STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5612

)

JEROME ROTSTEIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Fort Lauderdale, Florida, on December 2, 1993, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Kenneth Metzger, Esquire

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Salvatore Carpino, Esquire

One North Dale Mabry, Suite 1010 Tampa, Florida 33609

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations that the Respondent has violated subparagraphs (m), (q), and (t) of Section 458.331(1), Florida Statutes, by allegedly failing to keep written medical records justifying the course of treatment of a patient, by allegedly prescribing legend drugs other than in the course of the physician's professional practice, and by allegedly failing to practice medicine with the level of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician.

PRELIMINARY STATEMENT

At the formal hearing on December 2, 1993, the Petitioner presented the live testimony of three witnesses: Frank G. Kuzniar, a forensic investigator for the Broward County Medical Examiner's Office; Darryl P. Polyasko, a police officer with the Lauderdale- by-the-Sea Police Department; and expert witness William Schmidt, M.D., who testified by telephone. The testimony of expert witness David T. Murry, M.D., was presented by deposition transcript.

The Petitioner also offered a total of six exhibits, all but the last of which were received in evidence. Petitioner's Exhibit No. 6 upon request was included in the record as a rejected exhibit.

The Respondent testified on his own behalf and also presented the live testimony of two other witnesses: Mel Waxman, an investigator with the Department of Business and Professional Regulation; and expert witness Frances Dyro, M.D. The Respondent offered one exhibit, which was received in evidence.

At the conclusion of the hearing the parties were allowed 14 days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the proceedings at hearing was filed with the Division of Administrative Hearings on December 8, 1993. Thereafter, both parties filed tardy proposed recommended orders containing proposed findings of fact and conclusions of law; the Petitioner on December 17, 1993, and the Respondent on December 21. Then on December 22, 1993, the Petitioner, without benefit of a motion seeking leave to do so, filed a self-described amended proposed recommended order. Because the filing of the Petitioner's so-called amended proposed recommended order was not authorized by statute, rule, order, or tradition, that document has been disregarded in the preparation of this Recommended Order. 1/ The parties' proposals filed on December 17 and 21 have been carefully considered during the preparation of this Recommended Order.

Specific rulings on all proposed findings of fact submitted by the parties in their proposals of December 17 and 21 are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent is and has been at all times material hereto, a licensed physician, having been issued license number ME 0025256 by the State of Florida. The Respondent has been licensed for approximately forty years and is Board certified in Internal Medicine. He practices Rheumatology.

   
   

2. Diazepam is a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. Roxicet is a generic form of Percocet, a legend drug containing oxycodone, a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Seconal is a legend drug containing Secobarbital, a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes.

   
   

3. The Patient T. P., a 40-year-old male, initially presented to the Respondent on or about May 14, 1991, with complaints of lower back pain and right side sciatica leg pain, which the Respondent treated with various legend drugs. The Respondent's records indicate that the Patient T. P. returned to the Respondent's office on a monthly basis from May of 1991 until April of 1993. On each visit, the Respondent prescribed multiple legend drugs to treat the Patient

   T. P.'s lower back pain and right side sciatica leg pain. Between December 19, 1991, and April 29, 1993, the Respondent prescribed to the Patient T. P. a total of eleven hundred ninety tablets of 10mg generic diazepam, eleven hundred ninety

   tablets of Percocet or Roxicet (oxycodone), and four hundred fifty capsules of Seconal. These quantities of drugs prescribed by the Respondent to the Patient

   T. P. during the course of his treatment were appropriate amounts.

   
   

4. On or about April 30, 1993, the Patient T. P. was found dead in a Broward County hotel room of a drug overdose. Empty bottles of Valiums and Seconals prescribed by the Respondent to Patient T. P. were found at the scene of death. 2/

   
   

5. The Respondent did not refer the Patient T. P. to an orthopedic surgeon or to a neurosurgeon. The Respondent's medical records for the Patient T. P. do not contain any documentation of a referral of the patient to an orthopedic surgeon or neurosurgeon. The Patient T. P. had previously been treated by an orthopedic surgeon and the Respondent had in his possession the records related to that prior treatment. The Respondent did perform appropriate neurological and orthopedic evaluations of the Patient T. P.

   
   

6. The evidence in this case is insufficient to establish that the Respondent failed to keep written medical records justifying the course of treatment of the Patient T. P. 3/ To the contrary, the persuasive evidence is to the effect that the Respondent's records at issue here, although sparse and brief, were sufficient. 4/

   
   

7. The evidence in this case is insufficient to establish that the Respondent prescribed legend drugs other than in the course of his professional practice. To the contrary, the persuasive evidence is to the effect that the drugs prescribed to the Patient T. P. were reasonable under the circumstances.

   
   

8. The evidence in this case is insufficient to establish that the Respondent failed to practice medicine with the level of care, skill, and treatment recognized as acceptable by a reasonably prudent similar physician under similar circumstances. To the contrary, the persuasive evidence is to the effect that the Respondent's care and treatment of the Patient T. P. was consistent with acceptable standards of care under the circumstances.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.

   
   

10. In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris

    v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a

    firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

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

    above

    following at page 958:

    
    

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

    
    

11. For reasons explained elsewhere in this Recommended Order, the evidence in this case fails to establish the violations charged in the Administrative Complaint by clear and convincing evidence. To the contrary, as noted in the closing paragraphs of the findings of fact, the greater weight of the persuasive evidence is to the effect that the Respondent did not violate any of the statutory provisions at issue in this case. The evidence being insufficient, all counts of the Administrative Complaint should be dismissed.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case dismissing all charges against the Respondent.

DONE AND ENTERED this 12 th day of January, 1994 , at Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1994.

ENDNOTES

1/ Parties who wish to file amended proposed recommended orders after the expiration of the deadline for the filing of the originals, should accompany their amended proposals with a motion seeking leave to file same. The motion should include a statement as to whether any opposing parties agree to or oppose the filing of the amended proposal.

2/ As noted in the Appendix, I have made this finding of fact only because it was specifically alleged in the Administrative Complaint and was proved by the evidence at hearing. However, the finding is irrelevant because the Respondent has not been charged with being responsible for the death of the Patient T. P. Further, all of the expert witness testimony directly bearing on any such responsibility indicates that the Respondent was not responsible for the death of the patient and, in the words of Dr. David T. Murray, ". . . there was nothing in the records which would indicate a potential suicide. And so I believe that Dr. Rotstein would not have been able to predict the suicide of Mr. P., and in that context I think he acted within the scope of good medical practice." (Transcript of Murray deposition, page 19.) The testimony of Dr.

Dyro and of the Respondent were to similar effect.)

3/ The insufficiency referenced here, and the insufficiencies referenced in the last two paragraphs of the findings of fact, result from two major deficiencies in the expert witness testimony of the two expert witnesses presented by the Petitioner. The first deficiency flows from the fact that, for reasons not explained in the record of this case, both of the Petitioner's expert witnesses were furnished with incomplete medical records regarding the treatment of the Patient T. P. They did not have the x-rays of the patient, nor did they have the medical records of the examinations and treatment of the Patient T. by the physicians who attended him before he went to the Respondent. The x-rays and the records of the prior attending physicians were part of the Respondent's medical records and were furnished to the investigator for the Department of Business and Professional Regulation. Expert opinions based on incomplete information are seldom sufficiently persuasive to constitute clear and convincing evidence.

A further deficiency in the expert witness testimony presented by the Petitioner flows from the fact that the opinions of both of the Petitioner's experts are based on numerous items of information other than the facts proved at the hearing in this case. For example, at pages 14 and 15 of the deposition of Dr. Murray the witness describes a list of documents a page long which he says he read, reviewed, and considered in rendering his opinion. Comparison of the list of documents described by the witness with a list of the documents received in evidence will reveal that the majority of the documents relied upon by the witness in formulating his opinion are not part of the record of the hearing in this case. Such being the case, the Hearing Officer is without knowledge as to what facts the witness may have gleaned from, and may have relied upon, in all of the documents that are not part of the hearing record.

Where, as here, the factual basis for expert opinions is not clear, the opinions are seldom sufficiently persuasive to constitute clear and convincing evidence.

4/ The persuasive evidence referenced here and in the last two paragraphs of the findings of fact consists of the testimony of the Respondent and the expert witness who testified on his behalf, both of whom based their opinions on the complete medical records. In this regard it is also significant to note that Dr. Dyro's opinions were not based on any documents that are not part of the hearing record.

APPENDIX

The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by the Petitioner:

Paragraph 1: Rejected as constituting a conclusion of law, rather than a proposed finding of fact.

Paragraphs 2, 3, 4, 5, 6, 7, and 8: Accepted.

Paragraph 9: Accepted in substance, but with different numbers over a longer time period reflected in Petitioner's Exhibit 4.

Paragraphs 10, 11, and 12: Rejected as not supported by clear and convincing evidence and as, in any event, being contrary to the greater weight of the persuasive evidence.

Paragraph 13: Rejected as subordinate and unnecessary details and as being, in any event, irrelevant in view of the shortcomings in the expert witness testimony offered in support of the Petitioner's case.

Paragraph 14: Accepted. (I have made the finding proposed here only because it was alleged and proved. However, in view of the opinion of Dr. David

T. Murray at the bottom of page 19 of his deposition, it would appear that this finding is irrelevant.)

Paragraphs 15 and 16: Rejected as irrelevant; the facts proposed here were neither alleged in the Administrative Complaint nor are they related to the charges at issue here.

Paragraphs 17 and 18: Accepted. (The facts proposed here are literally true, but they do not warrant the implications the Petitioner seeks to draw from them.)

Paragraphs 19, 20, and 21: Rejected as not supported by clear and convincing evidence and as, in any event, contrary to the greater weight of the persuasive evidence.

Findings submitted by the Respondent:

Paragraphs 1, 2, and 3: Accepted.

Paragraph 4: Rejected as being a subordinate and unnecessary finding. (The statement proposed is true, but it is not a proposed finding of fact on a matter at issue in this case. Rather, it is a subordinate fact which, of

course, has an impact on the weight to be given to the opinions expressed by Dr. Schmidt and Dr. Murray.)

Paragraph 5: Rejected as constituting subordinate and unnecessary facts. (All of the proposed statements are true. Nevertheless, they are all subordinate to the facts at issue in this case, although they all have an impact on the weight to be given to the opinions expressed by Dr. Schmidt and Dr. Murray.)

Paragraph 6: Accepted.

Paragraph 7: Rejected as constituting argument about the weight of the evidence, rather than proposed findings of fact on a matter at issue in this case. (The argument is essentially correct, but it is argument nevertheless.)

Paragraphs 8 and 9: Accepted.

Paragraph 10: Rejected as constituting subordinate and unnecessary details.

Paragraphs 11 and 12: Rejected as constituting a combination of subordinate and unnecessary details and argument about the weight and sufficiency of the evidence, rather than proposed findings of fact on a matter at issue in this case.

Paragraph 13: Rejected as constituting argument about the weight and sufficiency of the evidence. (The argument is essentially correct, but it is argument nevertheless.)

Paragraph 14: Rejected as constituting a combination of subordinate and unnecessary details, argument about the weight and sufficiency of the evidence, and proposed conclusions of law, rather than proposed findings of fact on a matter at issue in this case.

Paragraphs 15 and 16: Accepted.

COPIES FURNISHED:

Kenneth Metzger, Esquire Senior Attorney

Department of Business and Professional Regulation

1940 N. Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Salvatore Carpino, Esquire Suite 1010

One North Dale Mabry Tampa, Florida 33609

Dr. Marm Harris, Executive Director Board of Medicine

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

Jack McRay, Esquire General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

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: 93-005612

Orders for Case No: 93-005612