STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 90-1565
)
BRET LUSSKIN, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 27, 1991, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Mary B. Radkins, Esquire
Department of Professional Regulation
Northwood Centre, Suite 60 1940 North Monroe Street
Tallahassee, Florida 32399-0792
For Respondent: David Bogenschutz, Esquire
633 Southeast Third Avenue Fort Lauderdale, Florida 33301
STATEMENT OF THE ISSUE
The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against Respondent, if any.
PRELIMINARY STATEMENT
Petitioner filed an Administrative Complaint against Respondent alleging that he had violated various provisions of the Medical Practice Act, and Respondent timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. This matter was subsequently transferred to the Division of Administrative Hearings for the conduct of that formal proceeding. Petitioner subsequently filed an Amended Administrative Complaint and further amended that Amended Administrative Complaint by voluntarily dismissing Counts Four and Five at the commencement of the final hearing in this cause.
Petitioner presented the testimony of C. F.; Gary J. Rosenberg, M.D.; Mel Waxman; Reynold N. Stein, M.D.; Jean Hamilton; and Thelma L. Williams. The Respondent testified on his own behalf and presented the testimony of Sheryl Vienneau; Fred Chikovsky; and Burton Cahn, M.D. Additionally, Petitioner's Exhibits numbered 1-10 and Respondent's Exhibits numbered 1-4 were admitted in evidence.
Both parties submitted post hearing proposed findings of fact. A ruling on each specific proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 007919. Respondent is an orthopedic surgeon, practicing in Hallandale, Florida.
Respondent first met N. L. on March 6, 1985, when she came to him for treatment of injuries which she received in a motor vehicle accident on March 2, 1985. N. L. began receiving physical therapy in Respondent's office and was examined by Respondent on a regular basis.
The primary medication given to N. L. by Respondent was B-12 IM. On a number of occasions, Respondent gave N. L. a prescription for valium (Diazepam). Diazepam is a Schedule IV controlled substance as defined by Chapter 893, Florida Statutes. Respondent made a notation in N. L.'s records whenever he gave her a prescription for medication and whenever he gave her a sample of medication which he had received from manufacturers' representatives.
Although subsequently released from active treatment, N. L. continued to return to Respondent's office for treatment and therapy due to continued complaints and due to episodes of exacerbation of the injuries which she had previously received.
Respondent saw N. L. as a patient for the last time on February 20, 1987. Respondent gave her no prescriptions for valium subsequent to that date.
Thereafter, Respondent did see N. L. socially. She was a friend of his children and dated one of his sons. She was a guest in Respondent's home on a number of occasions. On occasion, she accompanied his sons when they came to Respondent's office. On several occasions, she flew with Respondent in his airplane.
N. L. was never drunk or "stoned" when she was in Respondent's presence. Respondent never saw any evidence that N. L. was an alcohol and/or drug abuser. On or about July 25, 1989, N. L. died as a result of a car accident. Some Diazepam was found in her blood at the time of her death. Her blood also revealed a high alcohol content.
Respondent kept his blank prescription pads in more than one location in his office. He kept some in his desk and kept some in a cabinet in the hallway across from the examining rooms.
According to the records of Eckerd Drug Store, on May 18, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled in increments on May 18 and May 19 by the pharmacists working at Eckerd.
According to the records of Eckerd Drug Store, on June 13, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled on June 13, 1989, was refilled on June 27, 1989, and was refilled on July 18, 1989, by the pharmacists working at Eckerd.
Although the signature on the two prescriptions described above is similar to Respondent's, Respondent did not sign or issue those prescriptions to
N. L.
C. F. is a 28-year-old female who slipped and fell in her apartment on August 23, 1989. She sought medical treatment immediately following her fall. She then retained an attorney to represent her in the civil litigation she would be filing as a result of her fall, and that attorney referred her to Respondent for treatment and physical therapy.
Respondent's first contact with C. F. occurred on her first visit to his office on August 31, 1989. At that time, Respondent performed a full physical examination on C. F. and started her on a course of physical therapy.
It was not Respondent's practice to see each patient every time that patient came in for physical therapy. Rather, Respondent would see such patients once a week, either in the physical therapy room or in one of his examining rooms.
On November 2, 1989, Respondent saw C. F. in the therapy room. C. F. listed her complaints, and Respondent examined her and dictated notes for her medical chart. C. F. asked Respondent if she could talk to him in a different room. She was placed in one of the examining rooms. When Respondent came into the examining room, C. F. asked if the door could be closed and if it could be secured. Respondent then closed the sliding door to the examining room, securing it with a pin. C. F. then told Respondent that she was "very good at giving head." Respondent replied that that was nice but he was busy. C. F. continued to joke and was laughing when she left the examining room. Thinking it insignificant, Respondent gave no further thought to the banter which had taken place. As C. F. left the office, she stopped at the front desk and made an appointment for a physical therapy treatment the following week.
On November 7, 1989, C. F. arrived for her scheduled physical therapy treatment. She was not scheduled to see Respondent on that date. While C. F. was lying on the traction table, she asked the physical therapist if Respondent were in the office that day. The therapist responded that he was and asked if
C. F. needed to speak to him. At first, C. F. said she did not need to see Respondent, but she later became insistent that Respondent see her. By the end of C. F.'s therapy session, C. F. was demanding that she be seen by Respondent, taking the position that she would not leave without seeing him even if that meant that she had to wait all day.
The therapist told Respondent that C. F. was demanding to see him, and Respondent told the therapist to put C. F. in an examining room. Respondent then became busy, and the therapist did not have an opportunity to tell Respondent that C. F. was acting "a little eerie."
C. F. was taken to an examining room. She waited for approximately an hour before Respondent was able to see her.
When Respondent entered the examining room, C. F. asked him to close the door and motioned to him to lock it by putting the locking pin in place. Respondent closed the door and inserted the pin. C. F. walked over to Respondent, abruptly opened his belt, opened his pants, pulled his pants down, pulled down his underwear, pulled up his shirt, and told Respondent to "hold this," referring to his penis.
C. F. then told Respondent that she had to get a napkin. She turned, took two steps toward her pocketbook, reached in, pulled out a camera, and instantly shot two pictures of Respondent.
She then ran to the door shouting for her husband whom she had brought with her to her therapy session on that day. Respondent reached for her pocketbook, but C. F. pulled the pin out of the door, opened the door, and ran out still loudly calling her husband's name. C. F. and Respondent were alone in the examining room for no more than two minutes.
By this time, her husband Patrick had entered the examining room area, where he immediately attacked the x-ray technician, placing his hands around the x-ray technician's throat and attempting to strangle him. C. F. told her husband he had gotten the wrong doctor, and Patrick then ran to Respondent and placed a stranglehold on him.
C. F. and Patrick left Respondent's office, stopped by the gas station where C. F. worked, and then went to the Hallandale police station.
Within 24 hours from the time that C. F. seduced Respondent in his office, she had contacted the attorney representing her in her "slip and fall" lawsuit regarding his filing an action against Respondent, had had a "falling out" with that attorney over him representing her, had hired a different attorney to file a lawsuit against Respondent, had been referred by that second attorney to a third attorney who would represent her along with the second attorney in suing Respondent, had been interviewed by a local television station at the office of one of her new attorneys, her interview and the interview with her new attorneys had been shown on both the early evening and the late evening news, and contact had been made between C. F.'s new attorneys and Respondent's attorney regarding C. F.'s demand for money from Respondent.
No civil suit was ever filed by C. F. against Respondent. Numerous contacts took place between C. F.'s attorneys and Respondent's attorney. Additionally, C. F.'s attorneys contacted the Department's investigator a number of times attempting to obtain confidential information from the investigator to be used in C. F.'s claim against Respondent. Over the next several months, C. F.'s attorneys continued to demand money from Respondent and threatened Respondent with additional publicity.
In the face of C. F.'s threats of expanded publicity against Respondent, a settlement was entered into in February of 1990. Under the terms of that settlement, C. F. received a cash payment from Respondent's medical malpractice carrier with an "extremely nominal" contribution from Respondent.
Respondent was immediately devastated by his encounter with C. F. on November 7, 1989. He walked down the hallway in his office building and made an appointment to see Dr. Burton Cahn, a psychiatrist practicing in that building. He was not able to see Dr. Cahn until November 9, 1989. Dr. Cahn began treating Respondent for his depression, seeing Respondent at first twice a week and then once a week. Respondent was still seeing Dr. Cahn regularly at the time of the final hearing in this cause.
Respondent voluntarily ceased practicing medicine on November 9, 1989, to avoid the possibility that the problems with C. F. would distract him from providing good quality medical care. He resumed his office practice on March 7, 1990, with Dr. Cahn's full approval and following Dr. Cahn's suggestion that Respondent never see a female patient without another female in the room.
Respondent had ceased performing hospital surgical procedures by approximately August of 1989, two months before the incident with C. F., since he was not doing much surgery in a hospital setting and had someone else in his office who was performing hospital surgical procedures. When he resumed his office practice on March 7, 1990, Respondent did not resume performing hospital surgical procedures since he thought he might be "too rusty".
Respondent is able to practice orthopedic surgery. He does not represent a danger to himself or to the people in the community.
A further suspension of Respondent from his practice would be of no benefit to him or to the community.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
Counts One through Three of the Amended Administrative Complaint filed in this cause relate to Petitioner's allegations that Respondent prescribed valium to patient N. L. on two occasions during 1989. Count One alleges that Respondent failed to keep written medical records justifying the course of treatment when he prescribed valium to patient N. L. on or about May 18 and June 13, 1989, and that Respondent, therefore, violated Section 458.331(1)(m), Florida Statutes. Count Two alleges that Respondent (referring to the two 1989 prescriptions) inappropriately prescribed valium for patient N. L. without first obtaining an appropriate history or update and without examining the patient, thereby violating Section 458.331(1)(q), Florida Statutes, by prescribing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. Count Three alleges that Respondent 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 when he prescribed valium in 1989 to patient N. L. without first obtaining an appropriate history, update, examination, or providing any medical records indicating the need for such
medication, thereby violating Section 458.331(1)(t), Florida Statutes. Petitioner has failed to meet its burden of proof as to Counts One through Three of the Amended Administrative Complaint.
Respondent's testimony that he ceased treating N. L. as a patient on February 20, 1987, is uncontroverted. Petitioner presented no direct evidence that Respondent gave N. L. the prescriptions for valium dated May 18, 1989, or June 13, 1989. In support of its allegations, Petitioner offered the testimony of a pharmacist from Eckerd Drug Store and a handwriting expert. The pharmacist testified as to Eckerd's records and as to the normal procedures utilized by Eckerd. The pharmacist was unable to testify as to the making of the records or the dispensing of valium pursuant to the two prescriptions in question done by the other pharmacist employed by Eckerd, and the witness had no independent recollection of the transactions where her initials appear in Eckerd's records. There is no evidence that Eckerd's normal policies were followed in the instances in question, and Respondent testified that no one from Eckerd called his office regarding those prescriptions or refilling those prescriptions.
Although Respondent admitted that the signature on the two prescriptions in question looked similar to his, he denied that he gave those prescriptions to N. L. It is clear that prescription pads were kept in his office in a location where they were accessible to others. Respondent also testified that N. L. was in his office after hours on a number of occasions after she had ceased being his patient, either accompanied by his sons, or unaccompanied. The opinion of the handwriting expert that the signatures on the questioned prescriptions were "consistent with" the signature of Respondent "within a range of variation" was unimpressive and unpersuasive. There was testimony that the handwriting expert could reach no opinion when first assigned to this case and had to call for even more samples in order to reach any opinion at all. An examination of the signatures reveals, as Respondent suggests, that the most that can be said about the signatures on the questioned prescriptions are that they are similar to that of Respondent. Since Petitioner failed to prove that Respondent gave N. L. the prescriptions in question, then Petitioner a fortiori failed to prove that Respondent failed to keep written medical records justifying those prescriptions, that Respondent prescribed valium to N.
L. inappropriately, or that Respondent 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 when he prescribed valium to patient N. L.
Petitioner voluntarily dismissed Counts Four and Five at the commencement of the final hearing in this cause.
Counts Six and Seven relate to the incident involving C. F. Count Six of the Amended Administrative Complaint alleges that Respondent is in violation of Section 458.329 and/or Section 458.331(1)(j), Florida Statutes, and Count Seven alleges that Respondent, by violating Section 458.329, is in violation of Section 458.331(1)(x), Florida Statutes. Section 458.329, Florida Statutes, provides as follows:
Sexual misconduct in the practice of medicine.--
The physician-patient relationship is founded on mutual trust. Sexual misconduct in the practice of medicine means violation of the physician-patient relationship through which the physician uses said relationship to induce or attempt to induce the patient to engage, or
to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient.
Sexual misconduct in the practice of medicine is prohibited.
Section 458.331(1), Florida Statutes, provides, in part, as follows:
Grounds for disciplinary action; action by the board and department.--
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(j) Exercising influence within a patient- physician relationship for purposes of engaging a patient in sexual activity.
A patient shall be presumed to be incapable of giving free, full, and informed consent to sexual activity with his physician.
* * *
(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a
lawfully issued subpoena of the department.
Section 458.329, Florida Statutes, prohibits the physician from inducing or engaging or attempting to induce or engage the patient in sexual activity. Respondent did not initiate sexual activity with C. F.; rather, it was C. F. who attempted to engage Respondent in sexual activity for her own personal gain. Accordingly, Petitioner has failed to meet its burden of proving the allegations contained in Count Seven of the Amended Administrative Complaint.
As to Count Six, Petitioner has failed to prove that Respondent exercised influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. The second sentence in subsection (j) does create a presumption that a patient is incapable of consenting to sexual activity with the physician. However, that subsection does not create an irrebuttable presumption, and Respondent has overcome the presumption established by subsection (j). The credible and convincing evidence is that C.
F. brought two things with her to her physical therapy session on November 7, 1989: her husband and a camera. She demanded to see Respondent even though she had no appointment to see him. She waited in the examining room for an hour.
To accomplish her scheme, C. F. needed a photograph of Respondent in a vulnerable position, and she needed to do what was necessary to place him in that position. Not only did she fully consent, she seduced him.
It can be argued that Respondent should have stopped C. F. Petitioner's attorney asked Respondent during cross-examination why he did not. His answer was: a little "titillation and curiosity and a large measure of stupidity." The entire encounter between Respondent and C. F. lasted no more than two minutes. When C. F. took Respondent's picture, she had accomplished her purpose. No argument has been advanced, and no testimony was offered, as to
the point at which any duty to stop C. F. would have arisen. In any event, the disciplinary statutes relied upon by Petitioner as set forth in the Amended Administrative Complaint do not address situations involving seduction and any duty to stop the seduction. Rather, the statutes clearly contemplate only situations where the physician utilizes the physician/patient relationship to engage patients in sexual activity. Accordingly, Respondent did not violate Section 458.331(1)(j), Florida Statutes, in his treatment of C. F.
Even if the Legislature had established the presumption against consent by a patient as an irrebuttable presumption by stating that the presumption was irrebuttable, thereby making Respondent responsible for C. F.'s conduct as a matter of law, no disciplinary action would be appropriate under the facts of this case. Respondent has been punished enough. C. F. extracted money from him and caused criminal charges to be filed against him. Additionally, Respondent voluntarily suspended himself from the practice of medicine for four months. The humiliation suffered by Respondent and the damage to his reputation resulting from the notoriety caused by C. F. appearing on television to make her accusations cannot be erased.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty
and dismissing the Amended Administrative Complaint filed against him.
DONE and ENTERED this 18th day of October, 1991, at Tallahassee, Florida.
LINDA M. RIGOT
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 18th day of October, 1991.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1565
Petitioner's proposed findings of fact numbered 1-4, 6-9, 22, 28, and
31 have been adopted either verbatim or in substance in this Recommended Order.
Petitioner's proposed finding of fact numbered 5 has been rejected as being unnecessary for determination of the issues herein.
Petitioner's proposed findings of fact numbered 10, 13-18, 23, and 24 have been rejected as being subordinate to the issues under consideration herein.
Petitioner's proposed findings of fact numbered 11, 12, 20, 21, 25, 26, 29, 30, and 35 have been rejected as not being supported by the weight of the credible and/or competent evidence in this cause.
Petitioner's proposed findings of fact numbered 19, 27, and 36-41 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel.
Petitioner's proposed findings of fact numbered 32-34 have been rejected as being contrary to the weight of the credible evidence in this cause.
Respondent's four unnumbered paragraphs contained in the Findings of Fact section of his post hearing Report and Recommendation of Referee have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel.
COPIES FURNISHED:
Dorothy Faircloth, Executive Director Department of Professional
Regulation/Board of Medicine 1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Jack McRay, General Counsel Department of Professional
Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Mary B. Radkins, Esquire Department of Professional
Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
David Bogenschutz, Esquire 633 Southeast Third Avenue
Fort Lauderdale, Florida 33301
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner, DPR CASE NUMBERS: 89-07389, 89-011684, 89-011856
DOAH CASE NUMBER: 90-1565
BRET L. LUSSKIN, M.D.,
Respondent.
/
MOTION FOR FINAL ORDER
COMES NOW the DEPARTMENT OF PROFESSIONAL REGULATION, the Petitioner, and
moves this Honorable Board of Medicine to enter a Final Order in the above- styled cause. As grounds therefor, the Petitioner would state that:
On May 10, 1990, the Petitioner filed an Amended Administrative Complaint against-the Respondent alleging that the Respondent violated Sections 458.331(1)(j), (q), (t), (x), and 458.329 Florida Statutes. A copy of the Administrative Complaint is attached hereto and incorporated herein as Exhibit "A".
Thereafter, Respondent filed an election of rights form requesting a formal hearing before the Board. A copy of the Election of Rights form is attached hereto and incorporatedherein as Exhibit "B".
Exceptions have been timely filed by the Petitioner. A copy of the Exceptions are attached as Exhibit "C".
The Respondent has been advised by a copy of this Motion that the Board will consider the records which include the following documents: Administrative Complaint, Recommended Order, Petitioner Exceptions to Recommended Order, Petitioner's Proposed Recommended Order, Respondent's Proposed Recommended Order, Transcripts, exhibits.
WHEREFORE, the Petitioner moves this Honorable Board to issue a Final Order after the hearing in this case.
Respectfully submitted,
Mary B. Radkins Senior Attorney
Dept. of Professional Regulation 1940 North Monroe Street Tallahassee, Fl. 32399-0792
(904) 488-0062
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing Motion has been furnished by U.S. Mail this 12 day of November, 1991 to David Bogenschutz, Esquire, 633 Southeast Third Avenue, Fort Lauderdale, Florida 33301.
Mary B. Radkins Senior Attorney
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
DPR CASE NUMBERS: 89-07389,
89-011684,
89-011856
-vs- DOAH CASE NUMBER: 90-1565
LICENSE NUMBER: ME 007919
BRET L. LUSSKIN, M.D.,
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on December 7, 1991, in Miami, Florida, for the purpose of considering the Hearing Officer's Recommended Order and Petitioner's Exceptionsto the Recommended Order (copies of which are attached hereto as Exhibits A and B, respectively) in the above-styled cause.
Petitioner, Department of Professional Regulation, was represented by Larry G. McPherson, Jr., Attorney at Law. Respondent was present and represented by
David Bogunschutz, Attorney at Law.. 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.
RULINGS ON EXCEPTIONS
Petitioner's Exception Number 1 is granted for the reasons stated by Petitioner orally and in writing and based on the Board's review of the entire record. The Board adopts the reasoning of Petitioner.
Petitioner's Exception Number 2 is granted for the reasons stated by Petitioner orally and in writing and based on the Board's review of the entire record. The Board adopts the reasoning of Petitioner.
Petitioner's Exception Number 3 was withdrawn.
Petitioner's Exception Number 4 was withdrawn.
Petitioner's Exception Number 5 is granted for the reasons stated by Petitioner orally and in writing and based on the Board's review of the entire record. The Board adopts the reasoning of Petitioner.
Petitioner's Exception Number 6 was clarified on the record to assert that the expert testimony was not controverted by another expert, rather than that it was totally uncontroverted. Petitioner's Exception Number 6, as clarified, is granted for the reasons stated by Petitioner orally and in writing and based on the Board's review of the entire record. The Board adopts the reasoning of Petitioner.
On the record at the hearing, Petitioner corrected Exception Number 7 and withdrew the characterization of the required burden of proof as being "the greater weight of the evidence" and asserted the reason was based on competent substantial evidence based on the expert testimony. The Board grants Petitioner's Exception Number 7, as amended, for the reasons stated by Petitioner orally and in writing and based on the Board's review of the entire record. The Board adopts the reasoning of Petitioner.
Petitioner's Exception Number 8 was withdrawn.
Petitioner's Exception Number 9 was withdrawn.
Petitioner's Exception Number 10 is granted for the reasons stated by the Department both orally and in writing as well as the Board's review of the entire record, including specifically the transcript and depositions, and in reliance on Carter vs. Department of Professional Regulation, Board of Medicine,
550 So.2d 494 (Fla. 1st DCA 1989), with respect to the agency's authority to construe a statute it is charged with enforcing.
At the hearing, Petitioner withdrew its Exception to the first sentence of paragraph 30 of the findings of fact and the Board granted the Exception to the second sentence of paragraph 30 of the findings of fact, to wit, the Hearing Officer's finding that Respondent "does not represent a danger to himself or to the people in the community. "The Board granted the Exception based on the Board's prior rulings on the earlier Exceptions and the oral and written arguments asserted by Petitioner.
Petitioner's Exception Number 12 is granted by the Board on the basis of its earlier rulings and the Board specifically finds Respondent guilty of violations of Section 458.329 and subsections 458.331(1)(m), (q), (t), (j), and (x), Florida Statutes.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order which are not inconsistent with the Board's rulings on the Petitioner's Exception are approved and adopted and incorporated herein.
There is competent substantial evidence to support the findings of fact adopted by the Board.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The conclusions of law set forth in the Recommended Order which are not inconsistent with the Board's rulings on the Petitioner's Exceptions are approved and adopted and incorporated herein.
By granting Petitioner's Exceptions Number 7 and 12, the Board affirmatively adopts the following conclusions of law:
The Amended Administrative Complaint in this case charges Respondent with failing to keep written medical records justifying the course of treatment of
the patient, including but not limited to, patient histories, examination re- sults and test results. Petitioner has proved this Count One by clear and convincing evidence.
It has been demonstrated by unopposed expert testimony that Respondent is the author of the prescriptions for Valium written for N.L. (N.G.) in 1989.
Prescribing for N.L. was the "practice of medicine" and placed N.L. in the status of patient. As Respondent kept no medical records at all of these prescriptions or the need for them which
would justify his course of treatment, or of any physical examination of N.L. prior to prescribing Valium, he has violated Section 458.331(1), Florida Statutes, as charged in the Amended Administrative Complaint.
For the purpose of interpreting Section 458.331(1)(q), Florida Statutes, it is legally presumed in the statute that prescribing, 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 pro- fessional practice, without regard to
his intent. Respondent inappropriately prescribed Valium for Patient N.L. by not obtaining a history, physical examination, or update since her last visit, thereby violating Section 458.331(1)(q), Florida Statutes. Petitioner has proven this
Count Two by clear and convincing evidence.
By prescribing Valium to Patient N.L. without first obtaining an appropriate patient history, update, examination, or providing any medical records indicating the need for such medication, Respondent has violated Section 458.331(1)(t), Florida Statutes, in that he failed to practice medicine with that level of care, skill and treatment which is recognized
by a reasonably prudent similar physician under similar conditions and circumstances. Petitioner has proven Count Three by clear and convincing evidence.
Based on the findings of fact and conclusions of law of the Board,
the Board finds Respondent guilty of violations of Section 458.329 and subsection 458.331(1)(m), (q),
(t), (j), and (x), Florida Statutes.
There is competent substantial evidence to support the conclusions of law adopted by the Board.
DISPOSITION
Upon a complete review of the record in this case, the Board determines that the disposition recommended by the Hearing Officer be rejected as erroneous, based on the Board's contrary findings of facts and conclusions of law. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice medicine is REPRIMANDED.
Within 60 days, Respondent must be evaluated by a psychiatrist approved by the Physician's Recovery Network and must comply with all recommendations of said psychiatrist including entering into and complying with a contract with the Physician's Recovery Network, if applicable.
Respondent shall not examine or treat any female patients without a female employee who is a health care professional licensed by the Department of Professional Regulation present in the room.
Respondent must complete the continuing medical education course offered by the University of South Florida and the Florida Medical Association entitled, "Protecting Your Medical Practice: Clinical, Legal, and Ethical Issues in Prescribing Abusable Drugs," or an equivalent course approved by the Board.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 19th day of December, 1991.
BOARD OF MEDICINE
ZACHARIAH P. ZACHARIAH, M.D. CHAIRMAN
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Bret L. Lusskin, M.D., 1920 East Hallendale Beach Boulevard, Suite 502, Hallendale, Florida 33009 and David Bogenschutz, Attorney at Law, 633 Southeast 3rd Avenue, Fort Lauderdale, Florida 33301, by
U.S. Mail to Linda M. Rigot, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this day of
, 1991
| Issue Date | Proceedings |
|---|---|
| Mar. 17, 1992 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Feb. 27, 1992 | Final Order filed. |
| Nov. 12, 1991 | (DPR) Motion for Final Order filed. |
| Oct. 18, 1991 | Recommended Order sent out. CASE CLOSED. Hearing held 6/27/91. |
| Oct. 09, 1991 | Deposition of Gary J. Rosenberg (Exhibit-3) w/cover ltr filed. |
| Oct. 07, 1991 | Petitioner`s Proposed Recommended Order & cover letter from D. Bogenschutz filed. |
| Oct. 07, 1991 | (Respondent) Report and Recommendation of Referee filed. |
| Sep. 26, 1991 | Notice of Filing Deposition; Deposition of Sheryl Vienneau filed. |
| Sep. 03, 1991 | Petitioner`s Exhibits; Cover Letter to LMR from L. Roeser filed. |
| Aug. 30, 1991 | Deposition of Gary J. Rosenberg w/cover ltr filed. (From Mary Radkins) |
| Aug. 23, 1991 | Letter to Parties of Record from LMR sent out. (RE: Case status). |
| Aug. 14, 1991 | (Respondent) Motion for Extension of Time filed. (From J. David Bogenschutz) |
| Aug. 12, 1991 | Order Extending Time sent out. (proposed Recommended Order`s due 8/31/91) |
| Aug. 09, 1991 | (Respondent) Motion for Extension of Time filed. |
| Aug. 08, 1991 | Petitioner`s Motion for Extension of Time filed. (From Mary Radkins) |
| Jul. 31, 1991 | Transcript (Volumes 1&2) filed. |
| Jun. 05, 1991 | Motion to Consolidate filed. (from M. B. Radkins) |
| Apr. 09, 1991 | Order Rescheduling Hearing sent out. (hearing rescheduled for June 27-28, 1991; 8:30am; Ft Lauderdale) |
| Apr. 04, 1991 | Petitioners Request for Alternative Hearing Date filed. |
| Mar. 12, 1991 | Re-Notice of Hearing sent out. (hearing set for 5/1-2/91; at 8:30am;in Ft Lauderdale) |
| Feb. 12, 1991 | Order (Hearing cancelled, and will be rescheduled by separate Notice of hearing) sent out. |
| Feb. 01, 1991 | (Respondent) Notice of Conflict and Request for Hearing to Be Reset filed. (From J. David Bogenschutz) |
| Nov. 29, 1990 | Order Rescheduling Hearing sent out. (hearing rescheduled for March 18-22, 1991: 10:00 am: Fort Lauderdale) |
| Oct. 26, 1990 | (Petitioner) Motion to Reset Hearing Date filed. (from Mary B. Radkins) |
| Oct. 12, 1990 | Order Reopening File sent out. |
| Oct. 12, 1990 | Notice of Hearing sent out. (hearing set for Feb. 4-8, 1991: 10:00 am: Fort Lauderdale) |
| Sep. 21, 1990 | Notice of Substitution of Counsel & Motion to Reopen File filed. (From Mary B. Radkins) |
| Sep. 18, 1990 | Order Closing File sent out. CASE CLOSED-Parties` failure to comply with June 22, 1990 Order. |
| Jun. 22, 1990 | Order of Continuance (parties to respond by 9/3/90) sent out. |
| Jun. 21, 1990 | (DPR) Motion for Continuance filed. (From Joseph Harrison) |
| May 30, 1990 | Second Notice of Hearing sent out. (hearing set for June 25-29, 1990; 10:00; Ft Lauderdale) |
| May 24, 1990 | Amended Notice of Hearing sent out. (hearing set for June 5-8, 1990; 10:00; Ft Lauderdale) |
| May 23, 1990 | Order sent out. (denying Petitioner`s Motion for Leave to amend Administrative Complaint) |
| May 11, 1990 | (DPR) Motion to Amend Administrative Complaint & attached Administrative Complaint filed. (from Joseph Harrison) |
| May 02, 1990 | Respondent`s First Witness List & Documentary Evidence filed. (from J. David Bogenschutz) |
| Apr. 02, 1990 | Notice of Hearing sent out. (hearing set for June 5-7, 1990; 10:00; Ft. Laud) |
| Mar. 30, 1990 | (Respondent) Response to Initial Order filed. |
| Mar. 23, 1990 | (Petitioner) Response to Initial Order filed. |
| Mar. 14, 1990 | Initial Order issued. |
| Mar. 08, 1990 | Referral Letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 19, 1991 | Agency Final Order | |
| Oct. 18, 1991 | Recommended Order | Failure of proof that physician wrote subject prescriptions or that physi- cian initiated or caused sexual encounter with patient who seduced him. |
