STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 83-2181

)

KOA-SHUN WU, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Tallahassee, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on November 22, 1983. The Division of Administrative Hearings received the transcript of the final hearing on December 13, 1983. The parties were represented by counsel:

For Petitioner: Joseph W. Lawrence, II, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Melissa Fletcher Allaman, Esquire and

Wilfred C. Varn, Esquire

Ervin, Varn, Jacobs, Odom & Kitchen Post Office Box 1170

Tallahassee, Florida 32302-1170

By administrative complaint dated June 22, 1983, petitioner alleged that respondent prescribed 5 mg. methadone tablets to Ralph B. Strouse at various times between April 29 and August 5, 1982, even though he knew or should have known that Mr. Strouse was "a drug abuser" at the time. The administrative complaint alleges that the prescriptions were not medically justifiable, that they were "inappropriate or in excessive or inappropriate quantities" and that respondent wrote them "other than in the course of his professional practice" in violation of "Section 458.331(1)(q), Florida Statutes (1981)." In Counts Two and Three, the administrative complaint alleges that the same conduct amounted to "deceptive, untrue, or fraudulent representations. . . or employing a trick or scheme in the practice of medicine" in violation of "Section 458.331(1)(1), Florida Statutes (1981)" as well as the failure "to perform [a] statutory or legal obligation placed upon a licensed physician" in violation of "Section 458.331(1)(h) Florida Statutes (1981)" inasmuch as respondent was not certified to operate a methadone maintenance program under federal law. The administrative complaint alleges that methadone is "a schedule II controlled substance pursuant to Chapter 893, Florida Statutes (1981)."

Respondent violated the same statutory provisions, the administrative complaint alleges, in prescribing 5 mg. methadone tablets to Frank Snider, whom

respondent also allegedly knew or should have known to be "a drug abuser," at various times between June 11 and August 6, 1982. Counts Four, Five and Six.

The administrative complaint alleges in Counts Seven, Eight and Nine that respondent violated the same statutory provisions in prescribing 5 mg. methadone tablets to Frankie A. Bailey a/k/a Frankie Smith, whom respondent also allegedly knew or should have known to be "a drug abuser," at various times between July 5 and August 9, 1982.

In Counts Ten, Eleven and Twelve, the administrative complaint alleges that respondent violated the same statutory provisions on or about May 20, 1982, when he "prescribed 40 Methadone tablets (5 mg.)" for Angel Reel, who "was a drug abuser, a fact that was known or should have been known to Respondent."

Counts Thirteen, Fourteen and Fifteen of the administrative complaint allege that respondent violated the same statutory provisions in prescribing 5 mg. methadone tablets for Wayne Huskins who was allegedly "a drug abuser, a fact that was known or should have been known to Respondent," at various times between June 14 and August 7, 1982.

Counts Sixteen, Seventeen and Eighteen of the administrative complaint allege that respondent violated the same statutory provisions in prescribing 5 mg. methadone tablets for Jennifer G. Jones who was allegedly "a drug abuser, a fact that was known or should have been known to Respondent," at various times between April 28 and July 21, 1982.

Counts Nineteen, Twenty and Twenty-One of the administrative complaint allege that respondent violated the same statutory provisions in prescribing 5 mg. methadone tablets for Henry M. Cain a/k/a Michael Cain, who was allegedly "a drug abuser, a fact that was known or should have been known to Respondent," at various times between July 19 and August 9, 1983.

Counts Twenty-Two, Twenty-Three and Twenty-Four of the administrative complaint allege that respondent violated the same statutory provision in prescribing 5 mg. methadone tablets for Mary J. Strouse [sic], who was allegedly "a drug abuser, a fact that was known or should have been known to Respondent," at various times between May 31 and August 5, 1982.

Counts Twenty-Five, Twenty-Six and Twenty-Seven of the administrative complaint allege that respondent violated the same statutory provisions in prescribing 5 mg. methadone tablets for Deborah Ashel, who was allegedly "a drug abuser, a fact that was known or should have been known to Respondent, "at various times between July 19 and August 9, 1982.

Counts Twenty-Eight, Twenty-Nine and Thirty of the administrative complaint allege that respondent violated the same statutory provisions in prescribing 5 mg. methadone tablets for William Asbel, who was allegedly "a drug abuser, a fact that was known or should have been known to Respondent," at various times between June 25 and August 9, 1982.

Finally, in Count Thirty-One, the administrative complaint alleges that the foregoing amounts to "gross 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" in violation of "Section 458.331(1)(t), Florida Statutes (1981)."

After respondent disputed the allegations of the administrative complaint, the matter was referred to the Division of Administrative Hearings for formal proceedings pursuant to Section 120.57, Florida Statutes (1981)

The parties have filed proposed recommended orders, on January 3, 1984, including proposed findings of fact, which have been adopted, in substance, for the most part. To the extent proposed findings have not been adopted, it is because they were not supported by the weight of the evidence or were irrelevant, immaterial, subordinate or cumulative.

FINDINGS OF FACT

1. At all pertinent times, respondent Koa-Shun Wu has been licensed to practice medicine and surgery in Florida. He holds license No. 32315.

   
   

2. Dr. Wu trained in Taiwan as a thoracic surgeon. He taught in medical school there and published in his field. When Dr. Wu emigrated to the United States, he hoped to obtain a surgical residency here. Not finding such a position, he took a job at Polk General Hospital in Lakeland as a house physician, then worked as a staff physician in Polk General Hospital's ambulatory care center. In the spring of 1981, Dr. Wu began a general practice near Winter Haven, about 40 miles from Tampa. This lasted some fifteen months. His wife worked with him in the office but it was hard making a go of it financially and, in August of 1982, he closed the practice in order to take his present job at the Florida State Hospital in Chattahoochee. His professional reputation there is good.

   
   

3. On April 13, 1982, a 29-year-old woman giving her name as Jennifer Gail Jones presented herself at Dr. Wu's office saying she needed a Pap smear because she was going to join a methadone program in Tampa. She returned on April 28, 1982, complaining of the frequency of her micturition and of discomfort when she urinated. Dr. Wu performed a physical examination and diagnosed a urinary tract infection. On that visit, according to his office records, in addition to dispensing medicine for this infection, Dr. Wu prescribed 50 milligrams of methadone "daily P.R.N,," a total of 30 ten milligram tablets. Joint Exhibit B. Other testimony established that five milligram methadone tablets, but not ten milligram methadone tablets, were available at local pharmacies. Depositions of Fox, Garrett. Perhaps this was communicated to Dr. Wu who wrote a revised prescription. In any event, the prescription that was filled for Jennifer G. Jones on April 28, 1982, was for 60 five milligram methadone tablets and the dosage prescribed was "fifty mg. p. o. daily in A.M." Joint Exhibit R.

   
   

4. Dr. Wu wrote this prescription for methadone, his first, after the patient told him she had enrolled in a methadone maintenance program in Tampa on April 12, 1982. (This did not gibe precisely with her statement on her initial visit on April 13 that she was "going to join" at that time.) She said she was receiving 50 milligram doses daily at the Tampa clinic but that some days she could not go to Tampa because she had to work in Winter Haven. Dr. Wu took her at her word and acted to make the same dose available to her on days she did not get to the clinic as she received when she made the trip there. With this straightforward and arguably reasonable step, the die was cast. For this same patient, respondent prescribed an additional 30 five milligram tablets on May 5, 1982, with a prescribed dosage of 20 milligrams every other day and, on May 17, 1982, 40 five milligram tablets at the same dosage. On May 28, 1982, respondent prescribed 24 five milligram tablets to be taken twice daily "on days not going to Tampa clinic." On June 8 and 17, and July 21, 1982, respondent wrote prescriptions for Jennifer Jones, each for 24 five milligram methadone tablets,

   and each at the dosage of 30 milligrams every other day. (Counts Sixteen, Seventeen and Eighteen)

   
   

5. Word spread among other clients of the Tampa methadone program and reached a heroin addict who had not enrolled in a methadone maintenance program, as well. The latter, Mary Joyce Strouse, lied to Dr. Wu on this point. On May 3, 1982, she told him that she had enrolled in the Tampa program a year earlier and that she was receiving 35 milligrams of methadone daily at the clinic. On May 29, June 9 and 25, July 9, 16 and 29 and August 5, 1982, Dr. Wu wrote methadone prescriptions for her. Each was for 24 five milligram tablets and the prescribed dosage was 30 milligrams every other day, except for the first prescription which was 15 milligrams every other day, "P.R.N." or "if not go to Tampa clinic." Joint Exhibit R. Ms. Strouse took the methadone so she "wouldn't have to buy street dope." Deposition of Ms. Strouse, p.10. (Counts Twenty-two, Twenty-three and Twenty-four)

   
   

6. Respondent wrote all eleven of the methadone prescriptions for Ralph B. Strouse alleged in Count One. On Mr. Strouse's initial visit, respondent performed a physical examination and took his history, and, on another visit, he removed a bullet lodged in his thigh. He treated various other ailments as well. (Count One, Two and Three) Respondent wrote the seven methadone prescriptions for Voncil Frank Woodrow Snider alleged in Count Four. On the initial visit, he performed a physical examination, and concluded that Mr. Snider was mildly hypertensive and mildly obese. Respondent wrote the four methadone prescriptions for Frankie A. Bailey a/k/a Frankie Smith alleged in Count Seven, the methadone prescription for Angel Reel alleged in Count Ten, the nine methadone prescriptions for Wayne Hoskins alleged in Count Thirteen, the four methadone prescriptions for Henry M. Cain a/k/a Michael Cain alleged in Count Nineteen, the four methadone prescriptions for Deborah Asbel alleged in Count Twenty-five and the latter six of the seven methadone prescriptions for William Asbel alleged in Count Twenty-Eight.

   
   

7. Except for Mary Joyce Strouse and Voncil Frank Woodrow Snider, the patients for whom Dr. Wu prescribed methadone participated in a Tampa methadone maintenance program. (Mr. Snider participated in such a program in Orlando.) The Tampa participants were not told what their methadone dosages were. The levels they reported to Dr. Wu were speculation at best. On several occasions Dr. Wu asked for and received receipts from the methadone maintenance clinics indicating current participation, but he did not always do this, and he never telephoned or otherwise contacted either clinic.

   
   

8. In all, he wrote some 60 prescriptions for ten people. He charged $20 for an initial office visit and $15 per office visit thereafter. There was no surcharge for methadone prescriptions. (He charged $125 to remove the bullet from Mr. Strouse's thigh.) More than once, Mr. Fox, the pharmacist, telephoned and questioned respondent about the propriety of the methadone prescriptions.

   At least one patient recalled Dr. Wu's consulting a copy of the Physicians' Desk Reference. Every prescription he wrote after May 20, 1982, (and all but three of the total) was for 24 five milligram tablets.

   
   

9. The 1983 Physicians' Desk Reference has this to say about methadone, which is sold under the trade name Dolophine Hydrochloride:

   
   

   CONDITIONS FOR DISTRIBUTION AND USE OF METHADONE PRODUCTS:

   Code of Federal Regulations. Title 21. Sec. 291.505

   METHADONE PRODUCTS. WHEN USED FOR THE TREATMENT OF NARCOTIC ADDICTION IN DETOXIFICATION OR MAINTENANCE PROGRAMS, SHALL BE DISPENSED ONLY BY APPROVED HOSPITAL PHARMACIES, APPROVED COMMUNITY PHARMACIES, AND MAINTENANCE PROGRAMS

   APPROVED BY THE FOOD AND DRUG ADMINISTRATION AND THE DESIGNATED STATE AUTHORITY.

   
   

   APPROVED MAINTENANCE PROGRAMS SHALL DISPENSE AND USE METHADONE IN ORAL FORM ONLY AND ACCORDING TO THE TREATMENT REQUIREMENTS STIPULATED IN THE FEDERAL METHADONE REGULATIONS (21 CFR 291.505).

   
   

   FAILURE TO ABIDE BY THE REQUIREMENTS IN THESE REGULATIONS MAY RESULT IN CRIMINAL PROSECUTION, SEIZURE OF THE DRUG SUPPLY, REVOCATION OF THE PROGRAM APPROVAL, AND INJUNCTION PRECLUDING OPERATION OF THE PROGRAM.

   
   

   A METHADONE PRODUCT, WHEN USED AS AN ANALGESIC, MAY BE DISPENSED IN ANY LICENSED PHARMACY.

   
   

   Indications: (See Note below.) For relief of severe pain.

   For detoxification treatment of narcotic addiction.

   For temporary maintenance treatment of narcotic addiction.

   
   

   NOTE

   If methadone is administered for treatment of heroin dependence for more than three weeks, the procedure passes from treatment of the acute withdrawal syndrome (detoxification) to maintenance therapy. Maintenance

   treatment is permitted to be undertaken only by approved methadone programs.

   This does not preclude the maintenance treatment of an addict who is hospitalized for medical conditions other than addiction and who requires temporary maintenance during the critical period of his stay or whose enrollment has been verified in a program which has approval maintenance treatment with methadone.

   
   

   Contraindication: Hypersensitivity to methadone.

   Warnings: Methadone hydrochloride, a narcotic, is a Schedule II controlled substance under the Federal Controlled

   Substances Act. Appropriate security measures should be taken to safeguard stocks of methadone against diversion. DRUG DEPENDENCE--METHADONE CAN PRODUCE DRUG DEPENDENCE OF THE MORPHINE TYPE AND, THEREFORE, HAS THE POTENTIAL FOR BEING ABUSED. PSYCHIC DEPENDENCE, PHYSICAL DEPENDENCE, AND TOLERANCE MAY DEVELOP UPON REPEATED ADMINISTRATION OF METHADONE, AND IT SHOULD BE PRESCRIBED AND ADMINISTERED WITH THE SAME DEGREE OF CAUTION APPROPRIATE TO THE USE OF MORPHINE.

   
   

   Adverse Reactions: THE MAJOR HAZARDS OF METHADONE. AS OF OTHER NARCOTIC ANALGESICS, ARE RESPIRATORY DEPRESSION AND, TO A LESSER DEGREE, CIRCULATORY DEPRESSION. RESPIRATORY ARREST, SHOCK, AND CARDIAC ARREST HAVE OCCURRED.

   
   

   Dosage and Administration: For Relief

   of Pain--Dosage should be adjusted according to the severity of the pain and the response of the patient. Occasionally it may be necessary to exceed the usual dosage recommended in cases of exceptionally

   severe pain or in those patients who have become tolerant to the analgesic effect of narcotics.

   
   

   For Detoxification Treatment--THE DRUG SHALL BE ADMINISTERED DAILY UNDER CLOSE SUPERVISION AS FOLLOWS:

   A detoxification treatment course shall not exceed 21 days and may not be repeated earlier than four weeks after completion of the preceding course.

   
   

   In detoxification, the patient may receive methadone when there are significant symptoms of withdrawal. The dosage schedules indicated below are recommended but could be varied in accordance with clinical judgment.

   Initially, a single dose of 15 to 20 mg. of methadone will often be sufficient to suppress withdrawal symptoms. Additional methadone may be provided if withdrawal symptoms are not suppressed or if symptoms reappear. When patients are physically dependent on high doses, it may be necessary to exceed these levels. Forty mg./day in single or divided doses will usually constitute an adequate stabilizing dosage level. Stabilization can be continued for two to three days, and then the amount of methadone normally will be gradually decreased. The rate at which

   methadone is decreased will be determined separately for each patient. The dose of methadone can be decreased on a daily basis of at two-day intervals. But the amount of intake shall always be sufficient to keep withdrawal symptoms at a tolerable level.

   In hospitalized patients, a daily reduction of 20 percent of the total daily dose may

   be tolerated and may cause little discomfort. In ambulatory patients, a somewhat slower schedule may be needed. If methadone is administered for more than three weeks, the procedure is considered to have progressed from detoxification or treatment of the

   acute withdrawal syndrome to maintenance treatment, even though the goal and intent may be eventual total withdrawal.

   Overdosage: Symptoms--Serious overdosage of methadone is characterized by respiratory depression (a decrease in respiratory rate and/or tidal volume, Cheyne-Stokes respiration, cyanosis), extreme somnolence progressing to stupor or coma, maximally constricted pupils, skeletal-muscle flaccidity, cold and clammy skin, and, sometimes, bradycardia and hypotension. In severe overdosage, particularly by the intravenous route, apnea, circulatory collapse, cardiac arrest, and

   death may occur.

   
   

   The foregoing appears under the heading "AMPOULES AND VIALS" to which a reader consulting the "Tablets" Section is referred. In each instance, Dr. Wu undertook maintenance and/or detoxification treatment of narcotic addicts, as opposed to prescribing methadone as an analgesic. Prescriptions for analgesic purposes by an oncologist in the Winter Haven area were for greater quantities (100 tablets) than Dr. Wu prescribed. As a matter of policy, maintenance doses at the Tampa clinic do not exceed 50 milligrams daily but there was testimony that 80 milligrams a day at another clinic in the area was not uncommon and that maintenance doses of 100 or even 120 milligrams, are not unheard of. Dr. Wu referred to Goodman's Textbook of Pharmacology (1980) which states: "Subjects who are maintained on daily oral doses of 100 mg. of methadone for more than 8 weeks still seem sedated and apathetic . . . [but] sedation and apathy are easily managed by reductions in dosage." At 547. Elsewhere the same text states, in reference to methadone maintenance: "Most commonly the procedure consists in the daily administration of 40 to 100 mg. of methadone . . ." At 574.

   
   

10. Physicians who treat heroin addiction do not prescribe methadone even when urinalysis reveals the presence of an opiate, unless they observe objective signs (goose bumps, rhinorrhea, elevated blood pressure, body temperature, and pulse rate, etc.) corroborating reported symptoms of withdrawal. They want objective proof of addiction, not just use, before prescribing a maintenance dose of methadone, although they rely on the addict's subjective symptoms to some extent in calibrating the dosage. When the initial dose of methadone is administered, the addict is observed for a half hour, against the possibility of some adverse reaction. After the magnitude of the maintenance dose is determined, it may remain unchanged for months or years. Only when an addict

    and his counselor agree that there is hope for turning over a new leaf does therapeutic detoxification, the gradual diminution of the methadone dose, occur. Administrative or punitive detoxification, a relatively rapid decrease in dosage, may occur if an addict fails to abide by the rules of the maintenance program by, for example, ingesting or injecting addictive substances other than methadone. Urine samples are regularly taken from persons in methadone maintenance programs and analyzed for evidence of extracurricular drug use.

    Such analysis can detect the use of heroin but does not ordinarily reveal extra doses of methadone. From the standpoint of an addict who seeks some analgesic or euphoric effect, additional methadone is the ideal way to augment what the clinic prescribes. Partly for this reason, methadone maintenance programs require, at least initially, that their clientele appear personally for each dose, which is administered on the premises. This practice also makes continuity in counseling and urine screening more likely, and minimizes the danger of methadone reaching somebody for whom it was not intended. As time goes on, the program client may be entrusted with one or more "take homes," doses he is to administer to himself off the premises. It is not acceptable practice to give somebody on another maintenance program a dose of methadone without communicating with the people operating the other program.

    
    

11. Paragraph 291, Title 21 of the Code of Federal Regulations spells out in detail the legal restrictions that federal law places on methadone maintenance programs. Neither a private medical practitioner nor any other person or organization can lawfully prescribe methadone for a patient for more than three days without being approved as a methadone treatment program by the health authorities. Dr. Wu never sought nor obtained such approval.

    
    

12. Methadone is a Schedule II narcotic, a synthetic central nervous system depressant with effects like that of morphine. Dr. Wu testified without contradiction that be believed that the DEA license which he held at all pertinent times authorized him to prescribe all Schedule II narcotics, and that the legal restrictions on dispensing methadone that appeared in the Physicians' Desk Reference did not apply to DEA license holders like himself. These beliefs, were and are erroneous. Goodwin's Textbook of Pharmacology (1980) states: "In the United States, special controls on methadone have been enacted.

    . . " At 519.

    
    

13. When Dr. Wu closed his office, the only notice he gave his patients was posted on the door at the office at the time he left.

    
    

    CONCLUSIONS OF LAW

    
    

14. Petitioner is authorized to take disciplinary action, including

    
    

    1. Revocation or suspension of a license.

    2. Restriction of practice.

    3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    4. Issuance of a reprimand.

    5. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination,

or to work under the supervision of another physician.

Section 458.331(2), Florida Statutes (1981 and

1982 Supp.),

whenever a licensee like respondent is shown to have been guilty of

1. Failing to perform any statutory or legal obligation placed upon a licensed physician.

   1. Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community.

(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend

drug, including any controlled substance, other than in the course of the physician's professional practice.

(t) Gross 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.

Section 458.331(1), Florida Statutes (1981

and 1982 Supp.)

all of Which were alleged in the present case.

1. In a matter as grave as license revocation proceedings the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at the hearing. Florida Real Estate Commission v. Webb, 367 So.2d

   201 (Fla. 1979). License revocation proceedings have been said to be "`penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d

   391 (Fla. 1974); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).

   
   

2. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman,238 So.2d 594 (Fla. 1970).

   
   

3. Petitioner sought to prove that respondent violated Section 458.331(1)(q), Florida Statutes (1981), which prohibits a physician's

   prescribing drugs "other than in the course of his professional practice." The evidence was clear that the persons for whom Dr. Wu prescribed methadone came to him as a physician. Many of them were treated for other ailments. But petitioner relies on the following statutory presumption:

   
   

   For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his intent.

   
   

   Section 458.331(1)(q), Florida Statutes (1981 and 1982 Supp.)

   
   

   If these prescriptions had been otherwise appropriate, the quantities could not be said to he excessive or inappropriate. Virtually all of the prescriptions were for 24 five milligram tablets, a total of 120 milligrams, to be taken over a period of at least a week. The evidence showed that some opiate addicts receive 120 milligrams of methadone every day as a maintenance dose.

   
   

4. As far as the evidence showed, every patient for whom Dr. Wu prescribed methadone was already on a methadone maintenance regimen or, in the case of Mary Joyce Strouse, addicted to heroin. If the requirements of federal law are put to one side, an argument can be made that methadone was an appropriate prescription for Mary Joyce Strouse and might have eventually led to the end of her heroin addiction. Her own perception of Dr. Wu as just another source of drugs might not have been very different from how other addicts perceived the approved methadone maintenance program. On the other hand, the only evidence Dr. Wu had of her addiction was her own statement, which, according to the credible expert testimony, was not enough. Even giving Dr. Wu the benefit of the doubt with respect to the heroin addict not already receiving methadone, the evidence was clear that it is inappropriate to prescribe methadone for a person known to be enrolled in a methadone maintenance program without communicating with responsible persons in the program. Extra doses may result in increased tolerance and interfere with the maintenance program. By virtue of the statutory presumption, unrebutted in this case, petitioner has established a violation of Section 458.331(1) Florida Statutes (1981). Respondent concedes that this course of behavior amounted to a violation of Section 458.331(t), Florida Statutes (1981).

   
   

5. With commendable candor, counsel for respondent also concede that respondent failed "to perform [a] statutory or legal obligaton" in violation of Section 458,331(1)(h), Florida Statutes (1981), by violating federal law in prescribing methadone for the maintenance of opiate addicts, without having obtained the requisite approval.

   
   

6. The evidence did not establish any deception, falsehood, fraud, trickery or scheme on respondent's part. No violation of Section 458.331(1)(e), Florida Statutes (1981) was proven.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner suspend respondent's license for three months, but stay the suspension, on condition that respondent successfully complete two years' probation during which probation he be forbidden to prescribe controlled substances and be required to take at least fifty (50) hours of continuing professional education pertaining to controlled substances.

DONE and ENTERED this 19th day of January, 1984, in Tallahassee, Florida.

ROBERT T. BENTON II

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 19th day of January, 1984.

COPIES FURNISHED:

Joseph W. Lawrence, II, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Melissa Fletcher Allaman, Esquire and Wilfred C. Varn, Esquire

Ervin, Varn, Jacobs, Odom & Kitchen Post Office Box 1170

Tallahassee, Florida 32302-1170

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth, Executive Director

Board of Medical Examiners Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

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

AGENCY FINAL ORDER

================================================================= DEPARTMENT OF PROFESSIONAL REGULATION

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO. 83-2181

KOA-SHUN WU, M.D.

License No. 32315

Respondent.

/

FINAL ORDER

THE BOARD OF MEDICAL EXAMINERS

This matter came before the Board of Medical Examiners (Board hereinafter) pursuant to Section 120.57(1)(b)9., Florida Statutes, on February 12, 1984, in Tampa, Florida, for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled matter. The Petitioner was represented by Joseph W. Lawrence, II, Esquire. The Respondent was represented by Melissa Fletcher Allaman, Esquire and Wilfred C. Varn, Esquire. After review of the Recommended Order, the argument of the parties, and after a review of the complete record in this matter, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The hearing officer's findings of fact are approved and adopted in toto and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's findings of fact.

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated by reference.

   
   

2. There is competent, substantial evidence to support the Board's conclusions of law.

   
   

3. After a review of the complete record in this matter, the Board accepts in part and rejects in part the hearing officer's recommended penalty.

WHEREFORE, it is ORDERED AND ADJUDGED that the Florida medical license of the Respondent be and hereby is suspended for a period of three (3) months beginning the effective date of this Order. However, the suspension is stayed and the Respondent's license is placed on probation for a period of five (5) years. As conditions of his probation, Respondent shall practice medicine only in a structured medical environment at the State Hospital in Chattahoochee, Florida, under the supervision of Dr. Ferris and he shall make semi-annual personal appearances before the Board. 1/ The Respondent is assessed an administrative fine of five thousand dollars ($5,000.00) to be paid within one

(1) year after the effective date of this Order. This Order becomes effective upon filing,

DONE AND ORDERED this 2 day of March, 1984.

Richard J. Feinstein, M.D. Chairman, Board of Medical

Examiners

ENDNOTE

1/ In the presence of his counsel, Respondent knowingly and voluntarily waived confidentiality, as to the Board only, of any investigative reports prepared by the Department during his probation.

Docket for Case No: 83-002181

Orders for Case No: 83-002181