STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-799

)

JOSE PAUL SUAREZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Coral Gables, Florida, on August 5, 1980, before Thomas C. Oldham, Hearing Qfficer.

APPEARANCES

For Petitioner: Kenneth G. Oertel, Esquire

Acting General Counsel

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

For Respondent: Julian Mack, Esquire

Suite 500, Security Trust Building 700 Brickell Avenue

Miami, Florida 33131 ISSUE PRESENTED

Whether disciplinary action should be taken against Respondent for alleged violations of Chapter 458, Florida Statutes.

This proceeding involves charges brought against Respondent by Petitioner Department of Professional Regulation on March 26, 1980, alleging that on September 12, 1979, Respondent violated various provisions of Chapter 458, Florida Statutes, by prescribing controlled substances other than in the course of his professional Practice, and that he failed to practice medicine properly. On March 31, 1980, Respondent executed an Election of Rights wherein he requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the hearing, Petitioner presented the testimony of five witnesses and submitted nine exhibits into evidence. An oral stipulation of the parties was accepted as to the expected testimony of Petitioner's witness Clarence G. Igoe. Respondent presented the testimony of three witnesses and testified in his own behalf. He further submitted one composite exhibit consisting of a number of letters attesting to his good character and ability as a physician.

Ruling was reserved on the admission into evidence of Petitioner's Exhibit 7, a pretrial oral deposition of Ronald Gudger, taken by counsel for Respondent on November 20, 1979, in a criminal proceeding against Respondent in the Dade County Circuit Court, Case No. 79-15059. The criminal charges in that case grew out of the same incident involved in this administrative proceeding, and the examination of the deposed witness involved the incident in question and his status as a confidential informant for the state. It was established at the administrative hearing that Gudger was unavailable to testify in person due to the fact that his whereabouts were unknown. Respondent objected to the introduction of the deposition on the ground that he had not been present at the taking of the deposition and that it had been taken incident to a criminal proceeding involving different parties and issues. It is now determined that the deposition is admissible in evidence as an exception to the hearsay rule pursuant to Section 90.804(2)(a), Florida Statutes, as former testimony. That statutory provision provides that the former testimony of an unavailable witness is admissible if such testimony was given in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. It is considered that Respondent exercised his opportunity to examine the witness at the deposition concerning the same incident which is the subject of this proceeding and therefore cannot complain against its use against him herein.

Accordingly, those portions of the deposition which are considered relevant and material to the matters here under consideration are made the subject of findings of fact as indicated hereinafter.

FINDINGS OF FACT

1. Respondent Jose Raul Suarez has been licensed to practice medicine in the State of Florida since January 12, 1961. He conducts his practice at the Flagler Medical Clinic, 965 West Flagler Street, Miami, Florida. (Testimony of Manresa, Petitioner's Exhibit 1)

   
   

2. On August 27, 1979, one Ronald Gudger was arrested by Miami police for possession of a stolen credit card. During the pendency of the criminal proceeding, Gudger informed police officials that Respondent had issued false prescriptions for drugs to himself and to others. On September 10, 1979, Gudger was released and placed in a pretrial intervention program. Subsequent to his release, Gudger told city detectives further details concerning his prior relationship with Respondent, including the fact that Respondent had previously provided him with written prescriptions for Preludin, Placidyl, and Percodan on various occasions in 1979. He also indicated to the officers that Respondent was desirous of obtaining a Betamax video recorder. Gudger had been introduced to Respondent by an individual named "Pete." During the course of some ten to fifteen visits to Respondent, Gudger never received a physical examination or informed Respondent that he had a weight problem or any other medical reason for needing the drugs. However, Respondent had asked him questions once for his records. On only one occasion did he pay Respondent a $10.00 office visit fee. On one occasion, he had promised to give Respondent a "stereo" in exchange for prescriptions for drugs. Although he obtained the prescriptions from Respondent, he was not able to get the stereo. (Testimony of Manresa, Lopez, Gudger (Deposition-Petitioner's Exhibit 7) Rabin, Petitioner's Exhibit 6)

   
   

3. Pursuant to an arrangement with Miami narcotics detectives Luis M. Lopez and George Manresa, Gudger became a paid confidential informant for the police department. On September 12, 1979, Lopez and Gudger went to Respondent's

   office planning to offer Respondent a Betamax in exchange for drug prescriptions. The officers had obtained a Betamax from county sources and it was in the trunk of an unmarked police car parked in a lot in back of Respondent's office. At the time, Manresa conducted surveillance of the parking lot from a van in which he also monitored communication equipment designed to record any conversations in Respondent's office from a transmitter which had been hidden on the person of Lopez. Another police officer had camera equipment. At about 1:00 p.m., Lopez and Gudger entered Respondent's office.

   Gudger informed the receptionist that they had a Betamax that the Doctor wanted which had been stolen the previous night. In approximately an hour or an hour and a half, when all the patients had left the office, the receptionist told Gudger he could see Respondent. Gudger told Respondent that he had a Betamax waiting for him in return for $100.00 and some prescriptions. Respondent stated that he was short of cash. Gudger informed Respondent that "Louie" was in the outer office and was a friend of his. Respondent asked "Is he cool?" and Gudger said "Yes." Gudger brought Lopez into the office and introduced him to Respondent as the "guy with the Betamax." Lopez told Respondent he had the Betamax , which was "hot," in the trunk of his automobile which was parked behind the office. Respondent stated "It's no problem." They told Respondent that they would take prescriptions for the machine and Respondent asked how they wanted to do it. Lopez gave Respondent list of several names and addresses and told him that he had a brother named Luis Lopez. Lopez identified himself with a false identification card in the name of Luis Trigo. Respondent then proceeded to write six prescriptions for Placidyl 750 mg and Preludin 75 mg in the amounts of 30 each. Two prescriptions were in the name of Luis Lopez, two in the name of Lazaro Luis Trigo, one in the name of Ronald Gudger, and another in the name of Rhonda Gudger, his wife. Lopez asked Respondent to write one prescription for a different date than September 12 and Respondent dated one of the Trigo prescriptions for September 13. While writing the prescriptions, Lopez remarked to Gudger that he was really going to get "high" that night with the pills, and Respondent merely smiled when hearing this statement. Respondent told them that when filling the prescriptions, they should dress neatly and comb their hair so that they would not call attention to themselves. Be also told them not to go to the Golden Pharmacy in North Miami because the police had been checking it and it was "hot." Respondent told Lopez that he would fill out a patient card on him for his records, but did not do so at that time. Lopez told Respondent that he did not want to have a physical examination and Respondent replied that he didn't need one. He told the men to put the prescriptions in their pocket as they left the office so that they would not be noticeable, and said that he would meet them in back for the Betamax. Gudger and Lopez then left the office and went to the parking lot. Respondent followed soon thereafter. Lopez drove his automobile so its trunk was near the trunk of Respondent's car . He opened the trunk and showed the Betamax to Respondent and asked him if that was what he wanted. Respondent said it was perfect because it was a two-hour cassette type and told him to put it in the trunk of his automobile. At that time, the other police personnel in the vicinity came to the scene and arrested Respondent who was thereafter charged with possession and dealing in stolen property and sale of controlled substances. Respondent was later tried on the criminal charges and found not guilty by jury verdict.

   Patient records obtained from Respondent during the course of discovery in that proceeding reflected both Ronald Gudger and Rhonda Gudger as patients who both suffered from depression and insomnia. In addition, the records indicated that Rhonda Gudger desired to lose weight. Ronald Gudger's card reflected that he had sought treatment on four occasions from May to August 1979, at which time Preludin and Valium had been prescribed, and that on an additional visit he had been issued a refill of Preludin since he had lost his prescription. (Testimony

   of Manresa, Rabin, Lopez, Igoe (deposition), Gudger (Petitioner's Exhibit 7), Petitioner's Exhibits 2-6, 8)

   
   

4. Placidyl is a trade name for Etchlorvynol, a Schedule IV controlled substance under Chapter 893, Florida Statutes. Preludin is the trade name for Phenmetrazine, a Schedule II controlled substance under Chapter 893. Placidyl depresses the central nervous system and is customarily prescribed for insomnia. Preludin is used for appetite suppression, anorexia, and narcolepsy. It is excitatory and produces adrenaline-like effects. Both drugs can be used safely if properly administered after a thorough medical history and physical evaluation has been made by a physician, but should never be prescribed without interviewing the patient and arriving at an informed diagnosis of his condition. In the opinion of an expert medical authority, it would be an unacceptable medical practice to prescribe such drugs to persons whom a physician had never seen. In the vernacular of drug abusers, Placidyl is termed a "downer" and Preludin an "upper." (Testimony of Palmer, Stonis)

   
   

5. Respondent testified at the hearing substantially as follows: Ronald and Rhonda Gudger had been his patients whom he had treated for legitimate complaints in 1979. He had prescribed Preludin to Ronald Gudger for conditions of depression, insomnia and obesity, to serve as an anti-depressant and "mood elevator." He had seen Rhonda on June 8, 1979, and prescribed Preludin for her obesity. He saw Gudger on September 12, 1979, at which time Gudger requested that he be given a refill prescription of Preludin and also Placidyl, claiming it was good for his sleep. He also asked Respondent to refill his wife's prescription because she, was doing well on the medication. Respondent claimed that he wrote both prescriptions and told Gudger that he owed $10.00 from his last visit and $10.00 for the present visit, at which point Gudger stated that he had no money but would sell Respondent a Betamax. Respondent then informed Gudger that he did not want anything stolen and Gudger told him that it was "cool" and that he needed money. Respondent stated that he would have to see it. Gudger asked him to see his friend and thereafter brought Lopez into the office. Lopez asked for Preludin stating that he had used it before as a mood elevator. Respondent asked Lopez questions concerning his medical history and was going to perform a physical examination, but Lopez objected stating that he did not need one. Respondent then wrote the prescriptions for Lopez, at which time Lopez told him that he had a 29 year old brother who also took the same medicine and asked for prescriptions for him. Respondent wrote the prescriptions for the brother because he had patients waiting and Lopez had told him the brother was in good health and "strong as an ox." Respondent then went to the parking lot behind his office to obtain a prescription pad and also to see the Betamax which he had agreed to purchase from Gudger if it worked properly and they could agree on a price. He denied that Lopez had told him that the Betamax was "hot." Respondent issued the prescription for Gudger's wife because he trusted him when he stated that his wife had done well on the drug and that she needed a refill of the prescription. He had issued the prescriptions to Lopez because he had said he was in perfect health and just felt "down" and had difficulty sleeping at night. (Testimony of Respondent)

   
   

6. Two local physicians and a nursing supervisor testified at the hearing as to their observations that Respondent provided his patients with excellent care. A number of letters were received in evidence from fellow physicians in Miami attesting to Respondent's good reputation as an ethical and professionally capable physician in the community. Also, Respondent's work with the Armed Forces Examining and Entrance Station in Miami was praised in a letter from the station's commanding officer. A nursing administrator for Multicare, Inc. in Miami also provided a letter concerning Respondent's concern for patients' needs

   in the Medicare program and his efforts to prevent mismanagement of Medicare funds. A high school principal wrote a letter concerning Respondent's treatment of his family and his services to schools and other community activities in the Miami area. (Testimony of Serratta-Noges, Lameles, Cruz, supplemented by Respondent's Exhibit 1)

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner's complaint alleges that Respondent should be disciplined under Section 458.331(1)(q), Florida Statutes, for prescribing controlled substances, as defined in Chapter 893, Florida Statutes, to wit, Phenmetrazine and Etchlorvynol, to Luis Lopez and Ronald Gudger other than in the course of his professional practice, on or about September 12, 1979. It further alleges that Respondent failed to practice medicine properly by prescribing the controlled substances without conducting a physical examination or preparing patient records and by agreeing to receive compensation for his services in the form of property which Respondent believed to have been stolen, in violation of Section 458.331(1)(t), Florida Statutes. At the commencement of the hearing, Petitioner moved to amend Count 5 of its complaint to add the additional ground for disciplinary action of failing to keep written medical records, pursuant to Section 458.331(1)(n), Florida Statutes. Inasmuch as the additional count was fairly raised by the wording of Count 5, the Hearing Officer granted the motion subject to any request for a continuance by Respondent if additional time to prepare a defense against such matters was desired. No such request was made during the course of the hearing.

   
   

8. The stated statutory grounds for disciplinary action provide pertinently as follows:

   
   

   458.331 Grounds for disciplinary action; action by the board.--

   1. The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken:

   (n) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results.

   (q) Prescribing . . . a legend drug, in- cluding any controlled substance, other than in the course of the physician's pro- fessional practice. For the Purposes of this paragraph, it shall be legally pre- sumed that prescribing . . . legend drugs, including all controlled substances, inappropriately or in excessive

   or inappropriate quantities is not in the best interest of the patient

   and is note in the course of the physician's professional practice, without regard to his intent.

   (t) Cross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment, which is recog-

   nized by a reasonably prudent similar physician as being acceptable under similar circumstances.

9. The evidence establishes that Respondent wrote prescriptions for the controlled substances referred to in the Administrative Complaint to the individuals named therein on September 12, 1979. In fact, Respondent admits that he prescribed the drugs to those individuals on that date. The conflict arises as to the appropriateness of such action by Respondent and the circumstances under which the drugs were prescribed. Although Ronald Gudger claimed that he had obtained drugs in the past from Respondent without complaining of medical problems and by promising to provide personal property in exchange therefor, Respondent contended that both Gudger and his wife had sought his services for various medical conditions. Respondent's testimony was supported by patient medical records for both individuals which showed a succession of office visits and issuance of prescriptions for drugs appropriate to their stated conditions.

   
   

10. No charge has been alleged as to the prescription issued to Rhonda Gudger on September 12, 1979, and, accordingly, it is unnecessary to discuss Respondent's conduct in issuing a prescription in her name to her husband upon his request. In the absence of further evidence, Respondent's claim that he had been treating Ronald Gudger as a bona fide patient for a period of approximately six months would be considered more credible than than the deposition testimony of the paid confidential informant. However, the evidence clearly shows that Respondent prescribed similar controlled substances to Lopez, the undercover detective, and to his fictitiously "brother" without requiring a physical examination or meaningful inquiry into the medical history of Lopez, or even requiring the presence of the alleged brother. Although Respondent denied that he issued the six prescriptions in exchange for a Betamax recorder, it is noteworthy that no fee was requested of Lopez for his office visit. Not only was Respondent informed by Lopez that the recorder was stolen, but Respondent's statements made in the presence of the officer as to the manner in which the prescriptions were to be filled at pharmacies, the dress which should he worn by Gudger and Lopez at such times, and the warning to avoid a particular pharmacy, reveal that he did not intend to prescribe medicine for ailing patients, but simply provided a means by which he could acquire the recorder. In short, it is concluded that Respondent's version of the circumstances is unworthy of belief and that he did not prescribe the stated drugs in the course of his professional practice. This being so, disciplinary action is authorized under Section 458.331(1)(q), Florida Statutes.

    
    

11. Petitioner's allegations that Respondent's conduct justifies imposition of discipline pursuant to subsections 458.331(n) for failing to keep written medical records and 458.331(t) for the failure to practice medicine with acceptable care, skill, and treatment cannot be sustained. Utilization of those disciplinary grounds requires findings that a physician gave improper or inadequate treatment in the course of his professional practice. Since it has previously been determined that the incident complained of was outside of and not in the course of Respondent's professional practice, there can be no basis for discipline under the stated grounds.

    
    

12. Section 458.331(2) authorizes the board to impose one or more various penalties after finding a physician "guilty" of any of the grounds for discipline. In a post-hearing memorandum, Respondent concedes that he did not use the best medical judgment when he gave Officer Lopez prescriptions for himself and his "brother," but claims that Lopez presented a neat appearance, and that he was duped in believing the statements that Lopez' "brother" had taken the medication previously for medical reasons. Respondent further points to his almost 20 years of professional practice, his acquittal in the criminal proceeding, and the evidence presented concerning his good reputation as a

    physician. He therefore requests that, in the event discipline is required for his poor judgment, only a supervised probationary period be imposed.

    
    

13. In assessing an appropriate penalty for Respondent's misconduct, his lengthy practice with no prior disciplinary action has been taken into consideration. It is, however, believed that Respondent seriously abused his status as a licensed physician by, in effect, selling prescriptions for controlled substances outside the course of his medical practice. It is fundamental that making controlled substances available for either non-medical use or possibly for private sale is contrary to the public health and safety in general, and also presents a potential danger to those who might use such substances inappropriately. It is therefore considered that Respondent's misconduct fully warrants suspension of his license to practice medicine and that such suspension should be for a period of one year.

    
    

14. Post-hearing submissions by the parties have been fully considered and those portions thereof which have not been adopted in this Recommended Order are considered either irrelevant, unnecessary or unwarranted in fact or law, and are specifically rejected.

RECOMMENDATION

That the State Board of Medical Examiners issue a Final Order suspending the license of Respondent Jose Raul Suarez to practice medicine for a period of one year, pursuant to subsection 458.331(1)(q) and (2), Florida Statutes.

DONE and ENTERED this 2nd day of September, 1980, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1980.

COPIES FURNISHED:

Kenneth G. Oertel, Esquire Acting General Counsel Department of Professional

Regulation

2009 Apalachee Parkway

Tallahassee, Florida 32301

Julian Mark, Esquire

Suite 500 - Security Trust Bldg. 700 Brickell Avenue

Miami, Florida 33131

Docket for Case No: 80-000799

Orders for Case No: 80-000799