STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 83-2698
)
STEVEN M. VAN ORE, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice this cause cane on for hearing before P. Michael Ruff, Hearing Officer, on April 3 and 4, 1984 in Orlando, Florida.
APPEARANCES
For Petitioner: Willian M. Furlow, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Ralph V. Hadley, III, Esquire
Post Office Box 1340
Winter Garden, Florida 32787
and
Paul Watson Lambert, Esquire SLEPIN, SLEPIN, LAMBERT and WAAS
1114 East Park Avenue Tallahassee, Florida 32301
Pursuant to the Petitioner's Amended Administrative Complaint, the Respondent has been charged in seven counts with various violations of the Medical Practice Act, Chapter 458, Florida Statutes. At the hearing, the Petitioner voluntarily dismissed Count Five, and the matter proceeded to trial on the remaining six counts.
Count One of the amended complaint charges that the Respondent permitted certain physician's assistants, certified to the Respondent, Gary L. Chase and Denise Grant, to examine and treat patients while not under the responsible supervision and control of the Respondent, and that the Respondent furnished prep signed prescription blanks to those physician's assistants for issuance to patients, which blanks were used by those assistants. It is charged that these physician's assistants, with the knowledge and approval of the Respondent, prescribed and dispensed certain scheduled controlled substances which constitutes a violation of Section 458.331(1)(aa), Florida Statutes, by the Respondent's pre-signing blank prescriptions and allowing them to be used; Section 458.331(1)(g), Florida Statutes, for aiding, assisting, procuring or
advising unlicensed persons to practice medicine contrary to Chapter 458 and Section 458.331(1)(w), Florida Statutes, for delegating professional responsibilities to persons which the Respondent knows, or has reason to know, they are not qualified to perform.
In Counts Two, Three, Four and Six of the Amended Complaint it is charged that Respondent prescribed controlled substances to patients Josephine Inbornone, Robert Marsh, Eleanor Rooker and Arthur Van Vlack, other than in the course of his professional practice, in violation of Section 458.331(1)(q), Florida Statutes, as well as Section 893.05(1), Florida Statutes, by the alleged failure to prescribe controlled substances in good faith. It is also charged as to these counts that the Respondent violated Section 458.331(1)(h), Florida Statutes, by failing to perform a legal obligation placed upon a licensed physician as well as Section 458.331(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice. Finally, Count Seven of the Amended Complaint charges that the Respondent engaged in gross or repeated malpractice or failed to practice medicine with that level of care, skill and treatment recognized by reasonably prudent, similar physicians as being acceptable under similar conditions and circumstances, in violation of Section 458.331(1)(t), Florida Statutes.
In support of the Amended Complaint, the Petitioner presented the testimony of John Spanogle, Investigator of the Department of Professional Regulation, and John Handwerker, M.D. of Miami, a medical consultant for the Department of Professional Regulation, who was accepted as a medical expert in the field of general practice, but who is not board certified.
The Respondent presented the testimony of William E. Story, M.D., of Orlando, Florida, a medical consultant for the Department of Professional Regulation and a board certified internist and cardiologist. He was accepted as an expert witness in the field of internal medicine and general practice as it relates to the particular types of patients involved in the Amended Complaint.
The Respondent also presented the testimony of Dr. Joseph N. Brouillett, M.D., of Winter Park, Florida, who is board certified in the areas of general surgery and colonrectal surgery, and who was accepted as a medical expert in those areas. The Respondent also presented the testimony of Reverend Alonso E. Davis, Minister, Asbury United Methodist Church, Maitland, Florida.
Seventeen exhibits were offered and received into evidence. Petitioner's Exhibits 10 through 14 consisted of the patient records of the five patients listed In the Amended Complaint. Those exhibits were found to have also contained the patient records of patients who were not named in the Administrative Complaint. Thus, those extraneous patient records are stricken from the record hereof. Further, the deposition of Gary Chase, the Respondent's physician's assistant, was admitted into evidence on behalf of Petitioner over Respondent's objection. That deposition was admitted subject to the rulings on objections made by the Respondent which are summarized in the "Stipulation on Rulings on Objections to Deposition of Gary Chase" which is in evidence as joint counsel's Exhibit 1.
The issue presented as to Count One involves whether the Respondent failed to provide reasonable supervision and control of his physician's assistants between the dates of September, 1980 and January, 1982, whether the Respondent furnished pre- signed prescription blanks to those assistants for issuance to patients, and whether, with his specific knowledge and approval, those
physician's assistants prescribed, dispensed and administered medication and scheduled controlled substances.
The issue to be resolved generally as to Counts Two, Three, Four, Six and Seven concerns whether prescriptions for controlled substances written by Respondent for the patients named therein, in the quantities and over the time periods set forth in those counts, were for medically justifiable purposes and in appropriate or excessive quantities.
Finally, as to Count Seven, the issue is whether these alleged activities constituted gross or repeated malpractice or failure to practice with the level of care and skill recognized by reasonably prudent similar physicians under similar conditions and circumstances.
The final issue, assuming the above charges are proven, concerns what, if any, penalty is warranted.
Subsequent to the hearing, the parties elected to obtain a transcript of the proceeding and to file proposed findings of fact and conclusions of law. A further motion hearing was had telephonically concerning the question of the admissibility, post-hearing, of the deposition of Gary Chase, which was the culmination of a lengthy post-hearing effort by Petitioner's counsel to locate the absent witness Chase. In view of this, an extended briefing schedule was agreed to, and the requirement of Rule 28-5.402 was waived by the parties.
All proposed findings of fact, conclusions of law and supporting arguments have been considered. To the extent that they are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor as necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. See, Sonny's Italian Restaurant v. Department of Business Regulation, 414 So. 2d 1156, 1157 (Fla. 3d DCA 1982); Sierra Club v. Orlando Utilities Commission, 436 So. 2d 383 (Fla. 5th DCA 1983).
FINDINGS OF FACT
The Respondent, Steven M. Van Ore, M.D. is a medical doctor holding license number ME0018621. The Respondent graduated from the University of Miami Medical School in 1970 and received his license to practice medicine in Florida in 1971. He served his internship and residency in internal medicine at Orange Memorial Hospital in Orlando, Florida, and became a diplomate of the American Board of Family Practice in 1977, certified in that area through 1990. The Respondent is currently engaged in the private practice of family medicine in Maitland Florida. Since 1976 he has held various academic posts, received a number of professional awards and has actively served in various medical societies and on various medical committees.
The Petitioner is an agency of the State of Florida charged with regulating the licensure of physicians and enforcing the medical practice standards embodied in Chapter 458, Florida Statutes, the "medical practice act."
In four separate counts, the Petitioner accuses Respondent of failing to prescribe certain Schedule II controlled substances to four different patients for medically justifiable purposes and charges him with prescribing
them inappropriately or in excessive quantities. The substances involved are Mepergan Fortis, Demerol, Dilaudid, Percodan, Percocet, Tylox, Dolophine and Methadone.
There is no question that the four patients involved in these counts suffered chronic, moderate to severe pain, for which they were treated by the Respondent. The Physician's Desk Reference, accepted by the parties as an authoritative indicator of appropriate drug usage including types and amounts for given diseases or conditions, places no limit on the amount of prescription of Schedule II controlled substances in question for patients suffering from chronic moderate o severe pain.
Drs. William Story and Brouillett, accepted as expert witnesses, testifying on behalf of the Respondent in the above- mentioned areas of medical practice, based their expert testimony upon a complete review of the treatment records and charts of the four patients involved herein and in addition, Dr. Story had some firsthand knowledge of the patients' medical histories, conditions, problems and progress. Dr. Story also reviewed the hospital charts at the hospitals where each patient was sent from time to time when his review of Dr. Van Ore's own records revealed those hospitalizations. Dr. Handwerker, testifying as an expert witness for the Petitioner, did not review the hospital charts of these patients, nor familiarize himself with the necessity for their hospitalizations as that relates to the chronic severe nature of their pain and other ailments and the attendant appropriateness of the drugs prescribed for these patients by the Respondent.
It was thus established that patient Josephine Inbornone was followed and treated by Dr. Van Ore from February 16, 1979 to December 9, 1980. During that time he saw her 20 times in the hospital and 20 times in his office. He also sought and obtained consultation with specialists Dr. Biggerstaff and Dr. Lett who saw her on a number of occasions, for a total of 28 office visits between the three of them. The patient suffers from a severe, chronic, low-back pain and chronic sciatica. During Respondent's "work-up" of the patient, she was tried on a variety of medications including Sinnequan and Tylenol 3, which she could not take because of allergies. She was allergic also to Percodan, Codeine, Darvon and Talwin. Her pain and discomfort could not be controlled with non-steroidal anti-inflammatory drugs. A trans-neuro stimulator was used, to no avail. Her severe back pain resulted in six different hospitalizations while she was under the care of Dr. Van Ore. The first hospitalization was in February, 1979 and she was later admitted on June 25, 1979 with acute diverticulitis. There was some evidence at this time that she also suffered from "anxiety neurosis." On June 3, 1980 she suffered a severe lumbrosacral strain from a fall on a wet floor in a store, which required hospitalization. She was again hospitalized on September 12, 1980 complaining of persistent abdominal pain and was hospitalized later that year with chronic, severe back pain. The patient was seen by Dr. Urbach on her sixth hospital admission for a psychiatric evaluation. By that time it was obvious to the Respondent that the patient had developed a drug problem because of her severe, chronic and disabling back pain which required chronic administration of narcotic drugs.
Her condition was aggravated by the fact that she was markedly overweight (which strained her back) and because of her drug allergies which prevented her taking milder drugs. As part of her evaluation in the course of her various hospitalizations, she had a CT scan of the spine, extensive x- rays, barium enemas, upper GI x-rays and other tests designed to evaluate the nature and cause of her chronic, severe back pain as well as her recurrent abdominal pain. No major pathologic condition was found and she was felt to have an anxiety neurosis by the Respondent and Dr. Urbach.
As early as February 23, 1979, upon her admission to Winter Park Hospital, the Respondent noted that she had a chronic problem with severe low back pain that seemed resistant to every drug for control of pain, including Vistiril, Percodan, Codeine, Darvon, Phenobarbital and Indocin. The Respondent further noted her allergic reaction to many of those drugs and, as early as that date, also noted that they were going to attempt to eliminate some of the medication she was taking because of concern about possible drug addiction. The Respondent's and other physician's inability to control her pain is evident by her multiple hospitalizations because of the debilitating nature of her pain which could not be alleviated without Schedule II narcotic type drugs. In short, the patient was clearly a difficult patient who had a psychiatric overlay which was noted by both Drs. Van Ore and Urbach. She suffered from severe low back pain as well as abdominal pain. Numerous attempts were made to discern the cause of these multiple admissions which were felt to be severe and functional in origin. Unquestionably her low back pain was aggravated by her multiple falls which she had had in the past, as well as by her chronic obesity.
It is noteworthy that the Respondent involved consultants who documented the patient's severe back pain requiring the drug usage and that the Respondent noted early in his experience with the patient, that the drug usage should be tapered off as much as possible. It is also noteworthy that minor narcotic drugs such as Codeine, as well as non-steroidal, anti-inflammatory drugs, were tried first and were either unsuccessful or caused an allergic reaction. The multiple admissions to the hospital show a concerted effort to fully evaluate the patient's needs, a thorough attempt to find the cause for her severe pain and a means to alleviate it permanently. Nothing of a curative nature could be found so that she was left with a residual pain which ultimately led to a marked physical impairment. Narcotic Schedule II drugs were determined after numerous tests and evaluations and hospitalizations, to be the only means by which her pain could be alleviated. This was done with the open recognition, reflected in the Respondent's notes, that the chronic use of narcotic drugs could lead to both dependency as well as to drug tolerance, which would result in the need for heavier doses of the same drugs. With this in mind, the Respondent made an attempt to wean the patient away from Schedule II drugs as much as possible, and the patient ultimately went to another clinic specializing in the control of chronic, severe pain.
Dr. Story opined after thoroughly reviewing the Respondent's charts and notes for this patient, as well as his hospital records related to her, that there was no evidence of malpractice or misuse of drugs. The need for narcotic drugs in this case was well documented, as were the attempts by the Respondent to try to wean her from narcotic drugs to the extent possible when balanced with the doctor's felt obligation to try to alleviate her pain with whatever means proved successful. In fact the Respondent attempted to use less potent drugs to the extent possible and only resorted to Schedule II narcotic drugs when the lesser drug proved either ineffectual or allergic. The Respondent's concern and attempts to get at the root cause of her pain is demonstrated by his reference of her to a number of other physicians, orthopedic surgeons, a psychiatrist as well as family far physicians, all of whom ultimately agreed that the pain seemed to be legitimate in nature and a source of great discomfort to the patient. Although Dr. Story, the Respondent and the other physicians who saw the patient were concerned about the narcotic drug dependency, Dr. Story opined that there was no evidence of misuse of drugs in this case in his professional opinion. The patient will always be a difficult patient for whomever takes care of her because of her chronic low back pain and the chronic anxiety overlay which often accompanies chronic, severe pain. He found the Respondent provided
competent care for the patient with concomitant genuine concern for her narcotics requirement and her long term need for narcotic drugs.
Robert Marsh began seeing Dr. Van Ore in 1981 for severe back pain caused by his having fallen from a scaffold on a construction site. At the behest of the Respondent, the patient was seen by several orthopedic and neurological specialists and was eventually diagnosed to have defects of the lower lumbar spine after a myelogram was performed. His back pain at this time was severe and he required narcotic drugs (Schedule II) for the relief of that pain. The patient was first seen on May 20, 1981 and was given Tylox and Robaxin. He was then referred to Dr. Martin Brown for evaluation. His back continued to be severely painful, ultimately requiring prescription of Dilaudid over the period of the next few months. At the same time he was treated conservatively, which is the usual course of practice in treatment for low back pain. He continued to suffer severe back pain, radiating into his extremities, however, requiring Dilaudid and Mepergan Fortis for relief. During the course of this conservative treatment and prescribing of narcotic medications, the Respondent expressed concern in his notes on August 27, 1981, that the patient might be developing a drug abuse potential. The plan thus was to commit him for hospitalization at that point. Concern was again expressed by the Respondent on October 7, 1981, that the chronic low back pain was requiring narcotic usage and that the patient would need weaning from the drug and perhaps a trial usage of Methadone. On October 20, 1981, the Respondent's notes reflect that he felt that the patient was addicted to Dilaudid, which is a common problem when narcotic drugs must be used for several months at a time for pain. Fortunately, the patient in early 1982, had surgery, a laminectomy, which almost totally relieved his back pain. The Respondent then successfully weaned him away from narcotic drugs. The patient's back pain had been severe and at times excruciating. CT scans and back x-rays, as well as myleogram studies, revealed a rupture of a disc in the lumbar area. These tests were performed by specialists to whom the Respondent had referred the patient.
The pain had been present for approximately one and a half years by the time the patient first saw Dr. Van Ore. A complete evaluation was done by Van Ore as well as by the orthopedic specialist, Dr. Billotta, and a radiologist, to whom Van Ore referred the patient. It is noteworthy that a complete evaluation was done and consultation was obtained early in the patient's course of treatment with the Respondent, from practitioners in the above specialities. There is a significant danger, recognized in Respondent's own notes, of narcotic addiction through long term use of narcotic drugs to relieve pain, but these medications were the only thing that provided relief for the patient until ultimate evaluations and examinations revealed the necessity for surgery which finally got at the cause of his pain and alleviated it. The Respondent then followed up with the patient and successfully weaned him from his dependence on narcotics.
Dr. Story opined that the patient was given the usual and appropriate care and treatment by the Respondent, who diagnosed his injury, tried conservative medical treatment at first, and employed the use of narcotic drugs appropriately since that was the only thing which proved to alleviate the excruciating pain the patient was suffering. Dr. Story opined that the Respondent's practice with regard to this patient was well within the limits of acceptable practice as recognized by similar physicians in the community, under similar conditions and circumstances.
Mrs. Eleanor Rooker was also seen by Dr. Story as a patient for cardiac problems of a rather severe nature. She is a 55-year old female with a
long history of chest pain and back pain. She had a colostomy due to ruptured diverticulun and has had recurrent admissions to the hospital for chest pain. Ultimately she was diagnosed as having arteriosclerotic heart disease, with multiple coronary lesions. Chronic angina is a major problem for her. The patient was also admitted on February 7, 1983, for severe low back pain with nerve root irritation as well as severe sciatica. A myleogram at that time indicated that there nay be a disc problem in her back. A thermogram of the back and lower extremities showed some signs of degenerative nerve conduction because of nerve root compression. The patient was obviously suffering from severe back pain and was treated by the Respondent with conservative bed rest, muscle relaxers and analgesic agents. Over the years the Respondent saw her, Eleanor Rooker had multiple admissions to hospitals for painful heart conditions involving angina, secondary to arteriosclerotic disease and in November 1980, for congestive heart failure. She has a chronic heart condition which ultimately required bypass surgery because of her severe coronary artery disease. Also, at least as early as her hospital admission of February 6, 1981, the patient developed severe tension headaches which caused severe, recurrent pain. The patient required large doses of medication to control her painful headaches and Dr. Mueller, a psychiatrist called in to see her concerning her headaches, found that the patient was dependent upon Darvocet which she was taking as a means to control the severe, chronic, headache pain. Thus, between the years 1980 and March, 1984, the patient was in the hospital numerous times and was referred by the Respondent to numerous specialists to try to get at the cause of her back pain as well as her chronic headache pain, wholly aside from the hospitalizations and treatment for her heart problems.
During this time the Respondent and other specialists, such as Drs. Tatum and Brown, a psychiatrist and a neurologist, respectively, (who saw the patient concerning her severe headaches) agrcee that she had chronic, severe pain and a problem of narcotic dependence involving Fiorinal, Tylenol 3 and Darvocet. At least as early as October 3, 1981, when she was admitted to the hospital, Dr. Van Ore felt she was suffering from drug dependency and he made an effort to get her weaned away from narcotic drugs at that time. The patient obviously has very real, legitimate illnesses and conditions which cause her chronic, severe pain. All of these have combined to give the patient a great deal of distress and discomfort and has created a frequent need for narcotic drugs since milder drugs have not controlled her discomfort. Her legitimate medical illnesses are coupled with a psychiatric anxiety overlay because of the chronic, long-standing nature of her pain. Her illnesses are severe in nature, are very disabling and require large dosages of multiple narcotic medications. In time the patient did become dependent on Darvocet and required fairly large doses because chronic narcotic drug usage results in the development of a drug tolerance in many patients, requiring larger doses, progressively, to maintain analgesic effectiveness.
In short, the patient suffered from a number of legitimate medical illnesses and a large number of sub-specialty consultants were asked to evaluate her multiple areas of pain, including Dr. Nosaro and Dr. Story himself for cardiac evaluation, Dr. Uricchio and Dr. Murray for musculoskeletal and lumbar pain evaluation, Drs. Modd, Brown and Dunaway for evaluation of severe headaches and lumbar pain; psychiatric consultation by Dr. Quinones and Dr. Paskiwitz. It was thus established that Dr. Van Ore made strenuous efforts to determine the cause of the patient's different medical problems, found no easy solutions for them and when confronted with the chronic pain the patient suffered, felt he had no choice but to prescribe narcotic drugs in increasingly large amounts as her tolerance increased. The doctor made concomitant efforts to wean her away from her narcotic drugs whenever possible.
In Dr. Story's expert opinion, the Respondent applied diligent efforts to diagnose his patient's problems as well as to alleviate her suffering. Dr. Story feels that the Darvocet dependency that eventually evolved from her illnesses was an expected and likely complication because of the long-term use of narcotic pain relief, which is the only kind of relief that could be afforded the patient. In summary, Dr. Story established that good medical care was employed by the Respondent and the referred consultants who evaluated and treated this lady and there was no evidence of any misuse of narcotic drugs on the part of the Respondent or any of the consulting physicians, but rather the medical care afforded her met all professional standards.
The remaining patient to whom the charges in the Administrative Complaint relate is Arthur Van Vlack. Mr. Van Vlack has suffered extremely painful migraine headaches over a period of many years. Dr. Van Ore has followed him as a patient for approximately ten years. The Respondent had the patient completely evaluated for neurological condition with regard to his migraine headaches, including admitting him to the hospital. The patient had seen many physicians for this problem. His headaches have not responded to usual medical treatment for migraine headache and he required, over the years, progressively larger doses of narcotic drugs. He has used at various times, Demerol, Percodan and Percocet, since lesser strength drugs have not controlled his severe pain. Additionally, the patient has had problems involving a duodenal ulcer, vagotomy and pyloroplasty in August of 1980. He suffers pain in the low back caused by spina bifida occulta in the area of the 5th lumbar vertebra. The only control for the patient's severe pain, which is chronic and recurrent, has been narcotic drugs. When the severe headaches strike, the patient loses his ability to earn a living and to conduct a normal life, and sometimes has to be bedridden for several days in extreme pain. Dr. Van Ore did a thorough evaluation of the patient, including CT scans and cervical myelograms, as well as lumbar myelograms in an attempt to find out if there were any correctable causes for the patient's pain. Neurological consultations were obtained, including a neurology consultation with Dr. Peritz Scheinberg, of the Department of Neurology at the University of Miami School of Medicine. The patient's charts uniformity indicate that for every office visit that the headaches are still persisting and that only Demerol and Percodan seem to benefit the pain. At times Talwin was tried, but to no avail. After a complete evaluation of the patient's headaches with every conceivable neurological test as well as consultation with Dr. Scheinberg at the University of Miami, no correctable cause for the man's pain was found. None of the consultants to whom the patient was referred by the Respondent, either neurologic or psychiatric, found that the headaches were other than legitimate, severe, refractory migraine headaches.
Both the Respondent and the consultants to whom the patient was referred understood that the patient had a narcotic addiction problem as a result of years of narcotic usage since those were the only medications that would control his severe, disabling headaches. This kind of addiction, as well as the tolerance to lighter doses of medication normally occurs when narcotics are used over such an extended period of time. It is fully expected and largely unavoidable when treating severe, chronic disabling pain for which there is no ascertainable medical solution. Dr. Van Ore understood early in his following of this patient that the addiction was a distinct danger and sought a number of times to wean the patient off medications and to compromise and negotiate and try to persuade him to switch his medications from time to time in an attempt to wean him from narcotic drugs. By May of 1981 the Respondent was attempting to wean him from narcotic drugs by putting him on a schedule of progessively
tapering doses. However, whenever the medications were decreased the headaches again became disabling to the patient. It was at approximately this time that the consultation with Dr. Scheinberg was obtained.
It being a pharmacologic fact that as patients take narcotic drugs for relief of legitimate illnesses, for which there is no cure, with addiction and drug tolerance becoming a common problem, it is appropriate and correct practice for a family physician at this point, when confronted with such patients, to obtain expert, sub-specialty consultation with a variety of physicians. The Respondent did this in this case and in the others. A number of neurologists evaluated the patient and concluded as the Respondent had, that he suffered from severe, intractable migraine. Finally, the Respondent attempted to use psychiatric care in order to help wean the patient off the drugs, to little avail. Ultimately the Respondent admitted him for detoxification at Winter Park Hospital.
Dr. Story opined, after thoroughly reviewing the patient's history and charts, that he saw nothing amiss about the quality of medical care and professional practice rendered the patient by the Respondent. He found the requirement for narcotic drugs to be understandable under the patient's circumstances, which admittedly aroused concern by the Respondent and the other physicians who followed him, for the patient's possible drug addiction due to long-term narcotic use. Dr. Story shared the concern by all involved physicians regarding the large amounts of medication that were required to control his pain, and points out that this is due to a drug tolerance developed by the patient. As a counter to this the Respondent made repeated attempts to wean him off narcotic drugs and toward the end of his relationship with the patient, he was approaching the point of weaning him off narcotic medication entirely. Dr. Story, in short, does not feel that medical practice standards employed by similar physicians under similar conditions and circumstances, involving a difficult patient with chronic severe pain, have been departed from.
In summary, Dr. Story found, as did Dr. Brouillet, who largely corroborated the findings of Dr. Story, that the drugs employed with all four patients did not involve any drug misuse. Rather, the care and treatment provided these patients reflected a high level of skill and the Respondent tried in all ways known to him to evaluate the root cause of the patient's pain problems, including referral to appropriate specialists for all relevant evaluative techniques. Both Respondent's experts found no departure from appropriate and correct rendering of quality medical care to these patients. They were all very complex, difficult patients with chronic illnesses characterized by severe, chronic pain with, in some cases, psychological overlays, which is often the case with severe, recurrent pain. Thus, Drs. Story and Brouillet opined that the use of these drugs referenced in the Administrative Complaint, to relieve pain in these patients was legitimate as to appropriateness and amounts.
Drs. Story and Brouillet, based their testimony and opinions upon a complete review of the treatment records of all four patients, and Dr. Story additionally reviewed the hospital charts at the hospitals of each patient. Dr. Handwerker, testifying for the Petitioner, did not have the benefit of the hospital records in arriving at his opinion. Although Dr. Handwerker opined that it is inappropriate to relieve the patient's chronic severe pain with recurrent use of Schedule II controlled substances, Dr. Story established that it is also a physician's duty and obligation to try to relieve a patient's pain, including the use of Schedule II controlled substances if they are used appropriately and wisely and within appropriate professional practice standards.
A medically justifiable purpose for treating a patient consists of affording treatment in a manner designed to relieve disease or distress or pain by whatever tests, diagnoses, evaluations or treatments can be performed in an acceptable manner within the confines of the professional medical practice standards of the community. Acceptable treatment is predicated on scientifically attempting to identify the pathology involved causing the distress, the anatomy and physiology affected and use of all evaluation and diagnostic tools in an effort to arrive at an opinion about what is wrong with the patient and what treatment is appropriate. It is medically justifiable for treatment to be performed solely for the purpose of relieving chronic moderate to severe pain in a patient, especially if all attempts are being made to alleviate the cause of that pain.
The best person to make an informed interpretation concerning what is a medically justifiable treatment for a given patient is the treating physician himself at the time the treatment is applied. All three expert witnesses agreed that reasonable physicians can differ in the way they treat patients with similar conditions, and the Petitioner's expert, Dr. Handwerker, conceded that there is no single, established method of treatment for the conditions suffered by the patients named in the Administrative Complaint.
Chronic pain patients are sometimes the most difficult to care for since pain is not a directly measurable disability. Some patients require a greater amount of pain medication to relieve a similar degree of pain than do other patients. In any event, the Schedule II controlled substances prescribed by Respondent are approved by the Federal Food and Drug Administration and the medical community for treatment of chronic, moderate to severe pain and are indicated as treatment for such in the Physician's Desk Reference relied upon as authoritative by all three experts in this case. It is appropriate and ethical to relieve a patient's pain with these drugs, even though the patient may have developed a tolerance or addiction to those substances. There is a concomitant obligation imposed by appropriate standards of medical practice to attempt to avoid or alleviate any addiction or tolerance that develops through efforts to wean the patients gradually off the narcotic substances, which Respondent consistently attempted in the case of each patient.
Having reviewed all the treatment records and prescriptions used, Drs. Story and Brouillet also demonstrated that they were prescribed in the course of professional practice to the patients in question. Thee Respondent prescribed the drugs in a good faith effort to relieve pain while he was trying to determine and correct the underlying cause of each patient's distress. Dr. Van Ore's motivation in prescribing and treating as he did for these patients, was nothing other than an honest attempt to relieve their pain after his and others' efforts to alleviate the causes of pain had failed. Neither is there any evidence that Dr. Van Ore made any deceptive, untrue or fraudulent representations to his patients in the course of their treatment. He was open and honest with the patients and told them what he knew and believed concerning their chronic medical problems and the means he was using to try to alleviate them, including discussing with them the problem of drug addiction and attempting to convince them to reduce their use of Schedule II controlled substances. Dr. Van Ore had no ulterior purpose or motive in the treatment of these four patients, other than an honest attempt to alleviate their distress.
Dr. Handwerker, testifying for the Petitioner, generally took the view that the Respondent's treatment of the four patients in question with controlled substances was for medically unjustifiable purposes and in inappropriate or excessive quantities. It is important to note that several prescriptions listed
in the Amended Administrative Complaint attributable to Respondent were actually written by other physicians such as Dr. James Biggerstaff, Dr. James E. Lett, Dr. Charles Moller and Dr. Gwen Murray. Several were written for other patients who were not mentioned in the Amended Administrative Complaint and apparently several prescriptions had been altered by persons unknown. The testimony of Dr. Story raises questions concerning Dr. Handwerker's depth of understanding of these patients' medical histories when under the Respondent's care. For example, Dr. Handwerker apparently was unaware that the patients had been hospitalized and seen by various consultants, was also unaware of the various tests that each of the patients had been subjected to in the Respondent's and other specialists' efforts to learn the causes of their pain. In general, Dr.
Handwerker was more concerned with the drug addiction or potential drug addiction of these patients, than with the fact that these patients suffered chronic pain which could not be relieved by any other means than Schedule II drugs.
Dr. Handwerker's testimony being more tinged with his concern for drug addiction as a paramount consideration, not taking into adequate account the physician's concomitant obligation to alleviate suffering, nor taking into account Respondent's and other's exhaustive efforts to learn the causes of their suffering, renders the testimony and opinions of Drs. Story and Brouillet more credible and acceptable in their description of appropriate medical care and treatment under similar conditions and circumstances. The testimony of Dr. Handwerker, where it conflicts with these opinions, is rejected as less credible than those of Respondent's two experts.
Count One raises the issues concerning the practice of physician's assistants Gary Chase and Denise Grant. Gary Chase began working for the Respondent as a licensed physician's assistant in September, 1980, and was certified as the Respondent's physician's assistant in October, 1980. He worked for the Respondent until June, 1983. The Respondent was his supervising physician. While Gary Chase worked as a physician's assistant for the Respondent, the Respondent was either physically present in the office or was within 20 minutes travel time from the office and was always available by electronic communication. The Respondent and Gary Chase would daily review all records of patients in which Gary Chase assisted in treatment and would always review any treatment Gary Chase had rendered no later than the next day.
The Respondent furnished pre-signed blank prescription forms to Gary Chase. If a patient being seen by Chase needed a medication, Gary Chase would write out that medication, the amount needed, and record it in the patient's chart and use the pre-signed prescription form. The Respondent and Gary Chase would then review the patient's charts and prescription together when Chase next saw the Respondent on either the same day or no later than the next day. If a problem occurred with the prescription Chase had made or a treatment he recommended the patient, he or the Respondent would have called the patient that same day and changed the prescription. Chase does not recall such a problem ever occurring.
With regard to the issue of Denise Grant's practice raised in Count One, there was no evidence to establish Denise Grant was a physician's assistant practicing under the direct supervision and control of the Respondent. There was no evidence that the Respondent had ever furnished prescription blanks to Denise Grant. Denise Grant was not called as a witness in this case.
The Respondent has never been the subject of an investigation by the Department of Professional Regulation nor of disciplinary action, either formal
or informal. The Respondent is an active member of the Asbury United Methodist Church in Maitland, Florida, and offers community service medical education programs on preventive medicine through the church. The Respondent has a reputation as a person of honest character and a reputation as a good and competent physician.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The Respondent is charged with violations of Section 458.331(1)(q), (h), (1) and (t), Florida Statutes, which constitute grounds for which penalties may be imposed. The Respondent is also charged with violation of Section 893.05(1), Florida Statutes. These sections provide:
Section 458.331(1)(a): Prescribing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his intent.
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Section 458.331(1)(h): Failing to perform any statutory or legal obligation placed upon a licensed physician.
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Section 458.331(1)(l): Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.
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Section 458.331(1)(t): Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.
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Section 893.05(1): A practitioner, in good faith, and in the course of his professional
practice only, may prescribe, administer, dispense, mix or otherwise prepare a controlled substance, or he may cause the same to be administered by a licensed nurse of an intern practitioner under his direction and supervision only. A veterinarian may so prescribe, administer, dispense, mix or prepare a controlled substance for use on animals only, and may cause it to be administered by an assistant or orderly under his direction and supervision only.
The Petitioner has the burden to prove the charges alleged. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). License revocation proceedings such as this, are penal in nature. Thus, the prosecuting agency must prove Its charges by clear and convincing evidence and by evidence as substantial as the consequences to be meted out if the charges are proven. See Reid v. Florida Real Estate Commission, 188 So. 2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So. 2d 612 (Fla. 2d DCA 1975); Bowling
v. Department of Insurance, 394 So. 2d 165, at 172 (Fla. 1st DCA 1981). The Florida Board of Medical Examiners has adopted this standard of proof in Department of Professional Regulation, Board of Medical Examiners v. Spiegel, 6
F.A.L.R. 1541 (September 6, 1983).
The Medical Board concluded in Spiegel, that medicine is not an exact science; physicians are allowed a wide range in the exercise of their judgment and discretion. This being so, honest and reasonable physicians may (as in this case) differ on the proper course of treatment for a patient. See Department of Professional Regulation, Board of Medical Examiners v. Spiegel, 6 F.A.L.R. 1541 at 1556. If this were not the case, a physician's license could be revoked or subjected to discipline simply because another physical testified that under similar conditions, he would have acted or treated a patient differently. See Spiegel, supra at 1556. "The implications are disturbing. The slightest provocation or disagreement between physicians could place one or the other's license in jeopardy." Ibid, at 1556.
In the instant case, Petitioner presented one physician as an expert witness woo held himself out as a reasonably prudent physician who testified that in his opinion Respondent's treatment of the four patients was not for medically justifiable purposes, and that the prescriptions at issue were inappropriate or in excessive quantities. That witness opined that he would have treated the four patients differently than had the Respondent. Here, as in the Spiegel case, the Respondent countered with more credible expert testimony to the contrary by two board certified expert witnesses. Thus, in this case as in the Spiegel case, the Department has simply failed to sustain its burden of persuasion. When a breach of a professional standard is alleged, which is one announced after-the-fact and in case-by- case adjudication mode, the measuring standard must be established by evidence as substantial as the consequences. Evidence that is inconclusive, equivocal, debatable, or simply unconvincing, cannot supply a basis for license discipline. One professional's opposing opinion, without more, on a particular treatment is not substantial evidence. See Robinson v. The Florida Board of Dentistry, Department of Professional Regulation, So. 2d (Fla. 3d DCA 19B4); 9 F.L.W. 553.
As stated in Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981):
. . . when the standard of conduct to be enforced are not explicitly fixed by statute or rule, but depends on such debatable expressions as in the applicable regular course of business'; when the conduct to be assessed is past, beyond the actor's power to conform it to agency standards announced prospectively; and when the proceedings may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as `substantial' as the consequences. At 171-172.
The weight of the evidence presented by the Petitioner herein is not of such a substantial nature as to clearly and convincingly establish a violation of subsections 458.331(1)(q), (h), (1) and (t), Florida Statutes, nor Section 893.05(1), Florida Statutes.
The Respondent's prescriptions of the Schedule II controlled substances in question to each of the four patients named in the Amended Complaint were for medically justifiable purposes and in quantities which were not inappropriate or excessive under the circumstances involving those difficult to treat patients. The Respondent's method of treatment of the four patients is reasonable under the circumstances, and the Petitioner did not present sufficient evidence to warrant a conclusion that the treatment of the patients was unreasonable. Although reasonable physicians may differ in the manner of treatment of patients, such 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 Board of Medical Examiners of Florida
v. Rogers, 387 So. 2d 937 (Fla. 1980). As established by Respondent's expert witnesses, whose opinions have been accepted, the prescriptions of Schedule II controlled substances as to each of the four patients named in the Amended Complaint was in the course of the Respondent's professional practice. As to each of those patients the prescriptions were made in good faith and in a bona fide effort to alleviate their suffering. It was not shown that the Respondent engaged in the making of any deceptive, untrue or fraudulent representation in the practice of medicine or employed a trick or scheme in the practice as to his treatment of each of those four patients named in the complaint.
In light of the above findings and conclusions, it has neither been established that the Respondent's treatment constituted gross or repeated malpractice or a failure to practice medicine with that level of care, skill and treatment recognized by reasonably prudent, similar physicians as being acceptable under similar conditions and circumstances. Finally, it was not established that the Respondent failed to perform any legal obligation placed upon him as a licensed physician as to his treatment of each of these four patients.
With regard to the charges in Count One, there has been no competent, substantial evidence adduced to establish that Denise Grant was a physician's assistant certified to practice or practicing under Respondent's direct supervision and control. It was not established what the licensure status of Denise Grant might be, that she worked under the Respondent's direct supervision that he was responsible for her practice, nor that any pre-signed prescription blanks were furnished by the Respondent to her. Neither was there any competent, substantial evidence presented which would show that Denise Grant,
with any knowledge, approval or authorization of the Respondent, prescribed, dispensed or administered scheduled controlled substances.
Gary Chase was certified to practice under the supervision of Respondent from October, 1980 to June, 193 as a licensed physician's assistant. Count One of the complaint charges the Respondent with violation of: Section 458.331(1)(aa), Florida Statutes, in that he pre-signed blank prescription forms; Section 458.331(1)(g), Florida Statutes, for allegedly aiding, assisting, procuring or advising an unlicensed person to practice medicine contrary to Chapter 458 or to rules of the Board; and Section 458.331(1)(w), Florida Statutes, for delegating professional responsibilities to a person whom the licensee knows or has reason to know is not qualified by training, experience or licensure to perform.
Section 458.331(1)(g), Florida Statute (1979), provides:
Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or of the board.
Section 458.331(1)(aa), Florida Statutes (1979), prohibits: "Pre- signing blank prescription forms."
Section 458.331(1)(w), Florida Statutes (1979), prohibits:
Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
The licensure and supervision and practice of physician's assistants is regulated by Section 458.347, Florida Statutes, and Rule 21M-17.01, Florida Administrative Code. Section 458.347(3), Florida Statutes (1979), provides:
Notwithstanding any other provision of law, a physician's assistant may perform medical services when such services are rendered under the supervision of a licensed physician or group of physicians certified by the Board, in a specialty area or areas for which the physician's assistant is trained or experienced. Any physician's assistant certified under this section to perform services may perform those services only:
in the office of the physician to whom the physician's assistant has been assigned, where such physician maintains his primary practice; (b) where the physician to whom he is assigned is present; (c) in a hospital or clinic where the physician to whom he is assigned is a member of the staff; or (d) on calls outside said office, on the direct
order of the physician to whom he is assigned.
Section 458.303(2), Florida Statutes(1979), provides in pertinent part:
Nothing in . . . Section 458.331 [the sections with which Dr. Van Ore is charged with violating . . . shall be construed to prohibit any service rendered by a physician's trained assistant, a registered nurse, or a licensed practical nurse, if such service is rendered under the direct supervision and control of a licensed physician. Further, nothing in this or any other chapter shall be construed to prohibit any service rendered by a physician's trained assistant in accordance with the provisions of this subsection. (Emphasis supplied).
Rule 21M-17.01(7), Florida Administrative Code, as it existed during the time applicable to Count One of the Amended Administrative Complaint provides:
The term `supervision' means responsible supervision and control, with a licensed physician assuming legal liability for the services rendered by the physician's assistant. Except in cases of emergency, supervision shall require the availability or physical presence of a licensed physician for consultation and direction of the actions of the physician's assistant. The responsible and supervising physician must be in a location to enable him to be physically present with a physician's assistant within at least thirty minutes and must be available to the physician's assistant when needed for consultation and advice either in person or by communication devices, such as telephone, two-way radio, medical beeper or other electronic means.
Rule 21M-17.01(5), Florida Administrative Code, as it existed during the time pertinent to Count One of the Amended Complaint provides:
The term `physician's assistant' as herein used refers to allied health personnel who are functioning in a dependent relationship with a physician licensed by the Board and who are performing tasks or combinations of tasks traditionally performed by the physician. Examples of such tasks would include, but not be limited to, history- taking, physical examinations, and treatment. The regulations are not intended to cover or in any way prejudice the activities of other allied health personnel whose tasks are well defined by statute or recognized custom of medical practice. (Emphasis supplied.)
The Respondent has not been shown to be guilty of violating Section 458.331(1)(g), Florida Statutes (1979), because indeed, Gary Chase is a licensed physician's assistant licensed to practice under Chapter 458, Florida Statutes, and the rules of the Board. He did so under Respondent's supervision as required by Section 458.347, Florida Statutes (1979), and defined in the above- quoted authority from Chapter 21M-17, Florida Administrative Code. Indeed, Gary Chase practiced in the presence of the Respondent at his office or at times when the Respondent was within 20 minutes travel time from his office and he was readily able to communicate with the Respondent about any questions that might arise in the course of his practice as a physician's assistant by telephonic communication with the Respondent when the Respondent was at his other office or home. The Petitioner has not established Respondent's guilt of violating Section 458.331(1)(w), Florida Statutes (1979), inasmuch as it has not been established that he delegated any professional responsibilities to Gary Chase which Gary Chase was not qualified to perform as a licensed physician's assistant under Section 458.347, Florida Statutes (1979), and the rules of Chapter 21M-17, Florida Administrative Code, as they then existed.
The Respondent has, however, been established to be guilty of violating Section 458.331(1)(aa), Florida Statutes (1979), in that he clearly did furnish pre-signed prescription blanks to Gary Chase as a physician's assistant to be used in his absence. Although the date on which such blanks were furnished to Gary Chase and the patients for whom they were used is not clearly established in this record, it is clearly established that the pre- signed prescription blanks were furnished to Gary Chase by the Respondent for Gary Chase's use in the course of his duties as a physician's assistant and thus, a violation of this subsection has been established.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
RECOMMENDED that a final order be entered by the Board of Medical Examiners finding the Respondent, Steven Van Ore, guilty of a violation of Section 458.331(1)(aa), Florida Statutes, and that the penalty of a written reprimand be imposed.
DONE and RECOMMENDED this 9th day of January, 1985 in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904)488-9675
FILED with the Clerk of the Division of Administrative Hearings this 10th day of January, 1985.
COPIES FURNISHED:
William M. Furlow, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Ralph V. Hadley, III, Esquire Post Office Box 1340
Winter Garden, Florida 32787
Paul Watson Lambert, Esquire SLEPIN, SLEPIN, LAMBERT and WAAS
1114 East Park Avenue Tallahassee, Florida 32301
Dorothy Faircloth, Executive Dir. Board of Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 08, 1990 | Final Order filed. |
| Jan. 10, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 17, 1985 | Agency Final Order | |
| Jan. 10, 1985 | Recommended Order | Doctor gave assistant pre-signed prescription forms. He did not otherwise violate because he did not improperly delegate professional responsibility to non-medical doctor. |
