STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 81-3101
)
MAURICE C. GUEST, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal bearing was held by the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on May 10, 1982, in Tampa, Florida.
APPEARANCES
For Petitioner: Joseph W. Lawrence, II, Esquire
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Maurice C. Guest, pro se
825 West Linebaugh Avenue Tampa, Florida 33612
BACKGROUND
By Administrative Complaint dated November 16, 1981, as amended in minor respects on May 3, 1982, Petitioner, Department of Professional Regulation, Board of Medical Examiners, has charged Respondent, Maurice C. Guest, with violating Chapters 458 and 893, Florida Statutes, in numerous respects for which disciplinary action against his medical license should be taken. 1/
Respondent disputed the charges and requested an administrative hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the charges. The matter was transmitted by Petitioner to the Division of Administrative Hearings on December 9, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated February 24, 1982, the final hearing was scheduled for March 8, 1982, in Tampa, Florida. By agreement of the parties, the final hearing was continued until May 10, 1982 at the same location.
At the final hearing Petitioner presented the testimony of Lawrence S. Dodd, Jr., Brenda A. Crall, Kathleen Montane, Kathleen P. Streeter, and Gerald Pisetzky and offered Petitioner's Exhibits 1-19, each of which was received into evidence. Exhibits 9, 11 and 13 are the depositions of Dr. Gumersindo Carbonell, Jr., (now deceased), Bertram J. Butz (a deceased pharmacist), and Dr.
J. Meadows stipulated into evidence by the parties. Respondent testified on his own behalf and presented the testimony of Doris Bosarge, Elaine Graves, Emet Krozier, Mary Merlino, Robert W. Morrison, Dr. William S. Reed, Michael Kinney, and Thomas Daniel and offered Respondent's Exhibit 1 which was received into evidence.
The transcript of hearing (two volumes) was filed on May 24, 1982.
Proposed findings of fact and conclusions of law were filed by Petitioner on June 3, 1982, and have been considered by the undersigned in the preparation of this order. Findings of fact not included herein were considered immaterial to the results reached, irrelevant to the issues, or not supported by competent and substantial evidence.
The issue herein is whether Respondent's license as a medical doctor should be disciplined for the alleged violations set forth in the Administrative Complaint.
Based upon the entire record, the following findings of fact are determined:
FINDINGS OF FACT
At all times relevant hereto, petitioner, Maurice C. Guest, held license number ME0005036 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. Said license authorized Guest to practice medicine and surgery in the State of Florida. He has held the license since August 13, 1952. Dr. Guest presently practices medicine at 825 West Linebaugh Avenue, Tampa, Florida.
Dorothea Lankford was a patient of Respondent for almost ten years. Among other things, she had suffered from headaches and stomach pains during that period of time. For these ailments, Guest prescribed Nubain and Vistaril, which are used to relieve moderate pain and nausea. A detailed listing of the prescription dates, script, quantity and type of drug, and pharmacy dispensing the drugs is found in Petitioner's Exhibit 17 received into evidence.
In 1979 and 1980, Lankford provided midwife services in the Lutz, Florida area. However, she held no licenses from the State to provide any type of medical care. Most of Lankford's clients were members of a local Jehovah's Witness Church. Although the services were to be provided without charge, at least one client paid Lankford a small fee.
The prenatal care consisted of weekly meetings at Lankford's mobile home where Lankford discussed all aspects of having a home delivery. The clients were given physical examinations, breathing exercises, suggested diets, and were administered B-12 shots from time to time. On an unknown number of occasions, Lankford administered other drugs, including Nubain and Vistaril, to treat clients suspected of having miscarriages. No doctors were in attendance at these meetings or to supervise the administering of drugs.
In May, 1980, Brenda Crall, one of Lankford's clients, visited Dr. Guest for a physical examination. The appointment had been prearranged, although it was not disclosed by whom. There was no discussion between Crall and Guest that Lankford was going to provide a home delivery for Crall, although Guest recommended she not have one. He also made clear that he would provide no care other than the physical examination given that day.
In October, 1980, Kathleen Streeter, also a client of Lankford, visited the office of Dr. Guest to have a physical examination. Lankford was in the examination room when the examination was given. However, there was no discussion between them to indicate that Guest was providing oversight care to Lankford's clients to sanction the activities of Lankford.
Although the clients were under the impression that medical records of each client had been prepared by Dr. Guest, and that either Guest or some other physician was overseeing the activities of Lankford, there was no competent testimony or documentation to support their belief. Neither was there any evidence to show that Lankford and Guest had entered into some type of agreement whereby she referred patients to Guest on a one-time basis to sanction her unlicensed activities or that Guest delegated professional responsibilities to Lankford.
On April 23, 1980, Brenda Crall and Kathleen Montane, another of Lankford's clients, were attending a meeting at Lankford's home when two other women began experiencing premature labor pains. Lankford injected one with Nubain and Vistaril but had nothing to give the other. Crall, Montane and Lankford's son then went to Respondent's office to pick up a prescription for Lankford. They carried an empty vial of Vistaril so that Guest would know the type of drug needed. Guest gave them a new vial of Vistaril which he had in his office and wrote a prescription for Nubain in Lankford's name. The evidence is conflicting as to whether it was explained to Guest that the prescriptions were for two of Lankford's clients. The actual visit took no more than one or two minutes, and both women admitted they were quite excited and in a hurry at the time. They acknowledged that before Guest dispensed the drug and wrote a prescription he asked whether Lankford was suffering from a headache. Accordingly, it is found that Guest believed the drugs were to be used by Lankford, and not to be administered by Lankford to unknown third persons.
Crall and Montane then filled the prescription for Nubain and gave both drugs to Lankford. Lankford later used the drugs to treat her client.
Mary Ellen Odom was a patient of Dr. Guest between September, 1978 and October, 1980. Among her various ailments were an incarcerated incisional hernia, a previous head injury to the brain which caused recurring pain, hypertensive cardiovascular disease, arthritis and herpes of the vagina. Because Guest wished to alleviate the considerable pain caused by the various ailments, and to keep her in an ambulatory condition, he prescribed a number of drugs while treating her as a patient, including Talwin in an injectable form. An injectable form was used in lieu of a tablet since she had an intolerance to certain oral medications. However, Odom received the drug as an out- patient and was therefore able to inject herself. Between September 27, 1978 and November 21, 1980 Odom obtained approximately 168 prescriptions written or telephoned in by Guest to Boulevard Drugs, located at 227 East Davis Boulevard,
Tampa, Florida. A detailed list of the dates, script, drug, quantity and quantity filled is found in Petitioner's Exhibit 16 received into evidence. The druggist at Boulevard Drugs became concerned with Odom's use of Talwin, particularly after Odom administered herself an injection at the drug counter.
The druggist talked by telephone with Guest on a number of occasions and told him that he believed Odom was abusing the drug. On May 17, 1980, he made the following notation on the bottom of one of Odom's prescriptions: "Dr. aware of abuse". Despite these warnings Guest continued to give Odom prescriptions for injectable Talwin for at least six more months. He was also aware that Odom had been previously addicted to Demerol, a pain-killing narcotic drug. Dr. Guest
"regrets" giving Odom the amount of drugs that he did, but did so because he believed the woman was in constant pain, and because he did not initially believe Talwin to be an addictive drug. He has subsequently changed his opinion on the addictive nature of Talwin based on literature that warns of the addictive characteristics of the drug.
A physician-member of the Hillsborough County Utilization Review Committee examined the medical records of Odom, together with the amount of drugs prescribed, and concluded that the amount of injectable Talwin prescribed by Guest to Odom was "excessive", given her medical condition. He also concluded that while her ailments may have justified the use of Talwin in an oral form, there was no basis to prescribe Talwin in an injectable form, particularly on an outpatient basis. In reaching that conclusion, the physician was unaware of any impediment to Odom using Talwin in a tablet form. He acknowledged that Talwin tablets could cause nausea and vomiting while the injectable form does not, and that under certain circumstances the latter form might be preferable, although not in the magnitude prescribed by Guest. Based upon his review of the records, he concluded Guest did not practice medicine with the level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances acceptable, nor did he conform with generally prevailing standards of the medical community in his care and treatment of Odom.
Respondent also treated Bernetha Cunningham as a patient for approximately twenty-two years. In 1976, Cunningham developed symptoms which were consistent with rheumatoid arthritis. After trying several medications which were unsuccessful, he began prescribing Talwin compound to ease her pain. He instructed her to take two tablets every four hours, or a total of twelve per day, which resulted in a daily dosage of 180 milligrams. At that time, he did not consider Talwin compound to be an addictive drug. He also prescribed Valium to relieve Cunningham's anxiety and to relax her muscles. Petitioner's Exhibit
15 received in evidence reflects that during the period between January 13, 1976, and February 5, 1979, Guest wrote prescriptions for 3,460 Valium tablets with authorization for 2500 tablets on refill, and 2,800 Talwin compound tablets with authorization for 2,200 tablets on refill. However, the last time he treated her as a patient was in December, 1977, at which time he advised her that he would not prescribe any more medicine. The evidence is conflicting as to whether Guest continued to telephone in prescriptions after that date, but it is found that Cunningham continued to refill her prescriptions in Dr. Guest's name after December, 1977, without his knowledge and consent.
On February 1, 1979, Cunningham was examined by another Tampa physician (now deceased) whose specialty was psychiatry. In a deposition given prior to his death, he diagnosed her as having reactive depression and arthritis. He also concluded she displayed symptoms of being addicted to Talwin vis a vis Talwin compound, and that the drugs had been prescribed in dosages that would tend to addict the patient. In reaching these conclusions, the physician made no distinction between Talwin and Talwin compound, although the latter is a much less profound form of the drug. His examination was also conducted some fourteen months after Mrs. Cunningham had last been treated by Dr. Guest, and been given a prescription for drugs.
In December, 1978, the Cunninghams filed a civil action against Respondent alleging that Respondent had been negligent in his treatment of Cunningham by prescribing an excessive level of central nervous system depressants. After being initially dismissed, the suit was refiled in April, 1979, and was ultimately settled out-of-court when Guest paid the Cunninghams
$6,200. Guest represented himself in the initial stages of the suit, and only after a default summary final judgment as to the issue of liability was entered did he obtain counsel. Guest settled the case on advice of counsel since he had no malpractice insurance and would have incurred substantial legal fees had the case gone to trial on damages alone and then been appealed on the issues of liability and damages.
A physician-member of the Hillsborough County Utilization Review Committee examined the medical records of Cunningham and concluded that Guest prescribed too great an amount of analgesics, sedatives and tranquilizers, and too little medication to counteract Cunningham's arthritic condition. He also concluded Guest failed to conform to generally prevailing standards of the medical community in his care and treatment of Cunningham, and failed to practice medicine with the level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances.
Talwin is a controlled substance under Chapter 893, Florida Statutes. It is prescribed for relief of moderate to severe pain and is commonly referred to as an analgesic. The drug comes in various forms, including tablet, injectable and compound form. The latter form contains the least amount of Talwin in terms of milligrams. Its addictive characteristics were not recognized until approximately 1978 when reference to this was made in the Physicians' Desk Reference (PDR). The PDR provides that the maximum daily dosage should not exceed 600 milligrams, although the tolerance level will differ from individual to individual.
Valium is also currently classified as a controlled substance pursuant to Chapter 893, Florida Statutes. It is used primarily as a tranquilizer although it has some muscle relaxant qualities. If given in sufficient quantity over time, a user may become addicted to the drug.
Respondent was subjected to disciplinary action by the Board of Medical Examiners in 1978. In that action he was placed on probation for three years. Among the conditions of probation was the following:
The licensee shall, during this probation period, demonstrate the type of exemplary conduct expected and required of a duly licensed physician in this State. If the licensee fails to meet the moral and professional standards expected of a duly licensed physician, said probationary order will be vacated and the licensee will be subject to further disciplinary action by the Board.
In 1981, the probationary period was extended until August, 1982, presumably because of the case at bar.
Respondent did not intentionally violate the law. While he wrote or telephoned an unusually large number of prescriptions for Odom and Cunningham, he believed that both patients were experiencing pain, and that the drugs were needed to aid them. However, because the patients were poor, could afford only one Medicaid trip per month to his office, and could not drive, Dr. Guest
attempted to authorize a sufficient number of refills between office visits. In this respect, he was lax in failing to control the actual number of drugs obtained by the patients. Nonetheless, there were no monetary rewards or motivation in writing the prescriptions.
Dr. Guest was portrayed by character witnesses as a sincere and dedicated practitioner. He has practiced medicine in Tampa, Florida, for almost thirty years. Although he suffered a heart attack in early 1980, he continues to work long hours. He is not motivated by the financial rewards of practicing medicine, for he has frequently accepted patients requiring medical care but who were too poor to pay the bill. There was no evidence that Respondent has any drinking or drug problems.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
Although the administrative complaint contains twenty-two counts, they may be broadly grouped into four separate offenses.
First, Counts I through XII involve the relationship of Lankford and Guest, and the general allegations that Guest aided or abetted Lankford in the practice of medicine, made fraudulent or deceptive representations, administered drugs not in the course of his professional practice and delegated professional responsibilities to an unlicensed person. Of some significance is the fact that the major co-participant, Lankford, did not appear and testify. The testimony of three of her former clients did not establish that Guest aided or abetted Lankford in her midwife activities, delegated professional responsibilities to her, or that he in any other way was a co-participant in her scheme. In contrast, the evidence reveals that Dr. Guest was unaware of the actual activities undertaken by Lankford, and in no way assumed responsibility for overseeing her patients or otherwise assisted her in her midwife activities. By the same token, the evidence falls short of establishing that Guest improperly prescribed drugs for Lankford to be used by other persons, or that he even knew that drugs were being administered by Lankford. This being so, Counts I through XII should be dismissed.
Next, it is generally alleged in Counts XIII through XVII that Respondent, while treating Bernetha Cunningham, failed to prescribe a controlled substance in good faith (Count XIII), failed to practice medicine with that level of skill, care and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (Counts XIV, XV, and XVII), and prescribed a drug other than in the course of his professional practice (Count XVI). The evidence supports a conclusion that Guest is guilty as charged in Counts XIV, XV and XVII. Despite his negligence in failing to control the amount of drugs used by the patient, Dr. Guest wrote the prescriptions in good faith believing that the medical condition of the patient required their use. Further, they were clearly prescribed in the course of his profession. Accordingly, Counts XIII and XVI should fail.
Third, Counts XVIII through XXI stem from Respondent's care and treatment of Mary Ellen Odom and generally allege that Respondent failed to prescribe a controlled substance in good faith (Count XVIII), failed 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 (Counts XIX and XX), and prescribed a legend drug other than in the course of his professional practice (Count XXI). Again, the evidence is clear and convincing that Guest is guilty as charged in Counts XIX and XX. However, the evidence does not establish that Respondent. prescribed the drugs in bad faith, or that the prescriptions were given other than in the course of his professional practice. In each case, the drugs were given based upon Respondent's belief that the patient's condition required their use.
Accordingly, Counts XVIII and XXI should be dismissed.
Finally, Respondent is charged in Count XXII with having violated a lawful order of the Board, to wit, a condition of probation contained in the Board's order entered on July 1, 1970. That order reads in part as follows:
The licensee shall, during his probation period, demonstrate the type of exemplary conduct expected and required of a duly licensed physician in this State. If the licensee fails to meet the moral and pro- fessional standards expected of a duly licensed physician, said probationary
order will be vacated and the licensee will be subject to further disciplinary action by the Board.
Clearly, Respondent's conduct cannot be characterized as "exemplary" and in conformity with professional standards expected of a licensed physician in this state. Accordingly, Respondent is guilty as charged in Count XXII.
In assessing a penalty, it is noted that in his thirty-year career as a physician, Respondent has been subjected to disciplinary action only on one other occasion for reasons that are not apparent in this record. The remaining part of his career appears to be unblemished.
Respondent was clearly negligent in his care of patients Cunningham and Odom. However, in prescribing large amounts of drugs, he did not expect to realize any monetary gain, for the patients were in the lower income strata. Respondent appears to be sincere and dedicated, works long hours, and is not motivated by the financial rewards of practicing medicine. He has no apparent drinking or drug problems. He suffered a heart attack in early 1980, but still desires to continue his practice.
Given these considerations, it is recommended that Respondent's probation be extended for seven additional years after his present probationary period expires in August, 1982, and that he be placed under such restrictive conditions as the Board may require for prescribing scheduled controlled substances to his patients.
Based on the foregoing findings of fact, and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts XIV, XV,
XVII, XIX, XX and XXII. All other counts should be dismissed. It is further
RECOMMENDED that Respondent's probation be extended for an additional seven years during which time he not be allowed to write prescriptions for scheduled controlled substances without such supervision and approval as the Board may require.
DONE and ENTERED this 23rd day of June, 1982, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 23rd day of June, 1982.
ENDNOTE
1/ Briefly, the Complaint contains twenty-two counts and includes the following allegations: (1) allowing an unlicensed person to practice medicine [s.
458.331(1)(g)]; (2) administering a legend drug other than in the course of his professional practice [s. 458.331(1)(q)]; (3) making deceptive or fraudulent misrepresentations in the practice of medicine [s. 458.331(1)(1)]; (4) delegating professional responsibilities to an unqualified person [s.
458.331(1)(w)]; (5) allowing an unlicensed person to practice medicine [s. 458.331(1)(g)]; (6) administering a legend drug other than in the course of his professional practice [s. 458.331(1)(q)]; (7) making deceptive or fraudulent representations in the practice of medicine [s. 458.331(1)(i)]; (8) delegating professional responsibilities to an unqualified person [s. 458.331(1)(w)]; (9) allowing an unlicensed person to practice medicine [s. 458.331(1)(g)]; (10) administering a legend drug other than in the course of his professional practice [s. 458.331(1)(q)]; (11) making deceptive or fraudulent representations in the practice of medicine [s. 458.331(1)(1)]; (12) delegating professional responsibilities to an unqualified person [s. 458.331(1)(w)]; (13) failing to prescribe a controlled substance in good faith, violating a statute which relates to the practice of medicine and failing to perform a statutory obligation placed upon a physician [ss. 893.05(1), 458.1201(1)(k) and 458.331(1)(h)]; (14) engaging in unethical conduct and engaging in gross or repeated malpractice or failing to practice with a level of care required of physicians [ss. 458.1201(1)(h) and 458.331(1)(t)]; (15) guilty of unprofessional or negligent conduct and engaging in gross or repeated malpractice or failing to practice with a level of care required of physicians [ss. 458.1201(1)(m), 458.331(1)(t)]; (16) administering a legend drug other than in the course of his professional practice [458.331(1)(q)]; (17) being found liable for medical malpractice resulting from an action or omission committed by Respondent and engaging in gross or repeated malpractice and failure to practice medicine with a level of care required of physicians [ss. 458.1201(1)(o) , 458.331(1)(t)];
(18) failing to prescribe a controlled substance in good faith, violating a law of this State relating to the practice of medicine, and failing to perform a statutory obligation [ss. 893.05(1), 458.1201(1)(k) and 458.331(1)(h)]; (19) engaging in gross or repeated malpractice and failure to practice medicine with
a level of care required of physicians [ss. 458.1201(1)(h), 458.331(1)(t)]; (20) being guilty of immoral or unprofessional conduct and engaging in gross or repeated malpractice and failure to practice medicine with a level of care required of physicians [ss. 458.1201(1)(m), 458.331(1)(t)]; (21) administering a legend drug other than in the course of his professional practice [s.
458.331(1)(q)] and (22) violating a condition of probation and violating a lawful order of the Board [ss. 458.1201(1)(g) , 458.331(1)(x)]
COPIES FURNISHED:
Joseph W. Lawrence, II, Esquire
130 North Monroe Street Tallahassee, Florida 32301
Maurice C. Guest, M.D. 825 West Linebough Avenue Tampa, Florida 33612
================================================================= AGENCY FINAL ORDER
================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,
Petitioner,
vs. CASE NO. 81-3101
MAURICE C. GUEST, M.D.,
Respondent.
/
FINAL ORDER
This matter came for final action by the Board of Medical Examiners pursuant to Section 120.57(1)(b)9., F.S., at a public meeting on August 8, 1982, in Palm Beach, Florida, for review of the recommended order of the hearing officer entered herein, and the exceptions filed by the Petitioner, Department of Professional Regulation. A transcript of the proceedings is, available, if necessary.
FINDINGS OF FACT
Following a review of the complete record, the Board of Medical Examiners hereby adopts and incorporates by reference the Findings of Fact of the hearing officer.
CONCLUSIONS OF LAW
Following a review of the complete record, the Board of Medical Examiners hereby adopts and incorporates by reference the Conclusions of Law of the hearing officer.
However, the Board hereby rejects the Recommendation of the hearing officer and adopts the exception to the recommended penalty filed by the Petitioner, Department of Professional Regulation. The Recommendation of the hearing officer fails to consider the seriousness of the offense as well as the harm to members of the public as reflected in the record of this proceeding. Moreover, the Board finds that the mitigating factors noted by the hearing officer with respect to the intent of the Respondent do not serve to outweight the grave consequences of Respondent's violations of the statutes. IT IS THEREFORE
ORDERED AND ADJUDGED that the license to practice medicine in the State of Florida of Maurice C. Guest, M.D., be and hereby is revoked on each count to run concurrent with each other. This Order shall take effect on the date of the filing.
DONE AND ORDERED this 13th day of August, 1982.
BOARD OF MEDICAL EXAMINERS
By Dorothy J. Faircloth Executive Director
cc: All Counsel of Record. Maurice C. Guest, M.D. 825 W. Linebough Avenue Tampa, Florida
| Issue Date | Proceedings |
|---|---|
| Aug. 29, 1990 | Final Order filed. |
| Jun. 23, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 13, 1982 | Agency Final Order | |
| Jun. 23, 1982 | Recommended Order | Physician was guilty of over-prescribing contolled substances. |
