STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-356

)

GLENN R. JOHNSTON, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on July 7, 1983, in Orlando, Florida. The transcript was received on August 5, 1983, and the parties requested 30 days thereafter to submit proposed findings of fact and conclusions of law. These were timely filed, and have been considered. Where not adopted and incorporated herein, they were found to be irrelevant or immaterial, or not supported by the weight of the evidence, and have been rejected.

APPEARANCES

For Petitioner: Spiro T. Kypreos, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Paul Watson Lambert, Esquire

1114 East Park Avenue Tallahassee, Florida 32301

By Administrative Complaint filed on January 4, 1983, the Respondent was charged in 13 counts with various violations of the Medical Practice Act, Chapter 458, Florida Statutes. At the hearing, the Petitioner dismissed eight counts, and the matter proceeded on the remaining five counts.

Specifically, the Complaint charges that the Respondent prescribed controlled substances to patients Robert Hicks, James Everett, Harold Stacy, and Billy Carr, other than in the course of his professional practice, in violation of Section 458.331(1)(q), Florida Statutes; and that the Respondent engaged in gross or repeated malpractice or the failure to practice 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), Florida Statutes.

Generally, the issue thus presented is whether prescriptions for controlled substances written by the Respondent for patients Robert Hicks, James Everett, Harold Stacy, and Billy Carr, in the quantities and over the time periods set

forth in the Complaint, were for medically justifiable purposes, and in inappropriate or excessive quantities.

In support of the Complaint, the Petitioner presented the testimony by deposition of Dr. Robert Johnson of Tallahassee, who was accepted as a medical expert in the field of general practice.

The Respondent testified in his own behalf, and presented three other witnesses, Dr. Clarence Bailey, Dr. Charles Grant, and Dr. James Louttit, all of Maitland, and each of whom was accepted as a medical expert in the field of family practice.

A total of ten exhibits were offered and received in evidence.

Based upon the stipulations of counsel, the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as the relevant facts:

FINDINGS OF FACT

1. The Respondent, Glenn R. Johnston, is a medical doctor, holding license number ME0018091. His address is 201 North Lakemont Avenue, Winter Park, Florida 32759.

   
   

2. The Respondent obtained his Bachelor of Science degree from the University of Florida in 1966, and his medical degree from Bowman Gray School of Medicine in 1970. He served his internship and a two-year general family practice residency at Jacksonville Naval Hospital while serving in the Navy, and became board certified in family practice in 1973. Subsequently, the Respondent served for four years as Chief of the Family Practice Department at the Naval Regional Medical Center in Orlando. In approximately 1976 the Respondent entered private practice in Orlando with a group of doctors, and began his own medical practice in 1977. The Respondent has been married for sixteen years, and has two children, ages 11 and 13. The Respondent performs his family practice in a responsible manner, utilizing the prescription of narcotics and narcotic pain medications at an overall very low rate.

   
   

3. The Respondent has never before been the subject of an investigation by the Department of Professional Regulation, and this is the first proceeding against him and his medical license.

   
   

4. Between the dates of approximately July 1, 1980, and June 30, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrdchloride for his patient, Robert Hicks in the quantity of 4499.

   
   

5. Between the dates of July 3, 1980, and July 3, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrochloride for his patient, James Everett, in the quantity of 4320.

   
   

6. Between the dates of approximately July 3, 1980, and June 10, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrochloride for his patient, Harold Stacy, in the quantity of 2550.

   
   

7. Between the dates of approximately October 2, 1980, and November 20, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrochloride, Percodan, and Tylox to his patient, Billy Carr, in the quantities of 1620, 30 and 30, respectively.

8. Dilaudid, Percodan, and Tylox are Schedule II controlled substances pursuant to Chapter 593, Florida Statutes.

   
   

9. The Physicians Desk Reference (PDR) states the following relative to Dilaudid:

   
   

   Description: DILAUDID (hydromorphone hydrochloride)

   (WARNING: May be habit forming), a hydrogenated keton of morphine, is a narcotic analgesic . . .

   * * *

   DRUG ABUSE AND DEPENDENCE: DILAUDID is a

   Schedule II narcotic. Psychic dependence, physical dependence, and tolerance may develop upon repeated administration of narcotics; therefore, DILAUDID should be prescribed and administered with caution.

   However, psychic dependence is unlikely to develop when DILAUDID is used for a short time for the treatment of pain.

   Physical dependence, the condition in which continued administration of the drug is required to prevent the appearance of a withdrawal syndrome, assumes clinically significant proportions only after several weeks of continued narcotic use, although some mild degree of physical dependency may develop after a few days of narcotic therapy. Tolerance, in which increasingly large doses are required in order to produce the same degree of analgesia, is manifested initially by shortened duration of analgesic effect, and subsequently by decreases in the intensity of analgesia. The rate of development of tolerance varies among patients.

   * * *

   Oral: The usual oral dose is 2mg. every 4 to 6 hours as necessary. The dose must be individually adjusted according to severity of pain, patient response and

   patient size. More severe pain may require 4mg. or more every 4 to 6 hours. If the pain increases in severity, analgesia is not adequate or tolerance occurs, a gradual

   increase in dosage may be required. If pain is exceedingly severe, or if prompt response is desired, parenteral DILAUDID should be used initially in adequate amounts to control the pain.

   
   

10. The Respondent prescribed Dilaudid to patient Robert Hicks for severe chronic pain associated with multiple medical problems, primarily related to his severe degenerative rheumatoid arthritis. Mr. Hicks, 49 years of age, had a long history of multiple joint pains, degeneration of his normal joints, chronic

    pain in his joints, swelling and abnormal laboratory tests. He had been diagnosed as having rheumatoid arthritis since 1976 by a neurosurgeon, confirmed by blood tests and x-rays. He was classified as 100 percent disabled in 1977 by the Veterans Administration because of the chronic joint pains of rheumatoid arthritis. He had been seen by numerous doctors and treated with various pain medications including Dilaudid, which was the only drug that allowed him to function. The pains, discomfort and disability that Mr. Hicks suffered were located in most of the joints of his body, especially in his lumbosacral spine, with involvement in the left hip, shoulder areas, both knees and elbows, with swelling and deformity in the hands. Practically every joint in his body was involved. Mr. Hicks frequently used a cane for walking, and occasionally used crutches. He had difficulty in standing from a sitting position and on occasion he used a wheelchair. The Respondent tried several different medications to treat his rheumatoid arthritis, in addition to physical therapy, and used various pain medications, but Dilaudid proved to be the best when used in conjunction with treatment medications that would allow Mr. Hicks sufficient relief to work and function in a reasonably normal life-style. The Respondent prescribed 4 mg. Dilaudid tablets to Mr. Hicks, to be taken in doses within the limits recommended by the Physician's Desk Reference (PDR) in that the overall quantity prescribed for him did not exceed the maximum limit recommended by the PDR. Mr. Hicks also had other medical problems appropriately treated by the Respondent, such as subdeltoid bursitis, lateral ankylosing spondylitis, spondylolisthesis, Reiter's Syndrome, cervical spondylosis and diabetes.

    
    

11. The Respondent prescribed Dilaudid in quantities of two pills of 4 mgs. every four hours as needed for pain, to patient James Everett for chronic severe pain stemming primarily from the lower chest wall and left upper abdominal chest wall which followed a transthoracic hiatal hernia repair performed in 1965. Mr. Everett also had angina with a history of one or two myocardial infarctions in 1970; he was on medication for the angina. The hiatal hernia repair left a surgical scar across his entire left chest, extending from the midportion of the back all the way across his chest and ending right above the stomach, at the lower part of the anterior chest wall, with another scar extending from his epigastric region down the mid-rib and into the lower midline area. During the surgical repair, Mr. Everett suffered a collapsed lung and suffered a great deal of scar tissue visible in his chest x-rays in the area where most of the pain is reported. Most of his pain resulted from the surgical scar tissue rather than the angina, as confirmed by a cardiologist. Mr. Everett was a very debilitated, elderly person, older looking than his 60 years, obese, very pale, with a slow gait; he perspired quite a bit and appeared to be a patient with chronic medical problems. Mr. Everett had been taking Dilaudid on prescription from his previous physician when he became the Respondent's patient. The quantity of Dilaudid prescribed for Mr. Everett did not exceed the maximum recommended dosage. The Respondent tried other medications and therapies to relieve the patient's chronic severe pain, with limited success, and used other methods of treatment for the patient's problems, which included diabetes and high blood pressure. Mr. Everett had been classified 100 percent disabled by the Veterans Administration because of his chronic severe pain. The Respondent concluded that Dilaudid was the only pain medication that would give the patient sufficient relief from pain to enable him to continue his employment and to function in his daily life.

    
    

12. The Respondent prescribed Dilaudid in quantities of 2 tablets of 4 mgs. every 4 hours as needed for pain, to patient Harold Stacy for chronic severe pain relating to acute possibly pinched, nerve, lumbosacral low back pain with radiation into the left leg and degenerative arthritis, possible spinal cord tumor, early hypertrophic osteoarthritis, and possible hernitated disc. At

    age 49, Mr. Stacy was semi-crippled, always requiring a cane while walking and always in a great deal of pain. The hypertrophic arthritis was confirmed by calcium deposits visible on x-ray films. Mr. Stacy was never able to function normally, and could not maintain employment without the pain relief the Dilaudid provided. The Respondent used other medications in an attempt to relieve the pain, but found that Dilaudid was the only medication which would allow Mr.

    Stacy to work and function in as reasonable a fashion as possible. The Respondent treated Mr. Stacy's physical and health problems with an appropriate variety of treatment methods and medications. The quantity of Dilaudid prescribed for Mr. Stacy did not exceed the PDR recommended dosage.

    
    

13. The Respondent prescribed Dilaudid, in dosages of 1-2 tablets of 4 mgs. every 4 hours, to patient Billy Carr for relief of chronic severe low back pain, related to chronic lumbosacral spine strain, chronic prostatitis and spondylolisthesis. Mr. Carr, at age 49, walked with a severe limp, had pain in his perineal area, had difficulty in sitting, and had a deformity in one of his legs due to a pseudoarthritis resulting from a malunion of a fracture of his femur. The Respondent tried several different pain medications and treatment methods, but found that Dilaudid was the only medication which would relieve the pain to allow Mr. Carr to work and enjoy as reasonable a life-style as possible. The quantity of Dilaudid prescribed for Mr. Carr did not exceed the maximum PDR recommended dosage.

    
    

14. The Respondent is a board certified family practitioner. The Petitioner's expert witness, Dr. Robert Johnson, is a general practitioner who is not board certified. The Respondent's expert witnesses, Drs. Charles Grant, James Louttit and Clarence Bailey, are board certified in family practice and testified as such.

    
    

15. All four expert witnesses testified, and it is so found, that a medically justifiable purpose in treating a patient is determined by the treating physician, and means a treatment which enhances the well-being of a patient and enhances the quality of a patient's life, in a manner the physician feels qualified to render.

    
    

16. Reasonable physicians differ in the manner of treating the same condition. Reasonable physicians differ in the manner of treating pain. A person's pain is not measurable. A person's pain threshold is not measurable.

    
    

17. One method of determining the level of medication needed to relieve a person's pain is by titration, that is, adjusting the quantity and type of medication to the patient's symptoms.

    
    

18. Dilaudid is approved by the Federal Drug Administration for the treatment of pain.

    
    

19. The Physician Desk Reference (PDR) does not place a cap on the quantity of Dilaudid to be prescribed for a patient in chronic moderate to severe pain.

    
    

20. The analgesic effect of Dilaudid shortens with continued use. Some patients require a greater amount of Dilaudid to relieve pain than other patients.

    
    

21. It is a medically justifiable purpose to prescribe Dilaudid to a patient for the relief of moderate to severe pain. It is a medically

    justifiable purpose to continue to prescribe Dilaudid to a patient for chronic moderate to severe pain.

    
    

22. It is ethical, and medically justifiable, for a physician to treat a patient who is already habituated or tolerant to Dilaudid, and who has chronic moderate to severe pain, for the purpose of relieving this pain, since the patient should be given relief from the pain.

    
    

23. There is no evidence that any of the four patients treated by the Respondent were drug abusers.

    
    

24. It was medically justifiable for the Respondent to prescribe Dilaudid to each of his four patients during the time periods alleged in the Administrative Complaint.

    
    

25. The quantities of Dilaudid prescribed by the Respondent to each of the four patients during the time period alleged in the Administrative Complaint were neither excessive nor inappropriate.

    
    

26. The evidence is not sufficient to support a finding of fact that the Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonable and prudent physician as being acceptable, under the circumstances alleged in the Administrative Complaint.

    
    

27. There is insufficient evidence to support a finding that the Respondent engaged in repeated malpractice in the treatment of the four subject patients.

    
    

28. Dr. Robert B. Johnson, testifying on behalf of the Petitioner as an expert general practitioner, did not feel that it was medically justifiable for the Respondent to prescribe Dilaudid in the quantities alleged, to each of the four patients, and he testified that such quantities were excessive. However, Dr. Johnson neither saw nor examined the patients, and he was not able to tell from reviewing the patient records how much pain any of the four patients were experiencing. Dr. Johnson also testified that, in his opinion, it is a gross departure from acceptable medical practice to prescribe the quantities of Dilaudid in question to a patient with any history other than terminal cancer, and that it would even be a questionable practice for this purpose; that three months would be the maximum length of time Dilaudid should be prescribed to a patient; and that it is not proper for a physician to continue to treat a patient for chronic moderate to severe pain by prescription of Dilaudid in the quantities and over the time periods alleged in the complaint; yet Dr. Johnson could find no physical harm to any of the four patients resulting from the Respondent's treatment. On the basis of the records reviewed, Dr. Johnson could not testify that the Respondent prescribed the Dilaudid in question other than in the course of his medical practice.

    
    

29. The opinions of Dr. Johnson, however, were contradicted by the expert opinions of the Respondent's medical witnesses, Drs. Hailey, Grant and Louttit, except for their agreement that the Respondent's patients suffered no physical harm from their treatment by the Respondent, and that the Respondent prescribed Dilaudid to the four subject patients in the course of his medical practice. Where the expert medical opinions are in conflict, the testimony of Dr. Johnson is rejected as less credible than the opinions of Drs. Bailey, Grant and Louttit.

    CONCLUSIONS OF LAW

    
    

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

    
    

31. Section 458.331(1), Florida Statutes, authorizes the discipline of physicians in the following pertinent circumstances:

    
    

    (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 course of the physician's professional practice, without regard to his intent.

    
    

    and in the following:

    
    

    (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 . . .

    
    

32. The weight of the evidence presented by the Petitioner is not of the substantial nature necessary to establish a violation of the penal statutes, subsection 458.331(1)(q) or (t), Florida Statutes. See Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

    
    

33. The Respondent's method of treatment of the four subject patients is reasonable under the circumstances, and the Petitioner did not present sufficient evidence to warrant a conclusion that the Respondent's treatment of these patients was unreasonable. Although reasonable physicians may differ in the manner of treatment of patients, such a difference of opinion does not make a particular treatment unreasonable or harmful. Rogers v. State Board of Medical Examiners, 371 So.2d 1037 (Fla. 1st DCA 1979); State Hoard of Medical Examiners of Florida, v. Rogers, 357 So.2d 937 (Fla. 1980).

    
    

34. As to each of the four patients named in the Administrative Complaint the Respondent's prescription of Dilaudid was in the course of his professional practice.

    
    

35. As to each patient named in the Administrative Complaint, the Respondent's treatment does not constitute gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by reasonably prudent similar physician as being acceptable under similar conditions.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medical Examiners enter a Final Order finding

the Respondent, Glenn R. Johnston, M.D., not guilty of Counts I, IV, VII, X and XIII in the Administrative Complaint, and that the Board dismiss the Administrative Complaint with prejudice.

THIS RECOMMENDED ORDER entered this 30th day of September, 1983.

WILLIAM B. THOMAS, 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 30th day of September, 1983.

COPIES FURNISHED:

Spiro T. Kypreos, Esquire

130 North Monroe Street Tallahassee, Florida 32301

Paul Watson Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director Department of Professional

Regulation,

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

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

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 83-356

GLENN R. JOHNSTON, M.D.,

License No. 12142

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter came before the Board of Medical Examiners (Board hereinafter) pursuant to Section 120.57(1)(b)9., Florida Statutes, on December 2, 1983, in Miami, 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 Spiro T. Kyprsos, Esquire. The Respondent was represented by Paul W. Lanbert, Esquire. 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 and adopted except for the hearing officer's findings that Respondent's prescriptions of Dilaudid, Percodan and Tylox to Robert Hicks, James Everett, Harold Stacy and Billy Carr in the quantities alleged was appropriate and not excessive and did not constitute the failure to practice medicine with the level of care, skill and treatment which is recognized by a reasonable and prudent physician as being acceptable. The Board also rejects the hearing officer's underlying finding that it is medically proper for a physician to treat a patient with chronic moderate to severe pain and who is already habituated to Dilaudid by prescribing Dilaudid. The rationale of the hearing officer in making this finding is that a patient should be given relief from his pain.

   
   

2. The Board's rejection of these findings of the hearing officer is grounded in its special knowledge and expertise in the practice of medicine. See, McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1979). Despite the expert testimony presented by Respondent and relied upon by the hearing officer, the Board finds from its special knowledge in the field of medicine that it is not medically justifiable for a physical to continue to treat a non-terminally ill patient fro chronic moderate to severe pain by prescribing dosages of narcotics in the quantities and over the time periods

   Respondent did. The Board finds that it is improper for a physician to prescribe dosages of narcotics in the quantities and over the time periods Respondent did simply for the treatment of pain. Having found competent, substantial evidence in the record to support the hearing officer's findings as to the quantity and time periods of the prescriptions in question, the Board finds that these prescriptions were inappropriate and constituted the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonable and prudent physician as being acceptable. The Board accepts the expert testimony of Dr. Johnson as an accurate statement of what it finds to be the proper policy in prescribing narcotics to non-terminal patients.

   
   

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

   
   

   CONCLUSIONS OF LAW

   
   

4. Paragraphs 1 and 2 of the hearing officer's conclusions of law are approved and adopted in toto and are incorporated herein by reference.

   
   

5. The Board rejects paragraphs 3, 4, 5 and 6 of the hearing officer's conclusions of law as being inconsistent with the Board's finding that the prescriptions in question were inappropriate and excessive and that Respondent's conduct in writing those prescriptions constituted a failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonable and prudent physician as being appropriate.

   
   

6. It is the conclusion of the Board that Respondent violated Sections 458.331(1)(q) and (t), Florida Statutes, as charged in the Administrative Complaint.

   
   

7. There is competent, substantial evidence to support the Board's conclusion of law.

   
   

8. In view of the Board's findings and conclusions, the hearing officer's recommendation that the Administrative Complaint be dismissed is rejected.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent is guilty of violating Section 458.331(l)(q) and (t), Florida Statutes, as charged in the Administrative Complaint. The Respondent is placed on probation for a period of one (1) year beginning the effective date of this Order. As a condition of his probation, Respondent shall make semi-annual personal appearances before the Board. This Order becomes effective upon filing.

DONE and ORDERED this 9th day of January, 1984.

Richard J. Feinstein, M.D. Chairman, Board of Medical

Examiners

Docket for Case No: 83-000356

Orders for Case No: 83-000356