STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF ) OSTEOPATHIC MEDICAL EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3336

)

ROSS HENSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 23, 1988, in Daytona Beach, Florida.

The Petitioner, the Department of Professional Regulation, was represented by Theodore R. Doran, Esquire and James J. Kearn, Esquire. The Respondent, D. Ross Henson, D.O., was represented by James W. Smith, Esquire, and Kim D. Bouck, Esquire.

INTRODUCTION

The Department of Professional Regulation (hereinafter referred to as the "Department"), filed an Administrative Complaint before the Board of Osteopathic Medical Examiners against Dr. Henson on July 30, 1986. Dr. Henson executed an Election of Rights disputing the allegations of fact contained in the Administrative Complaint and requested an administrative hearing.

At the formal hearing the Department presented the deposition testimony of Gertrude Ashton and Thomas A. Michelsen, D.O. The Department also offered two exhibits which were marked as "DPR" exhibits and accepted into evidence.

Dr. Henson presented the testimony of James Van Dusen, D.O., and testified on his own behalf. Dr. Van Dusen was accepted as an expert in the field of general practice.

Three joint exhibits were also accepted into evidence.

The parties stipulated to certain facts, which have been included as findings of fact in this Recommended Order, and agreed that there were at least three issues involved in this case. The three issues were included in a Memorandum of Law filed by counsel for Dr. Henson.

The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUES

1. Whether Dr. Henson inappropriately administered repeated injections of vitamin B-12 to his patient, Gertrude Ashton, without documenting their necessity in the patient's medical records?

   
   

2. Whether Dr. Henson inappropriately administered repeated injections of steroids to his patient, Gertrude Ashton, without documenting their necessity in the patient's medical records?

   
   

3. Whether Dr. Henson inappropriately administered repeated injections of Mandol to his patient, Gertrude Ashton, which were not considered to be therapeutically effective?

FINDINGS OF FACT

1. The parties stipulated to the following findings of fact:

   
   

   1. The Respondent, D. Ross Henson, D.O., is currently, and at all times relevant to this proceeding was, licensed as an osteopathic physician in the State of Florida;

      
      

   2. Dr. Henson's license number is OS 0001793;

      
      

   3. Between December 1979, and September 1983, Dr. Henson treated a patient by the name of Gertrude Ashton.

   
   

2. Ms. Ashton's husband died in 1981. Ms. Ashton witnessed Mr. Ashton's death in the back yard of their residence. Mr. Ashton's death caused Ms. Ashton anxiety and depression.

   
   

3. Ms. Ashton's business had some financial problems during the period at issue in this case.

   
   

4. During the approximately forty-six months at issue in this proceeding, Dr. Henson treated Ms. Ashton on sixty occasions. During this period of time Dr. Henson prescribed 2,000 micrograms of vitamin B-12, to be administered intramuscularly, for Ms. Ashton. Ms. Ashton received injections of vitamin B-12 on sixteen separate occasions from Dr. Henson.

   
   

5. When Dr. Henson prescribed vitamin B-12 injections for Ms. Ashton, he documented the various problems which she was having at the time in her medical records. Dr. Henson indicated that the reasons for the injections were that Ms. Ashton was under stress, she had long-standing, ongoing disease processes which produced further stress, she was on antibiotics and she was receiving diuretic therapy. Additionally, on occasion, Ms. Ashton requested vitamin B-12 injections.

   
   

6. Generally, vitamin B-12 should be administered intramuscularly only if a patient is suffering from vitamin B-12 deficiency. A vitamin B-12 deficiency may be caused by pernicious anemia or malabsorption of vitamin B-12.

   
   

7. If a physician suspects that a patient is suffering from vitamin B-12 deficiency, a simple blood test should be administered to determine if the patient's vitamin B-12 level is low. If it is, the physician should then

   attempt to determine the cause of the deficiency. Dr. Henson did not determine whether Ms. Ashton was suffering from a vitamin B-12 deficiency.

   
   

8. Occasionally vitamin B-12 may be administered to a patient who believes that the vitamin will help him or her feel better.

   
   

9. Although vitamin B-12 is included as part of nutritional supplements, it is not taken intramuscularly as a nutritional supplement.

   
   

10. If a patient is in need of vitamin B-12, 1,000 micrograms is a sufficient dosage. An injection of 2,000 micrograms of vitamin B-12 is excessive.

    
    

11. It would be difficult to harm a patient by injecting the patient with vitamin B-12.

    
    

12. The reasons for administering vitamin B-12 injections to Ms. Ashton advanced by Dr. Henson and Dr. Henson's medical records fail to justify all of the vitamin B-12 shots administered to Ms. Ashton. Nowhere in Dr. Henson's records concerning Ms. Ashton is it indicated that Ms. Ashton suffered from a vitamin B-12 deficiency. Nor is any other adequate reason for administering the shots she received indicated. It is true that a few of the vitamin B-12 shots prescribed by Dr. Henson for Ms. Ashton may have been requested by Ms. Ashton because she believed they would help her. Not all of the sixteen shots were requested by Ms. Ashton, however. Nor would all sixteen shots be justified by such a request had it been made.

    
    

13. Prescribing 2,000 micrograms of vitamin B-12 for Ms. Ashton was also not justified.

    
    

14. The repeated injections of 2,000 micrograms of vitamin B-12 administered to Ms. Ashton were a deviation from the accepted standard of care.

    
    

15. Dr. Henson also prescribed 34 intramuscular injections of steroids for Ms. Ashton over the 46 months at issue in this proceeding. Dr. Henson injected Ms. Ashton with methylprednisolone acetate, a form of injectable steroid. The brand name of the methylprednisolone acetate used by Dr. Henson was Depo-Medrol.

    
    

16. The 34 injections of methylprednisolone acetate were given in doses of fifty milligrams.

    
    

17. Methylprednisolone acetate should be given in doses of twenty to eighty milligrams per injection.

    
    

18. Prednisolone tebutate, another form of injectable steroid, should be given in doses of four to forty milligrams. Dr. Henson did not, however, give Ms. Ashton prednisolone tebutate.

    
    

19. Dr. Henson noted in his medical records concerning Ms. Ashton that he had given her an injection of "Pred." Identifying the injections as "Pred" was insufficient to inform others of how Ms. Ashton was treated with steroids.

    
    

20. Dr. Henson indicated that he gave Ms. Ashton steroid injections for the following problems: Acute synovitis and osteoarthritis of the lumbar and cervical spine, acute contact dermatitis, acute allergic rhinitis and acute polyposis.

21. Steroids can be used to treat bursitis and tendinitis. Usually, an injection of steroids for this type of treatment is administered locally.

    
    

22. Ms. Ashton's acute contact dermatitis was attributable to her repeated contact with poison ivy and the use of undiluted bleach which Ms. Ashton bathed in as a treatment of her poison ivy. Ms. Ashton also inhaled the fumes from the bleach.

    
    

23. Occasional injections of steroids for the treatment of poison ivy, especially when the area affected has been bathed in undiluted bleach, is appropriate.

    
    

24. The weight of the evidence concerning Dr. Henson's treatment of Ms. Ashton with steroids proved that generally, most physicians would have administered the injections locally or orally. The evidence did not prove that Dr. Henson's treatment of Ms. Ashton with steroids was not within acceptable standards of care.

    
    

25. Dr. Henson also prescribed three injections of Mandol for Ms. Ashton over the 46 months at issue in this proceeding. Injections of Mandol were administered on March 13, 1980 and November 13 and 16, 1981.

    
    

26. The injections of Mandol administered to Ms. Ashton were in doses of

    250 milligrams. The recommended dose of Mandol is from 500 milligrams to one gram. A dose of 250 milligrams is sub-therapeutic.

    
    

27. Mandol is a cephalosporin, which is a form of antibiotic.

    
    

28. The March 13, 1980, injection of Mandol was given for acute bronchitis, acute pyelonephritis and acute cystitis. Ms. Ashton was also taking Ceclor, another cephalosporin, orally at the time the injection of Mandol was given.

    
    

29. The November 13 and 16, 1981, injections of Mandol were given for acute bronchitis and acute generalized dermatitis due to poison ivy and exposure to bleach. Ms. Ashton was taking another cephalosporin orally at the time the injections of Mandol were given.

    
    

30. If a lower dose of Mandol would be effective, it would be listed by the drug manufacturer as a recommended dose.

    
    

31. Although there are possible side effects from treatments with Mandol, Dr. Henson did not establish that those side effects were present in Ms. Ashton's case.

    
    

32. Dr. Henson's treatment of Ms. Ashton with Mandol during the period of time at issue in this proceeding deviated from the standard of medical care reasonably acceptable under similar conditions and circumstances.

    
    

33. Ms. Ashton subsequently filed a complaint concerning Dr. Henson with the Department. The Department investigated the complaint and found probable cause to formally charge Dr. Henson.

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

35. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this case the burden of proof is on the Department to prove the allegations contained in its Administrative Complaint by clear and convincing evidence. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987)

36.. Osteopathic physicians may be disciplined if they commit any of the acts specified in Section 459.015(1), Florida Statutes. The Administrative Complaint against Dr. Henson contains three counts, each of which contains allegations that Dr. Henson has committed one of the acts specified in Section 459.015(1). All three counts relate to Dr. Henson's treatment of Ms. Ashton during the period of time at issue in this case with vitamin B-12, steroids and Mandol. In Count One of the Administrative Complaint it is alleged that Dr.

Henson's treatment violates Section 459.015(1)(n), Florida statutes (1985). In Count Two it is alleged that Dr. Henson's treatment violates Section 459.015(1)(t), Florida Statutes (1985). Finally, in Count Three it is alleged that Dr. Henson's treatment violates Section 459.015(1)(q), Florida Statutes (1985).

1. Chapter 86-290, Section 27, 1986 Laws of Florida, renumbered the standards contained in Chapter 459, Florida Statutes (1985), which Dr. Henson has been charged with having violated. Sections 459.015(1)(n), (t) and (q), Florida Statutes (1985), were renumbered as Sections 459.015(1)(p), (y) and (u), Florida Statutes (1987), respectively. All references to the standards at issue in this proceeding will be to Chapter 459, Florida Statutes (1987).

   
   

   1. Count One.

      
      

2. Section 459.015(1)(p), Florida Statutes (1987), specifies that the following act constitutes a ground for discipline:

   
   

   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.

   
   

3. The evidence in this case proved that Dr. Henson failed to properly document medical justifications for most of the vitamin B-12 injections, the steroid injections and the Mandol injections administered to Ms. Ashton.

   
   

4. The weight of the evidence proved that the dosage of vitamin B-12 injections given to Ms. Ashton by Dr. Henson was excessive and that, except for occasional injections which were requested by Ms. Ashton, the injections of vitamin B-12 were not medically justified. Therefore, Dr. Henson's medical records do not justify most of the injections of vitamin B-12 injections. Nor do Dr. Henson's records justify the dose of the vitamin B-12 injections administered by Dr. Henson.

5. The weight of the evidence also proved that Dr. Henson failed to adequately identify the type of steroid injections administered to Ms. Ashton. Identifying the treatment only as "Pred" did not properly identify the fact that Dr. Henson had treated Ms. Ashton with methylprednisolone acetate as opposed to prednisolone tebutate. Although Dr. Henson's records did not adequately identify the specific type of treatment, the weight of the evidence proved that Dr. Henson treated Ms. Ashton, with methylprednisolone acetate. The dosage of the injections of methylprednisolone acetate given to Ms. Ashton, was appropriate. Finally, the evidence failed to prove that injections of methylprednisolone acetate under the circumstances involved in this case were not appropriate or justified. At best, the Department proved that other physicians may have administered the steroid in a different manner.

   
   

6. Finally, the weight of the evidence also proved that Dr. Henson's written medical records failed to justify the injections of Mandol administered to Ms. Ashton. All three of the injections were given in sub-therapeutic doses. The sub-therapeutic doses were not justified by Dr. Henson's medical records.

   
   

   1. Count Two.

      
      

7. Section 459.015(1)(y), Florida Statutes (1987), specifies that the following act constitutes grounds for discipline:

   
   

   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. The evidence proved that Dr. Henson failed 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 when he administered vitamin B-12 and Mandol injections to Ms. Ashton. The Department did not, however, prove that Dr. Henson violated this Section by administering the injections of steroids to Ms. Ashton.

   
   

   1. Count Three.

   
   

9. Section 459.015(1)(u), Florida Statutes (1987), specifies that the following act constitutes grounds for discipline:

   
   

   Prescribing, dispensing, administering, supplying, selling,

   giving, 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, supplying, selling, giving, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in

   excessive or inappropriate quantities is not in the best interest of a patient and is not in the course of the osteopathic physician's professional practice, without regard to his intent. [Emphasis added].

   
   

10. The evidence in this case failed to prove that vitamin B-12, steroids or Mandol are "legend drugs." Therefore, the Department has failed to prove that Dr. Henson violated Section 459.015(1)(u), Florida Statutes (1987)

    
    

11. The Department has proposed findings of fact and conclusions of law in its proposed recommended order filed in this case concerning alleged violations which were not contained in the Administrative Complaint filed against Dr. Henson in this case. Dr. Henson was not put on notice he was being charged with these alleged violations. Therefore, no consideration has been given to these alleged violations. See Fox v. Florida State Board of Osteopathic Medical Examiners, 366 So. 2d 515 (Fla. 1st DCA 1979), cert. denied, 378 So. 2d 344 (Fla.); and Lester v. Department of Professional Regulation, 348 So. 2d 923 (Fla. 1st DCA 1977).

    
    

12. The penalties for violating Section 459.015(1), Florida Statutes, are provided in Section 459.015(2), Florida Statutes, and Rule 21R-19.002, Florida Administrative Code. Rule 21R-19.002, Florida Administrative Code, provides for the imposition of the following penalties relevant to this proceeding: (1) a fine of up to five hundred dollars and a letter of concern or reprimand for a first offense of failing to keep written medical records justifying the course of treatment of a patient; (2) a fine of one thousand dollars and a reprimand to probation conditioned on continuing education for a first offense of 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; and (3) reprimand to probation and a fine of up to one thousand dollars for the first offense of prescribing legend drugs other than in the course of the osteopathic physician's professional practice.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Henson be found guilty of failing to keep written

medical records justifying his treatment of Ms. Ashton with injections of vitamin B-12, steroids and Mandol between December 1979, and September 1983. A fine of $500.00 should be imposed on Dr. Henson for his treatment of Ms. Ashton with excessive doses of vitamin B-12; a fine of $500.00 should be imposed on Dr. Henson for his failure to adequately document the type of steroid administered to Ms. Ashton; and a fine of $500.00 should be imposed on Dr. Henson for his treatment of Ms. Ashton with sub-therapeutic doses of Mandol. Dr. Henson should also receive a reprimand for these three violations of Section 459.015(1)(p), Florida Statutes (1987)

It is further

RECOMMENDED that Dr. Henson be found guilty of failing 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 with regard to his treatment of Ms. Ashton with injections of vitamin B-12 and Mandol between

December 1979, and September 1983. Dr. Henson should be fined $1,000.00 for his violations of Section 459.015(1)(y), Florida Statutes (1987), placed on probation for ninety (90) days and required to successfully complete ten (10) hours of Category I continuing medical education in prescribing controlled substances during the twelve months following the issuance of a final order in this case.

It is further

RECOMMENDED that the charge that Dr. Henson's treatment of Ms. Ashton with steroids between December 1979, and September 1983, constitutes a violation of Section 459.015(1)(y), Florida Statutes (1987), be dismissed.

It is further

RECOMMENDED that the charge that Dr. Henson's treatment of Ms. Ashton with vitamin B-12, steroids and Mandol between December, 1979, and September, 1983, constitutes a violation of Section 459.015(1)(u), Florida Statutes (1987), be dismissed.

DONE and ENTERED this 24th day of June, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

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 day of June, 1988.

APPENDIX Case Number 86-3336

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Department's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-2 1.

3-6 Hereby accepted.

7 4.

8 15-16.

9 19.

10 25-26.

11-13 Not relevant to the charges contained in the

Administrative Complaint against Dr. Henson in this case.

14 2.

15-25 & 27 Not relevant to the charges contained in the

Administrative Complaint against Dr. Henson in this case.

26 33.

Dr. Henson's Proposed Findings of Fact

Proposed Finding Paragraph Number Recommended Order of Fact Number of Acceptance or Reason for Rejection

1-2 1.

3 Not relevant to this case.

4 2-3.

5 Not relevant to this case or not supported by the weight of the evidence.

6 4-5.

7 5.

8 4-5.

9 Summary of testimony and events which took place during the formal hearing. The facts this testimony supports were not supported by the weight of the evidence.

10 15-19.

11 20.

12-13 22.

1. Not relevant to this case.

2. Summary of testimony. The facts this testimony supports were not supported by the weight of the evidence.

16 25 and 28.

17 26 and 28. The last three sentences are not supported by the weight of the evidence.

18 29.

19 Summary of testimony. The facts this testimony supports were not supported by the weight of the evidence.

COPIES FURNISHED:

Theodore Doran, Esquire James J. Kearn, Esquire DOPAN & DANIELS, P.A.

P. O. Drawer 1231

Daytona Beach, Florida 32015

James W. Smith, Esquire Kim D. Bouck, Esquire

SMITH, SCHODER & ROUSE, P.A.

605 S. Ridgewood Avenue Daytona, Florida 32014

Rod Presnell Executive Director

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Lee Sims

Staff Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO.: 0066631

DOAH CASE NO.: 86-3336

E. ROSS HENSON, D.O.,

Respondent.

/

FINAL ORDER

Respondent, E. Ross Henson, D.O., is a licensed Osteopathic Physician in the State of Florida, having been issued license No. OS 0001793. Petitioner filed an Administrative Complaint seeking suspension, revocation, or disciplinary action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. The Recommended Order has been forwarded to the Board pursuant to Section 120.571, F.S.; it is attached to and made a part of this Order.

The Board of Osteopathic Medical Examiners met on September 17, 1988, in Ft. Lauderdale, Florida to take final agency action. The Petitioner represented by Lee Sims, Attorney; the Respondent was present and represented by James Smith, Esquire. The Board has reviewed the entire record in the case.

The Board adopts the findings of fact, and conclusions of law, of the recommended order. The exceptions submitted by Respondent were untimely filed and therefore not considered.

The Board rejects the recommended penalty in the recommended order as not reflective of the offenses. As stated reasons for its departure from the recommended penalty, the Board relies upon the testimony regarding the Vitamin B-12, Steroids, and Mandol found at pages 132-134, 159-160, and 33-35 of the transcript of the hearing, respectively.

Wherefore it is hereby ORDERED that the Respondent shall receive a letter of concern from the Board of Osteopathic Medical Examiners and the Respondents license shall be on probation for a period of ninety days. During the period of probation, the Respondent shall not violate Chapter 455, 459, 893, Florida Statute or any rules promulgated thereunder and shall appear before the Board at the December 1988 meeting. The Respondent shall complete fifteen hours of Category I, Continuing Medical Education in Internal medicine within twelve months from the filing of this final order. This order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S. and Florida Rule of Appellate Procedure 9.110(b)(c) within 30 days of the date of filing.

DONE AND ORDERED this 1st day of October 1988.

BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

RALPH H. GREENWASSER, D.O., CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to Lee Sims, Attorney, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, by Certified Mail to E. Ross Henson, D.O., 1722 Ridgewood Avenue, Holly Hill, Florida 32017, and by U.S. Mail to James Smith, Esquire, 605 South Ridgewood Avenue, Daytona, Florida 32014, and to Larry

J. Sartin, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301 this 6th day of October, 1988.

Docket for Case No: 86-003336

Orders for Case No: 86-003336