STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-1203

)

CHANDRAKUMAR B. AGRAWAL, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Orlando, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter, on September 25, 1981. The parties were represented by:

For Petitioner: Deborah J. Miller, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Ed Leinster, Esquire

811 North Magnolia Avenue Orlando, Florida 32803

By Amended Administrative Complaint, Petitioner seeks to revoke or suspend Respondent's license to practice medicine or impose other discipline for improper prescription of controlled substances in violation of Sections 893.05 and 458.1201, Florida Statutes (1977).

The parties submitted post hearing pleadings which included proposed findings of fact and conclusions of law. To the extent the proposed findings have not been adopted or otherwise incorporated herein, they have been rejected as not relevant or not supported by the evidence.

The evidence considered includes the testimony of Petitioner's witnesses

1. and Exhibits (11) and on the testimony of Respondent and his Exhibits (2) . Ruling was reserved on Respondent's objection to Petitioner's Exhibit 11, the deposition of Patricia King, taken in a criminal proceeding. Since a good faith effort was made to locate this witness, and Respondent had conducted cross examination on factual matters identical to those at issue in this proceeding, the objection to Petitioner's Exhibit 11 is overruled.

   FINDINGS OF FACT

   
   

   1. Respondent immigrated to the United States in 1974. He began practicing medicine in Orlando in 1977, specializing in obstetrics and gynecology. His medical doctor's license issued by the Florida Board of Medical Examiners has been in force at all times relevant.

      
      

   2. In October, 1977, Respondent began treating Ms. Patricia King for menstrual pain and an infection. In January, 1978, King requested that Respondent prescribe Dilaudid 1/ for pain. He did so, and thereafter through April, 1978, prescribed an approximate total of 333 Dilaudid tablets for King.

      
      

   3. According to the Physician's Desk Reference, Dilaudid is an opiate which can create psychic and physical dependence. Dilaudid is indicated for the relief of moderate to severe pain such as that due to surgery, cancer, soft tissue and bone trauma, biliary colic, myocardial infarction, burns, or renal colic. None of these conditions was present in regard to King or any other patient discussed herein.

      
      

   4. During the early months of 1978, Respondent became aware that King was addicted to Dilaudid but continued to prescribe this drug for her on the representation that she would seek therapy for her addiction. She also informed Respondent that she was selling some of the Dilaudid tablets and offered to share the proceeds with him. King usually left 25 or 50 at his office in payment for his cooperation. Respondent denies that he asked for this money, totaling $450 to 500, but admitted that he did not return it.

      
      

   5. During this period, Mr. Billy Pressley began bringing women to Dr. Agrawal ostensibly for treatment. However, Respondent did little more than write prescriptions for Dilaudid and other controlled substances for these individuals. In some cases Pressley did not even bring the purported patient, but merely came to Respondent's office to pick up prescriptions for controlled substances in the names of third persons.

      
      

   6. In early 1978, Respondent attempted to discontinue his relationship with Pressley and King. However, he was intimidated by their threats and fear of exposure, and continued to write the prescriptions they demanded. On April 19, 1978, police were summoned to Respondent's home to investigate a broken screen. Subsequently, Pressley and King arrived and were arrested by the police and charged with extortion.

      
      

   7. As a result of the investigation, Respondent was charged with "Delivery of Dilaudid, A.C.S." and entered a plea of Nolo Contendere in the Circuit Court of Orange County. By order issued on April 13, 1979, Respondent was placed on

      12 years probation, adjudication of guilt withheld. He thereafter moved to Okeechobee where he has practiced medicine at the Florida Community Health Center without incident.

      
      

   8. The investigation of Respondent revealed that during March and early April, 1978, he issued two or more dilaudid prescriptions to a Ms. Lynn Elland or others in the name of Elland. Respondent admitted to police that he gave Billy Pressley a Dilaudid prescription for Lynn Elland on April 2, 1978. According to this statement, Pressley provided Respondent with extra money in order to obtain prescriptions for controlled substances.

   9. Between approximately February 3 and 24, 1978, Respondent issued prescriptions to Pressley for Quaalude, 2/ 300 mg., 30 tablets, Dilaudid, 4 mg., 60 tablets and Preludin, 3/ 75 mg., 30 tablets. Further, Respondent provided Pressley with a prescription for Dilaudid in the name of Ms. Kim Taekaberry. Between January and April, 1978, Respondent issued approximately four additional prescriptions for Dilaudid, 4 mg., totaling about 90 tablets, in the name of Kim Taekaberry. Respondent acknowledged to police his awareness that Pressley was using Taekaberry in order to obtain Dilaudid prescriptions.

      
      

   10. Between late January and mid-February, 1978, Respondent issued two prescriptions for Dilaudid, 4 mg., totaling 45 tablets, in the name of Molly Lynch. Respondent acknowledged to police officers that Pressley was also using Lynch to obtain Dilaudid.

       
       

   11. Between February and April, 1978, Respondent issued approximately four prescriptions for Dilaudid, 4 mg., totaling about 99 tablets, to Ms. Kimberly Skinner. Respondent could not recall whether Skinner had been a patient or the reason he prescribed this medication for her.

       
       

   12. Between late January and early February, 1978, Respondent issued approximately two prescriptions for Dilaudid, 4 mg., totaling about 30 tablets to Ms. Linda Cleary. Similarly, the Respondent could not recall why he prescribed this medication for Cleary.

       
       

   13. Between approximately February 2, 1978, and March 21, 1978, Respondent prescribed Preludin, 75 mg., 60 tablets, and Quaalude, 300 mg., 20 tablets to Mr. Gunter Bachman. The Respondent acknowledged in his initial confession to police that he did not maintain patient records for Bachman. Further, it should be noted that Respondent's practice in obstectrics and gynecology would not have involved the treatment of male patients.

       
       

   14. Between February 24 and April 11, 1978, Respondent issued five prescriptions for Dilaudid, totaling approximately 70 tablets, to Mr. Robin Connelly. Respondent advised police that Connelly complained of chest pains and informed Respondent that he took Dilaudid. Considering the nature of the Respondent's practice, his claim that he was treating Connelly for chest pains is not credible. Further, Respondent's admission to police that on March 28, 1978, he gave Connelly a prescription in the name of Kathy Hosford without examining Ms. Hosford further discredits his explanation of the Connelly chest pains prescription.

       
       

   15. Between January 3 and March 3, 1978, Respondent issued approximately twelve prescriptions of Dilaudid, 4 mg., totaling approximately 289 tablets, to Mr. Nick Dearie. Respondent admitted to police that Dearie gave him extra money to provide these prescriptions.

       
       

       CONCLUSIONS OF LAW

       
       

   16. Section 458.1201, Florida Statutes (1977), 4/ provides in part:

       
       

       1. The board shall have authority to deny an application for a license

          or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of

          any of the following:

          1. Making misleading, deceptive, untrue, or fraudulent representations in the practice of medicine; employing a trick or scheme in the practice of medicine. .

          2. Being convicted of a felony in

             the courts of this state. . . . or a criminal proceeding in which a finding or verdict of guilt is made or

             returned but the adjudication of guilt is either withheld or not entered thereon.

             (k) Violating a statute or law of this state . . . which statute or law relates to the practice of medicine

             or in part regulates the practice of medicine.

             (m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. .

             
             

   17. Petitioner has related the above provisions to the facts of this case in its Amended Administrative Complaint containing 35 counts.

       
       

   18. The prescriptions discussed herein were not issued by Respondent in the context of physician-patient relationships or for medically justifiable purposes. Rather, these drugs were prescribed for abuse by the recipients or for illegal resale. The prescriptions written by Respondent were therefore "fraudulent representations" within the meaning of Subsection 458.1201(1)(b) quoted above.

       
       

   19. Section 893.05, Florida Statutes (1977), requires that a practitioner prescribe controlled substances only in good faith and in the course of his professional practice. The prescriptions described herein were not rendered in good faith nor were they issued within the course of Respondent's professional practice. Rather, the prescriptions were given or sold for abuse and resale in direct violation of this statute.

       
       

   20. Subsection 458.1201(1)(k) , Florida Statutes (1977), provides for discipline where a physician has violated a statute relating to the practice of medicine. Here, Respondent violated Section 893.05, Florida Statutes (1977), as noted. However, the separate basis for discipline established by Subsection 458.1201(1)(k) has been repealed. Therefore, charges of violating this provision should be dismissed.

       
       

   21. Subsection 458.1201(1)(c), Florida Statutes (1977) provides for discipline where a physician has been convicted in a criminal proceeding. However, a plea of Nolo Contendere absent adjudication of guilt could not, under the law in force at the time of these violations, be given effect in an administrative proceeding. See Holland v. Real Estate Commission, 352 So.2d 914 (Fla. 2nd DCA 1977).

       
       

   22. Subsection 458.331(1)(c) (Supp. 1980), now provides for discipline where a plea of Nolo Contendere is entered in a criminal proceeding. However, this provision had not been enacted at the time of Respondent's violations and is therefore not applicable here.

   23. Subsection 458.1201(1)(m) , Florida Statutes (1977) which condemns immoral or unprofessional conduct or willful misconduct, does not appear in the current version of the Medical Practice Act. Therefore, charges involving citation of this provision should be dismissed. Additionally, charges involving Sheila Wade should be dismissed for lack of supporting evidence and Count 35 should be dismissed as a duplication of Count 2.

       
       

   24. Both the current Medical Practice Act and its predecessor 5/ provide Petitioner with broad authority to revoke, suspend or restrict a

       physician's license where, as here, the grounds for disciplinary action are duly established. The stated purpose of this Act is . . . to ensure that every physician in this state meet minimum requirements for safe practice. 6/

       
       

   25. Respondent's initial involvement in the illegal prescribing of controlled substances came about through negligence rather than corrupt purpose. He demonstrated poor judgment in continuing to issue such prescriptions after he became aware of the abuse and resale of these drugs. As a newcomer to this country, his submission to the threats of addicts and drug pushers is understandable if not excusable. His acceptance of payment in some of these transactions was corrupt and must be condemned.

       
       

   26. Respondent is currently practicing medicine, apparently without difficulty. However, he has not demonstrated that he is qualified to prescribe controlled substances and his license should be restricted accordingly.

Further, his inability to cope with the situation presented in Orlando indicates a need for supervision by an established physician. Although Respondent is serving a probationary sentence for his violation of criminal law, he should also be reprimanded and placed on probation by Petitioner.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Respondent be found guilty of Counts 1, 5, 8, 11, 14, 17,

20, 23, 29, and 32 as charged. It is further

RECOMMENDED that all other counts be dismissed. It is further RECOMMENDED that the Board of Medical Examiners issue a reprimand to

Respondent based on the findings herein. It is further

RECOMMENDED that the Board of Medical Examiners place Respondent on probation, under the supervision of a designated physician, for a period of five years. It is further

RECOMMENDED that the Board of Medical Examiners withdraw Respondent's authority to prescribe medication controlled under the provisions of Chapter 893, Florida Statutes, by restriction of his license for a period of five years. It is further

RECOMMENDED that Respondent be required to successfully complete a course of study in pharmacology prior to removal of his license restriction.

RECOMMENDED this 22nd day of October, 1981, in Tallahassee, Florida.

R. T. CARPENTER, 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 22nd day of October, 1981.

4/ These provisions were in effect at the time of the conduct giving rise to this action. There were no material changes in the 1978 Supplement applicable here. The 1979 version of the Medical Practice Act contained material changes which are discussed where applicable. The current Medical practice Act is otherwise a substantial reenactment of prior law.

5/ See Subsections 458.1201(3) , Florida Statutes (1977) , and 458.331(2) , Florida Statutes (Supp. 1980)

6/ Section 458.301, Florida Statutes (1979).

COPIES FURNISHED:

Deborah J. Miller, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ed Leinster, Esquire

811 North Magnolia Avenue Orlando, Florida 32803

Docket for Case No: 81-001203

Orders for Case No: 81-001203