STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

DEPARTMENT OF PROFESSIONAL )

REGULATION. )

)

Petitioner, )

)

vs. ) CASE NO. 88-5277

)

DONALD IAFORNARO, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on November 16, 1988, in Orlando, Florida.

APPEARANCES

For Petitioner: Bruce D. Lamb

Chief Trial Counsel

Dept. of Professional Regulation 730 S. Sterling St.

Tampa, FL 33609

For Respondent: Sam Murrell, Jr., Esquire

One North Rosalind

P.O. Box 1749 Orlando, FL 32802

STATEMENT OF THE ISSUES

An amended administrative complaint, dated July 31, 1989, alleges various violations of Chapter 459, F.S., by Respondent.

Counts V, VI and VII, relating to Respondent's treatment of patient, R.C., were voluntarily dismissed by Petitioner at the commencement of the hearing.

The following allegations are left at issue:

That Respondent violated Section 459.015(1)(u), and (y), F.S., by prescribing Percodan and Ritalin, controlled substances, to his wife, G.I., inappropriately or in excessive quantities.

That in the treatment of his wife, Respondent 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, in violation of Section 459.015(1)(y), F.S.

That Respondent violated Section 459.015(1)(p), F.S., by failing to keep medical records justifying the course of treatment of G.I.; and that of his mother, M.I., for whom he prescribed Demerol.

PRELIMINARY STATEMENT

The original administrative complaint in this proceeding is dated September 16, 1988, and includes the above described allegations, among others.

After Respondent requested a formal hearing and the case was referred to the Division of Administrative Hearings, the hearing was set for January 5, 1989.

At Petitioner's request, and with the concurrence of Respondent, the hearing was continued until May 2, 1989. In April 1989, the parties jointly requested abeyance, to resubmit the case to the Board's probable cause panel.

At Petitioner's request, on August 24, 1989, leave to amend the complaint was granted to permit Petitioner to eliminate allegations as authorized by the Probable Cause Panel of the Board of Osteopathic Medical Examiners. The amended administrative complaint is dated July 31, 1989.

The formal hearing was rescheduled for November 16, 1989.

Respondent answered the amended complaint and moved to dismiss and to quash the amended complaint. Those motions were denied in an order dated September 20, 1989.

At the formal hearing, Petitioner presented the testimony of Donald Iafornaro, D.O.; Wilson Ascough; and William A. Kelley, D.O. Petitioner's exhibits A, B, C, D, E, F, G, H, I and K, were received in evidence; those exhibits include depositions of the Respondent and of William Silverman, D.O.

Respondent testified in his own behalf, and presented the testimony of his wife, G.I.; and his daughter, Diane Cason. Respondent's exhibits #1-5, were received in evidence.

After the hearing the transcript was filed, and both parties submitted proposed recommended orders. Respondent's submittal was filed approximately one month late, on January 29, 1990, with a cover letter explaining that counsel had been ill. Attached to Respondent's proposed recommended order is a one-page article from an unidentified periodical, with the headline, "Substance-Abuse Hysteria Hurting Chronic-Pain Patients".

Petitioner has moved to strike the proposed recommended order and the article. The motion is DENIED, as to the proposed recommended order, and is GRANTED as to the article, which was not received in evidence and is outside the record as described in Section 120.57(1)(b)6., F.S.

Specific rulings on the parties' proposed findings of fact are found in the attached Appendix.

FINDINGS OF FACT

1. Respondent, Donald Iafornaro, D.O., is and has been at all times material to the allegations of the amended administrative complaint, a licensed physician in the State of Florida, with license number OS 0001794.

   
   

2. Dr. Iafornaro has a limited osteopathic practice which he conducts from his home at 1802 North Lakemont, Winter Park, Florida. He has about fifty patients, and also treats his large family, including his wife, mother, eleven children and grandchildren.

   
   

3. G.I. has been a patient of Dr. Iafornaro for approximately 25 years -- since 1973, as his wife, and prior to that, from 1964, along with the rest of her family in Cleveland, Ohio.

   
   

4. Mrs. Iafornaro has had a demanding job caring for the Iafornaro children, her mother-in-law, the house and pets, and has recently been her husband's only staff in his practice.

   
   

   Between May 1985, and April 1987, her husband treated her for a variety of medical problems, including severe allergies, sleep apnea (a mechanical difficulty in breathing during deep sleep), depression, fatigue, a chronic fracture of the foot bone (a fracture which failed to heal), spinal stenosis, an unstable hip, ulcers, angina and various gynecological complaints

   
   

5. Between May 1, 1985, and April 11, 1987, Dr. Iafornaro prescribed the following drugs, among others, to his wife:

   
   

   2,720 tablets of Percodan 900 tablets of Ritalin

   
   

   Percodan is the product name for oxycodone hydrochloride, and Ritalin is the product name for methylphenidate hydrochloride. Both are Schedule II controlled substances and are legend drugs as defined in Section 465.003(7), F.S.

   
   

6. With the concurrence of the parties, official recognition was taken of the Physician's Desk Reference (PDR) for the years 1984-1987. Petitioner also presented the testimony of two osteopathic physicians practicing in Dr. Iafornaro's community.

   
   

   The evidence from these authorities established that the prescriptions of Percodan and Ritalin for G.I. were inappropriate or in excessive quantities.

   
   

7. Dr. Iafornaro felt that Ritalin was necessary to counteract the sedative effect of the antihistamines his wife had to take for her many allergies. He also prescribed the Ritalin for her depression.

   
   

8. Ritalin is a mild central nervous system stimulant. It is indicated for attention deficit disorders (primarily in children) and narcolepsy. It should not be used for severe depression or for the prevention or treatment of normal fatigue. The PDR warns of drug dependence.

   
   

   Ritalin is also contraindicated in patients, such as G.I., who have exhibited anxiety, tension, depression and agitation.

   Ritalin may cause reactions such as skin rashes, a common complaint of this patient, but a problem which Dr. Iafornaro attributed to her multiple allergies.

   
   

9. The Percodan was prescribed by Dr. Iafornaro for his wife's pain in her foot and for other pain in her low back and in her wrist.

   
   

10. The PDR warns that Percodan may be habit forming. It contains aspirin, which can aggravate ulcers. It is indicated for relief of moderate to moderately severe pain; it is a depressant; it can cause apnea and respiratory depression in an overdose.

    
    

11. Mrs. Iafornaro's statement that she used only about a half a tablet a day is inconsistent with the volume of the drugs prescribed for her over the relevant period.

    
    

12. Dr. Iafornaro produced all of his medical records for G.I. for the relevant period. He claims they are incomplete because he also makes notes on odds and ends, writes on the back of a medical journal and keeps a lot of records in his head. (Iafornaro Deposition, p.15)

    
    

    The medical records produced by Dr. Iafornaro do not justify his course of treatment,for this patient, and particularly fail to explain the long-term volume of drugs that he was prescribing.

    
    

13. Dr. Iafornaro claims that the probable cause panel previously reviewed his records and found them acceptable. The records were produced in response to charges that he had violated certain terms of an earlier disciplinary action. The issue was resolved with a "no probable cause" finding. That finding, in 1983, was for a different time period than the period at issue in this proceeding. Dr. Iafornaro provided records to the panel covering a limited period in 1983 when he was treating his wife for her foot fracture, a slip and fall accident and other acute conditions.

    
    

    The 1983 records, in contrast to those at issue here, describe the condition and his treatment. The later records provide copious listings of a variety of prescriptions, including the Percodan and Ritalin, with scant examination results, explanation of the condition being treated, or diagnoses of the complaints.

    
    

14. Complete written medical records are an essential element of prudent osteopathic practice, particularly when, as here, the physician is treating his family and his objectivity may be questioned.

    
    

15. Between January 5, 1987, and March 1, 1987, Dr. Iafornaro prescribed

    200 50 mg Demerol tablets to his 84 year old mother, M.I.

    
    

16. Demerol is a product name for meperidine hydrocloride, a Schedule II controlled substance, and a legend drug as defined in Section 465.003(7), F.S.

    
    

17. The basis for the prescriptions was an episode of right upper quadrant pain felt to be of gallbladder origin.

    
    

18. It is cheaper to purchase Demerol tablets by the 100. After M.I. took a few of the first prescription of 100, she lost the bottle and Dr. Iafornaro replaced it with another prescription. The medical records make no mention of the lost prescription, but they marginally justify the use of this drug for the limited period in issue and for the purpose intended.

19. A previous disciplinary case involving allegations of Dr. Iafornaro's improper prescriptions and record-keeping practices was resolved with a stipulation for his one-year probation with conditions. The stipulation was approved by the Board of Osteopathic Medical Examiners in a Final Order entered on December 28, 1982. (DPR Cases #0010979, 0014467, and 0015303)

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this proceeding pursuant to Subsections 120.57(1), F.S., and 455.225(4), F.S.

    
    

21. The Department must prove its allegations in the amended administrative complaint by evidence that is clear and convincing. Ferris v. Turlington, 510 So2d 292 (Fla 1987)

    
    

22. The amended administrative complaint alleges violations of the following provisions of Section 459.015, F.S.:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       (p) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

       (u) 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 the patient and is not in the course of the osteopathic physician's professional practice, without regard to his intent.

       (y) 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. The board shall give great weight to the provisions of

       s. 766.102 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 osteopathic physician. As learned in this paragraph, "gross 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 accountable under similar conditions and circumstances shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that an osteopathic physician be competent to practice osteopathic medicine in order to be disciplined pursuant to this paragraph.

       
       

23. The Department proved its allegations related to Dr. Iafornaro's treatment of his wife, G.I. It is unnecessary for the Department to establish that G.I. is actually addicted to the drugs she was taking. The records maintained by Dr. Iafornaro did not justify the amounts and types of drugs which he prescribed. Competent expert testimony established that the types and amounts of drugs were inappropriate under the circumstances described by G.I. and Dr. Iafornaro, and his treatment failed to reach the level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances.

    
    

24. The evidence regarding records maintained by Dr. Iafornaro for his mother, M.I., was conflicting. The allegations regarding two prescriptions of Demerol were not clearly proven. Dr. Kelley's testimony regarding the sufficiency of the records for the limited time in issue is credited, as is Respondent's explanation for the double prescriptions.

    
    

25. In his proposed recommended order counsel for Petitioner has recommended penalties based on the disciplinary guidelines of the Board found in Rule 21R-19.002, F.A.C. The recommendation is consistent with those guidelines, and is adopted below.

RECOMMENDATION

Based on the foregoing, it is hereby, RECOMMENDED

That the Department of Professional Regulation, Board of Osteopathic Medical Examiners enter a Final Order which finds Donald Iafornaro, D.O., guilty of having violated the provision of Subsection 459.015(i)(p), (u) and (y), F.S. and imposing the following penalties:

1. Suspension of license for 90 days and until such time as he appears before the Board of Osteopathic Medical Examiners and establishes that he has taken and passed the examination conducted by the National Board of Examiners for Osteopathic Physicians and Surgeons or the Special Purpose Examination (SPEX) of the Federation of State Medical Boards, as designated by the Board of Osteopathic Medical Examiners in its final order;

2. Upon reinstatement that his license be placed on probation for two years subject to such terms and conditions deemed appropriate by the Board, including, but not limited to, restriction of practice, direct or indirect supervision of practice or prescribing of controlled substances and required additional continuing education;

3. That he be permanently restricted from prescribing controlled substances to family members, unless under direct supervision of another osteopathic physician;

4. That a reprimand be imposed;

5. That a fine of $2,000. be imposed.

DONE AND RECOMMENDED this 23rd day of February, 1990, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5277

The following constitute specific rulings on the findings of fact proposed by the parties.

Petitioner's Proposed Findings

1. Rejected as unnecessary.

2. Adopted in paragraph 1.

3.-5. Adopted in paragraph 5.

1. Adopted in paragraphs 6, 8 and 10. Some blood pressure monitoring is found in the records however.

2. Adopted in paragraph 6.

3. Adopted as a conclusion of law and in paragraph 6.

4. Adopted in paragraph 12.

5. Adopted in paragraph 15.

6. Adopted in paragraph 16.

7. Rejected as contrary to the weight of evidence.

8. Adopted in substance in paragraph 19.

Respondent's Proposed Findings

1. Rejected as unnecessary.

2. Adopted in paragraph l.

3. Adopted in part in paragraphs 7-10, otherwise rejected as unnecessary. 4.-6. Rejected as contrary to the weight of evidence.

7.&8. Adopted in paragraphs 15, 17 and 18.

9. Rejected as immaterial.

COPIES FURNISHED:

Bruce D. Lamb, Esquire

Dept. of Professional Regulation 730 S. Sterling Street

Tampa, FL 33609

Sam Murrell, Jr., Esquire

P.O. Box 1749 Orlando, FL 32802

Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Rod Presnell Executive Director

Osteopathic Medical Examiners Dept. of Professional Regulation 1940 N. Monroe St., Suite 60

Tallahassee, FL 32399-0792

Docket for Case No: 88-005277

Orders for Case No: 88-005277