; with prescribing excessive quantities of a legend drug; and with making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. Under these facts, she is charged with violation of Sections 458.331(1)(h), 458.331 (1)(1), 458.331(1)(q), 458. 331(1)(t) and 893.05(1), Florida Statutes.

    
    

20. Counts 1, II and III of the Administrative Complaint relate specifically to the Respondent's treatment of G. T. Auspitz. Concerning Counts I and II, although Dr. Handwerker determined that there was no medical necessity for prescribing Quaalude for Ms. Auspitz, he did this on the basis of both his objective findings and the medical history provided to him by Ms. Auspitz. According to her testimony, Ms. Auspitz provided the Respondent with false data concerning her medical history and presenting complaints. Based upon the information given to the Respondent by Ms. Auspitz, it cannot be concluded that the Respondent's prescription of Quaalude for Ms. Auspitz was inappropriate or not in good faith. The only remaining issue is whether the quantity of Quaalude prescribed was excessive. The statute provides that prescription of excessive quantities of legend drugs creates a legal presumption that it was not in the

    course of professional practice. This issue will be discussed in greater detail below in relation to Count IV of the Administrative Complaint.

    
    

21. Count III of the Administrative Complaint alleges that the Respondent made deceptive, untrue or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine. Presumably, this allegation arises from the operation of a stress clinic as a means of prescribing Quaalude. At the time of the alleged offense, the prescription of Quaalude was not illegal and neither was the treatment of stress. The question is one of motive on the part of the Respondent, i.e., did she intend to circumvent the laws concerning the prescription of controlled substances by practicing at the clinic? The evidence presented by the Board fails to establish such an intent.

    
    

22. Count IV of the Administrative Complaint addresses directly the quantity of Quaalude prescribed by the Respondent in the four and a half months she was employed at the clinic. From the evidence presented, it is clear that the Respondent lacked the basic knowledge of the medication she was prescribing. As charged in Count II, the Respondent exceeded the medically effective period of administration by prescribing more than one Quaalude per day for Ms. Auspitz between January 25 and February 26, 1982. By permitting other physicians at the clinic to suggest Quaalude as the drug of choice in treatment of patients without regard to the drug's characteristics, the Respondent abdicated her professional responsibility and judgment concerning the prescription of legend medications, to include controlled substances. Her conduct constitutes violation of Section 458.331(1)(q) , Florida Statutes. Because the Respondent's conduct was a repeated violation, it constitutes a violation of Section 458.331(1)(t) Florida Statutes.

    
    

    FACTS IN MITIGATION

    
    

23. There are some mitigating factors which should be considered in this case. The Board has presented no evidence to show that the Respondent practiced at the clinic with the intent to circumscribe and avoid the provisions of law concerning the prescription of controlled substances. The testimony of the Respondent indicates that she was practicing in an area outside her medical specialty and outside a hospital/surgical environment for the first time in more than 11 years. The Respondent had never practiced medicine in a capacity other than as an anesthesiologist. She was also returning to medical practice after an extended recuperation from a heart attack. It is therefore believable that the Respondent was not knowledgeable of the widespread abuse of Quaalude and its negative side effects and was susceptible to the suggestions of the other physicians at the clinic concerning the use, of Quaalude as the drug of choice.

    
    

24. The testimony of Ms. Lewis, a nurse at the clinic, is supportive of the Respondents testimony concerning her belief that the clinic's activities were legitimate. Ms. Lewis worked at the clinic from August 1981 through January 1982, a period of six months. Ms. Lewis stated she believed that the clinic was a legitimate health service organization until January 1982, when reports in the media concerning general abuses of stress clinics were publicized. It is therefore reasonable that the Respondent also believed the clinic's operation was legitimate. However, it is also noted that after the Respondent gave notice of termination of her employment she continued to use Quaalude as the drug of choice in treating patients.

    
    

25. Finally, it should also be noted that these events are being looked at nearly 18 months after their occurrence and with the full knowledge of the

    activities of stress clinics which, at that time, had just come under investigation, and that the Respondent did quit her job because she disagreed with the use of Quaalude as the drug of choice.

    
    

26. Taking all these matters into consideration, it is concluded that the Respondent, in violating Sections 458.331 (1)(q) and (t), Florida Statutes, did not do so with any evil intent to circumvent the laws governing the prescription of controlled substances but did so negligently.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, and considering the facts in mitigation, the Hearing Officer recommends that the Respondent, Camilia Dwyer, M.D., have her license suspended for a period of two years, and that said suspension of the Respondent's license be abated on the following conditions:

1. That the Respondent pay a fine of $4800 in 24 payments of $200 each;

   
   

2. That the Respondent attend courses as directed by the Board to increase her knowledge of her professional responsibilities with regard to the prescription of controlled substances and legend drugs; and

   
   

3. That the Respondent's right to prescribe controlled substances be limited by the Board in its discretion.

DONE and RECOMMENDED this 13th day of June, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 13th day of June, 1983.

ENDNOTES

1/ Leslie's Motion to Withdraw as counsel prior to the submission of proposed findings was granted by Order of the Hearing Officer entered on May 18, 1983.

2/ Mebral [sic] at page 160, Transcript of Proceedings, Volume I. Mebaral (mephobarbital tablets, USP) is used as an anti-convulsant for the treatment of grand mal and petit mal epilepsy. See Physicians' Desk Reference (PDR).

COPIES FURNISHED:

Charlie L. Adams, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Camilia Dwyer, M.D.

10760 SW 31st

Miami, Florida 33165

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

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

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

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,

Petitioners,

vs. CASE NO. 83-245

CAMILIA DWYER, M.D., LICENSE NO. 25985

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter came before the Board of Medical Examiners (Board hereinafter) pursuant to Section 12C.37(1)(b)9., Florida Statutes, on August 12, 1983, In Tampa, Florida for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled matter. The Petitioner was represented by Joseph K. Lawrence, II, Esquire Neither the

Respondent nor anyone representing her appeared on her behalf. After review of the Recommended Order, the argument of the parties, and after a review of the complete record in this matter, the Board makes the following findings and conclusions.

FINDINGS OF FACT

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

   
   

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

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated herein.

   
   

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

   
   

3. Following a review of the complete record In this matter, the Board concludes that the recommended penalty of the hearing officer is inappropriate as being too lenient of a punishment and does not adequately protect the public.

WHEREFORE. It is ORDERED AND ADJUDGED that the Florida medical license of the Respondent, Camilia Dwyer, M.D., be and hereby is revoked.

DONE AND ORDERED this 30th day of August, 1983.

cc: All counsel of Record Camilia Dwyer, M.D.

Raul-Vales-Fauli, Jr., Esquire Chairman, Board of Medical

Examiners

Docket for Case No: 83-000245

Orders for Case No: 83-000245