Judges: DIANE K. KIESLING
Agency: Department of Health
Latest Update: Jun. 13, 1986
Summary: Respondent found guilty of dispensing drugs without authority and failure to keep written medical records. Recommend license suspension for six months with two years probation.
85-3608STATE OF FLORIDA
DIVISION OF ADMINSTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) Case No. 85-3608
)
MANUEL M. FAJARDO, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held on March 27, 1986, in Tampa, Florida, before the Division of Administrative Hearings by its designated Hearing Officer, Diane K. Kiesling.
APPEARANCES
For Petitioner: David Bryant, Esquire
1107 East Jackson Street Suite 104
Tampa, Florida 33602
For Respondent: Michael I. Schwartz, Esquire
119 North Monroe Tallahassee, Florida 32301
The issue for determination is whether the medical license of Manuel M. Fajardo, M.D., (Fajardo) should be revoked or otherwise disciplined for aiding, assisting, procuring or advising his wife to practice medicine in violation of Section 458.331(1)(g), Florida Statutes; failing to keep written medical records justifying the course of treatment of a patient in violation of Section 458.331 (l)(n), Florida Statutes; delegating professional responsibilities to his wife when he knew that she was not qualified by training, experience or licensure to perform those responsibilities in violation of Section 458.331(1)(w), Florida Statutes: failing to maintain records of controlled substances as required by Section 893.07, Florida Statutes; pre- signing blank prescription forms in violation of Section 458.331(1)(aa), Florida Statutes: and gross or repeated malpractice or 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.
Petitioner presented the testimony of John Cuesta, III; Julian Greengold, M.D.; William Donald Gates, Jr.; John Favata, M.D.; Daniel W. Frazier, M.D.; Samuel H. Ellis; Belinda Stone; Patricia Pattee; Barbara Vohlken; and Mary Sue Sutton.
Petitioner's Exhibits 1-16 were admitted in evidence. Respondent presented the testimony of Frank Coleman, M.D.; Jorge Otero, M.D. Sandra McCoy; Brenda Hughes; Karen Keifert; Ricardo Martinez de la Torre; and Manuel M. Fajardo, M.D. Respondent's Exhibits 1-3,
5 and 6 were admitted in evidence.
During the course of the hearing, Respondents moved to strike Count V of the Administrative Complaint relating to the presigning of prescription forms because the Administrative Complaint is devoid of any allegations of fact to support the violation. The motion was granted and Count V of the Administrative Complaint was dismissed.
The parties filed proposed findings of fact and conclusions of law is permitted. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix attached hereto and made a part hereof.
FINDING OF FACT
The Respondent, Manuel M. Fajardo, M.D., is a medical doctor holding license number ME0027980. Fajardo is engaged in the practice of family medicine at 2814 West Buffalo Avenue, Tampa, Florida, at the Tampa Family Practice Center. Fajardo owns the Tampa Family Practice Center.
Mary Fajardo, the wife of Dr. Fajardo, worked at the Tampa Family Practice Center until her arrest on November 26, 1984. Her job duties included running the office and supervising the staff, including nurses. Mary Fajardo does not hold any professional license and was not so licensed at anytime relevant to this case.
Sgt. John Cuesta III, an undercover police officer employed by the Tampa Police Department, went to the Tampa Family Practice Center, Dr.Fajardo's offices, on several occasions in 1984 using the name Roberto Valdez.
On May 11, 1984, at approximately 3:05 p.m. Cuesta went to Fajardo's office and asked for Mary. Mary was identified as Mary Fajardo. Chesta requested something for nervousness. Mary
told Cuesta that he would need to see the doctor and that the office visit would be $25. She asked if he was taking anything and was told that he was taking Librium from a doctor in New Orleans. Mary told Cuesta the Librium were 10 milligram capsules based on his description of the capsules. Cuesta told her he didn't have time to wait to see the doctor. Mary told him she would only take a minute and she could get the Librium for him for an extra $10. Mary then took Cuesta into the inner reception area to fill in a patient-history sheet, which he did in the alias Roberto Valdez. Mary then took Cuesta to an exam room, and a nurse took his blood pressure. Mary then took Cuesta back to the reception area. Mary left and returned with a plastic bottle. She told Cuesta the bottle contained his pills and she charged him $35, explaining that $10 was for the pills and $25 was for the office visit. At no time did Cuesta see or speak with a physician.
The bottle Mary gave Cuesta contained 35 capsules later identified to be Chlordiazepoxide, which is the chemical name of Librium. The bottle was a reused sample bottle with a white sticker struck to it. The sticker contained only the notations "Librium 10 MG Robert Valdez." Librium is a Schedule IV drug.
On May 30, 1984, Cuesta returned to Fajardo's office and asked for Mary. Cuesta advised that he needed a refill. After approximately 5 minutes, Mary called him in and gave him a bottle containing 60 capsules. She charged him $25. Cuesta asked her why the pills cost $10 last visit. Mary told him this was a 2 month supply. The receptionist then stated that it was only a one month supply at 3 times a day. Mary then said it would cost only $20. Cuesta paid Mary $20 and left. Cuesta did not see or speak to the doctor.
The bottle Mary gave Cuesta contained 60 capsules later identified to be Chlordiazepoxide, or Librium. The bottle was a reused sample bottle for another drug, with the old label scratched out. The bottle bore no other labeling.
On June 14, 1984, Cuesta went to Fajardo's office and spoke with Mary. He asked to refill his prescription. Mary took him into the inner reception area and asked what kind of medication he needed. Cuesta told her Librium 10 mg. Mary told him to sit down. She left and returned in a couple of minutes with a brown plastic bottle which contained 60 capsules later identified as Chlordiazepoxide or Librium. Mary charged Cuesta
$20. It wasn't until she began preparing a receipt that Mary asked Cuesta for his name. At no time did Cuesta see or speak with the doctor. The brown plastic bottle bore no label.
On June 19, 1984, Cuesta returned to Fajardo's office
and asked for Mary. He was told that Mary was not in. He told the receptionist that he needed a refill for his prescription. He was ultimately told that he would need to see the doctor.
Cuesta left and said he would return later.
On June 20, 1984, Cuesta returned to Fajardo's office and saw Mary. He asked her for Librium. She took him into the inner reception area and asked if she had been giving him 30 Librium for $10. He told her it has been 35 Librium for $10. She said no, 30 for $10. She left and returned with a white plastic vial. She gave Cuesta the vial and charged $10. The
vial contained 30 capsules later identified a Chlordiazepoxide or Librium. The vial was a reused sample bottle for another drug, Moduretic, 5/50, amiloride HCL. The old label was crossed through, but was easily readable. There was no other label on the bottle. At no time did Cuesta see or speak with the doctor during this visit.
On August 30, 1984, Cuesta made an appointment to see Dr. Fajardo. Cuesta went to Fajardo's office and was taken to a patient room. The nurse, Belinda Stone, asked him what the problem was. He told her he was very nervous and having difficulty sleeping and that the Librium Mary was giving him wasn't having any effect. The nurse took his blood pressure, pulse, weight and height and then she left. A Dr. Greengold then came in and examined Cuesta. Greengold wrote a prescription for Restoril. Cuesta asked if the prescription would be filled in the office like with the Librium. Greengold told him to go to a pharmacy. Cuesta took the prescription and went to the reception window to pay for the office visit. The receptionist made a photo copy of the prescription and asked Mary for change. Mary saw Cuesta and came to the window saying "You're Roberto Valdez." She asked why he was there and he told her that the doctor changed his medication. Mary took the prescription for Restoril and said "I have medicine for sleep here." Mary left and returned with a white plastic vial containing 30 tablets. She charged Cuesta $25 for the office visit and $10 for the medication. The label on the vial only said "Take one tablet at
S. hrs." The tablets were later identified to be Phenobarbital,
not Restoil as prescribed.
Cuesta made an appointment for September 5, 1984. He went to Fajardo's office and waited. Mary called Cuesta to the inner reception area and asked him what the problem was. He stated that he had problems with the medicine given on the last visit. Mary asked for the medicine back, but Cuesta didn't have it with him. Mary left and returned with a prescription for Dalmane, made out to Roberto Valdez and signed by Dr. Fajardo. Cuesta took the prescription and left. He did not see or speak with the doctor during the visit. Cuesta received no examination
on this visit.
On November 26, 1984, pursuant to a search warrant, the patient records on Cuesta's alias, Roberto Valdez, were seized and Mary Fajardo was arrested. Mary subsequently pleaded guilty to one charge of dispensing medicinal drugs without authority and six other charges were nol-prossed.
The patient record on Roberto Valdez contains the following typed entries:
5/11/84
BP 132/80. This patient is quite anxious and nervous today. He also has gastrointestinal symptoms. The patient also has problems at work. The physical examination is essentially negative. Prescription for Librium 10 mg. 1 bid for a month issued.
mf
5/30/84
This patient who is usually anxious is seen today. His gastrointestinal symptoms are less severe at the present time. The physical examination is negative.
Prescription for Librium 10 mg. 1 BID for a month issued. mf
8/30/84
Mr. Valdez is seen today with continuing complaints of insomnia. He has used Librium intermittently without adequate results. He is continued under pressure from his law school and will be tried on a different medication. On PE BP is 106/70, weight 174 1/2 lbs. Pulse 83.
Heart and lungs normal.
He is given a prescription for Restoril 30 mg.
1 HS #30.
The record also contains a handwritten entry: "9-5-84 Dalmane 15 mg."
Dr. Fajardo stated that he saw Cuesta on May 11 and May
30 as evidenced by his initials after those entries in the records. Fajardo maintained that he remembered Cuesta even though he sees approximately 40-50 patients a day and has a couple of thousand patients. Fajardo also maintained that he did see and examine Cuesta on May 11 and May 30 and could remember
those visits specifically, even though Fajardo could not remember the name of one single patient of his who had died in 1984.
Fajardo's testimony is self serving and is inherently unbelievable and lacking in credibility. Because of the internal inconsistencies in Fajardo's testimony, it is specifically found that Cuesta (who has nothing to gain by his testimony) is more credible and believable when he states that he was never seen or examined by Fajardo. The written records are not of sufficient weight to support Fajardo's statements because the documents are also untrustworthy in that they could have been created in an attempt to conceal Mary's unlicensed dispensing of medications.
The written patient records on Roberto Valdez are inadequate to justify the course of treatment which he received. The records for May 11 and 30, 1984, do not contain adequate notations of the patient's history, complaints, or examination findings to justify the dispensing of Librium. The notes for September 5, 1984, contain no information except the words "Dalmane 15 mg." As so aptly said by Daniel W. Frazier, M.D., in his testimony:
It's a lot of words that don't say anything, and these kind of records are basically considered very inadequate and not appropriate.
Dr. Frazier found Fajardo's notes to be "extremely inadequate."
Dr. Fajardo did not maintain any inventory or separate record of scheduled drugs which were kept and dispensed from his office. The only records he had were the invoices from the drug companies who sold him the various scheduled drugs. Dr. Fajardo maintains that he could have created an inventory from the invoices and his patient records. It is specifically found that he did not have any inventory and could not have created an accurate inventory from his invoices and patient records. Even the records on Valdez are inadequate to show the drugs dispensed to him. Specifically, Cuesta received a total of 185 Librium capsules and 30 Phenobarbital tablets from Fajardo's office.
Yet, taking Fajardo's patient records as a whole, only 60 Librium can be accounted for as dispensed. The records also show that 30 Restoril were dispensed, yet they were never given to Cuesta.
Clearly the records kept by Fajardo are inadequate to even allow him to create an inventory of the scheduled drugs kept and dispensed by his office. The information is not separate from all of Fajardo's records or in such form that it is readily retrievable from Fajardo's ordinary business records.
Fajardo knew or should have known that Mary was
examining, diagnosing and treating patients and was dispensing scheduled drugs to patients. He is the person responsible for such activities in his office. Mary was able to engage in these unlicensed activities either because Fajardo permitted her to or because Fajardo failed to supervise the activities in his office.
The case of Cuesta was not the only time Mary examined, diagnosed, treated or dispensed. Belinda Stone worked as a medical assistant/receptionist in Fajardo's office. On two occasions Mary gave a shot of Penicillin to Stone when she wasn't feeling well. On a third occasions she wanted to give Stone a Penicillin shot for an eye infection, but Stone refused. At no time was Stone seen or examined by Fajardo before Mary gave her the shot.
Other employees of Fajardo's office saw Mary giving drugs to patients, however these employees do not know if the drugs were being given at Fajardo's instructions or if the patients had been seen by a doctor.
The drugs given to Cuesta by Mary were all dispensed in improper containers which did not bear a label showing the name of the patient, the date of delivery, the directions for use of the drug, and the name and address of the practitioner dispensing the drug.
It is a failure to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being accepted under similar conditions and circumstances to allow an unlicensed person to examine, diagnose, treat patients and to dispense medications without the authorization of a physician: to fail to keep written medical records which justify the cause of treatment to allow drugs to be dispensed in improper containers and bearing inadequate labels, and to fail to monitor, supervise or record the dispensing of scheduled drugs from the medical office.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
The Respondent is charged with violations of Sections 45B.331(1)(g), (n), (t) and (w), Florida Statutes, which constitute grounds for which penalties may be imposed. These sections provide as follows:
458.331 Grounds for disciplinary action: action by the board and department. --
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(g) Aiding, assisting, procuring, or advising any unlicensed person to practice medicine contrary to this chapter or to a rule of the department or the board.
* * *
(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.
* * *
(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. . . .
* * *
(w) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experience, or licensure to perform them.
The Respondent is also charged with a violation of Section 893.07, F.S. This section provides:
893.07 Records. --(1) Every person who engages in the manufacturing, compounding, mixing, cultivating, growing, or by any other process producing or preparing, or in the dispensing, importation, or, as a wholesaler, distribution, of controlled substances shall:
On January 1, 1974, or as soon thereafter as any person first engages in
such activity, and every second year thereafter, make a complete and accurate record of all stocks of controlled substances on hand. The inventory may be prepared on the regular physical inventory date which is nearest to, and does not vary by more than 6 months from, the biennial date that would otherwise apply. As additional substances are designated for control under this chapter, they shall be inventoried as provided for in this subsection.
On and after January 1; 1974, maintain, on a current basis, a complete and accurate record of each substance, manufactured, received, sold, delivered; or otherwise disposed of by him, except that this subsection shall not require the maintenance of a perpetual inventory.
Compliance with the provisions of federal law pertaining to the keeping of records of controlled substances shall be deemed a compliance with the requirements of this subsection.
The record of controlled substances received shall in every case show:
The date of receipt.
The name and address of the person from whom received.
The kind and quantity of controlled substances received.
The record of all controlled substances sold, administered, dispensed, or otherwise disposed of shall show:
The date of selling, administering, or dispensing.
The correct name and address of the person to whom or for whose use, or the owner and species of animal for which, sold, administered, or dispensed.
The kind and quantity of controlled substances sold, administered, or dispensed.
Every inventory or record required by this chapter, including prescription records, shall be maintained:
Separately from all other records of the registrant, or
Alternatively, in the case of Schedule III, IV, or V controlled substances, in such form that information required by this chapter is readily retrievable from the ordinary business records of the registrant.
In either case, records shall be kept and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.
Each person shall maintain a record which shall contain a detailed list of controlled substances lost, destroyed, or stolen, if any, the kind and quantity of such controlled substances and the date of the discovering of such loss, destruction, or theft.
Fajardo's failure to prevent Mary from examining, diagnosing, and treating patients and from dispensing medications, including scheduled drugs, to patients without the expressed orders of a physician constitutes a violation of Section 458.331(1)(g). Fajardo either knowingly permitted Mary to practice medicine or he allowed it by his failure to oversee or supervise her activities.
The records kept on patient Valdez, if they were in fact even made by Fajardo, are totally inadequate to justify the course of treatment. Accordingly, Pajardo has violated Section 458.331(1)(h).
Fajardo knew that Mary was not licensed to perform any medical duties or responsibilities. She did not hold any professional license. Yet, Fajardo permitted Mary to perform professional responsibilities for which she was not qualified. In doing so, Fajardo has violated Section 458.331(1)(w).
Fajardo has violated Section 893.07 by his failure to maintain appropriate records of controlled substances. Fajardo's records were not readily retrievable from his ordinary business records. His patient records on Valdez do not show the dispensing of 125 capsules of Librium (Chlordiazepoxide) and 30 tablets of phenobarbital, both of which are Schedule IV controlled substances under Section 893.03(4), Florida Statutes. Fajardo maintained no records of his drug inventory and could not have accurality retrieved such information from his records.
This is a violation of Section 893.07.
Finally, Fajardo has violated Section 458.331(1)(t) by his failure to practice medicine at a level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Fajardo's practices regarding dispensing of drugs, keeping of records, treatment of patients without seeing a doctor or being adequately examined, and delegation of duties to unlicensed persons are all far below the minimum acceptable level under the circumstances.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order dismissing the charge of violation of Section 458.331(1)(aa), finding Manuel M. Fajardo, M.D., guilty of violating Section 458.331(1)(g), (n), (t), and (w), Florida Statutes, and Section 893.07, Florida Statutes, and suspending Manuel M. Fajardo's license to practice medicine for a period of six (6) months to be followed by a probationary period of two (2) years during which Fajardo shall be permitted to practice medicine and dispense drugs only under the supervision of another licensed physician, who shall supervise Fajardo's record keeping and drug prescription and dispensing practices.
DONE and ORDERED this 13th day of June, 1986, in Tallahassee, Florida.
DIANE K. KIESLING,
Division of Administrative Hearings Hearing Officer
The Oakland Building 2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1986.
COPIES FURNISHED:
David Bryant, Esquire 1107 East Jackson Street Suite 104
Tampa, Florida 33602
Michael I. Schwartz; Esquire
119 North Monroe Tallahassee, Florida 32301
Dorothy Faircloth Executive Director Department of Professional
Regulation, Board of Medical Examiners
130 North Monroe Street Tallahassee, Florida 32301
Fred Roche Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Salvatore A. Carpino General Counsel
130 North Monroe Street Tallahassee, Florida 32301
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case.
Rulings on Proposed Findings of Fact of Petitioner
Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1.
Proposed Finding of Fact 4 is adopted in substance as modified in Finding of Fact 13.
Proposed Finding of Fact 5 is adopted in substance as modified in Findings of Fact 3-12.
Proposed Findings of Fact 2, 3, 6-10, and 12-14 are rejected as being argumentative and conclusory.
Proposed Finding of Fact 11 is rejected as unnecessary. Rulings on Proposed Findings of Fact of Respondent.
Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1.
Proposed Finding of Fact 6 is adopted in substance as modified in Finding of Fact 14, except that the last sentence is rejected as being argumentative and not supported by the competent; substantial and credible evidence.
Proposed Findings of Fact 2 and 11 are rejected as unnecessary.
Proposed Findings of Fact 3, 4, 5, 7-10 and 12-15 are rejected as not supported by the competent, substantial and credible evidence and as being subordinate to the facts found in the Recommended Order. Additionally, large portions of the proposed Findings of Fact are merely summaries of testimony and are not properly proposed findings.
Docket for Case No: 85-003608
Orders for Case No: 85-003608
| Issue Date |
Document |
Summary |
|
Jun. 13, 1986 |
Recommended Order
|
Respondent found guilty of dispensing drugs without authority and failure to keep written medical records. Recommend license suspension for six months with two years probation.
|
