STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NOS. 85-1317

) 85-1318

JOHN W. GAUL, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this case on August 20, 1985, in Fort Lauderdale, Florida, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephanie A. Daniel, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: John W. Gaul, D.O., pro se

11360 Tara Drive

Plantation, Florida 33325

The Department of Professional Regulation, Petitioner, issued two Administrative Complaints against John W. Gaul, D.O., Respondent, which were consolidated for hearing. In these Administrative Complaints Petitioner alleges that Respondent prescribed controlled substances for three patients and one undercover agent of the Broward County Sheriff's Office without medical justification, and in excessive and inappropriate quantities. It is further alleged that Respondent failed to keep adequate medical records and patient histories of these

patients. This conduct, Petitioner urges, constitutes gross and repeated malpractice.

At the hearing Petitioner introduced nineteen exhibits and called three witnesses, including Mel Waxman, an investigator with the Department of Professional Regulation, Vicki Cutcliffe, a deputy sheriff in Broward County who worked undercover on this case using the name Vicki Tarra, and Dr. Ralph Birzon, D.O., who was accepted as an expert in osteopathic medicine.

Petitioner's exhibit 2 is a deposition of Dr. Dale K. Lindberg, M.D., who was tendered as an expert in the practice of family medicine and upon review of said deposition Dr. Lindberg is accepted as an expert in this area of practice. Respondent introduced one exhibit and testified on his own behalf. A transcript of the hearing was filed on September 9, 1985.

The parties were allowed to submit posthearing proposed findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact that was filed by Petitioner has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary. Specifically, Petitioner's proposed findings numbered 15, 27, and 47 are rejected as outside the scope of the Administrative Complaints and not based on competent substantial evidence.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954.

   
   

2. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed

   in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony.

   
   

3. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony.

   
   

4. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate

   and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony.

   
   

5. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice.

   
   

6. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially

   giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate.

   Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

8. Petitioner has charged that Respondent violated Sections 459.015(1)(h),(n),(q), and (t), Florida Statutes, which authorize license disciplinary action on the following grounds:

   
   

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

   
   

   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.

   
   

   Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including all controlled substances, other than in the course of the osteopathic physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or other wise 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 osteopathic physician's professional practice, without regard to his intent.

   
   

   Gross or repeated malpractice or the failure to practice osteopathic medicine with the level of care, skill; and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances.

   
   

   See also Section 893.05(1), Florida Statutes.

   
   

9. Petitioner has the burden of proof in this case. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Since this is a license disciplinary action which could result in the suspension or revocation of the Respondent's license, Petitioner has the burden of establishing the matters alleged by clear and convincing evidence. State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973): Bowling v.

   Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981). This burden exceeds a simple preponderance of the evidence. Petitioner has met its burden of proof.

   
   

10. It has been clearly and convincingly established that Respondent engaged in a course of conduct over an extended period from 1980 through early 1984 when he failed to keep adequate medical records of patients seen in this office, prescribed controlled substances for patients inappropriately or in excessive quantities, and repeatedly failed to practice osteopathic medicine with that level of skill and care recognized as acceptable under the circumstances.

    
    

11. Specifically, Respondent repeatedly failed to do complete, patient medical histories or to perform examinations and document test results which would justify his course of treatment of the patients involved in this case. He maintained totally inadequate office records on patients and also increased a prescription for "Vicki Tarra" when he knew she would give the extra Tranxene to her friend who was not his patient.

Therefore, Respondent is subject to disciplinary action for violating the cited provisions of Section 459.015, Florida Statutes.

RECOMMENDATION

Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years.

DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida.

DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 3 2301

(904) 488- 9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985.

COPIES FURNISHED:

Stephanie A. Daniel, Esq. Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32301

John W. Gaul, D.O. 11360 Tara Drive

Plantation, FL 33325

Dorothy Faircloth Executive Director Board of Osteopathic

Medical Examiners

130 North Monroe Street Tallahassee, FL 32301

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32301

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32301

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AGENCY FINAL ORDER

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

=

BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL

REGULATION

Petitioner,

vs. DOAH CASE NOS. 85-1317

85-1318

JOHN W. GAUL, D. O., DPR CASE NOWS. 0044857 0026889

Respondent,

/

FINAL ORDER

Respondent, John W. Gaul, D.O., is a licensed osteopathic physician in Florida having been issued license No. OS 0001053. Petitioner filed an Administrative Complaint seeking suspension, evocation, or other action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative hearings. A recommended order has been forwarded to the Board pursuant to Section 120.57 (1), F.S.; it is attached to and made a part of this final order before the Division of Administrative Hearings. A recommended order has been forwarded to the Board pursuant to Section 120.57 (1), F.S.; it is attached to and made a part of this final order.

The Board of Osteopathic Medical Examiners met on December 7, 1935 in West Palm Beach, Florida to take final agency action. The Petitioner was represented by Stephanie A. Daniel Esquire; the Respondent was neither present nor represented. The Board has the entire record in the case.

The Board adopts the findings of fact and conclusions of law of the recommended order. The Board specifically rejects

the recommended penalty of two years suspension and increases the penalty to revocation. The stated reasons for the Board's increase of the recommended penalty are: the record is replete with the numerous instances of Respondent's inappropriate prescribing practices and malpractice; the record demonstrates pattern of poor judgment on the part of Respondent and indicates poor practice of osteopathic medicine; the gravity of the offenses committed by Respondent and contained within the record justifies a more severe penalty than suspension. Therefore, it is hereby ORDERED that Respondent's license to practice osteopathic medicine be REVOKED. This order takes effect upon filing.

This order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rules of Appellate Procedure 9.110(b)(c), within thirty (30) days of the date of filing this order.

DONE AND ORDERED this 23rd day of December, 1985.

BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

NOBLE SISSLE, VICE-CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing final order has been forwarded by Certified Mail to John W. Gaul, D.O., 11360 Tara Drive, Plantation, Florida 33325 and hand delivered to

Stephanie A. Daniel, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301 this ,2nd day of January, 1985.

C. Rod Presnell

Docket for Case No: 85-001317

Orders for Case No: 85-001317