STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1200

) BENJAMIN A. BELMONTE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on July 30 and 31, 1981, in Rockledge, Florida.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II, Esquire

Deputy General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Thomas E. Thoburn, Esquire

319 River Edge Boulevard Cocoa, Florida 32922

By an Administrative Complaint filed April 10, 1981, the Respondent, Benjamin Belmonte, M.D., has been charged with violations of Chapter 458, Florida Statutes. Specifically, it is charged that the Respondent has prescribed or dispensed controlled substances other than in the course of his professional practice in violation of Section 458.331(1)(q), Florida Statutes, has made deceptive, untrue or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine in violation of Section 458.331(1)(1), Florida Statutes, and has exercised undue influence within the patient/physician relationship designed to induce a patient to engage in sexual activity in violation of Section 458.331(1)(k) Florida Statutes.

Respondent allegedly has failed to prescribe or dispense controlled substances in good faith in the course of his professional practice in violation of Section 458.331(1)(h), and Section 893.05(1), Florida Statutes. Dr. Belmonte is also charged with being guilty of gross or repeated malpractice for failing to practice medicine with the level of care, skill and treatment recognized by reasonably prudent physicians similarly situated as being acceptable under similar conditions and circumstances. Section 458.331(1)(t), Florida Statutes. Additionally, it is charged that Dr. Belmonte is unable to practice medicine with reasonable skill and safety to his patients by reason of illness, use of alcohol or because of his mental or physical condition.

The Petitioner presented the testimony of, nine witnesses including two physicians who qualified as expert witnesses, as well as Exhibits A through K, which were received into evidence. The Respondent presented the testimony of eight witnesses and Exhibits 1 and 2 were received into evidence on behalf of the Respondent. The parties agreed that the record remain open after the hearing for receipt of Dr. Parson's deposition and requested additional time for submission of briefs and proposed recommended orders. The Respondent's motions to strike testimony regarding an intercepted telephone conversation, testimony of witnesses Stalnaker and Lomax, are disposed of by the Conclusions of Law herein. The issue to be determined is whether the charges asserted in the Administrative Complaint are true and, if so, whether the Respondent's license as a physician should be revoked, suspended or the Respondent otherwise subjected to discipline by the Petitioner.

FINDINGS OF FACT

1. At all times pertinent to this proceeding the Respondent, Dr. Benjamin Belmonte, M.D., has held a current and valid medical license issued by the Board of Medical Examiners, Department of Professional Regulation. Dr. Belmonte is practicing as a general practitioner in Rockledge, Florida. The Respondent has attained a number of significant honors during the course of his professional career. He was valedictorian of his class in medical school. Subsequently he served as a medical professor from 1956 to 1970 at St. Thomas University in Manila, the Philippines. He worked in the Philippines as a cardiovascular surgeon. He has practiced for approximately ten years in Rockledge, Florida.

   
   

2. On June 25, 1980, Linda Lomax made a medical appointment at the Respondent's office using the alias "Sandy Hobson". She testified that upon arriving at the office no medical history was taken although she did state she filled out a form given her by the Respondent's nurse. The Respondent's own testimony shows that she filled out an extensive medical history form (which included a false description of her drug use habits.) This form only indicated the name Sandy Hobson and Linda Lomax never gave any indication to the Respondent at this time that her name was other than Sandy Hobson. Her complaint that day was a severe migraine headache with nausea and, indeed, she vomited in the Respondent's office at the time. The Respondent's testimony established that she gave the appearance of being very ill with a verbal history of severe headaches. The Respondent on that occasion did a complete physical examination, since it was that patient's first visit. The Respondent's testimony, as well as that of his medical expert witnesses, establishes that it is within accepted medical practice to do such an extensive physical only on the first visit and not on subsequent visits.

   
   

3. The Doctor suggested prescribing certain non-addictive drugs to this patient at that time and she refused, stating that she was allergic to talwin and others and requested demerol. He told her that he had no demerol in his office and then issued her a prescription for demerol.

   
   

4. "Sandy Hobson" then left the Respondent's office and proceeded to a pharmacy across the street. The pharmacist, David Ray, testified for the Petitioner and established that he recognized Sandy Hobson as Linda Lomax, known to him to be a drug abuser. The pharmacist refused to fill her prescription and telephoned Dr. Belmonte and asked him to come to the pharmacy to identify the person to whom he had issued the prescription. David Ray asked the Doctor if that was the person he prescribed the demerol for and he affirmed that it was. The pharmacist in the meantime had called the Rockledge Police Department and two officers, Lt. Carter and Sgt. Ellis had come to the pharmacy. Upon

   informing the pharmacist that "Sandy Hobson" was the person to whom he had prescribed the demerol the Doctor left the pharmacy. The officers then escorted Ms. Lomax to the police station where she gave certain information to the police and thereupon proceeded to work with the law enforcement agency as an informer providing information concerning certain robberies of pharmacies and other criminal activities in the Rockledge-Cocoa area. It was at this meeting with the pharmacist at the drugstore to identify Sandy Hobson that the Doctor first learned that her name might not be Sandy Hobson. Either at that time or at their next visit on July 3 or 4, 1980, she informed the Doctor that she had given him a false name because she was "hiding from her husband." The Doctor believed this reason for being given the false name and, as the testimony of David Ray establishes, was not actually informed that she was a drug abuser at the time he was asked to affirm his prescription at the pharmacy on June 25, 1980.

   
   

5. Linda Lomax next contacted the Respondent on either July 3 or July 4, 1980 (the record is unclear). This meeting occurred when Linda Lomax, uninvited, visited the Doctor at his table at the Rockledge Country Club. Linda Lomax related to the Doctor at that time that she was in severe pain from migraine headaches and feeling very ill. His testimony reveals that her appearance at that time was that she was very ill. She requested another prescription. After questioning her regarding why she needed another prescription so soon the Doctor ultimately gave into her entreaties and agreed to prescribe again for her provided she would come to his office nearby. They then proceeded to the Doctor's office. The record is unclear whether they stopped enroute at a private residence on Barton Boulevard belonging to the Doctor's sister. The Doctor makes an almost daily habit of stopping at that residence to ascertain that it is secure because his sister and her husband are away during the summer. It is his habit to enter the house, turn on the air conditioner briefly and ascertain that no unauthorized entry has occurred and that the house is otherwise secure. The Doctor testified that he could not remember definitely whether he stopped on this occasion nor whether Linda Lomax also stopped at the house on the way to his office.

   
   

6. Linda Lomax testified that they went into the house together, had an alcoholic drink and that he propositioned her for sexual favors. She then testified that he called two pharmacists in the local area, one in Melbourne and one in Rockledge who, according to her testimony, informed him that they would not fill a prescription for her because she was a drug addict. It was established by the Doctor's testimony, which the undersigned finds more credible, that the telephone was disconnected all that summer because the house was unoccupied and therefore the undersigned finds it was impossible that the Doctor called any pharmacies from the house on that occasion and therefore could not have learned at that time that Linda Lomax was a suspected drug addict.

   
   

7. The testimony of Elsina Jordan, a pharmacist at the Eckerd drugstore on Dixon Boulevard in Rockledge is unpersuasive because although she testified that she received a call from a person who sounded like Dr. Belmonte, she was unable to remember the definite date that she received the call and that it could have been in the latter part of July, 1980. She could not sufficiently relate it to the same occasion to enable that testimony to serve as corroborative of that of Linda Lomax regarding whether the Doctor had been put on notice by a pharmacist of Lomax's drug problem. It should be pointed out that the testimony of Elsina Jordan also corroborated the showing by the other pharmacists testifying that the Doctor was of a conservative bent in his tendency to prescribe controlled substances. In any event Dr. Belmonte ultimately issued Ms. Lomax a prescription for demerol dated July 4, 1980.

8. Linda Lomax next approached the Respondent on July 6, 1980, when she confronted him at the Rockledge Country Club where he was socializing with friends. This visit was not at his invitation and he felt surprised and a little discomfited at her appearance during non-office hours. She requested an additional demerol prescription and he protested, reminding her firmly that he had just prescribed thirty tablets on July 4. She remonstrated persistently that she was suffering from severe migraine headache pain and felt very ill. She additionally protested that she was leaving town the next day for approximately ten days' vacation and wanted to have the medication to meet any need that might arise while she was out of town. The Doctor ultimately and reluctantly agreed to give her a prescription for fifteen tablets since she still had fifteen left of the thirty tablet prescription made on July 4. These

   tablets were prescribed to be taken every four hours for a total of six per day, therefore the additional prescription, if taken at that rate, would have only lasted her approximately two and a half days of the ten days for which she requested them. The Doctor thus, at this stage of the doctor-patient relationship, was making an effort to prescribe conservatively and the number of tablets prescribed on this occasion corroborates the Doctor's testimony that at this meeting he was trying to inform her that she might be taking an excessive amount of this medication.

   
   

9. The Doctor acknowledges that on this occasion he and Linda Lomax journeyed in separate cars from the Country Club to his office to execute the prescription. Her testimony asserts that they stopped by the house of his sister on Barton Boulevard at which time the Doctor drank an alcoholic beverage and propositioned her for sex. The Doctor vehemently denies that this occurred, although he acknowledges that they may have stopped at the house enroute in order to allow him to inspect the house according to his almost daily routine when journeying between his office and the Country Club.

   
   

10. Dr. Belmonte next saw Linda Lomax on July 12, 1980, when, at her request, he admitted her into Wuesthoff Memorial Hospital for demerol detoxification. Dr. Belmonte obtained her complete medical records at that time and first noted her history of drug abuse for the previous ten years, both from her verbal information, as well as her medical records. The Doctor then requested a demerol toxicity report and referred her to the treatment of Drs. Torres and Turla, both associated with the Rock ledge Community Mental Health Center and psychiatrists on the staff of the hospital. She was actually treated by Dr. Torres who followed Dr. Turla's standard orders on file at the hospital for the treatment of drug addicts. Valium, darvon and darvocet were prescribed for her withdrawal symptoms, as well as vitamins. The toxicity report requested by Dr. Belmonte revealed that the patient had had no demerol in her blood system for the previous seven to ten days. Dr. Turla ultimately released Linda Lomax from the hospital on July 17, 1980, to be followed as an out-patient at the Mental Health Center.

    
    

11. On July 24, 1980, Linda Lomax went to the Rockledge Police Station and in the presence of Lt. William Carter placed a telephone call to the Rockledge Country Club asking for Dr. Belmonte. When he answered the phone he allegedly asked her to meet him at the "house" on Barton Boulevard. The record does not reflect clearly that Lt. Carter had initiated a criminal investigation of Dr. Belmonte at the time he listened to their conversation on an extension phone.

    1/ Linda Lomax had gone to the offices of the police department to talk about criminal investigations for which she had provided information. She then told Lt. Carter to listen on an extension phone while she called "someone." In essence the conversation only concerned Dr. Belmonte telling her to meet him at

    the house. There is no evidence what the conversational context was, nor why he requested her to meet him at the house. In any event, the record does not reflect that Lt. Carter had previous knowledge that Linda Lomax was going to call the Respondent nor that he had formed the intent to investigate Dr.

    Belmonte prior to hearing this phone conversation. In any event had the testimony regarding the phone conversation been admitted as evidence it could only reveal that Dr. Belmonte asked her to meet him at the house on July 24 and nothing more.

    
    

12. In any event Linda Lomax did go to the private residence owned by Dr. Belmonte's sister and brother-in-law, secretly followed by Lt. Carter and another police officer, and met Dr. Belmonte for a few minutes. The photographs in evidence revealed them standing together outside the residence beside Dr. Belmonte's car. Dr. Belmonte claims not to remember whether they went into the house, he merely acknowledges that they "could have stopped by the house" as he put it. Lt. Carter's testimony establishes that they were inside for a few minutes. Linda Lomax alleges that while inside the house he drank whiskey and propositioned her for sexual favors, which she refused, whereupon they left. They proceeded to Dr. Belmonte's office whereupon he issued her a prescription for valium and darvocet. These are scheduled controlled substances pursuant to Chapter 893, Florida Statutes. Drs. Turla and Johnson testified that these are valid and appropriate medications to prescribe for a person experiencing, or complaining of experiencing, withdrawal symptoms from demerol addiction as was Linda Lomax on this occasion. It might be remembered that this was the course of treatment prescribed by her treating physician, Dr. Turla, while she was confined in the hospital for detoxification from her demerol addiction.

    
    

13. The Respondent asserts that Dr. Belmonte departed from proper community medical practice standards by prescribing demerol to a drug addict. Dr. Belmonte, however, was not aware of Lomax's drug addiction until she was admitted to the hospital on July 12, after all demerol prescriptions involved herein had already been made. The record simply does not reflect clear and convincing evidence that Dr. Belmonte was on notice that Linda Lomax was a demerol addict until he obtained her complete medical history upon her admission to the hospital.

    
    

14. Dr. Turla testified that Dr. Belmonte did not indicate in the admission medical history that he had previously prescribed demerol to Linda Lomax and that this would have been helpful to know and would have been standard practice in the community in creating medical records. Dr. Turla would only testify however that the patient herself told him that she had obtained 380 demerol tablets over an unspecified period of time and he just took her word for it. Thus, Dr. Turla's testimony establishes that although it was standard practice to put such information in such a medical history record, he did not testify that the omission of it by the Respondent, given the information supplied by the patient herself, resulted in any lapse in conformance to proper standards of care to the patient, nor that Dr. Belmonte thus failed to conform to community medical standards. It must be remembered that Dr. Belmonte himself was the admitting physician and already had personal knowledge of his previous prescriptions for her.

    
    

15. It is also true that Dr. Turla testified that if he had an initial contact with a patient who complained of severe migraine headache of several days' duration that he would not use a potentially addicting drug as a first prescription. In this instance, however, Linda Lomax maintained that she was allergic to talwin and other medications the Respondent proposed. Thus, given

    his good faith belief in her veracity at the time, his prescription of demerol was not shown to be medically inappropriate.

    
    

16. The Petitioner presented no evidence to support its charges contained in Count two which alleged the making of deceptive, untrue or fraudulent representations in the practice of medicine. It did present the testimony of Linda Lomax which could be construed to go to the charge of employing a trick or scheme in the practice of medicine. In that connection, with regard to the Petitioner's charge (in Count three) that the Respondent exercised influence within the doctor-patient relationship for the purpose of engaging the patient, Linda Lomax, in sexual activity, it should be pointed out that the allegation was supported solely by the testimony of Linda Lomax. Her testimony establishes that no sexual encounter actually occurred, although she maintained that the Respondent suggested such. She testified that on each of the occasions when she maintained she met the Doctor at the house on Barton Boulevard that he solicited sexual activity which she consistently refused. Also, as her testimony clearly indicates, the Doctor prescribed the requested medication for her on each of those three occasions when she maintains they were together at the "house" even though he received no sexual favors in return. Thus, it has not been established that there was a connection between sexual activity or the suggestion or promise thereof on the part of the Respondent and the prescriptions he ultimately wrote for Ms. Lomax. In fact, the Respondent's testimony established that on each of the occasions he saw her she complained of symptoms of anxiety, sleeplessness and severe pain, coupled with allergies to certain substances, which would make the prescriptions written for her appropriate as Dr. Turla's testimony corroborates. Thus, even if it could be deemed to have been proven that the Doctor suggested the sexual escapades testified to by Linda Lomax, there is no nexus established that these were in return for his prescribing the subject drugs.

    
    

17. Further, Linda Lomax's testimony is totally uncorroborated regarding the Doctor's alleged suggestion of such sexual activity. Even if the telephone conversation overheard by Lt. Carter was admissible, which the Hearing Officer rules it is not, it would only establish that the Doctor may have suggested that they meet at the house and nothing more. Thus, it cannot corroborate the testimony of Linda Lomax that he suggested they engage in sexual activity during the course of their physician-patient relationship.

    
    

18. The testimony of Linda Lomax is laced with certain inconsistencies which significantly detract from its weight and credibility. Thus, with regard to the occasion when she contends she went to the subject house on July 24, she maintained in an earlier sworn statement that the Doctor answered the door clad only in his underwear and later suggested that they engage in sexual activity. At the hearing, however, she testified that he answered the door, they went to the kitchen of the house, had a drink and, as he was seated at the kitchen table he allegedly unzipped his pants (although he did not expose himself) , and suggested that she favor him with oral sex. On an earlier visit to the house, according to Linda Lomax, after suggesting that they engage in sexual activity, she states the Doctor telephoned several pharmacies on her behalf. The Doctor's testimony established in an unrefuted way that the telephone was not even connected that summer because his sister and brother-in-law were out of the state and not using their house, thus it was impossible for him to have called pharmacists on that occasion, contrary to her testimony. Witness Lomax was also unable to recall or supply details of the conversations on the occasions of these various supposed meetings at the house on Barton Boulevard and, for instance, on each occasion could only testify that the Doctor suggested they have sex relations. She supplied no details regarding how this subject of

    conversation actually arose and failed to recall other details of the contacts she had with the Respondent during the various meetings in June and July of 1980, which could have rendered her testimony of sexual misconduct more plausible. Witness Lomax's own testimony as well as the testimony by deposition of Drs. Gutman and Parsons establishes that this witness has a history of drug addiction and a sociopathic personality trait characterized by unabashed deception of doctors and other "authority figures" in order to achieve personal desires (such as obtaining drugs) Although, as ruled in the Conclusions of Law below, the witness is legally competent to testify, I find that her testimony standing alone is not of a type which would be commonly relied upon by reasonably prudent persons in the conduct of their affairs when juxtaposed with the Respondent's testimony categorically denying any suggestion of sexual activity between the two of them, as well as denying that he had any idea that she was a drug abuser until he admitted her to the hospital. The undersigned is compelled to find that the Respondent's testimony in this regard is more credible and worthy of belief. Other than the fact that they stopped by the house on Barton Boulevard on at least one occasion, her testimony compared to that of the Respondent establishes nothing more than that he prescribed the subject drugs and thus does not establish the truth of charges related to his alleged soliciting of sexual favors.

    
    

19. The Petitioner presented the testimony of two nurses, Janet Stalnaker and Carol Hampton, in support of its allegation that the Respondent is unable to practice medicine with reasonable skill and safety to his patients by reason of the use of alcohol. Nurse Stalnaker was a witness whose name was not supplied to the Respondent in answer to the question in the Respondent's interrogatories regarding the witnesses to be called at the hearing. Thus, the witness was a surprise witness. The Respondent, however, did not demonstrate that her proffered testimony so prejudiced its conduct of its case as to necessitate a continuance in order for it to prepare to meet the matters raised by that testimony. Accordingly, her testimony is considered herein; however, her testimony is not substantial in establishing the Doctor's inability to practice medicine because of the use of alcohol, since Nurse Stalnaker only observed the Respondent in a situation where she thought he had been using alcohol prior to coming on duty on one occasion. That was either in 1974 or 1975 (she could not remember which year). The Doctor on that occasion, according to Nurse Stalnaker, appeared to act in a slow and sluggish manner and she thought she could smell alcohol on his person. She was not able to state that he was an impaired physician however, and that occurrence is so remote in time to the occasion of this proceeding as to have little materiality to the charge to which it relates. The excessive remoteness of that alleged occurrence is borne out by Nurse Stalnaker's own inability to recall which year it occurred. Nurse Hampton testified that on one occasion "a year or so ago she seemed to detect an odor of alcohol on the Respondent's breath" and that his speech was "slightly slurry" when he was working in the emergency room. She recalled rather vaguely that there may have been other occasions when he "might" have been under the influence of alcohol. All these occasions however were when the Respondent was a doctor "on-call" rather than actually working at the emergency room on a scheduled shift, according to her own testimony.

    
    

20. Dr. M. Blake Arnall on the other hand, had never observed the Doctor to be under the influence of alcohol while he was working and had never known him "to have a drinking problem." Doctor Arnall has known the Respondent for seven years, although he has not worked closely with him, but he is aware of his reputation in the medical community. Similarly, witnesses Tournavene and Monsigneur Terrence Fariealy, the pastor of the Catholic Church in Rockledge, vouched for the Respondent's moderate drinking habits. Witness Tournavene has

    known the Respondent since 1973 or 1974 socially, plays golf with him frequently and has been in the lounge with him at the Country Club and has observed his drinking habits. He has noted nothing unusual or excessive in the Respondent's drinking habits and he has never been "out of control of himself." He is generally the first of his party to leave the lounge. He has been with the Respondent socially three to four times per week for the last three to four years and has noted that the Respondent does not drink at social gatherings when he is about to report for work. He would not hesitate to use him as his own physician.

    
    

21. Monsigneur Fariealy has known the Respondent as a parishioner for ten years and the Respondent is also his personal physician and social friend. They have been together on numerous social occasions, typically at the Country Club, and he has observed his drinking habits. He has seen the Respondent only engage in social drinking and has never observed him drinking when he thought it was merely for the purpose of having a drink. He has never seen him drink to excess, has observed that he does not always drink alcohol when others with him do, and has never heard the Respondent's drinking habits discussed at all. In the words of Monsigneur Fariealy "his drinks last a long time -- longer than mine." The Respondent conducts his office very professionally according to this witness and always takes a written medical history on a form obtained from his daughter, the receptionist.

    
    

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1) , Florida Statutes.

    
    

23. The Petitioner has charged the Respondent with violations of various sections of Chapter 458 and Section 893.05

    
    

24. Florida Statutes. The pertinent portions of Section 458.331 are set forth as follows:

    
    

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

       1. Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including 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 presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional prac- tice, without regard to his intent.

          1. Making deceptive, untrue, or fraudulent representations in the

       practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.

       (k) Exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. A patient shall be presumed to be incapable of giving free, full and informed consent to sexual activity with his or her physician.

       (t) 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. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.

       (s) Being unable to practice medi- cine 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. In enforcing this paragraph, the department shall have, upon probable cause, authority to compel a physician to submit to a mental or physical exami- nation by physicians designated by the department. Failure of a physician to submit to such examination when so directed shall constitute an admission of the allegations against him, unless the failure was due to circumstances beyond his control, consequent upon which a default and final order may be entered without the taking of testimony

       or presentation of evidence. A physician affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medi- cine with reasonable skill and safety

       to patients. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a physician in any other proceeding.

       (h) Failing to perform any statutory or legal obligation placed upon a licensed physician.

25. As revealed by the Findings of Fact above, the Petitioner has not been shown to have prescribed the controlled substances involved in other than the course of his professional practice. With regard to the legal presumption created in Section 458.331(1)(q), Florida Statutes, there was no showing that the subject drugs, demerol, valium and darvocet, were prescribed or dispensed inappropriately or in excessive or inappropriate quantities so as not to be in the best interests of the patient, therefore the presumption was not triggered by the Doctor's conduct. At most, as testified to by Dr. Rivera-Rivera, the Respondent may have been guilty of poor judgement by prescribing demerol to Linda Lomax after he knew she had used an alias. Dr. Rivera-Rivera acknowledged that even that might not be poor judgement since, as the record establishes, Linda Lomax lied to the Doctor about the reason for using the alias. The testimony of Drs. Rivera-Rivera and Turla, as well as the deposition of Dr. Johnson, established that the prescription of darvocet and valium is appropriate and within the realm of appropriate medical practice for a person who is undergoing withdrawal from demerol addiction. Dr. Rivera-Rivera's testimony establishes, in corroboration of Dr. Belmonte's, that the prescription of demerol on the three occasions prior to Linda Lomax's hospitalization was not malpractice or medical practice not measuring up to the standard of care of a reasonably prudent similar physician, since Dr. Belmonte in good faith believed Linda Lomax's false complaints of severe migraine headaches and nausea and, with regard to the third visit, the need for an early refill of the prescription due to her alleged departure on vacation. Dr. Belmonte's good faith reliance upon Linda Lomax's false representation, inducing him to prescribe demerol, is corroborated by the testimony of both psychiatrists Parsons and Gutman, who agree that she has a record of ten years of drug abuse, criminal activity and a pattern of deliberately and convincingly deceiving doctors, lawyers and other "authority figures" and indeed deriving enjoyment from it. Accordingly, although her testimony was competent, in that she understood the duty of a witness to tell the truth and was capable of expressing herself concerning the matter at issue in such a manner as to be understood, which are the only two requirements embodied in Sections 90.601 and 90.603, Florida Statutes, the fact remains that her testimony can be accorded scant credibility when compared to that of the Respondent. She was demonstrated to be capable of understanding and apprehending the obligation to tell the truth, but her testimony is laced with sufficient discrepancies and failures to recall specifics of events, especially those allegedly occurring at the "house on Barton Boulevard," that the Respondent's testimony, as corroborated by other witnesses, is accepted over that of Linda Lomax.

    
    

26. It has thus not been shown that the Respondent prescribed and dispensed controlled substances in bad faith and not in the course of his professional practice. Nor has it been demonstrated by competent, substantial evidence that the Respondent made deceptive, untrue and fraudulent representations in his practice of medicine by issuing the subject prescriptions and dispensing the medications, nor that they were dispensed for other than medically justifiable reasons.

    
    

27. Given the lack of corroboration of Linda Lomax's sometimes equivocal testimony it was neither shown that the prescription and dispensing of medication was performed by the Respondent in order to further any social or sexual relationship with Linda Lomax. Similarly, although the Doctor may have used poor judgement or been somewhat naive in prescribing to Linda Lomax on the second or third occasion, as indicated by Dr. Rivera-Rivera, the evidence adduced by the Petitioner does not justify a conclusion that the Doctor

    misprescribed and misdispensed any dangerous substances in violation of Section 458.331(1)(t) , Florida Statutes.

    
    

28. In a like vein, there was no concrete evidence that clearly demonstrates that the Respondent is unable to practice medicine with reasonable skill and safety to his patients by reason of the use of alcohol. There was testimony presented to show that on several remote occasions the Doctor may have ingested alcohol or been under the influence of alcohol at times when he was at the emergency room on an on-call basis, but no pattern or practice of the use of alcohol while practicing medicine and caring for patients was demonstrated. The evidence in the record does not support a finding that he violated Section 458.331(1)(t) Florida Statutes, by practicing while intoxicated and certainly does not demonstrate that he violated Section 458.331(1)(s), Florida Statutes, by being unable to practice with reasonable skill and safety to his patients by reason of the use of alcohol. Indeed the greater weight of the evidence in this proceeding establishes that the Doctor merely drinks socially and rather sparingly at that. Even the most damaging testimony in this regard, that of Linda Lomax, if taken as absolutely credible, would not establish definitively how many drinks the Doctor had on any of the occasions she saw him nor the amount of alcohol in those drinks. Similarly, the testimony of Nurse Hampton is not supportive of the related charge, given the Doctor's unrefuted testimony that he was in the emergency room as a patient shortly after suffering mouth and facial injuries in an auto accident on the occasion when he appeared to be dazed and speaking with slurred speech in December 1980. In summary, it was simply not demonstrated by the greater weight of the competent, substantial evidence in the record that the Respondent practiced medicine while under the influence of alcohol as envisioned by any of the above Sections of Chapter 458.

    
    

29. Accordingly, it must be concluded that the Petitioner has not established the violations charged by evidence which can be deemed substantial in its relationship to the severity of the penalty sought to be imposed, nor by a bare preponderance of the evidence. The competent, substantial evidence adduced by the Respondent amply refutes the attempt to establish the violations charged and to impose penal sanctions. See Bowling v. Department of Insurance,

394 So.2d 165 (1st DCA Fla 1981)

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of all witnesses, and the pleadings and arguments of counsel, it is, therefore

RECOMMENDED:

That, the Petitioner having failed to establish any of the allegations of the administrative complaint by competent, substantial evidence, that the same be dismissed with prejudice.

DONE AND ENTERED this 15th day of December, 1981, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 15th day of December, 1981.

ENDNOTE

1/ The Respondent has asserted the testimony regarding this phone call may not be used pursuant to Section 934.03 (2)(c), Florida Statutes, since, according to the Respondent, the intercepted phone conversation did not involve a party to the conversation who was at that time suspected of a criminal act and who was the subject of a criminal investigation.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Deputy General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Thomas E. Thoburn, Esquire Commodore Plaza, Suite 218

319 River Edge Boulevard Cocoa, Florida 32922

Docket for Case No: 81-001200

Orders for Case No: 81-001200