STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) BOARD OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-670

)

JAMES DALE CARRIER, DVM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before Marvin

1. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on May 23, 1983, in Lakeland, Florida.

   
   

   APPEARANCES

   
   

   For Petitioner: James H. Gillis, Esquire

   Department of Professional Regulation

   130 North Monroe Street Tallahassee, Florida 32301

   
   

   For Respondent: Robert A. Young, Esquire

   Wilkins, Moorman & Young Post Office Box 428 Bartow, Florida 33830

   
   

   ISSUE

   
   

   This case involves the issue of whether the Respondent's license as a doctor of veterinary medicine should be disciplined for improperly prescribing Dilaudid, a controlled substance. At the formal hearing, the Petitioner called as witnesses Robert M. McGuire, Edward Duncan, and Mary Lee Page. Respondent testified on his own behalf. Petitioner had marked for identification five exhibits of which Exhibits 1, 2, and 5 were admitted. Exhibit 4 was not admitted into the record. Petitioner's Exhibit 3 was a composite of records received by a DPR investigator from the Respondent. Petitioner's Exhibit 3 is admitted and Respondent's objection on the grounds that the records were illegally seized is overruled. Also admitted into evidence was the prehearing stipulation and the Respondent's response to request for admissions as Joint Exhibit 1 and Joint Exhibit 2, respectively.

   
   

   Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact are consistent with the findings herein, the proposed findings were adopted. To the extent that those proposed findings are inconsistent with the findings made

   herein, they were considered by the Hearing Officer and rejected as being not supported by the evidence or not necessary to a resolution of this cause.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is licensed to practice veterinary medicine in the State of Florida and holds License No. 0001405.

      
      

   2. The Respondent graduated from veterinary school in 1968 and has been a licensed veterinarian practicing in Florida for 13 years.

      
      

   3. Sometime prior to August 5, 1982, Ken Williams, a blacksmith who had done work for the Respondent, asked the Respondent to write a prescription for Dilaudid for his old and sick dog. Ken Williams stated the Dilaudid was for pain his dog was suffering. The Respondent, without having seen or examined the dog, wrote a prescription for 100 Dilaudid tablets, four milligrams each. (See Petitioner's Exhibit 5(a)). The prescription was given to Ken Williams and was filled by Robert M. McGuire, a licensed pharmacist in Ruskin, Florida.

      
      

   4. On September 3, 1982, the Respondent, after examining Ken Williams' dog, Satan, wrote a prescription for 100 Dilaudid tablets, four milligrams each, and gave the prescription to Ken Williams. The dog, Satan, was a young, healthy dog which was clearly not in pain. This was the same dog for which Ken Williams had requested the Dilaudid prescribed by the Respondent on August 5, 1982. The second prescription was also filled by Robert M. McGuire.

      
      

   5. After he wrote the second prescription, the Respondent researched Dilaudid in the Physicians Desk Reference. Prior to this research, he knew very little about Dilaudid as a drug. The Respondent concluded at that time that Williams was not using the Dilaudid for an animal, but was probably using it himself.

      
      

   6. The Respondent wrote prescriptions on October 6, 1982, October 28, 1982, and November 22, 1982. (See Petitioner's Exhibits 5(a) 5(d) and 5(e)). Each of these prescriptions was for 100 tablets of Dilaudid, four milligrams each. Each of these prescriptions was given to Ken Williams by the Respondent and was filled by Robert M. McGuire.

      
      

   7. The five prescriptions described in Paragraphs 3 through 6 above were not noted or recorded in the Respondent's records for his client Ken Williams. The prescriptions were not for animals examined by the Respondent and determined to be in need of Dilaudid but were prescribed for Ken Williams.

      
      

   8. Prior to August, 1982, Ken Williams had been convicted of possession of Dilaudid in violation of Florida Statute 893.13. (See Petitioner's Exhibit 6.) The Respondent had no knowledge of Ken Williams' drug conviction when he wrote the prescriptions described above. The Respondent received no compensation for writing the five prescriptions.

      
      

   9. Even after concluding the Dilaudid tablets were not being used by Ken Williams for an animal, the Respondent wrote the prescriptions on October 6, October 28, and November 22, 1982, because he feared Ken Williams would report him. Respondent was made aware by Ken Williams that Mr. Williams was using the Dilaudid himself for pain.

      
      

   10. The active ingredient in Dilaudid is Hydromorphone, a controlled substance listed in Schedule II of Florida Statute 893.13.

   11. The Respondent has been a practicing veterinarian for 15 years with 13 of those years having been in Florida. He has no previous charges or complaints against his license.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.

       
       

   13. Section 474.214(2), Florida Statutes (1981), empowers the Board of Veterinary Medicine to take disciplinary action against a licensed veterinarian who is found to be guilty of any of the grounds listed in Section 474.214(1).

       
       

   14. Respondent is charged with being guilty of a violation of the following subsections under Florida Statute 474.214(1)(1981):

       
       

       (z) Using the privilege of ordering, prescribing, or making available medicinal drugs or drugs as defined in chapter 465, or controlled substances as defined in chapter 893, for use other than for the specific treatment of animal patients.

       (aa) Providing, prescribing, ordering,

       or making available for human use medicinal drugs or drugs as defined in chapter 465, controlled substances as defined in chapter 893, or any material, chemical, or substance used exclusively for animal treatment.

       
       

   15. The drug Dilaudid contains as an active ingredient Hydromophone, which is a controlled substance listed in Schedule II of Florida Statute 893.13 (1981).

       
       

   16. The facts in the instant case establish that the Respondent on three different occasions prescribed Dilaudid to a Mr. Ken Williams. At the time that these drugs were prescribed, the Respondent knew that the drugs were not being used for the specific treatment of an animal patient and had concluded they were being used by Ken Williams himself. The prescribing of the Dilaudid under these circumstances constitutes a violation of Florida Statute 474.214(1)(z) and 474.214(1)(aa) (1981) as alleged in Counts I and II of the Administrative Complaint.

       
       

   17. Penalty: When the Respondent wrote the initial prescription for Dilaudid, he relied upon Ken Williams' representation that it was for a sick dog. He thereafter refused to prescribe Dilaudid again without seeing the dog. It was at the time he saw the dog that he discovered the Dilaudid was not for the dog. Thereafter he wrote three more prescriptions for the same drug for Ken Williams out of fear that Williams would report him. He made no financial or personal gain from writing the prescription. The Respondent has 13 years of unblemished practice as a veterinarian and it is very unlikely he will ever commit another such violation as was committed in this case. It is, therefore, concluded that an appropriate penalty in this case is the imposition of an administrative fine of $750.00.

RECOMMENDATION

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

That a final order be entered by the Board of Veterinary Medicine requiring the Respondent to pay an administrative fine of $750.00.

DONE and ENTERED this 12th day of August, 1983, in Tallahassee, Florida.

MARVIN E. CHAVIS, 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 12th day of August, 1983.

COPIES FURNISHED:

James H. Gillis, Esquire Mr. Fred Roche

Department of Professional Secretary

Regulation Department of Professional Regulation

130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301

Robert A. Young, Esquire Ms. Jane Raker

Wilkins, Moorman & Young Executive Director

Post Office Box 428 Board of Veterinary Medicine

Bartow, Florida 33830 130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000670

Orders for Case No: 83-000670