STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATIONS, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 80-2094
) CLEMENTE C. BALA, JR., M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Formal hearing in this case was conducted pursuant to notice on August 3, 4 and 5, 1981, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented on an Administrative Complaint by the Board of Medical Examiners against Clemente C. Bala, Jr., which was later amended. The final hearing considered the allegations of the 29 counts contained in the Board's Administrative Complaint, which had been amended twice.
APPEARANCES
For Petitioner: Deborah J. Miller, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Paul B. Johnson, Esquire
Exchange National Bank Building Post Office Box 3346
Tampa, Florida 33601
Prior to the formal hearing, two prehearing conferences were conducted. These resulted in the Prehearing Conference Order dated May 13, 1981, and the Order on Motion to Suppress dated July 31, 1981.
The Respondent's Motion to Suppress was directed at certain patient records in the possession of the Board, and which the Board had indicated it would seek to introduce at hearing. In summary, the motion sought to exclude these records because they had been illegally seized subject to invalid warrants to seize patient records bearing red stars, and that said warrants had been improperly executed. Evidence revealed that there were three groups of records seized.
One group of 15 patient folders which, according to testimony, bore red stars were seized pursuant to a search warrant issued November 5, 1979. The second group consisted of unstarred patient folders seized during the initial search by the Board's investigator from a list of patients he had independently developed. The third group contained unstarred records which were seized pursuant to a search warrant issued November 6, 1979. Folders from the second and third groups were commingled and could not be separated. In summary, the folders in the second and third groups were suppressed, and it was determined that the
files bearing red stars were legally in possession of the Board and could be introduced. It was held that the Hearing Officer did not have authority to adjudicate whether the judge who issued the warrants had probable cause.
Subsequently, at the formal hearing the Hearing Officer received additional testimony that of the 15 patient folders which had been held to be admissible only three had red stars on them and were consistent with the first warrant's direction. On Respondent's motion, the remaining 12 of the 15 folders initially deemed admissible were also suppressed. Further, upon a second review of the suppressed records, the Board had discovered eight additional patient folders bearing red stars. The initial ruling suppressing these folders was reversed; however, none of the folders deemed admissible were ever moved into evidence by the Board during the hearing.
Testimony was received from various witnesses who had seen the Respondent as patients, two medical doctors who presented expert testimony on the appropriateness of certain prescriptions, and a pharmacist who presented expert testimony on the classification of controlled substances. At the conclusion of the Board's case, the Respondent moved for a finding of fact instanter on all counts and moved to dismiss all counts. The Hearing Officer held that the allegations of Counts I, II, III, IV, V, VI, VII, VIII, X, XI, XIV, XV, XVI,
XVIII, XIX, XX, XXI, XXII, XIV, XXV, XXVII and XXIX were not proven based upon Petitioner's stipulation that no evidence was presented on these counts.
Respondent's Motion to Dismiss and Motion for a Finding of Fact instanter as to the remaining counts were also denied. Based upon these rulings, the Hearing Officer stated that the counts not proven remained viable and subject to proof by evidence adduced during Respondent's presentation of his case. The Hearing Officer warned the Respondent's Counsel and Respondent that should the Respondent take the stand he would be deemed to have waived his privilege against self-incrimination and could be cross-examined on all the issues within the case. (Transcript, page 504.) Having been so advised, the Respondent elected not to take the stand, however protesting and objecting to the Hearing Officer's ruling.
In his Proposed Recommended Order, the Respondent renewed his suggestion that the Hearing Officer's ruling was erroneous. Respondent argues that the denial of the Motion to Limit Testimony was a denial of Respondent's right to effectively assert the privilege against self-incrimination and due process. Upon review, the Hearing Officer's ruling did deny the Respondent due process insofar that the counts upon which no evidence had been introduced remained viable and the Respondent remained in jeopardy of them. The record was reopened, Respondent was given the opportunity to testify, and the counts upon which no evidence was introduced were deemed dismissed.
The entry of this Recommended Order was delayed by filing of the original briefs, the second hearing and the filing of secondary briefs. The last of the proposed facts was received on February 5, 1982. These documents were considered in the writing of this order. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
ISSUE
The issue in this case is whether Dr. Bala violated Chapter 893, Florida Statutes, and failed to adhere to the professional standards for examination, treatment and prescription for patients as set forth in Counts I through XXIX of
the Administrative Complaint and thereby is in violation of Chapters 458 and 893, Florida Statutes.
PART I FINDINGS OF FACT
The Board of Medical Examiners stipulated that with regard to the following counts no evidence was introduced. Pursuant to Respondent's motion for findings on these counts, the Hearing Officer determined at hearing that the allegations contained in the following counts were not proven:
Count | I | - not | proven |
Count | II | - not | proven |
Count | III | - not | proven |
Count | IV | - not | proven |
Count | V | - not | proven |
Count | VI | - not | proven |
Count | VII | - not | proven |
Count | VIII | - not | proven |
Count | X | - not | proven |
Count | XI | - not | proven |
Count | XIV | - not | proven |
Count | XV | - not | proven |
Count | XVI | - not | proven |
Count | XVIII | - not | proven |
Count | XIX | - not | proven |
Count | XX | - not | proven |
Count | XXI | - not | proven |
Count | XXII | - not | proven |
Count | XXIV | - not | proven |
Count | XXV | - not | proven |
Count | XXVII | - not | proven |
Count | XXIX | - not | proven |
CONCLUSIONS OF LAW
The Board had the burden of proof regarding its allegations against the Respondent. As indicated in the order dated December 10, 1981, these counts were deemed dismissed by the Board's failure to introduce any evidence in support of the allegations.
PART II FINDINGS OF FACT
The following Findings of Fact are general in nature, and are related to and a part of each of the findings hereinafter made with regard to each specified count:
Clemente C. Bala, Jr., is a medical doctor licensed by the Florida Board of Medical Examiners. At all times relevant to the remaining counts in the Administrative Complaint, Dr. Bala maintained his professional offices in Spring Hill, Hernando County, Florida.
Respondent is a native of the Philippine Islands and has made application for naturalization as a United States citizen. Although he has his
"green card," he has not yet been naturalized. Respondent received his degree as Doctor of Medicine from the University of Santo Tomas in Manila, Philippine Islands in 1957. From 1958 until 1964, he held several internships in the United States but returned to the Philippines in 1956, and practiced medicine there until 1973, when he entered the United States as an immigrant. He was thereafter employed at Mercy Hospital in Portland, Maine, as house physician for
15 months and then moved to Oklahoma, where he served as a house physician in a tuberculosis sanitarium and a psychiatric hospital. He passed his Florida State Boards and came to Florida in 1977, where he set up practice in Wauchula. He practiced there for a short time; subsequently set up a practice in Bradenton, Florida, for a short time; and then in 1978, moved to Spring Hill, Florida, where he has practiced medicine continuously since that time. From the time of his graduation from medical school in Manila in 1957, until a petition was filed against him by the Board of Medical Examiners in this case, Respondent has never been the subject of any disciplinary proceedings in any state of the United States or in the Philippine Islands.
Dilaudid (hydromorphone hydrochloride) is a Class II controlled substance.
The medical community within which Respondent practiced during the period of time relevant to the remaining counts in the Administrative Complaint was Hernando County, Florida.
The medical experts who testified were physicians from Hernando County and were familiar with the standards of practice in that community.
PART III
FINDINGS OF FACT ON COUNT IX
The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count IX of the Administrative Complaint.
Leonard Torres first saw the Respondent at his professional office in September, 1979. On this first visit, Torres recorded his personal medical history, gave blood and urine samples, and had his blood pressure, pulse rate, temperature, height and weight recorded. On subsequent visits he did not give blood or urine samples and did not fill out a personal medical history.
Torres complained of an old back injury. He told Respondent he had received Dilaudid from the Veterans Administration Hospital, and that it was effective for the relief of the pain he experienced. Torres also reported to the Respondent that he was allergic to aspirin and codeine.
Torres was addicted to Dilaudid. He had used the drug for two and a half years and had needle marks or tracks on the backs of his hands at the time of his first visit to Respondent. Respondent's records do not reflect that he discovered any needle marks.
The Respondent examined Torres, reviewed his presenting complaint, and prescribed for Torres five Dilaudid 4 mg. tablets and 25 Fiorinal tablets or capsules. Torres was told to return in five days. Torres saw the Respondent approximately four more times, and on each visit the Respondent prescribed for him five Dilaudid 4 mg. tablets. Respondent referred Torres to an orthopedic physician when he did not improve.
Expert testimony was received that the physical examination of Torres was not complete enough, based upon the history Torres gave the Respondent. Expert testimony was also received that the Respondent's prescription of Fiorinal to Torres was inappropriate because Fiorinal contains aspirin, to which Torres had stated he had an allergy. (Transcript; pages 232 through 325, and
434 through 436.)
CONCLUSIONS OF LAW ON COUNT IX
The Respondent is charged with violation of Subsections 458.331(1)(q) and (t), Florida Statutes (1979). Subsection 458.331(1)(q), supra, provides that prescribing a legend drug, including any controlled substance, other than in the course of professional practice shall be grounds for discipline. This subsection further provides it will be legally presumed that prescribing a legend drug including controlled substances inappropriately is not in the best interest of the patient and not in the course of professional practice without regard to the physician's intent. Subsection 458.331(1)(t), supra, provides that the gross or repeated malpractice or failure to practice with the level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar circumstances are grounds for disciplinary action by the Board.
Expert testimony was received that the Respondent's treatment and prescription of Fiorinal for Torres was inappropriate and not reasonably prudent under the circumstances. Further, had Respondent properly examined Torres, he would have discovered the needle marks on the backs of Torres' hands, an indication of Torres' addiction. The Respondent is found to have violated Subsection 458.331(1)(t), Florida Statutes (1979); however, there is insufficient evidence that Respondent prescribed a legend drug for Torres other than in the course of his professional practice.
FINDINGS OF FACT ON COUNT XII
The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XII of the Administrative Complaint.
Candace Sugarek, a detective, saw the Respondent at his professional office on October 26, 1979, under the assumed name of Christy Corson.
During that visit she gave a personal medical history, gave blood and urine samples, and had her blood pressure, pulse rate and temperature taken. She recorded an allergy to codeine. Sugarek complained of headaches and backaches. Although she was four months pregnant at that time, she did not advise the Respondent of this but stated her last menstrual period had been on October 1, 1979. Sugarek testified at the hearing that her pregnancy was showing at the time of that visit.
Although Sugarek was not addicted to any drug, she had what appeared to be healed needle tracks in her arm. The Respondent asked her how long she had been off drugs, and she told him one year.
Respondent prescribed five Dilaudid 4 mg. tablets and Cafergot for Sugarek.
Sugarek also complained of gaining weight and asked Respondent for a prescription of Dexamyl or Eskatrol. He advised her that he would prescribe her Dilaudid or a diet suppressant, but not both. The Respondent instructed Sugarek to return on November 13, 1979.
Sugarek returned to Respondent's office October 29, and November 2 and 13, 1979; however, Respondent did not prescribe any other medications for her.
Expert medical witnesses gave uncontroverted testimony that the prescription of Dilaudid for headaches would be inappropriate, and that the diagnostic work done by Respondent prior to prescribing Dilaudid for Sugarek was not in keeping with standards within the community in which they and the Respondent practiced. (Transcript; pages 318, 321 and 432.)
CONCLUSIONS OF LAW ON COUNT XII
The Respondent is alleged to have violated Subsections 458.331(1)(q) and (t), Florida Statutes (1979), in his treatment of Candace Sugarek, also known as Christy Corson. The provisions of Subsections 458.331(1)(q) and (t), supra, are stated above.
Expert testimony was received that the Respondent's prescription of Dilaudid and Cafergot for Sugarek was inappropriate, and that his treatment of her was not in keeping with the standards of the community. Respondent is found to have violated Subsection 458.331(1)(t), Florida Statutes (1979); however, insufficient evidence was introduced that his prescription of a legend drug for the patient was not in the course of his professional practice.
FINDINGS OF FACT ON COUNT XIII
The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XIII of the Administrative Complaint.
Using the name Harry Sellers, Detective H. R. Sullivan saw Respondent at his professional office on November 5, 1979. Sullivan filled out a personal history statement, complained of being tired, and was examined by the Respondent.
The Respondent examined Sullivan and commented that Sullivan did not shoot drugs. Respondent asked Sullivan if he had come to him for drugs. Sullivan did not answer. The Respondent checked Sullivan's chest and back and asked Sullivan what he wanted. Sullivan asked the Respondent if he could write Sullivan a prescription for Preludin, Eskatrol or Desoxyn, which Sullivan identified as being known to him as amphetamines and controlled drugs.
Respondent looked up the drugs in the "Physicians' Desk Reference" (PDR), a reference book on drugs, and read aloud to Sullivan information on those drugs.
The Respondent again asked Sullivan if he wanted Preludin to be prescribed, and Sullivan said he did. Respondent said he would prescribe Preludin for Sullivan, but that before he could do so Sullivan would have to be given blood and urine tests. Sullivan complied, and the Respondent wrote Sullivan prescriptions for 30 Preludin 50 mg. and for 60 Theragran Hematinic, a vitamin. Sullivan paid Respondent $35 in cash for the visit.
No expert testimony was offered concerning the Respondent's examination of Sullivan or his prescribing Preludin for Sullivan.
CONCLUSIONS OF LAW ON COUNT XIII
The Board charged the Respondent with violation of Subsections 458.331(1)(q) and (t), Florida Statutes (1979). No evidence was offered with regard to the standards in the medical community for prescribing Preludin for tiredness. Without this evidence, it cannot be determined whether the Respondent's treatment and prescription of Preludin for Sullivan was in the course of professional practice or practice within the level of care, skill and treatment recognized by a reasonably prudent similar physician under similar conditions and circumstances. The Board has failed to prove a violation of Subsections 458.331(1)(q) and (t), Florida Statutes (1979).
FINDINGS OF FACT ON COUNT XVII
The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XVII of the Administrative Complaint.
Richard (Rick) Cushman saw the Respondent several times at Respondent's professional office in 1978 and 1979. Petitioner's Exhibit #9 shows that Respondent wrote prescriptions for Cushman on December 12 and 22, 1978, and on January 2, 12 and 22, 1979.
On his first visit to the Respondent, Cushman complained of severe migraine headaches, causing vomiting. His blood pressure, pulse and temperature were taken, and he gave blood and urine samples. He was examined by the Respondent.
At the time Cushman saw the Respondent, Cushman was addicted to Dilaudid, which he injected into his arms which had needle marks. Respondent examined Cushman's arms and ankles. The Respondent's records do not reflect that he discovered any needle marks.
From December 16, 1978, to January 22, 1979, Cushman saw the Respondent five times, primarily for treatment of severe headaches. The Respondent reexamined Cushman on each visit, and on each occasion he prescribed
40 Dilaudid 4 mg. for Cushman. See Petitioner's Exhibit #9. Respondent did not perform a neurological examination or work-up. On Cushman's last visit, the Respondent referred him to a neurologist.
In addition to the headaches, Respondent treated Cushman with antibiotics for a cold, inflamed throat and slightly swollen tonsils.
Uncontroverted testimony was received from two medical experts regarding the treatment of Cushman by Respondent. Both experts concluded that under the circumstances the prescription of Dilaudid for headaches was inappropriate. One expert concluded that the treatment rendered Cushman did not reflect the practice of a reasonably prudent practitioner in the Respondent's community, and the other expert stated that a neurological examination should have been performed. Both experts stated that Dilaudid was an inappropriate drug to use in treating migraine headaches. The record before the Hearing Officer does not reflect any other medical reason for the prescription of Dilaudid to Cushman.
CONCLUSIONS OF LAW ON COUNT XVII
The Respondent is charged with violation of Sections 893.05 and 893.13, Florida Statutes (1977 and 1979); Subsections 458.1201(1)(k) and (m), Florida Statutes (1978 Supp.); and Subsections 458.331(1)(q) and (t), Florida Statutes (1979). The events which form the basis of the allegations occurred in December, 1978, and January, 1979. Section 458.1201, Florida Statutes (1978 Supp.), as enacted by Chapter 78-302, Laws of Florida, which was in effect in December of 1978, and January, 1979, was repealed by Chapter 79-302, Laws of Florida, effective May 30, 1979.
The United States and Florida Constitutions prohibit the retroactive application of penal statutes, or ex post facto laws. See Florida Constitution, Article I, Section 10; and United States Constitution, Article I, Section 9.
The provisions of Chapter 458, Florida Statutes (1979), may not be applied to those acts which occurred on or before May 30, 1979, upon which the Administrative Complaint is based.
Whether the provisions of Chapter 458, Florida Statutes (1978 Supp.), may be applied after May 29, 1979, depends upon whether those provisions were substantially reenacted in 1979. See Gewant v. Florida Real Estate Commission,
166 So.2d 230 (Fla. App. 1964). Article X, Section 9 of the Florida Constitution applies to Chapter 893, Florida Statutes, a criminal statute. To the extent that portions of Chapter 893, Florida Statutes, have been incorporated in Chapter 458, Florida Statutes (1978 Supp.), Article X, Section 9 of the Florida Constitution provides that the repeal or amendment of criminal statutes shall not affect prosecution or punishment for any crime previously committed.
Chapter 79-302, Laws of Florida, was a revision of Chapter 458, Florida Statutes (1978 Supp.), and other statutes to conform them to Chapter 120, Florida Statutes. Chapter 79-302, supra, repealed the provisions of Chapter 458, Florida Statutes (1978 Supp.), and simultaneously reenacted Chapter 458, Florida Statutes (1979). If the 1979 statutes contain substantially similar language to the provisions of the 1978 statutes under which the Respondent is charged, the Respondent may be prosecuted for acts committed under the 1978 statutes.
Subsection 458.1201(k), Florida Statutes (1978 Supp.), under which the Respondent is charged, made violating a statute or law of this state, whether a felony or misdemeanor, relating to the practice of medicine grounds for discipline. Through this provision, Sections 893.05 and 893.13, Florida Statutes (1977), were engrafted into Chapter 458, Florida Statutes (1978 Supp.). 1/
Section 893.05, Florida Statutes (1977 and 1979), authorizes a practitioner, to include a physician, to prescribe controlled substances only in good faith and in the course of his professional practice. Section 893.13, Florida Statutes (1977 and 1979), makes it unlawful (a criminal offense) to distribute or dispense a controlled substance in violation of the provisions of Chapter 893, Florida Statutes.
Subsection 458.331(1)(q), Florida Statutes (1979), writes into Chapter
458 directly that prescribing, dispensing, administering, mixing or otherwise preparing a legend drug, to include any controlled substances, other than in the course of the physician's professional practice shall be grounds for discipline. Although the approach is different, both the 1978 and 1979 laws make the
prescribing or dispensing of controlled substances by a physician other than in the course of his professional practice grounds for disciplinary action.
Further, the provisions of Subsection 458.331(1)(b), Florida Statutes (1979), have essentially the same effect as Subsection 458.1201(1)(k), Florida Statutes (1978 Supp.).
Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.), under which the Respondent is charged, made being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct grounds for disciplinary action. It defines unprofessional conduct by a physician as any departure from or the failure to conform to the standards of acceptable and prevailing medical practice in his area of expertise as determined by the Board. Subsection 458.331(1)(t), Florida Statutes (1979), makes gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances grounds for disciplinary action. Again, although the language is different, the same conduct is prohibited and punishable under both laws. The Board may maintain its prosecution under Subsections 458.1201(1)(k) and (m), Florida Statutes (1978 Supp.), for those acts committed prior to the repeal of these subsections.
The record reflects that from December 22, 1978, to January 22, 1979, the Respondent saw Cushman five times, approximately every ten days, and that on each occasion the Respondent prescribed 40 Dilaudid 4 mg. for the treatment of severe migraine headaches. At the time Cushman saw Respondent, Cushman had been addicted to Dilaudid for some time. The medical experts testified that Dilaudid was inappropriate for the treatment of headaches. Had Respondent examined Cushman's arms, he would have discovered the needle marks, an indication of Cushman's addiction. The treatment rendered to Cushman by Respondent did not reflect practice of a reasonably prudent physician in Respondent's community faced with similar circumstances.
Based upon this evidence, the Hearing Officer finds that Respondent violated Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.), which was reenacted in Subsection 458.331(1)(t), Florida Statutes (1979). The evidence is insufficient to show a violation of Subsection 458.1201(1)(k), Florida Statutes (1978 Supp.), by proving that the Respondent's prescriptions for Cushman were other than in the course of his professional practice.
FINDINGS OF FACT ON COUNT XXIII
The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XXIII of the Administrative Complaint.
Alton Owens saw the Respondent in 1979, at his professional office approximately seven times.
The Respondent prescribed five Dilaudid 4 mg. for Owens on August 24 and 31, 1979; on September 6, 12, 18 and 24, 1979; and on October 3, 1979, according to Petitioner's Exhibit #11.
On Owens' first visit, he complained of pain with an old injury to his knee. Owens' blood pressure and pulse were taken, and he gave blood and urine samples. Respondent examined Owens' knee. Owens acted as though it hurt a great deal. The Respondent prescribed five Dilaudid 4 mg. for Owens and also gave him a separate prescription for Fiorinal.
At the time Owens first saw the Respondent, Owens had been addicted to Dilaudid for ten years and took ten injections of the drug into his arms on a daily basis.
On Owens' second or third visit, it appears that the Respondent referred him to an orthopedic specialist; however, Owens did not go. Owens subsequently complained to Respondent of severe kidney pain, and his urine test revealed traces of blood. This could be indicative of a kidney stone. Respondent prescribed Dilaudid to Owens for this pain associated with the suspected kidney stone.
Both medical experts testified that in their opinions the Respondent did not appropriately treat or prescribe for Owens. However, the hypotheticals upon which they based their opinions did not state that the patient's injury was an old injury. The course of treatment which they outlined was not substantially different from that given Owens. Both experts said that after careful examination of the knee they would give powerful pain killers and would refer the patient to an orthopedic specialist after ten to 14 days.
One of the medical experts testified that he would hospitalize a patient with a possible kidney stone but would give a powerful pain killer pending outcome of tests. The other expert did not testify on this point.
Taking the total testimony in its most favorable light, the examination and actions of the Respondent in treating and prescribing for Owens did not depart substantially from that outlined by the experts.
CONCLUSIONS OF LAW ON COUNT XXIII
The Respondent is alleged to have violated Subsections 458.331(1)(q) and (t), Florida Statutes (1979), in treatment and prescribing for Alton Owens. Having considered the course of treatment by the Respondent of the complaints attributed to Owens compared with that outlined by the two medical experts, the Hearing Officer does not find a substantial divergence given the circumstances. Respondent is not found to have violated the referenced statutes.
FINDINGS OF FACT ON COUNT XXVI
The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XXVI of the Administrative Complaint.
Jane Lucas, also known as Jane Lucas Marion, saw the Respondent at his professional office on January 22 and February 2, 1979. She again saw the Respondent between March 22 and October 2, 1979, using the name Jane Marion.
On her first visit to the Respondent's office, Lucas filled out a personal medical history and gave blood and urine samples. She complained of abdominal cramps and migraine headaches.
At the time Lucas saw the Respondent, she was addicted to drugs and had injected Dilaudid for several years. The Respondent's records do not reflect that Lucas had needle marks in her arms.
The Respondent examined Lucas on her first visit, and she told him she preferred Dilaudid for relief of the pain she was experiencing. Respondent
prescribed 40 Dilaudid 4 mg. for Lucas on January 22, 1979, and ten Dilaudid 4
mg. on February 2, 1979.
During the second group of visits to Respondent's office, Lucas used her married name, Marion. Again, she filled out a personal medical history and had similar tests performed. Her complaints remained the same. Her testimony is conflicting with regard to the number of times she saw the Respondent; however, Petitioner's Exhibit #12 shows that the Respondent prescribed 20 Dilaudid 4 mg. for Lucas on March 22, 1979, and five Dilaudid 4 mg. for her on April 14 and May 8, 1979.
Two medical experts from the same community in which the Respondent practiced offered their opinions that the Respondent's examination of Lucas was inappropriate for either the abdominal cramps or the migraine headaches.
The testimony of these experts indicated that abdominal cramping in a woman would indicate a need for a pelvic examination, and severe headaches would indicate a need for basic neurological assessment. The evidence does not reflect that the Respondent performed either a pelvic or a neurological examination on Lucas. Dilaudid would be inappropriate in treating either of these presenting complaints.
CONCLUSIONS OF LAW ON COUNT XXVI
The Board charged the Respondent with violation of Subsections 458.331(1)(h), (q) and (t), Florida Statutes (1979). These provisions became effective on May 30, 1979, approximately halfway through the period during which the Respondent saw Jane Lucas Marion. The 1979 statutes may not be applied retroactively to the Respondent's acts prior to May 30, 1979. Contrary to the allegations of the other counts in the Administrative Complaint, the Board has not alleged violation of the provisions of Chapter 458, Florida statutes, in effect prior to May 30, 1979. Presumably, the Board intended to charge the Respondent only under the 1979 law. The data upon which the medical experts based their response to the Board's questions concerning the appropriateness of the treatment rendered Lucas by the Respondent and the prescriptions he gave her related to visits prior to the effective date of the provisions under which the Respondent was charged. There is no proof of violation of the 1979 statutes, and there is no allegation of violation of the 1978 statutes. The Board has not proved its allegations.
FINDINGS OF FACT ON COUNT XXVIII
The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XXVIII of the Administrative Complaint.
Carol Mather first saw the Respondent at his professional office in January of 1979. On her first visit, Mather filled out a personal medical history in which she recorded she was allergic to codeine, and she had her blood pressure taken. She complained of frequent headaches.
The Respondent examined Mather and determined she was four to five months pregnant. Mather knew this. Respondent also noted the needle tracks in Mather's arms from injecting drugs. The Respondent advised Mather she should not use drugs if she was pregnant. Mather told the Respondent she was an addict and was going to take drugs no matter where she got them.
Respondent wrote two prescriptions for Mather on her first visit, each for 40 Dilaudid 4 mg., but only after she had signed a release for any harm to the baby.
Mather had no recollection of her second visit to the Respondent's office, but she went one time in November, 1979, with Detective Sullivan. On this last occasion, Respondent did not prescribe any drugs for her.
Expert medical testimony based upon the community standards was received that the prescription of Dilaudid for a patient complaining of migraine headaches, particularly a patient four to five months pregnant, was inappropriate.
CONCLUSIONS OF LAW ON COUNT XXVIII
The Board has charged the Respondent with violation of Sections 893.05 and 893.13, Florida Statutes (1979); Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.); and Subsections 458.331(1)(h), (q) and (t), Florida Statutes (1979). As stated above, Subsections 458.331(1)(h), (q) and (t), supra, were not effective until May 30, 1979. This was after the date Respondent prescribed Dilaudid for Carol Mather. These subsections may not be applied retroactively, and the Respondent may not be charged under them.
Sections 893.05 and 893.13, Florida Statutes, as stated previously in this order, remained essentially unchanged in 1977 and 1979. However, Chapter 893, Florida Statutes (1979), does not grant authority to the Board to enforce its provisions. Enforcement of Chapter 893, supra, by the Board must be authorized under the provisions of Chapter 458, Florida Statutes (1978 Supp.). Subsection 458.1201(1)(k), Florida Statutes (1978 Supp.), authorizes the Board to discipline its licensees for violation of the statutes such as Section 893.05, supra. However, the Board has not charged the Respondent under Subsection 458.1201(1)(k) Florida Statutes (1978 Supp.), which was the only statute making a violation of Chapter 893, supra, grounds for discipline at the time these acts occurred.
The expert testimony was uncontroverted that prescription of Dilaudid to a patient for migraine headaches, particularly a patient four to five months pregnant, would be inappropriate. The fact that Mather signed a waiver of liability and admitted addiction did not alter this opinion. Treatment of a pregnant woman with narcotic drugs creates a risk to the fetus which, according to the expert testimony, is a fact widely known within the medical profession for many years. The record is clear that Respondent knew Mather was addicted to drugs and was pregnant and gave her two prescriptions, each of which was for 40 Dilaudid 4 mg.
The testimony and evidence do show a violation of Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.). Applying the rule applicable to general statutes, if this provision was reenacted substantially in 1979, the prosecution under the repealed provision may be maintained. The conduct prohibited or punishable under Subsection 458.1201(1)(m), supra, is prohibited or punishable under Subsections 458.331(1)(q) and (t), Florida Statutes (1979). The Respondent is guilty of violating Subsection 458.1201(1)(m) , Florida Statutes (1978 Supp.).
Having found the Respondent guilty as alleged in Counts IX, XII, XVII and XXVIII of the Administrative Complaint, the Hearing Officer recommends that the Board of Medical Examiners revoke the license of Dr. Clemente C. Bala, Jr., to practice medicine within the State of Florida.
DONE and ORDERED this 31st day of March, 1982, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1982.
ENDNOTE
1/ There were no substantial amendments to Sections 893.05 and 893.13, Florida Statutes, from 1977 to 1979.
COPIES FURNISHED:
Deborah J. Miller, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Paul B. Johnson, Esquire Exchange National Bank Building Post Office Box 3346
Tampa, Florida 33601
Samuel Shorstein, Secretary Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 80-2094
) CLEMENTE C. BALA, JR., M.D., )
)
Respondent. )
)
ERRATUM
On Page 2 of the Recommended Order in this proceeding issued March 31, 1982, the last sentence is corrected to read as follows:
... The initial ruling suppressing these folders was reversed; however, the folders deemed admissible were not moved into evidence by the Board until its cross-examination of the Respondent.
DONE and ORDERED this 31st day of March, 1982, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1982.
COPIES FURNISHED:
Deborah J. Miller, Esquire Dorothey Fairchild, Executive Department of Professional Secretary
Regulation Board of Medical Examiners
130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301
Paul B. Johnson, Esquire Samuel Shorstein, Secretary Exchange National Bank Department of Professional Building Regulation
Post Office Box 3346 130 North Monroe Street Tampa, Florida 33601 Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Aug. 29, 1990 | Final Order filed. |
| Mar. 31, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 12, 1984 | Agency Final Order | |
| Mar. 31, 1982 | Recommended Order | Respondent repeatedly failed to practice medicine with the level of skill in the community and prescribed legend drugs inappropriately. Revoke license. |
