vs. ) CASE NO. 79-488
JOHN E. NICHOLS, D.D.S., )
Respondent. )
A hearing was held in the above captioned matter, after due notice, at Marianna, Florida, on May 29, 1979, before the undersigned Hearing Officer.
Whether Respondent's license to practice dentistry should be revoked for alleged violations of Chapter 466, Florida Statutes, as set forth in the Administrative Complaint ("Accusation") dated February 13, 1979.
At the commencement of the hearing, Petitioner withdrew paragraph 3 and paragraph 4(b) of its Accusation. Respondent admitted the factual allegations of paragraph 2 but denied that he is thereby unfit to practice dentistry.
Respondent John E. Nichols is licensed by Petitioner and was in the private practice of dentistry in Marianna, Florida from 1975 to December, 1978. He attended undergraduate school at the University of Florida and, while there, saw a psychiatrist on several occasions for treatment of depression. He graduated from dental school at Western Reserve University in 1968 and thereafter served two years as a dentist in the United States Air Force in Okinawa. During this period, he visited an Air Force psychiatrist on a regular basis for treatment of depression, and upon discharge received a Veterans Administration service connected disability rating with diagnosis of anxiety reaction. In 1971, while employed as a private practitioner in Miami, Florida,
he consulted and received treatment from a psychiatrist there for the complaint of depression. In 1972, he went to Marianna where he worked for three years in a boy's school prior to entry into private practice there. He had episodes of depression during his employment at the school and sought treatment at a guidance clinic in Marianna. In 1975 or 1976, Respondent sought treatment at the Oshner Clinic in New Orleans and psychiatrists there were of the opinion that his depression might be organic in nature. He has been under the treatment of Dr. John F. Mason, Jr., a psychiatrist in Panama City, Florida, since January, 1977 until the present date. (Testimony of Respondent, Mason (Deposition))
Respondent experienced difficulties with his marriage after going into private practice in Marianna, which led to a divorce in December, 1977.
However, Respondent appealed the divorce decree and the matter was not finally settled until the latter part of 1978. He closed his office for approximately a six-month period prior to May, 1978. this time, Respondent was taking drugs prescribed by his psychiatrist which consisted of Valium and Parnate to treat his diagnosed conditions of schizophrenia and depression. Additionally, he was drinking alcoholic beverages to excess during this period due to difficulties in sleeping at night. (Testimony of Respondent, Mason)
During the period May through December, 1978, there were a number of times when Respondent's employees cancelled appointments of patients due to his inability to perform dental services. A primary cause for such inability was Respondent's drinking alcoholic beverages the previous night with resulting intoxication. On such occasions, he would awaken in the morning feeling very depressed and unsure of himself. He would either notify his staff to cancel appointments or come to the office prepared to keep appointments, but be advised by his employees that he was in no condition to perform dental work. In such instances, he normally would not see patients. Sometimes he solicited employees' opinions as to his ability to work and other times they would volunteer such information to him. He appeared to be intoxicated at these times with a puffy face, lack of equilibrium, slurred speech, and red eyes. On one occasion, an employee smelled alcohol on his breath. Once he was observed by an employee coming to the office in the morning and staggering past a patient who was in the waiting room. Respondent had about forty child patients who were provided dental services through the auspices of the Department of Health and Rehabilitative Services. In 1978, he cancelled twelve appointments with HRS patients, ten of which were due to his mental or physical condition. These cancellations were normally made on the day of the appointment and thus caused inconvenience to HRS social workers who transported the children to and from their appointments. Although Respondent did not perform dental work on patients at times when he was intoxicated, he was observed by an employee on one occasion treating a patient when he "wasn't at himself" and didn't have "a straight chain of thought." (Testimony of Respondent, Adkins, Daffin, Welch, DeVane, Sellers, Respondent's Exhibits 1-2. (Respondent's Exhibit 2 was erroneously received in evidence at the hearing as Respondent's Exhibit 1. It has therefore been renumbered.))
In August, 1978, Respondent was at his home and received a call one evening from a male who stated that his female friend had a bad toothache. Respondent told him to bring her to his house and, when they arrived, he examined the girl, Sherry Ratner, and found her to have large decay in a tooth. Respondent suggested that he write a prescription for Demerol to alleviate the pain and that she make an appointment with his office on the next working day. The girl told him that she did not want anything that strong, but mentioned that she had previously taken Dilaudid which had been adequate for dental pain in the
past. Respondent was unfamiliar with the drug, but determined through a reference work that it was an acceptable medication for pain relief. Respondent therefore gave her a prescription and the couple indicated that she would come into Respondent's office the next day. The couple came into Respondent's office on two subsequent occasions to obtain another prescription for Dilaudid and went into Respondent's back office without having a previous appointment or filling out a medical history statement. Later, a pharmacist called one of Respondent's employees and stated that he didn't carry the medication in as strong a dosage as shown on the prescription. Then queried by his employees concerning the matter, Respondent told them that the girl was coming in for an appointment the next day and they told him that she did not have an appointment. Respondent then said that she was on a drug rehabilitation program and that he wrote the prescription to keep her from obtaining the drug on the streets. Respondent testified that after he discovered that the girl was in a drug rehabilitative program in Kentucky, he felt that there was a problem in prescribing medication for her because she might have been using the drugs to "get high," and that he was further concerned that she had not made an appointment for dental care. (Testimony of Respondent, Adkins, Daffin, Cliff, Petitioner's Exhibit 3)
On November 30, 1978, Respondent obtained thirty 100 mg Seconal tablets from a pharmacy by means of writing a prescription in the name of Shelta Jean Pacock, who was one of his patients in Marianna. On December 4, 1978, Respondent took over twenty of the tablets in a suicide attempt for which he was hospitalized for several weeks. Respondent testified that the suicide attempt was made because of his depressive state. He further testified that he wrote the Seconal prescription in someone else's name because he had been told by a local pharmacist that he could not prescribe drugs for himself. (Testimony of Respondent, Peacock, Petitioner's Exhibit 1)
After release from hospitalization, Respondent closed his dental office and referred records of patients upon request to other dentists in the vicinity. He remarried in January, 1979, and, except for one instance in January or February, 1979, has not indulged in alcoholic beverages this year. His medication was changed by his psychiatrist and he is presently taking varying amounts of Elavil, Cogentin, Haldol and Antabuse. Respondent testified that he believes he does not presently have the self-confidence necessary to practice either by himself or with another dentist. He is of the opinion that after a few months he could resume practice, but would prefer to associate with another dentist who could help him at times when he felt insecure as a result of his illness. He is further of the opinion that the problems that he has experienced in the past psychologically can be eliminated by proper treatment and medication which will enhance his self-confidence. (Testimony of Respondent, M. Nichols.)
Respondent's psychiatrist, Dr. John F. Mason, testified that throughout 1977-78, Respondent was at times very depressed and potentially suicidal, somewhat paranoid, and on occasion used alcohol to excess. He believes that Respondent's divorce was the precipitating cause for the depressive condition. Dr. Mason saw Respondent on "crisis consultation" a number of times and hospitalized him during acute episodes when he was suicidal until the period had passed. Since his suicide attempt in December, 1978, Respondent has been hospitalized only once, which occurred after he received a letter from Petitioner concerning licensing proceedings. He thereafter started drinking to excess and voluntarily hospitalized himself for treatment. At the present time, he is doing very well and his stable and supportive relationship with his present wife assists in providing strong elements of support to improve his prognosis to "reasonably good" for the future. Dr. Mason believes that Respondent should avoid the pressure of private practice which plays a part in
his condition, by employment as a dentist in an institutional setting which would have a structured program. He diagnoses Respondent's condition as schizophrenia with depression as a complication of the basic elements. His condition is maintained on anti-psychotic drugs such as Stelazine, Haldol and Nalvane, and antidepressant drugs, including Elavil. He has not been psychotic while under treatment by Dr. Mason. Dr. Mason testified that Respondent's prior use of alcohol complicated the treatment of the depression, but he does not characterize him as an alcoholic because his use of alcohol was secondary to his psychiatric illness. At times during 1977-78, Respondent's medication was not properly balanced, causing some tremor of his hands and side effects as to concentration and memory. However, a puffy face, slurred speech, and bloodshot eyes are side effects of alcoholic beverages. (Testimony of Mason (Stipulated Admission of Deposition))
Several years ago, Respondent obtained counseling services concerning his alcohol problem with a fellow church member who was a former alcoholic and had worked in counseling programs. Several of Respondent's former patients and employees attested at the hearing to their belief that Respondent is a capable and considerate dentist. Respondent's wife testified that his present medication agrees with his system and that he has shown a tremendous improvement in his condition since December, 1978, and that he has gained more self- confidence during the past few months. (Testimony of Adkins, Daffin, Welch, Cheesborough, Gause, Conner, Wester, M. Nichols)
CONCLUSIONS OF LAW
Petitioner seeks to revoke Respondent's license to practice dentistry based upon alleged violations of Chapter 466, Florida Statutes. Although the complaint does not cite specific sections of Chapter 466, the allegations are sufficiently detailed to apprise Respondent of the grounds for disciplinary action as set forth in Section 466.24, F.S. Further, Respondent did not challenge the sufficiency of the complaint either prior to or at the hearing. The complaint in the form of an "Accusation" originally consisted of five counts, but as previously indicated, Count 3 was withdrawn by Petitioner at the commencement of the hearing, as was Count 4(b).
Petitioner's authority to take disciplinary action against a licensee is contained in Section 466.24, Florida Statutes, which reads pertinently as follows:
466.24 Suspension or revocation of license certificate for cause.-- The board shall suspend or revoke the license of any dentist when it is established to its satis-
faction that he:
(1) Is a habitual user of intoxicants or drugs or is afflicted with physical disa- bility, senility, psychiatric disorders, or other disease deemed dangerous to the public health, thus rendering him unfit for the practice of dentistry . . . .
* * *
(3) Has been guilty of:
(a) Misconduct either in his business or in his personal affairs which would bring dis- credit upon the dental profession;
* * *
(n) Violating any other provision of this chapter regulating the practice of dentistry
. . . .
The amended accusation alleges in Count 1 that Respondent is unfit to practice dentistry due to habitual use of intoxicants as evidenced by the fact that appointments with patients had to be cancelled at times when he did not come to work due to intoxication or came to work intoxicated. It further alleges that he has repeatedly practiced dentistry while intoxicated, thereby preventing him from completing work he had begun or completing it in a grossly inadequate manner. Respondent concedes that he frequently cancel led appointments with patients during 1978, but attributes his inability to perform at such times on the residual effects of prescribed medication. The evidence, however, shows that the primary cause of his inability to work properly on those occasions was due to residual effects of prior indulgence in alcoholic beverages, which in turn was precipitated in great part by emotional stress and psychiatric illness. Regardless of these mitigating factors, there has been no showing that Respondent was so mentally unsound as to be unaware of his ill- advised and excessive use of alcohol or that he could not have taken appropriate steps to control the problem. Although there is no statutory definition of the word "unfit" with respect to its application under subsection 466.24(1), it is clear that he was not fit or qualified or otherwise capable of properly practicing dentistry in a number of instances when appointments had to be cancelled. Accordingly, it is concluded that ground for disciplinary action exists under the above mentioned statutory provision under Count 1. However, insufficient evidence was submitted upon which to base a finding of fact that Respondent "repeatedly practiced dentistry while intoxicated" and thereby performed dental services in an inadequate manner. Count 2 alleges that Respondent is unfit to practice dentistry due to habitual use of drugs by prescribing barbituates for personal use in the name of another and consuming an abnormally high amount of the same causing prolonged unconsciousness and hospitalization. This count apparently refers to Respondent's December, 1978, suicide attempt caused by the ingestion of a large amount of the drug Seconal. This was an isolated instance and cannot form a basis for a determination under subsection 466.24(1) that he is unfit to practice dentistry due to habitual use of drugs. It is true, of course, that he regularly takes antidepressant and anti-psychotic medication to maintain a stable condition in connection with his illness. However, the evidence does not establish that his use of such drugs rendered him unfit to practice dentistry although there was an imbalance from time to time in the particular combination of drugs prescribed by his physician, which produced some side effects, such as a hand tremor and occasional lack of memory and concentration. These manifestations of drug use did not prevent him from performing adequately as a dentist. The one situation involving drug overdose cannot be ascribed to habitual use of drugs.
Count 4 states that Respondent is unfit to practice dentistry due to misconduct in his business and personal affairs which brings discredit upon the dental profession, as evidenced by repeated public intoxication, improper personal use of barbituates obtained by improper methods, and repeated cancellation of appointments and abandonment of patients without efforts to secure alternative dental care far them. No evidence was presented to show repeated public intoxication or that cancellation of appointments caused abandonment of patients. Respondent made new appointments for patients in cases of cancellation and, when he closed his office, appropriate arrangements were made for transfer of the patients to other dentists, when necessary. It is clear though, that he did make improper personal use of Seconal in the December,
1978, incident by means of a prescription which he wrote in the name of a patient. Even though his depression may have reached such acute proportions that he sought to take his own life, again there has been no showing that he could not have alleviated his condition by seeking proper medical treatment. Also, his method of obtaining the drugs by misuse of a prescription is uncontroverted. Such actions undoubtedly constitute "misconduct in his business and personal affairs" which certainly brought discredit upon the dental profession as a whole. Section 466.22 provides that a dentist has the right to prescribe drugs or medicine "as may be necessary to the proper practice of dentistry." The facts show that Respondent clearly abused this right and authority in connection with his acquisition and subsequent use of drugs. It is therefore concluded that grounds for disciplinary action exist pursuant to subsection 466.24 (3)(a), F.S.
Count 5 alleges that Respondent violated "other provisions of Chapter 466" by prescribing drugs or medicine not necessary to the proper Practice of dentistry in that he prescribed drugs and medicine for persons not under his dental care. This count apparently alludes to the occasion when Respondent, in August, 1978, prescribed Dilaudid for Sherry Ratner. The circumstances under which Respondent prescribed the drug are sufficient to show an emergency situation had occurred during non-office hours and testified him in believing that the drugs were necessary for relief of pain. The subsequent occasions when he saw the woman in his office even though she had not made an an appointment for dental treatment, coupled with Respondent's statements to employees indicating that he had prescribed drugs for her because he wished to keep a "drug addict off the streets" casts some doubt on his original intentions in prescribing the drug. However, it is concluded that insufficient evidence was presented to establish that Respondent's actions amounted to misconduct under Section 466.24(3)(a) or any other violation of Chapter 466.
In view of the above established grounds for disciplinary action, it is considered that any penalty must be assessed in light of the stated object of Chapter 466, as set forth in Section 466.01. That provision states that the practice of dentistry is declared to affect the public health, safety and welfare and to be subject to regulation and control in the public interest. It is further declared therein that it is a matter of public interest and concern that the dental profession merit and receive the confidence of the public. To some degree, Respondent's psychiatric illness contributed to his improper actions in precipitating excessive use of intoxicants. This resulted in cancelled appointments and in exacerbating the depressive condition which led to the overdose of Seconal. Although Respondent's condition has markedly improved since his discontinuance of private practice, he concedes that he is not canable of resuming the practice of dentistry at this time. Although his derelictions, when considered together with the mitigating and extenuating factors of his psychiatric disorder, are not deemed sufficient to warrant license revocation, it is apparent that public safety and welfare requires a substantial period of suspension. The prognosis of his psychiatrist for stabilized recovery is considered to be "reasonably good." It is concluded that Respondent's license to practice dentistry should be suspended for a period of one year, but that it thereafter be reinstated only upon a showing to Petitioner that he is physically and mentally competent to practice dentistry. If such a showing is not made, the suspension should continue for additional periods of six months until Petitioner determines that Respondent is so competent as to warrant reinstatement.
At the hearing, Petitioner sought to admit in evidence as a matter of aggravation the breach of a 1978 Stipulation of Settlement between the parties
in which Petitioner agreed to forego prosecution of unspecified violations of Chapter 466 conditioned upon Respondent's agreement to undertake psychiatric treatment and make regular reports to the Petitioner for a period of two years. Such an agreement cannot serve as a basis of establishing prior misconduct for the purpose of increasing the penalty in this proceeding.
The proposed recommended orders submitted by the parties have been fully considered. Those portions not incorporated herein are considered to be either unsecured in law or fact, or unnecessary or inapplicable to resolution of the issues.
That the Petitioner suspend Respondent's license to practice dentistry pursuant to the authority contained in Section 466.24(1) and (3)(a), Florida Statutes, under the conditions stated in paragraph 6 of the foregoing Conclusions of Law.
DONE and ENTERED this 6th day of July, 1979, in Tallahassee, Florida.
THOMAS C. OLDHAM
