STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1062

)

DAVID SCHEININGER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on September 30, 1982, in Jacksonville, Florida. The transcript of hearing was filed on October 11, 1982; proposed findings of fact and conclusions of law were filed on November 2, 1982. The parties were represented by counsel.

APPEARANCES

For Petitioner: Joseph W. Lawrence, II

Chief Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Albert Datz, Esquire

Datz, Jacobson and Lembcke, P.A. 2902 Independent Square

Jacksonville, Florida 32202 ISSUE PRESENTED

Whether respondent violated Chapter 458, Florida Statutes (1981), and whether he should be disciplined on charges that he improperly dispensed scheduled controlled substances; prescribed or dispensed a controlled substance other than in the course of a physician's professional practice; employed a trick or scheme in the practice of medicine; engaged in gross or repeated malpractice or failed to practice medicine with that level of care, skill, and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances; and aided, assisted, procured or advised unlicensed persons to practice medicine and delegated professional responsibilities to a person whom he knew or had reason to know was not qualified by training, experience or licensure to perform.

Background

By a five-count second amended administrative complaint dated May 25, 1982, the Department of Professional Regulation, Board of Medical Examiners ("Department"), charged that respondent David Scheininger, M.D. ("respondent"): [Count I] violated Sections 893.04(1)(e) and 500.15, Florida Statutes, by improperly dispensing scheduled controlled substances, thereby violating Section

458.331 (1)(h) by failing to perform a statutory or legal obligation placed on a licensed physician; [Count II] violated Section 458.331C1)(q) by prescribing, or dispensing, or otherwise preparing a legend drug other than in the course of the physician's professional practice; [Count III] violated Section 458.331 ()1), ()1) by making deceptive, untrue, or fraudulent representations or employing a trick or scheme in the practice of medicine which fails to conform to the generally prevailing standards of treatment in the medical community; [Count IV] violated Section 458.331 (1)(t) by gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment required by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances; and [Count V] violated Section 458.331(1) (g) and

(w) by aiding, assisting, procuring or otherwise advising unlicensed persons to practice medicine and delegating professional responsibilities to a person whom he knew or had reason to know was not qualified by training, experience or licensure to perform them.

Respondent's motion to dismiss was granted as to Count I because Sections

1. (1)(e) and 500.15 do not, by their terms, place a statutory obligation upon licensed physicians; and was granted as to that portion of Count III alleging that respondent violated Section 458.331 (1)(1), by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick in the practice of medicine, since the facts alleged were legally insufficient to establish such a violation. Although granted leave to amend its complaint, the Department declined to do so.

   
   

   At hearing, the Department called Julie E, Miller, Geraldine B. Johnson, Deborah R. Hullender, and John Danson as witnesses and offered Petitioner's Exhibit Nos. 110 1/ into evidence, Exhibit Nos. 1-6, 8 and 10 were received; ruling on Exhibit Nos, 7 and 9 was reserved. Respondent testified in his own behalf and called Bernard J. Langston as his witness. Respondent's Exhibit Nos. 1-5 were received into evidence.

   
   

   Based on the evidence presented at hearing, the following facts are determined:

   
   

   FINDINGS OF FACT

   
   

   I.

   
   

   The Respondent

   
   

   1. At all times pertinent to the charges, respondent held medical license No. ME 0025317 authorizing him to practice medicine and surgery in Florida. (P- 1)

      
      

   2. Respondent, a 52-year-old physician, attended medical school at the Montpellier University School of Medicine from 1961 to 1968, completed a one- year rotating clinical internship in Canada, then obtained his medical degree from Montpellier in 1971. He worked for the next two years as a medical assistant at University Hospital in Jacksonville, Florida, then worked one year as an assistant under the supervision of Dr. Sam Lamb, a Jacksonville physician. In 1972, respondent passed the ECFMG (Educational Council for Foreign Medical

      Graduates) qualifying examination, an examination foreign medical graduates must pass before becoming licensed in the United States. In 1974, he took the Florida Board of Medical Examiners' licensing examination, failed it, then took it again in 1975 and passed it. He is a member of the American Medical Association, Florida Medical Association, Duval Medical Society, and American Society of Bariatric Physicians. (Testimony of respondent; P-5)

      
      

   3. After receiving his Florida medical license in 1975, respondent opened an office for the general practice of medicine in Jacksonville, Florida. In December, 1976, he purchased the practice of Dr. Lyman J. Bolin, a recently deceased physician. (Testimony of respondent)

      
      

   4. For thirteen years, Dr. Bolin had specialized in bariatrics, 2/ the treatment of patients for obesity. When respondent purchased Dr. Bolin's practice, he received files of approximately 3,000 patients. Two of Dr. Bolin's physician trained medical assistants were retained by respondent after he observed their performance and confirmed their competence. He also adopted and continued to follow Dr. Bolin's customary office practice, as it was explained to him by Dr. Bolin's assistants. (Testimony of respondent; P-5)

      
      

   5. After taking over Dr. Bolin's practice in 1976, 25 percent of respondent's practice consisted of bariatrics, 75 percent was general practice. Gradually, the number of bariatric (weight-control) patients increased so that now they represent approximately 75 percent of his practice. (Testimony of respondent)

      
      

   6. Between October 17, 1979, and September 30, 1981, respondent purchased at least 1,001,000 tablets of phentermine and 1,010,300 tablets of phendimetrazine, both of which are scheduled controlled substances listed in Chapter 893, Florida Statutes (1981). He dispensed these drugs, as well as other controlled substances, to his patients for the purpose of treating obesity. The Department charges that respondent violated Chapter 458, Florida Statutes, by dispensing these drugs to patients without first performing an adequate medical examination. (Testimony of respondent; P-5)

      
      

      II.

      
      

      Respondent's Office Procedure

      
      

   7. When he took over Dr. Bolin's practice, respondent adopted an office procedure for treating new patients and follow-up visits, a procedure which he believed had been followed by Dr. Bolin. A new patient entering the office would be given a questionnaire and patient history form to complete. A medical assistant would take the patient's weight, blood pressure and pulse, then administer an EKG (electrocardiogram) and perform a hemoglobin (blood) test. The patient would then be taken to an examination room where respondent would review the patient's history, listen to the heart, lungs, examine the eyes with

      a light, and examine the abdomen. He would then tell the patient about food and cooking, how to make food tasty without large quantities of calories, the importance of dieting, and the importance of calories. The patient would be given paperback books and pamphlets on food preparation and calorie counting.

      Respondent would then explain what drugs the patient would be receiving, when they should be taken, and possible side-effects. He would then direct a medical assistant to dispense specific drugs to be taken, on a daily basis, during a four-week period. (Testimony of respondent)

   8. Medication dispensed to weight-control patients included Thyroid Extract (one grain daily), to enhance weight loss by increasing the metabolic rate; Phenobarbitol (a scheduled controlled substance), to help patients having difficulty sleeping because of the effect of other weight-control medications; diuretics, to rid the body of water buildup; and phentermine and phendimetrazine, to suppress the appetite. Phendimetrazine and phentermine should not be used by patients on tricyclic drugs or suffering from tachycardia, cardiovascular disease or depression. He also dispensed placebos, pills which had no direct weight-control or medical effects. (Testimony of respondent; P-5)

      
      

   9. Under respondent's standard office procedure, weight-control patients who returned for follow-up visits after exhausting their drug supply were taken to an examination room where medical assistants took their weight and blood pressure. 3/ Changes in these measurements were discussed with the patients and noted on their medical charts. If the medical assistants decided that respondent should see a patient, they would make a notation on the patient's chart. In most cases this notation was not made and follow-up patients were not seen or examined by respondent. After their weight and blood pressure were taken, most patients were told to wait in the reception room. Respondent would then review the patient's chart and decide whether to refill the prescription. If he decided a refill was appropriate, he would instruct a medical assistant to dispense another four-week supply of specified drugs. The patient, who was waiting in the reception room, would then be handed the drugs by a receptionist. Instructions on how to take the medications were affixed to the drug container. The usual charge for these visits, including drugs, was approximately $30.00. (Testimony of respondent, Hullender, Miller, Johnson; P-5)

      
      

   10. The Department relies on respondent's tea of three patients -- Deborah Hullender, Julia Miller and Geraldine Johnson -- in support of its charge that respondent engaged in a continuous course of conduct of dispensing medication, including controlled substances, without performing adequate medical examinations upon his patients. (Second Amended Administrative Complaint, Count I)

       
       

       1. Deborah Hullender. Ms. Hullender first visited Dr. Bolin, respondent's predecessor, as a weight control patient in 1976. On her initial visit, Dr. Bolin gave her a complete physical examination (.although omitting a blood test), then dispensed weight-control drugs. After Dr. Bolin's death, she became respondent's patient. Between 19-76-and 1981, he dispensed weight control drugs to her from one to four times a year. During her. visits to his office, she never saw him. Neither did she receive another physical examination. Typically, on arriving at his office, she would be weighed and her blood pressure would be taken by a medical assistant. She would then be given weight-control drugs. (She does not recall ever being asked whether she had experienced side-effects from the drugs.) She paid $20.00 a visit, which included the drugs. Until September, 178, respondent dispensed amphetamines to her. After that dated he dispensed phentermine, phendimetrazin, diuretic tablets, thyroid tablets, and placebos, to her, (Testimony of Hullender, respondent; P-5, P-8, P-10)

          
          

       2. Julia E. Miller. On May 11, 1979, Ms. Miller, a law enforcement officer with the Jacksonville Sheriff's Office, entered respondent's medical office in an undercover capacity. Her purpose was to obtain scheduled controlled substances for weight control. (She had a history of obesity and was on medication for high blood pressure.) Approximately 20 people were in the waiting room. Posing as a patient, she gave the receptionist her name and told her, falsely, that she had an appointment. When the receptionist. replied that she

          had neither a record of the appointment nor a patient file, Ms. Miller became indignant and--in an attempt to intimidate the receptionist--asked, "Does this happen often?" (Tr. 54) She also told the receptioniste that she had been coming there a year, that she had not been there in a couple of months, and that she had come now because she was gaining weight and [had] run out of pills." (Tr. 39) The receptionist asked her to put her name, address and phone number on a blank medical history form. (Subsequently, someone placed the notation, "misplaced file," on this incomplete form A few minutes later, Ms. Miller was escorted to another room where a medical assistant took her weight and blood pressure. She asked the assistant if she could have some stronger pills because the earlier pills had not had the desired weight-loss-effect. The assistants-- without asking about any possible side-effects from the unidentified pills she had been taking--replied in the affirmative. Ms. Miller returned to the waiting room. When she was called to the receptionist's window, she asked if she could have a two-month supply of pills. The receptionist agreed and gave her a two- month supply of diet pills, including two grains of thyroid daily, one diuretic every other day, and two tablets) of phentermine daily. Ms. Miller was charged

          $40.00 for the visit, including the drugs. (Testimony of receptionist, Miller; P-2)

          
          

   11. Respondent denies any knowledge of this incident. He denies having seen the patient history form completed by Ms. Miller, and denies having authorized the dispensing of drugs. He asserts that, without more information than was on the history form, he would not have authorized the dispensing of drugs. (Tr. 258)

       
       

   12. Respondent's denial is accepted as persuasive. The Department has not established, by the requisite quantum of evidence, 4/ that he authorized the dispensing of the four-week supply of drugs to Ms. Miller after reviewing an incomplete patient history form. It has not been proven that respondent saw Ms. Miller's incomplete history form, made any notation on it, or orally authorized the dispensing of drugs to her.

       
       

   13. The undisputed fact that the receptionist gave Ms. Miller the requested weight-control drugs does not -- standing alone -- establish that respondent authorized, or even knew of the transaction. This is especially so when, as here, the transaction deviated from his normal practice in two significant respects. First, respondent ordinarily had the patient's full medical chart before him when he authorized the dispensing of weight-control drugs; here, he had only a partially completed patient history form. Second, Ms. Miller was given a two-month supply of drugs -- respondent ordinarily authorizes only a one- month supply. (Testimony of respondent, Miller; P-2, P- 3, P-5)

       
       

       (c) Geraldine Johnson. On August 11, 1982, Ms. Johnson, a Department investigator, telephoned respondent's office, stated that her name was Johnson, and asked when she had last visited. (Her purpose was to determine whether respondent had a patient named "Johnson," whose identity she could assume.) The person answering the phone asked if her name was "Betty Johnson." Investigator Johnson, who quickly decided to assume that name, acknowledged that she was Betty Johnson and asked what her weight had been on her last visit. (Her purpose was to see if her weight and the weight of the real "Betty Johnson" were similar.)

       
       

   14. She was told that Betty Johnson's last weight entry (in March, 1982) was 172 pounds. (Although investigator Johnson believed her own weight to be

       160 pounds, her subsequent visit to respondent's office revealed that she

       weighed 173-1/2 pounds.) Investigator Johnson then made an appointment, under the name of Betty Johnson, for later in the day.

       
       

   15. On arriving at respondent's medical office and identifying herself as Betty Johnson, investigator Johnson was escorted to a back room where a medical assistant took her weight and blood pressure, and noted them on Betty Johnson's medical chart. The assistant mentioned to investigator Johnson that she had lost some weight but that her blood pressure was a little high, then told her to return to the reception room.

       
       

   16. Investigator Johnson was not examined by respondent, although she saw him on the premises. The medical assistant did not examine her heart or lungs, take her pulse, or question her about her medical history.

       
       

   17. After a short time in the waiting room, the receptionist handed her a container of pills, including 28 thyroid tablets (blue), 29 phendimetrazine tablets (yellow), 28 phendimetrazin tablets (gray), 28 phendimetrazin tablets (pink and white), 27 phentermine tablets (.green and white), and 25 phentermine tablets Red and black). Investigator Johnson then paid the receptionist $20.00.

       
       

   18. Betty Johnson's medical record indicates that Dr. Bolin gave her a physical examination when she first came under his care. for weight control in June, 1975. She made frequent follow-up visits to his office: in 1975, five visits; in 1976, three visits. Respondent then took over Dr. Bolin's practice. In 1977, she made seven visits; in 1978, six visits; in 1979, one visit; in 1980, two visits; and in 1981, three visits. Respondent saw her but once -- in 1977 -- when he listened to her heart. (Testimony of respondent, Johnson; P-3, P-5)

       
       

       III.

       
       

       Respondent's Failure to Practice Medicine in Accordance with

       Prevailing and Acceptable Standards

       
       

   19. Guy T. Selander, M.D., and Samuel J. Alford, M.D., are physicians who have practiced family medicine or general practice in Jacksonville, Florida, for approximately 20 and 30 years, respectively. They are aware of the kind of physical examination which, under prevailing and acceptable community medical standards, is required before physician prescribes phentermine or phendimetrazine to a patient for weight loss or obesity. control. They are certified in family practice, a specialty which includes treating for obesity, and are accepted as reasonably prudent similar physicians within the meaning of Section 458.331(1)(t), Florida Statutes (1981). ($-7, P-.9)

       
       

   20. Their testimony establishes that minimal acceptable and prevailing community medical standards require that a physical examination be administered to a new patient before prescribing phentermine or phendimetrazine. This examination consists of taking a detailed medical history, and checking the patient's heart (including an EKG), lungs, and hemoglobin. Respondent's office procedure meets this community medical standard, (Testimony of respondent; P-7, P-9)

       
       

   21. The evidence does establish, however, that there were two instances where respondent violated both his office procedure and the prevailing community medical standard. Between 1977 and 1981, he dispensed to Debbie Hullender and Betty Johnson--both under his continuing care for obesity control--phentermine

       and phendimetrazine, without first having given them physical examinations. (Testimony of Hullender, respondent; P-3)

       
       

   22. The testimony of Doctors Selander and Alford also establishes the minimal acceptable and prevailing community medical standard concerning the type of examination which must be performed on a follow-up patient prior to prescribing or dispensing phentermine or phendimetrazine for weight-control. This standard requires the physician to see the patient at intervals not exceeding 60 days. During those visits, the patient's weight, pulse, and blood pressure are taken and the physician questions-the patient to discern any possible side-effects from drugs prescribed earlier. (P-7, P-9)

       
       

   23. Respondent--both in his routine office procedure and in the specific care he gave Debbie Hullender and Betty Johnson --violated this minimal acceptable and prevailing community medical standard. (Testimony of respondent, Hullender, Johnson, P-7, P-9)

       
       

   24. Respondent's testimony that his medical care complied with the minimal prevailing and acceptable community medical standards is rejected as self- serving and uncorroborated by independent and substantial evidence. The testimony of a pharmacist that unnamed physicians have sometimes authorized the refill of a phentermine or phendimetrazine prescription--without seeing the patient--establishes only that there may be one or more other physicians in the Jacksonville area who have violated the prevailing and acceptable community medical standards. (Testimony of respondent, Langston)

       
       

       CONCLUSIONS OF LAW

       
       

   25. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1) , Fla.Stat. (1981)

       
       

   26. License revocation proceedings, such as this, are penal in nature.

       The prosecuting agency must prove its charges by clear and convincing evidence-- by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966); Walker v. State, 322 So.2d 612 (Fla. 2d DCA 1975); Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). As the court stated in Bowling, supra:

       
       

       [T]he violation of a penal statute is not to be found on loose inter-. pretations and problematic evidence, but the violation must in all its

       implications be shown by evidence which weighs as "substantially" on a scale suitable for evidence as the penalty does on the scale of penalties. In other words, in a world ensnarled by false assumptions and hasty judgments, let-the prosecutor's proof be as serious-minded as the intended penalty is serious.

       
       

   27. Section 458.331(4)., Florida Statutes (;1981)., authorizes the Board of Medical Examiners to discipline a licensed physician for:

       (g) - Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a- rule of the department or the board.

       (4) - 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.

       (q)- 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 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 cir- cumstances. The board shall give great weight

       to the provisions of s. 768.45 when enforcing this paragraph.

       (w) - Delegating professional responsibilities to a person when the licensee delegating such respon- sibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.

       
       

   28. The evidence in this case convincingly establishes that respondent violated Section 458.331 (1)(t). He failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances by (1) routinely dispensing phentermine and phendimetrazine, scheduled controlled substances pursuant to Chapter 893, Florida Statutes, without first questioning his patients to determine if there were any side-effects from earlier dosages and (.2). dispensing phentermine and phendimetrazine to Ms. Hullender and Ms. Johnson without having given them a physical examination.

       
       

   29. Respondent points out that federal drug laws allow physicians to prescribe phentermine and phendimetrazine for five (automatic) refills within six months, that no further contact with the prescribing physician is required. He contends that he was more prudent by requiring monthly visits, and that the weight and blood pressure of his patients were taken before giving monthly refills. But federal drug laws do not establish a community standard of acceptable medical care under Section 458.331 (1)(t). Physicians may comply with federal laws yet, as shown here, violate a prevailing and acceptable community standard of medical care.

   30. Respondent also opposes the admission of Petitioner's Exhibit Nos. 7 and 9, contending that respondent is a specialist in bariatrics and that Drs. Alford and Selander are not. Thus, he argues, they are not "reasonably prudent similar health care providers" within the meaning of Sections 458.331(1)(.t) and 768.45, and cannot establish a standard of care which applies to him. This contention is rejected, Petitioner's Exhibit Nos. 7 and 9 are received into evidence because it is concluded that Drs. Alford and Selander possess sufficient training, experience, and knowledge to provide expert testimony as to the acceptable standard of care in this case. See, Section 768.45(2)(c)2, Florida Statutes (1981),

       
       

   31. The evidence in this case does not, however, establish that respondent committed any of the other violations charged. Evidence presented to support the other charges is insubstantial, problematic, contradictory and legally insufficient.

       
       

   32. Penalty. The Department has shown no prior infractions by respondent, Neither has it shown that his misconduct was malicious or intentional. He believed that his office procedure was acceptable and that it conformed to the prior 13-year practice of Dr. Bolin, his predecessor. There is no evidence that he knew that his office procedure violated a minimum prevailing and acceptable standard of medical care.

       
       

   33. Under such circumstances, an appropriate penalty would be to impose an administrative fine of $1,000 and place him on probation for one year, with the condition that he attend and complete a continuing education course, approved by the Board of Medical Examiners, covering the prescribing of drugs, including controlled substances, to new and follow-up patients for the purpose of treating obesity. See, Section 458.331(2)(d), (f), Fla.Stat. (1981).

       
       

   34. The parties' proposed findings of fact and conclusions of law are adopted to the extent they are incorporated herein. Otherwise, they are rejected as unsupported by the necessary quantum of evidence, unnecessary to resolution of the issues presented, or contrary to law.

Based on the foregoing, it is RECOMMENDED:

That respondent be fined $1,000.00 and placed on probation for one year, with the condition that he attend and complete an approved continuing education course covering the prescribing of drugs, including controlled substances, to new and follow-up patients for the treatment of obesity.

DONE and RECOMMENDED this 2nd day of February, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 2nd day of February, 1983.

ENDNOTES

1/ Petitioner's and Respondent's exhibits will he referred to as "P- ." and "R-

," respectively. Pages in the transcript of hearing will be referred to as "Tr-

2/ Bariatrics is a specialty which is not recognized by the American Medical Association. There is, however, an organization of bariatricians known as "The American Society of Bariatric Physicians," of which respondent is a general member. There are no requirements for general membership. Seminars for members are held once a year in Las Vegas. (P-5)

3/ Respondent testified that his medical assistants would normally take the patient's pulse and ask about possible side-effects or reactions to the drugs. This was not, in fact, the case. (Testimony of Hullender, Miller, and Johnson; P-3, P-.8.)

4/ See, Bowling vs. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981), for the standard of proof applicable to license revocation proceedings.

COPIES FURNISHED:

Joseph W. Lawrence, II Chief Attorney

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Albert Datz, Esquire

Datz, Jacobson and Lembcke, P.A. 2902 Independent Square

Jacksonville, Florida 32202

Fred Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS,

Petitioner,

vs. CASE NO. 82-1062

DAVID MILTON SCHEININGER, M.D.,

Licensed Number: 25317,

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This matter came before the Board of Medical Examiners (Board

hereinafter) pursuant to Section 120.57(1)(b)9., Florida Statutes, on April9, 1983, in Sarasota, Florida, for the purpose of considering the Recommended Order (a copy of which is attached) issued by the hearing officer and the exceptions thereto filed in the above-styled matter. The Petitioner was represented by Joseph W. Lawrence, II, Esquire The Respondent was represented by Albert Datz, Esquire After review of the complete record, the Exceptions to Recommended Order filed by the parties, the argument of the parties, and being otherwise fully advised in the premises, the Board makes the following findings and conclusions. . .

FINDINGS OF FACT

1. The hearing officer's findings of fact are approved and adopted in toto and are incorporated here by reference. Respondent's exceptions to the hearing officer's factual findings are rejected. See Department of Professional Regulation v. Wagner, 405 So.2d 471 (Fla. 1st DCA 1981).

   
   

2. There is competent, substantial evidence to support the Board's findings of fact. .

   
   

   CONCLUSIONS OF LAW

   
   

3. Paragraphs Nos. 1, 2, 3, 4 and 7 of the hearing officer's conclusions of law are approved and adopted in toto and are incorporated herein by reference.

   
   

4. Petitioner's exceptions to paragraphs Nos. 5 and 6 of the hearing officer's conclusions of law are accepted. Paragraph 5 of the hearing officer's conclusions of law is rejected only to the extent that it concludes that the

   Respondent did not violate Section 458.331(1)(q), Florida Statutes, as charged in the Administrative Complaint. Section 458.331(1)(q), Florida Statutes, creates a clear presumption that dispensing inappropriately or in excessive or inappropriate quantities is not in the patient's best interest and not in the course of the physician's professional practice The hearing officer's factual findings clearly demonstrate that the amount, type and frequency of Respondent's dispensing of Scheduled Controlled Substances to Ms. Hullender, Miller and Johnson was other than in the course of his professional practice. Paragraph 6 of the recommended order which suggests a penalty of one year probation is rejected as being totally inappropriate in view of the severe violations found to have occurred.

   
   

5. Respondent's exception to the hearing officer's conclusions of law contained in Paragraph 1 of his exceptions is rejected as there is competent, substantial evidence to support the hearing Officer's conclusions that Respondent violated Section 458.331(1)(t) Florida Statutes, as charged in the Administrative Complaint.

   
   

6. Respondent's exception to the hearing officer's conclusion that Drs. Selander and Alford are "reasonably prudent similar health care providers contained in paragraph 5 of the Respondent's exceptions is rejected for the reasons expressed by the hearing officer in paragraph 4 of his recommended order.

   
   

7. Respondent's exception to the recommended penalty as being too harsh is rejected for the reasons expressed in paragraph 2 above.

   
   

8. The hearing officer's recommendation is rejected for the reasons expressed in paragraph 2 above.

WHEREFORE, it is ORDERED AND ADJUDGED that David Milton Scheininger, M.D., is guilty of violating Sections 458.331(1)(q), and (t), Florida Statutes, as charged in the Administrative Complaint. The Florida medical license of David Milton Scheininger, M.D., is suspended until such time as he can demonstrate to the satisfaction of the Board that he can practice medicine with reasonable skill and safety. This Order becomes effective upon filing.

DONE AND ORDERED this 23rd day of June, 1983.

BOARD OF MEDICAL EXAMINERS

DOROTHY FAIRCLOTH

cc: All Counsel of Record.

David Milton Scheininger, M.D. 6237 Merrill Road

Jacksonville, Florida 32211

Docket for Case No: 82-001062

Orders for Case No: 82-001062