Judges: K. N. AYERS
Agency: Department of Health
Latest Update: Oct. 07, 1988
Summary: Respondent guilty of writnig prescriptions outside scope of practice
87-2451STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 87-2451
)
ERIC A. BAUM, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled cause on August 16, 1988, at Sarasota, Florida.
APPEARANCES
For Petitioner: Julie Gallagher, Esquire
204-B South Monroe Street Tallahassee, Florida 32301
For Respondent: Not present or represented.
By Administrative Complaint filed May 11, 1987, the Department of Professional Regulation (DPR), Petitioner, seeks to revoke, suspend or otherwise discipline the license of Eric A. Baum, Respondent, as a medical doctor. As grounds therefor, it is alleged that Respondent, in prescribing medication for his pregnant wife, Teresa Baum, was guilty of malpractice or failure to practice medicine with that level of care, skill and treatment recognized as being acceptable; that he prescribed those medications not in the course of his professional practice; that in writing prescriptions in the name of his daughter Pam and in the names of fictitious persons Respondent made deceptive, untrue or fraudulent representations in the practice of medicine; that he failed to keep adequate medical records to justify the treatment of Teresa or Pam Baum; and that he pleaded nolo contendere to a charge of obtaining drugs by fraud.
At the commencement of the hearing, efforts to contact Respondent by telephone were made, but to no avail. That Respondent had notice and was aware of the date and time scheduled for this hearing is confirmed by Respondent's Motion to Stay dated June 30, 1988.
At the hearing, Petitioner called three witnesses, and 16 exhibits were admitted into evidence.
Proposed findings submitted by Petitioner and not included herein were deemed unnecessary to support the conclusions reached.
FINDINGS OF FACT
At all times relevant hereto, Eric A. Baum was a licensed physician in the State of Florida having been issued License No. ME 0027880. He is board certified as a psychiatrist and board eligible in internal medicine (Exhibit 3).
Respondent has never established an active practice in Florida, although in the latter part of 1985 he maintained an office at his residence and later, for approximately 2 months, in a downtown office building in Sarasota.
Between August 19, 1985 and December 30, 1985, Respondent prescribed Bentyl, Ritalin, Fiorinal, Cylert, Urecholine and Laradopa to "Terri Leigh", generally in quantities of 100 for Ritalin (10 mg.) and Fiorinal (Tab). During this period, 1250 10 mg. of Ritalin and 1550 tabs of Fiorinal were prescribed (Exhibit 14). Terri Leigh is an alias used by Respondent for his wife, Terri Baum (Exhibit 7). Ritalin is a Class II controlled substance, Fiorinal is a Class III controlled substance and Cylert is a Class IV controlled substance.
During part of this time until delivery on October 21, 1985, Terri Baum was pregnant. Medical records prepared by Respondent for Terri Baum would indicate the medication was prescribed for headaches and depression.
Both Ritalin and Fiorinal are contraindicated during pregnancy.
Between July 30, 1985 and December 30, 1985, Respondent wrote prescriptions for "Pam Leigh" for 200 Fiorinal, 600 Cylert (37.5 mg.) and 500 Ritalin (10 mg.), (Exhibit 10). Pam Leigh is an alias for Respondent's then 16 year old daughter, Pam Baum.
Respondent contends that Pam is hyperkinetic and suffered from migraine headaches, and the medication was prescribed for those diagnoses. However, Pam denies ever taking any drugs or having any illness requiring such medication. Mark Baum, Pam's twin brother, denies that Pam is or was hyperkinetic or that he ever saw her take any medication. This latter evidence is deemed to be more credible than Respondent's testimony (Exhibit 3).
The quantity of controlled substances prescribed for Terri and Pam by Respondent during the periods above-noted are greater than should be prescribed for the symptoms noted and were inappropriate.
On April 15, 1987, Respondent pleaded nolo contendere to the offense of obtaining drugs by fraud in the Circuit Court of Sarasota County, Florida, adjudication of guilt was withheld, and he was placed on probation for one year with certain terms (Exhibit 11).
At the time Respondent's residence (and office) were searched by police pursuant to a search warrant seeking patient's records for Terri and Pam Baum, those records could not be found, and Respondent denied knowledge of their whereabouts. The records (Exhibits 6 and 7) were subsequently produced by Respondent. It is likely that Respondent prepared Exhibits 6 and 7 subsequent to the arrest of Terri Baum shortly before the search was conducted.
Subsequent to the arrest, Terri Baum and Pam Baum on February 26, 1986 had an appointment with Dr. Sayers Brenner, M.D., a psychiatrist, at which Terri requested Ritalin, Cylert and Fiorinal for herself and Ritalin and Cylert for Pam. Dr. Brenner, at the time unaware of Terri's arrest, prescribed a 10-day supply of these drugs and told Terri that he would not continue to supply drugs
to her and that he did not treat adolescent patients. Although an appointment was made for a subsequent visit in two weeks, neither Terri nor Pam returned.
Although no charges were made in this regard, evidence was presented in Exhibit 8 that Respondent wrote prescriptions for himself for Lasix, Lanoxin and Urecholine. No evidence was submitted from which a determination can be made that Respondent has a drug dependency problem, although the evidence is clear that if Respondent does not have a drug dependency problem, his wife does, and that prescriptions were written by Respondent to several fictitious persons to support this dependency.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
In a license disciplinary proceeding, Petitioner has the burden of proving the allegations made by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1988).
Respondent is here charged with violating Sections 458.331(1)(c), (l), (n), (q) and (t), Florida Statutes (1985) which provides the following acts shall constitute grounds for which disciplinary action against a licensee may be taken:
(c) Being convicted or found guilty, regardless of adjudication, of a
crime in any jurisdiction which directly relates to the practice of medicine or the ability to practice medicine. Any plea of
nolo contendere shall be considered a conviction for the purpose of this chapter.
(l) Making deceptive, untrue, fraudu- lent 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, adminis- tering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in a course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that pre- scribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled sub- stances 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 treat- ment which is recognized by a reason- able prudent similar physician as
being acceptable under similar condi- tions and circumstances.
Writing prescriptions in the name of fictitious persons constitutes deceptive, untrue and fraudulent representations proscribed by s. 458.331(1)(l).
Pleading nolo contendere to the charge of obtaining drugs by fraud constitutes a violation of s. 458.331(1)(c) since this offense related directly to the practice of medicine.
The medical records presented in Exhibits 6 and 7 are inadequate to justify the drug prescriptions written in the name of Terri Lee, Terri Baum, Pam Leigh or Pam Baum. That these records were prepared for the singular purpose of providing written support for the issuance of the prescriptions for controlled substances is clearly shown by the evidence that Pam Baum, at the time the prescriptions were written for her, was not suffering from hyperkinesis or migraine headaches; nor did she take the drugs prescribed.
By writing prescriptions in the name of Pam Leigh supposedly intended for Pam Baum, who neither needed nor ingested the medication, constitutes prescribing a controlled substance other than in the course of Respondent's professional practice. It also constitutes the making of deceptive, untrue or fraudulent representations in the practice of medicine as well as malpractice in failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances.
From the foregoing, it is concluded that Petitioner has proved by clear and convincing evidence that Respondent violated Sections 458.331(1)(l), (n), (q) and (t), Florida Statutes (1985), as alleged. It is
RECOMMENDED that the license of Eric A. Baum to practice medicine in Florida be revoked.
ENTERED this 7th day of October, 1988, in Tallahassee, Florida.
K. N. AYERS 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 7th day of October, 1988.
COPIES FURNISHED:
Julie Gallagher, Esquire 204-B South Monroe Street Tallahassee, Florida 32301
Eric A. Baum, M.D.
640 South Washington Street Sarasota, Florida 34236
Dorothy Faircloth Executive Director Board of Medicine
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Lawrence A. Gonzalez Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Bruce D. Lamb General Counsel
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
Docket for Case No: 87-002451
Orders for Case No: 87-002451
