STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF MEDICINE,
Petitioner,
vs.
JOHN NKOLO MUBANG, M.D.,
Respondent.
/
Case Nos. 18-0528PL
18-0606PL
RECOMMENDED ORDER
A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings (“DOAH”), on December 18 and 19, 2018, in Tampa, Florida.
APPEARANCES
For Petitioner: Chad Wayne Dunn, Esquire
Zachary Bell, Esquire Prosecution Services Unit Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Dale R. Sisco, Esquire
Sisco-Law
1110 North Florida Avenue Tampa, Florida 33602
STATEMENT OF THE ISSUES
The issues to be decided are whether Respondent violated portions of chapter 458, Florida Statutes, as alleged in the
Administrative Complaints; and, if so, what penalty should be
imposed.
PRELIMINARY STATEMENT
On May 17, 2012, Petitioner, Department of Health, Board of Medicine (“Petitioner” or “DOH”), filed a 21-count Administrative Complaint against John Nkolo Mubang, M.D. (“Respondent” or
“Dr. Mubang”), in DOH Case No. 2010-12384, which is DOAH Case No. 18-0606PL in this matter. The Administrative Complaint charged the doctor with five counts of violating section 458.331(1)(nn) by violating Florida Administrative Code
Rule 64B8-9.013; five counts of violating section 458.331(1)(q) by prescribing controlled substances inappropriately or excessively; five counts of violating section 458.331(1)(t) by committing medical malpractice; five counts of violating section 458.331(1)(m) by failing to keep adequate, legible medical records; and one count of violating section 458.331(1)(cc) by prescribing a Schedule II amphetamine without a diagnosis supporting the prescription. Petitioner’s Administrative Complaint concerned five patients: A.M., B.B., C.C., W.B., and
On June 7, 2012, Dr. Mubang disputed allegations of material fact contained in Petitioner’s Administrative Complaint and requested a formal hearing. On July 23, 2012, Petitioner forwarded the case to DOAH for assignment to an Administrative Law Judge (“ALJ”), and it was assigned DOAH Case No. 12-2517PL.
By Order entered January 31, 2013, the ALJ relinquished jurisdiction without prejudice so the parties could present a settlement agreement to the Board of Medicine. The settlement agreement was not approved. On September 19, 2017, Petitioner filed an Amended Administrative Complaint against Dr. Mubang in a separate case, DOH Case No. 2013-12846, which is DOAH Case
No. 18-0528PL. The Amended Administrative Complaint charged the doctor with one count of violating section 458.331(1)(t) by committing medical malpractice and one count of violating section 458.331(1)(m) by failing to keep adequate, legible medical records, concerning his treatment of Patient B.D. On October 18, 2017, Dr. Mubang disputed allegations of material fact in Petitioner’s Amended Administrative Complaint and requested a formal hearing. On January 31, 2018, Petitioner
forwarded both cases to DOAH for assignment to an ALJ. The cases were consolidated for hearing by Order dated February 14, 2018.
By notice issued February 22, 2018, the consolidated cases were scheduled for hearing on June 11, 12, 14, and 15, 2018. The hearing was continued twice, once by joint request and once by Petitioner’s request. The hearing was rescheduled for
December 18 and 19, 2018, at which time the hearing was commenced and concluded.
The parties filed a Joint Pre-hearing Stipulation on December 10, 2018. The Joint Pre-Hearing Stipulation included
facts for which the parties stipulated no evidence would be required at hearing. Where relevant, those facts have been incorporated into this Recommended Order. At hearing, Petitioner presented the testimony of DOH Investigator Victor Troupe.
Petitioner also presented the testimony of Dr. Robert Guskiewicz via telephone at the hearing and via deposition in lieu of live testimony. Joint Exhibits 1 through 7 were admitted into evidence without objection. Petitioner offered Exhibits 1, 2, 3
(except for Bates-stamped page 78), 4, 5, and 6, all of which were admitted into evidence. Respondent testified on his own behalf and presented the testimony of Dr. Thomas Simopoulos via deposition in lieu of live testimony. Respondent offered Exhibits 1, 2, 4, 7, and 8, all of which were admitted into evidence without objection.
The Transcript of the hearing was filed with DOAH on January 17, 2019. Petitioner and Respondent’s Proposed Recommended Orders were timely filed on February 25, 2019, with a limit of 60 pages (by Order), and have been considered in the preparation of this Recommended Order.
References to statutes are to Florida Statutes (2005-2012), those in place at the time the alleged violations occurred, unless otherwise noted.
FINDINGS OF FACT
Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes.
At all times material to this matter, Dr. Mubang was a licensed physician within the State of Florida, having been issued license number ME55171.
Respondent’s address of record is 741 Martin Luther King Boulevard West, Seffner, Florida 33584.
Since at least March 17, 2010, Dr. Mubang’s practice at 741 Martin Luther King Boulevard has been registered as a pain management clinic with Petitioner.
Dr. Mubang is board-certified in geriatric medicine and ambulatory medicine.
Dr. Mubang immigrated to the United States from Cameroon, West Africa, to obtain his college education at State University of New York-Buffalo (“SUNY-Buffalo”). Dr. Mubang received a bachelor of arts degree in biology from SUNY-Buffalo.
Dr. Mubang attended medical school at Southwestern University School of Medicine in the Philippines.
Upon completion of his medical education, Dr. Mubang attended the Medical College of Pennsylvania for clinical rotations. He performed his residency at State University of New York-Brooklyn and Hahnemann University.
Dr. Mubang’s license was first issued June 14, 1989, and is valid through January 31, 2020. His license has not been the subject of prior discipline.
Dr. Mubang has maintained his Drug Enforcement Agency (“DEA”) Certificate of Registration without revocation, suspension, or other sanction. He has additionally qualified for, and obtained, a separate DEA Certificate of Registration to dispense Suboxone and buprenorphine. This secondary DEA Certificate of Registration requires training in addiction medicine.
Dr. Mubang has continuously practiced as the primary care physician for many of his patients. He began his practice in Florida with CIGNA Health Group in one of its managed care clinics at University Mall in Tampa.
When CIGNA closed its clinics, Dr. Mubang became employed by Correctional Medical Services (“CMS”), initially at Lake Correctional Facility, and then as the medical director for the Hillsborough County Sheriff’s Office. During his tenure with the Hillsborough County Sheriff’s Office, Dr. Mubang was recognized as the “Medical Director of the Year” for CMS in 1998.
After leaving the Hillsborough County Sheriff’s Office, Dr. Mubang joined a practice with Dr. Encarnacion in Seffner, Florida. When Dr. Encarnacion retired, Dr. Mubang acquired the practice.
In May 2009, Dr. Mubang received from the Board of Medicine and the Department of Health a publication entitled, “responsible opioid prescribing.”
Dr. Mubang learned through his participation in various continuing medical education seminars about certain forms recommended for the treatment of patients suffering from chronic pain. He did not use electronic medical records prior to the dates of treatment charged in these consolidated Administrative Complaints.
While in private practice, Dr. Mubang continued to treat patients committed to the State of Florida Juvenile Assessment Centers in Pasco, Pinellas, Sarasota, and Manatee counties.
Dr. Mubang’s practice was licensed as a pain management clinic in 2010, despite his having limited formal training or education in pain management. Since initial licensure, his pain management clinic has remained continuously in operation, and has consistently passed all inspections.
Pain Management Clinics are subject to annual inspections by DOH pursuant to section 458.3265(4)(a). Dr. Mubang’s Pain Management Clinic has never failed an inspection.
DOH Investigator Victor Troupe of the Investigative Services Unit performed inspections of Dr. Mubang’s clinic. The clinic passed inspection.
Dr. Mubang’s charged treatment of Patients A.M., B.B., C.C., W.B., and M.H., as alleged in the Administrative Complaint, occurred prior to October 17, 2010, the effective date of revised rule 64B8-9.013.
Both parties presented expert witnesses board-certified in pain management to testify as to the standard of care required in this matter.
Dr. Robert Guskiewicz testified as a medical expert for Petitioner. Dr. Guskiewicz is board-certified by the American Board of Anesthesiology in anesthesiology with a subspecialty in pain medicine. Dr. Guskiewicz practices as part of a large multispecialty practice in Gainesville, Florida, called Southeast Integrated Medical (“SIMED”). SIMED’s practice areas include neurology, neurosurgery, rheumatology, gynecology, psychology, urology, physiatry, allergy, family practice, and internal medicine. Dr. Guskiewicz is not now, and never has been, a primary care physician. About 40 percent of Dr. Guskiewicz’s practice is performing injections or interventions on patients. Most of the balance is patients on medication management seeking to achieve better functionality.
Dr. Guskiewicz defines the standard of care as “what a prudent physician would do with a particular patient in a particular situation at that particular time.”
In his practice, Dr. Guskiewicz prescribes 30 mg of oxycodone. Oxycodone is an effective pain medication. According to him, there is no maximum recommended dose for 30 mg of oxycodone.
For the purposes of his expert testimony,
Dr. Guskiewicz has no knowledge or information regarding
Dr. Mubang or his practice. He does not know how big the clinic is where Dr. Mubang practices, who owns it, how many patients are seen each day, how many employees work there, or the types of patients treated there.
Dr. Guskiewicz was paid an hourly fee for his expert testimony and preparation for deposition in this matter.
Dr. Guskiewicz testified that he did a page-by-page review of the medical records he initially reviewed and those provided for his deposition in lieu of live testimony.
Dr. Guskiewicz testified that the records were identical for Patients A.M., B.B., W.B., and M.H., but that the Bates numbers for the records for Patients C.C. and B.D. were not in sync.
For Patient B.B., it was apparent at the hearing that Dr. Guskiewicz was in possession of the requisite records, which Respondent argued, had not been reviewed.
For Patient M.H., Dr. Mubang argued that Joint
Exhibit 6, covering records of treatment from 2010-2012, was not reviewed by Dr. Guskiewicz. Dr. Guskiewicz testified that the records for Patient M.H. were identical. In any event, the records subject to Respondent’s objection concern treatment after the treatment dates at issue in the Administrative Complaint.
Only the records concerning the allegations contained in the Administrative Complaints will be considered for purposes of this Recommended Order.
Dr. Mubang also raised the issue that Dr. Guskiewicz was not a similarly situated practitioner to Respondent.
Dr. Mubang self-identified as practicing in pain management, and he owned and operated a clinic that was registered as a pain management clinic with DOH.
Each patient treated by Dr. Mubang signed an Attestation for Pain Management, along with an Agreement for Treatment with Controlled Substances Therapy for Pain.
Dr. Mubang acknowledged that if he gave a patient a pain management agreement, he was providing pain management to that patient.
If a health care provider is providing evaluation, treatment, or diagnosis for a condition that is not within his or her specialty, a specialist trained in the evaluation, treatment, or diagnosis for that condition shall be considered a similar health care provider, pursuant to section 766.102(8), Florida Statutes.
Because Respondent’s care at issue in this case is pain management, which is not specifically within his specialty,
Dr. Guskiewicz is considered a similarly situated practitioner to Respondent.
Petitioner did not provide Dr. Guskiewicz with any deposition testimony in this action until after his deposition in lieu of live testimony on October 9, 2018. Consequently, the depositions were not considered at the time Dr. Guskiewicz prepared his reports in this action.
Dr. Guskiewicz never interviewed any of the patients at issue in this matter; never conducted any physical examination of the patients; and does not know where any of these patients are today. Further, he does not know what their current condition is; whether any of the patients are still receiving treatment for chronic pain; and whether any of the patients are still receiving opioid pain medications for the treatment of chronic pain.
During the time periods relevant to these consolidated actions, Florida did not have a prescription drug monitoring database or E-FORCSE.
At the time Dr. Guskiewicz authored his November 29, 2011, report, there was not a prescription drug monitoring database in Florida to permit practitioners to verify a patient’s representations about the medications they were taking and who had prescribed them.
Dr. Guskiewicz is not a primary care physician, and has never been called upon to cover for a primary care physician who is treating a patient and has an ongoing relationship with that patient.
Dr. Guskiewicz agrees that physicians in Florida have an obligation to consider their patients’ subjective complaints of pain and to treat them.
Dr. Guskiewicz defines pain management as “treating patients who have chronic pain and provide different modalities of care to increase the functionality and well-being within that patient.” The goal of pain management is to optimize the patient’s functionality, lifestyle, and well-being within his or her family and community.
Dr. Guskiewicz acknowledged that a patient coming to him for medical management of his or her pain is looking for an
increase in function so he or she can get back to work and participate in normal activities of daily living.
Dr. Guskiewicz defines intractable pain as “pain that perpetuates itself no matter what modalities are tried and will always be there. It’s now thought of being a more centralized pain that is basically within the brain itself.”
Dr. Thomas Simopoulos testified as a medical expert for Respondent. Dr. Simopoulos is board-certified by the American Board of Anesthesiology in anesthesiology with a subspecialty in pain medicine.
Dr. Simopoulos testifies as an expert for the defense more than 90 percent of the time. In the last five years, Respondent’s counsel has paid Dr. Simopoulos $30,000 to $50,000 in expert witness fees.
Dr. Simopoulos lives in and practices medicine in Massachusetts. Dr. Simopoulos is not licensed to practice medicine in any other state; and he has never practiced medicine in the State of Florida.
Dr. Simopoulos testified that the standard of care at the time material to this case was more regional than national.
Dr. Simopoulos educated himself about the regional standard of care in Florida through conversations with his students and through hearing from people at national meetings.
Dr. Simopoulos testified that patients have the right to reject a surgical recommendation: “Patients who are younger, in their more productive years, may not want to seek out surgery as a solution, particularly of the spine because it usually means that they’re at risk for having multiple surgeries. So and that even continues today, we try to manage younger folks with more conservative measure [sic], including medications to try to avoid
surgery, because we know where that trajectory is going to go.”
Dr. Simopoulos admitted that there were no studies at the time material to this case that revealed the exact nature and course of practice in the State of Florida.
While Dr. Simopoulos is credited as an expert in anesthesiology and pain management, his reliance on the second- hand accounts from students and conferences he attended to form his opinions about the regional standard of care in Florida, are not as persuasive as the accounts of Dr. Guskiewicz, a physician practicing in the area of anesthesiology and pain management in Florida. Accordingly, Dr. Guskiewicz’s testimony is entitled to greater weight in this proceeding.
Dr. Simopoulos also opined that the standard of care can only be violated when a patient is harmed. DOH argued that his definition is inconsistent with the definition in Florida law as contained in section 766.102(1).
DOH Investigator Victor Troupe served a subpoena on September 2, 2010, for patient records to include: A.M., B.B., C.C., M.H., and W.B.
Investigator Troupe took possession of the original files on that date. He has no reason to believe those patient files had been altered in any way.
Investigator Troupe had performed numerous annual inspections of Dr. Mubang’s clinic, and neither found any violations or issued any citations.
Investigator Troupe never interviewed Patients A.M., B.B., C.C., M.H., W.B., or B.D. Further, Investigator Troupe has no knowledge or information regarding the present whereabouts of any of those individuals. Finally, he has no information about whether those patients are still receiving opioid analgesic pain medication, even though DOH has access to E-FORCSE for investigative purposes.
Drug Definitions
Oxycodone is commonly prescribed to treat pain.
Roxicodone is a brand name for oxycodone. Oxycodone is a Schedule II controlled substance. Oxycodone will be used throughout this Order, even if the brand name Roxicodone was prescribed.
All Schedule II controlled substances have a high potential for abuse and have currently accepted, but severely
restricted, medical use in treatment in the United States. Abuse of Schedule II controlled substances may lead to severe psychological or physical dependence. § 893.03(2), Fla. Stat.
Fentanyl is a very strong opioid that is prescribed to treat pain and is listed as a Schedule II controlled substance.
§ 893.03(2)(b), Fla. Stat.
Hydromorphone is a Schedule II controlled substance that is commonly prescribed to treat pain. Hydromorphone is commonly prescribed under the brand name Dilaudid.
§ 893.03(2)(a), Fla. Stat.
Methadone is a synthetic opioid prescribed to treat pain. Methadone is a Schedule II controlled substance.
§ 893.03(2)(b), Fla. Stat.
Vicodin and Lortab are brand names for hydrocodone/APAP. Hydrocodone/APAP contains hydrocodone and acetaminophen and is prescribed to treat pain. Hydrocodone in the dosages found in Vicodin is a Schedule III controlled substance. § 893.03(3)(c)4., Fla. Stat.
All Schedule III controlled substances have a potential for abuse less than the substances in Schedules I and II. Abuse of Schedule III controlled substances may lead to moderate or low physical dependence or high psychological dependence.
§ 893.03(3), Fla. Stat.
Fiorinal with codeine is the brand name for a drug that contains butalbital and codeine and is commonly prescribed to treat migraine headaches. Butalbital is a Schedule III controlled substance. Codeine is commonly prescribed to treat pain. Codeine is a Schedule II controlled substance.
§ 893.03(3)(a) and (2)(a), Fla. Stat.
Ultram is a brand name for tramadol, an opioid-class narcotic medication prescribed to treat pain. At the time of the events of this case, tramadol was not a controlled substance. Tramadol is currently a Schedule IV controlled substance.
§ 893.03(4)(b), Fla. Stat. (2018).
All Schedule IV controlled substances have a low potential for abuse relative to the substances in Schedule III. Abuse of Schedule IV controlled substances may lead to limited physical or psychological dependence relative to the substances in Schedule III. § 893.03(4), Fla. Stat.
Soma is the brand name for carisoprodol. Carisoprodol is a muscle relaxant commonly prescribed to treat muscular pain. Carisoprodol is a Schedule IV controlled substance. § 893.03(4), Fla. Stat.
Adderall is the brand name for a drug that contains amphetamine. Adderall is commonly prescribed to treat attention deficit disorder (“ADD”). Adderall is a Schedule II controlled substance. § 893.03(2)(c), Fla. Stat.
Xanax is the brand name for alprazolam. Klonopin is the brand name for clonazepam. Valium is the brand name for diazepam. All three drugs are benzodiazepine-class drugs prescribed to treat anxiety, and all three drugs are Schedule IV controlled substances.
During the time Respondent treated the five patients, who are the subject of the DOH Case No. 2010-12384, Florida did not have a prescription drug monitoring database. Before
E-FORCSE, practitioners had to rely upon a patient’s representation regarding his or her medication history and verify the information by calling identified pharmacies. This “trust but verify” policy was in place at Dr. Mubang’s practice.
During the time of Dr. Mubang’s treatment of these patients, he received a letter from Ana M. Viamonte Ros, M.D., the surgeon general for the State of Florida, and Fred Bearison, M.D., the chairman of the Florida Board of Medicine, dated May 13, 2009. That letter enclosed a copy of Responsible
Opioid Prescribing, A Physician’s Guide, written by Scott M. Fishman, M.D. The letter advised Dr. Mubang, and others similarly situated, that Dr. Fishman’s book “is a practical guide to Florida’s current standards for the use of controlled substances for the treatment of pain,” based upon the Federation of State Medical Board’s Model Rule, “so it is right on point for Florida practicing doctors.”
The book also stated, at page 25:
Although Medicare and other institutions have defined what constitutes a physical examination for purposes of coding and reimbursement, exactly what comprises an appropriate or acceptable physical examination for pain is not well-defined, largely because it will differ from case to case. Regulators who expect to see a physical examination as part of the evaluation that leads to appropriate pain care involving controlled substances assume that a basic, if not focused, examination is warranted. The exact components of the examination are left to the judgment of the clinician who is expected to have performed an examination proportionate to the diagnosis that justifies a treatment.
Dr. Mubang testified at the hearing, “many point-of- care screens for ‘opiates’ do not reliably detect any opioid other than codeine and morphine, or may not report if levels are below a certain threshold. Therefore, they may give false negative results for semisynthetic and synthetic oil opioid analgesics.”
Dr. Mubang received feedback from pharmacists and patients regarding limitations on prescribing imposed on distributors and pharmacies by the DEA, including during the fall of 2010.
During the time Dr. Mubang treated the six patients subject to these consolidated administrative actions, there was no upper limit recommended or identified regarding the maximum dosage for opioid analgesics.
New patients to Dr. Mubang’s practice have to fill out paperwork, including a patient history. Patients were also required to sign an opioid contract, which mandated patients to use only one pharmacy and required that the patient only obtain medication from Dr. Mubang.
Dr. Mubang obtained authorizations for release of medical information to acquire records of prior treating physicians. His office consistently obtained prior records, including MRIs and other diagnostic studies.
Dr. Mubang testified that he performed a physical examination of each patient on each office visit. The initial exam was broad, while follow-up examinations were focal. His physical examinations included a review of systems, from head to toe.
He stated that each physical examination included a review of the patient’s neurological status and notes whether the patient is oriented to person, time, and place. Dr. Mubang’s practice was to observe patients in his waiting room, and watch each patient as they come to the exam room. This observation is intended to identify things like gait abnormalities, guarding, and posture.
Pain patients in Dr. Mubang’s practice are required to complete a Brief Pain Inventory, which he reviews with each patient. Dr. Mubang also reviews past medications with each
patient to determine whether the medication has been effective in relieving pain and increasing activities of daily living. He reviews with each patient potential side effects of medication and the risks and benefits of using those medications.
Dr. Mubang prepares a progress note for each office visit with a patient. Additionally, he maintains copies of each prescription issued to a patient.
The identified treatment plan for each of these six patients was to improve the patient’s functional abilities, to allow them to return to work, and to participate in relationships.
Dr. Mubang periodically required patients to submit to a urine immunoassay. This is a presumptive screening test for illicit substances and some other controlled substances. As
Dr. Fishman points out on page 61 in his book Responsible Opioid Prescribing, Dr. Mubang was aware that “point-of-care screens for
opioids do not reliably detect any opiate other than codeine and morphine.”
During the 2010 timeframe, a physician who ordered a urine drug screen was not required to do anything with the results. Further, the requirements of rule 64B8-9.013(3)(d) to monitor patient compliance were not mandatory until after October 17, 2010.
Dr. Mubang is aware of the sedative effects of opioids taken with muscle relaxants like Soma. This combination of medication should be dispensed with caution, but if a patient has been taking it for a period of time with no problems, he believes the prescription is appropriate.
Dr. Mubang’s approach to changing pain medication, as explored more fully in the following discussion of the six patients subject to this proceeding is consistent, but deserves close scrutiny. He testified that:
If the vital signs are stable, you can do what you want, so long as it doesn't have consequences. If you see the visit after this, this patient did not come in with hypertension or they did not end up in the hospital or I was not called at 2:00 in the morning. So it tells you what you're doing is right. See? That's why we do these vital signs.
The Patients
Each of the patients in this cause completed a two-page questionnaire about his or her pain, titled “brief pain inventory,” during each visit after the initial visit. The pain inventory contained: an anatomical figure for the patient to mark painful areas, 12 questions with a one-to-ten scale for pain level and for activities of daily living, and spaces for the patient to describe the pain in writing. Dr. Mubang’s progress notes for each of the patients consisted of a printed form, containing a similar anatomical figure at the top of the page
with most of the rest of the page containing a checklist for “assessment.”
Patient A.M.
From December 22, 2009, to October 20, 2010,
Dr. Mubang provided pain management treatment to Patient A.M., a then 23-year-old female, for lower back pain related to a car accident that occurred several years earlier.
Dr. Mubang had first begun treating Patient A.M. while covering for Dr. Luis Azan at Plant City Polyclinic, where he prescribed her 240 30 mg tablets of oxycodone and 120 10 mg tablets of methadone.
Dr. Mubang noted that Patient A.M. had been a passenger in the back of the car and was wearing a seatbelt. He noted that Patient A.M. did not lose consciousness, and while she went to the emergency room, she did not have an in-patient stay.
On her initial evaluation questionnaire, Patient A.M. reported trying four alternative treatment methods for her pain out of 18 possible treatment options on Dr. Mubang’s checklist form: chiropractic treatment (no relief); muscle injections (no relief); massage (no relief); and pain relievers (some relief). By her own report, Patient A.M. had not tried physical therapy, nerve blocks, or surgery.
Patient A.M. had sequential MRI findings from
November 7, 2007 (ordered by Dr. Murthy Ravipati), and March 23,
2010 (ordered by Dr. Mubang), which demonstrated a central focal disc protrusion (herniated nucleus pulposus) at L5-S1.
On her first visit at his office, Dr. Mubang increased Patient A.M.’s oxycodone from 240 to 270 30 mg tablets per month. He failed to document a rationale for the 30-pill increase.
Dr. Mubang’s medical records included Patient A.M.’s medical history and physical examination; diagnostic, therapeutic, and laboratory results; evaluations and consultations; objectives identified; risks and benefits of the treatment ordered; treatments and medications ordered and documented; and instructions and agreements regarding pain management.
Dr. Mubang made referrals to consulting physicians, including Dr. Goldsmith (orthopedic) and physical therapy (Select Physical Therapy).
From December 22, 2009, to August 27, 2010, Dr. Mubang prescribed 270 30 mg tablets of oxycodone in combination with
120 10 mg tablets of methadone to Patient A.M. monthly. In ten months, Patient A.M. received 3,870 pain pills from Dr. Mubang.
In order to take the pain medication as prescribed, Patient A.M. would have to take 13 pain pills per day.
By comparison, Dr. Mubang’s expert, Dr. Simopoulos, testified that in his practice the most 30 mg of oxycodone that
he ever prescribed was six tablets per day, or 180-200 tablets per month. Petitioner’s expert, Dr. Guskiewicz, testified that in his practice the most 30 mg of oxycodone that he ever prescribed was five per day, or 150 tablets.
In addition to the pain medication, Dr. Mubang prescribed 90 350 mg tablets of Soma to Patient A.M. per month.
On August 2, 2010, Dr. Mubang ordered a urine drug screen for Patient A.M. The drug screen was positive for benzodiazepines and negative for methadone.
If a patient tests negative for a prescribed medication, the physician should consider the possibility that the patient is not taking the drug and, instead, is diverting it.
Given Patient A.M.’s negative test for methadone, Dr. Mubang should not have continued to prescribe methadone to her, or at least should have questioned her about her usage of the prescribed drug.
Despite the aberrant test result, Dr. Mubang continued to prescribe potentially lethal doses of oxycodone, methadone, and Soma to Patient A.M.
Further, from December 22, 2009, through August 27, 2010, Dr. Mubang did not perform nor did he document performing a complete and adequate physical examination or medical history to justify his prescribing of potentially lethal doses of methadone, oxycodone, and Soma to Patient A.M.
From December 22, 2009, through August 27, 2010, Dr. Mubang did not diagnose Patient A.M. with intractable pain prior to prescribing potentially lethal doses of methadone, oxycodone, and Soma to Patient A.M.
To meet the standard of care, Dr. Mubang should have immediately reduced the amount of medication that he prescribed to Patient A.M. Additionally, he should have tried to determine the root cause of Patient A.M.’s pain. Dr. Mubang should have followed up on his ordering of alternative treatment modalities, such as physical therapy, and if Patient A.M. refused to follow his instructions, he should have discharged Patient A.M.
While Dr. Mubang’s records are at times difficult to read, some were legible enough for review by the two experts who offered opinions in this matter. On the whole, however, the medical records for Patient A.M. were inadequate (and some of them were actually illegible) to provide complete information to either Dr. Mubang or another reviewing physician or investigator.
Patient B.B.
From March 25, 2010, to August 23, 2010, Respondent provided pain management treatment to Patient B.B., a then 25- year-old female.
Patient B.B. initially visited Dr. Mubang on March 25, 2010, with a history of cervical spinal fusion in 2003 following a motor vehicle accident.
Dr. Mubang’s Initial Evaluation documented a thorough review of systems, including skin; HEENT (head, eyes, ears, nose, and throat); neurological; and musculoskeletal. Simultaneously, Dr. Mubang and the patient completed a Pain Questionnaire documenting the location and severity of Patient B.B.’s pain and other treatment modalities, which had been tried, but failed (surgery, braces, chiropractic, physical therapy, TENS, and massage).
On her initial visit with Dr. Mubang, Patient B.B. reported having neck, shoulder, and upper back pain.
Dr. Mubang noted on his initial range of motion assessment that Patient B.B. had no thoraco-lumbar spine pain.
Patient B.B. never indicated on her brief pain inventories that she had pain radiating down the leg. Instead, she consistently marked pain in the neck, radiating down the right arm, and pain in the middle back.
After the initial visit, Dr. Mubang recorded that Patient B.B. had lower back pain by noting “LBP & radiculopathy” with a line drawn down the leg of the anatomical figure.
Dr. Mubang’s explanation for the discrepancy between his notation on the anatomical figure and Patient B.B.’s notation was that the patient was noting pain, but that he was noting tenderness. He did not explain the difference.
As discussed below, this same inconsistency appears frequently in many of the patients’ records. Dr. Mubang’s offered explanation for the discrepancy between his records and the patient-generated records is not credible.
From March 25, 2010, to August 23, 2010, Dr. Mubang prescribed 240 30 mg tablets of oxycodone in combination with
60 2 mg tablets of Xanax to Patient B.B. monthly.
From March 25, 2010, to May 20, 2010, Dr. Mubang also prescribed 120 350 mg tablets of Soma to Patient B.B., in addition to the oxycodone and Xanax each month.
To justify the amount of Xanax he prescribed to Patient B.B., Dr. Mubang relied on an anxiety checklist questionnaire completed by Patient B.B.
In his practice, if a patient marked five to six of the criteria on his anxiety checklist, Dr. Mubang would prescribe the patient Xanax.
For Patient B.B., on three of his five progress notes, Dr. Mubang checked the box for anxiety. Other than that, there is no annotation or documentation by Dr. Mubang concerning Patient B.B.’s anxiety.
From March 25, 2010, through August 23, 2010, based on Patient B.B.’s history and physical findings, Dr. Mubang prescribed potentially lethal doses of oxycodone, Xanax, and Soma
to Patient B.B. in excessive quantities and without sufficient justification.
From March 25, 2010, through August 23, 2010,
Dr. Mubang neither performed nor documented performing a complete and adequate physical examination or medical history to justify his prescribing of potentially lethal doses of oxycodone, Xanax, and Soma to Patient B.B.
From March 25, 2010, through August 23, 2010,
Dr. Mubang failed to diagnose Patient B.B. with an anxiety disorder, which would have supported his prescribing of Xanax to Patient B.B.
From March 25, 2010, through August 23, 2010,
Dr. Mubang did not diagnose Patient B.B. with intractable pain prior to prescribing potentially lethal doses of oxycodone, Xanax, and Soma to Patient B.B.
To meet the standard of care, Dr. Mubang should have done more to treat Patient B.B.’s underlying source of pain through referrals for physical therapy or orthopedics. Depending on the particular findings, he should have tried intervention care to relieve Patient B.B.’s pain instead of relying solely on medication management, particularly, excessive amounts of oxycodone. Patient B.B., as a relatively young patient, would have benefited from more aggressive physical therapy, massage
therapy, and other treatment modalities to keep her off of addictive pain medication as much as possible.
Dr. Mubang attempted, in part, to justify his excessive amounts of medications, based upon The Super Saver pharmacy profile for Patient B.B., which confirms that this patient was receiving the same quantities and combination of medications from the prior physician, Ibem R. Borges, M.D.
He also cites rule 64B8-9.013 (2003) to support the heavy prescribing of medications, which indicates the Board of Medicine will not judge the validity of prescribing, “based upon the quantity and chronicity,” and that a “physician’s conduct will be evaluated to a great extent by treatment outcome.” He argues that Petitioner failed to introduce any evidence to establish Patient B.B. suffered any adverse effect from Dr. Mubang’s treatment.
Patient C.C.
From April 29, 2010, to May 28, 2012, Dr. Mubang provided pain management treatment to Patient C.C., a then 32-year-old female.
At her initial evaluation, Patient C.C. reported having lower back pain and left knee pain.
On her subsequent brief pain inventories, Patient C.C. consistently marked pain at the middle of the lower back and pain at the left knee.
Almost identical to Patient B.B., Dr. Mubang’s progress notes for Patient C.C. note “LBP & radiculopathy” with a line drawn down the leg of an anatomical figure indicating pain radiating down the leg.
Contained in Respondent’s records were notes from two prior treating providers, Drs. David Herson and Marc Weinstein.
On a note dated February 27, 2007, Dr. Herson noted that Patient C.C.’s cervical and lumbar range of motion was within normal limits, and he noted no tenderness to palpation of the lumbar spine. Dr. Herson recommended epidural injections to Patient C.C. for the left knee pain. Dr. Herson prescribed Patient C.C. 30 tablets of Ultram for her pain.
On a note dated March 1, 2007, Dr. Weinstein noted that “MRI scans of her cervical and lumbar spine and left knee were performed and show no significant abnormalities that would require surgery.”
From April 29, 2010, to August 19, 2010, Dr. Mubang prescribed 290 30 mg tablets of oxycodone in combination with
180 10 mg tablets of methadone to Patient C.C. monthly. In a period of four months, Patient C.C. received 2,350 pain pills from Dr. Mubang, which equates to a daily prescription of
15.5 pills.
In addition to addictive pain medication, Dr. Mubang also prescribed 60 2 mg tablets of Xanax to Patient C.C. per
month. Opioids and benzodiazepines in combination increase the risk of respiratory depression, which can be fatal.
On April 29, 2010, and May 27, 2010, Dr. Mubang added
90 350 mg tablets of Soma to the potentially lethal cocktail of medications he prescribed to Patient C.C.
Dr. Mubang failed to document his rationale for starting and stopping Soma.
On April 29, 2010, as part of her initial evaluation with Dr. Mubang, Patient C.C. reported to him that her current medications were oxycodone, methadone, Xanax, and Soma.
On April 29, 2010, Dr. Mubang ordered a urine drug screen for Patient C.C. The drug screen was positive for opiates, oxycodone, and benzodiazepines, but was negative for methadone.
Opiates and opioids are discernibly different categories of drugs. Opiates are morphine derivatives. Opioids are synthetic opiates. No medications Patient C.C. reported taking were opiates.
The standard of care required Dr. Mubang to inquire as to the reasons behind the aberrant drug test result and adjust Patient C.C.’s medications accordingly.
In his 2012 deposition, Dr. Mubang speculated that he may have consulted Patient C.C. about the drug test and that maybe she ran out of medication. He could not tell from his
records if he discussed the results with Patient C.C. or the reason for the aberrant test result because his records lacked any such information.
At the final hearing in this matter, Dr. Mubang raised for the first time the defense that the urine drug screen he used at that time was incapable of testing for methadone. He also argued that if a patient is taking oxycodone and methadone together, then either one, both, or neither may show up positive on a urine drug screen due to “tolerance” and methadone’s interaction with oxycodone and with the NMDA (the amino acid neuro receptor that increases the tolerance of oxycodone by interacting with methadone). This was a clear misunderstanding by Dr. Mubang of his expert’s testimony regarding the use of methadone in pain management.
Dr. Mubang testified many times at hearing that methadone has a tolerance effect on oxycodone, which causes a physician to increase the dose of oxycodone.
Respondent’s testimony was incongruent with the description given by his expert witness. Dr. Simopoulos explained that methadone can antagonize NMDA receptors, which can help some patients who have a tolerance to oxycodone. However, Dr. Simopoulos’s testimony regarding NMDA did not relate to the ability to detect methadone in a urine drug screen.
Despite the negative test result for methadone, during the same visit, Dr. Mubang prescribed 180 10 mg tablets of methadone to Patient C.C. No questions of whether Patient C.C. may have diverted her methadone or notations of such were in the doctor’s notes.
Dr. Mubang failed to order a second urine drug screen for Patient C.C. until ten months later on February 2, 2011. The second test was also negative for the prescribed medication methadone.
From April 29, 2010, through August 19, 2010, based on Patient C.C.’s presentation, Dr. Mubang prescribed potentially lethal doses of oxycodone, methadone, Xanax, and Soma to
Patient C.C. inappropriately, in excessive quantities, and without justification.
From April 29, 2010, through August 19, 2010,
Dr. Mubang neither performed nor documented performing a complete and adequate physical examination or medical history to justify his prescribing potentially lethal doses of oxycodone, methadone, Xanax, and Soma to Patient C.C.
Dr. Mubang did not diagnose Patient C.C. with intractable pain prior to prescribing to the patient the potentially lethal doses of oxycodone, methadone, Xanax, and Soma.
To meet the standard of care, Dr. Mubang should not have prescribed such large amounts of pain medication to Patient C.C., a patient who did not have a significant pathology for pain. Instead, he should have pursued other treatment modalities, such as injections and physical therapy.
Patient W.B.
From December 13, 2008, to February 18, 2011,
Dr. Mubang provided pain management treatment to Patient W.B., a then 52-year-old male.
On or about April 20, 2008, prior to visiting Dr. Mubang, Patient W.B. presented to the emergency room at Sarasota Memorial Hospital after being hit by a “slow moving vehicle,” while riding his bicycle.
The emergency room physician diagnosed Patient W.B. with a bruise of the left knee and left hip and prescribed an unknown quantity of 7.5 mg Lortab to Patient W.B.
Patient W.B. then visited Physician’s Group, LLC, in Sarasota for follow-up care on April 20, May 28, November 11, and December 2, 2008.
On May 28, 2008, Patient W.B. reported to a provider at Physician’s Group, LLC, that he had taken Dilaudid from a friend.
On November 11, 2008, Patient W.B. saw Dr. Frederic Sonstein. Dr. Sonstein noted that Patient W.B. missed a
scheduled appointment because he was incarcerated. While incarcerated, Patient W.B. was treated with Flexeril and Ultram.
Dr. Sonstein recommended referral to a pain management specialist and prescribed Vicodin for pain control.
A November 24, 2008, MRI report of Patient W.B.’s lumbar spine was unremarkable.
On December 13, 2008, Patient W.B. came to Dr. Mubang and reported having pain in his neck and shoulders, with pain radiating down both arms.
In contrast to Patient W.B.’s report, on his initial range of motion evaluation, Dr. Mubang did not document any findings under cervical spine. Instead, he noted lumbar spine pain with radiculopathy.
On his initial evaluation questionnaire, Patient W.B. reported only having tried one alternative treatment method for his pain, “braces or cast.” By his own report, Patient W.B. had not tried any of the other alternative treatment options on
Dr. Mubang’s checklist form, such as physical therapy, chiropractic, muscle injections, or surgery.
Despite the minimal objective findings in
Patient W.B.’s history, Dr. Mubang began to prescribe escalating amounts of oxycodone to Patient W.B.
On December 13, 2008, Dr. Mubang prescribed 120 30 mg tablets of oxycodone to Patient W.B. Then, he increased the
amount of oxycodone he prescribed to Patient W.B. over the following monthly visits as follows: 150, 180, 210, 210, 240, 240, and ultimately settling at 270 30 mg tablets of oxycodone per month.
From December 13, 2008, to August 24, 2010, Dr. Mubang prescribed Patient W.B. 4,050 30 mg tablets of oxycodone.
On July 11, 2009, in addition to oxycodone and Soma, Dr. Mubang added Xanax and Fiorinal with codeine to
Patient W.B.’s monthly prescription regimen.
Like with Patient B.B., Dr. Mubang prescribed Xanax to Patient W.B. based on Patient W.B.’s answers to his checklist anxiety questionnaire.
On July 11, 2009, Dr. Mubang saw Patient W.B. and renewed his medication. He scheduled Patient W.B. to return on August 9, 2009; however, Patient W.B. missed the appointment.
Patient W.B. next visited Dr. Mubang two months later, on October 13, 2009.
Dr. Mubang failed to document the reason for Patient W.B.’s three-month absence. He failed to document if Patient W.B. continued to receive pain medication from another source. He did not note whether Patient W.B. experienced withdrawal symptoms without his oxycodone for two months or how
Patient W.B. managed his pain without oxycodone for two months.
Dr. Mubang admitted during the hearing that, “[i]t is important to me to know why he misses visits. And you're right. Your point is well-taken.”
Dr. Mubang’s own controlled substance agreement, which was executed by Patient W.B., explicitly stated that renewals are contingent on keeping scheduled appointments.
Despite the unexplained absence, on October 13, 2009, he renewed Patient W.B.’s prescriptions for 270 tablets oxycodone, 30 tablets Soma, 60 tablets Xanax, and 90 tablets of Fiorinal with codeine.
Dr. Mubang should not have restarted Patient W.B. at the same high dosage of oxycodone that he had previously prescribed, as it was potentially fatal.
On November 10, 2009, Dr. Mubang ordered a urine drug screen for Patient W.B. The drug screen was positive for cocaine and hydromorphone. The drug screen was negative for the prescribed medications Soma (carisoprodol) and Xanax (alprazolam).
Based upon the November 10, 2009, drug screen result, the standard of care required Dr. Mubang to refer Patient W.B. to a drug treatment center.
When questioned about the positive cocaine result, Dr. Mubang’s expert, Dr. Simopoulos, testified, “That’s the part where this patient has a substance abuse disorder, obviously.”
Dr. Simopoulos opined that, “if you are going to continue prescribing in this case, because the patient has duel diagnoses, you would want the input of a psychiatrist for this case.”
Patient W.B. next visited Dr. Mubang approximately three months later on February 9, 2010. Again, Dr. Mubang failed to document the reason for the absence.
At the February 9, 2010, visit, Dr. Mubang ordered a urine drug screen for Patient W.B., which returned completely negative results.
After a multi-month absence and with a completely negative urine drug screen, Patient W.B. would have been opioid negative.
In his 2012 deposition, Dr. Mubang theorized that the completely negative result may have been because Patient W.B. drove himself to his appointment and Dr. Mubang instructed his patients not to drive while on medication. This made little sense.
Despite the completely negative result and unexplained absence, Respondent prescribed Patient W.B. 270 tablets of oxycodone, 30 tablets of Soma, 60 tablets of Xanax, and
90 tablets of Fiorinal with codeine.
Again, Dr. Mubang should not have restarted Patient W.B. at the same high dosage of oxycodone that he had previously prescribed, as it was potentially fatal.
Despite prescribing 270 tablets of oxycodone per month to Patient W.B., or nine pills per day, Dr. Mubang testified at hearing that, “[i]f I give them what they call ‘breakthrough medications,’ like oxycodone, all these, they'll tell you some days they take it, some days they don't take it.”
Dr. Mubang was aware that Patient W.B. did not require nine oxycodone tablets per day and that the amount of oxycodone he prescribed to Patient W.B. was not justified.
The foregoing pattern of unexplained absence and completely negative urine drug screen result, followed by
Dr. Mubang renewing prescriptions, was repeated in November 2010.
From December 13, 2008, through November 10, 2010, Dr. Mubang prescribed potentially lethal doses of oxycodone, Soma, Xanax, and Fiorinal with codeine to Patient W.B. inappropriately, in excessive quantities, and without justification.
From December 13, 2008, through November 10, 2010, Dr. Mubang neither performed nor did he document performing a complete and adequate physical examination or medical history to justify his prescribing of the potentially lethal doses of oxycodone, Soma, Xanax, and Fiorinal with codeine to Patient W.B.
From December 13, 2008, through August 24, 2010, Respondent did not diagnose Patient W.B. with intractable pain
prior to prescribing potentially lethal doses of oxycodone, Soma, Xanax, and Fiorinal with codeine to Patient W.B.
To meet the standard of care, Dr. Mubang should have discontinued prescribing the amount of medication that he prescribed to Patient W.B. based on the minimal findings in Patient W.B.’s history and the minimal changes on examination. In addition, Dr. Mubang should have referred Patient W.B. to a drug treatment center.
Patient M.H.
From January 10, 2005, to May 29, 2012, Dr. Mubang provided pain management treatment to Patient M.H., who first visited him as a 29-year-old female, suffering lower back pain.
Prior to seeing Dr. Mubang, on March 24, 2004, Patient M.H. visited Dr. Edward Jacobson. Dr. Jacobson noted that Patient M.H. had been in a car accident on February 21, 2004, and that Patient M.H. was complaining of headaches. He prescribed 15 tablets of Vicodin to her.
On January 10, 2005, Patient M.H.’s first visit with Dr. Mubang, he prescribed her 60 tablets of Vicodin.
On January 21, 2005, Dr. Mubang added clonazepam and Adderall to Patient M.H.’s medication regimen.
Dr. Mubang’s note for the January 21, 2005, visit does not make any mention of Patient M.H. suffering from an anxiety disorder or ADD that would justify his use of clonazepam or
Adderall, save for a simple “ADD” noted in the assessment/plan portion of the form. Dr. Mubang should have referred Patient
M.H. to a psychiatrist for diagnostic confirmation of ADD before automatically prescribing (or refilling) the Adderall prescription.
From June 15, 2005, to March 7, 2007, Dr. Mubang prescribed Valium in combination with clonazepam to Patient M.H. monthly. Then on March 23, 2009, he discontinued clonazepam and started Patient M.H. on 90 2 mg tablets of Xanax.
Dr. Mubang neglected to document a justification for prescribing Patient M.H. benzodiazepine-class drugs, or for prescribing her a combination of two different benzodiazepine- class drugs, or for the changes he made to the benzodiazepines he prescribed.
On January 6, 2009, Patient M.H. reported having lower back pain from a car accident in 2003. Dr. Mubang noted that Patient M.H. was the driver of a car that was rear-ended. He also noted that Patient M.H. did not lose consciousness during the accident and did not go to the emergency room.
At the January 6, 2009, visit, Patient M.H. reported trying three alternative treatment methods for her pain. By her own report, Patient M.H. had not tried any of the other
18 alternative treatment options on Dr. Mubang’s checklist form, such as physical therapy, muscle injections, or surgery.
In 2009, for unexplained reasons, Dr. Mubang began significantly increasing Patient M.H.’s opioid pain medication. In January 2009, he increased Patient M.H.’s Vicodin from 60 to
90 tablets per month, then in July 2009 from 90 to 120 tablets per month. On October 19, 2009, Dr. Mubang prescribed Patient
M.H. ten 50 mcg patches of fentanyl in combination with
120 tablets of Vicodin. A 50 mcg fentanyl patch is intended to last for 72 hours; so, a prescription of ten patches is intended to last one month. Fentanyl is a very strong opioid. Based on Patient M.H.’s experience with opioids, Dr. Mubang’s prescribing fentanyl to Patient M.H. was potentially lethal.
On November 16, 2009, Dr. Mubang discontinued fentanyl and started Patient M.H. on 90 15 mg tablets of oxycodone, which he increased to 120 tablets the next month. Dr. Mubang prescribed the oxycodone in combination with 120 tablets of Vicodin.
At hearing, Dr. Mubang could not tell from his notes and was, therefore, unable to explain his rationale as to why he prescribed fentanyl to Patient M.H., or why he discontinued the fentanyl and started Patient M.H. on oxycodone. The limited documentation that was included in Dr. Mubang’s records contradicted his course of treatment, as he routinely documented that Patient M.H.’s pain was a two out of ten with medication.
From March 8, 2010, to June 28, 2010, Dr. Mubang added and then discontinued prescribing Soma to Patient M.H. His records do not contain any justification for starting
Patient M.H. on Soma or for stopping Soma.
On May 3, 2010, Dr. Mubang ordered a urine drug screen for Patient M.H. The urine drug screen result was negative for the prescribed medication oxycodone.
The standard of care required Dr. Mubang to ask about the reason for the aberrant result to determine whether she was taking the medications or diverting them. Depending upon
Patient M.H.’s answer, he should have ordered a repeat urine drug screen at the following visit.
Despite the negative test, Dr. Mubang continued to prescribe potentially lethal doses of oxycodone and Vicodin to Patient M.H.
From January 10, 2005, through August 23, 2010,
Dr. Mubang prescribed potentially lethal doses of Vicodin, Xanax, Adderall, Soma, Valium, clonazepam, fentanyl, or oxycodone to Patient M.H. inappropriately, in excessive quantities, and without justification.
From January 10, 2005, through August 23, 2010,
Dr. Mubang did not diagnose Patient M.H. with ADD or any other clinical indication to support his prescribing Adderall to Patient M.H.
From January 10, 2005, through August 23, 2010,
Dr. Mubang neither performed nor documented performing a complete and adequate physical examination or medical history to justify his prescribing of the potentially lethal doses of Vicodin, Xanax, Adderall, Soma, Valium, clonazepam, fentanyl, or oxycodone to Patient M.H.
Dr. Mubang did not diagnose Patient M.H. with intractable pain prior to prescribing to the patient the potentially lethal doses of Vicodin, Xanax, Adderall, Soma, Valium, clonazepam, fentanyl, or oxycodone.
To meet the standard of care in his treatment of Patient M.H., Dr. Mubang should not have prescribed fentanyl to Patient M.H. without sufficient medical justification, as doing so was life threatening. Respondent should have referred Patient
M.H. to specialists, such as orthopedics, physical therapy, and psychiatry. To the extent Dr. Mubang documented referrals to specialists, he should have followed up on his ordering of referrals to minimize the amount of medications he provided to Patient M.H., instead of escalating the amounts of pain medicine he prescribed.
Patient B.D.
From November 11, 2010, to November 8, 2012,
Dr. Mubang provided pain management treatment to Patient B.D., a then 24- to 26-year-old female.
In addition to lower back pain, Patient B.D. was also diagnosed with fibromyalgia.
Dr. Mubang’s medical records for Patient B.D. contain a note from Dr. Indira Koshy, a prior treating provider, for a visit on August 24, 2010, in New York.
Dr. Koshy noted that Patient B.D. was “entering rehab” and that Patient B.D. has seizures when she does not take her medications.
Dr. Koshy’s note indicates potential for doctor shopping.
At no point during his treatment of Patient B.D. did Dr. Mubang address the note from Dr. Koshy, specifically; Patient B.D.’s entry into rehabilitation; Patient B.D.’s seizures when she did not take her medications; or Patient B.D.’s potential for doctor shopping.
Dr. Mubang previously treated Patient B.D. at Care Point Medical Center as a covering physician. He testified that when covering as a physician he provided “continuation of care” and that his practice was not to change a patient’s medication. Despite his testimony, when covering at Care Point Medical Center, Dr. Mubang increased Patient B.D.’s oxycodone from
210 tablets per month to 240 tablets per month.
Then, on November 11, 2010, when Patient B.D. visited his practice, Dr. Mubang decreased her oxycodone from 240 to
180 tablets. As discussed below, this decrease came after he received notice of Petitioner’s investigation.
From November 11, 2010, until May 24, 2012, Dr. Mubang prescribed Patient B.D. 180 30 mg tablets of oxycodone, 30 or
60 10 mg tablets of methadone, 60 350 mg tablets of Soma, and
30 0.5 mg to 2 mg tablets of Xanax monthly.
On June 21, 2012, Dr. Mubang changed Patient B.D.’s prescribed muscle relaxant from Soma to baclofen; and on July 19, 2012, he changed Patient B.D.’s prescribed anxiolytic medication from 60 0.5 mg tablets of Xanax to 60 2 mg tablets of clonazepam.
Dr. Mubang did not document any justification for the foregoing medication changes.
From September 13, 2012, until November 8, 2012, Dr. Mubang prescribed 112 8 mg tablets of Dilaudid, 28 10 mg tablets of methadone, and 60 tablets of clonazepam to Patient B.D. monthly.
On June 23, 2011, Dr. Mubang performed a urine drug screen on Patient B.D. The drug screen was negative for benzodiazepines, even though he prescribed Xanax to Patient B.D. The urine drug screen was positive for methadone, despite
Dr. Mubang’s testimony that his urine drug screen could not detect methadone.
On December 8, 2011, and June 21, 2012, Dr. Mubang performed urine drug screens on Patient B.D. Both drug screens were negative for the prescribed medication methadone.
The standard of care required a reasonably prudent physician to question the patient about the aberrant urine drug screens results and cease prescribing methadone to a patient whose urine drug screen was negative for the drug.
Despite the negative test results, Dr. Mubang continued to prescribe methadone to Patient B.D.
From November 11, 2010, through November 8, 2012, Dr. Mubang neither performed nor documented performing an adequate history or physical examination to justify his prescribing of the potentially lethal controlled substances to Patient B.D.
From November 11, 2010, through November 8, 2012, based on Patient B.D.’s history and physical findings,
Dr. Mubang’s prescribing of the controlled substances to Patient B.D. was excessive and without justification.
From June 23, 2011, through November 8, 2012,
Dr. Mubang failed to address Patient B.D.’s aberrant urine drug screen results.
To meet the standard of care in his treatment of Patient B.D., Dr. Mubang should not have prescribed the quantity and combination of drugs he prescribed to Patient B.D. He should
have referred Patient B.D. for a rheumatology consult to confirm or rule out fibromyalgia and other diseases. He should have offered more physical therapy, and other, non-opioid modalities of care, and he should have routinely followed up with
Patient B.D. to ensure that she was complying with his orders.
Dr. Mubang testified that Soma was part of the “holy trinity,” which is a slang drug term used to refer to the prescription combination of oxycodone, a benzodiazepine, and Soma. He prescribed the “holy trinity” to five of the six patients in this cause.
Dr. Mubang’s Medical Records
Dr. Mubang’s medical records for the six patients, who are the subjects of the Administrative Complaints, were generally lacking in specificity to justify the level of his prescribing.
Some examples common to the patients at issue illustrate these shortcomings. For each visit for each of the patients, Dr. Mubang noted that the patient had straight leg raise pain at 30 degrees, even though he testified that a patient can have straight leg raise pain at 15, 20, 30, or 45 degrees. Maybe this was a coincidence, but more credibly it is a pattern of sloppiness or autofill by the doctor. Also, for each patient, Dr. Mubang routinely drew a line down one leg of the anatomical figure on his progress notes indicating radiculopathy, regardless of where the patient reported pain.
At hearing, on multiple occasions, Dr. Mubang could not determine his rationale for changing a patient’s medication regimen, based on his progress notes. His own expert,
Dr. Simopoulos, testified that, “there's not much rationale on the plans in--in Dr. Mubang's notes in general.”
Dr. Mubang tried to justify the lack of documented rationale by explaining that if a subsequent treating physician needed to know why he made medication changes, the physician would just call him and ask. While this should be true in an ideal world, his attempted justification is contrary to the purpose of medical records, which is continuity of care. No doctor, regardless of his education and experience, can be expected to remember every detail about every patient when he only sees the patient periodically. The medical record and doctor’s notes comprise his guide to ensuring the patient receives continuous, appropriate care.
In addition to lacking in rationale, both experts were unable to read some of Dr. Mubang’s handwritten notes due to legibility. His own expert testified that, “The hardest part about these records is, obviously, how legible they are. I wish they were more legible.”
Dr. Mubang’s medical records were inadequate for all six of the patients at issue here.
Dr. Mubang’s Defenses
Dr. Mubang passionately testified at hearing that he practices addiction medicine, that he prescribes Suboxone, and that his goal is to titrate patients’ medication. However, Dr. Mubang’s interest in addiction medicine and Suboxone is a recent phenomenon. In his 2012 deposition, he did not mention practicing addiction medicine, and the word Suboxone does not even appear in that deposition.
Dr. Mubang titrated the medication he prescribed for four of the six patients in this cause. His reasoning for titrating the patients’ medication changed from his deposition testimony to his hearing testimony. In his 2018 deposition, he testified that he reduced the patients’ pain medication because the patients’ conditions were improving, and his goal was to titrate the medication. At hearing, he asserted the theory that he changed his prescribing practices because pharmacies contacted him and told him that they would no longer fill prescriptions written for such large quantities. The first of these is based upon a consideration of quality of care, while the second is based upon the practical reality of changing pharmacy practices as the dangers of over-prescribing opiates started to become more prevalent in the eyes of health professionals and regulators.
On September 2, 2010, Investigator Victor Troupe personally served Dr. Mubang with a notice of investigation and a
subpoena for medical records for Patients A.M., B.B., C.C., W.B., and M.H., among others. Following receipt of the notice of investigation, the doctor radically changed his prescribing practice for the patients in this cause.
For ten months, Dr. Mubang prescribed Patient A.M.
270 tablets of oxycodone. Then on September 24, 2010, three weeks after being served by Petitioner, Respondent reduced Patient A.M.’s prescription of oxycodone from 270 tablets to 210, and then from 210 tablets to 180.
For five months, Dr. Mubang prescribed Patient C.C.
290 tablets oxycodone. Then on September 9, 2010, Respondent reduced Patient C.C.’s prescription of oxycodone from 290 tablets to 210. At the patient’s next visit on January 5, 2011,
Dr. Mubang reduced the patient’s prescription of oxycodone from
210 tablets to 180.
Dr. Mubang also reduced Patient C.C.’s methadone. For five months, he prescribed 180 10 mg tablets of methadone to Patient C.C., but he reduced that number first to 60 tablets, then to 30, then discontinued the prescription. Further, in a matter of three visits, the doctor went from prescribing
Patient C.C. 470 pain pills per month to 180 tablets.
For ten months, Dr. Mubang prescribed Patient W.B.
270 tablets of oxycodone. Then on November 6, 2010,
Patient W.B.’s first visit after the doctor received notice of
the investigation, he reduced Patient W.B.’s prescription of oxycodone to 240 tablets, then to 210 on the next visit.
For five months, Dr. Mubang prescribed Patient B.D.
240 tablets of oxycodone. Then on November 11, 2010,
Patient B.D.’s first visit with the doctor after he had received notice of the investigation, he reduced Patient B.D.’s prescription of oxycodone to 180 tablets.
The logical explanation for Dr. Mubang’s sudden reduction in amounts of pain medication prescribed is that the Petitioner’s notice of investigation triggered him to change his prescribing practice. The notice of investigation might have been his “eureka” moment or it might have served as a wake-up call to him concerning his prior over-prescribing practices.
The evidence clearly and convincingly demonstrates that Dr. Mubang used little critical medical judgment when prescribing dangerous controlled substances to the patients in this matter. His diagnoses were based solely on patient report, and his primary tool for treating these patients was the prescription of controlled substances without first exhausting less harmful treatment modalities or combining lower doses of controlled substances with his patients seeking other treatment modalities.
CONCLUSIONS OF LAW
DOAH has jurisdiction of the subject matter and the parties to this action pursuant to sections 120.569 and 120.57(1), Florida Statutes (2018).
Petitioner is the state agency charged with regulating the practice of medicine. See § 20.43 and chs. 456 and 458, Fla. Stat.
A proceeding, such as this one, 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). Accordingly, to impose such discipline, Petitioner must prove the allegations in the Administrative Complaints by clear and convincing evidence. Dep’t of Banking & Fin., Div. of Sec. & Investor 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).
What constitutes clear and convincing evidence was described in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th
DCA 1989) as follows:
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the 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.
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 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., 590 So. 2d 986, 988 (1991) (citations omitted),
rev. denied, 599 So. 2d 1279 (Fla. 1992).
Disciplinary statutes and rules “must be construed strictly, in favor of the one against whom the penalty would be imposed.” Munch v. Dep’t of Prof’l Reg., Div. of Real Estate,
592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep’t of
Bus. & Prof’l Reg., 812 So. 2d 583, 583-84 (Fla. 3d DCA 2002);
McClung v. Crim. Just. Stds. & Training Comm’n, 458 So. 2d 887,
888 (Fla. 5th DCA 1984) (“[W]here a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities
included, they must be construed in favor of the licensee.” (citing State v. Pattishall, 126 So. 147 (Fla. 1930)).
The grounds proven in support of Petitioner’s assertion that Dr. Mubang’s license should be disciplined must be those specifically alleged in the Administrative Complaints. See, e.g., Trevisani v. Dep’t of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Dep’t of Ins., 685 So. 2d 1371 (Fla.
1st DCA 1996); Kinney v. Dep’t of State, 501 So. 2d 129 (Fla. 5th
DCA 1987); and Hunter v. Dep’t of Prof’l Reg., 458 So. 2d 842 (Fla. 2d DCA 1984). Due process prohibits Petitioner from taking disciplinary action against a licensee based on matters not specifically alleged in the charging instrument, unless those matters have been tried by consent. See Shore Vill. Prop.
Owners’ Ass’n v. Dep’t of Envtl. Prot., 824 So. 2d 208, 210 (Fla.
4th DCA 2002); and Delk v. Dep’t of Prof’l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
Section 458.331(1) provides, in pertinent part, as
follows:
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(m) Failing to keep legible, as defined by department rule in consultation with the board, medical records that identify the licensed physician or the physician extender and supervising physician by name and
professional title who is or are responsible for rendering, ordering, supervising, or billing for each diagnostic or treatment procedure and that justify the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.
* * *
(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician’s professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician’s professional practice, without regard to his or her intent.
* * *
(t) Notwithstanding s. 456.072(2) but as specified in s. 456.50(2):
Committing medical malpractice as defined in s. 456.50. The board shall give great weight to the provisions of s. 766.102 when enforcing this paragraph. Medical malpractice shall not be construed to require more than one instance, event, or act.
Committing gross medical malpractice.
Committing repeated medical malpractice as defined in s. 456.50. A person found by the board to have committed repeated medical malpractice based on s. 456.50 may not be licensed or continue to be licensed by this state to provide health care services as a medical doctor in this state.
* * *
(cc) Prescribing, ordering, dispensing, administering, supplying, selling, or giving any drug which is a Schedule II amphetamine or a Schedule II sympathomimetic amine drug or any compound thereof, pursuant to chapter 893, to or for any person except for:
The treatment of narcolepsy; hyperkinesis; behavioral syndrome characterized by the developmentally inappropriate symptoms of moderate to severe distractability, short attention span, hyperactivity, emotional lability, and impulsivity; or drug-induced brain dysfunction;
The differential diagnostic psychiatric evaluation of depression or the treatment of depression shown to be refractory to other therapeutic modalities; or
The clinical investigation of the effects of such drugs or compounds when an investigative protocol therefor is submitted to, reviewed, and approved by the board before such investigation is begun.
* * *
(nn) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
Section 456.50 states in relevant part:
“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 doctor” means a physician licensed pursuant to chapter 458 or chapter 459.
“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.
Section 766.102 defines the prevailing professional standard of care as "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."
As in effect at the times material to this matter, rule 64B8-9.003 provided:
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.
At all times material to this matter, the Florida Board of Medicine had promulgated rule 64B8-9.013, titled “Standards for the Use of Controlled Substances for the Treatment of Pain.” As in effect from October 19, 2003, to October 17, 2010, rule 64B8-9.013 provided in relevant part:
Standards. The Board has adopted the following standards for the use of controlled substances for pain control:
Evaluation of the Patient. A complete medical history and physical examination must be conducted and documented in the medical record. The medical record should document the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse.
The medical record also should document the presence of one or more recognized medical indications for the use of a controlled substance.
Treatment Plan. The written treatment plan should state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and should indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician should adjust drug therapy to the individual medical needs of each patient. Other treatment modalities or a rehabilitation program may be necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment.
Informed Consent and Agreement for Treatment. The physician should discuss the risks and benefits of the use of controlled substances with the patient, persons designated by the patient, or with the patient’s surrogate or guardian if the patient is incompetent. The patient should receive prescriptions from one physician and one pharmacy where possible. If the patient is determined to be at high risk for medication abuse or have a history of substance abuse, the physician should employ the use of a written agreement between physician and patient outlining patient responsibilities, including, but not limited to:
Urine/serum medication levels screening when requested;
Number and frequency of all prescription refills; and
Reasons for which drug therapy may be discontinued (i.e., violation of agreement).
Periodic Review. At reasonable intervals based on the individual circumstances of the patient, the physician should review the course of treatment and any new information about the etiology of the pain. Continuation or modification of therapy should depend on the physician’s evaluation of the patient’s progress. If treatment goals are not being achieved, despite medication adjustments, the physician should reevaluate the appropriateness of continued treatment. The physician should monitor patient compliance in medication usage and related treatment plans.
Consultation. The physician should be willing to refer the patient as necessary for additional evaluation and treatment in order to achieve treatment objectives. Special attention should be given to those pain patients who are at risk for misusing their medications and those whose living arrangements pose a risk for medication misuse or diversion. The management of pain in patients with a history of substance abuse or with a comorbid psychiatric disorder
requires extra care, monitoring, and documentation, and may require consultation with or referral to an expert in the management of such patients.
Medical Records. The physician is required to keep accurate and complete records to include, but not be limited to:
The medical history and physical examination, including history of drug abuse or dependence, as appropriate;
Diagnostic, therapeutic, and laboratory results;
Evaluations and consultations;
Treatment objectives;
Tiscussion [sic] of risks and benefits;
Treatments;
Medications (including date, type, dosage, and quantity prescribed);
Instructions and agreements; and
Periodic reviews. Records must remain current and be maintained in an accessible manner and readily available for review. Records must remain current and be maintained in an accessible manner and readily available for review.
The Board of Medicine amended rule 64B8-9.013 on October 17, 2010, to change the use of “should” in paragraph three to “shall.”
The previous use of the word “should” does not alter the identification of the standard of care in this cause. See Dep’t of Health v. Sabates, M.D., Case No. 10-9430, RO at 73
(Fla. DOAH June 23, 2011; Fla. DOH Aug. 29, 2011).
In DOH Case No. 2010-12384, Petitioner alleged that Dr. Mubang violated section 458.331(1)(nn) by violating
rule 64B8-9.013 with respect to Patients A.M., B.B., C.C., W.B., and M.H.:
By failing to diagnose the patient with intractable pain prior to prescribing controlled substances;
By failing to perform complete or adequate physical examinations prior to prescribing controlled substances; and/or
By failing to obtain a complete medical history prior to prescribing controlled substances.
Therefore, Petitioner proved, by clear and convincing evidence, that Dr. Mubang violated section 458.331(1)(nn) by violating rule 64B8-9.013 for all five patients in DOH Case
No. 2010-12384.
In DOH Case No. 2010-12384, Petitioner alleged that Dr. Mubang violated section 458.331(1)(q) by prescribing controlled substances to Patients A.M., B.B., C.C., W.B., and
M.H. inappropriately or in excessive or inappropriate quantities.
As detailed in the Findings of Fact, Dr. Mubang’s prescribing of controlled substances to all five patients was excessive, given the patients’ presentation. Because the amount of medication he prescribed far exceeded what should have been prescribed, his prescribing is legally presumed to have been not in the patients’ best interest and is legally presumed to have been not done in the course of Dr. Mubang’s professional practice, without regard to his intent. See Scheininger v. Dep’t
of Prof’l Reg., 443 So. 2d 387 (Fla. 1st DCA 1983); and Waters v. Dep’t of Health, 962 So. 2d 1011 (Fla. 3d DCA 2007) (upholding
Petitioner’s position that section 458.331(1)(t) and (q) are not
mutually exclusive grounds for discipline). See also Dep’t of
Health v. Christensen, M.D., Case No. 11-5163 (Fla. DOAH Mar. 16, 2012), rejected in part, Case No. 11-11153 (Fla. DOH June 14,
2012), per curiam aff’d, Christensen v. Dep’t of Health, 123 So. 3d 577 (2013).
Petitioner proved, by clear and convincing evidence, that Dr. Mubang’s prescribing of controlled substances to all five patients in DOH Case No. 2010-12384 was excessive, and, therefore, constituted a violation of section 458.331(1)(q).
In DOH Case No. 2010-12384, Petitioner alleged that Dr. Mubang violated section 458.331(1)(cc) by prescribing Adderall to Patient M.H. without sufficient findings or diagnosis. As discussed in the Findings of Fact, the doctor failed to document his rationale for prescribing controlled substances in general. The same holds true for his prescribing Adderall to Patient M.H. He also failed to refer Patient M.H. to a psychiatrist or other appropriate health care professional for diagnostic confirmation of ADD, despite having prescribed Adderall to Patient M.H. for seven years. Petitioner proved, by clear and convincing evidence, that Dr. Mubang’s prescribing Adderall to Patient M.H. constituted a violation of section 458.331(1)(cc).
In both cases, Petitioner alleged that Dr. Mubang violated section 458.331(1)(t) by failing to meet the standard of
care in his treatment of Patients A.M., B.B., C.C., W.B., M.H., and B.D. in one or more of the following ways:
By failing to diagnose the patient with intractable pain prior to prescribing controlled substances;
By prescribing controlled substances without justification;
By failing to perform an adequate physical examination prior to prescribing controlled substances;
By failing to obtain a complete medical history prior to prescribing controlled substances;
By failing to diagnose an anxiety disorder or any other clinical indication to support prescribing Xanax to Patient B.B.; and/or
By failing to address aberrant urine drug screen results for Patients A.M., W.B., and B.D.
As detailed in the Findings of Fact, Petitioner proved, by clear and convincing evidence, Dr. Mubang failed to perform adequate physical examinations and failed to obtain complete histories for all six patients that justified his prescribing of controlled substances. Petitioner also proved that the doctor failed to diagnose the patients with intractable pain.
In addition, Petitioner proved that Dr. Mubang’s prescribing of controlled substances to all six patients was excessive and not medically justified based on the patients’ presentations. Dr. Mubang’s prescribing Xanax to Patient B.B. based solely on a patient-completed questionnaire was not
medically justified. For Patients A.M., W.B., and B.D., Petitioner proved that Dr. Mubang failed to address significant aberrant urine drug screen results. For those reasons, Petitioner proved, by clear and convincing evidence, that the doctor violated section 458.331(1)(t) by committing medical malpractice in his treatment of all six patients.
In both cases, Petitioner alleged that Dr. Mubang violated section 458.331(1)(m) by failing to keep legible medical records that justified his course of treatment for all six patients. As detailed in the Findings of Fact, the doctor’s medical records for all six patients were inadequate in varying degrees and frequently illegible. Therefore, Petitioner has proved, by clear and convincing evidence, that he violated section 458.331(1)(m), for all six patients.
In a licensure disciplinary action, Petitioner can take action to protect the public from negligent medical practice that has the potential for harm, even if by happenstance the patient avoids actual injury. Britt v. Dep't of Prof'l Reg.,
492 So. 2d 697, 698–99 (Fla. 1st DCA 1986), disapproved on other
grounds by Dep't of Prof'l Reg. v. Bernal, 531 So. 2d 967 (Fla. 1988); see also Major v. Dep't of Prof'l Reg., Bd. of Med.,
531 So. 2d 411, 413 (Fla. 3rd DCA 1988)(noting “[t]he fact that no patient harm occurred was fortuitous.”). In this cause, evidence was not offered by either party to show the outcome of
Dr. Mubang’s treatment of the six patients that are the subject of the two Administrative Complaints. Regardless, the over- prescribing of controlled substances, poor record-keeping, lack of thorough intake for the subject patients, and failure to diagnose intractable pain created a substantial likelihood of harm or addiction occurring to each of the patients over time. Moreover, based on the multiple, negative drug screen results for medications Respondent prescribed in this cause, some of the lack of patient harm can be attributed to the patients not even taking the medications as prescribed, but perhaps diverting the medications to others.
Pursuant to section 456.079, the Board of Medicine has adopted Florida Administrative Code Rule 64B8-8.001 (effective August 29, 2006, as amended from time to time, through January 1, 2015). The rule provides notice of the disciplinary penalties typically imposed for violations of sections 456.072 and 458.331.
At all times material to these proceedings, the penalties authorized for a violation of section 458.331(1)(m), ranged from a reprimand, to denial of licensure or two years’ suspension followed by probation, to 50 to 100 hours of community service (community service can no longer be ordered by Petitioner due to subsequent rule amendments), and an administrative fine from $1,000 to $10,000.
At all times material to these proceedings, the penalties authorized for a violation of section 458.331(1)(t) ranged from one year of probation, to 50 to 100 hours of community service (no longer applicable), to revocation or denial and an administrative fine from $1,000 to $10,000.
At all times material to these proceedings, the penalties authorized for a violation of section 458.331(1)(q) ranged from one year of probation to revocation or denial of licensure and 50 to 100 hours of community service (no longer applicable); and an administrative fine from $1,000 to 10,000.
At all times material to these proceedings, the penalties authorized for a violation of section 458.331(1)(cc) ranged from probation to 50 hours of community service (no longer applicable); to denial of licensure or two years’ suspension followed by probation; 100 hours of community service (no longer applicable); and an administrative fine from $1,000 to $10,000.
At all times material to these proceedings, the penalties authorized for a violation of section 458.331(1)(nn), ranged from a reprimand to 50 to 200 hours of community service (no longer applicable); to revocation or denial of licensure; and an administrative fine from $1,000 to $10,000.
Dr. Mubang committed “repeated medical malpractice,” as defined in section 456.50(1)(h) by departing from the standard of care on all six of the patients, who were the subject of the
Administrative Complaints. Clear and convincing evidence supports the fact that Dr. Mubang overprescribed controlled substances to the six patients here; kept generally illegible and/or incomplete records; failed to refer the six patients to any or additional appropriate alternative modalities of treatment besides prescription drugs; and prescribed Adderall to one patient without a referral to the appropriate medical specialist to determine whether she suffered from ADD. In total, Dr. Mubang has been found to have committed 23 separate violations, many of which include revocation as a possible penalty.
The one troubling aspect of this case is the length of time Dr. Mubang was permitted to continue in the practice of medicine unrestricted since the occurrence of the last date of violation, November 8, 2012. This matter was not ripened for adjudication at DOAH until January 2018, more than five years following the last date of violation. No explanation was given by either party as to why no additional charges were brought. This matter is built upon evidence and none was submitted to show Dr. Mubang has lived a model life as a physician since the time of the violations. The undersigned is bound to follow the law and apply the evidence, which is produced at hearing, to the applicable statutes and rules. If Dr. Mubang changed his medical practice to conform with the prevailing standard of care, perhaps a suspension followed by probation with continuing medical
education in the areas of prescribing controlled substances and appropriate, complete medical charting of new and existing patients would allow a long-practicing physician, such as
Dr. Mubang, to provide some good in the medical field. However, the evidence before me was too compelling for me to make such a recommendation here. Too many patients receiving too many controlled substances without the benefit of alternative modalities of treatment leaves the undersigned with no discretion in determining the outcome of this matter. Accordingly, there is no alternative penalty for the undersigned to recommend than a revocation of Dr. Mubang’s license to practice medicine.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order:
finding that Respondent, John Nkolo Mubang, M.D., violated sections 458.331(1)(nn), 458.331(1)(q), 458.331(1)(t), 458.331(1)(m), and 458.331(1)(cc), Florida Statutes, as charged in Petitioner’s Administrative Complaints; and
revoking Dr. Mubang’s Florida medical license.
DONE AND ENTERED this 25th day of June, 2019, in Tallahassee, Leon County, Florida.
S
ROBERT S. COHEN
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 25th day of June, 2019.
COPIES FURNISHED:
Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed)
Dale R. Sisco, Esquire Sisco-Law
1110 North Florida Avenue Tampa, Florida 33602 (eServed)
Zachary Bell, Esquire Prosecution Services Unit Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed)
Claudia Kemp, JD, Executive Director Board of Medicine
Department of Health
4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed)
Louise Wilhite-St Laurent, General Counsel Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (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 |
|---|---|---|
| Nov. 01, 2019 | Agency Final Order | |
| Nov. 01, 2019 | Agency Final Order | |
| Jun. 25, 2019 | Recommended Order | Respondent committed numerous violations by overprescribing, keeping incomplete and illegible records, not referring patients for appropriate alternative treatment. Due to his repeated malpractice, his license should be revoked. |
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