STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OSTEOPATHIC ) MEDICAL EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 83-203
)
BARBARA KRANTZ, D.O., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Arnold R. Pollock, Hearing Officer with the Division of Administrative Hearings, at 9:30 a.m., February 9, 1983, in West Palm Beach, Florida. The issue for determination was whether the Respondent's license as an osteopathic physician should be suspended or revoked, or whether other disciplinary action should be taken against her under the laws of the State of Florida for the reasons set forth in the Administrative Complaint.
APPEARANCES
For Petitioner: James H. Gillis, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: William H. Pruitt, Esquire
Pruitt & Pruitt
501 South Flagler Drive, Suite 501 West Palm Beach, Florida 33401
By Amended Administrative Complaint dated January 18, 1983, Respondent was charged with several violations of the Florida Statutes regarding the practice of osteopathic medicine, more detailed descriptions of which are found further in the body of this Recommended Order in the Findings of Fact.
In support of the allegations, Petitioner presented the testimony of Geraldine Padgett, Dr. Dolores Morgan, Dr. Jack Kammerman, John Pollack, Ernestine Franklin, and Steven L. Southerland as well as Petitioner's Exhibits 1 through 9. Respondent presented the testimony of Drs. Michael A. Longo and Harold Kirsch.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence presented at the hearing, the following facts are found:
At all times pertinent to this case, Respondent was licensed to practice osteopathic medicine in the State of Florida under license numbered 0003783.
On April 1, 1981, the Florida Board of Osteopathic Medical Examiners (Board), through the Department of Professional Regulation (DPR), filed an Administrative Complaint against Respondent alleging several violations of Florida Statutes governing the practice of osteopathic medicine.
In an effort to forestall an emergency suspension of her license as a result of these allegations, Respondent entered into a Stipulation with the Board whereby she agreed to cancel her certificate to prescribe Schedule II and III, Chapter 893, drugs; to remain enrolled in and comply with all terms of the Impaired Physicians Program; to submit blood and urine samples for drug screening upon request of DPR; and to obey all federal and state laws and regulations pertaining to the practice of osteopathic medicine.
On June 10, 1982, the Board, after an informal hearing, entered an order finding that Respondent had violated the various provisions of the statutes as alleged and suspended her license for a period of six months. However, the Board considered and incorporated into its order the aforementioned Stipulation and stayed the suspension, placing Respondent on probation for three years.
Sometime in January, 1983, the Secretary of DPR, being made aware of alleged violations of the terms of the probation, entered an order of emergency suspension of Respondent's license, alleging as reasons therefor:
That on November 29, 1982, Respondent prescribed Demerol, a Schedule II controlled drug, for a patient, Ernestine Franklin;
That on November 10, 1982, Respondent was found in an unconscious state at home. Taken to the hospital, when she regained consciousness, she was disoriented and incoherent; her speech was garbled, and she demonstrated erratic and violent behavior;
That on or about December 7, 1982, Respondent prescribed Demerol for Maureen Lyewfong, the cost of which was charged to the Respondent;
On December 17, 1982, an unidentified male brought Respondent to the hospital indicating she had snorted cocaine. She would not allow herself to be examined;
That on December 24, 1982, Respondent was admitted to North Shore Hospital, Miami, claiming she had suffered an epileptic seizure. During the course of her workup, she indicated she was allergic to Demerol; and
That by letter dated December 30, 1982, Dr. Morgan, head of the Impaired Physicians Program, informed DPR that Respondent had diverted for own use Demerol prescribed for her patients and that she had failed to keep appointments for treatment under the program.
On January 18, 1983, sometime after the emergency suspension went into effect, the Board through the Department of Professional Regulation filed a seven-count Amended Administrative Complaint seeking to suspend, revoke, or otherwise discipline Respondent's license, listing as grounds for this action basically the same allegations as found in the emergency suspension order.
On November 30, 1982, Respondent treated Ernestine Franklin for removal of a pilonidal cyst. Prior to the surgery, Respondent administered an injection of Demerol to the patient from a bottle for which she had written a prescription the previous day. This prescription had been filled at a pharmacy by Nurse Susan Dukes and charged to Respondent's account. When she brought the Demerol back to the office, Dukes placed it in the locked medicine cabinet and told Respondent where she had put it. When she went to set up for Ms. Franklin's surgery, the bottle of Demerol was not there. Dr. Krantz prepared the Demerol injection for the patient herself. The injection did not use up the entire amount on the prescription, and the unused portion was neither given to the patient nor seen in the office again.
On December 7, 1982, Respondent wrote a prescription for Demerol for Maureen Lyewfong, the cost for which was charged to Dr. Krantz.
Demerol is another name for meperidine hydrochloride, which is a Schedule II substance, as defined in Section 893.03(2)(b), Florida Statutes (1981).
Respondent first entered the Impaired Physicians Program (IPP) under the supervision of Dr. Dolores Morgan in March, 1981,,because of her abuse of Demerol, Quaaludes, and cocaine. After a month in the hospital, she was released to an outpatient program which, because of her failure to progress properly, resulted in her going to the inpatient facility at Ridgeview, Georgia, where she spent several months.
According to the terms of the IPP for Respondent, when she was discharged from the Ridgeview inpatient treatment center, she was to be in the program for two years. Since the IPP main office is in Miami and Respondent practices in West Palm Beach, she was placed under the supervision of a doctor in her area. From June, 1982, the date of the Stipulation, to December, 1982, Dr. Morgan heard nothing to indicate Respondent was not living up to the terms of the agreement. However, in December, 1982, Dr. Morgan was contacted by Dr. Joan Barice, local chairman of the IPP, who informed her that Dr. Krantz was missing required meetings of Narcotics Anonymous, as well as by the administrator of a local hospital, Mr. Steven Southerland, to the effect that Dr. Krantz was not performing properly. As a result, Dr. Morgan set up an appointment with Respondent for an interview on December 23, 1982, which Respondent did not keep. Another appointment was set up to discuss the matter, but before the date scheduled for the meeting, Dr. Morgan was advised Respondent was admitted to a hospital in Miami for drug detoxification. At this point, Dr. Morgan reported the latter to DPR. As will be seen in the succeeding paragraphs, this admission was not for drug detoxification, but for epileptic seizures.
On December 17, 1982, at approximately 5:15 p.m., Respondent was taken by paramedics to the emergency room at Jupiter Hospital, Jupiter, Florida. At the time she was first seen by the paramedics, an empty vial of Demerol was found in her possession. When found, at her office, she was unconscious for five to ten minutes and, upon regaining consciousness, appeared drowsy.
However, by the time she was seen by the emergency room nurse, Mr. Pollack, she appeared to be coherent. She indicated to him she was allergic to Demerol and had had a seizure earlier in the day because the level of Dilantin, a drug used to control epileptic seizures, in her blood was not high enough.
In fact, on December 23, 1982, Respondent contacted Dr. Jack Kammerman, an internal medicine specialist on the staff at North Shore Hospital in Miami. She explained her symptoms, and Dr. Kammerman, who knew of Respondent's background through her mother, who had worked for him, suggested she immediately be hospitalized for tests. Dr. Krantz agreed, and the initial tests taken failed to reflect a reason for her seizures. A second CAT scan ruled out a tumor, so a neurologist was called in for consultation. This expert's initial and final diagnoses were "ideopathic epilepsy," the term "ideopathic" meaning "of unknown cause."
At the time of admission, blood and urine samples were taken for use in tests. The first blood screen result showed traces of meperedine hydrochloride (Demerol) and Darvon, a pain reliever. A second screening of more blood taken from the same sample, but run later, reflected minute amounts of Demerol, which could indicate that the patient had taken the substance within the prior 72 hours. It was the pathologist's opinion that Demerol had been taken by Respondent.
On the other hand, a false positive test result for Demerol in the blood is possible because many external factors, such as infection or the menstrual period (which Respondent was experiencing at the time), could affect it. I find, however, that based on the findings of the pathologist, an expert in his field, the substance in Respondent's blood was in fact Demerol.
Respondent's seizures are now completely controlled through the use of the drugs Dilantin and phenobarbital. Dr. Kammerman is of the opinion that an osteopathic physician who suffers from controlled seizures can safely practice within the disciplines of family practice and internal medicine. Classically, seizure patients can predict the onset of a seizure due to the symptoms they experience before the seizure. Once the patient experiences the preseizure symptoms, he or she may prevent the seizure from occurring depending upon how fast the medicine can be gotten into the bloodstream in amounts sufficient to prevent it.
Though Dr. Kammerman has never seen the Respondent go through a seizure and therefore does not know how she would react, he knows it is not uncommon for a patient who has just come out of the unconscious state of a seizure to be disoriented, confused, aggressive, and talkative, even to the extent of refusing help.
Mr. Steven L. Southerland, Executive Director of Community Hospital of Palm Beach and one of the individuals who contacted Dr. Morgan regarding Respondent's aberrant behavior, knew her when she was on staff in the Department of Family Practice of that hospital. In the course of his official duties, information was brought to his attention that a patient admitted to the hospital by the Respondent was not seen by her afterwards for several days. This type of conduct was confirmed by Respondent's nurse, Ms. Dukes, who noticed a decided deterioration in Respondent evidenced by days of forgetfulness and confusion.
On the other hand, two qualified osteopathic physicians who worked with Dr. Krantz on staff at Community Hospital and who have observed her in the practice of osteopathic medicine off and on for six or more years are satisfied that she is an extremely competent physician. She has assisted one, Dr. Michael
A. Longo, in surgery, and he found her work to be excellent. He is aware of her epileptic-based seizures, and this does not change his high opinion of her competence. The other, Dr. Kirsch, who has also collaborated with her on the
treatment of several patients, has never had the slightest problem with her, nor has he ever seen her in any way incapacitated.
CONCLUSIONS OF LAW
In Count One, Petitioner has charged the Respondent with violating a lawful order of the Board of Osteopathic Medical Examiners previously entered, in violation of Subsection 459.015(1)(x), Florida Statutes. Subsection 459.015(1)(x) provides:
(1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(x) Violating any provision of this chapter, a rule of the board or depart- ment, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the board or department.
Here, on June 10, 1982, the Board entered an order suspending Respondent's license for six months, suspended on condition, inter alia, she live up to the terms and conditions of the Stipulation entered into sometime previously. She failed to do this when she failed to continue her participation in the IPP, as she was required to do, as testified to by Dr. Morgan.
In Count Two, she is charged with failure to maintain a complete and accurate record of each controlled substance dispensed by her in violation of Subsection 893.07(1)(b) and therefore Subsection 459.015(1)(h), Florida Statutes.
Subsection 893.07(1)(b) , Florida Statutes, states:
(1) Every person who engages in the manufacture, compounding, mixing, cultivating, growing, or by any other process producing or preparing, or in the dispensing, importation, or, as a wholesaler, distribution, of controlled substances shall:
(b) On and after January 1, 1974, maintain, on a current basis, a com- plete and accurate record of each substance manufactured, received, sold, delivered, or otherwise disposed of by him, except that this subsection shall not require the maintenance of a per- petual inventory.
Petitioner has failed to produce any evidence regarding Respondent's keeping of records of drugs dispensed for her patients except the testimony of Nurse Dukes concerning the Demerol left over from the injection given Ms. Franklin. It would appear that she did not keep accurate records in that case, but there is no other evidence, on either side, dealing with her patient records regarding the dispensing of drugs. It is not Respondent's charge to prove her
compliance with the rule. It is incumbent upon Petitioner to prove non- compliance. Its evidence fails to establish that the appropriate records were not kept.
In Count Three, Respondent is alleged to be unable to skillfully and safely practice osteopathic medicine by reason of alcohol, drugs, etc., or as a result of any mental or physical condition, in violation of Subsection 459.015(1)(s) Florida Statutes.
Subsection (1)(s) of this statute states:
(1) The following acts shall consti- tute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
Being unable to practice osteo- pathic medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.
An osteopathic physician affected under this paragraph shall at reason- able intervals be afforded an oppor- tunity to demonstrate that he can resume the competent practice of osteopathic medicine with reasonable skill and safety to patients.
Both the Petitioner's Dr. Kammerman and Respondent's Drs. Longo and Kirsch are all of the opinion that Respondent can practice safely and competently. There is good evidence from Dr. Kammerman that Respondent's epilepsy can be controlled, that she can reasonably predict the onset of seizures, and that she can adequately medicate herself to avoid the onset so that her patients would not be harmed. However, the evidence indicates that the problem is not so much the seizures but the abuse of drugs that has interfered with her performance in the past and which may do so again in the future. Nurse Dukes, who worked with Respondent on a daily basis, reported a marked decline in her performance, a fact which was confirmed by the reports reaching Mr. Southerland. Dr. Kammerman's prognosis is speculative, and the evidence establishes that Dr. Krantz at this time cannot be relied upon to safely and skillfully practice osteopathic medicine, unsupervised, due to her physical condition.
In Count Four, Respondent is charged with a failure to practice osteopathic medicine with a level of care, skill, and treatment as is acceptable by a prudent practitioner under similar circumstances, in violation of Subsection (1)(t) of this statute, which enjoins the Board to give great weight to Section 768.45, Florida Statutes.
Subsection 459.015(1)(t), Florida Statutes, states:
(1) The following acts shall consti- tute grounds for which the disciplinary actions specified in subsection (2)
may be taken:
* * *
Gross or repeated malpractice
or the failure to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by
a reasonably prudent similar osteo- pathic physician as being acceptable under similar conditions and circum- stances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph.
The testimony of Dr. Morgan, Ms. Padgett, and Mr. Southerland, and the affidavit of Nurse Dukes establish that Dr. Krantz's professional performance had deteriorated to a point below that which a reasonably prudent similar osteopathic physician would consider acceptable.
In Count Five, Dr. Krantz is alleged to have administered a scheduled drug to herself, in violation of Subsection 459.015(1)(r), Florida Statutes. This subsection states:
(1) The following acts shall consti- tute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(r) Prescribing, dispensing, or administering any medicinal drug appearing on any schedule set forth in chapter 893 by the osteopathic physician to himself, except one pre- scribed, dispensed, or administered
to the osteopathic physician by another practitioner authorized to prescribe, dispense, or administer medicinal drugs.
The substantial circumstantial evidence relating to the use of Demerol by Respondent, such as the pathologist's report, the testimony of Nurse Dukes, the report of the emergency room nurse, when taken together, supports the finding that Respondent did, in fact, administer Demerol to herself, notwithstanding her repeated averment that she is allergic to the drug, and this violates the statute cited.
Count Six alleges that Dr. Krantz made deceptive, untrue, or fraudulent representations, or employed a trick or scheme in the practice of osteopathic medicine, in violation of Subsection 459.015(1)(1), Florida Statutes. This subsection states:
(1) The following acts shall consti- tute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(1) Making deceptive, untrue, or fraudulent representations in the practice of osteopathic medicine or employing a trick or scheme in the
practice of osteopathic medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.
There is no evidence to support this allegation. Only those acts which relate to the providing of medical treatment are proscribed by statute. There is no evidence that Dr. Krantz misled, lied to, or otherwise deceived any patient of hers. That she may have done so to herself or her co-workers in order to cover up her personal condition does not meet the test to be applied here.
Finally, in Count Seven, Dr. Krantz is alleged to have dispensed or administered a controlled substance other than in the course of her professional practice, in violation of Subsection 459.015(1)(q), Florida Statutes. The evidence which supports Count Five is sufficient to support a conclusion that she did.
The Petitioner has submitted a Proposed Recommended Order which includes 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 above. 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.
It should be noted that at the hearing, Respondent raised an issue as to the constitution and actions of the probable cause panel convened in this case prior to the filing of the amended complaint. Petitioner indicated the minutes of this panel could be produced upon request, whereupon Respondent requested them, and the Hearing Officer ruled that Petitioner was to provide them. As of the date of Respondent's Memorandum, March 16, 1983, they had not been furnished as ordered. Therefore, on March 22, 1983, the Hearing Officer entered an Order directing Petitioner to furnish the minutes to the Respondent within two days and giving Respondent two days from receipt to reply.
Petitioner complied and furnished a copy of the recorded minutes of the panel, which subsequently prompted Respondent to "urge" the Hearing Officer to dismiss the Administrative Complaint in a Memorandum dated March 29, 1983, but which was not received in the Division of Administrative Hearings until April 6, 1983.
Respondent has attacked the formation and action of the panel on several grounds, including the use of a telephone conference call; the quality of the tape recording; the failure of the panel members to have the evidence in documentary form in front of them; and the alleged editorializing by Mr. Gillis, attorney for the Department of Professional Regulation, in his recitation of the investigative report and his alleged subsequent manipulation of the panel to secure a charge on allegations for which there was no proof. My review of the transcript convinces me that Mr. Gillis neither editorialized nor manipulated and that the remaining alleged deficiencies, even if true, taken together or singly, do not defeat the legality of the panel's action.
There are, however, two aspects of the panel's activity which give rise to additional comment. The first is that there appears to be no showing that there was an affirmative vote by the panel members. The transcript reflects that after a prolonged and detailed recitation by Mr. Gillis of the contents of the report of investigation on Respondent, Dr. Smith, a member of
the panel, announced that probable cause had been found, not only for the emergency suspension, but also a new administrative complaint based upon the fact that she . . . [committed the allegations in the Administrative Complaint].
Section 455.225(3), Florida Statutes (1981), requires a "majority vote" of the panel to reach a determination as to whether probable cause exists. Here, the minutes reflect no explicit motion or explicit vote, but by the same token, the announcement was made for all to hear, and while there was some subsequent dialogue on the issues, there is no evidence of a contravote or even an objection to Dr. Smith's announcement. On the face of it, there appears to be a unanimous community of agreement which clearly constitutes only a nonprejudicial irregularity of form.
In Morning v. State, 416 So.2d 844 (4 DCA Fla. 1982), the court emphasized the need to adhere to form as "the skeleton which holds the whole body of substantive law together." By the same token, the court recognized the need for a "delicate balance which must be struck between the two," and in doing that here, the conclusion is inescapable that a concerted effort was made to provide a fair, impartial, and informed hearing to the Respondent. I am convinced the effort was successful.
Further, a review of the whole procedure shows that the test established in the leading case on the issue of probable cause in this context was met. See Kibler v. Department of Professional Regulation, 418 So.2d 1081 (4 DCA Fla. 1982). Admittedly, it would have been better if the panel could have been brought together to read the documents and examine the evidence in its original state. However, it is clear that Mr. Gillis carefully iterated what the documents in his possession showed. He took no license with the evidence nor did he editorialize on it. Further, the transcript showed that the panel members were very concerned, asked questions where they did not understand, and demanded information if they felt it necessary. It is clear they did not take their responsibilities lightly. This was not a "rubber stamp," but an informed, conscientious evaluation of the evidence available and a resultant determination of probable cause, as is required by Kibler. Taken as a whole, it appears the procedure was conducted with total fairness, and there is no legal basis for dismissal of the Administrative Complaint.
Based upon the Findings of Fact and Conclusions of Law rendered herein, it
is
RECOMMENDED THAT:
The Respondent be found subject to disciplinary action for a violation
of Subsections 459.015(1)(1), (q), (r), (s), and (t), Florida Statutes;
The license of the Respondent, Dr. Barbara Anne Krantz, to practice osteopathic medicine in the State of Florida be revoked;
The revocation be suspended for a period of three years and that she be limited to practice while under the supervision of a licensed osteopathic physician; and, with the further provision,
The restrictions and limitations continue for such time and under such terms and conditions as the Board of Osteopathic Medical Examiners determines
necessary to ensure protection of Respondent's patients and her ability to practice osteopathic medicine with reasonable skill and safety.
RECOMMENDED this 2nd day of May, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 1983.
COPIES FURNISHED:
James H. Gillis, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
William H. Pruitt, Esquire Pruitt & Pruitt
501 South Flagler Drive Suite 501
West Palm Beach, Florida 33401
Mr. Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Ms. Dorothy Faircloth Executive Director
Board of Osteopathic Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jun. 28, 1990 | Final Order filed. |
| May 02, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 27, 1984 | Agency Final Order | |
| May 02, 1983 | Recommended Order | Respondent's license should be disciplined until she proves she can practice safely. |
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs MIGUEL A. ARGUETA, D.O., 83-000203 (1983)
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs JOHN RUSSELL, D.O., 83-000203 (1983)
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs ALAN SALTZMAN, D.O., 83-000203 (1983)
DEPARTMENT OF HEALTH, BOARD OF OSTEOPATHIC MEDICINE vs ALAN SALTZMAN, D.O., 83-000203 (1983)
