vs. ) CASE NO. 77-608
) License No. 1470 CARL SYLVESTER ROBERTS, JR., O.D. )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on July 7, 1977 at Ocala, Florida.
For Petitioner: Ronald C. LaFace, Esquire
For Respondent: E. G. Musleh, Esquire
Fred E. Landt, III, Esquire Post Office Box 1943 Ocala, Florida 32670
By Administrative Complaint filed March 23, 1977 the Florida State Board of Osteopathic Medical Examiners, Petitioner, seeks to revoke, suspend, or otherwise discipline the license of Carl Sylvester Roberts, Jr., D. O. As grounds therefor it is alleged:
In Count I that on or about January 27, 1977 Respondent issued prescriptions to J. C. Duncan for Dilaudid and Dexedrine without good faith and not in the course of his professional practice;
In Count II that on or about February 1, 1977 Respondent issued and dispensed 120 Dilaudid pills to J, C. Duncan to be resold for profit by Duncan and the proceeds shared with Respondent;
In Count III that on or about February 2, 1977 Respondent issued four prescriptions for Dilaudid to J. C. Duncan with the prescription in the name of patients not seen on that date, and placed entries upon these patients' records to indicate the patients had been seen, thereby unlawfully distributing and dispensing controlled substances;
In Count IV that Respondent requested remuneration for issuing controlled substances to J. C. Duncan in the amount of $7 per pill and did, in fact, accept
$400 in partial payment from Duncan.
By amendment to Administrative Complaint filed June 28, 1977 it is further alleged in Count V that on June 27, 1977 Respondent pleaded guilty and was adjudicated guilty of a felony drug count.
Respondent's objection to Count V on the grounds that Count V was erroneous in fact because the plea was nolo contendere and that no judgment was entered thereon was overruled. Thereafter Petitioner called two witnesses, Respondent testified in his own behalf, called two character witnesses, and 20 exhibits were admitted into evidence.
Carl Sylvester Roberts, Jr. is an osteopathic physician registered with the Florida State Board of Osteopathic Medical Examiners and holds license number 0001470.
Roberts first treated J. C. Duncan on March 31, 1975. Thereafter Duncan visited Roberts for treatment periodically.
In the latter part of 1976 Roberts advised Duncan that he was strapped for cash and Duncan suggested he could make some extra money by prescribing drugs which Duncan could sell and split the profit.
Duncan proposed to provide Roberts with patients who had a bona fide need for drugs, have them visit Roberts for examination and thereafter Roberts could legitimately prescribe drugs for them.
This agreement resulted in Duncan producing at least 4 patients in early December, 1976 whom Roberts examined.
The modus operandi for these patients was for Duncan to bring the patients to Roberts' office where they were examined and, after finding medical evidence of a valid need for pain killers, Roberts would prescribe Dilaudid for these patients. Duncan then accompanied these patients to a pharmacy where the prescriptions were filled. Thereafter the patients gave the pills to Duncan who paid them $250 each. Duncan normally took the pills to Tampa where they were given to a contact who peddled same and reimbursed Duncan $1200 for 100 Dilaudid tablets. Duncan thereafter reimbursed Roberts at the rate of $7 per tablet. Prior to taking the patients to Roberts, Duncan explained the procedure to be followed and, in effect offered these patients a physical examination plus $250 for their participation. The charts for the four patients presented into evidence as Exhibits 2, 7, 9 and 11 showed they paid $30 for this visit (except Parker who was charged $20). Other patients were normally charged $10, $12 or
$14 for a first visit.
Narcotics agents in Ocala received street information that Roberts was illegally dispensing drugs and approximately one year before this hearing, started an investigation.
In December, 1976 the Ocala police arrested Roberts but apparently had insufficient evidence to prosecute. However, while Roberts was accompanying the police back to his office to pick up some tapes, he told them that he had been
prescribing drugs for J. C. Duncan to sell to repay a gambling debt he owed Duncan.
Duncan was subpoenaed by the State Attorney for a deposition and given immunity from prosecution for his testimony and assistance in obtaining evidence against Roberts. Duncan advised the police of the plan that he and Roberts had been using.
On January 27, 1977 Duncan was wired for sound by having a small transmitter placed under his clothes and sent by the police to Roberts' office while police monitored the conversation on the street below.
When Duncan left Roberts' office the narcotics investigators met him outside and received from Duncan Exhibits 1, 3, and 4. Exhibit 1 is the prescription made out to Mabel Butler for 50 Dilaudid tablets with the patient's name scratched out. Exhibits 3 and 4 were prescriptions made out to J. C. Duncan for 35 Dexedrene capsules and 50 Dilaudid tablets respectively.
Duncan was overweight and the Dexedrene was prescribed to help him lose weight. He has a long history of pains stemming from back problems for which the Dilaudid was prescribed. However, Duncan testified that he could get relief from a handfull of Aspirin, Bufferin or Excedrin as well as from Dilaudid. With respect to the prescription on Exhibit 1, when the name of Mabel Butler was scratched out, the prescription became void and unfillable at any pharmacy.
On the night of February 1, 1977 Roberts visited Duncan at the latter's home and gave him 120 Dilaudid tablets to sell. These tablets were turned over to the narcotics investigator the following morning and a laboratory examination of these tablets (Exhibit 19) showed them to be a derivative of Morphine, viz. Dilaudid.
On February 2, 1977 Duncan was again wired for sound and given $450 in marked bills and sent to Roberts office. The conversation between Roberts and Duncan was taped and the tape of that conversation was received into evidence as Exhibit 17. A transcript of that tape was offered as Exhibit 18. Having listened to the tape while following the transcript I find that the transcript is reasonably close to being an exact transcription of the conversation recorded on Exhibit 17.
While in Roberts' office Duncan discussed with Roberts payment for the pills received the previous evening as well as those received on previous prescriptions for which he, Roberts, had not been paid. During this visit Roberts prepared prescriptions for Dilaudid in the names of the 4 patients previously brought in by Duncan, namely John Stewart, 16 tablets (Exhibit 6), Eddie Parker, 30 tablets (Exhibit 8), Marcia Marshall, 50 tablets, (Exhibit 10) and Robert Pennington 50 tablets (Exhibit 12). The latter two prescriptions were dated February 3, 1977. The charts for these patients all indicated the patients were seen by Roberts on the dates shown on the prescriptions, that is, on February 2 and February 3.
During this visit Duncan advised Roberts that he, Duncan, owed Roberts additional money but had only $450 to give him at the time. Just as Duncan completed counting out the $450 on Roberts' desk the narcotics investigator knocked on the door, was let in, arrested Roberts and took the money and the prescriptions that had been prepared. In addition, other papers on Roberts' desk were taken. One, Exhibit 14, shows what appears to be a column of numbers
of the tablets prescribed that evening with an abbreviation of the patient's name along side the number. Thus 16 St, 30 Pa, 50 Pe, and Marcia 50 correspond to the number of Dilaudid tablets on Exhibits 6, 8, 10 and 12 prescribed for Stewart, Parker, Pennington and Marcia Marshall for a total of 146.
Testifying in his own behalf Respondent denied any wrong doing or that he had ever had any Dilaudid pills in his possession. He accounted for the $450 on his desk by claiming it to be the result of a $120 investment (or loan he made to Duncan) to participate in a lumber operation proposed by Duncan. When read quotes from his taped conversation with Duncan Roberts testified he had no recollection of the conversation. On the other hand, during his taped conversation with Duncan on February 2, 1977 Roberts acknowledged receipt of the tablets he had given Duncan from a "woman" who delivered them to his residence.
Roberts' explanation of the prescriptions and chart entries dated February 3, 1977 which were seized February 2, 1977 was that he had prepared these prescriptions for the following day to save time. His explanation for the chart entry was that the patients must have called in and described their symptoms. Neither explanation is credible. His explanation for the February 2 prescriptions was that these patients had also called in, however, the police witness contacted three of the four and each advised he had not communicated with Roberts on February 2.
Duncan's testimony that none of the pills prescribed for him by Roberts was ever sold by Duncan was unrebutted.
Exhibit 20, a certified copy of the Judgment of Circuit Court dated June 27, 1977 recorded in Minutes Book 61, Page 33, shows that Carl Sylvester Roberts, Jr. pleaded nolo contendere to Count I pursuant to plea bargaining, was adjudicated guilty by the court of sale of a derivative of opium and was placed on probation for two years. Counts II and III were nolle prossed.
CONCLUSIONS OF LAW
Section 459.14 F.S. provides that the State Board of Osteopathic Physicians may, inter alia, revoke or suspend the license or restrict the practice of osteopathic medicine of any person licensed pursuant to the provisions of this chapter for a period of up to five years. Among the grounds for such actions are:
"(2)(a) Conviction of a felony, as shown by
a certified copy of the record of the court of conviction...
(c) Gross malpractice or the inability to practice osteopathic medicine with reasonable skill and safety...
(h) Violation of the code of ethics of Osteo- pathic physicians and surgeons promulgated under the rules and regulations of the Florida Board of Osteopathic Medical Examiners.
A finding by the board that the individual is guilty of immoral or unprofessional conduct. Unprofessional conduct shall include any departure from, or failure to conform to the
minimal standards of acceptable and prevailing osteopathic medical practice, without regard to the injury to a patient, or the committing
of any act contrary to honesty, whether the same is committed in the course of practice or not.
Violation of any statute or law of this state... which statute or law relates to the practice of medicine."
Chapter 893 F.S. pertains to drug abuse prevention and control and therein provides, inter alia, that an osteopath licensed pursuant to Chapter 459 is a practitioner; that a practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix or otherwise prepare a controlled substance; that Schedule II controlled substances include opium and any salt, compound, derivative, or preparation of opium; and that dispensing Schedule II controlled substances not in conformity with this chapter constitutes a felony of the second degree.
Chapter 21R-3 F.A.C. contains the Code of Ethics for osteopathic physicians and Rule 21R-3.12 F.A.C. provides:
"The physician shall cooperate fully in complying with all laws and regulations pertaining to practice of the healing
arts and protection of the public health."
Here Respondent entered into an arrangement with Duncan to provide the latter with a Schedule II controlled substance, to wit, Dilaudid, for the purpose of selling same in violation of the provisions of Chapter 893 F.S. For carrying out this arrangement, which Respondent was able to do by virtue of his license as an osteopathic physician, Respondent received a substantial portion of the proceeds of such sale. Since Respondent knew, at the time he prepared the prescriptions for the 4 patients named in the findings above, that these prescriptions were not intended to be used by the patients for whom they were prescribed, he knowingly and intentionally violated the provisions of Chapter 893 F.S. By so doing he also violated the provisions of Section 459.14(2)(n) above quoted.
Prescribing controlled substances contrary to the provisions of Chapter 893 F.S. constitutes unprofessional conduct and gross immorality. Chapter 893 F.S. is the State equivalent of the Federal statute known as the Harrison Act. In Sietz v. Ohio State Medical Board,157 N.E. 304 (Ohio 1926) where a practitioner had been found guilty of 26 violations of the Harrison Act the court held.
"He had thereby shown such a contempt of the opinion of the respectable members of the community and
such an indifference to the obligations which rest upon him in performing the duties of his calling as to dishonor himself, degrade his profession and be guilty of gross immorality within the terms of the licensing statute."
Respondent contended that the judgment of the Circuit Court based upon his plea of nolo contendere was not a conviction. This contention is without merit. In Vinson v. State, 345 So.2d 711 (Fla. 1977) the court held:
"A plea of nolo contendere admits the facts for the purpose of the pending prosecution. It raises no issue of fact or law under the accusa- tion."
After such a plea the trial court had no authority to enter a judgment of not guilty. After a nolo plea the court held that the trial court has the authority to: "(1) Accept plea and enter judgment and sentence thereon, or (2) Reject the plea, enter a plea of not guilty for the defendant after which the defendant would have the choice of entering a plea of guilty or not guilty and then proceeding with trial."
Here Respondent, upon advice of counsel and with a full understanding of the consequences of his plea of nolo contendere, plea bargained the plea of nolo contendere for the sentence of two years probation and a nolle prossequi of two other counts against him. This constitutes a conviction in a court of competent jurisdiction of a felony and a violation of Section 459.14 (2)(a) F.S. above quoted.
No evidence was presented that Respondent was unskillful or committed any acts constituting what is normally understood to be malpractice. Malpractice, as the term is used with reference to physicians and surgeons, is a practice of a physician or surgeon that is bad or unskillful and results in an injury to his patient. 25 Fla. Jur. 75, Physicians and Surgeons.
While a broad definition of malpractice as used in 459.14(2)(c) F.S. could lead to a finding that the acts of Respondent, in violation of the laws pertaining to controlled substances, constitute gross malpractice it is concluded that the term malpractice, as used in Chapter 459 F.S., is restricted to its generally accepted meaning and that from the facts presented Respondent is not guilty of violation of 459.14(2)(c) F.S.
From the foregoing it is concluded that Carl Sylvester Roberts, Jr.,
Fred E. Landt, III, Esquire Post Office Box 1943
