vs.
RICHARD D. VITALIS, D.O.,
Respondent.
Case No. 18-0424PL
On April 17, 2018, a final hearing was held in Tallahassee, Florida, before E. Gary Early, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Petitioner: Ann L. Prescott, Esquire
The issues to be determined are whether Respondent overprescribed controlled substances and failed to maintain legible medical records as alleged in the Administrative Complaint and, if so, the appropriate penalty.
On January 12, 2016, Petitioner, Department of Health (Department or Petitioner), issued an Administrative Complaint against Respondent, Richard D. Vitalis, D.O., a licensed osteopathic physician. The Election of Rights indicated that Respondent received the Administrative Complaint on May 5, 2016, which was not disputed by Petitioner.
The Administrative Complaint charged Respondent with committing medical malpractice by failing to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure, in violation of section 459.015(1)(x), Florida Statutes; by prescribing and dispensing controlled substances other than in the course of the osteopathic physician's professional practice, in violation of section 459.015(1)(t); and by failing to create legible and complete medical records regarding the course of patient treatment, in violation of section 459.015(1)(o).
On or about May 24, 2016, Respondent filed an Election of Rights in which he disputed material facts alleged in the Administrative Complaint and requested an administrative hearing. The disputed issues were identified, in their entirety, as follows: “I hereby admit to the allegations stated in paragraphs 1 through 5 and deny the remaining allegations stated in paragraphs 6 through 226 [sic] of this Administrative
Complaint.” The Administrative Complaint contained 31 numbered paragraphs. Timeliness of the filing of the Election of Rights was not an issue.
On January 24, 2018, the Election of Rights was referred to the Division of Administrative Hearings. A Joint Response to Initial Order was filed, and the final hearing was scheduled for April 17, 2018.
On January 26, 2018, the Department served written discovery on Respondent. On March 2, 2018, the Department filed a Motion to Compel Discovery Responses, which indicated that Respondent answered the requests for admissions, but did not respond to Respondent’s request for production of documents or to Respondent’s interrogatories, which largely dealt with expert witnesses. On March 14, 2018, the undersigned entered an Order to Show Cause explaining the consequences of the failure to respond to discovery, and requiring that responses be provided by March 20, 2018. The Order indicated that failure to respond would result in an Order prohibiting Respondent from introducing exhibits or testimony on the designated matters. Respondent provided the Department with amended responses to the requests for admissions, but did not otherwise file responses. On
March 23, 2018, the undersigned entered an Order precluding Respondent from offering the testimony of any expert witness at the final hearing.
On March 16, 2018, the Department filed a notice of taking the telephonic deposition of Respondent, with the deposition to be conducted on March 19, 2018, in Respondent’s city of residence. The notice was personally served on Respondent.
Respondent did not appear at the deposition. The Department filed a certificate of non-appearance, whereupon the undersigned entered an Order requiring Respondent to appear to have his deposition taken on March 28, 2018, with the sanction for further non-appearance being an Order precluding Respondent from testifying at the final hearing. Respondent did not appear for his March 28, 2018, deposition.
On March 21, 2018, the Department filed a notice of taking the telephonic deposition of the Department’s expert witness, with the deposition to be conducted on March 29, 2018. The deposition was commenced as noticed at 1:00 p.m. The transcript of the deposition indicated that Respondent made an appearance, though he did not examine the witness, and did not appear to be still on the telephone at the conclusion of the deposition.
On April 10, 2018, the Department filed a Unilateral Pre- hearing Statement of Facts, in which it indicated that efforts to communicate with Respondent regarding the matters set forth in the Order of Pre-hearing Instructions had been unsuccessful.
The final hearing was convened on April 17, 2018, as scheduled. Respondent did not appear at the hearing, and made
no effort to contact the Department or the undersigned. Thus, the hearing proceeded.
Exhibits 1 through 6 in evidence. Petitioner’s Exhibit 4 is the deposition transcript of Dr. Frederic Porcase, Jr., D.O. Having reviewed the qualifications and experience of Dr. Porcase, he is accepted as an expert in osteopathic medicine. It is further concluded, based on his testimony and the statements and documents upon which he relied, that his testimony was based upon sufficient facts or data, was the product of reliable principles and methods, and applied the principles and methods reliably to the facts of the case. The use of the deposition is authorized by Florida Rules of Civil Procedure 1.330(a) and Florida Administrative Code Rule 28-106.206, and the deposition will be considered and given weight as though Dr. Porcase testified in person at the final hearing.
Exhibits 1 and 3, consisting of, respectively, the Department’s licensing file pertaining to Respondent and Respondent’s patient medical records, were accompanied by original certifications from the custodian of the records. Thus, the exhibits have been authenticated.
The one-volume final hearing Transcript was filed on April 23, 2018. The Department timely filed its Proposed
Recommended Order, which was considered in preparation of this Recommended Order. Respondent did not file a post-hearing submittal.
This proceeding is governed by the law in effect at the time of the commission of the acts alleged to warrant discipline. See McCloskey v. Dep’t of Fin. Servs., 115 So. 3d
441 (Fla. 5th DCA 2013). There having been no amendment of the pertinent provisions of chapter 459 during the 2011 legislative session, references to statutes are to Florida Statutes (2011), unless otherwise noted.
The Department of Health, through its Board of Osteopathic Medicine, is the state agency charged with regulating the practice of osteopathic medicine in the state of Florida, pursuant to section 20.43, and chapters 456 and 459, Florida Statutes.
At all times material to this proceeding, Richard D. Vitalis was a licensed osteopathic physician in the state of Florida, holding license number OS 4823.
Respondent’s current address of record is 3774 China Grove Mews Lane, Fairfax, Virginia 22025.
At all times material to the Administrative Complaint, Respondent was practicing as an osteopathic physician at All
Family Medical in North Lauderdale, Florida, a licensed pain management clinic.
On or about January 27, 2011, L.N., a 29-year-old female, and a resident of Biloxi, Mississippi, presented to Respondent at his Fort Lauderdale office with complaints of back pain. Between January 27, 2011, and August 3, 2011, L.N. presented to Respondent on seven occasions.
L.N. indicated that she had previously been prescribed oxycodone 15 mg, oxycodone 30 mg, and Xanax 2 mg. She also indicated that she was dependent on her prescriptions, that she needed them every few hours, that she expected to need them the rest of her life, and that they were not helping resolve her medical problems.
L.N. underwent a magnetic resonance imaging (MRI) study on January 27, 2011. The MRI diagnostic images showed that L.N.’s spine had no evidence of pathological disease. There was a normal alignment of the vertebral bodies without evidence of compression or spondylolisthesis. There was normal signal throughout the vertebral bodies and within the visualized spinal cord. There was no significant disc disease, evidence of spinal stenosis, or exiting nerve root impingement at L1-2, L2-3, L3-4, or L5-S1. Although the MRI depicted some annular disc bulging at L4-5, there was no spinal stenosis or neural foraminal stenosis. There was no pathology shown on the MRI, and it was,
in general, “a normal MRI.” As such, the MRI would not provide support for a conclusion that L.N. would have been in pain.
There were no diagnostic images in L.N.’s file to contravene the medical conditions shown in the MRI. The only evidence of anything requiring treatment was L.N.’s complaint of low back pain. Such a complaint would call for muscle relaxers, physical therapy, hot/cold packs, or ultrasound, rather than narcotic pain medications.
There was no evidence in the medical records that L.N. exhibited signs of nerve root impingement with pain radiating down the leg.
The records did not demonstrate that Respondent performed a comprehensive medical examination of L.N., or that Respondent performed any type of objective testing of L.N., including straight leg raises, checking for deep tendon reflexes, or palpation of the area of concern for spasms.
The records did not contain an adequate medical history of L.N., including height, weight, temperature, pulse, respiration, blood pressure, age, date of birth, and medication lists, nor did they contain an assessment of L.N.’s chief complaint or plan of treatment. The intake from L.N.’s first visit to Respondent indicated that she was taking opioids and benzodiazepines, though there was no evidence of prescriptions or prescribing physicians for those substances.
The records did not demonstrate that Respondent obtained records of prior treating physicians, nor was there any evidence of an effort to do so.
The records do not demonstrate that Respondent consulted with any other physician which, in the case of treatment resulting from an MRI review, would fail to meet the standard of care.
The records do not demonstrate that Respondent recommended alternative interventions for L.N.’s pain complaints, including physical therapy, which would have been appropriate, and within the standard of care given the normal MRI results. The only alternatives noted were “heat” and “massage” on January 27, 2011, and “heat” on June 23, 2011. Although it is possible that other alternative interventions were recommended, the illegibility of the intake forms prevents such a finding. The failure to recommend alternative interventions was a failure to meet the standard of care.
On L.N.’s first visit to Respondent on January 27, 2011, a urine drug screen was performed. The drug screen tested positive for opioids and benzodiazepines. Subsequent to that first visit, Respondent performed no other drug tests. Such tests can confirm that the patient is taking prescribed medications, and not diverting them, and that the patient is not taking other non-prescribed medications. It is the medical
standard of care to perform follow-up drug tests of patients when prescribing high doses of controlled substances, including opioids. The failure to closely monitor L.N. when prescribing high doses of opioids and benzodiazepines was a failure of the standard of care.
Respondent did not communicate with L.N.’s pharmacy to ensure that she was not getting prescribed medicines from other doctors. Such information was, in 2010 and 2011, available from pharmacies. It was, during that period, the medical standard of care to communicate with the dispensing pharmacy. Respondent failed to meet that standard of care. There was no evidence to the contrary.
Despite the fact that L.N. presented to Respondent with a stated history of opioid use and a positive drug screen, Respondent did not record L.N.’s medication history for the period up to her first visit with Respondent. The failure to take a medication history to substantiate the need and justification for the prescription of high-dose opioids is contrary to the 2010-2011 medical standard of care.
Oxycodone was, during the relevant period, a Schedule II controlled substance with a high potential for abuse, and an accepted but severely restricted medical use in treatment in the United States. Abuse of oxycodone may lead to
severe psychological or physical dependence. § 893.03(2), Fla.
Stat. Roxicodone is a brand name for oxycodone hydrochloride. It is a short-acting opioid that is rapidly absorbed. Short- acting opioids have a greater potential for abuse. Furthermore, prescription of short-acting opioids, such as Roxicodone, would not be within the standard of care for long-term, chronic pain such as that described by L.N.
Xanax is the brand name for alprazolam and is prescribed to treat anxiety. Alprazolam was, during the relevant period, a Schedule IV controlled substance, with a low potential for abuse, and an accepted medical use in treatment in the United States. Abuse of alprazolam may lead to limited physical or psychological dependence. § 893.03(4), Fla. Stat.
At L.N.’s initial January 27, 2011, visit, Respondent prescribed medications including 210 tablets of Roxicodone Oral
30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. The prescribed doses and amounts were consistent with L.N.’s self-reported medications that she was then taking, presumably prescribed by “Dr. Sanchez” in Biloxi. Respondent’s plan of treatment listed the medications L.N. requested and recommended follow-up in one month. The records contain no individualized treatment plan. Respondent’s examination notes are entirely illegible. Respondent’s records
lack copies of prescriptions issued to L.N. on January 27, 2011. A patient agreement and informed consent form was included in L.N.’s patient file, but was not signed by L.N.
L.N. next presented to Respondent with complaints of chronic lower back pain on February 22, 2011. The intake form is largely illegible, though “overall feels well” is discernable. At that visit, Respondent prescribed 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment was medication refill and follow-up in one month. Again, there was no individualized treatment plan, and the examination notes were largely illegible.
L.N. presented to Respondent with further complaints of chronic lower back pain on March 22, 2011. The intake form is largely illegible, though “overall feels well” is discernable. Respondent again prescribed 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and
90 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment was medication refill and follow-up in one month. Again, there was no individualized treatment plan, and the examination notes were illegible.
L.N. presented to Respondent on April 21, 2011. The intake form is largely illegible, though “overall feels well” is discernable. Respondent renewed L.N.’s previous prescriptions.
L.N. next presented to Respondent with complaints of chronic lower back pain on May 19, 2011. The intake form is entirely illegible. Respondent prescribed 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and
90 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment was medication refill and follow-up in an illegible timeframe. There was no individualized treatment plan. Respondent’s examination notes were illegible and minimal.
On June 23, 2011, L.N. presented to Respondent. The intake form, though largely illegible, appears to state that “pt feels good pain solved with meds.” The treatment prescribed by Respondent apparently having the desired effect, Respondent renewed L.N.’s prescription for 210 tablets of Roxicodone Oral
30 mg (though in two separate prescriptions for 180 tablets and
30 tablets, respectively), 120 tablets of Roxicodone Oral 15 mg, and 60 tablets of Xanax Oral 2 mg. The prescription originally called for 150 tablets of Xanax, but Respondent struck 90 of those. Respondent’s plan of treatment was medication refill and follow-up at the next appointment on July 23, 2011. A monthly medication dosage evaluation was completed for the June visit, as was a pain management treatment plan medical record. Those records provided little individualized information regarding L.N.’s plan of care. The pain management treatment plan form
indicated that drug testing was completed; however, there were no results.
L.N.’s final visit to Respondent occurred on August 3, 2011. She indicated, in what appears to be her handwriting, that she had used a “hot bath,” “heat,” and “some exercise.”
Her treatment objective continued to be “complete resolution of pain with medication.” At that visit, Respondent prescribed
150 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 60 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment included only a list of medications. The pain management treatment plan form indicated that drug testing was completed; however, there were no results.
Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent failed to practice medicine with that level of care, skill, and treatment recognized in general law as being acceptable under similar conditions and circumstances in his treatment of L.N.
Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent prescribed excessive and unnecessary amounts of Roxicodone and Xanax without a justifiable basis to do so, especially since the
January 27, 2011, MRI report did not support a determination that L.N. was experiencing back pain so as to justify Respondent’s course of opioid treatment for L.N.
Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent failed to create and maintain adequate and legible records supporting the course of treatment for L.N., or records documenting performance of a comprehensive physical examination of L.N. proportionate to her diagnoses.
Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent failed to adequately monitor L.N.’s use of opioid therapies.
The findings set forth herein are the result of
Dr. Porcase’s undisputed expert testimony regarding the standard of care as it existed in 2010-2011, as well as the undersigned’s independent review of the record. Whether Respondent could have produced evidence to support his treatment of L.N. will remain a mystery, since Respondent essentially abandoned this proceeding. Despite challenging the Department’s Administrative Complaint, Respondent minimally and incompletely responded to written discovery, failed to meaningfully participate in Dr. Porcase’s deposition, twice refused to appear for his own deposition,
despite personal service of the notice, and failed to make an appearance at the final hearing. In the absence of any testimony or evidence to counter that of the Department, the evidence presented by the Department, including the testimony of Dr. Porcase, was clear and convincing as to the matters set forth herein.
Despite Respondent’s failure to actively contest the allegations in the Administrative Complaint, it must be recognized that the allegations concern a single patient over a total period of scarcely more than 6 months. There was no pattern of misconduct. Furthermore, Dr. Porcase acknowledged that the practices regarding the prescription of opioids in 2010-2011 were far different from those that exist today. Rather, “there was no standards that you were -- individualized your treatment to the pathology on imaging studies and patient’s complaints and their ability to function on medicine.” As to a doctor’s actions to rule out a patient’s drug-seeking behavior, he testified that “[i]t would be the individual physician having to make that determination based on his experience and diagnostic testing . . . and physical exam.” While the undersigned believes and gives weight to Dr. Porcase’s opinions regarding the standard of care, his testimony is equally compelling that the standard was not as clear-cut in 2010-2011 as it is in 2018. Though not affecting the ultimate findings
regarding violations of law, it does affect the nature of the penalty that is warranted.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 456.073(5), 120.569, and 120.57(1), Fla. Stat. (2016).
The Department has authority to investigate and file administrative complaints charging violations of the laws governing osteopathic physicians. § 456.072(2), Fla. Stat.
Standards
Section 459.015(1), Florida Statutes (2011), provided, in pertinent part, that:
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(o) Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed osteopathic physician or the osteopathic physician extender and supervising osteopathic 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.
* * *
(t) Prescribing, dispensing, administering, supplying, selling, giving, mixing, or otherwise preparing a legend drug, including all controlled substances, other than in the course of the osteopathic physician’s professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, supplying, selling, giving, 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 osteopathic physician’s professional practice, without regard to his or her intent.
* * *
(x) Notwithstanding s. 456.072(2) but as specified in s. 456.50(2):
Committing medical malpractice as defined in s. 456.50. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph. Medical malpractice shall not be construed to require more than one instance, event, or act.
Committing gross medical malpractice.
Committing repeated medical malpractice as defined in s. 456.50. A person found by the board to have committed repeated medical malpractice based on s. 456.50 may not be licensed or continue to be licensed by this state to provide health care services as a medical doctor in this state.
Nothing in this paragraph shall be construed to require that an osteopathic physician be incompetent to practice osteopathic medicine in order to be disciplined pursuant to this paragraph. A recommended order by an administrative law judge or a final order of the board finding a violation under this paragraph shall specify whether the licensee was found to have committed “gross medical malpractice,” “repeated medical malpractice,” or “medical malpractice,” or any combination thereof, and any publication by the board shall so specify.
Section 456.50(1), Florida Statutes (2011), provides, in pertinent part, that:
For purposes of s. 26, Art. X of the State Constitution and ss. 458.331(1)(t), (4), and (5) and 459.015(1)(x), (4), and (5):
* * *
“Incident” means the wrongful act or occurrence from which the medical malpractice arises, regardless of the number of claimants or findings. For purposes of this section:
A single act of medical malpractice, regardless of the number of claimants, shall count as only one incident.
Multiple findings of medical malpractice arising from the same wrongful act or series of wrongful acts associated with the treatment of the same patient shall count as only one incident.
* * *
“Level of care, skill, and treatment recognized in general law related to health care licensure” means the standard of care specified in s. 766.102.
* * *
“Medical malpractice” means the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. Only for the purpose of finding repeated medical malpractice pursuant to this section, any similar wrongful act, neglect, or default committed in another state or country which, if committed in this state, would have been considered medical malpractice as defined in this paragraph, shall be considered medical malpractice if the standard of care and burden of proof applied in the other state or country equaled or exceeded that used in this state.
* * *
“Repeated medical malpractice” means three or more incidents of medical malpractice found to have been committed by a medical doctor. Only an incident occurring on or after November 2, 2004, shall be considered an incident for purposes of finding repeated medical malpractice under this section.
The incidents described herein involve a “series of wrongful acts associated with the treatment of the same patient,” and, therefore, do not constitute “repeated medical malpractice.”
The term "gross medical malpractice" is not defined in section 456.50, and the Department has not pled or argued that Respondent committed gross medical malpractice. Furthermore,
Dr. Porcase did not testify that the acts alleged constituted gross medical malpractice, and the record does not otherwise support such a finding.
Burden and Standard of Proof
The Department bears the burden of proving the specific allegations that support the charges alleged in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne
Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,
510 So. 2d 292 (Fla. 1987); Fox v. Dep't of Health, 994 So. 2d
416 (Fla. 1st DCA 2008); Pou v. Dep’t of Ins. & Treasurer, 707 So. 2d 941 (Fla. 3d DCA 1998).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano,
696 So. 2d 744, 753 (Fla. 1997). The clear and convincing evidence level of proof:
[E]ntails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
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.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994) (quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA
1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005).
"Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous." Westinghouse Electric Corp. v. Shuler Bros.,
590 So. 2d 986, 989 (Fla. 1st DCA 1991).
A proceeding to suspend, revoke, or impose other 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). Penal statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden the application of such statutes. Thus, the provisions of law upon which this disciplinary action has been brought must be strictly construed, with any ambiguity construed against Petitioner. Elmariah v. Dep’t of Bus. & Prof’l Reg.,
574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.
Fish & Wildlife Conserv. Comm'n, 57 So. 3d 929, 931 (Fla. 1st
DCA 2011); Beckett v. Dep’t of Fin. Servs., 982 So. 2d 94, 100
(Fla. 1st DCA 2008); Whitaker v. Dep’t of Ins., 680 So. 2d 528,
531 (Fla. 1st DCA 1996); Dyer v. Dep’t of Ins. & Treasurer, 585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).
The allegations of fact set forth in the Administrative Complaint are the grounds upon which this proceeding is predicated. Trevisani v. Dep’t of Health,
908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v.
Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus,
the scope of this proceeding is properly restricted to those matters. M.H. v. Dep’t of Child. & Fam. Servs., 977 So. 2d 755,
763 (Fla. 2d DCA 2008).
Analysis
Count I
Count I of the Administrative Complaint alleges that:
Respondent failed to practice medicine with that level of care, skill and treatment recognized in general law, which standard is established by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in the treatment of patient L.N. in one or more of the following ways:
By prescribing excessive and/or inappropriate amounts of controlled substances to patient L.N.;
By failing to create or maintain documented medical justification for patient L.N.'s course of treatment and/or prescriptions;
By failing to adequately monitor patient L.N.'s use of opioid therapies;
By failing to consult with other treating practitioners regarding patient L.N.'s condition; and/or
By failing to address or recommend alternate intervention therapies for patient L.N.'s pain.
The Department presented clear and convincing evidence to establish that Respondent, in his treatment of L.N., failed to practice osteopathic medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. Thus, Petitioner proved by clear and convincing evidence that Respondent violated section 459.015(1)(x), as alleged in Count I of the Administrative Complaint.
The violation of section 459.015(1)(x) as set forth herein constitutes “medical malpractice.” The record does not support a finding or a conclusion that Respondent committed “gross medical malpractice,” or “repeated medical malpractice.”
Count II
Count II of the Administrative Complaint alleges that:
During the treatment period, Respondent prescribed, dispensed, and/or administered controlled substances to patient L.N., other than in the course of his professional practice, in one or more of the following ways:
By prescribing oxycodone, alprazolam, and/or antibiotics inappropriately for her condition and/or diagnosis to patient L.N.;
By prescribing oxycodone, alprazolam, and/or antibiotics in excessive or inappropriate quantities, to patient L.N.;
By prescribing oxycodone, alprazolam, and/or antibiotics to patient L.N. not in her best interests.
The Department presented clear and convincing evidence to establish that Respondent prescribed one or more controlled substances to L.N. inappropriately or in excessive quantities, which was not in L.N.’s best interest. There was no evidence offered to support a conclusion that Respondent prescribed antibiotics to L.N. inappropriately or in excessive quantities, which was not in L.N.’s best interest. Petitioner proved by clear and convincing evidence that Respondent violated section 459.015(1)(t), as alleged in Count II of the Administrative Complaint.
Count III
Count III of the Administrative Complaint alleges that:
During the treatment period, Respondent failed to keep legible medical records for patient L.N. that identify the licensed osteopathic physician and that justify the course of treatment of the patient in one or more of the following ways:
By failing to create and/or maintain medical records that are legible;
By failing to create and/or maintain medical records that justified the course of treatment of patient L.N.;
By failing to create and/or maintain medical records that contain full examination and/or test results; and/or
By failing to create and/or maintain medical records that contain reports of consultations with or referrals to other practitioners, or hospitalizations.
The Department presented clear and convincing evidence to establish that Respondent, on multiple occasions, failed to keep legible medical records which justified the course of treatment for L.N., and which lacked examination results, tests results, and reports of consultations with other physicians. Thus, Petitioner proved by clear and convincing evidence that Respondent violated section 459.015(1)(o), as alleged in
Count III of the Administrative Complaint.
Penalty
Pursuant to section 456.072(2), the Board of Osteopathic Medicine may impose one or more of the following penalties for violations of sections 459.015(1)(x), 459.015(1)(t), and 459.015(1)(o): suspension or permanent revocation of a license; restriction of practice or license found to be necessary for the protection of the public health, safety, and welfare; imposition of an administrative fine not to exceed $10,000 for each count or separate offense; issuance of a
reprimand or letter of concern; placement of the licensee on probation subject to conditions; corrective action; and/or require that the practitioner undergo remedial education.
Florida Administrative Code Rule 64B15-19.002 (Rev. May 10, 2010) established the applicable guidelines for penalties imposed for violations of sections 459.015(1)(x), 459.015(1)(t), and 459.015(1)(o).
At all times material to these proceedings, the penalties authorized for a first offense of section 459.015(1)(x), for failure to practice medicine in accordance with appropriate level of care, skill, and treatment recognized in general law related to the practice of medicine (medical malpractice - rule 64B15-19.002(27)) ranged from a letter of concern, up to one (1) year probation and $1,000 fine, to revocation and a $10,000 fine.
At all times material to these proceedings, the penalties authorized for a first offense of section 459.015(1)(t) (controlled substance violation - rule 64B15- 19.002(21)), ranged from probation and a $5,000 fine to suspension to be followed by probation and a $7,500 fine.
At all times material to these proceedings, the penalties authorized for a first offense of section 459.015(1)(o) (failure to keep written medical records –
rule 64B15-19.002(16)), ranged from a reprimand and a
$5,000 fine to probation and a $5,000 fine.
Florida Administrative Code Rule 64B15-19.003 (Rev. July 13, 2004) establishes aggravating and mitigating
circumstances that allow for a deviation from the penalties set forth in the guidelines. Aggravating and mitigating circumstances include, but are not limited to the following:
The danger to the public;
The length of time since the violations;
The number of times the licensee has been previously disciplined by the Board;
The length of time the licensee has practiced;
The actual damage, physical or otherwise, caused by the violation;
The deterrent effect of the penalty imposed;
The effect of penalty upon the licensee’s livelihood;
Any effort of rehabilitation by the licensee;
The actual knowledge of the licensee pertaining to the violation;
Attempts by the licensee to correct or stop violations or refusal by licensee to correct or stop violations;
Related violations against licensee in another state, including findings of guilt
or innocence, penalties imposed and penalties served;
The actual negligence of the licensee pertaining to any violations;
The penalties imposed for related offenses;
The pecuniary gain to the licensee;
Any other relevant mitigating or aggravating factors under the circumstances.
Any penalties imposed by the board may not exceed the maximum penalties set forth in Section 459.015(2), F.S.
The penalties in this case must be measured against the following:
While there was evidence to establish a violation of the standard of care, there was a complete lack of participation in the proceeding by Respondent and corresponding absence of evidence to the contrary. Furthermore, the 2010-2011 standard of care was not the bright-line that exists today, but was a much more subjective and individualized means of practicing medicine. In that regard, the Board of Osteopathic Medicine adopted, on November 14, 2006, rule 64B15-14.005, entitled Standards for the Use of Controlled Substances for Treatment of Pain. That rule, which exists today in substantially the same form, set forth the subjective nature of the “standard”; established the benefits of pain medications, including opioid analgesics; provided that “[e]ach case of prescribing for pain
will be evaluated on an individual basis”; recognized that “[f]ears of investigation or sanction . . . may also result in inappropriate or inadequate treatment of chronic pain patients”; established that the guidelines set forth in the controlled substance rule “are not intended to define complete or best practice”; established that deviation from the standards is not subject to discipline “if good cause is shown for such deviation”; and directed that use of pain medications will not be judged “on the quantity and chronicity of prescribing.” This case was not one that leapt from the page as an example of physician malfeasance. Rather, it was decided in large measure on the testimony of a single Department expert who was not subjected to cross-examination or question, opining as to very subjective, imprecise, and changing “standards.”
The “standard of care” in 2010-2011 for the violation of section 459.015(1)(x) was not nearly as well-established or well-understood as it is presently. Dr. Porcase acknowledged that there were no real standards for determining drug-seeking behavior, and the standard was much more a matter of “the individual physician having to make that determination based on his experience . . . .” Dr. Porcase testified as to the new
E-FORCSE prescription drug-monitoring program, acknowledging that it did not exist in 2010-2011. On more than one occasion he referenced “the new law” in his deposition testimony, and
occasionally applied the new “standards” before being guided back to 2011 standards by counsel.
Given the recent public focus on the standard of care with regard to the use of opioids as a means of pain management arising from actions of the legislative and executive branches, there is little deterrent value in imposing a harsh penalty based on a nominal violation of subjective 2010-2011 standards.
The “medical malpractice” was neither repeated nor gross. It involved a single “incident,” with a single patient, over a relatively short period. The evidence established no pattern of conduct on the part of Respondent.
There was no evidence that the patient, L.N., was harmed or suffered any adverse health effects due to her treatment by Respondent.
Respondent’s licensing file indicates that he has been licensed in Florida since 1985. There was no evidence of previous discipline during Respondent’s 30+ years of practice, and his record is unblemished.
There being substantial mitigating circumstances in this case, a penalty less than that set forth for first violations in rule 64B15-19.002 is warranted and supported by the record evidence.
The Department has argued that since Respondent’s license is currently in a null and void status, imposition of
license conditions “would constitute a burden on the Department’s enforcement resources, as well as being unfair to the Respondent.” Based thereon, the Department has requested that the penalty consist of a fine and revocation of Respondent’s license, i.e., the most severe sanction available for a violation of section 459.015(1)(x). The imposition of an unreasonably and unnecessarily harsh sanction for reasons of administrative convenience is supported by neither the evidence
nor the law.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, enter a final order:
DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida.
E. GARY EARLY Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2018.
Ann L. Prescott, Esquire Philip Aaron Crawford, Esquire Prosecution Services Unit Department of Health
Richard D. Vitalis, D.O.
Richard D. Vitalis, D.O. 3774 China Grove Mews Lane Fairfax, Virginia 22025
Kama Monroe, Executive Director Board of Osteopathic Medicine Department of Health
Nichole C. Geary, General Counsel Department of Health
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
