STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, DIVISION OF ) HEALTH QUALITY ASSURANCE, BOARD ) OF MEDICINE, formerly DEPARTMENT ) OF BUSINESS AND PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5409

)

MUHAMMAD S. MUSTAFA, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on March 1, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Kenneth J. Metzger, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Michael J. McNerney, Esquire

BRINLEY, MCNERNEY, MORGAN & SOLOMON

New River Center, Suite 1800

200 East Las Olas Boulevard

Fort Lauderdale, Florida 33301-2209 STATEMENT OF THE ISSUE

At issue in this proceeding is whether respondent committed the offense alleged in the administrative complaint and, if so, what disciplinary action should be taken.

PRELIMINARY STATEMENT

By administrative complaint dated March 10, 1993, petitioner charged that respondent, a licensed physician in the State of Florida, violated the provisions of Section 458.331(1)(b), Florida Statutes, by having had his license to practice medicine in the State of Ohio revoked. In response, respondent executed an election of rights which disputed such allegations of fact, and the

matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing pursuant to Section 102.57(1), Florida Statutes.

At hearing, petitioner called no witnesses, however its exhibits 1-4 were received into evidence. Respondent testified on his own behalf, and his exhibits 1-11 and 13-21 were received into evidence, absent objection. 1/

The transcript of the hearing was filed March 24, 1994, and the parties were initially accorded three weeks from that date to file proposed findings of fact. Subsequently, at the request of the parties, that deadline was extended, and petitioner and respondent filed their proposed findings of fact on May 16, 1994, and May 17, 1994, respectively. 2/ Accordingly, the parties waived the requirement that a recommended order be rendered within thirty days of the date the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The parties' proposed findings have been addressed in the appendix to this recommended order. 3/

FINDINGS OF FACT

The parties

1. Petitioner, Agency for Health Care Administration, Division of Quality Assurance, Board of Medicine, formerly Department of Business and Professional Regulation, Board of Medicine, is the state government licensing and regulatory agency charged with the responsibility and duty of regulating the practice of medicine pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. Chapter 93-129, Laws of Florida.

   
   

2. Respondent, Muhammad S. Mustafa, M.D., is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0047360. Respondent was licensed by endorsement on October 7, 1985, but did not, ostensibly, actively engage in the practice of medicine in the State of Florida until September 14, 1988. 4/ Respondent's last known address, as of the date of hearing, was 8245 North Nebraska Avenue, Tampa, Florida 33604.

   
   

3. Respondent received his medical degree from the Oklahoma University School of Medicine in 1970, performed an internship from 1970 to 1971 at the Altoona Hospital, Altoona, Pennsylvania, did a four-year residency in general surgery from 1971 to 1975 at The Cleveland Clinic, Cleveland, Ohio, and started practice as a sole practitioner in Cleveland, Ohio, in November 1975.

   
   

4. Respondent's practice consisted of general surgery and family medicine, and he practiced in a predominately blue collar neighborhood until his license to practice medicine was revoked by the State Medical Board of Ohio, as discussed infra. While practicing in Cleveland, respondent had staff privileges at St. Vincent Charity Hospital, Luthern Medical Center, St. John's Hospital, and St. John's Westshore Medical Center, but by May 1988 had restricted his practice to Luthern Medical Center and St. John's Hospital. Respondent resigned his staff privileges at Luthern Medical Center and St. Johns in December 1989.

   The Ohio charges

   
   

5. On May 11, 1988, the State Medical Board of Ohio, the licensing authority for medicine in the State of Ohio, notified respondent that it proposed to take disciplinary action against his certificate to practice medicine and surgery in Ohio. The gravamen of the Board's charges were as follows:

   
   

   1. That respondent's prescribing practices with regard to approximately 83 difference patients, as well as his overall prescribing as reflected by a listing entitled "Total Drug Amounts by Drug, Year and Month," constituted:

      
      

      1. "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease," as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code;

         
         

      2. "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes," as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and

         
         

      3. "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established," as that clause is used in Section 4731.22(B)(6), Ohio Revised Code.

         
         

   2. That as to Patient 152 respondent did between March 27, 1984 and December 12, 1985, and again between November 13, 1986 and April 1, 1987, prescribe controlled substance stimulants when the patient either gained weight or failed to lose weight, contrary to the provisions of Section 4731.22(B)(2),

      (3) and (6), Ohio Revised Code. The Board further charged that respondent's billing to Patient 152's insurance company for services rendered between March 27, 1984 and December 15, 1986, reflected a diagnosis of "hypertension, obesity, ingrown toenail, nerves, low back pain, and arthritis" when there was no indication in respondent's record that he had treated the patient for any condition other than obesity. Such conduct was alleged to constitute "publishing a false, fraudulent, deceptive or misleading statement," as that clause is used in Section 4731.22(B)(5), Ohio Revised Code, and the "obtaining of, or attempting to obtain money or anything of value by fraudulent misrepresentation in the course of practice," as that clause is defined in Section 4731.22(B)(8), Ohio Revised Code.

      
      

   3. That as to Patient 151 respondent did between February 21, 1979 and April 17, 1986, and again between November 13, 1986 and April 1, 1987, prescribe controlled substances and stimulants when the patient either gained weight or failed to lose weight, contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further alleged that on respondent's billing to Patient 151's insurance company for services rendered between January 10, 1984 and November 13, 1986, the diagnosis of "menopause; arthritis; glossitis; bronchitis; hypertension; nerves; and chest wall pain" were entered when the majority of services rendered by respondent were for "obesity," a diagnosis not listed, and his records contain no indication that she was being treated for hypertension, nerves or arthritis. Moreover, an EKG and "comprehensive office exam" performed on November 13, 1986 and billed under a diagnosis of "chest wall pain" were in fact performed as part of the physical required prior to starting the diet program. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code.

   4. That respondent's reports and billing to two different attorneys with regard to Patient 140 (who had been involved in accidents in June and November 1985) reflected dates of service and patient complaints which were not reflected in the medical records. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code.

      
      

   5. That respondent prescribed controlled substances for Patient 241 in 1979, 1982 and 1983 through 1985 contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, in that the patient had admitted to respondent in 1979 that he was addicted to Codeine and in 1985 that he was addicted to Percocet. Respondent was alleged to have first prescribed Percocet in 1983, upon the patient's complaint of back pain, without noting any physical exam or findings, and had continued prescribing it on a regular basis well into 1985. His prescribing of Codeine-based medications and Percocet continued after the patient's admission of addiction to those substances.

      
      

   6. Finally, citing 13 different patients as examples, the Board alleged that respondent routinely kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications prescribed or dispensed; prescribed controlled substances and dangerous drugs based upon patient requests for medications or patient complaints, often without utilizing appropriate testing or other methods for evaluating the validity or etiology of the complaints; and routinely prescribed controlled substance stimulants for weight loss over extended periods of time without regard to whether or not the patient demonstrated weight loss. Such conduct was alleged to violate Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. Moreover, respondent's acts or omissions with regard to certain prescriptions written on or after November 17, 1986, for patients 25, 34, 130, 166, 265, and 276, were alleged to constitute violations of Rules 4731-11-02 and/or 4731-11-04, Ohio Administrative Code, and therefore Section 4731.22(B)(20), Ohio Revised Code.

      
      

6. The aforesaid notice of charges dated May 11, 1988, advised respondent of his right to request a hearing on the matter, his right to appear at such hearing in person or through his attorney, to present his position and argument, and to present evidence and examine witnesses appearing for or against him. Respondent timely requested such hearing, and was represented by counsel.

   
   

7. The subject charges were heard before Wanita J. Sage, Esquire, Hearing Examiner for the State Medical Board of Ohio, on September 18, 1988. Thereafter, the Hearing Examiner rendered an extensive recommendation, which contained findings of fact, conclusions and an order. Such findings of fact sustained the charges filed against respondent, and are contained in petitioner's exhibit 2. The recommendation, which summarized the factual findings, concluded:

   
   

   1. The acts, conduct, and/or omissions of Muhammad S. Mustafa, M.D., as set forth in the above Findings of Fact, constitute:

      
      

      1. "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection

         of drugs or other modalities for treatment of disease", as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code;

      2. "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes", as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and/or

      3. "A departure from, or the failure to conform

         to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established", as that clause is used in Section 4731.22(B)(6), Ohio Revised Code.

         
         

         The testimony and evidence presented in this Matter amply establish that Dr. Mustafa, in the routine course of his practice, prescribed controlled substances and dangerous drugs for patients for excessive periods of time, without establishing

         valid medical indication or diagnosis. He prescribed potentially addictive controlled substances, often

         in dangerous combinations, for patients for years without adequately evaluating their complaints or attempting alternative therapies.

         
         

         In the case of Patient 241, Dr. Mustafa admitted that he had prescribed Codeine for this patient

         for a period of over one month in 1979 as treatment for his admitted Codeine addiction. Several years later, Dr. Mustafa began prescribing Percocet upon this same patient's complaint of back pain, without any evidence of evaluation, and continued to do so over a two-year period. When Patient 241 then admitted that he was addicted to Percocet, Dr.

         Mustafa continued to prescribe it for three addi- tional months as treatment for his addiction. Such prescribing contravenes both federal and state laws, including each of those provisions listed above.

         Dr. Mustafa's claim that there was no adequate treatment program available in 1979 does not satisfactorily explain his prescribing for Patient 241's addiction in 1985.

         
         

         The patient records clearly demonstrate Dr. Mustafa's willingness to prescribe whatever patients requested, even when objective data indicated that there was no valid medical indication for such drugs and no medical basis for the patients' complaints. In the case of Patient 36, Dr. Mustafa liberally prescribed synthetic thyroid hormone at her request, despite the fact that he had obtained tests showing her thyroid levels to be normal. He provided this same patient with narcotic pain medications, even when her complaints of pain were apparently related to urinary tract

         infections, menstrual cramps, or other conditions which would not appear to justify the use of controlled substances. In the case of Patient 308,

         Dr. Mustafa prescribed combinations of controlled substances and dangerous drugs, including narcotic analgesics, tranquilizers, hypnotics, barbiturates, antipsychotics, tricyclic antidepressants, and stimulants, even though he was aware that her complaints generally [had] no physical cause,

         but rather stemmed from emotional problems.

         On one occasion, he actually telephoned in a prescription for Compazine for Patient 308 when she was in the hospital under the care of another physician for treatment of a drug overdose.

         Even though Dr. Mustafa was admittedly aware

         that she had been hospitalized on three occasions due to drug overdoses, he continued afterwards to prescribe dangerous combinations of drugs for her, including the substances on which she had overdosed. In the case of Patient 130, Dr. Mustafa regularly prescribed and administered large amounts of narcotic analgesics over an approximately four

         year period. Dr. Mustafa admitted that Patient

         130 was chemically dependent on narcotics, but claimed they were necessary to control his back pain. Yet, the patient record clearly indicates that Dr. Mustafa made no effort to independently evaluate or diagnose, but rather relied solely upon this patient's representations as justi- fication for his inappropriate prescribing in response to this patient's requests for addictive drugs. Furthermore, the patient record indicates that Dr. Mustafa abruptly discontinued prescribing pain medications and tranquilizers for Patient 130 in early 1987. In general, the patient records demonstrate lack of independent evaluations by Dr. Mustafa of patients' complaints of pain, for treatment of which he prescribed large amounts

         of controlled medications for excessive periods of time. Such prescribing violates each of the above provisions of law.

         
         

         Further, the patient records of Patients 152, 151, 25, 26, 36, 218, 236 and 265 support the State's allegations that Dr. Mustafa routinely prescribed controlled substance stimulants for weight loss purposes over extended periods of time, whether or not a patient demonstrated weight loss. Dr. Mustafa admitted that it had been his standard practice to prescribe a controlled substance anorectic upon a diet patient's initial visit, without first attempting to achieve weight loss through other means,

         such as diet or nutritional counseling. In addition, Dr. Mustafa often prescribed Lasix, a diuretic, for weight control purposes. As indicated by the testimony of Dr. Junglas, there is no valid medical indication for the

         use of a diuretic for weight loss. Such pre- scribing of diet medications also violates each of the above provisions of law.

         
         

         Certainly, both the patient records and the testimony of Dr. Mustafa support the Board's allegations that Dr. Mustafa, in the routine course of his practice, kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications he prescribed or dispensed to his patients. Although Dr. Mustafa appeared

         to claim that he had done examinations or made physical findings which justified the medications he prescribed, he stated that he simply didn't have time to write down everything he knew about his patients. The patient records generally reflect only patient requests for refills of medications, non-specific patient complaints,

         and lists of drugs prescribed or administered by Dr. Mustafa. They are generally devoid of evidence of appropriate diagnostic testing; documentation as to the nature or severity

         of the patient's reported pain, illness, or injury; evidence of investigation of alter- native therapies; thorough histories, physical examinations, and diagnoses; in short, infor- mation necessary to assure that the patient receives appropriate treatment. Such records evidence Dr. Mustafa's violations of each of the above provisions of law.

         
         

         As indicated by the testimony of Dr. Donald Junglas, Dr. Mustafa's treatment with regard to each of the 17 patients whose records were reviewed at hearing violates each of the above provisions of law. Further, the prescriptions identified as State's Exhibits #6A through #6H and summarized by the "Prescription List by Patient Number" and the listing of "Total Drug Amounts by Drug, Year, and Month" (State's Exhibit #1) indicate that Dr. Mustafa's

         inappropriate, long-term prescribing of controlled substances was not confined to those 17 patients, but rather was common in his practice.

         
         

   2. Dr. Mustafa's prescribing of controlled substances for weight reduction for Patients

      152 and 151 after November 17, 1986, constitutes "violating . . ., directly or indirectly, . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rule 4731-11-04, Ohio Adminis- trative Code, as in effect on and after

      November 17, 1986.

      Rule 4731-11-04(B) requires that a physician's use of controlled substances for purposes of weight reduction in the treatment of obesity be only as an adjunct in a regimen of weight reduction based on caloric restriction. It further requires the physician to determine, before instituting treatment with a controlled substance, that the patient has made a "substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification, and exercise, without the utilization of controlled substances, and that said treatment has been ineffective. Further, the physician must obtain a thorough history, perform a thorough physical examination, and rule out the existence of any recognized contradictions to the use of the controlled substance.

      Further, according to this rule, the physician may not initiate or must discontinue utilizing controlled substances immediately upon determin- ing that the patient has failed to lose weight while under treatment with a controlled substance over a period of 14 days, such determination

      to be made by weighing the patient at least every fourteenth day. Dr. Mustafa's prescribing of Schedule IV anorectics for Patients 152 and

      1. failed to meet these requirements. Patient

      2. testified that he had never tried dieting before seeing Dr. Mustafa. Dr. Mustafa's lecturing Patient 152 about snacking does not constitute the institution of a regimen of weight reduction based on caloric restriction. The documentation in the patient records, parti- cularly in the case of Patient 151, fails even to establish that these patients' overweight constituted obesity which might have justified the use of a controlled substance in the event that other treatment methods had been proven ineffective. Further, Dr. Mustafa failed to discontinue prescribing Schedule IV anorectics for Patients 152 and 151 when they failed to lose weight, as required by Rule 4731-11-04(B). In fact, although Dr. Mustafa admittedly become aware of this Rule in December, 1986, he prescribed Schedule IV anorectics for Patient

      152 when he demonstrated weight gains on February 5, March 5, and April 1, 1987, and he prescribed Schedule IV anorectics for Patient 151 when she demonstrated failure

      to lose weight on January 9, February 5, and March 5, 1987.

      Pursuant to Rule 4731-11-04(C), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code.

      
      

   3. Further, Dr. Mustafa's prescribing for Patients 25, 34, 130, 166, 265, and 276, on and after November 17, 1986, constitutes "violating . . ., directly or indirectly

      . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rules 4731-11-02 and/

      or 4731-11-04, Ohio Administrative Code, as in effect on and after November 17, 1986.

      
      

      With respect to patient 25, Dr. Mustafa violated Rule 4731-11-04(B) by prescribing the Schedule

      IV controlled substance Fasin 30 mg. for purposes of weight reduction on both December 19, 1986, and February 13, 1987, without: instituting

      a regimen of weight reduction based upon caloric restriction, first determining the ineffectiveness of other methods of weight reduction, or determining whether or not she failed to lose weight by weighing her at least every fourteenth day. Further, Dr. Mustafa violated Rule 4731-11-02(D) by telephoning

      in a prescription for 30 Tranxene 7.5 mg., a Schedule IV anxiolytic, for Patient 25 on April 2, 1987, without documenting any exam- ination, evaluation, diagnosis, or purpose for this controlled substance.

      
      

      On seven occasions from November 19, 1986, through April 29, 1987, Dr. Mustafa prescribed Vicodin, a Schedule III narcotic analgesic, for Patient 34 without documenting any examination, evaluation, diagnosis, or

      purpose for his use of this addictive controlled substance. In fact, four of these prescriptions were issued after Dr. Mustafa had discussed with Patient 34 the addictiveness of Vicodin and the need for him to take less of it. Such acts and omissions violate both paragraph (C) and (D) of Rule 4731-11-02.

      
      

      Dr. Mustafa's acts and omissions with regard to Patient 130 also constitute violations of

      both paragraphs (C) and (D) of Rule 4731-11-02. Without documenting any examination, evaluation, diagnosis, or purpose other than the patient's requests for pain medication, Dr. Mustafa administered IM injections of Demorel 100 mg., a Schedule II narcotic analgesic, to Patient

      130 on December 13, 1986, January 6, 1987, and

      April 7, 1987. In addition to the Demerol injection, he also prescribed 100 Tylenol #4, a Schedule III narcotic analgesic, for this patient on April 7, 1987, solely upon Patient 130's request for pain medications for vacation. Dr. Mustafa had previously notified this patient on January 12 that he would prescribe no more tranquilizers or pain medications for him. Dr. Mustafa admitted at hearing that this patient had been chemically dependent upon narcotics, though he claimed that he had needed them to control his pain.

      
      

      Upon Patient 166's request, without document- ing any examination, evaluation, diagnosis, or purpose, Dr. Mustafa prescribed for her

      100 Vicodin, a Schedule III narcotic analgesic, on December 24, 1986, and 50 Vicodin on January 29 and again on April

      23, 1987. Such acts violate Rule 4731-11-02(D).

      
      

      With respect to Patient 265, Dr. Mustafa initiated treatment with Adipex-P, a Schedule IV stimulant anorectic controlled substance, on December 9, 1986, without first determining the effectiveness of other methods of weight reduction, without instituting a regimen of weight reduction based on caloric restriction, and without obtaining a thorough history or performing a thorough physical examination to rule out the existence of any contradiction. Dr.

      Mustafa continued to prescribe Apidex-P through April 31, 1987, without weighing Patient 265 at least every fourteenth day and without immediately discontinuing such treatment when this patient showed a weight gain on February 10, 1987. Such acts and omissions violate Rule 4731-11-04(B).

      Furthermore, from December 9, 1986, through May 11, 1987, Dr. Mustafa prescribed Valium for her on three occasions, two of which prescriptions he telephoned in. On five occasions during this period, he prescribed Darvon Compound 65 for her, including one occasion when Patient 265 indicated that she had 30 tablets left from a previous

      prescription, two occasions where Dr. Mustafa provided her with postdated prescriptions, and one occasion where he telephoned in a prescription. At no time did Dr. Mustafa document any examination, evaluation,

      diagnosis, or purpose other than the patient's

      stated complaint, for his prescribing of these controlled substances. Such acts and omissions constitute violation of both paragraphs (C) and (D) of Rule 4731-11-02.

      
      

      In an approximately five month period from November 17, 1986, through April 28, 1987, Dr. Mustafa prescribed for or administered to Patient 276 a total of 519 dosage units of controlled substances, including: 25

      Demerol 50 mg., a Schedule II narcotic analgesic;

      2 IM injections of Demerol 50 mg.; 2 IM injections of Demerol 75 mg.; 60 Fiorinal, a Schedule III barbiturate analgesic; and 430 Darvocet N-100, a Schedule IV narcotic analgesic. Of these, 230 dosage units were prescribed by telephone. Throughout this period, Dr. Mustafa failed to document examination, evaluation, diagnosis, or purpose for this prescribing

      other than patient requests and complaints.

      On one occasion, he did note a physical finding of severe pain and tenderness in the back, radiating downward; however, no further evaluation was done and no diagnosis was indicated. On another occasion, Dr. Mustafa noted a diagnosis of severe migraine headache, but failed to state any information upon which that diagnosis was based. In view of the addictiveness and volume of the substances so prescribed, it is concluded that Dr. Mustafa's acts and omissions with regard to Patient 276 constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02.

      
      

      Pursuant to Rule 4731-11-04(C), Ohio Administ- rative Code, Dr. Mustafa's violations of Rule

      4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code.

      
      

      Pursuant to Rule 4731-11-02(F), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-02(C) and (D) also violate Sections 4731.22(B)(2) and (B)(6), Ohio Revised Code.

      Further, in view of the nature and/or amounts of the drugs prescribed and the circumstances with regard to such prescribing, Dr. Mustafa's acts and omissions with regard to Patients 130,

      265, and 276 are found to constitute purposeful, knowing, or reckless violations of paragraph (C), and thus, pursuant to paragraph (F), also

      violate Section 4731.22(B)(3), Ohio Revised Code.

   4. Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of Fact #7 and #13, above, constitute:

      1. "Publishing a false, fraudulent, deceptive, or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and

      2. "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice",

         as that clause is used in Section 4731.22(B)(8), Ohio Reviewed Code.

         
         

         Claim forms submitted by Dr. Mustafa or his office staff to insurers for reimbursement for Dr. Mustafa's services for both Patient 152 and Patient 151 reported diagnoses for which he had not treated those patients. The fact that diagnoses appeared on claim forms, but not in the patient records, cannot be attributed merely to Dr. Mustafa's poor documentation. Although Dr. Mustafa's patient records clearly indicate that

         the EKG's done in November, 1986, were part of physical examinations for initiation of diet programs, these EKG's were claimed under diagnoses of hypertension

         for Patient 152 and chest wall pain for Patient 151. In fact, the "Weight Reduction Program" form contained in Patient 152's file indicates that he had no history

         of hypertension or heart disease. It must be concluded that false diagnoses were reported for purposes of obtaining reimbursement from the insurer for performance of these routine tests. Although not included in the Board's allegations, it is noted

         that a similar billing was submitted on behalf of another patient reviewed in this Matter, Patient 25 (See Finding of Fact #19).

         
         

         Although Dr. Mustafa denied knowledge of or responsibility for these false billings, copies of the claims, many of which were signed by Dr. Mustafa, were made a part of the patients' records. Furthermore, contrary to Dr. Mustafa's contentions, he is responsible for the billing procedures of his office. It must be concluded that Dr. Mustafa knew or should have known of the fraudulent billings submitted on behalf of Patients 152 and 151.

         
         

   5. Further, Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of fact #15 and #16, above, constitute:

      1. "Publishing a false, fraudulent, deceptive or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and

      2. "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice",

   as that clause is used in Section 4731.22(B)(8), Ohio Revised Code.

   Dr. Mustafa submitted billings and reports of Patient 140's attorneys, listing dates of service and fees not reflected in the patient record.

   In addition, he billed both attorneys for a January 28, 1986, office visit. Dr. Mustafa's attempts to explain these discrepancies are not convincing. The reports to the attorneys listed no specific treatments or medications for the dates reported; thus, they could not be adequate substitutes for clinical notes which Dr. Mustafa claimed to have recorded on separate cards.

   Further, Dr. Mustafa claimed that he had made clinical notes on cards, later discarded, because Patient 140 had come to his home, rather than to his office, for treatment; yet he had earlier testified that his office was in his home

   (Tr. at 41). Also, Dr. Mustafa's attempt to blame his receptionist for the double billing

   of the January 28, 1986, visit is not well taken. Dr. Mustafa signed the reports submitted to both attorneys and was responsible for their accuracy.

   
   

   It is evident that the billings submitted to Patient 140's attorneys for reimbursement for professional services fraudulently misrepresented the extent of and fees for Dr. Mustafa's services. Although not part of the Board's charges, it is further noted that the patient record for Patient

   166 contains a billing submitted to an attorney which contains both dates of service and fees which are not reflected in the patient record (see Finding of fact #31).

   * * * * *

   
   

   The testimony and evidence in this Matter sub- stantially shows that Dr. Mustafa, in the routine course of his practice, engaged in inappropriate, indiscriminate prescribing of controlled substances and dangerous drugs. The patient records evidence

   his willingness to prescribe at the patient's request, without regard for medical indications or patient welfare. In at least one case, he admittedly prescribed narcotics to a known addict for an inappropriate period of time without referring

   him to an authorized treatment program. Both the State's exhibits and the testimony of its expert, Dr. Junglas, rob Dr. Mustafa's claim, that his prescribing was in accordance with acceptable community standards for the time, of credence. Dr. Mustafa admitted that he had ignored the warnings of drug manufacturers and

   FDA labeling with regard to his long-term prescribing of controlled substances, relying on information he claimed to have obtained from his colleagues.

   At best, Dr. Mustafa's prescribing practices reflect a willful ignorance of the properties

   and effects of drugs. Neither willful ignorance nor the lack of moral character demonstrated by Dr. Mustafa's fraudulent billings would seem to be remediable.

   
   

   PROPOSED ORDER

   
   

   It is hereby ORDERED that the certificate of Muhammad S. Mustafa, M.D., to practice medicine and surgery in the State of Ohio shall be and is hereby REVOKED.

   
   

   This Order shall become effective thirty (30) days from the date of mailing of notification of approval by the State Medical Board of Ohio,

   except that Dr. Mustafa shall immediately surrender his United States Drug Enforcement Administration certificate and shall not order, purchase, prescribe, dispense, administer, or possess any controlled substances, except for those prescribed for his personal use by another so authorized by law. Further, in the interim, Dr. Mustafa shall not undertake treatment of any individual not already under his care.

   
   

   
   

   Wanita J. Sage

   Attorney Hearing Examiner

   
   

8. The Hearing Examiner's proposed findings of fact, conclusions and order were adopted by the State Medical Board of Ohio on December 6, 1989. Respondent appealed the Board's order through the courts and on May 4, 1992, the Ohio Supreme Court refused respondent's request that it take jurisdiction of the case. Consequently, the order of the State Medical Board of Ohio revoking respondent's license to practice medicine became effective June 15, 1992.

   
   

   Other matters

   
   

9. At hearing, respondent offered the opinion of Adnan E. Mourany, M.D., Soundiah Selvaraj, M.D., and Marcello Mellino, M.D., by way of deposition (Respondent's exhibits 9-11), concerning respondent's reputation as a physician. Dr. Mourany is licensed to practice medicine in the State of Ohio, as well as Indiana, Minnesota and New York, and has practiced since 1986. He is Chairman of Surgery and Chief of Otolarynology at St. John's Westshore Hospital, and has known respondent professionally and personally since 1979. Dr. Selvaraj is licensed to practice medicine in the State of Ohio, and has practiced since 1974. he is Chief of Internal Medicine and Ambulatory Care at the Luthern Medical Center, and has known respondent professionally since 1976. Dr. Mellino is licensed to practice medicine in Ohio, and has practiced for 13 years. He is a cardiologist, and has known respondent professionally since 1978. It was the opinions of Doctors Mourany, Selvaraj and Mellino that respondent was an excellent surgeon who enjoyed a reputation as a good physician. 5/

   
   

10. At hearing, respondent also presented proof that during medical school he received an award from the Governor of Oklahoma for having performed volunteer work with charitable organizations, and that during his practice in Cleveland he received a ten-year service award from Luthern Medical Center and

    an award from the United States Senate recognizing his volunteer work for the Cleveland Foundation. Respondent also participated in two projects in Cleveland, one in 1983 and one in 1987, to treat patients without charge. All such activities predated the charges filed by the Ohio Board of Medicine.

    
    

11. Since revocation of his Ohio license, respondent attended three courses of continuing medical education programs. The first, "Medical Malpractice and Risk Management--1993," was apparently completed in October 1993; the second, "AIDS and Florida Law--1993," was apparently completed in October 1993; and the third, "Surgical Education and Self-Assessment Program," was apparently completed in November 1993. Other than having attended such courses, respondent's activities since the revocation of his Ohio license do not appear of record.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(7), Florida Statutes.

    
    

13. At issue in this proceeding is whether respondent violated the provisions of Section 458.331(1)(b), Florida Statutes, by having had his license to practice medicine in the State of Ohio revoked and, if so, what disciplinary action should be taken. In cases of this nature, petitioner bears the burden of proving its charges by clear convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. Section 458.331, Florida Statutes, provides:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken.

       * * *

       (b) Having a license or the authority to practice medicine revoked, suspended, or otherwise acted against including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions . . .

    2. When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

       1. Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.

       2. Revocation or suspension of a license.

       3. Restriction of practice.

       4. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

       5. Issuance of a reprimand.

       6. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination,

          or to work under the supervision of another physician.

       7. Issuance of a letter of concern.

       8. Corrective action.

       9. Refund of fees billed to and collected from the patient.

    
    

    In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those

    sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the physician. All costs associated with compliance with orders issued under this subsection are

    the obligation of the physician.

    
    

15. Here, the proof is clear and convincing, and uncontroverted, that respondent's license to practice medicine in the State of Ohio was revoked. Under such circumstances, it is found that respondent is guilty of having violated the provisions of Section 458.331(1)(b), Florida Statutes, and the sole issue remaining in this proceeding is the appropriate penalty to be imposed for such violation.

    
    

16. Regarding the appropriate penalty, Rule 61F6-20.001, Florida Administrative Code, establishes the disciplinary guidelines of the Board of Medicine, as well as certain aggravating and mitigating circumstances which may be considered in individual cases to support a deviation from the penalties established by the guidelines. Pertinent to this case, Rule 61F6-20.001(2)(b), Florida Administrative Code, establishes the following recommended range of penalty for a violation of Section 458.331(1)(b), Florida Statutes:

    
    

    From imposition of discipline comparable to the discipline which would have been imposed if the substantive violation had occurred in Florida to suspension or denial of the license until the license is unencumbered in the jurisdiction in which disciplinary action was originally taken, and an administrative fine ranging from $250.00 to $5,000.00.

    
    

    Subsection (3) of Rule 61F6-20.001 provides that the Board of Medicine shall consider as aggravating and mitigating factors the following:

    
    

    1. Exposure of the patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

    2. Legal status at the time of the offense: no restraints, or legal restraints;

    3. The number of counts or separate offenses established;

    4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

    5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

    6. Pecuniary benefit or self-gain insuring to the applicant or licensee;

    7. Any other relevant mitigating factors.

    
    

17. As heretofore noted in the findings of fact, the order of the State Medical Board of Ohio which revoked respondent's license concluded that respondent's conduct violated the provisions of Section 4731.22(B)(2), (3), (5), (6), (8) and (20), Ohio Revised Code.

    
    

18. Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, permits the State Medical Board of Ohio to discipline a physician who has committed the following offenses:

    
    

    1. "Failure to use reasonable care discri- mination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease." Section 4731.22(B)(2), Ohio Revised Code.

    2. "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes." Section 4731.22(b)(3), Ohio Revised Code.

    3. "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circum- stances, whether or not actual injury to a patient is established." Section 4731.22(B)(6), Ohio Revised Code.

    
    

19. The conduct which supported the conclusion that respondent violated the provisions of Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, evidences a violation of the provisions of Section 458.331(1)(m), (q) and (t), Florida Statutes, which permits the Florida Board of Medicine to discipline a physician for the following offenses:

    
    

    (m) Failing 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.

    * * *

    (q) 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 professional practice, without regard to his intent.

    * * *

    (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s.

    766.102 when enforcing this paragraph. As used

    in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross 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," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

    
    

20. Section 4731.22(B)(5) and (6), Ohio Revised Code, permits the State Medical Board of Ohio to discipline a physician who has committed the following offenses:

    
    

    1. "Publishing a false, fraudulent, deceptive or misleading statement." Section 4731.22(B)(5), Ohio Revised Code.

    2. "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice." Section 4731.22(B)(6), Ohio Revised Code.

    
    

21. The conduct which supported the conclusion that respondent violated the provisions of Section 4731.22(B)(5) and (6), Ohio Revised Code, evidences a violation of the provisions of Section 458.331(1)(k), Florida Statutes, which permits the Florida Board of Medicine to discipline a physician for the following offense:

    
    

    (k) Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine or employing a trick, or scheme

    in the practice of medicine.

22. Finally, Section 4731.22(B)(20), Ohio Revised Code, permits the State Medical Board of Ohio to discipline a physician who has committed the following offense: "violating or attempting to violate, directly or indirectly, or assisting in or abetting the violation of, or conspiring to violate, any provision of this chapter or any rule promulgated by the board." This section of the Ohio Code is substantially equivalent to the provisions of Section 458.331(1)(x), Florida Statutes, which permits the Florida Board of Medicine to discipline a physician for the following offense:

    
    

    (x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing

    to comply with a lawfully issued subpoena of the department.

    
    

23. Rule 61F6-20.001(2), Florida Administrative Code, establishes a recommended range of penalties for a violation of Section 458.331(1)(k), (m), (q), (t) or (x), Florida Statutes. The range of penalties "are based on a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single isolated violation." For a violation of Section 458.331(1)(k), the following range of penalty is recommended:

    
    

    From probation to revocation or denial, and

    an administrative fine from $250.00 to $5,000.00.

    
    

    For a violation of Section 458.331(1)(m), the following range of penalties is recommended:

    
    

    From a reprimand to denial or two (2) years suspension followed by probation, and an administrative fine from $250.00 to $5,000.00.

    
    

    For a violation of Section 458.331(1)(q), the following range of penalties is recommended:

    
    

    From one (1) year probation to revocation or denial, and an administrative fine from $250.00 to $5,000.00.

    
    

    For a violation of Section 458.331(1)(t), the following range of penalties is recommended:

    
    

    From two (2) years probation to revocation or denial, and an administrative fine from $250.00 to $5,000.00.

    
    

    Finally, for a violation of Section 458.331(1)(x), the following range of penalties is recommended:

    
    

    From a reprimand to revocation or denial, and

    an administrative fine from $250.00 to $5,000.00.

    
    

24. In determining an appropriate penalty for the offense commented by respondent, consideration has been given to the disciplinary guidelines, as well as the aggravating and mitigating circumstances, set forth in Rule 61F6-20.001,

Florida Administrative Code. Here, considering the proof and the multiple violations of Section 458.331(1), Florida Statutes, evidenced by the order of the Ohio State Board of Medicine revoking respondent's license, an appropriate penalty in the State of Florida is, consistent with the recommendation of petitioner, revocation.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license to

practice medicine in the State of Florida.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1994.

WILLIAM J. KENDRICK

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 12th day of September 1994.

ENDNOTES

1/ At the conclusion of petitioner's case, it requested that the Hearing Officer make a finding that there was no disputed issue of fact regarding respondent's violation of Section 458.331(1)(b), Florida Statutes, and that the case be remanded to the Board of Medicine for an informal hearing regarding penalty. Over respondent's objection, such motion was denied and the hearing continued to address mitigation and penalty. Petitioner has renewed such request in its proposed recommended order, and such request is again denied. In so doing, the case of McGraw v. Department of State, 491 So.2d 1193 (Fla. 1st DCA 1986), has not been overlooked; however, where, as here, the case has proceeded to final hearing, I do not construe such case as precluding the disposition of all issues noticed for hearing, which included the appropriate penalty, and requiring remand to the agency following conclusion of the agency's case.

While, at respondent's request, evidence was received on the issue of mitigation, it was apparent then and is apparent now that respondent sought to go beyond such and actually submit proof and question the propriety of the Ohio Board of Medicine's finding. Such is improper, and the findings of such Board will not be retried. See, e.g., McGraw v. Department of State, 491 So.2d 1993 (Fla. 1st DCA 1986).

2/ The record further remained open until July 12, 1994, to permit petitioner to respond to respondent's cases regarding penalty and for petitioner's rebuttal of those cases. Here, only those cases that were reported and accessible to the parties have been reviewed in addressing the appropriate penalty.

3/ Respondent filed its proposed recommended order on May 13, 1994, and a corrected recommended order on May 16, 1994. Respondent's corrected recommended order has been accepted and is addressed in the appendix.

4/ According to the Board's records (petitioner's exhibit 4), respondent was licensed by endorsement on October 7, 1985, and pursuant to law at that time was required to become actively engaged in the practice of medicine in the State of Florida within three years and continue such practice for a minimum of one year, failing which such license would become void. By letter of October 4, 1988, respondent advised the Board that he had started his practice in Florida on September 14, 1988, at 10006 Gulf Drive, P.O. Box 2004, Anna Maria, Florida 34216. Whether respondent actually commenced such practice on September 14, 1988, or continued it for one year thereafter, is questionable in view of his testimony that he practiced in Cleveland from 1975 to April 1992 (see, e.g., TR at page 27), and his "curriculum vitae" which reflects the same information (petitioner's exhibit 1).

5/ Doctors Mourany, Selvaraj and Mellino were also called upon to render their opinions as to the appropriate penalty to be imposed in this case; however, Doctors Mourany and Selvaraj were not familiar with the findings of the Ohio Board of Medicine, and Doctor Mellino did not review the order "in great detail." Moreover, none of the Doctors was shown to be familiar with the proof offered in that case. Based on such lack of foundation, as well as a lack of any knowledge regarding disciplinary action in similar cases, their opinions in this regard are rejected.

APPENDIX

Petitioner's proposed findings of fact, as set forth in its corrected recommended order, are addressed as follows:

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3. Adopted in paragraph 5.

4 & 5. Adopted in paragraphs 5, 7 and 8.

1. Rejected as a conclusion of law, but addressed in paragraph 15.

2. Adopted in paragraph 5.

8 & 9. Adopted in paragraphs 6 and 7.

10-18. Adopted in substance in paragraphs 7 and 8.

Respondent's proposed findings of fact, which begin with a paragraph numbered "2", are addressed as follows:

1. Adopted in paragraph 2.

2. Adopted in paragraph 5.

3. Adopted in paragraphs 7 and 8.

4. Accepted that, mathematically, the patients "named" in the Ohio action that involved diet treatment/pain patients constituted less than one-tenth (1/10) of one percent (1 percent) of respondent's total patient visits. This computation is not, however, particularly relevant or persuasive.

5. Accepted to the extent it does not conflict with the finding of the Ohio Board of Medicine. It is, however, observed that respondent's misprescribing of Schedule II medications was not restricted to diet patients and continued after April 1986.

6. Accepted that respondent began treating many of the patients in the

mid-1970's, but remainder rejected as contrary to the findings of the Ohio Board of Medicine or not credited.

8-10. Addressed in paragraph 9 and endnote 5.

11-14. Adopted in paragraphs 3 and 4.

1. Adopted in paragraph 10.

2. Accepted, but not relevant.

17-35. These findings are rejected as an effort to retry the matter resolved by the Ohio Board of Medicine, and in large measure contrary to the findings of that Board. See, e.g., McGraw V. Department of State, 491 So.2d 1193 (Fla. 1st DCA 1986).

36. Addressed in paragraph 11.

COPIES FURNISHED:

Kenneth J. Metzger, Esquire Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Michael J. McNerney, Esquire BRINLEY, MCNERNEY, MORGAN & SOLOMON

New River Center, Suite 1800

200 East Las Olas Boulevard

Fort Lauderdale, Florida 33301-2209

Dr. Marm Harris Executive Director Board of Medicine Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Business

and Professional Regulation Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Sam Power,

Agency Clerk, The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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.

Docket for Case No: 93-005409

Orders for Case No: 93-005409