Judges: P. MICHAEL RUFF
Agency: Department of Business and Professional Regulation
Latest Update: Nov. 30, 1983
Summary: Doctor was not shown to have departed from proper standard in his prescribing of drugs and related aspects of his practice.
83-1645.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 83-1645
)
PREM NARAIN TANDON, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on October 7, 1983, in Orlando, Florida. The appearances were as follows:
APPEARANCES
For Petitioner: Barbara K. Hobbs, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Prem Narain Tandon, M.D.
15 West Columbia Street, Suite J Orlando, Florida 32806
This cause arose upon an administrative complaint, filed May 26, 1983, against the Respondent, wherein it is charged in essence, in fifteen counts, that the Respondent prescribed, on various occasions, Ritalin tablets to his wife for other than a medically justifiable purpose, and, indeed, diverted the Ritalin to his own use. It is alleged, with regard to this act, that it was: a violation of Section 458.331(1)(r) by constituting the prescription of a scheduled drug by the physician to himself; a violation of Section 458.331(1)(q) by prescribing other than in the course of a physician's professional practice; a violation of Section 458.331(1)(i) by making or filing a false report, knowing that the prescription was falsely issued; and Section 458.331(1)(l) by the making of deceptive, untrue, or fraudulent representations or employing a trick or scheme in the practice of medicine, which fails to conform to generally prevailing standards in the medical community.
It is also charged that on November 23, 1982, the Respondent prescribed Ritalin, a Scheduled II controlled substance to Rajni Tandon for a non-medically justifiable purpose and diverted the Ritalin to his own use. It is additionally alleged that on December 13, 1979, the Respondent prescribed 50 Ritalin tablets to himself. Finally, it is alleged that between the dates of November 4, 1980, and July 1, 1981, Respondent prescribed, respectively, 30 Nembutal tablets to himself and his wife and on the second date above, 30 Nembutal tablets to
himself and Rajni Tandon for a non-medically justifiable purpose. The above referenced statutory subsections have also been charged as to these latter factual allegations. Additionally, it is alleged that the Respondent violated Section 458.331(1)(s) by being unable to practice medicine with reasonable skill and safety by reason of use of drugs or narcotics.
At the hearing, the Petitioner presented one witness and three exhibits.
All the Petitioner's exhibits were admitted into evidence. The Respondent presented five witnesses, consisting of himself and members of his family, and Exhibits A through E. Respondent's Exhibits C and D were admitted as corroborative hearsay evidence, pursuant to Section 120.58, Florida Statutes (1981). The remaining exhibits were admitted into evidence.
The issue to be resolved concerns whether the Respondent is guilty of the conduct and violations alleged in the administrative complaint and, if so, what, if any, penalty is warranted.
At the conclusion of the proceeding, the Petitioner elected to file proposed findings of fact and conclusions of law, which were timely filed on October 27, 1983. The Respondent waived that right.
All proposed findings of fact, conclusions of law and supporting arguments have been considered. To the extent that proposed findings and conclusions submitted are in accordance with the findings, conclusions and views stated herein, they have been accepted. To the extent that such proposed findings and conclusions and such arguments made are inconsistent herewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited.
FINDINGS OF FACT
The parties have stipulated that the Respondent is a licensed medical doctor, having been issued license number ME 0029977. He has been licensed in the State of Florida for approximately seven years and is a board eligible urologist. The Respondent practices in the field of general practice and urology.
The Petitioner is an agency of the State of Florida charged with administering and enforcing the licensure standards and practice standards set forth in Chapter 458, Florida Statutes, and related rules.
The Respondent's wife has a medical condition which causes her to be chronically drowsy and to be difficult to awaken or even to remain awake sometimes, even while conversing with other people. On or about April 18, 1980, the Respondent prescribed a total of 60 Ritalin tablets, a Scheduled II controlled substance, for Mrs. Tandon. The Respondent established that these were prescribed for a medically justifiable purpose, to enable his wife to remain awake and alert, and that the Respondent, in all prescriptions to family members, including his wife, was extremely conservative. Although he prescribed his wife Ritalin from time to time, he sometimes withheld it in order to avoid any chance of a dependency developing. In any event, because of her (unnamed) medical condition, the Ritalin was prescribed for a medically justifiable purpose. The Respondent did not prescribe Ritalin for his own use on this occasion.
More than two years later, on November 23, 1982, the Respondent executed a similar prescription for 60 Ritalin tablets. Once again these were not for the Respondent's own use.
On December 13, 1979, however, the Respondent prescribed a total of 50 Ritalin tablets to himself, as indicated on the prescription. These Ritalin were in reality for his wife's use.
On November 4, 1980, and on July 5, 1981, the Respondent on each of those occasions prescribed 30 Nembutal tablets for himself and his wife. This Nembutal was prescribed by the Respondent to himself because of a condition he had experienced of late involving difficulty in sleeping. The difficulty in sleeping was caused by anguish that he, as well as his wife, suffered related to their daughter's divorce which occurred not long after her carefully arranged marriage and elaborate East Indian wedding ceremony. In the East Indian culture such a divorce is a very traumatic experience for a family such as Dr. Tandon's, and it was sufficiently upsetting to Dr. Tandon and his wife to cause both of them to seek medical care. Indeed, Mrs. Tandon developed a hypertension condition during this period of family turmoil. The doctor freely admitted that on these occasions he prescribed the Nembutal for himself and on the December 13, 1979 occasion, prescribed the Ritalin not for himself, but in reality for his wife's use. The Respondent had no knowledge that such a pattern of prescribing for himself or for himself on behalf of his wife or a family member is legally proscribed under Chapter 458, Florida Statutes (1981) . . . Indeed, in India, as well as in Britain and parts of Europe, it is traditionally and legally acceptable for physicians to prescribe for themselves and their family members.
The Respondent established, as corroborated by Respondent's Exhibit D, that he is indeed a stable and sober person and a competent and caring physician. He openly prescribed the medication for his wife during a period of great stress and sadness on her part and could have easily have asked a colleague to write a prescription for her. He wrote the prescription in an open, honest manner, which he freely disclosed to the Petitioner when questioned, because he simply felt there was no reason to have a colleague issue the prescription since he was unaware that it was illegal for him to do so. Indeed, by Dr. David Honey, whose corroborative testimony appears in Exhibit D, it was shown that he could have given his wife sample medications which doctors characteristically have on hand in their offices, but preferred instead to forthrightly write a prescription for it, thus creating a record of that medication's prescription and use. In short, the Respondent established that he is a competent physician who is not given to misprescribing or overprescribing or otherwise misusing drugs at all. Indeed he currently, and before the subject prosecution, devoted approximately two days a week to a drug rehabilitation center and has donated his time for television appearances in his work combatting drug abuse. His practice has never been characterized by anything other than conservative prescription and administering of drugs and medications. He excels in his practice in the field of urology and indeed earned one of the highest scores on the examination when he was admitted to practice in Florida.
Near the conclusion of the proceeding, counsel for the Petitioner forthrightly agreed to dismiss the majority of the counts of the administrative complaint inasmuch as the evidence did not support them. Thus, the Petitioner continues to proceed with regard to the alleged violation of Section 458.331(1)(r), Florida Statutes (1981), related to the Respondent's prescribing of medication to himself. Thus, Counts I, II, V, VI, I, XI, and XII remain at issue at whole or in part in this proceeding.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1981).
Section 458.331(1)(r), Florida Statutes, provides pertinently as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(r) Prescribing, dispensing, or admin- istering any medicinal drug appearing on any schedule set forth in chapter 893 by the physician to himself . . .
It was established that Ritalin is a Scheduled II controlled substance pursuant to Chapter 893, Florida Statutes (1981), and that Nembutal is a Scheduled II controlled substance pursuant to that chapter.
It is obvious that the above-quoted sections of the medical practice act forbids the prescription of a controlled drug by a physician to himself. The remaining statutory violations charged, and the counts to which they are related, have been stipulated by the Petitioner to be dismissed. The April 18,
1980, prescription involved a prescription of 60 Ritalin tablets to Mrs. Tandon. There is no evidence of record to establish that this was prescribed for Respondent's own use and thus amounted to his prescribing for himself in contravention of the above-quoted subsection. The same is true with regard to the prescription of November 23, 1982, to Rajni Tandon. Here again the evidence of record does not establish that that prescription on its face was intended for the Respondent's use nor does it reflect that the Respondent diverted that medication to his personal use.
The evidence conclusively establishes (and Respondent admitted) that he prescribed 50 Ritalin tablets to himself on December 13, 1979, although the medication was actually intended for his wife's use. Thus, the finding of fact and the unrebutted evidence establish that he violated the above-quoted subsection.
With regard to the prescriptions of November 4, 1980, and July 5, 1981, involving 30 capsules of Nembutal on each of those widely-separated occasions, there is no question that in these instances the Respondent prescribed medication to himself in violation of the above authority, as he candidly admitted. Thus, it has been proven, as alleged in Count IX, that the Respondent prescribed the medication on December 13, 1979, to himself and thus Count IX alone, of the counts relating to those prescriptions, has been proven.
Count XI, regarding the Nembutal prescriptions has been proven as to its factual allegations, however, it was not established by competent substantial evidence that the prescriptions of that controlled substance were for another patient nor that they were for a medically unjustifiable reason. Therefore Count XI, although its underlying factual allegations were proven, was not proven with regard to its charge that Section 458.331(1)(q) , Florida Statutes, was thereby violated. The evidence establishes that the doctor had a medically appropriate reason for the prescriptions and thus did not depart from
the appropriate course of his professional practice. Count XII, containing the simple allegation that the Respondent violated Section 458.331 (1)(r) has, however, been proven.
As the above findings of fact and the evidence of record demonstrate, the Respondent has always conducted his practice in accordance with the highest professional standards and has exemplified very conservative propensities in his prescription and administering of controlled medications. His prescribing for himself, albeit illegal, was shown to be a customary and legal practice in his native India, and the Respondent established that on the three widely separated occasions when he wrote the subject prescriptions he had no intent to flout the requirements of Chapter 458, Florida Statutes, because he simply was unaware that such a practice was illegal. These were three widely separated, not regularly recurring, instances of such activity.
The Respondent's civic activity in the area of combatting drug abuse and in drug rehabilitation, as well as the proven conservative manner in which be conducts his professional practice, militates against any conclusion that the Respondent has any propensity to intentionally, falsely or fraudulently prescribe or administer drugs in any manner other than in the course of his professional practice; to fail to conform to generally prevailing standards of treatment in his community; nor that he is unable to practice medicine with reasonable skill and safety to his patients because of any illness or use of drugs or narcotics. In light of the totality of the circumstances surrounding this case, as revealed by the evidence of record and the above findings of fact, a minimal penalty is warranted.
RECOMMENDATION
Having considered the foregoing findings of fact, conclusions of law and the evidence of record, it is, therefore
RECOMMENDED:
That Dr. Prem Narain Tandon be found guilty of violating Section 458.331(1)(r), Florida Statutes (1981), and that he be fined $200 and that his license to practice medicine be subjected to a one month probationary status and that the administrative complaint, in all other particulars, be dismissed.
DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida.
P. MICHAEL RUFF, 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 30th day of November, 1983.
COPIES FURNISHED:
Barbara K. Hobbs, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Prem Narain Tandon, M.D.
15 West Columbia Street Suite "J"
Orlando, Florida 32806
Dorothy Faircloth, Executive Director Board of Medical Examiners
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary
Department or Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 83-001645
Orders for Case No: 83-001645
| Issue Date |
Document |
Summary |
|
Nov. 30, 1983 |
Recommended Order
|
Doctor was not shown to have departed from proper standard in his prescribing of drugs and related aspects of his practice.
|
