vs. ) CASE NO. 81-2409
Respondent. )
Pursuant to notice, this cause came on for hearing before Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 8 and 9, 1982, in Miami, Florida.
For Petitioner: Deborah J. Miller
On September 8, 1981, Petitioner issued an Administrative Complaint seeking to suspend or revoke the Respondent's license to practice medicine or to take other disciplinary action against him as a licensed physician. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint.
Petitioner presented the testimony of Albert J. Rourke, Jr.; Frank Norwitch; Michelle Heller; Brooks Harle; James Edward O'Brien; Jaime Saturn; Dolores A. Morgan; Michael Bransfield by way of deposition; Thomas O. Bonner, and James N. Sussex. Additionally, Petitioner's Exhibits numbered 1 through 6 were admitted in evidence. Respondent Juan Ampuero testified on his own behalf. Respondent's Exhibit numbered 1 was admitted in evidence, but Respondent's Exhibit numbered 2 was rejected.
Respondent's ore tenus motion to amend the style of the case made during the hearing in this cause was granted. Respondent's name is now spelled correctly in the style of this Recommended Order.
Petitioner filed a post-hearing Request to Correct Record seeking certain changes in the transcript of the hearing in this cause. The changes requested by Petitioner on pages 9, 40, 110, 135, 153, 246, 324, 325, and 332 are hereby denied. All other requested changes are hereby granted.
Petitioner has submitted post-hearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings of fact have not been adopted in this Recommended Order they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions law.
Respondent has been licensed by Petitioner to practice medicine in the state of Florida since approximately February, 1979.
Personnel at the Stress Medical Center utilize a "screening" form before allowing a caller to make an appointment to be treated. The screening form appears to reflect the criteria established by the Center for the treatment of persons suffering from stress, distress, depression, or anxiety, with persons suffering from insomnia being specifically excluded from treatment at the Center. In order to qualify as a patient, a person must be at least 23 years of age, must be a resident of the state of Florida, must be referred by a current patient, must give residence and employment telephone numbers which are verified, must have two (2) identifications with a picture on at least one (1) of them, must pay for any visit or treatment in cash only, must come to the Center unaccompanied by anyone else, and must be willing to be terminated as a patient should any information given by them, such as a telephone number, be inaccurate.
Michelle Heller visited the Respondent's place of employment, the Stress Medical Center located at 995 North Miami Beach Boulevard, North Miami Beach, Florida, in order to obtain quaaludes for a friend. She was seen by the Respondent on February 4, 1981; February 25, 1981; March 26, 1981; April 23, 1981; May 20, 1981; June 18, 1981 and July 23, 1981. On each occasion Heller spent approximately ten (10) minutes with a "psychologist" and approximately three (3) minutes with the Respondent. The most extensive physical examination conducted by the Respondent on any occasion was taking her blood pressure, checking her heart and back with a stethoscope and peering into her eyes. On one (1) occasion, a blood test was taken by clinic personnel. At the conclusion of each visit and upon the payment of cash, Heller received a prescription for
45 tablets of Methaqualone, 300 mg. Respondent failed to advise Heller that the blood test taken by him revealed that she had low blood sugar.
Brooks Harle, an investigator for the Department of Professional Regulation, visited the Center on three (3) occasions: March 19, 1981, April 28, 1981 and May 26, 1981. On his first visit he filled out a personal and medical history form indicating that he is an occasional user of tranquillizers, sleeping pills, and alcohol. He then took the Millon Clinical Multiaxial Inventory, a psychological test. The results of that test were returned to the Center on March 25, 1981, with the specific findings that Harle, who was utilizing the alias of Chris Connors, suffered from an anxiety disorder, a drug abuse disorder, and an affective disorder -- moderate depressive episodes.
On April 28, 1981, Harle returned to the Center for his second visit. He was interviewed for approximately seven (7) minutes by a "psychologist" during which time he advised the "psychologist" that be "felt wonderful." Thereafter, a nurse took Harle's blood pressure and Harle was escorted into Respondent's office. Harle advised Respondent that be was feeling fine, and the only physical examination rendered by the Respondent to Harle was an examination of Harle's reflexes. The results of the psychological test were not discussed
by the Respondent or the "psychologist." Further, Respondent did not question Harle regarding the extent of his use of tranquillizers, sleeping pills, or alcohol. Instead, Respondent issued prescriptions to Harle for Methaqualone,
300 mg., 45 tablets and for Ativan, 1 mg., 60 tablets. Harle was charged $100 in cash for these prescriptions.
On May 26, 1981, Harle again visited the Center. After a maximum of five (5) minutes with a "psychologist" to whom he reported he was feeling fine, Harle's blood pressure was taken by a nurse. Respondent performed no physical examination of Harle; yet he issued prescriptions to Harle for 60 tablets of Ativan, 1 mg. and 45 tablets of Methaqualone, 300 mg. When Harle advised the personnel at the Center that he only had $50 in cash with him and not the required $100 cash payment, the prescriptions were retained by the Center. This was Harle's last visit to the Center. At no time did Respondent discuss with Harle his use of medication, including Methaqualone, in light of the results of the psychological testing done on Harle indicating that Harle had a drug abuse disorder. Rather, Respondent advised Harle to take one-half tablet of Methaqualone upon arising, one Ativan in the afternoon, and one tablet of Methaqualone before bedtime, although Harle had indicated on the forms filled out by him when he first came to the Center that he slept eight hours a night and awakened rested.
Jaime Saturn was not seen by the Respondent when he visited the Center on December 31, 1979, January 25, 1980, March 19, 1980, or April 22, 1980. However, on January 19, 1981, an imposter utilizing Saturn's name visited the Center and was seen by the Respondent. According to the records of the clinic, the patient's blood pressure and pulse were taken. Respondent prescribed 60 tablets of Ativan, 1 mg. and 30 tablets of Methaqualone, 300 mg.
On March 20, 1981, the imposter again visited Respondent utilizing Saturn's name. The records again reflect that the patient's blood pressure and pulse were checked. Respondent prescribed for the imposter Stress Tabs, 60 tablets and Methaqualone, 300 mg., 45 tablets and directed him to return in one month.
On May 1, 1981, the imposter again visited Respondent utilizing Saturn's name. Again the patient's blood pressure and pulse were taken, and Respondent prescribed 60 tablets of Stress Tabs and 45 tablets of Methaqualone,
300 mg. and directed the patient to return in one month.
On December 16, 1980, Michael Bransfield was seen by the Respondent for the first time. Bransfield's head was shaved, and he had a visible scar as a result of recent brain surgery. He was using crutches as a result of a severed Achilles tendon. Bransfield was seen by the "psychologist" for no more than ten (10) minutes, his blood pressure was taken by a nurse, and he was seen by the Respondent for two to three minutes during which time the Respondent only took his pulse. Without consulting with Bransfield's neurologist to determine the extent of any neurological difficulties as a result of the brain surgery, Respondent issued to Bransfield prescriptions for 30 tablets of Ativan, 1 mg., and 20 tablets of Methaqualone, 300 mg.
During Bransfield's visit on December 30, 1980, no psychological examination was conducted. A nurse took his blood pressure, and the Respondent took his pulse. Respondent issued to, Bransfield prescriptions for 30 tablets of Ativan, 1 mg., and 20 tablets of Methaqualone, 300 mg.
On January 14, 1981, and January 28, 1981, Bransfield spent no more than ten (10) minutes with the "psychologist" and then spent no more than three
minutes with the Respondent who took Bransfield's pulse. Just prior to each of these visits, Bransfield had ingested up to 900 mg. of Methaqualone. At the conclusion of each visit Respondent issued to Bransfield prescriptions for 30 tablets of Ativan, 1 mg., and 20 tablets of Methaqualone, 300 mg.
Bransfield was seen by Respondent on February 11, 1981, and on March 11, 1981. On both those occasions Respondent only took Bransfield's pulse. At the conclusion of each of these two (2) visits, Respondent issued to Bransfield a prescription for 45 tablets of Methaqualone, 300 mg. Immediately prior to the March 11 visit, Bransfield ingested 1,500 mg. of Methaqualone. As a result thereof, during his psychological and medical "consultations," Bransfield's speech was slurred, and his gait was unsteady.
During Bransfield's April 9, 1981 visit to the Center, neither a psychological examination nor a physical examination was conducted. Yet, Respondent issued to Bransfield a prescription for 45 tablets of Methaqualone,
300 mg.
On May 19, 1981, Bransfield spent approximately ten (10) minutes with a "psychologist", had his pulse taken by the Respondent, and received his prescription for 45 tablets of Methaqualone, 300 mg., which prescription was issued by the Respondent.
When Bransfield filled out the personal and medical history form on his first visit to the Center, he indicated occasional use of tranquillizers, sedatives, and sleeping pills. Respondent never questioned Bransfield regarding his use of these substances.
The medical records for Heller, Harle/Connors, Saturn, and Bransfield, are remarkably similar and in many aspects identical. All medical entries are stamped entries such as: "all symptoms checked & found normal," "physical reexamination carried out," "no signs of drug abuse," and "recommended for continuation of therapy." Not one record indicates the patient's complaints, diagnosis, or prognosis. Other than the conclusions reflected by the rubber stamps used, the records, for the most part, only reveal the patient's weight, pulse rate, and blood pressure. No details are given. For example, although one stamp indicates that a reexamination has been carried out, no information is given regarding the procedures involved in that reexamination.
Methaqualone is a Schedule II controlled substance, the highest category of controlled substances which have acceptable medical use but also carry with them a high risk of physical or psychological dependency. It is contrary to good medical practice to prescribe Methaqualone to be taken on a regular basis for longer than three (3) months due to the danger of dependency. It is inappropriate to treat anxiety and stress with Methaqualone since it is a symptomatic treatment which does not address the cause of the stress or anxiety.
Ativan is a Schedule IV controlled substance.
Respondent failed to perform a physical examination which was adequate to justify the prescribing of Methaqualone or Ativan to Heller, Harle/Connors, Saturn's imposter, or Bransfield on each of the visits described in these findings of fact.
Respondent failed to consider the issues of dependency and tolerance when he prescribed Methaqualone to Heller, Harle/Connors, Saturn's imposter, and Bransfield on each occasion that he saw these patients. Additionally, he specifically ignored the issues of dependency and tolerance when he prescribed Methaqualone to Bransfield on the occasion when Bransfield's speech was slurred and gait was unsteady after ingesting 1,500 mg. of Methaqualone prior to his visit to Respondent. Respondent also ignored the issues of dependency and tolerance as to Harle/Connors and Bransfield since both patients indicated on their initial visit on the Center's personal and medical history form that they used tranquillizers, sleeping pills, and alcohol.
A maximum of ten (10) minutes once a month is an insufficient time for psychotherapy to take place. True psychotherapy involves 45 to 50 minute sessions at a minimum of once a week. Changing "psychologists" also renders psychotherapy ineffective since the required trust between patient and psychologist cannot be attained. The four (4) patients discussed in these findings of fact saw different "psychologists" over the period of time of their alleged treatment by the Center, and some of the patients saw a different "psychologist" each month. Psychotherapy was not rendered to any of these four
patients, and Respondent could not have obtained the information necessary to justify the prescribing of Methaqualone as a result of any of the alleged psychological consultations involving these four (4) patients.
Respondent acknowledged his signature on 4,223 prescriptions for Methaqualone, copies of which prescriptions were introduced in evidence at the hearing in this cause. These prescriptions were written during a single 13- month period of time.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto. Section 120.57(1), Florida Statutes.
In Counts I through LV the Respondent is charged with having violated Sections 458.331(1)(q), 458.331(1)(h), 893.05, 458.331(1)(n) and 458.331(1)(t), Florida Statutes. Those pertinent portions of Section 458.331 provide as follows:
The following acts shall con- stitute grounds for which the disciplinary actions specified in subsection (2) may be taken,:
(h) Failing to perform any statu- tory or legal obligation placed upon a licensed physician.
(n) Failing to keep written medical records justifying the course of treatment of the patient,, including, but not limited to, patient histories, examination results, and test results.
(q) Prescribing, dispensing, administering, mixing, ore other- wise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice.
For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, adminis- tering, 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 practice, without regard to his intent.
(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.
Section 893.05, Florida Statutes, allows a practitioner to prescribe or administer controlled substances only when done in good faith and in the course of his professional practice. Respondent is charged with violating Section 893.05 and, therefore, Section 458.331(1)(h) by failing to perform a statutory or legal obligation placed upon him as a licensed physician.
Counts I through XXXII of the Administrative Complaint charge Respondent with violating each of the above quoted subsections in prescribing Ativan and Methaqualone for Michael Bransfield. Petitioner has clearly demonstrated that Respondent's medical records fail to justify the course of treatment for Bransfield, that Respondent prescribed those controlled substances other than in good faith and other than in the course of his professional practice, that Respondent failed to perform a statutory or legal obligation placed upon him, and that Respondent has failed to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician.
Counts XXXIII through XL of the Administrative Complaint charge Respondent with violating each of the above quoted subsections in prescribing Ativan and Methaqualone for Brooks Harle/Chris Connors. Petitioner has clearly demonstrated that Respondent's medical records fail to justify the course of treatment for Harle/Connors, that Respondent prescribed those controlled substances other than in good faith and other than in the course of his professional practice, that Respondent has failed to perform a statutory or legal obligation placed upon him, and that Respondent has failed to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician.
In Counts XLI through XLIII of the Administrative Complaint Respondent is charged with violating subsections (h), (q), and (t) of Section 458.331(1), Florida Statutes, by issuing 4,231 prescriptions for Methaqualone totaling approximately 149,905 tablets, 300 mg. between July 1, 1980 and August 31, 1981. During the hearing these numbers were amended by the Petitioner to reflect 4,229 prescriptions totaling 149,845 tablets. Petitioner introduced into evidence
4,223 of those prescriptions as Petitioner's Composite Exhibit numbered 5. Petitioner has met its burden of proving that the number of prescriptions issued by Respondent during that time period is so excessive as to be inappropriate on its face, that Respondent has failed to act in good faith, and that Respondent has prescribed that controlled substance other than in the course of his professional practice.
Counts XLIV through LV of the Administrative Complaint charge Respondent with violating each of the above quoted subsections in prescribing Ativan and Methaqualone for Jaime Saturn. Petitioner has clearly demonstrated that Respondent's medical records fail to justify the course of treatment for Saturn, that Respondent prescribed those controlled substances other than in good faith and other than in the course of his professional practice, that Respondent failed to perform a statutory or legal obligation placed upon him, and that Respondent has failed to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician.
There is no evidence in this record that Respondent rendered any medical examination or medical treatment to any patient seen by him at the Center more detailed than Respondent taking the patient's pulse and/or blood pressure and/or listening to the patient's back and chest with a stethoscope and/or peering into the patient's eyes. There is no evidence in this record that a patient seen by the Respondent at the Center received any kind of medical treatment other than a monthly prescription of Methaqualone and Ativan or Stress Tabs. There is no evidence in this record that Respondent was engaged in the good faith practice of medicine; rather, the evidence indicates that Respondent's only role at the Center was to issue prescriptions for controlled substances.
Based upon the foregoing findings of fact and conclusions of law, it is, therefore,
RECOMMENDED that a final order be entered finding Respondent Juan Ampuero guilty of Counts I through LV of the Administrative Complaint and permanently revoking Respondent's license to practice medicine in the state of Florida.
DONE AND ORDERED this 27th day of May, 1982, in Tallahassee, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1982.
Deborah J. Miller, Esquire SIMON, SCHINDLER & HURST
1492 S. Miami Avenue Miami, Florida 33129
Juan Ampuero, M.D. 3255 S.W. 25th Street Miami, Florida 33133
Samuel R. Shorstein Secretary
