STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-2381

)

JAIME BENAVIDES, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on September 19, 1983, in Miami, Florida.

APPEARANCES

For Petitioner: Stephen J. Cohen, Esquire

Post Office Box 14723

Fort Lauderdale, Florida 33302

For Respondent: William O. Solms, Jr., Esquire

19 West Flagler Street

10th Floor, Biscayne Building Miami, Florida 33130

BACKGROUND

This case arose when Petitioner, Department of Professional Regulation, Board of Medical Examiners, filed an administrative complaint on April 7, 1982, against Respondent, Jaime Benavides, a licensed medical doctor, alleging that Benavides had violated various provisions within Chapter 458 Florida Statutes, for which disciplinary action against his medical license should be taken. In brief, Petitioner alleged that Respondent had prescribed excessive and inappropriate amounts of controlled substances to three patients at various times during 1975 through 1979, which conduct violated a number of statutory provisions.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1) Florida Statutes. The matter was referred by Petitioner to the Division of Administrative Hearings on June 11, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. An election of rights executed by Respondent was forwarded on September 22, 1983. Thereafter, by notice of hearing issued the same date, a final hearing was scheduled for January 13 and 14, 1983, in Miami, Florida. At the request of the parties, the matter was continued to April 5 and 6, 1983, at the same location. On March 25, 1983, Petitioner filed a motion for continuance alleging that a proposed

settlement had been reached and requesting the matter be held in abeyance pending submission of the settlement to the Board. The motion was granted by order dated March 28, 1983. Petitioner thereafter advised the undersigned that the settlement had been rejected by the Board and that the case should be reset for final hearing. By notice of hearing dated June 15, 1983, the final hearing was scheduled for September 19, 1983, in Miami, Florida.

At the final hearing, Petitioner offered Petitioner's Exhibits 1 through 4, which were received in evidence. Those exhibits are all or portions of depositions of Robert Greene, a former patient of Respondent; John J. Morgan, a retired Department investigator; Dr. John Mahoney, an expert; and Respondent.

Respondent testified on his own behalf. Petitioner also dismissed as a part of Count VII a large number of prescriptions allegedly prescribed by Respondent to a patient Aulting. The corrected list of drugs prescribed by Respondent is reflected on Exhibit 4, attached to Mahoney's deposition.

The transcript of hearing was filed on October 5, 1983. Proposed findings of fact and conclusions of law were filed by Petitioner and Respondent on October 11 and 19, 1983, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.

Petitioner presented no evidence regarding Counts IV, V and VI at the final hearing and agrees these portions of the complaint should be dismissed.

The issue herein is whether Respondent should be disciplined for the remaining alleged violations set forth in Counts I through III and VII through IX of the administrative complaint.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, Respondent, Jaime Benavides, held medical doctor License No. 10189 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. He currently resides at 1201 South Main Street, Belle Glade, Florida. Respondent is a graduate of the University of Pennsylvania Medical School and entered the U.S. Navy in 1949. He retired from the Navy in 1966 1/. His last duty assignment was as chief of orthopedics at the Navy hospital in Key West. He was board certified as an orthopedic surgeon in 1961 and is a Fellow of the American Academy of Orthopedic Surgeons. He has also received the Physician's Recognition Award every three years for continuing education studies and was president of the Florida Orthopedic Society for several years. Since June, 1980, he has been practicing in Belle Glade, where he is vice-chief of staff at Glades Hospital.

   
   

2. In 1973, Robert Greene was initially treated at Respondent's clinic in Marathon, Florida. Respondent's office was in Key West, but he provided medical services at a clinic in Marathon on Tuesday of each week. Greene had suffered a wrist injury while in the service and reinjured it while employed at a grocery store in Marathon. Greene was initially treated by Respondent's associate, Dr. Schaubel, and eventually had a bone graft placed in his wrist in January, 1974, by both physicians. Schaubel prescribed Demerol for Greene and in June, 1974, Respondent began prescribing Dilaudid for pain. Between January 1, 1976, and October 4, 1976, Respondent wrote prescriptions for 3,041 Dilaudid tablets of 4-

   milligram strength and 518 Dilaudid tablets having 2-milligram strength. The maximum amount of Dilaudid consumed by Greene during any period of time was 10 tablets per day, with each having 4-milligram strength. During this same period of time, Greene had three additional operations on the same wrist. The second operation involved a silicone implant, the third a replacement of the implant, and the fourth replaced a bone in his wrist and realigned the implant to its proper place. A scheduled fifth operation never took place. After the third operation, Greene told Respondent he believed he was becoming addicted to the drug. Respondent "detoxed" Greene prior to the fourth operation, but Greene later requested more drugs because of the intense pain in his wrist and his inability to work as a fisherman, which required that he lift lobster traps weighing more than 125 pounds. Respondent attempted on a number of occasions to cut back the dosage, but Greene could not stand the pain and always requested that the medication be continued. Although Respondent prescribed a large number of tablets in the first 10 months of 1976, Greene did not actually ingest all the tablets since his prescriptions were lost or stolen on "numerous" occasions, thereby necessitating the obtaining of a new prescription from Respondent on each occasion. This was confirmed by testimony from the patient. Some of the prescriptions were obtained by Greene when Benavides was on rounds at the hospital or at his home and did not have his medical records present.

   
   

3. Respondent conceded the amount of dosage was high, but said the patient had a low threshold for pain and could not support his family unless he was able to work as a fisherman. Based on the seriousness of the injury, he concluded that only Dilaudid was effective in taking care of the pain, particularly since in 1976 there were no other oral medications that were equally satisfactory.

   
   

4. According to the 1982 Physician's Desk Reference (PDR), the following instructions appear relative to the use of Dilaudid:

   
   

   The oral route of administration is effective for the treatment of moderate to severe pain. The usual oral dose is two milligrams every four to six hours

   as necessary. The dose must be individually adjusted according to severity of pain, patient response, and patient size. More severe pain may require three to four milli- grams every four to six hours. If the pain increases in severity or relief is not ade- quate or a tolerance occurs, a gradual in- crease in dosage may be required. (p.1009)

   
   

   The prescriptions given by Respondent, excluding those that were lost or stolen, were consistent with this PDR instruction.

   
   

5. An expert retained by the Department, Dr. John R. Mahoney, a board certified orthopedic surgeon, characterized the amount of Dilaudid prescribed for Greene as an "enormous amount" and "far in excess" of what his condition indicated. However, he did not take into account the fact that large amounts were never ingested by the patient since they were lost or stolen. He considered the maximum accepted daily dosage to be 12 to 16 milligrams per day for short periods of time. He conceded that larger amounts could be taken under certain circumstances. It was his opinion that Respondent's conduct in treating Green deviated from the standard of care expected from an orthopedic surgeon. Mahoney did not dispute the recommendations of the PDR on prescribing Dilaudid.

   He also agreed that preventing addiction by a patient is a great problem and one that is "not manageable on an individual physician's part."

   
   

6. Michael Aulting was injured in a motorcycle accident in 1974 and suffered a fractured dislocation of his left hip. He subsequently developed a traumatic arthritis. It is unclear when Respondent began treating Aulting, but Respondent eventually performed a total hip replacement on Aulting. This was followed by the removal and replacement of a new prosthesis due to an infection and a similar procedure some two years thereafter. The exact dates of surgery were not disclosed. During the period October 2, 1975, through February 16, 1979, Benavides prescribed the following drugs for Aulting:

   
   

   10/2/75	20	Dilaudid	2	mg.
   11/3/75	28	Dilaudid	2	mg.
   11/10/75 20 Dilaudid 2 mg. 1/10/76 45 Dilaudid 4 mg.
   1/12/76	28	Dilaudid	4	mg.
   5/14/76	28	Dilaudid	2	mg.
   5/23/76	56	Dilaudid	2	mg.
   5/30/76	46	Dilaudid	4	mg.
   6/14/76	21	Dilaudid	4	mg.
   6/16/76	21	Dilaudid	4	mg.
   7/25/76	24	Dilaudid	4	mg.
   9/16/76	30	Tuinal 100		(?)
   9/17/76	30	Parest 400		(?)
   9/26/76	45	Parest 400		(?)

   10/11/76 21 Parest 400 (?)

   10/14/77 50 Percodan (strength unknown) 11/15/76 50 Percodan (strength unknown) 11/26/76 50 Percodan (strength unknown) 12/11/78 40 Percodan (strength unknown) 12/19/78 50 Percodan (strength unknown) 12/29/78 50 Percodan (strength unknown)

   1/15/79	50	Percodan	(strength	unknown)
   1/22/79	50	Percodan	(strength	unknown)
   1/26/79	40	Percodan	(strength	unknown)
   2/12/79	30	Percodan	(strength	unknown)
   2/16/79	50	Percodan	(strength	unknown)

   
   

   Aulting claimed he lost his prescriptions on several occasions. Whether any of the above were duplicate or backup prescriptions was not disclosed.

   
   

7. Benavides described Aulting as having a low pain threshold and a fairly high tolerance to medication. Given this and the severe hip injury and associated operations, he felt the medications for Aulting were reasonable. He also believed that Aulting may have been "feigning" pain at times, and on these occasions, he would turn down his requests for more drugs. After his treatment of Aulting had ceased, he learned that Aulting may have stolen blank prescription pads from his office and forged his signature to obtain drugs.

   
   

8. The expert retained by the Department considered the amount and level of drugs given to Aulting to be unacceptable and below the standard of care expected of an orthopedic surgeon in treating a patient with Aulting's condition. In reaching this conclusion, he relied principally upon the prescriptions written on June 14 and 16, 1976, and January 22 and 26, 1979. However, the strength of the drugs prescribed on the latter two dates was not disclosed.

9. Dilaudid is a Schedule II narcotic pain killer and has addictive qualities. Percodan has similar characteristics. Tuinal is a nonnarcotic barbiturate with habituating qualities. The characteristics of the drug Parest were never disclosed.

   
   

10. The Department began its investigation of Benavides in 1976 when it investigated Benavides' treatment of Aulting. In early September, 1977, the Department again sent investigators to Key West to draw a profile of Respondent in treating Greene. A report as to Greene was prepared on September 16 for the Board of Medical Examiners. No action was taken by the Department until April, 1982, when the administrative complaint was issued. No explanation was given as to why it took almost five years to formalize the charges and file a complaint.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

12. Two arguments raised by Respendent should be dealt with before addressing the merits of the case. First, Respondent generally contends the statute of limitations applies to this proceeding; and since the treatment of the patients occurred as long ago as 1975, the complaint should be dismissed. The question of whether the statute of limitations applies to administrative proceedings was answered in Donaldson v. Department of Health and Rehabilitative Services, 425 So.2d 145 (1 DCA Fla. 1983). In Donaldson, the court held that "in-the absence of specific legislative authority, civil or criminal statutes of limitations are inapplicable to administrative license revocation proceedings." Donaldson, 425 So.2d at 147. The Second District Court of Appeal recently reached the same result in Landes and Landes Realty Co., Inc. v. Department of Professional Regulation, Florida Real Estate Commission, So.2d (2 DCA Fla. 1983, op. filed 10/26/83) Accordingly, the statute of limitations is deemed to have no application to the case at bar. Next, prior to and during the course of the hearing, Respondent contended that the doctrine of laches barred the prosecution of the suit. In order for laches to be applicable, the four-part test enunciated in Niagara Fire Insurance Co. v. Allied Electrical Co., 319 So.2d 594 (3 DCA Fla. 1975), must be met. As is pertinent here, it requires, inter alia, a showing that the Department's delay in prosecuting the case has resulted in injury or prejudice to Respondent. This means that Respondent must show, for example, that it was unable to locate essential witnesses or present other pertinent evidence in support of his defense because of the delay. There being no evidence to meet this essential part of the test, it is concluded the doctrine has no application herein.

    
    

13. In the remaining counts not dismissed by the Department, it alleges that by virtue of prescribing large amounts of Dilaudid to Robert Greene during 1976, Respondent was guilty of (a) prescribing a controlled substance other than in good faith and in the course of his professional practice (Subsection 893.05(1), Florida Statutes) and, by doing so, had in turn violated a statute of this state (Subsection 458.331(1)(l), Florida Statutes) which relates to the practice of medicine or in part regulates the practice of medicine, and in failing to perform a statutory or legal obligation placed upon a licensed physician; and (b) immoral or unprofessional conduct, incompetence, negligence, or willful misconduct and had engaged in gross or repeated malpractice or had 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 within the meaning of Subsection 458.331(1)(t), Florida Statutes; and (c) had engaged in unethical, deceptive or deleterious conduct or practice harmful to the public, and had prescribed, dispensed or administered a controlled substance other than in the course of his professional practice (Counts I through III). It is also charged that by virtue of having prescribed certain controlled substances to Michael Dean Aulting between October, 1975 and February, 1979, Respondent was guilty of the same statutory violations (Counts VII through IX). The charges will be dealt with in reverse order.

    
    

14. Petitioner's alleged improper conduct in Counts VII through IX involves thee writing of 3 prescriptions to Aulting in 1975, 14 in 1976, 1 in 1977, 3 in 1978, and 5 in 1979, or 23 over a 40-month period. Of those, only the quantity and duration, but not strength, are known for all written after September 16, 1976. The evidence falls far short of establishing that the writing of these prescriptions alone constituted the serious statutory violations alleged, particularly in view of the chronic hip problems and associated surgery experienced by the patient during that time. Indeed, the Department's own expert based his conclusion of improper conduct primarily upon four prescriptions written on June 14 and 16, 1973, and January 22 and 26, 1979. The strength of the drugs on the latter two dates is not of record. The evidence is clearly insufficient to substantiate these charges, and Counts VII through IX should be dismissed. Bowling v. Department of Insurance, 394 So.2d 165 , 171 (1 DCA Fla. 1981).

    
    

15. Counts I through III involve the writing of prescriptions for Greene by Benavides for 3,559 Dilaudid tablets of varying strength during the first 10 months of 1976. Of these amounts, it should be noted that "numerous" prescriptions were lost or stolen, and the drugs were never ingested by the patient. This testimony was not controverted. When the drugs were prescribed, the patient was recuperating from at least four operations, all causing great pain. This was compounded by the fact that the patient continued to work as a commercial fisherman which required him to lift heavy traps with his injured wrist. The amount of drugs prescribed by Benavides, and which he thought was being ingested by the patient, was not inconsistent with the PDR's instructions relative to Dilaudid. The evidence is conflicting as to whether the treatment by Benavides was at odds with the standard of care expected of an orthopedic surgeon in treating a patient with Greene's condition. With this in mind, it should be noted that the charges herein are serious in nature, and the potential penalty recommended by Department counsel is revocation of Respondent's license. Accordingly, the evidence required to substantiate the charges is far greater than that required in conventional forms of regulatory action, or even in less serious disciplinary proceedings. Bowling, 394 So.2d at 171. Given the medical condition of the patient, his threshold for pain, the fact that many of the prescribed drugs were never ingested, and Benavides' long-term relationship with and understanding of the needs of the patient, it is concluded that the greater weight of evidence supports a conclusion that the treatment of Robert Greene did not constitute a violation of Chapter 458 as alleged in Counts I-III of the administrative complaint

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED.

DONE and ENTERED THIS 18th day of November, 1983, 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 18th day of November, 1983.

ENDNOTE

1/ In his deposition, Respondent indicated he retired in 1966, while at the hearing he stated he retired from the Navy in 1976. The point was never clarified.

COPIES FURNISHED:

Stephen J. Cohen, Esquire Post Office Box 14723

Fort Lauderdale, Florida 33302

William O. Solms, Jr., Esquire

19 West Flagler Street

10th Floor, Biscayne Building Miami, Florida 33130

Dorothy Faircloth, Executive Director Florida Board of Medical Examiners Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002381

Orders for Case No: 82-002381