STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 83-0267
)
ROBERT A. LIEBERMAN, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, in Orlando, Florida, on December 8 and 9, 1983. The issue for consideration is whether the Respondent's license to practice medicine in the State of Florida should be disciplined because of misconduct alleged in the Administrative Complaint filed in this case on January 3, 1983.
APPEARANCES
For Petitioner: Barbara K. Hobbs, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Herbert M. Hill, Esquire
Thomas Michael Burke, Esquire Post Office Box 1873
Orlando, Florida 32802 BACKGROUND INFORMATION
An Administrative Complaint was filed in this case by the Secretary of the Department of Professional Regulation for the Board of Medical Examiners on January 3, 1983, containing 19 counts alleging the prescription of medications either in an amount excessive to the needs of the patient, or in a situation where the medication itself was inappropriate to that patient. Petitioner also alleges that Respondent prescribed certain medications other than in the course of his professional practice; that he failed to prescribe controlled substances in good faith, that he made deceptive, untrue, or fraudulent representations in the practice of medicine; and that all the above constitute gross or repeated malpractice, or the failure to practice medicine with the care and skill recognized by a reasonably prudent physician in similar circumstances.
Respondent submitted an Election of Rights on January 24, 1983, in which he disputed the allegations of fact contained in the Administrative Complaint and requested a formal hearing.
At the hearing, Petitioner introduced the testimony of John P. Spanogle, Linda Gorsuch Creed, and introduced Petitioner's Exhibits 1 through 16.
Respondent testified in his own behalf and introduced the testimony of Wilda A. Sue Boudreaux, Martha Star Boughan, and Dr. Harry J. Stone.
FINDINGS OF FACT
At all times pertinent to the allegations involved in this hearing, Respondent, Robert A. Lieberman, was licensed to practice medicine in the State of Florida.
John P. Spanogle, an investigator with the Department of Professional Regulation since 1980 and with the Board of Medical Examiners prior to that back to 1975, in November, 1979, was requested by representatives of the Orlando Florida Police Department to work with their detectives in several ongoing drug investigations. Respondent was not the subject of any of those particular Orlando Police Department investigations. However, during the course of these investigations, Mr. Spanogle secured certain prescriptions for Class II controlled substances that were written by the Respondent.
As a result of these prescriptions, Mr. Spanogle interviewed the Respondent on July 7, 1982, at Respondent's office. At the outset of the interview, Mr. Spanogle advised Respondent of the nature of the allegations and of his rights regarding being questioned. He found Respondent to be extremely cooperative and received full answers to the questions asked, as well as patient release forms and patient records as to the patients listed in the various counts of the Administrative Complaint.
During the course of the interview, Mr. Spanogle and Dr. Lieberman discussed several of the doctor's patients and the prescriptions he had written for them over the period in question. Dr. Lieberman seemed surprised he had prescribed so many Percodan and other drugs and could not readily explain why he had written so many prescriptions.
Only one of the doctor's former patients testified for the Petitioner at the hearing. This was Linda Gorsuch Creed, a/k/a Linda Clary Morgan, the individual described in Count I of the Administrative Complaint. Ms. Creed is a former drug abuser who started abusing drugs when she was 18 years of age. She is now 26. During the course of her drug abuse, she used such substances as heroin, Dilaudid, Demerol, and others, injecting them into her arms and hands. She first saw Respondent in early 1979 for the purpose of securing drugs. Dr. Lieberman did not know this, however, because her stated complaint was of not being able to have sex without pain. This, however, was false. During the first visit, she was examined by the Respondent and was nude except for the examination gown. She cannot state whether she had drug injection track marks on her arms, but imagines she did since she was using drugs at the time. She does not know whether Respondent saw them, if in fact she had them. Respondent denies noticing any track marks on the witness; and on the basis of the evidence as presented, it can be concluded, reasonably, that Dr. Lieberman was not aware that this patient was in fact a drug abuser.
During the first visit, she asked for Dilaudid and Valium and was given a prescription for both. Several months later, she again visited Dr. Lieberman for the purpose of securing drugs. On this visit, she complained of cramps, which again was not true, but at the conclusion of the visit was issued a prescription for Dilaudid.
Approximately four years later, she again visited Respondent for the purpose of procuring drugs. At this time, she was mainlining and presumes that she had tracks which she feels may have been seen by the doctor. However, she asked for and received drugs based upon her represented "illness" and the Respondent's examination of her.
Just about this time, she was arrested for drug abuse. At the time of her arrest, she had a prescription bottle for Dilaudid and one with Valium in it, both of which she had received from the Respondent. While she was out on bond, she again went to see the Respondent and asked for drugs. He refused, however, to give her any at this time because he had finally become aware that she was abusing drugs. She saw him several times thereafter and, on each occasion, he gave her only legitimate prescriptions; and she has not taken any illegal drug since 1980.
The testimony of Dr. Lieberman on this same patient is consistent with that of the patient herself, though from a different perspective. The doctor's records reflect that the first visit from this patient on January 10, 1979, concerned her claim that she had had no period for three months and was in great pain. Examination revealed that her stomach was distended. He did a pelvic examination and found that her vagina was inflamed and she had a vaginal discharge. He gave her antibiotics for the infection and suggested that she have a laparoscopy examination in which a light device is passed through the navel into the fallopian tubes. The conditions described by the patient, if true, are in fact painful. The lack of period can be extremely painful because as a result the organs are swollen with fluid. The vaginal discharge and the history associated therewith indicated a possibility of pelvic disease and an inflammation of the fallopian tubes. It was for this reason that the laparoscopy was suggested.
Because it was obvious that the patient was suffering great discomfort and because of her representation that Dilaudid was all that helped her (she was allergic to codeine and aspirin), he prescribed that drug for her. It is significant to note here that her allergy to codeine and aspirin limited the painkillers she could take and, as a result, which he could prescribe. He states that at the time of the examination, he saw no drug tracks on her body and did not know that she was an addict. He cautioned her on Dilaudid's addictive propensity and wanted her to have the laparoscopy so as to get her off Dilaudid as soon as possible.
Dr. Lieberman was again visited by Ms. Creed in March 1979, approximately two months after the first visit. During this second visit, in which she stated she again had no period in the intervening two months since the first visit, the examination reflected that her stomach was tender, as were her organs, as well. The doctor gave her a hormone to start and regulate her periods and Dilaudid for the pain. On each prescription, Dr. Lieberman prescribed 20 capsules of Dilaudid. This drug is for severe pain, and he prescribed it only because, in his professional judgment, he felt she was in pain severe enough to justify it.
Wilda Sue Boudreaux, another of Respondent's former patients, went to see him in May 1979, for the treatment of female problems. Dr. Lieberman recommended she have a hysterectomy, to which she agreed. She went into the hospital on May 23, 1979, for that operation and a bladder tac with removal of preexisting adhesions. Both operations were successful, and she was released after seven days' hospitalization. Dr. Lieberman saw her several times during her postoperative course of treatment.
The surgery was done during the second or third day she was in the hospital. After the surgery, she was having severe pain and complications with a nerve in her leg that had been nicked during the hysterectomy surgery. After she was released from the hospital, because of these conditions, she was in constant, severe pain to the point she could not walk. Pain radiated through her leg and her lower body. She communicated these complaints to the doctor and received from him a prescription for Percodan. The Administrative Complaint alleges she received prescriptions on June 4, 5 and 19 and September 4 and 12. Ms. Boudreaux admits having received all prescriptions except the one on June 5 and denies emphatically that she received prescriptions for Percodan two days in a row.
At the time the doctor prescribed Percodan for her, he told her it was a strong drug and should be taken carefully. She requested it, however, because it was the only drug that helped her.
A couple of months after this surgery, she developed a urinary infection which resulted in severe pain during urination. She also continued to have severe pain in her left side where the leg nerve damage was and repeated pain from the prior surgery. She went back to the Respondent for a follow-up visit, and he hospitalized her for further tests. As a result of the tests, it was determined that the pain was due to severe nerve damage and that the pain would continue for some extended time until the nerve damage healed.
Ms. Boudreaux considers Dr. Lieberman to be a good doctor who was concerned about her as a patient and who, at the time he gave her a prescription, explained to her why she was having the problems, what drugs he was giving her and what the drugs were for. It is her opinion that, throughout the entire period of time she was in contact with him, he appeared to be concerned about her as a person, not only as a patient.
Respondent's testimony regarding his treatment of this patient was consistent with hers. He first saw her in March 1979, when she had a complaint regarding constant vaginal bleeding, painful periods and, as a result, he determined that she needed a complete hysterectomy, including complete removal of the tubes and ovaries, and surgery for preexisting bladder problems. During that operation, she sustained damage to a nerve which resulted in constant pain in her leg and abdomen.
Nerve damage is one of the slowest types of damage to heal. As a result, this patient experienced constant pain over a long period after the surgery. On top of that, she developed a urinary tract infection as a result of the bladder surgery. As a result, she was maintained on Percodan until the infection cleared up and the nerve damage repaired itself.
In the doctor's opinion, all the prescriptions for Percodan were appropriate. It is important to note here and with regard to the other allegations not the date of the prescriptions, but when and how they were to be used. Ms. Boudreaux is a school bus driver and a very responsible person; and Dr. Lieberman felt it was appropriate to prescribe Percodan as he did for her to stockpile them so that she would not have to come back into his office so often. In fact, she did not come back after June 19 until September 4, almost three months later. At that point, she still had the nerve damage and the bladder infection was first discovered.
Petitioner made much of the fact that there may have been a less addictive drug that could have been used, both for this patient and for Linda Creed. Respondent claimed, however, that, based on his knowledge of the case of the individuals, he had no reason to disbelieve them; and in the case of Linda Creed, when she said Dilaudid had worked previously, he prescribed that in good faith. There is no evidence to show he did other than that in any case.
Regarding the allegations pertaining to patient Patricia Rousseau, the patient information reflects that when first seen by Dr. Lieberman, Ms. Rousseau was a 30-year-old waitress with one child. She appeared well kept and was the sole support of herself and her child and needed to continue to work. At the first visit on July 9, 1979, Ms. Rousseau came in for an abortion, which was accomplished. At the time of her release, Dr. Lieberman prescribed 20 Percodan tablets to be taken one every six hours because, in this case, he thought it was medically indicated. Ms. Rousseau indicated she was in severe pain; and, based on the doctor's experience, he was convinced that, as a result of the procedure followed surgically, the pain could last for at least five days, which was the time it would take to use 20 tablets, taking one every six hours.
Dr. Lieberman saw Ms. Rousseau again in January 1980. By this time, she had gotten pregnant again and wanted another abortion. She advised him that she had been to a clinic for that procedure and had developed an ovarian cyst. When Dr. Lieberman examined her, he felt that she could have a cyst, which, in his opinion, is a painful condition, and gave her medication for it. Here, he feels Percodan was indicated because of the fact that the condition arose from a second abortion and the additional pain that went along with it.
Along with this condition, she also had dismenhorreah, a condition manifesting itself in painful periods, which, according to the Respondent, can be extremely painful and, in some women, totally disabling. Considering the fact that the patient needed to continue to work, as she was the sole support of herself and her child and could not be bedridden because of her period for three to five days each month, he felt Percodan was indicated, which he prescribed 15 or 20 at a time once a month for use during her period. The quantities prescribed were not, in his opinion, excessive.
An additional patient who visited Respondent and whose course of treatment was considered to be improper by Petitioner was Martha Star Curtis, whose first visit to Respondent was on July 27, 1978. She was complaining of lower abdominal pain which, upon examination, turned out to result from a pregnancy. On August 2, 1978, this pregnancy was aborted. Her medical history, taken by Dr. Lieberman, revealed a prior ectopic pregnancy in the right tube and a lost tube and ovary. The following year, she had a cyst removed from her left ovary.
At her first postoperative checkup, three weeks after surgery, Dr. Lieberman noticed a small ovarian cyst. When she came back a month later, the cyst was larger and was very painful. This pain related to the cyst was magnified because of chronic pelvic inflammatory disease, and Dr. Lieberman proposed to do a laparoscopy. Ms. Curtis had previously agreed that if this procedure had shown anything irregular, the doctor could go in, check it out and take care of whatever problem existed on the condition that her reproductive capability not be removed.
As it turned out, upon accomplishment of the procedure, the doctor discovered that Ms. Curtis had substantial internal scar tissue in her pelvic area which had attached itself to her bladder, tubes, ovaries, intestines,
interior of the "belly" and other internal and pelvic areas. This creates almost debilitating, constant pain as scar tissue develops, which increases as the scarring advances. Movement makes it worse--even the simple movements of walking, turning, etc. Even when the scar tissue is removed, it comes back unless there is a hysterectomy.
Contra to this theory is the testimony of the Petitioner's expert, Dr. Lewis, who opined that movement not of the individual, but of the organ, would create pain. This difference in opinion is not particularly significant, however, as it is hard to conceive how movement by an individual, unless undertaken with an extremely delicate step, would not result in movement of the organs. In any case, since Dr. Lewis did not examine the patient, was not familiar with her nature, her makeup, or her disposition, it is more logical to assume that the physician who treated her over an extended period of time would be more acquainted with her condition and with the results of her activities than would one who sits in his office examining merely records. In this case, therefore, the observations and opinions of Respondent, who treated the patient, who performed the surgery and who was familiar with the individual, prevail.
It is also pertinent to note here that Ms. Curtis, at the time this situation was going on, had met a man she intended to marry and bear children for. As a result, she did not agree to have the needed hysterectomy that was the only procedure that would cure the problem and remove the pain, at least until such time as she conceived and bore this man a child. Therefore, under those circumstances, in the opinion of the Respondent, Percodan was appropriate. Even though they are frequent and repeated, in his opinion, in light of her circumstances, her mental, physical, emotional and situational needs, this regimen was called for.
While the Physician's Desk Reference indicates the standard dosage of Percodan as one every six hours, it also provides that this dosage can legitimately and should be exceeded when the situation calls for it. It is pertinent, also, to note here that Ms. Curtis at this time was traveling with her intended husband, a truck driver, in his truck, a situation which created more pain than would normally be experienced, and because of that could not come into the doctor's office as often as necessary. Therefore, in light of the fact that she would not agree to the only procedure that would alleviate her pain, the hysterectomy, and insisted on traveling with her putative husband, it was imperative that she receive relief from the pain, and Percodan was the only thing that would do it.
Dr. Lieberman also treated a Julie Londy, first on August 18, 1980, when she came to see him, complaining of chronic pelvic pain, chronic bleeding from the vagina and painful periods. This lady was married, wanted no children and desired a hysterectomy. She entered the hospital for that procedure on April 22, 1980, and had a total abdominal hysterectomy plus an appendectomy on April 24, 1980. She was discharged on May 3, 1980.
The conjunction of two major surgical procedures may have increased her pain, and her pain may have carried over from the previous condition she was experiencing, thereby reducing her tolerance for pain.
Dr. Lieberman prescribed Tylox on three separate days within a six-day period, May 3, 7 and 9, 1980. Tylox is a Class II drug which is indicated for the reduction of pain. The generally accepted dosage is one every six hours, except in extreme discomfort, when the dosage can be increased.
In this case, Ms. Londy was experiencing great pain because, coincident with her recuperation from the hysterectomy and appendectomy, she was experiencing a bladder infection; and, since she is allergic to codeine, Demerol, Dilaudid and aspirin and had told Respondent that Tylox was the only medication that would relieve her pain to which she was not allergic, he prescribed that substance.
The first prescription was given on May 3, 1980, the day of her discharge from the hospital, and consisted of 40 pills. That should have lasted for ten days at the normal rate. The second prescription, for 30 pills, was given four days later because she was experiencing great discomfort. The third prescription, for 40 more, was administered on May 9, 1980, at her regular follow-up visit, after which the doctor was not to see her again for at least a month. It was his intention, by prescribing so many pills at one time, to give her a restful postoperative recovery; and the large number of pills was an advance. As a matter of fact, after May 9, the doctor did not see her again until late June 1980, some six weeks after the date of the last prescription.
At that time, she was experiencing no pain, and neither asked for nor received additional narcotics.
Respondent first saw Marilyn Quantrill on February 1, 1977. At that time, the patient, a 21-year-old female, was in early stages of pregnancy and wanted an abortion. This procedure was accomplished on February 7, 1977. Shortly thereafter, she got pregnant again and, despite the fact that she was being beaten by her husband, she decided to have the baby and did. Her husband continued to beat and emotionally abuse her (threats to take the child) to the point that she was a "nervous wreck." When she came to see Dr. Lieberman for the Seconal on July 17, 1978, her condition was such that she could not sleep because of her relationship with her husband, and Respondent gave her the Seconal to help her sleep. She was experiencing difficulty in coping with stress, and this condition is made worse by lack of sleep. She needed to sleep, and he gave her the pills in question to help her sleep. He thought his prescription for one pill per day at night for sleep was appropriate.
The total number of Quaaludes prescribed over the five-month period was 210 pills. The period in question accounted for approximately 163 days. This is slightly over one pill per day, not notably excessive.
It is also noted that Dr. Lieberman initially prescribed Seconal, thereafter switching to Quaaludes. He discontinued the Seconal because it was not strong enough to provide the necessary effect in light of her situation. It is also noted that Ms. Quantrill's husband was reported to be a drug dealer. When Dr. Lieberman found out this was the case, he not only stopped providing drugs for Ms. Quantrill, he declined to take her as a patient any longer.
In the case of patient Stormy Druga (Smith) who received a drug called Eskatrol on three different occasions for weight loss, the allegation is not that the doctor prescribed improper amounts of the drug, but that the drug was prescribed for a purpose not permitted under Florida Statutes.
Dr. Lieberman admits prescribing the drug on the date set out and the amount. He had used this drug for this patient before because she was overweight. She had just had a hysterectomy, was getting a divorce and desperately wanted to lose weight to improve her appearance. The prior use was successful in that she lost 30 pounds.
Though Dr. Lieberman subscribed to numerous publications, he did not know that Florida had changed the law, prohibiting the use of Eskatrol for diet purposes. During the period in question, from August through November 1980, Ms. Druga came in every month for a weight control regimen, and he prescribed 30 pills each visit for a total of three visits. Unknown to him, the Florida Legislature had recently changed the law, prohibiting the use of any amphetamines or sympathomimetic amine drug or a compound designated as a Schedule II controlled substance, except for certain conditions of which weight control is not one. The first notice that Dr. Lieberman had that the law was changed was a bulletin issued by the Department of Professional Regulation in February 1981, three months after he stopped the prescription.
In that regard, Dr. Lewis, the Petitioner's witness, stated that according to his experience, a doctor becomes aware of a change in one of several ways: (1) drug company flier, (2) a pharmacist's comment, and (3) national subscription-type letters. However, the State does not normally send out any bulletins regarding changes at the time the change is considered or initially made. Under these circumstances, it is quite likely that Respondent was not aware of the fact that the law had changed, prohibiting the use of Eskatrol for weight control purposes, during the time he prescribed it for Ms. Druga, as alleged.
Each allegation against Respondent was evaluated by an expert in the field of obstetrics/gynecology for both Petitioner and Respondent. Petitioner's expert, Dr. Lewis, concluded, with regard to Ms. Rousseau, at least, that Respondent's charting is weak; he did not indicate on the record if the patient was seen on any of the visits which resulted in the issuance of a prescription and that Percodan, in this case, was prescribed without any clinical entry of observations on the records. On the other hand, Respondent's expert, Dr. Harry
J. Stone, concluded that Percodan was appropriate in both the substance and the amount prescribed for Ms. Rousseau, a total of approximately 320 capsules over a two-plus-year period. If, as was claimed by Dr. Lewis, none of the prescriptions are charted, even that does not constitute malpractice because, according to Dr. Stone, in the practice of obstetrics end gynecology, quite often medications are not charted when the doctor is called out on an emergency situation before he can put it on the chart.
As to Ms. Druga, Dr. Lewis indicated that Eskatrol was withdrawn from market use for weight control in 1980 because so much got into the Black Market and because of the undesirable side effects of amphetamines. The records examined by the doctor, which cover a period of time not alleged in the Administrative Complaint, show that over a period consisting of one year, five months and 21 days, Ms. Druga received 480 capsules and diuretics with a total weight loss of 10 pounds. While this is not successful weight loss maintenance, it is nonetheless not unusual depending upon the individual.
Dr. Stone, himself, did not know of the change in the law regarding Eskatrol when it went into effect on July 1, 1980, and in his opinion, knowledge of this change within the medical community was poor. Both experts are in agreement that the State does not notify doctors of the changes, as the federal government does. The notices generally go to the pharmacists and, as a courtesy, the pharmacist should have called the Respondent, especially since the prescription here clearly stated it was for diet control.
There is no question that prescriptions were issued for Eskatrol by Dr. Lieberman at a time when the law had been changed to prohibit the use of that drug for weight control purposes. It is equally clear, however, that Dr.
Lieberman was unaware of the change and that insufficient effort was made by the State at the time to provide knowledge of the change to the various physicians.
Turning to Ms. Quantrill, Dr. Lewis feels that because the patient came in and requested Valium and thereafter, as indicated in her letter to the Respondent, took 30 milligrams at one time, which is an excessive dose, Respondent should have suspected that she was likely to abuse drugs. She received prescriptions for 210 Quaalude capsules within a 163-day period. Dr. Stone, on the other hand, opined that the amounts in question were justified based on the emotional strain the patient was undergoing, as well as the pain from her condition.
As to Ms. Creed, Dr. Lewis feels that when a patient asks for a particular Class II drug, that is characteristic of an addict, and he does not believe that Dilaudid was called for when Respondent administered it. On the other hand, Dr. Stone, based on the medical records he reviewed, including patient's case history, feels that under the circumstances of the first visit, the prescription of Dilaudid was appropriate in both substance and amount because of the acute pain associated with chronic pelvic disease. The antibiotics that were prescribed by Dr. Lieberman to cure this condition take a long time to work, and the patient needs help to stand the pain. If Dilaudid had worked in the past, it was not inappropriate to use it again. As to the second visit when Ms. Creed got Dilaudid, Dr. Stone feels that again the drug and the amounts prescribed were appropriate for much the same reasons.
As to Ms. Boudreaux, Dr. Lewis feels that Respondent's records do not show any complications, and he feels that the drugs prescribed were too much in quantity for an uncomplicated postoperative course. It should be noted here, as elsewhere, that Dr. Lewis, in examining Dr. Lieberman's records, is at times very critical of them as being not complete enough, but at other times relies on them to support his viewpoint. For example, the witness uses the number of pills listed in the record to support the conclusion of over prescription without knowing the patient or having seen her, but when asked if the records say that Respondent stopped prescribing the drugs, this same witness states, "But we don't know what transpired because it's not in the record of what he saw the patient about, whether a medical problem or a drug problem."
Dr. Stone, on the other hand, is of the opinion that the prescription of Percodan for Ms. Boudreaux was appropriate because of the combination of the two operations., the insertion of a painful catheter for a long period (six days) , the infection (which was painful) and the nerve injury (very painful). Because of the second hospitalization for the infection in September, Dr. Stone feels that the Percodan prescribed in September and October was appropriate.
There does not appear to be an opinion from Dr. Lewis on the treatment given to Ms. Curtis. Dr. Stone, however, opines that the Percodan prescribed by Respondent for this patient from March to July 1979, was justified because of the repeated surgery. A second operation in the same area as former surgery is very painful. This drug can be given and was given at a prescribed rate of one every four hours as necessary for pain. In the opinion of Dr. Stone, this is reasonable, even though the Physician's Desk Reference calls for administration of one every six hours. In addition, continued use, which admittedly this patient had done, develops a tolerance which can result in raised usage. Therefore, even though Dr. Lieberman prescribed 830 pills over 121 days, a rate of almost seven a day, while higher than normal, this is not so aberrant a prescription rate under these circumstances as to be considered necessarily inappropriate or constitute substandard practice.
Dr. Lewis also did not give an opinion as to Ms. Londy, for whom Tylox was prescribed. Dr. Stone, on the other hand, felt that the use of Tylox in the amounts prescribed was justified. Here, the patient had undergone major surgery, including an appendectomy, had had implanted a drain and had developed a fever, which indicates infection, with swelling and pain. All of these conditions justify the use of the drug in the amounts. Though the total quantity may seem high, it should be noted, however, this was only for a short period, and the pain of all the surgery and the patient's condition under these circumstances rendered this prescription in this amount not necessarily inappropriate.
Based on his overall evaluation of the various patient records and his knowledge of Dr. Lieberman gained from observing him on staff at Florida Hospital and Respondent's excellent reputation as a gynecological and obstetrical surgeon in his community, he is satisfied there has been no gross or repeated malpractice in what Dr. Lieberman has done. Further, his review of the records reveals no indication of fraud, trickery, or any of the other alleged deceptive representations or any indication of bad faith on the part of the Respondent. Petitioner offered no evidence of these latter characteristics.
Turning to the issue of medical stockpiling, however, Dr. Stone is quick to admit and recognize that the stockpiling of medicines as was done here in some cases by this Respondent is not a good idea. However, in the world as it exists, it may in some cases, and he is of the opinion that it was in the cases here, be acceptable practice, and not malpractice.
Respondent, who has treated approximately 10,000 patients since he entered medical practice in 1976, routinely prescribes controlled substances in his practice. When he does so, he uses a high degree of care because of the addictive nature of Class II drugs. Before prescribing, he considers the individual and their medical problem needs.
Modern OB/GYN practice allows physicians in these specialties to serve as "full" physicians to women, and they can treat their patients for illnesses other than those related to the OB/GYN practice. Under this situation, the doctor is required to also consider the emotional, physical, psychological and socioeconomic needs of his patients. It is wrong to merely consider records. A doctor treats people.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
In Counts I, V, VIII, XII, XV and XVIII of the Administrative Complaint, Respondent is alleged to have prescribed certain controlled substances in excessive or inappropriate quantities and for a purpose that was not medically justifiable, in violation of Section 458.331(1)(q), Florida Statutes. This provision, which states:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug,
including any controlled substance, other than in the course of the physician's pro- fessional practice. For the purposes of this of this paragraph, it shall be legally pre- sumed 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.
did not become effective until July 1, 1979. Therefore, as to the particular allegations in each of the counts which are alleged to have taken place prior to July 1, 1979, the conduct complained of was not a violation of Florida Statutes as of that time, and there is, therefore, no basis for a finding of guilty, as alleged in the Administrative Complaint.
In Counts II, VI, IX, XIII, XVI and XIX of the Administrative Complaint, Petitioner alleges that Respondent violated Section 893.051, Florida Statutes, by failing to prescribe controlled substances in good faith and in the course of his professional practice, thereby violating Section 458.331(1)(h), Florida Statutes. In that regard, it is noted that as to Count IX, the latter statute is cited as Section 485.311(1)(h), Florida Statutes. Since this particular statute does not relate to disciplinary action, but instead to licensing requirements, and the language of the allegation in that particular count is consistent with others which allege the proper statutory section, it is concluded that the error here is one of administration only, and there was no intent to charge Respondent with a violation of Section 458.311, Florida Statutes.
Section 458.331 did not exist in the 1977 edition of Florida Statutes. This numerical identification first comes in the 1979 edition of the statutes and reads, as follows:
(h) Failing to perform any statutory or legal obligation placed upon a licensed physician.
In that regard, Section 893.05(1), Florida Statutes, states:
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
his direction and supervision only . . . .
It should be noted that this particular provision is the same in the 1977, 1979 and 1981 editions of the Florida Statutes. There is no evidence of bad, faith on the part of Respondent as alleged in these counts.
In Counts III, VII, X, XIV, XVII and XX of the Administrative Complaint, Respondent is alleged to have violated Section 458.331(1)(1), Florida Statutes, in making deceptive, untrue, or fraudulent representations in the
practice of medicine. This conduct is described under Subsection (1)(1) in the 1981 and 1979 editions of the Florida Statutes, which states:
Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the prac- tice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.
However, the 1977 edition of the statute contains the same proscription in Section 458.1201(1)(b), Florida Statutes, a different statutory designation, but substantively the same. Whatever the statutory designation, a thorough review of the evidence clearly shows a lack of any evidence indicating that Respondent made any deceptive, untrue, or fraudulent representations in the practice of medicine and, therefore, there is no evidence to support any of Counts III, VII, X, XIV, XVII, or XX of the Administrative Complaint.
In Count XI, Respondent is alleged to have violated Section 458.331(1)(cc), Florida Statutes, by prescribing, ordering, dispensing, administering, supplying, selling, or giving any drug which is an amphetamine or sympathomimetic amine drug or a compound designated as a Schedule II controlled substance for weight control purposes, which is prohibited by Chapter 893, Florida Statutes, which provides that the drug may be used only for certain purposes, none of which is weight control.
Here, it is important to note that the prescriptions involved for Eskatrol were given on August 22, October 10, and November 4, 1980. Section 458.331(1)(cc) does not appear in the 1979 statutes. It was enacted into law during the regular session of the 1980 Legislature and became effective, under the terms of Article III, Section 9, of the Florida Constitution, 60 days after the adjournment sine die of the legislative session in which this particular provision was enacted. Since the Legislature adjourned on June 30, 1980, the provision became effective on August 30, 1980. Therefore, only the October 10 and November 14 prescriptions fell within the purview of the new law.
Dr. Lieberman admittedly prescribed the substance as alleged, and at the time of prescription the law prohibited the substance's use for the purpose indicated by the doctor, that is, weight control. Therefore, technically, Dr. Lieberman is in violation of the statute. However, it should be noted that not only Dr. Lieberman, but Dr. Lewis, the State's expert, and Dr. Stone, the Respondent's expert, indicated that the State, in the person of the body governing the conduct of doctors, did not in this case, and does not generally, send out notices of law changes, but instead relies upon pharmacists, who are advised by their governing body, and periodicals to apprise the physicians of the change in the law. In this case, both prescriptions were written within 90 days of the effective date of the new law, and in light of Respondent's uncontradicted testimony that he had no indication the law had been changed, it would seem inordinately harsh to penalize Respondent for a technical violation of which he reasonably had no knowledge.
In Count XXI, Petitioner alleges that based on the allegations contained in the previous 20 counts, consisting of 49 separate paragraphs, Respondent is guilty of gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and
circumstances, in violation of Section 458.331(1)(t), Florida Statutes. This provision, alleging gross or repeated malpractice, did not become effective until July 1, 1979. The correlative provision in the 1977 statutes is found in Section 458.1201(1)(m), Florida Statutes, which reads:
The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of any
of the following:
* * *
(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. Unprofessional conduct shall include any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in
which proceeding actual injury to a patient need not be established when the same is com- mitted in the course of his practice,
whether committed within or without this state.
Regardless of the standard applied--that found under the 1977 statutes, or that found under the 1979 statutes--there is no evidence to indicate Dr. Lieberman is guilty of gross or repeated malpractice, negligence (1977), or a deviation from that level of care, skill and treatment recognized as acceptable by a prudent similar physician under similar conditions and circumstances. The testimony of Dr. Lewis, Petitioner's expert, must be discounted when compared with that of the Respondent in that Dr. Lewis examined cold documentation and was not familiar with Dr. Lieberman's reasons for prescribing as he did under the circumstances. As the Respondent stated, albeit in his own defense, proper treatment cannot be effected on the basis of records alone. A physician treats the whole patient, and in light of that, it cannot fairly be said that Respondent's treatment here is malpractice, negligence, or any other substandard misconduct.
We return, then, to Count I, relating to the prescription of Dilaudid during the period from December 1978, to February 1982. Notwithstanding the testimony of Dr. Lewis, which would indicate that from certain comments addressed to the Respondent by his patient, the doctor should have known these comments were indicative of a drug abuser, the Respondent testified that on the basis of a complete examination, he did not notice any track marks on the patient's arms and, in fact, did discover certain physical conditions which indicated that his prescriptions were appropriate.
This same count, at Paragraph 7, alleges Respondent violated Section 893.05(1), Florida Statutes, by failing to prescribe a controlled substance in good faith in the course of his professional practice. Analysis of the evidence presented on this point fails in any way to show a lack of good faith on the part of Dr. Lieberman or that the prescription was outside the course of his professional practice.
In Count IV, it is alleged Respondent prescribed Percodan on five occasions between June 4 and October 12, 1979, to Sue Boudreaux. The thrust of the allegation to the effect that said prescriptions were not prescribed for
medically justifiable purposes and were inappropriate or excessive in quantity has previously been discussed as it relates to the statutory prohibition in the 1977 edition of the statute. Ms. Boudreaux, who testified at the hearing, categorically denied that she received a prescription on June 5, 1979; and the prescription itself, entered into evidence by Petitioner, clearly reflects that that particular prescription was canceled. Therefore, even were the dates in question not within the period preexisting the enactment of the 1979 prohibition or relied upon by Petitioner, there would be no evidence of guilt as to that particular prescription. Be that as it may, the prescriptions written on June 4 and June 19, 1979, which predate the statutory prohibition, cannot be considered improper. They may, however, be considered as background information in the consideration as to whether the Respondent's entire course of treatment and prescription record for this patient were or were not appropriate. In light of the testimony, it must be concluded that they were.
Similar rationale applies to the prescriptions for Percodan issued to Martha Curtis, as outlined in Count XVIII of the Administrative Complaint. The first 18 of the 21 prescriptions alleged fall within the period during which there was no statutory prohibition as outlined in the Administrative Complaint. Again, however, evidence of these prescriptions may be considered in determining the appropriateness of the Respondent's activities; and, again, in light of the testimony of Dr. Lewis, it cannot be said that, under the circumstances of this case, the conduct of the Respondent was inappropriate.
In Count XII, Respondent is alleged to have prescribed 110 Tylox capsules by three prescriptions over a period of six days, in violation of Section 458.331(1)(g), Florida Statutes. The 1979 Florida Statutes in fact make unjustified, inappropriate, or excessive prescriptions a disciplinary offense. However, the testimony introduced at the hearing, taken in toto, fails to satisfy the test of a showing by clear and convincing evidence that the Respondent's prescriptions here were improper.
In Count XV, it is alleged that between July 17, 1978, and January 2, 1979, the Respondent violated Section 458.331(1)(q), Florida Statutes, by prescribing inordinate amounts of a prescription drug for a nonmedically justifiable purpose. It may be that in this case the prescription of Quaaludes, Seconal and Percodan was excessive. However, the statute upon which Petitioner relied did not exist at the time the prescriptions were written since it was, as previously stated, not enacted until July 1, 1979. Therefore, Respondent cannot be considered in violation of a statute which did not exist at the time his conduct took place.
In Count XVIII, Respondent is alleged, during the period July 9, 1979, through August 28, 1981, to have prescribed 320 capsules of Percodan to Patricia Rousseau. The period covered constitutes two years, one month and 19 days, or approximately 779 days. Under the circumstances, prescription for one pill every two and one-half days is not considered excessive, so as to constitute a violation of the statute as alleged.
In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly. Here, Petitioner has alleged numerous instances of misconduct which were not proscribed at the time they were committed and relies upon these to establish Respondent's guilt.
Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation for revocation, since the penalty for the infraction lies within
the discretion of the disciplining authority if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d
201 (Fla. 1979). License revocation proceedings have been said to be "penal" in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 478,
491 (Fla. 1973); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979) (reh. den. 1980)
At the formal hearing, Petitioner had the burden to show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint. Further, this state has consistently recognized the importance of ensuring that before an individual is deprived of his or her opportunity to earn a livelihood in the manner for which he or she was trained, the evidence of wrongdoing on which the deprivation action is based must be substantial. As the First District Court of Appeal has stated in Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981):
In a proceeding under a penal statute for suspension or revocation of a valuable busi- ness or professional license, the term "substantial competent evidence" takes on vigorous implications that are not so clearly present on other occasions.
Here, with the sole exception of Count XI, relating to the prescription of Eskatrol for an improper purpose, Petitioner has clearly failed to establish sufficiently any of the allegations contained in the Administrative Complaint. Further, with respect to Count XI, the nature of the offense and the failure of the State in the form of the Petitioner to notify its physicians of a change in the law in a timely fashion mitigates against disciplinary action being taken here.
The parties have submitted proposed recommended orders which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
On the basis of the above, it is, therefore, RECOMMENDED:
That the Administrative Complaint against Respondent, Robert A. Lieberman, M.D., be dismissed and no disciplinary action be taken against him on the basis of the activity alleged in this Administrative Complaint.
RECOMMENDED this 31st day of January 1984, in Tallahassee, Florida.
ARNOLD H . POLLOCK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
FILED with the Clerk of the Division of Administrative Hearings this 31st day of January 1984.
COPIES FURNISHED:
Barbara K. Hobbs, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Herbert M. Hill, Esquire Thomas Michael Burke, Esquire Post Office Box 1873
Orlando, Florida 32802
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Ms. Dorothy Faircloth Executive Director
Board of Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 22, 1990 | Final Order filed. |
| Jan. 31, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 12, 1984 | Agency Final Order | |
| Jan. 31, 1984 | Recommended Order | Evidence fails to show doctor is guilty of improperly prescribing drugs or any other misconduct. |
BOARD OF MEDICAL EXAMINERS vs. CARLOS DE LA FE, 83-000267 (1983)
BOARD OF MEDICAL EXAMINERS vs. ALEXANDER G. TOTH, JR., 83-000267 (1983)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ESTEBAN ANTONIO GENAO, M.D., 83-000267 (1983)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ARTHUR CHARLES ROSENBLATT, M.D., 83-000267 (1983)
