STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-900

)

MARIO SANTOS-ESTEVEZ, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case in Tampa, Florida, on February 8, 1984. The issue was whether petitioner, Department of Professional Regulation, Board of Medical Examiners, should take disciplinary action against respondent. Mario Santos-Estevez, M.D.

APPEARANCES

For Petitioner: Barbara K. Hobbs, Esquire

Tallahassee, Florida

For Respondent: Mario Santos-Estevez, M.D., pro se.

Tampa, Florida

Petitioner alleges that between October 2, 1980, and October 4, 1982, Dr.

Santos, as licensee, prescribed a controlled substance (Dilaudid) to Ruben Carbonell inappropriately or in excessive or inappropriate amounts.

Specifically, petitioner alleges that Dr. Santos knew or should have known that Carbonell was a drug abuser and that he did not prescribe the Dilaudid for a medically justifiable purpose. In addition, petitioner alleges that Dr. Santos' prescriptions constitute a failure to practice medicine with that level of care, skill, and treatment recognized as acceptable by reasonably prudent similar physicians under similar conditions and circumstances. Finally, petitioner alleges that Dr. Santos did not keep written medical records justifying his course of treatment for Carbonell.

FINDINGS OF FACT 1/

1. Dr. Santos is a licensed medical doctor having been issued license number MF00I27I8.

   
   

2. When Dr. Santos first began caring for Ruben Carbonell, Carbonell was (and still is) an indigent paraplegic who needs a wheelchair to move himself around. He was eligible for Medicaid reimbursement of part, but not all, of Dr. Santos' fees.

3. Carbonell's complaint was that he suffered severe, chronic pain from an earlier spinal cord injury, from chronic cystitis, and from bedsores all over his buttocks. Dr. Santos knew or should have known that Carbonell had been using Dilaudid, a habit-forming narcotic, for many years to relieve pain symptoms and that Carbonell had been discharged from a federal drug rehabilitation program as being incapable of rehabilitation through the program. But, although the exact extent of another person's pain is impossible to ascertain, it certainly was reasonable for Dr. Santos to conclude that Carbonell was telling the truth when he said he was in severe pain and in need of medication to relieve the pain.

   
   

4. Dr. Santos treated Carbonell's complaints by prescribing Dilaudid in the approximate amount of 50 to 60 four-milligram tablets every week. This was a stronger dosage than a physician normally would prescribe, but a stronger- than-normal dosage is reasonably necessary to relieve Carbonell of his pain symptoms because of his higher tolerance to Dilaudid due to his history of using the drug in significant quantities. Between October 2, 1980, and October 4, 1982, Dr. Santos prescribed for Carbonell a total of 6,091 four-milligram tablets and 60 three-milligram tablets of Dilaudid.

   
   

5. No witness testified that the prescriptions Dr. Santos wrote for Carbonell were not for a medically justifiable purpose, were inappropriate, were in excessive amounts, or were in inappropriate amounts. Meanwhile, Dr. Santos' two physician witnesses persuasively testified, and I find: that the prescriptions were for a medically justifiable purpose--to relieve Carbonell's pain symptoms; and that the prescriptions were appropriate under the totality of facts and circumstances of Carbonell's case, were not in excessive amounts, and were not in inappropriate amounts.

   
   

6. One of Dr. Santos' witnesses, Dr. Robert Polackwich, is a local specialist in the treatment of chronic, severe pain, mostly in cancer patients with advanced malignancies. Dr. Polackwich is now treating Carbonell the same way Dr. Santos was. In addition, Dr. Polackwich noted that Carbonell went to the University of Florida hospital for diagnosis and treatment between the time Dr. Santos' treatment ended and his began and that Carbonell's physician at the University of Florida hospital also treated Carbonell the same way.

   
   

7. The medical records on Carbonell to which Dr. Santos had access included records of the Centro Asturiano Hospital in Tampa. These included patient histories, examination results, and test results. Dr. Santos' own office records reflect the results of the physical examinations he performed on Carbonell on virtually each occasion on which he prescribed Dilaudid for Carbonell. Dr. Santos' records also reflect Carbonell's complaints. Although sketchy, these records, combined with other facts known to Dr. Santos, sufficiently justified his course of treatment of Carbonell. It was not demonstrated that the records were less complete than those that other reasonably prudent and competent physicians would be expected to maintain under similar circumstances.

   
   

   CONCLUSIONS OF LAW

   
   

8. There is no dispute as to the pertinent law. The holder of a license to practice medicine under Chapter 458, Florida Statutes (1983), may be disciplined upon proof of allegations in an administrative complaint of facts which are grounds for discipline under Section 458.331.

9. Petitioner alleges a violation of Section 458.331(1)(q) which prohibits a licensee from "prescribing . . . a legend drug, including any controlled substance, other than in the course of the physician's professional practice," which includes prescribing such drugs "inappropriately or in excessive or inappropriate quantities . . . without regard to his intent.

   
   

10. Petitioner also alleges a violation of Section 458.331 (1)(t), which prohibits "[g]ross 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."

    
    

11. Finally, petitioner alleges that Dr. Santos "failed to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results and test results," in violation of Section 458.331(1)(n)

    
    

12. Petitioner's evidence fails to prove any of the charges. Indeed, petitioner has now conceded that its evidence was insufficient to prove a violation of 458.331(1)(q) or (t). Dr. Santos was faced with the difficult question of how to treat a patient who, on the one hand, had used a habit- forming drug for pain for many years and, at the same time, continued to have apparently honest and medically reasonable complaints of severe pain. There was no proof upon which Dr. Santos' judgment can be condemned. Nor does the condition of his records warrant discipline.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Board of Medical Examiners enter a final order dismissing the charges against Dr. Santos on the merits and with prejudice.

DONE and ENTERED this 30th day of March 1984, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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 30th day of March 1984.

ENDNOTE

1/ Except to the extent that they are consistent with these findings of fact, petitioner's proposed findings of fact are rejected as not supported by competent substantial evidence, contrary to the greater weight of the evidence, or irrelevant.

COPIES FURNISHED:

Barbara K. Hobbs, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mario Santos-Estevez, M.D. 7732 West Hillsborough Avenue Tampa, Florida 33615

Frederick Roche, Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy J. Faircloth, Executive Director Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000900

Orders for Case No: 83-000900