STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-3408

)

RICHARD MORALES, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on April 18, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven Rothenburg, Esquire

Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210

Tampa, Florida 33619

For Respondent: Grover Freeman, Esquire

Freeman, Hunter & Malloy

201 East Kennedy Boulevard Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint filed on April 23, 1994, Petitioner seeks to discipline Respondent's license as a physician in Florida, alleging that he failed to keep written medical records justifying the course of treatment of a patient, and prescribed a legal drug in inappropriate quantities, in violation of Sections 458.331(1)(m) and (q), Florida Statutes, respectively. The Petitioner also alleges that Respondent failed to practice medicine with the level of care, skill and treatment which is recognized by reasonable prudent similar physicians as being acceptable under similar conditions and circumstances, in violation of Section 458.331(1)(t), Florida Statutes.

Respondent requested a formal hearing on the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Robert W. Somars, a deputy with the Pinellas County Sheriff's Department; Walter E. Hughes, an investigator for the Department of Business and Professional Regulation; Patricia A. Rutherford, the District Director of Operations for Smart Corporation; the Respondent, Dr. Morales; George Dudjak, III, at the time in issue an operations supervisor for the Social Security Administration; and Dr. James M. Boorstin, a psychiatrist. Petitioner also introduced Petitioner's Exhibits 1 through 6. Petitioner's Exhibit 7 was offered but withdrawn.

Respondent testified in his own behalf and introduced the testimony of Rosa

E. Morales, his estranged wife, and Kevin T. Daley, commercial pilot, licensed massage therapist, and former coworker of the Respondent in late 1990 and early 1991. Respondent also introduced Respondent's Exhibits A through E.

A transcript was furnished, and subsequent to the hearing both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Board of Medicine, has been the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was a licensed physician in Florida under license number ME 0039846.

   
   

2. On September 23, 1988, Respondent saw Patient #1, a 55 year old female, who presented with a primary complaint of chronic pain in the neck and low back resulting from an automobile accident. The patient history taken by the Respondent revealed a head injury, a back injury and a whiplash injury, all within the previous five years. The patient also had a history of unstable blood pressure, especially in times of stress, and a history of alcohol abuse which had been in remission for the past two years.

1. Respondent examined the patient and found she was suffering from depression but evidenced no suicidal ideations or indications of psychosis. Respondent diagnosed a major depressive reaction and myofacial syndrome of the neck and low back.

   
   

2. Dr. Morales treated this patient from September 23, 1988 to February 1, 1990, prescribing various antidepressants and anti-anxiety medications including Limbitrol, Prozac, Valium, Halcion and Tranxene for her. He also prescribed various opiates including Percodan and Percocet.

   
   

3. Respondent claims he made a copy of each prescription he wrote for the patient medical records of each patient so that he could keep track of the number of pills he prescribed for that patient. He claims that the quantity of a prescribed medication was kept in a separate area of the patient's chart and not with the clinical notes. Though Respondent claims this procedure was a common office practice and done consistently in every patient's chart, the evidence indicates otherwise. His method of recording medication in the clinical record was inconsistent. At some places in the record he would indicate the exact number of a specific pill prescribed. At other places in the record, he would not.

   
   

4. Examples of this practice, as seen from the medical records of Patient #1 available, shows the following entries:

   October 20, 1988, Rx for Valium for patient #1 but no indication of the amount prescribed is found in the records.

   
   

   March 2, 1989, Rx for Percodan QID (4 times a day), but no indication in records of the amount prescribed.

   
   

   July 8, 1989 Rx for Percodan - 60 tabs.

   
   

   August 2, 1989 Respondent notes to continue with Percoset, but no notation in records as to amount.

   
   

   September 7, 1989 Rx for Percocet but records do not reflect amount prescribed.

   
   

   November 15, 1989 Rx for 60 Percocet.

   
   

   December 6, 1989 Rx for 30 Percocet pills.

   
   

5. While Patient #1 was under Respondent's care, she was admitted to the hospital twice. On September 18, 1989 she was admitted to Largo Medical Center for narcotics addiction and was discharged on September 28, 1989. On September 18, 1989, while the patient was in the hospital, Dr. Farullah, a staff physician, called Respondent to discuss the patient with him. This conversation, including the Respondent's name, is itemized in the hospital records for this patient. It is appropriate practice protocol upon the admission of a patient to the hospital for the admitting physician to notify the patient's attending physician about the patient's diagnoses and condition. It would appear this was done here by Dr. Farullah. Nonetheless, Respondent claims he did not know the patient was hospitalized, contending he did not recall the conversation, and noting that the information regarding hospitalization might not have been included in it. Respondent claims he never heard of Dr. Farulla until a subsequent visit from the patient in his office on October 24, 1989.

   
   

6. After the patient's discharge from the hospital, she came to Respondent's office for a 30 minute visit on October 4, 1989. Though this visit occurred only 6 days after her discharge from the hospital, Respondent claims the subject of her hospitalization was not discussed. Two days later, on October 6, 1989, the patient returned to Respondent's office for another 30 minute visit and again, the subject of her hospitalization did not come up.

   
   

7. This patient was readmitted to the hospital on October 10, 1989 with a diagnosis of, among other things, drug dependency. She was discharged on October 20, 1989, but, again, Respondent claims he did not know of her hospitalization. He saw her on October 24, 1989 for another 30 minute visit during which, he claims, the subject of her hospitalization did not come up. This appears to be a conflict with his previous testimony , noted in Paragraph 8, supra, wherein he stated he never heard of Dr. Farullah until he met with the patient in his office on October 24, 1989.

   
   

8. On April 10, 1990, in the course of filing a disability claim with the Department of Health and Rehabilitative Services, (DHRS), the patient signed a medical release form. Thereafter, HRS requested the patient's records from the Respondent, but they were not forthcoming. A second request was transmitted to the Respondent who replied that the records requested had been copied but not

   dispatched because no release form accompanied the request. Respondent indicated that upon receipt of the release form, the records would be forwarded, and on June 4, 1990, they were, in fact, sent by the Respondent. This was approximately 17 months before the burglary of Respondent's office to be discussed, infra. Respondent claims it was his policy, however, in responding to requests for information to the Social Security Administration, (disability claims are paid by Social Security), to provide only clinical notes, initial evaluation, and a medical summary update. Other records, including prescription records, are not sent.

   
   

9. Respondent's office was burglarized on November 30, 1991 by one of his former employees. According to Respondent, all the medical records he had were taken during the break-in. Though they were ultimately returned, he claims they were incomplete when returned. However, comparison done by the Department's investigator, of the medical records of Patient #1 which were sent to HRS before the burglary with those taken from Respondent's office after the burglary, indicated they were the same, except for some duplicates.

   Nonetheless, Respondent claims that some of the records pertaining to Patient #1, including prescription records, were not recovered. This could explain the absence of prescription records in both sets of records, but that is not found to be the case here, however.

   
   

10. According to the Board's expert, Dr. Boorstin, a Board Certified Psychiatrist who specializes in addiction psychiatry and opiastic medicine, the benzodiazepins prescribed for Patient #1 by the Respondent, were inappropriate because of her known alcoholism, and he failed to adequately monitor her for possible addiction or dependence. Even though her condition had been in remission for two years, Dr. Boorstin concluded it was below standard practice to prescribe those drugs to this patient.

    
    

11. Dr. Boorstin also concluded that Respondent failed to keep adequate written medical records for this patient and did not justify the less than conservative prescription of anti-anxiety and pain medications to a known alcoholic. A physician must keep track of the drugs being used by a patient to be sure no abuse trends exist.

    
    

12. The Respondent should have detailed with exactitude in his records the number of each specific medication. From September 30, 1988 to February 1, 1990, a period of 16 months, he prescribed various opiate-based pain killers to Patient #1, including Tylenol #3, Codeine, Percodan and Percocet. His prescription of the latter two, in Dr. Boorstin's opinion, fell below the appropriate standard of care. The patient's hospital records indicate she was suffering from drug addiction, and if, as the Department claims, Respondent knew of her hospitalizations and the reason therefor, his prescription of liberal amounts of opiate based drugs was inappropriate.

    
    

13. The evidence shows the patient was admitted to the hospital on two occasions, both times for, among other problems, drug addiction. Less than one month after her second discharge, Respondent prescribed Percocet for this patient for pain relief at a rate of two tables every six hours. According to Dr. Boorstin, the usual adult dosage is one tablet every six hours. This is outlined in the Physician's Desk Reference, (PDR), a compendium of drugs and medications with manufacturer's recommendations for dosage. Though authoritative in nature, the PDR is not mandatory in application, and physicians often use it as a guide only, modifying strength and dosage as is felt appropriate for the circumstance. On at least one occasion, Respondent's medical records for this patient show he prescribed Percocet but not the amount

    prescribed. This is below standard. The same is true for the noted prescription for Percodan. Both Percodan and Percocet are Schedule II drugs. A notation in the records for a prescription for Valium also reveals no indication was given as to the amount prescribed. Again, this is below standard.

    
    

14. Dr. Boorstin's opinion is contradicted by that of Dr. Wen-Hsien Wu, the Director of the Pain Management Center at the Schools of Dentistry and Medicine of New Jersey, the New Jersey Medical School, who testified by deposition for the Respondent. Dr. Wu claims he has prescribed medications in amounts and dosages far in excess of those prescribed by Respondent and for a much longer period of time. Wu is Board certified in anesthesiology and has published numerous articles on pain management.

    
    

15. Dr. Wu contends there is no contraindication for the use of narcotic therapy in Patient #1's alcoholism. The use of narcotics is appropriate if the patient can return to function with careful monitoring. Here, it would appear that Patient #1 was monitored through her frequent visits to the Respondent's office. It is impossible to tell from the Respondent's patient records just how much medication he prescribed for his patient. Because of the failure to indicate the number of pills of each type Respondent was prescribing, it is impossible to form a conclusion as to whether the amount prescribed was appropriate or excessive.

    
    

16. Notwithstanding Respondent's claim in his Proposed Findings of Fact that "...there is no indication of drug abuse in the prescribed drug area", the medical records show that on each admission of Patient #1, a diagnosis of drug addiction was made. To be sure, these records do not reflect the drug to which the addiction relates.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

18. In the Administrative Complaint filed herein, the Department alleges Respondent failed to keep medical records sufficient to justify the scope and course of treatment rendered, or the liberal prescription of antidepressant and anti-anxiety medications, or by detailing the number of pills ordered, dosage prescribed, refills, directions for use, or reasons for prescribing Percodan and Percocet for a drug addict, (Section 488.331(1)(m); inappropriately prescribed controlled medications, (458.331(1)(q); and failed to practice medicine with an acceptable standard of care, (458.331(1)(t); all sections of Florida Statutes. The burden of proof in this matter rests upon the Department to establish the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

19. The evidence in this case is heavily dependent upon expert testimony. Nonetheless, it is clear from the evidence presented that, notwithstanding the burglary of his office and the resultant loss of many medical records, the records relating to Patient #1 as maintained by the Respondent are inadequate. The records as to this patient, as submitted to the Department well before the burglary are almost identical to those recovered afterwards. In several cases, the records refer to the prescription of a particular controlled drug but the entry fails to denote the amount of the medication prescribed. The absence of these prescription records cannot reasonably be attributed to the burglary. It would be too much of a coincidence to conclude that the only records lost

    regarding this patient were the prescription records and the only reasonable conclusion to be drawn is that they were not included initially. Consequently, the records are not adequate.

    
    

20. By the same token, the evidence clearly shows that Respondent failed to maintain a proper standard of care as to Patient #1, when he continued to prescribe opiate derived drugs for her after learning she had been hospitalized for, among other things, drug addiction. It is recognized that Respondent claims he did not receive a call from or discuss Patient #1 with Dr. Farullah. The hospital records reflect the call was made, however, and the evidence is sufficient to draw the conclusion that he was advised of the patient's hospitalization and her condition. His action thereafter in continuing to prescribe addictive drugs is below standard care.

    
    

21. As to the allegation involving the inappropriate prescription of medications, the evidence does not meet the necessary standard of proof as to the amount prescribed. While Dr. Boorstin indicates Respondent prescribed at twice the recommendation of the PDR, it is well accepted that that authority is but a guideline which allows physician discretion in actual prescription. When to that is added the testimony of Dr. Wu, whose prescription practice is far more liberal than that of Respondent, and who could see no fault in Respondent's prescriptions, it cannot be said that the evidence as to Respondent's guilt is either clear or convincing.

    
    

22. However, it is clear that Respondent's continuing to prescribe Percodan and Percocet to Patient #1 after she had been diagnosed as a drug addict was inappropriate and a violation of Section 458.331(1)(q), and below the proper standard of care.

    
    

23. The disciplinary guidelines of the Board of Medicine, found in Rule 59R-8.061, F.A.C. provide a range of penalties for violations of Section 458.331(1), Florida Statutes. These penalties include revocation or suspension of the license, placing the license on probation, a reprimand, and an administrative fine. The Board is authorized to consider both aggravating and mitigating circumstances, as appropriate. Here, the Board contends that Respondent's actions exposed his patient to considerable risk of injury.

    
    

24. The Board recommends that as to the medical records violation, Respondent pay a fine of $2,000 within 90 days of the entry of the Final Order in this case, be placed on direct probation for two years, and take a course on medical records at the University of Florida Medical School within one year of the entry of the Final Order. As to the failure to meet the applicable standard of care, the Board proposes a fine of $3,000 to be paid within 90 days from the entry of the Final Order, indirect probation for two years, and a requirement that Respondent take a course in prescribing abusable drugs at the University of Florida Medical School within one year of entry of the Final Order herein. As to the inappropriate prescribing of drugs, the Board recommends Respondent be assessed a fine of $3,000 to be paid within 90 days of the entry of the Final Order herein, be reprimanded, be placed on probation for two years, and complete a continuing medical education course in prescribing abusable drugs at the USF Medical School within one year of the entry of the Final Order.

    
    

    RECOMMENDATION

    
    

    Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

    RECOMMENDED that a Final Order be entered herein finding Respondent guilty of all allegations except prescribing in inappropriate amounts. It is also recommended that Respondent be ordered to pay an administrative fine of $3,500 within 90 days of the date of the Final Order herein, be reprimanded, and within one year of the date of the Final Order herein, attend continuing medical education courses at the University of South Florida Medical School in appropriate medical record keeping and in the prescribing of abusable drugs.

    
    

    RECOMMENDED this 12th day of June, 1995, in Tallahassee, Florida.

    
    

    
    

    ARNOLD H. POLLOCK, 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 June, 1995.

    
    

    APPENDIX TO RECOMMENDED ORDER

    
    

    The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

    
    

    FOR THE PETITIONER:

    
    

    1. Accepted and incorporated herein.

    2. - 5. Accepted and incorporated herein.

6. - 15. Accepted and incorporated herein.

16. - 19. Accepted and incorporated herein.

1. & 21. Accepted as a representation by Respondent.

   1. Accepted as Respondent's position but not accepted as fact.

   2. Accepted and incorporated herein.

   3. Accepted.

   4. - 27. Accepted and incorporated herein.

      1. Rejected as unproven.

      2. & 30. Accepted but repetitive of other evidence previously admitted.

31. & 32. Accepted and incorporated herein.

1. - 38. Not appropriate Findings of Fact but merely recitations of the contents of records.

   1. Accepted and incorporated herein.

   2. - 42. Restatement of witness testimony.

      
      

      FOR THE RESPONDENT:

      
      

      1. Accepted and incorporated herein.

      2. - 5. Accepted and incorporated herein.

6. & 7. Accepted as testimony of Respondent, but not as probative of any issue.

1. & 34. Accepted as opinions of the witness, but not as the ultimate fact.

   1. Accepted as to admissions but rejected as to Respondent not being advised.

   2. Accepted and incorporated herein.

COPIES FURNISHED:

Steven A, Rothenberg, Esquire Agency for Health Care

Administration

9325 Bay Plaza Boulevard, Suite 210

Tampa, Florida 33617

Grover C. Freeman, Esquire Freeman, Hunter & Malloy

201 E. Kennedy Boulevard Suite 1950

Tampa, Florida 33602

Dr. Marm Harris Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0770

Assistant Director 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 within which to submit written exceptions. You should consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 94-003408

Orders for Case No: 94-003408