vs. ) CASE NO. 86-0634
) THOMAS P. ELLIOTT, D.O., )
Respondent. )
Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on October 14 and 15 and December 4, 1986, at Tampa, Florida.
David E. Bryant, Esquire 1107 East Jackson, Suite 104
Paul A. Levine, Esquire
By Administrative Complaint filed February 10, 1986, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Thomas P. Elliott, D.O. As grounds therefor, it is alleged in a 20-page and 16 Count Complaint that for 23 named patients, Respondent prescribed excessive quantities of controlled substance, prescribed these medications not for medically justifiable purposes, failed to maintain adequate patient records to justify the prescriptions issued, issued prescriptions for controlled substances to some patients Respondent knew or should have known were addicts, and that he pleaded nolo contendere to a crime directly related to the practice of medicine.
At the hearing Petitioner called five witnesses including Respondent.
Respondent called two witnesses including himself and thirty-four exhibits were admitted into evidence. Three of petitioners witnesses besides Respondent are osteopathic physicians who qualified as expert witnesses. Of the twenty- three exhibits containing the patient records, all have three to five parts (a, b, etc.) which includes all entries and documents in these records.
The parties did not timely submit proposed recommended orders.
At all times relevant hereto Thomas P. Elliott was licensed in Florida as an osteopathic physician having been first licensed in Florida in 1977 and issued Certificate No. 0003751. He graduated from an accredited osteopathic school of medicine in Kirksville, Missouri in 1952 and was duly licensed in Missouri where he practiced for some 23 years before entering the U.S. Air Force medical corps for two years. He was assigned to Tyndall AFB in Panama City, Florida. Upon his release from the USAF and licensure in Florida, he moved to Largo, Florida in 1977 where he set up a general practice as an osteopathic physician.
Jack Bianco was first seen by Respondent on 12/19/B3 complaining of constant back pain. Examination and x-rays showed the degeneration of lower spine which could result in some pain. Bianco gave a history of an accident while in the military in 1966 which required extensive surgery and use of a brace for several years. Respondent acknowledged that if a patient said he had pain, he was given the benefit of the doubt. Although Bianco had received treatment at VA facilities those records were never asked for nor obtained by Respondent. Bianco stated he was allergic to Codeine and refused prescriptions for anti-inflammatory drugs. On this initial visit he was treated by manipulation, high frequency pulse and given a prescription for Dilaudid.
Bianco remained a patient of Respondent until September 1984. At each visit, which occurred at approximately one week intervals, Bianco was treated with manipulation, high frequency pulse therapy and issued a prescription for Dilaudid. During the nine months Bianco was a patient he was given prescriptions for 374 Dilaudid, 4 mg.
Dilaudid is the brand name for Hydromorphone Hydrochlorite. It is the strongest form of morphine available for oral ingestion and is a Class II controlled substance because of its highly addictive attributes. Extended use of Dilaudid (beyond two or three weeks) is generally deemed suitable only for terminally ill patients suffering from a painful malady such as cancer.
Respondent recognized that Bianco was coming for treatment principally to get Dilaudid but he nevertheless continued to prescribe Dilaudid and never referred Bianco to a drug treatment facility. In March 1984, Respondent reduced the number of Dilaudid prescribed at one time to 8 but in July 1984 increased the number to 10. Respondent testified he attempted to take Bianco off the Dilaudid and Bianco did not return for treatment after receiving his last prescription from Respondent September 6, 1984. However, as noted below, Bianco's records (and others) were seized by the Sheriff's Office September 11, 1984.
Records maintained by Respondent on Bianco fail to record results of the treatment given. On nearly every visit the same treatment was given followed by the prescription for Dilaudid. Although Respondent testified + + +
+ shown on the patient record showed that response to the treatment was first class, there is no record that Bianco's condition was improving, remaining constant or getting worse, or that any effort was made to change the medication to a less addictive drug.
Respondent was never registered to participate in a detoxification program. Without such registration it is illegal for a practitioner to prescribe maintenance drugs to an addict.
Between 1979 and 1984, Respondent also treated Stanley Berry, Lawrence Brainard, Cheryl Morelli, Michael Morelli; Donald Murray, Nicholas Spano, Linda Valentine, Paul Broussard, Lee Coryell, Arthur Gray, Sherri Gray, Raine Troupe, Bruce Flood, Debora Bolte, Leon Clifford, Gail Outlaw, William Ellmore, Horace Maybee, William Noble, Irene Morelli and Ernest Pingatore, as alleged in the Administrative Complaint.
All of these patients complained of pain, generally back pain, on the first visit. Most reported having been involved in an earlier accident and reinjuring the back recently. The examinations given by Respondent consisted of checking the x-rays if the patient presented one to see if there was any skeletal problem that could cause pain. Otherwise he would palpate the patient to find a potential cause of pain.
On these initial visits and throughout the period the patient was treated by Respondent, vital signs (blood pressure, temperature and pulse) were rarely, if ever, taken by Respondent or anyone else at his office.
Most of these patients were given manipulation, heat or high pulse frequency treatment and prescriptions for Dilaudid on the first visit. Those who presented records showing they had been given Demerol or Percodan were usually given prescriptions for Demerol or Percodan and a muscle relaxant. Both Demerol and Percodan are Class II controlled substances.
These patients' charts, like the chart on Bianco, failed to record what, if any, progress was made as the treatment progressed. Petitioner's expert witnesses, who reviewed the patient records and testified in these proceedings, could not decipher some of the notations made by Respondent on these charts as he used abbreviations, pluses, etc. While it would be very important for a doctor to read the patient record of a patient who had been treated by another physician, there is no specific format or specified abbreviations for maintaining patient records.
All of these patients were given prescriptions for Class II drugs with inadequate documentation to justify the use of such drugs in the patient records. They were also given these prescriptions for a much longer time than was indicated for the physical symptoms which could easily lead to addiction, assuming the patient was not already addicted.
Many of these patients were referred to Respondent by other patients above named. Those patients with the same surnames were from the same family, generally husband and wife. Respondent testified he gave no significance to the fact that he was prescribing large quantities of Class II drugs to two members of the same family.
Frequently drug addicts refer other addicts to a doctor from whom the referrer is able to obtain drugs.
Some of these patients were recognized as addicts by Respondent.
Nevertheless, he would discuss their dependency
with them, continue to prescribe controlled substances for them and never referred any of his patients to a detoxification center.
Some of Respondent's patients listed above were given prescriptions for sufficient quantities of Schedule II drugs that they disposed of these drugs on the street. Approximately of those patients above noted were arrested by police for drug related offenses.
These practices constitute prescribing controlled substances not in the course of Respondent's professional practice.
Donald Murray was a patient of Respondent's from July 1979 through July 1984. During this period he received 198 prescriptions for Dilaudid, 240 prescriptions for Percodan, 16 prescriptions for Tuinol, as well as prescriptions for Tylox and Desoxyn (for narcolepsy). No entry in the patient record justified a diagnosis of narcolepsy for this patient. During the 28-day period between May 18, 1982 and June 28, 1982, Murray was given prescriptions for 72 Dilaudid, 4 mg. and 74, Percodan. In April 1983, Murray was given prescriptions by Respondent for 240 Percodan in less than a 30-day period. Respondent testified Murray needed the drugs to maintain his law practice.
Nicholas Spano was a patient of Respondent from July 10, 1980 until September 7, 1984. Between July 19, 1982 and September 7, 1984, Spano received prescriptions for more than 2700 Percodan and prescriptions for 424 Tylox, another Class II drug. At the time these prescriptions were given to Spano, Respondent was aware of a psychiatric report by Dr. Joye dated 3/23/81 that Spano was believed to have a narcotic dependence on Percodan, of Joye's recommendation to discontinue Percodan, and of a report by Dr. Adams dated March 31, 1981 that Spano had been a chronic user of Percodan.
In 1982, Detective William Logan in the vice and narcotic squad of the Pinellas County Sheriff's Office contacted Respondent regarding a forged prescription to one of his patients. At that meeting they discussed how not to get involved with drugs.
Subsequent thereto Logan received complaints from pharmacies in Largo regarding what appeared to the pharmacist as excess prescriptions for narcotics written by Respondent and an investigation was commenced.
On March 6, 1984, Respondent telephoned Logan to say he had read that two of his patients had been arrested, viz. Raine Troupe and Bruce Flood. Respondent acknowledged to Logan that he knew these men were addicts and that he was taking them off slowly. Respondent also admitted having other patients who were questionable. By this time Respondent had become a suspect in the criminal investigation and further telephone calls from Respondent were not returned by Logan.
Respondent's office was searched on September 11, 1984, pursuant to a subpoena and patient records of the 23 patients above noted were seized. Respondent was subsequently brought to trial in Circuit Court in and for Pinellas County, entered a plea of nole contendere, and on August 25, 1985, adjudication of guilt of unlawful delivery of controlled substance was withheld, Respondent was placed on probation for three years, ordered to pay certain costs, and prohibited from prescribing Schedule II drugs.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Respondent is here charged in Counts Two and Three with violating Sections 459.331(1)(h) and (cc). There is no such section. Section 458.331(1)(h) and (cc) proscribe medical practitioners from performing those acts alleged to have been performed by Respondent. Section 458.303 provides that Section 458.331 is not applicable to other health care practitioners acting within the scope of practice authorized by statute. Respondent was acting as an osteopathic physician subject to the provision of Chapter 459, Florida Statutes, rather than Chapter 458. Accordingly, Counts Two and Three should be dismissed.
Those provisions of Chapter 459 constituting grounds for disciplinary action against an osteopathic physician with which Respondent was charged are Sections 459.015(1)(c), (h), (1), (n), (q), (u), and (t), Florida Statutes.
This section provides the following acts shall constitute grounds for which disciplinary action specified in subsection (2) may be taken:
(c) Being convicted or found guilty, regardless of adjudication, of a crime
in any jurisdiction which directly relates to the practice of osteopathic medicine.
Any plea of nolo contendere shall be considered a conviction for purposes of this chapter.
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Failing to perform any statutory or legal obligation placed upon a licensed osteopathic physician.
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Making deceptive, untrue, or fraudulent representations in the practice of osteo- pathic medicine which such scheme or trick fails to perform to the generally prevailing standards or treatment in the medical community.
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(n) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results,
and test results.
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(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including all controlled substances, other than in the course of the osteopathic physicians professional practice. For the purpose of this paragraph, it shall be
legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including controlled substances, inappropriately or in excessive or inapprop- riate 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.
* * *
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.
Performing any procedure or prescribing any therapy, which, by prevailing standards of medical practice in the community, would constitute an experimentation on human sub- jects, without first obtaining full, informed and written consent.
Subsection (2) authorizes the Board to revoke, suspend, reprimand, impose an administrative fine, or place on probation an osteopathic physician found guilty of any ground set forth in subparagraph (1).
With respect to Counts One, Eight, and Twelve, the evidence is clear and convincing that for all of these 23 patients, Respondent issued prescriptions for controlled substances inappropriately or in excessive or inappropriate quantities and is guilty of violating Section 459.015(1)(q) as alleged.
With respect to Counts Four, Ten and Fourteen, the evidence is clear and convincing that Respondent failed to maintain adequate patient records on the 23 named patients to justify the treatment administered and thereby violated the provisions of Section 459.015(1)(n).
With respect to Counts Five, Eleven and Sixteen, the prescribing of excessive drugs to the 23 patients, some of whom Respondent was aware were addicts and others Respondent knew or should have known were destined to become addicts on the narcotics prescribed by Respondent, constitutes clear and convincing evidence of malpractice in violation of Section 459.015(1)(t).
With respect to Count Six, Respondent's plea of nolo contendere to the criminal charges of unlawfully delivering controlled substances is clear evidence of violation of Section 459.015(c), as alleged.
In Count Seven, Respondent is alleged to have violated Section 459.015(1)(u), by providing detoxification treatment to patients Flood and Troupe or prescribing maintenance doses to known addicts. While such action would constitute an unauthorized, and hence unlawful, practice by Respondent in violation of subparagraph (h) or (q) it is not a violation of paragraph (u) as alleged. Subsection (u) proscribes experimentation on human subjects without their consent. No evidence was adduced to show that Respondent was using these patients for experiments in violation of Subsection (u) and the evidence will not sustain a finding of guilty of that alleged violation.
In Counts Nine and Thirteen, Respondent is alleged to have violated Section 459.015(1)(h), by violating Section 893.05, Florida Statutes, by prescribing controlled substances other than in the course of his professional practice. Although the evidence supports the finding of guilty of this charge, these are the same factual allegations made in Counts One, Eight and Twelve, and this finding is not accorded any weight in recommending an appropriate penalty.
With respect to Count Sixteen, the acts there complained of were charged in earlier counts alleging malpractice and prescribing controlled substances not in the course of Respondent's professional practice. Apart from
the fact that a single act can be punished only once even though it may constitute a violation of two statutory provisions, the acts here alleged to violate subsection (1) cannot be categorized as deceptive or fraudulent representations or a trick or scheme which fails to conform to the generally prevailing standard of treatment in the medical community. Accordingly, the evidence fails to establish a violation of Section 459.015(1)(1), as alleged.
From the foregoing, it is concluded that Respondent is guilty as alleged of all counts except Counts Two, Three, Seven and Sixteen and that he is not guilty of those counts. It is further concluded that Respondent dispensed controlled substances to patients in utter disregard of his duty to his patients and to his profession. It is
RECOMMENDED that the license of Thomas P. Elliott as an osteopathic physician be revoked.
ENTERED this 13th day of January, 1987, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1987.
David E. Bryant, Esquire 1107 East Jackson
Richard Tschantz, Esquire Paul A. Levine, Esquire 1550 South Highland Ave. Suite B
