~2 op ot STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, V. CASE NO: 2009-20228 JOSEPH M. HERNANDEZ, M.D., RESPONDENT. ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Medicine against the Respondent, Joseph M. Hernandez, M.D., and in support thereof alleges: 1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. 2. At all times material to this Complaint, Respondent was a licensed physician within the State of Florida, having been issued license number ME 44356. Filed March 9, 2012 3:20 PM Division of Administrative Hearings 3. | Respondent's address of record is 826 S.W. Main Blvd., Suite 102, Lake City, Florida, 32025. 4. At all times material to this complaint, Respondent treated Patients ED and JT. 5. In 2008, the Columbia County Multi-Jurisdictional Task Force initiated an undercover investigation of Respondent based on information that Respondent was inappropriately writing prescriptions. A Columbia County Sheriff's Office (CCSO) undercover deputy (Patient JT) and a confidential source (Patient ED) agreed to present to Respondent as part of the investigation. 6. The controlled substances and legend drugs that were prescribed by Respondent to ED and/or JT are as follows: a) Tramadol is an opioid class medication prescribed to treat pain. Tramadol is a legend drug, but not a controlled substance. Tramadol, like all opioid class drugs, can affect mental alertness, is subject to abuse, and can be habit forming. b) Oxycodone is commonly prescribed to treat pain. According to Section 893.03(2), Florida Statutes, oxycodone is a Schedule II controlled substance that has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. c) Lortab is the brand name for a drug that contains hydrocodone and is prescribed to treat pain. According to Section 893.03(3), Florida Statutes, hydrocodone in the dosages found in Lortab, is a Schedule III controlled substance that has a potential for abuse less than the substances in Schedules I and II and has a currently accepted medical use in treatment in the United States, and abuse of the substance may lead to moderate or low physical dependence or high psychological dependence. d) Soma is the brand name of carisoprodol, a muscle relaxant commonly prescribed to treat muscular pain. According to Section 893.03(4), Florida Statutes, carisoprodol is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule ITI and has a currently accepted medical use in treatment in the United States, and abuse of carisoprodol may lead to limited physical or psychological dependence relative to the substances in Schedule III. e) Xanax is the brand name for alprazolam and is prescribed to treat anxiety. According to Section 893.03(4), Florida Statutes, alprazolam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use in treatment in the United States and abuse of the substance may lead to limited physical or psychological dependence relative to the substances in Schedule III. FACTS SPECIFIC TO PATIENT ED 7. On or about August 21, 2008, Respondent agreed to meet . Patient ED at a motel. Patient JT and Patient ED met Respondent in a room at the motel. 8. Patient ED presented to Respondent with complaints of back pain. Respondent prescribed oxycodone, 30 mg., 90 pills and tramadol, 50 mg., 120 pills, for Patient ED on or about August 21, 2008. 9. Respondent failed to document in the medical records justification for prescribing oxycodone and tramadol in combination to Patient ED on or about August 21, 2008. 10. Respondent failed to obtain a urine sample from Patient ED. FACTS SPECIFIC TO PATIENT JT 11. On or about August 21, 2008, immediately after Patient ED’s appointment, Patient JT requested an appointment, which Respondent agreed to. Patient JT complained of back pain. 12. On or about August 21, 2008, Respondent prescribed Lortab 10/500, 90 pills and tramadol 50 mg, 120 pills, for Patient JT. 13. Respondent failed to document in the medical records justification for prescribing tramadol and Lortab in combination for Patient J.T. on or about August 21, 2008. 14. Approximately thirteen months later, on or about September 29, 2009, Patient JT presented to Respondent at his office . 15. On or about September 29, 2009, Respondent prescribed Lortab 10/500, 90 pills and tramadol 50 mg., 120 pills to Patient JT. 16. Respondent failed to document in the medical records justification for prescribing tramadol and Lortab in combination for Patient JT on or about September 29, 2009. 17. On or about October 26, 2009, Patient JT again presented to Respondent. Respondent prescribed Lortab 10/500, 45 pills and tramadol 50 mg,., 60 pills to Patient JT. 18. Respondent failed to document in the medical records justification for prescribing Lortab and tramadol in combination for Patient JT on October 26, 2009. 19. On or about November 18, 2009 Patient JT again presented to Respondent. Respondent prescribed oxycodone 15 mg,., 60 pills, oxycodone 30 mg., 90 pills, Xanax 2 mg., 30 pills and Soma, 30 pills. 20. Respondent failed to document in the medical records justification for prescribing oxycodone 15 mg. and oxycodone 30 mg. in combination for Patient JT on November 18, 2009. COUNT I 21. Petitioner realleges and incorporates paragraphs one (1) through twenty (20) as if fully set forth herein. 22. Section 458.331(1)(q), Florida Statutes (2008, 2009), subjects a licensee to discipline, including suspension, for 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 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 intent. 23. Respondent prescribed, dispensed, administered, mixed, or otherwise prepared a legend drug, other than in the course of his professional practice, in one or more of the following. ways: a) _ by inappropriately prescribing tramadol and oxycodone, , in combination to Patient ED on or about August 21, 2008 as outlined in paragraph eight (8) ; b) by inappropriately prescribing tramadol and Lortab in combination, to Patient JT on or about August 21, 2008 as outlined in paragraph twelve (12) ; C) by inappropriately prescribing tramadol and Lortab in combination to Patient JT on or about September 29, 2009 as outlined in paragraph fifteen (15) ; d) by inappropriately prescribing tramadol and Lortab, in combination to Patient JT on or about October 26, 2009 as outlined in paragraph seventeen (17) ; e) by inappropriately and excessively prescribing oxycodone 30 and oxycodone 15, in combination, to Patient JT on or about November 18, 2009, as outlined in paragraph nineteen (19) . 24. Based on the foregoing, Respondent has violated Section 458.331(1)(q),Florida Statutes(2008,2009). COUNT II 25. Petitioner reincorporates and realleges paragraphs i through twenty (20) as if fully set forth herein. 26. Rule 64B8-9.013(3), Florida Administrative Code (2008, 2009) provides as follows: The Board has adopted the following standards for the use of controlled substances for pain control: a) 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. b) 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. c) 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: 1. Urine/serum medication levels screening when requested; 2. Number and frequency of all prescription refills; and 3. Reasons for which drug therapy may be discontinued (i.e., violation of agreement). d) 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. e) 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. f) Medical Records. The physician is required to keep accurate and complete records to include, but not be limited to: 1. The medical history and physical examination, including history of drug abuse or dependence, as appropriate; 2. Diagnostic, therapeutic, and laboratory results; 3. Evaluations and consultations; 4. Treatment objectives; 5. Discussion of risks and benefits; 6. Treatments; 7. Medications (including date, type, dosage, and quantity prescribed); 8. Instructions and agreements; and 9. Periodic reviews. Records must remain current and be maintained in an accessible manner and readily available for review. 27. Section 458.331(1)(t), Florida Statutes (2008, 2009), subjects a licensee to discipline for committing medical malpractice as defined in Section 456.50, Florida Statutes. Section 456.50, Florida Statutes (2008, 2009) defines medical malpractice as the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure. 28. For purposes of Section 458.331(1)(t), Florida Statutes, the Board shall give great weight to the provisions of Section 766.102, Florida Statutes (2008, 2009) which provide that the prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. 29. Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in treating ED or JT in one or more of the following ways: a) _ by inappropriately prescribing tramadol and oxycodone in combination to ED on or about August 21, 2008; b) _ by failing to order urine drug screening to ED in light of the above prescriptions c) by inappropriately prescribing Lortab and tramadol in combination to JT on or about August 21, 2008; d) by inappropriately prescribing Lortab and tramadol in combination to JT on or about September 29, 2009 ; e) by inappropriately prescribing Lortab and tramadol in combination to JT on or about October 26, 2009; f) by inappropriately or excessively prescribing oxycodone 15 mg. and oxycodone 30 mg. in combination to JT on or about November 18, 2009. 30. Based on the foregoing, Respondent has violated Section 458.331(1)(t), Florida Statutes (2008, 2009). COUNT III 31. Petitioner realleges and incorporates paragraphs one (1) through twenty (20) as if fully set forth herein. 32. Rule 64B8-9.013(3), Florida Administrative Code (2008, 2009) as more particularly set forth in paragraph twenty six (26) herein is adopted and realleged as if fully set forth herein. 33. Section 458.331(1)(m), Florida Statutes (2008, 2009), provides that failing to keep legible medical records 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, constitutes grounds for disciplinary action by the Board of Medicine. 34. Respondent failed to keep legible medical records justifying the course of treatment for Patient ED and/or Patient JT in one or more of the following ways: a) by failing to record the justification for prescribing oxycodone and tramadol in combination to Patient ED on or about August 21, 2008, as outlined in paragraph eight (8); b) by failing to record the justification for prescribing tramadol and Lortab in combination to Patient JT on or about August 21, 2008, as outlined in paragraph twelve (12) ; c) by failing to record the justification for prescribing tramadol and Lortab in combination to Patient JT on or about September 29, 2009, as outlined in paragraph fifteen (15); d) by failing to record the justification for prescribing tramadol and Lortab in combination to Patient JT on or about October 26, 2009, as outlined in paragraph seventeen (17); e) by failing to record the justification for prescribing oxycodone 30 and oxycodone 15 in combination to Patient JT on or about November 18, 2009 as outlined in paragraph nineteen (19). 35. Based on the foregoing, Respondent has violated Section 458.331(1)(m) Florida Statutes (2008, 2009) WHEREFORE, the Petitioner respectfully requests that the Board of Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. SIGNED this ©!" day of 9“ T 2011. H. Frank Farmer, Jr, M.D., Ph.D., State Surgeon General Department of Health () otnd tu Robert J. Bobek Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 pepartmrice? , Tallahassee, FL 32399-3265 RTMENT OF HEALTH Florida Bar # 434337 CLERK Angel Sanders (850) 245-4640 phone DATE 7-11-2011 (850) 245-4681 fax PCP: 7/8/11 PCP Members: Leon, Zachariah ' RJB/jb/das DOH vs. Joseph M. Hernandez, M.D., Case No. 2009-20228 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition any other discipline imposed.

Docket for Case No: 12-000869PL