STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1020

)

1. F. MCCALL, M.D., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal administrative hearing was conducted in this matter on November 16, 1982, in Jacksonville, Florida. The following appearances were entered:

   
   

   APPEARANCES

   
   

   For Petitioner: Charlie L. Adams

   Tallahassee, Florida

   
   

   For Respondent: Edward M. Booth

   Jacksonville, Florida

   
   

   On or about March 23, 1982, the Petitioner, Department of Professional Regulation, Board of Medical Examiners, issued an Administrative Complaint against its licensee, the Respondent, E. F. McCall. The complaint, which is in nine counts, charges the Respondent with various violations of statutory provisions relating to the practice of medicine. The Respondent disputed the allegations and requested a formal administrative hearing. The Petitioner forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a hearing officer and the scheduling of a hearing on April 12, 1982. The final hearing was originally scheduled to be conducted on August 11, 1982, by notice dated May 13, 1982. The hearing was continued on motion of the Respondent without objection from the Petitioner and was rescheduled to be conducted as set out above.

   
   

   The Petitioner called the following witnesses at the hearing: Daniel K. Peterson, Jason Clifford Lancaster, and Richard J. Roberts, all of whom are pharmacists licensed to practice in Florida; and Charles Coats, an investigator employed with the Department of Professional Regulation. The Respondent testified as a witness on his own behalf and called Dr. C. C. Mendoza, a physician licensed to practice in Florida, as an additional witness. The parties stipulated that Duval County Sheriff Dale Carson would testify as to the Respondent's good character and as to knowledge of the Respondent's son's drug problem. Petitioner's Exhibits 1 and 2 and Respondent's Exhibits 1 through 5 were offered into evidence and received. Respondent's Exhibit 1, which is the sworn statement of the Respondent's son was originally rejected from evidence,

   and the parties agreed to take the deposition of the Respondent's son and to present it as a late-filed exhibit. Subsequent to the hearing, Petitioner withdrew its objection to Respondent's Exhibit 1, and the exhibit had been received in lieu of the deposition.

   
   

   The parties have submitted post-hearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

   
   

   ISSUE

   
   

   The ultimate issue to be resolved is whether the Respondent has committed violations of statutory provisions relating to the practice of medicine, and, if so, what disciplinary action should be taken. The allegations of the complaint relate to prescriptions for controlled substances that the Respondent allegedly wrote for himself or for members of his family other than in the course of his professional practice. The Respondent has denied the allegations of the Administrative Complaint, except allegations that he failed to keep written medical records justifying the course of treatment for several close family members and friends as set out in Count II of the complaint.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is a physician licensed to practice in Florida. He holds License No. ME0001643 issued by the Board of Medical Examiners. The Respondent has been licensed to practice in Florida since 1935. He has practiced in Jacksonville since January, 1946. He maintains an office practice specializing in obstetrics and gynecology. The Respondent is 73 years old, and he no longer maintains a hospital practice. The Respondent has never previously been the subject of any disciplinary proceedings. The Respondent enjoys a very good reputation for truth and veracity in his community and is well regarded by his peers.

      
      

   2. During approximately July and August, 1981, the Respondent wrote three prescriptions for the drug Dilaudid for Sarah Goldstein. Dilaudid is a Schedule II controlled substance under the provisions of Section 893.03, Florida Statutes. Sarah Goldstein is the Respondent's daughter. She was visiting the Respondent from out of town at the time that the prescriptions were written. She was suffering from ulcerated colitis. The Respondent wrote the prescriptions to his daughter to treat this condition. No evidence was offered from which it could be concluded that the prescriptions were written other than in good faith in the course of proper medical practice. The Respondent did not keep written medical records justifying the treatment of his daughter.

      
      

   3. On an uncertain date, the Respondent wrote a prescription for Dilaudid for the patient Agnes Flatley. Agnes Flatley is the Respondent's sister-in-law. She was visiting the Respondent's home and injured her back. Respondent wrote the prescription to assist her with the pain in her back. There is no evidence from which it could be concluded that the prescription was written other than in good faith and in the proper course of the practice of medicine. The Respondent did not keep written medical records justifying the course of his treatment of Agnes Flatley.

   4. During approximately November, 1981, the Respondent wrote a prescription for Dilaudid for the patient Ann Ferguson. Ann Ferguson is a close friend of the Respondent and the Respondent's wife. She is over 80 years old. She visits frequently with the Respondent and the Respondent's wife and eats in their home approximately three times per week. On one such occasion, she was suffering from a severe headache. The Respondent prescribed the medication to alleviate the pain. No evidence was offered from which it could be concluded that the prescription was written other than in good faith in the proper course of the practice of medicine. The Respondent did not keep a written medical record justifying his treatment of the patient Ann Ferguson.

      
      

   5. During approximately November, 1981, the Respondent wrote a prescription for the drug Tuinal for the patient Betty McCall. Betty McCall is the despondent's wife. She was having difficulty in connection with their son, and the Respondent wrote the prescription to assist her. No evidence was offered from which it could be concluded that the prescription was written other than in good faith in the proper course of the practice of medicine. It does not appear that the Respondent kept any written record justifying the course of treatment of his wife.

      
      

   6. The Respondent has a son whose name is Eugene Franklin McCall, Jr. The son is now 27 years old. Since approximately 1973, the Respondent's son has suffered from a drug problem. He has had a specific problem in connection with the use of the drug Dilaudid. The Respondent's son is presently serving a prison term at the Florida State Prison. He was convicted of forging his father's signature on a prescription for Dilaudid. He was also convicted of forging checks on his father's account. This is the Respondent's son's second imprisonment in connection with drug-related problems. The Respondent has expended considerable money and energy seeking a solution to his son's drug problem, with obvious lack of success.

      
      

   7. During August, 1980, the Respondent wrote two prescriptions for Dilaudid for his son. His son was suffering severe withdrawal symptoms, and the prescriptions were written in an effort to prevent him from suffering severe repercussions, including possible death. No evidence was offered during the course of the hearing from which it could be concluded that the prescriptions were written other than in good faith in the proper course of the practice of medicine.

      
      

   8. During the period from April through November, 1981, the Respondent's son forged his father's signature on numerous prescriptions for the drug Dilaudid. The Respondent's son used the names Lesley McCall, Lesley Walker, Betty McCall, and E. F. McCall as the patient's name on the prescription forms. The Respondent's son typically filled these prescriptions by presenting them at drugstores. The Respondent's son occasionally wrote the prescriptions utilizing prescription forms that he had stolen from his father's office. On other occasions, he used forms which he picked up at various drug stores. The Respondent was unaware that his son forged these prescriptions until he was interviewed by the Petitioner's investigator in connection with this proceeding.

      
      

   9. No evidence was offered at the final hearing from which it could be concluded that the Respondent issued any prescriptions other than in good faith in the proper course of the practice of medicine. There is no evidence from which it could be concluded that the Respondent wrote any prescriptions for a scheduled controlled substance for himself. There is no evidence from which it could be concluded that the Respondent made any deceptive, untrue or fraudulent representations, or employed any trick or scheme in the practice of medicine.

      There is no evidence from which it could be concluded that the Respondent engaged in gross or repeated malpractice, or that he is unable to practice medicine with reasonable skill and safety to his patients.

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1) and 120.60, Florida Statutes.

       
       

   11. Section 458.331(1)(n), Florida Statutes, provides the following grounds for taking disciplinary action against a licensed physician:

       
       

       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.

       
       

       The Respondent treated Sarah Goldstein; Agnes Flatley; Ann Ferguson; and his wife, Betty McCall, by prescribing drugs. He did not keep written medical records justifying the treatments. He thus violated the provisions of the section.

       
       

   12. The Respondent is charged in Counts I and V of the Administrative Complaint with a violation of the provisions of Section 458.331(1)(r), Florida Statutes. The section provides that prescribing drugs appearing on any schedule of Chapter 893, Florida Statutes, by a physician to himself constitutes grounds for which disciplinary action can be taken. The evidence does not sustain these charges. While several prescriptions were written so as to appear that the Respondent wrote prescriptions for himself for the drug Dilaudid, all but two of these were forged. Two prescriptions which the Respondent wrote for a patient, "Frank McCall," were not written for the Respondent, but rather for his son.

       
       

   13. The Respondent is charged in Counts III and VI of the Administrative Complaint with writing prescriptions for controlled substances other than in good faith in the course of his professional practice in violation of the provisions of Section 458.331(1)(h), Florida Statutes. These allegations are not sustained by the evidence. No evidence was offered from which it could be concluded that any prescriptions that the Respondent wrote for any drugs were prescribed other than in good faith and in the proper course of the practice of medicine.

       
       

   14. The Respondent is charged in Counts IV and VII of the Administrative Complaint with making deceptive, untrue or fraudulent representations in the practice of medicine in violation of the provisions of Section 458.331(1)(l), Florida Statutes. These allegations are not supported by the evidence.

       
       

   15. The Respondent is charged in Counts VIII and IX of the Administrative Complaint with gross or repeated malpractice in violation of Section 458.331(1)(t), Florida Statutes, and with being unable to practice medicine with reasonable skill and safety to patients as a result of a mental or physical condition in violation of the provisions of Section 458.331(1)(f), Florida Statutes. These allegations are not supported by the evidence.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That the Board of Medical Examiners enter a final order finding the Respondent guilty of violating the provisions of Section 458.331(1)(n), Florida Statutes, in connection with his treatment of Sarah Goldstein, Agnes Flatley, Ann Ferguson and Betty McCall; imposing an administrative fine against the Respondent in accordance with the provisions of Section 458.331(2)(d), Florida Statutes, in the amount of $500; and issuing a formal reprimand against the Respondent in accordance with the provisions of Section 458.331(2)(e), Florida Statutes.

RECOMMENDED this 10th day of January 1983, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 10th day of January 1983.

COPIES FURNISHED:

Charlie L. Adams, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Edward M. Booth, Esquire Arnold, Stratford & Booth 2508 Gulf Life Tower Jacksonville, Florida 32207

Ms. Dorothy Faircloth Executive Director

Board of Medical Examiners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001020

Orders for Case No: 82-001020