STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6560

)

ALFRED L. BOOKHARDT, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on June 4, 1991, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: Richard A. Grumberg

Senior Attorney

Department of Professional Regulation

Northwood Centre 1940 N. Monroe St.

Tallahassee, FL 32399-0792

For Respondent: Harvey M. Alper

Massey, Alper & Walden, P.A.

112 W. Citrus St.

Altamonte Springs, FL 32714-2577 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent prescribed a legend drug other than in the course of his practice through the inappropriate prescription of legend drugs or the prescription of legend drugs in excessive or inappropriate quantities, in violation of Section 458.331(1)(q), Florida Statutes; whether Respondent is guilty of gross or repeated malpractice or the failure to practice medicine with the level of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician under similar conditions and circumstances, in violation of Section 458.331(1)(t), Florida Statutes; and whether Respondent failed to keep written medical records justifying the course of treatment of the patient, including patient histories, records of drugs prescribed, and reports of consultations and hospitalizations, in violation of Section 458.331(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

By Administrative Complaint filed September 6, 1990, Petitioner alleges that Respondent, in the course of treating a patient for a variety of ailments, prescribed various legend drugs. Petitioner alleges that Respondent failed to obtain adequate laboratory testing to evaluate the condition of the patient; failed to obtain adequate and appropriate consultations for the patient in a timely fashion; inappropriately or excessively prescribed Centrax to the patient on an ongoing basis; failed to evaluate the reasons for the patient's low pulse rate even though she was taking Inderide; failed to maintain medical records on the patient to justify the medical treatment that Respondent administered; and failed to practice medicine with the level of care, skill, and treatment that a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances by failing to monitor the patient and obtain adequate laboratory testing to evaluate the condition of the patient, inappropriately or excessively prescribing Centrax for an extended period of time, and failing to obtain timely and appropriate consultations in the treatment of the patient.

By Election of Rights dated October 5, 1990, Respondent requested a formal hearing.

At the hearing, each party called one witness. Petitioner offered into evidence two exhibits, Respondent offered into evidence one exhibit, and the parties jointly sponsored one exhibit. All exhibits were admitted.

The transcript was filed on June 20, 1991. Each party filed a proposed recommended order. Treatment of the proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. Respondent has been a licensed physician in the State of Florida for 30 years. He holds license number ME 0009656. Respondent, whose specialty is general surgery, began practicing in Orlando in 1963.

   
   

2. At no time has Respondent' practice been limited to general surgery. When Respondent arrived in Orlando in 1961, he assisted a Dr. Cox. At the time, Dr. Cox and Respondent were the only physicians providing medical services, outside of public health clinics, to the predominantly black community of the Washington Shores area of Orlando.

   
   

3. The subject patient (Patient), who was born on December 2, 1951, selected Respondent as her primary physician in 1977. At the time, Respondent was the physician for the Patient's husband and his mother. The Patient saw Respondent Periodically for-several years.

   
   

4. Respondent's medical records of the Patient's initial visit record complaints of headaches and dizziness and a history of glaucoma in the Patient's left eye. The glaucoma arose from a traumatic injury suffered when she was eight years old. The Respondent's treatment of the Patient during 1977-1984 is not in question in this case.

   
   

5. After a six-month period during which she did not visit Respondent, the Patient saw Respondent on February 14, and March 12, 1985, complaining of pain in her arm. After ordering X-rays and trying Feldene for the pain, Respondent found that the Patient responded better to Indocin, which is a mild pain

   reliever and anti-inflammatory medication. The X-ray reports, dated March 3, 1985, indicated that the Patient's cervical and dorsal spine were normal.

   
   

6. According to the medical records, on February 14, the Patient's blood pressure was 146/96 in her left arm and 136/95 in her right arm and her pulse was 70 and 65 respectively On the March 12 visit, her blood pressure was 149/98 and her pulse was 81.

   
   

7. On her next office visit, May 23, 1985, the Patient complained of nervousness, as reflected in the medical records. Her blood pressure was 152/104 and her pulse was 87. Respondent prescribed Inderide 40/25 for the Patient's hypertension and Centrax 10 mg. for the Patient's nervousness. This is the first time that he had prescribed either medication for the Patient.

   
   

8. Respondent's medical records disclose what drugs were prescribed, the strength, and the frequency that they were to be taken. Respondent's records are not as clear as to how many pills were prescribed or whether the prescriptions were refillable. By reference to pharmacy records, however, one can determine with reasonable certainty how long the Patient was prescribed Centrax and Inderide by Respondent. With this finding, it is possible to determine from Respondent's records when a reference to a drug means that Respondent is acknowledging that the Patient is still taking the drug and when such a reference means that Respondent is giving the Patient a new prescription.

   
   

9. Inderide is a controlled substance that combines a diuretic with Inderal, which is a beta-blocker. Both ingredients are antihypertensive agents. Inderide 40/25 contains 40 mg. of Inderal and 25 mg. of the diuretic. Besides blocking beta- receptor sites, Inderal does not otherwise affect autonomic nervous system activity. Inderal may also decrease intraocular pressure, such as that associated with glaucoma.

1O. The abrupt discontinuation of Inderal is contraindicated for a broad class of patients who have angina or may be at risk of having occult atherosclerotic heart disease. Additionally, Inderal may impair certain heart functions, which "may augment the risks of general anesthesia and surgical procedures." 1991 Physician's Desk Reference, Product Information, P. 2389.

1. Centrax is a controlled substance derived from benzodlazepine, which has depressant effects on the central nervous system. As a benzodiazepine, Centrax is capable of producing psychological and physical dependence- According to the 1991 Physician's Desk Reference:

   
   

   Centrax is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. .

   The effectiveness of Centrax in long-term use, that is, more than 4 months, has not been assessed by systematic clinical studies. The physician should periodically reassess the usefulness of the drug for the individual patient.

   
   

   1991 Physician's Desk Reference, Product Information, p. 1625.

2. The 1991 Physician's Desk Reference recommends that patients taking Centrax for long periods have blood counts and liver function tests "periodically. " Special care is advised when using Centrax in combination with other antidepressants.

   
   

3. Side effects of Centrax include dizziness and fatigue in about 10 percent of the patients and, less commonly, headaches and slight decreases in blood pressure.

   
   

4. On May 30, 1985, the Patient returned to Respondent's office to have a dressing changed in connection with the removal of a growth from her arm. Her blood pressure was 128/92 and pulse was 78.

   
   

5. The Patient next visited Respondent on July 23, 1985. As directed by Respondent, the Patient had been taking the recommended dosages of Centrax and Inderide for the past two months. On this visit, she complained of weak spells. She reported that her ophthalmologist had prescribed for her Timoptic, which is a beta blocker that is available in an eye solution. Timoptic reduces intraocular pressure, such as that associated with glaucoma. The Patient's blood pressure was 146/93 and her pulse was 55.

   
   

6. Respondent's medical records note that the Patient was taking, in addition to the Timoptic and Indocin, Centrax and Inderide 40/25. At this time, Respondent ordered laboratory work on the Patient, including a complete blood count, fasting blood sugar, the SMAC series of 23 blood tests (which would disclose certain liver dysfunctions), an EKG, and an RPR seroiogical test. The test results were normal except for indicating borderline anemia.

   
   

7. The Patient visited Respondent a week later on July 30. Her blood pressure was 140/82 and her pulse was 63. In response to her complaints of headaches, Respondent ordered a CT scan of her brain, continued the Centrax and Inderide, as well as Hemocyte tabs for the borderline anemia. By report dated August 7, 1985, the CT scan proved normal.

   
   

8. The Patient visited Respondent about a week later on August 8. Her blood pressure was 121/77 and her pulse 50. On this visit, Respondent directed her not to take the Zantac, which he had prescribed two weeks earlier for a possible ulcer. The Patient had never taken any Zantac. His records also notes that the Patient only briefly took Fiorinal, which Respondent had Prescribed during the prior visit, due to nasal bleeding.

   
   

9. Five days later, as reflected in the medical records, Respondent called Dr. Ferguson, who was then the Patient's ophthalmologist. They agreed that the Patient should discontinue the Timoptic due to the low pulse.

   
   

10. On August 16, the Patient returned to see Respondent. Her blood pressure was 122/98 and her pulse had increased to 85. The medical records report that Dr. Ferguson had discontinued the Timoptic and had substituted another medication for intraocular eye pressure. The records also show that Respondent gave the Patient a prescription for Inderide 40/25 and Centrax 10 mg, as well as a potassium supplement for leg aches and Indocin for pain and inflammation.

11. On August 29, 1985, the Patient returned to see Respondent. She stated that her head was ready to "explode," according to the medical records. She reported that she had been taken off all eye medication. Complaining of insomnia, the medical records note Respondent's observation of constant fidgeting indicative of anxiety.

    
    

12. Respondent decided to increase the frequency that the Patient would take the Centrax from twice a day to three times a day. He also ordered T3 and T4 tests to determine if the Patient suffered from hyperthyroidism.

    
    

13. About a week later, on September 5, the Patient revisited Respondent. Respondent prescribed an antihistamine for her complaints of hoarseness and a dry cough. The records disclose that the thyroid test results were normal.

    
    

14. The Patient returned to Respondent on September 13. Noting less nervousness and hoarseness and only intermittent headaches, as reflected in the medical records, Respondent approved her returning to work. Her blood pressure was 130/1OO. The notes show that she is to "cont[inue]" the Inderide, Centrax, and Indocin.

    
    

15. In the four months since the Patient commenced taking Inderide and Centrax, Respondent had seen her nine times or about once every two weeks. Respondent had also ordered substantial laboratory work to monitor the Patient's condition, consulted with her ophthalmologist with the result that she was taken off eye medication to see if her complaints would be eliminated, obtained a CT scan to rule out other sources of the headaches and related complaints, and obtained thyroid tests to rule out a thyroid malfunction.

    
    

16. Sometime prior to the end of 1985, the. Patient changed ophthalmologists and retained Dr. Jerry Shuster to treat her glaucoma. Respondent had continued to prescribe Inderide 45/20, as he intended her to take it for an indefinite period to control hypertension. However, Respondent's prescription for Centrax had run out.

    
    

17. On December 26, 1985, the Patient called Respondent to ask for a conference. As a result of this conversation, Respondent called Dr. Shuster and learned that, while treating her for her eye problems, he too had noticed her nervousness. The physicians agreed the nervousness would be helped by restarting Centrax.

    
    

18. On December 26, following his conversation with Dr. Shuster, Respondent reissued the Patient's prescription for Centrax, Inderide, and Indocin. The Centrax prescription was for 60 pills with no refill; if taken at the maximum prescribed frequency, the Centrax prescription would run out in about 20 days. By contrast, the Inderide prescription was for 30 pills and allowed three refills; at one pill daily, this prescription would last 120 days.

    
    

19. The Patient visited Respondent on January 16, 1986. Her pulse was 52, and she was treated for a vaginitis. A return visit on January 30 disclosed that her vaginitis had cleared up. The medical records note that her blood pressure was 121/89 and pulse was 69. The records also note that the Inderide, Centrax, Indocin, a cortisone (for the vaginitis), and Timoptic prescribed by Dr. Shuster would be continued. Based on the findings contained in Paragraphs

    33 and 38 below, the word, "continued," as used in Respondent's medical records, means that the Patient was directed to continue taking medication from a prior prescription, not that she received a new prescription.

20. In January or February, 1986, the Patient decided to discontinue the Centrax because of the fatigue that she associated with its use. She did not again take Centrax until about August, 1986, although she continued to take the Inderide. When she continued the Centrax, she had only what remained of the 20- day prescription that she had received on December 26, 1985.

    
    

21. On March 11, 1986, the Patient next visited Respondent. Her blood pressure was 150/90. She complained of leg aches and exhaustion, and Respondent noted in his medical records his observations of fidgeting and restlessness. Respondent prescribed a potassium supplement for the aching leg and ordered a complete blood count, fasting blood sugar, and electrolytes test, which proved normal.

    
    

22. Seven months passed before the Patient saw Respondent again. On October 15, 1986, she came to the office. Her blood pressure was 134/91 and her pulse was 73. She stated that she was suffering from nausea and dizziness. Respondent gave her another prescription for Inderide 40/25, Cortisporin for an unrelated ear infection, and Antivert 25 for the dizziness.

    
    

23. Respondent prescribed no Centrax during the October 15 office visit. The Patient's pharmacy produced the prescription for Inderide, but, unlike the case with the simultaneous prescriptions for Inderide and Centrax on December 26, 1985, produced no prescription for Centrax. In the absence of any mention of Centrax in Respondent's medical records, which are thorough as to when Centrax and other medications were prescribed, there is no basis to find that Respondent wrote a new prescription for Centrax.

    
    

24. Almost four months passed before Respondent again saw the Patient. On February 6, 1987, she visited the office because of back pain and stress-induced frequent urination. Her blood pressure was 140/87 and pulse was 75. Dr. Shuster had been prescribing her Timoptic and steroids for her glaucoma. Respondent approved the use of a heating pad and provided no other treatment.

    
    

25. Nine months later, on November 11, 1987, the Patient returned to Respondent's office. She was suffering from pain in her right eye and suggested that the Timoptic being prescribed by Dr. Shuster was responsible. She was still taking the Inderide 40/25 that Respondent had prescribed, but had not been prescribed any more Centrax since December 26, 1985. Respondent gave her a new prescription for Centrax 10 mg., to be taken as needed but not more than three times daily. The prescription for Centrax was for 60 tablets with two refills. At the maximum allowed frequency, the Patient received a 60-day supply of Centrax.

    
    

26. Respondent also ordered the T3, T4, and TSH thyroid tests, a complete blood count, and SMAC blood test. The results of the thyroid tests, which were reported on November 13, were normal for T4 and TSH and very slightly elevated for T3.

    
    

27. Almost two leeks later, on November 23, 1987, the Patient returned to Respondent's office. Her blood pressure was 123/84 and her pulse 77. She was tired and weak and experienced numbness in her right leg, but she said that she was sleeping well. Respondent's notes reflect that he directed her to continue her medications, to take a vitamin B12 injection, and to call him the following day.

28. The notation, "cont[inue] med[ication]s" did not mean that Respondent gave the Patient a new prescription; in this case, he had just given her a three months' supply only 10 days earlier. No prescriptions were produced by the Patient's pharmacy for any new prescriptions on or about November 23. Further, Respondent's testimony concerning his unwillingness to prescribe more than a limited amount of Centrax at one time is credited.

    
    

29. On December 1, 1987, the Patient returned to the office. Her blood pressure was 127/78 and pulse 72. The notes record a conversation among Respondent, the Patient, and her husband that concluded with the decision that the Patient would speak with Dr. Shuster about her vision. Respondent prescribed Indocin, which had been used frequently in the past for an arthritic condition and general body aches.

    
    

30. Two weeks later, on December 15, the Patient returned. Her blood pressure was 122/95 and pulse was 82. The records note that she appeared calmer. Respondent spoke with Dr. Shuster about the Patient's anxiety about losing her vision in the damaged eye, and they agreed that she needed an antidepressant. According to the records, Respondent prescribed Tofranil 25 mg. and that she continue to take her Centrax.

    
    

31. Tofranil, which is a member of the dibenzazepine group, is an antidepressant that acts primarily by stimulation of the central nervous system. The 1991 Physician's Desk Reference suggests that the physician Prescribe a tranquillizer with Tofranil, if manic episodes occur.

    
    

32. The use of Tofranil ended two weeks later when the Patient returned to Respondent's office on December 29 complaining of nausea. Recognizing this as an adverse reaction to Tofranil, Respondent took her off the medication. Her blood pressure was 131/96 and pulse 73 during this visit.

    
    

33. In response to a complaint of hoarseness, Respondent ordered a chest X-ray and referred her to an ear, nose, and throat specialist. Chest and pelvic X-rays proved normal, as well as a mammogram taken at the same time.

    
    

34. In response to complaints of diarrhea and stomach cramps, Respondent Prescribed Tagamet. He also continued the Prescription for Centrax, but did not provide her with a new Prescription at the time. However, on January 8, 1988, the Patient's Pharmacy filled a new Prescription from Respondent for the Patient for 60 Centrax tablets and refillable three times. The prior Centrax Prescription could have been exhausted by this time, if the Patient took three tablets a day. The new prescription gave her a 80-day supply, if she used it at the maximum rate.

    
    

35. The ear, nose, and throat specialist, Dr. Stephen E. Howery, saw the Patient on January 4, 1988. He noted that the Patient complained of persistent hoarseness since July, 1987, and suffered from hayfever. His impression was that she suffered from polypoid degeneration of the vocal cords and recommended antihistamines. If this treatment did not work, he recommended a laryngoscopy and stripping of the vocal cords.

    
    

36. The Patient visited Respondent on January 12. Her blood pressure was 123/92 and pulse 69.

37. Apparently, Dr. Howery's initial conservative treatment, which was identical to Respondent's successful treatment of the same complaint two and one-half years earlier, did not help. Outpatient surgery was performed on or about January 14, 1988. The surgery, which required general anaesthesia, was successful.

    
    

38. In preparation for the throat surgery, the Patient stated that she was taking Centrax, Inderide, Tagamet, and Timoptic, which were all discontinued prior to surgery.

    
    

39. Following the throat surgery, the Patient began to experience difficulty in urination. She contacted Respondent, who suggested that she go to the emergency room of a nearby hospital for catheterization. After a couple such visits, when the Patient again could not void her urine, Respondent advised that she go to the hospital.

    
    

40. In the meantime, Respondent contacted the patient's gynecologist, Dr. Chisholm. He examined the Patient on January 20 and found no gross abnormalities except for a two cm. ovarian cyst that was not the cause of the Patient's urinary problems.

    
    

41. Respondent also contacted a uroiogist, Dr. Helmley, who eliminated the obstruction by Performing a cystoscopy and urethral dilation on January 22 which also required a general anaesthesia.

    
    

42. At this time, Dr. Chisholm and Respondent agreed that the Patient required the services of a psychiatrist Dr. Lillian Saavedra met the Patient while she was still in the hospital. The Patient was released from the hospital on January 24, 1988.

    
    

43. At about this time, the Patient decided not to see Respondent anymore. She required hospitalization the beginning of February, 1988, spending two weeks in a psychiatric unit of a local hospital. By this time, she was on a variety of medications, most if not all of which had not been Prescribed by Respondent. Dr. Saavedra's final diagnosis at the conclusion of the hospitalization was that the Patient suffered from somatization disorder, possible family discord, hyperthyroidism, and glaucoma in her left eye.

    
    

44. After a few months, the Patient discontinued seeing Dr. Saavedra and taking the antidepressant that she had prescribed for the Patient. The Patient saw another psychiatrist and later a chiropractor, and her complaints gradually diminished.

    
    

45. Nothing in the record establishes that Respondent failed to obtain adequate laboratory testing to evaluate the condition of the Patient. From May, 1985, through January, 1988, hyroid tests, in addition to various X-rays and a CT scan. These proved normal.

    
    

46. The implication in the allegation of inadequate laboratory testing is that Respondent misdiagnosed the Patient's condition. The record is clear that he did not fail to detect thyroid problems because, during this period, she had. none. Although the low pulse rate was properly a matter of concern, Respondent reacted to it by causing the discontinuation of Timoctin. Later, Respondent's pulse rate evidently acclimated to the beta blockers.

47. Similarly, Respondent did not fail to diagnose the polyps on the vocal cords that were later corrected by surgery. The initial treatment of the ear, nose, and throat specialist, was the same as Respondent's successful treatment of the condition two and one-half years earlier. In view of Dr. Howery's conservative initial approach to the problem, it is impossible to infer that Respondent failed to make a missed diagnosis or untimely referred the Patient to a specialist.

    
    

48. Respondent did not fail to diagnose any dependency upon Centrax.

    There are two breaks in the Centrax prescriptions. Following the commencement of Centrax on May 23, 1985, the Patient took the drug continuously far four to seven months, before a break occurred prior to the December 26, 1985, prescription. The Patient discontinued taking Centrax in January or February, 1986, so, except for what tablets may have been unused from the December 26 prescription, the Patient took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again.

    
    

49. Although the first period during which the Centrax was Prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to :e effective, there is no evidence that any dependency resulted during this time. The second period of use was not Particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, renewal.

    
    

50. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did.

    
    

51. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having unused from the December 26 prescription, the Patient: took no Centrax for almost two years before Respondent gave new a new prescription on November 11, 1987. Within two months, however, the Patient discontinued the use of Centrax again.

    
    

52. Although the first period during which the Centrax was prescribed-- four to eight months--may have exceeded the period for which the drug may normally be expected to be effective, there is no evidence that any dependency resulted during this time. The second period of use was not particularly long-- only two months--and followed nearly two years during which the Patient had not used the drug. If taken at the maximum frequency, the Centrax would have lasted only four and one-half months from November 11 through the early January, 1988, refill.

    
    

53. Nothing in the record establishes that Respondent's referral of the Patient to a psychiatrist was untimely. The medical records reflect that the Patient was making some progress in late 1987. She reported sleeping fairly well during her November 23, 1987, office visit, and she appeared calmer during her December 15, 1987, visit. It is impossible to attribute her emotional and

    mental decline in February, 1988, to anything that Respondent did or did not do. Nothing in the record establishes that Respondent should have observed symptoms requiring psychiatric care sooner than he did.

    
    

54. Also, the referral to the urologist was timely following the throat surgery. Nothing in the record establishes that it was unreasonable to try two catheterization before having the Patient examined by a urologist.

    
    

55. Respondent's medical records amply justify the various treatments that the Patient received during the years that she was seen by Respondent. The medical records are, at times, somewhat obscure as to the number of tablets prescribed at a given point. However, the records disclose A. uniform use of certain terms which, as corroborated by the pharmacy's records, provide the information from which the number of tablets can be calculated. The major exception is the Inderide, but Respondent intended to maintain this drug indefinitely.

    
    

56. Nothing in the record establishes that Respondent failed to practice medicine with the level of care, skill, and treatment that a reasonably prudent physician recognizes as acceptable under similar conditions and circumstances. In this finding, the relevant level of care, skill, and treatment imposed upon Respondent is not relaxed because he, a general surgeon, elected to practice general medicine or because he chose to provide medical services to a community in need of such services.

    
    

    CONCLUSIONS OF LAW

    
    

57. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sectio:ns are to Florida Statutes.)

    
    

58. Petitioner has jurisdiction over the licenses of physicians. Section 458.331.

59. Discipline may be imposed for Prescribing, dispensing, administering,

    mixing, or otherwise preparing a legend dru,

    including any controlled substance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally be presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his intent.

    Section 458.331(1)(q)

    
    

60. Discipline may be imposed for

    
    

    Gross or repeated malpractice or the failure 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. . . . As used in this paragraph, "gross negligence" or "the failure to practice medicine with that level of car, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances," shall not be construed so as to require more than one instance, &Fent, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

    
    

    Section 458.331(1)(t)

    
    

61. Discipline may be imposed far

    
    

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

    
    

    Section 458.331(1)(m)

    
    

62. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). However, in disciplinary proceedings not involving the suspension or revocation of a physician's license, the standard of proof is the greater weight of the evidence. Section 458.331(2).

    
    

63. Petitioner failed to prove by either standard that Respondent prescribed excessive quantities of any controlled substance to the Patient. Petitioner failed to prove by either standard that Respondent committed malpractice in his treatment of the Patient. Petitioner failed to prove by either standard that Respondent failed to keep written medical records justifying the course of treatment of the Patient. The occasional vagueness of the records concerning the amount of Centrax prescribed at a given time or the refillability of the prescription was insufficient, under the facts of this case, to donstitute a violation, even under the less rigorous standard of proof allowed for lesser penalties.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint.

ENTERED this 9th day of July, 1991, in Tallahassee, Florida.

ROBERT E. MEALE

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 9th day of July, 1991.

APPENDIX

Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance.

7: adopted except that the evidence did not demonstrate that Centrax could not be useful for treatment of anxiety over the periods for which Respondent prescribed it to the Patient.

8: rejected as subordinate and irrelevant. Petitioner failed to prove that Centrax was inappropriately prescribed foi the Patient.

9-10: adopted.

11: adopted except that May 23, 1985, is the date that Respondent first prescribed Centrax for the Patient.

12-13: adopted in substance.

14-15: rejected as unsupported by the appropriate weight of the evidence. 16: rejected as recitation of testimony.

17: rejected as unsupported by the appropriate weight of the evidence.

18 and 20: rejected as subordinate.

21: rejected as unsupported by the appropriate weight of the evidence. 22: rejected as subordinate.

23 and 29-35: rejected as recitation of testimony. Dr. Garoni's testimony has not been given much weight for the reasons set forth on the record at the hearing.

24: rejected as recitation of testimony. 25: adopted in substance.

26-28: rejected as irrelevant. Petitioner failed to prove that the Centrax was responsible for any of these problems. To the contrary, the record suggests other factors responsible for these symptoms.

36 (except for (c)): rejected as recitation of evidence.

36(c): rejected as unsupported by the appropriate weight of the evidence. The indication as to amount of pills and renewability, however, is oblique and barely satisfies the requirements of recordkeeping.

37-38: rejected as recitation of evidence.

39: rejected as legal argument. There were obvious shortcomings in Dr. Garoni's testimony concerning the subject medications, and he candidly admitted his lack of familiarity with the subject drugs. Doubtlessly, Dr. Garoni is a "reasonably prudent similar physician," as described by Section 458.331(1)(t). However, it is obvious that Dr. Garoni's prudence has led him to exercise an abundance of caution when prescribing medications such as Centrax and Inderide.

Dr. Garoni candidly testified, as to Tofranil and Centrax: "I'll be honest with you, I don't feel confident to tell you whether you ought to give those two drugs together. I mean, I think that's out of my field. I would never prescribe those two drugs at all . . .." Deposition of Dr. Garoni, P. 32. His testimony is elsewhere qualified with "I think" and "I feel," when referring to Respondent's treatment of the Patient.

The strategic problem for Petitioner was that Dr. Garoni was not qualified to opine on the appropriateness of the medications. This fact does not of course mean that Respondent improperly prescribed medications for the Patient because Respondent, like Dr. Garoni, holds himself out as specializing in general surgery.

Nothing prevented Petitioner from offering testimony from a physician qualified to opine as to the proper use of these drugs. If Petitioner felt constrained to limit itself to a physician practicing Respondent's self-declared specialty, then another general surgeon would have to be found. However, Respondent's actual practice is, by his own admission, not confined to general surgery. In this case, an internist or general practitioner would have qualified as a similar physician.

In addition, nothing would have prevented Petit:Loner from supplementing the testimony of the similar physician, whether he or she was Dr. Garoni, an internist, or a general practitioner. In this manner, Petitioner could have offered the testimony of an expert specially trained or experienced in the use of these medications.

40: rejected as recitation of testimony. 41: rejected as subordinate.

Treatment Accorded Proposed Findings of Respondent

The proposed findings of Respondent have been adopted in substance except as otherwise indicated:

1-2: rejected as subordinate except as to Respondent.

7 (last sentence): rejected as legal argument.

10 and 12-13: rejected as recitation of evidence.

11: rejected as subordinate.

18 (after third sentence): rejected as subordinate.

20: rejected as unsupported by the appropriate weight of the evidence. 22-23: rejected as subordinate.

23 (second): rejected as irrelevant.

25: rejected as recitation of testimony and legal argument.

26 (last sentence): rejected as irrelevant.

28: rejected as recitation of evidence. 29: rejected as subordinate.

30: rejected as subordinate and irrelevant.

33: rejected as repetitious and recitation of evidence.

34 and 38: rejected as subordinate and irrelevant.

35: rejected as legal argument.

36: rejected as recitation of evidence.

COPIES FURNISHED:

Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Dorothy Faircloth Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Richard A. Grumberg Senior Attorney

Department of Professional Regulation Northwood Centre

1940 N. Monroe St. Tallahassee, FL 32399-0792

Harvey M. Alper

Massey, Alper & Walden, P.A.

112 W. Citrus St.

Altamonte Springs, FL 32714-2577

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 davs in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the acency that will issue the final order in this case concerninc 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: 90-006560

Orders for Case No: 90-006560