STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 90-2320

) DPR CASE NO. 0095012

TERRENCE E. MURPHY, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Following the provision of notice, a formal hearing was held in this case on August 6, 1990, in Tallahassee, Florida, in the offices of the Division of Administrative Hearings. Authority for the conduct of the hearing is set forth in Section 120.57(1), Florida Statutes. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Wellington H. Meffert, II, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Neil H. Butler, Esquire

911 East Park Avenue Tallahassee, Florida 32301

STATEMENT OF ISSUES

The issues to be considered concern the attempt by Petitioner to take disciplinary action against Respondent for violation of Section 458.331(1)(b), Florida Statutes, premised upon action that had been taken by the Medical Licensure Commission of the State of Alabama through a consent order. The action in Alabama was for violations of Section 34-24-360(8), Code of Alabama. The disposition pursuant to the consent order, briefly stated was: (a) Suspension of Respondent's license to practice for a period one year, (b) a fine in the amount of $500, and (c) upon the expiration of the suspension a period of probation.

PRELIMINARY STATEMENT

Petitioner charged Respondent under a nine count administrative complaint dated November 30, 1989. Count 9 to the administrative complaint concerned the Alabama discipline referred to in the Statement of Issues. In response to the changes Respondent sought a formal hearing under Section 120.57(1), Florida Statutes. The matter was referred to the Division of Administrative Hearings for that hearing.

The hearing was initially scheduled to be heard on July 20 and 26, 1990.

The case was reset for August 6 and 7, 1990, because of travel problems experienced by Respondent. The hearing was concluded on August 6, 1990.

On July 13, 1990, Petitioner's counsel had moved to amend the administrative complaint by deleting Counts 1-7. That motion was granted, and the hearing proceeded as an examination of the original counts 8 and 9 to the administrative complaint which became Counts 1 and 2 to the amended administrative complaint.

At hearing, Petitioner presented the testimony of William B. Lemocks, Debra Nelson, and Rebecca Doughty. Three exhibits were offered by Petitioner, and they were admitted. Respondent testified and presented the testimony of Nicholas Yonclas and Robert M. Murphy. Four exhibits were presented by Respondent. All exhibits were admitted with the exception of Exhibit 2.

Respondent, in the course of the final hearing, attempted to address the substance of the allegations in the disciplinary action in Alabama. This prompted the hearing officer to allow the record to remain open for the Petitioner to be able to pursue evidence which might tend to rebut the substantive testimony by Respondent. This was to be achieved by use of depositions. Other opportunities were presented to the parties to advance their respective positions in this case beyond August 6, 1990, the date for final hearing.

In an attempt to carry forward the opportunities to present information concerning the Alabama disciplinary proceeding, Petitioner moved to compel a waiver of Respondent's confidentiality concerning materials held by the Alabama Medical Licensure Commission and to extend post hearing deadlines. An order was entered on August 17, 1990, extending the deadlines. On August 29, 1990, an order was entered on the waiver of confidentiality.

By correspondence of August 28, 1990, received by the Division of Administrative Hearings on August 30, 1990, Respondent's counsel referred to the order of August 17, 1990. In this correspondence, it was noted that the Respondent had not responded to the motion to compel waiver of confidentiality because the parties had verbally agreed to settle the action. Under the circumstances, Respondent's counsel thought that Petitioner's counsel would advise the hearing officer of that settlement. The letter goes on to describe the expectation that the stipulation between the parties would be concluded within the week.

On August 30, 1990, as received by the Division of Administrative Hearings on September 4, 1990, counsel for Petitioner wrote the Hearing Officer confirming that a stipulation was in the works, but had not been executed by the Respondent to date. That letter noted that if Petitioner's failure to clearly

represent the pendency of the settlement had precluded Respondent's reply to the motion to compel waiver of confidentiality, Petitioner would not oppose a response at some later time.

On August 30, 1990, Petitioner's counsel also wrote to counsel for Respondent, a copy of which was received by the Division of Administrative Hearings on September 4, 1990. In this letter, discussion is made concerning the possibility of settlement and the authority which Petitioner's counsel had to conclude this settlement.

On September 20, 1990, counsel for Respondent wrote to apprise the Hearing Officer of the status of the case. This letter was received on September 24, 1990. That correspondence suggested the procedures which counsel had in mind for concluding this case. It related that the Petitioner was to file a motion to offer a further amendment to the complaint to drop the first count leaving only the matter of the Alabama disciplinary action to be considered. It went on to describe that the Respondent intended to file an answer which admitted that his Alabama license had been acted against by the State of Alabama, and that as a consequence this constituted a violation of Section 458.331(1)(b), Florida Statutes. The letter points out that the parties would desire to offer proposed recommended orders on or before October 10, 1990. Those proposed recommended orders were designed to address the appropriate penalty that would be recommended to the Board of Medicine. This contact was consented to by counsel for Petitioner. In the face of that correspondence, an order was entered on September 26, 1990, which accepted the proposed arrangements by the parties.

As promised, a motion to amend the administrative complaint was made by the Petitioner dated September 25, 1990, which attached a proposed second amended administrative complaint of that same date. On September 27, 1990, Respondent filed his response to the second amended administrative complaint. That response was received by the Division of Administrative Hearings on the same date. In the response, Respondent reiterated his agreement to allow the amendment. He acknowledged that he had entered into a stipulation and consent order on or about October 26, 1988, with the Medical License Commission of the State of Alabama. Respondent admits that the stipulation and consent order constituted a violation of Section 458.331(1)(b), Florida Statutes, as alleged in the remaining count of the present administrative complaint. He goes on to say that he had denied the substance of the allegations in the Alabama disciplinary manner and would continue to deny the substance as it pertained to the Florida case. Nonetheless, he did not attack the stipulation and consent order for the purpose of admitting that by its entry he has violated Section 458.338(1)(b), Florida Statutes. He wanted it realized that the situation in Alabama was a plea of convenience upon advice of the medical licensing authorities in another state. This refers to the State of Oklahoma as set out in the transcript of the present hearing. Respondent contends that this arrangement was one which would facilitate his licensure in Oklahoma. In his response, Respondent asked that the hearing officer and the Board of Medicine look at the terms of the stipulation and consent order and the Respondent's position regarding that matter as a means to mitigate penalties against him in Florida that are based upon the action taken in Alabama.

By eliminating all counts save the Alabama disciplinary matter, only Petitioner's Exhibits 1 and 2 will pertain to the disposition of this case, together with Respondent's Exhibit 3. Concerning testimony, only that portion of the testimony set out in the transcript which speaks to the Alabama disciplinary case would have pertinence.

The parties met the deadline for offering proposed recommended orders. Both parties presented proposed recommended orders. The proposed facts set forth in those submissions have been examined and are commented on in the appendix to this recommended order.

FINDINGS OF FACT

1. On August 7, 1987, Respondent was issued a license to practice medicine in the State of Florida. That license number is ME0051286. Respondent failed to renew his license at the appropriate time, and his license became inactive on December 31, 1989. If he fails to take any further action to renew his license before December 31, 1991, the license will move from an inactive status to a void status.

   
   

2. At present, Respondent is a resident of Stillwater, Oklahoma. He practices medicine in Oklahoma under a license from that state.

   
   

3. Respondent attended the University of North Dakota and the University of Oklahoma in gaining his medical education. He interned at Thomasen General Hospital in El Paso, Texas, and completed a year of residency at Central State Hospital in Norman, Oklahoma.

   
   

4. Concerning his practice in Florida, no indication was given a hearing that he had ever practiced medicine in Florida before becoming licensed in this state, nor that he had practiced medicine in Florida at a time his Florida license was inactive.

   
   

5. On June 20, 1988, the Alabama State Board of Medical Examiners brought an action against Respondent before the Medical Licensure Commission of the State of Alabama. That administrative complaint and the ultimate disposition of that case may be found in Petitioner's Composite Exhibit 1. The Alabama administrative complaint charged the Respondent with practicing medicine in a manner such as to endanger the health of his patients; prescribing, dispensing, furnishing, or supplying controlled substances to persons other than for legitimate purposes; aiding and abetting the practice of medicine by a person not licensed; refusal to appear before the Board of Medical Examiners after having been formally requested to do so in writing; having had his staff privileges in Jay, Florida, removed for lack of medical competence, moral turpitude, or drug or alcohol abuse; being unable to practice medicine with reasonable skill and safety due to excessive use of drugs, narcotics, alcohol, chemicals or other substances and having engaged in immoral, unprofessional or dishonorable conduct as defined in the rules and regulations of the Medical Licensure Commission of Alabama. The administrative complaint goes on to describe the factual basis for the allegations. The administrative complaint was accompanied by an order temporarily suspending his license and setting a hearing to have the Respondent answer the allegations of the administrative complaint.

   
   

6. The Alabama case was concluded based upon a stipulation of October 11, 1988, calling for the entry of a consent order. That consent order was entered on October 26, 1988. (On the subject of the failure to appear before the State Board of Medical Examiners in Alabama, it was determined that Respondent had not received the notice requiring his appearance and could not be said to have refused to make that appearance. This pertains to allegations at paragraph 2d of the administrative complaint in Alabama. The explanation of this matter is

   further explained in Respondent's Exhibit 3, correspondence from a staff attorney from the Alabama Board of Medical Examiners directed to counsel for Respondent.)

   
   

7. The salient features of the stipulation include the Respondent's admission that the allegation in paragraphs 3 through 31 of the administrative complaint were true to the extent that persons named there were furnished with prescriptions for the specified controlled substances. On the other hand, Respondent denied that the prescribing of the controlled substances was for other than legitimate purposes and that the amounts supplied were for other than reasonable use. He consented to the entry of the consent order attached to the stipulation as it pertained to paragraphs 3 through 31. Respondent admitted the allegations in paragraph 36a in his refusal to submit to blood or urine screen without advice of counsel. The parties did stipulate that Respondent submitted to a blood and urine screening at a later date and that the results were negative. As to the balance of the allegations in the administrative complaint, the Respondent neither admitted or denied those matters and went on to agree to submission of the stipulation and consent order without further adjudication of the allegations contained in paragraphs 32, 33, 34, 35, 36(b), 36(c) and 37 of the Administrative Complaint. The Board of Medical Examiners for its part, as stated in the stipulation, felt that the case could be reasonably disposed of under the terms of the agreement without the necessity of making any further findings of fact or adjudication of the facts with respect to the allegations.

   
   

8. As part of his agreement, Respondent promised to render cooperation to the Alabama Board of Medical Examiners and the Medical Licensure Commission, in particular as it related to reports and evaluations by a board certified psychiatrist and another individual who held a Ph.D. and J.D., advisers to the Oklahoma Medical Licensing Board. Those evaluations included blood and urine sampling for a period of 45 days. The Alabama authorities in the agreement held Respondent accountable for complying with the matters set forth in this paragraph five to the stipulation upon pain of revocation of his Alabama license.

9 The consent order states that based upon the facts set forth in the administrative complaint and the stipulation that the Medical Licensing Commission made findings of multiple violations of Section 34-24-360(a), Code of Alabama 1975). The reference to paragraph 2b in the consent order is one which appears to have been reconciled concerning his failure to appear before the Board of Medical Examiners as spoken to in paragraph 2d of the administrative complaint previously described. Through the consent order, the Alabama Medical License Commission reserved jurisdiction to determine the issue of whether or not Respondent is capable of practicing medicine in Alabama with reasonable skill and safety to patients associated with inebriation or the excessive use of drugs, narcotics, alcohol, chemicals, or other substances.

1. The discipline that was imposed is that described in the Statement of Issues and more completely described in Petitioner's Exhibit 1 admitted into evidence. Page three of that discipline announced in the consent order is missing in the exhibit that was offered. That does not prohibit a sufficient impression of the events in Alabama to aid in addressing the Florida prosecution.

   
   

2. The consent order reminded the Respondent that if he violated his probation, he would be subject to suspension or revocation for such violation, and it reserved jurisdiction to enter further orders or directives that might be required to implement the terms of its consent order.

3. At the final hearing in this cause, Respondent continued to factually deny that he had prescribed, dispensed, furnished or supplied controlled substances to persons for other than legitimate medical purposes, a violation of Section 34-24-360(a), Code of Alabama (1975), and the basis for disposition by a consent order.

   
   

4. Respondent and his father in their testimony at hearing indicated that the reason for not defending the Alabama charges was principally in order to facilitate the Respondent's readmission to practice medicine in Oklahoma. In the arrangement to settle the Alabama case, they were not thinking about his license in Florida.

   
   

5. Respondent's position on the effect of the Alabama disciplinary action as it pertains to his acknowledged violation of Section 458.331(1)(b), Florida Statutes, is announced in his response to the second administrative complaint described in the Preliminary Statement and acknowledged by the present reference in these Findings of Fact.

   
   

6. There was no indication provided at hearing that the Respondent has failed to abide by the terms of the stipulation and consent order that he entered into in Alabama.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

   
   

8. In the second amended administrative complaint, Petitioner charges Respondent with having violated Section 458.331(1)(b), Florida Statutes.

   
   

9. Respondent concedes that his stipulation to a consent order in Alabama in which he acknowledges the violation of Section 34-24-360(8), Code of Alabama (1975), promotes a violation of Section 458.331(1)(b), Florida Statutes, as a matter of law. What remains to be determined is the appropriate penalty to be imposed under the circumstances.

   
   

10. Section 458.331(2), Florida Statutes, identifies the powers reposed in the Board of Medicine in the imposition of discipline. To assist in that process, Rule 21M-20.001(b), Florida Administrative Code, has been enacted to provide guidelines for responding to a violation of Section 458.331(1)(b), Florida Statutes. The rule states that discipline may range:

    
    

    From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $250 to $5000.

11. Although the parties in the final analysis modified their positions on the issue of the opportunity to advance affirmative proof related to the underlying factual allegations that form the basis of the portion of the Alabama administrative complaint that remained when the consent order was entered into, that is to say those violations associated with Section 34-24-360(8), Code of Alabama (1975), the terms of the consent order and resulting posture which the Respondent was in at the Florida hearing found the Respondent specifically denying the underlying factual allegations. Having been presented with no specific evidential presentation, findings of fact or concession of facts which would create an impression of the events in Alabama for which he was disciplined, it is difficult to gain a sense of how Florida would have responded to a similar violation occurring in Florida as contemplated by the disciplinary guidelines, other than to note that the Alabama disciplinary provision appears to be similar to Section 458.331(1)(a), Florida Statutes. This idea of discipline would include the possible management of his practice in Florida while he was under probation. In that connection, this is a circumstance in which he does not appear to be interested in the Florida license, having allowed his Florida license to lapse into delinquency and having taken up his practice in Oklahoma. Not being confident of the nature of the underlying facts in the violations that he has been accused of in Alabama and given the willingness of that jurisdiction to allow the Respondent to deny any wrong doing from a factual point of view as a means to dispose of their case, the reasonable disposition of the present action would be by the imposition of an administrative fine. See Sakhuja v. Department of Professional Regulation, 15 FLW 2533 (1 DCA October 10, 1990). See also, Department of Professional Regulation, Board of Medicine v. Henry R. Messer, M.D., DOAH Case No. 90-0545 (R.O. June 26, 1990, and F.O. August 16, 1990).

RECOMMENDATION

Based upon the consideration of the facts, and in view of the conclusions of law, it is,

RECOMMENDED:

That a Final Order be entered which fines Respondent in the amount of $500 for violation of Section 458.331(1)(b), Florida Statutes.

DONE and ENTERED this 31st day of October, 1990, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 31st day of October, 1990.

APPENDIX

The following discussion is given concerning the proposed facts of the parties:

Petitioner's Facts:

1-4. Subordinate to facts found.

1. Irrelevant.

2. Subordinate to facts found.

7, to include a-c. Subordinate to facts found. 7d. Not accepted in that the information set out

in that subparagraph was not provided with Petitioner's Composite Exhibit 1.

1. Subordinate to facts found.

2. Irrelevant.

3. Subordinate to facts found.

4. Subordinate to facts found, with the exception that the Respondent and his attorneys were considering the effect of the Alabama disciplinary action on a license to practice in Oklahoma.

Respondent's Facts:

1-10. Subordinate to facts found.

1. The first sentence of paragraph 11 constitutes legal argument. The remaining sentences in paragraph 11 are subordinate to facts found.

2. Subordinate to facts found.

COPIES FURNISHED:

Wellington H. Meffert, II, Esquire Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Neil H. Butler, Esquire 911 East Park Avenue Tallahassee, FL 32301

Dorothy Faircloth Executive Director

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Kenneth E. Easley General Counsel

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

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 consult with 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.

Docket for Case No: 90-002320

Orders for Case No: 90-002320