STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

Pursuant to notice, the above matters were heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 14, 1994, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Alex D. Barker, Esquire

7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211-7466 For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue is whether respondent's license as a medical doctor should be disciplined for the reasons cited in the administrative complaints.

PRELIMINARY STATEMENT

In an administrative complaint filed on October 22, 1991, petitioner, Department of Business and Professional Regulation, Board of Medicine, charged that respondent, David M. Scheininger, licensed as a medical doctor, had violated Chapter 458, Florida Statutes, in three respects. The complaint alleged that while treating a female patient between 1985 and 1990, respondent prescribed legend drugs other than in the course of his professional practice, failed to keep written medical records justifying the course of treatment of the patient, and practiced medicine below the standard of care expected of a reasonably prudent similar physician. This complaint was assigned Case No. 94- 0900. In a second administrative complaint filed on March 9, 1993, respondent is charged with failing to adhere to the appropriate standard of care while treating a female patient in 1989. This complaint was assigned Case No. 94- 0901. In a third administrative complaint filed on September 21, 1992, respondent is charged with failing to post a sign in his office advising patients that he did not carry medical malpractice insurance or otherwise advise his patients of this fact during the years 1990 and 1991. This complaint was assigned Case No. 94-0903. Finally, a fourth administrative complaint was

issued on September 17, 1993, alleging that due to dementia and memory loss related to hydrocephalus, respondent is unable to practice medicine with reasonable skill and safety to his patients. This case was assigned Case No. 94-0904. A fifth complaint (Case No. 94-0902) was referred back to the agency for further review by the probable cause panel.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the proposed agency action. All cases were referred by petitioner to the Division of Administrative Hearings on February 21, 1994, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated March 3, 1994, the four cases were consolidated and a final hearing was scheduled on June

14 and 15, 1994, in Jacksonville, Florida.

At final hearing, petitioner presented the testimony of Dr. Joseph L. Akerman, accepted as an expert in family practice; Russell Huling, Charles C. Coats, III, and Howard E. McVeigh, DBPR investigators; Dr. Ross A. McElvoy, Jr., accepted as an expert in psychiatry; and Dr. Edith M. Ortega, an internist.

Also, it offered petitioner's exhibits A-E pertaining to all cases; exhibits 1 and 2 in Case No. 94-0900; exhibit 1 in Case No. 94-0901; exhibit 1 in Case No. 94-0903; and exhibits 1 and 2 in Case No. 94-0904. All exhibits were received in evidence. Respondent did not appear at the final hearing.

The transcript of hearing was filed on June 20, 1994. Proposed findings of fact and conclusions of law were filed by petitioner on July 5, 1994. A ruling on each proposed finding is set forth in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Respondent, David M. Scheininger, is a licensed medical doctor having been issued license number ME 025317 by petitioner, Department of Business and Professional Regulation (DBPR), Board of Medicine (Board). He now resides at 7076 Lenczyk Drive, Jacksonville, Florida. When the events herein occurred, respondent was in the practice of family medicine with offices at various locations in Jacksonville, Florida. Respondent has been licensed by the state since 1975. The record reflects that besides these proceedings, respondent has been disciplined by the Board on two prior occasions. On June 23, 1983, his license was suspended until such time as he could demonstrate that he could practice medicine with reasonable skill and safety. The license was later reinstated in 1984. On December 16, 1986, he received a reprimand and agreed not to dispense samples of legend drugs from his office.

      
      

   2. Respondent is the subject of four administrative complaints filed against him between October 1991 and September 1993. The complaints allege generally that while treating a female patient between 1985 and 1990, respondent improperly prescribed legend drugs, failed to adhere to the appropriate standard of care, and failed to keep adequate medical records (Case No. 94-0900), he failed to adhere to the appropriate standard of care while treating a female patient in 1989 (Case No. 94-0901), he failed to post a notice in his office, or otherwise advise patients of the fact that he did not carry medical malpractice insurance (Case No. 94

      because of a mental incapacity (Case No. 94-0904). Although respondent did not appear at final hearing, he has disputed all allegations. Each case will be discussed separately below.

      
      

2. Case No. 94-0900

   
   

   1. Beginning on May 22, 1985, respondent began to treat B. M., a forty- three year old female, on a regular basis for routine illnesses, lower lumbar back pain, chronic headache pain and nervous anxiety. During the next four years, the patient had approximately 150 contacts with respondent.

      
      

   2. A drug profile taken from a local pharmacy indicated that from November 30, 1988, through February 6, 1990, respondent prescribed the following legend drugs to B. M.:

      
      

      Darvocet-N-100 862 units

      Tranxene 795 units

      Paragoric 300 MD's

      Talwin NX 290 units

      Ionamine 255 units

      Placidyl 195 units

      Tavinix 209 units

      
      

      In response to an investigator's inquiry as to why so many drugs were prescribed, respondent gave no explanation but simply asked that his records be returned. Although respondent was given the opportunity to file an "amendment" to his records, he declined to do so.

      
      

   3. A medical expert established that ninety percent of the prescriptions were written without related entries in the medical records explaining why such drugs were prescribed. In addition, the office calls did not match the prescriptions. During one five month period alone, more than 500 units of Tranxene were prescribed. Moreover, in almost every case, the patient had refilled the prescription far sooner than should have been done with ordinary prescribing, and most of the drugs were prescribed in combination with other drugs. Based upon these considerations, it is found that respondent failed to prescribe drugs in the course of his professional practice.

      
      

   4. In B. M.'s medical records, respondent simply recorded the chief complaint of the patient and nothing more. No reason was given for approximately 140 office visits. There was no indication that a complete initial work

      given. No diagnostic studies were made nor were there any objective findings in the records supporting the care given to the patient. Therefore, it is found that respondent failed to keep medical records justifying the course of treatment of the patient.

      
      

   5. Expert testimony further established that while treating the patient, respondent failed 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. This finding is based on the fact that the records were incomplete, there was very poor prescribing practice, no clinical evidence was shown to justify the large numbers of drugs prescribed, and there was no documentation to show that adequate care was given the patient.

3. Case No. 94-0901

   
   

   1. In Case No. 94-0901, respondent's care of a female patient is brought into issue. The patient had been treated by respondent since October 1975, mainly for recurring respiratory infections. During an office visit on September 18, 1989, she presented breathing difficulties and was coughing and spitting up blood and phlegm. Respondent failed to order a chest x

      arrange for a pulmonary consultation. Instead, he ordered immune serum globulin, which is not efficacious in treating respiratory infections. On October 15, 1989, the patient entered a local hospital after experiencing chest pains. She was initially diagnosed as having a collapsed lung but a bronchoscopy and biopsy revealed cancer in her left lung. The lung was removed on October 24, 1989.

      
      

   2. By failing to order an x

      smoking, or to refer her to a pulmonary specialist, and by simply treating her with immune serum globulin, respondent's care and treatment of the patient fell below the recognized standard of care.

      
      

4. Case No. 94-0903

   
   

   1. This complaint alleges that during the years 1990 and 1991, respondent failed to post a notice in his office that he did not carry medical malpractice insurance or otherwise advise his patients of this fact. During office visits by a DBPR investigator in July and August 1992, no signs were present and respondent acknowledged that no notice was being given to his patients. Even so, there is no direct evidence through observation or admission that during the years 1990 and 1991 such notices were not posted, or that the patients had not been advised of this lack of insurance. Therefore, it is found that there is less than clear and convincing evidence to sustain this charge.

      
      

5. Case No. 94-0904

1. The final complaint alleges that respondent is no longer capable of practicing medicine with reasonable skill and safety by reason of dementia and memory loss resulting from his primary disease of hydrocephalus (fluid on the brain). The DBPR learned of this condition through a report received from one of respondent's relatives.

   
   

2. The evidence shows that on May 12, 1993, respondent visited a local internist and complained of weakness, poor memory, inability to control urine and immobility. At that time, respondent was confined to a wheelchair. Respondent was referred to a neurologist who diagnosed respondent as having normal pressure hydrocephalus. On May 24, 1993, respondent underwent an atrial- peritoneal shunt operation to drain the excess spinal fluid. He now suffers from dementia and memory loss caused by the disease.

   
   

3. Expert testimony established that respondent is now confused and has cognitive mental deficits showing the persistence of dementia. As a consequence, his ability to use good judgment has been compromised, and he no longer has the ability to safely practice medicine.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

5. Because respondent's medical license is at risk, petitioner is obligated to prove the allegations in the complaint by clear and convincing evidence. See, e. g., Rife v. Department of Professional Regulation, 19 F.L.W. D1097 (Fla. 2nd DCA, May 13, 1994).

   
   

6. Respondent is charged with twice 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. He is also charged with failing to keep adequate medical records while treating a patient, and with violating the statute which requires physicians to advise their patients that they do not carry medical malpractice insurance. Finally, he is charged with being unable to practice medicine with reasonable skill and safety due to a mental or physical impairment.

   
   

7. There is clear and convincing evidence to support the allegations in Case Nos. 94-0900, 94-0901 and 94-0904. The charge in Case No. 94-0903, however, which pertains to respondent's alleged failure to post a notice in his office, should be dismissed. In its proposed order, petitioner recommends that respondent's license be suspended until he appears before the Board and demonstrates that he has paid a $10,000 administrative fine and that two Board approved psychiatrists have examined him and state that he is able to practice with skill and safety. Since this penalty is appropriate and falls within the recommended range of penalties enumerated in Rule 61F6

Administrative Code, the imposition of an administrative fine and suspension of the license are warranted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order finding

respondent guilty of all charges in Case Nos. 94-0900, 94-0901, and 94-0904, imposing a $10,000 administrative fine, and suspending his license until such time as he appears before the Board and demonstrates that such fine has been paid and that two Board approved psychiatrists have examined him and state that he is able to practice medicine with skill and safety. Case No. 94-0903 should be dismissed.

DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1994.

Petitioner:

APPENDIX TO RECOMMENDED ORDER CASE NOS. 94-900, 94-901, 94-903, 94-904

The proposed findings submitted by petitioner have been adopted in substance except for those findings pertaining to Case No. 94-0903. Those findings have been rejected on the ground they are not supported by the evidence.

COPIES FURNISHED:

Alex D. Barker, Esquire 7960 Arlington Expressway

Suite 230

Jacksonville, FL 32211-7466

Dr. David M. Scheininger 7076 Lenczyk Drive

Jacksonville, FL 32211

Jack L. McRay, Esquire 1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Dr. Marm Harris Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0770

Francesca Plendl, Esquire 1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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: 94-000900

Orders for Case No: 94-000900