STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-1710

)

JAMES E. MHOON, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on November 30, 1987, in Jacksonville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Francine Landau, Esquire

Inman and Landau 2252 Gulf Life Tower

Jacksonville, Florida 32207

For Respondent: Harry L. Shorstein, Esquire

615 Blackstone Building

Jacksonville, Florida 32202

ISSUE

The issue is whether the osteopathic medical license of James E. Mhoon, D.O., (Mhoon) should be revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.

PROCEDURAL MATTERS

Petitioner, Department of Professional Regulation, Board of Osteopathic Medical Examiners, (DPR) presented the testimony of James E. Mhoon, D.O., and Thomas A. Michelsen, D.O., together with six (6) exhibits, with Exhibits 1-5 being the medical records of the patients and Exhibit 6 being the deposition testimony of Lloyd Dawson Gladding, D.O. Respondent presented the testimony of

1. Bork, M.D., and H. Curtis Benson, M.D., and Respondent introduced one exhibit into evidence.

   
   

   The transcript was filed on December 14, 1987. Mhoon filed his Proposed Recommended Order on January 25, 1988, and DPR filed its Proposed Recommended Order on January 28, 1988. All proposed findings of fact and conclusions of law have been considered. A ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. James E. Mhoon, D.O., is a licensed osteopathic physician in the State of Florida, having been issued license number 050001142. He practices at 1502 Roberts Drive, Jacksonville Beach, Florida, and has practiced in Florida since 1958.

      
      

   2. Between January 25, 1982, and June 19, 1985, Mhoon treated Mrs. Vernon (Vee) Howard for osteoarthritis, degenerative disc disease, and osteoporosis. Throughout this time period, Mhoon prescribed a Schedule II narcotic, Nembutal, to Mrs. Howard. Specifically, between January 1, 1984, and March 7, 1985, Mhoon prescribed 800 Nembutal to the patient.

      
      

   3. Mrs. Howard first saw Mhoon on January 25, 1982, at age 63. Mhoon hospitalized her and referred her to a neurologist. She was already taking Nembutal prescribed by another doctor, although Mhoon's records do not indicate who that doctor was. According to Mhoon, she was seen by a neurologist, referred to University Hospital to a neurosurgeon, and ultimately had disc surgery in March, 1982; however, Mhoon's records do not contain any documentation of these events.

      
      

   4. Nembutal, according to the Physician's Desk Reference (PDR), is a hypnotic agent and is appropriate for short-term treatment of insomnia. Mhoon explained that he used Nembutal in this patient because it was an extremely strong sedative hypnotic which also potentiates the narcotic analgesic medication he gave her (Percodan). He prescribed it because Mrs. Howard had constant severe pain and was unable to sleep. He believed that this was the only choice for this patient because he could use these drugs to relieve her pain and allow for sleep while risking addiction or he could allow Mrs. Howard to die. No other viable surgical or medical alternatives existed.

      
      

   5. Dr. Lloyd Gladding acknowledged that Nembutal was useful in conjunction with Schedule II analgesics in the long- term management of severe pain. According to Gladding it would be useful if other alternatives were not available.

      
      

   6. Duane L. Bork, M.D., also agreed that the use of Nembutal with this patient was appropriate considering her chronic problems with severe pain.

      
      

   7. Mhoon's medical records on Mrs. Howard do contain multiple references to her chronic pain and associated sleep disturbance. They also contain numerous references to Mrs. Howard's severe alcoholism, including one hospitalization for an overdose of Percodan and alcohol. In these respects, the medical records are adequate to justify the course of treatment.

      
      

   8. Mhoon treated a patient, Roy Landrum, from March, 1971, until June, 1985, for hypotension and anxiety as well as other injuries and illnesses. Throughout this time Mhoon prescribed Seconal, a Schedule II drug.

      
      

   9. While Mhoon prescribed Seconal throughout the time he saw Landrum, specifically between January 30, 1984, and June 5, 1985, he prescribed and the patient received 5450 milligrams of Seconal or approximately 500 milligrams per day (10 50 mg. capsules per day).

   10. Seconal has the side effects of confusion, disorientation, and drowsiness, and is addictive. According to the PDR, the recommended dosage of Seconal is between 50 and 100 milligrams daily for short periods.

       
       

   11. According to Mhoon's testimony, he first saw Landrum in 1971 at age

1. Landrum had been receiving Seconal for 38 years from another doctor for treatment anxiety. Mhoon claims he counselled with Landrum in an attempt to get Landrum to give up the drug and seek detoxification. Landrum refused to abandon Seconal because he believed it worked well for his anxiety. Mhoon claims he allowed Landrum to have 10 capsules daily because Landrum's wife died unexpectedly. None of this information is in Mhoon's medical records on Landrum.

   
   

   1. Landrum's wife died in July, 1984; however, Mhoon prescribed 5450 mg. of Seconal between January, 1984, and June 5, 1985, six months before and one year after Landrum's wife died. Accordingly, little weight is given to Mhoon's explanation for this prescribing of massive amounts of Seconal.

      
      

   2. Mhoon did appropriately monitor Landrum for side effects and organ damage from the massive doses of Seconal.

      
      

   3. According to Thomas A. Michelsen, D.O., allowing Landrum to have 10 capsules of Seconal daily is excessive even allowing for some variance from the PDR. Seconal is recommended for treatment of insomnia for a 2-3 week period. It is not recommended for anxiety, and lower scheduled drugs, such as Restoril, Dalmane, and Halcion, are appropriate and recommended. Dr. Michelsen reviewed Mhoon's records and opined that the records are inadequate and fail to justify the course of treatment.

      
      

   4. Lloyd D. Gladding, D.O., stated that Seconal was inappropriate because better medication was available for treatment of anxiety.

      
      

   5. Dr. Bork testified that Seconal was the drug of choice for treatment of anxiety for most of the 38 years before Landrum came to Mhoon. It was replaced by the benzodiazepines such as Valium and Librium, however it is still listed in Rakel's Textbook of Family Practice as an anti-anxiety drug and it is still appropriate in some cases. Bork believes Mhoon's treatment of Landrum was appropriate, however he bases his opinion on the medical records and detailed discussions with Mhoon.

      
      

   6. Harry Curtis Benson, M.D., saw Landrum twice in 1986 and reviewed Mhoon's records and discussed the matter with Mhoon and Landrum. Because Landrum had done very well on the Seconal and because he refused to change, Benson thought Mhoon's prescribing was appropriate, even considering the large amounts for 1984 and 1985.

      
      

   7. The opinions of Dr. Bork and Dr. Benson are credited because their opinions are based on more than a simple review of the PDR and Mhoon's records. Accordingly, it is found that Mhoon's prescribing to Landrum was not excessive or inappropriate. It is, however, found that Mhoon's medical records fail to justify the course of treatment.

      
      

   8. Mhoon also treated three patients for narcolepsy. Narcolepsy is a disorder which is treated with a range of central nervous system stimulants. These drugs are subject to abuse. Narcolepsy is primarily diagnosed by a detailed patient history and clinical observation of the patient.

   9. Mhoon treated Kathryn Tackett from September, 1981, until July, 1985, for, among other things, narcolepsy. There is no indication in the medical records of her first visit with Mhoon that she had symptoms of narcolepsy.

      
      

   10. According to Mhoon, Tackett told him that she had suffered from narcolepsy and that her previous physician prescribed Ritalin and Fastin. She also advised that she had been treated for narcolepsy by a neurologist in Jacksonville, Dr. McCullough. Mhoon's medical records do not contain any medical records from these other physicians confirming the diagnosis of narcolepsy.

       
       

   11. Mhoon claims that he did a thorough workup and took a detailed patient history on Tackett. Mhoon's medical records do not contain any notations of patient history regarding symptoms of narcolepsy or of physical examination findings or clinical observation which relate to narcolepsy findings.

       
       

   12. Mhoon prescribed Ritalin and Fastin for Tackett throughout the four years he saw her. Ritalin is a commonly used drug for narcolepsy. Fastin is a sympathomimeticamine and is chemically and pharmacologically related to Ritalin and the amphetamines, but is a weaker central nervous system stimulant. The PDR recommends Fastin as an anorectic drug to be used for weight reduction in abuse patients. The PDR recommends a dosage of one capsule per day. Mhoon continued to give Fastin to Tackett because it was sufficient stimulation to control her narcolepsy at times and was a less dangerous drug than Ritalin and the amphetamines.

       
       

   13. Dr. Michelsen disapproved of the use of Fastin simply because it was not in the PDR for treatment of narcolepsy. Michelsen did not understand the relationship between Fastin and the amphetamines.

       
       

   14. Dr. Gladding initially disagreed with the use of Fastin because it was not listed as a drug indicated for use in narcolepsy. He did finally agree that Fastin was a weaker stimulant than the indicated drugs.

       
       

   15. Dr. Bork agreed that Fastin is a central nervous system stimulant that is considerably safer than the amphetamines. Bork found Mhoon's treatment and prescribing to Tackett to be appropriate. Dr. Bork's opinion is accepted in this regard and it is found that the use of Fastin was appropriate for narcolepsy.

       
       

   16. Dr. Bork also testified that Mhoon's records were adequate to justify the course of treatment. However, when questioned further, he was unable to reference the records to support his opinion.

       
       

   17. Both Dr. Michelsen and Dr. Gladding found the medical records to be inadequate to justify the course of treatment given by Mhoon to Tackett. A review of the medical records supports these opinions. It is found that Mhoon's records regarding Tackett contain inadequate documentation to support a finding of narcolepsy or to support the course of treatment.

       
       

   18. Mhoon treated Mildred Lockwood for narcolepsy from May, 1974, until June, 1985. Mhoon testified that he took a long detailed history from the patients regarding her narcolepsy. Mhoon's medical records do not reflect such a patient history. Mhoon also claims that the patient had been treated by Dr. Faris for narcolepsy and that he called Dr. Faris and confirmed the diagnosis. Again, Mhoon's medical records do not mention Dr. Faris or any contact with him.

   19. The medical records reflect only that the patient said she had narcolepsy.

       
       

   20. Subsequently, in 1987, Mhoon sent Lockwood to a neurologist who, according to Mhoon, agreed with his diagnosis and treatment of Lockwood.

       
       

   21. Dr. Bork also concurred with the diagnosis and treatment of Lockwood.

       
       

   22. A review of the medical records shows that the records are inadequate to justify the course of treatment given to Lockwood because they contain no detailed patient history, no clinical observations, and no confirming opinions.

       
       

   23. Mhoon treated Glen Burke for narcolepsy from October, 1974, until June, 1985. In Burke's case, Mhoon had a neurological consultation report from a Paul W. Jones, M.D., from February 2, 1971, which contained a detailed patient history, a record of an EEG, and a diagnosis of narcolepsy. The medical records of Dr. Jones, which reflect his treatment of Burke for narcolepsy from February, 1971, until September 6, 1974, show a history of successful treatment with Benzedrine and Dexedrine.

       
       

   24. Mhoon treated Burke with Benzedrine and Dexedrine. He also followed Burke on a regular basis and adjusted his medication as necessary.

       
       

   25. Dr. Bork opined that the treatment and records of Mhoon for Burke are appropriate and adequate.

       
       

   26. In 1986, Mhoon referred Burke to a neurologist, Dr. R. L. Hudgins. Dr. Hudgins examined Burke and determined that Mhoon's diagnosis, treatment and medications for Burke are correct and appropriate.

       
       

   27. It is found that Mhoon's diagnosis and treatment of Burke are appropriate and that the medical records justify the course of treatment.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   29. Petitioner charges Mhoon with three violations: Section 459.015(1)(g), Florida Statutes (1985), now Section 459.015(1)(u), Florida Statutes (Supp. 1986), which prohibits prescribing and/or dispensing controlled substances "other than in the course of the osteopathic physician's professional practice."

       
       

       Section 459.015(1)(n), Florida Statutes (1985), now Section 459.015(1)(p), Florida Statutes (Supp. 1986), which makes it a violation to fail "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."

       
       

       Section 459.015(1)(t), Florida Statutes (1985), now Section 459.015(1)(y), Florida Statutes (Supp. 1986), which prohibits "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."

   30. Petitioner failed to present clear and convincing evidence to support any of these violations except as to the medical records of Landrum, Lockwood, and Tackett. For the reasons set forth in the Findings of Fact, it is concluded that Mhoon violated Section 459.015(1)(n), Florida Statutes (1985), now Section 459.015(1)(p), Florida Statutes (Supp. 1986), in that his medical records fail to justify the course of treatment provided by Mhoon to Landrum, Lockwood, and Tackett.

       
       

   31. However, in light of the foregoing Findings of Fact which show that in all other respects Mhoon's treatment of these five patients was appropriate and his medical records are adequate, it is concluded that all other charges should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of

Osteopathic Medical Examiners, enter a Final Order and therein:

1. Find the Respondent, James E. Mhoon, D.O., guilty of violating Section 459.015(1)(n), Florida Statutes (1985), now Section 459.015(1)(p), Florida Statutes (Supp. 1986), as charged in Count II of the Amended Administrative Complaint, as it relates to patients Landrum, Lockwood and Tackett.

   
   

2. Dismiss all other charges contained in the Amended Administrative Complaint.

   
   

3. Order the Respondent to attend continuing education courses to improve his record keeping and documentation.

   
   

4. Reprimand Respondent for these violations.

   
   

5. Impose a fine of $1,000.00.

Case No. 86-1710

DONE AND ENTERED this 2nd day of March, 1988, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1988.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1710

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional

Regulation, Board of Medical Examiners

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 & 2 (1); 3 & 4 (2); 8 (29); 9 (30); 10 (29); 11 (8); 12 (8); 13 (9 & 10); 15 (11 & 14); 16 (34); 19 & 20 (20); 21 (21); 22 (23); and 24 (28)

2. Proposed findings of fact 5, 6, and 7 are subordinate to the facts actually found in this Recommended Order.

3. Proposed finding of fact 17 is unsupported by the competent, substantial evidence.

4. Proposed finding of fact 18 is unnecessary.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, James E. Mhoon, D.O.

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4 (2 & 4); 6 (5); 7 (6); 8 (7); 13 (14); 14 (14); 16 (16); 17 (16); 18 (17); 22 (34); 23 (37); 24 (21); 25 (25); 30 (32); and 32 (32)

2. Proposed findings of fact 5, 10, 11, 12, 15, 19, 20, 21, 26,

27, 28, 29, and 33 are subordinate to the facts actually found in the Recommended Order.

1. Proposed findings of fact 1, 2, and 3 set forth in the Procedural Matters section of this Recommended Order and are not necessary as findings of fact.

2. Proposed finding of fact 9 is rejected as being argumentative and conclusionary.

3. Proposed finding of fact 31 is rejected as being unsupported by the competent, substantial evidence. The exhibit upon which it is based was not admitted in evidence.

COPIES FURNISHED:

Francine Landau, Esquire Inman and Landau

2252 Gulf Life Tower Jacksonville, Florida 32207

Harry L. Shorstein, Esquire 615 Blackstone Building

Jacksonville, Florida 32202

Susan Branson, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Rod Presnell Executive Director

Board of Osteopathic Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-001710

Orders for Case No: 86-001710