STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-0355

)

JAY S. REESE, 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 August 24 & 25, October 31, and November 1 & 2, 1983, in Tampa, Florida.

APPEARANCES

For Petitioner: Spiro T. Kypreos, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Stephen M. Slepin, Esquire

George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

and

William M. Holland, Jr., Esquire

503 Western Union Building

505 East Twiggs Street Tampa, Florida 33601

BACKGROUND

This proceeding began when petitioner, Department of Professional Regulation, Board of Medical Examiners, filed an eighty-four count administrative complaint on January 4, 1983, charging respondent, Jay S. Reese, a licensed medical doctor, with numerous violations of Chapter 458, Florida Statutes. An earlier complaint against Reese had been dismissed because the Board had failed to comply with probable cause requirements dictated by Chapter 455, Florida Statutes. See DOAH Case No. 82-2867, Order of Dismissal dated 11/19/82. In brief, and as is pertinent here, the Board alleged in its second complaint that on various dates between 1979 and 1982 respondent had prescribed inappropriate and excessive quantities of controlled substances to various patients, and was accordingly guilty of prescribing controlled substances other than in his professional practice and not in good faith, making deceptive or untrue representations in the practice of medicine, and with gross or repeated

malpractice or 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. For this conduct, the Board sought to take disciplinary action against respondent's medical license.

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 February 1, 1983, with a request that a Hearing Officer be assigned to conduct a formal hearing.

By notice of hearing dated February 23, 1983, the final hearing was scheduled for June 7-10, 1983, in Tampa, Florida.

On March 1, 1983, Respondent filed a motion to dismiss the administrative complaint on the ground the agency had never entered a final order approving the order of dismissal previously entered on November 19, 1982, in DOAH Case No. 82- 2867. The motion was denied by order dated March 14, 1983. This order was appealed by Reese to the First District Court of Appeal on April 8, 1983. A motion to stay the administrative proceeding the appeal was denied by the undersigned on April 19, 1983.

Because of a lack of cooperation between the parties in exchanging witness lists, the final hearing was necessarily continued to August 24, 1983, in Tampa, Florida. Additional hearings were held on August 25, October 31, and November 1 and 2, 1983.

At the final hearing petitioner presented the testimony of Diane Cossett, a Department investigator, Drs. Arnold Grier and Lawrence Neufield, both accepted as experts, and Dr. Roberts Henerson, an orthopedic surgeon who had treated one of Dr. Reese's patients, and offered petitioner's exhibits 1-30; all were received in evidence. Respondent testified on his own behalf and presented the testimony of Drs. John R. Warren, Donald Mills, Theron Ebel, Peter B. Dunn and Walter Lane, all accepted as experts, and William Blount. He also offered respondent's exhibits 1 and 2; both were received in evidence. In view of the confidentiality requirements respecting the use of patient records contained in Subsection 455.241(2), Florida Statutes, reference to patients in the record has been made by number rather than by name in order to avoid disclosing their identity.

The transcripts of hearing (five volumes) were filed on November 28, 1983.

Proposed findings of fact and conclusions of law were filed by petitioner and respondent on December 12 and 20, 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.

During the course of this proceeding, petitioner voluntarily dismissed counts 2-9, 11-15 18, 19, 21, 22, 24, 25, 28, 29, 31, 32, 34-38, 40-47, 50, 51,

1. , 59, 60, 62, 63, 69-80, 82 and 83. In its proposed order, it also conceded there was insufficient evidence to support count 30. Remaining at issue, then, is whether respondent is guilty of the allegations contained in counts 1, 10, 16, 17, 20, 23, 26, 27, 33, 39, 48, 49, 52, 58, 61, 64-68, 81 and

   84.

   
   

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

   FINDINGS OF FACT

   
   

   1. Respondent, Jay S. Reese, is a physician in family practice in Temple Terrace, Florida. He holds license number ME 0014119 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners.

      
      

   2. Reese graduated from the Indiana University of Medicine in 1961. He became licensed in the State of Florida in March 1969 and has practiced in the Tampa area since 1972. He is on the active medical staff of the University Community Hospital in Tampa and enjoys an excellent professional reputation with his peers. He has been considered by some to be an "outstanding physician" in his field. Indeed, one of those physicians who testified against Reese in this proceeding characterized him as being a "very capable physician."

      
      

   3. Respondent has had a long and sincere interest in drug abuse problems since the late 1960s when he served in the U.S. Navy. Thereafter, he became affiliated with a drug clinic in Winter Haven, Florida, which provided assistance to drug abusers. When he moved to Tampa in 1972 he continued his efforts to fight drug abuse by serving on the Department of Health and Rehabilitative Services Advisory Council for Drug Abuse, and on the board of the Drug Abuse Comprehensive Coordinating Office (DACCO) for Tampa and Hillsborough County. He was also on the steering committee which founded the Hillsborough County Alcohol Community Treatment Services in 1979. He is in frequent contact with various law enforcement authorities and judges in Hillsborough County in association with this work.

      
      

   4. Because of his involvement with drug and alcohol abuse clinics, Reese has often taken care of patients who have had alcohol or drug addiction or habituation problems. This group of patients is considered to be the most difficult to treat. It is not uncommon for such patients to claim they lost their prescriptions, alter prescriptions, steal blank pads from a physician's office, buy and sell drugs on the streets, or to be seeing more than one physician at the same time. In view of this, few physicians are willing to assume the inherent difficulties associated with a former addict or alcoholic. Nonetheless, Reese has opened his doors to the former drug addicts and alcoholics who are in need of medical treatment because of his concern and interest in this field.

      
      

   5. In light of his longtime volunteer work in the drug abuse area, it came as a surprise to Reese when petitioner filed a lengthy administrative complaint charging him with prescribing excessive and inappropriate amounts of controlled substances to numerous patients for non-medically justified purposes and not in the course of his professional practice. 1/ This prompted the instant proceeding.

      
      

   6. As narrowed during the course of the hearing and by subsequent pleadings of petitioner, the charges involve thirteen patients treated by Reese at varying times between 1979 and 1982. Most, if not all, had a history of prior alcohol or drug addiction or habituation problems. Nonetheless, they had legitimate medical problems requiring the attention and care of a competent physician.

      
      

   7. The quantities and duration of controlled substances given to the thirteen patients are set forth in petitioner's exhibits 2-8 and 10-15 received in evidence. Nine patients received controlled substances (dilaudid, percodan, demerol, mequin and percocet) for the treatment and management of pain, three

      were given quaalude exclusively, and a fourth received both quaalude and sapor. The latter four patients suffered from legitimate sleeping problems which necessitated the prescriptions in question. In treating these patients, Reese acted prudently and honestly, and used his best medical judgment to select the type and amount of drug prescribed. All were given thorough physical examinations and necessary periodic follow-up checks.

      
      

   8. Those patients for whom Dr. Reese prescribed painkilling controlled substances had various ailments which inflicted pain on the patient in varying degrees of severity and duration. All medical problems were legitimate in nature, and the testimony did not establish otherwise. Dr. Reese's treatment was in accord with mainstream medical opinion that the utilization of controlled substances in the management of patient pain is appropriate. The prescription of controlled substances for various types of pain will depend on the severity of the pain and the response of the individual, among other factors.

      
      

   9. Authoritative medical literature declares that pain should be treated and should be treated early. In the absence of an alternative therapy, narcotic drugs should not necessarily be withheld from the patient. Each patient must be individually evaluated and continually evaluated during the doctor-patient relationship. The results of such treatment should be continually monitored.

      
      

   10. Because pain can be psychologically and physically debilitating, it should be brought under control as quickly as possible. To do so requires a subjective evaluation by the physician of the patient since there is no prescribed or defined procession through which a physician goes in determining the strength of pain medication. Generally, a doctor will prescribe smaller amounts of medication when first treating a patient, and once he gets to know the patient and his condition, a physician will schedule longer intervals between visits and larger quantities of drugs with more frequent refills. This is true since once a situation is under control, there is no reason to have the patient come to the office on a frequent, recurring basis.

       
       

   11. In treating pain, a drug of greater potency and potential for abuse should not be ignored in favor of a less potent drug, simply by virtue of the former drug's potential for abuse. In this regard, a physician achieves a better pain control with Schedule II medications than with Schedule III medications. The bottom line is the treating physician's medical judgment, that is, his judgment as to how severe the pain might be as he interprets it and what medication can achieve the best results.

       
       

   12. Pain control is the most difficult area to quantitate by virtue of the manner in which patients react to pain under medication. The prescription of drugs by a competent physician for the management of pain is a legitimate medical objective.

       
       

   13. The use of quaaludes for sleeping disorders was shown to be medically justified. Although some physicians do not ascribe to its use, it is nonetheless an appropriate drug for certain diagnoses, and was not shown to be inappropriate for patient numbers 5, 7, 13 and 14 as to either quantity or duration.

       
       

   14. Petitioner presented the testimony of two physicians who were accepted as experts for this proceeding. Their evaluation of the treatment given by Dr. Reese was based only upon a review of the patient records. They did not interview the patients, or meet with Dr. Reese to discuss his prescribing regimen. They had never actually seen or treated the patients. They generally

concluded that Reese had not acted as a reasonably prudent physician or in accord with the level of care, skill and treatment which is recognized by a reasonably prudent physician in the Hillsborough County area. In short, they supported the relevant allegations in the administrative complaint. In contrast, experts presented by respondent painted a completely different picture and found no violations of applicable statutes, rules or standards of conduct.

Indeed, they praised respondent for his willingness to treat this most difficult type of patient, and his dedication to the medical profession. It is noteworthy that the experts on both sides had minimal experience in treating patients who abuse alcohol and drugs, and in any event far less than the experience of Reese.

1. It is a well-accepted fact in the medical community that as between two equally competent physicians, one of whom treats the patient and one of whom looks at records after the fact, the former physician will have substantially greater knowledge and "feel" of the treatment result than one merely looking at records. Given this fact, and the more persuasive testimony of respondent's experts, it is found that no deviation from the level of care, skill and treatment of the patients in question has occurred. It is further found that the drugs were in appropriate quantities and duration, were for medically justifiable purposes, and were not prescribed outside the course of Reese's medical profession.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

3. In license revocation proceedings such as this, petitioner is required to prove its allegations by more "substantial" evidence than that required in conventional forms of regulatory action. Bowling v. Department of Insurance,

   394 So.2d 156, 171 (Fla. 1st DCA 1981). That is to say, the proof must be commensurate with the potential penalty. Henderson Signs v. Florida Department of Transportation, 397 So.2d 769, 773 (Fla. 1st DCA 1981). Here petitioner seeks to suspend respondent's medical license for three years and impose a

   $13,000 fine. As such, the term "substantial, competent evidence" takes on more "vigorous implications" than those found in typical agency action. Bowling, 394 So.2d at 171.

   
   

4. With the foregoing standards in mind, the evidence is conflicting as to whether respondent has violated the Florida Medical Practice Act. It can best be characterized as a disagreement among expert witnesses as to specific medical judgments in discrete circumstances. The testimony of respondent's witnesses is accepted as being more persuasive and credible, and it is concluded that Dr. Reese did not violate Subsection 458.331(1)(q), Florida Statutes, in prescribing the controlled substances in question, and that such treatment was at a level of care, skill and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances within the meaning of Subsection 458.331(1)(t), Florida Statutes. Accordingly, all remaining charges should be dismissed.

   
   

5. In view of the above result, respondent's contention that this proceeding is invalid under the rationale of Department of Professional Regulation, Board of Medical Examiners v. LeBaron, So.2d (Fla. 1st DCA 1983) becomes moot.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Dr. Jay S. Reese be DISMISSED with

prejudice.

DONE and ENTERED this 10th day of February 1984, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 10th day of February 1984.

ENDNOTE

1/ It appears the complaint originated with a former colleague who had a falling out with Reese, and then "turned him in" to the Department to get even.

COPIES FURNISHED:

Spiro T. Kyproes, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Stephen M. Slepin, Esquire and George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301

William M. Holland, Jr., Esquire

503 Western Union Building

505 East Twiggs Street Miami, Florida 33601

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

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

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 83-355

JAY REESE, M.D., LICENSE NO. ME 0014119

Respondent.

/

FINAL ORDER OF

THE BOARD OF MEDICAL EXAMINERS

This cause came before the Board of Medical Examiners (Board) pursuant to Section 120.57(2), Florida Statutes, on April 14, 1984, in Orlando, Florida, for the purpose of considering the hearing officer's recommended order (a copy of which is attached here to) in the above-styled cause and the exceptions filed thereto by Petitioner. Petitioner, Department of Professional Regulation was represented by William M. Furlow, Esquire; Respondent, Jay Reese, M.D. was represented by Stephen M. Slepin, Esquire. Upon review of the recommended order, Petitioner's exceptions, argument of the parties, and upon review of the complete record in this matter. The Board makes the following findings and conclusions:

FINDINGS OF FACT

1. Paragraphs 1-6 and 9-12 of the hearing officer's findings of fact are approved and adopted and are incorporated by reference herein.

   
   

2. In Paragraphs numbered 1 and 2 of his exceptions. Petitioner maintains that the hearing officer erred in his findings of fact in paragraphs 7 and 8, respectively to the extent that there is no competent substantial evidence to support the findings that the patients suffered from legitimate medical problems and that Respondent acted prudently and in accord with the main stream of medical opinion in his treatment of the patients. Based upon a review of the complete record, the Board accepts the exceptions posed by Petitioner and finds there is no competent, substantial to support the hearing officers findings in paragraphs 7 and 8. Petitioner's exceptions are incorporated by reference herein and the findings of fact are modified accordingly to reflect that Respondent failed to act prudently and in accord with the maim stream of medical opinion in his treatment of the patients in question.

   
   

3. In paragraphs numbered 3 and 4 of his exceptions Petitioner maintains that the hearing officer erred in his findings of fact in paragraphs 13 and 14,

   respectively, to the extent that there is no competent, substantial evidence to support the findings that the drugs prescribed to the patients in question were medically justified and not inappropriate in the quantity or duration prescribed. Based upon a review of the complete record, the Board accepts the exceptions posed by Petitioner and finds there is no competent substantial evidence to support the hearing officer's findings in paragraphs 13 and 14.

   Petitioner's exceptions are incorporated by reference herein and the findings of fact are modified accordingly to reflect that the drugs prescribed by Respondent to the patients in question were not medically justified and inappropriate in the quantity or duration prescribed.

   
   

4. In paragraphs numbered 5, 6, 7, 8, 9, 10, 11, 12, and 13 of his exceptions, Petitioner maintains that the hearing officer erred in his findings of fact in paragraphs 14 1/ to the extent that there is no competent substantial evidence to support the findings that Respondents' experts were more persuasive than those of Petitioner or that Respondent was more expert than the experts of Petitioner and Respondent with regard to the patients in question. Based upon a review of the complete record, the Board accepts Petitioners' exceptions and finds that the record does not support the finding the Respondent or his experts were more persuasive than Petitioner's experts. In reviewing the opinion of the various experts, the Board substitutes findings based in part upon its own expertise. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). Petitioner's exceptions are incorporated by reference herein and the findings of fact are modified accordingly to reflect that Respondent failed to act prudently or in accord with the level of care, skill, and treatment recognized by a reasonably prudent physician in his treatment of the patients in question.

CONCLUSIONS OF LAW

1. Paragraphs 1 and 2 of the hearing officer's conclusions of law are approved.

   
   

2. Petitioner's exceptions to the hearing officer's conclusions of law regarding the testimony of the witness are accepted by the Board; accordingly, paragraph 3 of the hearing officer's conclusions of law is rejected. The Board concludes, based upon its findings of fact found above and its adoption of Petitioner's exceptions regarding the testimony of the expert witnesses that Respondent is guilty of having violated Sections 458.331(1)(q) and 458.331(1)(1), F.S., regarding patients numbered 1-7 and 9-14.

   
   

3. Paragraph 4 of the hearing officer's conclusions of law is modified to the extent that it is not inconsistent with the Board's conclusion in paragraph

2 above, WHEREFORE, it is hereby

ORDERED AND ADJUDGED that Respondent's license to practice medicine in Florida is suspended for a period of six months from the effective date of this Order, and that upon reinstatement of his license pursuant to Section 458.331(3), Respondent shall be on probation for a period of five years, during which time Respondent shall complete 50 hours annually of continuing medical education in category I. This Order takes effect upon filing.

DONE AND ORDERED this 12 day of May 1984.

Board of Medical Examiners

Richard J. Feinstein Chairman

Docket for Case No: 83-000355

Orders for Case No: 83-000355