STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NOS. 90-3126
) 90-4781
WILLIAM DANA HOLTON, JR., )
and P.A., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly designated Hearing Officer, Diane Cleavinger, on December 19, 1990, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Francesca Small
Senior Attorney
Department of Professional Regulation 1940 N. Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Alfred Shuler, Esquire
Post Office Box 850 Apalachicola, Florida 32320
STATEMENT OF THE ISSUES
Whether disciplinary action should be taken against Respondent's license to practice as an osteopathic physician's assistant and/or a physician's assistant, based on alleged violations of Section 459.015(1)(n), (x), and (cc) and 458.331(1)(s), (v), and (x), Florida Statutes.
PRELIMINARY STATEMENT
On January 12, 1990, the Board's of Medicine and Osteopathic Medicine temporarily suspended Respondent's licenses to practice as an osteopathic physician's assistant and as a physician's assistant. Respondent's licenses remain suspended to this date and Respondent has not engaged in the practice of his profession since the effective date of the suspension.
On April 2, 1990, the Petitioner filed an Administrative Complaint, DPR Case Number 89-012791, against Respondent alleging that Respondent's osteopathic physician's assistant license should be disciplined for alleged violations of Chapter 459, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent's license should be disciplined for violating Section
459.015(1)(x), Florida Statutes, in that he was unable to practice osteopathic medicine with reasonable skill and safety by reason of impairment due to the use of alcohol, drugs, narcotics, or chemicals, or due to a mental or physical condition; violating Section 459.015(1)(cc), Florida Statutes, in that he violated a rule of the board or department by violating Rule 21R-6.005(b), Florida Administrative Code, by making final diagnoses and prescribing medicinal drugs outside the direction or supervision of an osteopathic physician licensed by the Board; and violating Section 459.015(1)(n), Florida Statutes, in that he made deceptive, untrue, or fraudulent representations in the practice of osteopathic medicine or employed a trick or scheme in the practice of osteopathic medicine.
On February 2, 1990, the Petitioner filed a second Administrative Complaint, DPR Case Number 89-04859, against the Respondent alleging that his physician's assistant license should be disciplined for alleged violations of Chapter 458, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent's license should be disciplined for violating Section 458.331(1)(s), Florida Statutes, by being unable to practice medicine with reasonable skill and safety by reason of impairment due to the use of alcohol, drugs, narcotics, chemicals, or due to a mental or physical condition; violating Section 458.331(1)(v), Florida Statutes, by practicing beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform; and violating Section 458.331(1)(x), Florida Statutes, by violating Rule 21M- 17.006(1)(b), Florida Administrative Code, by performing other than at the direction and under the supervision of a physician licensed by the board.
At the hearing, Petitioner presented the testimony of five witnesses and presented the depositions of Emily Dinkins and Maximo Velasco, M.D. Additionally, Petitioner offered fifteen exhibits into evidence. Respondent testified in his own behalf and presented the testimony of three witnesses.
Additionally, Respondent offered three exhibits into evidence.
Petitioner and Respondent filed Proposed Recommended Orders on January 18, 1991 and January 30, 1991, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cummulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.
FINDINGS OF FACT
Respondent, William Dana Holton, is a licensed osteopathic physician's assistant in Florida, holding license numbers OA 0000027 and OA 0000097. Additionally, Respondent is a licensed physician's assistant in Florida, holding license number PA 0001538.
For several years, Respondent has been experiencing a great deal of chronic pain associated with his back. Because of this pain, Respondent obtained a number of prescriptions for pain killers and muscle relaxers from various physicians.
From May, 1989, through October, 1989, Respondent obtained a variety of medicinal drugs, in various amounts and dosages from two different pharmacies. The majority of these prescriptions were for pain killers. The Respondent represented to each pharmacist that the prescriptions had been authorized by a
certain physician. The type of drug, quantity obtained, dosage, date obtained, pharmacist involved, and physician represented as the prescribing physician are as follows:
Substance Amount Dosage Date Pharmacist Physician
Anexsia | 30 | 7.5 | mg | 5-18-89 | Lanier | Velasco |
Anexsia | 30 | 7.5 | mg | 5-29-89 | Lanier | Velasco |
Anexsia | 30 | 7.5 | mg | 6-08-89 | Lanier | Velasco |
Anexsia | 30 | 7.5 | mg | 6-13-89 | Lanier | Velasco |
Diazepam | 20 | 5.0 | mg | 5-18-89 | Lanier | Velasco |
Diazepam | 20 | 5.0 | mg | 5-29-89 | Lanier | Velasco |
Diazepam | 20 | 5.0 | mg | 6-13-89 | Lanier | Velasco |
Anexsia | 50 | 7.5 | mg | 6-27-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 7-05-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 7-14-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 7-24-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 7-31-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 8-07-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 8-14-89 | Lanier | Noblejas |
Donnatal | ||||||
Elixer | 4 oz. | 8-07-89 | Lanier | Noblejas | ||
Anexsia | 50 | 7.5 | mg | 8-21-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 8-29-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 9-02-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 9-08-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 9-14-89 | Lanier | Noblejas |
Anexsia | 50 | 7.5 | mg | 9-23-89 | Lanier | Noblejas |
Diazepam | 20 | 5.0 | mg | 8-21-89 | Lanier | Velasco |
Diazepam | 20 | 5.0 | mg | 9-02-89 | Lanier | Velasco |
Diazepam | 20 | 5.0 | mg | 9-14-89 | Lanier | Velasco |
Diazepam | 20 | 5.0 | mg | 9-23-89 | Lanier | Velasco |
Anexsia | 50 | 7.5 | mg | 9-28-89 | Lanier | Levinson |
Anexsia | 50 | 7.5 | mg | 10-05-89 | Lanier | Levinson |
Anexsia | 50 | 7.5 | mg | 10-16-89 | Lanier | Levinson |
Anexsia | 30 | 7.5 | mg | 12-28-89 | Hill | Serrebutra |
Anexsia | 30 | 7.5 | mg | 01-12-89 | Hill | Serrebutra |
Anexsia | 15 | 7.5 | mg | 03-01-90 | Hill | Serrebutra |
Anexsia | 30 | 7.5 | mg | 03-09-90 | Hill | Velasco |
Anexsia | 30 | 7.5 | mg | 03-29-90 | Hill | Velasco |
Diazepam | 30 | 5.0 | mg | 03-29-90 | Hill | Velasco |
Zydone | 30 | 7.5 | mg | 05-02-90 | Hill | Velasco |
Zydone | 31 | 7.5 | mg | 05-31-90 | Hill | Velasco |
Anexsia | 30 | 7.5 | mg | 06-06-90 | Hill | Velasco |
Zydone | 31 | 7.5 | mg | 06-30-90 | Hill | Velasco |
Vicodin | 50 | 5.0 | mg | 07-01-90 | Hill | Noblejas |
Anexsia is a pain killer. Diazepam is the generic name for Valium. Donnatal Elixer is a muscle relaxant. Zydone is chemically equivalent to Anexsia and is a pain killer. Vicodin is similar to Anexsia and is a pain killer. All of the drugs are controlled substances.
Except for Dr. Levinson, the evidence demonstrated that the listed physicians prescribed the relevant medications to Respondent and that these prescriptions were filled pursuant to those physician's prescriptions. However, the evidence clearly demonstrated that Dr. Levinson did not authorize any of the prescriptions listed in paragraph 3. Respondent believed that Dr. Levinson had
authorized the prescriptions listed by his name via a general protocol for such treatment. However, such a belief does not equal an express prescription of a controlled substance by a physician and should not have been used by Respondent to obtain the drugs listed above. In essence, Respondent was prescribing medications for himself in violation of Section 459.015(1)(cc) and Rule 21R- 6.005(b) Florida Administration Code, and Section 458.331(1)(v), Florida Statutes.
Sometime between September 26, 1989, and October 19, 1989, Dr. Dana Levinson saw Respondent at the Wellsprings Clinic in Carrabelle, Florida. The visit occurred on a weekend after Respondent had seen several patients during the day. Dr. Levinson observed that Respondent's speech was slurred, his hands were trembling and his pupils were small. Dr. Levinson, an osteopathic physician was of the opinion that the Respondent was under the influence of a narcotic or depressant drug.
On October 21, 1989, Respondent was unable to have his prescription for Anexsia from Dr. Velasco filled at the pharmacy which had the prescription on file. The pharmacy was closed for the evening. Because Respondent felt he needed the pain killer for his pain and was unable to think clearly because of the excessive amounts of medications he was taking, 1/ he devised a scheme for obtaining the drug from another pharmacy.
On October 21, 1989, the Respondent phoned in a prescription for Anexsia in the name of Emily Dinkins to the Eckerds Pharmacy located at 2526 South Monroe Street, Tallahassee, Florida. The Respondent told the pharmacist that the prescription had been authorized by Dr. Levinson. Dr. Levinson had not authorized the prescription. The prescription was intended by Respondent to be for his own use. Respondent instructed Emily Dinkins to go into Eckerds and pick up the prescription that he had ordered. He did not tell her that the prescription was in her name. Respondent was arrested on October 21, 1989, at the pharmacy for fraudulently trying to obtain a prescription. The charges were later dismissed.
The incident on October 21, 1989 and Dr. Levinson's observation of Respondent clearly demonstrate that Respondent was taking enough medication to impair his ability to practice his profession and think clearly. Because Respondent was impaired, his continuing to practice during September and October, 1989, constituted a very serious violation of Section 459.015(1)(x), Florida Statutes, and Section 458.331(1)(s), Florida Statutes.
Additionally, there is no doubt that Respondent attempted to utilize a trick or scheme in the practice of his profession and in pursuit of that scheme, on October 21, 1989, made a false statement to the Eckerd's pharmacist. It is immaterial that the criminal charges were dismissed. Such activity on Respondent's part is a serious violation of Section 459.015(1)(n), Florida Statutes, and Section 458.331(1)(v) and (x), Florida Statutes.
After his arrest on October 21, 1989, the Respondent entered an inpatient drug treatment program. Against medical advice, Respondent left the program after only four weeks. However, Respondent continued out patient drug treatment. The outpatient treatment was telephonically approved by Dr. Goetz, the physician who oversees the impaired practitioners program. Respondent has not since entered any other inpatient drug treatment program, but has ceased taking the medication referenced above. Respondent now controls his back pain with aspirin and appears to again be in control of his life.
To practice as a physician's assistant a licensee is required to have a supervising physician or osteopathic physician. From August 1, 1988 to January 19, 1989, the Respondent's supervising physician was Dr. Chai Serrebutra, M.D.. Between April 20, 1989, and June, 1989, the Respondent's supervising physician was Dr. Maximo Velasco, M.D.. The evidence, and in particular the insurance claim forms, does not support Respondent's contention that Dr. Velasco began supervising Respondent earlier than April 20, 1989. Dr. Velasco signed these claim forms for the Wellsprings Clinic. The earliest signature date for Dr. Velasco was April 20, 1989. On that date, Dr. Velasco signed several forms for treatment which had been rendered to various patients prior to April 20, 1989. However, the treatment given these patients occurred during a time when Dr. Serrebutra was Respondent's supervising physician and in fact had both directly and indirectly supervised Respondent. Therefore, the evidence did not demonstrate that Respondent had treated any patients while he was unsupervised during this interim period.
Between May 1, 1989 and May 12, 1989, Dr. Velasco was in Omaha, Nebraska. During the time that Dr. Velasco was in Omaha, Nebraska, Respondent treated several patients at the Wellsprings Clinic in Carrabelle, Florida.
The patients and the dates they were treated by Respondent are as follows:
Patient's | Initials | Date |
E.M. | 5-2-89 | |
J.S. | 5-2-89 | |
J.M. | 5-2-89 | |
J.E. | 5-4-89 | |
F.M. | 5-4-89 | |
S.B. | 5-4-89 | |
A.B. | 5-4-89 | |
N.N. | 5-4-89 | |
M.B. | 5-4-89 | |
L.M. | 5-4-89 | |
S.S. | 5-4-89 | |
A.J. | 5-4-89 | |
L.W. | 5-4-89 | |
L.W. | 5-4-89 | |
T.T. | 5-5-89 | |
D.B. | 5-6-89 | |
D.H. | 5-6-89 | |
W.B. | 5-6-89 | |
V.M. | 5-6-89 | |
P.W. | 5-6-89 | |
A.C. | 5-8-89 | |
L.L. | 5-8-89 | |
L.T. | 5-8-89 | |
W.J. | 5-8-89 | |
L.T. | 5-8-89 | |
J.T. | 5-8-89 | |
R.P. | 5-8-89 | |
E.H. | 5-9-89 | |
M.W. | 5-9-89 | |
D.T. | 5-9-89 | |
M.R. | 5-11-89 | |
T.T. | 5-11-89 | |
C.B. | 5-11-89 | |
G.E. | 5-11-89 |
M.R. | 5-11-89 |
M.W. | 5-11-89 |
T.R. | 5-11-89 |
R.H. | 5-11-89 |
L.M. | 5-11-89 |
J.J. | 5-12-89 |
C.S. | 5-12-89 |
R.M. | 5-12-89 |
R.L. | 5-12-89 |
T.R. | 5-12-89 |
C.B. | 5-12-89 |
C.J. | 5-12-89 |
S.C. | 5-12-89 |
W.J. | 5-12-89 |
While Dr. Velasco was in Omaha, Nebraska, the Respondent talked to him for five minutes or less by telephone. The Respondent and Dr. Velasco did not discuss specific cases during this telephone conversation.
In each case, a preliminary final diagnosis was made by Respondent. The diagnoses were made by the Respondent without direct supervision by Dr. Velasco, Respondent's supervising physician. The preliminary final diagnoses were made pursuant to general unwritten protocols established by Dr. Velasco and were well within Respondent's training, competence and skill. The evidence did not demonstrate tht any treatment of these patients required any direct intervention from the doctor or that such direct supervision was requried. To that extent the preliminary final diagnoses were made at the direction of Respondent's supervising physician and were within the parameters of Chapter 458 and 459, Florida Statutes and Rules 21M-17.001(6), 21M-17.012 and 21R-6, Florida Administrative Code.
Between September 26, 1989, and October 19, 1989, Dr. Dana Levinson was the Respondent's supervising osteopathic physician.
In early October, 1989, Respondent phoned K-Mart Pharmacy in Apalachicola and placed prescription orders for various medicinal drugs with the pharmacist, Beverly Kelley, for several different patients. The patients involved, drugs prescribed, and the dates of the prescriptions, were as follows:
Patient's Initials Drug Date
J.T. Tigan 10-11-89
J.T. Halcion 10-11-89
J.T. Anexsia 10-11-89
J.T. Valium 10-11-89
V.M. Flexeril 10-11-89
V.M. Anexsia 10-11-89
L.T. Halcion 10-11-89
L.T. Duricef 10-11-89
L.T. Valium 10-11-89
L.T. Phrenilin
Forte 10-11-89
L.T. Nucofed 10-11-89
L.H. Valium 10-11-89
L.H. Ionamin 10-11-89
T.T. Valium 10-14-89
T.S. Valium 10-14-89
The Respondent represented to Kelley that these prescriptions were authorized by Dr. Levinson. Dr. Levinson did not expressly authorize any of the prescriptions listed above and did not directly oversee the treatment and diagnosis of the patients.
Again, Respondent performed these patient services pursuant to unwritten general protocols everyone involved, including the supervising physician, seemed to take for granted that everybody had knowledge of. To Respondent's credit, neither Dr. Serrebutra, Velasco nor Levinson had problems with Respondent's treatment of any of the patients treated by Respondent and Respondent was generally viewed as a competent physician's assistant, able to handle routine matters through general protocols and without the immediate supervision or direction of a physician. The lack of immediate supervision or direction does not violate Chapter 458 or 459, Florida Statutes, or the rules promulgated thereto. What does constitute a violation of Chapter 458 and 459 is that, during Dr. Levinson's supervisory time period, Respondent's services included the prescription of controlled substances which had not been specifically ordered or requested by Dr. Levinson. Respondent's actions were due in part to the lack of any written protocols and a very vague and ill- defined understanding of Respondent's duties between Respondent and Dr. Levinson. 2/ Since a physician's assistant has no authority and is prohibited by Rule from prescribing medication to patients, Respondent's actions, violated Section 459.015(1)(cc), Florida Statutes and Section 458.331(1)(v) and (x), Florida Statutes. See Rule 21M-17.012(2)(a)(7)b., Florida Administrative Code and Rule 21R-6.010(7), Florida Administrative Code.
Petitioner has demonstrated by clear and convincing evidence that Respondent committed four violations in regards to his physician's assistant license and the same four violations in regards to his osteopathic physician's assistant license. The evidence did not demonstrate that an aggravated penalty should be imposed for any one of the violations. However, because of the number of violations, one composite penalty should be imposed for all the violations for each license. The composite penalty should not exceed the highest penalty which could be imposed for the most seriously penalized infraction under each Board's rules.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Chapter 458, Florida Statutes, is the statute regulating the licensing and disciplining of physician's assistants. Section 458.331, Florida Statutes, empowers the Board of Medicine to revoke, suspend or otherwise discipline the license of a physician's assistant forviolations of Chapter 458, Florida Statutes. Section 458.331(1) reads in pertinent part:
The following acts shall constitute grounds for disciplinary action...:
(s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals or any other type of material or as a result of any mental or physical condition.
(v) Practicing or offering to practice beyond the scope permitted by law or accepting and per- forming professional responsibilities which the licensee knows or has reason to know that he
is not competent to perform.
(x) Violating any ... rule of the board or department . . .
Chapter 459, Florida Statutes, is the statute regulating the licensing and discipline of osteopathic physician's assistants. Section 459.015, Florida Statutes, empowers the Board of Osteopathic Medicine to revoke, suspend or otherwise discipline the license of an osteopathic physician's assistant for violations of Chapter 459. Section 459.015(1), Florida Statutes, provides in pertinent part:
The following acts shall constitute grounds for disciplinary action...:
(n) Making deceptive, untrue or fraudulent representations in the practice of osteopathic medicine or employing a trick or scheme in the practice of osteopathic medicine.
(x) Being unable to practice osteopathic medi- cine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.
(cc) Violating any . . . rule of the board or department.
Rule 21M-17, Florida Administrative Code, was promulgated pursuant to Chapter 458, Florida Statutes and governs the licensing and practice of a physician's assistant. Rule 21M-17, Florida Administrative Code, provides in pertinent part:
21M-17.001 Definitions
The term "Primary Supervising Physician" as herein used refers to a physician licensed pursuant to Section 458.311 or Section 458.313, F.S., who assumes responsibility and legal liability for the services rendered by the physician assistant(s) at all times the physi- cian assistant is not under the supervision and control of an alternate supervising physician.
The term "Alternate Supervising Physician" as herein used refers to a physician(s) licensed pursuant to Section 458.311 or Section 458.313, F.S., who assumes responsibility and legal liability for the services rendered by the phy- sician assistant while the physician assistant is under his or her supervision and control.
The term "Physician Assistant" as herein used refers to health professionals who are functioning in a dependent relationship with a physician or group of physicians licensed by the board and who are performing tasks tradi- tionally performed by the physician.
The term "responsible supervision" as herein used refers to the ability of the super- vising physician to responsibly exercise control and provide direction over the services of the physician assistant. In providing supervision, the supervising physician shall periodically review the physician assistant's performance.
It requires the easy availability or physical presence of the supervising physician to the physician assistant. In determining whether supervision is adequate, the following factors should be considered: (1) the complexity of the task, (2) the risk to the patient, (3) the background, training and skill of the physician assistant, (4) the adequacy of the direction in terms of its form, (5) the setting in which the tasks are performed, (6) the availability of the supervising physician, (7) the necessity for immediate attention, and (8) the number of other persons that the supervising physician must supervise.
Direct supervision. The term "direct supervision" as herein used refers to the physical presence of the supervising physician on the premises so that the supervising physi- cian is immediately available to the physician assistant when needed.
Indirect Supervision. The term "indirect supervision" as herein used refers to the easy availability of the supervising physician to the physician assistant, which includes the ability to communicate by telecommunications. The supervising physician must be within rea- sonable physical proximity.
21M-17.006 Grounds for Discipline.
that the Physician Assistant has in fact performed otherwise than at the direction and under the supervision of a physician licensed by the Board;
that the Physician Assistant has performed a task or tasks beyond his competence or author- ization;
that the Physician Assistant is an habitual user of intoxicants or drugs or any chemical to such an extent that he is unable to perform competently and with safety to the patients in his capacity as a Physician Assistant;
that the Physician Assistant has failed to comply with any of the provisions of Chapter 458 or rules of the Board.
21M-17.012 Physician Assistant Performance.
A Supervising Physician shall delegate only tasks and procedures to the Physician Assistant which are within the Supervising Physician scope of practice. The Physician Assistant may work in any setting that is within the scope of practice of the Super-
vising Physician practice. The Supervising Physician scope of practice shall be defined for the purpose of this section as "those tasks and procedures which the Supervising Physician is qualified by training or exper- ience to perform."
The decision to permit the Physician Assistant to perform a task or procedure under direct or indirect supervision is made by the Supervising Physician based on reasonable medi- cal judgment regarding the probability of mor- bidity and mortality to the patient. Furthermore, the Supervising Physician must be certain that the Physician Assistant is knowledgeable and skilled in performing the tasks and procedures assigned.
The following list represents the suggested duties which include, but are not limited to,
the duties which may be performed in the practice settings identified below:
1. General duties which may be performed in a general practice, or in any specialty area in any practice setting under direct or in- direct supervision.
f. Administer medication upon request of supervising physician.
j. Order medication upon request of super- vising physician.
7.b. The following duties are not permitted to be delegated at all, except where expressly authorized by statute:
Prescribing, dispensing, or compounding medicinal drugs.
Final Diagnosis.
Rule 21R-6, Florida Administrative Code, was promulgated pursuant to Chapter 459, Florida Statutes, and governs the licensing and practice of an osteopathic physician's assistant. Rule 21R-6, Florida Administrative Code, provides in pertinent part:
21R-6.001 Definitions
The term "Primary Supervising Physician" as herein used refers to a physician licensed pursuant to Chapter 459, F.S., who assumes responsibility and legal liability for the services rendered by the physician assistant(s) at all times the physician assistant is not under the supervision and control of an alter- nate supervising physician.
The term "Alternate Supervising Physician" as herein used refers to the licensed physician who is responsible for the services rendered
by the physician assistant in the absence of the Supervising Physician, who is in solo practice.
The term "Physician Assistant" as herein used refers to allied health personnel who are
functioning in a dependent relationship with a physician or group of physicians licensed by the Board and who are performing tasks tradi- tionally performed by the physician.
The term "responsible supervision" as
used herein refers to the ability of the super- vising physician to responsibly exercise control and provide direction over the services of the physician assistant. In providing supervision, the supervising physician shall periodically review the physician assistant's performance.
Responsible supervision requires the easy avail- ability or physical presence of the supervising physician to the physician assistant. In deter- mining whether supervision is adequate, the fol- lowing factors should be considered: (1) the complexity of the task, (2) the risk to the patient, (3) the background, training and skill of the physician assistant, (4) the adequacy
of the direction in terms of its form, (5) the setting in which the tasks are performed, (6) the availability of the supervising physician,
the necessity for immediate attention, and
the number of other persons that the super- vising physician must supervise.
Direct supervision
The term "direct supervision" as used herein refers to the physical presence of the super- vising physician on the premises so that the supervising physician is immediately available to the physician assistant when needed.
Indirect supervision
The term "indirect supervision" as used herein refers to the easy availability of the super- vising physician to the physician assistant, which includes the ability to communicate by telecommunication. The supervising physician must be within reasonable physical proximity. 21R-6.005 Grounds for Discipline.
that the Physician Assistant has in fact performed otherwise than at the direction and under the supervision of a physician licensed by the Board;
that the Physician Assistant has performed a task or tasks beyond his competence or author- ization;
that the Physician Assistant is an habitual user of intoxicants or drugs or any chemical
to such an extent that he is unable to perform competently and with safety to the patients in his capacity as a Physician Assistant;
(f) that the Physician Assistant has failed
to comply with any of the provisions of Chapter
459 or the rules of the Board.
21R-6.010 Physician Assistant Performance.
A supervising physician shall delegate only tasks and procedures to the physician
assistant which are within the supervising phy- sician's scope of practice. The physician assistant may work in any setting that is with- in the scope of practice of the supervising phy- sician's scope of practice shall be defined for the purpose of this section as "those tasks and procedures which the supervising physician is qualified by training or experience to perform."
The decision to permit the physician assis- tant to perform a task or procedure under direct or indirect supervision is made by the super- vising physician based on reasonable medical judgment regarding the probability or morbidity and mortality to the patient. Furthermore,
the supervising physician must be certain that the physician assistant is knowledgeable and skilled in performing the tasks and procedures assigned.
(5) All tasks and procedures performed by the physician assistant must be documented in the appropriate medical record. The supervising physician must review, sign and date the phy- sician assistant record within a reasonable period of time.
The following duties are not permitted to be delegated at all except where expressly authorized by statute:
Prescribing, dispensing, or compounding medicinal drugs;
Final diagnosis.
Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). Therefore, the Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1st DCA 1987); See Addington v. Texas, 441 U.S. 426 (1979).
In this case, Petitioner has clearly and convincingly proved that Respondent violated Section 458.331(1)(s), (v) and (x) and 459.015(1)(n), (x) and (cc), Florida Statutes and Rule 21M-17 and Rule 21R-6, Florida Administrative Code. Therefore, Respondent is subject to discipline for these violations.
The disciplinary guidelines of the Board of Medicine are found at Rule 21M-20.001, Florida Administrative Code. Rule 21M-20.001, Florida Administrative Code, provides a range of penalties for violations of the various provisions of Chapter 458, Florida Statutes. For violations of Section 458.331(1)(s), Florida Statutes (impaired practitioners), Rule 21M-20.001(2)(s), Florida Administrative Code, provides:
From probation to denial or indefinite suspen- sion until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation, and an admini- strative fine from $250.00 to $5,000.00.
For violations of Section 458.331(1)(v), (practicing beyond the scope of law), Rule 21M-20.001(2)(v), Florida Administrative Code, provides:
From two (2) years suspension to revocation or denial, and an administrative fine from
$250.00 to $5,000.00.
For violations of Section 458.331(1)(x), (violation of a rule), Rule 21M- 20.001(2)(x), Florida Administrative Code, provides:
From a reprimand to revocation or denial, and
an administrative fine from $250.00 to $5,000.00.
The disciplinary guidelines of the Board of Osteopathic Medicine are found at Rule 21R-19.002, Florida Administrative Code. Rule 21R-19.002, Florida Administrative Code, provides a range of penalties for violations of the provisions of Chapter 459, Florida Statutes. For violation of Section 459.015(1)(n) (deceptive or untrue statements), Rule 21R-19.002(14), Florida Administrative Code, provides:
Fine up to $1,000 and letter of concern to reprimand and probation.
For violations of Section 459.015(1)(x) (impaired practitioner), Rule 21R- 19.002(24), Florida Administrative Code, provides:
Reprimand to suspension, which may be stayed to allow a period of probation with direct supervision, and a demonstration by licensee to Board of ability to practice with skill and safety. Fine of $1,000 and reprimand to pro- bation conditioned on continuing education.
For violations of Section 459.015(1)(cc) (violation of a rule), Rule 21R- 19.002(29), Florida Administrative Code provides:
If violation of law, penalty comparable to the law violated. If violation of Board rule or order or failure to comply with subpoena, fine and probation to revocation. Letter of concern to reprimand and $1,000 fine.
Aggravating and mitigating factors to be considered in determining an appropriate penalty contained in Rule 21M-20.001(3), Florida Administrative Code, include exposure of patient or public to injury or potential injury, the number of counts or separate offenses established and any other relevant mitigating factors.
Aggravating and mitigating factors to be considered in determining an appropriate penalty contained in Rule 21R-19.003, Florida Administrative Code, include the severity of the offenses, the danger to the public, the number of repetitions of offenses, the deterrent effect of the penalty imposed, the actual knowledge of the licensee pertaining to the violation and any other relevant mitigating factors.
These violations were all very serious and were all in part due to Respondent's impairment resulting from the excessive amounts of pain medication he was taking. To Respondent's credit, Respondent has removed that impairment and rehabilitated himself, and is not currently impaired.
However Respondent's rehabilitation is offset by the gravity of his activities on October 21, 1991, when Respondent, in an impaired state, made deceptive, untrue and fraudulent misrepresentations in the practice of osteopathic medicine and employed a trick or scheme in the practice of osteopathic medicine. This incident casts grave doubts on Respondent's character to practice his profession as either a physician's assistant or osteopathic physician's assistant.
In this case, the public was exposed to potential injury since Respondent was practicing while impaired through the excessive use of prescription drugs. However, no incompetence on Respondent's part was shown by the evidence. Additionally Respondent has successfully overcome his pre- existing impairment. Multiple separate counts and offenses have been established against Respondent. The most serious of these were the violations involving fraud and the prescription of medications to himself and other patients. The violation involving fraud were due in part to Respondent's impairment which as noted earlier has been removed. Additionally, Respondent had a lawful prescription for the medication he was attempting to obtain. Both of these factors serve to mitigate the seriousness of the fraud violation. Neither factor completely excuses Respondent's behavior and such behavior should be subject to a severe penalty under the Board's Rules, but should not be given an aggravated penalty. Respondent's prescription of medicine to patients was a rule violation. However, Respondent believed such prescriptions were authorized by the unwritten and unspecified general protocols he had with his supervising physicians. Clearly, Respondent was unaware or misinterpreted the language of both Rules governing his profession. Again, Respondent's conduct did not involve incompetence or negligence. However, Respondent is responsible for familiarizing himself with the Rules governing his profession and such familiarization should be encouraged.
An adequate penalty is necessary to deter offenses of this nature.
It is accordingly, recommended that the Board of Medicine and the Board of Osteopathic Medicine each enter a Final Order finding the Respondent guilty of violating Section 458.331(1)(s), (v) and (x) and 459.015(1)(n), (x) and (cc), Florida Statutes and as punishment therefore:
Respondent's license to practice as a physician's assistant in the State of Florida, number 0001538, should be suspended for two years beginning with the date of his temporary suspension on January 12, 1990, after which Respondent should be placed on a 2 year period of probation with direct supervision during which Respondent shall demonstrate to the Board his ability to practice with reasonable skill and safety. Additionally, Respondent should be required to successfully complete coursework involving the scope and practice of his profession and be assessed a $1,000 fine to be paid over the course of his suspension and probation.
Respondent's license to practice as an osteopathic physician's assistant in the State of Florida, numbered 0000027 and 0000097, should be suspended for 2 years beginning with the date of his temporary suspension on
January 12, 1990, after which Respondent should be placed on a 2 year period of probation with direct supervision during which Respondent shall demonstrate to the Board his ability to practice with reasonable skill and safety.
Additionally, Respondent should be required to successfully complete coursework involving the scope and practice of his profession and be assessed a $1,000 fine against Respondent to be paid over the course of his suspension and probation.
RECOMMENDED this 2nd day of May, 1991, in Tallahassee, Florida.
DIANE CLEAVINGER
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 2nd day of May, 1991.
ENDNOTES
1/ Respondent admits to taking excessive amounts of drugs during this time. 2/ Both Board's rules are vague on when a physician's assistant may give a
patient medication. See Rules 21M-17.012 and 21R-6.010, Florida Administrative
Code. One part of these rules indicates that a physician's assistant may, without supervision, give a patient medication when requested by a physician or order medication when requested by a physician. Another part of the rule prohibits the physician assistant from prescribing, dispensing or compounding medicinal drugs. Obviously, the two rule sections can be harmonized when the physician specifically requests the physician assistant to take such action in regards to a specific patient. The uncertainty comes in when a general protocol calls for a certain type of medication. The question then is whether such a protocol is tantamount to a physician's request. That such a protocol equals a physician's request is a very reasonable interpretation of the rules and in certain respects may have contributed to Respondent's actions in this case. If such an interpretation is not intended by either Board then these rules need a great deal of clarification in order to meet due process requirements of notice. This issue is not decided here since Dr. Levinson testified he did not request such medication and the specific protocols were never established by either Dr. Levinson or Respondent.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3126
The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, 14, and 16 of Petitioner Proposed Findings of Fact are adopted in substance insofar as material.
The facts contained in the first sentence of paragraph 8 of Petitioner's Proposed Findings of Fact are adopted. The remainder of the paragraph was not shown by the evidence.
The facts contained in paragraph 15 of Petitioner's Proposed Findings of Fact are adopted, except for the 3rd sentence which was not shown by the evidence.
The facts contained in paragraph 11 of Petitioner's Proposed Findings of Fact are subordinate.
The facts contained in paragraph 17 of Petitioner's Proposed Findings of Fact are adopted, except the facts relating to oversight of the treatment and diagnosis which were not shown by the evidence.
The facts contained in paragraph 18 of Petitioner's Proposed Findings of Fact were not shown by the evidence.
The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, and 17 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material.
The facts contained in paragraph 11 of Respondent's Proposed Findings of Fact are subordinate.
The facts contained in paragraph 18 of Respondent's Proposed Finding of Fact were not shown by the evidence.
COPIES FURNISHED:
Francesca Small Senior Attorney
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Alfred Shuler, Esquire Post Office Box 850
Apalachicola, Florida 32320
Bill Buckhalt
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Adriane Tinsley
Department of Professional Regulation
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
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OSTEOPATHIC MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. DOAH CASE NOS. 90-3126
90-4781
WILLIAM DANA HOLTON JP., DPR CASE NOS. 89-09479
and P.A.,
Respondent.
/
FINAL ORDER
THIS CAUSE came on to be heard before the Florida Board of Osteopathic Medical Examiners at its duly noticed meeting on June 22, 1991, in Tallahassee, Florida, for consideration of the Recommended Order entered by Hearing Officer, Diane Cleavinger, dated May 2, 1991.
Appearance for Petitioner: Francesca Small, Esquire
Department of Professional Regulation
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Appearance for Respondent: William Dana Holton, Jr.
FINDINGS OF FACT
The Board accepts the Finding of Fact contained in the Recommended Order, with the following two exceptions:
The Board rejects the third, fourth, and fifth sentence of Findings of Fact number 15. These sentences contain a combination of facts and conclusions of law; they are not supported by competent substantial evidence on the record; and do not reflect the state of the law or a proper interpretation of the cited administrative rules.
The Board rejects footnote number 2 to findings of fact number 18.
The statements contained in said footnote are more in the nature of a conclusion of law than a findings of fact; they are not supported by competent substantial evidence on the record; and by the Hearing Officer's own admission in the last sentence, contain issues which cannot be decided because of the evidence presented at the hearing.
With the exceptions noted above, the Board hereby ACCEPTS the findings of fact contained in the Recommended Order as the Board's Findings of Fact.
CONCLUSIONS OF LAW
The Board clarifies the date referred to in-paragraph 13 of the conclusions of law. The correct date should have been October 21, 1989, not 1991. With this clarification, the Board here, by, ACCEPTS the Conclusions of Law contained in the Recommended Order and adopts the same as the Board's Conclusions
PENALTY
The Board ACCEPTS the penalty contained in the Recommended Order, with the following changes and clarification:
The Board ACCEPTS the 2 year period of suspension.
The Board hereby REJECTS the 2 year probationary period to commence after the suspension, and instead imposes a 5 year probationary period. In support thereof, the Board cites the following aggravating factors: the large number of prescriptions written, as well as the number of patients involved (47).
The Board clarifies the terms of probation, by directing that said terms will be set at the end of the suspension period.
The Board further clarifies the recommendation that Respondent successfully complete coursework involving the scope and practice of his profession, by directing that Respondent obtain 50 hours of Continuing Medical Education in the area of primary care. Said hours are in addition to any other CME hours required as a condition of licensure renewal, and shall be completed prior to Respondent resuming to practice.
Respondent shall personally appear at the Board's December meeting and shall, prior to that time undergo a psychiatric and physical examination, and shall present copies of the results of said examination, and shall present copies of the results of said examinations to be Board prior to the December meeting.
Respondent shall participate and coply with the Physicians' Recovery Network. Respondent shall enter into an after care contract with the Physicians' Recovery Network and shall cause the medical director to the Network to send the Board a copy of that after care contract prior to the Boards' December meeting. Respondent shall comply with all of the conditions of his after care contract with the Florida Medical Foundation's Physicians' Recovery Network. Respondent shall execute a release for the Physicians' Recovery Network to authorize the Network to release information and medical records (Including Psychiatric records and records relating to treatment for drug dependence and alcoholism) to the Board as needed to monitor the progress of Respondent in the Network's program.
The Board accepts the recommended fine of $1,000, and further directs that said fine be paid, at the latest, 2 years after the commencement of Respondent's probation.
This Order takes effect upon filing with the clerk of the Agency.
The parties are notified, pursuant to Section 120.68, Florida Statutes, that they may appeal this Final Order by filing, within 30 days of the filing date of this Order, a notice of appeal, accompanied by the filing fees prescribed by law, with the District Court of Appeal.
DONE and ORDERED this 8th day of August, 1991 by the Florida State Board of Osteopathic Medical Examiners.
SANDRA L. SCHWEMMER, D.O., CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been mailed by U.S. Mail to Alfred O Shuler, Esquire, 34 4th Street, Apalachicola, Florida 32320, William Dana Holton, O.A., P.O. Box 1077, Carrabelle, Florida 32322 this 12th day of August, 1991.
| Issue Date | Proceedings |
|---|---|
| May 02, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 08, 1991 | Agency Final Order | |
| May 02, 1991 | Recommended Order | Psysician's assistant-discipline-misuse of prescriptions, diagnosing patients, prescribing medicines, impaired practice, serious violations, suspended and fine. |
