STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF MEDICINE,
Petitioner,
vs.
WILLIAM T. MCKENZIE, M.D.,
Respondent.
/
Case No. 17-3266PL
RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in this case on January 11, 12, and 25, 2018, in Panama City, Florida, before Garnett W. Chisenhall, a duly designated Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).
APPEARANCES
For Petitioner: Chad Wayne Dunn, Esquire
Ross Daniel Vickers, Esquire Department of Health Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399
For Respondent: Mark S. Thomas, Esquire
Thomas Health Law Group, P.A. Suite 101-B
5200 Southwest 91st Terrace Gainesville, Florida 32608
STATEMENT OF THE ISSUE
Whether disciplinary action should be taken against Respondent’s license to practice as a medical doctor based on
allegations that he violated sections 458.331(1)(t), (m), and (q), Florida Statutes (2008-2010), as alleged in Petitioner’s Amended Administrative Complaint.
PRELIMINARY STATEMENT
On February 24, 2014, the Department of Health (“the Department”) filed a nine-count Administrative Complaint against Respondent, William T. McKenzie, M.D. (“Dr. McKenzie”). On
May 12, 2017, the Department filed an Amended Administrative Complaint charging Dr. McKenzie with three counts of violating section 458.331(1)(t), by committing medical malpractice; three counts of violating section 458.331(1)(q), by prescribing controlled substances inappropriately or excessively; and three counts of violating section 458.331(1)(m), by failing to keep adequate, legible medical records. The Department’s Amended Administrative Complaint contained one count of each of the foregoing violations for three patients: A.W., K.D., and R.W.
On June 2, 2017, Dr. McKenzie filed an Election of Rights disputing allegations of material fact contained in the Department’s Amended Administrative Complaint and requesting a formal hearing. On June 6, 2017, the Department forwarded the case to DOAH for assignment to an Administrative Law Judge. By notice issued June 20, 2017, the case was scheduled for hearing on July 19 and 20, 2017. The hearing was continued three times, once by joint request and twice at Dr. McKenzie’s request, and
rescheduled for January 11, 12, and 25, 2018, at which time the hearing was commenced and concluded.
At the outset of the final hearing, the undersigned granted the Department’s Motion for Official Recognition of multiple versions of Florida Administrative Code Rule 64BB-8.001.
During the course of the final hearing, the undersigned denied the Department’s Motion in Limine filed on January 5, 2018.
The Department presented the testimony of Martha McBride, A.W., R.W., Dr. Francisco Calimano, and Kristen Cortes. The Department also presented the depositions of K.D.; Summer Hobson; and Gayla Rittman, RPh, in lieu of live testimony.
The undersigned accepted the Department’s Exhibits 1 through 11, 14 through 16, 18, 19, and 22 into evidence without objection.
Dr. McKenzie testified on his own behalf and presented the testimony of Dr. David Goldstein, Dr. Timothy Moriarty,
Dr. Brian Kradel, Kristy Caldwell, and Christen Tubbs.
The undersigned accepted Dr. McKenzie’s Exhibits 1, 10, and 11 into evidence without objection. Over an objection from the Department, the undersigned accepted the deposition transcripts of Dr. Timothy Moriarty and Dr. Brian Kradel into evidence as Dr. McKenzie’s Exhibits 3 and 4, respectively.
However, the undersigned announced during the final hearing that
the live testimony from Dr. Moriarty and Dr. Kradel would be afforded much more weight than their deposition testimony.
On the last day of the final hearing, the undersigned accepted the deposition transcripts of A.W. and R.W. into evidence over the Department’s objection. However, the undersigned stated that the Department could file a written pleading after the conclusion of the final hearing explaining why that decision should be reconsidered. After considering the post-hearing pleadings filed by both parties, the undersigned has elected to exclude the deposition transcripts of A.W.
and R.W. from evidence. In doing so, the undersigned notes that Dr. McKenzie was offering the transcripts in order to demonstrate that A.W. and R.W. are unreliable witnesses.
Because the undersigned was able to make that finding based on
and R.W.’s live testimony, the transcripts are redundant.
The complete Transcript of the final hearing was filed with DOAH on February 26, 2018. The record was left open for the Department to take the deposition of Gayla Rittman, RPh, and Ms. Rittman’s deposition was filed on March 6, 2018.
The parties filed timely Proposed Recommended Orders that were considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The following Findings of Fact are based on the testimony presented at the final hearing, exhibits accepted into evidence,
admitted facts set forth in the pre-hearing stipulation, and matters officially recognized.
The Parties and the Origin of This Litigation
The Department is the state agency charged with regulating the practice of medicine pursuant to chapter 456, Florida Statutes (2006-2017).
At all times relevant to the instant case, Dr. McKenzie was a Florida-licensed physician having been issued license
ME 93485.
Dr. McKenzie is also licensed to practice medicine in Alabama.
Dr. McKenzie is board-certified in internal medicine with sub-specialties in pulmonary disease and sleep medicine.
Dr. McKenzie earned his medical degree at the University of South Alabama (“USA”) in May of 2000.
Over the next three years, Dr. McKenzie completed an internship and a residency in Internal Medicine at USA.
By June of 2005, Dr. McKenzie had left USA after completing a fellowship in “Pulmonary & Sleep Medicine, Critical Care.”
Dr. Victor Ortega has a medical practice in Panama City, Florida, known as Pulmonary Associates, and Dr. McKenzie began working for Dr. Ortega on approximately July 1, 2005.
Dr. McKenzie had no ownership interest in Pulmonary Associates. He was an employee of Dr. Ortega. Therefore, Dr. Ortega owned the medical records for the patients
Dr. McKenzie treated at Pulmonary Associates.
Dr. McKenzie worked at Pulmonary Associates until July of 2006, and the separation was acrimonious.
Dr. McKenzie elected to leave Pulmonary Associates after learning that the compensation system instituted by Dr. Ortega unfairly enriched him at the expense of his associates.1/
Dr. McKenzie began practicing at Bay Clinic, Inc. (“Bay Clinic”), in Panama City in July 2006, and continued there through May 2009.
At Bay Clinic, Dr. McKenzie shared office space and administrative expenses with Dr. Jesus Ramirez.
Dr. McKenzie had no ownership interest in Bay Clinic.
The record is unclear as to whether Dr. McKenzie had an employment contract with Bay Clinic.
In May of 2009, Dr. McKenzie opened his own practice at The Lung and Sleep Center in Panama City.
Dr. McKenzie owns The Lung and Sleep Center, and he owns the medical records for the patients he treats there.
In addition to his practice at The Lung and Sleep Center, Dr. McKenzie is a staff physician at Bay Medical Center, Select Specialty Hospital, and Health South in Panama City.
Since August of 2015, Dr. McKenzie has been a clinical instructor for the nurse practitioner program at USA.
Because Dr. McKenzie has been practicing in close proximity to Pulmonary Associates, Dr. Ortega sued Dr. McKenzie in 2011 in order to enforce a non-compete agreement.2/
During the course of that litigation, Dr. Ortega’s attorney asked Dr. McKenzie during a deposition whether he had ever treated a current or former employee with narcotic medications at Pulmonary Associates. Because Dr. McKenzie had rendered such treatment to K.D., he responded affirmatively.
On January 28, 2011, Dr. Ortega wrote the following letter to the Board of Medicine:
A deposition with Dr. McKenzie took place and is enclosed. Dr. McKenzie acknowledged under sworn statement that he had prescribed controlled substances for employees at Pulmonary Associates of Bay County. That person, of course, was [K.D.].
Dr. McKenzie’s attorney opposed any further questioning alleging privacy violations, etc. Since [K.D.] was our employee and he was under contract and under the privacy and umbrella of our corporation, that record keeping was by contract to be kept under our protection.
As I understand it, this is a criminal occurrence and violation of the prescription of controlled substances. I am forwarding all this to the law enforcement agency and
to the state with the hope that you will proceed accordingly with prosecution and stop this practice as soon as possible.
I recognize that the problem of illegal use, abuse, and prescription of controlled substances is a significant issue throughout the United States. This represents one more way in which drugs are being diverted from their legal and appropriate use. To this day I am certain that this illegal prescription practice continues with different individuals. The rapid check of prescriptions at the local pharmacies for controlled substances, particularly Lortab, Dilaudid, etc., by this physician will reveal a number of individuals which I am sure will not have corresponding medical record entries to justify the use of pain control medication by appropriate evaluation, diagnosis, and treatments as required by law.
(emphasis added).
Dr. Ortega ultimately identified A.W., R.W., and K.D. to the Department as patients who received inappropriate prescriptions from Dr. McKenzie. However, the Department and the Florida Department of Law Enforcement’s (“FDLE”) investigation began due to a confidential informant observing Dr. McKenzie disposing of pill bottles at a car wash.
FDLE investigated the matter, but limited resources led to FDLE referring the case to the Department for administrative action.
The Department’s allegations pertaining to A.W., R.W., and K.D. will be separately addressed below.
Was Dr. McKenzie’s Treatment of A.W. Below the Standard of Care?
A.W. has been a Florida-licensed nurse since April of 2007 and has worked at Bay Medical Center since 2005. She was in nursing school when her employment at Bay Medical Center began.
A.W. and Dr. McKenzie were co-workers at Bay Medical Center. While Dr. McKenzie was married and A.W. was engaged, they began a romantic relationship in 2005 that continued until 2006 or 2007.
When A.W. learned that Dr. McKenzie’s wife was pregnant, their relationship ended, and A.W. did not have any meaningful communication with Dr. McKenzie for the next year.
Even though she was already treating with a general medicine practitioner who she considered to be her primary care physician, A.W. began treating with Dr. McKenzie in approximately April of 2009 because she was experiencing “really severe headaches,” anxiety, and abdominal pain.
Dr. McKenzie prescribed Lortab, the brand name for an opioid pain medication consisting of acetaminophen and hydrocodone.
Under section 893.03(3), Florida Statutes (2008-2017), hydrocodone, in the dosages found in Lortab, is a Schedule III controlled substance.
From April of 2009 through October of 2010,
Dr. McKenzie prescribed 90 Lortab pills a month to A.W. A.W. was to take one pill every six hours as needed for pain.
When A.W. began treating with Dr. McKenzie, they resumed having a personal relationship. While A.W. describes their relationship at that time as being friendly rather than romantic, A.W. and Dr. McKenzie were having sex while
Dr. McKenzie was writing prescriptions for her.
A.W.’s first documented treatment with Dr. McKenzie at The Lung and Sleep Center occurred on July 22, 2009, and she presented with several issues.
For instance, A.W. was experiencing anxiety, and
Dr. McKenzie noted on the medical record that A.W. needed to see a psychiatrist.
A.W. was also experiencing pain from multiple sources.
Migraines were one source of pain, and Dr. McKenzie recommended continuing with Lortab and discussed obtaining a neurology consult.
A.W. also had abdominal pain, and Dr. McKenzie discussed obtaining a colonoscopy and consulting with a gastroenterologist.
In addition to migraines and abdominal pain, A.W. was experiencing pain from pleurisy.
Pleurisy is inflammation of the lining of the lungs, and its symptoms include chest and back pain. It is characterized by a sharp pain that worsens with deep breaths.
Pleurisy is treated with nonsteroidal anti-inflammatory drugs (“NSAIDs”) such as Motrin, Aleve, and ibuprofen. If NSAIDs have no effect, then, narcotics can be used.
A.W.’s next documented treatment at The Lung and Sleep Center occurred on December 9, 2009.
Dr. McKenzie noted in the medical record associated with that office visit that A.W. had gastroesophageal reflux disease, i.e., GERD.
In order to treat that condition, Dr. McKenzie prescribed over-the-counter Prilosec and advised A.W. to avoid NSAIDs because they can aggravate heartburn. If a patient cannot take NSAIDs, then Lortab is a reasonable alternative.
By the time of her next documented office visit at The Lung and Sleep Center on July 22, 2009, A.W. was still suffering from anxiety, abdominal pain, and pleurisy.
A.W. had neglected to obtain any of the consultations recommended by Dr. McKenzie.
Dr. McKenzie testified that it can be difficult to get patients to obtain consultations:
So a lot of times, it’s hard to get people to be compliant. Nobody wants to go and have scopes in both ends, but especially
when something flares up and goes away, because every time you see – it’s like taking your car to the mechanic, when you take it to the mechanic, it quits knocking. So a lot of these people come in, well, it’s not that bad. And they they go home and it will be bad. So a lot of times it’s hard to get them to be compliant with these.
Because the [esophagogastroduodenoscopy] and the colonoscopy, I don’t know if anybody has had one, but they can be unpleasant, at best.
Because A.W. is a nurse, Dr. McKenzie assumed that she would eventually obtain the consultations:
[O]ne thing about A.W. is she’s a nurse. And so you kind of put more weight, because a normal patient, when they say, well, I’m going to call psychiatry, or I’m going to get this down or this done, you know, then you may push them a little harder. But if you have a medical professional, when they tell you that, well, I’ll call this and I’ll do that, you kind of put more weight to
that. And so, you know, she did – you know, and she was told, and she said, well, I’ll call psychiatry. And then she would call – was going to call GI and she was going to call neurology. And she eventually did, of course.
When asked about prescribing narcotics for a year to a patient who was not obtaining the recommended consultations, Dr. McKenzie testified as follows:
So you give people the benefit of the doubt. And her symptoms would come and go. And then she said – like I said, she kept saying, well, I’m going to go see this person, see this person. She worked nights. She had a lot of compounding issues that would make it harder for her to follow up and be compliant.
Dr. McKenzie did not have an office visit with
A.W. every time that he wrote a prescription for her.
The next documented visit by A.W. to The Lung and Sleep Center occurred on December 9, 2009.
The medical record notes that A.W. continued to have stomach pain. As a result, she was to continue avoiding NSAIDs, and she was supposed to consult with a gastroenterologist.
A.W. was still suffering from pleurisy, anxiety, and migraines.
A.W.’s next documented treatment at The Lung and Sleep Center occurred on May 5, 2010. A.W. still had not obtained the consultations mentioned above, and Dr. McKenzie recognized that doing so would be difficult because A.W. was working nights.
A.W.’s last documented treatment at The Lung and Sleep Center occurred on October 11, 2010. She still had not obtained the consultations previously recommended by Dr. McKenzie.
Dr. McKenzie notified A.W. during this office visit that he would not prescribe any more pain medication until she obtained the psychiatry, neurology, and gastroenterology consultations they had discussed.
A.W. then treated with Dr. Mariusz J. Klin, a gastroenterologist, on November 24, 2010.
Dr. Klin performed an endoscopy on A.W. and discovered that she was suffering from “severe gastritis from NSAIDs and
a 2 centimeter hernia.”
Dr. McKenzie testified that severe gastritis is painful.
A lot of people call the ambulance, you know, they get all kinds of heart workup and all kinds of pulmonary workup and they did a lot of workup because of the severe pain.
And it’s episodic. You can have episodes where you won’t have any issues and then you’ll have flare-ups and have issues.
Dr. McKenzie testified that a hiatal hernia can be
painful:
It can be. A lot of times your – what causes a hiatal hernia is your stomach and your esophagus are above the diaphragm. And your esophagus fits into your diaphragm like a lock and key. And so if your esophagus is in the right place, it helps close off the stomach so the acid can’t come out. Well, when you have a hernia, it pulls the lock and key in the wrong direction to be optimal, so now the stomach acid can leak out and cause more of a problem.
Dr. Francisco Calimano, the Department’s expert witness, reviewed A.W.’s medical records and provided expert testimony on the Department’s behalf.
Dr. Calimano is licensed to practice medicine in Florida and is board-certified in internal medicine, pulmonary medicine, and critical care medicine.
Dr. Calimano testified that the amount of Lortab prescribed to A.W. by Dr. McKenzie was “excessive.”
However, Dr. Calimano’s objection was directed more toward the length of time that Dr. McKenzie prescribed 90 Lortab pills a month, rather than the monthly amount of Lortab prescribed.
Specifically, Dr. Calimano testified that he would do no more than a two to three month Lortab prescription for a patient with migraines, anxiety, and abdominal pain:
In my opinion, you know, in my professional opinion, you know, at least in the scope of practice that I have, which I am not a pain specialist, I wouldn’t go for this length of time prescribing this amount of narcotics.
I will feel uncomfortable doing that. So I think that I would refer to the pain management specialist. I would have been, you know, up to the point I said, you know, usually what I tell my patients is I give you a prescription, because you are having acute pain. I might give a second prescription if the pain is not resolved or so with the understanding that he needs to get that addressed. Before I give him that second prescription, I tell him I no longer will prescribe you these medications. And so before she runs out of that prescription, she knows in advance that it’s a no, the answer is no. That she needs to get some help, professional help. Because I think if not I would be doing a disfavor.
Dr. David Hart Goldstein provided expert testimony on Dr. McKenzie’s behalf.
Dr. Goldstein is licensed to practice medicine in Florida, and he practices internal, pulmonary, and hospital medicine at Sarasota Memorial Hospital.
In addition, Dr. Goldstein currently works as an Assistant Clinical Professor of Internal, Pulmonary, and Hospitalist Medicine at Florida State University’s School of Medicine.
Dr. Goldstein rendered a different opinion regarding Dr. McKenzie’s treatment of A.W. and the Lortab prescriptions:
Q: Does anything appear remarkable to you in terms of the dosage?
A: The dosages are on the high side. But when a patient has severe pain sometimes you need a higher dose. It seems that
Dr. McKenzie was managing this patient for a long period of time. There was no pain specialist involved at that time.
Q: From your review of the record, did it appear that patient A.W. had significant gastric distress?
A: Yes. In fact, it appears from the record and the note by Dr. Klin that she tried other methods to relieve the pain. The reasons I say that is his diagnosis was severe gastritis related to the use of NSAIDs. Meaning that she tried using things like Advil. So that caused the issue. So NSAIDs would be prohibited. And this would be consistent with a person who has, according to the record, significant headaches, abdominal pain, which was [caused] by gastritis and pleurisy.
Q: So from your review of the records, particularly Dr. Klin’s clinical records,
would it be appropriate if NSAIDs were not effective to step up to a Lortab prescription?
A: If that was the only way the patient’s pain could be managed, yes.
* * *
Q: So taking all of these records together, did you see anything clinically inappropriate as to either the medical care or the prescribing that Dr. McKenzie offered to patient A.W. during this timeframe?
A: The only thing is as I mentioned – I think I mentioned it in my deposition also. There are a lot of prescriptions for Lortab. The medical record documents that she has a lot of pain. I think there might have been better documentation of the fact that this was failing or this was working. So I am not that impressed with the documentation, but the record is consistent with symptoms that can be treated and are often treated with narcotics such as Percocet or Lortab.
Q: Dr. Goldstein, did you see anything that appeared to you to be a practice beneath the standard of care?
A: Just as I mentioned, I don’t think the records were great, but I don’t believe that’s a deviation of the standard of care. I just think that’s poor recordkeeping.
As for the length of time that Dr. McKenzie prescribed Lortab to A.W., Dr. Goldstein testified that, “I would not prescribe it for a year unless I was comfortable that this patient had made attempts to see a neurologist and had migraines and was not abusing this medication.”
Because A.W.’s gastric issues prevented her from taking NSAIDs, Dr. Goldstein opined that it was appropriate to treat A.W.’s headache pain, abdominal pain, and pleurisy with Lortab.
With regard to the fact that Dr. McKenzie wrote prescriptions for A.W. without a corresponding office visit, Dr. Calimano acknowledged that “you don’t absolutely need a face-to-face contact with the patient if you have established a diagnosis and you are sure of what you are treating and so on.”
Nevertheless, Dr. Calimano objected to Dr. McKenzie not doing more to treat the sources of A.W.’s pain, and the Department takes Dr. McKenzie to task because A.W.’s medical records do not set forth a treatment plan, objectives, etc.
However, A.W. was a difficult patient because she did not obtain the consultations requested by Dr. McKenzie until he threatened to discharge her as a patient. Such consultations would be an essential prerequisite to formulating an effective treatment plan for A.W. If A.W. had obtained those consultations when she had been directed to do so, then her illnesses might have resolved much sooner.
While Dr. McKenzie probably should have threatened to discharge A.W. sooner, he believed that A.W., as a medical professional, would eventually obtain the consultations, and he
recognized that A.W.’s night shift work made it difficult for her to obtain those consultations.
In sum, even Dr. Goldstein acknowledged that
Dr. McKenzie’s recordkeeping for A.W. could have been better. However, the evidence does not clearly and convincingly demonstrate that Dr. McKenzie’s treatment of A.W., under these particular circumstances, fell below the standard of care.3/
Did Dr. McKenzie Falsify A.W.’s Medical Records and Use Her to Illegally Obtain Lortab?
Contrary to the medical records described above,
A.W. asserts that she has never sought treatment at The Lung and Sleep Center. While she acknowledges visiting The Lung and Sleep Center, she asserts that she was only there as a friend of
Dr. McKenzie and to assist her father with obtaining treatment.4/
A.W. testified that Dr. McKenzie never determined the cause of her headaches, her anxiety, or her abdominal pain.
A.W. testified that Dr. McKenzie never performed a physical exam on her or discussed a treatment plan with her.
A.W. also denies that she received any treatment from Dr. McKenzie at Bay Clinic, but she acknowledges visiting him there as a friend.
As noted above, A.W.’s Lortab prescriptions enabled her to obtain 90 Lortab pills a month. As a result, she could take one pill every six hours.
A.W. testified that she could not tolerate taking that amount of Lortab. The medicine made her drowsy and upset her stomach. A.W. also testified that she never had to take four Lortab pills in a single day in order to control her pain.
After the first month of her treatment with
Dr. McKenzie, A.W. testified that she continued to fill the Lortab prescriptions but gave a large majority of the pills to Dr. McKenzie. A.W. testified that she kept a few pills for those times when she would experience severe headaches or abdominal pain, and one pill a day was enough to keep her pain under control.
As for why she gave large portions of her Lortab prescriptions to Dr. McKenzie, A.W. testified that she did so “[b]ecause he was my friend, and he had told me he was going through a lot, and he was embarrassed to go see a physician in town. He asked me if he wrote me a script could I give him some back or give it back to him.”
During the time in question, Dr. McKenzie was experiencing marital difficulties and opening his own practice.
A.W. testified that she would fill the Lortab prescriptions at a CVS Pharmacy in Panama City and then meet Dr. McKenzie in a parking lot so that she could give him the medication.
A.W. and Dr. McKenzie’s personal relationship ended again in 2011 when A.W. became pregnant.
At some point in 2011, A.W. was contacted by investigators from the Department and the Drug Enforcement Agency.
A.W. then alerted Dr. McKenzie to the aforementioned agencies’ investigation.
A.W. testified that she assisted Dr. McKenzie with fabricating medical records demonstrating that she had treated at The Lung and Sleep Center and that the Lortab prescriptions were medically necessary. She testified that she did so because
Dr. McKenzie was her friend and she wanted the investigation to “go away.” Moreover, A.W. testified that she was worried that she could be charged with impaired nursing.
When asked why she fabricated medical records,
A.W. testified as follows:
Because he was my friend and I didn’t want him to get in trouble for all of this, and I wanted it to be done with. I was worried about being a nurse and being a part of this. And I had been – the whole impaired nursing thing had been brought up, and I figured if I did this everything would just go away.
A.W. learned of the Administrative Complaint when Dr. McKenzie showed it to her during a 2014 visit to his apartment.
A.W. visited Dr. McKenzie’s apartment “quite a few times” and their last sexual encounter probably occurred in 2015.
Despite testifying that she and Dr. McKenzie had been friends, A.W. testified against Dr. McKenzie at the final hearing and claimed that she was doing so because she felt it was the right thing to do and did not “want this over [her] head anymore.”
Medical records from Dr. Klin and a Dr. Elzawahry memorialize treatment rendered to A.W. in October and November of 2010. However, those records, which were in the possession of The Lung and Sleep Center, bear a facsimile timestamp of March 1, 2011, and March 2, 2011. Those dates are four months after A.W.’s treatment dates.
Also, the facsimile timestamps are seven days after the Department served Dr. McKenzie with a subpoena for A.W.’s medical records.
While concerning, the facsimile timestamps do not conclusively demonstrate that Dr. McKenzie fabricated the records pertaining to A.W.’s treatment at The Lung and Sleep Center.
While the undersigned has doubts about Dr. McKenzie’s credibility, there are reasons to question A.W.’s credibility.
A.W. and Dr. McKenzie had a complicated relationship, and Dr. McKenzie is currently seeing another nurse employed at
Bay Medical Center. The undersigned cannot ignore the possibility that A.W. and Dr. McKenzie’s prior relationship did not end on good terms.
As noted above, Dr. Ortega brought A.W., R.W., and
K.D. to the Department’s attention. The January 28, 2011, letter from Dr. Ortega to the Board of Medicine is suspicious because Dr. Ortega confidently states (without stating the basis for his assertions) that there are other patients who have received illegal prescriptions from Dr. McKenzie.
Given the January 28, 2011, letter and the acrimony between them, one of Dr. McKenzie’s defenses to the Amended Administrative Complaint is that Dr. Ortega persuaded or coerced A.W., R.W., and K.D. to provide false testimony against him.
It is possible that Dr. Ortega could be in a position to exercise some sort of leverage over A.W. due to the fact that Dr. Ortega works as a pulmonary doctor at Bay Medical Center and
A.W. is a pulmonary nurse.
During the hearing, A.W. acknowledged that she is taking 14 medications such as Latuda for psychosis; Ativan for anxiety; Prozac for depression; Nuvigil for Attention Deficit Disorder (“ADD”) and narcolepsy; Adderall for ADD; Fioricet for migraines; Metoprobol for hypertension; Lamictal for bipolar disorder; Carafate to coat her stomach; Prilosec for indigestion,
gastric reflux, and gastritis; and Rispedal, a mood stabilizer associated with bipolar disorder.
The fact that A.W. is currently receiving treatment for psychosis and bipolar disorder does not cause the undersigned to discredit her testimony. However, the undersigned cannot ignore the fact that there was no testimony as to what extent (if any) the aforementioned conditions affected her during the time period relevant to the instant case.
In sum, there is evidence indicating that Dr. McKenzie used A.W. to obtain Lortab. Nevertheless, the evidence taken as a whole does not clearly and convincingly demonstrate that
Dr. McKenzie prescribed Lortab to A.W. outside the course of his professional practice.
Was Dr. McKenzie’s Treatment of R.W. Below the Standard of Care?
R.W. was a Florida-licensed respiratory therapist from approximately 2000 to 2012.
R.W. met Dr. McKenzie sometime between 2005 and 2006 when both of them were employed at Gulf Coast Medical Center.
Dr. McKenzie and R.W. often worked together.
While R.W. considered Dr. McKenzie to be a friend, they did not spend time together outside the hospital.
Since his first marriage ended in 1993, R.W. had been taking Ativan in order to alleviate anxiety resulting from his divorce.
Ativan is the brand name for Lorazepam and is prescribed for anxiety. According to section 893.03(4), Lorazepam is a Schedule IV controlled substance.
Approximately one year after meeting Dr. McKenzie,
R.W. inquired about becoming Dr. McKenzie’s patient. R.W. had become heavily dependent on Ativan and admits that he was engaging in “doctor shopping” in order to obtain more Ativan prescriptions.
Other doctors had declined to treat R.W. because they believed he was taking too much Ativan:
Q: So my question was about Dr. McKenzie and how did you begin treating as a patient with Dr. McKenzie.
A: I was taking large amounts of Ativan. After that many years, you build up a tolerance to it. I [did] what was called doctor shopping. I had asked a couple of other physicians if they would follow me for my Ativan. Because generally I am healthy. And I had become dependent on it and was taking pretty large amounts of it and approached him about that, if he would prescribe it for me.
Q: Did the other physicians you had asked to follow you begin following you and providing you with Ativan?
A: No.
Q: Why not?
A: They said I was taking an incredibly large dose of it. They didn’t think I should be on that much.
Q: Did they offer to take you as a patient and prescribe you alternatives?
A: No.
Q: They wouldn’t follow you altogether? A: They wouldn’t follow me altogether.
They wanted to know who had been prescribing
me that much. I guess it was because I wasn’t getting the answer I was wanting, I just didn’t pursue it any further.
Q: So what did you do to get it after that? A: I approached Dr. McKenzie.
Q: Was Dr. McKenzie aware that any other practitioners wouldn’t give it to you?
A: I don’t know. I don’t believe I made that – I don’t know.
Q: Do you recall how you approached Dr. McKenzie about the Ativan?
A: Yeah. We were at the hospital. I approached him. I said, look, I am on Ativan. Explained the reason I was on it. I am on large doses of it. I need someone to follow me for this, is that something you could do.
The first documented treatment occurred on November 2, 2007, when R.W. presented at Bay Clinic. A patient intake form indicates that R.W. placed notations on the form indicating that he was suffering from “anxiety/stress” and “problems with sleep.”
A follow-up note dated November 20, 2007, lists Ativan as R.W.’s current medication and states that he will continue with Ativan.
The note records the following:
The patient follows up today. He is complaining of chest pain. He states that he has had chest pain in the center of his chest which radiated into both arms for about 15 minutes. He has had no further episodes of this. The patient had a normal stress test last year. We will try to obtain the results. The patient does have a smoking history. Today we did an EKG which showed no significant abnormalities. The patient states that he has been under a lot of stress. He continues to take his Ativan. The patient is an avid kick boxer[5/] and exercises often. Lab work was obtained.
The patient knows to seek immediate medical attention for any worsening of his condition.
The next documented treatment occurred on August 29, 2008, at Bay Clinic. The medical record reports the following:
The patient follows up today. States that he has had no further chest pain. The patient does have significant anxiety. The patient has been on Ativan for several years. Risks, benefits, and alternatives [to] Ativan were explained to patient and patient voiced understanding. The patient does not want to decrease the Ativan. Does not want to change the Ativan. The patient denies suicidal or homicidal ideation. The patient jogs several miles each day. The patient exercises. The patient is a respiratory therapist, and I have contact with [the] patient every day. The patient is compliant with his medications. Does use it at the same pharmacy. The patient is under a narcotic contract here. If the patient violates his contract[6/], the patient knows that he will be discharged immediately. The patient knows to seek immediate medical attention for any worsening condition.
The medical record notes that Dr. McKenzie will continue R.W. on Ativan.
On January 24, 2009, R.W. was injured in an automobile accident. Another vehicle traveling 40 mph rammed into the back of R.W.’s Corvette. According to R.W., the other vehicle was
traveling
[f]ast enough to knock me from a red light. I was at a red light. I was in a Corvette. Fast enough to fold the tail end of my Corvette under and knock me across the intersection to the railroad tracks. Pretty hard.
When asked if the accident was “significant,”
R.W. responded by testifying that his car had been “totaled.”
On February 9, 2009, R.W. received a prescription from Bay Clinic for Lortab, but no refills were authorized.
On April 3, 2009, R.W. received a second prescription from Bay Clinic for Lortab. Again, no refills were authorized.
The next documented treatment occurred at Bay Clinic on May 1, 2009. R.W. presented with anxiety and some depression. Dr. McKenzie discussed R.W. treating with a psychiatrist and prescribing Luvox, an antidepressant.
This record notes that R.W. was still experiencing pain from the motor vehicle accident and that Dr. McKenzie “will try NSAIDs.”
The next documented treatment occurred on July 23, 2009. With regard to R.W.’s anxiety, Dr. McKenzie wanted
R.W. to see a psychiatrist, but R.W. refused.
Dr. McKenzie noted in the medical record that he was going to begin decreasing R.W.’s Ativan dosage and replacing it with a short-acting benzodiazepine.
Dr. McKenzie explained that he wanted to wean R.W. off of Ativan because:
He had been on Ativan, as he testified, for
25 years before I met him. And the goal was to try to get him off the Ativan. And so, we were going to change him from a long- acting benzodiazepine Ativan to a short- acting one, Xanax. And so what you try to do is wean his Ativan down and then wean him to the short-acting, and it’s easier for people to get off the short-acting. But, somebody that’s been on benzodiazepines or like Ativan for 25 years, it does the same thing to your brain that alcohol does. And so abruptly withdrawing benzodiazepines can put people in DT’s, delirium tremens and with a 25 percent mortality, being that one in four people could die if you just took somebody off those medications.
Given R.W.’s 25-year use of Ativan, slowly weaning
R.W. from Ativan and to a less harmful anxiety drug was certainly a reasonable goal.
The medical record indicates that R.W. was still experiencing back pain from the motor vehicle accident and had “failed NSAIDs.” The record notes that Dr. McKenzie and
R.W. discussed obtaining x-rays.
At that time, Dr. McKenzie began prescribing at least
90 Lortab pills per month to R.W.
The next documented treatment occurred on November 20, 2009. R.W. was continuing to take Lortab for
chronic back pain, and Dr. McKenzie was still in the process of weaning R.W. from Ativan.
This record notes that R.W. refused a psychiatric consult.
In February of 2010, Dr. McKenzie increased the Lortab prescription from 90 to 120 pills a month.
The next documented treatment occurred on March 10, 2010. R.W. was still experiencing chronic back pain and anxiety. Dr. McKenzie noted that R.W. needed an MRI and consultations with an orthopedist and a pain management specialist.
There is a notation in the record indicating that
R.W. needed x-rays. However, R.W. reported that he needed to “check his funds” before obtaining the x-rays.
In addition, there is a notation that Dr. McKenzie “will stop Lortab soon.”
The next documented treatment occurred on August 12, 2010. R.W. was still experiencing chronic back pain, and
Dr. McKenzie wanted R.W. to consult with an orthopedist and a pain management specialist. R.W. was aware that Dr. McKenzie wanted MRIs taken.
R.W. was still experiencing anxiety, but the medical record notes that Dr. McKenzie was only going to prescribe one more refill of his medication.
Dr. McKenzie noted on the record that R.W. stated, “I will get you. This is bullshit.”
R.W. testified that his faith has enabled him to stop taking any medication other than BC headache powder.
There is no dispute that Dr. McKenzie did not require an office visit from R.W. each time he wrote a prescription. With regard to whether that practice was appropriate,
Dr. McKenzie testified as follows:
Ideally we did but, like I said, sometimes patients would come in and pick up a prescription. And it’s kind of the rule that they have one each time but, like I said, that’s sometimes rules can’t be ideal. I mean, if you know the patient, and you know what the issues are, I don’t think there was any law or statute that said they need to be seen every single time.
With regard to whether Dr. McKenzie’s treatment of
R.W. fell below the standard of care, Dr. Calimano explained that a physician should begin treating a patient complaining of back pain by taking the patient’s history and performing a physical exam. The physical exam would be followed by imaging studies such as an MRI.
If there is nothing pressuring the patient’s spine, then treatment options include physical therapy and NSAIDs. If
the patient’s pain is very severe, then the physician could prescribe narcotics for a short period of time.
If the patient’s condition does not improve, then the physician would refer the patient to the appropriate specialists, such as ones dealing with the spine and pain management.
With regard to R.W.’s anxiety, Dr. Calimano stated that he would have attempted to refer R.W. to a psychiatrist.
Dr. Calimano was of the opinion that Dr. McKenzie’s medical records do not justify the amount of Lortab and Ativan prescribed to R.W. However, his testimony did not sufficiently address the notations regarding R.W.’s pain from the violent motor vehicle accident. His opinion appeared to focus on the notations regarding chest pain.
With regard to the Xanax and Lortab Dr. McKenzie prescribed to R.W. between November 20, 2009, and August 12, 2010, Dr. Goldstein testified as follows:
Q: Anything about the dosing or the frequency for the Xanax prescriptions that looks remarkable to you?
A: Xanax, one milligram. You know, it can be given up to four milligrams a day. So one milligram [four times a day] is on the higher end, but it’s not above the prescribing recommendations. Lortab is being given continuously. Patient has continuous pain. And it’s documented that the doctor wanted to send this patient to a pain specialist, to an ortho doctor and to
rehab. So there is a lot of documented pain medicine there. Again, the only thing I mention is there might have been better documentation as to why he needed to continue it. But there is nothing remarkable about the dosages.
Q: So, Dr. Goldstein, based upon all the medical records that we’ve been through regarding R.W. and the medication administration record on page 39, could you offer an opinion to the Court as to whether or not you perceive that Dr. McKenzie’s treatment or prescribing of R.W. during the time period at issue to be beneath the acceptable standard of care?
A: The fact that the patient was referred to a psychiatrist. The fact that Xanax was given and it was documented on that last note we mentioned, that the patient was not suicidal, which is important if you are prescribing that. The fact that the patient was referred to an orthopedic doctor, a rehab doctor and a pain specialist, I believe it was within the standard of care. I don’t think the documentation is great, but I can’t see anything that says this is beneath the standard of care.
The Department takes Dr. McKenzie to task for not doing more to address R.W.’s anxiety, such as recommending behavior modifications and/or psychotherapy. The Department also takes issue with Dr. McKenzie’s not doing more to treat R.W.’s chronic back pain.
However, the medical records indicate that
Dr. McKenzie attempted several times to have R.W. treat with a psychiatrist, but R.W. refused.
It appears from the medical records that R.W. was not compliant with Dr. McKenzie’s request for x-rays.
Dr. McKenzie did not offer a reason why he maintained
R.W. as a patient when R.W. would not obtain the recommended consultations and tests. But, Dr. McKenzie noted during his testimony regarding A.W. that he gives more leeway to medical professionals when it comes to obtaining recommended consultations.
Given R.W.’s refusal to pursue the recommended consultations and tests, it probably would have been appropriate for Dr. McKenzie to have ended the prescriptions much sooner.
Nevertheless, the greater weight of the evidence demonstrates that R.W. was a difficult patient who was resistant to obtaining the consultations desired by Dr. McKenzie. If he had been more compliant in obtaining those consultations, then Dr. McKenzie may have been more successful in treating R.W.’s anxiety and chronic pain.
In sum, the evidence does not clearly and convincingly demonstrate that Dr. McKenzie’s treatment of
R.W. fell below the standard of care given the circumstances associated with R.W.
Did Dr. McKenzie Falsify R.W.’s Medical Records and Use Him to Illegally Obtain Lortab?
R.W. testified that any pain from his motor vehicle accident only lasted two days, and he denies experiencing any chronic/long-term pain following the accident.
R.W. testified that Dr. McKenzie prescribed Lortab and asked him to transfer the medicine to him.
R.W. testified that he returned pain medication to Dr. McKenzie on a monthly basis over the course of approximately one year. The transactions would occur at the hospital or in parking lots at a Wal-Mart or a service station.
R.W. testified that he would typically give 90 to 100 pills to Dr. McKenzie and retain 10 to 20 for his own use.
R.W. denies being addicted to Lortab but acknowledges that he was a recreational user and that he “abused” Lortab and Percocet.
As for why Dr. McKenzie engaged in this practice,
R.W. testified that:
As in my deposition, Dr. McKenzie had a corneal abrasion. And I understand, maybe I don’t understand, that physicians, I guess, it’s looked down upon if they are taking medications. So he had a corneal abrasion and asked if I would get him a prescription filled for the pain for his corneal abrasion.
When asked why he agreed to divert drugs to
Dr. McKenzie, R.W. stated that, “I don’t have a good answer for that. Stupidity I would assume.”
As for why he stopped diverting drugs to
Dr. McKenzie, R.W. stated that, “Again, when it stopped, my life, it was falling apart. It was a mess.”
When asked why he stopped treating with Dr. McKenzie,
R.W. testified as follows.
A: I don’t even recall. My life was blowing up there. It was a total mess there near the end of my tenure with Gulf Coast.
I mean, it was a train wreck. Q: What does that mean?
A: I was taking a lot of Ativan. I was taking Lortab. I was drinking heavily. It was a wreck.
Q: So the question is why did you stop treating with Dr. McKenzie?
A: I left employ – you know, I don’t recall other than we just parted ways and I went my way and that is that. I don’t recall.
Q: Did Dr. McKenzie ever have any discussion with you about terminating you as a patient of his?
A: He may have. I don’t recall. I am not going to say he didn’t.
The Department argues that Dr. McKenzie fabricated the medical records discussed in the previous section because
R.W. claims that he only received treatment from Dr. McKenzie at
The Lung and Sleep Center on two occasions. Moreover,
R.W. claims that he never received treatment from Dr. McKenzie at Bay Clinic.7/
As for why he testified against Dr. McKenzie,
R.W. stated the following:
A: Well, first of all, I was subpoenaed here. You answer a subpoena. This has been going on for many, many years. Too many for me. I don’t want to be here today. And that is just a fact. Several years ago, I think it was during a – I don’t think, I know. During a fit of anger, withdrawals, all the above, I contacted your department and asked that this be investigated. And I believe the lady’s name was [] Ms. McBride, [and she] came to my residence in Mexico Beach and said that she was going to follow- up and I never heard back. When I heard from you, I was floored that it had taken that long. I figured, well, maybe my – it was a – maybe my suspicions were unfounded when I didn’t hear anything back from her.
Q: What do you mean maybe your suspicions were unfounded?
A: Maybe I was [the] one off. He was – maybe he was helping me out. Maybe we were helping each other out. I don’t really know. All I know is that I had brought it to your office’s attention a long time ago and nothing was ever done about it.
Q: Did anyone ever offer you anything for your testimony today?
A: No. Other than the $8.42 check I got from the State for gas I believe. It was delivered to me with my subpoena.
Q: Are you referring to [the] witness fee? A: Yes. That I tore up.
As was the case with A.W., Dr. McKenzie argues that Dr. Ortega somehow influenced or coerced R.W. into falsely testifying that Dr. McKenzie received Lortab from R.W.
Dr. McKenzie testified that Dr. Ortega supervised
R.W. at Bay Clinic when R.W. was employed as a respiratory therapist. Therefore, if R.W. held a grudge against
Dr. McKenzie for cutting off his Ativan supply as indicated in the August 12, 2010, medical record, it is certainly possible that Dr. Ortega could have learned of that circumstance and sought to take advantage of it.
As noted above, the undersigned has doubts about Dr. McKenzie’s credibility. However, R.W.’s statements about engaging in “doctor shopping” for years in order to obtain Ativan, abusing Lortab, and being a “train wreck” when he stopped treating with Dr. McKenzie cast substantial doubt on R.W.’s credibility.
Indeed, it appears that R.W.’s difficulties may be the reason why he is no longer a respiratory therapist.
Moreover, given R.W.’s own description of the severity of his car accident, it is surprising that he would testify that he experienced little or no pain afterwards. That
is especially true given the fact that his car was struck from behind and totaled.
Finally, given R.W.’s longstanding dependency on Ativan, R.W. certainly had a motive for filing a false report with the Department after Dr. McKenzie cut off his Ativan supply.
In sum, the evidence taken as a whole does not clearly and convincingly demonstrate that Dr. McKenzie prescribed Lortab to R.W. outside the course of his professional practice.
Was Dr. McKenzie’s Treatment of K.D. Below the Standard of Care?
K.D. began working at Pulmonary Associates in 2007 and was employed there at the same time that Dr. McKenzie worked there.
K.D. considered Dr. McKenzie to be her primary care physician, and she treated with him from some point in 2006 at least until August of 2009.
K.D. treated with Dr. McKenzie at Gulf Coast Medical Center, Bay Medical Center, Pulmonary Associates, and Bay Clinic. However, K.D. usually treated with Dr. McKenzie at Gulf Coast Medical Center.
As her primary care physician, Dr. McKenzie was typically K.D.’s attending physician when she was admitted to either Bay Medical Center or Gulf Coast Medical Center.
K.D. primary health problem was intractable pain originating from her hips and one of her knees. K.D.’s knee pain resulted from two knee surgeries and appears to have been aggravated by a car accident.
During the course of her treatment with Dr. McKenzie,
K.D. was often admitted into hospitals for treatment of her pain.
A medical record from Bay Medical Center dated January 22, 2008, describes K.D.’s general condition during the treatment with Dr. McKenzie:
This patient is a 37-year-old female who has had long standing problems with chronic pain, particularly involving the right lower extremity. Her history is extensive in that she has been previously diagnosed with torn meniscus in the right knee. She has undergone 2 previous orthoscopic procedures. Also, she has been treated for chronic pes anserinus bursitis. She has had a plethora of complaints over recent years including chronic pain syndrome, migraine headaches, asthma, fibromyalgia, anxiety, depression, and recurrent pain in the right knee and occasionally in the right hip. She was in a motor vehicle accident about a year or so ago, which resulted in no significant abnormalities on workup, but aggravated her chronic pain. She also had a fall and an MRI of the right hip was carried out at the end of 2006, and a partial tear of the gluteus medius was noted. All of her MRIs of the knee demonstrate minimal degenerative change, and previous meniscal pathology.
* * *
She has been diagnosed previously with chronic pain syndrome and has been utilizing up to 12 mg a day of oral Dilaudid for quite a few months. This is on the basis of chronic migraine headaches and fibromyalgia.
From January 2007 through July 22, 2009, Dr. McKenzie prescribed Lortab and Dilaudid on a monthly basis for K.D.’s
pain.
Dilaudid is a brand name for hydromorphone. Dilaudid
is an opioid pain medication that is four times stronger than Lortab. Under section 893.03(2), hydromorphone is a Schedule II controlled substance.
For several months in 2008, K.D. was receiving a 120-pill supply of Lortab intended to last 15 days and a 120-pill supply of Dilaudid intended to last 10 days.
He also prescribed Xanax for anxiety and Ambien for sleep.
The Department takes issue with Dr. McKenzie prescribing two short-acting narcotics, Lortab and Dilaudid, to
K.D. between January 2007 and July 22, 2009, without medical records supporting those prescriptions.
According to the Department, there is no justified medical purpose for prescribing Lortab and Dilaudid together. Dr. Calimano testified as follows:
I’m a pulmonologist, so anything that depress[es] or repress[es] your respiratory drive is always a concern with me. Plus
they are all habit forming, so I will be concerned. Going back to the use of narcotics, sometimes you can use a combination of narcotics. But when you are using narcotics on a chronic basis for, like, terminally ill patients and so on, the combination will be you do a long-term or long acting narcotic. You know, there are some preparations, Morphine, and so on and so forth that will last 12 hours. And then you use preparations for breakthrough pain, like short acting ones and so on. But if you have two narcotics that are both, like, will give you the hit quickly, but will disappear three or four hours later, I am not sure, you know, what the advantage would be.
In contrast, Dr. Goldstein testified that prescribing two short-acting narcotics is appropriate in order to treat “breakthrough pain:”
Q: Is Dilaudid a short acting narcotic?
A: Yes. It’s considered an immediate release with a half life of two to three hours.
Q: Is Lortab a short acting narcotic?
A: Yes. Two to three hours. The answer is yes.
Q: In your practice, have you ever prescribed a combination of both Lortab and Dilaudid?
A: Yes. But never to be used, as I said in my deposition, at the exact same time. You could use one and another for breakthrough. In other words, you wouldn’t say to the patient take a Dilaudid and a Lortab at the same time for pain. You would say take a Dilaudid on the scheduled basis. And then you may use Lortab for breakthrough. Lortab
is not as strong as Dilaudid. And it would be better to use Lortab for breakthrough than Dilaudid for breakthrough.
Q: Why would you prescribe a patient two short acting narcotics as opposed to one long acting narcotic such as Fentanyl or Morphine with a short acting narcotic for breakthrough pain?
A: Yes. As a matter of fact, the recommendations for pain control, and you can check it [is] up-to-date, are to reserve the long acting pain medications like Oxycontin and Fentanyl for people who have severe chronic pain like cancer. And that should not be the first thing. That should be the last thing you should do. In other words, we try to get away with short acting and try to stay away from the long acting ones. In other words, the long acting one is progression. That’s something you go to next, not before. If the long acting pain medications, for patients, for example, who have cancer and are on hospice, those are the ones we give Fentanyl patches to or Oxycontin. And that’s currently what a lot of the pain management doctors are doing with severe pain. The short acting ones are not as effective.
Dr. McKenzie explained why he prescribed two short- acting narcotics as follows:
Well, I mean, that your – the goal for the patient is to get them off narcotics. And just like Dr. Goldstein testified that, you know, once you put people on long-acting narcotics, they’re kind of stuck there. And so, you know, what you – cancer patients and terminally ill patients, you put them on long-acting, you know, morphine, long-acting Oxycontin and then for the breakthrough pain, you add a short-acting [narcotic].
Well, that’s not the goal with [K.D.]. The goal is to get her off these medications.
And so the medications that I had her on were two short-acting and, yes, you have to use caution with two short acting medications but, again, the goal was to get her off the medication, not advance her to a higher level where she’s – it’s a lot harder to get her off. Once you get somebody on a long-acting narcotic, pain medications to wean them off and that’s the perpetual state that she was in, trying to get her off the narcotics, not keep going up.
The Department also takes issue with the lack of medical records supporting the prescriptions written between February 26, 2008, and July 22, 2009. According to the Department, Dr. McKenzie should have had a treatment plan with objectives to assess the success of K.D.’s treatment. In addition, the Department asserts that Dr. McKenzie should have documented recommendations for referrals to other physicians.
For the vast majority of the time between February 26, 2008, and July 22, 2009, Dr. McKenzie’s non- hospital practice was based at Bay Clinic, and Dr. McKenzie testified that K.D. had office visits with him in 2008 at Bay Clinic.
Therefore, it is possible that Dr. McKenzie treated
K.D. at Bay Clinic between February 26, 2008, and July 22, 2009, and that the lack of medical records is attributable to him retaining no ownership over the corresponding records.
The Department has presented no persuasive evidence conclusively establishing that Dr. McKenzie owned or should have
owned the medical records associated with the patients he treated at Bay Clinic.
While K.D. testified that she only visited Bay Clinic on two occasions, Christen Tubbs, a former medical assistant at Bay Clinic, testified that K.D. visited Bay Clinic frequently and that there were many medical records pertaining to K.D. at Bay Clinic.8/
For reasons discussed in detail below, Ms. Tubbs’ testimony on this point was more credible than K.D.’s. As a result, medical records pertaining to K.D.’s treatment at Bay Clinic were created but unavailable for the final hearing.
Without those medical records, it is impossible to evaluate whether Dr. McKenzie practiced below the standard of care with regard to not having a treatment plan with objectives to assess the success of K.D.’s treatment.
The lack of medical records makes it extremely difficult to evaluate whether Dr. McKenzie practiced below the standard of care by prescribing Lortab and Dilaudid to K.D. in the quantities at issue.
The Department presented no sufficiently persuasive evidence demonstrating that the quantities of Lortab and Dilaudid prescribed to K.D. were per se below the standard of care given the circumstances associated with K.D.’s treatment.9/
In sum, the Department has not presented clear and convincing evidence that Dr. McKenzie’s treatment of K.D. fell below the standard of care.
Did Dr. McKenzie Use K.D. to Illegally Obtain Lortab?
Rather than ingesting the Lortab prescribed for her,
K.D. testified that she would fill the Lortab prescriptions and give the pills to Dr. McKenzie in a mall parking lot or her home.
According to K.D., Dr. McKenzie would usually give her $40 to $100 for the Lortab.
K.D. testified that she would not have taken Lortab because she is allergic to it. K.D. explained that she had her tonsils removed at 16 and was given hydrocodone, an ingredient in Lortab. The hydrocodone caused her to have an itchy, swollen throat.
Medical records from Bay Medical Center and Gulf Coast Medical Center note that K.D. was allergic to Lortab.
Dr. McKenzie pointed out that he authored a July 16, 2007, medical record, which stated K.D. was allergic to Lortab. However, that same record notes that K.D. “states it makes her nose itch, but has no significant abnormal affect.”
Dr. McKenzie testified as follows:
And so that, as far as I’m concerned, that she was not, you know, she was not allergic to Lortab. Plus, she had over 80 different
independent medical exams because she had been in the hospital 20, 30 different times where she didn’t tell physicians, at that time, or nurses, that she was allergic to Lortab. So that’s not on there. So she would pick and choose who she would tell she was allergic to Lortab and who she wasn’t.
And you would say, well, is that a red flag, well, I didn’t know that. And so I don’t go back and look. She was my patient. She told me she wasn’t allergic to Lortab.
That’s what I document. And so I would prescribe Lortab for her. Even in the hospital, they did a – and it’s in the records, we can find the Bates number, they got tired of her saying Lortab or not, and there’s a whole section where they went through and viewed every single allergy she had, and they deemed her not to be allergic to Lortab. So, I don’t see how her telling one physician that she’s allergic to Lortab and one physician that she’s not, that that’s – that’s a red flag or that’s anything that I would even notice if I was to go back and look at these medical records.
There are aspects of K.D.’s testimony that cause the undersigned to consider Dr. McKenzie’s testimony to be more credible.
Rather than testifying during the final hearing,
K.D. was deposed on August 9, 2017, at the Gadsden Correctional Facility where she was serving a 36-month sentence for recruiting patients to obtain prescriptions by fraud.
K.D. agreed that the aforementioned offense was a “felony conviction.”
K.D.’s own testimony suggested that she had a motive to provide false testimony against Dr. McKenzie.
Specifically, K.D. testified that she became addicted to pain medication and asserts Dr. McKenzie knew of her addiction.
K.D. stated that pain medication “destroyed” her life and was the reason why she was in prison.
While K.D. did not directly state that she blamed Dr. McKenzie for her difficulties, one could easily infer from her testimony that she holds a grudge against him.
As is the case with A.W. and R.W., there is a connection between K.D. and Dr. Ortega.
K.D. testified that she was forced to resign from Pulmonary Associates because she was suspected of embezzlement.
Dr. Ortega brought charges against her, but those charges were dismissed after K.D.’s father paid restitution.
While K.D. denies that Dr. Ortega offered to drop the charges against her if she gave testimony against Dr. McKenzie, this circumstance must be taken into account when evaluating K.D.’s credibility.
The Department has failed to present clear and convincing evidence that Dr. McKenzie prescribed Lortab to
K.D. outside the course of his professional practice.
CONCLUSIONS OF LAW
Pursuant to section 120.57(1), Florida Statutes (2017), DOAH has jurisdiction over the parties and subject matter of this proceeding.
The Allegations in the Instant Case Are Not Time-Barred
As a threshold matter, Dr. McKenzie argues that the allegations in the instant case should be time-barred. In support thereof, Dr. McKenzie notes that section 95.11(4), Florida Statutes (2017), applies a two-year statute of limitations to medical malpractice claims. Dr. McKenzie also argues that the allegations in the instant case should be barred by laches.
However, section 456.073(13) provides that
Notwithstanding any provision of law to the contrary, an administrative complaint against a licensee shall be filed within
6 years after the time of the incident or occurrence giving rise to the complaint against the licensee. If such incident or occurrence involved criminal actions, diversion of controlled substances, sexual misconduct, or impairment by the licensee, this subsection does not apply to bar initiation of an investigation or filing of an administrative complaint beyond the
6-year timeframe.
The Department issued the first Administrative Complaint on February 21, 2014. The Department’s claims of drug diversion have no limitations period. The Department can seek
to discipline Dr. McKenzie based on other misconduct occurring on or after February 21, 2008.
Therefore, none of the alleged misconduct pertaining to A.W. is time-barred because Dr. McKenzie’s treatment of her began in April of 2009.
While some of the alleged misconduct pertaining to
R.W. and K.D. would be time-barred, enough of the alleged misconduct occurred after February 21, 2008, that the Department can maintain its claims.
As for Dr. McKenzie’s argument regarding laches, a party attempting to invoke that doctrine must demonstrate the existence of the following four elements:
conduct on the part of the defendant giving rise to the situation of which the complaint is made; (2) failure of the plaintiff to assert his or her rights by suit, even though the plaintiff has had knowledge of the defendant's conduct and has been afforded the opportunity to institute suit; (3) lack of knowledge on the defendant's part that the plaintiff would assert the right on which he or she bases the suit; and (4) injury or prejudice to the defendant in the event relief is accorded to the plaintiff or the suit is held not to be barred.
Dep’t of Rev. v. Holley, 86 So. 3d 1199, 1203 (Fla. 1st DCA
2012).
Despite the substantial amount of time between the alleged misconduct and the final hearing in this matter,
Dr. McKenzie’s defense was not prejudiced in any way.
The Department Must Prove Its Allegations by Clear and Convincing Evidence
A proceeding, such as this one, to impose discipline upon a license is penal in nature. State ex rel. Vining v.
Fla. Real Estate Comm'n , 281 So. 2d 487, 491 (Fla. 1973). Accordingly, the Department must prove the charges against Dr. McKenzie by clear and convincing evidence. Dep't of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne Stern & Co., 670 So.
2d 932, 933-34 (Fla. 1996)(citing Ferris v. Turlington, 510 So. 2d 292, 294-95 (Fla. 1987)); Nair v. Dep't of Bus. & Prof'l
Reg., Bd. of Med., 654 So. 2d 205, 207 (Fla. 1st DCA 1995).
Regarding the standard of proof, the court in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983),
stated that:
clear 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 testimony 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Id.
The Florida Supreme Court later adopted the Slomowitz court's description of clear and convincing evidence. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994). The First
District Court of Appeal has also followed the Slomowitz test, adding the interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse
Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st
DCA 1991).
The Department Failed to Prove Counts 1, 4, and 7 by Clear and Convincing Evidence
In Counts 1, 4, and 7, the Department alleges that Dr. McKenzie’s treatment of A.W., R.W., and K.D. violated section 458.331(1)(t)1. This statute subjects medical licensees to discipline for committing medical malpractice as defined in section 456.50, Florida Statutes (2008-2010).
Section 456.50(1)(g) defines “medical malpractice” as “the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure.”
Section 456.50(1)(e) provides that the level of care, skill, and treatment recognized in general law related to health care licensure “means the standard of care specified in section 766.102.”
228. Section 766.102(1), Florida Statutes (2008-2010), provides that:
[t]he prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
With regard to Dr. McKenzie’s treatment of A.W. and
R.W. the Department argues that Dr. McKenzie erred by failing to: (a) establish a purpose for prescribing controlled substances; (b) create treatment plans; (c) obtain additional evaluations and consultations; (d) provide a methodology for measuring the success of his treatment; and (e) continuing to prescribe controlled substances despite R.W.’s refusal to obtain consultations.
A.W. and R.W. were difficult patients because they resisted obtaining the consultations recommended by
Dr. McKenzie. Those consultations would be an essential prerequisite to formulating effective treatment plans and creating a methodology for measuring the success of any treatment.
With regard to obtaining the consultations,
Dr. McKenzie explained that he gave more leeway to A.W. and
R.W. because they were medical professionals, and Dr. McKenzie had faith that they would eventually comply.
When compliance was not forthcoming, Dr. McKenzie notified A.W. and R.W. that their treatment with him was coming to an end.
While one could argue that Dr. McKenzie should have considered bringing the treatments to an end much sooner, there was no persuasive evidence as to when such action would be appropriate under the circumstances present with A.W. and R.W.
As for Dr. McKenzie’s prescription of Lortab to A.W., the medical records demonstrated that she suffered from painful conditions and that NSAIDs would exacerbate her gastric issues.
As for Dr. McKenzie’s prescription of controlled substances to R.W., the medical records indicated that he had a valid reason for continuing to prescribe Ativan while attempting to wean R.W. from Ativan to another anxiety drug. Also, given that NSAIDs were not effective in controlling R.W.’s pain after his significant car accident, Dr. McKenzie had a valid reason for prescribing Lortab.
Assuming that the medical records pertaining to
A.W. and R.W. were not fabricated, the Department failed to present clear and convincing evidence that Dr. McKenzie’s treatment of A.W. and R.W. fell below the standard of care that was appropriate under the circumstances.
As for Dr. McKenzie’s treatment of K.D., it is extremely difficult to evaluate whether he practiced below the
standard of care without reviewing K.D.’s medical records from Bay Clinic.
The Department asserts that Dr. McKenzie owned K.D.’s medical records from Bay Clinic and should have been able to provide them to the Department. See § 456.057(1), Fla. Stat.
(2006-2017)(providing that “the term ‘records owner’ means any health care practitioner who generates a medical record after making a physical or mental examination of, or administering treatment or dispensing legend drugs to, any person; any health care practitioner to whom records are transferred by a previous records owner; or any health care practitioner’s employer, including, but not limited to, group practices and staff-model health maintenance organizations, provided the employment contract or agreement between the employer and the health care practitioner designates the employer as the records owner.”).
Without the Department demonstrating whether there was an employment contract between Dr. McKenzie and Dr. Ramirez at Bay Clinic, the undersigned cannot ascertain whether
Dr. McKenzie was the owner of those records and, thus, should have been in a position to provide K.D.’s medical records.
Because the Department has the burden of proof, it cannot prove that Dr. McKenzie’s treatment of K.D. fell below the applicable standard of care without K.D.’s medical records.
The Department Failed to Prove Counts 3, 6, and 9 by Clear and Convincing Evidence
In Counts 3, 6, and 9, the Department alleges that Dr. McKenzie violated section 458.331(1)(q), which subjects medical licensees to discipline for
[p]rescribing, 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.
The Department asserts that Dr. McKenzie violated section 458.331(1)(q) by inappropriately prescribing controlled substances to A.W., R.W., and K.D.
This allegation is closely related to whether
Dr. McKenzie practiced below the applicable standard of care.
The Department failed to prove by clear and convincing evidence that there was anything inappropriate about Dr. McKenzie’s prescription of controlled substances to A.W., R.W., and K.D.
The Department argues in the alternative that
Dr. McKenzie violated section 458.331(1)(q) by using A.W., R.W., and K.D. to obtain Lortab for himself.
This question turns exclusively on the Department’s burden to prove its case by clear and convincing evidence.
While the undersigned has doubts about Dr. McKenzie’s credibility, there is greater reason to question the credibility of A.W., R.W., and K.D. Accordingly, the undersigned cannot conclude that the Department demonstrated by clear and convincing evidence that Dr. McKenzie engaged in drug diversion.
The Department Failed to Prove Counts 2, 5, and 8 by Clear and Convincing Evidence
The Department alleges in Counts 2, 5, and 8 that Dr. McKenzie violated section 458.331(1)(m), which subjects licensees to discipline for
[f]ailing 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.
The version of Florida Administrative Code Rule 64BB-
in effect during the time period relevant to the instant case provided in pertinent part that
A licensed physician shall maintain patient medical records in English, in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken.
The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient.
No one would offer the medical records created by Dr. McKenzie as a model of legibility. However, the Department did not prove by clear and convincing evidence that the medical records were so illegible as to be in violation of section 458.331(1)(m).
As for the substance of the medical records, the Department did not prove by clear and convincing evidence that the amount of detail therein was insufficient “to clearly demonstrate why the course of treatment was undertaken.”10/
Also and as discussed above, A.W. and R.W.’s resistance to obtaining the consultations recommended by
Dr. McKenzie prevented him from adding additional detail to the
medical records.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint.
DONE AND ENTERED this 1st day of May, 2018, in Tallahassee, Leon County, Florida.
S
G. W. CHISENHALL 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 1st day of May, 2018.
ENDNOTES
1/ In the course of describing his relationship with Dr. Ortega, Dr. McKenzie testified as follows:
Q: How did you get along with Dr. Ortega?
A: Like anybody else does, poorly. He is very abrasive. It’s his way or the highway.
You know, he was the boss, so that was fine, you know. Like I said, I was a hard worker. But when he told me to – basically he had it set up to where if [I] ever saw a patient, that was his patient, so you didn’t get paid on it. So you had to generate your own income. So we had a meeting with his CPA where he said that I owe him $80,000. And then I think another one I owed him
$180,000. So I was, like, well, I can’t understand why I am working this hard, because I was doing all the call and everything, and he kept saying I owed him money. But he had it set up to where no matter who saw the patient, if he had ever seen the patient, then he billed under his name, so he got paid, so that wouldn’t accredit for you. So if you couldn’t generate your income, then you owed him that amount of income. And I remember specifically going to see his CPA one day.
We had a little meeting. It was in her office somewhere on Jenks. And then after, when I was in the office, when I was about to leave, she came to the car. She said if this hadn’t turned around by April, I remember her saying, you got to leave. I was, like, that’s something weird to say, you know.
Q: Is that why you left the practice with Dr. Ortega?
A: Yeah. Like I said, once, all the sudden, the amount of money I was generating got worse and worse. And I asked a friend of mine, I said I’m working 20 hour days here. And I did all my own procedures. I put people on ventilators. I put all the lines in, which a lot of times, Dr. Kradel, his group would do, but I did my own stuff. I would do all my own procedures, which is, you know, kind of unheard of. I would just manage everybody. And when I started, we didn’t really have a hospitalist. So we didn’t have the luxury of just calling and saying, hey, you know, put this patient in,
we will take care of it. It was us. So two in the morning I was at the hospital taking care of patients. Three in the morning.
And we had kind of a call group there. But Dr. Ortega went out of town once a week so you ended up back in the call group. But when I told my friend how much I was working, he said, well, do you realize you are billing, like, $16,000 a day. And I was, like, what? So I went and looked at the schedule. And, yeah, everything I was billing was a lot of money. And he kept saying I was owing something. He was, like, you got to see the books. So I asked to see the books and he refused to show me the books. And then they are, like, well, my friend, Chris Cave, Dr. Cave actually. And he said, man, you got to get out of there, so that is where it was. And then when I told him, I said I am about to leave. So when I told him I was going to leave, he said that you leave Bay County now or he said I will ruin you.
2/ There was no testimony or evidence regarding the outcome of that litigation.
3/ Dr. Goldstein explained during the final hearing why it was appropriate for a pulmonologist such as Dr. McKenzie to treat pain:
As I mentioned before, in order to become a pulmonary doctor, you first have to be board certified in internal medicine, which is the study of organ systems throughout the body. As an internist, yes, I can certainly handle and treat the pain related to a back issue or a stomach issue or a headache. You don’t necessarily have to refer this patient to a specialist. Now, the treatment may be similar or the same. The specialist may be recruited if we can’t find out the reason for the pain or the efforts that I am doing to control the pain are not sufficient.
In addition, Dr. Goldstein noted that pain management was a rare specialty 10 years ago. Therefore, rather than referring a
patient experiencing chronic pain to a pain management specialist, a pulmonologist such as Dr. McKenzie was more likely to treat a patient without a consultation.
Dr. Goldstein also noted that given all of the publicity regarding opioid overdoses and addiction in North America, physicians exercise more caution when prescribing opioids than they did 10 to 15 years ago.
4/ Kristy Caldwell, a nurse currently employed at The Lung and Sleep Center, testified that she had seen A.W. as a patient at The Lung and Sleep Center “on more than one occasion” and placed her in an exam room.
5/ R.W. denied that he had been a kick boxer.
6/ Dr. McKenzie explained that a narcotic contract is either a written or verbal agreement between a patient and a physician. The patient agrees that he or she will only obtain narcotics from that physician. This is intended to discourage “doctor shopping.” That occurs when patients go to multiple physicians in order to obtain the same prescription.
7/ Christen Tubbs worked for Dr. McKenzie as a nurse at Bay Clinic. She testified that she recalled seeing R.W. as a patient at Bay Clinic “several times.”
8/ With regard to K.D., Ms. Tubbs testified as follows: Question: How do you know K.D.?
Answer: She was a patient of Dr. McKenzie’s.
Question: At Bay Clinic? Answer: Yes.
Question: How often did she come in?
Answer: Quite often. I would say, a couple of times a month, maybe.
Question: A couple of times a month every month?
Answer: From what I can remember?
Question: So she was in there a lot? Answer: Yes, sir.
Question: She was sick?
Answer: She would claim she was sick, yes, sir.
Question: Claimed she [was] sick. What does that mean?
Answer: She would call and make an appointment for different reasons claiming she had a hard time breathing or sinus infection or she was in pain or just different reasons.
Question: Was she a difficult patient? Answer: She was.
Question: How so?
Answer: She complained. She was never happy, she was never satisfied, nothing was good enough.
Question: Was she treated like any other patient at Bay Clinic?
Answer: Yes, sir.
Question: She had a medical chart? Answer: Yes, sir.
Question: And she was there frequently; right?
Answer: Yes, sir.
Question: So was it a big medical chart? Answer: Yes. Possibly two charts.
Question: Any reason why two charts?
Answer: When you run out of the room in one you’ll start another one.
9/ Dr. McKenzie testified that it was extremely difficult to treat K.D.
Question: So the relevant time period, as it was happening, you had no suspicion, and as a well-trained doctor, that this patient might be drug seeking?
Answer: Did I have suspicion that she was a difficult patient, yes. And was I trying to get other doctors to help me take care of her, yes. Would they take care of her, no, because she fired them. And so I did everything I can to help her. And when it was absolutely, being a young physician, you don’t think that, you know, you think that you can conquer anything. So you can take care of any patient. So this was definitely the most difficult patient I ever had. And when I realized that there’s absolutely no way on earth to take care of this patient, then I had to get rid of her.
Because you can’t take a patient that’s on, you know, this much – many narcotics and say, hey, you’re cut off, you’re out of here. Because they could withdraw and die.
Question: But wouldn’t you at least try to wean them down?
Answer: I mean, when I was trying to wean her down, even on the narcotics she was on, she was back in the hospital getting her IV pain medicine. And so, like I said, even when I got rid of her, she was in the hospital, you know, 10 or 15 more times doing that.
10/ These allegations undercut the Department’s assertions that Dr. McKenzie fabricated A.W. and R.W.’s medical records. If Dr. McKenzie had fabricated those records, one would think he would have taken the time to write them in a very legible
manner. The fact that the records are not a model of legibility bolsters a finding that Dr. McKenzie did not fabricate them.
COPIES FURNISHED:
Chad Wayne Dunn, Esquire Department of Health Prosecution Services Unit
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
Ross Daniel Vickers, Esquire Florida Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed)
Mark S. Thomas, Esquire Thomas Health Law Group, P.A. Suite 101-B
5200 Southwest 91st Terrace Gainesville, Florida 32608 (eServed)
Claudia Kemp, JD, Executive Director Board of Medicine
Department of Health
4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399-3253 (eServed)
Nichole C. Geary, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
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 |
|---|---|---|
| Jul. 02, 2018 | Agency Final Order | |
| May 01, 2018 | Recommended Order | The Department failed to prove the allegations in its Amended Administrative Complaint by clear and convincing evidence. |
