STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION/DEPARTMENT OF ) BUSINESS AND PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-288

) ESMILDO E. MACHADO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 24, 1994, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

Senior Attorney

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Gary Robert Fine, Esquire

633 Southeast Third Avenue #4R Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.

PRELIMINARY STATEMENT

On June 7, 1993, Petitioner filed a three count Administrative Complaint charging Respondent with violating: (1) Section 458.331(1)(t), Florida Statutes, by failing 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 as a result of his alleged failure to perform a physical examination on a patient to whom he dispensed and prescribed controlled substances; (2) Section 458.221(1)(q), Florida Statutes, by prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug other than in the course of the physician's professional practice;

and (3) Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of a patient. All of the charges are based on allegations that Respondent inappropriately and excessively dispensed and prescribed controlled substances, including Oxycodone with Acetaminaphen, Hydrocodone Bitartrate, Acetaminaphen with Codeine, Propoxyphene Napsylate, Alprazdam, Clorazepate Dipotussium and Triazlam to an undercover confidential informant, Juan Quinones.

Respondent denied the allegations of the Administrative Complaint and timely requested a formal administrative hearing on the charges. The case was referred to the Division of Administrative Hearings which noticed and conducted a hearing pursuant to Section 120.57, Florida Statutes.

Prior to filing the Administrative Complaint that initiated this proceeding, Petitioner filed an Emergency Suspension Order against Respondent on or about June 2, 1993. While Respondent referred to this Emergency Suspension Order during the hearing in this case, that Emergency Suspension Order was not made a part of the record of this proceeding and no evidence has been presented as to the status of that Emergency Suspension Order and/or the appeal which apparently was filed with respect to it.

Reference was also made during the hearing to federal criminal charges which were apparently filed against Respondent as a result of the matters alleged in the Administrative Complaint. Portions of the transcripts from two federal criminal trials were accepted into evidence. Respondent's counsel stated during the course of this proceeding that the jury failed to reach a verdict in either of the two federal criminal trials, but no competent evidence was presented to establish the results of those criminal trials. Respondent apparently raised an entrapment defense during the federal criminal trials and also raised that defense during the hearing in this case. That defense is addressed in more detail in the Conclusions of Law below.

At the hearing, Petitioner presented the testimony of three witnesses: Robert Yakubec, a criminal investigator for the Federal Drug Enforcement Agency; Louis Collado, an investigator for Petitioner; and Juan Quinones, the undercover confidential informant who is referred to as Patient #1 in the Administrative Complaint. Petitioner had twenty exhibits premarked and offered nineteen of those exhibits into evidence. Petitioner's Exhibit 19 was not offered and Petitioner's Exhibits 3 and 7 were withdrawn. Petitioner's remaining exhibits were all accepted. Respondent's objections to Petitioner's Exhibits 9 and 20 were overruled. In addition, Respondent objected to Petitioner's Exhibit 10, which was a composite exhibit consisting of the English translations of audio tapes of ten separate meetings between Respondent and the Confidential Informant. All of the meetings were recorded by the Confidential Informant who was wired with an electronic recording device. The discussions were almost entirely in Spanish. The original tape recordings were unavailable because they had been submitted into evidence in the related federal criminal cases involving Respondent. A transcription and translation of those tapes was also apparently offered into evidence during the criminal proceedings upon stipulation between the parties. The Confidential Informant testified at the hearing in this matter and confirmed that he was fluent in English and Spanish, that he had reviewed the tape recordings of the meetings on several occasions and that the English translations that were marked as Petitioner's Exhibit 10 accurately reflected the conversations that he had with the Respondent.

Respondent objected to the introduction of the English translations on several grounds including: the original tapes were not offered into evidence;

the Confidential Informant was not properly qualified as a translator pursuant to Section 90.606, Florida Statutes; the Confidential Informant was an "interested person" who was paid for his services; and/or the transcriptions were not properly authenticated. After listening to argument from the parties during the hearing, Petitioner's Exhibit 10 was accepted in accordance with Section 120.58, Florida Statutes. Respondent's objections were noted and Respondent was advised that, if persuasive legal precedent was provided subsequent to the hearing, the ruling would be reconsidered.

On June 3, 1994, Respondent filed Esmildo E. Machado's Memorandum of Law Concerning Admissions [sic] of Transcripts. Petitioner filed a Response to Memorandum Concerning Transcripts on June 7, 1994. The parties further addressed this issue in their proposed recommended orders filed on July 13, 1994. After reviewing the arguments made during the hearing and considering the written arguments submitted subsequent to the hearing, it is concluded that there is no basis for reconsidering the ruling made during the hearing on Respondent's objections to the introduction of Petitioner's Exhibit 10. The Confidential Informant, who participated in all of the conversations at issue, testified that Petitioner's Exhibit 10 accurately reflected the actual conversations that took place. This testimony was sufficient to authenticate the exhibit, especially in view of the relaxed evidentiary standards applicable to an administrative proceeding. See, Ehrhardt, Florida Evidence, Section 401.4 (1994 Ed.); Sections 90.901 and 120.58, Florida Statutes.

During the course of the hearing in this case, Respondent suggested that more accurate transcriptions of the conversations reflected in Petitioner's Exhibit 10 were presented during the related federal criminal proceedings.

Respondent expressed a desire to compare the transcriptions to determine whether the transcriptions offered in the federal trials should be substituted for Petitioner's Exhibit 10. Petitioner stated that it had no objection to substituting the transcripts used in the federal criminal proceeding.

Respondent was granted ten days from the conclusion of the hearing to submit any additional translations or versions of the transcriptions that he wanted to have considered as part of the evidence in this case. No such alternate transcripts have been provided nor has Respondent pointed to any specific portions of Petitioner's Exhibit 10 which he believes to be inaccurate or incomplete. Since no other transcriptions have been provided, the transcripts that were marked at the hearing as Petitioner's Exhibit 10 have been reviewed and considered in the preparation of this Recommended Order.

Respondent testified on his own behalf and also called five other witnesses: Santiago Vasallo, Manuel Mendez-Calvilla, Gladys Mont-Ros, Leo Morffi, and William Chavez. Respondent offered two exhibits into evidence, both of which were accepted without objection.

A transcript of the proceedings has been filed. Both parties have filed proposed recommended orders including proposed findings of fact and conclusions of law. A specific ruling on each of the parties' proposed findings of fact is included in the Appendix attached hereto.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:

1. At all times pertinent to this proceeding, Respondent, Esmildo E. Machado, was a licensed physician in the State of Florida having been issued license number ME-0028831.

   
   

2. Respondent came to the United States from Cuba in approximately April of 1974. Respondent was and is a fervent anti-communist. Prior to coming to the United States, Respondent was imprisoned in Cuba from 1969 through 1974 for aiding anti-communists who were attempting to overthrow the government of Cuba.

   
   

3. Respondent has been a licensed physician in Florida since 1976 and has been practicing out of an office located at 456 Southwest 8th Street in Miami, Florida, since that time.

   
   

4. No evidence was presented of any prior disciplinary action taken by Petitioner against Respondent.

   
   

5. In March of 1992, the Federal Drug Enforcement Agency ("DEA") initiated a criminal investigation into the prescribing practices of Respondent. The investigation was apparently initiated after a confidential informant (the "Confidential Informant" or the "Patient") told DEA that he could obtain drugs through Respondent. The DEA enlisted the Confidential Informant to try to buy drugs and prescriptions from the Respondent. The Confidential Informant was not otherwise employed during the time period in question. He was paid by DEA based in part upon the quantities and strength of the drugs and prescriptions obtained.

   
   

6. On or about April 13, 1992, the Confidential Informant telephoned the Respondent's office and set up an appointment to meet with the Respondent that afternoon. The Confidential Informant had been a patient of the Respondent's several years earlier. In addition, the Confidential Informant's father had been treated by the Respondent in the recent past. As discussed in more detail below, Respondent claims that he thought the Confidential Informant came to see him to complain about Respondent's treatment of the Confidential Informant's father.

   
   

7. Respondent contends that the Confidential Informant had visited his office approximately one week before the April 13 visit and, during the earlier meeting, the Confidential Informant told Respondent that he needed drugs for the "Nicaraguan anti-communists." Respondent claims that he felt compelled to help. The Confidential Informant denies any such conversation took place.

   Respondent's purported desire to help the Nicaraguan anti-communists does not relieve him of the obligation to practice medicine in accordance with community standards and the laws of Florida. In any event, Respondent's contention is not credible. As discussed in more detail below, the Confidential Informant recorded his April 13 visit to Respondent's office and also recorded several subsequent visits. None of the transcripts of the recorded conversations between Respondent and the Confidential Informant reflect that either the Confidential Informant or Respondent ever made any mention of "Nicaraguan anti- communists."

   
   

8. Respondent also contends that he was intimidated by the Confidential Informant and alleged hints made by him of a possible malpractice lawsuit over Respondent's treatment of the Confidential Informant's father. The transcripts of the initial meetings between Respondent and the Confidential Informant reflect that Respondent was very solicitous regarding the Confidential Informant's father. However, there is no persuasive evidence that the Confidential Informant said or did anything to foster Respondent's concern about

   a possible malpractice action. Any subjective fears on Respondent's part were not reasonably based and provide no defense to the charges that he violated Chapter 458, Florida Statutes. The more persuasive evidence in this case did not support Respondent's contention that he was coerced or tricked into selling the Patient prescriptions and drugs during any of the meetings. Moreover, Respondent's claim that he was "entrapped" to dispense drugs and prescriptions to the Confidential Informant was not persuasive.

   
   

9. Before the April 13 meeting, the Patient met with DEA Investigator Robert Yakubec and another DEA agent a few blocks from Respondent's office. Investigator Yakubec instructed the Patient on the law of entrapment and the DEA procedures for making a controlled buy. The Patient and his car were both searched, after which the Patient was given two hundred dollars to purchase prescriptions or drugs. The Patient was also given a recorder to record his conversation with the Respondent. Investigator Yakubec and another DEA agent followed the Patient to the Respondent's office. They maintained surveillance outside Respondent's office until the Patient exited. They then followed him to a prearranged meeting place where he was again searched.

   
   

10. DEA regulations mandate the procedures described in paragraph 9. The evidence established that these procedures were followed for each and every purchase attempt described in this Recommended Order.

    
    

11. During the April 13, 1992 meeting, Respondent provided the Patient with ten (10) Hydrocodone Bitartrate 7.5 mg. tablets (Vicodin), one prescription for forty (40) Acetaminophen with Codeine 30 mg. tablets (Tylenol III) in the name of "Roberto Gomez," and one prescription for thirty (30) Vicodin 5 mg. tablets in the name of "Juan Quinones."

    
    

12. Vicodin is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Hydrocodone, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes.

    
    

13. Tylenol III is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Codeine, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes.

    
    

14. Respondent failed to take a medical history or conduct a physical examination of the Patient during the April 13 visit or during any subsequent visits by the Confidential Informant.

    
    

15. The Confidential Informant was in Respondent's office for approximately twenty (20) minutes on April 13. He paid Respondent's secretary ten dollars ($10) for the office visit. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed by the DEA agents, who searched him and his car. The Confidential Informant returned one hundred and ninety dollars ($190) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent.

    
    

16. On April 16, 1992, the Patient returned to Respondent's office.

    Before the visit, the search and preparatory procedures described in paragraph 9 were performed by Investigator Yakubec and the Patient was given one hundred dollars ($100) to make a purchase.

    
    

17. During the April 16 visit, Respondent asked the Patient about the money Respondent made on the prescriptions from the last visit. Respondent suggested he could help the Patient by giving him Vicodin and they could split

    the earnings from the drugs. Respondent did not comply with the Patient's request for a prescription for Demerol.

    
    

18. During the April 16 visit, Respondent gave the Patient one prescription for forty (40) Tylenol III 30 mg. tablets in the name of "Edna Pavon." He also gave the Patient eight (8) Toradol tablets and a prescription for forty (40) more Toradol. The Confidential Informant paid Respondent sixty dollars ($60) for these items.

    
    

19. Toradol is a legend drug pursuant to Section 465.003(7), Florida Statutes.

    
    

20. The Patient was in Respondent's office for approximately ten minutes on April 16. The Patient proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned forty dollars ($40) to Investigator Yakubec along with the prescriptions and Toradol provided by the Respondent.

    
    

21. The Confidential Informant's next visit to Respondent's office was on April 21, 1992. Prior to the visit, the Patient met with Investigator Yakubec and was given two hundred and fifty dollars ($250) to make a purchase. The standard search and preparatory procedures were performed by Investigator Yakubec.

    
    

22. The Patient had to wait for more than an hour to see the Respondent on the April 21. Respondent contends that on this and other occasions he deliberately made the Patient wait in the hope that the Patient would get discouraged and leave. After considering all of the evidence, it is concluded that Respondent did very little to discourage the Confidential Informant's efforts to obtain drugs and prescriptions. While Respondent resisted some efforts by the Confidential Informant to obtain stronger drugs, this resistance appears to have been predicated on concerns that those drugs were more closely monitored. When the Patient finally got in to see the doctor on April 21, Respondent gave the Patient one hundred and sixteen (116) Vicodin 5 mg. tablets, one prescription for sixty (60) Tylenol III 30 mg. tablets in the name of "Georgio Rojas," and one prescription for sixty (60) Darvocet 100 mg. tablets in the name of "Celia Garcia." The Patient paid Respondent one hundred thirty dollars ($130) for these items.

    
    

23. Darvocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Propoxyphene Napsylate, a Schedule IV controlled substance as defined in Section 893.03(4), Florida Statutes.

    
    

24. After leaving Respondent's office on April 21, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and twenty dollars ($120) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent.

    
    

25. On April 24, 1992, the Patient again presented at Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec before the visit, and the Patient was given two hundred dollars ($200) with which to make a purchase.

    
    

26. During the April 24 visit, the Patient told Respondent he wanted a prescription for "Xanax" and a prescription for "Tranzene" for a "Cuban friend." Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets, one prescription for sixty (60) Xanax 25 mg. tablets in the name of

    "[illegible]", one prescription for thirty (30) Tranxene 3.75 mg. tablets in the name of "[illegible] Martinez," one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "Georgio Rojas", and one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "[illegible]." The Patient paid the Respondent one hundred thirty dollars ($130) for the drugs and prescriptions.

    
    

27. Xanax is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes.

    
    

28. Tranxene is a legend drug pursuant to by Section 465.003(7), Florida Statutes and contains Clorazepate Dipotassium, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes.

    
    

29. The Patient was in Respondent's office for approximately twenty-three

    (23) minutes on April 24. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned seventy dollars ($70) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent.

    
    

30. On April 29, 1992, the Patient returned to Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec prior to the visit. The Patient was given one hundred and seventy dollars ($170) with which to make a purchase.

    
    

31. During the April 29 visit, the Patient asked Respondent for a prescription for Tylox. Respondent directed the Patient to wait in the office while he obtained some Vicodin. After waiting less than one hour, Respondent gave the Patient ninety (90) Tylenol III 30 mg. tablets, one hundred (100) Vicodin 5 mg. tablets, and one prescription for thirty (30) Halcion 25 mg. tablets in the name of "Carlos Quinones" and a prescription for sixty (60) Tylox in the name of "Belen Portela". The Patient paid Respondent a total of one hundred fifty dollars ($150) for these items.

    
    

32. Tylox is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance as defined in Section 893.03(2), Florida Statutes.

    
    

33. Halcion is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Triazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes.

    
    

34. The Patient was in Respondent's office for approximately fifty (50) minutes on April 29. Upon leaving, he proceeded directly to a prearranged meeting place where he was debriefed and searched. He returned twenty dollars ($20) to Investigator Yakubec along with the Tylenol, Vicodin and prescriptions.

    
    

35. On May 4, 1992, the Patient again presented at Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase.

    
    

36. During the May 4 visit, Respondent gave the Patient two hundred (200) Vicodin 7.5 mg. tablets and one prescription for thirty (30) Tylox tablets in the name of "Luis Moran." The Patient paid Respondent two hundred dollars ($200) for these items.

37. The Patient was in Respondent's office for approximately twenty (20) minutes on May 4. Upon leaving, he proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned fifty dollars ($50) to Investigator Yakubec along with the prescription and Vicodin provided by the Respondent.

    
    

38. On May 6, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase.

    
    

39. During the May 6, 1992 visit, the Patient asked Respondent to try to obtain some steroids, in particular Deca Durabdin, for some of his friends. Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets and three hundred (300) Vicodin 5 mg. tablets in return for which the Patient paid Respondent two hundred fifty dollars ($250). The Patient promised to pay Respondent an additional fifty dollars ($50) on his next visit.

    
    

40. The Patient was in Respondent's office for approximately twenty (20) minutes on May 6. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent.

    
    

41. The Patient's next visit to Respondent's office was on May 15, 1992. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given three hundred fifty dollars ($350). Fifty dollars ($50) was to pay for the drugs obtained during the previous visit.

    
    

42. The Patient entered Respondent's office at approximately 1:00 p.m. on May 15 and remained inside for approximately fifteen (15) minutes. Petitioner paid Respondent the fifty dollars ($50) due from the previous visit. Respondent told the Patient he was trying to determine if he could obtain any steroids. Respondent and the Patient also discussed other drugs, including Dilaudid, Percodan and Percocet, and they discussed problems with obtaining such drugs from various pharmacies in the area. Respondent did not agree to provide any of these stronger drugs to the Confidental Informant at this time. Respondent told the Patient to return at 2:00 p.m. to pick up some Vicodin.

    
    

43. The Patient returned to Respondent's office at approximately 1:45 p.m. on May 15 at which time Respondent gave the Patient two hundred and ninety seven

    (297) Vicodin 5 mg. tablets in return for which the Patient paid the Respondent two hundred fifty dollars ($250).

    
    

44. The Patient left Respondent's office at approximately 2:02 p.m. and proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent.

    
    

45. On May 20, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase.

    
    

46. During the May 20 visit, the Patient and Respondent discussed how prescriptions could be presented at various pharmacies so as to minimize suspicion. Respondent gave the Patient one prescription for forty (40) Percocet

    #40 tablets in the name of "Daysi Lopez"; one prescription for forty (40) Percocet #40 tablets in the name of "Centuedis Nundez"; one prescription for forty (40) Percocet #40 tablets in the name of "Anzetia Perez"; and one prescription for 2 vials/2cc of Deca Durabolin in the name of "Miguel Castro." The Patient paid the Respondent one hundred twenty dollars ($120) for the prescriptions.

    
    

47. Deca Durabolin is a legend drug pursuant to Section 465.003(7), Florida Statutes.

    
    

48. Percocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance listed in Section 893.03, Florida Statutes.

    
    

49. The Patient was in Respondent's office for approximately one (1) hour and ten (10) minutes on May 20 and proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and thirty dollars ($130) to Investigator Yakubec along with the prescriptions provided by the Respondent.

    
    

50. On June 10, 1992, the Patient again returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given one hundred and fifty dollars ($150) with which to make a purchase.

    
    

51. During the June 10 visit, Respondent gave the Patient one prescription for "6 amps" of Deca Durabolin in the name of "Manny Lorenzana;" one prescription for Percocet #60 in the name of "Hypolita Herrera;" one prescription for Percocet #40 in the name of "Marina Quintana;" and one prescription for Percocet #40 where the name was illegible. The Patient paid the Respondent $140 for the prescriptions.

    
    

52. The Patient was in Respondent's office for approximately forty-five

    1. minutes on June 10. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned ten dollars ($10) to Investigator Yakubec along with the prescriptions provided by the Respondent.

       
       

53. As noted above, Respondent never performed a physical examination of the Patient and never took a physical history from him. The evidence established that, prior to prescribing legend drugs to a patient, a physician should perform a physical examination to arrive at a legitimate medical reason to prescribe the drugs.

    
    

54. Prescribing controlled substances for no legitimate medical reason is below the standard of care recognized by a reasonably prudent physician.

    
    

55. A physician is required to keep accurate written medical records of his treatment of patients. These records should include a record of all drugs prescribed or dispensed to a patient and the reasons why the drugs were dispensed or prescribed. The reasons should be supported by the results of physical examinations and/or the patient's history. Respondent failed to document adequate medical histories and physical examinations in the Patient's medical records to justify his numerous prescriptions for legend drugs, including controlled substances. Accordingly, it is concluded that Respondent failed to keep written medical records justifying the course of treatment of the Patient

56. It is also concluded that Respondent dispensed Tylox and Percocet, Schedule II substances, outside the course of his professional practice and without a legitimate medical reason. Schedule II controlled substances have a high potential for abuse. They have a currently accepted but severely restricted medical use in treatment in the United States. Abuse of a Schedule II substance may lead to severe psychological or physical dependence.

57 The evidence also established that Respondent dispensed Vicodin and Tylenol III, both Schedule III controlled substances, outside the course of his professional medical practice and without a legitimate medical reason. Abuse of a Schedule III substance can lead to moderate or low physical dependence or high psychological dependence. In addition, Respondent dispensed the following Schedule IV substances outside the course of his professional medical practice and without a legitimate medical reason: Darvocet, Xanax, Tranxene, and Halcion. Abuse of a Schedule IV substance may lead to limited physical or psychological dependence.

1. Respondent also inappropriately prescribed and dispensed the legend drugs Toradol and Deca Durabolin to the Patient outside the course of the physician's professional practice.

   
   

2. On several occasions between April 13, 1992, and June 10, 1992, Respondent gave prescriptions to the Confidential Informant which included a patient name other than the Confidential Informant. These actions by Respondent are below the acceptable standard of care for a reasonably prudent similar physician.

   
   

3. There is no indication that Respondent ever attempted to contact the police about perceived threats or coercion by the Patient. There is also no evidence that Respondent ever alerted any authorities to the Patient's admissions that he intended to resell the drugs. In fact, the evidence indicates that Respondent was a willing, albeit sometimes cautious participant in the Confidential Informant's apparent drug trafficking scheme. His deliberate decision to use the name of other patients on some of the prescriptions indicates that he was well aware of what he was doing and was trying to cover his tracks.

   
   

4. Respondent presented testimony from several members of the community who stated that Respondent is a respected and valued member of the community and has provided needed medical services to the community. Notwithstanding the allegations in this case, they have expressed confidence in his medical judgment and want to see him continue his practice in the community.

   
   

5. Respondent was apparently involved in the final stages of a hotly contested divorce during the period when the incidents alleged in this case took place. He suggests that the stress from his divorce may have impaired his judgment in handling what he claims were high pressure tactics from the Confidential Informant. While the Confidential Informant instigated the sales and continuously sought more and stronger drugs, the more persuasive evidence did not, however, support Respondent's claim of high pressure tactics from the Confidential Informant. The stress Respondent was feeling from his divorce can be considered in mitigation, but it does not provide an excuse for Respondent's actions.

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Pursuant to Section 458.331, Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a registered physician who is found guilty of committing any of the offenses enumerated in Section 458.331(1), Florida Statutes.

   
   

8. Petitioner has the burden of proof in this license discipline case and must prove the allegations set forth in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Evans Packing Company v. Department of Agriculture and Consumer Services, 550 So.2d 112, 116 (Fla. 1st DCA 1989); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 1st DCA 1988).

   
   

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

   
   

   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 precise and explicit and the witness 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, with-

   out 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, 958 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz, and adds, the following:

   
   

   "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).

   
   

10. In determining whether a licensee has violated Section 458.331, Florida Statutes, as charged in an 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).

    
    

11. Disciplinary action with respect to a professional license is limited to offenses or facts alleged in the administrative complaint. Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985); Kinney v. Department of State 501 So.2d 129,133 (Fla. 5th DCA 1987).

12. The Administrative Complaint in this case contains three counts charging Respondent with violating Subsections (t), (q) and (m) of Section 458.331(1), Florida Statutes. Those Sections authorize the Board to take disciplinary action against a physician's license for:

    
    

    (t) Being guilty of 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.

    (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.

    (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.

    
    

13. The clear and convincing evidence in this case established that Respondent was guilty of violating Section 458.331(1)(t), Florida Statutes, as alleged in Count I of the Administrative Complaint by failing 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 in his treatment of the Patient. Respondent should not have prescribed or delivered controlled substances to the Patient in the quantities that he did, especially since he did not even conduct a physical exam of the Patient. He also should not have given the Patient prescriptions that were written in the name of some other patient.

    
    

14. Petitioner has also proven by clear and convincing evidence that Respondent violated Section 458.331(1)(q), Florida Statutes, as alleged in Count II by prescribing and dispensing controlled substances to the Patient other than in the course of the physician's professional practice. There is a legal presumption in this statute that the prescribing, dispensing, administering, mixing or otherwise preparing legend drugs, including controlled substances, inappropriately, or in excessive quantities is not in the best interest of the patient and is not within the course of the physician's practice. Thus, proof of the physician's intent or state of mind is not necessary under this statutory provision.

    
    

15. Finally, Petitioner has proven by clear and convincing evidence that Respondent violated Section 458.331(1)(m), Florida Statutes, as alleged in Count III by failing to keep written medical records justifying the course of his treatment of the Patient. No patient history was taken and no examination or test results appear in the Respondent's records. There are also no records of the drugs prescribed, dispensed, or administered to the Patient.

    
    

16. Respondent has raised an "entrapment" defense to the allegations of the Administrative Complaint. Respondent suggests that this defense is available in an administrative proceeding to the same extent it would be applicable in a criminal case. Respondent cites to Section 777.201, Florida Statutes, and Munoz v. State, 629 So.2d 90 (Fla. 1993), as delineating the parameters of the defense. Respondent's argument does not address the compelling state interest embodied in Chapter 458, Florida Statutes, which is

    intended to protect the public from incompetent and unfit practitioners. See, Boedy v Department of Professional Regulation, 463 So.2d 215 (Fla. 1985); DeBock v. State, 512 So.2d 164 (Fla. 1987), cert. denied, 484 U.S. 1025, 108 S.Ct. 748 (1987). Even if some form of "entrapment" defense is available in an administrative proceeding, it is doubtful that such a defense is applicable to an allegation that Respondent failed to keep required records of his treatment of the Patient. See, Department of Insurance v. Schuler, 510 So.2d 622 (Fla.

    3rd DCA 1987). It is also questionable whether such a defense would be applicable to the charge that Respondent failed to practice medicine within community standards. In any event, the scope of the "entrapment" defense in administrative proceedings need not be resolved in this case. After reviewing all of the evidence, it cannot be concluded that the government's conduct in this case induced Respondent to commit the violations. Respondent's continued and uncomplaining participation in dispensing and prescribing drugs to the Patient negates the suggestion that he was "entrapped" or "coerced." To the contrary, the evidence indicates that Respondent readily and willingly provided controlled substances and wrote prescriptions for the Confidential Informant.

    While Respondent did resist some attempts by the Confidential Informant to obtain more powerful drugs, this resistance was predicated on concerns that the stronger drugs were being monitored more closely. In sum, even if it is assumed that an "entrapment" defense is available in an administrative proceeding, the evidence in this case did not support such a defense.

    
    

17. The disciplinary guidelines of the Board of Medicine are found at Rule 61F6-20.001 (formerly 21M-20.001), Florida Administrative Code. Those rules provide a range of penalties for violations of the provisions of Sections 458.331(1)(t), (q) and (m), Florida Statutes: for a violation of subsection (t), the range of penalties is from two (2) years probation to revocation and an administrative fine from two hundred fifty dollars ($250) to five thousand dollars ($5,000); for a violation of subsection (q), the range of penalties is from one (1) year probation to revocation and an administrative fine from two hundred fifty dollars ($250) to five thousand dollars ($5,000); for a violation of subsection (m), the range of penalties is from a reprimand or two (2) years suspension followed by probation and an administrative fine of from two hundred fifty dollars ($250) to five thousand dollars ($5,000).

    
    

18. Rule 61F6-20.001(1) provides that the ranges of penalties "are based upon a single count violation of each provision listed; multiple counts of the violated provisions or combination of the violations may result in a higher penalty than that for a single, isolated violation . . . the purposes of the imposition of discipline are to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations."

    
    

19. Rule 61F6-20.001(3) provides as follows:

    
    

    1. Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider

       as aggravating or mitigating factors the following:

       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 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 inuring to the applicant or licensee;

       7. Any other relevant mitigating factors.

    
    

20. In this case, Respondent inappropriately dispensed and prescribed several control substances, including at least two Scheduled II controlled substances, on numerous occasions for pecuniary gain. While Respondent has been licensed to practice medicine in Florida for more than sixteen (16) years without any prior disciplinary action being taken him, the violations in this case are quite severe. The excessive prescribing and dispensing of controlled substances poses a substantial risk of harm to the community as well as the patients. The punishment in this case should be severe enough to be a deterent to both the Respondent and to other licensees to prevent such acts from occurring again. Petitioner urges in its Proposed Recommended Order that Respondent's license to practice medicine in this state be revoked. However, permanent revocation is a harsh punishment reserved for egregious cases where rehabilitation is improbable. See, The Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of

violating Sections 458.331(1)(t), (q) and (m) as alleged in the Administrative

Complaint. As a penalty for the violations, Respondent's license to practice medicine should be suspended for five (5) years followed by a three-year term of probation during which time Respondent's prescribing practices should be closely monitored. In addition, an administrative fine in the amount of ten thousand dollars ($10,000) should be imposed.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of November 1994.

J. STEPHEN MENTON 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 18th day of November 1994.

APPENDIX TO RECOMMENDED ORDER

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

Petitioner's proposed findings of fact

1. Adopted in substance in Finding of Fact 1.

2. Adopted in substance in Finding of Fact 5.

3. Adopted in substance in Finding of Fact 6.

4. Adopted in substance in Finding of Fact 9.

5. Adopted in substance in Finding of Fact 10.

6. Adopted in substance in Findings of Fact 9 and 15.

7. Adopted in substance in Finding of Fact 7.

8. Adopted in pertinent part in Finding of Fact 8.

9. Adopted in substance in Finding of Fact 11.

10. Adopted in substance in Finding of Fact 15.

11. Adopted in substance in Finding of Fact 15.

12. Adopted in substance in Finding of Fact 12.

13. Adopted in substance in Finding of Fact 13.

14. Adopted in substance in Finding of Fact 16.

15. Adopted in substance in Finding of Fact 16.

16. Adopted in substance in Finding of Fact 20.

17. Adopted in pertinent part in Findings of Fact 7 and 8.

18. Adopted in substance in Finding of Fact 17.

19. Adopted in substance in Finding of Fact 18.

20. Adopted in substance in Finding of Fact 19.

21. Adopted in substance in Finding of Fact 20.

22. Adopted in substance in Finding of Fact 18.

23. Adopted in substance in Finding of Fact 21.

24. Adopted in substance in Finding of Fact 23.

25. Rejected as unnecessary.

26. Adopted in pertinent part in Findings of Fact 7 and 8.

27. Adopted in substance in Finding of Fact 22.

28. Adopted in substance in Findings of Fact 21 and 24.

29. Adopted in substance in Finding of Fact 22.

30. Adopted in substance in Finding of Fact 23.

31. Adopted in substance in Finding of Fact 25.

32. Adopted in substance in Finding of Fact 25.

33. Adopted in pertinent part in Finding of Fact 29.

34. Adopted in pertinent part in Findings of Fact 7 and 8.

35. Adopted in substance in Finding of Fact 26.

36. Adopted in substance in Finding of Fact 29.

37. Adopted in substance in Finding of Fact 26.

38. Adopted in substance in Finding of Fact 27.

39. Adopted in substance in Finding of Fact 28.

40. Adopted in substance in Finding of Fact 30.

41. Adopted in substance in Finding of Fact 30.

42. Adopted in pertinent part in Finding of Fact 34.

43. Adopted in pertinent part in Findings of Fact 7 and 8.

44. Adopted in substance in Finding of Fact 31.

45. Adopted in substance in Finding of Fact 34.

46. Adopted in substance in Finding of Fact 31.

47. Adopted in substance in Finding of Fact 33.

48. Adopted in substance in Finding of Fact 35.

49. Adopted in substance in Finding of Fact 35.

50. Rejected as unnecessary.

51. Adopted in substance in Findings of Fact 7 and 8.

52. Adopted in substance in Finding of Fact 36.

53. Adopted in substance in Finding of Fact 37.

54. Adopted in substance in Finding of Fact 36.

55. Adopted in substance in Finding of Fact 32.

56. Adopted in substance in Finding of Fact 38.

57. Adopted in substance in Finding of Fact 39.

58. Adopted in pertinent part in Finding of Fact 40.

59. [NOTE: 59. is blank on original document filed with DOAH.]

60. Adopted in substance in Finding of Fact 39.

61. Adopted in pertinent part in Finding of Fact 40.

62. Adopted in substance in Finding of Fact 39.

63. Adopted in substance in Finding of Fact 41.

64. Adopted in substance in Finding of Fact 41.

65. Adopted in substance in Finding of Fact 42.

66. Adopted in substance in Finding of Fact 43.

67. Adopted in pertinent part in Findings of Fact 7 and 8.

68. Adopted in substance in Finding of Fact 43.

69. Adopted in substance in Finding of Fact 44.

70. Adopted in substance in Finding of Fact 43.

71. Adopted in substance in Finding of Fact 45.

72. Adopted in substance in Finding of Fact 45.

73. Adopted in pertinent part in Finding of Fact 49.

74. Adopted in pertinent part in Findings of Fact 7, 8 and 56.

75. Adopted in pertinent part in Finding of Fact 46, except the prescriptions were for Percocet instead of Tylox.

76. Adopted in substance in Finding of Fact 49.

77. Adopted in substance in Finding of Fact 46.

78. Adopted in substance in Finding of Fact 47.

79. Adopted in substance in Finding of Fact 50.

80. Adopted in substance in Finding of Fact 50.

81. Adopted in pertinent part in Finding of Fact 52.

82. Adopted in substance in Findings of Fact 7 and 8.

83. Adopted in substance in Finding of Fact 51.

84. Adopted in substance in Finding of Fact 52.

85. Adopted in substance in Finding of Fact 51.

86. Adopted in substance in Findings of Fact 14 and 53.

87. Adopted in substance in Findings of Fact 14 and 53.

88. Rejected as vague and unnecessary.

89. Rejected as unnecessary.

90. Rejected as argumentative. The subject matter is addressed in Finding of Fact 53.

91. Rejected as argumentative. The subject matter is addressed in Finding of Fact 54.

92. Adopted in pertinent part in Findings of Fact 14,

    53 and 55.

93. Adopted in substance in Finding of Fact 56.

94. Adopted in substance in Finding of Fact 56.

95. Adopted in substance in Finding of Fact 57.

96. Adopted in substance in Finding of Fact 57.

97. Adopted in substance in Finding of Fact 57.

98. Adopted in substance in Finding of Fact 57.

99. Adopted in substance in Finding of Fact 57.

100. Adopted in substance in Finding of Fact 58.

101. Adopted in substance in Finding of Fact 57 and

     addressed in the Conclusions of Law.

102. Adopted in substance in Finding of Fact 59.

103. Subordinate to Finding of Fact 7.

104. Rejected as vague and unnecessary.

105. Adopted in substance in Finding of Fact 60.

106. Rejected as argumentative and unnecessary.

107. Subordinate to Findings of Fact 7 and 8.

108. Rejected as vague and unnecessary.

109. Rejected as unnecessary.

Respondent's proposed findings of fact

1. Rejected as unnecessary.

2. Adopted in substance in Finding of Fact 1.

3. Adopted in substance in Finding of Fact 3.

4. Adopted in substance in Finding of Fact 4.

5. Rejected as unnecessary.

6. Adopted in substance in Finding of Fact 4.

7. Rejected as vague and unnecessary.

8. Subordinate to Finding of Fact 2.

9. Adopted in substance in Finding of Fact 2.

10. Rejected as unnecessary. The subject matter is addressed in Finding of Fact 2.

11. Adopted in pertinent part in Findings of Fact 2.

12. Adopted in substance in Finding of Fact 2.

13. Adopted in pertinent part in Findings of Fact 2.

14. Adopted in pertinent part in Findings of Fact 9.

15. Subordinate to Finding of Fact 5.

16. Rejected as vague and argumentative.

17. Rejected as argumentative and unnecessary. Some of these issues are addressed in Findings of Fact 5 and 9.

18. Adopted in pertinent part in Findings of Fact 5.

19. Rejected as vague and unnecessary.

20. Rejected as vague and unnecessary.

21. Adopted in pertinent part in Findings of Fact 5.

22. Rejected as unnecessary.

23. Addressed in the preliminary statement.

24. Rejected as irrelevant. As set forth in the Preliminary Statement, the Confidential Informant authenticated the transcripts.

25. Rejected as irrelevant. The clear and convincing evidence established that the Confidential Informant paid Respondent for the drugs and prescriptions he obtained.

26. Rejected as unnecessary.

27. Rejected as unnecessary.

28. Rejected as unnecessary.

29. Rejected as unnecessary.

30. Rejected as irrelevant and argumentative.

31. Rejected as irrelevant and argumentative.

32. Rejected as irrelevant and argumentative.

33. Rejected as irrelevant and argumentative.

34. Rejected as vague and unnecessary.

35. Rejected as unnecessary.

36. Subordinate to Finding of Fact 8.

37. Subordinate to Finding of Fact 8.

38. Subordinate to Finding of Fact 8.

39. Subordinate to Finding of Fact 8.

40. Adopted in substance in Finding of Fact 15.

41. Rejected as unnecessary.

42. Rejected as unnecessary and irrelevant.

43. Subordinate to Finding of Fact 8.

44. Rejected as contrary to the weight of the evidence.

45. Subordinate to Finding of Fact 62.

COPIES FURNISHED:

Dr. Marm Harris, Executive Director Department of Business and

Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0770

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Francesca Plendl, Senior Attorney Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750

Harold D. Lewis, General Counsel Agency for Health Care Administration

325 John Knox Road Tallahassee, Florida 32303

Gary Robert Fine, Esquire

633 Southeast Third Avenue #4R Fort Lauderdale, Florida 33301

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: 94-000288

Orders for Case No: 94-000288