STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, CASE NO. 2010-08049 v. BEAU RICHARD BOSHERS, M.D., RESPONDENT. / ee ADMINISTRATIVE COMPLAINT Petitioner, Department of Health, by and through undersigned counsel, files this Administrative Complaint before the Board of Medicine against Respondent, Beau Richard Boshers, M.D., and in support thereof alleges: 1. Petitioner is the state department 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 98041. 3. Respondent’s address of record is 6230 W. Indiantown Rd., Suite 7, PMB 338, Jupiter, Florida 33458. Filed May 2, 2012 11:18 AM Division of Administrative Hearings 4. At all times material to this Complaint, Respondent was a dispensing practitioner in the state of Florida, pursuant to Section 465.0276, Florida Statutes, and was authorized to prescribe and dispense controlled substances classified under schedules two through five of 21 U.S.C. Section 812, and Section 893.02(2), Florida Statutes. By At all times material to this Complaint, Respondent treated patients at American Pain, LLC (Clinic), a pain management clinic located at 5801 North Federal Highway, Boca Raton, Florida, 33487, where Respondent prescribed excessive and/or inappropriate doses and quantities of Roxicodone and Xanax to Patients E.R., A.Z., R.R., T.F.S. and L.A. 6. Roxicodone is a brand of oxycodone and is commonly prescribed to treat pain. According to Section 893.03(2), Florida Statutes (2008-2011), 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. Oxycodone is an opioid. Opioid and opiate drugs have similar actions as the drug opium and are typically prescribed to treat pain. Opioid drugs are synthetically manufactured, while opiate drugs are naturally occurring, but the terms opioid and opiate are often used interchangeably. Opioid drugs are addictive and subject to abuse. 7. Xanax is a brand of alprazolam (a benzodiazepine) and is prescribed to treat anxiety. According to Section 893.03(4), Florida Statutes (2008-2011), 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. Abuse of alprazolam may lead to limited physical or psychological dependence relative to the substances in Schedule III. Facts related to Patient E.R. 8. Patient E.R., a 28-year-old male from Columbus, Ohio, first presented to the Clinic on or about August 25, 2009, with complaints of pain in his left ankle and lower back for six months. 9. Patient E.R. reported that his medical history included previous treatment at a hospital or doctor’s office, previous treatment from an orthopedic or chiropractic physician and physical therapy. 10. Patient E.R. reported that at the time he was not using any medications and he submitted to a multi-drug urine screen that was negative for all drugs. 11. During this visit, Respondent evaluated the patient, diagnosed difficulty in walking, sleep disturbance, traumatic arthropathy and chronic pain syndrome and prescribed 120 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient and ordered an MRI of the patient’s lumbar spine. 12. Patient E.R. presented to Respondent for a follow-up appointment on or about September 22, 2009. Patient E.R. provided Respondent with the report of an MRI performed in Ohio on September 13, 2009. 13. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient’s symptoms or pain or attempted to verify that the patient was taking the medications as prescribed by Respondent at the previous appointment. 14. Respondent failed to diagnose the patient but nonetheless prescribed 180 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient. 15. There is no justification in the medical record for Respondent’s increase of Roxicodone 30 mg from 120 tablets to 180 tablets. 16. Patient E.R. presented to Respondent for a follow-up appointment on or about October 20, 2009. 17. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient’s symptoms or pain or attempted to verify that the patient was taking the medications as prescribed by Respondent at the previous appointment. 18. Patient E.R.’s blood pressure was recorded as 144/95; Respondent failed to recognize or address this hypertensive episode. 19. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient. 20. There is no justification in the medical record for Respondent’s increase of Roxicodone 30 mg from 180 tablets to 210 tablets. ’ 21. Patient E.R. presented to Respondent for follow-up appointments on or about November 19, 2009, December 16, 2009, and January 13, 2010. 22. There is no indication in the medical record that Respondent performed a physical examination, meaningful medical evaluation or attempted to verify that the patient was taking the medications as prescribed by Respondent at previous appointments. 23. Respondent failed to diagnose the patient but nevertheless prescribed 210 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to E.R. at each appointment. 24. During Patient E.R.’s appointment on or about December 16, 2009, his blood pressure was recorded at 145/89; Respondent failed to recognize or address this hypertensive episode. 25. Patient E.R. presented to Respondent for a follow-up appointment on or about February 10, 2010. 26. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient’s symptoms or pain or attempted to verify that the patient was taking the medications as prescribed by Respondent at prior appointments. 27. During Patient E.R.’s appointment on February 10, 2010, his blood pressure was recorded at 157/83; Respondent failed to recognize or address this hypertensive episode. 28. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient. 29. There is no justification in the medical record for Respondents increase of Roxicodone 15 mg from 60 tablets to 90 tablets. 30. During the course of treatment of Patient E.R., Respondent failed to adequately monitor the patient, prevent abuse or diversion of controlled substances by the patient, refer the patient to a specialist, reassess the use of controlled substances for the treatment of chronic pain and failed to explore or recommend any alternative modalities of treatment. 31. A reasonably prudent physician would not have prescribed such excessive or inappropriate doses, quantities and combinations of Roxicodone and Xanax to Patient E.R. 32. A reasonably prudent physician would have obtained the patient’s history of controlled substances; monitored the patient; confirmed the medications the patient claimed to be taking; referred the patient to a specialist; diagnosed the patient; performed an adequate evaluation; and recommended alternative treatment modalities. 33. Respondent’s medical records for Patient E.R. fail to include an adequate patient history; any records from previous treating physicians; an indication or history for the multiple large prescriptions of Roxicodone and Xanax; a treatment plan for the patient; and treatment objectives. Facts related to Patient A.Z. 34. Patient A.Z., a 25-year-old male, first presented to the Clinic on or about January 22, 2009, with complaints of neck pain due to playing hockey and lacrosse for many years. 35. Patient A.Z. reported that his medical history included previous treatment at a hospital or doctor’s office. Patient A.Z. produced an MRI report showing two herniated discs. 36. Patient A.Z. reported that at the time he was using 240 tablets of Roxicodone 30 mg, 120 tablets of Roxicodone 15 mg and an unknown dosage and quantity of Xanax per month, “for sleeping.” 37. Patient A.Z. submitted to a multi-drug urine screen that was positive for oxycodone, but was negative for Xanax. 38. Respondent documented that Patient A.Z.’s current medication regimen was “oxycodone” obtained from a “friend.” 39. Respondent failed to perform an addiction assessment of the patient. 40. During this visit, Respondent evaluated the patient, diagnosed unspecified anxiety, cervical disease without myelopathy, chronic pain syndrome and neck pain and prescribed 120 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient. 41. Patient A.Z. presented to Respondent for a follow-up appointment on or about June 8, 2009. The medical record contains no explanation for the gap in treatment. 42. There is no indication in the medical record that Respondent performed a physical examination or a meaningful medical evaluation. 43. Patient A.Z. submitted to a multi-drug urine screen that was positive for oxycodone, but was negative for Xanax. Respondent failed to address the inconsistency between the drug screen and the medications Respondent prescribed at the previous appointment. 44. Patient A.Z.’s blood pressure was recorded at 131/100 and pulse was 110; Respondent failed to recognize or address the patient’s hypertensive episode or tachycardia. 45. Respondent failed to diagnose the patient but nonetheless prescribed 180 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient. 46. Patient A.Z. presented to Respondent for a follow-up appointment on or about July 6, 2009. 47. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient’s symptoms or pain or attempted to verify that the patient was taking the medications as prescribed by Respondent at the prior appointment. 48. Patient A.Z.’s blood pressure was recorded at 136/97; Respondent failed to recognize or address the patient’s hypertensive episode. 49. Respondent failed to diagnose the patient but nonetheless prescribed 180 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient. 50. Patient A.Z. presented to Respondent for a follow-up appointment on or about August 3, 2009. 51. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient’s symptoms or pain or attempted to verify that the patient was taking the medications as prescribed by Respondent at the prior appointment. 52. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient. 53. There is no justification in the medical record for Respondent’s increase of Roxicodone 30 mg from 180 tablets to 210 tablets. 54. Patient A.Z. presented to Respondent for follow-up appointments on or about August 31, 2009, September 28, 2009, October 26, 2009, November 23, 2009, December 21, 2009, January 18, 2010, and February 15, 2010. 55, There is no indication in the medical record that Respondent performed a physical examination, meaningful medical evaluation or attempted to 10 verify that the patient was taking the medications as prescribed by Respondent at prior appointments. | | 56. Patient A.Z. provided laboratory results dated August 31, 2009, that revealed a calcium deficiency. Respondent failed to address the laboratory results. 57. During the appointment on January 18, 2010, Patient A.Z. complained of a respiratory infection. Respondent failed to obtain a throat culture or blood work and failed to diagnose the patient, but nonetheless prescribed a Zithromax Z- Pak (azithromycin) to the patient. 58. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient at all of the appointments on or about August 31, 2009, September 28, 2009, October 26, 2009, November 23, 2009, December 21, 2009, January 18, 2010, and February 15, 2010. 59. During the course of treatment of Patient A.Z., Respondent failed to adequately monitor the patient, prevent abuse or diversion of controlled substances by the patient, refer the patient to a specialist, perform appropriate examinations, recognize and/or treat the patient’s blood pressure and pulse measurements, failed to reassess the use of controlled substances for the treatment of chronic pain, and failed to explore or recommend any alternative modalities of treatment. il 60. A reasonably prudent physician would not have prescribed such excessive or inappropriate doses, quantities and combinations of Roxicodone and Xanax to Patient A.Z. 61. A reasonably prudent physician would have obtained the patient’s history of controlled substances; monitored the patient; confirmed the medications the patient claimed to be taking; referred the patient to a specialist; diagnosed the patient; performed an adequate evaluation; and recommended alternative treatment modalities. 62. Respondent’s medical récords for Patient A.Z. fail to include an adequate patient history; any records from physicians who treated him prior to his presentation at the Clinic; an indication or recent history for the multiple large prescriptions of Roxicodone and Xanax, a treatment plan for the patient; and treatment objectives. Facts related to Patient R.R. 63. Patient R.R., a 41-year-old male from Estill, Kentucky, first presented to the Clinic on or about October 22, 2009, with complaints of lower back pain. 64. Patient R.R. reported that his medical history included treatment from an orthopedist or a chiropractor and physical therapy and that at the time he was was using 240 tablets of oxycodone 30 mg, 120 tablets of oxycodone 15 mg and 120 tablets of Xanax 2 mg per month. 12 65. Patient R.R. submitted to a multi-drug urine screen that was positive for oxycodone, opioids and benzodiazepines. 66. Respondent documented that Patient A.Z.’s medication regimen was “oxycodone 30 mg” and “Xanax 2 mg” purchased “off [the] street.” 67. Respondent failed to perform an addiction assessment of the patient. 68. Respondent diagnosed the patient with lumbar disc disorder with myelopathy, chronic pain syndrome, low back pain and sleep disturbance and. prescribed 180 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and. 30 tablets of Xanax 2 mg to the patient. 69. Patient R.R. presented to Respondent for a follow-up appointment on or about November 18, 2009. 70. There is no indication in the medical record that Respondent performed a physical examination, meaningful medical evaluation or attempted to verify that the patient was taking the medications as prescribed by Respondent at the prior appointment. 71. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient. 72. There is no justification in the medical record for Respondent’s increase of Roxicodone 30 mg from 180 tablets to 210 tablets. 13 73. Patient R.R. presented to Respondent for follow-up appointments on or about December 7, 2009, January 14, 2010, and February 1 1, 2010. 74. There is no indication in the medical record that Respondent performed a physical examination, meaningful medical evaluation or attempted to verify that the patient was taking the medications prescribed by Respondent at the previous appointments. 75. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg to the patient at each appointment on or about December 7, 2009, January 14, 2010, and February 11, 2010. 76. During the patient’s appointment on December 7, 2009, Respondent also prescribed 30 tablets of Ambien 5 mg due to a reported, “sleep disturbance,” and discontinued the use of Ambien in January 2010, but did not document any medical justification for these actions. 77. During the course of treatment of Patient R.R., Respondent failed to adequately monitor the patient, prevent abuse or diversion of controlled substances by the patient, refer the patient to a specialist, perform appropriate examinations, reassess the use of controlled substances for the treatment of chronic pain, and failed to explore or recommend any alternative modalities of treatment. 14 78. A reasonably prudent physician would not have prescribed such excessive or inappropriate doses, quantities and combinations of Roxicodone, Xanax and Ambien to Patient R.R. 79. A reasonably prudent physician would have obtained the patient’s history of controlled substances; performed an addiction assessment; monitored the patient; confirmed the medications the patient claimed to be taking; referred the patient to a specialist; diagnosed the patient; performed an adequate evaluation; and recommended alternative treatment modalities. 80. Respondent’s medical records for Patient RR. fail to include an adequate patient history; an indication or history supporting the multiple large prescriptions of Roxicodone and Xanax; any verification that Patient R.R. was, in fact, properly taking his prescribed medications; a treatment plan for the patient; and treatment objectives. Facts related to Patient T.F.S. 81. Patient T.F.S., a 34-year-old female from Mobile, Alabama, first presented to the Clinic on or about June 9, 2009, with complaints of lower back pain secondary to being, “raped and beaten,” 18 months prior. 82. Patient T.F.S. reported that her medical history included previous treatment at a hospital or doctor’s office, previous treatment from an orthopedic or chiropractic physician and physical therapy. i5 83. Patient T.F.S. reported that at the time she was using 210 tablets of oxycodone 30 mg, 90 tablets of oxycodone 15 mg and 60 tablets of Xanax 2 mg per month. 84. Patient T.F.S. submitted to a multi-drug urine screen that was positive for opiates and oxycodone, but negative for Xanax. 85. Patient T.F.S. presented an MRI report obtained on June 8, 2009, reportedly finding two bulging discs. 86. During this visit, Respondent evaluated the patient and diagnosed lumbar disc disorder without myelopathy, sleep disturbance, chronic pain syndrome and low back pain and prescribed 210 tablets of Roxicodone 30 milligrams (mg), 60 tablets of Roxicodone 15 mg and 60 tablets of Xanax 2 mg to the patient. 87. Patient T.F.S. presented to Respondent for follow-up appointments on or about July 6, 2009, and August 3, 2009. 88. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient’s symptoms or pain or attempted to verify that the patient was taking the medications as prescribed by Respondent at the previous appointment. 16 89. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 60 tablets of Xanax 2 mg to the patient. 90. Patient T.F.S. presented to Respondent for a follow-up appointment on or about August 31, 2009. 91. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient’s symptoms or pain or attempted to verify that the patient was taking the medications as prescribed by Respondent at the prior appointment. ; 92. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg and 60 tablets of Xanax 2 mg to the patient. 93. There is no justification in the medical record for Respondent’s increase of Roxicodone 15 mg from 60 tablets to 90 tablets. 94, Patient T.F.S. presented to Respondent for follow-up appointments on or about September 28, 2009, and December 15, 2009. 95. There is no explanation in the medical record for the two month hiatus between Patient’s T.F.S.’s September and December appointments. 17 96. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient’s symptoms or pain during these appointments. 97, During the appointment on December 15, 2009, T.F.S. submitted to a multi-drug urine screen that was positive for opiates, oxycodone and benzodiazepines. 98. Three months had lapsed since September 28, 2009, when Respondent had provided treatment and a one-month supply of prescription medication to T.E.S.; it is unclear where T.F.S. obtained the medications responsible for her positive drug screen. 99. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg and 60 tablets of Xanax 2 mg to the patient. 100. During the course of treatment of Patient T.E.S., Respondent failed to obtain an adequate medical history, failed to perform adequate physical examinations, failed to confirm the amount of controlled substances the patient was taking, failed to monitor the patient, failed to refer the patient to a specialist, failed to reassess the treatment, failed to evaluate the patient for addiction or diversion and failed to explore or recommend any alternative modalities of treatment. 18 101. A reasonably prudent physician would not have prescribed such excessive or inappropriate doses, quantities and combinations of Roxicodone and Xanax to Patient T.F.S. 102. A reasonably prudent physician would have obtained the patient’s history of controlled substances; monitored the patient; confirmed the medications patient claimed to be taking; referred the patient to a specialist; diagnosed the patient; performed an adequate evaluation; and recommended alternative treatment modalities. 103. Respondent’s medical records for Patient T.F.S. fail to include an adequate patient history; an indication or history justifying the multiple large prescriptions of Roxicodone and Xanax; any verification that Patient T.F:S. was, in fact, properly taking the prescription medications; a treatment plan for the patient; and treatment objectives. Facts related to Patient L.A. 104. Patient L.A., a 39-year-old female from Savannah, Georgia, first presented to the Clinic on or about September 21, 2009, with complaints of lower back pain. 105. Patient L.A. reported that her medical history includes previous treatment by doctor or hospital, previous treatment from an orthopedic or chiropractic physician and physical therapy. 19 106. Patient L.A. produced an MRI report that showed stenosis of the spine at the L3-4 level. 107. Patient L.A. reported that at the time she was not taking any medication and she submitted to a multi-drug urine screen that was negative for all drugs. 108. Respondent evaluated the patient, diagnosed lumbar disc disorder without myelopathy, chronic pain syndrome, sleep disturbance and low back pain and prescribed 180 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 and 30 tablets of Xanax 2 mg to the patient. 109. Patient L.A. presented to Respondent for a follow-up appointment on or about October 19, 2009. 110, There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient or attempted to verify that the patient was taking the medications as prescribed by Respondent at the prior appointment. 111. Respondent failed to diagnose the patient but nonetheless prescribed 180 tablets of Roxicodone 30 mg, 60 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg. 112. Patient L.A. presented to Respondent for a follow-up appointment on or about November 16, 2009. 20 113. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient or attempted to verify that the patient was taking the medications as prescribed by Respondent at the prior appointment. 114. Respondent failed to diagnose the patient but nonetheless prescribed 180 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg. 115. There is no justification in the medical record for Respondent’s increase of Roxicodone 15 mg from 60 tablets to 90 tablets. 116. Patient L.A. presented to Respondent for a follow-up appointment on or about December 14, 2009. 117. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient or attempted to verify that the patient was taking the medications as prescribed by Respondent at the prior appointment. | 118. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg. 119. There is no justification in the medical record for Respondent’s increase of Roxicodone 30 mg from 180 tablets to 210 tablets. 21 120. Patient L.A. presented to Respondent for follow-up appointments on or about January 13, 2010, and February 9, 2010. 121. There is no indication in the medical record that Respondent performed a physical examination or meaningful medical evaluation of the patient or attempted to verify that the patient was taking the medications as prescribed by Respondent at the prior appointments. 122. Respondent failed to diagnose the patient but nonetheless prescribed 210 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg and 30 tablets of Xanax 2 mg. 123. During the course of treatment of Patient L.A., Respondent failed to verify that the patient was taking the medications as prescribed, failed to refer the patient to a specialist for treatment or consultation, failed to reassess the use of controlled substances for the treatment of chronic pain, and failed to explore or recommend any alternative modalities of treatment. 124, A reasonably prudent physician would not have prescribed such excessive or inappropriate doses, quantities and combinations of Roxicodone and Xanax to Patient L.A. 125. A reasonably prudent physician would have obtained the patient’s history of controlled substances; monitored the patient; confirmed the medications the patient claimed to be taking; referred the patient to a specialist; diagnosed the 22 patient; performed an adequate evaluation; and recommended alternative treatment modalities. 126. Respondent’s medical records for Patient L.A. fail to include an adequate patient history, any records from previous treating physicians; an indication or history for the multiple large prescriptions of Roxicodone and Xanax; a treatment plan for the patient; and treatment objectives. COUNT I 127. Petitioner realleges and incorporates paragraphs one (1) through one hundred twenty-six (126) as if fully set forth herein. 128. Section 458.331(1)(t)1, Florida Statutes (2008-2009), subjects a physician to discipline for committing medical malpractice as defined in Section 456.50, Florida Statutes (2008-2009). “Medical malpractice” is defined by Section 456.50(1)(g), Florida Statutes (2008-2009), as “the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure.” Section 456.50(1)(e), Florida Statutes (2008- ‘'2009), provides that the “level of care, skill, and treatment recognized in general law related to health care licensure" means the standard of care that is specified in Section 766.102(1), Florida Statutes (2008-2009), which is set forth as follows: 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 23 circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. 129. Section 458.331(1)(t)1, Florida Statutes (2008- 2005) directs the Board to give “great weight” to this provision of Section 766.102, Florida Statutes (2008-2009). 130. Respondent failed to meet the prevailing standard of care in one or more of the following manners: a. By prescribing excessive or inappropriate quantities and doses of controlled substances to Patients E.R., A.Z., R.R., T-F.S. and/or L.A.; b. By prescribing excessive or inappropriate quantities of controlled substances to Patients E.R., A.Z., R.R., T.F.S. and/or L.A. without justification; and/or c. By prescribing excessive or inappropriate doses and quantities of controlled substances to Patients E.R., A.Z., R.R., T.F.S. and/or L.A. without performing an adequate evaluation of the patient(s). 131. Based on the foregoing, Respondent violated Section 45 8.33101)@)1, Florida Statutes (2008-2009), by committing medical malpractice. COUNT I 132. Petitioner realleges and incorporates paragraphs one (1) through one hundred twenty-six (126) as if fully set forth herein. 24 133. Section 458.33 1(1\(q), Florida Statutes (2008-2009), allows the Board of Medicine to discipline a physician 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 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. 134. Respondent violated Section 458.331(1)(q), Florida Statutes (2008- 2009), in one or more of the following manners: a. By prescribing excessive or inappropriate quantities and doses of controlled substances to Patients E.R., A.Z., R.R., T.F.S. and/or L.A.; and/or b. By prescribing excessive or inappropriate doses and quantities of controlled substances to Patients E.R., A.Z., R.R., T.F.S, and/or L.A. without performing an adequate evaluation of the patient. 135. Based on the foregoing, Respondent has violated Section 458.331(1)(q), Florida Statutes (2008-2009), by prescribing, dispensing, administering, mixing or otherwise preparing a legend drug, including any 25 controlled substance, other than in the course of the physician’s professional practice. COUNT Il 136. Petitioner realleges and incorporates paragraphs one (1) through one hundred twenty-six (126) as if fully set forth herein. 137. Section 458.331(1)(nn), Florida Statutes (2008-2009), subjects an physician to discipline for violating any provision of Chapters 456 or 458, Florida Statutes, or any rules adopted pursuant thereto. 138. Rule 64B8-9.013, Florida Administrative Code, sets forth the standards for the use of controlled substances for the treatment of pain, in part, as follows: (3) Standards. 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 ot 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 26 necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment. * * * (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. 27 139. Respondent violated Section 458.331(1)(nn), Florida Statutes (2008- 2009), by violating Rule 64B8-9.013, Florida Administrative Code, in one or more of the following manners. a. By failing to obtain a complete medical history for E.R., A.Z., R.R., T.F.S. and/or L.A.; b. By failing to conduct adequate physical examinations or meaningful medical evaluations of Patients E.R., A.Z., R.R., T.E.S. and/or L.A.; c. By failing to set forth an adequate treatment plan for E.R., A.Z., R.R., T.F.S. and/or L.A.; d. By failing to refer Patients E.R., A.Z., R.R., T.F.S. and/or L.A. to evaluations or consultations with specialists or other treatment providers; e. By failing to perform a periodic review of the treatment of Patients E.R., A.Z., R.R., T-F.S. and/or L.A.; and/or f. By failing to adequately monitor or refer Patients E.R., A.Z., R.R., TFS. and/or L.A. for diversion or substance abuse. 140. Based on the foregoing, Respondent violated Section 458.331(1)(@n), Florida Statutes (2008-2009), by violating Rule 64B8-9.013, Florida Administrative Code. 28 WHEREFORE, 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 Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. adn SIGNED this 20 dayof___ ctolber 2011. H. Frank Farmer, Jr., M.D., Ph.D., F.A.C.P. State Surgeon General arla A. Schell Assistant General Counsel DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 0042155 (850) 245-4640 (850) 245-4662 FAX FILED DEPARTMENT OF HEALTH DEPUTY CLERK CLERK Angel Sanders pare 10/31/2011 PCP: 10/28/2011 PCP Members: G. El-Bahri, E. Tucker & B. Levine /CS 29 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 to any other discipline imposed. 30

Docket for Case No: 12-001584PL