STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Medical ) Examiners, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2176

)

WALTER L. HURT, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

The Division of Administrative Hearings, by its duly designated Hearing Officer, SHARYN L. SMITH, held a formal hearing in this case on November 17, 1982, in Delray Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Michael J. Cohen, Esquire

Suite 101 Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

For Respondent: No appearance was entered

The issue for determination in this case is whether the Respondent Walter

L. Hurt's license to practice medicine should be revoked, suspended or other disciplinary action imposed based on his allegedly prescribing, dispensing or administering controlled substances other than in the course of his professional practice and engaging in 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.

At the final hearing, John Galioto, Earnest Schmidt, Cathy Schreiber, Linda Larsen, Stephen Noel, Edna Noel, Nancy Hurt and Dr. Dick L. Van Eldik testified for the Petitioner Department of Professional Regulation. Petitioner's Exhibits

1 - 6 and 10(a) - (e) were offered and admitted into evidence. Ruling was reserved on Petitioner's Exhibits 7, 8 and 9. 1/

On November 22, 1982, the Respondent Hurt forwarded to the Division of Administrative Hearings, a document refuting certain of the testimony at the final hearing. This document has been considered by the Hearing Officer and is hereby made part of the record as Hearing Officer's Exhibit 1.

FINDINGS OF FACT

1. The Respondent Walter L. Hurt is a licensed medical doctor having been issued license number ME 0007892. The last known address of the Respondent Hurt is 9871 Indigo Street, Perrine, Florida 33157.

   
   

2. The Respondent's medical practice during the period set forth in the Administrative Complaint dealt primarily with weight control.

   
   

3. Between approximately February 22, 1980 and August 11, 1981, the Respondent Hurt prescribed to Ms. Gloria Litton the following schedule II controlled substances as defined by Chapter 893, Florida Statutes:

   
   

   DATE DRUG AMOUNT

   
   

   2/22/80	Sodium Amytal, 50	mg.	30		tablets
   2/7/81	Sodium Amytal, 50	mg.	30		tablets
   4/6/81	Sodium Amytal, 50	mg.	30		tablets
   5/7/81	Sodium Amytal, 50	mg.	30		tablets
   6/11/81	Sodium Amytal, 50	mg.	30		tablets
   7/12/81	Sodium Amytal, 50	mg.	30		tablets
   8/11/81	Sodium Amytal, 50	mg.	30		tablets
   12/22/80	Dexedrine Sulfate,	5	mg.	30	tablets
   2/26/81	Dexedrine Sulfate,	5	mg.	30	tablets
   4/6/81	Dexedrine Sulfate,	5	mg.	30	tablets
   5/7/81	Dexedrine Sulfate,	5	mg.	30	tablets
   6/11/81	Dexedrine Sulfate,	5	mg.	30	tablets
   7/12/81	Dexedrine Sulfate,	5	mg.	30	tablets
   8/11/81	Dexedrine Sulfate,	5	mg.	30	tablets
   1/14/80	Eskatrol Spans, 15	mg.		30	tablets
   No Date	Tenuate Tabs, 25	mg.		60	tablets

   
   

4. These drugs prescribed to Ms. Litton were excessive and inappropriate drugs for the purpose of weight loss.

   
   

5. Between October 1, 1980 and December 1, 1980, the Respondent Hurt prescribed 90 tablets of Dexedrine, an amphetamine or sympathomimetic amine drug or compound designated as a schedule II controlled substance pursuant to Chapter 893, Florida Statutes to Ms. Litton for obesity.

   
   

6. The drugs prescribed by the Respondent Hurt for Ms. Litton were ineffectual in treating her weight problem. In prescribing the type and quantity of controlled drugs for Ms. Litton, the Respondent failed to practice medicine with that level of care, skill and treatment required by a reasonably prudent similar physician confronted with the same conditions and circumstances. Moreover, the drugs were prescribed for a purpose outside the scope of Section 458.331(1)(cc), Florida Statutes, which prohibits prescribing an amphetamine or sympathomimetic amine drug except for certain enumerated purposes which do not include weight control.

   
   

7. On January 29, 1981, the Respondent Hurt issued to Ms. Madeline Lyons a prescription for 30 tablets of Eskatrol Spansules, 15 mg. Further, on July 23, 1981, the Respondent Hurt issued a prescription to Ms. Lyons for 100 tablets of Fastin. These medications are amphetamines or sympathomimetic amine drugs or

   compounds designated as schedule II controlled substances pursuant to Chapter 893, Florida Statutes, and were given to Ms. Lyons by the Respondent for weight control.

   
   

8. In prescribing these schedule II drugs for purposes of weight control, the Respondent failed to practice medicine with the degree of care, skill and treatment which is recognized as acceptable by a reasonably prudent similar physician confronted with similar conditions and circumstances. Moreover, these drugs were prescribed to Ms. Lyons for a purpose outside the scope of Section 458.331(1)(cc), Florida Statutes, which prohibits prescribing amphetamines or sympathomimetic amine drugs except for certain enumerated purposes which do not include weight control.

   
   

9. Between approximately June 16, 1980 and October 1, 1981, the Respondent Hurt issued to Mr. Stephen Noel prescriptions for the following controlled substances as defined by Chapter 893, Florida Statutes.

   
   

   DATE DRUG AMOUNT

   
   

   6/16/80	Preludin	Endurets, 75 mg.	100	tablets
   8/2/80	Preludin	Endurets, 75 mg.	50	tablets
   8/19/80	Preludin	Endurets, 75 mg.	100	tablets
   8/23/80	Preludin	Endurets, 75 mg.	45	tablets
   9/5/80	Preludin	Endurets, 75 mg.	50	tablets
   9/11/80	Preludin	Endurets, 75 mg.	60	tablets
   9/22/80	Preludin	Endurets, 75 mg.	60	tablets
   10/10/80	Preludin	Endurets, 75 mg.	75	tablets
   9/3/81	Didrex		100	tablets
   9/17/81	Didrex		100	tablets
   9/25/81	Didrex		100	tablets
   10/1/81	Didrex		100	tablets

   
   

   The prescribing of these controlled substances by the Respondent Hurt to Mr. Noel was excessive and inappropriate for purposes of weight control. In prescribing excessive and inappropriate drugs, the Respondent engaged in gross or repeated malpractice or failed to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

   
   

10. Between approximately July 5, 1980 and October 1, 1981, the Respondent Hurt issued to Mrs. Edna Noel prescriptions for the following controlled substances as defined by Chapter 893, Florida Statutes:

    
    

    DATE DRUG AMOUNT

    
    

    7/5/80	Preludin	Endurets,	75	mg.	15	tablets
    7/7/80	Preludin	Endurets,	75	mg.	60	tablets
    7/10/80	Preludin	Endurets,	75	mg.	60	tablets
    7/29/80	Preludin	Endurets,	75	mg.	100	tablets
    8/19/80	Preludin	Endurets,	75	mg.	60	tablets
    8/29/80	Preludin	Endurets,	75	mg.	60	tablets
    9/8/80	Preludin	Endurets,	75	mg.	60	tablets
    9/25/80	Preludin	Endurets,	75	mg.	60	tablets
    10/4/80	Preludin	Endurets,	75	mg.	60	tablets
    10/14/80	Preludin	Endurets,	75	mg.	60	tablets

    9/8/81	Didrex	100 tablets
    9/12/81	Didrex	100 tablets
    9/21/81	Didrex	100 tablets
    9/28/81	Didrex	100 tablets
    10/5/81	Didrex	100 tablets

    
    

11. The prescribing of these controlled substances to Mrs. Edna Noel for purposes of weight control was excessive and inappropriate.

    
    

12. In prescribing excessive and inappropriate controlled medications, the Respondent Hurt failed to practice medicine with the degree of care, skill and treatment which is recognized as acceptable by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.

    
    

13. The prescriptions issued by the Respondent to Mrs. Edna Noel on October 4 and 14, 1980, for 120 tablets of Preludin Endurets, 75 mg. were for weight control. Preludins are amphetamines or sympathomimetic amine drug or compounds designated as a schedule II controlled substance pursuant to Chapter 893, Florida Statutes. These schedule II controlled substances were prescribed for Mrs. Noel for a purpose outside the scope of Section 458.331(1)(cc), Florida Statutes which prohibits prescribing such drugs except for certain statutorily enumerated purposes.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. See Section 120.57(1), Florida Statutes.

    
    

15. The Administrative Complaint charges the Respondent with violating Sections 458.331(1)(q), 458.331(1)(t) and 458.331(1)(cc), Florida Statutes (1981), which subjects a physician to disciplinary action for:

    
    

    (q) Prescribing, dispensing, admini- stering, mixing, or otherwise preparing a legend drug, including any controlled sub- stance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dis- pensing, administering, mixing, or other- wise 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 simi- lar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the pro- visions of s. 768.45 when enforcing this paragraph.

    (cc) Prescribing, ordering, dispensing, administering, supplying, selling, or giving any drug which is an amphetamine or sympatho- mimetic amine drug or a compound designated as a Schedule II controlled substance, pur- suant to chapter 893, to or for any person except for:

    1. The treatment of narcolepsy; hyper- kinesis; behavioral syndrome in children characterized by the developmentally inappro- priate symptoms of moderate to severe dis- tractability, short attention span, hyper- activity, emotional lability, and impulsivity; or drug-induced brain dysfunction; or

    2. The differential diagnostic psychiatric evaluation of depression or the treatment of depression shown to be refractory to other therapeutic modali- ties; or

    3. The clinical investigation of the effects of such drugs or compounds when

    an investigative protocol therefor is submitted to, reviewed, and approved by the board before such investigation is begun.

    
    

16. When the Board finds a physician guilty of any of the above, it may enter an order imposing a broad range of penalties including suspension or revocation of a license. See Section 458.331(2)(a)-(f), Florida Statutes (1981).

    
    

17. In the instant case, the uncontroverted testimony and documentary evidence establishes: (1) that the Respondent prescribed excessive and inappropriate controlled substances in violation of Section 458.331(1)(t), Florida Statutes (1981) for Ms. Litton, Mr. Stephen Noel and Mrs. Edna Noel, which as a matter of law, creates a presumption that prescriptions were not issued in the course of the Respondent's professional practice; (2) that the Respondent in prescribing schedule II controlled substances for Ms. Litton, Ms. Lyons, Mrs. Edna Noel and Mr. Stephen Noel, 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, in violation of Section 458.331(1)(q), Florida Statutes (1981); and (3) that the Respondent violated Section 458.331(1)(cc), Florida Statutes (1981), by prescribing an amphetamine or sympathomimetic amine drug for Ms. Litton, Ms. Lyons, and Mrs. Noel, or compound designated as a schedule II controlled substance for a purpose outside the authorized scope of Section 458.331(1)(cc)(1)-(3), Florida Statutes (1981).

    
    

18. The violations alleged and proven in this case are extremely serious and demonstrate that the Respondent practiced medicine in a manner dangerous to his patients and the public.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Board of Medical Examiners issue a Final Order finding the Respondent guilty of violating Sections 458.331(1)(q), (t) and (cc), Florida Statutes (1981), and revoking his license.

DONE and ORDERED this 28th day of December, 1982, in Tallahassee, Florida.

SHARYN L. SMITH, 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 28th day of December, 1982.

ENDNOTE

1/ Petitioner's Exhibits 7 and 8 which involve prescriptions written to Arthur Schreiber by the Respondent are hereby excluded from evidence since the Administrative Complaint does not charge the Respondent with any prohibited acts relating to this particular individual. Petitioner's Exhibit 9, an electronic recording of a telephone call between Linda Larsen, a sheriff's deputy, and the Respondent obtained without an intercept warrant, is hereby admitted. Pursuant to Section 934.03(2)(c), Florida Statutes, it is lawful for a law enforcement officer to intercept a wire or oral communication when such person is a party to the communication or one of the parties has given consent and the purpose of the interception is to obtain evidence of a criminal act. At the time of the telephone call by Deputy Larsen to the Respondent's medical office, the Respondent was the subject of an ongoing criminal investigation by the sheriff's office based on information received from a local pharmacist. Under such circumstances the intercepted conversation did not violate Section 934.03, Florida Statutes and its admission in an administrative proceeding is not prohibited by Section 934.06, Florida Statutes. See State v. Steinbrecher, 389 So.2d 1043 (Fla. 3d DCA 1980) and compare, State v. Tsavaris, 394 So.2d 418 (Fla. 1981) and State v. Sarmiento, 397 So.2d 643 (Fla. 1981).

COPIES FURNISHED:

Michael J. Cohen, Esquire Suite 101 Kristin Building

2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Walter L. Hurt, M.D.

126 Northeast Sixth Avenue

Delray Beach, Florida 33444 Samuel R. Shorstein

Secretary

Dorothy Faircloth, Executive Department of Professional Director Regulation

Florida Board of Medical 130 North Monroe Street Examiners Tallahassee, Florida 32301

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002176

Orders for Case No: 82-002176