STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 85-3405

)

ROBERT G. GILBERT, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held on April 9, 1986, in Miami, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Cecilia Bradley, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Robert G. Gilbert, M.D.

2617 Cardena Street

Coral Gables, Florida 33134 ISSUE

The issue in this proceeding was whether Respondent violated Subsections 458.331(1)(g) and (t), Florida Statutes, between June 26, 1980 and September 16, 1983, by prescribing 4,100 Percocet to a single patient, failing to attempt other modalities of pain treatment for that patient and failing to refer the patient to a consulting physician.

BACKGROUND AND PROCEDURAL MATTERS

This proceeding commenced with Petitioner's Administrative Complaint filed July 15, 1985, and Respondent's timely request for formal hearing, pursuant to Section 120.57(1), Florida Statutes.

At the hearing Dr. Gilbert represented himself and was accompanied by his wife. It was established that Dr. Gilbert cannot speak, as his tongue was removed as the result of an illness. He testified by printing notes, which were read into the record by the Hearing Officer, and by nodding affirmatively or negatively, which gestures were also noted for the record.

After presenting a brief statement under oath, submitting to cross-examination and agreeing to the admission of Petitioner's four exhibits, Dr. and Mrs. Gilbert voluntarily left the hearing.

While agreeing to the admission of Petitioner's Exhibit #1, medical records of George Watson, obtained from Dr. Gilbert's office, Dr. Gilbert stated that he was not sure it was the complete file as that was at the patient's attorney's office (see transcript, p. 14-15). Dr. Gilbert's only evidence was his own testimony.

Petitioner presented the testimony of two witnesses (an investigator and a medical expert) and four exhibits. After the hearing, Petitioner submitted a Proposed Recommended Order including Proposed Findings of Fact and Conclusions of Law. The proposal has been considered in the preparation of this Recommended Order and specific rulings on the Proposed Findings of Fact are found in the Appendix hereto attached.

FINDINGS OF FACT

1. At all times relevant, Robert G. Gilbert, M.D., Respondent, was licensed as a physician with license number ME0005030 from the Florida Board of Medical Examiners. He has been continually licensed since 1952. (Petitioner's Exhibit #3, T-13, 18) Neither the Department nor any hospitals have ever taken any action against his license. (T-13)

   
   

2. Dr. Gilbert admitted at the hearing that he prescribed 4,100 pills of Percodan to his patient, George Watson, for the period of time in question. (T-9) He also stated that he prescribed for Mr. Watson 100 Percocet a month for the last five years that he treated him. (T-20-21) These admissions are consistent with Petitioner's evidence consisting of medical records and original prescription forms retrieved from the pharmacies. (Petitioner's Exhibits #1, 2 and 4)

   
   

3. Percodan and Percocet both contain oxycodone; Percodan includes aspirin, and Percocet includes acetaminophen. (T-31) Both Dr. Gilbert and Petitioner's expert, Dr. John Handwerker referred to the PDR (Physicians' Desk Reference) regarding the drugs. The warning in that widely-accepted medical reference is: "May be habit forming"; the indications are "For the relief of moderate to moderately severe pain"; and,

   * * *

   
   

   Dosage should be adjusted according to the severity of the pain and the response of the patient. It may occasionally be necessary to exceed the usual dosage recommended below in cases of more severe pain or in those patients who have become tolerant to the analgesic effect of narcotics.

   
   

   The usual dosage is one tablet every six hours for pain. PDR, 1984 Edition, p. 928.

   
   

4. The Oxycodone content in these drugs places them in the Schedule II, severely restricted medical category. (T-31), See Subsection 893.03(2)(a), Florida Statutes.

   
   

5. Dr. Gilbert did not admit that the drugs were the only mode of treatment for this patient. Rather, he and other physicians treating Mr. Watson used ultrasound, heat, cold, massage, transcutaneous neural stimulation ("TNS") and muscle relaxants. (T-9-10) The patient was 6'2" and weighed 210 lbs. He was injured on his job as a City of Miami police officer and for a lengthy period, from 1974 until 1985, Dr. Gilbert was his authorized worker's compensation physician. At no time while Mr. Watson was under Dr. Gilbert's care did he ask for an increase in dosage or exhibit any unusual behavior. The treatment, other than drugs, was utilized from 1974 until about 1977 regularly and then intermittently, as needed, until February 1985. (T-10, 12)

   
   

6. The records of George Watson obtained by the D.P.R. from Dr. Gilbert's office, consist primarily of cards reflecting various visits of the patient, correspondence regarding the workers' compensation claim and workers' compensation billing and report forms. The records are replete with references to physiotherapy, often several times a month and, for several months in 1977, on a daily basis. George Watson continually complained of pain. (Petitioner's Exhibit #1) Also included in the records is a three-page report on the patient, dated July 30, 1977, from Ledford Gregory, M.D., an orthopedic surgeon. The report reflects the patient's complaints of severe pain and Dr. Gregory's recommendation to the patient regarding surgery:

   
   

   I am however impressed by the degree of pain he is having and I believe that he is a candidate for surgical therapy. Before a decision would be made in this regard however, he should have an electromyelogram of the lower extremity, a CAT scan of the

   lumbar spine and a myelogram. We could then decide whether a Gill procedure and decompression would be sufficient or whether there would have to be added a posteriolateral fusion procedure. I have discussed this with the patient. I have explained to him that the odds are fairly good that the operation would give him considerable relief but that there is a chance that his condition would remain unchanged, and there is a slight chance that he might be worse. He will have to make the decision himself as to whether he desires the surgical intervention

   or not.

   
   

   (Petitioner's Exhibit #1, p. 171).

   
   

7. Dr. John Handwerker was qualified as an expert witness for Petitioner. He heard Dr. Gilbert's testimony and reviewed the medical records, including the prescriptions for George Watson. (T-30,31) In his opinion the prescriptions for Percocet/Percodan were inappropriate and excessive as there were other treatment modalities that could have been tried before risking addiction. In his opinion, the TNS unit should have been utilized continually, rather than just in the office, and Dr. Gilbert's records were inadequate to justify the continuing use of the drugs for his patient's pain. (T-32, 33, 38).

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction in the subject matter and over the parties to this proceeding. Subsections 120.57(1) and 455.225(4) Florida Statutes.

   
   

9. Respondent is charged with violations of Subsections 458.331(1)(q) and (t) Florida Statutes. These provide as follows:

   
   

   458.331 Grounds for Disciplinary Actions; Action by the Board and Department.

   
   

   (1) The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken:

   
   

   * * *

   
   

   (q) Prescribing, dispensing administering, mixing, or otherwise preparing a legend drug,

   including any controlled substance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his intent.

   * * *

   
   

   (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.

   
   

10. Paragraph 3 of the Administrative Complaint sets forth the factual basis for the charges:

    
    

    3. Between June 16, 1980 and September 16, 1383, Respondent prescribed a total of four thousand one hundred (4,100) Percocet to patient George Watson. During said period of treatment of patient Watson, Respondent failed to attempt any other modalities of pain treatment for patient Watson and failed to refer patient Watson to a consulting physician.

    
    

11. Although Petitioner's expert testified at length about the poor quality of record-keeping, Respondent is not charged with a violation of Subsection 458.331(1)(n), Florida Statutes, regarding failure to keep written medical records justifying the course of treatment; nor is Respondent charged with being unable to practice medicine by reason of illness or physical condition. See subsection 458.331(1)(s), Florida Statutes. Discipline in licensing cases may not be based upon violations which are not charged in the Administrative Complaint. Wray v. DPR, Board of Medical Examiners, 435 So. 2d 312 (Fla. 1st DCA 1983) Sternberq v. DPR, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985)

    
    

12. Respondent admitted that he prescribed the alleged quantity of a controlled drug. (See Finding of Fact, paragraph 2

    above) The record in this proceeding utterly fails to support the charge that Respondent did not attempt other modalities of pain treatment for Mr. Watson. Further, Dr. Gilbert was clearly aware that his patient was seeing other consulting physicians. His records, presented as Petitioner's evidence, reference other physicians. Whether those were the result of direct referrals by Dr. Gilbert is immaterial. Petitioner never attempted to prove that additional consultations were necessary under the test described in Subsection 458.331(1)(t), Florida Statutes.

    
    

13. The sole remaining issue then is whether the dosages prescribed by Respondent were inappropriate or excessive or otherwise constituted "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 circumstances."

    
    

14. An essential element of proof of a deviation from acceptable standards of care, skill and treatment is proof of what constitutes acceptable standards. Purvis v. Department of Professional Regulation, Board of Veterinary Medicine, 461 So. 2d

    134 (Fla. 1st DCA 1984). Here, a single medical expert based his opinion on the testimony of the Respondent and on what may or may not have been the Respondent's complete medical records of his patient. Dr. Handwerker, the expert, felt that alternative treatment modalities should have been tried. Yet, the overwhelming weight of evidence was that alternatives were tried. With the exception of Dr. Handwerker's discussion of how the TNS unit should have been, but was not used, he never addressed how or why the physiotherapy or other modalities applied by Dr. Gilbert and others did not constitute alternative treatment. Instead, Dr. Handwerker doggedly concluded that ". . . Dr. Gilbert leap-frogged all of the intermediate steps that he could have used to control this patient . . . ." (T-39) Such a conclusion, by a single expert, without a solid evidentiary base to support it is insufficient to establish the charge against Respondent. Sneij vs. DPR, Board of Medical Examiners, 454 So. 2d 795 (Fla. 3rd DCA 1984); see also Department of Professional Requlation v. Issac Emilio Alvarez, M.D., 7 FALR 3583 (Final Order entered 5/22/85).

15. Such a conclusion, without an explanation as to the deficiencies of the alternative modalities described by Dr. Gilbert and profusely referenced in his records, constitutes a gross mischaracterization of the evidence.

    
    

16. The evidence by Petitioner in this case does not meet the requirement that "evidence must be clear and convincing in order to deprive a professional man of his means of livelihood." Walker v. Florida State Board of Optometrv, 322 So. 2d 612, 613

(Fla. 3rd DCA 1975) For a more recent and perhaps stricter standard of proof in licensing cases, see Bowling v. Department of Insurance, 394 So. 2d-165 (Fla. 1st DCA 1981)

RECOMMENDATION

For the foregoing reasons, it is, therefore, RECOMMENDED:

That the Administrative Complaint against Respondent, Robert

G. Gilbert, M.D., be dismissed in its entirety.

DONE and RECOMMENDED this 23rd day of May, 1986, in Tallahassee, Florida.

MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986.

COPIES FURNISHED:

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Cecilia Bradley, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Robert G. Gilbert, M.D. 2617 Cardena Street

Coral Gables, Florida 33134

APPENDIX

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in Paragraph 1.

   
   

2. Adopted in Paragraph 2.

   
   

3. Rejected as unnecessary.

   
   

4. Rejected as unnecessary.

5-7. Rejected as unnecessary. While the veracity of the witness is not in question, the testimony of the Respondent under oath and substantiated by the medical records introduced as Petitioner's exhibit #1 is more competent evidence that other modalities were tried. Without the actual questions asked by the investigator, it is not possible to determine the context or meaning of the seemingly inconsistent prior statements of Respondent during the investigator's interview.

1. Adopted in part in Paragraph 3, the transcript reference does not support the finding proposed in this paragraph.

   
   

2. Adopted in Paragraph 6, except as to the characterization of the testimony as "uncontroverted", this is specifically rejected.

   
   

3. Adopted in general in Paragraph 6.

   
   

4. Rejected as cumulative and unnecessary.

   
   

5. Rejected as inconsistent with the evidence.

   
   

6. Adopted in general in Paragraph 6.

   
   

7. Adopted in general in paragraph 6. But see Conclusions of Law #4 regarding violations which are not included in the complaint.

   
   

8. Adopted in paragraph 2.

   
   

9. Rejected as cumulative.

   
   

10. Rejected as cumulative.

    
    

11. Rejected as unnecessary.

12. This conclusion by the expert is rejected as discussed in the Conclusions of Law.

23-25. Rejected as unnecessary.

26. Rejected as irrelevant in this proceeding. Incapacity is not charged in the complaint before me. See Conclusion of Law #4.

Docket for Case No: 85-003405

Orders for Case No: 85-003405