STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION )

)

Petitioner, )

)

vs. ) Case No. 85-4121

)

JULES JONAS DOSSICK, D.O. )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled case was held on April 21, 1986, in Miami, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Stephanie A. Daniel

Senior Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Jules Jonas Dossick, D.O. pro se

North Miami Medical Center 4805 East 4th Avenue Hialeah, Florida 33013

ISSUES

The issue in this proceeding is whether the Respondent, Jules Jonas Dossick, D.O. violated statutes governing the practice of osteopathic medicine on the grounds alleged in the administrative complaint and if so, what disciplinary action is appropriate.

Background and Procedural Matters

This proceeding commenced when Petitioner filed its administrative complaint and Respondent timely requested a formal hearing. At the hearing Petitioner verbally amended its complaint by deleting all factual and legal allegations relating to sexual misconduct and violations of Section 459.015(1)(k)

Florida Statutes. Petitioner presented evidence through three witnesses and four exhibits. Respondent testified on his own behalf and presented one exhibit. All exhibits were admitted without objection. Petitioner has submitted a proposed recommended order, which proposal has been considered and, in part, included in this order. A specific ruling on each proposed finding of fact is found in the appendix attached hereto. By pleadings dated May 23, 1986, Respondent has moved for a re- hearing and has objected to the Petitioner's proposed recommended order, both on the grounds that he has now retained counsel and should have the opportunity to have the case re-heard with the benefit of an attorney. Respondent had an attorney in an earlier part of this proceeding and discharged him by letter dated February 22, 1986. (see letter attached to motion to withdraw filed March 3, 1986). Approximately two months later the final hearing was held. Respondent had ample time to retain new counsel or ask for a continuance. He proceeded to hearing, aware of his rights and without protest. The record is void of any basis to consider such extraordinary relief.

FINDINGS OF FACT

1. Respondent, Dr. Dossick, is now and at all times relevant has been licensed as an osteopathic physician in Florida under license number OS 0000874. He practices at his clinic, North Miami Medical Center, located at 4805 East 4th Avenue in Hialeah, Florida. (T-10,11).

   
   

2. The clinic is comprised of a reception room, a kitchen that is also used as an office, a bathroom near the reception area, a supply room, two examining rooms, and two additional rooms with a bathroom and shower at the rear of the clinic. Dr. Dossick lives at the clinic and keeps the additional rooms for his bedroom, for storage and for personal use. One of the additional rooms was used several years ago as a third examining room. (T-43, 44, 114-116).

   
   

3. In January 1985, two investigators from the Department of Professional Regulation went to Respondent's Clinic for an inspection. They took pictures and spoke to Dr. Dossick. Three other individuals were at the clinic the day of the inspection: a man and woman in one examining room, and a woman in what the inspectors thought was an examining room, but was identified by Dr. Dossick as his personal use and storage room. (T-41, 49, 57, 64, 116).

   
   

4. The investigators found the clinic in varying stages of filth and disarray. The reception room was old and worn, unclean, but with little sign of current use. The kitchen had dirty dishes and exposed garbage. The examining rooms were

   fairly neat but the medications on the countertops were old, dirty and, in some cases, expired. There was no garbage in the two examining rooms, but they did not appear clean. The third room, the former examining room (now used for storage and Dr.

   Dossick's personal living quarters) was a mess: clothing, mail and fast food containers were strewn about, cotton swabs were exposed and piled on a counter; syringes and medications were also exposed on the countertops. In this room the narcotics supply was stored in a locked cabinet. Two dogs were present in the clinic, one of which had patches of hair missing as if diseased. (T-46, 49, Petitioner's Exhibits #3 and #4)

   
   

5. There was no evidence that patients had access to the kitchen, supply room or Dr. Dossick's bedroom. Patients occasionally go to the former examining room and wait there prior to seeing the doctor. Dr. Dossick keeps his own dog at the clinic and, even though he does not encourage them, his patients sometimes bring their animals to the clinic with them. Dr. Dossick admitted that he had trouble for a while keeping the place clean. The woman who worked for him injured her knee in a karate tournament and had surgery. While the admission of problems was candid, the excuse regarding the former cleaning worker was confused: the handwritten statement Dr. Dossick presented from Barbara O'Rourke suggested that her accident and subsequent surgery occurred in April and July 1 85, respectively; that is, several months after the DPR inspectors' visit. (T-64, 87-89, 105-106, 112-113).

   
   

6. Linda Joyce Godfrey is a patient of Dr. Dossick. She is thirty-nine years old, was born with cerebral palsy, and around 1981 was diagnosed with multiple-sclerosis. She is crippled and walks unaided with considerable difficulty. She has undergone several operations and lengthy periods of hospitalization. She has been under the care of various physicians, including an orthopedist, several neurosurgeons, and another osteopathic physician. (T-66, 69)

   
   

7. Ms. Godfrey began seeing Dr. Dossick after an extended hospitalization period. She picked him at random and asked for percodan, a controlled narcotic substance, generally prescribed for pain relief. He refused to give her the percodan and prescribed a non-narcotic medication instead. She continued seeing him and later he prescribed placidyl, percocet and percodan at various times to help her sleep and for the severe pain in her muscles and bones. He did not give her these medications until he obtained her hospital reports and talked with her regular physicians. (T-66,69,81)

   
   

8. Ms. Godfrey admits that she was an addict. She claims that Dr. Dossick was initially unaware of this but later helped

   her get off the habit. On one occasion she went to his office in the state of apparent overdose. He called Hialeah Fire and Rescue and got her out of there. He told her not to come around anymore because he didn't go for drugs. She later went back and asked for help. The evidence is inconclusive as to whether Ms.

   Godfrey's episode was an overdose or a grand mal seizure. (T-69, 73-76, 80, 90-91).

   
   

9. According to Ms. Godfrey, Dr. Dossick injected her with Demerol on only one occasion, around six weeks prior to the hearing, after her apartment was broken into and she was raped. (T-71, 72).

   
   

10. The practice of osteopathic medicine encompasses all aspects of medicine commonly referred to as allopathic medicine, but also includes physiotherapy, manipulative therapy, nutrition: a holistic approach. (T-13,14). This characterization of the distinction between the professions is borne out in the statutory definitions of "practice of medicine" and "practice of osteopathic medicine":

"Practice of osteopathic medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition, which practice is based in part upon educational standards and requirements which emphasize the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health.

1l. Except for the underlined verbiage the two definitions are the same. See Section 458.305(3) Florida Statutes, and Section 459.003(3) Florida Statutes.

1. One of the rudiments of osteopathic medicine values the "laying of hands" as part of caring for a patient in a very kind and personal manner. Cleanliness of the person and the physical area surrounding the practitioner is essential to avoid transferring disease from one patient to another. (T-18,19) Animals should not be present in the clinic because of the potential for communicating disease to humans through fleas, flies or the animals. (T-18) Old, dirty drugs and syringes should be disposed of in such a manner as to avoid access and use. (T-19,20)

   
   

2. The above standards were described in the competent, uncontroverted testimony of Petitioner's expert, Ralph Birzon,

   D.O. Those standards were violated by Dr. Dossick when he allowed

   dogs in the clinic, when he failed to properly dispose of old drugs and syringes, and when he failed to keep his clinic clean.

   
   

3. Dr. Dossick does, however, treat his patients in a very kind and personal manner. Ms. Godfrey was called as Petitioner's witness. Her testimony was credible and touchingly candid, as also was Dr. Dossick's. Ms. Godfrey said Dr. Dossick helped her; he took pity on her; he is good to his patients and is a good man. She does not have the money to pay for his treatment or the prescriptions, so she sometimes files and answers the phone at the clinic. Dr. Dossick is the oldest physician in the area; he spends a lot of time with his patients and they depend on him.

   He regularly treats his patients without charge, or for a token fee. He also loans them money for prescriptions. He has treated some patients for 25-30 years. (T-81, 83, 93, 95-96, 103)

   
   

4. Dr. Dossick has previously been suspended by the Board of Osteopathic Medical Examiners for six months because of allegations that he prescribed medication without performing an examination. He volunteered this fact. (T-97, 107-109) The violations occurred approximately ten years ago. See Board of Osteopathic Medical Examiners v Dossick DOAH #76-1814; Dossick v Florida State Board of Osteopathic Medical Examiners, 359 So. 2d 12 (Fla. 3rd DCA 1978).

   
   

5. The clinic has been cleaned up since the investigators' visit and the dirty and outdated drugs have been discarded. (T- 88,104)

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Respondent is charged with violations of Subsection 459.015(1)(h),(g), and (t), which provide as follows:

   
   

   459.015 Grounds for disciplinary action by the board.

   
   

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

   
   

   * * *

   (h) Failing to perform any statutory or legal obligations placed upon a licensed osteopathic physician.

   
   

   * * *

   
   

   (q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including all controlled substances, other than in the course of the osteopathic 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 osteopathic physician's professional practice, without regard to his intent.

   * * *

   
   

   (t) Gross or repeated malpractice or the failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances.

   
   

8. In four separate counts, the Administrative Complaint describes factual allegations to support the above charges. Count I alleges the unhealthy and unsanitary condition of the clinic, citing specifics with regard to the dust, dirt and dogs. Count II addresses the old and dirty drug bottles scattered around the premises. Count III, as amended, alleges only that there have been police investigations of incidents of drug overdoses at the clinic and that one overdose incident involved Linda Joy Godfrey who was injected by Respondent with a combination of Demerol and Dilaudid. Count IV realleges and incorporates the factual allegations of the prior counts.

   
   

9. Petitioner has the burden of proving by clear and convincing evidence that the alleged violations occurred. Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981).

10. Petitioner met its burden of proving the factual allegations of Counts I and II. The testimony and evidence produced by the DPR inspector regarding conditions of the clinic and the presence of dogs were substantiated by Dr. Dossick's admissions. Moreover, testimony of Petitioner's expert, Ralph Birzon, D.O., adequately established the standard of professional conduct against which Dr. Dossick's practice could be measured. See Purvis v. Department of Professional Regulation, 461 So. 2d

    134 (Fla. 1st DCA 1984)

    
    

11. Petitioner failed to prove the allegations of Count

    III. No competent evidence was produced with regard to an overdose incident involving Linda Joy Godfrey, or the injection of that patient with a combination of Demerol and Dilaudid. No evidence was produced as to "official police investigations of incidents of drug overdoses," and even had that latter factual allegation been proven, it alone could hardly constitute a violation of subsections 459.015 (l)(q) or (t) Florida Statutes.

    
    

12. Certain testimony presented through the Petitioner's expert addressed whether Percodan and Percocet were appropriate prescriptions for an individual with multiple sclerosis. There are no factual allegations in the Complaint relating to this issue. A complaint seeking a license revocation must state with specificity the acts complained of to allow the licensee a fair chance to prepare a defense. Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2nd DCA 1984), citing Davis v. Department of Professional Regulation, 457 So. 2nd 1074 (Fla. 1st DCA 1984). Aside from the sufficiency of the complaint, the evidence failed to prove that the dispensing of these drugs to Linda Godfrey was inappropriate or otherwise constituted a violation of subsection 459.015(1)(q) Florida Statutes. Petitioner's expert witness only reviewed some records of treatment for Ms. Godfrey. He did not examine the patient nor did he contact her other physicians. (T-20 21, 39) His opinion first stated that the drugs at issue could be given in extreme circumstances; later he said they should never be given to a multiple sclerosis patient, since alternatives are available.

    (T-30, 31)

    
    

13. While Petitioner has proven the factual allegations of Counts I and II, the Administrative Complaint does not specify what " . . . statutory or other legal obligations" Respondent has failed to perform in violation of Subsection 459.0l5(l)(h) Florida Statutes. The references to Section 499.005 and 499.006 Florida Statutes in Petitioner's post-hearing proposed conclusions of law come too late to provide meaningful notice to Respondent as to what he must defend. Hunter, Davis, supra.

14. Both mitigating and aggravating circumstances affect the recommendations of a penalty. Respondent has practiced for many years; he has been disciplined once before. His patients depend on him, and nothing in the record of this proceeding indicates that specific patients have been damaged by the environment in which Dr. Dossick practices. Still, the contaminating presence of dogs, the filthy and unkempt rooms and the hoarding of dirty and outdated medication belie the doctor's concern for his patients. The people he cares for so passionately deserve better; the standards of his profession demand more.

For the foregoing reasons, it is therefore, RECOMMENDED;

That a final order be entered finding Respondent guilty of violating Subsection 459.015(1)(t) Florida Statutes; dismissing the Complaint as to alleged violations of Subsections 459.015(h) and (g) Florida Statutes; and placing Respondent on probation for a period of two years, subject to the condition that he bar animals from the clinic, that he maintain the clinic in a clean and sanitary condition, and that he properly dispose of out-dated and used drugs and supplies.

DONE AND RECOMMENDED this 6th day of June, 1986 at 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 6th day of June, 1986.

COPIES FURNISHED:

Jules J. Dossick, D.O. 4895 East 4th Avenue Hialeah, Florida 33013

Hubert G. Roberts, Esquire

100 West 49th Street Hialeah, Florida 33012

Stephanie A. Daniel, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

APPENDIX

The following constitute 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.

Petitioner's Proposed Findings of Fact

1. Adopted in Paragraph 4.

   
   

2. Adopted in Paragraph 4.

   
   

3. Adopted in Paragraph 4.

   
   

4. Adopted in Paragraphs 2 and 5.

   
   

5. Adopted in Paragraph 4.

   
   

6. Adopted in substance in Paragraph 3.

   
   

7. Rejected as immaterial. Respondent's personal appearance was not an issue in the Administrative Code.

1. Rejected as unnecessary.

   
   

2. Rejected as immaterial and unsubstantial. See conclusion of law, paragraph 7.

   
   

3. Rejected as immaterial and unsubstantial. See conclusion of law, paragraph 7.

   
   

4. Adopted in part in Paragraph 6, otherwise rejected as unnecessary.

   
   

5. Adopted in Paragraph 6.

6. Rejected as immaterial. See Paragraph 25, above.

   
   

7. Adopted in Paragraph 9.

   
   

8. Adopted in Paragraph 10.

Docket for Case No: 85-004121

Orders for Case No: 85-004121