Judges: ARNOLD H. POLLOCK
Agency: Department of Health
Latest Update: Dec. 15, 1983
Summary: Podiatrist who did not examine patient for whom he wrote perscription, who did not keep adequate records, or who did not hold active license is guilty of misconduct.
83-1778.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF PODIATRY, )
)
Petitioner, )
)
vs. ) CASE NO. 83-1778
)
ROBERT N. BARNETT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice a hearing was held before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, on July 19, 1983, in Orlando, Florida. The issue was whether Respondent's license to practice podiatry in the State of Florida should be suspended, revoked, or otherwise disciplined because of the alleged violations of Florida statutes as contained in the Administrative Complaint.
APPEARANCES
For Petitioner: Bruce D. Lamb, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Was not present and was not
represented by counsel. BACKGROUND INFORMATION
By Administrative Complaint containing five counts dated December 3, 1982, Respondent is alleged to have on three separate occasions prescribed a controlled substance to an individual without first examining the individual and without keeping written medical records regarding the individual in violation of Section 463.013(1)(m), Florida Statutes (1981); prescribing a controlled substance other than in the course of his medical practice in violation of Section 463.013(1)(p), Florida Statutes (1981); failing to practice at an appropriate level of skill in violation of Section 461.013 (1)(t), Florida Statutes (1981); practicing podiatry without an active license in violation of Section 461.012-(1)(a), Florida Statutes (1981); and prescribing a controlled substance without a valid Drug Enforcement Administration (DEA) registration in violation of Section 461.013(1)(h), Florida Statutes (1981).
Petitioner introduced the testimony of Gregory R. Cooley, Ronald B. Buckmaster, Robert L. Brown and Dr. E. M. Guttman, and Petitioner's Exhibits 1 through 7.
FINDINGS OF FACT
At all times pertinent to this case, Respondent was licensed to practice podiatry under the laws of the State of Florida under License No. 000152, though this license became inactive on December 31, 1979, because Respondent failed to transmit a renewal fee as required.
Respondent also failed to complete continuing education as required by enactment of the 1979 Florida Legislature, and his license would have become inactive as of December 31, 1981, for that reason if not for that as outlined in Paragraph 1, supra.
On July 14, 19, and 26; 1982, Respondent wrote and issued three separate prescriptions for thirty 40 mg. tablets of Dilaudid for Mr. Ronald Johns. These prescriptions were taken to the Fairbanks Pharmacy in Winter Park, Florida, by Mr. Johns, where they were issued Prescription Nos. 334502, 334454 and 334853, and at least the first two of them were filled.
Because the pharmacist on duty at the time the third prescription was presented became suspicious that three prescriptions for 30 tablets each of a powerful controlled drug were issued to the same person within an eleven-day period, he refused to fill the third and notified the police, who arrested Mr. Johns for utilizing a forged prescription and obtaining drugs by fraud.
Dilaudid is the brand name for hydromorphine hydrochloride, a Schedule II controlled drug, and is normally prescribed for severe and intractable pain of short duration. Consequently, ninety pills of this substance prescribed within eleven days would be both excessive and professionally inappropriate.
Respondent, in an interview with an investigator from the Department of professional Regulation on May 4, 1981, subsequently admitted that he issued the three prescriptions to Ronald Johns without having examined him as a courtesy to the Johns's regular physician, who was unavailable. He kept no records of Mr. Johns's visits and did not know what the drug he prescribed, Dilaudid, was. Mr. Johns had come to him complaining of extreme low back pain and requested the prescriptions for Dilaudid which he issued. Further, he failed to respond to a subpoena duces tecum for his records on Mr. Johns.
At the time the prescriptions were issued, Respondent's license to practice podiatry in the State of Florida was inactive and his DEA registration, required to lawfully issue prescriptions for controlled drugs, was not current.
Respondent was evaluated on October 4, 1982, by Dr. E. Michael Guttman, a psychiatrist who, in his report of October 6, 1982, describes Respondent as a childlike eccentric who suffers from an increasing, long-term mixed character and behavior disorder with paranoid, schizoid and schizotypal personality traits. In the doctor's opinion, and I so find, Respondent could not safely and successfully practice podiatry. He is childlike and faulty in his judgment. He suffers from a decidedly impaired decision-making ability, and in his professional practice would stand great danger of being involved in severe instances of negligence. He should not be in practice since because of the above factors his performance would fall well below acceptable professional standards.
Respondent claims that he is still engaged in practice at the Orlando Regional Hospital, where he takes all his meals. Though not on staff, he claims to advise patients and other physicians on podiatry.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case.
In Count I, Respondent is alleged to have violated Section 461.013(1)(m), Florida Statutes (1981), by failing to keep written records justifying his cause of treatment of Mr. Johns. Section 461.013(1)(m) states:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited, to, patient histories, examination results, and test results.
The testimony of Mr. Brown, the Department of Professional Regulation investigator, to the effect that Dr. Barnett failed to deliver any patient records pursuant to the subpoena and Respondent's admission that he failed to keep any clearly shows a violation of this statutory provision.
In Count II, Respondent is alleged to have inappropriately prescribed a controlled drug other than in the course of his professional practice in violation of Section 463.013(1)(p), Florida Statutes (1981), which provides:
(1) . . .
(p) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including all controlled substances, other than in the course of the podiatrist's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the podiatrist's professional practice, without regard to his intent.
Here, the evidence shows that Mr. Johns was not a patient of Respondent, who issued three prescriptions for controlled drug upon request without first examining the patient. This in itself is sufficient showing that Respondent was not engaged in professional treatment of a patient when he wrote them and constitutes proof of the violation.
In Count III, Respondent is alleged to have failed to practice at an acceptable level of skill in violation of Section 461.013(1)(t), Florida Statutes (1981), which states:
(1) . . .
(t) Gross or repeated malpractice or the failure to practice podiatry at a level of
care, skill, and treatment which is recognized by a reasonably prudent podiatrist as being acceptable under similar conditions and circumstances. The board shall give great weight to the standards for malpractice in s.
768.45 in interpreting this provision.
Here, the showing that at the time Respondent issued the prescriptions he did not examine the recipient, did not know what the drug was, and kept no records of either the visit or the prescription is clearly sufficient to establish this allegation. What is more, this conclusion is bolstered by the professional characterization of Respondent by Dr. Guttman as a childlike individual whose judgment and decision-making skills are decidedly impaired and whose ability to safely practice his profession is well below acceptable standards.
In Count IV, Respondent is alleged to have practiced podiatry without an active license in violation of Section 461.012(1)(a), Florida Statutes (1981), which states:
Each of the following acts constitutes a violation of this chapter and is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084:
Practicing or attempting to practice podiatry without an active license or with a license fraudulently obtained.
The documentary evidence admitted at the hearing clearly shows Respondent's license was declared inactive in 1979 and has not been reactivated since. Therefore, at the time he wrote the prescriptions, Respondent did not have an active license, nor does he, at the present. His writing of prescriptions and his giving of podiatric advice without an active license are clear violations of the statute.
Count V alleges that Respondent prescribed a controlled Schedule II drug without being registered with DEA in violation of Section 461.013(1)(h), Florida Statutes (1981), which states:
(1) . . .
(h) Failing to perform any statutory or legal obligation placed upon a licensed podiatrist.
Federal law requires that prescriptions for controlled substances can be lawfully written only by persons properly registered with the DEA. The evidence shows that Respondent is not now, nor was he at the time the prescriptions were written and issued, registered with that agency. His issuance of them, then, was a violation of a legal obligation he had and therefore a violation of this statute as alleged.
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED:
That Respondent's license to practice podiatry in the State of Florida be revoked.
RECOMMENDED this 5th day of August, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 5th day of August, 1983.
COPIES FURNISHED:
Bruce D. Lamb, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Dr. Robert N. Barnett Post Office Box 6551 Orlando, Florida 32803
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Ms. Marcelle Flanagan Executive Director Board of Podiatry
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 83-001778
Orders for Case No: 83-001778
| Issue Date |
Document |
Summary |
|
Nov. 22, 1983 |
Agency Final Order
|
|
|
Aug. 05, 1983 |
Recommended Order
|
Podiatrist who did not examine patient for whom he wrote perscription, who did not keep adequate records, or who did not hold active license is guilty of misconduct.
|
