STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL )
REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 84-0756
) TARIQ HUSAM ABDULLAH, M.D., ) a/k/a HENRY NICHOLS, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by Ella Jane P. Davis, the assigned Hearing Officer of the Division of Administrative Hearings on November 21, 1984 at Panama City, Florida.
APPEARANCES
For Petitioner: Joseph L. Shields, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Reese Marshall, Esquire
201 West Union Street Jacksonville, Florida 32202
PROCEDURAL BACKGROUND, EVIDENTIARY RULINGS AND POST HEARING SUBMISSIONS
By a fifteen count administrative complaint filed with the Division of Administrative Hearings on February 28, 1984, Petitioner sought to revoke, suspend, or otherwise discipline Respondent's license to practice medicine. By election of rights, Respondent requested a formal hearing pursuant to Section 120.57(1), Florida Statutes.
Although the administrative complaint was filed using only patient initials and although charging paragraph 24 of Count VII contains partially incorrect initials, the parties had full opportunity for discovery and no surprise nor failure of proof was asserted by Respondent upon the basis of Petitioner's use of full patient names at formal hearing.
Petitioner obtained confidential records by service of an agency subpoena upon Respondent through one of its investigators and has offered no evidence of patient releases therefor. Respondent has likewise offered two patient records as evidence, one of which was obtained from outside his office, as evidence without offering any patient releases therefor.
Information confidential to patients has thereby been utilized in these proceedings pursuant to Section 455.241(2), Florida Statutes. Because of the use of patient records and the names therefrom throughout formal hearing, depositions, and Requests for Admissions and other pleadings, the entire record of this cause as well as all patient records should be sealed pursuant to Section 455.241(2), Florida Statutes. The file of the Division of Administrative Hearings shall be sealed administratively.
Petitioner's Request for Admissions dated April 10, 1984 and Respondent's Response dated May 29, 1984 were recognized for purposes of formal hearing and this Recommended Order.
Petitioner presented the testimony of Jabe Armistead Breland, M.D. and Matthew W. Cohen, M.D. (by previously-taken deposition P-14), and had admitted in evidence Exhibits P1-12 and P14-15. Petitioner withdrew Exhibit P-13. 1/
Respondent presented the testimony of Respondent at hearing and that of Joseph C. Wilson, M.D. (by after-filed deposition, R- 3), and had admitted Exhibits R-1-2[TR-184,200] and R-3 supra.
Respondent's Motion to Dismiss at the close of Petitioner's case was taken under advisement, and is ruled upon within the instant Recommended Order.
Opportunity for written objections to each deposition (P-14; R-3) was provided by the post-trial schedule; no objections were filed and are therefore deemed waived. However, where exhibits relied on by Dr. Cohen in his prehearing deposition (P-14) were subsequently not admitted at formal hearing (P-13, withdrawn) or were not part of pre-numbered exhibits P1-12 as edited/corrected prior to the parties' final stipulation for admission, that testimony and those exhibits have been disregarded as predicated upon materials never properly in evidence.
Subsequent to filing of the transcript of the formal hearing with the the Division of Administrative Hearings on February 4, 1985 several post-hearing motions were ruled upon resulting in closure of the time for filing of proposed findings of fact and conclusions of law on March 22, 1985.
Each party has submitted proposed findings of fact and conclusions of law. Although each party's proposals are sparse of proposed findings of fact, legal citations, and statutory references to support proposed conclusions of law, all submissions have been considered and weighed in light of the record and in preparation of this Recommended Order, and a ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
ISSUES
Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(n), Florida Statutes [failure to keep written medical records justifying the course of treatment of patients as set out in Counts 1-4, 6-9, 11, and 13-14 of the administrative complaint].
Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(cc) 1, 2, and 3, Florida Statutes [prescription of an amphetamine drug for purposes other than specifically stated in those subsections as set out in Counts 5 (Preludin), 10 (Preludin), and 12 (Ritalin) of the administrative complaint].
Whether Respondent's license shall be disciplined for violations of Section 453.331(1)(t), Florida Statutes [by engaging in 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 as set out in Counts 1-15 inclusive, of the administrative complaint].
FINDINGS OF FACT
Respondent, Tariq Husam Abdullah, is a licensed medical physician, practicing under license number ME 0021526. He is also known as Henry Nichols. The two are one and the same and there is no dispute over identity.
Respondent appears to have been a hard worker, rising from a "bed pan hustler" at the old Fort Walton Hospital to his current level of education, licensure, and community position. Previous to Florida licensure, Respondent received his medical degree from Meharry Medical College in Nashville, Tennessee, where he also did his internship in straight medicine. Thereafter, Respondent performed three years of anatomical and experimental pathology at Washington University School of Medicine in St. Louis, Missouri, and two years in clinical pathology at the National Institute of Health and the United States Public Health Service in Bethesda, Maryland. Respondent is not board-certified, but is currently board-eligible in both pathology and laboratory medicine.
At all times material hereto, Respondent engaged in medical practice in Bay County, Florida. During much of the time in question, Respondent had no assisting staff. His usual fee for each office visit of each of the patients referred to in the fifteen count administrative complaint was approximately $15-
20 maximum. They are a small portion of the approximately 1,000 patients he treated between 1978 and 1982, and in most cases his fees for office visits were
$10.00 apiece. Sometimes his fees were paid and sometimes they were not paid. Medicaid and Medicare reimbursed all or a portion of many fees.
In the course of his practice Respondent treated the following patients: D.B.; T.B.; Tommy B.; J.C.; L.C.; T.G. a/k/a L.C.; David G.; Dan G.; C.R.; B.W.; and J.M.
Petitioner's expert-witness medical doctors were Jabe Armistead Breland and Michael W. Cohen.
Dr. Breland was present at the formal hearing and had the advantage of reviewing Respondent's exhibits as well as Petitioner's exhibits in the forming of his opinions. Dr. Breland has been a licensed medical doctor in the State of Florida since September 1950. Most of that time he has practiced in the panhandle of north Florida which includes Panama City, Bay County. His office is in Marianna, Florida. He is board- certified in family medicine, licensed by the federal government to prescribe controlled substances, and was stipulated as an expert in the field of medicine.
Dr. Michael W. Cohen testified by means of a deposition taken prior to formal hearing and did not have the advantage of review of Respondent's exhibits admitted in evidence at the formal hearing. He is a family physician with an
M.D. from the University of Miami School of Medicine (1975), a graduate of Tallahassee Memorial Hospital Regional Medical Center Family Practice Program, and has been a board-certified family physician for six and one-half years. His practice is limited to Tallahassee and he has testified on contract for Petitioner six times previous to this case. He is accepted by the undersigned
as an expert medical witness, but because of the unavailability to Dr. Cohen of Respondent's exhibits which were admitted in evidence at the formal hearing held subsequent to his deposition and because some of the materials upon which Dr.
Cohen's opinions were predicated were excluded from evidence at the formal hearing, the weight and credibility of his prior deposition testimony is significantly impaired through no fault of Dr. Cohen and without any unfavorable reflection upon him. Dr. Wilson, Respondent's expert medical doctor who testified by after-filed deposition knew nothing of Respondent's records and was unaware of the precise charges against him. In the absence of appropriate predicate as to medical opinion, his testimony has been accepted only as to facts of which he had personal knowledge and as to character. It is his opinion that Respondent is the kind of person who deserves not to have his license suspended or revoked. Dr. Wilson partly financed Respondent's education.
The parties by Request for Admission have established that Preludin is an amphetamine; more accurately Preludin is phenmetrazine. Ritalin is methylphenidate. Dioxan is a methylamphetamine. At all times pertinent these were Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Percodan is also a Schedule II controlled substance. Valium is a Schedule IV controlled substance. Darvon Compound and Tylenol 4 are Schedule III controlled substances.
Respondent frequently talked to police, Sheriff's deputies and pharmacists in an effort to avoid his patients becoming addicted to drugs. He never was made aware from any source of any drug addiction or any arrests of any patients concerned in this action. He testified that he performed a physical examination in every case and verified all prior medications in every case, but he also conceded not verifying prior medications with previous doctors or hospitals. It is specifically found that in many instances none of these precautions appear in his records as set out infra.
D. B. (Counts I; XV)
It is admitted (Requests for Admission) and found that between February 19, 1979, and April 23, 1983, Respondent prescribed at least the following quantities of controlled substances to his patient, D. B.:
DATE | DRUG | STRENGTH | QUANTITY |
02/19/79 | Percodan | Approximate | |
04/30/79 | Darvon Compound | ||
03/23/82 | Valium | ||
05/13/82 | Tylenol #4 | ||
06/03/82 | Percodan Demi | 40 | |
06/16/82 | " " | 18 | |
07/10/82 | " " | ||
07/17/82 | " " | 36 | |
08/14/82 | " " | 18 | |
08/28/82 | Percodan | ||
08/28/82 | Valium | ||
01/15/83 | Percodan | ||
03/26/83 | " | ||
03/26/83 | Valium | ||
04/23/83 | Percodan |
Respondent's treatment of his patient, D.B. with controlled substances was predicated upon his diagnosis of "traumatic arthritis." His records reflect, "hurting ankle, leg, and back" as the chief complaint. In no instance of prescribing scheduled drugs for this patient did Respondent maintain a record of the strength (dosage) and on only a few occasions did he record the quantity prescribed. This particular inadequacy of record-keeping seems also to have applied to additional non- scheduled drugs prescribed by Respondent for this patient. Although Dr. Breland acknowledged that many doctors only record the word "refill," good medical practice dictates that Respondent should have recorded at least the quantity and dosage at the time of the initial prescription. Normal protocol would be to also record the method of taking the medication. On this analysis, in Dr. Breland's professional medical opinion, Respondent's medical records for his patient, D.B. (Composite P-1) were inadequate and did not justify the course of treatment upon the recorded chief complaint. Dr. Cohen concurs. Further record inadequacies as noted by Dr. Breland include failure of the records to indicate which bone was fractured in relating the patient's medical history, recording only blood pressure as a vital sign, and failure to state what condition was being treated on subsequent visits. Dr. Cohen recited the same inadequacies in forming his professional medical opinion that Respondent's records do not justify the treatment received.
Dr. Cohen further opined that if the patient had traumatic arthritis, the treatment prescribed was wholly inadequate due to the absence of any recorded plans for therapy. Dr. Breland, on the other hand, felt that a Percodan prescription is consistent with good medical practice for a patient who complains of traumatic arthritis and that Valium, a benzodiazepine drug which is a calmative or tranquilizer, may also be properly used for traumatic arthritis but that Valium would be contraindicated if there were associated patient nervousness and anxiety.
Dr. Breland's opinion is that it would not be medical malpractice to prescribe Valium upon the basis of Respondent's records nor would it be medical malpractice based upon the continued prescribing of Percodan unless the patient became addicted. Dr. Breland's experience is that 1-3 months on Percodan would cause individuals to run the risk of addiction but knows of doctors in the Panama City locale who have prescribed Percodan in excess of three months with addiction resulting in some patients and not in others.
Respondent conceded that his records for this patient should show greater detail but according to his recollection independent of the medical records, he recalled that on the first visit, he had accepted D.B.'s representation that D.B. had had prior surgery on the left ankle because the pins could be seen through that swollen ankle. Respondent's independent recollection was that D.B. did not ask for Percodan. Respondent testified that he prescribed the Percodan because "after codeine I can't think of another drug with potential for comfort." His failure to record further detail he explained as his belief that writing down prescriptions was a sufficient reference back to the original first visit diagnosis. Respondent admittedly did not record, but expressed independent recollection of also accepting D.B.'s representation of previous unsuccessful medication with codeine from a Dr. Smith and of recommending acupuncture as an alternative pain therapy but admitted he also did not record this latter instruction. The medical records themselves confirm Respondent's testimony in the course of the hearing that Respondent prescribed the scheduled drugs in addition to a number of other medications such as Roboxin and anti-inflammatories which he did record and which Dr. Breland confirmed were appropriate as treatment for traumatic arthritis.
A portion of Petitioner's Composite Exhibit 15, court certified records, show one "Donald Richard Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person was subsequently tried and found guilty of one count and entered a plea of guilty to the other. A Circuit Court Judgment was entered. The date of the commission of this person's offenses are close to the date of a prescription by Respondent to his patient "D.B." but there is absolutely nothing in the court documents to connect them to the D.B. treated by Respondent except a partial similarity of name. Nor does the similarity of name of a co-defendant, Tereza Ann Bozeman (see infra.) prove an inescapable link of "Donald Richard Bozeman" to Respondent's patient, "D.B." who was married to someone of partially similar name. Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, "D.B." for a non-medical or criminal purpose or that the patient was drug-addicted.
Upon all the foregoing information taken together it is clear Respondent failed to keep written medical records justifying the course of treatment of his patient, D.B. This finding is made despite both of Petitioner's experts' testimony that there is no affirmative professional requirement that dosage and number of tablets be recorded anywhere except on a prescription. That concern is only a portion of the inadequacies of these records. However, in light of Dr. Breland's greater familiarity with all of Respondent's records and the standard of medical practice in the community, and the greater detail provided by his testimony and the explanations provided by Respondent at formal hearing, Dr. Breland's opinion that the course of treatment for this patient, isolated from all others, does not represent malpractice is accepted over Dr. Cohen's opinion that it does.
T. B. (Counts II, XV)
It is admitted (Requests for Admission) and found that between approximately May 1, 1982, and April 9, 1983, Respondent prescribed at least the following quantities of schedule- controlled substances to his patient, T.B.:
DATE | DRUG | STRENGTH | QUANTITY |
05/01/82 | Valium | ||
05/01/82 | Percodan Demi | ||
07/10/82 | " " " | 30 | |
08/14/82 | " " " | ||
08/14/82 | " " " | 18 | |
08/14/82 | Valium | ||
09/11/82 | Percodan | ||
09/11/82 | Valium | ||
12/12/83 | Percocet #5 |
Although in some respects, Drs. Breland and Cohen emphasized different faults or inadequacies of Respondent's records which they reviewed concerning
T.B. (Composite P-2), both experts concur that the records do not justify the course of treatment of this patient. Dr. Cohen bases his opinion on his analysis that the history Respondent recorded for this patient was not sufficiently detailed. Specifically, the initial office visit record is flawed by only writing down patient's vital signs and recording no physical findings. Dr. Cohen stated it is unjustifiable to prescribe a narcotic analgesic on the first office visit and to continue to refill the prescription on subsequent
visits without recording how the patient had done on those medications and further without recording physical examination, assessment of how the patient is responding to the medication, a plan outline for prophylactic care, and patient education. Further, both Drs. Breland and Cohen assert that although there is no affirmative professional requirement to record dosage and tablet numbers except on prescriptions, it is the custom of reasonably prudent similar physicians to record amount, dosage quantity of drugs prescribed, and method of taking drugs, and Respondent's records do not do so. Respondent's records for this patient also offend custom and usage of the profession in that they indicate several office visits for which there are no recorded findings or treatments whatsoever.
Dr. Breland's opinion that the records do not justify the treatment and that they fall below the customary standard of care are based on his analysis thereof emphasizing that the records of the first office visit do not evidence a physical examination other than taking a blood pressure reading and weighing the patient. There is a brief history of migraine headaches for three months recorded and also recorded is a past diagnosis and treatment with codeine and talwin; the records note no previous surgery, no previous fracture, and no physical findings. Then, Cafergot PB #2, Valium #3 and Percodan-demi were prescribed by Respondent. The records should have specified whether or not previous treatment was successful and if it was successful, Respondent could have subsequently prescribed less addictive drugs. In Dr. Breland's opinion, it is "hard to justify" a Class II drug without trying some other modalities available.
Respondent first saw this patient on May 1, 1982, for migraine headaches and prescribed Cafergot PB and Percodan-demi. He selected Percodan- demi because Percodan is habit-forming. In the course of the formal hearing, he testified, "I just didn't know another medication to go to after you pass codeine that would be effective with patients, other than giving them Demerol and the harder narcotic medications" and that when he first began seeing this patient he was less aware of the similar use of the less addictive drug, Inderal, than he is now. On the physical examination portion of his clinical notes, Respondent indicated that the patient had been using Codeine, Talwin, and "Dx" and "Rx". He then and thereafter (8/14/82 and 9/11/82) prescribed analgesics and vasoconstrictors (Cafergot PB and Ergotamine) together with the Valium because Valium, in his opinion, is often ineffective without more because of the significant emotional components of migraine headaches. Respondent also expressed his independent recollection of discussing with this patient the alternative treatment of acupuncture but admitted he did not record this instruction. Respondent's explanation is not sufficient justification for the repeated prescriptions of controlled substances in light of Dr. Breland's more knowledgeable and thorough explanation of the standards of record-keeping necessary to justify continued prescription of the particular controlled substances here at issue.
Dr. Breland faults another of Respondent's prescriptions dated 12/4/82 of Cafergot PB#2 (a combination of drugs primarily containing an Ergotamine derivative and caffeine), Percocet, and Valium because Respondent's records do not show how many pills were prescribed nor do they give directions for taking them. For prescriptions on 1/8/83, 8/14/82, 9/11/82, and 2/12/83, Dr. Breland expressed as his chief concern that there was an absence of recorded physical findings, history, and blood pressure plus no recorded amount of dosage listed for most prescription drugs, but Dr. Breland also determined that prescribing Cafergot is consistent with Respondent's diagnosis of vascular headaches and his prescriptions for these dates is an appropriate lesser treatment to be tried
before prescribing a Schedule II drug, and, further, that Respondent's records justify prescribing Cafergot. However, the opinion expressed in the prior sentence is not compelling in face of the records having no notations to show the effect, if any, of Cafergot or other drugs or to show why Respondent prescribed stronger medication. Dr. Breland also felt Respondent should have prescribed other less addictive drugs before going to the Schedule II-controlled substances as he did, and that if Respondent's findings were negative, he should have recorded them as negative rather than leaving the record blank, because without such records it cannot be determined if a physical examination was ever made and because in absence of recorded physical findings, no Schedule II drugs should have been prescribed.
A portion of Petitioner's Composite 15, court-certified records show one "Tereza Ann Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person entered a plea of guilty to a lesser-included misdemeanor. The Circuit Court withheld adjudication and placed her on probation. The date of one of the offenses coincides with one of the dates of a prescription by Respondent to his patient, "T.B." but there is absolutely nothing in the Court documents to connect them to the "T.B." treated by Respondent, except a partial similarity of name. The court documents also charge "Donald Richard Bozeman" who has a similar name to that of another of Respondent's patients (see supra.) but the court documents do not indicate the charged individuals are married or provide any other link to Respondent's patient(s). Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, T.B., for a non-medical or criminal purpose or that the patient was drug-addicted.
Tommy B. (Counts III, XV)
It is admitted (Request for Admissions) and found that between approximately August 16, 1981, and February 19, 1983, Respondent prescribed at least the following quantities of schedule controlled substances to Tommy B.:
DATE | DRUG | STRENGTH | QUANTITY |
08/15/81 | Valium | ||
08/15/81 | Percodan | ||
08/15/81 | Dalmane | ||
10/30/81 | Tylox | ||
12/05/81 | " | ||
12/05/81 | Valium | ||
12/06/82 | Darvon compound | ||
02/17/82 | Percodan | 30 | |
04/01/82 | " Demi | ||
04/01/82 | Percodan | 30 | |
05/29/82 | Percodan Demi | ||
06/21/82 | Tylox | 24 | |
07/12/82 | Percocet #5 | 30 | |
02/19/83 | Percocet | ||
02/19/83 | Valium |
In the course of the hearing, Respondent independently recalled that this patient presented on 8/15/81 and that Respondent himself personally recorded the notes for that date including a history, diagnosis of L-S syndrome,
and treatment. On that date he observed scars on the patient's back from back surgeries which the patient related had been done at Southern Baptist Hospital in New Orleans. Respondent conceded that he failed to record the physical findings of scars and failed to record full details of the related surgeries so that at first glance it might appear to others, in this case Dr. Breland, that Respondent was only filling in a history of surgeries without making his own diagnosis. Respondent stated that he had relied on the Physician's Desk Reference, which he characterized as a "bible of the medical profession", and which recommends Percodan as a pain-killer. The treatise itself was not offered in evidence. Respondent also stated that the Percodan-based drugs he prescribed effectively relieved this patient's pain. There is no contrary evidence on this point of effectiveness but it still was not contemporaneously recorded by Respondent in the patient's record.
Both Drs. Cohen and Breland opined that Respondent's records for Tommy
B. did not justify the prescribing of these controlled substances, most specifically Percodan. These opinions have not been accepted for the following reasons. In the absence of any supporting evidence, Dr. Cohen's considerable testimony concerning his belief that this must have been a scam or scheme of Respondent to indirectly charge for a controlled substance prescription by requiring frequent office visits is rejected as conscientious but pure conjecture. Dr. Breland expressed concern that Percodan-demi was among the drugs prescribed by Respondent in the presence of a record notation within the physical findings which relates that "patient says he can't take Percodan". Respondent denied he made this notation, and related it is in someone else's handwriting and not true. Respondent's testimony on this score is corroborated by clear observation of the records. Most of Dr. Breland's other complaints concerning Respondent's record of this patient devolve to Dr. Breland's inability to read Respondent's handwriting and his original erroneous belief that the history and exam was chronologically incorrect and taken by someone other than Respondent. Dr. Breland's opinion that the records are deficient because the fracture of the back was not specifically recorded by Respondent's indicating whether there was an old fracture or current pain and by Respondent's not indicating whether there was thoracic or lumbar distress, and because there is no recitation of whether the fracture is pelvical or in any body of the vertebrae, and his objection to failure of Respondent to either record "no x- rays" if none or to record x-rays if there were some instead of leaving a blank space constitute technique over professional custom requirement of record- keeping. Dr. Breland also described the two month fluctuation down to Percodan- demi and then up to the stronger drug of Percocet from 4/1/82 to 2/19/83 as unjustified because no less addictive medicines had been tried and no degree of relief from less addictive drugs was attempted by Respondent, but Dr. Breland described the Percodan- based drugs and the Valium as medically acceptable where based on the degree of relief the patient had received. In such a situation Dr. Breland would use these drugs for pain treatment and consider them medically justified. Like Dr. Cohen, Dr. Breland also found unacceptable the failure of Respondent to record amounts and dosages in his office medical records, but on many occasions throughout their testimony, both of Petitioner's experts observed the requirement of listing amount and dosages is for prescriptions only and not for a doctor's office records.
Upon the failure of adequate predicate for Dr. Cohen's conclusion of unjustified prescriptions, the absence of any admissible evidence of any addiction in this patient, and the only positive evidence of the effect of these prescriptions being Respondent's opinion that it was effective, the opinions of both Drs. Cohen and Breland that the medical records do not justify the course of treatment of Tommy B. are rejected.
J. C. (COUNTS IV; XV)
It is admitted (Requests for Admissions) and found that between January 4, 1982, and February 26, 1983, Respondent prescribed at least the following schedule-controlled substances to J.C.:
DATE | DRUG | STRENGTH | QUANTITY |
01/04/82 | Percodan | 24 | |
03/23/82 | Tylox | 30 | |
04/17/82 | Percodan | ||
04/17/82 | " " | ||
05/01/82 | Tylenol #4 | 30 | |
05/01/82 | Valium | 30 | |
05/04/82 | Tylox | 30 | |
06/12/82 | Valium | ||
06/16/82 | Tylox | 36 | |
07/17/82 | " | 30 | |
08/14/82 | " | 30 | |
10/03/82 | " | 30 | |
10/30/82 | Tylenol #4 | ||
11/13/82 | Percodan | 30 | |
01/15/83 | Percocet | ||
01/15/83 | Valium | ||
28. J.C.'s | chief complaint | was migraine | headaches, "nerves", and back |
trouble. Respondent prescribed Percodan for pain, Valium for "nerves", and Cafergot-pb for migraines. He diagnosed hypertensive heart disease, anxiety neurosis, migraine headaches, and lumbosacral syndrome. He only used Percodan four times over a year's period due to the severity of the symptoms brought on by the tug and strain on this 200-pound woman's back. Dr. Cohen ranks the relatively minimal fault of writing progress notes in two corners and across the top and side of a page in the same category as overprescribing. Dr. Cohen's concern over the absence of recorded physical findings for this patient was not confirmed by Dr. Breland (see infra.) and his concern because the number and dosage of Cafergot-pb (non-scheduled), Valium (scheduled) and Percodan (scheduled) were frequently not recorded by Respondent is less significant in light of Dr. Breland's testimony that the best custom and practice of the medical profession is to record these matters but such recordation is not required for office records but only for prescriptions.
Dr. Cohen also faulted Respondent for prescribing symptomatically with no effort to educate the patient to prevent or "prophylax" against migraines or to prescribe common anti- inflammatory medications usually prescribed for migraines.
Dr. Breland noted that Tylenol #4 is a controlled substance but made no specific objection to Respondent's prescription of it for this patient. Cafergot-pb is not a controlled substance and its prescription by Respondent was not faulted by Dr. Breland. All of Dr. Breland's testimony on this patient is couched in vague terms of "it is hard to justify" Respondent's prescription of Percodan and Percocet on just this work-up and Dr. Breland felt Respondent's prescription of Percodan on the first visit was not justified without obtaining a further medical history, but he would have approved eventual (not first visit) use of Percodan for this patient's migraine headaches if it were not for the
presence of hypertensive heart disease or her neurosis. Although the records fail to state why Percodan-based drugs were used, Dr. Breland felt these drugs would have been appropriately prescribed for the lumbosacral syndrome. By comparison, J.C's recorded medical history is more extensive than that of most of the patient records involved in this action. The history taken by Respondent lists previous surgery of a hysterectomy, of a previous fracture to the left hip, and of a tonsillectomy. Also given is an elevated blood pressure of 160 over 100, height and weight, state of parity, and diagnoses. The date of her last period and of her hysterectomy are not given.
Petitioner's two expert witnesses each would have made separate and different judgment calls on all prescriptions here related, except that each concurs that Respondent's initial prescription of Percodan on this patient's first visit was unjustified without a further recorded history; therefore, Dr. Breland's summation that the records justify overall treatment of this patient is accepted.
L. C. (COUNTS V; VI; XV)
It is admitted (Requests for Admission) and found that between approximately March 27, 1978, and April 23, 1983, Respondent prescribed at least the following quantities of schedule-controlled substances to L.C.:
DATE DRUG STRENGTH QUANTITY
03/27/78 | Darvon | Compound | |
07/21/78 | Darvon | ||
07/21/78 | Darvon | Compound | |
07/21/78 | Valium | ||
10/23/79 | Percodan | ||
10/31/79 | Preludin | ||
11/17/80 | Preludin | ||
11/28/81 | Darvon Compound | ||
12/28/81 | Percodan | 24 | |
01/14/82 | " " | 30 | |
04/02/82 | " " | 36 | |
06/08/82 | " " | 36 | |
07/17/82 | " " | 36 | |
08/28/82 | " " | 36 | |
09/25/82 | " " | 24 | |
09/25/82 | Darvon Compound | ||
12/03/82 | Percodan | 30 | |
01/15/83 | " " | ||
Dr. Cohen's opinion that there had been prescription of an amphetamine drug for an unjustified purpose and that the patient's records did not justify the Respondent's prescribed course of treatment is rejected as partially predicated upon inadmissible and unadmitted exhibits. The opinion of Dr. Breland is accepted that most of these prescriptions as only part of the course of treatment as a whole were acceptable. More particularly, Dr. Breland indicated there are other doctors similarly geographically situated who use Percodan similarly; there was a very adequate history taken, although the date appears out of order on the page; Respondent's early prescribing of Roboxin and Darvon (one of the less addictive controlled substances) would be a good treatment for osteoarthritis which was part of Respondent's diagnosis of this patient; there was not enough Percodan prescription here for Dr. Breland to say
it was not justified in this patient's case. Dr. Breland was unsure when Preludin became a scheduled substance and so would not comment on that aspect of the case. This is an issue of law and is discussed under "Conclusions of Law."
T. G. (COUNTS VII; XV)
Between approximately July 23, 1978, and April 26, 1983, Respondent treated a patient by the name of T.G. During that period, the stipulated records reveal at least the following prescriptions, among others:
DATE | APPROXIMATE QUANTITY | CONTROLLED SUBSTANCE |
7/23/78 | 30 | Percodan |
7/23/78 | Darvon Compound | |
9/21/78 | Percodan | |
10/14/78 | Percodan | |
10/14/78 | Darvon Compound | |
11/21/78 | 24 | Percodan |
11/21/78 | Darvon | |
12/6/78 | 30 | Percodan |
12/6/78 | Darvon Compound | |
12/28/78 | Percodan | |
12/28/78 | Darvon | |
1/23/79 | Qualudes | |
1/29/79 | 24 | Percocet |
1/19/82 | 24 | Percocet |
3/4/82 | Valium | |
3/4/82 | Percodan | |
4/29/82 | Percocet | |
8/19/82 | Percodan | |
8/19/82 | Valium 10 mg | |
9/25/82 | Valium | |
9/25/82 | Percocet | |
10/14/82 | 40 | Percocet |
10/14/82 | 40 | Valium 10 mg |
10/14/82 | 40 | Percocet |
10/14/82 | 40 | Valium |
10/14/82 | 40 | Percocet |
10/14/82 | 40 | Valium 10 mg |
10/14/82 | 40 | Valium |
10/14/82 | 40 | Percocet #5 |
10/14/82 | 40 | Percocet |
10/14/82 | 40 | Valium |
Additionally, the Respondent occasionally prescribed Tetracycline and Actifed Syrup for colds, and the parties have stipulated these are not controlled substances.
Although Dr. Breland tagged Respondent's use of Roboxin 750, Percodan 30, Darvon compound and Prednisone (a Cortisone- like anti-inflammatory) on the first visit as "borderline acceptable," it was his and Dr. Cohen's mutual opinions that in the absence of recorded physical findings, the Respondent's prescribing of controlled substances in these quantities and with this frequency to this patient was not justified by the records Respondent kept. Dr. Breland, in particular, found unacceptable the Respondent's diagnosis of lumbosacral
syndrome without detailed physical findings or any x-ray diagnosis, and both experts took exception to the continued and repeated prescriptions of the addictive drugs, Valium and Percodan, in a case where Respondent's records repeatedly indicate a good response. Both further opined against Respondent's delayed attempt to diminish the use of these addictive drugs. The doctors' opinion that the records do not justify the prescriptions are accepted.
DAVID G.
(Counts VIII; XV)
The stipulated records reveal at least the following controlled substances were prescribed by Respondent to his patient, David G., between December 17, 1981, and February 12, 1983.
DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE
12/17/81 Ativan
12/30/81 Ativan
2/12/82 Valium
3/06/82 Seconal
3/11/82 Valium
4/08/82 Seconal
8/28/82 Seconal
8/28/82 Valium
Respondent saw this patient 12 times in approximately 2 years and accepted David G.'s representation that he had been previously prescribed Ativan, a controlled substance of the same chemical family as Valium. Although Respondent claims he verified all prior medications, the verification here is not reflected in his record.
The records themselves do not reflect for most occasions why this patient was being treated nor do they set forth an assessment of why Respondent switched from less to more addictive sedative hypnotics. Ativan is a tranquilizer on Schedule III. Seconal is a sedative on Schedule II. In an isolated response, Dr. Breland testified that if the Respondent's initial diagnosis of insomnia and anxiety neurosis had been arrived at after taking a proper history and after a proper physical examination which was not recorded, he would not find Respondent's use of these medications, including Seconal, improper, because there are doctors in the same geographical area who would also use Seconal. However, the ultimate opinion of both of Petitioner's experts is accepted that in the absence of a recorded initial physical examination and a recorded history beyond merely recording height and weight and an unverified former medical treatment, the course of this patient's treatment was not justified by the records kept.
DAN G.
(Counts IX; XV)
The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, Dan G., Jr., between January 9, 1979, and April 22, 1983.
DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE
01/09/79 Percodan
02/22/79 Talwin (50 mg)
11/18/81 Percodan
11/30/81 Percodan
01/02/82 Percodan
01/19/82 Percodan
02/05/82 Percodan
03/30/82 Percodan
04/12/82 Percodan
05/01/82 Percodan
05/01/82 Valium
05/18/82 24 Percodan
06/05/82 Valium
06/22/82 Percodan Demi
06/22/82 Darvon Compound
06/22/82 Valium
07/24/82 Percodan
07/24/82 Valium
08/28/82 Percodan Demi
08/28/82 Valium
09/25/82 Percodan
09/25/82 Valium
10/30/82 Valium
10/30/82 Percodan
12/03/82 Percodan
02/19/83 Percocet
03/26/83 Percodan
03/26/83 Valium
04/22/83 Tylox
04/22/83 Valium
Respondent's records for this single patient sometimes specify "Jr." and sometimes do not. The initial record indicates a surgical incision along the lateral aspect of both femurs and pain on palpation of both hips, and records a history of total hip arthroplasty (two total hip replacements) in 1979 with the patient evidencing pain secondary to a post-operative procedure to correct aseptic necrosis of both femurs. At formal hearing, Respondent stated that this patient first presented in a wheel chair and returned frequently, due to chronic pain and was already on Demerol when first seen by Respondent. The chronic pain was not always repeatedly recorded in Respondent's records. Both of Petitioner's experts concede that prescriptions of Percodan would be consistent if that were all that were relieving the pain when the patient presented to Respondent, and Dr. Cohen opined that Percodan and Talwin were possibly consistent with aseptic necrosis of a femur. Respondent had admitted (R-1), a hospital summary of subsequent surgery (conversion of left total hip arthoplasty to girdlestone on 8/19/83) at the Veteran's Administration Hospital in Gainesville. This exhibit of subsequent surgery corroborates the previous 1979 history taken by Respondent which indicated that medications on discharge from the VA Hospital included Demerol 50 mg. po q 4h prn for pain.
In light of no evidence of patient addiction and no evidence of poor response by this patient to Respondent's prescribing and treatment, the opinions of Dr. Breland and Dr. Cohen that Respondent's prescribing was excessive and necessarily addictive and therefore was unjustified are rejected, however the undersigned accepts their mutual opinions that the Respondent's records by themselves without the subsequent corroboration of the VA Hospital report do not justify the treatment Respondent administered to Dan G. Respondent admits R-1 was not relied on in treating this patient.
C. R. (Counts X; XI; XV)
The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, C.R., between July 3, 1978, and April 22, 1983: 2/
DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCES
07/03/78 Percodan
07/03/78 Percodan Compound
07/20/78 | 30 | Percodan |
08/14/78 | 30 | Percodan |
11/01/78 | 30 | Percodan |
12/05/79 | Desoxyn | |
12/05/79 | Percodan | |
01/02/79 | Desoxyn | |
02/05/79 | Percodan | |
02/12/79 | 18 | Percodan |
03/28/79 | Percodan | |
04/16/79 | Percodan | |
05/03/79 | Percodan | |
05/17/79 | Percodan | |
05/17/79 | Darvon Compound | |
05/17/79 | Percodan | |
05/17/79 | Darvon Compound | |
06/14/79 | 6 | Percodan |
06/14/79 | 24 | Desoxyn |
09/18/79 | Desoxyn | |
10/04/79 | Percodan | |
11/10/79 | Preludin | |
01/28/80 | P | |
06/12/80 | Preludin (75 mg.) | |
09/18/80 | Preludin (75 mg.) | |
11/17/80 | Percodan | |
01/27/81 | Darvon Compound | |
04/27/81 | Percodan | |
07/28/81 | Percodan | |
08/31/81 | 24 | Percodan |
09/21/81 | 24 | Percodan |
12/16/81 | Percodan | |
01/06/82 | Percodan | |
01/29/82 | Percodan | |
03/02/82 | Percodan Demi | |
03/02/82 | ||
03/28/82 | Percodan | |
04/20/82 | Percodan |
05/13/82 | |||
06/04/82 | Percodan | Demi | |
07/03/82 | Percodan | Demi | |
08/03/82 | 36 | Percodan | Demi |
08/28/82 | Percodan | ||
08/28/82 | Valium | ||
12/20/82 | 24 | Percocet | 5 |
12/20/82 | 30 | Valium (10mg) | |
01/15/83 | 6 | Tylenol #6 | |
01/22/83 | Percodan | ||
Preludin and Desoxyn are amphetamine drugs. Desoxyn was legitimately prescribed for weight control in 1978. Respondent's prescription of both drugs was ostensibly to modify the amount of weight supported by the patient's leg bones. Dr. Breland is not sure whether both drugs were reclassified for control in 1979 or not but this is an issue of law resolved in "Conclusions of Law" supra. Despite Dr. Breland's testimony that if he did not have to base his opinion on the Respondent's inadequate recorded history and findings, he would term the prescribing of Percodan and Roboxin as recorded to be borderline acceptable, the undersigned accepts his and Dr. Cohen's mutual opinion that the frequent prescriptions of Percodan, Percodan- demi or Percocet (narcotic analgesics) for the Respondent's recorded diagnosis of arthritis and right leg pain resulting from previous right thigh surgery are unjustified by the records. Their respective opinions that this pattern of prescribing was excessive and unjustified in light of the potentially addictive nature of these drugs is also accepted.
B. W.
(Counts XII; XIII; IV)
The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, B.W. between June 7, 1979, and January 29, 1983. 3/
DATE | APPROXIMATE QUANTITY | CONTROLLED SUBSTANCE |
10/01/79 | Valium | |
10/15/79 | Tylenol #3 | |
06/19/80 | Tylenol #3 | |
06/08/81 | Ritalin (20mg) | |
08/11/81 | Valium | |
08/15/81 | Valium | |
09/15/81 | Talwin | |
11/14/81 | Talwin | |
12/07/81 | 24 | Ritalin (20 mg) |
12/20/81 | Talwin | |
01/23/82 | Talwin | |
02/12/82 | Percodan Demi | |
02/27/82 | Tylenol #4 | |
03/04/82 | Ritalin | |
03/18/82 | Percodan Demi | |
04/02/82 | 30 | Talwin |
07/03/82 | 24 | Ritalin |
08/28/82 | 30 | Ritalin |
09/22/82 | 24 | Percodan |
10/14/82 | Talwin (50mg) |
12/21/82 24 Percodan
01/29/83 Tylox
Ritalin is a sympathomimetric amine drug, which may only be properly prescribed in certain types of cases more specifically set out in the following "Conclusions of Law." Respondent's diagnosis, that this patient had chronic anxiety and back pain, is reflected in his written records. This is essentially the only recorded history on this patient. Respondent did not record a diagnosis of narcolepsy. Respondent did, however, introduce R-2, a consultation report to a Dr. Yankovich dated 1/5/82 from a Dr. Elzawahry which states the impression: "narcolepsy; low back syndrome. . . maintain on Ritalin 10 mg. po tid." Respondent testified that he had received similar information concerning the narcolepsy and psychiatric disturbance earlier than 1/5/82 first by telephone and then by written reports thereon from consulting neurologists, surgeons, and psychiatrists, and that through inadvertence this document was not turned over to Petitioner's investigator. However, Respondent did not explain why his files did not contain these other consultants' reports or why he did not write-up their contents or the dates they were received by him or why his prescriptions of 20 mg were so much greater than those recommended by Dr. Elzawahry. Dr. Breland felt that if Respondent were aware when he first prescribed Ritalin to this patient that the consultant had recommended it because of a good response, then Respondent's Ritalin prescriptions would be justified. It was also noted by Dr. Breland that Ritalin once was believed by the medical profession to be appropriately prescribed in the treatment of depression but that method had ceased and was statutorily proscribed by the time periods in question. Dr. Breland's expert opinion on prior belief of the medical profession is accepted. His conclusions of law invade the province of the hearing officer and are rejected in part and accepted in part as set out in the "Conclusions of Law." Dr. Breland did not feel under the circumstances that the Ritalin was contraindicated. Accordingly, Dr. Cohen's testimony that Ritalin is very dangerous if prescribed for chronic anxiety and depression is hereby discounted in that unlike Dr. Breland, he did not have the benefit of R-2 when testifying by earlier deposition. Dr. Cohen felt Valium was useful for chronic anxiety and that Tylenol #3 and Talwin were useful for pain but that there were excessive prescriptions of these drugs with few or no notations indicating any pain. In most instances all that is noted in Respondent's records on this patient is a prescription listed beside the date. Dr. Breland remarked that even the forms used by Respondent did not include a space for physical findings.
J. M. (Counts XIV; XV)
The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, J. M., between October 25, 1980, and March 9,
1982: 4/
DATE | APPROXIMATE QUANTITY | CONTROLLED SUBSTANCE |
10/25/80 | Percodan | |
01/05/81 | Percodan | |
05/19/81 | Emprin #4 | |
06/03/81 | Emprin #4 | |
07/29/81 | 18 | Percodan |
09/25/81 | 12 | Percodan |
09/25/81 | 18 | Tylenol #3 |
11/07/81 | 24 | Tylox |
11/21/81 | Percodan | |
12/17/81 | Percodan | |
01/02/82 | Percodan | |
02/22/82 | Percodan | |
03/09/82 | Percodan |
The records of history and findings on this patient are reasonably complete and were faulted by Dr. Breland mostly because without appropriate dates one cannot tell if the history was taken on the initial visit as it should have been or later, and because the dates given are frequently out of order. In Dr. Breland's opinion, some of the modes of therapy utilized by Respondent were not of his choice but Dr. Breland only seriously objected to Respondent's continued and excessive use of Percodan as unsafe.
Dr. Cohen's opinion was that the Respondent's conduct constituted mal- prescribing over malpractice. Dr. Breland's opinion was that Respondent's overall conduct with regard to these eleven patients constituted malpractice in that it was the failure to practice medicine with that level of care, skill and treatment of a reasonably prudent similar physician, under similar circumstances. Dr. Breland has had the benefit of reviewing all of Respondent's exhibits and he practices in the same geographical locale as Respondent. His opinion in this regard is accepted as to the overall pattern of practice with these eleven patients, despite his previous opinions that specific cases might not evidence malpractice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause pursuant to Section 120.57(1), Florida Statutes.
The Respondent's Motion to Dismiss is denied.
Counts 1-4, 6-9, 11, and 13-14 of the administrative complaint concern alleged violations of Section 458.331(1)(n), Florida Statutes.
Section 458.331(1)(n), Florida Statutes, provides:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
(n) Failing 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.
This language originated in Chapter 79-302, Laws of Florida, with effective date of July 1, 1979.
Counts 1-5 of the administrative complaint concern alleged violations of Section 453.331 1)(t), Florida Statutes [formerly Section 458.007, Florida Statutes]. Section 458.331(1)(t) provides:
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recog- nized by a reasonably prudent similar physi- cian as being acceptable under similar circum- stances. The board shall give great weight to
the provisions of Section 768.45 when enforcing this paragraph.
This language originated with Chapter 79-302, Laws of Florida, with effective date of July 1, 1979.
Counts 5, 10, and 12 of the administrative complaint concern alleged violations of Sections 458.331(1)(cc)1, 2, and 3, Florida Statutes.
Sections 458.331(1)(cc)1, 2, and 3, Florida Statutes, provide: (cc) Prescribing, ordering, dispensing, ad-
ministering, supplying, selling, or giving any
drug which is an amphetamine or sympathomimetric amine drug or a compound designated as a Schedule II controlled substance, pursuant to chapter 893, to any person except for:
The treatment of narcolepsy, hyperkinesis; behavioral syndrome in children characterized by the developmentally inappropriate symptoms of moderate to severe distractability, short attention span, hyperactivity, emotional liability, and impulsivity; or drug-induced brain dysfunction; or
The differential diagnostic psychiatric evaluation of depression or the treatment of depression shown to be refractory to other therapeutic modalities; or
The clinical investigation of the effects of such drugs or compounds when an investiga- tive protocol therefor is submitted to, re- viewed, and approved by the board before such investigation is begun.
This language originated in Chapter 80-354, Laws of Florida, with effective date of July 7, 1980.
Interestingly enough and contrary to some speculative testimony of Dr. Breland, Section 893.03(2)(c), Florida Statutes, has specifically schedulized use of amphetamine, methamphetamine, phenmetrazine, and methylphenidate in Schedule II of Chapter 893, Florida Statutes, since 1973. See Chapter 73-331, Laws of Florida, effective date July 1, 1973, which for the first time provided:
Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances, including
their salts, isomers, optical isomers, salts of their isomers, and salts of their optical isomers having a stimulant effect on the central nervous system:
Amphetamine
Methamphetamine
Phenmetrazine
Methylphenidate
More recent amendments have added to this controlled substance schedule, of course.
Petitioner seeks to revoke Respondent's license to practice medicine. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules. 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). The standard of proof is that of "clear and convincing" evidence that must be as substantial as the charge, Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981).
The draftsmanship of the administrative complaint herein is somewhat peculiar but it is axiomatic that Respondent may only be held accountable in these penal proceedings for those acts which were proscribed by statute at the time which he committed them and which acts were properly contained within the charging document, i.e. the administrative complaint. With this proviso and upon the foregoing findings of fact, it is concluded that Petitioner presented clear and convincing evidence to support the elements of the charges brought by Counts I, II, V, VII, VIII, IX, X, XI, and XIII but has failed to carry its burden of proof for Counts III, IV, VI, XII, and XIV. This amounts to establishment of seven counts of improper record keeping and two counts of improper prescribing of Preludin.
With regard to Counts V and X for improper prescribing of Preludin, some special commentary may be in order. Despite considerable proof of prescription of other Schedule II controlled substances, most particularly amphetamines, the administrative complaint is drafted solely to support the charge of improper prescribing of Preludin pursuant to Section 458.331(1)(cc), Florida Statutes, and upon that basis it is concluded that those counts have been proved-up. However, review of the evidence indicates Respondent prescribed this particular drug only one time to each of two patients after the effective date of that statute, [July 7, 1980] and according to Petitioner's own expert, Dr. Breland, there were some indicators for Respondent's prescribing that drug to the patients he did. In the case of L.C. (Counts V, VI, XV), the record keeping and other prescriptions were acceptable and only the use of Preludin was questionable in Dr. Breland's final analysis.
With regard to Count XV, which alleges that based upon any or all of the foregoing counts, Respondent has violated Section 458.331(1)(t), Florida Statutes, by engaging in 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, it is abundantly clear that in proving-up nine of the previous fourteen counts, Petitioner has likewise established by clear and convincing evidence Count XV. This is so because of the pattern of
Respondent's conduct evidenced by the record regardless of some expert opinions in that record to the effect that treatment of isolated individual patients taken apart from treatment of all other patients does not by itself evidence malpractice.
Neither the absence of office help, nor the charging of low fees, nor poor collection practices exonerates Respondent of the statutory duty of care. In mitigation, however, all that appears in the record points to Respondent being merely an abysmal record keeper with poor or inadequate training in pharmacology. Nothing Petitioner has presented permits a leap of faith to find any criminal intent or profit-motive behind Respondent's conduct.
Accordingly, it is, RECOMMENDED:
That a final order be entered sealing the record of this cause, and dismissing Counts III, IV, VI, XII, and XIV and imposing the following disciplinary action for violations found in Counts I, II, V, VII, VIII, IX, X, XI, XIII and XV:
Respondent's license is suspended for 3 years.
Service of the last 2 years of the suspension is stayed, provided Respondent successfully meets conditions of a 2-year probation which runs concurrent with the last 2 years of the suspension term. Violation will bring about the imposition of the entire 3 years of the suspension.
The conditions related to probation include attendance and successful completion of courses selected by the Board of Medical Examiners related to treatment by use of controlled substances and necessary record-keeping. Furthermore, Respondent shall not violate any statute or rule relating to medical practice during the course of his probation.
DONE and ORDERED this 17th day of December, 1985, in Tallahassee, Florida.
ELLA JANE P. DAVIS
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 17th day of December, 1985.
ENDNOTES
1/ Despite Respondent's prior self-incrimination and authenticity objections (including suggestions that some prescriptions and records were forged) to
Petitioner's pre-numbered Exhibits 6-14 as originally proffered, Petitioner's 1-
(as edited/corrected) were admitted by stipulation [TR146-147; 213-214]. P-
was withdrawn by Petitioner. The prior deposition of Dr. Cohen, (P-14) was admitted, subject to objections which were never filed. P-15 was admitted over objection.
2/ Upon stipulation, proof was admitted of prescribing pre- dating July 3, 1978, but as these instances were not listed in the administrative complaint, no finding of fact is made in this regard. Where evidence was admitted of prescribing between July 3, 1978, and April 22, 1983, but these instances of prescribing were in addition to those listed by date in the administrative complaint, a finding of fact has been made because the administrative complaint is drawn in terms of "at least" those prescriptions listed between those dates.
3/ Where evidence was admitted of prescribing between June 7, 1979, and January 29, 1983, but these instances of prescribing were in addition to those listed by date in the administrative complaint, a finding of fact has been made because the administrative complaint is drawn in terms of "at least" those prescriptions listed between those dates.
4/ Despite evidence thereof, no finding of fact has been made on prescriptions of earlier or later date than that timeframe set forth in the administrative complaint.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-0756
(The numbering system herein corresponds to
that devised within the parties' respective proposals) Petitioner's Proposed Findings of Fact
This proposal is a conclusion of law requiring no ruling.
Adopted
Adopted
Accepted but amplified to conform to the credible, competent, substantial evidence in the record as a whole.
Count One
To the extent this paragraph constitutes a conclusion of law or citations to the record, it requires no ruling. To the extent it constitutes a proposed finding of fact, it is accepted.
Count Two
To the extent this paragraph constitutes a conclusion of law or citations to the record, it requires no ruling. To the extent it constitutes a proposed finding of fact, it is accepted.
Count Three
To the extent this paragraph constitutes a conclusion of law and citations to the record, it requires no ruling. To the extent it constitutes a proposed finding of fact, it is rejected as not supported by the credible, competent, substantial evidence in the record in its entirety.
Count Four
To the extent this paragraph constitutes a conclusion of law and citations to the record, it requires no ruling. To the extent it constitutes a proposed finding of fact, it is rejected as not supported by the credible, competent, substantial evidence in the record in its entirety.
Counts Five and Six
To the extent sentence one constitutes a conclusion of law, it requires no ruling; to the extent it constitutes a proposed finding of fact, it is accepted. To the extent sentence two constitutes a conclusion of law, it requires no ruling; to the extent it constitutes a proposed finding of fact, it is accepted. To the extent sentence three constitutes a conclusion of law, it requires no ruling. To the extent it constitutes a proposed finding of fact, it is rejected as not supported by the credible, competent, substantial evidence in the record in its entirety.
Count Seven
To the extent this paragraph constitutes a conclusion of law or citations to the record, it requires no ruling. To the extent it constitutes a proposed finding of fact, it is accepted.
Count Eight
To the extent this paragraph constitutes a conclusion of law or citations to the record, it requires no ruling. To the extent it constitutes a proposed finding of fact, it is accepted.
Count Nine
To the extent sentence one constitutes a conclusion of law, it requires no ruling; to the extent it constitutes a proposed finding of fact, it is accepted. The proposed finding of fact in sentence two is accepted but modified as to syntax. The remainder of sentence two constitutes citations to the record and requires no ruling.
Count Ten
To the extent this paragraph constitutes a conclusion of law or citations to the record, it requires no ruling. Its proposed findings of fact are accepted.
Count Eleven
To the extent this paragraph constitutes a conclusion of law or citations to the record, it requires no ruling; to the extent it constitutes proposed findings of fact, it is accepted.
Count Twelve
The proposed finding of fact up to the word "and" is accepted. The proposed finding of facts from that point on is rejected as contrary to the credible, competent, substantial evidence in the record in its entirety. The remainder of this sentence/paragraph before and after the word "and" constitutes citations to the record and conclusions of law, neither of which require any ruling.
Count Thirteen
To the extent sentence/paragraph one constitutes a conclusion of law and citations to the record, it requires no ruling; to the extent it constitutes a proposed finding of fact, it is accepted. Sentence/paragraph two is an argument against evidence already admitted at formal hearing upon which the undersigned has already ruled.
Count Fourteen
To the extent this constitutes a conclusion of law it requires no ruling.
Otherwise, it is rejected as not supported by the credible, competent, substantial evidence in the record in its entirety.
Count Fifteen
Sentence/paragraph one is accepted but is subordinate and unnecessary.
Sentence/paragraph two is accepted but modified and amplified to conform to the competent substantial evidence in the record in its entirety.
Sentence/paragraph three is rejected as subordinate and unnecessary in part and contrary to the evidence in part. The citations to the transcript herein do not require a ruling.
Respondent's Proposed Findings of Fact
Adopted.
Rejected as subordinate, unnecessary and immaterial.
Accepted.
Accepted.
Accepted in essence; what is not accepted is rejected as irrelevant and immaterial.
Adopted.
Adopted.
Adopted as amplified for clarity.
Accepted as modified for space considerations.
Accepted but not dispositive of any issue at bar.
Accepted
Accepted up to the last sentence. The portions of the last sentence that are not accepted are rejected as stated because as stated they are contrary to the direct, competent, substantial, credible evidence in the record as a whole and as immaterial.
To the extent this constitutes a conclusion of law it requires no ruling; to the extent it constitutes a proposed finding of fact, it is rejected as contrary to the direct, competent, substantial, credible evidence in the record in its entirety.
Accepted
Rejected as stated as not supported by the credible evidence in the record as a whole.
Sentence one is accepted. Up to the word "and" the factual proposal in sentence two is accepted. To the extent the material after the word "and" in sentence two constitutes a conclusion of law it requires no ruling; to the extent it constitutes a proposed finding of fact, it is rejected as contrary to the direct, competent, substantial, credible evidence in the record in its entirety.
Accepted but cumulative, subordinate and unnecessary.
Rejected as stated; rejected in part as not supported by the record and in part as contrary to the direct, competent, substantial, credible evidence in the record in its entirety.
The first two sentences are accepted as proposed findings of fact, but are modified for clarity. The third sentence is rejected as not supported by the competent substantial credible evidence in the record in its entirety. Sentence four is accepted but amplified to conform to the evidence. To the extent the last sentence constitutes a conclusion of law, it requires no ruling; to the extent it constitutes a proposed finding of fact, it is rejected as contrary to the evidence.
Sentences one and three are accepted. Sentence two is rejected as contrary to the direct, competent, substantial, credible evidence in the record in its entirety. To the extent sentence four constitutes a conclusion of law it requires no ruling; to the extent it constitutes a proposed finding of fact, it is rejected as contrary to the competent, substantial, credible evidence in the record as a whole.
Sentence one and two are accepted. To the extent sentence three constitutes a conclusion of law, it requires no ruling; to the extent it constitutes a proposed finding of fact, it is rejected as contrary to the evidence in the record as a whole.
Sentence one is accepted. Sentence two is rejected as contrary to the direct, competent, substantial, credible evidence in the record in its entirety.
Rejected as contrary to the credible, competent, substantial evidence in the record in its entirety and further as not dispositive of any issue at bar.
Sentence one is accepted. Sentence two is rejected as immaterial, subordinate, unnecessary, and not dispositive of any issue at bar.
Accepted but amplified to conform to the evidence in the record as a whole.
The first sentence is accepted. The remainder of the paragraph is rejected as irrelevant and immaterial and not dispositive of any issue at bar.
The first three sentences are accepted. To the extent the last sentence constitutes a conclusion of law it requires no ruling; to the extent it constitutes a proposed finding of fact it is rejected as not supported by the direct, competent, substantial, credible evidence in the record in its entirety.
Both sentences are accepted in essence but rephrased to conform to the evidence as a whole.
Accepted.
This proposal combines quotations from the transcript and legal argument, neither of which requires a ruling but to the extent it may constitute a proposed finding of fact, it is rejected as not supported by the credible, direct, competent, substantial, evidence in the record in its entirety.
Accepted but not dispositive of any issue at bar.
Rejected as not dispositive of any issue at bar.
Adopted.
COPIES FURNISHED:
Joseph L. Shields, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Reese Marshall, Esquire
201 West Union Street Jacksonville, Florida 32202
Dorothy Faircloth Executive Director
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche, Secretary
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino General Counsel
130 North Monroe Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs.
DPR CASE NO. 0028380
TARIQ HUSAM ABDULLAH, A/K/A DOAH CASE NO. 84-0756 HENRY NICHOLS, M.D. LICENSE NO. ME 21526
Respondent.
/
FINAL ORDER OF THE BOARD OF MEDICAL EXAMINERS
THIS CAUSE came before the Board of Medical Examiners (Board) pursuant to Section 120.57(1)(b)(9), Florida Statutes, on February 8, 1986, in Orlando, Florida, for the purpose of considering the Hearing Officer's Recommended Order (a copy of which is attached hereto) in the above-styled cause. Petitioner,
Department of Professional Regulation, was represented by Joseph W. Lawrence II, Esquire; Respondent was present and represented by Reese Marshall, Esquire.
Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
The Hearing Officer's Findings of Fact are approved and adopted in toto and are incorporated by reference herein.
There is competent substantive evidence in the record to support the Board's Findings of Fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The Board accepts and adopts the Conclusions of Law by the Hearing Officer as set forth in the Recommended Order and incorporates them by reference herein.
There is competent substantial evidence to support the Conclusions of
Law.
DISPOSITION
Upon a complete review of the record in this case, the Board determines
that the penalty recommended by the Hearing Officer be decreased from a recommended period of suspension of three years to a period of suspension of thirty days based on the nature of the offense, the period of time over which the events for which disciplinary action has been taken occurred, and the testimony given in mitigation at the final hearing.
WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that:
Respondent's license to practice medicine in the State of Florida shall be suspended for a period of one year; however, the last 11 months of the suspension shall be stayed.
Upon termination of the active period of suspension, Respondent's license to practice medicine shall be placed on probation for a period of five years subject to the following terms and conditions:
During his period of probation, semiannual investigative reports will be compiled by the Department concerning Respondent's compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine. On the record at the meeting, Respondent waived confidentiality with regard to these reports as to the Board of Medical Examiners only, thus permitting them to review the semiannual reports during his term of probation, notwithstanding any statutory or rule provisions to the contrary.
Respondent shall appear in person before the Board of Medical Examiners at the first meeting after the probationary period begins, the last meeting before the probationary period ends, and such other times as directed by the Board.
Semiannual reports relating to Respondent's practice shall be submitted to the Board by Respondent and by a physician associated with his practice of medicine. The name of the physician with whom Respondent intends to practice and does practice shall be submitted to the Board.
Respondent shall annually obtain 50 hours of Category I Continuing Medical Education; 25 hours shall be in the subject area of Pharmacology and 25 hours shall be in the subject area of general medicine.
This Order takes effect upon filing.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this Final Order by filing one copy of a notice of appeal with the clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within 30 days of the date this order is filed, as provided in Chapter 120, Florida Statutes, and the Florida Rules of Appellate Procedure.
DONE AND ORDERED this 12th day of September, 1986.
BOARD OF MEDICAL EXAMINERS
James Burt, M.D. Vice Chairman
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by certified mail to TARIQ HUSAM ABDULLAH, M.D., Route 2, Box 124, Laurel Hill, Florida 32567 and REESE MARSHALL, ESQUIRE, 201 West Union Street, Jacksonville, Florida 32202; by regular United States Mail to ELLA JANE
P. DAVIS, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and by hand delivery to JOSEPH W. LAWRENCE, II, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee Florida 32301, at or before 5:00 P.M. this 15th day of September, 1986.
| Issue Date | Proceedings |
|---|---|
| Dec. 17, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 12, 1986 | Agency Final Order | |
| Dec. 17, 1985 | Recommended Order | Three-year license suspension and courses on amphetamine usage and record keeping for Respondent who kept improper records/prescribed improperly. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs CHI-SHANG CHEN, M.D., 84-000756 (1984)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JOHN T. LEGOWIK, M.D., 84-000756 (1984)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs STEVEN BARRY BROWN, M.D., 84-000756 (1984)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs HOSSEIN FARSAD, M.D., 84-000756 (1984)
