vs. ) Case No. 97-2458
ENELITA E. SERRANO, M.D., )
Respondent. )
This cause came on for formal hearing on August 25 and 26, 1997, in Pensacola, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Suzanne F. Hood.
For Petitioner: John E. Terrel, Esquire
For Respondent: James M. Wilson, Esquire
Wilson, Harrell and Smith, P.A. South Palafox Street
The issues are whether Respondent violated Sections 458.331(1)(m), 458.331(1)(q), 458.331(1)(s), and 458.331(1)(t),
Florida Statutes, and if so, what penalty should be imposed.
Board of Medicine (formerly Agency for Health Care Administration), filed a Corrected Administrative Complaint against Respondent Enelita E. Serrano, M.D. Said complaint alleged that Respondent violated Sections 458.331(1)(m), 458.331(1)(q), 458.331(1)(s), and 458.331(1)(t), Florida
Statutes.
Respondent requested a formal hearing to contest these charges on or about May 12, 1997. Petitioner referred this matter to the Division of Administrative Hearings on May 21, 1997.
On June 11, 1997, the undersigned issued a Notice of Hearing. Said notice scheduled this case for hearing on August 25 and 26, 1997.
At the hearing, Petitioner presented the testimony of five witnesses and offered seven exhibits which were accepted into evidence.
Respondent testified on her own behalf and presented the testimony of seven witnesses. Respondent offered three exhibits which were accepted into evidence.
On September 25, 1997, Petitioner filed an unopposed Motion for Extension of Time to File Proposed Recommended Order. The undersigned granted this motion by order dated September 26, 1997.
The transcript of the proceeding was filed on September 29, 1997. The parties filed their proposed recommended orders on October 15, 1997.
3 Respondent, a native of Manila, Philippines, attended medical school and received her M.D. degree in 1965 from Manila Central University. She completed an internship and residency in OB-GYN in Manila before immigrating to the United States in 1968.
Respondent became a citizen of the United States in 1972. She obtained her license to practice medicine in the state of Florida in 1973. Thereafter, Respondent completed a residency in general practice in Portsmouth, Virginia, and a residency in pathology in Norfolk, Virginia. She is not board certified.
Prior to October 23, 1996, Respondent was engaged in a solo practice of general and family medicine.
Except for this proceeding, Respondent has never been the subject of disciplinary action in connection with her medical license. She has never had a medical malpractice claim asserted against her.
Fiorinal No. 3 or Fiorinal with codeine is a legend drug as defined by Section 465.003(7), Florida Statutes. Fiorinal
No. 3 is also a Schedule III controlled substance which is listed in Section 893.03, Florida Statutes.
In March of 1991, Respondent began treating Patient G.C. for symptoms related to menopause and anxiety. Respondent's record of G.C.'s initial visit indicates that G.C. is allergic to penicillin and codeine.
G.C. made 46 visits to Respondent's office from
March 12, 1991 through February 21, 1995. On 37 of these visits, Respondent's records note G.C.'s allergy to codeine.
On September 19, 1991, G.C. complained that her knee and calf on her right leg were hurting. Respondent ordered a venogram and prescribed Lorcet Plus for G.C.
On December 13, 1991, G.C. complained that she had a cough, sore throat, and congestion. Respondent prescribed Lorcet Plus for G.C. in addition to other medication.
G.C. made 15 visits to Respondent's office from June of 1995 through September of 1996. Respondent's records of these visits do not note G.C.'s allergy to codeine. Respondent did not charge G.C. for six of these visits.
G.C. complained of pain and swelling in her left elbow on October 31, 1995. Respondent treated G.C. for bursitis and gave her a prescription for Fiorinal No. 3. Respondent did not charge G.C. for this visit.
G.C. complained of pain in her elbow again on December 19, 1995. Respondent treated G.C. for bursitis and prescribed Fiorinal No. 3. Respondent did not charge G.C. for this visit.
Respondent's records indicate that she saw G.C. for the last time on September 20, 1996. The records do not indicate the purpose of the visit. There is a notation which states, "Last time I'll give this Rx to her," followed by three prescriptions including Fiorinal No. 3.
Respondent testified that she prescribed Fiorinal for
G.C. because she had previously taken Lorcet with no problems or reactions. Lorcet, like Fiorinal, contains codeine.
Allergic reactions to codeine can range from mere rashes to life-threatening problems. Accordingly, prescribing Fiorinal No. 3 for G.C. was contraindicated.
Respondent concedes that G.C.'s medical chart was deficient in several ways. It failed to contain an adequate medical history, failed to reflect proper physical examinations, failed to reflect adequate tests and lab studies, and failed to fully document conditions/symptoms to warrant treatment rendered, including medications prescribed.
Respondent and G.C. developed a social relationship in 1995. Respondent and G.C. were taking trips together, going out to eat together, and seeing each other quite often in a social setting.
G.C. told Respondent that some investors in Sicily wanted to buy Respondent's medical practice. Respondent and the foreign investors could not agree on the terms of sale.
Respondent lent G.C. a large sum of money in cash.
G.C. would not re-pay the loan or acknowledge the debt. The friendship between G.C. and Respondent began to deteriorate.
In March of 1996, G.C. contacted Lynn Flanders, a narcotics investigator from the Escambia County Sheriff's Department. G.C. informed Ms. Flanders that Respondent had written a prescription for Fiorinal No. 3 in G.C's name with the intention of diverting the medicine for her own consumption.
The prescription was dated January 15, 1996. Respondent's records do not indicate that G.C. made a visit to Respondent's office in January of 1996.
G.C. planned to meet Respondent at a restaurant on March 19, 1996. Before the meeting, Investigator Flanders had the prescription filled at a local drug store. She equipped G.C. with an audio listening device. Ms. Flanders also searched G.C.'s car and person. Finding no drugs or money in G.C.'s possession, the investigator gave the bottle of Fiorinal capsules to G.C. and sent her to meet Respondent at the restaurant.
Investigator Flanders seated herself in the restaurant so that she could observe Respondent and G.C. during the meal. Respondent never left the table. Ms. Flanders was unable to observe G.C. when the confidential informant went to the ladies'
room. The investigator did not see G.C. hand the prescription bottle to Respondent. After Respondent and G.C. ate lunch, they left the restaurant.
Investigator Flanders subsequently discovered that the audio tape was inaudible. Ms. Flanders told G.C. to call the sheriff's office if the doctor gave her another prescription and asked her to get it filled.
As referenced above, Respondent gave G.C. a prescription for Fiorinal No. 3 on September 20, 1996. Although the prescription was in G.C's name, Respondent intended to consume the medicine herself.
G.C. contacted Investigator Flanders again. She told Ms. Flanders about the prescription. The investigator took the prescription and had it filled at a local drug store.
G.C. planned to meet Respondent at another restaurant on September 15, 1996. Before the meeting, Investigator Flanders equipped G.C. with an audio listening device, searched her car and person, gave her the bottle of Fiorinal No. 3 capsules, and sent her to meet Respondent.
Investigator Shelby and his partner arrived at the restaurant before G.C. or the Respondent. Investigator Shelby positioned himself in the restaurant so that he could observe
G.C. and Respondent.
Investigators located outside of the restaurant monitored the listening device. They recorded the conversation
between Respondent and G.C.
Investigator Shelby saw G.C. take the bottle containing
30 Fiorinal No. 3 capsules from her shirt pocket and pass it under the table to Respondent. Respondent leaned forward, accepted the bottle under the table, and placed it in her purse.
Respondent left the restaurant and entered her vehicle. She was then placed under arrest. The bottle of medicine,
containing 30 capsules, was recovered from her purse. Respondent's testimony that she did not intend to divert the narcotic for her own consumption is not persuasive.
Criminal charges against Respondent are being processed through the Pretrial Intervention Program for nonviolent first offenders. Charges against Respondent will be dismissed if she does not commit any offense for ten months after March 27, 1997, and provided that she satisfactorily completes the program. As part of the ten-month probation, Respondent agreed to voluntary urinalysis and compliance with the mandates of her recovery program through the Physician's Recovery Network (PRN).
Respondent has a history of chronic daily headaches and hypertension. She has been taking Fiorinal No. 3 which contains codeine and aspirin since 1972.
Respondent was diagnosed with a bleeding ulcer just before her arrest in September of 1996. Her treating physician prescribed Fioricet which contains codeine but no aspirin. Respondent accepted this prescription without telling her treating physician about her codeine dependency.
Respondent divorced her husband for the second time in August of 1996. Around the time of her arrest, Respondent experienced a lot of stress as a result of her relationship with her ex-husband.
PRN is Florida's impaired practitioner program. Pursuant to contract with Petitioner, PRN offers educational
intervention, treatment referral, and rehabilitation monitoring services for health care workers in Florida.
The PRN's director, Dr. Roger Arthur Goetz, became aware of Respondent's arrest on October 3, 1996. On his recommendation, Respondent voluntarily agreed to undergo an evaluation by the following three doctors in Pensacola, Florida:
(a) Dr. Rick Beach, an addiction specialist; (b) Dr. Doug H. Fraser, a board certified psychiatrist; and (c) Dr. Thomas Meyers, a psychologist. Dr. Beach and Dr. Meyers agreed that Respondent was impaired due to a substance abuse problem. All three doctors agreed that Respondent suffered from a depressive disorder and other psychological problems.
Dr. Beach, the addictionologist, determined that Respondent had a dysfunctional relationship with her ex-husband, an unhealthy relationship with G.C., and a probable dependence on opiates.
Dr. Fraser, Respondent's psychiatrist, diagnosed Respondent with generalized anxiety disorder and dysthymia.
Generalized anxiety disorder is a life-long disorder from which the patient experiences a chronic sense of nervousness, tension, and worry. A patient suffering from this condition will have some physical symptoms such as gastrointestinal problems, headaches, muscle tension, or difficulty sleeping.
Dysthymia is also a chronic life-long disorder which
causes patients to suffer from chronic minor depression more days than not.
On October 23, 1996, Respondent entered into a Voluntary Agreement to Withdraw from Practice with Petitioner. This agreement states that Respondent shall cease practicing medicine until Petitioner issues a Final Order in this case.
On November 4, 1996, Respondent entered Jackson Recovery Center in Jackson, Mississippi. This facility was an in-patient substance abuse treatment center. Respondent's treating physician, Dr. Lloyd Gordon, admitted her for treatment with the following diagnosis: (a) Axis I, opioid dependence and dysthymia with anxiety; and (b) Axis II, avoidant and dependent traits.
Respondent subsequently entered a residential treatment program, the Caduceus Outpatient Addictions Center (COPAC), in Hattiesburg, Mississippi. COPAC specializes in the treatment of physicians and other health care workers who abuse controlled substances. Respondent remained in this residential program for almost three months. She was discharged from COPAC on
February 21, 1997.
Respondent signed an Advocacy Contract with PRN the day that she was discharged from COPAC. The contract established a five-year monitoring period during which Respondent agreed to abide by certain terms and conditions, including but not limited to, the following: (a) to participate in a random urine drug
and/or blood screen program; (b) to abstain from the use of controlled substances; (c) to attend group self-help meetings such as AA or NA; (d) to attend continuing care group therapy; and (e) to attend a twelve-step program for recovering professionals.
In March of 1997, Respondent went to her office to see patients. She wrote prescriptions for some of these patients. She was under the impression that she could return to her practice because she had been therapeutically cleared to practice by COPAC.
PRN learned that Respondent was practicing medicine in violation of her agreement to voluntarily withdraw from practice. PRN advised Respondent that she could not go into her office to see patients or write prescriptions until Petitioner gave her that right. Respondent immediately ceased her practice.
Upon her discharge from COPAC, Respondent continued to see her psychiatrist, Dr. Fraser. In May of 1997, Respondent told Dr. Fraser that she was experiencing forgetfulness and panic attacks. She complained of having difficulty making decisions and sleeping. Respondent was feeling depressed and having suicidal thoughts. Dr. Fraser increased her antidepressant medication and referred her to a local counseling center.
Respondent went to visit her family in California from May 25, 1997 through June 6, 1997. She did not tell Dr. Fraser
that she was going out of town. However, she did tell one of the therapists from Dr. Fraser's office about the trip.
Respondent saw Dr. Fraser again on June 18, 1997, when she returned to Pensacola. He made a tentative diagnosis of bipolar disorder and began appropriate treatment. Respondent was feeling better when she saw Dr. Fraser on June 25, 1997.
Respondent moved to California to live with her sister on July 6, 1997. This move was necessary because Respondent had lost her home as well as her practice. While she was in California, Respondent saw a psychiatrist, Dr. Flanagan. She also attended AA meetings in California.
Respondent returned to Pensacola a week before the hearing. She saw Dr. Fraser on August 21, 1997. Dr. Fraser was not aware that Respondent had been living in California and receiving treatment from Dr. Flanagan.
During her visit with Dr. Fraser, Respondent admitted that she had a craving for codeine when she was tense. However, she denied use of any prescription drugs except those being currently ordered by her doctors. Respondent reported on-going mood swings even though Dr. Flanagan had increased her Depakote. She verbalized fantasies involving violent behavior toward G.C. Respondent revealed that she was experiencing grandiose delusions. She admitted that she was not ready to return to medical practice. Dr. Fraser concurs.
Respondent needs intensive individual psychotherapy for
at least six months on a weekly basis. At the time of the hearing, Respondent had not begun such therapy.
The record indicates that Respondent was a caring and compassionate physician. Respondent's elderly patients testified that Respondent treated them with extraordinary concern when other doctors refused. Respondent's colleagues in nursing home settings attested to her skill and proficiency in the care of the elderly. None of these patients or associates were aware of Respondent's drug dependence or psychological problems before her arrest.
Respondent is "in recovery" for her drug dependence. However, she is not mentally, emotionally, or psychologically ready to practice medicine with reasonable skill and safety for her patients.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this proceeding pursuant to Sections 120.57(1) and 455.225, Florida Statutes.
Petitioner has the burden of proving that Respondent violated Sections 458.331(1)(m), 458.331(1)(q), 458.331(1)(s), 458.331(1)(t), Florida Statutes, by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1st DCA 1987).
Section 458.331(1), Florida Statutes, provides as follows, in pertinent part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(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. . . .
* * *
Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. . . .
* * *
Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
There is clear and convincing evidence that Respondent violated the above-referenced subsections of Section 458.331(1), Florida Statutes.
Respondent concedes that she failed to keep written medical records justifying the treatment of G.C. She inappropriately prescribed codeine for G.C. when it was contraindicated. Thus, Respondent violated Section
458.331(1)(m), Florida Statutes.
Respondent prescribed a controlled substance for G.C. with the intention of taking them herself. The Fiorinal Number 3 prescriptions that Respondent wrote for G.C. were not in the course of Respondent's professional practice. Accordingly, Respondent violated Section 458.331(1)(q), Florida Statutes.
Respondent's inappropriate treatment of G.C., her codeine addiction, and her unstable mental and psychological condition indicate that she is unable to practice medicine with reasonable skill and safety to patients. She has violated Section 458.331(1)(s), Florida Statutes.
Respondent failed to exercise the appropriate standard of care in treating G.C. Her diversion of a controlled substance for her own consumption fell below the standard of care. Therefore, Respondent violated Section 458.331(1)(t), Florida Statutes.
Petitioner has authority to revoke, suspend, or otherwise discipline the license of any physician who is guilty of committing the offenses set forth in Section 458.331(1), Florida Statutes. Section 458.331(2), Florida Statutes.
Rule 64B8-8.001, Florida Administrative Code, sets forth the applicable disciplinary guidelines, including aggravating and mitigating circumstances.
Respondent is guilty of four separate offenses. Her drug addiction and psychological problems exposed G.C. and other
patients to potential injury. She is under some legal constraints due to her probation in the Pretrial Intervention Program.
On the other hand, Respondent has no disciplinary history. She has practiced under a Florida license since 1973.
Respondent is "in recovery" for her drug dependency. However, her judgment is still impaired. Otherwise, she would not have returned to practice in March of 1997 in violation of her agreement to voluntarily withdraw from practice. She would not have moved to California in July of 1997 without informing Dr. Fraser. More importantly, she has not initiated the individual counseling sessions recommended by Dr. Fraser in
May of 1997.
Respondent should not be permitted to return to practice until she demonstrates continued commitment to her substance abuse recovery program and until she can demonstrate her ability to practice medicine with reasonable skill and safety.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order indefinitely suspending Respondent's license to practice medicine until she is able to demonstrate the ability to practice with reasonable skill and safety followed by five years of probation
with appropriate terms, conditions, and restrictions, and imposing an administrative fine in the amount of $4,000.
DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997.
John E. Terrel, Esquire
James M. Wilson, Esquire Wilson, Harrell and Smith, P.A.
Angela T. Hall, Agency Clerk Department of Health
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.
