STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 96-5891

)

BRET L. LUSSKIN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 5 and 6, 2000, at Fort Lauderdale, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John E. Terrel, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Keith A. Schafer, Esquire

Fred Chikovsky, Esquire Chikovsky, Ben & Schafer, P.A. 1720 Harrison Street, 7th Floor Hollywood, Florida 33020

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what action should be taken.

PRELIMINARY STATEMENT

The instant case is before the Division of Administrative Hearings (DOAH) as a result of a remand by Florida's Fourth District Court of Appeal. On February 22, 1996, the Agency for Health Care Administration, Board of Medicine, now the Department of Health, Board of Medicine, filed a two-count Administrative Complaint against Bret L. Lusskin, M.D. (Respondent), charging him with the following violations: Count I--violation of Subsection 458.331(1)(x), Florida Statutes, by violating any provision of Chapter 458, Florida Statutes, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department; and Count II-- violating Subsection 458.331(1)(s), Florida Statutes, by being unable to practice medicine with reasonable skill and safety to patients by reason of illness. After a hearing on October 1, 1997, a Recommended Order was issued recommending, among other things, dismissal of Count I, a finding of a violation of Count II, and suspension of Respondent's license until he was able to demonstrate that he was capable of practicing medicine with reasonable skill and safety. By Final Order, the Agency for Health Care Administration, Board of Medicine, adopted the Recommended Order's findings of fact, conclusions of law, and penalty, but rejected the finding that Respondent complied with

the recommendations of the Physicians Recovery Network (PRN) approved psychiatrists. Respondent appealed the Final Order.

The Fourth District Court of Appeal held that Respondent was not afforded notice that his failure to comply with the PRN contract would be a basis for proving his inability to practice with skill and safety. As a result, the Court reversed the Final Order's findings of fact and conclusions of law as to Count II only and affirmed the dismissal of Count I and the conditional suspension of Respondent from the practice of medicine. The Court remanded the case with leave for the Board of Medicine to file an amended administrative complaint as to the charges alleged in Count II and for a new hearing if an amended administrative complaint was filed. Furthermore, the Court continued the suspension of Respondent's license pending the disposition of the allegations and charges in the amended administrative complaint forming the basis for Respondent's suspension from the practice of medicine.

The Board of Medicine was subsequently statutorily placed under the auspices of the Department of Health. The Department of Health, Board of Medicine (Petitioner), filed an Amended Administrative Complaint on July 1, 1999, against Respondent charging him with being guilty of being unable to practice medicine with reasonable skill and safety to patients by reason of illness and based on his lack of cooperation with the PRN,

leading to the inability of the PRN to properly monitor him under his PRN contract, thereby violating Subsection 458.331(1)(s), Florida Statutes. Respondent disputed the allegations of fact and requested a hearing. On October 20, 1999, this matter was referred to DOAH.

Prior to hearing, Petitioner requested and was granted leave for a mental examination of Respondent. The said examination was conducted by Gene Abel, M.D., in Atlanta, Georgia, on August 28 through 31, 2000.

At hearing, among other things, Respondent argued that the hearing should only address the issue of noncompliance by Respondent with the PRN contract and moved to strike paragraphs numbered 5 through 9 of the Amended Administrative Complaint. At no other time had Respondent raised this issue. During argument, Respondent agreed that the reason for the PRN contract was the presence of a mental condition and that to only address the issue of noncompliance with the PRN contract required the presence of a mental condition. Further, the existence of the PRN contract in the instant case required a finding by Petitioner that the mental condition interfered with Respondent's practice of medicine. The undersigned granted in part Respondent's motion and struck paragraphs numbered 5 through 9, except for the first sentence of paragraph numbered 7.1

At hearing, Petitioner presented the testimony of two witnesses, with Respondent being one of the witnesses, and entered five exhibits (Petitioner's Exhibits numbered 2, 3, 15, 16, and 17) into evidence.2 Petitioner was permitted to late-file the deposition testimony of Dr. Abel, which is Petitioner's Exhibit numbered 19. Petitioner's Exhibit numbered 18 consists of Dr. Abel's report and the documents reviewed by him in preparing his report and is admitted into evidence.

Additionally, at hearing, Respondent presented the testimony of two witnesses and entered nine exhibits (Respondent's Exhibits numbered 1-3 and 5-10) into evidence. Respondent's Exhibit numbered 3 was admitted into evidence for the limited purpose to show that Respondent had a medical visit with a psychiatrist, Ronald A. Shellow, M.D., on October 14, 1999. The content of the exhibit was not admitted. Respondent's Exhibit numbered 4 was proffered. Respondent's Exhibit numbered 11 consists of the notes that Dr. Abel made regarding the referral of Respondent for an independent medical examination; the notes were attached to Dr. Abel's deposition.

Objections were raised by Petitioner to the exhibits attached to Respondent's Exhibits numbered 1 and 2, which are deposition testimony. Petitioner's objections are overruled and the attachments are hereby included as evidence with Respondent's Exhibits numbered 1 and 2.

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.

The Transcript, consisting of three volumes, was filed on October 6, 2000. Petitioner's late-filed exhibit, Petitioner's Exhibit numbered 19, was filed on October 17, 2000; and, as a result, the filing for the post-hearing submissions was set for more than ten days following the filing of Petitioner's Exhibit numbered 19. The parties timely filed their post-hearing submissions, which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of medicine.

2. At all times material hereto, Respondent was a licensed physician in the State of Florida, having been issued license number ME 0007919. He has been practicing medicine for over 35 years. Respondent's last known address is 665 Golden Beach Drive, Golden Beach, Florida 33160.

3. Respondent is board-certified in orthopedic surgery.

   
   

4. By Final Order filed January 8, 1992, the Department of Professional Regulation, Board of Medicine, ordered Respondent, among other things, to not examine or treat a female patient without a female employee, who was licensed by the state, present

   in the examining or treatment room. Respondent appealed the Final Order, which was affirmed per curiam by Florida 's Fourth

   District Court of Appeal.

   
   

5. Respondent has been evaluated by various psychiatrists and psychologists. The prevailing opinion was that Respondent was suffering from a psychological illness. Respondent suffers from a psychological illness.3

6. Respondent's psychological illness has been characterized as a personality disorder, which has been subject to various descriptions, including that Respondent suffers from a "dysthymic condition,"4 "characterological problems that play a considerable role in his behavior,"5 and "a characterological disorder characterized by narcissistic traits of self- centeredness and relative callousness to the needs of others, denial of personal responsibility for his actions and a preference for getting his own needs met without much regard for the needs of others."6 A consistent characteristic of Respondent's psychological illness opined by the prevailing opinion was that Respondent failed to take responsibility for his inappropriate behavior but placed the responsibility on or blamed others for the inappropriate behavior.

7. On December 2, 1996, the Agency for Health Care Administration (AHCA) filed an Order of Emergency Restriction of License (ERO) against Respondent. The ERO, among other things,

   placed restrictions on Respondent's practice of medicine as follows:

   1. Dr. Lusskin agrees to not examine or treat any female patients without a female registered nurse licensed by the Agency for Health Care Administration being present in the room. The registered nurse shall not be related to Dr. Lusskin by blood or marriage.

      
      

   2. The female registered nurse shall be present at all times during the treatment and examination of female patients.

      
      

   3. It shall be recorded in the patient record that the female registered nurse was present at all times during the treatment and examination. Said notation shall be signed by both the [sic] Dr. Lusskin and the female registered nurse.

      
      

   4. Dr. Lusskin shall also maintain a separate log, to be available for inspection at all times by the Agency. Said log shall include the names of all female patients that the [sic] Dr. Lusskin examines and/or treats; the date of examination and/or treatment; and the name of the female registered nurse present in the room during the examination and/or treatment. Each entry in the log shall be signed and dated by both the [sic] Dr. Lusskin and the female registered nurse.

      
      

   5. On the last day of every calendar month, Dr. Lusskin shall submit a sworn and notarized affidavit to the Agency, which states that Dr. Lusskin has not examined or treated any female patients except as in compliance with this order.

      
      

   6. All physical exams of patients shall be performed in physical examination rooms only.

      
      

   7. All staff employed by Dr. Lusskin or working with Dr. Lusskin shall be provided with the Final Orders referenced in this

      order, and with a handout prepared by the PRN, including how to contact the PRN should they or a patient have any concerns regarding sexual misconduct.

      
      

   8. Should Dr. Lusskin have a patient in his office, his door will always be open and his chair arranged so that he is always visible.

      
      

   9. Within one (1) week from the date this agreement is filed with the Agency Clerk, Dr. Lusskin shall enter into a contract with the Physician's [sic] Recovery Network (hereinafter "PRN"). Dr. Lusskin shall

      comply with the terms of the contract so long as this agreement is in effect. The frequency of therapy and the form that it should take shall be determined by the PRN.

      
      

   10. On a monthly basis the PRN will update the Agency regarding Dr. Lusskin's compliance with the terms of this agreement.

       
       

   11. Dr. Lusskin's office shall be visited on a random basis by an Agency investigator for the purpose of verifying compliance with the terms of this Consent Agreement.

       
       

8. On December 30, 1996, Respondent executed a PRN contract. Respondent agreed to provisions in the PRN contract which included, among other things, (a) to treatment by a psychiatrist, with Respondent designating Burton Cahn, M.D., as his treating psychiatrist with whom he would have quarterly psychiatric treatment meetings; (b) to supervision by a supervising practitioner, with Respondent designating Michael Langone, M.D., his partner, as his supervising practitioner;

   (c) to not treat or examine a female patient without a chaperon being present, with Respondent designating Gretchen Nelson, a

   registered nurse (RN) as the female chaperon; (d) to notify all office personnel, including the chaperon, of his past history and to give all of them the PRN's 1-800 telephone number to call with any concerns of potential boundary violation; (e) to have a PRN- approved office staff person to hand out and collect Patient Survey Forms (which should have been attached to the PRN contract but were not) for a period of one week one time per quarter to all patients, designating Frances Baron as the staff person; (f) to notify all of his office personnel about his boundary violation; (g) to be appropriately courteous and cooperative in all contacts with the staff and representatives of the PRN; and

   (h) to abide by the terms of the ERO.

   
   

9. On January 16, 1997, the PRN executed the PRN contract.

   
   

   By letter dated February 4, 1997, the PRN notified AHCA's legal counsel that a PRN contract had been entered into between it and Respondent.

10. Dr. Cahn, Respondent's designated treating psychiatrist, was well-known by the PRN.7 He had been a referral psychiatrist for the PRN for several years.

11. On July 2, 1990, Dr. Langone, Respondent's designated supervising physician, became Respondent's partner and associate in Respondent's existing medical practice. Respondent had stopped performing surgery and Dr. Langone's duties included performing the surgery for the medical practice. Even though

    Dr. Langone was the junior partner of the medical practice, he became the senior economic-partner. Dr. Langone is board- certified in orthopedic surgery.

12. Dr. Langone was well aware of Respondent's problems with the PRN. Dr. Langone reviewed the PRN contract and was aware of his (Dr. Langone's) requirements under the PRN contract, and also made sure that all the staff of the medical practice, including Nurse Nelson, reviewed the contract and were aware of Respondent's past history and boundary violation. Dr. Langone reviewed the patient logs and more than the PRN-required percentage of patient's charts and reviewed the signatures of Respondent and Nurse Nelson on both the charts and the logs.

13. Dr. Langone sent periodic reports to the PRN. He had telephone conversations with representatives of the PRN, informing them that Respondent was complying with the PRN contract and that he (Dr. Langone) had encountered no improprieties.

14. Dr. Langone mandated an office method/procedure to be used when someone called representing that he/she was calling on behalf of the PRN. He wanted to confirm that the person calling was actually calling from the PRN and to maintain confidentiality. The method/procedure implemented was that Nurse Nelson, Respondent's designated licensed female health care professional chaperon, would obtain the calling-person's name and

    telephone number, without providing any information regarding Respondent's conduct or PRN compliance, and return the person's telephone call.

15. Around May 1998, when Respondent's license to practice medicine was suspended, Dr. Langone severed his contractual relationship with Respondent.

16. Nurse Nelson was hired for the sole purpose of fulfilling the requirements of the PRN contract that a RN be present in the examination or treatment room whenever Respondent was with a female patient, and other requirements associated with the PRN contract. Nurse Nelson reviewed the PRN contract and was aware of her responsibilities under it. She was also made aware of Respondent's past history and boundary violation.

17. Nurse Nelson was present in the examination or treatment room whenever Respondent was examining or treating a female patient. Both she and Respondent signed-off on patient charts and logs.

18. The PRN considers a lack of communication between Respondent and it as noncompliance by Respondent with the PRN contract. The undersigned is persuaded that monitoring compliance by Respondent with the PRN contract required communication and is, therefore, persuaded by the PRN's position. A lack of communication between Respondent and the PRN, as to communication for which Respondent has the ultimate

    responsibility, is noncompliance by Respondent with the PRN contract.

19. Gene G. Abel, M.D., a psychiatrist and board-certified in psychiatry, performed an independent medical examination of Respondent on behalf of Petitioner. Fifty percent of Dr. Abel's time is devoted to treating professional sexual misconduct; professional sexual misconduct is the essence of the reason for the PRN contract. Dr. Abel opined that Respondent does not believe that he (Respondent) had ultimate responsibility for compliance with the PRN contract, but believes that others named in the PRN contract, who included persons in his medical office, were responsible for compliance with the PRN contract. Consequently, Dr. Abel opined that as a result of Respondent's refusal to take ultimate responsibility for compliance with the PRN contract, a breakdown of communication occurred between Respondent and the PRN. This lack of taking responsibility is consistent with Respondent's psychological illness.

20. In March 1997, the PRN experienced a problem in communicating with Nurse Nelson. A representative of the PRN called Respondent's medical office and requested to speak with Nurse Nelson. When Nurse Nelson answered, she refused to provide the caller with any information, instead requesting the person's name and telephone number and stating that she would return the person's telephone call. She had complied with the established

    office method/procedure for telephone calls from the PRN. Nurse Nelson obtained the necessary information from the caller, returned the telephone call, and left a message for the caller. She and the PRN representative exchanged telephone calls without talking to one another, both leaving messages. Finally, in returning a telephone call, the PRN representative was able to speak with Nurse Nelson, but only after speaking with Respondent who inquired "why" the representative wanted to speak with Nurse Nelson. When Nurse Nelson spoke with the PRN representative, she was courteous, answered the questions of the PRN representative, and informed the PRN-representative of unsettling changes in staff in Respondent's medical office, but indicated that she (Nurse Nelson) would be remaining.8

21. Respondent was of the opinion that Nurse Nelson had the responsibility to communicate with the PRN and that he had no responsibility to make sure that Nurse Nelson communicated with the PRN. The ultimate responsibility was upon Respondent to ensure that Nurse Nelson communicated with the PRN. The office method/procedure designed by Respondent's office for telephone calls from the PRN should have been communicated to the PRN by Respondent and, if it had been communicated, no lack of communication would have occurred. Communication was lacking at the outset between Nurse Nelson and the PRN, but, within a short span of time, communication was thereafter established.

22. By a letter dated March 24, 1997, the PRN notified Respondent, among other things, that it had problems communicating with individuals designated by him in the PRN contract and that the individuals would be receiving random telephone calls from the PRN to assess compliance with the PRN contract. By letter dated April 14, 1997, Respondent acknowledged receipt of the PRN's letter and indicated that he had again instructed his staff regarding contact from the PRN, including to be cooperative and to provide whatever information requested by the PRN. The communication problem with Nurse Nelson was the only monitoring problem of which Respondent was aware.

23. Frances Baron, Respondent's designated office staff person to deal with Patient Survey Forms, was Respondent's office manager. She confirmed that all of Respondent's office staff reviewed the PRN contract and were aware of Respondent's past history and boundary violation. Ms. Baron was also responsible for all correspondence and paperwork associated with the PRN.

24. For the months January through September 1997, Respondent completed and signed letters of compliance with the PRN contract. The letters were notarized and attested that he had not examined or treated a female patient except in compliance with the PRN contract. The PRN did not have a copy of the letters in its file on Respondent; however, it did have an

    affidavit from Respondent, executed in February 1997, for the month of December 1996, attesting to the same compliance. The undersigned is concerned with the two different modes Respondent used to attest to his compliance with the PRN contract; however, the concern fails to rise to the level of discounting the notarized letters.

25. The undersigned is also concerned that there was an absence of the notarized letters in the PRN's file on Respondent. An inference is taken and a finding of fact is made that the notarized letters were not forwarded to the PRN. Respondent had the ultimate responsibility to ensure that the notarized letters were forwarded to the PRN, to ensure that the required communication was forwarded to the PRN. Such an absence of communication, communication for which Respondent bore the ultimate responsibility, showed a noncompliance by Respondent with the PRN contract.

26. According to the PRN contract, Ms. Baron was designated as the staff person to hand out and collect Patient Survey Forms, which were indicated as being attached. The PRN contract failed to have attached to it the Patient Survey Forms; as a result, failure to have Patient Survey Forms was through no fault of Respondent. However, Respondent bore the ultimate responsibility to ensure that Ms. Baron had the Patient Survey Forms. The evidence shows that Respondent, through his representatives,

    requested the Patient Survey Forms from the PRN, which shows that there was no lack of communication regarding the Patient Survey Forms.

27. On June 2, 1997, the PRN unilaterally cancelled the PRN contract. By letter dated June 2, 1997, the PRN notified AHCA's legal counsel that the PRN had attempted to monitor Respondent's practice without success and that Respondent was not currently being monitored by the PRN. Furthermore, the PRN notified the legal counsel that the continued monitoring of Respondent by the PRN was necessary.

28. All of the individuals designated in the PRN contract by Respondent remained with Respondent in the medical practice during the duration of the PRN contract.

29. No one designated by Respondent in the PRN contract had notified the PRN that Respondent was complying with what each of the individuals was designated to do by the PRN contract. At no time did the PRN notify any of the designated individuals that it considered Respondent to not be in compliance with the PRN contract.

30. The PRN did not notify Respondent that it was cancelling the PRN contract.

31. The PRN was not aware of any circumstance, since its participation with Respondent, involving a sexual problem between

    Respondent and a female patient. Additionally, no such problem was reported.

32. Respondent's designated treating psychiatrist, Dr. Cahn, is now deceased. It was not demonstrated that Respondent was being treated by another psychiatrist since Dr. Cahn's death or that Respondent is now being treated by another psychiatrist.

33. The undersigned is persuaded and a finding of fact is made that Respondent suffers from a psychological illness that interferes with his ability to practice medicine with reasonable skill and safety to female patients.

34. One of the safeguards propounded by the prevailing opinion of psychiatrists, who examined Respondent, was that he was able to practice medicine with reasonable skill and safety as long as a licensed female health professional was required to be present when Respondent examined or treated a female patient. Respondent, himself, concurs with this requirement even though he denies that he suffers, or suffered, from a psychological illness that prevents him from being able to practice medicine with reasonable skill and safety.

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the

    parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

36. License revocation proceedings are penal in nature.

    
    

    The burden of proof is on the Petitioner to establish by clear and convincing evidence the truthfulness of the allegations in the Amended Administrative Complaint. Department of Banking and

    Finance, Division of Securities and Investor Protection v.

    
    

    Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

37. Respondent is charged with violating Subsection 458.331(1)(s), Florida Statutes, which provides in pertinent part:

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    
    

    * * *

    
    

    (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or . . . as a result of any mental . . . condition . . . .

    
    

38. Petitioner has demonstrated by clear and convincing evidence that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of illness and due to his noncompliance with the PRN contract, leading to the inability of the PRN to properly monitor him under his PRN contract.

39. At the time that the PRN and Respondent entered into the PRN contract, Respondent was suffering from a mental illness, which was the prevailing psychiatric opinion. Furthermore, the prevailing opinion was that safeguards needed to be established for Respondent to practice medicine with reasonable skill and safety to his female patients due to his mental illness.

40. Respondent suffers from a mental illnes that affects his ability to practice medicine with reasonable skill and safety to female patients. Respondent's treating psychiatrist is now deceased. It was not demonstrated that Respondent's mental condition has changed and that the safeguards to protect female patients no longer need to be continued. Respondent continues to suffer from a mental illness that affects his ability to practice medicine with reasonable skill and safety to female patients.

41. The PRN contract provided for the monitoring of Respondent's medical practice by the PRN for the protection of the public and Respondent. Petitioner established that Respondent failed to comply with the PRN contract by a lack of communication with the PRN regarding Respondent's providing monthly statements of compliance to the PRN and regarding the initial communication by the PRN with the licensed female health care professional chaperon in Respondent's medical office. Respondent bore the ultimate responsibility to ensure that there was no lack of communication between him and the PRN, which

    included communication between the PRN and those persons designated in the PRN contract; Respondent failed to ensure that the communication was intact. However, regarding the communication by the PRN with the licensed female health care professional chaperon, no evidence was presented to demonstrate that any problem existed subsequent to the initial attempted communication.

42. With the PRN contract in place, Respondent was able to practice medicine with reasonable skill and safety to female patients due to the monitoring provisions of the PRN contract. Respondent failed to comply with the PRN contract due to the lack of communication and, therefore, at the point of noncompliance was unable to practice medicine with reasonable skill and safety to female patients. Monitoring has not been re-established. If monitoring is again in place, Respondent can return to being able to practice medicine with reasonable skill and safety to female patients. At the minimum, a licensed female health care professional chaperon should be present at the examination and treatment by Respondent of female patients.

43. The penalty guidelines found at Rule 59R-8.001, Florida Administrative Code, provide for a penalty range for a violation of Subsection 458.331(1)(s), Florida Statutes. The penalty range is probation to indefinite suspension until the licensee is able to demonstrate the ability to practice with reasonable skill and

safety followed by probation, and an administrative fine from

$250 to $5,000. Additionally, in assessing a penalty, Subsection 458.331(2), Florida Statutes, requires Petitioner to "first consider what sanctions are necessary to protect the

public. . . . Only after those sanctions have been imposed

may . . . [Petitioner] consider and include . . . requirements designed to rehabilitate the physician."

RECOMMENDATION

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

RECOMMENDED that the Department of Health, Board of Medicine, enter a final order:

1. Finding that Bret L. Lusskin, M.D., violated Subsection 458.331(1)(s), Florida Statutes.

2. Lifting the suspension of Dr. Lusskin's license to practice medicine and re-instating his license with restrictions deemed appropriate, including the presence of a licensed female health care professional at the examination and treatment of female patients by Dr. Lusskin.

3. Requiring Dr. Lusskin to enter into a monitoring contract with the Physicians Recovery Network.

4. Placing Respondent on probation for two years under the terms and conditions deemed appropriate.

5. Imposing an administrative fine of $2,000.

DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2001.

ENDNOTES

1/ The first sentence of paragraph numbered 7 of the Amended Administrative Complaint states as follows:

7. On or about May 2-6, 1993, Respondent underwent an evaluation that revealed that he suffered from a severe personality disorder.

2/ Petitioner's Exhibit numbered 3 is the Transcript of the October 1, 1997, hearing, together with the exhibits of the hearing. Petitioner withdrew Exhibits numbered 1, 4, 5, and 8-

14.

3/ The opinions were contained in the Transcript and exhibits of the final hearing held on October 1, 1997. Considering the proof, the prevailing opinion is persuasive.

4/ Opinion of George W. Barnard, M.D., a psychiatrist, and Michael J. Herkov, Ph.D., at the University of Florida, College of Medicine in Gainesville, Florida.

5/ Ibid.

6/ Opinion of James Edgar, M.D., a psychiatrist, at the South Tampa Medical Center, Tampa, Florida.

7/ At the time of the final hearing in the instant case, Dr. Cahn was deceased.

8/ This Administrative Law Judge is not persuaded that there should be cause for concern because Nurse Nelson did not know the difference between the PRN and the then Department of Professional Regulation. It is sufficient that Nurse Nelson was aware that there were certain requirements placed upon her, with which she was obligated to comply, and that she believed that the requirements were overseen by a regulatory agency which affected her license to practice.

COPIES FURNISHED:

Tanya Williams, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

John E. Terrel, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Keith A. Schafer, Esquire Fred Chikovsky, Esquire

Chikovsky, Ben & Schafer, P.A. 1720 Harrison Street, 7th Floor Hollywood, Florida 33020

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-005891

Orders for Case No: 96-005891