STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )
BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 93-3689
) TEJ PAL SINGH JOWAL, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on January 27-28, 1994, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Barbara Whalin Makant, Esquire
Steven A. Rothenburg, Esquire Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Sheldon R. Zilbert, Esquire
200 South Biscayne Boulevard, Suite 3120 Miami, Florida 33131
STATEMENT OF THE ISSUES
Whether Respondent committed the violations alleged in the Amended Administrative Complaint?
If so, what disciplinary action should be taken against him?
PRELIMINARY STATEMENT
On October 7, 1992, the Department of Professional Regulation (now the Department of Business and Professional Regulation and hereinafter referred to as the "Department") issued an 11-count Amended Administrative Complaint against Respondent, a Florida-licensed medical doctor, charging him with: one violation of Section 458.331(1)(g), Florida Statutes, (Count 10); three violations of Section 458.331(1)(m), Florida Statutes, (Counts 3, 6 and 9); three violations of Section 458.331(1)(q), Florida Statutes, (Counts 2, 5 and 8); three violations of Section 458.331(1)(t), Florida Statutes, (Counts 1, 4 and 7); and one violation of Section 458.331(1)(x), Florida Statutes, (Count 11). Count 10 of the Amended Administrative Complaint alleges that "Respondent failed to
comply with a legal obligation placed upon a licensed physician in that he possessed, stored, and dispensed controlled substances without having a DEA registration." The remaining counts of the Amended Administrative Complaint deal with Respondent's care and treatment of three patients, specifically, L.A.,
and R.M.
Respondent denied the allegations of wrongdoing made against him in the Amended Administrative Complaint and requested a formal hearing on the charges. On June 30, 1993, the Department referred the Amended Administrative Complaint to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division Hearing Officer to conduct the formal hearing Respondent had requested.
The final hearing in the instant case was originally scheduled to commence on October 27, 1993. On August 6, 1993, the Department filed a motion requesting that the hearing be continued. By order issued August 10, 1993, the motion was granted and the hearing was rescheduled for November 16 and 17, 1993.
On October 7, 1993, at the Department's request, the Hearing Officer consolidated DOAH Case No. 93-5531 with the instant case. On October 26, 1993, Respondent filed a motion seeking a continuance of the final hearing in these consolidated cases, which was set to begin on November 16, 1993. The Department, on November 3, 1993, moved to have the Hearing Officer vacate his order consolidating DOAH Case No. 93-5531 with the instant case. In an order issued on November 9, 1993, the Hearing Officer severed the two cases and set the final hearing in the instant case for January 27 and 28, 1994, on which dates the hearing was ultimately held.
At the hearing, the Department presented the testimony of five witnesses: patient L.A.; patient R.A.; Eugene Griffin, III, M.D., a Florida-licensed family practice physician who testified as an expert; Thomas Daniels, an investigator with the Department; and Janice Barnes, an investigator with the United States Drug Enforcement Administration. In addition to the testimony of these five witnesses, the Department offered, and the Hearing Officer received, into evidence ten exhibits (Petitioner's Exhibits 1 through 7 and 9 through 11).
Respondent testified on his own behalf. He presented no other evidence at the hearing. The evidentiary record, however, was left open to allow Respondent the opportunity (1) to take, before February 15, 1994, the deposition of Richard Campbell, M.D., a family practice physician from whom Respondent sought to elicit expert testimony, and (2) to file with the Division, before February 22, 1994, the transcript of the deposition. The deposition of Dr. Campbell was taken on February 14, 1994. The transcript of the deposition was filed with the Division on February 17, 1994. The following day, the Hearing Officer issued an order receiving the transcript of the deposition into evidence as Respondent's Exhibit 1 and closing the evidentiary record in the instant case.
Post-hearing submittals in the instant case were originally due to be filed no later than May 12, 1994, ten days following the Hearing Officer's receipt of the transcript of the final hearing in the instant case. At Respondent's request, the deadline for the filing of post-hearing submittals was extended until May 18, 1994.
On May 18, 1994, the Department filed a proposed recommended order. The Department's proposed recommended order contains what are labelled as "facts" and "conclusions of law." These proposed "facts" and "conclusions of law" have been carefully considered. The proposed "facts" are specifically addressed in the Appendix to this Recommended Order. To date, Respondent has not filed any post-hearing submittal.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The Parties
The Department is a state government licensing and regulatory agency.
Respondent is now, and has been at all times material to the instant cases, a family practice physician licensed to practice medicine in the State of Florida.
He holds license number ME 0030309.
Facts Relating to Patient L.A.
On April 29, 1991, L.A., a forty-one year old male, presented to Respondent with complaints of left elbow swelling, chills, and a temperature of
102 degrees Fahrenheit.
His wife, R.A., had recommended that he see Respondent about these complaints.
This was his first visit as a patient to Respondent.
L.A.'s past medical history revealed no illnesses, injuries or surgeries.
During the visit, L.A. was given a physical examination, which revealed, among other things, a temperature of 100 degrees Fahrenheit.
Respondent diagnosed L.A. as having a fever, polyarthritis and left olecranon bursitis.
As part of the course of treatment, Respondent injected L.A.'s left elbow with 1 cc of Decadron, which is a steroid.
Respondent also aspirated 10 cc's of fluid from the elbow. The fluid was cloudy and straw-colored.
In addition, Respondent prescribed an antibiotic (Keflex), as well as pain medication (Percocet) for L.A. to take.
Respondent did not send the aspirated fluid to the laboratory for testing to ascertain if L.A. was suffering from septic arthritis.
Nor did he order that any diagnostic x-rays be taken.
Respondent did send to the laboratory blood that was drawn from L.A. during the visit. The test results revealed, among other things, a high white blood cell count and an extremely high eosinophil count.
Given these test results and the symptoms with which L.A. had presented, there was a substantial likelihood that L.A. had an infection that was spreading throughout his body and that had the potential to become life- threatening if not properly treated.
After receiving the results of the laboratory testing, Respondent ordered an arthritis profile.
He did not order any additional tests, however, to find out the cause of L.A.'s highly elevated eosinophil count. Nor did he follow-up on the arthritis profile to determine the etiology of L.A.'s polyarthritis.
On May 9, 1991, L.A. made his second and final visit to Respondent. He had continued complaints of a swollen left elbow and generalized joint aches and pains. During the visit, L.A. also mentioned that he had an ulcer, but he gave no indication that it was causing him any problems.
Respondent examined L.A., after which he diagnosed L.A. as having a fever (99 degrees Fahrenheit) and polyarthritis.
For the pain L.A. was experiencing, Respondent prescribed Percocet (quantity of 30).
In not doing the following while L.A. was his patient, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent family practice physician would have recognized as being acceptable and appropriate at the time: having the fluid he had aspirated from L.A.'s elbow tested; ordering additional tests to determine the cause of L.A.'s highly elevated eosinophil count; and following-up on L.A.'s arthritis profile to determine the etiology of L.A.'s polyarthritis.
Facts Relating to Patient R.A.
R.A. first visited Respondent on March 29, 1990. She was 38 years of age at the time.
R.A. presented with complaints of migraine headaches, back pain and depression.
The primary purpose of her visit was to obtain treatment for her migraine headaches.
She had been suffering from migraine headaches since she was 16 years of age.
Although she was depressed that she still had these migraine headaches, R.A.'s depression was not severe and, based upon his conversation with her, Respondent reasonably believed that she was not a candidate to commit suicide. Consequently, he did not specifically ask her whether she had any suicidal ideation.
During this initial visit, Respondent administered 100 mg. of Vistaril and 1 cc of Nubain to R.A. He also prescribed 30 tablets of Percocet.
R.A. visited Respondent again on June 25, 1990, still complaining of severe migraine headaches.
Her next visit to Respondent was on October 16, 1990. Her chief complaint was severe abdominal pain in an area where she had accidentally poked herself with a pointed object.
Although Respondent believed that there was a possibility that R.A. had a laceration of her liver, he did not have her hospitalized for further evaluation and treatment to make certain that she was not going to bleed to death.
Instead, he gave R.A. injections of Nubain (20 mg.) and Vistaril (100 mg.), prescribed Halcion (0.25 mg., quantity of 60), Fioricet (quantity of 40), and Percocet (quantity of 20) for her and sent her home.
Blood that was drawn from R.A. during the visit was sent to the laboratory for testing. Blood cell profile testing revealed a low hemoglobin of
11.9 and a low hematocrit of 33.7.
On R.A.'s next visit to Respondent, on December 17, 1990, she presented with complaints of abdominal pain and bloating, night sweats, black bowel movements, severe headaches, and the two-month absence of menstrual periods.
Notwithstanding that R.A. reported having black bowel movements, Respondent did not perform a stool Hemoccult to check for the presence of blood in R.A.'s stool.
Respondent did conduct a pregnancy examination, which revealed that
R.A. was pregnant.
In addition to concluding that R.A. was pregnant, Respondent diagnosed
R.A. as having migraine headaches, fibrocystic breast disease, and intractable nausea.
He prescribed Compazine (10 mg., quantity of 30) for her and sent her home.
On May 6, 1991, R.A. presented to Respondent with complaints of migraine headaches and depression and she requested that Respondent put her on antidepressant medication.
Respondent did not specifically ask R.A. if she was contemplating suicide, however, based upon his conversation with her, he had reason to believe that she had no suicidal ideation.
Respondent treated R.A. with injections of Demerol (100 mg.) and Vistaril (100 mg.).
He also prescribed Percocet (quantity of 30), Fiorinal and Desyrel for R.A..
Respondent did not record in R.A.'s medical records the amount of Fiorinal and Desyrel he prescribed.
On September 29, 1991, R.A. presented to Respondent with complaints of severe abdominal cramps and bloating, back ache, diarrhea, vomiting, rapid heart beats, and chest pain and pressure.
After being treated by Respondent with injections of Nubain (20 mg.) and Vistaril (100 mg.), R.A. remained in the office, under observation, for approximately an hour and a half, during which time her anxiety decreased. At the time she left the office, she was virtually pain-free.
Respondent did not order an electrocardiogram or other cardiac work-up for R.A. given the improvement in her condition and that she was a pre- menopausal, 38-year old woman with a low risk of having a myocardial infarction.
During the period of time that R.A. was his patient (March 29, 1990, to October 27, 1991), Respondent, in toto, saw her 29 times and gave her the following injections, prescriptions and samples: Injections- eight injections of Nubain; 16 injections of Vistaril; seven injections of Tigan; five injections of Demerol; one injection of Buprenex; and one injection of Toradol; Prescriptions and samples: 490 tablets of Percocet; four Tigan suppositories; 40 Tigan tablets; 30 tablets of Reglan; 20 Norflex tablets; three Lortab tablets; Desyrel; and samples of Vicodin.
In not doing the following while R.A. was his patient, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent family practice physician would have recognized as being acceptable and appropriate at the time: hospitalizing R.A. on October 16, 1990, for further evaluation and treatment to make certain that she was not going to hemorrhage to death as a result of a liver laceration; and performing a stool Hemoccult on December 17, 1990, to check for the presence of blood in R.A.'s stool.
Facts Relating to Patient R.M.
R.M. first visited Respondent on April 10, 1990. She was 34 years of age at the time.
R.M. presented with complaints of severe migraine headaches, nausea and a history of sinus allergies.
Respondent had R.M. fill out a Forest Headache Questionnaire. In response to one of the questions on the questionnaire, R.M. listed the following as "headache medications" she had taken in the past:
Fiorinal plain & Fiorinal #3 Fioricet
Percocet Lortab Nolamine Rutuss Beconase Nasal Spray
After examining R.M., Respondent concluded that she was suffering from sinusitis, anxiety, tension headaches and migraine headaches.
Respondent treated R.M. with injections of Phenergan and Toradol, but did not record in R.M.'s medical records the amounts he injected.
Respondent next saw R.M. on January 3, 1991, and again on January 14, 1991.
R.M.'s following visit was on March 10, 1991. On this occasion, she presented with complaints of nausea, vomiting and a swollen and painful left eye. In addition, she was suffering from photophobia.
A physical examination of R.M. revealed, among other things, that she had a temperature of 99 degrees Fahrenheit.
Notwithstanding R.M.'s symptoms, which suggested that she might have some type of life-threatening facial or neurological infection, Respondent did not attempt to conduct either a basic eye or neurological examination (which would have included an examination of R.M.'s fundi) to further explore this possibility and find out if referral to a specialist was warranted.
Instead, Respondent diagnosed R.M. as having a migraine headache, anxiety and intractable nausea, gave her an ice pack to place over her eye, treated her with injections of Nubain (20 mg.) and Vistaril (100 mg.) and prescribed Vistaril (100 mg., quantity of 50) for her.
On March 22, 1991, R.M. presented to Respondent with complaints of depression. She told Respondent, among other things, that she was having marital problems.
While R.M. was depressed about her family situation, her depression was not severe and, based upon his conversation with her, Respondent reasonably believed that she was not a candidate to commit suicide. Consequently, he did not specifically ask her whether she had any suicidal ideation.
Respondent's record of this March 22, 1991, visit reflects that R.M. had been taking Fioricet, Lortab and Prozac. His records of her prior visits, however, gave no indication that Respondent or another physician had prescribed these medications for her.
Fioricet is used to relieve tension headaches.
Lortab is a pain medication.
Prozac is used to treat depression.
On March 25, 1991, R.M. presented to Respondent with a migraine headache and a non-healing abscess on her left hip.
Respondent drained the abscess.
He also gave R.M. injections of Phenergan and Nubain (10 mg.).
Respondent's record of this March 25, 1991, visit reflects that R.M. had been taking, among other medications, Xanax, a medication that is indicated for the management of generalized anxiety disorders. His records of her prior visits, however, gave no indication that Respondent or another physician had ever prescribed Xanax for her.
On April 10, 1991, Respondent treated R.M. for severe headaches and nausea.
Respondent's record of this April 10, 1991, visit reflects that R.M. had been taking, among other medications, Percocet. His records of her prior visits, however, gave no indication that Respondent or another physician had ever prescribed Percocet for her.
On May 2, 1991, R.M. presented to Respondent with a headache, sinus troubles, and an abscess on her buttock.
Respondent drained the abscess.
He also gave R.M. injections of Vistaril (100 mg.) and Nubain (20 mg.).
On November 27, 1991, R.M. presented to Respondent with complaints of a headache and sinus trouble. She had a swollen face and blood coming out of both sides of her nose.
Respondent treated R.M. with injections of Nubain (20 mg.) and Vistaril (100 mg.) and referred her to an ear, nose and throat (hereinafter referred to as "ENT") specialist. In addition, he suggested that X-rays be taken and that a CAT scan be done of her sinuses. Respondent did not conduct a funduscopic examination during the visit.
R.M.'s last visit to Respondent was on November 28, 1991. It was an unscheduled, emergency visit.
During the period of time that R.M. was his patient (April 10, 1990, to November 28, 1991), Respondent, in toto, saw her 28 times. On approximately
15 of these visits, including R.M.'s initial visit on April 10, 1990, Respondent diagnosed R.M. as having either sinusitis, acute sinusitis, or sinus headaches.
In treating R.M., Respondent gave her, collectively, the following injections and prescriptions: Injections- 16 injections of Nubain; 25 injections of Vistaril; seven injections of Demerol; two injections of Phenergan; and three injections of Toradol; Prescriptions: 90 tablets of Percocet; 50 Halcion tablets; 140 units of Fiorinal; two prescriptions of Prozac; one prescription of Toradol tablets; two prescriptions of Beconase; and one prescription of Ru-Tuss.
In not doing the following while R.A. was his patient, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent family practice physician would have recognized as being acceptable and appropriate at the time: attempting, during R.M.'s March 10, 1991, visit, to conduct either a basic eye or neurological examination (which would have included an examination of R.M.'s fundi); and referring R.M. to an ENT specialist sooner than November 27, 1991.
Facts Relating to Counts 10 and 11
On December 16, 1988, the Board of Medicine issued a Final Order in DPR Case Nos. 00-37320 and 00-53427 disposing of disciplinary charges that had been filed against Respondent by, among other things, placing Respondent on probation for a period of five years, with the condition that he "not in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto."
On or about May 15, 1991, Respondent's license to practice medicine in the State of Florida was suspended.
On that same date, Respondent was presented with, and he signed, a Voluntary Surrender of Controlled Substances Privilege form.
By signing the form, he effectively surrendered his federal Drug Enforcement Administration (hereinafter referred to as "DEA") Certificate of Registration and acknowledged that he understood that he would "not be permitted to order, manufacture, distribute, possess, dispense, administer, prescribe, or engage in any other controlled substance activities whatever, until such time as [he was] again properly registered." In conjunction with the surrender of his federal registration, he also surrendered to an agent of the State of Florida Department of Health and Rehabilitative Services (hereinafter referred to as "HRS") the controlled substances in his possession.
In or about August of 1991, Respondent's license to practice medicine in the State of Florida was reinstated.
Shortly thereafter HRS returned to Respondent the controlled substances he had surrendered.
During August and September of 1991, Respondent possessed, stored and dispensed controlled substances without having a DEA registration.
Although his attorney at the time told him that, inasmuch as his medical license had been reinstated, there was no legal impediment to his engaging in such controlled substance activities, Janice Barnes, a DEA investigator, advised him to the contrary on several occasions.
CONCLUSIONS OF LAW
The Board of Medicine (hereinafter referred to as the "Board") is statutorily empowered to take disciplinary action against a physician licensed to practice medicine in the State of Florida based upon any of the grounds enumerated in Section 458.331(1), Florida Statutes.
Where the disciplinary action sought is the revocation or suspension of the physician's license, the proof of guilt must be clear and convincing. See Section 458.331(3), Fla. Stat.; Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pic N' Save v. Department of Business Regulation, 601 So.2d 245 (Fla. 1st DCA 1992); Munch v. Department of Professional Regulation, 592 So.2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department of Law Enforcement, 585 So.2d 500 (Fla. 3d DCA 1991). "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." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
Where the discipline does not involve the loss of licensure, the physician's guilt need be established by only a preponderance of the evidence. See 458.331(3), Fla. Stat.; Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990).
Regardless of the disciplinary action taken, it may be based only upon the violations specifically alleged in administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).
Furthermore, in determining whether Section 458.331(1), Florida Statutes, has been violated in the manner charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute. . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So.2d 923, 925 (Fla. 1st DCA 1977).
The Amended Administrative Complaint issued in the instant case charges Respondent with committing: one violation of Section 458.331(1)(g), Florida Statutes, (Count 10); three violations of Section 458.331(1)(m), Florida Statutes, (Counts 3, 6 and 9); three violations of Section 458.331(1)(q), Florida Statutes, (Counts 2, 5 and 8); three violations of Section 458.331(1)(t), Florida Statutes, (Counts 1, 4 and 7); and one violation of Section 458.331(1)(x), Florida Statutes, (Count 11).
At all times material to the instant case, subsection (1)(g) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[f]ailing to perform any statutory or legal obligation placed upon a licensed physician."
At all times material to the instant case, Title 21, U.S.C., has required physicians who possess, store and dispense controlled substances in connection with their practice to have a current and otherwise valid DEA Certificate of Registration authorizing them to engage in such activities.
Count 10 of the Amended Administrative Complaint alleges that, in August and September of 1991, after he voluntarily surrendered his DEA Certificate of Registration, Respondent failed to meet this legal obligation imposed by Title 21, U.S.C., and thereby violated subsection (1)(g) of Section 458.331, Florida Statutes.
The evidence clearly and convincingly demonstrates that, as alleged in Count 10 of the Amended Administrative Complaint, Respondent possessed, stored and dispensed controlled substances without having a current and otherwise valid DEA Certificate of Registration, contrary to the requirements of Title 21, U.S.C., and, therefore, in violation of Section 458.331(1)(g), Florida Statutes.
Accordingly, Respondent should be found guilty of this alleged violation of Section 458.331(1), Florida Statutes, and disciplined therefor.
At all times material to the instant case, subsection (1)(m) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[f]ailing to keep written 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."
This statutory provision does not purport to encompass "JCAH standards or those of a 'reasonably prudent physician;'" nor can it "be interpreted as authorizing disciplinary action for a physician's failure to document in a patient's medical chart a basis for not undertaking a particular course of treatment." Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So.2d 469, 471 (Fla. 1st DCA 1990).
Count 3 of the Amended Administrative Complaint alleges that Respondent violated subsection (1)(m) of Section 458.331, Florida Statutes, "on or about February 25, 1991, [by] inappropriately fail[ing] to note the amount of Lortab and Amoxicillin he administered to [L.A.]."
The evidence, however, establishes that Respondent did not administer Lortab, Amoxicillin or, for that matter, any other medication to L.A. on or about February 25, 1991, and that it was not until April 29, 1991, more than two months later, that he first even saw L.A.
Accordingly, Count 3 of the Amended Administrative Complaint should be dismissed.
Count 6 of the Amended Administrative Complaint alleges that Respondent violated subsection (1)(m) of Section 458.331, Florida Statutes, by "fail[ing] to . . . record the amount of Percocet, Fiorinal, and Desyrel prescribed to [R.A.] on or about May 6, 1991."
The evidence reveals that the medical records that Respondent kept on
R.A. contain information regarding the amount of Percocet he prescribed for R.A. on May 6, 1991.
Accordingly, to the extent that Count 6 of the Amended Administrative Complaint alleges the contrary, it should be dismissed.
The evidence, though, clearly and convincingly demonstrates that, as alleged in Count 6 of the Amended Administrative Complaint, Respondent's medical records on R.A. do not indicate the amounts of Fiorinal and Desyrel that he prescribed for her on May 6, 1991.
His failure to have included this information in these medical records was a violation subsection (1)(m) of Section 458.331, Florida Statutes, for which he should be disciplined.
Count 9 of the Amended Administrative Complaint alleges that Respondent violated subsection (1)(m) of Section 458.331, Florida Statutes, by "fail[ing] to . . . note the amount of the injections of Phenergan and Toradol which he administered to [R.M.] on or about April 10, 1990; and fail[ing] to explain or justify [R.M.] being on the following drugs on the corresponding dates: Lortab and Prozac on or about March 22, 1991; Xanax, on or about March 25, 1991; [and] Percocet, on or about April 10, 1991."
The evidence does not clearly and convincingly establish that Respondent administered, dispensed, or prescribed, or was otherwise responsible for R.M. "being on," "Lortab and Prozac on or about March 22, 1991; Xanax, on or about March 25, 1991; [and] Percocet, on or about April 10, 1991."
Accordingly, to the extent that Count 9 of the Amended Administrative Complaint alleges that Respondent violated subsection (1)(m) of Section 458.331, Florida Statutes, by failing to keep medical records justifying R.M. "being on" these drugs, it should be dismissed inasmuch as a physician is under no obligation, pursuant to this statutory provision, to provide written justification or explanation for treatment prescribed by someone not connected with his practice.
The evidence, though, clearly and convincingly demonstrates that, as alleged in Count 9 of the Amended Administrative Complaint, Respondent did give
R.M. injections of Phenergan and Toradol on April 10, 1990, but failed to indicate in his medical records on R.M. the amounts of Phenergan and Toradol that he injected.
His failure to have included this information in these medical records was a violation subsection (1)(m) of Section 458.331, Florida Statutes, for which he should be disciplined.
At all times material to the instant case, subsection (1)(q) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[p]rescribing, dispensing, administering, mixing or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's practice" and has further provided as follows:
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
professional practice, without regard to his intent.
Count 2 of the Amended Administrative Complaint alleges that Respondent violated subsection (1)(q) of Section 458.331, Florida Statutes, by "prescrib[ing] pain medication to [L.A.] without conducting follow-up to ascertain the etiology of [L.A.'s] polyarthritis and fever."
The evidence, however, does not clearly and convincingly establish that it was in any way inappropriate for Respondent to prescribe pain medication to L.A., when he did, to relieve L.A.'s suffering.
Accordingly, Count 2 of the Amended Administrative Complaint should be dismissed.
Count 5 of the Amended Administrative Complaint alleges that Respondent "failed to prescribe, dispense, administer, mix, or otherwise prepare a legend drug, including any controlled substance, other than in the course of his professional practice [in violation of subsection (1)(q) of Section 458.331, Florida Statutes] in that between on or about March 29, 1990 and on or about October 27, 1991, Respondent provided one or more of the following injections and prescriptions to [R.A.] in the corresponding quantities: eight (8) injections of Nubain; sixteen (16) injections of Vistaril; seven (7) injections of Tigan; five (5) injections of Demerol; one (1) injection of
Buprenex; and one (1) injection of Toradol; four hundred and ninety (490) Percocet tablets; four (4) Tigan suppositories; forty (40) Tigan tablets; undisclosed samples of Vicodin; thirty (30) tablets of Reglan; three (3) Lortab tablets; twenty (20) Norflex tablets; and an undisclosed amount of Desyrel."
While the evidence establishes that Respondent "provided" these "injections and prescriptions" to R.A. during the period of time that she was under his care, it does not clearly and convincingly demonstrate that, in so doing, as alleged in Count 5 of the Amended Administrative Complaint, Respondent acted "other than in the course of his professional practice," as that phrase is used in subsection (1)(q) of Section 458.331, Florida Statutes.
Accordingly, Count 5 of the Amended Administrative Complaint should be dismissed.
Count 8 of the Amended Administrative Complaint alleges that Respondent "failed to prescribe, dispense, administer, mix, or otherwise prepare a legend drug, including any controlled substance, other than in the course of his professional practice [in violation of subsection (1)(q) of Section 458.331, Florida Statutes] in that Respondent provided one or more of the following injections and prescriptions to [R.M.] in the corresponding quantities: sixteen
(16) injections of Nubain; twenty-five (25) injections of Vistaril; seven (7) injections of Demerol; and two (2) injections of Phenergan; ninety (90) tablets of Percocet; fifty (50) Halcion tablets; one hundred and forty units of Fiorinal; two prescriptions of Prozac, the amounts of which are not noted; three (3) injections of Toradol; one (1) prescription of Toradol tablets; two
(2) prescriptions of Beconase; and one (1) undisclosed prescription of Ru- Tuss."
While the evidence establishes that Respondent "provided" these "injections and prescriptions" to R.M. during the period of time that she was under his care, it does not clearly and convincingly demonstrate that, in so doing, as alleged in Count 8 of the Amended Administrative Complaint, Respondent acted "other than in the course of his professional practice," as that phrase is used in subsection (1)(q) of Section 458.331, Florida Statutes.
Accordingly, Count 8 of the Amended Administrative Complaint should be dismissed.
At all times material to the instant case, subsection (1)(t) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[g]ross 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."
A physician may be found guilty of such a violation based upon only a single "instance, event or act." Section 458.331(1)(t), Fla. Stat.
Count 1 of the Amended Administrative Complaint alleges that Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, by failing "to do one or more of the following: conduct a physical examination of [L.A.] on or about February 25, 1991, and on or about April 26, 1991; aggressively follow-up on [L.A.'s] arthritis profile and conduct diagnostic x-
rays; obtain culture, sensitivity, and gram stain of the aspirated fluid from [L.A.'s] elbow; follow-up on [L.A.'s] highly elevated eosinophil count; and/or ascertain the history and location of [L.A.'s] ulcer."
The evidence establishes that L.A. did not become Respondent's patient until April 29, 1991, at which time L.A. was given a physical examination.
Accordingly, to the extent that Count 1 of the Amended Administrative Complaint alleges that Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, by failing to "conduct a physical examination of [L.A.] on or about February 25, 1991, and on or about April 26, 1991," it should be dismissed.
The evidence further establishes that, while L.A. mentioned, during his May 9, 1991, visit to Respondent that he had an ulcer, he gave no indication that it was causing him any problems.
There has been no clear and convincing showing that, under such circumstances, a reasonably prudent family practice physician would have attempted to "ascertain the history and location of [L.A.'s] ulcer."
Accordingly, to the extent that Count 1 of the Amended Administrative Complaint alleges that, in failing to make such an attempt, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, it should be dismissed.
The evidence does clearly and convincingly establish, however, that, in not doing the following while L.A. was his patient, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent family practice physician would have recognized as being acceptable and appropriate at the time: having the fluid he had aspirated from L.A.'s elbow tested; ordering additional tests to determine the cause of L.A.'s highly elevated eosinophil count; and following-up on L.A.'s arthritis profile to determine the etiology of L.A.'s polyarthritis.
In failing to take such action, as alleged in Count 1 of the Amended Administrative Complaint, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, and he should be disciplined therefor.
Count 4 of the Amended Administrative Complaint alleges that Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, by failing "to do one or more of the following in the treatment of [R.A.]: inquire into possible suicidal ideation on or about March 29, 1990, and through on or about May 6, 1991; hospitalize her regarding the possible laceration of her liver on or about October 16, 1990; conduct a stool hemoccult of [R.A.] on or about December 17, 1990; and order an EKG or further cardiac work-up on or about September 29, 1991."
The evidence establishes that, while there were occasions that R.A. was depressed when she presented to Respondent, on these occasions, based upon his conversations, with her, Respondent reasonably believed that R.A. was not a candidate to commit suicide.
There has been no clear and convincing showing that, under such circumstances, a reasonably prudent family practice physician would have specifically asked R.A. whether she had any suicidal ideation.
Accordingly, to the extent that Count 4 of the Amended Administrative Complaint alleges that, in failing to make such specific inquiry, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, it should be dismissed.
The evidence further establishes that, while R.A. initially presented to Respondent on September 29, 1991, with complaints of severe abdominal cramps and bloating, backache, diarrhea, vomiting, rapid heart beats, and chest pain and pressure, she was, at the time, a 38-year old, pre-menopausal woman with a low risk of having a myocardial infarction and, furthermore, her condition improved markedly during the course of her visit that day.
There has been no clear and convincing showing that, under such circumstances, a reasonably prudent family practice physician would have ordered a electrocardiogram or other cardiac work-up for R.A.
Accordingly, to the extent that Count 4 of the Amended Administrative Complaint alleges that, in failing to take such action, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, it should be dismissed.
The evidence does clearly and convincingly establish, however, that, in not doing the following while R.A. was his patient, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent family practice physician would have recognized as being acceptable and appropriate at the time: hospitalizing her regarding the possible laceration of her liver on or about October 16, 1990; and conducting a stool Hemoccult on or about December 17, 1990, to check for the presence of blood in R.A.'s stool.
In failing to take such action, as alleged in Count 4 of the Amended Administrative Complaint, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, and he should be disciplined therefor.
Count 7 of the Amended Administrative Complaint alleges that Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, by failing "to do one or more of the following in the treatment of [R.M.]: refer [R.M.] to an ENT specialist in a timely manner; inquire into possible suicidal ideations of [R.M.] or refer her for psychiatric consultation or counseling; conduct a complete eye examination, a funduscopic exam, and a neurological or opthalmological referral on or about March 10, 1991; drain [R.M.'s] abscesses on or about March 25, 1991, and on or about May 2, 1991; and obtain a funduscopic exam of [R.M.] on or about November 27, 1991."
The evidence establishes that, although R.M. presented to Respondent on March 22, 1991, with complaints of depression, based upon his conversation with her during the visit that day, Respondent reasonably believed that R.M. was not a candidate to commit suicide.
There has been no clear and convincing showing that, under such circumstances, a reasonably prudent family practice physician would have specifically asked R.M. whether she had any suicidal ideation.
Accordingly, to the extent that Count 7 of the Amended Administrative Complaint alleges that, in failing to make such specific inquiry, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, it should be dismissed.
The evidence further establishes that on March 25, 1991, and again on May 6, 1991, Respondent drained R.M.'s abscesses.
Accordingly, to the extent that Count 7 of the Amended Administrative Complaint alleges to the contrary, it should be dismissed.
While the evidence also establishes that Respondent did not conduct a funduscopic examination during R.M.'s November 27, 1991, visit, there has been no clear and convincing showing that a reasonably prudent family practice physician, faced with the same circumstances that confronted Respondent, would have acted differently and performed such an examination.
Accordingly, to the extent that Count 7 of the Amended Administrative Complaint alleges that, in failing to conduct such an examination on November 27, 1991, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, it should be dismissed.
The evidence does clearly and convincingly establish, however, that, in not doing the following while R.M. was his patient, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent family practice physician would have recognized as being acceptable and appropriate at the time: attempting, during R.M.'s March 10, 1991, visit, to conduct either a basic eye or neurological examination (which would have included an examination of R.M.'s fundi); and referring R.M. to an ENT specialist sooner than November 27, 1991.
In failing to take such action, as alleged in Count 7 of the Amended Administrative Complaint, Respondent violated subsection (1)(t) of Section 458.331, Florida Statutes, and he should be disciplined therefor.
At all times material to the instant case, subsection (1)(x) of Section 458.331(1), Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "violating any provision of . . . a lawful order of the board or department previously entered in a disciplinary hearing."
Count 11 of the Amended Administrative Complaint alleges that "by his activities violating Chapter 458, Florida Statutes, such as failing to conduct physical examinations when indicated, failing to follow-up on complaints presented by patients, failing to refer patients to specialists when indicated, failing to prescribe appropriately, and failing to record quantities of medications prescribed, Respondent failed to comply with the December 16, 1988, Final Order by the Board of Medicine," and thereby also violated subsection (1)(x) of Section 458.331, Florida Statutes.
The December 16, 1988, Final Order referenced in Count 11 of the Amended Administrative Complaint was issued in DPR Case Nos. 00-37320 and 00- 53427. It disposed of disciplinary charges that had been filed against Respondent by, among other things, placing Respondent on probation for a period of five years, with the condition that he "not in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto."
As noted, the evidence clearly and convincingly demonstrates that, during the period of his probation, Respondent possessed, stored and dispensed controlled substances without having a current and otherwise valid DEA Certificate of Registration, contrary to the requirements of Title 21, U.S.C., and, therefore, also in violation of Section 458.331(1)(g), Florida Statutes;
failed to maintain medical records indicating the amounts of Fiorinal and Desyrel he prescribed for R.A. on May 6, 1991, and the amounts of Phenergan and Toradol he administered, by injection, to R.M. on April 10, 1990, in violation of Section 458.331(1)(m), Florida Statutes; and failed to have the fluid he had aspirated from L.A.'s elbow tested, failed to order additional tests to determine the cause of L.A.'s highly elevated eosinophil count, failed to
follow-up on L.A.'s arthritis profile to determine the etiology of L.A.'s polyarthritis, failed to hospitalize R.A. regarding the possible laceration of her liver on or about October 16, 1990, failed to conduct a stool Hemoccult on or about December 17, 1990, to check for the presence of blood in R.A.'s stool, failed to attempt, during R.M.'s March 10, 1991, visit, to conduct either a basic eye or neurological examination (which would have included an examination of R.M.'s fundi), and failed to refer R.M. to an ENT specialist sooner than November 27, 1991, in violation of Section 458.331(1)(t), Florida Statutes.
In committing these violations of Section 458.331(1), Florida Statutes, Respondent failed to comply with the Board's December 16, 1988, Final Order in DPR Case Nos. 00-37320 and 00-53427 and thus violated subsection (1)(x) of Section 458.331, Florida Statutes, as alleged in Count 11 of the Amended Administrative Complaint.
To the extent that Count 11 alleges that Respondent committed other violations of Section 458.331(1), Florida Statutes, during the period of his probation, it is not supported by clear and convincing evidence and therefore should be dismissed.
The Board is, and has been at all times material to the instant case, authorized to impose one or more of the following penalties for a violation of subsection (1) of Section 458.331, Florida Statutes: license revocation; license suspension; restriction of practice; imposition of an administrative fine not to exceed $5,000 for each count or separate offense; issuance of a reprimand; placement of the physician on probation; issuance of a letter of concern; corrective action; and refund of fees billed to and collected from the patient. Section 458.331(2), Fla. Stat.
In determining which of these penalties the Board should select, it is necessary to consult Chapter 61F6-20, Florida Administrative Code, which contains the disciplinary guidelines adopted by the Board. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
Subsection (2) of Rule 61F6-20.001, Florida Administrative Code, sets forth "the range of penalties which will routinely be imposed" for a "single count violation" of each of the statutory provisions listed.
For a "single count violation" of subsection (1)(g) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 61F6-20.001, Florida Administrative Code, is a minimum of a reprimand up to a maximum of license revocation and an administrative fine of
$5,000.00.
For a "single count violation" of subsection (1)(m) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 61F6-20.001, Florida Administrative Code, is a minimum of a reprimand up to a maximum of two years license suspension followed by probation, and an administrative fine of $5,000.00.
For a "single count violation" of subsection (1)(t) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 61F6-20.001, Florida Administrative Code, is a minimum of two years probation up to a maximum of license revocation and an administrative fine of $5,000.00.
For a "single count violation" of subsection (1)(x) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 61F6-20.001, Florida Administrative Code, is a minimum of a reprimand up to a maximum of license revocation and an administrative fine of
$5,000.00.
Subsection (3) of Rule 61F6-20.001, Florida Administrative Code, provides that the Board may impose a penalty outside the normal range where there are mitigating or aggravating circumstances.
The mitigating or aggravating circumstances that, according to subsection (3) of Rule 61F6-20.001, Florida Administrative Code, may warrant such a deviation are as follows:
Exposure of patient or public to injury or potential injury, physical or otherwise:
none, slight, severe or death;
Legal status at the time of the offense: no restraints or legal constraints;
The number of counts or separate offenses established;
The number of times the same offense or offenses have previously been committed by
the licensee . . .;
The disciplinary history of the . . . licensee in any jurisdiction and the length of practice;
Pecuniary benefit or self-gain inuring to the . . . licensee;
Any other relevant mitigating factors.
Subsection (1) of Rule 61F6-20.001, Florida Administrative Code, provides that "[m]ultiple counts of the violated provision or a combination of the violations may result in a higher penalty than that for a single, isolated violation."
Having carefully considered the particulars of the instant case (including, but not limited to, the number of violations committed by Respondent, his probationary status at the time the violations were committed, and the severity of the potential harm to which his patients were exposed) in light of the principles of law and statutory and rule provisions set forth above, the Hearing Officer concludes that the appropriate penalty to impose upon Respondent is the suspension of his license to practice medicine in the State of Florida for a period of five years, followed by five years of probation, and an administrative fine in the amount of $10,000.00.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the alleged violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dissmissing the remaining allegations against him and disciplining him for the violations he committed by suspending his license to practice medicine in the State of Florida for a period of five years, placing him on probation for the following five years, and imposing an administrative fine in the amount of $10,000.00.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of June, 1994.
STUART M. LERNER
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 15th day of June, 1994.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-3689
The following are the Hearing Officer's specific rulings on the "facts" proposed by the Department in its proposed recommended order:
1-3. Rejected because of inadequate evidentiary/record support.
4-6. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.
First and third sentences: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding states that L.A. mentioned, during his May 9, 1991, visit, that he had an ulcer, it has been accepted and incorporated in substance. To the extent that it states that L.A. "complained" about the ulcer, it has been rejected because of inadequate evidentiary/record support.
Accepted and incorporated in substance.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is more in the nature of a summary of testimony than a finding of fact.
Accepted and incorporated in substance.
First and second sentences: Accepted and incorporated in substance.
Rejected because it is outside the scope of the specific charges set forth in the Amended Administrative Complaint.
To the extent that this proposed finding states that Respondent should have "conduct[ed] a physical examination of L.A. on February 25, 1991 and on April 26, 1991," it has been rejected because of inadequate evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
14-15. Rejected because of inadequate evidentiary/record support.
Accepted and incorporated in substance.
Rejected because of inadequate evidentiary/record support.
First sentence: Rejected because of inadequate evidentiary/record support; Second and third sentences: Accepted and incorporated in substance.
19-20. Accepted and incorporated in substance.
21. Rejected because it is outside the scope of the specific charges set forth in the Amended Administrative Complaint.
22-24. Accepted and incorporated in substance.
To the extent that this proposed finding states that the amount of Percocet Respondent prescribed for R.A. was not in any way reflected in Respondent's medical records on R.A. and further states that Respondent had reason to believe that R.A. had "possible suicidal ideation," it has been rejected because of inadequate evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
Rejected because of inadequate evidentiary/record support.
First sentence: Accepted and incorporated in substance; Second sentence: Rejected because of inadequate evidentiary/record support.
To the extent that this proposed finding states that Respondent should have "inquire[d] into possible suicidal ideation on March 29, 1990 and through May 6, 1991" and "order[ed] an EKG or further cardiac work-up on September 29, 1991," it has been rejected because of inadequate evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Rejected because of inadequate evidentiary/record support.
To the extent that this proposed finding states that "Respondent failed to record the amount of Percocet . . . prescribed to R.A. on May 6, 1991," it has been rejected because of inadequate evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
First, second and third sentences: Accepted and incorporated in substance; Remaining sentences: To the extent that these proposed findings are intended to refer to R.M.'s visit of April 10, 1991, they are accepted and incorporated in substance. To the extent that they are intended to refer to R.M.'s visit of April 10, 1990, they have been rejected because of inadequate evidentiary/record support.
33-35. Accepted and incorporated in substance.
Rejected because it is more in the nature of a summary of testimony than a finding of fact.
Accepted and incorporated in substance.
First and third sentences: Accepted and incorporated in substance; Second sentence: Rejected because of inadequate evidentiary/record support.
To the extent that this proposed finding states that R.M. visited Respondent 27, not 28, times, that on 16, not 15, of these visits Respondent diagnosed R.M. with either sinusitis, acute sinusitis, or sinus headaches, and that Respondent did not refer R.M. to an ENT specialist until November 28, rather than 27, 1991, it has been rejected because of inadequate evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
41-43. Rejected because inadequate evidentiary/record support.
To the extent that this proposed finding states that Respondent should have "inquire[d] into possible suicidal ideation of R.M. or refer her for psychiatric consultation or counseling," it has been rejected because of inadequate evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
Rejected because of inadequate evidentiary/record support.
To the extent that this proposed finding states that Respondent should have "explain[ed] or justif[ied] R.M.'s being on the following drugs on the corresponding dates; Lortab and Prozac on March 22, 1991; Xanax, on March 25, 1991; [and] Percocet, on April 10, 1991," it has been rejected because of inadequate evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.
47-48. Accepted and incorporated in substance.
49. Rejected as a finding of fact because it is more in the nature of legal argument.
50-52. Accepted and incorporated in substance.
53-54. Rejected as findings of fact because they are more in the nature of legal argument.
COPIES FURNISHED:
Steven A. Rothenburg, Esquire Department of Business and
Professional Regulation 1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Sheldon R. Zilbert, Esquire
200 South Biscayne Boulevard Suite 3120
Miami, Florida 33131
Dr. Marm Harris, Executive Director Board of Medicine
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Jack McRay, Esquire General Counsel
Department of Business and Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period of time within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE
AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,
Petitioner,
CASE NO. 91-12504
vs. DOAH CASE NO. 93-3689
TEJ PAL SINGH JOWHAL, M.D.
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on September 30, 1994, in Coral Gables, Florida, for consideration of the Hearing Officer's Recommended Order, Exceptions to the Recommended Order filed by the Petitioner and the Responses thereto filed by the Respondent (Attached as Exhibits A, B and C, respectively) in the case of Agency for Health Care Administration, Board of Medicine V. Tej Pal Singh Jowhal, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent appeared and was represented by Sheldon R. Zilbert, Esquire. Upon consideration of the Hearing Officer's Recommended Order, review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions of law:
Ruling on Respondent's Exceptions to the Findings of Fact
Respondent's Exception to the Findings of Fact in paragraph 9 of the Recommended Order that Respondent had diagnosed L.A. with polyarthritis is rejected. Competent, substantial evidence of record (Exhibit 5) supports the Hearing Officer making this Finding of Fact. Although Respondent may point to contrary evidence of record, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh. Gershanik
v. DPR, 458 So.2d 302 (Fla.3rd DCA 1984); Goss v. District School Bd. of St. Johns County 601 So.2d 1232 (Fla. 5th DCA 1992); Cenac v. Florida State Board of Accountancy, 399 So.2d 1013 (1981).
Respondent's Exception to the Findings of Fact in paragraph 16 of the Recommended Order that there was substantial likelihood that patient L.A. had an infection, is rejected. Competent, substantial evidence of record, including expert witness testimony at page 129 of the transcript, supports the Hearing Officer making this Finding of Fact. Although Respondent may point to contrary
expert opinion, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 18 of the Recommended Order that patient L.A. had an elevated eosinophil count is rejected. Competent, substantial evidence of record, including expert witness testimony at pages 134-135 of the transcript, supports the Hearing Officer making this Finding of Fact. Although Respondent may point to contrary expert testimony, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 19 of the Recommended Order that patient L.A. made a second visit to Respondent with continued complaints of aches and pains, is rejected. Competent, substantial evidence of record supports the Hearing Officer making this Finding of Fact. Although Respondent may point to contrary evidence of record, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 20 of the Recommended Order that Respondent had diagnosed L.A. with polyarthritis is rejected. Competent, substantial evidence of record (Exhibit 5) supports the Hearing Officer making this Finding of Fact. Although Respondent may point to contrary evidence of record, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 22 of the Recommended Order that Respondent's care of patient L.A. was below an acceptable standard of care, is rejected. Competent, substantial evidence of record, including expert witness testimony, supports the Hearing Officer making this Finding of Fact. Although Respondent may point to contrary expert witness testimony, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 30 of the Recommended Order that patient R.A. had complained to Respondent of pain caused after poking herself with a sharp object, is rejected. Competent, substantial evidence of record supports the Hearing Off icer making this Finding of Fact. Although Respondent may point to contrary evidence of record, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 31 of the Recommended Order that Respondent believed there was a possibility that patient
R.A. had laceration of the liver, is accepted. There was no competent, substantial evidence of record to support this finding by the Hearing Officer.
Respondent's Exception to the Findings of Fact in paragraph 35 of the Recommended Order that Respondent didn't perform a stool Hemocult after patient
R.A. complained of black bowel movements, is rejected. Competent, substantial evidence of record supports the Hearing Officer making this finding of fact.
Although Respondent may point to other considerations that the Respondent may have had for not performing this test, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 43 of the Recommended Order that Respondent did not make certain entries in patient R.A.'s medical chart, is rejected. Competent, substantial evidence of record supports the Hearing Officer making this Finding of Fact. Although Respondent may point to contrary evidence of record, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 48 of the Recommended Order that patient R.A. had a liver laceration, is accepted. The following portion of paragraph 48 is rejected: ". . .hospitalizing R.A. on October 16, 1990, for further evaluation and treatment to make certain that she was not going to hemorrhage to death as a result of a liver laceration;" because there is no competent, substantial evidence of record to support the Hearing Officer making this Finding of Fact. The remainder of the finding in paragraph
48 is accepted.
Respondent's Exception to the Findings of Fact in paragraph 53 of the Recommended Order that Respondent didn't record the amount of Toradol in patient R.M.'s medical chart, is rejected. Competent, substantial evidence of record supports the Hearing Officer making this Finding of Fact. Although Respondent may point to other considerations that the Respondent may have had for not recording the amount, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 57 of the Recommended Order that Respondent didn't take appropriate action for patient
R.M. in the face of a life threatening infection, is rejected. Competent, substantial evidence of record, including expert witness testimony, supports the Hearing Officer making this Finding of Fact. Although Respondent may point to contrary expert witness opinion, it is well settled that resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 79 of the Recommended Order that Respondent's care of patient R.M. was below an acceptable standard of care in failing to conduct appropriate tests and failing to make appropriate referrals to a specialist, is rejected. Competent, substantial evidence of record, including expert witness testimony, supports the Hearing Officer making this Finding of Fact. Although Respondent may point to contrary expert witness testimony, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 83 of the Recommended Order that Respondent surrendered his DEA license, is rejected. Competent, substantial evidence of record supports the Hearing Officer making this Finding of Fact. Although Respondent may point to testimony or argument that Respondent was "bullied" into surrendering his license is irrelevant to the case in issue.
Respondent's Exception to the Findings of Fact in paragraph 86 of the Recommended Order that Respondent possessed. stored and dispensed controlled substances without a DEA license, is rejected. Competent, substantial evidence of record supports the Hearing Officer making this Finding of Fact. Although Respondent may point to other considerations that the Respondent may have had for keeping controlled substances in his office, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of the Hearing Officer and not a matter for the Board to review and reweigh.
Respondent's Exception to the Findings of Fact in paragraph 87 of the Recommended Order that Respondent was advised by the DEA agent not to engage in controlled substance activities, contrary to what Respondent's personal attorney may have advised him, is rejected. Competent, substantial evidence of record supports the Hearing Officer making this Finding of Fact. Although Respondent may point to other considerations that the Respondent may have had for not adhering to the DEA advice to cease controlled substance activities, it is well settled that the resolution of factual matters and the credibility of witnesses is solely within the province of thee Hearing Officer and not a matter for the Board to review and reweigh.
FINDINGS OF FACT
The Hearing Officer's Recommended Findings of Fact, with the above described amendments to paragraphs 31 and 48, are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.
There is competent, substantial evidence to support the Board's findings, as amended, herein.
Ruling's on Respondent's Exceptions to Conclusions of Law
Respondent's Exception to paragraph 95 of the Conclusions of Law of the Recommended Order that Title 21, U.S.C., sets out certain certification requirements for physicians engaged in controlled substance activities, is rejected. This Conclusion is a recitation of the provisions of Title 21 and is not a Conclusion regarding the application of the provision to the facts of this case.
Respondent's Exception to paragraph 97 of the Conclusions of Law of the Recommended Order that Respondent violated his legal obligation as alleged in Cont 10 of the Administrative Complaint, is rejected. This conclusion is based upon competent substantial evidence that Respondent did not have a valid DEA license at a time in which he was engaged in controlled substance activities. The Hearing Officer correctly applied the facts to the law as set out in Title 21, U.S.C.
Respondent's Exception to paragraph 98 of the Conclusion of Law of the Recommended Order that Respondent is in violation of Section 458.331(1), Florida Statutes, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception was conclusory and without specific basis for the exception.
Respondent's Exception to paragraph 107 of the Conclusion of Law of the Recommended Order that Respondent's records on patient R.A. do not indicate the amounts of certain medications prescribed on May 6, 1991, is rejected. This
Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception was conclusory and without specific basis for the exception.
Respondent's Exception to paragraph 108 of the Conclusion of Law of the Recommended Order that Respondent is in violation of Section 458.331(1)(m), Florida Statutes, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception was conclusory and without specific basis for the exception.
Respondent's Exception to paragraph 109 of the Conclusion of Law of the Recommended Order that, with regard to patient R.M., Respondent is in violation of Section 458.331(1)(m), Florida Statutes, by failing to mote the amount of certain injected medications and the prescription of certain controlled substances, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception was conclusory and without specific basis for the exception.
Respondent's Exception to paragraph 112 of the Conclusion of Law of the Recommended Order that, with regard to patient R.M., Respondent failed to note the amounts of Phenergan and Toradol, injected medications, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception that the Hearing Officer erred because Toradol comes in standard dosage units is a matter of conflict expert testimony, which was a matter for the Hearing Officer to determine and not a matter for the board to reweigh the credibility of witness testimony.
Respondent's Exception to paragraph 113 of the Conclusion of Law of the Recommended Order that, with regard to patient R.M., Respondent is in violation of Section 458.331(1)(m), Florida Statutes, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception was conclusory and without specific basis for the exception.
Respondent's Exception to paragraph 132 of the Conclusion of Law of the Recommended Order that, with regard to patient L.A., Respondent failed to follow up on a diagnosis of polyarthritis, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record as discussed above (Ruling on Respondent's Exceptions to the Findings of Fact, paragraphs 8 and 11).
Respondent's Exception to paragraph 133 of the Conclusion of Law of the Recommended Order that, with regard to patient L.A., Respondent is in violation of Section 458.331(1)(t), Florida Statutes, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception was conclusory and without specific basis for the exception.
Respondent's Exception to paragraph 141 of the Conclusion of Law of the Recommended Order that Respondent is in violation of Section 458.331(1)(t), Florida Statutes, for failing to take appropriate action concerning a possible liver laceration, is accepted, for reasons previously stated. However, that part of the Conclusion of Law finding Respondent in violation of Section 458.331(1)(t) for failing to order a and stool Hemocult, is accepted, for reasons previously stated in the Findings of Facts.
Respondent's Exception to paragraph 142 of the Conclusion of Law of the Recommended Order, which restates that, Respondent is in violation of Section 458.331(1)(t), Florida Statutes, for failing to take appropriate action concerning a possible liver laceration, is accepted, for reasons previously stated. However, that part of the Conclusion of Law finding Respondent in violation of Section 458.331(1)(t) for failing to order a and stool Hemocult, is accepted, for reasons previously stated.
Respondent's Exception to paragraph 151 of the Conclusion of Law of the Recommended Order that, with regard to patient R.M., Respondent failed to practice medicine with an acceptable level by not timely referring R.M. to a specialist or conducting a neurological exam, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record.
Respondent's Exception to paragraph 152 of the Conclusion of Law of the Recommended Order that, with regard to patient R.M., Respondent is in violation of Section 458.331(1)(t), Florida Statutes, by failed to practice medicine with an acceptable level of care, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception was conclusory and without specific basis for the exception.
Respondent's Exception to paragraph 156 of the Conclusion of Law of the Recommended Order that, with regard to patient R.M., Respondent is in violation of Section 458.331(1)(t), Florida Statutes, by failed to practice medicine with an acceptable level of care, is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception was conclusory and without specific basis for the exception.
Respondent's Exception to paragraph 157 of the Conclusion of Law of the Recommended Order that Respondent, in committing violations of Section 458.331(1), Florida Statutes, is in violation of previous orders of the Board and therefore in violation of Section 458.331(1)(x), Florida Statutes , is rejected. This Conclusion of Law is based upon findings which are supported by competent and substantial evidence of record. Respondent's exception was conclusory and without specific basis for the exception.
CONCLUSIONS OF LAW
The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.
There is competent substantial evidence to support the Conclusion of Law that Respondent violated Section 458.331(1)(g), Florida Statutes, as alleged in the Administrative Complaint.
The Conclusions of Law of the Recommended Order, with paragraphs 141, 142, and 156 amended, are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of law of the Board.
Counts 2, 3, 5 and 8 of the Amended Administrative Complaints are dismissed.
DISPOSITION
WHEREFORE, a violation having been found, the Board rejects the recommended penalty of the Hearing Officer and grants Respondents exception that the recommended penalty of five years of suspension, followed by five years of probation and an administrative fine in the amount of $10,000 be reduced.
Based upon the Recommendation of the Hearing Officer, the circumstances of the case, including amendments to the findings of fact and conclusions of law, the following discipline is imposed upon filing of the final order in this case:
Respondent shall pay a fine of three thousand dollars ($3,000.00) within one year of the filing of the final order in this case.
Respondent's license to practice medicine is SUSPENDED for a period of at least fifteen (15) months.
The first ninety (90) days of said SUSPENSION shall not be stayed. The following twelve (12) months of the SUSPENSION shall be stayed ONLY IF one of the following is taking place:
Respondent is in a previously board approved post graduate training program, or
Respondent is working in a previously board approved public health facility or other similarly structured board approved work environment which offers direct supervision.
After completion of the fifteen (15) month SUSPENSION period, AND upon successfully passing the Federation of State Medical Boards Special Examination (SPEX), Respondent may petition the Board for reinstatement and, upon a satisfactory demonstration that Respondent can practice medicine with reasonable skill and safety and upon presentation of a board approved practice plan, Respondent's license to practice medicine shall be reinstated and placed on PROBATION for five (5) years, the terms and conditions of which shall be determined at the time of reinstatement.
This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.
DONE and ORDERED 2nd day of November, 1994.
BOARD OF MEDICINE
EDWARD A. DAUER, M.D. CHAIRMAN
NOTICE
The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Tej Pal Singh Jowhal, M.D., and Sheldon R. Zilbert, Esquire, at 200 South Biscayne Boulevard, Suite 3120, Miami, Florida 33131, Stuart M. Lerner, Hearing Officer, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this day of *, 1994.
*(NOTE: date blank on document filed with DOAH)
Marm Harris, Ed.D. Executive Director
AMENDED CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Tej Pal Singh Jowhal, M.D., 7221 SW 58th Avenue, S. Miami, Florida 33143, Sheldon R. Zilbert, Esquire, at 200 South Biscayne Boulevard, Suite 3120, Miami, Florida 33131, Stuart M. Lerner, Hearing Officer, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida
32399-1550, and by hand delivery to Larry G. McPherson, Chief Medical Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, at or before 5:00 p.m., this 10th day of November, 1994.
Marm Harris, Ed.D.
| Issue Date | Proceedings |
|---|---|
| Nov. 14, 1994 | Final Order filed. |
| Jul. 20, 1994 | Order sent out. (Case no longer pending before the Division; Amended Motion to Abate denied) |
| Jul. 15, 1994 | (Respondent) Amended Motion to Abate Proceedings filed. |
| Jun. 28, 1994 | (Respondent) Exceptions to Recommended Order filed. |
| Jun. 15, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 01/27-28/94. |
| May 20, 1994 | (Respondent) Motion to Extend Time for Filing Proposed Recommended Order filed. |
| May 18, 1994 | Order sent out. (Motion for Extension of time is granted) |
| May 18, 1994 | Petitioner`s Proposed Recommended Order filed. |
| May 16, 1994 | (Respondent) Motion to Extend the Time for Filing Proposed Recommended Order filed. |
| May 09, 1994 | (Respondent) Motion to Dismiss for Outrageous Department Misconduct, Motion for Contempt and Motion to Impose Sanctions filed. |
| May 04, 1994 | Petitioner`s Response To Motion to Dismiss for Outrageous Department Misconduct, Motion for Contempt and Motion To Impose Sanctions filed. |
| May 02, 1994 | Transcript (Volumes I, II, III, Tagged) filed. |
| Feb. 18, 1994 | Order sent out. (Re: Receipt of transcript of deposition of Richard Campbell, M.D.) |
| Feb. 17, 1994 | Deposition of Richard Campbell filed. |
| Feb. 01, 1994 | (Petitioner`s TAGGED) Exhibits 1-5 (enclosed in notebook) filed. |
| Jan. 31, 1994 | Order sent out. (Re: Deposition of R. Campbell, M.D.; Proposed Recommended Orders to be filed within 10 days) |
| Jan. 19, 1994 | (joint) Prehearing Stipulation filed. |
| Jan. 19, 1994 | (Petitioner) Notice of Filing w/Prehearing Stipulation filed. |
| Dec. 09, 1993 | Notice of Serving Petitioner`s Second Set of Request for Interrogatories and Request for Production of Documents to Respondent w/Petitioner`s Second Set of Request for Interrogatories and Request for Production of Documents to Respondent filed. |
| Nov. 09, 1993 | Order sent out. (ruling on Motions; hearing set for Jan. 27-28, 1994;9:00am; Miami) |
| Nov. 08, 1993 | (Respondent) Motion to Adopt Motion to Continue and Motion for Abeyance and Motion to Continue filed. |
| Nov. 05, 1993 | Case No/s: 93-3689 & 93-5531 unconsolidated. |
| Nov. 03, 1993 | Petitioner`s Combined Motion to Server DOAH Case Nos. 93-3689 and 93-5531 and to Consolidate DOAH Case Nos. 93-5531 and 93-5475 filed. |
| Nov. 01, 1993 | (Respondent) Motion for Leave to Withdrawal of Counsel filed. |
| Oct. 26, 1993 | Petitioner`s Objection to Respondent`s Motion to Continue and Motion for Abeyance filed. |
| Oct. 26, 1993 | (Respondent) Motion to Continue and Motion for Abeyance filed. |
| Oct. 22, 1993 | (Petitioner) Amended Notice of Taking Deposition filed. |
| Oct. 12, 1993 | (Petitioner) Notice of Taking Deposition filed. |
| Oct. 11, 1993 | (Petitioner) Response to Initial Order filed. |
| Oct. 07, 1993 | Order sent out (Consolidated cases are: 93-3689 & 93-5531; hearing set for 11/16-17/93; 10:15am; Miami) |
| Oct. 05, 1993 | (Respondent) Amended Motion to Consolidate filed. |
| Oct. 04, 1993 | Petitioner`s Objection to Respondent`s Motion to Consolidate filed. |
| Sep. 28, 1993 | Letter to Barbara Makant from Lee Sims Kniskern (re: request for hearing & consolidation) filed. |
| Sep. 27, 1993 | CC Letter to Barbara Makant from Lee Sims Kniskern (re: elections of Rights request a formal hearing) filed. |
| Sep. 27, 1993 | (Respondent) Motion to Consolidate (with DOAH Case No. 93-5531) filed. |
| Sep. 17, 1993 | Respondent`s Response to Petitioner`s Request for Production; Respondent`s Response to Petitioner`s Request for Admissions; Respondent`s Response to Petitioner`s Interrogatories filed. |
| Aug. 10, 1993 | Order sent out. (Hearing set for 11/16-17/93; 10:30am; Miami) |
| Aug. 06, 1993 | Petitioner`s Motion to Reset Hearing filed. |
| Jul. 28, 1993 | Order Requiring Prehearing Stipulation sent out. |
| Jul. 28, 1993 | Notice of Hearing sent out. (hearing set for 10/27-29/93; 9:00am; Miami) |
| Jul. 20, 1993 | Joint Response to Initial Order filed. |
| Jul. 20, 1993 | Notice of Appearance filed. (From Lee Sims Kniskern) |
| Jul. 13, 1993 | Initial Order issued. |
| Jun. 30, 1993 | Agency referral letter; Amended Administrative Complaint; Election of Rights; (Petitioner) Notice of Appearance filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 02, 1994 | Agency Final Order | |
| Jun. 15, 1994 | Recommended Order | Doctor on probation guilty of giving controlled substance without DEA regulation and failing to keep appropriate medical records, conduct appropriate exams and follow up timely. |
