STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-3483

)

ROBB E. ROSS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings on June 23, 1987, in Clearwater, Florida. The issue for determination in this proceeding is whether respondent's license to practice medicine should be revoked, suspended or otherwise disciplined for violations of Section 458.331(1), Florida Statutes.

APPEARANCES

For Petitioner: David E Bryant, Esquire

Alpert, Josey, Grilli, Paris and Bryant

100 South Ashley Drive, Suite 2000 Tampa, Florida 33602

For Respondent: David J. Wollinka, Esquire

Post Office Box 3649 Holiday, Florida 33590

INTRODUCTION

By an Administrative Complaint filed on August 20, 1986, respondent is charged with violating Sections 458.331(1)(cc), (1)(t), (1)(n) and (1)(q) of the Florida Statutes. Briefly, these provisions relate to the prescribing or dispensing of certain substances except for authorized purposes, gross or repeated malpractice, medical record-keeping, and the prescribing of certain drugs other than in the course of a physician1s professional practice. The factual allegations of the Complaint are that respondent inappropriately prescribed Dexedrine to three patients and failed to keep written medical records justifying the course of treatment to these same three patients.

In support of the charges, petitioner presented the testimony of the respondent Robb E Ross, M.D.; Allen Thomas Braunstein, M.D., accepted as an expert witness in the field of family medicine; and Daniel Wilson Frazier, M.D., accepted as an expert witness in the areas of family practice and appropriate medical record-keeping. Petitioner's Exhibits 1 through 5 were received into evidence which included the deposition testimony of Lee Pat Strickland, a

pharmacist and consultant to the Department of Professional Regulation (DPR); and Matthew M. Cohen, M.D., a family physician and consultant to the DPR.

The respondent testified in his own behalf and also presented the testimony of Frederick H. Roever, M.D., accepted as an expert witness in the field of medicine. Respondent's Exhibit 1 was received into evidence.

Subsequent to the hearing, counsel for both parties submitted proposed findings of fact and proposed conclusions of law. To the extent that the parties' proposed factual findings are not incorporated in this Recommended Order, they are rejected for the reasons set forth in the Appendix attached hereto.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times pertinent to this proceeding, respondent Robb E. Ross was a licensed physician engaged in the practice of family medicine as a sole practitioner. He was licensed to practice medicine in the State of Florida in 1966 and holds license number 12433. He was board certified in family practice in 1970. Respondent also holds a license as a pharmacist.

   
   

2. Respondent treated patient N.B. from September of 1970 through October of 1986. She initially presented as a new patient moving into the area, aged 61, for maintenance of her general physical medical care, primarily relating to her mild depression that she had for years following a mastectomy. While believing that patient N.B. had previously been under the care of a psychiatrist or psychologist, respondent never requested her prior medical records. Patient

   N.B. informed the respondent that she had been taking Biphetamine, a steroid amphetamine that is no longer produced, for the past ten years. Respondent continued patient N.B. in that treatment modality for over ten years, as well as treating her for other complaints. At some point, he did attempt to titrate her from Biphetamine, but she did not function as well with a substitute drug. When the drug Biphetamine was phased out of the market in either 1980 or 1982, respondent prescribed Dexedrine to patient N.B. and continued to do so approximately every six months. Respondent maintained her on Dexedrine due to her mild depression and the fact that she had been on amphetamines for many, many years. He was reluctant to take her off Dexedrine for fear that she could become overtly depressed. Since she did well with Dexedrine, respondent maintained her on that regiment due to the adverse side effects of other compounds utilized to control depression.

   
   

3. The respondent's medical records for patient N.B. contain virtually no patient history or background information. For each patient visit, there is a brief notation which includes N.B.'s temperature, blood pressure and weight and also a reason for the visit. The reason noted on the records are either "check- up" or a brief statement of the patient's complaint on that particular day. The medication prescribed is noted, though very difficult to read. While the symptom or patient complaint is often noted, the patient records contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from N.B.'s medical records the reason that Dexedrine was prescribed for this patient. While N.B. complained of tiredness, she did not suffer from narcolepsy.

4. Patient G.B. was under respondent's care from August of 1979 through May of 1985. He initially presented, at age 56, with problems relating to emphysema, lung collapse, exhaustion, impotency and aches and pains. Respondent prescribed various medications for him, including Nitroglycerin for chest pains. Respondent felt that due to his age and his complaints, patient G.B. had some type of arteriosclerosis. Patient G.B. frequently complained of being weak, exhausted and having no endurance or energy. For this reason, respondent prescribed Dexedrine for him on March 30, 1984. Other medications to increase his energy were tried before this and after this time. Nothing appeared to give him any relief. After determining that patient G.B. "liked his medicine too much," respondent terminated his treatment of him.

   
   

5. The respondent's medical records for patient G.B. are brief and difficult to decipher. Again, the patient's temperature, blood pressure and weight are recorded for each visit, and there is a brief statement of the patient's complaint. There is no statement indicating a medical diagnosis or a treatment plan. The medications prescribed at each visit are written on the records, but are difficult to read.

   
   

6. D.M. was a patient under respondent's care from December of 1976 until his death, at age 84, in March of 1986. He initially presented with stomach problems and subsequently had a host of other medical problems, surgeries and hospitalizations throughout the years. This patient was given so many different medications for his various physical problems that respondent did not always write each of them down on his records after each office visit. It appears from respondent's medical records that he first started patient D.M. on Dexedrine in January of 1984. At that time, D.M.'s chief complaint was "dizziness, falling, no pep." Respondent maintained D.M. on Dexedrine or an amphetamine type of compound from that period until his death, primarily because of his weakness, dizziness, falling down and low blood pressure. Other specialists were consulted regarding D.M.'s fainting and falling episodes, caused by postural hypotension, and were unable to remedy the problem. Respondent was of the opinion that the administration of Dexedrine enabled patient D.M. to function more properly and that it worked better than anything else. Patient D.M. expired in March of 1986. Respondent listed the cause of death as "cardiac arrest."

   
   

7. The respondent's medical records on patient D.M. are typical of those previously described for patients N.B. and G.B. The office visit notes list patient complaints or symptoms and no medical diagnosis or comprehensive assessments. There are indications in the record that D.M. complained of chest pains in 1983, 1984 and 1985. The medications prescribed indicate the presence of cardiac disease.

   
   

8. Respondent's record-keeping with regard to patients N.B., G.B. and D.M. are below an acceptable standard of care. They fail to include an adequate patient history and initial assessment of the patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the patient's background. The respondent's only notation of treatment is a listing, and a partial listing in the case of D.M., of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken.

   
   

9. Dextroamphedimine sulfate, also known as Dexedrine, is a sympathomimetic amine drug and is designated as a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Commonly, it is referred

   to as "speed" or an "upper." It is addictive and highly abusive. While individual patients react differently to Dexedrine, its consumption can cause psychosis, marked elevations of blood pressure and marked rhythmic disturbances. As such, its use is contraindicated in patients with coronary disease. In addition, because Dexedrine is an "upper" and makes a patient "feel good," it can mask a true physical condition and prevent the patient from being treated for the physical ailment he is experiencing. A patient should not be relieved of pain without first knowing what is causing the pain.

   
   

10. In Florida, Dexedrine may only be prescribed, administered or dispensed to treat specifically enumerated diseases, conditions or symptoms. Section 458.331(1)(cc), Florida Statutes. Neither respondent's medical records nor his testimony indicate that patients N.B., G.B. and/or D.M. suffered from the conditions, symptoms or diseases which warranted the statutorily approved and limited use of Dexedrine.

    
    

11. Respondent was not aware that there were statutory limitations for the use of Dexedrine. He is aware of the possible dangers of amphetamines and he prescribes Dexedrine as a treatment of last resort when he believes it will help the patient. Respondent further testified that his medical record-keeping is adequate to enable him, as a sole practitioner, to treat his patients, though he admits that his medical records could be improved.

    
    

    CONCLUSIONS OF LAW

    
    

12. The burden of proof in this proceeding is upon the petitioner, Department of Professional Regulation, Board of Medical Examiners, to demonstrate that respondent Ross violated the provisions of Section 458.331(1), Florida Statutes, as charged in the Administrative Complaint. The petitioner has sustained that burden in this proceeding.

    
    

13. The evidence presented at the hearing clearly warrants the finding and conclusion that respondent did prescribe Dexedrine, a Schedule II controlled substance, to three patients for other than the statutorily prescribed purposes set forth in Section 458.331(1)(cc), Florida Statutes. Indeed, respondent admits that none of the patients named in the Complaint suffered from the statutorily enumerated conditions for which the drug Dexedrine may lawfully be prescribed. The fact that respondent may have attempted to do what he felt was best for his patients is irrelevant. The amount prescribed in each instance is irrelevant. It was clearly illegal to prescribe any amount of Dexedrine to patients N.B., G.B., and D.M. pursuant to Section 458.331(1)(cc), Florida Statutes.

    
    

14. Pursuant to Section 458.331(I)(q), Florida Statutes, it is grounds for disciplinary action for a physician to prescribe legend drugs, including any controlled substance, other than in the course of the physician's professional practice. For the purposes of that section, it is to be legally presumed that the prescription of such drugs

    
    

    "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."

    
    

    While the petitioner did not demonstrate that the actual quantities of Dexedrine prescribed for the named three patients was excessive under the circumstances,

    the absolute prohibition against such prescription absent statutorily authorized purposes renders such a demonstration unnecessary. Notwithstanding respondent's intent, it must be concluded that the prescription of Dexedrine to patients N.B., G.B, and D.M. was inappropriate and thus not in the best interests of those patients and not in the course of respondent's professional practice.

    Respondent is therefore guilty of violating Section 458.331(1)(q), Florida Statutes, with regard to these three patients.

    
    

15. With respect to patients G.B. and D.M., the use of Dexedrine was contraindicated due to the presence of coronary disease in those patients. While no direct harm was shown to have resulted to these patients, the prescription of Dexedrine to patients with coronary disease falls below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Disciplinary action is thus warranted pursuant to Section 458.331(1)(t), Florida Statutes.

    
    

16. Finally, Section 458.331(1) (n), Florida Statutes, provides that disciplinary action may be taken for

    
    

    "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."

    
    

    Here, the evidence demonstrates that respondent's written medical records were very brief, often illegible, lacking in patient history and background and inadequate in the tracking of prescriptions, dosage amounts and prescribing regimens. Respondent's notations are more symptomatic, reflecting patient complaints, as opposed to pathological, reflecting diagnoses or findings and a plan of treatment. The records do not indicate why certain medications were prescribed and do not justify the course of treatment chosen and administered. While respondent's memory concerning each of his patients may be remarkably proficient so as to enable him to adequately treat those patients, the law requires physicians to keep written medical records justifying the course of a patient's treatment. The respondent's medical records for patients N.B., G.B., and D.M. do not meet this standard.

    
    

17. When the Board determines that a physician has violated any of the provisions of Section 458.331(1), it is authorized to impose the penalties of revocation or suspension of a license, restriction of practice, an administrative fine, a reprimand, and/or probation subject to conditions. Given the facts that there was no showing of prior disciplinary action against the respondent's license as a physician and that his actions appear to have resulted from a lack of knowledge as to the statutorily authorized purposes for Dexedrine, and not from an intent to violate the law for personal or monetary gain, it is concluded that the penalty of revocation or suspension would be overly severe. Instead, the imposition of an administrative fine and probation with the requirement that respondent complete continuing medical education courses in the areas of medical record-keeping and the dangers and authorized purposes for the use of Schedule II compounds would best serve the interests of both the general public and the medical profession.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(I), subparagraphs (cc),(q),(t) and (n), Florida Statutes, and that the following penalties be imposed:

1. an administrative fine in the total amount of $2,000.00, and

   
   

2. probation for a period of twelve (12) months, with the following conditions: (a) that respondent complete continuing medical education courses or seminars in the areas of medical record-keeping and the dangers and authorized use of compounds designated as Schedule II controlled substances, and (b) that respondent submit to the Board on a monthly basis the medical records of those patients for whom a Schedule II controlled substance is prescribed or administered during the probationary period.

Respectfully submitted and entered this 2nd day of September, 1987, in Tallahassee, Florida.

DIANE D. TREMOR,

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 September, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3483

The proposed findings of fact submitted by counsel for the parties have been carefully considered. To the extent that the proposed factual findings are not included in this Recommended Order, they are rejected for the following reasons:

Petitioner: The 48 proposed findings of fact submitted by the petitioner consist of summaries or recitations of the testimony of the witnesses presented by the petitioner in this proceeding. While the summaries and/or recitations constitute an accurate representation of the testimony received by those witnesses at the hearing, and are thus accepted, they do not constitute proper factual findings by themselves. Instead, they (along with the testimony presented by the respondent) form the basis for the findings of fact in this Recommended Order.

Respondent: Page 4, Paragraph 1 The reference to 30 years

is rejected as contrary to the evidence.

COPIES FURNISHED:

David E Bryant, Esquire Alpert, Josey, Grilli, Paris

and Bryant

100 South Ashley Drive Suite 2000

Tampa, Florida 33602

David J. Wollinka, Esquire

P. O. Box 3649 Holiday, Florida 33590

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth, Executive Director Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

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

BEFORE THE BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL

REGULATION,

Petitioner,

vs. DPR CASE NO. 0058395

DOAH CASE NO. 86-3483

ROBB E. ROSS, M.D., LICENSE NO. ME 0012433

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)9., Florida Statutes On October 10, 1987, in Tampa, 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 Julie Gallagher, Esquire.

Respondent was present and testified at the hearing.

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, Florid 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 recommended by the Hearing Officer be clarified, increased to include a reprimand, and modified to include the Board's customary terms of probation. The Board increased the penalty because its review of the record In this cause revealed that Respondent's medical records were woefully inadequate. In addition, the fact that Respondent is also a pharmacist evidences a greater level of knowledge or an expected greater level of knowledge relating to conditions for which Schedule II controlled substances may be prescribed..

WHEREFORE

IT IS HEREBY ORDERED AND ADJUDGED that

1. Respondent shall pay an administrative fine in the amount of $2000 to the Executive Director within 30 days of the date this Final Order is filed.

   
   

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

   
   

3. Respondent's license to practice medicine in the State of Florida is placed on PROBATION over a period of 12 months subject to the following terms and conditions:

   1. Respondent shall obtain at least 60 hours of category I Continuing Medical Education (CME) per year in the subject areas of medical record keeping and the dangers and authorized use of compounds designated as Scheduled II controlled substances. Said CME must include the course given at the University of South Florida in prescription drug abuse. Such Continuing Medical Education shall be in addition to any CME required for license renewal.

      
      

   2. Respondent must use duplicate prescription forms for all prescriptions for controlled substances and must submit one copy of all such prescriptions to the Department within 30 days.

      
      

   3. Respondent shall personally appear before the Board at the first meeting after his probation begins and at the last meeting before his probation ends and at such other times as requested.

      
      

   4. Respondent shall submit quarterly reports, in affidavit form, the contents of which shall be specified by the Board. The reports shall each include:

      
      

      1. Brief statement of why Respondent is on probation

         
         

      2. Respondent's practice location

         
         

      3. Describe Respondent's current practice (type and composition)

      1. Describe Respondent's compliance with probationary terms.

      2. Describe Respondent's relationship with supervisory/ monitoring physician

         
         

      3. Advise Board of any problems.

      
      

   5. During the term of probation, the Department shall conduct investigations and make semi-annual reports detailing Respondent's compliance with the terms and conditions of this probation. On the record at the meeting, Respondent waived confidentiality of these reports as to the Department and the Board.

      
      

   6. 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. Be 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.

      
      

   7. Respondent shall practice only under the supervision of a monitoring physician approved by the Board. The physician shall review at least 20 percent of Respondent's records on a random basis at least once every two weeks. Prior to beginning the probationary period, Respondent and his monitoring physician shall appear before the Board. If Respondent's monitoring Physician is unable to perform his duties, Respondent shall cease practice until the Board or the Chairman of the Board approves a replacement.

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 30th day of October, 1987.

BOARD OF MEDICINE

J. DARREL SHEA, M.D. ACTING CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing FINAL ORDER has been provided by certified mail to Robb E. Ross, M.D., 1618 Dixie Highway, Holiday, Florida 33580 and David J. Wollinka, Esquire, Posts Office Box 3649, Holiday, Florida 33590; and by U.S. Mail to Diane D. Tremor, Bearing Officer, Division of Administrative Bearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302, and hand delivery to Leslie Brookmeyer, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32399- 0750 at or before 5:00 p.m., this 3rd day of November, 1987.

Docket for Case No: 86-003483

Orders for Case No: 86-003483