STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION (BOARD OF MEDICINE), )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 86-2031
) (DPR 0065621)
ROBERT C. BARTLETT, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
On July 9 and 10, 1987, a formal hearing was conducted
in this case at Ocala, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing, the parties were represented by the following counsel:
For Petitioner: Francine Clair Landau, Esquire
2252 Gulf Life Tower Jacksonville, Florida 32207
For Respondent: H. Edward Dean, Esquire
201 Northeast Eighth Avenue, Suite 200 Ocala, Florida 32670
ISSUES AND INTRODUCTION
This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations contained in a five-count Administrative Complaint. The charges against the Respondent may be summarized as follows:
Count One charges the Respondent with violating Section
458.331(1)(h), Florida Statutes (1985) , by failing to perform any statutory or legal obligation placed on a licensed physician.
Count Two charges the Respondent with violating Section 458.331(1)(1), Florida Statutes (1985), by making deceptive, untrue, or fraudulent representations in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.
Count Three charges the Respondent with violating Section 458.331(1)(n), Florida Statutes (1985), by failing to keep written medical records justifying the course of treatment of the patient.
Count Four charges the Respondent with violating Section 458.331(1)(q), Florida Statutes (1985), by 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.
Count Five charges the Respondent with violating Section 458.331(1)(t), Florida Statutes (1985), by gross or repeated malpractice, or the failure to practice medicine with that level of care, skill, or treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances.
The Respondent filed an answer to the Administrative Complaint. In his answer, the Respondent admits some of the factual allegations in the Administrative Complaint, but denies all allegations of wrongdoing.
Following the hearing, a transcript of the proceedings at hearing was filed on September 16, 1987, and the parties were allowed fifteen days from that date within which to file proposed recommended orders. The Respondent filed a proposed recommended order on October 1, 1987, and the Petitioner filed one on October 2, 1987. Careful consideration has been given to the parties' proposed recommended orders, and specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated into this recommended order.
FINDINGS OF FACT
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.
Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME0004527. Respondent's last known address is 463 Emerald Road, Ocala, Florida 32672.
Ionamine is a brand name for a scheduled controlled substance as defined by Chapter 893, Florida Statutes.
Respondent's treatment of patients for obesity included B-12 vitamin injections.
Approximately two-thirds of the Respondent's practice is devoted to the treatment of obesity. The other third of the Respondent's practice is devoted to a general practice of medicine.
The Respondent graduated from Indiana University Medical School in 1945, interned in 1946, and became licensed in the State of Florida in 1951.
The Respondent served for two years in the Air Force during the Korean War, and then returned to Florida where he established a practice in Miami. He practiced in Miami until 1970, at which time he moved to Ocala, where he has practiced since 1970.
The Respondent is a board certified anesthesiologist and graduated at the top 10 percent of his class from Indiana University. The Respondent subscribes to and reads many medical journals and articles, including those concentrating on bariatrics. The Respondent has purchased and reviewed the American Medical Association video and study guide concerning the treatment of obesity. The Respondent also has continued his post graduate studies.
When a new patient comes to the Respondent's office for treatment for obesity, the patient is first given a questionnaire to fill out. Subsequently a medical history is obtained from the patient, and the patient is given a thorough physical examination. Usually, but not always, blood and urine samples are obtained from this patient for testing, and the patient is given an EKG.
If this patient appears to be in good health, the Respondent puts the patient on a weight loss program consisting of a reduction of calories, an exercise program consisting of a thirty minute walk each day, and an appetite suppressant, usually Phentermine or Diethylpropion. Phentermine and Diethylpropion are both helpful in the treatment of obesity. The Respondent also encourages each patient to take a vitamin injection on a weekly basis, regardless of whether there is any evidence of vitamin deficiency or pernicious anemia. Thereafter, the patient is instructed to return to the Respondent's office once a week, at which time an R.N. or L.P.N. checks their blood pressure, pulse, respiration, and weight. The nurse questions each patient to find out how they are reacting to the weight loss program. If everything appears to be satisfactory, the patient receives another seven-day supply of diet suppressant medication and a vitamin injection. The Respondent sees the patient every fourth visit (once a month) to determine what progress the patient is making.
The Respondent routinely commences treatment of obesity patients, including the prescription of or dispensing of Phentermine or Diethylpropion, before reviewing the results of blood and urine tests.
The Respondent continues obesity patients on an appetite suppressant (usually Phentermine or Diethylpropion) at the rate of seven 30 mg. pills per week as long as the patient continues to lose one percent of their body weight per week until their ideal weight is reached.
In January of 1986, the Respondent saw a patient by the name of Sandy Wilson who came to his office for the treatment of obesity. The Respondent gave Ms. Wilson a thorough physical examination. The Respondent also questioned Ms. Wilson about her medical history. During the course of relating her medical history, Ms. Wilson complained of swelling of her hands and feet. The Respondent did not obtain blood or urine samples from Ms. Wilson, nor did he do an EKG on Ms. Wilson.
Following his examination of Ms. Wilson, the Respondent placed her on a 1000 calorie per day diet, recommended that she exercise by walking 30 minutes each day, and dispensed to her a seven-day supply of Ionamine, which is a form of Phentermine. The Respondent also wrote a prescription for Ms. Wilson for thirty tablets of Furosemide 40 mg. Furosemide is a rather potent diuretic.
The Respondent also suggested that Ms. Wilson have a vitamin injection, but she refused the injection. Ms. Wilson also refused to have blood drawn, saying she was afraid of needles. The Respondent told Ms. Wilson if she changed her mind she could have the blood drawn and the vitamin injection on her next visit.
The Respondent's records of Ms. Wilson's treatment during January of 1986 do not contain sufficient information to show that Ms. Wilson received a thorough physical examination. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not show that an adequate medical, social, or family history was obtained from Ms. Wilson. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not mention that Ms. Wilson had or
complained of edema. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not contain the results of any blood or urine tests or the results of any EKG.
Ionamine and Furosemide should not be dispensed or prescribed to a patient for obesity and edema without first giving the patient a thorough physical exam, obtaining an adequate medical history, and obtaining the results of laboratory analysis of blood and urine samples and obtaining an EKG. This is in part because a patient may have the beginnings of some illness, such as diabetes or hypothyroidism, that are not detectable by a physical examination alone.
The dispensing of Ionamine and the prescription of Furosemide to Ms. Wilson without first obtaining the results of laboratory analysis of blood and urine samples and obtaining an EKG is a failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances.
A physician's records must be sufficient to justify the treatment given to the patient. In particular such records should contain complete information regarding examinations, histories, and laboratory tests. Because the Respondent's records regarding Ms. Wilson did not contain complete information in this regard, the Respondent has failed to keep written medical records justifying the course of treatment of the patient.
Vitamin injections do not have any direct therapeutic effect in the treatment of obesity. They do not cause weight loss, nor do they contribute to weight loss. Nevertheless, periodic vitamin injections are commonly given to patients who are being treated for obesity as a form of "behavior modification." The goal of the behavior modification is to have the patient return for follow- up treatment on a regular basis. Vitamin injections do not pose any significant risk to the patient.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57, Florida Statutes.
The applicable grounds upon which disciplinary action may be taken against a physician are set forth in Section 458.331(1), Florida Statutes (1985). The relevant grounds are as follows:
Failing to perform any statutory or legal obligation placed upon a licensed physician.
Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.
(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.
(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. The board shall give great weight to the provisions of
s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of
$10,000 each to the claimant in a judgement or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross 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," shall not be construed so as to require more than one instance, event, or act.
In a case of this nature, the Petitioner has the burden of proving its case by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
As noted in the Appendix to this Recommended Order, there is a great deal of conflict in some of the expert witness testimony in this case. The findings of fact set forth above reflect my resolution of the conflicting evidence to the extent necessary to address the issues in this case.
The specific allegations of inappropriate conduct which are charged in the Administrative Complaint appear in paragraphs 3, 5, 6, 7, and 8 of this Administrative Complaint. Those allegations will be addressed in the order in which they appear.
Paragraph 3 of the Administrative Complaint alleges:
Respondent has inappropriately and/or excessively prescribed or dispensed Ionamine on a weekly basis for obese patients he does not examine or see on every visit.
The evidence establishes that the Respondent routinely dispenses Ionamine (or similar drugs) on a weekly basis to obese patients who are only examined and seen by the Respondent every fourth visit. However, there is no clear and convincing evidence that the frequency with which the Respondent examines and sees obese patients is inappropriate. Similarly, there is no clear and convincing evidence that the amounts of Ionamine dispensed by the Respondent are excessive. Accordingly, there is insufficient proof to establish the conduct alleged in Paragraph 3 of the Administrative Complaint.
Paragraph 5 of the Administrative Complaint alleges:
The packages of Ionamine dispensed to patients by Respondent failed to contain the label information required by Chapters 499 and 893, Florida Statutes. In addition, Respondent failed to maintain a biennial inventory as required by Section 893.07(1)(a), Florida Statutes.
There is no evidence at all in support of the allegations quoted immediately above. Accordingly, there is insufficient proof to establish those allegations.
Paragraph 6 of the Administrative Complaint alleges:
Respondent's treatment of patients for obesity was substandard for he failed to obtain thorough patient histories, perform thorough physicals, or request ancillary laboratory studies to rule out problems such as diabetes or hypothyroidism.
The evidence in this case indicates that although the Respondent apparently obtained thorough histories and performed thorough physical examinations, on at least one occasion (with the patient Ms. Wilson) he failed to make an adequate record of the history he obtained, and he failed to make an adequate record of the results of the physical exam. The evidence also shows that the Respondent routinely initiated treatment for obesity without waiting for the results of laboratory tests and that he specifically did so in the case of Ms. Wilson. The evidence also shows that it is substandard practice for a physician to dispense Ionamine, or similar drugs, for the treatment of obesity without waiting for the results of laboratory tests. It is also substandard practice for a physician to fail to make adequate records of patient histories and physical examinations.
Accordingly, this evidence establishes the essentials of the allegations set forth in Paragraph 6 of the Administrative Complaint.
Paragraph 7 of the Administrative Complaint alleges:
Respondent's treatment of patients for obesity included B-12 vitamin injections for weight loss. However, the common standard for vitamin B-12 use is only for a B-12 deficiency or pernicious anemia.
The evidence establishes that the Respondent routinely uses B-12 vitamin injections as one aspect of his treatment of obesity patients. The evidence also establishes that periodic B-12 vitamin injections are rather commonly used by other physicians as an adjunct to the treatment of obesity in the absence of B-12 deficiency or pernicious anemia. Accordingly, an essential aspect J of the charges in Paragraph 7 has not been proved.
Paragraph 8 of the Administrative Complaint alleges:
Respondent's treatment of patients for obesity included prescribing Furosemide for weight loss was inappropriately and or excessive.
These somewhat less than artfully worded charges are established by the proof that Furosemide was prescribed to Ms. Wilson without the results of any laboratory studies and the further proof that such studies should be done prior to such prescription.
Applying the foregoing to the specific statutory violations charged in the Administrative Complaint, it is first noted that there is no clear and convincing evidence that the Respondent violated Section 458.331(1)(h), Florida Statutes (1985). The cited provision applies, of necessity, to statutory or legal duties other than those included in the other paragraphs of Section 458.331(1), because to conclude otherwise would leave paragraph (h) with no useful purpose. Accordingly, Count One of the Administrative Complaint should be dismissed for failure of proof.
There is also no clear and convincing evidence that the Respondent, by any conduct charged in the Administrative Complaint, violated Section 458.331(1)(1), Florida Statutes (1985), by making deceptive, untrue, or fraudulent representations. In its proposed recommended order, the Petitioner argues that certain conduct proved at the hearing constitutes deceptive, untrue, or fraudulent statements. However, that conduct was not alleged in the Administrative Complaint, and having not been alleged, cannot be the basis for finding a violation. Accordingly, Count Two of the Administrative Complaint should be dismissed.
There is clear and convincing evidence sufficient to establish that the Respondent violated Section 458.331(1)(n), Florida Statutes (1985), by failing to keep written medical records justifying the course of treatment of the patient. Accordingly, the Respondent should be found to have committed the violation charged in Count Three of the Administrative Complaint.
There is clear and convincing evidence that the Respondent violated Section 458.331(1)(q), Florida Statutes (1985), by prescribing and dispensing a legend drug other than in the course of the physician's professional practice. (At first blush it might appear otherwise, given the fact that the acts of prescribing and dispensing took place in the context of providing treatment, but
in light of semantic peculiarities in the statute, the violation is correctly stated because inappropriate prescribing or dispensing is by statutory presumption ". . . not in the course of the physician's professional practice.") Accordingly, the Respondent should be found to have committed the violation charged in Count Four of the Administrative Complaint.
There is clear and convincing evidence that the Respondent violated Section 458.331(1)(t), Florida Statutes (1985), by 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. Accordingly, the Respondent should be found to have committed the violation charged in Count Five of the Administrative Complaint.
Based on all of the foregoing, it is recommended that the Board of Medicine issue a final order in this case to the following effect:
Dismissing Counts One and Two of the Administrative Complaint;
Finding the Respondent guilty of the violations charged in Counts Three, Four, and Five of the Administrative Complaint; and
Imposing the following penalty on the Respondent: (1) an administrative fine in the amount of one thousand dollars ($1,000.00), and (2) placement of Respondent's license on probation for a period of two years under conditions to be prescribed by the Board.
DONE and ENTERED this 4th day of February, 1988, at Tallahassee, Florida.
MICHAEL M. PARRISH
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 4th day of February, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2031
The following are my specific rulings on all of the findings of fact proposed by the parties. As the parties are well aware, there is a large amount of conflict in the testimony in this case, especially in the expert witness testimony. To the extent that the testimony of the expert witnesses on behalf of the Petitioner (Dr. Clark and Dr. Weiss) conflicts with the testimony of the expert witnesses on behalf of the Respondent (Dr. Haimes and Dr. Asher), I have for the most part been persuaded by, and have incorporated into the findings of
fact, the version set forth by the Petitioner's witnesses. Among other things, the version set forth by the Petitioner's expert witnesses more often appeared to be more logical, more reasonable and well reasoned, and more consistent with other evidence in the case.
Findings proposed by the Petitioner:
Paragraph 1: Accepted.
Paragraph 2: Accepted in substance, with some irrelevant details deleted.
Paragraph 3: Accepted in substance with some additional findings in the interest of clarity and accuracy.
Paragraphs 4 and 5: Accepted.
Paragraphs 6 and 7: Accepted in substance with additional clarifying details.
Paragraph 8: Rejected as not fully supported by competent substantial evidence.
Paragraphs 9 and 10: Accepted in substance with additional clarifying details.
Paragraph 11: Accepted.
Paragraph 12: Rejected as not supported by persuasive competent substantial evidence.
Paragraph 13: Accepted.
Paragraphs 14 and 15: Rejected as constituting argument rather than proposed findings of fact. (The failure to include argument in the findings of fact is not a comment upon the merits of the argument.)
Paragraphs 16 and 17; Accepted in substance. Findings proposed by the Respondent:
By way of clarification of some of the rulings which follow, it is noted that a substantial number of the findings proposed by the Respondent begin with the words "Dr. So-and-so testified" or the words "Dr. So-and-so believes." Such findings are, in most cases, nothing more than summaries of the testimony and might well have been rejected on that basis alone. However, I have chosen to direct attention to the substance of such proposals, overlooking their form, and have treated each such proposal as a proposed finding of the fact testified to or the fact believed by the witness. Accordingly, when such proposals are rejected as being contrary to the greater weight of the evidence, that is not to say that the witness did not so testify or did not so believe, but that the fact testified to or believed by the witness is contrary to the greater weight of the evidence.
Paragraphs 1, 2, 3, 4, and 5: Accepted.
Paragraph 6: Most of this paragraph has been accepted, but many of the statements have been made subject to additional qualifications to be fully consistent with the evidence. Some details have been omitted as not supported by competent substantial evidence. A major qualification is that the
procedures described in this paragraph are performed on many, but not all, of the Respondent's patients.
Paragraph 7: Rejected as subordinate and unnecessary details. It has already been found that the Respondent gives thorough physical examinations.
Paragraph 8: Accepted.
Paragraphs 9 and 10: Rejected as irrelevant.
Paragraph 11: Accepted in substance.
Paragraph 12: First sentence is accepted in substance.
Second sentence is rejected as constituting an opinion which is contrary to the greater weight of the evidence.
Paragraphs 13 and 14: Rejected as constituting subordinate and unnecessary details.
Paragraph 15: Rejected as constituting subordinate and unnecessary details. Also, last clause of first sentence is not supported by competent substantial evidence.
Paragraph 16: Rejected as constituting subordinate and unnecessary details.
Paragraph 17: Rejected as irrelevant.
Paragraphs 18, 19, 20: Rejected as irrelevant and as constituting subordinate and unnecessary details.
Paragraph: 21: Rejected as subordinate and unnecessary details. Also rejected as inaccurate because there were other reasons for the opinion.
Paragraphs 22, 23, 24, 25, 26, 27, and 28: Rejected as irrelevant.
Paragraph 29: First two sentences rejected as
subordinate and unnecessary details. Third sentence rejected as irrelevant because it ignores and omits the context of the statement.
Paragraph 30: Rejected as unnecessary.
Paragraphs 31 and 32: Accepted in substance with additional clarifying details.
Paragraph 33: Rejected because an important detail of
the proposal is not supported by competent substantial evidence.
Paragraph 34: Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence.
Paragraphs 35 and 36: Rejected as irrelevant.
Paragraph 37: Rejected as contrary to the greater weight of the evidence.
Paragraph 38: Rejected as subordinate and unnecessary details.
Paragraph 39: Rejected as irrelevant and as subordinate and unnecessary details.
Paragraph 40: Rejected as irrelevant.
Paragraph 41: Rejected as subordinate and unnecessary details, because Dr. Haimes did not witness the examination and treatment of the patient.
Paragraph 42: Rejected as irrelevant.
Paragraph 43: Rejected because the witness's use of vitamin injection is irrelevant in light of other evidence and because the witness's opinion that vitamin injections are acceptable world wide is rejected as not persuasive.
Paragraph 44: Rejected as contrary to the greater weight of the evidence.
Paragraph 45: Rejected as irrelevant; the witness's
beliefs notwithstanding, the greater weight of the evidence is to the contrary.
Paragraph 46: Rejected as subordinate and unnecessary.
Paragraph 47: First three sentences rejected as irrelevant. Last sentence rejected as contrary to the greater weight of the evidence.
Paragraph 48: Rejected as contrary to the greater
weight of the evidence.
Paragraph 49: The first, second, and fourth sentences
are rejected as contrary to the greater weight of the evidence. The third sentence is rejected as irrelevant.
Paragraph 50: Rejected as contrary to the greater weight of the evidence.
Paragraph 51: First two sentences rejected as contrary
to the greater weight of the evidence. Last sentence accepted in substance.
Paragraph 52: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in substance. Third and fourth sentences are rejected as subordinate and unnecessary details.
Paragraph 53: First sentence rejected as irrelevant.
Second sentence rejected as contrary to the greater weight of the evidence.
Paragraph 54: Rejected as contrary to the greater weight of the evidence.
Paragraph 55: Rejected as irrelevant.
Paragraph 56: First sentence is rejected as contrary to the greater weight of the evidence. The second sentence is rejected as irrelevant.
Paragraph 57: Rejected as subordinate and unnecessary.
Paragraph 58: Rejected as contrary to the greater weight of the evidence.
Paragraph 59: Rejected as subordinate and unnecessary details.
Paragraph 60: Rejected as contrary to the greater weight of the evident.
Paragraph 61: Rejected as irrelevant.
Paragraph 62: First two sentences rejected gas contrary
to the greater weight of the evidence. Third sentence accepted in substance. Last sentence rejected as irrelevant.
Paragraph 63: First sentence rejected as irrelevant. Second sentence accepted in substance. Third sentence rejected as contrary to the greater weight of the evidence.
Paragraph 64: Rejected as irrelevant.
Paragraph 65: Rejected because the opinions in this paragraph are contrary to the greater weight of the evidence.
Paragraph 66: First and third sentences rejected as subordinate and unnecessary details. Second and fourth sentences rejected as contrary to the greater weight of the evidence.
Paragraph 67: Rejected as contrary to the greater weight of the evidence. Paragraph 68: Rejected as irrelevant.
Paragraphs 69 and 70: Rejected as contrary to the greater weight of the evidence.
Paragraph 71: Rejected as subordinate and unnecessary details.
COPIES FURNISHED:
Francine C. Landau, Esquire Inman and Landau, P.A.
2252 Gulf Life Tower Jacksonville, Florida 32207
H. Edward Dean, Esquire
201 Northeast Eighth Avenue Suite 100
Ocala, Florida 32670
William O'Neil, Esquire General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Ms. Dorothy Faircloth Executive Director Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
| Issue Date | Proceedings |
|---|---|
| Feb. 04, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 04, 1988 | Recommended Order | Evidence establishes violations of subsections; evidence insufficient as to other violations charged |
