STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 94-4628
)
KATHERINE ANNE HOOVER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on March 10, 1995, in Key West, Florida.
APPEARANCES
For Petitioner: Steven Rothenburg, Esquire
Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210
Tampa, Florida 33619
William Whitson, Esquire Department of Business and
Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399
For Respondent: Katherine Anne Hoover, pro se
Route 2, Box 203
Lost Creek, West Virginia 26385 STATEMENT OF THE ISSUE
The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and if so, what disciplinary action should be taken, if any.
PRELIMINARY STATEMENT
On March 23, 1994, Petitioner issued an Administrative Complaint against Respondent alleging that she had violated certain statutes regulating her conduct as a physician, and Respondent timely requested a formal hearing regarding those matters. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.
Petitioner presented the testimony of Louis A. Collado; Louis E. Cobo; Leonard Kaler; Simon Kline; Steven Auer; Michael Ledrick; David Alaya; Laurence
Neufeld, M.D.; and, by way of deposition, Dan G. Jacobson, M.D. Additionally, Petitioner's Exhibits numbered 1, 2, 3a-3f, and 5 were admitted in evidence.
Respondent Katherine Anne Hoover, M.D., testified on her own behalf and presented the testimony of Guy David Leveaux, M.D.; Patrick Parker, and James Farrell. Additionally, Respondent's Exhibits numbered 1-6 were admitted in evidence.
Both parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
At all times material hereto, Respondent has been a physician licensed to practice in the state of Florida, having been issued license number ME 0044173. She practiced medicine in Key West, Florida, from 1985 through June 1993 when she closed her office as a result of a family problem and moved to West Virginia. She is licensed as a physician in West Virginia and currently practices medicine in that state. Respondent is Board-certified in internal medicine.
In April 1993, Petitioner's pharmacy inspector responded to telephone calls from pharmacists in Key West concerning Respondent's prescribing practices by traveling to Key West and reviewing pharmacy records of Respondent's patients. One of Petitioner's investigators thereafter collected and compiled copies of computer printouts from six pharmacies listing prescriptions filled for seven of Respondent's patients. Respondent had worked at a clinic where she experienced approximately 15,000 patient visits per year.
After determining that Respondent had prescribed what he considered to be an inordinate amount of controlled substances, Schedule II narcotics, the investigator wrote to Respondent advising her that an investigation had been commenced. In July, Respondent telephoned him and advised him that she had relocated to West Virginia. The investigator asked her for the medical records for the seven patients he questioned, and Respondent advised him that in conjunction with her closing her practice and relocating, she had given their medical records to approximately 500 of her patients so they could take them to other physicians and continue receiving their medical care, and those records not picked up by patients had been sent to a Dr. Garriques to be the custodian of those records. Of the seven medical records requested by the investigator, six of them had been given to the patients, and the seventh had been transferred to Dr. Garriques. Respondent admitted that she had not personally kept either the originals or copies of the medical records of her patients.
The investigator subsequently telephoned Sun Belt Clinic where Respondent had worked and was told that Respondent's medical records were not there because she had given them to her patients. In December 1993, the investigator issued a subpoena to Sun Belt Clinic for Respondent's medical records and received nothing. Petitioner has made no further effort to obtain the medical records of the patients involved in this proceeding.
Controlled substances are categorized by the Drug Enforcement Agency in five different schedules according to their potential for abuse. Schedule I substances are illegal. Schedule II substances, although considered highly addictive, can be prescribed by licensed physicians for medical purposes. Schedule II substances can be narcotic (opiates administered for pain) or non-
narcotic. Schedule II narcotics include morphine (morphine sulfate), methadone (dolophine), dilaudid (hydromor-phone), and oxycodone (percodan and percoset). Dexedrine is also a Schedule II controlled substance.
Although morphine is the most potent narcotic available in the United States, only approximately 10-20 percent of it is absorbed, when ingested. Methadone is available in government-run clinics for the treatment of heroin addiction. Methadone is also a bona fide treatment for pain. Pursuant to the statutes regulating the conduct of registered pharmacists in the state of Florida, pharmacists are not permitted to dispense methadone for addiction; rather, pharmacists can only dispense methadone as a pain medication. At least one doctor in Key West, other than Respondent, prescribes methadone for pain, and a local hospital there has begun using methadone to treat pain on an in- patient basis.
L.P., one of Respondent's patients, is a narcoleptic. Narcoleptics need a stimulant, such as dexedrine or ritalin, to function normally. Before seeing Respondent, L.P. had been "worked up" at Stanford and was taking a maintenance dosage of dexedrine. Between September 11, 1992, and June 1, 1993, Respondent prescribed dexedrine, 15 mg., for L.P., the same dosage L.P. was on before and after being Respondent's patient. The amount and frequency of dexedrine prescribed by Respondent for L.P. is within the range recommended by the Physician's Desk Reference and was an appropriate treatment for L.P.'s narcolepsy.
Persons suffering from chronic pain (as opposed to acute episodes of pain) for which there is no cure or treatment available that can alleviate the person's pain are said to suffer from "intractable pain." There are two types of patients who suffer from intractable pain. The first group are patients with terminal, irreversible illnesses, such as cancer patients. Physicians generally give those patients whatever narcotics they need to alleviate the pain during the end stage of their lives. The second group is composed of patients who suffer from non-terminal disease processes who have tried different specialists and treatments available without achieving relief from their chronic pain.
Those persons are generally not treated in family practice settings but rather are referred to pain management centers or pain clinics, in locations where such are available, to have their pain alleviated by treatments such as receiving morphine implants or having doctors perform nerve blocks. Many physicians avoid caring for patients who require Schedule II controlled substances to alleviate their suffering.
The United States Department of Health, Education and Welfare, through its Agency for Health Care Planning and Research, has established national guidelines for treatment of moderate to severe pain in cancer patients, using Schedule II narcotics. The guidelines are written as a starting dose for opiate-naive adults, i.e., adults who have never before taken opiates. The guidelines further indicate that adults who are not opiate-naive may need a stronger dose. Although none of Respondent's other five patients involved in this proceeding were cancer patients, they suffered from intractable pain. Respondent prescribed narcotics for them within the guidelines recommended to relieve intractable pain in cancer patients.
The Agency for Health Care Planning and Research recommends for moderate to severe pain a starting dose of dilaudid of 6 milligrams every three to four hours with a maximum recommended dose of 24 milligrams a day. It recommends a starting dose for moderate to severe pain for methadone or dolophine of 20 milligrams every six to eight hours with a maximum of 80
milligrams a day. For morphine, Agency guidelines recommend a starting dose of
30 milligrams every three to four hours.
As to those five patients discussed hereinafter, Respondent saw each of them two times a week when they came to her for their prescriptions. In that way, she was able to monitor them closely and write prescriptions for limited quantities of medication. Sometimes, she saw those patients more often since the pharmacies in Key West were not able to stock supplies of narcotics as easily as non-narcotic medications. If a patient brought a prescription for such narcotics to a pharmacy and the pharmacy had an insufficient quantity in stock to fill that prescription, the patient could go elsewhere or could take the quantity the pharmacy had in stock. Under that circumstance, the prescription for the full quantity would be cancelled, and the patient would return to Respondent to get an additional prescription in order to have the full dose prescribed by Respondent.
Respondent treated J.P. for six years for migraine headaches on an indigent basis. J.P. could not afford a CAT scan, and there were no other resources in Key West available to him for further work-up at no cost. Respondent based her treatment plan on her best clinical judgment and a complete physical examination. She tried Midren and other anti-inflammatory medications first. She prescribed percoset for three or four years. She then tried dilaudid. She prescribed dilaudid, 2 mg. from March 19, 1992, through April 23, 1992. She then prescribed dilaudid, 4 mg., from April 30, 1992, through August 17, 1992. From September 3, 1992, through November 30, 1992, she prescribed dolophine, 10 mg. On December 4, 1992, she changed J.P.'s treatment, prescribing morphine, 30 mg., through January 29, 1993. Pharmacy records reflect other medications thereafter, with a prescription for 15 dilaudid, 4 mg., on March 24, 1993, followed by 8 morphine sulfate tablets, 30 mg., on May 21, 1993; 5 percoset tablets on May 31, 1993; 15 morphine sulfate tablets, 30 mg., on June 4, 1993; and 5 percodan tablets on June 7, 1993.
Although J.P. filled Respondent's prescriptions at several pharmacies, for example using three different pharmacies during the month of January 1993, the total amount of medication prescribed by Respondent was within the federal Agency guidelines. Respondent's prescribing practices as to J.P. were appropriate and not excessive. Over the course of her treatment of J.P., Respondent observed him change from a "non-functional" person to a functional person who was able to hold a job as a chef when his pain was relieved.
Respondent treated M.G. for AIDS-related cluster headaches, which are very intense. He was also grieving for his girlfriend who had died of AIDS. Respondent treated him with dilaudid, which made him pain-free most of the time, and, in addition, he learned relaxation techniques to help deal with his pain. Respondent maintained him on a dosage of dilaudid, 4 mg., from December 28, 1992, through early March 1993. The quantity of dilaudid prescribed by Respondent was within the federal Agency guidelines, and was appropriate and not excessive. While taking dilaudid, M.G. was able to work four days a week as a taxi dispatcher.
Respondent treated C.D. for chronic severe pain resulting from connective tissue disease. C.D. also suffered from intermittent gland swelling. Respondent unsuccessfully tried numerous anti-inflammatory medications in treating C.D., and he was treated by a rheumatologist in Miami without benefit. Respondent placed him on a maintenance treatment plan of 100 mg. a day of morphine and kept him at that level. Pharmacy computer printouts reveal C.D.'s morphine treatment commencing in February of 1992 and continuing into mid-June
1993. His functioning improved so that he was able to obtain a job as a taxi driver and once again start playing his guitar in a band. The maintenance program Respondent instituted for C.D. was within the federal Agency guidelines and was appropriate.
Respondent treated J.B. for six years for multiple orthopedic problems and back pain. J.B. was not opiate-naive. He had been severely abused as a child and started taking narcotics at the age of two when he suffered a broken arm and severe burns to his hand as a result of his father's behavior. Respondent wrote alternating prescriptions for methadone, dolophine, and morphine for J.B. from December of 1991 through mid-June 1993. He remained on the same dosage. When seen in the community, J.B. was clean, spoke coherently, walked in a straight line, and dressed appropriately for Key West. Although the mixture of prescriptions and the dosage amounts Respondent prescribed for J.B. were substantial, her prescribing practices for J.B. were within the federal Agency guidelines and were appropriate.
Respondent treated P.P. from 1986 through 1993 for severe sinusitis.
P.P. also developed severe low back pain (sciatica). Respondent took a back x- ray, administered physical therapy, and referred P.P. to a hypnotist. Respondent wrote on prescriptions which she gave to P.P. that her diagnosis was a herniated disc. Respondent started her on dilaudid, 2 mg., in February 1992 and continued that regimen through January 1993. She also prescribed percoset and valium, 5 mg., for the severe back pain and muscle spasm. She also prescribed an anti-inflammatory for the stomach upset resulting from the
narcotic. Respondent's prescribing practices as to P.P. were within the federal Agency's guidelines and were appropriate.
In her treatment and prescribing practices for L.P., J.P., M.G., C.D., J.B., and P.P., Respondent kept detailed records, in part due to her concern that she might become the subject of criticism by Petitioner. Such records were not, however, offered at hearing by either party.
The prescribing of controlled substances to the patients involved in this proceeding was done in the course of Respondent's professional practice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
The Administrative Complaint filed in this cause alleges that Respondent has violated Section 458.331(1)(m), (q), and (t), Florida Statutes, which prohibits:
(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, or administered; and reports of consultations and hospitalizations.
* * *
(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. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappro-priately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course
of the physician's professional practice, without regard to his intent.
* * *
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is re-cognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
The Administrative Complaint contains allegations regarding seven of Respondent's patients. During the final hearing in this cause, Petitioner dismissed all allegations regarding patient T.M. and also dismissed all allegations regarding the medication tussionex. Further, although several other medications were listed in the Administrative Complaint and are listed on the pharmacy computer printouts, they were merely mentioned in passing as part of the evidence in this cause, and no evidence was offered specifically regarding the appropriateness of those medications for the treatment of the patient involved. Accordingly, no findings of fact or conclusions of law can be made regarding medications other than those specifically described in this Recommended Order.
Count One of the Administrative Complaint alleges that Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the six patients still involved in this proceeding. Petitioner offered no evidence that Respondent failed to keep written medical records justifying the course of treatment as she treated those patients, the only interpretation previously given the statute by Petitioner. To the contrary, Respondent testified that she purposefully kept detailed records regarding each patient and the treatment rendered to that patient, and her testimony is uncontroverted. Accordingly, Petitioner has failed to meet its burden of proof regarding Count One of the Administrative Complaint.
In its Proposed Recommended Order, Petitioner argues, for the first time, that Respondent violated Rule 61F6-26.002(3), Florida Administrative Code, which, according to Petitioner, requires a licensed physician to retain adequate medical records for a period of at least two years. Petitioner's representation of the provisions of that rule is not accurate. That rule has been re-numbered as Rule 59R-10.002(3), as reflected by the copy of the rule filed in this cause by Petitioner with its Motion to Take Official Recognition, and requires, as a general rule, that physicians retain adequate written medical records for a period of at least five years from the last patient contact. However, Subsection (4) of that rule specifically applies to a physician who terminates his or her practice or relocates and provides as follows:
When a licensed physician terminates practice or relocates and is no longer available to patients, [the physician] . . . shall advise
the licensed physician's patients of their opportunity to transfer or receive their records. [Emphasis added.]
To the extent that Petitioner argues that Respondent violated Section 458.331(1)(m), Florida Statutes, by giving her patients their medical records, Petitioner is in error. By law, she was required to do so when she terminated her practice and relocated from Key West to West Virginia.
Count Two of the Administrative Complaint alleges that Respondent has violated Section 458.331(1)(q), Florida Statutes, by prescribing controlled substances other than in the course of her professional practice by prescribing excessive and inappropriate amounts to the patients involved herein. As to patient L.P., whose narcolepsy Respondent treated with dexedrine, Petitioner has failed to meet its burden of proof. The evidence is both clear and convincing that dexedrine is the correct medication for treating narcoleptics, and the dosage given to L.P. by Respondent is the dosage recommended in the Physician's Desk Reference, an authoritative source. The dosage prescribed was the same as that dosage prescribed for L.P. by her prior physician and by the physician who took over her care after Respondent terminated her practice.
Since the Administrative Complaint filed in this cause requests that the Board of Medicine revoke or suspend Respondent's license, restrict her practice, impose an administrative fine, issue a reprimand, place her on probation, and/or grant any other relief that the Board deems appropriate, Petitioner is required to prove its allegations by clear and convincing evidence. Balakrishna Nair, M.D. v. Dept. of Business & Professional Reg., Bd of Medicine, 20 FLW D983 (Fla. 1st Dist. 1995). As to the other five patients involved in this proceeding, Petitioner has failed to meet its burden of proof.
In support of its allegation that Respondent prescribed excessive and inappropriate amounts of controlled substances to those patients, Petitioner offered computer printouts of pharmacy records and the testimony of two physicians. The computer printouts listed, essentially, the date, the prescription number, the medication, the name of the prescribing physician, the quantity of medication, and the purchase price. Basically, the printouts are the type that are produced by pharmacies at the patient's request for insurance or record keeping purposes. The computer printouts of the two Dennis Pharmacies have not been considered as a basis for any finding of fact in this Recommended Order because the printouts from those two pharmacies are not clear in the information they are intended to convey. Specifically, whereas the other pharmacy printouts clearly state the quantity of medication, the Dennis Pharmacy records use a combined column entitled "Qty/DS" and in that column are listed two different numbers. Petitioner offered no evidence as to the meaning of that description or as to which of the numbers represent the actual quantity received by the patient. Although it is likely that "Qty" stands for the word "quantity," no explanation was offered for the "DS" in the heading of that column. Since the meaning is unknown, the two different numbers listed for each entry cannot be deciphered. Extrapolating the two numbers against the price paid and the dates of the entries to determine if the "DS" might refer to the words "dose," "dispensed," or "days" produces no meaning. Although two pharmacists from Dennis Pharmacies testified in this proceeding, one as to the accuracy of the record, neither was asked to explain or interpret the information contained therein.
In further support of its allegation that Respondent prescribed excessive and inappropriate amounts of controlled substances to the patients in
question, Petitioner presented the testimony of two physicians. They opined that Respondent fell below the standard of care by treating the patients for pain rather than referring them to pain management centers, by prescribing controlled substances to the patients without utilizing non-addictive alternatives first, by writing prescriptions on a frequent basis allowing those persons to obtain large quantities of controlled substances every few days, and by failing to keep medical records to justify the course of treatment of the patient. The thrust of their testimony and of Petitioner's arguments is that the medications used by Respondent for these patients were controlled substances due to their addictive nature and that Respondent was either addicting the patients or assisting their addictions as evidenced by the fact that the patients in question were having their prescriptions filled at different pharmacies. The reason assumed for the patients' "pharmacy hopping" was to allow them to obtain sufficient quantities so they could sell the narcotics "on the street." Since the experts assumed the quantity being prescribed constituted a "lethal dose," they also suggested that the patients were not taking the medications themselves but were merely using Respondent as a source of supply.
Although Petitioner's experts choose not to care for persons suffering from intractable pain, that is a personal decision since they are permitted by law to prescribe and administer Schedule II controlled substances to their patients. Such decisions to not treat patients with chronic pain are made possible by the presence of pain clinics and pain management centers in the locations where the two doctors practice, an option not shown to have been available to Respondent. Respondent cannot be disciplined solely for prescribing the medications themselves since Section 893.03(2) specifically provides that Schedule II substances have an accepted but severely restricted medical use and Section 893.05(1), Florida Statutes, specifically authorizes physicians to prescribe controlled substances so long as such prescription is done in good faith and in the course of the physician's professional practice.
That the Legislature has authorized physicians licensed in the state of Florida to prescribe controlled substances and has prohibited only the prescribing of excessive and inappropriate amounts, as proscribed by Section 458.331(1)(q), is buttressed by the fact that the Legislature in 1994 enacted legislation specifically authorizing licensed physicians to administer Schedule II controlled substances for the treatment of intractable pain. Section 458.326, Florida Statutes, specifi-cally provides, in part, as follows:
For the purposes of this section, the term "intractable pain" means pain for which, in the generally accepted course of medical practice, the cause cannot be removed and otherwise treated.
Intractable pain must be diagnosed by a physician licensed under this chapter and
qualified by experience to render such diagnosis.
Notwithstanding any other provision of law, a physician may prescribe or administer any controlled substance under Schedules II-V, as provided for in s. 893.03, to a person for the treatment of intractable pain, provided the physician does so in accordance with that level of care, skill, and treatment recognized by a reasonably prudent physician under similar conditions and circumstances.
As to whether the amounts of controlled substances prescribed by Respondent to the patients in question were excessive or inappropriate, Petitioner offered only evidence that Respondent should not have done it at all. Petitioner's failure to offer any standard against which Respondent's conduct can be measured prevents Petitioner from meeting its burden of proof. Petitioner's evidence consists of statements of ultimate conclusion: that the amounts were excessive and that the amounts were inappropriate. Petitioner's experts candidly testified that the standard of care is to prescribe the minimum amount of medication which is necessary to treat patients' problems, that some patients physically dependent on drugs can function, that the amount of medication given should be that necessary to achieve the appropriate relief of pain, and that Respondent's prescribing practices were below the standard of care unless some extraneous circumstances were present. They candidly testified that without being provided with copies of the medical records for those patients they could not evaluate Respondent's diagnoses or what alternative modalities were attempted or what testing was done to support the use of the medications chosen by Respondent to treat those patients.
Although the computer printouts alone would have formed a reasonable basis for Petitioner to initiate an investigation to determine if Respondent had violated the statutes regulating her conduct as a physician, the computer printouts alone do not provide a sufficient basis for a factual or a legal determination that Respondent violated those statutes based on evidence which is both clear and convincing. Petitioner's experts were only given computer printouts of prescriptions and asked to render opinions as to whether the amounts of medications were excessive and inappropriate without benefit of patient examination and/or copies of the patients' medical records and/or Respondent's explanation of her treatment of the patients and/or the actual prescriptions written to ascertain if they contained information more helpful than simply a computer listing of prescriptions filled. Even had Petitioner's expert testimony been left uncontroverted, it would constitute an insufficient basis for factual and legal determinations since it was based upon admittedly incomplete information. Even if Petitioner's burden of proof had been a mere preponderance of evidence, Petitioner's expert testimony would be legally insufficient since it was not based upon the inclusion of necessary and material information. Easkold v. Rhodes, 614 So.2d 495 (Fla. 1993).
On the other hand, Respondent presented expert evidence that there is a set of guidelines which have been issued for the use of Schedule II controlled substances to treat intractable pain and that although those guidelines were established to guide physicians in treating cancer patients, those are the only guidelines available at this time. Utilizing those guidelines, because they exist, the amount of medication prescribed by Respondent to the patients in question was not excessive or inappropriate. Petitioner's argument that only a physician licensed to practice in Florida can testify regarding national guidelines for the treatment of patients with intractable pain is not persuasive.
Respondent also testified as to the conditions of the patients, as to her diagnoses and course of treatment and alternative modalities attempted, as to the patients' needs for the medications and improved functioning with the amount of medication prescribed, and as to her frequency of writing prescriptions in conjunction with her close monitoring of the patients involved. She also presented corroborating testimony as to the appropriateness of the medications and amounts, as to the legality of pharmacists dispensing methadone only for treatment of pain, as to the difficulty patients had in obtaining the
full amount for which prescriptions had been written, and as to the appropriateness of physicians responding in an office setting to a patient's demand for relief from intractable pain. Because Petitioner's evidence is inadequate and Respondent's is persuasive, Petitioner has failed to meet its burden of proof as to Count Two in the Administrative Complaint.
Count Three in the Administrative Complaint alleges that Respondent inappropriately diagnosed and treated the patients in question below the standard of care with excessive medication, thereby committing gross or repeated malpractice or 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 violation of Section 458.331(1)(t), Florida Statutes. Count Three is similar to Count Two, and Petitioner has failed to meet its burden of proof for the same reasons. Petitioner failed to provide its experts with adequate information to show the necessary similar conditions and circumstances upon which they could render opinions that showed clearly and convincingly that Respondent failed to meet the standard of care required of her in her treatment of the patients in question. The standard of care opinions rendered by Petitioner's experts relate to this Count and relate to their own choices not to treat patients with intractable pain in their offices using controlled substances, although legally authorized to do so, but rather to refer them to other specialists who may well render the same treatment as could be rendered in those office settings. Since Petitioner failed to show the conditions and circumstances surrounding Respondent's treatment of the patients involved herein, then Petitioner, a fortiori, failed to prove the standard of care acceptable to a similar physician under similar conditions and circumstances or that Respondent fell below that standard.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and
dismissing the Administrative Complaint filed against her in this cause.
DONE and ENTERED this 1st day of June, 1995, at Tallahassee, Florida.
LINDA M. RIGOT, 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 1st day of June, 1995.
APPENDIX TO RECOMMENDED ORDER
Petitioner's proposed findings of fact numbered 1-3 and 22 have been adopted either verbatim or in substance in this Recommended Order.
Petitioner's proposed findings of fact numbered 4-21, 23, and 24 have been rejected as not being supported by the weight of the credible evidence in this cause.
Respondent's fifth unnumbered paragraph has been adopted either verbatim or in substance in this Recommended Order.
Respondent's fourth unnumbered paragraph has been rejected as being irrelevant to the issues involved herein.
Respondent's first, second, third, sixth, and seventh paragraphs have been rejected as containing only argument.
COPIES FURNISHED:
Steven Rothenburg, Esquire
Agency for Health Care Administration Suite 210
9325 Bay Plaza Boulevard Tampa, Florida 33619
Katherine Anne Hoover, M.D. Route 2 Box 203
Lost Creek, West Virginia 26385
Dr. Marm Harris, Executive Director Board of Medicine
Agency for Health Care Administration 1940 North Monroe Street
Tallahassee, Florida 32399-0770
Tom Wallace, Assistant Director Agency for Health Care Administration Suite 301 The Atrium
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 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.
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE
AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,
Petitioner
AHCA CASE NO: 93-06376
DOAH CASE NO: 94-4628 KATHERINE ANNE HOOVER, M.D., LICENSE NO: ME 0044173
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on August 6, 1995, in Palm Beach Gardens, Florida, for consideration of the Hearing Officer's Recommended Order and Petitioner's written Exceptions thereto (Attached as App. A and B respectively) in the case of Agency for Health Care Administration, Board of Medicine v. Katherine Anne Hoover, M.D. At the hearing before the Board, Petitioner was represented by Steven Rothenburg, Senior Attorney. Respondent was present and was not represented by counsel. Upon consideration of the Hearing Officer's Recommended Order after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:
RULINGS ON PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT
Petitioner's Exception to paragraph 13 of the Hearing Officer Officer's Recommended Order that Respondent's prescribing practices for Patient J. P.. were within federal guidelines and were appropriate and not excessive, is accepted because this finding is not supported by competent substantial evidence. The record reflects that the federal guidelines relied upon by the Hearing Officer for this finding were designed for cancer patients and Patient
J. P. was not being treated for cancer. Accordingly, paragraph 13 of the Findings of Fact of the Recommended Order is rejected and, based upon the competent substantial evidence of record, as detailed in Petitioner's written Exception, paragraph 13 is amended as follows:
13. J. P. filled Respondent's prescriptions at several pharmacies, for example using three different pharmacies during the month of January 1993. Over the course of her
treatment of J. P., Respondent observed him change from a "non-functional" person to a
functional person who was able to hold a job as a chef when his pain was relieved.
However, 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, and that the Respondent prescribed a legend drug inappropriately and outside the course of the physician's professional practice of medicine.
Petitioner's Exception to paragraph 14 of the Hearing Officer Officer's Recommended Order that Respondent's prescribing of Dilaudid for Patient M.G. was within federal guidelines and were appropriate and not excessive, is accepted because this finding is not support by competent substantial evidence. For reasons stated in the Petitioner's written Exception, the record reflects that the federal guidelines relied upon by the Hearing Officer for this finding were designed for cancer patients and Patient M.G. was not being treated for cancer. Accordingly, the fifth sentence of paragraph 14 of the Findings of Fact of the Recommended Order is rejected and, based upon the competent substantial evidence of record, as detailed in Petitioner's written Exception, the following is substituted as the last sentence of paragraph 14.
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, and that the Respondent prescribed a legend drug inappropriately and outside the course of the physician's professional practice of medicine.
Petitioner's Exception to paragraph 15 of the Hearing Officer Officer's Recommended Order that Respondent's prescribing practices for Patient C. D. was within federal guidelines and was appropriate and not excessive, is accepted because this finding is not based upon competent substantial evidence. For reasons stated in the Petitioner's written Exception, the record reflects that the federal guidelines relied upon by the Hearing Officer for this finding were designed for cancer patients and Patient C.D. was not being treated for cancer. Accordingly, based upon the competent substantial evidence of record, as detailed in Petitioner's written Exception, the last sentence of paragraph 15 of the Findings of Fact of the Recommended Order is rejected, and the following is substituted therefore:
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, and that the Respondent prescribed a legend drug inappropriately and outside the course of the physician's professional practice of medicine.
Petitioner's Exception to paragraph 16 of the Hearing Officer Officer's Recommended Order that Respondent's prescribing practices for Patient J. B. was within federal guidelines and was appropriate and not excessive, is accepted
because this finding is not based upon competent substantial evidence. For reasons stated in the Petitioner's written exception, the record reflects that the federal guidelines relied upon by the Hearing Officer for this finding were designed for cancer patients and Patient J. B. was not being treated for cancer. Accordingly, based upon the competent substantial evidence of record, as detailed in Petitioner's written Exception, the last sentence of paragraph 16 of the Findings of Fact of the Recommended Order is rejected, and the following is substituted therefore:
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, and that the Respondent prescribed a legend drug inappropriately and outside the course of the physician's professional practice of medicine.
Petitioner's Exception to paragraph 17 of the Hearing Officer Officer's Recommended Order that Respondent's prescribing practices for Patient P. P. was within federal guidelines and was appropriate and not excessive, is accepted because this finding is not based upon competent substantial evidence. For reasons stated in the Petitioner's written Exception, the record reflects that the federal guidelines relied upon by the Hearing Officer for this finding were designed for cancer patients and Patient P. P. was not being treated for cancer. Accordingly, based upon the competent substantial evidence of record, as detailed in Petitioner's written Exception, the last sentence of paragraph 17 of the Findings of Fact of the Recommended Order is rejected, and the following is substituted therefore:
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, and that the Respondent prescribed a legend drug inappropriately and outside the course of the physician's professional practice of medicine.
FINDINGS OF FACT
The Hearing Officer's Recommended Findings of Fact, as amended, are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.
There is competent, substantial evidence to support the Board's findings, as amended, herein.
RULINGS ON PETITIONER'S EXCEPTIONS TO THE CONCLUSIONS OF LAW
Petitioner's Exception to paragraph 27 of the Hearing Officer Officer's Recommended Order that pharmacy printouts would not be considered as a basis for any Findings of Fact because the evidence did not explain the meaning of the terms "QTY/DS," is accepted because this Conclusion of Law is not based upon competent substantial evidence of record. For reasons stated in the Petitioner's written Exception, the record reflects expert testimony which described that the pharmacy records reflected the amount of drugs prescribed.
Accordingly, based upon the competent substantial evidence of record, as detailed in Petitioner's written Exception, paragraph 27 of the Conclusions of Law of the Recommended Order is rejected.
Petitioner's Exception to paragraph 30 of the Hearing Officer Officer's Recommended Order which cites Section 458.326, Florida Statutes, as a basis for Conclusions of Law in this case, is accepted because this statute was not enacted until 1994 and was therefore not in force at the time of the alleged violations in this case. Accordingly, paragraph 30 is rejected.
Petitioner's Exception to paragraph 31 of the Hearing Officer Officer's Recommended Order citing a failure to offer any standard against which Respondent's conduct can be measured, is accepted. For reasons stated in Petitioner's written Exception, the record reflects that the standard in this case was that of a reasonably prudent physician and substantial and competent evidence that the Respondent did not meet that standard was presented in the form of expert witness testimony. Accordingly, paragraph 31 is rejected.
Petitioner's Exception to paragraph 33 of the Hearing Officer Officer's Recommended Order that guidelines for treating cancer patients are applicable in this case even though the patients were not being treated for cancer, is accepted because this Conclusion of Law is not based upon competent substantial evidence. For reasons stated above and in the Petitioner's written exception, the record reflects that the federal guidelines relied upon by the Hearing Officer for this finding were designed for cancer patients and the patients in this case were not being treated for cancer. Accordingly, Conclusion of Law 33 is rejected.
Petitioner's Exception to paragraph 35 of the Hearing Officer Officer's Recommended Order that Petitioner had failed to show the conditions and circumstances surrounding Respondent's treatment of the patients and therefore failed to prove the applicable standard of care, is accepted because this Conclusion of Law is not based upon competent substantial evidence of record. For reasons stated in the Petitioner's written Exception, the record reflects expert testimony that the patient's diagnosis did not justify the medications prescribed. The Hearing Officer's recommended dismissal of the allegations was not based upon competent substantial evidence. Accordingly, based upon the competent substantial evidence of record, as detailed in Petitioner's written Exception, paragraph 35 of the Conclusions of Law of the Recommended Order is rejected and the following substituted therefore:
35. There was clear and convincing competent, substantial presented at the formal hearing
to prove that Respondent violated Sections 458.331(1)(g) and (t), Florida Statutes as alleged in the Administrative Complaint.
By accepting the above Exception of the Petitioner, the Board has rejected the last sentence of paragraph 26 and 34 of the Recommended Order of the Hearing Officer.
CONCLUSIONS OF LAW
The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.
The findings of fact set forth above do establish that Respondent has violated Sections 458.331(1)(g) and (t), Florida Statutes, as alleged in the Administrative Complaint.
The findings of fact, as amended, do not establish that Respondent has violated Section 458.331(1)(m), Florida Statutes, as alleged in the Administrative Complaint.
The Conclusions of Law of the Recommended Order, as amended, are approved and adopted and incorporated herein.
DISPOSITION
Based upon the amendments to the Findings of Fact and Conclusions of Law, the Hearing Officer's recommendation of dismissal, is rejected and the Board finds that the Respondent is in violation of Sections 458.331(1)(g) and (t), Florida Statutes, as alleged in the Administrative Complaint. The allegation that Respondent violated Section 458.331(1)(m), Florida Statutes, is DISMISSED.
WHEREFORE, in consideration of all of the facts and circumstances the facts of this case, including the written and oral arguments of both parties regarding the nature of the prescribing, the length of the prescribing practice, the need to protect the public, and the education of the Respondent, it is found, ordered and adjudged that the Respondent is guilty of violating Sections 458.331(1)(q) and (t), Florida Statutes, as alleged in the Administrative Complaint and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following penalty:
The Respondent shall receive a Reprimand.
Within ninety (90) days of filing of the Final Order in this cause, Respondent shall pay an administrative fine in the amount of four thousand dollars ($4,000.00) to the Board of Medicine.
Within one (1) year of the filing of the Final Order in this cause, Respondent shall complete the University of South Florida School of Medicine course "Prescribing Abuseable Drugs", or an equivalent Board approved course within one year of the Final Order. Respondent shall submit a written plan to the Chairman of the Probationer's Committee for approval prior to the completion of said courses. The Board confers authority on the chairman of the Probationer's Committee to approve or disapprove an equivalent Board approved course. In addition, Respondent shall submit documentation of completion of this course to the Probationer's Committee upon completion.
Upon the filing of the Final Order in this cause, the Respondent's license to practice medicine in the State of Florida shall be placed on probation for a period of two (2) years, with the following terms and conditions:
Respondent shall comply with all state and federal statutes, rules, and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and Rule Chapter 59R, Florida Administrative Code.
Respondent shall appear before the Board's Probationer's Committee at the first meeting after said probation commences, at the last meeting of the Board's Probationer's Committee preceding termination of probation, semiannually, and at such other times as requested by the Board's Probationer's
Committee. Respondent shall be noticed by Board staff of the date, time and place of the meeting whereat Respondent's appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of the Final Order entered in this matter, and shall subject the Respondent to disciplinary action.
In the event the Respondent leaves the State of Florida for a period of thirty days or more or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.
In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of her probation shall be tolled:
The time period of probation shall be tolled.
The provisions regarding supervision, whether direct or indirect by another physician.
The provisions regarding preparation of investigative reports detailing compliance with this Stipulation.
In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Board's Probationer's Committee may require Respondent to appear before the Probationer's Committee and demonstrate her ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.
Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring physician, Respondent shall cease practice and not practice until the Board's Probationer's Committee approves a monitoring physician. Respondent shall have the monitoring physician with him at his first probation appearance before the Board's Probationer's Committee. A failure of the Respondent or his monitoring physician to appear at the scheduled probation meeting shall constitute a violation of the Board's Final Order. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee shall constitute a violation of this Order. Prior to approval of the monitoring physician by the Board's Probationer's Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the monitoring physician by the Board's Probationer's Committee, Respondent shall submit to the Board's Probationer's Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received in the Board office no later than fourteen days before the Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of a monitoring physician shall include:
Submit quarterly reports, in affidavit form, which shall include:
Brief statement of why physician is on probation.
Description of probationer's practice.
Brief statement of probationer's compliance with terms of probation.
Brief description of probationer's relationship with monitoring physician.
Detail any problems which may have arisen with probationer.
Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.
Be available for consultation with Respondent whenever necessary, at a frequency of at least once per month.
Review twenty-five (25 percent) percent of Respondent's patient records in which controlled substances were prescribed, selected on a random basis at least once every month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician.
Review all patient records of patients treated with schedule II drugs.
Receive and review copies of all controlled substance prescriptions in order to determine the appropriateness of Respondent's prescribing of controlled substances.
Report to the Board any violations by the probationer of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.
The Board shall confer authority on the Chairman of the Board's Probationer's Committee to temporarily approve Respondent's monitoring physician. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Board's Probationer's Committee the name and curriculum vitae of the proposed monitoring physician. This information shall be furnished to the Chairman of the Board's Probationer's Committee by way of the Board of Medicine's executive director, within 48 hours after Respondent receives the Final Order in this matter. This information may be faxed to the Board of Medicine at (904) 487-9622 or may be sent by overnight mail or hand delivery to the Board of Medicine at the Agency for Health Care Administration, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399-0750. In order to provide time for Respondent's proposed monitoring physician to be approved or disapproved by the Chairman of the Board's Probationer's Committee, Respondent shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Final Order. If Respondent's monitoring physician has not been approved during that time frame, then Respondent shall cease practicing until such time as the monitoring physician is temporarily approved. In the event that the proposed monitoring physician is not approved, then Respondent shall cease practicing immediately. Should Respondent's monitoring physician be approved, said approval shall only remain in effect until the next meeting of the Board's Probationer's Committee. Absent said approval, Respondent shall not practice medicine until a monitoring physician is approved.
In view of the need for ongoing and continuous monitoring or supervision, Respondent shall also submit the curriculum vitae and name of an alternate monitoring physician to be approved by the Board or its Probationer' Committee. Such physician shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring physician during those periods of time which Respondent's monitoring physician is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring physician or the direct supervision of the alternate supervising physician, Respondent shall so advise the Board's Probationer's Committee in writing. Respondent shall further advise the Board's Probationer's Committee in writing of the period of time during which Respondent shall practice under the supervision of the alternate monitoring physician. Respondent shall not practice unless he is under the supervision of either the approved monitoring physician or the approved alternate.
Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:
Brief statement of why physician is on probation.
Practice location.
Describe current practice (type and composition)
Brief statement of compliance with probationary terms.
Describe relationship with monitoring physician.
Advise Board of any problems.
Respondent may prescribe controlled substances with the restrictions set forth below:
Respondent shall utilize sequentially numbered triplicate prescriptions in the prescribing of schedule II controlled substances.
Respondent shall, within one month after issuance, provide one copy of each prescription for Schedule II controlled substances to the Department' s investigator.
Respondent shall, within two weeks after issuance, provide one copy of each prescription for Schedule II controlled substances to his/her monitoring physician.
Respondent shall maintain one copy of each prescription for all controlled substances in the patient's medical records. This copy may be a xerox copy.
Respondent understands that during this period of probation, semiannual investigative reports will be compiled with the Department concerning his compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine.
Respondent shall pay all costs necessary to comply with the terms of the Final Order issued based on this proceeding. Such costs include, but are not limited to, the costs of preparation of the investigative reports detailing compliance with the terms of the Final Order entered in this case, the cost of analysis of any blood or urine specimens submitted pursuant to the Final Order
entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.
PROVISIONS GOVERNING PHYSICIANS PRACTICING UNDER SUPERVISION OF ANOTHER PHYSICIAN
DEFINITIONS:
INDIRECT SUPERVISION is supervision by a monitoring physician whose responsibilities are set by the Board. Indirect supervision does not require that the monitor practice on the same premises as the Respondent. However, the monitor shall practice within a reasonable geographic proximity to Respondent, which shall be within 20 miles unless otherwise provided by the Board's Probationer's Committee, and shall be readily available for consultation. The monitor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Board's Probationer's Committee.
DIRECT SUPERVISION is supervision by a supervising physician. Direct supervision requires that the supervisor and Respondent work on the same premises. Specific responsibilities are set by the Board. The supervisor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Probationer's Committee.
Provisions governing all supervised or monitored physicians:
The supervisor/monitor shall be furnished with copies of the Administrative Complaint, Final Order, Stipulation (if applicable), and other relevant orders.
The Respondent shall not practice without a monitoring or supervising physician unless otherwise ordered by the Board. The Respondent shall appear at the next meeting of the Board's Probationer's Committee following entry of a Final Order with his proposed supervisor or monitor unless otherwise ordered by the Board. In the event that Respondent has not obtained temporary approval of his monitor or supervisor by the chairman of the Board's Probationer's committee prior to that first meeting of the Board's Probationer's committee, then Respondent may not practice medicine until he has obtained such approval. Temporary approval is only available if provided for in the Final Order.
After the next meeting of the Board's Probationer's Committee occurs Respondent shall only practice under the supervision of the supervisor or monitor. If for any reason the approved supervisor or monitor is unwilling or unable to serve, Respondent shall immediately notify the Executive Director of the Board and shall cease practice until a temporary supervisor/monitor is approved. The chairman of the Board's Probationer's Committee may approve a temporary supervisor or monitor who may serve in that capacity until the next meeting of the Board's Probationer's committee at which time the Board's Probationer's Committee shall accept or reject a new proposed supervisor or monitor. If the new proposed supervisor/monitor is rejected, Respondent shall cease practice until a new supervisor or monitor is temporarily approved by the Chairman of the Board's Probationer's Committee. Furthermore, the monitoring or supervising physician shall appear at the next meeting of the Board's Probationer's Committee, and at such other times as are requested by the Board's Probationer'S committee. Failure to appear by the monitor or supervisor as directed shall constitute a violation of the Board's Final Order.
The supervisor or monitor must be a licensee under chapter 458, Florida Statutes, in good standing without restriction or limitation on his license. In addition, the Board's Probationer's Committee may reject any proposed supervisor or monitor on the basis that he has previously been subject to any disciplinary action against his medical license in this or any other jurisdiction. The supervisor or monitor must be actively engaged in the same or similar specialty area unless otherwise provided by the Board's Probationer's Committee. The Board's Probationer's Committee may also reject the proposed supervisor/monitor for good cause shown.
This Final Order becomes effective upon its filing with the clerk of the Agency for Health Care Administration.
NOTICE
The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
DONE and ORDERED this 25th DAY OF September, 1995.
BOARD OF MEDICINE
GARY E. WINCHESTER, M. D. CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Katherine Anne Hoover, M.D., Route 2 Box 203, Lost Creek, West Virginia 26385, Linda Rigot, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 26th day of September, 1995.
Marm Harris, Ed. D. Executive Director
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DISTRICT COURT OPINION
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DISPOSITION OF.
KATHERINE A. HOOVER, M.D., IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
Appellant, THIRD DISTRICT
JULY TERM, A.D. 1996
vs.
CASE NO. 95-3037
THE AGENCY FOR HEALTH CARE, AHCA NO. 93-6376
DOAH CASE NO. 94-4628
Appellee.
/ Opinion filed June 26, 1996.
An Appeal from the Agency for Health Care Administration, Board of Medicine.
Katherine A. Hoover, M.D. (Lost Creek, W. Va.), in proper person. Kathryn L. Kasprzak, Senior Attorney, for appellee.
Before BARKDULL, JORGENSON, and GODERICH, JJ. JORGENSON, Judge.
Dr. Katherine Anne Hoover, a board-certified physician in internal medicine, appeals a final order of the Board of Medicine penalizing her and restricting her license to practice medicine in the State of Florida. We reverse because the board has once again engaged in the uniformly rejected practice of overzealously supplanting a hearing officer's valid findings of fact regarding a doctor's prescription practices with its own opinion in a case founded on a woefully inadequate quantum of evidence.
FACTS
In March 1994, the Department of Business and Professional Regulation (predecessor in these proceedings to the Agency for Health Care Administration) filed an administrative complaint alleging that Dr. Hoover (1) inappropriately and excessively prescribed various Schedule II controlled substances to seven of her patients 1/ and (2) provided care of those patients that fell below 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 violation of sections 458.331(q) and (t), Florida Statutes,
respectively. 2/, 3/ All seven of the patients had been treated by Dr. Hoover for intractable pain arising from various noncancerous diseases or ailments. 4/
Dr. Hoover disputed the allegations of the administrative complaint and requested a formal hearing. At the hearing, the agency presented testimony of its investigator; several pharmacists from Key West, where the doctor was practicing at the time of the alleged infractions; and two agency expert physicians. The doctor testified and presented the testimony of two Key West pharmacists and her own expert physician.
The Agency's Case
The agency presented the testimony of two physicians as experts., Neither had examined any of the patients or their medical records. The sole basis for the opinions of the agency physicians was computer printouts from pharmacies in Key West where the doctor's patients had filled their prescriptions. These printouts indicated only the quantity of each drug filled for each patient, occasionally referring to a simplified diagnosis. Both of these physicians practiced internal medicine and neither specialized in the care of chronic pain. In fact, both doctors testified that they did not treat but referred their chronic pain patients to pain management clinics. The hearing officer found that this was a common practice among physicians- -perhaps to avoid prosecutions like this case. 5/ Both doctors "candidly testified that without being provided with copies of the medical records for those patients they ,could not evaluate Respondent's diagnoses of what alternative modalities were attempted or what testing was done to support the use of the medication chosen by Respondent to treat those patients." Recommended Order at 17. Despite this paucity of evidence, lack of familiarity, and seeming lack of expertise, the agency's physicians testified at the hearing that the doctor had prescribed excessive, perhaps lethal amounts of narcotics, and had practiced below the standard of care.
Dr. Hoover's Response
Dr. Hoover testified in great detail concerning the condition of each of the patients, her diagnoses and courses of treatment, alternatives attempted, the patients' need for medication, the uniformly improved function of the patients with the amount or medication prescribed, and her frequency of writing prescriptions to allow her close monitoring of the patients. She presented corroborating physician testimony regarding the appropriateness of the' particular medications and the amounts prescribed and her office-setting response to the patients' requests for relief from intractable pain.
Disposition of the Administrative Complaint
Following post-hearing submissions, the hearing officer issued her recommended order finding that the agency had failed to meet its burden of proof on all charges. The hearing officer concluded, for instance, that "Petitioner failed to provide its experts with adequate information to show the necessary similar conditions and circumstances upon which they could render opinions that showed clearly and convincingly that Respondent failed to meet the standard of care required of her in her treatment of the patients in question." Recommended Order at 20.
The agency filed exceptions to the recommended findings of fact and conclusions of law as to five of the seven patients. 6/ The board of medicine
accepted all the agency's exceptions, amended the findings of fact in accordance with the agency's suggestions, and found the doctor in violation of sections 458.331(1)(q) and (t), Florida Statutes. The board imposed the penalty recommended by the agency: a reprimand, a $4,000 administrative fine, continuing medical education on prescribing abusable drugs, and two years probation. This appeal follows.
DISCUSSION
In a proceeding to suspend, revoke, or impose other discipline upon a professional license, the administrative agency must prove the charges by clear and convincing evidence. Department of Banking & Fin., Div. of Securities & Investor Protection v. Osborne Stern & Co., 670 So.2d 932 (Fla. 1996)(citing Ferris v, Turlinaton, 510 So.2d 292 (Fla. 1987)); Nair v. Dept. of Bus. & Prof. Reg. Bd. of Medicine, 654 So.2d 205 (Fla. 1st DCA 1995). Section 120.57(1)(b)(10), Florida Statutes, sets forth the medical board's responsibility in reviewing and acting upon a recommended order submitted by a hearing officer:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order. The agency may not reject] or modify the findings of fact, including findings of fact that form the basis for an agency statement, [unless the agency first determines from a review of the complete record, and states with particularity in the order, that the finding of fact were not based upon competent substantial evidence] or that the proceedings on which the findings were based did not comply with essential requirements of law.
The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.
[Emphasis added.] In this case, the board "merely stated its conclusion that the [rejected] findings [of fact) were not supported by competent substantial evidence." Reese v. Department of Prof. Reg. Bd. of Medical Examiners, 471 So.2d 601 (Fla. 1st DCA 1985). This determination violated the requirement that the board must state valid reasons for rejecting findings with particularity.
Hearing Officer's Findings of Fact
For each of the five patients, the hearing officer found the prescribing practices of Doctor Hoover to be appropriate. This was based upon (1) the doctor's testimony regarding the specific care given, (2) the corroborating testimony of her physician witness, and (3) the fact that the doctor's prescriptions did not exceed the federal guidelines for treatment of intractable pain in cancer patients, 7/ though none of the five patients were diagnosed as suffering from cancer.
The board rejected these findings as not based on competent substantial evidence. As particular reasons, the board adopted the arguments of the agency's exceptions to the recommended order that (1) the, hearing officer's findings were erroneously based on irrelevant federal guidelines, and (2) the agency's physicians had testified that the doctor's prescription pattern was below the standard of care and outside the practice of medicine. The board's purported reasons for the rejection of findings do not state in particular that the findings are not based on competent substantial evidence, but merely substitute the board's preference for the conclusions of its experts.
First, the board mischaracterizes the hearing officer's reference to the federal guidelines. The board reasoned in its final order that "[t)he record reflects that the federal guidelines relied upon by the Hearing Officer for this finding were designed for cancer patients and (the five patients at issue were) not being treated for cancer." It is true, as the hearing officer noted, that
Respondent presented expert evidence that there is a set of guidelines which have been issued for the use of Schedule II controlled substances to treat intractable pain and that although those guidelines were established to guide physicians in treating cancer patients, those are the only guidelines available at this time. Utilizing those guidelines, because they exist, the amount of medication prescribed by Respondent to the patients in question was not excessive or inappropriate.
Recommended Order at 18-19. In so finding, however, the hearing officer did not, as the board suggests, rely solely upon the federal guidelines in its ruling that the doctor's prescribing practices were not excessive. Rather, the federal guidelines merely buttressed fact findings that were independently supported by the hearing officer's determination of the persuasiveness and credibility of the physician witnesses on each side. For example, though he admitted he had not even reviewed the federal guidelines, one of the agency physicians asserted that the amounts prescribed constituted a "tremendous number of pills" and that the doses involved would be lethal. That Dr. Hoover's prescriptions fell within the guidelines for chronic-pained cancer patients may properly be considered to refute this assertion. Such a use of the federal guidelines was relevant and reasonable. 8/
Second, Dr. Hoover testified in great detail concerning her treatment of each patient, the patient's progress under the medication she prescribed, and that the treatment was within the standard of care and practice of medicine.
The hearing officer, as arbiter of credibility, was entitled to believe what the doctor and her physician expert opined. Nest v. Department of Prof. Reg., Bd. of Medical Examiners, 490 So.2d 987, 989 (Fla. 1st DCA 1986) ("the ability to practice with reasonable skill and safety is essentially an ultimate finding of fact"). The agency's witnesses' ultimate conclusions do not strip the hearing officer's reliance upon Dr. Hoover of its competence and substantiality. Reese. The hearing officer was entitled to give Dr. Hoover's testimony greater weight than that of the agency's witnesses, who did not examine these patients or regularly engage in the treatment of intractable pain.
This point was articulated by the First District Court of Appeal under similar facts in Reese. In Reese, the agency charged the doctor with 83 counts of violating various provisions of Chapter 458. The allegations were based
primarily on the agency's belief that the doctor was over prescribing Schedule II drugs. Both sides presented the testimony of physician witnesses, which conflicted. The testimony of the agency's experts supported the allegations of the administrative complaint. The hearing officer found the testimony of the doctor's witnesses more persuasive, found no deviation from the acceptable level of care, and further found that the "drugs were prescribed in appropriate quantities and duration, were for medically justifiable purposes, and were not prescribed outside the course of [the doctor's] medical practice." 471 So.2d at 602. The board accepted most of the agency's exceptions to the hearing officer's recommended order, and rejected the hearing officer's findings of fact as not supported by competent substantial evidence. The Reese court held that the board's rejection of the findings was not valid because there was substantial competent evidence to support the findings, and the board did not state reasons for rejection with particularity, but "merely stated a conclusion substituting its opinion for that the of finder of fact." Id. at 603.
It is surprising to see agency disciplinary action based upon such a paucity of evidence after our admonitions in Sneij v. Department of Professional Regulation, Board of Medical Examiners, 454 So.2d 795 (Fla. 3d DCA 1984). In Sneij, the board rejected the hearing officer's determination that the agency had failed to establish by clear and convincing evidence that the doctor had, among other things, inappropriately prescribed controlled substances or prescribed excessive amounts of controlled substances. This Court noted the sparse and inadequate medical records and investigative file upon which the agency's physician witness had based his opinion:
The witness did not talk to any of the patients involved nor did these patients testify at the hearing. Dr. Sneij also testified at the hearing and admitted that his medical records were poorly kept. He denied any other wrongdoing, however, although his memory of the patients involved was somewhat shaky. No other witnesses testified at the hearing. Plainly, this evidence was woefully insufficient to establish any of the charges against Dr. Sneij, save for the record-keeping violations.
* * *
Beyond that, the law is clear that the Board was not free to reject the hearing examiner's findings when, as here, these findings were based on competent, substantial evidence.
This being so, the Board had no authority, in any event, to reject summarily the hearing examiner's findings and to substitute its own findings therefor.
Id. at 796 (citations omitted) Similarly, in this case the board has again supplanted valid findings of fact regarding a doctor's prescription practices with its own opinion.
Hearing Officer's Conclusions of Law
Finally, we hold the board's rejections of the hearing officer's five conclusion of law each to be either incorrect or without consequence. The agency filed exceptions to five conclusions of law by the hearing officer: (1)
the computer printouts from two of the pharmacies could not be considered as evidence because they contained vague, unexplained entries; (2) the intractable pain treatment law, section 458.326, Florida Statutes, which became effective in 1994 supports the finding of no infraction; (3) the agency failed to offer any standard by which Doctor Hoover's prescription practices could be evaluated; (4) the federal guidelines for cancer patients provided a standard for dosages which was complied with in these cases; and (5) the agency failed to show the conditions and circumstances surrounding the treatment of each of the five patients.
The board adopted the agency's reasoning and rejected each of these conclusions of law. We have already discussed the propriety of the hearing officer's limited consideration of the persuasive weight of the federal guidelines. Similarly, the hearing officer explicitly recognized that the 1994 intractable pain law was not in effect at the time of Dr. Hoover's alleged infractions but cited it for a permissible purpose- -to rebut any claim that there is a strong public policy mandate in favor of the board's draconian policy of policing pain prescription practice. Cf. McDonald v. Department of Banking and Fin., 346 So.2d 569 (Fla. 1st DCA 1977) ("where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations far which the agency has special responsibly, a reviewing court will give correspondingly less weight to the hearing officer's findings in determining the substantiality of evidence supporting the agency's findings of fact."). Next, even were the disregarded computer printouts to be considered, they only offered evidence similar to the printouts already in evidence and could not eradicate the substantial competent evidence supporting the hearing officer's findings of fact. Finally, whether the hearing officer's pronouncements regarding the failure to offer standards or show conditions and circumstances are legally correct is of no consequence- -the hearing officer's findings of fact and uncontested conclusions of law are sufficient to establish that the agency did not prove a violation of Chapter 458 by clear and convincing evidence.
Reversed.
ENDNOTES
1/ As the hearing officer stated in her recommended order, Controlled substances are categorized by the
Drug Enforcement Agency in five different schedules according to their potential for abuse. Schedule I substances are illegal. Schedule II substances, although considered highly addictive, can be prescribed by licensed physicians for medical purposes.
Schedule II substances can be narcotic (opiates administered for pain) or non- narcotic. Schedule II narcotics include morphine (morphine sulfate), methadone (dolophine), dilaudid (hydromorphone), and oxycodone (percodan and percoset).
2/ The agency also alleged that Dr. Hoover failed to keep medical records justifying the course of treatment for seven patients in violation of section 458.331(m). The agency did not pursue the records charge after the hearing
officer determined that Dr. Hoover had properly transferred her detailed medical records to her patients, or, if available, their successor physicians, when she closed her Key West practice and relocated to West Virginia.
3/ Because we reverse on the merits, we do not reach the issue of whether probable cause was improperly determined. Only the two physician members of the probable cause panel- -designated under section, 458.307(b), Florida Statutes (1993), to be composed of three members including one non-physician- -were present and voted at the hearing where probable cause was found. The better practice is to involve the full three-member panel in the probable cause determination, though only a majority vote of these three is required.
4/ Persons suffering from chronic pain (as opposed to acute episodes of pain) for which there is no cure or treatment available that can alleviate the person's pain are said to suffer from "intractable pain." There are two types of intractable pain. The first group are patients with terminal, irreversible illnesses, such as cancer patients.
Physicians generally give those patients whatever narcotics they need to alleviate the pain during the end stage of their lives. The second group is composed of patients who suffer from non-terminal disease processes who have tried different specialists and treatments available without achieving relief from their chronic pain. Those persons are generally not treated in family practice settings but rather are referred to pain management centers or pain clinics, in locations where such are available, to have their pain alleviated by treatments such as receiving morphine implants or having doctors perform nerve blocks. Many physicians avoid caring for patients who require Schedule II substances to relieve their suffering.
Recommended Order at 5.
5/ Referral to a pain management clinic was not-an option for Dr. Hoover's indigent Key West resident patients.
6/ The agency did not contest the dismissal of the count for failure to keep medical records or the dismissal of the entire administrative complaint as to two of the seven patients.
7/ The former United States Department of Health, Education and Welfare, though its Agency for Health Care Pl
| Issue Date | Proceedings |
|---|---|
| Jan. 17, 1997 | Third DCA Opinion (Reversed) filed. |
| Jan. 17, 1997 | Ltr. to LMR from K. Hoover attaching 1st DCA Opinion issued 6/26/96 filed. |
| Nov. 09, 1995 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Sep. 27, 1995 | Final Order filed. |
| Jun. 01, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 3-10-95. |
| Apr. 19, 1995 | Letter to LMR from K. Hoover (RE: issues of prescribing narcotics to patients for pain) filed. |
| Apr. 14, 1995 | Petitioner's Proposed Recommended Order filed. |
| Apr. 03, 1995 | Notice of Ex Parte Communication sent out. |
| Mar. 30, 1995 | Letter to LMR from Linda Ash (RE: making statement reference to Dr. Hoover's ability from her viewpoint) filed. |
| Mar. 29, 1995 | Transcript of Proceedings Volume I; Volume II, w/exhibits filed. |
| Mar. 29, 1995 | Letter to Steve Rothenburg from LMR sent out. (RE: enclosing copy of correspondence filed with DOAH 3/27/95 by respondent) |
| Mar. 27, 1995 | Letter to LMR from K. Hoover (RE: attached article written by respondent's son Michael, for college journalism class) filed. |
| Mar. 10, 1995 | CASE STATUS: Hearing Held. |
| Mar. 08, 1995 | Order sent out. (respondent's motion is denied) |
| Mar. 07, 1995 | Order sent out. (motion for continuance and motion for change of venue are denied) |
| Mar. 06, 1995 | Letter to HO from Katherine A. Hoover M.D. Re: Mr. Rothenburg's witness list and exhibits; Petitioner's Exhibit A Witness List filed. |
| Mar. 03, 1995 | Petitoner`s Response to Respondent`s Motion for Continuance And Change of Venue; Cover Letter; Witness List; Exhibits filed. |
| Mar. 02, 1995 | Letter to JSM from K. Hoover (RE: Request for Continuance) filed. |
| Feb. 28, 1995 | Letter to HO from Katherine A. Hoover MD Re: Temporary Injunction; Order Granting Plaintiff's Motion for Compel Evidence to Produce (Unsigned) filed. |
| Feb. 27, 1995 | Oetutuiber;s Exhibit B Exhibits filed. |
| Feb. 27, 1995 | (Petitioner) Notice of Filing Petitioner's Response to Order Grantingin Part Petitioner's Motion to Compel Discovery and Requiring Disclosure of Witnesses and Exhibits; Petitioner's Response to Order Grantingin Part Petitioner's Motion to Compel Discove |
| Feb. 15, 1995 | Order Granting In Part Petitioner's Motion to Compel Discovery And Requiring Disclosure of Witness And Exhibits sent out. |
| Feb. 03, 1995 | Petitioner's Motion to Compel Discovery w/cover letter filed. |
| Jan. 11, 1995 | Petitioner's Motion to Take Official Recognition w/cover letter filed. |
| Dec. 29, 1994 | (Petitoner) Second Notice of Serving Petitioner`s First Set of Request for Admissions, Interrogatories, and Request for Production of Documents filed. |
| Dec. 21, 1994 | Order Granting Change in Venue and Denying Motion for Order Establishing Conclusive Admission of Discovery Request sent out. |
| Nov. 30, 1994 | (Petitioner) Motion to Reconsider Order Granting Continuance And Rescheduling Hearing filed. |
| Nov. 23, 1994 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 3/10/95; 9:00am; Tallahassee) |
| Nov. 22, 1994 | (Petitioner) Motion for Order Establishing Conclusive Admission of Discovery Request filed. |
| Oct. 13, 1994 | (Petitioner) Amended Notice of Taking Deposition filed. |
| Oct. 07, 1994 | Notice of Serving Petitioner's First Set of Request for Admissions, Interrogatories, and Request for Production of Documents filed. |
| Oct. 03, 1994 | Letter to JSM from K. Hoover (RE: request for continuance) filed. |
| Sep. 14, 1994 | Notice of Hearing sent out. (hearing set for 12/9/94; 9:00am; Key West) |
| Sep. 09, 1994 | Letter JSM from Katherine A. Hoover (re: request case be dismiss) w/cover ltr & attachment filed. |
| Sep. 08, 1994 | Letter to JSM from Katherine A. Hoover (re: request for dismissal of case) w/supporting attachment filed. |
| Sep. 08, 1994 | Joint Response to Initial Order filed. |
| Aug. 24, 1994 | Initial Order issued. |
| Aug. 17, 1994 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 26, 1996 | Opinion | |
| Sep. 25, 1995 | Agency Final Order | |
| Jun. 01, 1995 | Recommended Order | Failure of burden of proof that physician treating patients with intractable pain by using narcotics doing so inappropriately or in excessive amounts. |
BOARD OF MEDICAL EXAMINERS vs. STEVEN M. VAN ORE, 94-004628 (1994)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JAYA SHEKAR, M.D., 94-004628 (1994)
BOARD OF MEDICAL EXAMINERS vs. GLENN R. JOHNSTON, 94-004628 (1994)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs PHILIP K. SPRINGER, M.D., 94-004628 (1994)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JACINTA IRENE GILLIS, M.D., 94-004628 (1994)
