STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2087

)

ROBERT B. CUSHING, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, conducted a formal hearing in this matter on January

12 and 13, 1981, in Miami, Florida. The following appearances were entered: Deborah J. Miller, Tallahassee, Florida, for the Petitioner, Department of Professional Regulation; and Richard G. Cushing, New York, New York, for the Respondent, Robert B. Cushing.

On or about October 2, 1980, an Administrative Complaint was issued by the Department of Professional Regulation against its licensee, the Respondent, Robert B. Cushing, D.D.S. The complaint was issued after efforts to resolve the matter at the informal conference were unsuccessful. The Respondent requested a formal administrative hearing. The matter was forwarded to the office of the Division of Administrative Hearings on November 7, 1980, with a request that a Hearing Officer be assigned and a hearing scheduled. The final hearing was scheduled by notice dated December 5, 1980.

At the final hearing, the Department called the following witnesses: Vernon

1. Bell, an investigator supervisor employed by the Department; Walter Lewis Farmer, a registered pharmacist; Wade Laremore, a patient of the Respondent; Wilbur M. Davis, Jr., an oral and maxillofacial surgeon; Allen Richard Treadwell, an oral and maxillofacial surgeon; and Linda McKenzie, a patient of the Respondent. The Respondent testified as a witness on his own behalf, and called the following additional witnesses: Dr. Aquiles Mas, a licensed dentist; Dr. Lloyd Wruble, an oral and maxillofacial surgeon; Dr. John Sootin, a licensed dentist; Dr. David Cornbluth, an orthodontist; Dr. Paul Danziger, a licensed dentist; Dr. Burt Hoffner, a licensed dentist; Dr. Gerald Laboda, an oral and maxillofacial surgeon; Dr. Paul Richman, an oral and maxillofacial surgeon; Dr. Fred Novak, an oral and maxillofacial surgeon; and Dr. Bertram Goodhart, an oral and maxillofacial surgeon. Petitioner's Exhibits 1 through 5 were offered into evidence, and Petitioner's Exhibits 3 through 5 were received. Respondent moved to suppress Petitioner's Exhibits 1 and 2, and ruling on that motion was reserved pending submission of legal memoranda by the parties. In accordance with paragraph 2 of the Conclusions of Law set out hereafter, the Motion to Suppress is denied, and Petitioner's Exhibits 1 and 2 are received.

   Respondent's Exhibits 1 through 3 were offered into evidence and were received. Respondent's Exhibit 4 was offered into evidence and rejected. The parties have submitted post-hearing legal memoranda, including proposed findings of fact and

   conclusions of law. To the extent that the proposed findings and conclusions have not been adopted in this Recommended Order, they have been specifically rejected as being irrelevant to the issues, or as not being supported by the evidence.

   
   

   The issues in this proceeding are whether the Petitioner has committed violations of the Florida Dentistry Practice Act, Chapter 466, Florida Statutes (1979). The Respondent is charged specifically with prescribing controlled substances outside of the scope of his practice of dentistry to three persons. There were conflicts in the testimony given by several witnesses, most particularly between the testimony given by the Respondent and the witness Bell. In resolving these conflicts, regard has been given to the demeanor of the witnesses as they appeared at the final hearing, and the extent to which the witnesses' testimony is corroborated by other evidence.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is a licensed dentist authorized to practice dentistry under the laws of the State of Florida. At all times pertinent to this proceeding, the Respondent was engaged in the practice of dentistry, specifically oral and maxillofacial surgery, in his office located in Hialeah, Florida. [This finding is determined from stipulation of the parties.]

      
      

   2. On or about October 2, 1979, Vernon K. Bell, an investigative supervisor employed by the Department of Professional Regulation, was conducting a routine pharmacy audit of the prescriptions of two drugstores in Miami, Florida. The audit was not based upon any complaint regarding the Respondent or any of the Respondent's patients, but was rather conducted in the routine course of the Department's business. During the course of such audits, Mr. Bess pays particular attention to prescriptions for "Schedule II" substances because the substances are regarded as having a high abuse potential. He located approximately thirty-seven prescriptions for "Quaalude," a Schedule II substance, which were issued by the Respondent to three persons: Wade Laremore, Patti Laremore, and Linda McKenzie. Bell considered the number of Quaalude prescriptions to be unusual for issuance by a dentist, and he confronted the Respondent with them on that same day. [This finding is determined from the testimony of the witness Bell.]

      
      

   3. The testimony of the witness Bell and the Respondent regarding their initial confrontation differs in material respects. Bell testified that the Respondent admitted issuing the prescriptions. Bell testified that the Respondent admitted issuing the prescriptions. Bell testified that the Respondent admitted issuing the prescriptions. Bell related that the Respondent told him he issued the prescriptions to the Laremores to aid them in sleeping, and not for dental work. He testified that the Respondent showed him the Laremores' records and that the records reflected no dental work since 1973. As to the prescriptions for Linda McKenzie, Bell testified that the Respondent admitted issuing the prescriptions, and that they were to assist her in overcoming nervousness and lack of sleep resulting from marital problems. Bell testified that the Respondent said he had no medical records for Linda McKenzie and that he had no treated her in his capacity as a dentist.

      
      

   4. The Respondent agreed that he admitted issuing the prescriptions. He testified, however, that he did not tell Bell that the prescriptions for the Laremores and McKenzie were issued for problems other than dental work. He testified that he did not show Bell the Laremores' complete records, but only

      their charts. He testified that he did not discuss his treatment of any of the patients with Bell.

      
      

   5. In resolving this conflict, the testimony of the Respondent has been found more credible as to his statements regarding the Laremores, but the testimony of the witness Bell has been found more credible regarding Linda McKenzie. As to the Laremores, Bell did not testify how long he was able to examine the records. The Respondent indicated that he waved the charts at Bell, and this testimony is consistent with what both witnesses agreed was the Respondent's angry reaction to the confrontation. Bell's notes regarding what the Respondent told him are considerably less definite than was his testimony at the hearing. Given the number of investigations that Bell conducts, it is likely that his memory regarding specific details of any particular confrontation would be unclear. The very sketchy notes that he kept would do little to refresh his memory, especially when he is trying to recall precise words that were uttered. As to McKenzie, however, Bell's testimony is directly corroborated by her testimony. This resolution of the conflicting testimony is reflected in the findings of fact which follow. [This finding is determined from the testimony of the Respondent, and the witnesses Bell and McKenzie, and from Petitioner's Exhibits 3 and 4, and Respondent's Exhibit 2.]

      
      

   6. Quaalude is classified as a Schedule II controlled substance. Such substances possess a significant risk of abuse and physical or psychological dependency. Quaalude works as a central nervous system depressant, and is classified as a hypnotic. The prescribing of Quaalude is not beyond the scope of the practice of oral and maxillofacial surgeons such as the Respondent. Oral and maxillofacial surgeons are fully trained in uses and potential for abuse of such substances. Numerous oral and maxillofacial surgeons testified at the hearing. Their opinions respecting the prescribing of Quaalude varied. Some of them do not prescribe the drug at all because of its reputation as a "street drug," and because of its potential for abuse. Others testified that Quaalude is among the most effective of the hypnotic drugs, that it has no more potential for abuse than other drugs which serve the same or similar beneficent purposes, and that its side effects are less profound then with similar drugs. Witnesses who testified to this effect expressed dismay at the bad reputation the drug has received due to its nontherapeutic abuse.

      
      

   7. Synthesizing the testimony of the various oral and maxillofacial surgeons, it becomes apparent that Quaalude is properly utilized in the practice for at least two purposes: First, it is used as a sedative or anesthetic prior to surgery. A onetime dosage of approximately three hundred milligrams would be appropriate in this context. Several of the oral and maxillofacial surgeons who testified have used Quaalude in this manner in the past. Several have discontinued its use due to the drug's bad reputation. One of the surgeons called as a witness by the Department of Professional Regulation continues to use the drug in this manner. The Respondent does not, however, because he feels, as do several of his peers, that patients might choose a surgeon who utilizes Quaalude in that manner because of the Quaalude rather than the competency of the surgeon. The second appropriate usage is for relieving anxiety associated with pain subsequent to surgery or pain and anxiety that result from very dramatic conditions. Temporomandibular joint problems are an example. Pain and anxiety of long duration can result from such conditions, and in some circumstances long-term usage of a hypnotic drug such as Quaalude can serve as a more conservative, less drastic approach to treatment than surgery. If such long-term use of the drug were prescribed, close observation of the patient would be important to assure that psychological and/or physical addiction was not occurring. Prescriptions in such instances should be given

      for a relatively short period of time to assure that proper supervision would occur. [This finding is determined from the testimony of the witnesses Farmer, Davis, Treadwell, Wruble, Laboda, Richman, Goodhart, and the Respondent; and from Petitioner's Exhibit 5 and Respondent's Exhibits 1 and 3.]

      
      

   8. Between August 9, 1978, and September 22, 1979, the Respondent issued forty-eight separate Quaalude prescriptions for Wade Laremore. The prescriptions were for three-hundred milligram tablets with the number of tablets prescribed each time varying from five to fifteen. Between October 2, 1978, and August 31, 1979, the Respondent issued twenty-three separate Quaalude prescriptions for Patti Laremore. These prescriptions were also for three- hundred milligram tablets.

      
      

   9. No testimony was presented to establish the purpose for these prescriptions. The testimony of the witness Bell to the effect that the Respondent told him the prescriptions were not for a proper dental purpose has not been credited. In order to conclude that the prescriptions were inappropriate, therefore, it would be necessary to find that prescriptions in these amounts would be in appropriate under any circumstances. No such conclusion can be made without knowing the medical history of the patient. Prescriptions in these quantities would be an appropriate manner for treating pain and anxiety resulting from severe temporomandibular joint problems, in order to obviate the need for drastic and potentially damaging surgery. The sequence of prescriptions issued for the Laremores is consistent with this sort of treatment. [This finding is determined from the testimony of the witnesses and the exhibits listed at the conclusion of paragraphs 4 of these Findings of Fact, and from Petitioner's Exhibits 1 and 2.]

      
      

   10. The Respondent prescribed Quaalude to Linda McKenzie on two occasions. The first of these was for five three-hundred milligram tablets issued on April 27, 1979; and the second was for four three-hundred milligram tablets issued on May 7, 1979. The purpose of these prescriptions was to assist Linda McKenzie in overcoming nervousness and sleeplessness connected with the breakup of her marriage, and not for any proper dental or oral and maxillofacial surgical purpose. The Respondent is not qualified by reason of his training as an oral and maxillofacial surgeon to treat anxiety resulting from marital discord.

       [This finding is determined from the testimony of the witnesses Bell and McKenzie, and from Petitioner's Exhibits 1, 2, 3, and 4.]

       
       

   11. The Respondent is an able oral and maxillofacial surgeon. He enjoys a high regard among his peers. Numerous general practice dentists refer cases to him on a continuing basis with confidence. [This finding is determined from the testimony of the witnesses Mas, Wruble, Sootin, Wolf, Cornbluth, Danziger, and Hoffner.]

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

       
       

   13. The Respondent has moved to suppress Petitioner's Exhibits 1 and 2 as evidence. These exhibits are the prescriptions obtained by the Department's investigator from various drugstores, and a summary sheet prepared from the prescriptions. The Respondent contends that the prescriptions were illegally seized as the result of a warrantless search conducted without probable cause. The Motion to Suppress is denied, and the exhibits will be received. The

       prescriptions were obtained as the result of a routine audit conducted by the Department's duly authorized agent. Such inspections are authorized under the provisions of Section 465.017, Florida Statutes. Unless the statute is unconstitutional, evidence obtained in this matter could not be held to be illegally obtained. Administrative Hearing Officers and administrative agencies lack the authority to declare statutes unconstitutional. Gulf Pines Memorial Park v. Oaklawn Memorial, 361 So.2d 695 (Fla. 1978).

       
       

   14. Even if the statute were unconstitutional, however, and the searches of the drugstores were found to be illegal, the Motion to Suppress would be unmeritorious. The Respondent was not on the premises of the drugstores when the audits were conducted. The evidence does not establish that he had any proprietary or possessory interest in any of the premises. It has not been shown that he was an owner, tenant, or lawful occupant of any of the drugstores. He therefore lacks standing to challenge the searches of the drugstores. Brown

       v. United States, 411 U.S. 223 (1973); Combs v. United States, 408 U.S. 224 (1972); Russell v. State, 270 So.2d 462 (3 DCA Fla. 1972).

       
       

   15. Motions of the Department of Professional Regulation to compel the testimony of Wade Laremore and Linda McKenzie with respect to their medical histories were denied at the hearing. These witnesses were called by the Department, and were not parties to the proceeding. A person's medical history is a sensitive matter as recognized by statutes which require that patients give their consent prior to the release of medical records. Section 455.241, Florida Statutes. Compelling patients to testify with respect to their medical history would violate the spirit of Section 455.241, and the patients' rights to privacy.

       
       

   16. The evidence does not establish that the Respondent committed any violations of the Dentistry Practice Act, Chapter 466, Florida Statutes, with respect to the prescriptions that he issued for the Laremores. While the prescriptions were for an unusually long period of time, the evidence establishes that such prescriptions could be appropriate treatment within the area of the Respondent's practice.

       
       

   17. The evidence establishes that the Respondent violated provisions of the Dentistry Practice Act with respect to prescriptions for Quaalude that he issued for Linda McKenzie. Section 466.028(1), Florida Statutes, provides in pertinent part:

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

* * *

(q) Prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of a dentist's professional practice. For the purposes of this paragraph it shall be legally presumed that prescribing, procuring, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, in excess of appropriate quantities is not in the best interest of the patient and is not in the

course of the dentist's professional practice, without regard to his intent.

The Quaalude prescriptions issued for Linda McKenzie were not issued in the course of the Respondent's professional practice as a dentist. The Respondent is therefore appropriately subject to imposition of the penalties set out at Section 466.028(2), Florida Statutes, which include revocation or suspension of his license to practice as a dentist, imposition of a fine not to exceed one thousand dollars, issuance of a reprimand, placement of the Respondent on probation, or restricting his authorized scope of practice. In determining an appropriate recommendation for a penalty in this matter, the seriousness of the offense has been considered. Also considered have been the facts that no practice of prescribing excessive quantities of controlled substances has been established, and that the Respondent has an outstanding reputation among his peers as an oral and maxillofacial surgeon. While severe sanctions are appropriate, it would be unduly harsh to permanently eliminate the Respondent from the practice of his profession, and to deprive the community of the benefit of his abilities.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

1. That the Department of Professional Regulation enter a final order finding the Respondent guilty of the allegations set out in Count III of the Administrative Complaint, suspending the Respondent's license to practice as a dentist in the State of Florida for a period of thirty days, and imposing an administrative fine against the Respondent in the amount of one thousand dollars.

   
   

2. That the Administrative Complaint be dismissed in all other respects.

DONE AND ENTERED this 11th day of February 1981 in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February 1981.

COPIES FURNISHED:

Deborah J. Miller, Esquire Assistant General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Richard G. Cushing, Esquire One Rockefeller Plaza

New York, New York 10020

Ms. Nancy Kelley Wittenberg, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 80-002087

Orders for Case No: 80-002087