STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-4106

)

ELIZER F. CASTRO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this cause on October 16, 1987, in St. Augustine, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Ray Shope, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Clyde E. Wolfe, Esquire

One Corporation Square, Suite B-10 St. Augustine, Florida 32086

ISSUES

The issue is whether the medical license of Respondent, Elizer F. Castro, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.

The Petitioner, Department of Professional Regulation, Board of Medical Examiners, (DPR) presented the testimony of David F. Scales, M.D., John E. Danson, and Steven J. Clark, M.D. Petitioner's Exhibits 1-3 were admitted in evidence. Respondent presented his own testimony and that of Melvin Greer, M.D., by deposition. Respondent's Exhibit 1 was admitted in evidence. DPR recalled John E. Danson for rebuttal.

The transcript of the proceedings was filed on November 2, 1987. The deposition of Melvin Greer, M.D., was filed on November 24, 1987. The parties agreed that they would file proposed findings of fact and conclusions of law within ten days following the filing of the Greer deposition. DPR filed its proposed findings of fact and conclusions of law on December 4, 1987.

Respondent's proposed order was filed on December 11, 1987, and is therefore untimely. It has not been considered. The proposed findings of fact submitted

by DPR have been considered and a specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times relevant, Elizer F. Castro, M.D., was a licensed physician in the State of Florida, having been issued license number ME 0029506.

   
   

2. Dr. Castro treated a patient, A.S., from May 9, 1983, to September 23, 1986. Dr. Castro treated A.S. for narcolepsy.

   
   

3. A.S. was formerly treated by David Scales, M.D., of Jacksonville, Florida. Dr. Scales, a neurologist, treated A.S. for narcolepsy from December 16, 1982, until March or April, 1983. At that time, Dr. Scales discontinued treatment because he had received outside information that A.S. was a known drug dealer.

   
   

4. Narcolepsy is a sleep disorder in which the patient has an uncontrollable urge to fall asleep at inappropriate times. Diagnosis of narcolepsy can only be made through a patient history and patient information regarding symptoms, past illnesses, past physicians, prior medications, sleep patterns and the existence of features associated with the disease such as cataplexy, nightmares and sleep paralysis.

   
   

5. According to Dr. Castro, he took such a patient's history and performed a complete physical examination during the first visit by A.S. on May 9, 1983. Dr. Castro also asserted that he called Dr. Scales' office immediately following the first visit with A.S. and was advised by the physician's assistant that A.S. had been treated by Dr. Scales for narcolepsy. However, Dr. Castro's medical records, including the patient information sheet, do not contain any documentation of the history, specific examination results, or the phone calls to Dr. Scales' office.

   
   

6. The first page of the medical records regarding A.S. which is entitled "Patient Information" reflects information regarding tests which were done on August 5, 1983, at Jacksonville Memorial Medical Center following involvement of

   A.S. in an automobile accident. Clearly this information was not given to Dr. Castro during the first visit of May 9, 1983 (despite Dr. Castro's testimony to the contrary), because these tests were not even done until three months after the first visit. Hence, these tests cannot be relied on by Dr. Castro to support his clinical diagnosis of narcolepsy because the tests postdate the diagnosis and because Dr. Castro never sought copies of the test results.

   
   

7. Both Dr. Clark, DPR's expert, and Dr. Greer, Dr. Castro's expert, expressed the opinion that the medical records maintained by Dr. Castro failed to reflect an adequate history upon which to make the clinical diagnosis of narcolepsy.

   
   

8. It is also important to perform certain tests in order to rule out other etiologies or problems which can complicate or confuse a physician in the diagnosis of narcolepsy. Here, Dr. Castro's records do not reflect any such testing prior to Dr. Castro's diagnosis of narcolepsy in A.S.

   
   

9. In diagnosing narcolepsy in A.S., Dr. Castro acknowledged that his diagnosis was based on the representations of A.S. that he had narcolepsy and had been treated in the past for narcolepsy. Dr. Castro also stated that he did

   a physical examination, took an extensive patient history, and spoke to Dr. Scales' office for confirmation of the narcolepsy diagnosis. Dr. Castro did not record any of this in the patient records.

   
   

10. Dr. Castro treated A.S. for narcolepsy by prescribing Preludin, 75 milligrams, three times per day. A.S. told Dr. Castro that that was medication he had been receiving and that was the dosage he had been receiving form Dr. Scales. In order to follow A.S. on this medication, Dr. Castro began by prescribing 45 tablets for a fifteen day supply. Dr. Castro saw A.S. at fifteen day intervals for the first few visits in order to monitor his progress and to examine him for side effects. Only after assuring himself that the dosage was correct and any side effects were being effectively managed, did Dr. Castro began prescribing the Preludin on a monthly basis. After November, 1983, Dr. Castro saw A.S. on a monthly basis to monitor his medication.

    
    

11. Preludin is the brand name for phenmetrazine hydrochloride, which is a sympathomimetic amine and Schedule II controlled substance. The Physician's Desk Reference (PDR) is compiled by drug companies and contains data on all drugs, including indications for use, contraindications, adverse side effects, and recommended dosages. The PDR states that the maximum safe dose of Preludin is one 75 milligram tablet per day. The PDR also reflects that Preludin is contraindicated with hypertension.

    
    

12. Dr. Castro was treating A.S. for hypertension.

    
    

13. While Dr. Castro was prescribing Preludin in dosages beyond those set forth in the PDR, his prescription was not inappropriate. According to Dr. Greer, prescribing Preludin three times a day is a dosage that would be within a medically safe range and would be within the range appropriate within a physician's professional practice. Additionally, that prescription and dosage, being monitored on a monthly basis for side effects, would be within the range of sound medical practice. The dosage prescribed by Dr. Castro is also within the appropriate range that would be used on a patient of this type who had hypertension, as long as the physician also follows the hypertension. Here, Dr. Castro prescribed medication for A.S.'s hypertension and, according to Dr. Greer, that medication and treatment was appropriate.

    
    

14. Dr. Castro's records reflect that A.S. was not referred for any consultations with other specialists until November 20, 1986. According to Dr. Greer, waiting two and one-half years to refer a patient for consultation with a neurologist to confirm the diagnosis of narcolepsy would be inappropriate unless the doctor had gotten additional information to confirm the diagnosis. Here, Dr. Castro asserts that he did receive additional information in the form of telephone confirmation by Dr. Scales' physician's assistant which confirmed the diagnosis of narcolepsy. Dr. Castro did not record this in his medical records.

    
    

15. Dr. Castro practiced medicine within the community standard in his diagnosis and treatment of A.S. His failure was in the lack of documentation throughout his treatment of A.S.

    
    

    CONCLUSIONS OF LAW

    
    

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

17. Dr. Castro was charged with the following violations of Section 458.331(1), Florida Statutes:

    
    

    (h) Failing to perform any statutory or legal obligations placed upon a licensed physician

    * * *

    (n) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, a patient's history, examination results, and test results.

    * * *

    (g) 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 para- graph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately, or in excessive 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 or circumstances....

    * * *

    (cc) Prescribing, ordering, dispensing, administering, supplying, selling, or giving any drug which is an amphetamine or sympathomimetic amine drug or a compound designated as a Schedule II controlled substance pursuant to chapter 893, to or for any person except for:

    1. The treatment of narcolepsy....

    
    

18. The Department has the burden of proof and must carry that burden by clear and convincing evidence. Ferris v. Turlington, 12 FLW 393 (Fla. July 17, 1987).

    
    

19. Based upon the foregoing Findings of Fact, it is concluded that Dr. Castro is guilty of violating Section 458.331(1)(n) by failing to maintain medical records regarding A.S. which include patient history, examination results, and tests results. Additionally, it is concluded that the records which Dr. Castro kept do not justify the diagnosis of narcolepsy in this patient and do not justify the course of treatment.

    
    

20. While the medical records do not justify the diagnosis of narcolepsy, in hindsight, there is clear and convincing evidence that the diagnosis of narcolepsy was correct and the treatment and prescription of Preludin was

    appropriate. While the dose was greater than that stated in the PDR, the competent substantial evidence indicates that it was not excessive or inappropriate in this patient. Accordingly, it is concluded that the Department of Professional Regulation has failed to sustain its burden of proving, by clear and convincing evidence, that Dr. Castro violated Section 458.331(1)(q).

    
    

21. It is further concluded, that the Department of Professional Regulation failed to carry its burden of proving, by clear and convincing evidence, that Dr. Castro failed 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. Additionally, Dr. Castro's prescribing of Preludin for patient A.S. was done in good faith and in accordance with all legal obligations. Therefore, the Department of Professional Regulation failed to carry its burden of proving that Dr. Castro violated Section 458.331(1)(h),(t), and (cc).

    
    

22. It is concluded that all Counts against Dr. Castro should be dismissed, except for Count I for failure to maintain patient records justifying the course of treatment.

RECOMMENDATION

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

Medical Examiners, enter a Final Order, and therein:

1. Dismiss Counts II, III, IV, and V of the Administrative Complaint.

   
   

2. Find Elizer F. Castro, M.D., guilty of violating Section 458.331(1)(n), Florida Statutes, as set forth in Count I of the Administrative Complaint.

   
   

3. Assess a fine in the amount of five hundred ($500) dollars.

   
   

4. Order Elizer F. Castro, M.D., to attend and complete continuing medical education in the area of record keeping.

DONE AND ENTERED this 17th day of December, 1987, in Tallahassee, Leon County, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4106

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

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

1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(2); 4(3); 5(4); 6 & 7(5-7); 8(7); 9(8); 10(8); 14(10); 15(11); 16(11); 17(11); and 18(12).

2. Proposed findings of fact 11, 12, 13, and 19-23 are subordinate to the facts actually found in this Recommended Order.

COPIES FURNISHED:

Ray Shope, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Clyde E. Wolfe, Esquire

1 Corporation Square, Suite B-10 St. Augustine, Florida 32086

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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

AGENCY FINAL ORDER

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

BEFORE THE BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NO. 00624361

vs. DOAH CASE NO. 86-4106

LICENSE NO. ME 0004572

ELIZER F. CASTRO, M.D.,

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)9., Florida Statutes on February 6, 1988, in Tampa, Florida, for the purpose of considering the Hearing Officers Recommended Order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Bruce D. Lamb, Esquire. Respondent was present and represented by Clyde E. Wolfe, Esquire.

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, with the exception that the Board rejects the conclusion of law that the Department has failed to meet the burden of proving by clear and convincing evidence that Dr. Castro failed 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. Section 458.331(1)(t), Florida Statutes. The findings of fact with regard to the failure to record an adequate history in the

   medical records, in light of the fact that medical history is essential in a clinical diagnosis of narcolepsy support the Board's conclusion of law in this regard.

   
   

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 rejected as too lenient in light of the change in the conclusion of law relating to Section 458.331(1)(t), Florida Statutes. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Counts II, IV, and V of the Administrative Complaint are DISMISSED.

   
   

2. Respondent is found guilty of violating Section 458.331(1)(n), Florida Statutes, and Section 458.331(1)(t), Florida Statutes, as set forth in Counts I and III of the Administrative Complaint.

   
   

3. Respondent shall pay an administrative fine in the amount of $1000 to the Executive Director within 30 days of the date this Final Order is filed.

   
   

4. Within one year Respondent shall obtain at least 20 hours of Category I Continuing Medical Education in the subject areas of sleep disorders and medical recordkeeping. Such Continuing Medical Education shall be in addition to any CME required for license renewal.

   
   

5. Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 6 months subject to the following terms and conditions:

   
   

   1. Respondent shall comply with all state and federal statutes, rules and regulations pertaining to the practice of medicine, including Chapters 893, 455 and 458, Florida Statutes, and Rules 21M, Florida Administrative Code.

      
      

   2. 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.

      
      

   3. 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.

      
      

   4. During the term of probation, the Department shall conduct investigations and make quarterly 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.

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.

This order takes effect upon filing.

DONE AND ORDERED this 18th day of February, 1988.

BOARD OF MEDICINE

MARGARET C. S. SKINNER, M.D. VICE 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 Elizer F. Castro, M.D., 112 Osprey Road, St. Augustine, Florida 32086 and Clyde E. Wolfe, Esquire, One Corporation Square, Suite B-10, St. Augustine, Florida 32086; by U.S. Mail to Diane K. Kiesling, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302, and by hand delivery to Bruce D. Lamb, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32399-0750 at or before 5:00 p.m., this 1st day of March, 1988.

Docket for Case No: 86-004106

Orders for Case No: 86-004106