on January 7, 1981, in Room 502 of the State Regional Service Center, Pensacola, Florida. The issue for determination at the hearing was whether disciplinary action should be taken against Respondent's license as a physician for the reasons set forth in the Administrative Complaint dated May 29, 1980.
For Petitioner: Deborah J. Miller
For Respondent: Hobart C. Worley, Jr.
By an Administrative Complaint dated May 29, 1980, Respondent Richard Daniels was charged with three violations of Chapter 458, Florida Statutes. Specifically, it is alleged that Respondent violated a lawful order of the Board of Medical Examiners in contravention of Section 458.331(1)(x); prescribed, dispensed, or administered a controlled substance to himself in violation of Section 458.331(1)(r); and is unable to practice medicine with reasonable skill and safety to patients by reason of illness, alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of a mental or physical condition in violation of Section 458.331(1)(s), Florida Statutes.
In support of the allegations of the Complaint, the petitioner presented the testimony of three physicians who qualified and were accepted as experts in the field of psychiatry, Sergeant James Boland with the Pensacola Police Department, William D. Taylor, an investigation supervisor with the Department of Professional Regulation and Dr. George S. Palmer, formerly the Executive Director of the Florida Board of Medical Examiners and presently a medical consultant for the Department of Professional Regulation. Exhibits 1 through 10
were received into evidence on petitioner's behalf. Respondent testified on his own behalf and offered into evidence Exhibit A, which was received.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
At all times pertinent to this proceeding, respondent Richard E. Daniels held a current and valid medical license with the State of Florida.
On June 30, 1978, the State Board of Medical Examiners of Florida filed an Administrative Complaint against respondent charging that respondent had not been reappointed to the medical staff of the Baptist Hospital for the year 1978, in violation of Section 458.1201(1)(p), Florida Statutes, and that respondent may not be able to practice medicine with reasonable skill and safety to patients within the meaning of Section 458.1201(1)(n), Florida Statutes. Following an informal proceeding, a Recommended Order was issued on November 16, 1978. The Hearing Officer, after considering the testimony of several witnesses and considering the fact that the respondent had not contested the allegations in the complaint, found that the allegations and charges in the complaint were supported by competent and substantial evidence. The Hearing Officer recommended that respondent's license be revoked, but that revocation be stayed and withheld and that respondent be placed on probation for a period of five years. Among the terms of his probation was the requirement that respondent continue his psychiatric treatment under Dr. Frank Gill, or if he should desire to change physicians, that such be done with advance approval by the Executive Director of the Board of Medical Examiners. The respondent was charged with the responsibility of insuring that his treating physician furnish reports every 90 days to the Board as to respondent's progress and prognosis.
By Final Order entered February 5, 1979, the Board of Medical Examiners adopted the findings of fact, conclusions of law and recommendations of the Hearing Officer.
Dr. Frank E. Gill, a psychiatrist, treated respondent before and after the Board's Final Order of February 5, 1979. In January, February and March of 1979, respondent has cancelled his appointments with Dr. Gill. The final treatment occurred on April 6, 1979. Respondent told Dr. Gill that he felt that he did not need psychiatrist treatment. Respondent related to Dr. Gill that he was an involuntary patient and was coming to Dr. Gill, not for the purpose of receiving therapy, but only because the Board had ordered him to do so. Dr. Gill was of the opinion that respondent could not be helped by treatment if he refused to recognize his illness. Dr. Gill therefore terminated his treatment of respondent and notified the Board by letter dated April 18, 1979, that he was allowing respondent to seek out another psychiatrist. At the time Dr. Gill terminated his treatment of respondent, he diagnosed respondent's condition as a marked depressed state with paranoid ideation. Dr. Gill did not feel that respondent was able to practice medicine at that time.
After receiving Dr. Gill's letter of April 18, 1979, Dr. George S. Palmer, then Executive Director of the Board of Medical Examiners, wrote a letter to respondent on April 26, 1979. This letter reminded respondent of the terms of his probation and informed the respondent that he must obtain the services of another psychiatrist and send his name to Dr. Palmer. Respondent was requested to advise Dr. Palmer of his intentions at once.
Respondent did not reply or otherwise respond to Dr. Palmer's April request until October 2, 1979, when he wrote the Board and stated that he had made arrangements with Dr. Francisco Ramos for psychiatric therapy. By letter to Dr. Ramos dated October 5, 1979, Dr. Palmer gave his approval for Dr. Ramos to be respondent's treating psychiatrist.
Dr. Ramos first became involved with respondent after respondent was admitted to the psychiatric unit of University Hospital in Pensacola. After receiving reports of respondent's violent behavior upon admission, Dr. Ramos determined that respondent should be transferred to a more protective environment and he directed that respondent be sent for the night to the County Jail under the provisions of the Baker Act. Dr. Ramos saw respondent the following morning, on September 29, 1979, and respondent was thereafter transferred back to the University Hospital. It was the opinion of Dr. Ramos that respondent had suffered an acute paranoid reaction in a paranoid personality, and that he must be retained in a secure environment. Respondent was kept in the Hospital until October 4, 1979. At the time of his discharge from the Hospital, respondent was accepting his medication and behaving more rationally. On October 4, 1979, Dr. Ramos felt that with regular psychiatric counseling and supervision, respondent could safely continue his limited outpatient practice with patients he knew well and had been seeing for years. This opinion was based in part upon respondent's agreement to see Dr. Ramos for treatment after his discharge from the Hospital.
Before his discharge from the Hospital, respondent made a tentative appointment to see Dr. Ramos on October 19, 1979. Respondent did not confirm this appointment, nor did he appear for his October 30th, 1979, appointment. Dr. Ramos notified Dr. Palmer of respondent's failure to comply with follow-up care. At the hearing, respondent testified that his promise to see Dr. Ramos
after his discharge was made only to get him out of the hospital. Dr. Ramos has not seen the respondent since his discharge on October 4, 1979. When asked to give his opinion as to whether a psychiatrist with a paranoid personality could safely treat patients, Dr. Ramos replied to the affirmative upon the assumption that there would be no acute episodes, no intoxication and further treatment and medication. Dr. Ramos would be willing to accept respondent as a patient provided respondent were honest with him and kept regular appointments.
Following a disturbance complaint from respondent's neighbors, Sergeant James A. Boland with the Pensacola Police Department, was summoned to respondent's residence at approximately 4:00 a.m. in March of 1980. The stereo in respondent's apartment was turned up to a loud volume and respondent refused to answer the door upon Boland's request. Respondent told Sergeant Boland to go away and that there were two pistols pointed at the door. Sergeant Boland then disconnected the electricity to respondent's apartment and respondent was thereafter arrested for disorderly conduct. No guns were observed in respondent's apartment. Respondent would not willingly accompany the officers to the police station, and he had to be physically carried down the stairs.
In March of 1980, William D. Taylor, an investigation supervisor with the Department of Professional Regulation, performed a routine pharmacy audit at Maulden's Drugs in Pensacola. He discovered five prescriptions with respondent's name as both patient and physician. Four of the prescriptions were for Eskatrol and were for amounts of 100 capsules on November 1, 1979, 50 on November 30, 1979, 50 on January 22, 1980 and 50 on March 13, 1980. The other prescription was for 100 tablets of Dexamyl on March 13, 1980. These prescriptions for Eskatrol and Dexamyl were found by Mr. Taylor in the file for Schedule II controlled substances. Eskatrol is used for purposes of weight
reduction and for severe depression. It could be a dangerous drug if abused, and an appropriate dosage would not exceed one capsule a day.
At the request of Dr. George Palmer on behalf of the Board of Medical Examiners, Dr. Frank L. Creel, a physician specializing in psychiatry, examined respondent on September 25, 1980. Dr. Creel diagnosed respondent's condition as paranoid personality disorder. It was Dr. Creel's opinion that while respondent had never posed a physical threat to his patients, he could not function with reasonable skill and safety as a physician at this time. Dr. Creel recommended that respondent enter psychotherapy and consider the use of medication.
Respondent Daniels testified on his own behalf at the hearing. He feels that he is quite competent to practice medicine at this time. At one point during his testimony, respondent stated that he would not accept psychiatric counseling as a condition of probation. At a later point, he stated that he supposes that he would do anything to keep his license, and that he would be "grudgingly" willing to have Dr. Ramos treat him.
CONCLUSIONS OF LAW
Petitioner has charged respondent with violations of Florida Statutes, Section 458.331(1), subsections (x), (r), and (s). Section 458.331(1) contains a list of acts which constitute grounds for which disciplinary action may be taken. As pertinent to this proceeding, subsections (x), (r) and (s) read as follows:
(x) Violating . . . a lawful order of the board or department previously entered in a disciplinary hearing. . . .
* * *
Prescribing, dispensing, or ad- ministering any medicinal drug appearing on any schedule set forth in Chapter 893 by the physician to himself, except one prescribed, dispensed, or administered to the physician by another practitioner authorized to prescribe, dispense, or administer medicinal drugs.
* * *
Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. . . A physician affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the com- petent practice of medicine with reasonable skill and safety to patients. . . .
The findings of fact recited above clearly demonstrate that respondent has failed to comply with the conditions of his probation which were entered after his previous disciplinary hearing. By Final Order dated February 5, 1979, respondent was ordered to continue his psychiatric treatment under Dr. Gill or another approved physician and to insure the furnishing of reports to the Board
every 90 days as to his progress and prognosis. The evidence indicates that respondent did not continue his psychiatric treatment from at least April of 1979 through October 1979 when he was hospitalized and then, after receiving approval to be treated by Dr. Ramos, he did not pursue such treatment. This constitutes a violation of Florida Statutes, Section 458.331(1)(x).
Section 458.331(1)(r), Florida Statutes, makes it a violation for a physician to prescribe for himself a drug appearing on the schedules in Chapter 893, Florida Statutes. The evidence in this case illustrates that respondent prescribed Eskatrol and Dexamyl for himself and that the prescriptions were found in the pharmacist's Schedule II controlled substance file. The undersigned has carefully examined the controlled substances specifically listed in Schedules I through V of Section 893.03, Florida Statutes, and does not find either Eskatrol or Dexamyl specifically listed therein. While it is possible that these two drugs may constitute a compound, derivative or form of extraction from one of the listed substances, no such evidence was adduced at the hearing in this proceeding. Therefore, it cannot be concluded that respondent is in violation of Section 458.331(1)(r), Florida Statutes.
The psychiatric history and condition of respondent as related by Dr. Gill, Dr. Ramos, and Dr. Creel, all qualified and accepted as experts in the field of psychiatry, as well as the undersigned's observation of the demeanor and testimony of the respondent during the hearing, lead to the conclusion that the respondent is presently unable to practice medicine with reasonable skill and safety to patients by reason of mental illness, within the meaning of Section 458.331(1)(s), Florida Statutes (1979).
