STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 85-2514
)
WILLIAM McDONALD, M.D., )
)
Respondent. )
)
APPEARANCES
For Petitioner: Stephanie A. Daniel, Esquire
Staff Attorney
Department of Business Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: David J. Russ, Esquire
1114 North Adams Street Tallahassee, Florida 32303
RECOMMENDED ORDER
On July 3, 1985, Fred Roche, as Secretary and agency head of the Department of Professional Regulation, issued an Order Of Emergency Suspension against the license to practice medicine held by William McDonald, M.D., license number ME 0010737. On or about July 13, 1985, the Department of Professional Regulation (Department) filed an Administrative Complaint against Dr. McDonald alleging: that McDonald violated Section
458.331 (l)(s), Florida Statutes, by being unable to practice medicine with reasonable skill and safety to patients by reason of use of alcohol, drugs, narcotics, chemicals or any other type of material; that McDonald violated 458.331(1)(r), Florida Statutes, by administering propoxyphene and benzodiazepine, both controlled substances, to himself when the drugs were not prescribed; dispensed or administered by another practitioner authorized to prescribe, dispense or administer medicinal drugs; and that McDonald violated Section 458.331(1)(x), Florida
Statutes, by violating a lawful order of the Board of Medical Examiners previously entered in a disciplinary hearing.
McDonald denied the charges and requested an expedited final hearing of the charges.
In accordance with the agreement of the parties, final hearing was held in this case in Madison on August 19 and 23, 1985. The parties requested and received until October 8, 1985, in which to file their proposed recommended orders.
FINDINGS OF FACT
At all times material hereto William McDonald, M.D. (Respondent) was licensed as a physician in the state of Florida having been issued license number ME 0010737. Respondent has been licensed and has been practicing medicine for 23 years.
In May of 1966, Respondent was in a small airplane accident. As a result of the accident, Respondent sustained serious multiple injuries including compression fractures of the lumbar vertebrae in the lower back.
Initially, Respondent was hospitalized and received treatment, including a number of operations. After a period of about six months, Respondent was sufficiently recovered to return to work on a part-time basis. At the time, Respondent was working as an anesthesiologist at a hospital in Clearwater, Florida. Although Respondent recovered sufficiently to return to work, he experienced intermittent pain from his injuries.
In 1966 after the airplane accident, Respondent became dependent on pain medications. Respondent would administer Talwin tablets to himself periodically and would take Tylenol No. 3 sometimes, to relieve the pain which he experienced. These are Schedule IV controlled substances used to kill pain.
Eventually, Respondent married his present wife, Deanna McDonald. Respondent ceased practicing anesthesiology and eventually moved to Greenville, Florida, where he began a general medical practice. He obtained hospital privileges at Madison County Hospital.
Throughout this entire time period, from 1966 until approximately 1980, Respondent treated his pain solely with Talwin tablets and Tylenol No. 3 as needed.
Between the dates of approximately August 5, 1980, and January 10, 1983, Respondent purchased the following quantities of Schedule II controlled substances pursuant to Chapter 893, Florida Statutes (1981), using DEA 222 order forms from his office:
DATE CONTROLLED SUBSTANCE AMOUNT
8/05/80 | Demerol | 50 | mg. | 30 | cc | |
8/05/80 | Morphine | 15 | mg. | 20 | cc | |
8/19/80 | Demerol | 50 | mg. | 30 | cc | |
9/18/80 | Morphine | 15 | mg. | 20 | cc | |
10/13/80 | Demerol | 50 | mg. | 30 | cc | |
10/04/80 | Demerol | 50 | mg. | 30 | cc | |
11/18/80 | Demerol | 50 | mg. | 30 | cc | |
11/26/80 | Demerol | 50 | mg. | 30 | cc | |
12/09/80 | Demerol | 50 | mg. | 30 | cc | |
12/20/80 | Demerol | 50 | mg. | 30 | cc | |
1/13/81 | Demerol | 50 | mg. | 30 | cc | |
2/11/81 | Demerol | 50 | mg. | 30 | cc | x 2 |
2/11/81 | Morphine | 15 | mg. | 20 | cc | |
9/11/81 | Demerol | 50 | mg. | 30 | cc | x 4 |
9/11/82 | Morphine | 15 | mg. | 20 | cc | |
9/21/82 | Demerol | 50 | mg. | 30 | cc | x 2 |
9/21/82 | Morphine | 15 | mg. | 20 | cc | |
10/13/82 | Demerol | 50 | mg. | 30 | cc | x 4 |
10/13/82 | Morphine | 15 | mg. | 20 | cc | |
10/29/82 | Demerol | 50 | mg. | 30 | cc | x 4 |
10/29/82 | Morphine | 15 | mg. | 20 | cc | |
11/05/82 | Demerol | 50 | mg. | 30 | cc | x 4 |
11/09/82 | Demerol | 50 | mg. | 30 | cc | x 3 |
11/24/82 | Demerol | 50 | mg. | 30 | cc | x 2 |
11/26/82 | Demerol | 50 | mg. | 30 | cc | x 2 |
11/10/83 | Demerol | 50 | mg. | 30 | cc | x 3 |
Respondent did not order the above described controlled substances for a medically justifiable purpose. Rather, Respondent diverted the controlled substances to his own use.
On April 15, 1983, an Administrative Complaint was filed by the Department of Professional Regulation (Department) against Respondent alleging that Respondent, among other things, was self-medicating with Demerol and morphine.
Upon realizing that he was in trouble with the Department, Respondent started going to Caduceus Group meetings in Tallahassee, Florida. The Caduceus Group meetings are conducted by James Alford, M.D., an expert in both psychiatry and addictionology. The group has, at all times material hereto, met every Wednesday afternoon at 4:00 p.m. The purpose of the group meetings is to assist physicians in dealing with substance abuse problems.
In the first part of August 1983, Respondent stopped practicing medicine because he understood that the Department would leave him alone if he was not practicing medicine. This would give Respondent the opportunity to see if he could take care of his problem.
Up until November 1983, Respondent continued to medicate himself with controlled substances.
In early November 1983, Respondent went to Ridgeview in Altanta, Georgia, for treatment. Ridgeview is a hospital for drug addicts and alcoholics. Respondent went through detoxification at Ridgeview. The program at Ridgeview is designed, in part, to strip the addicted individual of all defenses in order to treat the addiction. While Respondent was at Ridgeview, group meetings were held with about two-hundred people, and Respondent was asked a number of personal questions (e.g., "What is your sex life like?"). Respondent did not like this form of treatment, left the program after seven days and returned to his home in Greenville, Florida.
Upon his return to Greenville, Florida, Respondent again returned to the Caduceus Group meetings every week.
On or about March 6, 1984, Respondent entered Willingway Hospital in Statesboro, Georgia. Willingway Hospital is primarily an "AA-type treatment center." At Willingway Hospital, Respondent was given "helping and non-critical" assistance instead of confrontation therapy.
Respondent remained at Willingway Hospital for a period of six weeks. In all, the inpatient program cost Respondent about $18,000. Upon his release, Respondent again met with the Caduceus Group on a regular basis. Also, Respondent began to attend AA meetings in Madison, Florida. Respondent's sponsor in AA was Ferdinard Naughton. Respondent has been a dedicated member of that group and even helped set up a meeting place for a third night each week.
From the time Respondent began to become dependent upon pain medications, his problem was exacerbated by the use of alcohol. However, Respondent did not view himself as an alcoholic. Even upon release from Willingway Hospital, Respondent did not view himself as an alcoholic.
On or about June 9, 1984, Respondent appeared before the Board of Medical Examiners for an informal hearing on the
charges that Respondent had been prescribing, dispensing or administering Demerol and morphine to himself, as contained in the Administrative Complaint filed April 15, 1983. At the informal hearing, Petitioner's And Respondent's Joint Recommended Medical Practice Plan For William McDonald, M.D. was submitted to the Board.
The Medical Practice Plan for McDonald, referred to above, provided in part, that:
Dr. McDonald would retain the right to prescribe Schedule II controlled substances, subject to certain specified restrictions and conditions.
If, at any time during the probationary period, there was any question as to Dr. McDonald's treatment, behavior or competency, Drs. Julian Durant and A. F. Harrison (two (2) of Dr. McDonald's supervising physicians) would immediately bring the matter to the attention of the Board and suspend Dr. McDonald from his practice if requested by the Board.
The Department of Professional Regulation investigators were to take random, unannounced blood and urine samples from Dr. McDonald. If any unauthorized substance was detected, Dr. McDonald would immediately be suspended from practice and the matter would be brought to the attention of the full Board.
Dr. Bill Grey of Willingway Hospital, Statesboro, Georgia, and Dr. McDonald's wife agreed that should Dr. McDonald take a mood- changing chemical, he would promptly be admitted to Willingway Hospital in Statesboro, Georgia, for treatment.
Dr. McDonald was to be allowed to retain schedule controlled substances specifically for emergency situations such as coronaries, pulmonary edema, severe trauma, etc. However, Dr. McDonald was to have Drs. Durant and Harrison countersign each and every DEA form for such controlled substances and account therefor by patient's name and record.
By a Final Order of the Board filed on July 25, 1984, the above-described proposed Medical Practice Plan was approved and Respondent's license to practice medicine was placed on probation for a period of five (5) years. The Final Order specifically provided that Respondent was to comply with the terms and conditions of the proposed Medical Practice Plan.
Even after the issuance of the Final Order described above, Respondent did not believe that he was an alcoholic. Around Christmas of 1984, Respondent took the "alcoholic's test." Respondent took a fifth of scotch and had three drinks, noting the number of drinks taken on a pad of paper. After three drinks, Respondent crumpled up the paper and drank the remainder of the bottle. Only then did Respondent recognize that he was an alcoholic.
In March 1985, Respondent, who had been practicing medicine in Greenville, Florida, since the acceptance of his proposed medical practice plan, moved to Madison, Florida, and began to share offices with Julian Durant, M.D. (Dr. Durant was one of the designated supervisory physicians by the terms of the Medical Practice Plan which was approved by the Board by the Final Order filed on July 25, 1984.) Previously, Dr. Durant had shared offices with A. F. Harrison, M.D., another of Respondent's designated supervisory physicians. However, Dr. Harrison had retired from practice. At the time Dr. Harrison retired from practice, Dr. Harrison ceased to be one of Respondent's designated supervisory physicians.
On the weekend of June 2, 1985, Respondent went to West Palm Beach, Florida, for his semi-annual appearance as a probationer before the Board of Medical Examiners. The air conditioning in Respondent's car broke, and Respondent made the entire automobile trip to West Palm Beach (and back) without air conditioning. The weather was extremely hot. Respondent arrived in West Palm Beach late on June 1, 1985.
On Sunday, June 2, 1985, Respondent appeared before the Board of Medical Examiners. At that meeting the Department favorably reported Respondent's progress. However, it was brought to the Board's attention that no quarterly report had been submitted by Dr. Durant. Quarterly reports were to be submitted by all of Respondent's supervisory physicians during the five-year probationary period, pursuant to the provisions of the Final Order filed on July 25, 1984. Dr. Feinstein told Respondent on June 2, 1985, that the Board of Medical Examiners could revoke Respondent's license because of noncompliance with the Final Order.
After the meeting of the Board of Medical Examiners on June 2, 1985, Respondent bought a fifth of Jack Daniels whiskey and proceeded to drink Jack Daniels with water and ice during the trip back to Madison while Respondent's wife drove.
Respondent drank about half the bottle. Before they arrived home in Madison, Florida, Respondent fell asleep in the car.
Both before and after the June 2, 1985, meeting before the Board of Medical Examiners, Respondent experienced back pain. When Respondent arrived home in Madison, Florida, on the evening of June 2, 1985, Respondent took about four Halcion .25 mg. tablets and two Darvocet tablets. Three hours later, Respondent took another four Halcion .25 mg. tablets and two Darvocet tablets.
Respondent had obtained the Halcion .25 mg. tablets and the Darvocet from a pharmaceutical supply salesman several months before June 2, 1985. After receiving the drugs, Respondent had taken the drugs home and placed them in his bathroom medicine cabinet.
Benzodiazepines are a group of tranquilizing agents, the best known of which is Valium. Halcion is a benzodiazepine. Benzodiazepines are Schedule IV controlled substances. Halcion is a short acting drug in the benzodiazepine class and should be completely out of a person's system six hours after being taken.
Benzodiazepines are mood-altering substances. They are tranquilizing, sedating and central nervous system depressants.
Propoxyphene is an analgesic drug for pain relief which is a mood-altering substance. It can cause central nervous system depressant effects but should be completely out of the system within twelve hours. Darvocet contains propoxyphene and acetaminophen and is a Schedule IV controlled substance.
Alcohol also is a mood-altering substance which acts as a central nervous system depressant. When alcohol is taken with benzodiazepine and propoxyphene, the effect of alcohol on the drugs is at least an additive or potentiating effect.
On Monday, June 3, 1985, Respondent returned to work. He made his morning rounds at the hospital and worked the whole day at the office and hospital. The day passed without incident or any abnormal behavior.
On June 3, 1985, in the evening, Respondent was on call at Madison County Hospital. Between 6:00 p.m. and 12 midnight, Respondent drank between two and three scotches.
Three times during the evening Respondent received telephone calls from the emergency room about patients who had come into the emergency room. At 7:00 p.m., a patient came in suffering from an allergic reaction from a bee sting. Respondent was notified by Susie Truesdale, a registered nurse in the emergency room. Respondent examined the patient and ordered appropriate therapy.
At about 9:55 p.m., Kenneth Pinkard arrived at the emergency room at Madison County Hospital, complaining of fever, diarrhea (three times earlier that day), nausea, ringing stuffy ears, nasal congestion and a sore toe. Pinkard indicated that Dr. Durant was his doctor. Susie Truesdale, R.N., saw the patient initially in the emergency room and notified Respondent, the on call physician. After Pinkard's condition was related to Respondent, he asked to speak with Kenneth Pinkard. During the course of the conversation, Pinkard specifically related to Respondent that his toe hurt and was swollen.
Respondent made an initial diagnosis of gastroenteritis, most probably caused by a virus, and admitted Pinkard with treatment orders according to that diagnosis. He also ordered a white blood cell count which would reveal the presence of acute infection. However, no lab technician stayed on duty at the hospital during the night, and the lab results would not be available until late the following morning. Respondent did not immediately go to the hospital to examine Pinkard but instead delayed going to the hospital to see if any other patients came into the emergency room. This delay was reasonable under the circumstances.
When Respondent visited the hospital around midnight, he found Pinkard asleep in the emergency room. Respondent palpated Pinkard's abdomen and confirmed that there was no tenderness which would indicate appendicitis. He also examined Pinkard's toe but saw nothing more serious at that time than a small red bump consistent with an insect bite. Respondent returned home.
Later, at approximately 2:30 a.m., a third patient came into the emergency room at Madison County Hospital with a deep cut on the middle finger of the right hand. Respondent was notified by Eleanor Allen, R.N., and went into the hospital at that time. Respondent sutured the patient's finger, ordered penicillin for the patient and made notations in the patient's record.
For some time, Respondent has experienced erratic sleeping habits. Respondent rarely gets more than four hours of sleep a night.
During the evening of June 3, 1985, and the early morning hours of June 4, 1985, Respondent had difficulty in sleeping due, in part, to being called into the hospital twice and, in part, to the usual difficulties which Respondent had sleeping.
On June 4, 1985, a patient came into the emergency room at Madison County Hospital with an abrasion on his arm. Dr. McDonald was still on call. Therefore, Grace Rutherford, a registered nurse and nurse who assessed the patient initially, called Respondent at home, at approximately 8:35 a.m.
Respondent was very tired and sleepy. Respondent's voice was not very clear. Rutherford did not consider this unusual because she thought Respondent was very sleepy. Rutherford believed that she had got Respondent out of bed when she called. However, when Rutherford told Respondent that the patient had a hurt arm and needed an x-ray, Respondent said: "Do you want a flat-plate of the abdomen?" Rutherford replied: "No, sir, I want an x-ray of the arm." Respondent ordered the appropriate
x-rays by telephone and then came into the hospital.
When Respondent arrived at the hospital, he went to the nurses' station and looked at the patient charts for Kenneth Pinkard and one other patient. Upon his arrival, Respondent was extremely flushed but that was nothing extraordinary since Respondent has a complexion which flushes easily and often. Respondent's speech was not clear, and he appeared to be having difficulty reading patient charts. The evidence did not prove that those behaviors were attributable to anything other than Respondent's being very tired and sleepy and perhaps to his not wearing his reading glasses. To some extent, Respondent was feeling the effects of having had two or three drinks of scotch the night before, and this contributed to his being tired and sleepy.
After reviewing the patient charts, Respondent went on rounds. While on rounds, Respondent went to patient Pinkard's room. While in patient Pinkard's room, Respondent listened to Pinkard's heart through his stethoscope and, while listening to the patient's heart, Respondent leaned over drowsily and almost hit the patient's chest.
After leaving Pinkard's room, Respondent asked Rutherford who had admitted the patient. In his tired and sleepy state, Respondent had forgotten that he had admitted Pinkard. However, under the circumstances, Respondent's diagnosis and treatment ordered for Pinkard was appropriate based upon his examination of Pinkard both the night before and on the morning of June 4, 1985. Respondent's examination of Pinkard confirmed that the patient's fever had dropped to 100 degrees from 103 degrees the night before and that his bowels had indicated satisfactory progress with respect to the gastrointestinal difficulties he had been suffering the night before. He had not started the patient on oral antibiotics the night before because of the possibility of further stomach upset. By morning, Pinkard's condition had improved to the point that oral medication could be administered. But Respondent understood from the night before that Pinkard was Dr. Durant's patient and believed that Dr. Durant would decide whether oral antibiotics should be ordered. On the morning of June 4, Respondent also noted during his examination what still appeared to be just an insect bite on Pinkard's toe which did not call for any further treatment at that time. Respondent believed Dr. Durant would resume the care of Pinkard from that point forward.
After seeing Pinkard, Respondent went to Room 104 to see another patient. Respondent's appearance and condition remained approximately the same as when he was seeing Pinkard.
After making his rounds, Respondent went to the radiology department to look at the x-ray of the patient who had come into the emergency room that morning with the abrasion on the arm. The patient, Ed Gilbert, had been hit in the arm by a falling ladder. The x-rays confirmed that there was no bone fracture.
After examining the x-rays, Respondent went to the emergency room and examined Gilbert. Respondent's appearance and condition remained about the same as when he was examining Pinkard and the other patient. However, the nurse assisting Respondent had to correct the prescription Respondent wrote for Gilbert two times before Respondent prescribed what the nurse felt was the proper medication for the patient.1
Respondent first asked the nurse to clean and wrap the patient's arm. Respondent then stated that the patient would
1
need an antibiotic and probably something for pain. However, Respondent prescribed phenergan expectorant with codeine. The nurse told Respondent the patient did not need phenergan expectorant with codeine. Phenergan is a sedative and an expectorant. It can be used to potentiate the effect of some drugs. It is not an antibiotic, nor is it an effective pain killer. Respondent scratched that out and started to write a prescription for something else. Again, the nurse told Respondent that the patient did not need the drug which Respondent had prescribed. Finally, Respondent wrote a prescription for a drug similar to erythromycin, an antibiotic.
After Respondent left to return to his office, the nurses who had worked with Respondent that morning telephoned Dr. Durant to advise him of their opinion that Respondent was "not himself" and was not able to practice medicine with reasonable skill or safety to his patients. When Respondent arrived at his office, Dr. Durant observed essentially the same attributes of Respondent's physical appearance and condition. Respondent was extremely tired, was sleepy and was slurring his speech rather than speaking clearly. Dr. Durant concurred in the nurses' opinions that Respondent was unable to practice with reasonable skill or safety to his patients and told Respondent to take the day off and go home. One of Durant's office workers drove Respondent home. Respondent arrived at his home at approximately 10:00 a.m. on June 4. His wife arrived home a short time later, and Respondent went to bed to get some sleep.
Meanwhile, Durant had telephoned Dr. Alford in Tallahassee for advice. He described the situation to Alford from his perspective. Durant, of course, and the two nurses working with Respondent that morning knew about Respondent's history of drug problems as recited in the preceding paragraphs of these Findings Of Fact. Respondent was very open with the hospital administrators and staff about his drug problems. Durant and the nurses believed drugs were the cause of Respondent's behavior, appearance and condition on June 4. This belief colored the version of the events that transpired which Durant communicated to Alford. Alford recommended that Durant not allow Respondent to see any patients or make any rounds at the hospital for the time being. Alford also recommended that Durant take specimens of Respondent's urine and blood.
Durant then went to Respondent's house with a hospital technician. Respondent willingly complied with Durant's request for a urine sample. Durant then ordered the technician to take a blood sample. When several attempts to hit a vein failed,
Durant called the hospital and got another technician to go to Respondent's house. This time a blood sample was successfully obtained. By this time, Respondent had become angry that Dr. Durant suspected him of drug abuse and practicing medicine while impaired. When Dr. Durant and the others left, Respondent had two more scotches before going back to sleep. The laboratory tests performed on the blood specimen revealed a blood alcohol level of 0.047. A comprehensive drug screening of the urine specimen revealed the presence of propoxyphene and benzodiazepine metabolites from the dosages of Halcion and Darvocet Respondent took on the evening of June 2. (The drug screen also resulted in a false positive finding for meprobamate.)
Later, at approximately 4:00 or 5:00 p.m. or June 4, Durant examined the patients Respondent had admitted on the previous evening. When he examined Pinkard, Durant noted that Pinkard's temperature continued to be high and that there was marked swelling and redness of Pinkard's left foot, especially of the area of the middle toe. Pinkard also was suffering from lymphangitis or a red streak which was running up his leg. The lymph node in Pinkard's groin area was enlarged. Durant diagnosed cellulitis (infection) of the foot, not gastroenteritis, and started Pinkard on antibiotics. But it was not proved that the infection was apparent when Respondent examined Pinkard or that Respondent diagnosed or treated Pinkard inappropriately.
Du ant was told the results of the tests on the blood and urine specimens on the morning of June 5. Durant then went to Respondent's home to tell him that their association was over and that Respondent would be suspended from full practice at the hospital. On June 6, Respondent requested a temporary leave of absence until he decided to again request active status. Eventually this request was treated as a request to resign from the medical staff at Madison County Hospital and was approved by the hospital administration. The hospital indicated that it was looking forward to Respondent's decision to reapply for privileges.
On June 5, 1985, Respondent went to his Caduceus Group meeting. Respondent was upset with recent events and was angry that Durant apparently had lost confidence in him and turned against him. Respondent also attempted to justify his use of controlled substances by claiming that he took the drugs to treat a physical condition which arose from the airplane accident in 1966.
Respondent met with Marcia Collins, a Department investigator and Respondent's probation supervisor, on or about June 10, 1985. Respondent came by Collins' office again on June 12, 1985, on his way to the Caducous Group meeting. Respondent told Collins that he planned to make arrangements to go to Willingway Hospital in Statesboro, Georgia, after the meeting.
Respondent went to Willingway on June 14, 1985, and was evaluated for treatment of alcoholism and/or drug addiction by Charles W. Morgan, M.D. After the evaluation, Dr. Morgan recommended an in-patient treatment program for alcoholism and drug addiction. Like Alford, Dr. Morgan believed Respondent was minimizing the seriousness of his "slip." However, Morgan acknowledged to Respondent that there were other options beside in-patient care and suggested that Respondent consider all the options. Respondent returned home without yet having selected one of the options.
Respondent has not since entered into any in-patient treatment program. A major reason for Respondent's decision is the considerable cost of in-patient treatment. Respondent continues to attend AA meetings. He no longer goes to the Caduceus Group meetings because he believes Alford was immediately reporting matters he revealed to Alford in confidence at the June 5 and June 12 meetings to the Department to be used in connection with disciplinary proceedings against Respondent's license.
Respondent submitted urine specimens to Collins in June 1985. These specimens were analyzed and were negative for unauthorized substances. On August 1985, Respondent voluntarily agreed to random urine samples upon the request of Drs. Adolfo and Linda Dulay, two Madison physicians. The specimens were randomly taken between August 1 and August 19, 1985. They were analyzed and were negative for unauthorized substances.
Respondent is an alcoholic and is addicted to certain other mood-altering drugs which are controlled under Florida law. Respondent has not recovered from his alcoholism and addictions but is along the road to recovery. The major obstacle to Respondent's recovery is his refusal or inability to fully recognize the nature of his alcoholism and other addictions. While mouthing recognition of his alcoholism and addictions, Respondent believed he could control his consumption of alcoholic beverages and self-medicate with Halcion and Darvocet for pain, emotional stress and insomnia. As a result
of Respondent's failure to fully recognize and accept the implications of his alcoholism and other addictions, he "slipped" on June 2-4, 1985, as reflected in these Findings Of Fact. Respondent will not have recovered from his alcoholism and addictions until he understands that he cannot drink any alcohol and cannot self-medicate using any mood-altering drugs (except perhaps caffeine and nicotine).
Respondent's patient history reveals that Respondent alternately enjoys surges of energy, ideas and productivity and suffers surges of depression. Such a history is consistent with the diagnosis of a mood disorder referred to as bipolar mood disorder or manic-depressive disorder. Successful diagnosis and treatment of such a mood disorder frequently improves the chances for recovery from alcoholism and drug addiction. Conversely, such a mood disorder may contribute to problems of alcoholism and drug addition. The evidence was not sufficient, however, to prove that Respondent in fact suffers from bipolar mood disorder or manic-depressive disorder.
It is clear from the evidence and from common sense that Respondent (or any other physician) is unable to practice with reasonable skill and safety to patients when he is in the process of abusing alcohol and drugs. The evidence also proves that Respondent was in no condition to practice medicine on the afternoon and evening of June 2, 1985. But Respondent was able to, and did, practice medicine with reasonable skill and safety to patients during the day on June 3, 1985. On the evening and night of June 3, 1985, when Respondent was on call, Respondent was unable to practice medicine with reasonable skill and safety to patients by reason of a combination of his use of alcohol between 6:00 p.m. and midnight on June 3 and of his extremely tired physical condition. Respondent's inability to practice medicine with reasonable skill and safety to patients continued until and after he was sent home by Dr. Durant at approximately 10:00 a.m. on the morning of June 4, 1985. Fortunately, the patients Respondent was required to see between 6:00 p.m. on June 3 and 10:00 a.m. on June 4 did not require a high level of medical skill, and Respondent's impairment did not place them in any serious danger. Because of Respondent's continued exhaustion and continued use of alcohol after 10:00 a.m. on June 4, 1985, Respondent continued for some time to be unable to practice medicine with reasonable skill and safety to patients. However, by the time of the final hearing, Respondent was able to resume the competent practice of medicine with-reasonable skill and safety to patients so long as he abstains from the use
of alcohol and other mood-altering drugs (other than perhaps nicotine and caffeine).
CONCLUSIONS OF LAW
The Board of Medical Examiners has the authority to revoke, suspend or otherwise discipline a physician for the following violations of Section 458.331(1), Florida Statutes (1983):
Prescribing, dispensing, or administering any medicinal drug appearing on any schedule set forth in Chapter 893 by the physician to himself, except one prescribed, dispensed, or administered to the physician by another practitioner authorized to prescribe, dispense, or administer medicinal drugs.
Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel a physician to submit to a mental or physical examination by physicians designated by the department. Failure of a physician to submit to such an examination when so directed shall constitute an admission of the allegations against him, unless the failure was due to circumstances beyond his control, consequent upon which a default and final order may be entered without the taking of testimony or presentation of evidence. A physician affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a physician in any other proceeding.
(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.
In a case seeking to revoke2 a license to practice medicine, the charges must be proved by clear and convincing evidence. See Reid v. Florida Real Estate Commission, 188 So. 2d 846 (Fla. 2nd DCA 1966). There is confusing dicta in the decision in Bowling v. Department of Insurance 394 So. 2d 165 (Fla. 1st DCA 1981), suggesting that the "clear and convincing" standard of proof is replaced under the new APA by a "competent substantial evidence" standard of proof. Cf. also Harvey v. Department of Business Regulation, 451 So. 2d 1065 (Fla. 5th DCA 1984). But the latter standard always has been, and only can be, a standard for use in appellate review.
It is the proper role of the Hearing Officer (or any other trier of fact, for that matter) to choose between two possible resolutions of a factual dispute, both of which often are supported by competent, substantial evidence. The appellate standard of proof is a threshold test to ensure that there is 5 good enough evidence in the record, taken as a whole, to support the choice of the finder of fact in resolving the factual dispute. It would not adequately inform the finder of fact what to do when there is competent, substantial evidence on opposite sides of an issue of disputed fact. Nor would it adequately tell a finder of fact how substantial the competent evidence must be.3 , The answer to that question is: in disciplinary administrative proceedings, the evidence must be "clear and convincing;" in other administrative proceedings, a preponderance of the evidence is sufficient. ·
If it suggests that the standard of proof which binds. the trier of fact should be the same as the appellate standard of proof, the Bowling dicta would imply that only one resolution of a disputed issue of fact can be supported by competent, substantial evidence. In effect, this would subject all Findings Of Fact challenged in appellate review to a process by which the appellate court reweighs the evidence. Alternatively, it might even be construed to imply that the party with the burden of proof automatically would be entitled to a recommended
2
3
and final order in its favor by simply proving a prima facie case. Either of these legal conclusions would render the role of the finder of fact all but meaningless, directly contrary to the legislative purpose of Chapter 120.
Bowling does state that, in license discipline proceedings, "the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences." Bowling at 172. This should imply that a license to practice medicine cannot be revoked by proof which is sufficient to persuade the finder of fact merely that the charges "probably" are true (but may not be) or, in other words, that the charges are merely "more likely" to be true than not. Rather, the proof must be sufficient to clearly convince the finder of fact that the charges are true before such charges can be sustained and the license revoked.
The evidence presented at the hearing clearly and convincingly establishes that Respondent self-administered Darvocet and Halcion, which are controlled substances. These substances were not prescribed by another practitioner authorized by law to prescribe controlled substances. Therefore, Respondent violated Section 458.331(1)(r), Florida Statutes (1983).
As set forth in the Findings Of Fact, Respondent was unable to practice medicine with reasonable skill and safety to patients on the afternoon and evening of June 2, 1985, by reason of use of alcohol, Halcion, and Darvocet. However, Respondent was neither on duty nor on call and did not expect to be on duty or on call during those times or during the remainder of the night and early morning hours of June 3. Section 458.331(1)(s) should not be construed to require a physician to be able to practice medicine with reasonable skill and safety to patients on a continuous basis during all hours of all days.
As set forth in the Findings Of Fact, Respondent also was unable to practice medicine with reasonable skill and safety to patients by reason of a combination of use of alcohol and tired physical condition during the hours Respondent was on call from 6:00 p.m. on June 3 through approximately 9:00 a.m. on June 4, 1985. During those times, Respondent was in violation of Section 458.331(1)(s), Florida Statutes.
Respondent continued to be unable to practice medicine with reasonable skill and safety to patients for some time after 9:00 a.m. on June 4, 1985, by reason of a combination of use of alcohol and tired physical condition. However, Respondent understood that he was prohibited from seeing patients after he was sent home at approximately 10:00 a.m. on June 4, 1985. Respondent's continued tired physical condition and continued use of alcohol after 10:00 a.m. on June 4 further demonstrated Respondent's alcoholism but should not be construed as a violation of Section 458.331(1)(s).
By the time of the final hearing in this case, Respondent was able to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients so long as he abstains from the use of alcohol and other mood-altering chemicals (except perhaps nicotine and caffeine).
The Final Order entered on July 25, 1984, required Respondent to comply with the terms and conditions of Respondent's Medical Practice Plan. The Medical Practice Plan provided in part that Dr. Bill Grey of Willingway Hospital and Respondent's wife agreed that should Respondent take a mood changing chemical, he would promptly be admitted to Willingway Hospital for treatment. Although technically the Medical Practice Plan incorporated the explicit agreement of Dr. Grey and Respondent's wife, the plan also incorporated the implicit agreement of Respondent to admit himself to Willingway for treatment. The agreement of Dr. Grey and Respondent's wife would come into play only if Respondent did not comply with his implicit agreement to admit himself. Technically, Respondent violated that part of the Medical Practice Plan and therefore, violated the Final Order entered by the Board of Medical Examiners on July 25, 1984. This is a violation of Section 458.331(1)(x), Florida Statutes (1983).
Because of the way in which the Medical Practice Plan and Final Order were written, Respondent managed not to violate
any other provisions of the Board's Final Order despite what is shown by the Findings Of Fact above.
Although the Medical Practice Plan required Respondent to admit himself to Willingway for treatment under the circumstances shown by the Findings Of Fact in this case, the evidence showed that in-patient treatment is not the most appropriate course of treatment for Respondent at this time. First, Respondent is recovering from a relatively minor "slip" involving some but not extreme abuse of alcohol and Schedule IV controlled substances. In contrast, those involved in the Medical Practice Plan were dealing with and contemplating a recovery from long-term serious abuse of Demerol and morphine, both Schedule II controlled substances. In addition, the cost of in-patient treatment at Willingway (approximately $3,000 a week) is a hardship for Respondent and his family at this time.
Rule 21M-20.01 (3), Florida Administrative Code, provides :
The Board may take into consideration the following factors in determining the appropriate disciplinary action to be imposed:
the severity of the offense;
the danger to the public;
the number of specific offenses;
the length of time since the date of the violation(s);
the length of time the licensee has practiced his profession;
the actual damage, physical or otherwise to specific patients;
prior discipline imposed upon the licensee;
the deterrent effect of the penalty imposed;
the effect of the penalty upon the licensee;
efforts by the license towards rehabilitation; and
any other mitigating or aggravating circumstances.
Based on the foregoing Findings Of Fact and Conclusions Of Law, and considering the factors set out in Rule 21M-20.01(3), Florida Administrative Code, it is recommended that the Board of Medical Examiners enter a final order:
that Respondent, William McDonald, M.D., violated Section 458.331(1)(r), (s) and (x), Florida Statutes (1983);
that, notwithstanding those violations, the emergency suspension of Respondent's license to practice medicine which has been in effect since June 4, 1985, be lifted and that Respondent's license be reinstated with the following restrictions and conditions:
that Respondent put himself under a physician's care for his back pain and any other physical injuries or illnesses and under a professional's care for his alcoholism and drug addiction;
that Respondent, at his own expense, shall submit daily urine samples to Madison County Hospital technicians to be screened for alcohol or any controlled drugs and to report the results to the Department of Professional Regulation;
that Respondent place himself under the care of a psychiatrist with whom the Department of Professional Regulation concurs for a complete examination and diagnosis and, if necessary, treatment with respect to any mood disorder which might contribute to Respondent's alcoholism and drug addiction;
that Respondent continue to attend and actively·participate in Alcoholics Anonymous meetings;
that Respondent immediately cease the practice of medicine and report to the Department of Professional Regulation in the event that he consumes any alcohol or takes any
controlled substance without a prescription from another physician;
that Respondent maintain no Schedule II controlled, substances at his office and keep a log of all Schedule II substances prescribed at the hospital;
hat Respondent immediately report to the Department of Professional Regulation any change in his residence or practice of medicine; and
any other restrictions or conditions on Respondent's practice of medicine deemed appropriate by the Board of Medical Examiners.
that Respondent be placed on probation for five years with the following conditions of probation:
that Respondent comply with all the conditions and restrictions upon his practice of medicine as set forth above;
that Respondent not consume any alcohol or take any controlled substance without having a prescription from another physician;
that Respondent keep no alcohol or controlled substances at his place of residence;
that Respondent meet with representatives of the Department of Professional Regulation at all reasonable times upon request;
that Respondent appear before the Board of Medical Examiners on a semi-annual basis; and
any other conditions of probation deemed appropriate by the Board of Medical Examiners.
RECOMMENDED this 5th day of December, 1985, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON, 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 December, 1985.
ENDNOTES
1/ The Department objected at final hearing to the introduction of a transcript of the deposition of Ed Gilbert as Respondent's Exhibit 3. The Department was unable due to lack of notice to appear at and participate in the deposition. For that reason, the deposition transcript would not have been admissible over a hearsay objection in a civil action. See Section 90.804(2)(a), Florida Statutes (1983); Rule 1.310, Florida Rules of Civil Procedure. Therefore, the deposition transcript is not sufficient in itself to support a finding. See Section 120.58 (l)(a), Florida Statutes (Supp. 1984). However, the deposition transcript, while hearsay, may be used for the purpose of supplementing or explaining other evidence. Id. Under this provision the deposition transcript is admissible and is received in evidence. This finding was made after considering all the relevant evidence, including the transcript of the deposition of Ed Gilbert.
2/ In its proposed recommended order, the Department seeks a recommendation of a two-year suspension. But the Administrative Complaint seeks revocation, suspension or other lesser penalties. There would be little to prevent the Board of Medical Examiners from increasing a recommended penalty from a two-year suspension to revocation. See Section 120.57(1)(b)9., Florida Statutes (Supp. 1984). See also Footnote 3 below.
3/ Bowling seems to suggest an unworkable "sliding scale" under which the necessary "substantiality" changes depending on the seriousness of the action the agency ultimately takes. Bowling at 171-172. Cf. Lash, Inc. v. Dept. of Business Reg., 411 So. 2d 276, 278-279 (Fla. 3rd DCA 1982).
APPENDIX
Rulings on Petitioner's Proposed Findings of Fact
Paragraph
1-8 Covered by Findings 1-8.
Covered by Finding 7. Rejected in part as subordinate.
Covered by Finding 9.
Covered by Finding 10.
Covered by Finding 12.
Covered by Finding 11.
14-24 Covered by Findings 13-23.
Covered by Finding 5.
Covered by Finding 24.
Covered by Finding 37.
28-29 Covered by Findings 25-26.
Covered by Finding 31.
Covered by Finding 32.
32-33 Covered by Findings 32-33.
Covered by Finding 34.
Covered by Finding 36.
Covered by Finding 35.
Covered by Findings 37-38.
Covered by Finding 39.
39-42 Covered by Findings 39-42.
Subordinate.
Covered by Finding 43.
Covered by Finding 34.
Subordinate.
Covered by Finding 42.
Covered by Finding 44.
Subordinate.
Covered by Findings 45-46.
Covered by Finding 45.
Covered by Finding 47.
Covered by Finding 46.
Subordinate.
Covered by Finding 47.
59-60 Covered by Finding 50.
61-62 Covered by Finding 49.
63-66 Covered by Finding 51.
67 Covered by Finding 52.
68-69 Subordinate.
Covered by Finding 57.
Subordinate
Covered by Finding 53.
Covered by Finding 54.
Covered by Finding 55.
Covered by Finding 56.
Subordinate. Covered by Findings 57 and 59.
Subordinate.
Subordinate.
Subordinate. Covered by Finding 58.
Subordinate. Covered by Finding 57.
Subordinate. Covered by Finding 59.
82-85 Covered by Findings 27-30.
Covered by Finding 4.
Covered in part by Finding 59. Rejected
in
part as a conclusion of law.
Rulings on Respondent's Proposed Findings Of Fact Paragraph
Covered by Finding 19.
Covered by Finding 18.
Covered by Findings 18-19
Immaterial and unnecessary.
Covered by Finding 18.
Covered by Finding 1.
Covered by Finding 2.
Covered by Finding 3.
Covered by Finding 4.
Rejected as a conclusion of law.
Covered by Finding 7.
Covered by Finding 8.
Covered by Finding 7.
Covered by Finding 9.
15-16 Covered by Finding 12.
Covered by Finding 15.
Covered by Finding 14.
Subordinate, immaterial and unnecessary.
Cumulative.
Subordinate.
Covered by Finding 20.
Unnecessary.
Subordinate and unnecessary.
Subordinate and unnecessary.
Subordinate and unnecessary.
27-28 Covered by Finding 21.
Covered by Findings 5 and 48.
Cumulative.
Subordinate and unnecessary.
Subordinate and unnecessary.
Subordinate and unnecessary.
Covered by Findings 15 and 55.
Subordinate and unnecessary.
Covered by Finding 37.
37-38 Covered by Finding 22.
39-40 Covered by Finding 23.
41-42 Covered by Finding 24.
43-45 Covered by Finding 25.
Covered by Findings 27 and 28.
Covered by Finding 29.
Subordinate and unnecessary.
Covered by Findings 27-29.
50-52 Covered by Finding 31.
53-54 Covered by Finding 32.
55-57 Covered by Finding 33.
Covered by Finding 34.
Covered by Finding 35.
Covered by Findings 35 and 36
Covered by Finding 36.
Covered by Finding 38.
Covered in part by Finding 32. Rejected
in
part as subordinate and unnecessary.
Subordinate and unnecessary.
65-69 Covered by Finding 40.
Covered by Finding 41.
Covered by Finding 47.
Covered by Finding 42.
Covered by Finding 45.
Covered by Finding 44.
Subordinate and unnecessary.
76 | Covered by Findings 40, 43, 45 and 47. | |
77 | Covered by Finding 45. | |
78 | Covered by Finding 47. | |
79-80 | Covered by Finding 50. | |
81-82 | Subordinate. Covered by Finding 59. | |
83 | Subordinate. | |
84 | Subordinate and covered in part by | |
Finding 47. | ||
85-86, | 88-90 | Subordinate and unnecessary. |
87 | Covered by Finding 47. | |
91-92 | Covered by Finding 49. | |
93 | Covered by Finding 48-49. | |
94-95 | Covered by Finding 49. | |
96 | Covered by Finding 51. | |
97-98 | Covered by Finding 52. | |
99 | Covered by Findings 52 and 57. |
100-103 | Covered by | Finding 59. |
104 | Covered by | Findings 54,55 and 57. |
105-106 | Covered by | Finding 55. |
107 Subordinate and unnecessary.
108-109 Covered by Finding 51.
110 Subordinate and unnecessary.
111 | Covered by | Finding 54. |
112 | Covered by | Findings 54 and 56. |
113-114 | Subordinate and unnecessary. | |
115 | Covered by Finding 54. | |
116-118 119 | Covered by Finding 59; otherwise subordinate. Covered by Finding 49. | |
120-121 | Covered by Findings 39-47 and 59. | |
122 | Covered by Findings 32-47 and 59. | |
123 | Conclusion of law. | |
124 | Covered by Finding 59. | |
Covered by Findings 32, 54 and 55.
Conclusion of law.
COPIES FURNISHED:
Stephanie A. Daniel, Esquire Staff Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
David J. Russ, Esquire 1114 North Adams Street
Tallahassee, Florida 32303
Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 323015
Salvatore A. Carpino, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Dec. 05, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 05, 1985 | Recommended Order | Doctor self-administered legend drugs. Alcohol and drug use warrants him temporarily unable to practice with reasonable skill and safety. Violated prior order. |
