STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 10-1835PL
)
SERGIO RODRIGUEZ, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on June 10, 2010, by telephone, before Patricia M. Hart, a duly- designated Administrative Law Judge of the Division of Administrative Hearings, who presided in Tallahassee, Florida.
APPEARANCES
For Petitioner: Robert Anthonie Milne, Esquire
Department of Health Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399
For Respondent: Sergio Rodriguez, M.D., pro se
c/o Palm Beach County Jail 3228 Gun Club Road
West Palm Beach, Florida 33406 STATEMENT OF THE ISSUE
Whether the Respondent committed the violations alleged in the Administrative Complaint dated December 8, 2009, and, if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
In a five-count Administrative Complaint dated December 8, 2009, the Department of Health ("Department") charged Sergio Rodriguez, M.D., with having violated Sections 458.331(1)(nn), 458.331(1)(t), 458.331(1)(m), and 458.331(1)(q), Florida
Statutes (2007)1; 456.072(1)(ff), Florida Statutes (2003-2006); and Florida Administrative Code Rule 64B8-9.013(3). The Department based these charges on factual allegations involving Dr. Rodriguez's prescribing of controlled substances to an individual who was an undercover law enforcement officer participating in an investigation of Dr. Rodriguez.
Dr. Rodriguez timely requested an administrative hearing, and the Department transmitted the matter to the Division of Administrative Hearings for assignment of an administrative law judge.
Pursuant to notice, the final hearing was held by telephone on June 10, 2010.2 At the hearing, the Department presented the testimony of Lisa Murray, an agent of the Palm Beach County Sheriff's Office, and David Glener, M.D., an expert witness whose testimony was presented via deposition in lieu of live testimony. Petitioner's Exhibits 1, 2, 3, 4a through d, 5a through d, 6a through d, and 7, were offered into evidence during the hearing. Petitioner's Exhibits 2, 3, 5a through d, and 7 were received into evidence at the final hearing. The
Petitioner was given leave during the final hearing to late-file Petitioner's proposed Exhibit 9, and it did so on June 15, 2010. Rulings were withheld on Petitioner's proposed Exhibit 1, the transcript of Dr. Glener's deposition; proposed Exhibit 4a through d, audio tapes of Agent Murray's visits to
Dr. Rodriguez; proposed Exhibit 6a through d, video tapes of Agent Murray's visits to Dr. Rodriguez; and proposed Exhibit 9. Dr. Rodriguez testified in his own behalf but did not offer any exhibits into evidence at the final hearing or thereafter. In an Order entered May 26, 2010, official recognition was taken of Florida Administrative Code Rules 64B8-8.001 and 64B8-9.013.
In an Order Holding Record Open entered on June 22, 2010, the record in this case was held open in response to issues raised by Dr. Rodriguez during the final hearing. First,
Dr. Rodriguez complained that the attorney Dr. Rodriguez claimed was representing him in this administrative proceeding was unable to attend the final hearing because he did not have enough time to contact the attorney after having received the amended notice of the final hearing.3 Accepting Dr. Rodriguez's claims as true, the undersigned ordered the attorney
Dr. Rodriguez claimed represented him in this administrative proceeding to file a notice of appearance in this case no later than July 9, 2010. Second, in the event that an attorney filed a timely notice of appearance indicating that he or she
represented Dr. Rodriguez, the attorney was given until July 9, 2010, to file any motions he or she deemed necessary, including a motion to reopen the final hearing in this case.
Third, the June 22, 2010, Order confirmed that rulings were withheld on the admission into evidence of Petitioner's proposed exhibits 4a through d and 6a through d until such time as the Petitioner obtained and filed certification from an individual in authority at the Palm Beach County Jail that the audio and video tapes comprising the two exhibits had been made available to Dr. Rodriguez for review. Dr. Rodriguez was also given leave to file with the Division of Administrative Hearings, after having the tapes made available to him but no later than July 9, 2010, a written request to reopen the hearing to conduct cross-examination of Agent Murray regarding the contents of the audio and video tapes. Finally, in response to Dr. Rodriguez's claims that he received notice of Dr. Glener's deposition too late to procure the attendance of his attorney and that he refused to attend the deposition in the absence of his attorney, Dr. Rodriguez's attorney, assuming he or she timely filed a notice of appearance in this administrative proceeding, was given until July 9, 2010, to file an objection to the undersigned's receiving the transcript of Dr. Glener's deposition into evidence.
The record in this case closed on July 9, 2010. No attorney filed a notice of appearance on behalf of
Dr. Rodriguez; no motions or objections were filed subsequent to the final hearing in this case; and Dr. Rodriguez did not file a request to cross-examine Agent Murray. The certification of Captain Alan W. Fuhrman, dated June 29, 2010, that the audio and video tapes were made available to Dr. Rodriguez was filed by the Petitioner with the Division of Administrative Hearings on July 2, 2010, and marked for identification as Petitioner's Exhibit 10. Since nothing was heard from or on behalf of
Dr. Rodriguez subsequent to the final hearing, an Order Receiving Exhibits into Evidence was entered on July 19, 2010, receiving into evidence Petitioner's Exhibits 1, 4a through c, 6a through c, 9, and 10. As a result of a scrivener's error, Petitioner's Exhibits 4d and 6d were omitted from paragraph 2 of the Order but are hereby received into evidence.
The one-volume transcript of the proceedings was filed with the Division of Administrative Hearings on July 13, 2010. On July 19, 2010, an Order was entered directing that proposed recommended orders be filed with the Division of Administrative Hearings no later than August 2, 2010. Dr. Rodriguez did not file a post-hearing submission, but the Petitioner timely filed proposed findings of fact and conclusions of law, which have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:
The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See § 455.225, Fla. Stat. (2009). The Board of Medicine ("Board") is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Sections 458.331(1) and 456.072(1), Florida Statutes. See §§ 458.331(2) and 456.072(2), Fla. Stat.
At the times pertinent to this proceeding,
Dr. Rodriguez was a physician licensed by the State of Florida, having been issued license number ME71465.
At the times pertinent to this proceeding,
Dr. Rodriguez owned and practiced at Children Plus Health Center, which was located at 7599 South Dixie Highway, West Palm Beach, Florida. Dr. Rodriguez was identified on the front window of his offices as a licensed pediatrician.
On January 31, 2008, Agent Murray, while working in an undercover capacity for the Palm Beach County Sheriff's Office, entered Dr. Rodriguez's offices and asked the receptionist if she could see Dr. Rodriguez. Using the name "Lisa Caterra,"
Agent Murray completed a patient information sheet that asked for the patient's name, date of birth, sex, social security number, address, telephone number; the name and telephone number of the patient's employer, the name and telephone number of an emergency contact, and the type of insurance.
Agent Murray indicated on the patient information form that she was insured under Medicaid, but she was advised at the front desk that Dr. Rodriguez accepted Medicaid only for pediatric patients. Agent Murray then paid $125.00 in cash to the person at the front desk before she saw Dr. Rodriguez on January 31, 2008.
While she was waiting to see Dr. Rodriguez,
Agent Murray observed a number of adults waiting in the waiting room, in addition to children with their parent or parents.
Agent Murray waited approximately three and one-half hours before she was taken to an examination room.
Dr. Rodriguez entered and asked how he could help her.
Agent Murray told Dr. Rodriguez that she had been under the care of a physician in Bradenton, that she was taking "roxys" and "liquid roxys," that it was too far for her to visit her doctor in Bradenton, and that a friend who was a patient of
Dr. Rodriguez told her that she should see Dr. Rodriguez and could get "roxys" from him.
In the examination room, Dr. Rodriguez asked
Agent Murray to describe her problem. Agent Murray told him that she had been in a car accident in 2006. When questioned by Dr. Rodriguez, Agent Murray denied having pain in her neck, shoulders, or middle back. She stated that she did not know where her pain was, that it was "[s]ometimes, maybe, in my "lower area, I guess."4
Dr. Rodriguez asked Agent Murray if she had had an MRI, and she told him that one had been taken in December 2006.
Dr. Rodriguez told her that this MRI was too old and that she needed to get another.
Dr. Rodriguez also asked Agent Murray if she had anxiety or headaches. She stated that she "had headaches from all the screaming children in the waiting room."5
The medical records of Agent Murray's January 31, 2008, visit to Dr. Rodriguez consisted of an Adult-Chart Initiation History form and an Adult Initial Physical form.
The Adult-Chart Initiation History form, which was not dated or signed, contained a past medical history that showed no childhood illnesses, no major operations, no major illnesses, and an accident in November 2006. The social history noted on the chart reflected that "Lisa Caterra" did not smoke and drank occasionally. Dr. Rodriguez also wrote something illegible on
the blank for allergies and listed several medicines, the only one of which that could be deciphered was Xanax.
The Adult Initial Physical form dated January 31, 2008, contained a notation of Agent Murray's temperature, blood pressure, pulse, height and weight; and a notation in the section for the primary working diagnosis of lower back pain, no neck or shoulder pain, and anxiety. What purported to be a "provider signature" appeared at the bottom of the form.
After she left Dr. Rodriguez's examination room on January 31, 2008, Agent Murray went to the front desk to make another appointment with Dr. Rodriguez. After she made the appointment, Agent Murray was handed two hand-written prescriptions, in the name of "Lisa Caterra," for 120 tablets of 30-milligram Roxicodone and 60 tablets of 2-milligram Xanax.
She also was given two preprinted prescriptions, in the name of "Lisa Caterra," for 160 tablets of 500 milligram Naproxen and 12 tablets of four-milligram Decadron.
During her appointment with Dr. Rodriguez on January 31, 2008, Dr. Rodriguez did not perform a physical
examination; did not do a blood or urine toxicology; did not ask Agent Murray for a complete medical history; did not formulate a treatment plan; did not require Agent Murray to sign a contract regarding the prescription of controlled substances; and did not
give Agent Murray any instructions or information on the drugs he had prescribed for her.
Agent Murray also had appointments with Dr. Rodriguez on March 4, 2008, April 4, 2008, and May 7, 2008.
When she arrived at Dr. Rodriguez's office for her March 4, 2008, appointment, Agent Murray paid $125.00 in cash to a person at the front desk. She was then taken to an examination room where she waited for Dr. Rodriguez. When
Dr. Rodriguez entered the examination room where Agent Murray was waiting, he was carrying a stack of folders and what appeared to be three stacks of prescription pads. Dr. Rodriguez asked how he could help her, and Agent Murray stated that she was there for her refills.
Agent Murray observed Dr. Rodriguez write the name "Lisa Caterra" on the top prescription of each of the three stacks, and, after asking her if she wanted Roxicodone, Xanax, and Methadone, he handed her prescriptions for 120 tablets of 30-milligram Roxicodone, 120 tablets of 10-milligram Methadone, and 120 tablets of two-milligram Xanax. The hand-written prescription forms had already been completed except for the patient's name.
The prescription form for Methadone included a notation: "DX: wean OFF Roxicodone." Dr. Rodriguez did not discuss the prescription for methadone with Agent Murray, nor
was there any discussion about his reasons for not prescribing Naproxen or Decadron at the March 4, 2008, appointment.
Dr. Rodriguez spent approximately one minute with Agent Murray during the March 4, 2008, appointment. He did not discuss a plan of treatment with Agent Murray, and he did not conduct a physical examination, ask any questions regarding her alleged pain, or conduct a urine or blood toxicology.
There are only two items in Dr. Rodriguez's medical records related to Agent Murray's March 4, 2008, appointment. One item was a form that included the name "Lisa Caterra," and notations for blood pressure, temperature, pulse rate, height, and weight. The form included a checklist headed "Physical Exam," but the checklist was blank. The only other notations on the form were what appear to be abbreviations for the prescriptions that Dr. Rodriguez wrote for Agent Murray on March 4, 2008.
The other item in Dr. Rodriguez's medical records related to Agent Murray's March 4, 2008, appointment was a form headed "Children Plus Health Group, P.A. The name "Lisa Caterra" was written at the top of the form, which included three identical tables with checklists under columns headed "Patient's Condition," Affected Region," and "Treatment."
Blanks for the patient's signature and the date were below each of the three tables on the form. The table dated March 4, 2008,
contained Agent Murray's signature for "Lisa Caterra," but none of the blanks on the checklists were marked.
Agent Murray's appointments with Dr. Rodriguez on April 4, 2008, and on May 7, 2008, lasted approximately one minute, and Agent Murray paid cash at the front desk prior to being taken to the examination room. Dr. Rodriguez entered the examination room on each occasion, confirmed that Agent Murray's name was "Lisa"; confirmed that she wanted Roxicodone, Methadone, and Xanax; wrote "Lisa Caterra" at the top of each of three prescriptions that had been filled out prior to
Dr. Rodriguez's coming into the examination room, and handed the prescriptions to Agent Murray. The drugs, dosage, and quantities on the three prescriptions were identical to the drugs, dosage and quantities on the prescriptions Dr. Rodriguez wrote for "Lisa Caterra" on March 4, 2008: 120 tablets of 30- milligram Roxicodone, 120 tablets of 10-milligram Methadone, and
120 tablets of two-milligram Xanax.
The only items included in Dr. Rodriguez's medical records related to Agent Murray's April 4, 2008, and May 7, 2008, appointments consisted of the form that contained the checklist for a physical examination and the form that included the tables to record the patient's condition, the affected region, and the treatment.
The form that included a checklist headed "Physical Exam" dated April 4, 2008, included the name "Lisa Caterra," and notations for blood pressure, temperature, pulse rate, height, and weight. The "Physical Exam" checklist was blank, and the only other notations on the form were what appear to be abbreviations for the prescriptions that Dr. Rodriguez wrote for Agent Murray on April 4, 2008. The form dated May 7, 2008, was completely blank.
The form headed "Children Plus Health Group, P.A., which included the three tables to record the patient's condition, the affected region, and the treatment, contained check marks in the blanks in the column for "Patient's Condition" beside "Difficulty Sleeping" and "Patient cont. c/o pain" on the table dated April 4, 2008. The signature of "Lisa Caterra" was below the table, next to the date. The table dated May 7, 2008, was blank, except for the signature of "Lisa Caterra" and the date.
The only other item in the medical records maintained by Dr. Rodriguez for "Lisa Caterra" was a sheet of paper that was blank except for the name "Lisa Caterra" and the date of birth Agent Murray wrote on the patient information form. This document was apparently intended to include notes of
Dr. Rodriguez's diagnostic descriptions.
After her first appointment on January 31, 2008,
Dr. Rodriguez did not ask Agent Murray if she was in pain, and he did not, at any of the four appointments, conduct a physical examination, obtain a medical history, order any tests, or formulate a treatment plan.
Roxicodone, which is a the name of a brand of the generic drug oxycodone; Xanax, which is also known as alprazolam; and Methadone are controlled substances listed in Section 893.03, Florida Statutes. This combination of drugs is potentially lethal, and there is no legitimate medical basis for prescribing this combination of drugs in the quantities and the dosages prescribed by Dr. Rodriguez for "Lisa Caterra." Roxicodone is an opioid analgesic and Xanax is a sedative hypnotic benzodiazepine drug; the combination of these drugs could cause respiratory depression and possibly death, and the addition of Methadone makes the combination of drugs extremely dangerous.
Dr. Rodriguez's relationship with Agent Murray, in her undercover role as "Lisa Caterra," consisted solely of his writing prescriptions for controlled substances. The combination of drugs and the dosages and quantities of the drugs were potentially lethal. Under these circumstances,
Dr. Rodriguez was not prescribing these medications in the course of his professional practice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2010).
In its five-count Administrative Complaint, the Department charged Dr. Rodriguez with violations of
Section 458.331(1)(m), (q), (t), and (nn), Florida Statutes; Section 456.072(1)(ff), Florida Statutes (2003-2006); and Florida Administrative Code Rule 64B8-9.013(3).
Section 458.331(1), Florida Statutes, authorized the Board to impose penalties ranging from the issuance of a letter of concern to revocation of a physician's license to practice medicine in Florida and/or the imposition of an administrative fine if a physician commits one or more acts specified therein. Section 458.331(1), Florida Statutes, provided that the following acts pertinent to this proceeding constituted grounds for disciplinary action by the Board:
(m) Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify 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, inappropriately 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 or her intent.
* * *
t) Notwithstanding s. 456.072(2) but as specified in s. 456.50(2):
Committing medical malpractice as defined in s. 456.50. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph.
Medical malpractice shall not be construed to require more than one instance, event, or act.
Committing gross medical malpractice.
Committing repeated medical malpractice as defined in s. 456.50. A person found by the board to have committed repeated medical malpractice based on s. 456.50 may not be licensed or continue to be licensed by this state to provide health care services as a medical doctor in this state.
Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. A recommended order by an administrative law judge or a final order of the board finding a violation under this paragraph shall specify whether the licensee was found to have committed "gross medical malpractice," "repeated medical malpractice," or "medical malpractice," or any combination thereof, and any publication by the board must so specify.
* * *
(nn) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
34. Section 456.072(2), Florida Statutes (2003-2006), provided that disciplinary action, including suspension, revocation, and/or imposition of an administrative fine, may be taken for the acts specified in subsection (1) of that statute. Section 456.072(1), Florida Statutes (2003-2006),6 provided that the following is an act for which discipline was to be imposed:
(ff) Engaging in a pattern of practice when prescribing medicinal drugs or controlled substances which demonstrates a lack of reasonable skill or safety to patients, a violation of any provision of this chapter, a violation of the applicable practice act, or a violation of any rules adopted pursuant to this chapter or the applicable practice act of the prescribing practitioner.
Notwithstanding s. 456.073(13), the department may initiate an investigation and establish such a pattern from billing records, data, or any other information obtained by the department.
Florida Administrative Code Rule 64B8-9.013(3), which is titled "Standards for the Use of Controlled Substances for the Treatment of Pain, provides:
Standards. The Board has adopted the following standards for the use of controlled substances for pain control:
Evaluation of the Patient. A complete medical history and physical examination must be conducted and documented in the medical record. The medical record should document the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse. The medical record also should document the presence of one or more recognized medical indications for the use of a controlled substance.
Treatment Plan. The written treatment plan should state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and should indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician should adjust drug therapy to the individual medical needs of each patient. Other treatment modalities or a rehabilitation program may be necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment.
Informed Consent and Agreement for Treatment. The physician should discuss the risks and benefits of the use of controlled substances with the patient, persons designated by the patient, or with the patient’s surrogate or guardian if the patient is incompetent. The patient should
receive prescriptions from one physician and one pharmacy where possible. If the patient is determined to be at high risk for medication abuse or have a history of substance abuse, the physician should employ the use of a written agreement between physician and patient outlining patient responsibilities, including, but not limited to:
Urine/serum medication levels screening when requested;
Number and frequency of all prescription refills; and
Reasons for which drug therapy may be discontinued (i.e., violation of agreement).
Periodic Review. At reasonable intervals based on the individual circumstances of the patient, the physician should review the course of treatment and any new information about the etiology of the pain. Continuation or modification of therapy should depend on the physician’s evaluation of the patient’s progress. If treatment goals are not being achieved, despite medication adjustments, the physician should reevaluate the appropriateness of continued treatment. The physician should monitor patient compliance in medication usage and related treatment plans.
Consultation. The physician should be willing to refer the patient as necessary for additional evaluation and treatment in order to achieve treatment objectives. Special attention should be given to those pain patients who are at risk for misusing their medications and those whose living arrangements pose a risk for medication misuse or diversion. The management of pain in patients with a history of substance abuse or with a comorbid psychiatric disorder requires extra care, monitoring,
and documentation, and may require consultation with or referral to an expert in the management of such patients.
Medical Records. The physician is required to keep accurate and complete records to include, but not be limited to:
The medical history and physical examination, including history of drug abuse or dependence, as appropriate;
Diagnostic, therapeutic, and laboratory results;
Evaluations and consultations;
Treatment objectives;
Discussion of risks and benefits;
Treatments;
Medications (including date, type, dosage, and quantity prescribed);
Instructions and agreements; and
Periodic reviews. Records must remain current and be maintained in an accessible manner and readily available for review.
Compliance with Controlled Substances Laws and Regulations. To prescribe, dispense, or administer controlled substances, the physician must be licensed in the state and comply with applicable federal and state regulations. Physicians are referred to the Physicians Manual: An Informational Outline of the Controlled Substances Act of 1970, published by the
U.S. Drug Enforcement Agency, for specific rules governing controlled substances as well as applicable state regulations.
The Department seeks to impose penalties against Dr. Rodriguez that include suspension or revocation of his license and/or the imposition of an administrative fine.
Therefore, the Department has the burden of proving the violations alleged in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance,
Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Pou v. Department of Insurance and
Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes (2009)("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").
"Clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of Agriculture and
Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA
1989), as follows:
. . . [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the
allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re Davey, 645 So. 2d 398 (Fla. 1994); and Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).
Based on the findings of fact herein, the Department has met its burden of proving by clear and convincing evidence that:
Dr. Rodriguez violated Section 458.331(1)(nn), Florida Statutes, because he failed in all respects to meet the standards for the use of controlled substances for pain control adopted by the Board in Florida Administrative Code Rule 64B8- 9.013(3), and he is, therefore, guilty of the volation alleged in Count One of the Administrative Complaint.
Dr. Rodriguez violated Section 458.331(1)(m), Florida Statutes, because the medical records relating to "Lisa Caterra" are virtually non-existent, and he is, therefore, guilty of the violation alleged in Count Three of the Administrative Complaint.
Dr. Rodriguez violated Section 458.331(1)(q), Florida Statutes, because he prescribed controlled substances for "Lisa Caterra" inappropriately, without having any legitimate medical reason for doing so, in a potentially lethal combination, and in
excessive dosages and quantities; he is, therefore, guilty of the violation alleged in Count Four of the Administrative Complaint.
Dr. Rodriguez violated Section 456.072(1)(ff), Florida Statutes (2003-2006), because he prescribed drugs in a combination, dosage, and quantity that was potentially lethal, and he, is, therefore, guilty of the violation alleged in Count Five of the Administrative Complaint.
The Department failed to prove that Dr. Rodriguez violated Section 458.331(1)(t), Florida Statutes, because the facts found herein establish clearly and convincingly that
Dr. Rodriguez was not acting within his professional practice as a physician when he prescribed Roxicodone, Methadone, and Xanax to "Lisa Caterra." In accordance with the definition of "medical malpractice" in Section 456.50(1)(g), Florida Statutes, a finding that a physician committed malpractice necessarily means that the physician was practicing medicine when the act of alleged malpractice occurred: "'Medical malpractice' means the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure." Dr. Rodriguez is, therefore, not guilty of the violation alleged in Count Two of the Administrative Complaint.
Florida Administrative Code Rule 64B8-8.001(2) sets forth the penalty guidelines adopted by the Board and provides the recommended range of penalties, as follows:
The recommended range of penalties for a violation of Section 458.331(1)(nn), Florida Statutes, is "from a reprimand,
50 to 200 hours of community service, to revocation or denial and an administrative fine from $1,000.00 to $10,000.00." Fla. Admin. Code R. 64B8-8.001(2)(nn).
The recommended range of penalties for a violation of Section 458.331(1)(m), Florida Statutes, is "a reprimand to denial or two (2) years suspension followed by probation, 50 to
100 hours of community service, and an administrative fine from
$1,000.00 to $10,000.00." Fla. Admin. Code R. 64B8-8.001(2)(m).
The recommended range of penalties for a violation of Section 458.331(1)(q), Florida Statutes, is "from one (1) year probation to revocation or denial and 50 to 100 hours of community service; and an administrative fine from $1,000.00 to
$10,000.00." Fla. Admin. Code R. 64B8-8.001(2)(q).
The recommended range of penalties for a violation of Section 456.072(1)(gg), Florida Statutes, formerly
Section 456.072(1)(ff), Florida Statutes (2003-2006), is "from one (1) year probation to revocation or denial and 50 to
100 hours of community service; and an administrative fine from
$1,000.00 to $10,000.00." Fla. Admin. Code R. 64B8- 8.001(2)(vv).
Based on the penalty ranges set forth above for the statutory violations Dr. Rodriguez is guilty of having committed, it is recommended that revocation of his license to practice medicine in Florida and a $10,000.00 fine be imposed for the violation of Section 458.331(1)(nn), Florida Statutes, and Florida Administrative Code Rule 64B8-9.013(3); that a
$10,000.00 fine be imposed for the violation of
Section 458.331(1)(m), Florida Statutes; that revocation and a
$10,000.00 fine be imposed for the violation of
Section 458.331(1)(q), Florida Statutes; and that revocation and a $10,000.00 fine be imposed for the violation of
Section 456.072(1)(ff), Florida Statutes (2003-2006).
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order revoking the license of Sergio Rodriguez, M.D., to practice medicine in the State of Florida, and imposing an administrative fine in the amount of $40,000.00.
DONE AND ENTERED this 29th day of September, 2010, in Tallahassee, Leon County, Florida.
S
PATRICIA M. HART
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 29th day of September, 2010.
ENDNOTES
1/ All references herein to the Florida Statutes are to the 2007 edition unless indicated otherwise.
2/ It is noted that, at the time of the final hearing,
Dr. Rodriguez was incarcerated in the Palm Beach County Jail.
3/ Dr. Rodriguez maintained throughout the final hearing that he was represented by counsel. It is noted that no notice of appearance had been filed with the Division of Administrative Hearings by an attorney claiming to represent Dr. Rodriguez prior to the final hearing, nor did the name of an attorney appear on Dr. Rodriguez's request for hearing or, indeed, anywhere in the pleadings filed in this case.
4/ Transcript at page 29,
5/ Transcript at page 29.
6/ In the 2006 version of the Florida Statutes, this provision was renumbered as Section 456.072(1)(gg), Florida Statutes (2006). The version of Section 456.072(1)(ff), Florida Statutes, in effect in 2007, which is the version of the Florida
Statutes applicable to Dr. Rodriguez's conduct in January 2008 through May 2008, provided: "With respect to making a personal injury protection claim as required by s. 627.736, intentionally submitting a claim, statement, or bill for payment of services that were not rendered." Notwithstanding the erroneous identification of this statute in Count Five of the Administrative Complaint, the Department adequately apprised
Dr. Rodriguez of the charge against him because the version of the Florida Statutes cited in Count Five was the version in effect between 2003 and 2006. Cf. Marcellin v. Department of Bus. & Prof'l Regulation, 753 So. 2d 745 (Fla. 3d DCA 2000)(court struck statutory violations found by administrative law judge because they were not alleged in administrative complaint).
COPIES FURNISHED:
Robert Anthonie Milne, Esquire Department of Health
Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399
Sergio Rodriguez, M.D.
c/o Palm Beach County Jail 3228 Gun Club Road
West Palm Beach, Florida 33406
Dr. Ana M. Viamonte Ros, Secretary State Surgeon General
Department of Health
4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399 1701
Josefina M. Tamayo, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399 1701
Larry McPherson, Executive Director Board of Medicine
Department of Health
4052 Bald Cypress Way, Bin C03 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.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 10, 2011 | Agency Final Order | |
| Sep. 29, 2010 | Recommended Order | Doctor prescribed controlled substances in lethal combination & excessive quantities. No medical basis for prescribing meds; medical records insufficient to justify prescriptions or meet standards for controlled substances. Revocation and $40,000 fine. |
DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC vs LESLIE PACHTER, D.C., 10-001835PL (2010)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JEROME F. WATERS, M.D., 10-001835PL (2010)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ANGEL M. GARCIA, M.D., 10-001835PL (2010)
BOARD OF MEDICAL EXAMINERS vs. TARIQUE HUSSAM ABDULLAH, 10-001835PL (2010)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs DONALD A. TOBKIN, M.D., 10-001835PL (2010)
