STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) DOAH CASE No. 86-1784

) DPR CASE No. 0062222

DAVID D. TURNER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on September 3, 1986, a hearing was held in this matter in accordance with Section 120.57(1), Florida Statutes. The location of the hearing was Jacksonville, Florida, and Charles C. Adams served as the hearing officer. This recommended order is being entered following the receipt and review of the transcript and evidential documents. The parties have submitted proposed recommended orders which have been considered. Opportunity was afforded the parties to require the fact proposals within those proposed recommended orders to be utilized or an explanation given for discarding the fact proposals. Neither party wished to have the hearing officer pursue that exercise and specific comment directed to the proposed facts is not made.

APPEARANCES

FOR PETITIONER: Robert D. Newell, Esquire

200 South Monroe Street, Suite B Tallahassee, Florida 32301

FOR RESPONDENT: Lamar Winegeart, Esquire

ARNOLD, STRATFORD AND BOOTH, P.A.

Gulf Life Tower, Suite 2508 Jacksonville, Florida 32207

ISSUES

The issues joined in this litigation concern an administrative complaint brought by the State of Florida, Department of Professional Regulation (Petitioner) against David D. Turner, M.D. (Respondent), charging him with the violation of Section 458.331(1)(c), Florida Statutes, related to an alleged conviction in the United States District Court for the Northern District of Georgia, for the offense of conspiracy (adulterated and misbranded drugs) in violation of Title 21, U.S. Code, Sections 331(b) and 333(a), all in violation of Title 18, U.S. Code, Section 371.

FINDINGS OF FACT

Part A. Facts which are alleged in the Administrative Complaint, admitted by Respondent:

1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0010840. Respondent's last known address is Post Office Box 267, Orange Park, Florida 32073.

   
   

3. On September 27, 1985, Respondent was convicted in the United States District Court for the Northern District of Georgia in Atlanta, Georgia, of the offense of conspiracy (adulterated and misbranded drugs) in violation of Title 21, U.S. Code, Sections 331(b) and 333(a), all in violation of Title 18, U.S. Code, Section 371.

   
   

   Part B. Facts found based upon an examination of the record established at hearing:

   
   

4. An explanation of his involvement in the federal case was given by the Respondent in the course of the present hearing, and it is found at pages 225 through 235 of the transcript which was provided at the conclusion of the administrative hearing. Dr. Turner concedes that he pled to the misdemeanor charges as alluded to in paragraph 3 of these fact findings and made a knowing plea. The pharmaceuticals that were being provided to the contact person, who had identified himself to the Respondent as Mark Taylor, actually Tom Hall, are not controlled substances. They were items provided to Respondent by pharmaceutical representatives, generally described as hypertensive, birth control pills and antihistamines.

   
   

5. Respondent indicated, in the course of the hearing, that the person who identified himself as Taylor said he was representing a wholesale pharmaceutical distributor from Georgia which was controlled by a Dr. Wallace (mastermind in this fraudulent scheme), a licensed physician in the state of Georgia. Initial contact between Dr. Turner and Hall aka Taylor took place in late 1982 or early 1983. The arrangement that was arrived at had Respondent give sample pharmaceuticals to Taylor by allowing Taylor to pick up discarded drugs once or twice a month. Respondent received what is referred to as an "administrative charge," a cash remuneration of $100, for handing over the pharmaceuticals. Taylor/Hall stated that he had an interest in acquiring surplus pharmaceuticals from various physicians and hospitals for redistribution into the wholesale market. Taylor also represented that the primary distribution would occur to needy people. As indicated to Respondent, the distributor contemplated eventually having physicians buy stock in the distributorship and in the interest of goodwill, in the interim, Respondent and other physicians were expected to contribute generic pharmaceuticals. At Taylor/Hall's suggestion, Respondent contacted Dr. Wallace to confirm Taylor's explanation of the arrangement for providing Taylor the pharmaceuticals. Dr. Wallace confirmed Taylor's representations and gave the names of four or five other doctors in Florida whom the Respondent could contact about the enterprise.

   
   

6. These pharmaceuticals were not items intended for resale. Respondent, as the federal prosecutor's memorandum for sentence indicated and as he

   testified to in the administrative hearing, did not realize that the pharmaceuticals were being resold on the market upon the false representation that they were drugs that could be disposed of in this fashion, as opposed to those not for resale. He believed that they were going to Dr. Wallace for purposes other than resale.

   
   

7. The legal problem with Dr. Turner's arrangement with Mr. Taylor was that the sample drugs that comprised Dr. Turner's surplus are marked "not for resale." Although Dr. Turner was not aware of it, Mr. Taylor was taking the pharmaceuticals obtained from Dr. Turner back to Atlanta and repackaging them for distribution at a profit.

   
   

8. Petitioner's Exhibit 9 admitted into evidence is the prosecution's sentencing memorandum which was made available to the court in the disposition of the criminal proceedings against the Respondent as previously described. This document sets forth the factual underpinnings for the receipt of the Respondent's plea of guilty in federal court and is accepted as fact in the administrative hearing in determining the basis for the conviction described in paragraph 3 of these factual findings. Of significance in the present case are the following remarks found within this sentencing memorandum related to the criminal defendants, among them the Respondent:

   
   

   * * *

   The defendants realize that such packaging and labeling would have had to be removed by someone before ultimate sale to consumers with prescriptions, since consumers normally would not pay for drugs marked as free samples. The defendants were not aware of what methods co-conspirators would employ to effect this removal. Nor were the defendants aware of how the now adulterated and misbranded drugs would be stored, handled, resold, and dispensed.

   * * *

   AGAIN, THESE DEFENDANTS HAD NO KNOWLEDGE OF THE METHODS EMPLOYED BY CO-CONSPIRATORS WHICH RESULTED IN ADULTERATION AND

   MISBRANDING. Further, these defendants received very little payment for their sample in comparison to the amount realized from their ultimate resale after the adulteration and misbranding.

   During the same time period that each doctor was involved in selling his samples, he also signed a number of letters requesting stock bottles of prescription medication free of charge for his personal use from many different drug manufacturers. Upon receipt, these stock bottles would be included with the sample drug picked up by Tom Hall or Robert Morrill and resold through the same parties. The stock bottles did not have to be removed from their original packaging and labeling since they bore no restrictive use markings.

   * * *

   All doctors except Cooper were confronted by the FBI in January 1985. They all gave false exculpatory statements, either denying the letter-writing scheme altogether or denying receipt of any proceeds from the stock bottles and sample drugs.

   * * * However, soon after retaining legal

   counsel all of the doctors involved in the sample and letter writing schemes contacted the government and offered their full cooperation. They returned to Atlanta at their own expense where they were fully debriefed. They told the complete truth and remain ready to testify before the Grand Jury and at subsequent trials when called upon to do so, including the case of Robert Morrill who is already under indictment for controlled substances and tax violations.

   * * * The current defendants have done

   everything in their power to make amends for their past illegal activities, many of which were undertaken without full knowledge or consideration of their ramifications.

   Without assistance from three defendants the government would not have been able to make such a national impact on drug "diversion" and the distribution of adulterated and misbranded drugs, both of which seriously jeopardize the health of the drug consuming public, as well as increase the cost of prescription medication.

   * * * David L. Turner - May 1983 through

   December 1984.

   Dr. Turner, unlike the other Florida doctors, dealt with Hall rather than Morrill. His sale of samples and stock bottles obtained for personal use continued longer than anyone, but McAlister and Contreras. He also ordered a few extra pharmaceuticals at low purchase prices for clinic use which he resold to Hall. However, this activity was miniscule compared to the other "diversions" uncovered in this investigation.

   Dr. Turner was fully cooperative. His background and lack of other criminal activity is a positive factor in his favor.

   
   

9. Petitioner's Exhibit 8 sets forth the adjudication of the subject case involving the federal prosecution against the Respondent, to include the correction of the court's order upon motion of counsel for the Respondent. The highlights of the disposition of the case included a ten-day jail term as a condition of probation, a period of probation of 36 months, the possibility of the service of imprisonment for a period of one year and the necessity of performing three days per week for a period of one year related to community

   service. Respondent also had to pay a fine of $1,000 and a special assessment of $25. Petitioner's Exhibit 10 admitted into evidence is a statement from the Respondent's probationary officer in the federal criminal prosecution in which the affiant Fred Fortenberry, federal probation officer, attests to the Respondent's carrying out of his obligation for community service dealing with the care and treatment of indigent persons in the Pureal Medical Center in Orange Park, Florida, where Respondent is employed. That obligation for community service had not been concluded, but has been faithfully executed up to the point of the affidavit which was given on September 29, 1986. The affiant Fortenberry also indicated that the Respondent was complying with other terms and conditions of probation.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

11. It has been alleged that related to she federal conviction previously mentioned, Respondent violated Section 458.331(1)(c), Florida Statutes. The federal conviction "directly relates to the practice of medicine," and Respondent violated Section 458.331(1)(c), Florida Statutes. For this violation Respondent is subject to the penalties set forth in Section 458.331(2), Florida Statutes.

Based on the facts found and the conclusions of law reached, it is, RECOMMENDED:

That a final order be entered suspending Respondent for a period of five days.

DONE AND ENTERED this 13th day of November, 1986, at Tallahassee, Florida.

CHARLES C. ADAMS

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 13th day of November, 1986.

COPIES FURNISHED:

Robert D. Newell, Esquire

200 South Monroe Street Suite B

Tallahassee, Florida 32301

Lamar Winegeart, Esquire

ARNOLD, STRATFORD AND BOOTH, P.A.

Suite 2508

Gulf Life Tower Jacksonville, Florida 32207

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings Slocum Benton, General Counsel Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS

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

Petitioner,

vs. DOAH CASE No. 86-1784

DPR CASE No. 0062222

DAVID D. TURNER, M.D., LICENSE NO. ME 10840

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) & pursuant to Section l20.57(1)(b)( 9), Florida Statutes on February 7, 1987, in Jacksonville, Florida, for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Esquire. Respondent was present and represented by Lamar Winegeart, III, Esquire. No Exceptions were filed.

Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The Findings of Fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The Conclusions of Law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

3. There is competent substantial evidence to support the conclusions of

law.

Upon a complete review of the record in this case, the Board determines

that the penalty record recommended by the Hearing Officer be REJECTED as too lenient under the circumstances. The diversion of prescription drugs endangers patients. In addition, Respondent received free drug samples and sold them for financial gain. There were a number of physicians who participated in this illegal activity; however, as noted on page 5 of the Recommended Order, his participation, as compared to that of others, was more serious and contained more indictments of Involvement. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent's license to practice medicine is REPRIMANDED.

   
   

2. Respondent shall pay an administrative fine in the amount of $1000.00 to the Executive Director within 30 days of the date this Order is filed.

   
   

3. Respondent's license to practice medicine is SUSPENDED for a period of

   4 months.

   
   

4. Upon termination of the suspension, Respondent's license to practice medicine shall be placed on probation for a period of 3 years, subject to the following terms and conditions:

1. Respondent shall perform 100 hours of community service outside his usual practice setting. Such community service must be performed in such a setting that he is sure that no billing is being made to any person or entity for his services. Respondent cannot perform such services during the period of time his license to practice medicine is suspended.

   
   

2. Respondent shall appear before the Board at the first meeting after said probation commences and at the last meeting of the Board preceding termination of probation.

3. Respondent shall submit semi-annual reports, in affidavit form, the contents of which shall be specified by the Board. The reports shall each include:

   
   

   Brief statement of why he is on probation; Practice location;

   Describe current practice (type and composition); Address compliance with probationary terms; and Advise Board of any problems.

   
   

4. Respondent understands that during the course of the probation, semi- annual reports shall be prepared by the Investigators with the Department detailing Respondent's compliance with the terms and conditions of this probation. Respondent waived confidentiality of these reports as to the Department and the Board only so that the Board may review these reports.

   
   

5. If Respondent resides or practices outside the State of Florida continuously for thirty (30) or more days, such time shall not be counted as part of the probationary period. He must immediately notify the Board at the time he leaves the State and when he returns to the State and must keep current residence and business addresses on file with the Board.

This Order takes effect upon filing.

Pursuant to Section 120.59, Florida Statutes the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.

DONE AND ORDERED this 24 day of February, 1987.

Executive Director

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been provided by certified mail to David D. Turner, M.D., Post Office Box 267, Orange Park, Florida 32073, and Lamar Winegeart, III, Esquire, Suite 2508, Gulf Life Tower, Jacksonville, Florida 32207; by U.S. Mail to Charles C. Adams, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302, and by hand delivery to Stephanie A. Daniel, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301 at or before 5:00 p.m. this 24 day of February, 1987.

Docket for Case No: 86-001784

Orders for Case No: 86-001784