STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. )

) CHRISTOPHER CONAVAY, M.D., )

)

Respondent. )

Case No. 10-3396PL

)

RECOMMENDED ORDER

A formal administrative hearing in this case was held on August 30, 2010, in Tallahassee, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Anthonie Milne, Esquire

Yolanda Green, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in this case are whether the allegations of the Administrative Complaint, as amended, are correct, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed July 27, 2009, the Department of Health, Board of Medicine (Petitioner), alleged that Christopher Conavay, M.D. (Respondent), prescribed medications in violation of a Voluntary Agreement to Withdraw from Practice previously executed by the Respondent to resolve a separate disciplinary action. The Administrative Complaint asserted that, by issuing the prescriptions, the Respondent violated Subsections 458.331(1)(g), 458.331(1)(q), and 458.331(1)(nn), Florida Statutes (2008).

The Respondent disputed the allegations and requested a formal administrative hearing. By letter dated June 22, 2010, the Petitioner forwarded the matter to the Division of Administrative Hearings. The hearing was initially scheduled to commence on August 30, 2010. The instant case was subsequently consolidated with DOAH Case No. 10-5304PL, and the hearing was scheduled for August 30 and 31, 2010. On August 20, 2010, the consolidated cases were severed upon a motion filed by the Petitioner, and the hearing was rescheduled for August 30, 2010. The case was transferred to the undersigned Administrative Law Judge on August 23, 2010.

At the hearing, the Petitioner presented the testimony of one witness (by deposition admitted as an exhibit) and had Exhibits numbered 1 through 5 and 7 admitted into evidence. A

Motion to Amend the Administrative Complaint to conform to the evidence was granted at the hearing. The Respondent did not appear for the hearing and was otherwise unrepresented.

The Transcript of the hearing was filed on September 9, 2010. The Petitioner filed a Proposed Recommended Order that has been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was a physician licensed by the State of Florida, holding license number ME42102.

2. Through a Voluntary Agreement to Withdraw from Practice dated January 28, 2009, in DOH Case No. 2008-23001, the Respondent agreed to withdraw from medical practice in the State of Florida in order to avoid having his license restricted or suspended.

3. On May 15, 2009, the Petitioner received a complaint from a pharmacy manager in Orlando, Florida, who reported that the Respondent had been writing prescriptions for controlled substances despite the withdrawal from practice.

4. The evidence establishes that subsequent to executing the agreement to withdraw from practice, at various times and to various patients, the Respondent issued multiple prescriptions for Oxycodone, Dilaudid (Hydromorphine) HCL, D-amphetamin salt,

   
   

   Xanax (Alprazolam), Lortab (Hydrocodone), Hydromorphone, Adderall, Testosterone, and Promethazine with Codeine.

5. The medications identified herein are all controlled substances identified in the drug "schedules" set forth in Florida Statutes and may be dispensed only upon a valid prescription issued by an authorized medical practitioner.

6. At the times the Respondent issued the prescriptions, he was not properly authorized to practice medicine.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010).

8. The Respondent is the state agency charged with regulating the practice of medicine. § 20.43 and Chapters 456 and 458, Fla. Stat. (2010).

9. The Petitioner has the burden of proving by clear and convincing evidence the allegations set forth in the Administrative Complaint against the Respondent. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has been met.

10. The Administrative Complaint charged the Respondent with violations of Subsection 458.331(1), Florida Statutes (2008), which provides, in relevant part, as follows:

    
    

    1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

       
       

       * * *

       
       

       (g) Failing to perform any statutory or legal obligation placed upon a licensed physician.

       
       

       * * *

       
       

       (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.

       
       

       * * *

       
       

       (nn) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.

       
       

11. The Petitioner alleged that the Respondent violated Subsection 458.331(1)(nn), Florida Statutes (2008), by violating Subsection 456.072(1)(k), Florida Statutes (2008), which provides as follows:

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

       
       

       * * *

       
       

       (k) Failing to perform any statutory or legal obligation placed upon a licensee.

       For purposes of this section, failing to repay a student loan issued or guaranteed by the state or the Federal Government in accordance with the terms of the loan or failing to comply with service scholarship obligations shall be considered a failure to perform a statutory or legal obligation, and the minimum disciplinary action imposed shall be a suspension of the license until new payment terms are agreed upon or the scholarship obligation is resumed, followed by probation for the duration of the student loan or remaining scholarship obligation period, and a fine equal to 10 percent of the defaulted loan amount. Fines collected shall be deposited into the Medical Quality Assurance Trust Fund.

       
       

12. Count I of the Administrative Complaint alleged that the Respondent violated Subsection 458.331(1)(nn), Florida Statutes (2008), by violating Subsection 456.072(1)(k), Florida Statutes (2008). The Voluntary Agreement to Withdraw from Practice was a legal obligation under which the Respondent agreed to withdraw from medical practice in lieu of having his medical license restricted or suspended. By issuing prescriptions for controlled substances after agreeing to withdraw from the practice of medicine, the Respondent failed to perform a legal obligation and thereby violated

    Subsection 458.331(1)(nn), Florida Statutes (2008).

    
    

13. Count II of the Administrative Complaint alleged that the Respondent violated Subsection 458.331(1)(q), Florida Statutes (2008), by issuing the prescriptions referenced herein.

    
    

    By issuing prescriptions for controlled substances in violation of his legal obligation to withdraw from the practice of medicine, the Respondent prescribed medications other than in the course of his professional practice and thereby violated Subsection 458.331(1)(q), Florida Statutes (2008).

14. Count III of the Administrative Complaint alleged that the Respondent violated Subsection 458.331(1)(g), Florida Statutes (2008), by failing to perform a legal obligation, essentially identical to the legal basis underlying Count I.

15. Florida Administrative Code Rule 64B8-8.001 sets forth the disciplinary guidelines applicable to the statutory violations relevant to this proceeding.

16. Florida Administrative Code Rule 64B8-8.001(2)(g) provides that the penalty for a first offense of the failure to perform a legal obligation, "based upon the severity of the offense and the potential for patient harm," ranges from a letter of concern to revocation or denial, 100 hours of community service, and an administrative fine from $1,000.00 to

    $10,000.00, "unless otherwise provided by law."

    
    

17. Florida Administrative Code Rule 64B8-8.001(2)(q) provides that the penalty for a first offense of

    Subsection 458.331(1)(q), Florida Statutes (2008), ranges from a one-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

18. Florida Administrative Code Rule 64B8-8.001(2)(nn) provides that the penalty range for a first violation of "Chapters 458, 456, F.S., or any rules adopted pursuant thereto" includes a reprimand, 50 to 200 hours of community service, revocation or denial, and an administrative fine from $1,000.00 to $10,000.00.

19. Florida Administrative Code Rule 64B8-8.001(3) provides as follows:

    1. Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:

       
       

       1. Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;

          
          

       2. Legal status at the time of the offense: no restraints, or legal constraints;

          
          

       3. The number of counts or separate offenses established;

          
          

       4. The number of times the same offense or offenses have previously been committed by the licensee or applicant;

          
          

       5. The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;

          
          

       6. Pecuniary benefit or self-gain inuring to the applicant or licensee;

          
          

       7. The involvement in any violation of Section 458.331, F.S., of the provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure.

          
          

       8. Where a licensee has been charged with violating the standard of care pursuant to Section 458.331(1)(t), F.S., but the licensee, who is also the records owner pursuant to Section 456.057(1), F.S., fails to keep and/or produce the medical records.

          
          

       9. Any other relevant mitigating factors. (Emphasis supplied)

    
    

20. The Respondent was the subject of a prior disciplinary action that resulted in his voluntary agreement to withdraw from the practice of medicine in lieu of license restrictions or suspension. Continuing to issue prescriptions for potentially harmful controlled substances after voluntarily agreeing to withdraw from the practice of medicine to resolve the prior disciplinary case has been considered an aggravating factor.

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 finding Christopher Conavay, M.D., in violation of Subsections 458.331(1)(g), 458.331(1)(g),

and 458.331(1)(nn), Florida Statutes (2008), and revoking his license as a medical doctor.

DONE AND ENTERED this 11th day of October, 2010, in Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2010.

COPIES FURNISHED:

Robert Anthonie Milne, Esquire Yolanda Green, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

Christopher Conavay, M.D. 9240 Valencia Palms Drive Orlando, Florida 32825

Christopher Conavay, M.D. 2304 Aloma Avenue, Suite 201 Winter Park, Florida 33076

E. Renee Alsobrook, Acting General Counsel Department of Health

4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701

Larry McPherson, Jr., JD, Executive Director Board of Medicine

Department of Health 4052 Bald Cypress Way

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: 10-003396PL

Orders for Case No: 10-003396PL