STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5044

)

JAMES H. STERNBERG, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was conducted in this case on October 21, 1992, in Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Mary B. Radkins, Esquire

Senior Attorney

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Harold M. Braxton, Esquire

Suite 400, One Datran Center 9100 South Dadeland Blvd.

Miami, Florida 33156-7815 STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against a medical doctor on the basis of alleged violations of paragraphs (g), (m), (q), and (r) of Section 458.331(1), Florida Statutes (1987). The violations charged relate to allegations that the Respondent improperly prescribed, dispensed or administered legend drugs, including controlled substances, to himself and to his girl friend, and that the Respondent failed to keep certain records in that regard.

PRELIMINARY STATEMENT

At the commencement of the formal hearing, the Petitioner moved to amend Paragraph 5 of the Amended Administrative Complaint to change the alleged number of placidyl from 300 to 200. Without objection, the amendment was allowed. The Petitioner's Motion To Take Official Recognition was also granted at the commencement of the hearing and official recognition was taken of certain statutory materials and certain portions of the 1987 edition of the "Physicians' Desk Reference."

At the formal hearing the Petitioner presented the live testimony of one witness, Ms. Lucille Markowitz, a Medical Quality Assurance Investigator for the Department of Professional Regulation. The Petitioner also offered six exhibits, all of which were received in evidence. One of those exhibits consisted of the transcript of the deposition testimony of Mr. Sandy Schulman.

At the conclusion of the presentation of evidence by the Petitioner, the Respondent rested without offering any evidence. The parties were allowed fifteen days from the filing of the transcript of the hearing within which to file their proposed recommended orders.

The transcript of the proceedings at hearing was filed with the Hearing Officer on November 12, 1992. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Recommended Order. On December 7, 1992, the Respondent also filed a written response to the Petitioner's proposed recommended order. Such responses are not authorized by the applicable rules or statutes and are generally stricken or disregarded. However, in this case the Hearing Officer has carefully considered the Respondent's response due to the novel legal issue first raised by the Petitioner in its proposed recommended order.

FINDINGS OF FACT

1. The Respondent is, and was in 1987, a licensed physician in the State of Florida, having been issued license number ME 0010823.

   
   

2. The Respondent has been continuously registered with the Drug Enforcement Agency since 1971, having been issued DEA number AS4805668.

   
   

3. Rugby Laboratories, Inc., of New York is a distributor of pharmaceutical and medical supplies. On March 23, 1987, Rugby Laboratories, Inc., shipped to the Respondent 500 0.15 gm. tablets of Doriden and 300 30 mg. capsules of Ionamin. On July 21, 1987, Rugby Laboratories, Inc., shipped to the Respondent 200 500 mg. capsules of Placidyl. On September 4, 1987, Rugby Laboratories, Inc., shipped to the Respondent 200 15 mg. capsules of Dalmane.

   
   

4. Doriden is a trade name for tablets containing the controlled substance glutethimide, a Schedule III drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. Ionamin is a trade name for a capsule containing the controlled substance phentermine, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts to stimulate the central nervous system and elevate blood pressure. Placidyl is a trade name for a capsule containing the controlled substance ethclorvynol, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. Dalmane is a trade name for a capsule containing the controlled substance flurazepam, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic.

   
   

5. The drugs described above were ordered by the Respondent for use by himself and his girl friend. The drugs described above were received by the Respondent and at least some of those drugs were used by the Respondent and his girl friend. 1/

   
   

6. The Respondent does not have any medical records for himself or for his girl friend. 2/ The Respondent was unable to produce any such records when the

   Department of Professional Regulation requested such records some time after March of 1990.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. In a license discipline proceeding under Chapter 458, Florida Statutes, involving the potential revocation or suspension of the Respondent's license, the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Robertson v. DPR, Bd. of Medicine, 574 So.2d 153, 154 (Fla. 1st DCA 1990), footnote 2; and Section 458.331(3), Florida Statutes. In its proposed recommended order the Petitioner raises for the first time the novel argument that in this case it is not subject to the "clear and convincing" standard, but that it must only prove its case "by the greater weight of the evidence." The Petitioner seeks to rely on Section 458.331(3), which reads as follows:

   
   

   (3) In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have the burden, by the greater weight of the evidence, to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence. (emphasis added)

   
   

9. Research into the application of the above-quoted statutory provision does not reveal any particularly useful prior decisional law. Specifically absent is any decisional law on the question of how the quoted statute is to be applied to a case which begins as a case involving revocation or suspension and which the Petitioner later seeks to transmogrify into a case which no longer "involves" revocation or suspension.

   
   

10. This case began as a case involving revocation or suspension; the last sentence of the original Administrative Complaint in this case seeks "an Order imposing one or more of the following penalties: revocation or suspension of the Respondent's license. . . ." (Emphasis added) The same language appears in the last sentence of the Amended Administrative Complaint filed on June 1, 1992. At the beginning of the formal hearing on October 21, 1992, the Petitioner requested, and was granted, leave to amend Paragraph 5 of the Amended Administrative Complaint, but there was no request to amend the portion of the Amended Administrative Complaint that describes the penalties sought by the Petitioner. The first hint that this case may have metamorphosed into a case that does not involve revocation or suspension of the Respondent's license is found in the argument presented for the first time in the Petitioner's proposed recommended order. Implicit in the argument advanced in the Petitioner's proposed recommended order is the notion that, by announcing after the hearing that the Petitioner is no longer seeking revocation or suspension of the Respondent's license, the Petitioner can change the nature of its burden of proof from one requiring "clear and convincing evidence" to one that requires only proof "by the greater weight of the evidence." For the reasons discussed below, such an interpretation of Section 458.331(3), Florida Statutes, is

    rejected as being inconsistent with notions of fundamental fairness and due process.

    
    

11. It is well settled in this State that statutes authorizing disciplinary action against professional licenses must be strictly construed and any ambiguities in those statutes must be resolved in favor of the licensees. See, for example, such cases as Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979); Lester v. DPR, Bd. of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977); Farzad v. Department of Professional Regulation, 443 So.2d 373 (Fla. 1st DCA 1983); and Elmariah v. DPR, Bd. of Medicine, 574 So.2d

    164 (Fla. 1st DCA 1990). Licensees are also entitled to notice of the penalty sought by the agency in a license discipline case. See Williams v. Turlington,

    498 So.2d 468 (Fla. 3d DCA 1986). The basic principles in the foregoing cases must be kept in mind when construing and applying Section 458.331(3), Florida Statutes.

    
    

12. There are important and significant differences between proving a case by "clear and convincing evidence" and proving a case "by the greater weight of the evidence." The differences are important to the Petitioner in planning and presenting the proof in support of the charges. They are equally important to the Respondent in planning and presenting a defense to the charges. Even during the presentation of the Petitioner's evidence, it is important for the Respondent to know the nature of the Petitioner's burden, because the nature of the Petitioner's burden frequently will be an important factor in determining such things as: whether, or to what extent, to object to questions asked during the direct examination of Petitioner's witnesses; whether, or to what extent, to cross-examine Petitioner's witnesses; and whether, or to what extent, to object to exhibits offered by the Petitioner. Similarly, during the presentation of the Respondent's case the nature of the Petitioner's burden frequently will be an important factor in determining such things as: whether to present any evidence at all; whether, or to what extent, to present testimony by the Respondent; whether, or to what extent, to present testimony by other witnesses; and whether, or to what extent, to offer any exhibits. Inasmuch as the nature of the Petitioner's burden is an important factor in preparing and presenting a defense to the charges, it is a factor which should be made known to the Respondent by no later than the beginning of the formal hearing. 3/ Notions of fundamental fairness and due process would be violated by a post-hearing change in the nature of the burden.

    
    

13. In this case there was no prehearing effort by the Petitioner to further amend the Amended Administrative Complaint so as to delete the language seeking the revocation or suspension of the Respondent's license, nor was there any other prehearing effort by the Petitioner to advise the Respondent that he was no longer subject to the possible revocation or suspension of his license. Therefore, when this case went to hearing, this was a case that did involve revocation or suspension of a license, and it continued to involve revocation or suspension of a license throughout the entire hearing. The Petitioner's post- hearing change of position does not affect the fact that during the formal hearing this was a case involving revocation or suspension of a license. 4/ Accordingly, by operation of Section 458.331(3), Florida Statutes, the Petitioner was required to prove its case by "clear and convincing evidence," and the "clear and convincing evidence" standard has been applied during the fact-finding process in this case.

    
    

14. Another evidentiary matter which needs to be addressed is the application of Section 458.339, Florida Statutes. The cited statute reads as follows:

    Every physician who accepts a license to practice medicine in this state shall, by so accepting the license or by making and filing a renewal of licensure to practice in this state, be deemed to have given his consent, during a lawful investigation of a complaint, to the following:

    1. To render a handwriting sample to an agent of the department and, further, to have waived any objections to its use as evidence against him.

    2. To waive the confidentiality and authorize the preparation and release of medical reports pertaining to the mental or physical condition of the physician himself when the department has reason to believe that a violation of this chapter has occurred and when the department issues an order, based on the need for additional information, to produce such medical reports for the time period relevant to the complaint. As used in this section, "medical reports" means a compilation of medical treatment of the physician himself which shall include symptoms, diagnosis, treatment prescribed, relevant history, and progress.

    3. To waive any objection to the admissibility of the reports as constituting privileged communications. Such material maintained by the department shall remain confidential and exempt from s. 119.07(1) until probable cause is found and an administrative complaint issued. This exemption is subject to the Open Government Sunset Review Act in accordance with s.

       119.14. (emphasis added)

       
       

15. Relying on the foregoing statutory language, the Petitioner argues that its Exhibit 5 is admissible for all purposes. Petitioner's Exhibit 5 is a medical report prepared by a physician who examined the Respondent. The Petitioner's argument as to the admissibility of the report fails because, with regard to such reports, Section 458.339, Florida Statutes, only precludes the Respondent from objecting to the report on the grounds that the report is a privileged communication. The subject statutory language does not preclude any other basis for objection to the admissibility of the report. 5/

    
    

16. At the formal hearing the Respondent objected to the admission of Petitioner's Exhibit 5 on the grounds that the exhibit constituted hearsay which would not be admissible over objection in a civil action. The exhibit was received in evidence because it meets the evidentiary standards expressed in Section 120.58, Florida Statutes, but at the time of receiving the exhibit the Hearing Officer noted in the record that the exhibit appeared to be hearsay. Petitioner's Exhibit 5 is hearsay and it does not come within any of the exceptions to the hearsay rule set forth at Section 90.803, Florida Statutes. Therefore, Petitioner's Exhibit 5 "may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to

    support a finding. . . ." See Section 120.58(1)(a), Florida Statutes. Section 458.339, Florida Statutes, does not change the hearsay status of Petitioner's Exhibit 5. Accordingly, I have not based any findings of fact solely on the contents of Petitioner's Exhibit 5.

    
    

17. The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the

    above Slomowitz. The Smith case also includes the following at page 958:

    
    

    "Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).

    
    

18. Count One of the Amended Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(m), Florida Statutes (1987), by failing "to keep any medical records concerning the dispensing of controlled substances to himself and his girl friend." The cited statutory provision authorizes disciplinary action for:

    
    

    (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

    
    

19. The statutory provision quoted immediately above requires written medical records only when the physician is engaged in "treatment of the patient." In this case there is no evidence that the Respondent was engaged in treating any medical condition of either himself or his girl friend, nor is there any evidence that either of the two had any medical condition which required treatment. In the absence of proof of treatment of a patient, there can be no violation of subsection (m) of Section 458.331(1), Florida Statutes (1987), because under that subsection there is no duty to keep medical records unless a patient is being treated. Accordingly, Count One of the Amended Administrative Complaint should be dismissed.

20. Count Two of the Amended Administrative Complaint charges the Respondent with violation of Section 458.331(1)(q), Florida Statutes (1987), by "[p]rescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice." The cited statutory provision authorizes disciplinary action for:

    
    

    1. Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, 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 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 practice, without regard to his intent.

       
       

21. The Respondent's act of ordering the subject drugs for himself constituted prescribing the drugs for himself, his act of receiving the drugs constituted dispensing the drugs to himself, and his act of taking the drugs constituted administering the drugs to himself. The Respondent's act of providing some of the drugs to his girl friend constitutes dispensing the drugs to her. Because the Respondent was not engaged in the treatment of a patient, all of the acts described in this paragraph were "other than in the course of the physician's professional practice." Therefore, the acts described in this paragraph were in violation of subsection (q) of Section 458.331(1), Florida Statutes (1987), as charged in Count Two of the Amended Administrative Complaint.

    
    

22. Count Three of the Amended Administrative Complaint charges the Respondent with violation of Section 458.331(1)(r), Florida Statutes (1987), by "[p]rescribing, dispensing, or administering any medicinal drug appearing on any schedule set forth in chapter 893 by the physician to himself. . . ." The cited statutory provision authorizes disciplinary action for:

    
    

    1. Prescribing, dispensing, or administer- ing any medicinal drug appearing on any schedule set forth in chapter 893 by the physician to himself, except one prescribed, dispensed, or administered to the physician by another practitioner authorized to prescribe, dispense, or administer medicinal drugs.

    
    

23. As noted above in the discussion of Count Two, the Respondent's act of ordering the subject drugs for himself constituted prescribing the drugs for himself, his act of receiving the drugs constituted dispensing the drugs to himself, and his act of taking the drugs constituted administering the drugs to himself. The subject drugs all appear on one of the schedules of Chapter 893, Florida Statutes (1987). Therefore, the Respondent's acts of prescribing, dispensing, and administering the subject drugs to himself were in violation of

    subsection (r) of Section 458.331(1), Florida Statutes (1987), as charged in Count Three of the Amended Administrative Complaint.

    
    

24. Count Four of the Amended Administrative Complaint charges the Respondent with violation of Section 458.331(1)(g), Florida Statutes (1987), by "[f]ailing to perform any statutory or legal obligation placed upon a licensed physician." The specific obligation referenced in Count Four is the obligation under Section 893.07, Florida Statutes (1987), to maintain certain records regarding controlled substances. The record-keeping requirements of Section 893.07, Florida Statutes (1987), provide, inter alia, that the required records "shall be kept and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances."

    
    

25. The evidence in this case is insufficient to establish a violation of the record-keeping requirements of Section 893.07, Florida Statutes (1987), because at the time the Respondent was asked to produce records concerning the subject drugs, substantially more than two years had elapsed since the Respondent received the last of the drugs. Therefore, by the time the Respondent was asked to produce records concerning the subject drugs, he was no longer required by Section 893.07, Florida Statutes (1987), to have such records in his possession. Such being the case, the evidence is insufficient to establish a violation of subsection (g) of Section 458.331(1), Florida Statutes, and Count Four of the Amended Administrative Complaint should be dismissed.

RECOMMENDATION

Based on all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect:

1. Dismissing Counts One and Four of the Amended Administrative Complaint;

   
   

2. Concluding that the Respondent has violated subsections (q) and (r) of Section 458.331(1), Florida Statutes (1987), as charged in Counts Two and Three of the Amended Administrative Complaint; and

   
   

3. Imposing an administrative penalty comprised of (i) an administrative fine in the amount of one thousand dollars ($1,000.00), (ii) a requirement that the Respondent attend one or more continuing education courses on the subject of legal and ethical issues associated with the prescription of controlled substances, and (iii) a public reprimand of the Respondent for the violations described above.

DONE AND ENTERED this 20th day of January, 1993, at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 20th day of January, 1993.

ENDNOTES

1/ The findings in this sentence are based on circumstantial evidence; evidence that in response to a DPR investigative subpoena the Respondent was "conducting a search to determine if he has any of the subject medication in his possession." (See Petitioner's Exhibit 6) Even circumstantial evidence can be clear and convincing. As Henry David Thoreau noted in his Journal of November 11, 1850, "Some circumstantial evidence is very strong, as when you find a trout in the milk." The Respondent would hardly search for something he never received. It is also reasonable to infer that drugs ordered for a specific purpose were applied to that purpose once they were received.

2/ The findings in this sentence are based on the information in Petitioner's Exhibit 6. Although it is arguable that Petitioner's Exhibit 6 does not meet the exact letter of any of the exceptions in Section 90.803, Florida Statutes, it nevertheless appears to be reliable evidence. In essence, Petitioner's Exhibit 6 is an admission by a party communicated by an authorized employee of the party's attorney. In administrative proceedings under Chapter 120, Florida Statutes, the Florida Evidence Code should not be strictly applied to exclude reliable evidence.

3/ In this case it is not necessary to determine how soon before the formal hearing the Respondent must be advised that the Petitioner intends to change the nature of its burden of proof. It will in all probability require some case-by- case adjudication to fashion some guidelines in that regard. In the meantime, it would appear to be the better practice for a Petitioner seeking to change the nature of its burden of proof to implement the change by means of a prehearing motion to amend the Administrative Complaint by deleting the language seeking a penalty of revocation or suspension of license. Such a motion, like any other motion to amend, should be filed sufficiently in advance of the formal hearing to allow the Respondent a reasonable period of time within which to respond to the motion and within which, if necessary, to modify preparations to address the new burden.

4/ Implicit in the Petitioner's argument is the notion that this case no longer "involves" revocation or suspension of a license because the Petitioner is no longer seeking either of those penalties. The matter is not as clear as it seems to the Petitioner. In view of the judicially recognized authority of regulatory boards to, under certain circumstances, increase penalties recommended by Hearing Officers, so long as the Administrative Complaint contains language seeking penalties of revocation or suspension of license, the Respondent would appear to be vulnerable to having such penalties imposed in the final order.

5/ The waiver in subsection (1) of Section 458.339, Florida Statutes, is a total waiver with regard to the materials addressed by that subsection. With regard to those materials, the licensee is deemed "to have waived any objections to its use as evidence against him." The waiver in subsection (3) of the subject statute is a narrow waiver; a waiver of only the right to object on the basis of the reports being "privileged communications."

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-5044

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Proposed findings submitted by the Petitioner:

Paragraphs 1 through 10: Accepted in substance. Paragraph 11: Rejected as irrelevant.

Paragraph 12: It is accepted that the subject drugs were ordered by the Respondent for himself and his girl friend. The remainder of this paragraph is rejected as subordinate and unnecessary details.

Paragraph 13: It is accepted that the subject drugs were ordered by the Respondent for himself and his girl friend. The remainder of this paragraph is rejected in part as subordinate and unnecessary details and in part as containing inferences not warranted by the evidence or not supported by clear and convincing evidence.

Paragraphs 14 and 15: Accepted in substance. Proposed findings submitted by the Respondent:

Paragraph 1: Accepted.

Paragraph 2: Rejected as incorrect and as, in any event, subordinate and unnecessary details.

Paragraph 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance.

Paragraph 5: It is accepted that the subject drugs were ordered by the Respondent for himself and his girl friend. The remainder of this paragraph is rejected as subordinate and unnecessary details.

Paragraph 6: Rejected as subordinate and unnecessary details.

Paragraph 7: Rejected as constituting primarily argument or conclusions of law, rather than proposed findings of fact.

Paragraph 8: Rejected as subordinate and unnecessary details.

Paragraph 9: Accepted in substance, with some unnecessary details omitted. Paragraphs 10 and 11: Rejected as subordinate and unnecessary details.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 32399-0792

Mary B. Radkins, Esquire Senior Attorney

Department of Professional Regulation 1940 N. Monroe Street

Tallahassee, Florida 32399-0792

Harold M. Braxton, Esquire Suite 400, One Datran Center 9100 South Dadeland Blvd.

Miami, Florida 33156-7815

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY ORDER ON ORAL MOTION FOR STAY

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NUMBER: 0083714

vs. DOAH CASE NUMBER: 91-5044

LICENSE NUMBER: ME 0010823

JAMES H. STERNBERG, M.D.,

Respondent.

/

ORDER ON ORAL MOTION FOR STAY

THIS CAUSE came before the Board of Medicine on April 3, 1993, in Plantation, Florida, upon Respondent's Oral Motion for Stay. Upon consideration of the Motion, the arguments of parties, and being otherwise fully advised in the premises,

IT IS HEREBY ORDERED AND ADJUDGED:

That the penalty imposed by the Final Order in this cause shall be stayed for a period of 30 days from the date the Final Order is filed pending the filing of a Notice of Appeal in the appropriate appellate court. If no appeal is taken within the 30 day period, then this stay is lifted. If Respondent files a timely appeal from the Final Order, then this stay shall remain in effect until the mandate is issued by the District Court of Appeal.

This Order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 9th day of April, 1993.

BOARD OF MEDICINE

JAMES N. BURT, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to James H. Sternberg, M.D., 4953 North University Drive, #14-A, Fort Lauderdale, Florida 33313 and Harold M. Braxton, Attorney at Law, Suite 400, One Datran Center, 9100 South Dadeland Boulevard, Miami, Florida 33156, by U.S. Mail to Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 1550; and by interoffice delivery to Larry

1. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 26th day of April, 1993.

   
   

   
   

   DOROTHY J. FAIRCLOTH

   
   

   AprilOrders 93

   
   

   
   

   =================================================================

   AGENCY FINAL ORDER

   =================================================================

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

   
   

   
   

   DEPARTMENT OF PROFESSIONAL REGULATION,

   
   

   Petitioner,

   DPR CASE NUMBER: 0083714

   vs. DOAH CASE NUMBER: 91-5044

   LICENSE NUMBER: ME-0010823

   JAMES H. STERNBERG, M.D.,

   
   

   Respondent.

   /

   FINAL ORDER

   
   

   This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on April 3, 1993, in Plantation, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation (Department), was represented by Larry G. McPherson, Jr., Attorney at Law. Respondent was not present, but was represented by Harold M. Braxton, Attorney at Law.

   
   

   Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

   
   

   RULINGS ON EXCEPTIONS

   
   

   1. Respondent's Exception Number 1, which is to paragraph 3 of the Findings of Fact, is rejected based on the reasons set forth in Petitioner's written response.

      
      

   2. Respondent's Exceptions Numbers 2 and 3, which are to paragraph 5 of the Findings of Fact, are rejected based on the reasons set forth in Petitioner's written response and in the discussion by the Board on the record.

      
      

   3. Respondent's Exceptions Numbers 4-7, which are to paragraphs 21 and 23 of the Conclusions of Law, are rejected based on the reasons set forth in Petitioner's written response.

      
      

   4. Petitioner's oral exception to paragraph 19 of the Conclusions of Law is granted based on the reasons stated by the Department and expressed in paragraph 3 of the Conclusions of Law below.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The Board rejects the Hearing Officer's analysis of Section 458.331(3), Florida Statutes, regarding what burden of proof was required in the case below and at what stage, if any, the Department must or may announce what penalty it is seeking. Since the Hearing Officer specifically asserted that he applied the clear and convincing standard to the facts of this case, the analysis of that statutory provision is immaterial to the ultimate resolution of the case.

   
   

3. The Board, in ruling on the Department's oral exception, rejects the Hearing Officer's interpretation of Section 458.331(1)(m), Florida Statutes, as being too narrow. To interpret that section as applying only when a physician

   is treating a medical condition or when a patient has a medical condition which requires treatment and as not applying when, as here, a physician is gratuitously administering or dispensing controlled substances to himself and his girl friend interprets the statute in such a way as to lead to a ludicrous result. This the Board is not required to do. Further, it ignores the statutory phrase "course of treatment" [emphasis added] which the Board finds is broader than just treatment and includes diagnosis and prescription, administration, and dispensing of drugs and all other acts that constitute the practice of medicine. That diagnosis and not just treatment is included is evident from the fact that the statute explicates, "including, but not limited to, patient histories, examination results, and test results." That the statute was intended to include the provision of drugs to patients is evident by the later (1989) amendment to the "included, but not limited to" language to specify "records of drugs prescribed, dispensed, or administered." The Board finds that when a physician provides drugs to another person (regardless of whether by prescription, administration, or dispensing), the physician creates a physician- patient relationship and the concomitant duty to maintain patient records.

   
   

4. All other conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

5. There is competent substantial evidence to support the conclusions of law of the Board.

PENALTY

Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be ADOPTED. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that

1. Counts One and Four of the Amended Administrative Complaint are DISMISSED.

   
   

2. Respondent has violated Section 458.331(1)(q) and (r), Florida Statutes, as charged in Counts Two and Three of the Amended Administrative Complaint.

   
   

3. Respondent shall pay an administrative fine in the amount of $1,000.00 to the Board of Medicine, Department of Professional Regulation, within 30 days of the date this Final Order is filed.

   
   

4. Respondent must complete the course offered by the University of South Florida and the Florida Medical Association entitled, "Protecting Your Medical Practice: Clinical, Legal, and Ethical Issues in Prescribing Abusable Drugs," or a Board- approved equivalent course.

   
   

5. Respondent is hereby publicly REPRIMANDED.

This order takes effect upon filing with the Clerk of the Department of Professional Regulation.

DONE AND ORDERED this 9th day of April, 1993.

BOARD OF MEDICINE

JAMES N. BURT, M. D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to James H. Sternberg, M.D., 4953 North University Drive, #14-A, Fort Lauderdale, Florida 33313 and Harold M. Braxton, Attorney at Law, Suite 400, One Datran Center, 9100 South Dadeland Boulevard, Miami, Florida 33156, by U.S. Mail to Michael M. Parrish, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399- 1550; and by interoffice delivery to Larry

G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee Florida 32399-0792 at or before 5:00 P.M., this 26th day of April, 1993.

DOROTHY J. FAIRCLOTH

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 91-005044

Orders for Case No: 91-005044