STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NOS. 93-5475

) 93-5531

TEJ PAL SINGH JOWHAL, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November

21 and 22, 1994, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth J. Metzger, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Sheldon R. Zilbert, Esquire

701 Brickell Avenue, Suite 2080

Miami, Florida 33131 STATEMENT OF THE ISSUES

1. Whether Respondent committed the violations alleged in the Amended Administrative Complaint which is the subject of DOAH Case No. 93-5475 and the Administrative Complaint which is the subject of DOAH Case 93-5531?

   
   

2. If so, what disciplinary action should be taken against him?

PRELIMINARY STATEMENT

On June 23, 1993, in DPR Case No. 9113381, the Department of Professional Regulation (now the Department of Business and Professional Regulation and hereinafter referred to as the "Department") issued a three-count administrative complaint (hereinafter referred to as "Administrative Complaint #1") against Respondent, a Florida-licensed medical doctor, alleging that in connection with his care and treatment of patient W.P., Respondent violated: Count One-

Section 458.331(1)(t), Florida Statutes, "in that Respondent inappropriately diagnosed Patient W.P. with migraine headaches rather than a likely diagnosis of contracture headaches related to stress and failed to do the following during his treatment of Patient W.P.: obtain an accurate history and physical examination; admit her to the hospital and conduct a lumbar puncture upon

suspecting meningitis; conduct complete neurological and psychiatric evaluations; and obtain further consultation;" Count Two- Section 458.331(1)(q), Florida Statutes, "in that Respondent prescribed, dispensed and administered Nubain to patient W.P. in excessive quantities and administered Nubain to her when he knew she was addicted to the drug;" and Count Three- Section 458.331(1)(m), Florida Statutes, "in that Respondent's medical records of Patient W.P. fail to justify his diagnoses and treatment of Patient W.P." Respondent denied the allegations of wrongdoing made against him and requested a formal hearing on the charges.

On September 20, 1993, in DBPR Case No. 9308661, the Department issued another administrative complaint (hereinafter referred to as "Administrative Complaint #2") against Respondent. That same day, the Department referred Administrative Complaint #2 to the Division of Administrative Hearings (hereinafter referred to as the "Division"). The Division docketed Administrative Complaint #2 as DOAH Case No. 93-5475. Four days later, on September 24, 1993, the Department referred Administrative Complaint #1 to the Division. The Division docketed Administrative Complaint #1 as DOAH Case No. 93-5531. At the request of the Department and without any opposition from

Respondent, DOAH Case Nos. 93-5475 and 93-5531 were consolidated by order of the assigned Division Hearing Officer issued November 9, 1993.

On June 6, 1994, the Department filed a Notice of Filing an Amended Administrative Complaint (hereinafter referred to as "Amended Administrative Complaint #2") in DOAH Case No. 93-5475. The Hearing Officer treated the Department's Notice of Filing as a motion for leave to file an amended administrative complaint and directed Respondent, if he opposed the motion, to respond in writing by June 24, 1994, "explaining the basis of [his] opposition to the motion." The response period expired without Respondent filing a response. Thereafter, the Hearing Officer issued an order permitting the filing of Amended Administrative Complaint #2.

Amended Administrative Complaint #2 contains two counts. Count One alleges that Respondent violated Section 458.331(1)(x), Florida Statutes, by virtue of his having "violat[ed] a lawful order of the board . . . previously entered in a disciplinary hearing," to wit: "the October 29, 1992 Final Order of the Board of Medicine" in "DPR v. Jowhal, Case Numbers 9009231, 9101228, and 9015935." According to Count One of Amended Administrative Complaint #2, Respondent violated "the October 29, 1992 Final Order in that he did the following: submitted to Petitioner copies of controlled substance prescriptions over one

1. month after he prescribed them; prescribed controlled substances by phone order and failed to record the orders in sequentially numbered triplicate prescriptions and submit copies of the prescriptions to the Petitioner; wrote prescriptions for controlled substances without using sequentially numbered prescription pads; wrote prescriptions out of sequential order; and wrote prescriptions for controlled substances without including his federal controlled substance registration number, and without patient addresses on the prescriptions in violation of Section 893.04, Florida Statutes." Count Two of Amended Administrative Complaint #2 alleged that Respondent violated Section 458.331(1)(g), Florida Statutes, by "fail[ing] to provide patient addresses and his federal controlled substance registration number on all prescriptions for controlled substances, contrary to Section 893.04(1), Florida Statutes."

   
   

   The final hearing in these consolidated cases was originally scheduled to commence on March 24, 1994, but was continued on three occasions. The hearing was finally held on November 21 and 22, 1994. At the hearing, the Agency for Health Care Administration (hereinafter referred to as the "Agency") 1/

   presented the testimony of three witnesses: Lynn Carmichael, M.D., a Florida- licensed, board-certified family practice physician who is Chairman of the University of Miami Medical School's Department of Family Practice Medicine and Chief of the Family Practice Service at Jackson Memorial Hospital in Miami, Florida; 2/ Harold Friend, a Florida-licensed, board-certified neurologist; 3/ and Thomas Daniels, an investigator with the Agency who has served as Respondent's probation officer. In addition to the live testimony of these three witnesses, the Agency offered, and the Hearing Officer received into evidence, 31 exhibits (Petitioner's Exhibits 1 through 3, 6 through 10, 12

   through 23 and 26 through 36). Among these exhibits were the transcripts of the depositions of: Joanne Bauling, Ph.D., a Florida-licensed psychologist who provided psychological services to patient W.P.; Respondent; Richard Campbell, M.D., a Florida-licensed, board certified family practice physician who treated patient W.P. before, during and after the time W.P. was under Respondent's care; and Gordon Rafool, M.D., a Florida-licensed, board-certified family practice physician. 4/

   
   

   Respondent testified on his own behalf. The only other evidence he presented was a transcript of the deposition of Jules Trop, M.D., a Florida- licensed physician who is an expert in addictionology. The transcript of the deposition was received into evidence as Respondent's Exhibit 1.

   
   

   Post-hearing submittals in the instant case were originally due to be filed no later than January 6, 1995. The deadline for the filing of post-hearing submittals, however, was ultimately extended to January 20, 1995.

   
   

   On January 20, 1995, the Agency filed a proposed recommended order.

   Although it exceeds 40 pages, the Agency's proposed recommended order has been considered in its entirety inasmuch as the Hearing Officer, at the written request of the Agency, has waived the page limit requirements of Rule 60Q- 2.031(3), Florida Administrative Code.

   
   

   The Agency's proposed recommended order contains what are labelled as "findings of facts" and "conclusions of law." These proposed "findings of facts" and "conclusions of law" have been carefully considered. The proposed "findings of 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

   
   

   1. The Agency is a state government licensing and regulatory agency.

      
      

   2. Respondent is now, and has been since 1977, a family practice physician licensed to practice medicine in the State of Florida.

      
      

   3. He holds license number ME 0030309.

      Respondent's Prior Disciplinary Record DPR Case No. 0053427

   4. On or about April 24, 1986, the Department issued a three-count administrative complaint in DPR Case No. 0053427 alleging that, in connection with his care and treatment of patients J.L. and S.B., Respondent violated Section 458.331(1)(n) (now 458.331(1)(m)), Florida Statutes (inadequate recordkeeping), Section 458.331(1)(q), Florida Statutes (inappropriate prescribing, dispensing or administering), and Section 458.331(1)(t), Florida Statutes (substandard care).

      
      

   5. The Department and Respondent entered into a settlement stipulation. The stipulation provided that Respondent "neither admit[ted] nor denie[d]" the facts alleged in the administrative complaint.

      
      

   6. On or about December 16, 1988, the Board of Medicine (hereinafter referred to as the "Board") issued a final order approving and adopting the parties' settlement stipulation, with amendments to which there were no objection. Through the final order, the Board imposed the following disciplinary action upon Respondent: a reprimand; a $2,500.00 fine; and five years probation.

      
      

      DPR Case No. 90-01131

      
      

   7. On or about July 19, 1990, the Department issued a two-count administrative complaint in DPR Case No. 90-01131 alleging that Respondent violated the terms and conditions of the probation imposed by the Board's December 16, 1988, final order in DPR Case No. 0053427 in that he failed to: "complete 30 hours of CME" during the first year of his probation; and "submit quarterly reports to the Board office."

      
      

   8. On or about May 6, 1991, the Board entered a default order (1) finding that Respondent committed the violations alleged in the administrative complaint, and (2) reprimanding him, fining him $2,000.00 and suspending his license "until such time as [he] appear[ed] before the Board and demonstrate[d] that he ha[d] brought himself into compliance with the Final Order of the Board filed on December 16, 1988."

      
      

      DPR Case Nos. 90-09231, 91-01228 and 90-15935

      
      

   9. Administrative complaints were filed against Respondent in DPR Case Nos. 90-09231, 91-01228 and 90-15935.

      
      

   10. Thereafter, on or about June 2, 1992, the Department and Respondent entered into a settlement stipulation. The stipulation provided that Respondent "neither admit[ted] nor denie[d]" the facts alleged in the administrative complaints.

       
       

   11. On or about October 29, 1992, the Board issued a final order approving and adopting the parties' settlement stipulation, with additions. Through the final order, the Board imposed the following disciplinary action upon Respondent: a reprimand; a $3,000.00 fine; restriction of license (with respect to prescribing, dispensing and administering drugs); and five years probation.

       DPR Case No. 91-12504

       
       

   12. On October 7, 1992, the Department issued an 11-count amended administrative complaint in DPR Case No. 91-12504 charging Respondent with: one violation of Section 458.331(1)(g), Florida Statutes (failing to perform a lawful obligation- Count 10); three violations of Section 458.331(1)(m), Florida Statutes (inadequate recordkeeping- Counts 3, 6 and 9); three violations of Section 458.331(1)(q), Florida Statutes (inappropriate prescribing, dispensing or administering- Counts 2, 5 and 8); three violations of Section 458.331(1)(t), Florida Statutes (substandard care- Counts 1, 4 and 7); and one violation of Section 458.331(1)(x), Florida Statutes (violating a lawful Board order- Count 11). Count 10 of the amended administrative complaint alleged 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 dealt with Respondent's care and treatment of three patients, specifically, L.A., R.A. and R.M.

       
       

   13. Respondent denied the allegations of wrongdoing and the case was referred to the Division. A Division Hearing Officer conducted a formal hearing and issued a recommended order.

       
       

   14. The Board issued its final order finding Respondent guilty of Counts 1 (in part), 4 (in part), 6 (in part), 7 (in part), 9 (in part), 10 and 11 (in part) and disciplining him for having committed these violations by fining him

       $3,000.00, suspending his license for 15 months, and placing him on probation for five years following the reinstatement of his license.

       
       

       Facts Relating to DOAH Case No. 93-5475

       
       

   15. In its final order issued in DPR Case Nos. 90-09231, 91-01228 and 90- 15935, which became effective upon its filing on October 29, 1992, the Board mandated, among other things, as conditions of Respondent's probation, that he "not in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto," and that he prescribe Schedule III-V controlled substances only in compliance with the restrictions set forth below:

       
       

       1. Respondent shall utilize sequentially numbered triplicate prescriptions.

       2. Respondent shall immediately provide one copy of each prescription to the monitor.

       3. Respondent shall provide one copy of each prescription to the Department's investi- gator within one month after issuing said prescription.

          
          

   16. Respondent prescribed by telephone order for patient B.P.: Tranxene (7.5 mg., #30) on or about March 1, 1993; and Fiorinal (#30) and Vicodin (#20) on March 11, 1993. None of these prescriptions was reduced to writing.

       
       

   17. Tranxene is a legend drug that contains the Schedule IV controlled substance chlorazepate.

       
       

   18. Fiorinal is a legend drug that contains the Schedule IV controlled substance butalbital.

   19. Vicodin is a legend drug that contains the Schedule III controlled substance hydrocodone bitartrate.

       
       

   20. On or about March 13, 1993, Respondent prescribed Valium (10 mg., #40, with one refill) for B.P. The prescription was reduced to writing, but not on a "sequentially numbered" prescription pad.

       
       

   21. Valium is a legend drug that contains the Schedule IV controlled substance diazepam.

       
       

   22. On or about March 22, 1993, Respondent again prescribed Vicodin (#10) for B.P. by telephone order without reducing the prescription to writing.

       
       

   23. On or about April 22, 1993, Respondent submitted to the Board what he indicated in an accompanying cover letter were "[c]opies of [p]rescriptions written by [him] from February 13th to March 13, 1992 [sic]."

       
       

   24. Among the prescriptions he submitted were:

       
       

       1. a prescription dated April 8, 1993, for Tylenol IV which did not contain Respondent's federal Drug Enforcement Administration (DEA) Certificate of Registration number;

       2. approximately 23 prescriptions for con- trolled substances that did not include the patient's address; and

       3. prescriptions for controlled substances that were out of sequential order.

       
       

   25. On or about May 11, 1993, Respondent submitted to the Board what he indicated in an accompanying cover letter were "[c]opies of [p]rescriptions written by [him] from April 10, 93-May 10, 1993."

       
       

   26. Among the prescriptions were:

       
       

       1. approximately four prescriptions for controlled substances which did not contain Respondent's federal DEA Certificate of Registration number;

       2. approximately 12 prescriptions for controlled substances that did not include the patient's address; and

       3. prescriptions for controlled substances that were out of sequential order.

       
       

       Facts Relating to DOAH Case No. 93-5531

       
       

   27. On or about August 29, 1989, W.P., a twenty-one year old female, initially presented to Respondent complaining of a severe headache, cough, sore throat, running nose, swollen glands, fever of 101 to 102 degrees, and achiness throughout her body. These complaints were recorded in the medical records Respondent maintained on the patient.

       
       

   28. W.P. is a licensed practical nurse. She had worked for Respondent from approximately December of 1988, to June of 1989, but prior to August 29, 1989, she had never been a patient of his.

   29. During W.P.'s initial visit on August 29, 1989, Respondent conducted a brief history and physical examination of W.P.

       
       

   30. As his medical records reflect, Respondent's "clinical impressions," that is, what he "fe[lt were] . . . most probably the cause[s]" of W.P.'s pain and discomfort, were as follows: "1. viral syndrome;" "2. severe occipital/retro-orbital headaches;" and "3. ? early viral meningitis."

       
       

   31. Meningitis is an inflammation of the membrane of the brain or spinal cord.

       
       

   32. It may be viral or bacterial in nature.

       
       

   33. Bacterial meningitis is a life threatening illness that requires immediate attention and treatment.

       
       

   34. Under ordinary circumstances, such as those that existed in the instant case, it is not possible for a physician who suspects that a patient is suffering from viral meningitis to determine with any reasonable degree of certainty, based simply upon his clinical findings and observations, whether the suspected meningitis is viral or bacterial in nature. Therefore, a reasonably prudent physician who suspects that a patient may have viral meningitis should have the patient undergo a lumbar puncture (also referred to as a spinal tap) to confirm that the patient's illness is viral and not bacterial in nature, provided that a computerized axial tomography (CAT) scan of the patient's brain reveals that there is no contraindication to the patient undergoing such a procedure.

       
       

   35. At no time that W.P. was under his care did Respondent have her undergo a lumbar puncture, nor did he order or perform a CAT scan of her brain to see whether a lumbar puncture was contraindicated.

       
       

   36. Instead, during W.P.'s initial visit on August 29, 1989, Respondent ordered a complete blood count (CBC). He also gave W.P. an injection of 100 milligrams (mg.) of Demerol to treat her headache pain and an injection of 100 mg. of Vistaril to combat nausea.

       
       

   37. Demerol and Vistaril are legend drugs. Demerol contains the Schedule II controlled substance meperidrine.

       
       

   38. W.P. left Respondent's office reporting that she felt better.

       
       

   39. She returned a few hours later that same day, August 29, 1989, however, complaining of a pounding headache, nausea, chills, a sore neck and general discomfort.

       
       

   40. As his medical records reflect, Respondent's "clinical impressions" during this second visit on August 29, 1989, were as follows: "1. viral syndrome;" "2. meningeal irritation-> headache;" and "3. cervical lymphadenitis," which is an inflammation or swelling of the lymph nodes in the area of the neck.

       
       

   41. Respondent treated W.P. by again giving her injections of 100 mg. of Demerol and 100 mg. of Vistaril.

       
       

   42. The treatment provided W.P. with "good relief."

   43. The following day, August 30, 1989, W.P. made a third visit to Respondent's office. Although she was feeling a "little better" than she had the day before, she still had a sore throat and severe pain in the "back of [her] eyes and [at] the top of [her] head."

       
       

   44. As his medical records reflect, Respondent's "clinical impressions" during this third visit were as follows: "1. severe headaches;" "2. viral syndrome;" and "3. ? early meningitis (viral)."

       
       

   45. Respondent treated W.P. by giving her intramuscular injections of 20 mg. of Nubain and 100 mg. of Vistaril.

       
       

   46. Nubain is an injectable legend drug.

       
       

   47. It is a synthetic narcotic agonist-antagonist analgesic that, because of its potency, is indicated for the relief of moderate to severe pain.

       
       

   48. Vistaril potentiates the central nervous system effects of Nubain.

       
       

   49. Nubain has potential for abuse, but the potential is low.

       
       

   50. An emotionally unstable patient is more likely to become dependent on Nubain than a patient without emotional problems.

       
       

   51. A patient who has been using other narcotics may suffer withdrawal symptoms upon the administration of Nubain.

       
       

   52. One of possible adverse effects of Nubain is headache (3 percent incidence).

       
       

   53. For an adult weighing 70 kilograms (kg.): the usual recommended dose of Nubain is 10 mg. every three to six hours; the recommended maximum single dose of Nubain is 20 mg.; and the recommended maximum daily dose of Nubain is

       160 mg.

       
       

   54. At all times material to DOAH Case No. 93-5531 W.P. weighed considerably less than 70 kg. (For instance, on August 30, 1989, she weighed approximately 54 kg.) 5/

       
       

   55. In determining how much Nubain a patient should be given, the physician must take into consideration the severity of the pain the patient is experiencing, the size and physical condition of the patient, and other medications the patient may be taking which, like Vistaril, will potentiate the effects of the Nubain given the patient.

       
       

   56. The Nubain and Vistaril that Respondent administered to W.P. during her August 30, 1989, office visit provided W.P. with "good relief."

       
       

   57. The following day, August 31, 1989, W.P. returned to Respondent's office complaining of a sore throat and "pain in [the] back of [her] eyes and head" which made her unable to concentrate at work.

       
       

   58. As his medical records reflect, Respondent's "clinical impressions" during this fourth visit were as follows: "1. viral syndrome;" "2. meningitis;" and "3. severe headaches due to (1) and (2) above."

   59. Respondent treated W.P. by giving her injections of 100 mg. of Demerol and 100 mg. of Vistaril.

       
       

   60. The treatment provided W.P. with "good relief."

       
       

   61. The next day, September 1, 1989, W.P. paid a fifth visit to Respondent's office. She complained of a severe headache, nausea and anorexia and further reported that she had been vomiting.

       
       

   62. As his medical records reflect, Respondent's "clinical impressions" during this fifth visit were as follows: "1. viral syndrome;" "2. viral meningitis;" and "3. severe headache."

       
       

   63. Respondent treated W.P. by giving her injections of 100 mg. of Demerol and 100 mg. of Vistaril.

       
       

   64. The treatment provided W.P. with "good relief."

       
       

   65. Respondent next treated W.P. on October 23, 1989.

       
       

   66. From that date until approximately April 2, 1990, Respondent saw W.P. on approximately 32 or 33 occasions in his office.

       
       

   67. W.P. presented on these occasions complaining of painful headaches.

       
       

   68. It was Respondent's "clinical impression" that, given W.P.'s symptomatology and history, these headaches were, for the most part, migraines.

       
       

   69. Although he based his assessment, in part, upon W.P.'s "history of migraine headaches [and her] family history of migraine headaches," Respondent did not document in the medical records he maintained on W.P. that she had such a personal and family history.

       
       

   70. On each of these approximately 32 or 33 occasions that W.P. presented with painful headaches, Respondent treated W.P. by giving her intramuscular injections of 20 mg. of Nubain 6/ and 100 mg. of Vistaril.

       
       

   71. Given that W.P. weighed considerably less than 70 kg. and that Vistaril potentiates the central nervous system effects of Nubain, the 20 mg. doses of Nubain that Respondent consistently used to treat W.P. were too high, notwithstanding the pain of which W.P. complained.

       
       

   72. Respondent also gave W.P. approximately five vials, each containing ten cubic centimeters (cc.) of Nubain at a concentration of 20 mg. per milliliter (ml.), to take home with her.

       
       

   73. Although Respondent did not specifically indicate in the medical records he maintained on W.P. why he gave W.P. these vials of Nubain, his purpose was apparent: to allow W.P., a licensed practical nurse, to give herself Nubain injections at home when she felt she needed pain relief instead of having to come to Respondent's office to obtain such relief.

       
       

   74. Respondent was not the only family practice physician from whom W.P. was receiving medical treatment during the period of time that she was under Respondent's care. W.P. also was being treated by Richard Campbell, M.D., during this time frame.

   75. In March of 1990, Dr. Campbell referred W.P. to Joann Bauling, Ph.D., a Florida-licensed psychologist, to treat W.P.'s "emotional depression."

       
       

   76. During a counseling session held on or about March 20, 1990, W.P. told Dr. Bauling that for the past six months she had been self-injecting Nubain given to her by Respondent. According to W.P., she was "getting one bottle a day" from Respondent. W.P. further stated that she could "get as much Nubain as she ever wanted" from Respondent. 7/

       
       

   77. Dr. Bauling believed that W.P. was addicted to Nubain.

       
       

   78. On or about April 10, 1990, Dr. Bauling sent to Respondent the following letter that both she and W.P. had signed:

       
       

       Dear Dr. Jowhal:

       
       

       I am working with Dr. Joanne Bauling to stop using the drug "Nubain."

       
       

       I would appreciate it if you would also help me by no longer prescribing this or any other addictive medication.

       
       

       If I should call you requesting this type of medication, I would ask that you refer me to an emergency room.

       
       

   79. In addition to sending the foregoing letter to Respondent, in early April of 1990, prior to sending the letter, Dr. Bauling telephoned Respondent and advised him that W.P. was addicted to Nubain. During the telephone conversation, Dr. Bauling requested that Respondent not give W.P. any more Nubain and Respondent indicated that he would comply with Dr. Bauling's request. He too was concerned that W.P. might be addicted to the drug.

       
       

   80. Nonetheless, on W.P.'s next (and last) visit to his office, on February 27, 1991, when W.P. presented complaining of a severe headache, Respondent, as he had done in the past, treated W.P. by giving her intramuscular injections of 20 mg. of Nubain and 100 mg. of Vistaril. Under the circumstances, it was inappropriate for him to treat W.P. with any Nubain, regardless of the dosage.

       
       

   81. Although W.P., following her initial visit to Respondent on August 29, 1989, returned to his office on numerous occasions complaining of headache pain, at no time that she was under Respondent's care did Respondent conduct or order: a complete neurological evaluation; a complete psychiatric evaluation; a CAT scan of the brain; a magnetic resonance imaging (MRI) of the brain; or an electroencephalogram (EEG). Neither did he seek a consultation with, or refer

       W.P. to, a specialist.

       
       

   82. Instead, Respondent continued to treat W.P. with intramuscular injections of 20 mg. doses of Nubain, along with Vistaril.

       
       

   83. Throughout the period that he treated W.P., Respondent's primary objective was to help W.P. find relief from the pain from which it appeared that she was suffering.

   84. Notwithstanding Respondent's good intentions, the care and treatment he provided her was, in certain respects, substandard.

       
       

   85. Specifically, in not doing the following while W.P. 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: considering, when he suspected that W.P. might have meningitis, that she undergo a lumbar puncture and ordering or performing a CAT scan of W.P.'s brain to see whether a lumbar puncture was contraindicated; conducting or ordering complete neurological and psychiatric evaluations of W.P.; and consulting with a specialist concerning W.P.'s recurring headaches.

       
       

       CONCLUSIONS OF LAW

       
       

       General Legal Principles

       
       

   86. 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.

       
       

   87. 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).

       
       

   88. 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).

       
       

   89. 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).

       
       

   90. In addition, 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).

       
       

       DOAH Case No. 93-5475

       
       

   91. The Amended Administrative Complaint issued in DOAH Case No. 93-5475 (Amended Administrative Complaint #2) charges Respondent with committing one violation of Section 458.331(1)(x), Florida Statutes (Count One) and one violation of Section 458.331(1)(g), Florida Statutes (Count Two).

   92. At all times material to DOAH Case No. 93-5475, 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."

       
       

   93. At all times material to DOAH Case No. 93-5475, 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."

       
       

   94. Among the "statutory . . . obligations" imposed upon Florida-licensed physicians are those set forth in Section 893.04(1), Florida Statutes, which, at all times material to DOAH Case No. 93-5475, Section 893.04(1), Florida Statutes, has provided, among other things, that prescriptions for controlled substances written by physicians must contain the "full . . . address of the person for whom . . . the controlled substance is dispensed," as well as the prescribing physician's "federal controlled substance registration number."

       
       

   95. Count One of Amended Administrative Complaint #2 alleges that Respondent violated Section 458.331(1)(x), Florida Statutes, by virtue of his having "violat[ed] a lawful order of the board . . . previously entered in a disciplinary hearing," to wit: "the October 29, 1992 Final Order of the Board of Medicine" in "DPR v. Jowhal, Case Numbers 9009231, 9101228, and 9015935," "in that he did the following: submitted to Petitioner copies of controlled substance prescriptions over one (1) month after he prescribed them; prescribed controlled substances by phone order and failed to record the orders in sequentially numbered triplicate prescriptions and submit copies of the prescriptions to the Petitioner; wrote prescriptions for controlled substances without using sequentially numbered prescriptions pads; wrote prescriptions out of sequential order; and wrote prescriptions for controlled substances without including his federal controlled substance registration number, and without patient address on the prescriptions in violation of Section 893.04, Florida Statutes."

       
       

   96. The record clearly and convincingly establishes that Respondent violated the Board's October 29, 1992, final order in DPR Case Nos. 90-09231, 91-01228 and 90-15935 in the manner alleged in Count One of Amended Administrative Complaint #2 and thereby also violated Section 458.331(1)(x), Florida Statutes, as further alleged in Count One of Amended Administrative Complaint #2.

       
       

   97. Accordingly, Respondent should be found guilty of this alleged violation of Section 458.331(1)(x), Florida Statutes, and disciplined therefor.

       
       

   98. Count Two of Amended Administrative Complaint #2 alleges that Respondent violated Section 458.331(1)(g), Florida Statutes, by "fail[ing] to provide patient addresses and his federal controlled substance registration number on all prescriptions for controlled substances, contrary to Section 893.04(1), Florida Statutes."

       
       

   99. The record clearly and convincingly establishes that Respondent violated Section 893.04(1), Florida Statutes, in the manner alleged in Count Two of Amended Administrative Complaint #2 and thereby also violated Section 458.331(1)(g), Florida Statutes, as further alleged in Count Two of Amended Administrative Complaint #2.

   100. Accordingly, Respondent should be found guilty of this alleged violation of Section 458.331(1)(g), Florida Statutes, and disciplined therefor.

        
        

        DOAH Case No. 93-5531

        
        

   101. The Administrative Complaint issued in DOAH Case No. 93-5531 (Administrative Complaint #1) charges Respondent with committing one violation of Section 458.331(1)(t), Florida Statutes (Count One), one violation of Section 458.331(1)(q), Florida Statutes (Count Two), and one violation of Section 458.331(1)(m), Florida Statutes (Count Three).

        
        

   102. At all times material to DOAH Case No. 93-5531, 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.

        
        

   103. At all times material to DOAH Case No. 93-5531, 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 sub- stances, 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.

        
        

   104. At all times material to DOAH Case No. 93-5531, 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). It, however, does impose upon the physician an obligation to provide sufficient documentation "so that 'neutral third parties can observe what transpired during the course of treatment of a patient.'" Robertson v. Department of Professional Regulation, Board of Medicine, 574 So.2d 153, 156-57 (Fla. 1st DCA 1990).

        
        

   105. Count One of Administrative Complaint #1 alleges that, in connection with his care and treatment of W.P., Respondent violated Section 458.331(1)(t), Florida Statutes, "in that Respondent inappropriately diagnosed Patient W.P.

        with migraine headaches rather than a likely diagnosis of contracture headaches related to stress and failed to do the following during his treatment of Patient W.P.: obtain an accurate history and physical examination; admit her to the hospital and conduct a lumbar puncture upon suspecting meningitis; conduct complete neurological and psychiatric evaluations; and obtain further consultation."

        
        

   106. The record clearly and convincingly establishes that, in not doing the following while W.P. 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: considering, when he suspected that W.P. might have meningitis, that she undergo a lumbar puncture and ordering or performing a CAT scan of W.P.'s brain to see whether a lumbar puncture was contraindicated; conducting or ordering complete neurological and psychiatric evaluations of W.P.; and consulting with a specialist concerning W.P.'s recurring headaches.

        
        

   107. In failing to take such action, as alleged in Count One of Administrative Complaint #1, Respondent violated Section 458.331(1)(t), Florida Statutes, and he should be disciplined therefor.

        
        

   108. To the extent that Count One of Administrative Complaint #1 alleges that Respondent otherwise violated Section 458.331(1)(t), Florida Statutes, in connection with his care and treatment of W.P., it is not supported by even a preponderance of the evidence and therefore should be dismissed.

        
        

   109. Count Two of Administrative Complaint #1 alleges that Respondent violated Section 458.331(1)(q), Florida Statutes, "in that Respondent prescribed, dispensed and administered Nubain to patient W.P. in excessive quantities and administered Nubain to her when he knew she was addicted to the drug."

        
        

   110. The record clearly and convincingly establishes that, particularly given W.P.'s weight, the 20 mg. doses of Nubain that Respondent administered to

        W.P. along with Vistaril were excessive, and that it was inappropriate for Respondent to administer any Nubain to W.P. during her February 27, 1991, visit to his office, inasmuch as he had been told by Dr. Bauling prior to the visit that W.P. was addicted to Nubain and Respondent had no reason to, nor did he, believe W.P. did not suffer from such addiction.

        
        

   111. Accordingly, Respondent should be found guilty of the violation of Section 458.331(1)(q), Florida Statutes, alleged in Count Two of Administrative Complaint #1 and he should be disciplined therefor.

        
        

   112. Count Three of Administrative Complaint #1 alleges that Respondent violated Section 458.331(1)(m), Florida Statutes, "in that Respondent's medical records of Patient W.P. fail to justify his diagnoses and treatment of Patient W.P."

        
        

   113. The record clearly and convincingly establishes that, although his assessment that W.P. was suffering from migraines was based, in part, upon W.P.'s "history of migraine headaches [and her] family history of migraine headaches," Respondent did not document in the medical records he maintained on

        W.P. that she had such a personal and family history.

   114. In failing to document such pertinent information, Respondent violated Section 458.331(1)(m), Florida Statutes, as alleged in Count Three of Administrative Complaint #1, and he should be disciplined therefor.

        
        

   115. To the extent that Count Three of Administrative Complaint #1 alleges that Respondent further violated Section 458.331(1)(m), Florida Statutes, by failing to include in the records he maintained on W.P. other pertinent information or material concerning her care and treatment, it is not supported by even a preponderance of the evidence and therefore should be dismissed.

        
        

        Penalty

        
        

   116. The Board is, and has been at all times material to the instant consolidated cases, 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 $5,000.00 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.

        
        

   117. In determining which of these penalties the Board should select, it is necessary to consult Chapter 59R-8, 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).

        
        

   118. Subsection (2) of Rule 59R-8.001, 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.

        
        

   119. 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 59R-8.001, Florida Administrative Code, is a minimum of a reprimand up to a maximum of license revocation and an administrative fine of

        $5,000.00.

        
        

   120. For a "single count violation" of subsection (1)(q) of Section 458.331, Florida Statutes, the normal "range of penalties," as prescribed by subsection (2) of Rule 59R-8.001, 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.

        
        

   121. 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 59R-8.001, Florida Administrative Code, is a minimum of a reprimand up to a maximum of a two year suspension of the physician's license and an administrative fine of $5,000.00.

        
        

   122. 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 59R-8.001, 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.

   123. 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 59R-8.001, Florida Administrative Code, is a minimum of a reprimand up to a maximum of license revocation and an administrative fine of

        $5,000.00.

        
        

   124. Subsection (3) of Rule 59R-8.001, Florida Administrative Code, provides that the Board may impose a penalty outside the normal range where there are mitigating or aggravating circumstances.

        
        

   125. The mitigating or aggravating circumstances that, according to subsection (3) of Rule 59R-8.001, Florida Administrative Code, may warrant such a deviation are as follows:

        
        

        1. Exposure of 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 constraints;

        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 . . .;

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

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

        7. Any other relevant mitigating factors.

        
        

   126. Subsection (1) of Rule 59R-8.001, 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."

        
        

   127. Having carefully considered the particulars of the instant case in light of the statutory and rule provisions set forth above, the Hearing Officer concludes that the appropriate penalty to impose upon Respondent for having committed the violations of Section 458.331(1), Florida Statutes, noted above is

1. the suspension of his license to practice medicine in the State of Florida for a period of five years, beginning after the end of the suspension his license is now under, (2) followed by five years of probation, and (3) an administrative fine in the amount of $10,000.00.

   
   

   RECOMMENDATION

   
   

   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 violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dismissing the remaining allegations against him and disciplining him for the violations he committed by (1) suspending his license to practice medicine in the State of Florida for a period of five years, beginning after the end of the suspension his license is now under, (2) placing him on probation for the following five years, and (3) imposing an administrative fine in the amount of

   $10,000.00.

   DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of February, 1995.

   
   

   
   

   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 10th day of February, 1995.

   
   

   ENDNOTES

   
   

   1/ Effective July 1, 1994, pursuant to Chapter 93-129, Laws of Florida, the Agency was transferred the authority that the Department had previously possessed to regulate the practice of medicine in this state, including the licensure of those engaging in such practice. On that date, it therefore became the Department's successor in this proceeding.

   
   

   2/ Dr. Carmichael testified, without objection, as an expert in family practice medicine.

   
   

   3/ Dr. Friend testified, without objection, as an expert in "the area of the assessment and management of headaches and neurological conditions."

   
   

   4/ Dr. Rafool testified at his deposition as an expert in family practice medicine.

   
   

   5/ Her weight was spread over a five foot three inch frame.

   
   

   6/ Because his federal DEA Certificate of Registration had been suspended, Nubain was the most effective drug that Respondent had at his disposal to combat moderate to severe pain.

   
   

   7/ The record in these consolidated cases does not substantiate these claims made by W.P. that she was "getting one bottle [of Nubain] a day" from Respondent and that she could "get as much Nubain as she ever wanted" from him.

   
   

   APPENDIX TO RECOMMENDED ORDER

   
   

   The following are the Hearing Officer's specific rulings on the "findings of fact" proposed by the Agency in its proposed recommended order:

   
   

   1. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

   2. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

3-6. Accepted and incorporated in substance.

7. Rejected as a finding of fact because it is more in the nature of a summary or recitation of testimony than a finding of fact.

8-16. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of a summary or recitation of testimony than a finding of fact.

2. To the extent that this proposed finding states that Nubain is a substance upon which a person may become dependent, that Vistaril potentiates the central nervous system effects of Nubain and that a person who has been using other narcotics may suffer withdrawal symptoms upon the administration of Nubain, it has been accepted and incorporated in substance. Otherwise, it has been rejected because of inadequate evidentiary/record support.

3. To the extent that this proposed finding states that Respondent conceded that W.P. was a "fairly small patient," it has been rejected as a finding of fact because it is more in the nature of a summary or recitation of testimony than a finding of fact. Otherwise, it has been accepted and incorporated in substance.

20-21. Accepted and incorporated in substance.

1. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. Rejected because it is outside the scope of the specific charges set forth in Administrative Complaint #1

24-34. Accepted and incorporated in substance.

1. Rejected as a finding of fact because it is more in the nature of a summary or recitation of testimony than a finding of fact.

2. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

37-38. Accepted and incorporated in substance.

1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Rejected as findings of fact because they are more in the nature of summaries or recitations of testimony than findings of fact.

3. Rejected as a finding of fact because it is more in the nature of legal argument.

4. Before first semicolon and after last semicolon: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remainder of proposed finding: Accepted and incorporated in substance.

5. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Rejected as findings of fact because they are more in the nature of summaries or recitations of testimony than findings of fact.

6. Accepted and incorporated in substance.

7. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining sentences: Rejected as findings of fact because they are more in the nature of summaries or recitations of testimony than findings of fact.

46-47. Rejected as findings of fact because they are more in the nature of summaries or recitations of testimony than findings of fact.

1. Accepted and incorporated in substance.

2. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

50-63. Accepted and incorporated in substance.

64. Rejected as a finding of fact because it is more in the nature of a statement of the law.

65-66. Accepted and incorporated in substance.

1. To the extent that this proposed finding states that the submission was made on May 11, 1990, not May 11, 1993, it has been rejected because of inadequate evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

2. (c) Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remainder of proposed finding: Accepted and incorporated in substance.

COPIES FURNISHED:

Kenneth J. Metzger, Esquire Agency for Health Care

Administration

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Sheldon R. Zilbert, Esquire 701 Brickell Avenue

Suite 2080

Miami, Florida 33131

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold D. Lewis, Esquire General Counsel

Agency for Health Care Administration

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 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.

Docket for Case No: 93-005475

Orders for Case No: 93-005475