STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-3502

)

CARLOS DE LA FE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for final hearing in Miami, Florida, on March 19 and 20, 1984. The parties were afforded leave to submit proposed recommended orders supportive of their respective positions. Petitioner's counsel has filed a proposed recommended order which was considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: Barbara K. Hobbs, Esquire

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Robert K. Estes, Esquire

717 Ponce de Leon Boulevard, Suite 323 Coral Gables, Florida 33134

ISSUE

The issues presented herein are whether or not Respondent's incense to practice medicine should be suspended, revoked or the licensee otherwise disciplined for alleged violation of Chapters 458 and 893, Florida Statutes, as set forth in the Administrative Complaint filed herein signed May 31, 1983.

BACKGROUND

By its 28-count Administrative Complaint signed May 31, 1983, Petitioner has charged the Respondent with prescribing controlled substances other than in the course of his professional practice; failing to prescribe controlled substances in good faith and in the course of his professional practice; made deceptive, untrue or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine; engaged in gross or repeated malpractice or failed 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.

Respondent timely executed an Election of Rights disputing the allegations set for in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes (1981).

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, stipulations of the parties and the entire record compiled herein, I hereby make the following relevant factual findings.

1. Respondent is a medical doctor and has been issued license number ME 0017825. Respondent's last known address is 2361 N.W. 24 Terrace, Miami, Florida 33172. (Stipulation of the parties)

   
   

2. Respondent has been licensed as a medical doctor in Florida since 1971. Respondent studied at Havana University School of Medicine and graduated in 1957. He practiced in Cuba from 1957 through 1966. During that period, he was engaged in a general practice and was also a psychiatrist at Clinica Dependiente. While at Clinica Dependiente, Respondent served as a medical director for the rehabilitation of minors and as medical director for Santa Clinica Psiquiatria.

   
   

3. Respondent relocated from Cuba and came to Miami on or about February 15, 1967. Respondent sat for the Federation of State and Medical Boards of the United States during September of 1968, the standardized test for graduates of foreign medical schools.

   
   

4. During 1968 and 1969, Respondent was engaged as a psychiatrist at Halifax District Hospital in Daytona Beach, Florida. During 1969, he served a rotating internship at Mount Sinai Hospital for one year. Thereafter, he served rotating internships at Doctors, Victoria, Parkway and one other hospital in the Dade County area until approximately 1974.

   
   

5. During his tenure at Halifax Hospital, Respondent treated some parties who were drug addicts.

   
   

6. Respondent admits to having treated the patients referred to in the Administrative Complaint filed herein.

   
   

7. Additionally, pursuant to Petitioner's Request for Admissions filed herein, Respondent has admitted the allegations set forth in paragraphs 3, 10, 17, 24, 31, 38, 45, 52 and 59 of the Administrative Complaint, to wit:

   
   

   1. Between the dates of approximately January 5, 1981 and December 15, 1981, Respondent prescribed 360 Dilaudid 2/ (Hydromorphone), a controlled substance, pursuant to Chapter 893, Florida Statutes, for Patrick Golden.

      
      

   2. Between the dates of approximately March 26, 1981 and January 15, 1982, Respondent prescribed 1425 Dilaudid (Hydromorphone) for Ellen Henderson.

      
      

   3. Between the dates of approximately March 2, 1981 and November 11, 1982, Respondent prescribed 855 Dilaudid (Hydromorphone) for Ronald Chica.

      
      

   4. Between the dates of approximately May 12, 1981 and January 9, 1982, Respondent prescribed 132 Dilaudid (Hydromorphone) for James Brannigan.

   5. Between the dates of approximately February 19, 1981 and February 2, 1982, Respondent prescribed 965 Dilaudid (Hydromorphone) for Gilbert Fernandez.

      
      

   6. Between the dates of approximately November 21, 1981 and December 12, 1981, Respondent prescribed 180 Dilaudid (Hydromorphone) for Patsy Gamlin.

      
      

   7. Between the dates of approximately January 7, 1981 and January 14, 1982, Respondent prescribed 820 Dilaudid (Hydromorphone) for Rudolph Ferguson.

      
      

   8. Between the dates of approximately February 24, 1981 and February 15, 1982, Respondent prescribed 2220 Dilaudid (Hydromorphone) for Michael Salle.

      
      

   9. Between the dates of approximately February 24, 1981 and February 15, 1982, Respondent prescribed 2190 Dilaudid (Hydromorphone) for Ronald Weatherington.

      
      

8. Dale K. Lindberg, M.D., was tendered and received as an expert in these proceedings in the area of Family Practice, Methadone and Drug Addiction. Dr. Lindberg has been instrumental in establishing a methadone detoxification program at Memorial Hospital in Hollywood, Florida.

   
   

9. Methadone is the only legally recognized Schedule II controlled substance used in this country for the treatment of drug addiction. Private practitioners, pursuant to specific federal law, cannot legally administer methadone or any other Schedule II controlled substance for the treatment of drug addition. In order to qualify or be certified to treat drug addicts, application must be made simultaneously with the Federal Food and Drug Administration (to their Methadone Monitor Division), to the Federal Drug Enforcement Agency and to the Federal Department of Mental Health and Drug Abuse. Upon certification with these governmental departments, only then can a physician prescribe methadone to a drug addict to be ingested in oral form, once a day. (21 C.F.R. 291.505)

   
   

10. Dr. Lindberg received and reviewed the nine (9) patients' records listed in the Administrative Complaint as well as the prescriptions written for those patients by Respondent. (Petitioner's Exhibit 2-19). Dr. Lindberg, after review, concluded that Respondent inappropriately and excessively prescribed Dilaudid to said patients. Dr. Lindberg opined that Respondent prescribed Dilaudid for those patients for "very little indication" and continued over long periods of time prescribing Dilaudid to those patients. He considered that Respondent was maintaining the patients on Dilaudid in violation of the law.

    (TR 148, 239).

    
    

11. Dr. John Handwerker, M.D., testified as an expert herein on behalf of Petitioner. He has served as the first Chairman of the Department of Family Practice at the University of Florida Family and Community Medicine Programs. He is Chairman of the Family Practice Department of Mercy Hospital in Miami and is Assistant Professor of Pharmacology at the University of Miami. Dr.

    Handwerker is knowledgeable regarding generally prevailing and accepted standards of family practice in Dade County and was accepted, without challenge, as an expert in the field of Family Practice.

    
    

12. Dr. Handwerker reviewed the nine (9) patients' records listed in the Administrative Complaint as well as the prescriptions written for each patient. Based upon Dr. Handwerker's review of those records and prescriptions,

    Respondent committed gross and repeated malpractice. This opinion stems from Respondent's "inappropriately and excessively prescribing Dilaudid to patient for chronic" while the Physicians Desk Reference clearly stated that Dilaudid should not be prescribed for patients with chronic pain. (Testimony of Dr.

    Handwerker)

    
    

    SPECIFIC PATIENTS A.

13. Patrick Golden first visited Respondent's office on October 7, 1981. Golden complained of chronic pain arising from trauma suffered while he was involved in an industrial accident. His diagnosis was a compression of the fourth and fifth lumbar disk. He was treated for radiculitis.

    
    

14. Respondent prescribed Dilaudid to relieve the pain that patient Golden was suffering from and based on the fact that Golden reportedly had been receiving Dilaudid from a former physician.

    
    

15. Respondent conducted an examination of patient Golden and prescribed exercises for him. Respondent did not take x-rays although he states that he observed x-rays which had been taken by Golden's former physician. Respondent prescribed Dilaudid for Golden because it was the only drug which "killed the pain, unlike motrin and metrobromate." Nearing the end of Respondent's treatment of patient Golden, his wife began stealing Mr. Golden's drugs. Respondent referred her to a methadone program and obtained a notarized statement from Mrs. Golden to substantiate the fact that she was diverting drugs intended for her husband.

    
    

16. Respondent observed that patient Golden was becoming addicted to Dilaudid nearing the end of his treatment although throughout the major portion of his treatment of patient Golden, he felt that while he was dependent on Dilaudid, he was not felt that while he was dependent on Dilaudid, he was not "addicted." Respondent tried to reduce the amount of Dilaudid that he was prescribing to patient Golden without success. Respondent believed that Dilaudid was medically necessary to treat patient Golden due to the suffering he was undergoing from the chronic pain. (Respondent's testimony and Petitioner's Exhibit 20).

    
    

    B.

    
    

17. Ellen Henderson was treated by Respondent during the dates of approximately March, 1981 through January, 1982. Henderson suffered with her lumbar spine. Patient Henderson took motrin tablets since her preteen years. Patient Henderson has been treated at several methadone centers and is believed to have been taking approximately 25-40 Dilaudid four-milligram tablets per day.

    
    

18. Upon Respondent's first treatment of patient Henderson, he advised her that she was "killing herself and that she needed to reduce that terrible dosage of Dilaudid."

    
    

19. Patient Henderson was "treated for pain in the back and to reduce the amount of Dilaudid." In this regard, Respondent tried to reduce her intake of Dilaudid to approximately 8 Dilaudid four-milligram tablets per day. When Respondent stopped treating patient Henderson, he had reduced the amount of Dilaudid that he was prescribing for her to approximately 8 four- milligram tablets of Dilaudid per day.

    C.

    
    

20. Respondent treated Ronald Chica from approximately March, 1981 through November, 1982. Chica was treated for spondylolysis--a degeneration of the vertebrae. Respondent prescribed Dilaudid for patient Chica because it relieved the pain. Respondent knew that patient Chica was addicted to the drug Dilaudid.

    
    

    D.

    
    

21. James Brannigan was treated by Respondent from approximately May of 1981 through January of 1982. Respondent knew that Mr. Brannigan was dependent upon Dilaudid. Despite this knowledge, Respondent continued to prescribe Dilaudid for Mr. Brannigan in an effort to treat Brannigan's addiction with Dilaudid. Respondent was attempting to ease the withdrawal symptoms that patient Brannigan would suffer if he were immediately cut off from his supply of Dilaudid.

    
    

    E.

    
    

22. Respondent treated patient Gilbert Fernandez during the dates of approximately February of 1981 through approximately February of 1982. During that period, Mr. Fernandez suffered from compression features of the ribs and the lumbar region. Mr. Fernandez had a physical and psychological dependence on the drug Dilaudid. Respondent treated patient Fernandez by prescribing Dilaudid tablets for him.

    
    

23. Patient Fernandez had been treated at methadone centers in the past and presently was receiving methadone treatment while Respondent was treating him. Respondent prescribed Dilaudid to relieve the pain as well as to ease the withdrawal symptoms that patient Fernandez would undergo if he was immediately taken from the administration of Dilaudid.

    
    

    F.

    
    

24. Between the dates of approximately February of 1981 through February of 1982, Respondent prescribed approximately 2,190 four-milligram Dilaudid tablets for patient Ronald Wetherington. Patient Wetherington was given approximately 60 tablets every 7 days.

    
    

25. Patient Wetherington was addicted to the drug Dilaudid and Respondent ultimately referred him to a methadone center to deal with his withdrawal problems.

    
    

    G.

    
    

26. During the period of February, 1981 through February, 1982, Respondent prescribed approximately 2,220 four-milligram Dilaudid tablets for patient Michael Sallee. Patient Sallee suffered from and was treated by Respondent for a compression fracture of the fifth lumbar. Mr. Sallee was a cabinetmaker and did considerable lifting in the performance of his work. Respondent knew that Mr. Sallee was dependent upon Dilaudid and continued to prescribe the narcotic during the term of his treatment. Respondent attempted to treat Mr. Sallee's addiction with Dilaudid.

    H.

    
    

27. During the period of January of 1981 through January of 1982, Respondent treated patient Rudolph Ferguson and, during that period, prescribed approximately 820 four-milligram Dilaudid tablets for him. Patient Ferguson suffered from and was treated for back and rib problems from an auto accident. Respondent knew that patient Ferguson was dependent upon the drug Dilaudid and knew he was addicted to Dilaudid. Despite this knowledge, Respondent continued prescribing the drug Dilaudid to patient Ferguson to reduce the withdrawal symptoms and "to continue to treat the disease." Respondent referred patient Ferguson to a methadone clinic and, in fact, drove him to a nearby clinic for treatment.

    
    

    I.

    
    

28. Respondent treated patient Patsy Gamlin during the period of November 21, 1981 through December 12, 1981. During that period, he prescribed 180 tablets or approximately 60 tablets every 10-14. Respondent administered a drug screen during December of 1981 and did not treat patient Gamlin after December.

    
    

29. Dilaudid is a narcotic analgesic; its principal therapeutic effect is relief of pain. There is no intrinsic limit to the analgesic effect of Dilaudid; like morphine, adequate doses will relieve even the most severe pain. Clinically however, dosage limitations are imposed by the adverse effect, primarily respiratory, depression, nausea and vomiting which can result from high dosages. (Physicians Desk Reference, page 1038 [1984 Edition])

    
    

30. The Physicians Desk Reference has this to say about 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 treatment of pain. Physical dependence, the condition in which continued administration of the drug is required to prevent the appearance of a withdrawal syndrome, usually assumes clinically significant proportions only after several weeks of continued narcotic use, although some mild degree of physical dependence 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 a shortened duration of analgesic effect, and subsequently by decreases in the intensity of analgesia. The rate of development of tolerance varies among patients.

    
    

31. Prior to prescribing a drug such as Dilaudid, a physician should take a full history from a patient and perform a thorough physical examination. The

    history should include, inter alia, the patient's chief complaint, with questions from the physician to the patient involving areas of past problems with the nervous system, ears, eyes, lungs, chest, respiratory system, GI tract and urinary tract. The physical examination should involve all body systems, including blood pressure, examination of the head, neck, chest and back regions. If patient complains of low back pain, there should be a physical examination specifically involving the low back area before prescribing the scheduled controlled substance here at issue. The past history is important to determine the duration of the problem, any previous medical treatment, examinations or tests by other physicians regarding the lumbosacral or low back area. A physical examination should be performed designed to elicit indications of neurological evolvement, including straight-leg raise tests, impairment of sensation in the extremities tests and other neurological inquiries. Such a full history and a physical examination is prior to initiating a course of treatment involving treatment of chronic pain due to the existence of a wide assortment of other treatment modalities which might treat the root of the problem, rather than merely being pain symptoms.

    
    

32. An examination of the Respondent's records and the prescribing patterns of Dilaudid for the patients involved indicates that Respondent simply made insufficient findings upon which to base the decision to prescribe the drug Dilaudid. By prescribing Dilaudid, without an adequate physical examination, or the gathering of detailed patient medical history, would constitute a failure to conform to the level of care, skill and treatment recognized by reasonably prudent similar physicians under these conditions and circumstances. By continuing to prescribe these drugs, without any involved discussion or consideration of the effect the previous course of treatment had had on the patient, other than simple inquiry by Respondent concerning, as example, how the patient was feeling, 3/ also constitutes inappropriate prescribing of scheduled controlled substances, and demonstrates a failure to conform to the generally accepted an prevailing standards of medical practice in the Dade County community. (Testimony of Dr. Handwerker)

    
    

33. Respondent has never been subjected to disciplinary proceedings in the past. His past professional record reveals that he has a sincere concern for his patients. Throughout these investigative proceedings and the final hearing herein, the Respondent was candid, forthright and truthful. His prescribing of the controlled substance Dilaudid was based on his mistaken opinion that it was medically necessary to prescribe Dilaudid for his patients. Throughout these proceedings, it became clear that Respondent had not kept abreast of the proper course of treatment, detection and proper prescribing patterns for scheduled drugs for the patients be treated. To Respondent's credit, he has been studying the proper prescribing of controlled substances since the initiation of the investigation and the administrative proceedings involved herein. Respondent has never "faked" exams and every prescription that he wrote was based on an office visit and an exam, though a very cursory exam. Respondent did not receive any illegal profits from the sale of drugs nor did he divert, or attempt to divert, any drugs for illegal profit. His office fees, which range from $15 to $25 were not based on the amount of the drugs prescribed but, rather, on the patient's ability to pay. Respondent operates a small general practice with his wife serving as his receptionist. He personally completes all prescription forms with his wife/receptionist. Patients receiving treatment from Respondent are free to get their prescriptions filled at any pharmacy of their choice. Respondent was unaware and the evidence does not show that any of his patients had prior criminal records.

    CONCLUSIONS OF LAW

    
    

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

    
    

35. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

36. Petitioner has charged Respondent with having violated various provisions of the Medical Practice Act, Chapter 458, Florida Statutes; Sections 458.331(1)(q), 893.05(1)(h), (l), and (t), Florida Statutes.

    
    

37. Section 458.331(1)(q), Florida Statutes, prohibits the licensee from 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.

    
    

38. Section 893.05(1), Florida Statutes, prohibits the licensee from prescribing, dispensing, mixing, or otherwise preparing a controlled substance other than in good faith and in the course of his professional practice.

    
    

39. Section 458.331(1)(h), Florida Statutes, prohibits a licensee from failing to perform any statutory or legal obligation placed upon a licensed physician.

    
    

40. Section 458.331(1)(l), Florida Statutes, prohibits a licensee from 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.

    
    

41. Section 458.331(1)(t), Florida Statutes, prohibits a licensee from committing gross or repeated malpractice or failing to practice with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician deemed acceptable under similar conditions and circumstances.

    
    

42. In proceedings of this type, where an agency seeks to impose discipline upon a licensee in a manner substantially affecting the right of that licensee to practice his profession or livelihood, the Petitioner or agency must prove the allegations in its administrative complaint by clear and convincing evidence. See, Gans v. Department of Professional and Occupational Regulation,

    397 So. 2d 107 (Fla. 3d DCA 1980). The evidence must be as substantial as the consequences or penalties if the charges alleged are proven. See, Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981).

    
    

43. The evidence adduced in this cause clearly demonstrates that the Respondent prescribed controlled substances other than in the course of his professional practice, in view of the statutory presumption, as stated in Section 458.331(1)(q), Florida Statutes, to the effect that prescribing inappropriately or in excessive or inappropriate quantities, constitutes prescribing other than in the course of professional practice. While Respondent considered that the prescriptions filled for patients to obtain controlled substances were in the course of professional practice, the expert testimony of Dr. Handwerker and, to some extent, Respondent's own admissions, as well as the testimony of Dr. Lindberg, indicated the Respondent's prescribing of the controlled substance Dilaudid involved conduct which was medically inappropriate

    in view of the vague complaints of his patients regarding nonspecific low back pain and Respondent's failure to follow up by and through physical examination of the patients at their initial and follow-up visits. Based thereon, it is concluded that the Respondent engaged in conduct violative of Section 458.331(1)(q) and Section 893.05(1), Florida Statutes.

    
    

44. Respondent's conduct as set forth hereinabove in the Findings of Fact amounted to gross and repeated malpractice 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 in violation of Section 458.331(1)(t), Florida Statutes.

    
    

45. Insufficient evidence was offered herein to establish that the Respondent made deceptive, untrue or fraudulent representations in the practice of medicine with regard to the doctor's care, consultation and treatment involving the patients cited herein. Although an argument can be made that he failed to measure up to required standards, he employed no trick or scheme in the practice of medicine with regard to his patients. However, he was negligent in his practice as found herein in violation of Sections 458.331(1)(q) and (t), Florida Statutes. I shall therefore recommend that the allegations involving Section 458.331(1)(l), Florida Statutes, be dismissed. It is so concluded and recommended.

    
    

46. Similarly, there was no evidence adduced to indicate that Respondent prescribed the controlled substances involved herein in bad faith and for reasons other than his attempt to alleviate what he perceived to be the patients' pain and suffering. There was certainly no ulterior purpose involving deception, fraud, malice or other indications of bad faith such that a violation of Section 893.05(1), Florida Statutes, can be deemed to have been proven. I shall therefore recommend, that this allegation of the Administrative Complaint be dismissed.

    
    

47. Based on the Findings of Fact and Conclusions of Law, and the violations found herein, it is found that the Respondent engaged in conduct amounting to a failure to perform his statutory or legal obligations placed upon a licensed physician within the meaning of Section 458.331(1)(h), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, and the entire evidence of record, it is therefore recommended that a Final Order be entered imposing a written reprimand and one year's probation upon the Respondent Carlos de la Fe, and requiring that during the probationary, he enroll and complete, to the satisfaction of the Board of Medical Examiners, a continuing medical education course concerned with the appropriate indications for and prescription of scheduled controlled substances. 4/

RECOMMENDED this 24th day of October, 1984 in Tallahassee, Florida.

JAMES E. BRADWELL

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 25th day of October, 1984.

ENDNOTES

1/ To the extent that the proposed findings and conclusions submitted are in accordance with the findings, conclusions and views stated herein, they have been accepted. To the extent that such proposed findings, conclusions, and arguments asserted are inconsistent herewith, they have been rejected. Certain of those findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of the various witnesses is not in accord with the findings herein, it is not credited. Additionally, the parties waived the requirement that a recommended order be entered herein within thirty days following receipt of the transcript by the Division.

2/ In each instance, unless otherwise specified, this reference is for a 4- milligram tablet.

3/ Here, unlike the situation in the Glenn R. Johnston, M.D. v. Department of Professional Regulation, Board of Medical Examiners, So. 2d , Case No. AX-322, opinion filed September 13, 1984, Respondent failed to conduct the necessary tests on which he could rely to prescribe Dilaudid in large doses over extended periods of time.

4/ In making this recommendation, the Hearing Officer considered the mitigating factors and those considerations delineated in Rule 21M-20.01, Florida Administrative Code.

COPIES FURNISHED:

Barbara K. Hobbs, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Robert K. Estes, Esquire 717 Ponce de Leon Boulevard Suite 323

Coral Gables, Florida 33314

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

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

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO. 020428

DOAH CASE NO. 83-3502 LICENSE NO. 17825

CARLOS DE LA FE, M.D.,

Respondent.

/

FINAL ORDER OF THE BOARD OF MEDICAL EXAMINERS

This matter came before the Board of Medical Examiners (Board) pursuant to Section 120.57(3), Florida Statutes, on December 1, 1984, in Miami, Florida, for purpose of considering the hearing officer's recommended order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Cecelia Bradley, Esquire; Respondent, Carlos De La Fe, was represented by Robert K. Estes, Esquire.

Upon review of the recommended order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The exceptions to the recommended order filed by Petitioner are rejected.

   
   

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

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

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to the provisions of Sections 120.57(1) and Chapter 458, Florida Statutes.

   
   

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

   
   

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

DISPOSITION

Based on a review of the complete record in this case and upon further consideration of the gravity of the offenses resulting in the disciplinary action, the Board determines that the penalty recommended by the hearing officer be increased. WHEREFORE, IT IS HEREBY

ORDERED AND ADJUDGED that Respondent be reprimanded. Respondent's license to practice medicine in the State of Florida shall be placed on probation for a period of three (3) years under the following terms and conditions:

1. Respondent shall make semiannual appearances before the Board.

   
   

2. Respondent shall not use, dispense, administer, or prescribe Schedule II controlled substances, except in a hospital setting.

   
   

3. Respondent shall successfully complete 50 hours annually of Category I continuing medical education in pharmacology and general medicine.

   
   

4. Respondent must take and pass within 6 months Part III of the examination by the National Board of Medical Examiners in lieu of the first 50 hours of continuing medical education.

   
   

5. Respondent waived confidentiality with regard to investigative reports prepared by the Department during the Probation period. This Order takes effect upon filing.

Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency with the District Court of Appeal within thirty days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

DONE AND ORDERED this 9th day of January, 1985.

BOARD OF MEDICAL EXAMINERS

Richard J. Feinstein, M.D. CHAIRMAN

Docket for Case No: 83-003502

Orders for Case No: 83-003502