STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-0469

)

PATRICIA MAJOR, M. D., )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 86-2064

)

PATRICIA MAJOR, M. D. )

)

Respondent )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on December 1 and 2, 1986, in Key West, Florida.

Petitioner Department of Professional Regulation, Board of Medical Examiners, was represented by Leslie Brookmeyer, Attorney at Law, Tallahassee, Florida; and Respondent Patricia Major, M.D., was represented by Elizabeth J. Du Fresne, Attorney at Law, Miami, Florida.

Petitioner filed two Administrative Complaints against Respondent alleging that she was guilty of certain violations of the Medical Practice Act, and Respondent timely requested a formal hearing on those allegations. Respondent's subsequently filed unopposed motion to consolidate was granted. Accordingly, the issue for determination herein is whether Respondent is guilty of the allegations contained within those Administrative Complaints and, if so, what disciplinary action should be taken, if any.

Petitioner called the following witnesses: William T. Findley, Key West Police Department; Cynthia Tingley, Key West Police Department; Lynn Hankes, M.D., Director of South Miami Hospital's Addiction Treatment Program; Roger Goetz, M.D., Director of the Florida Medical Association Impaired Physicians Program; and Sally Parr, Esquire, former roommate of Respondent. Respondent testified on her own behalf and called the following witnesses: Iris Carleen Cervantes, a staff member for both John Buckner, M.D. and Karl Davidson, M.D.;

Linda Susan Park, a counselor with the Delphus Drug and Alcohol Treatment Center at Florida Keys Memorial Hospital; Thomas C. Puroff, Administrator of the Health Care Center at Florida Keys Memorial Hospital and the Director of Community Relations; Karl Michael Davidson, M.D., the current monitoring physician for the Respondent; Jerrold Weinstock, M.D., Respondent's treating psychiatrist; John William Buckner, M.D., Respondent's original monitoring physician (through deposition); Milton Burglass, M.D., practicing psychiatrist and clinical instructor, The North Charles Institute for Addictions, Harvard Medical School, Department of Psychiatry at the Cambridge Hospital Cambridge, Massachusetts, an expert witness who has evaluated Respondent (through deposition); and Stanley I. Holzbert, M.D., a Coral Gables psychiatrist who serves as a half-time consultant to the Florida Impaired Professionals Program who has also evaluated Respondent (through deposition). Additionally, Petitioner's Exhibits numbered 1-6 and Respondent's Exhibits numbers 1-5 (including the three depositions) were admitted in evidence.

It was stipulated between the parties that the following facts were admitted and required no proof at the hearing itself:

1. Respondent is a licensed physician in the State of Florida, License No. ME 0022445. Respondent's address is 702 South Street, Key West, Florida 33040.

2. By Order of the Board of Medicine, dated February 2, 1982 a Stipulation was adopted providing that Respondent would relinquish her license until such time that she could demonstrate that she could engage in the practice of medicine with skill and safety to patients.

3. By Order of the Board of Medicine, dated March 11, 1984, Respondent's license to practice medicine with skill and safety to patients [was reinstated].

4. Pursuant to the Order of the Board of Medicine, the Respondent is allowed to practice medicine in Florida only under the supervision of John W. Buckner, M.D., at the Island Clinic group in Key West, Florida.

D. On or about April 2, 1986, Dr. Buckner left Key West and went to California for approximately two weeks. On approximately April 6, 1986, Respondent was informed that Dr. Buckner was closing the Island Clinic and that he would no longer be practicing in the area. As of April 18, 1986, Dr. Buckner has not returned to Key West.

F. On or about April 14, 1986, the Respondent began practicing at the office of

1. M. Davidson, M.D.

   1. On or about April 18, 1986, Respondent examined and treated patient T. K. for stress headaches.

   2. The report of the drug analysis performed by Smith Klein Laboratories in September, 1985, for Pat Major is admitted as true and correct.

Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Patricia Major, M.D., graduated from Harvard undergraduate school with honors; graduated with honors from New York University School of Medicine; served her internship at Yale New Haven Hospital, as well as completing a residency program and fellowship program in pulmonary diseases at Yale in 1974. She was certified in 1974 by the American Board of Internal Medicine. She was a teaching fellow at Yale during her pulmonary fellowship and had a faculty appointment thereafter at that same school. She was Assistant Director and Educational Coordinator at the Family Practices Residency Program for the University of Connecticut and from 1974 through 1976 had teaching appointments there.

   
   

2. In 1976, she left New England and returned to Florida to practice internal medicine in Key West where she had grown up. During the period from 1976 to 1980, when she practiced medicine in Key West, she also worked with Emory University and the University of Miami as a clinician teaching medical students who were placed in Key West on rotating clerkships. She served as an emergency room physician at Florida Keys Memorial Hospital and was an admitting physician on the staff. In 1978 she was selected as one of five physicians to become the first civilians to go through the Navy's Diving Medical Officers Training Program and served as a civilian diving medical officer for the Navy in Key West.

   
   

3. In 1980, the Board of Medical Examiners of the State of Florida brought charges against Respondent that resulted in a stipulation being entered into between Respondent and the Board that she would voluntarily cease practicing in Florida and relinquish her Florida license. The stipulation was signed in December, 1981, and her license was relinquished by Order of the Board in February, 1982. The charges that resulted in the initial suspension of Respondent's license and in the stipulation between the Respondent and the Board dealt with charges based on impairment due to drugs and alcohol.

   
   

4. Respondent moved to Massachusetts where she practiced medicine under a temporary license and voluntarily participated in the Impaired Professionals Program for two years. From 1982 to 1984 she had twice-weekly urine screens under her contract between the assigned Massachusetts monitoring physician and herself. In no instance was there evidence of impairment or a positive urine screen during her Massachusetts stay.

   
   

5. In 1984, Respondent returned to Florida and applied to the Board of Medical Examiners for permission to return to practice. On March 14, 1984, the Board of Medical Examiners entered an order reinstating Respondent's medical license for the State of Florida, placing her on probation for a period of three years and setting up a monitoring agreement under which Dr. John Buckner of the Island Clinic would serve as supervising physician for Respondent.

   
   

6. From March, 1984, until April, 1986, Respondent worked at the Island Clinic with Dr. Buckner, seeing 15 to 25 patients a day. During that period of time, she only missed one working day, in September, 1985, when she was moving from one house to another and during the period of time immediately before and during her October, 1985 stay at South Miami Hospital.

7. Respondent, and all of the witnesses who had personal knowledge of her contact with patients, denied that she ever treated or dealt with patients while under the influence of drugs or alcohol from 1984 until the current time.

   
   

8. Iris Carleen Cervantes, who served as secretary to Dr. Buckner and is currently on the staff of Dr. Davidson, Respondent's current monitoring physician, has had the opportunity over two and one-half years to observe Respondent on a regular basis in her dealings with patients. She has been with Respondent socially as well. She has never seen Respondent drink alcoholic beverages. She uses Respondent as her personal physician and for all other members of her family. She is aware of the Respondent's regular visits to her psychiatrist, Dr. Jerrold Weinstock, and takes those into account in doing the scheduling for Dr. Major. She is similarly aware of Respondent's regular attendance at Alcoholics Anonymous meetings, has never heard Respondent disparage A.A.; and in fact, has a brother whom Respondent helped get into A.A. At no time has Cervantes ever seen any indication, even when Respondent has returned to the office late at night, of any use of drugs or alcohol.

   
   

9. Linda Susan Park, a counselor at the Delphus Drug and Alcohol Treatment Center at Florida Keys Memorial Hospital for the last three and one-half years, knows Respondent both personally and professionally. She has never seen Respondent under the influence of any mood-altering chemicals. Although they go out socially together, she has never seen Respondent order an alcoholic beverage. When they are together, they talk program, i.e., A.A. steps. Parks has regularly seen Respondent at A.A. meetings, and they attend a number of the same groups including a Wednesday night women's group called The New Beginnings Group.

   
   

10. Parks is aware of the interest Respondent has shown in drug and alcohol-impaired nurses at Keys Memorial and of her attendance at the impaired nurses Caducues meetings. Respondent has worked with the Delphus Program at Florida Keys Memorial Hospital referring a number of patients to the program. Park has seen the Respondent under extremely stressful situations, particularly in the past year; and has seen her act only appropriately.

    
    

11. With the Board's approval, Respondent has also worked with indigent patients at the Health Care Center at Florida Keys Memorial Hospital since August, 1986. The Director of that program, Thomas C. Puroff, testified regarding her employment there. Respondent was originally hired on a temporary basis to cover for the primary care physician for three weeks. The Director's assessment of her initial period of employment at the Health Care Center is as follows:

    
    

    The staff was very, very pleased with her performance, and I was very pleased with her performance. The staff felt that they were learning a lot from her, that she was an exemplary doctor who explained why she was doing things with patients and it became a learning process for our nurse practitioners and nurses. Her interaction with the receptionist, administrative assistant was very high level, very positive, and the patients loved her. And both--well, later on when we did hire her on a one day per week basis to fill in when the regular doctor

    could not be there, a lot of patients would call and specifically request an appointment when she was going to be there. (Transcript, P. 199)

    
    

12. The Health Care Center ultimately hired the Respondent for one to two days a week when the other physician was not there. She works the longest day of the stretch, which is a ten-hour day. The Director describes the job as a high stress one in which he has seen no difficulty in handling stress on Respondent's part. He has never seen any indication of impairment of faculties or inability to handle her job in any fashion on Respondent's part. When he hired Respondent, Puroff had full knowledge that she had problems with the Board of Medical Examiners, had been assigned a monitoring physician, had been brought in restraints to the emergency room at Florida Keys Memorial Hospital and had been committed under the Baker Act in September of 1985, that she was an alcoholic who attended A.A., and that she regularly visited a psychiatrist.

    None of these matters were kept secret from him.

    
    

13. Karl Michael Davidson, M.D., who became Respondent's monitoring physician after Dr. Buckner abruptly left town in April, 1986, has similarly seen no sign of any kind of impairment during the time he has worked with her. He has never seen her indulge in any drugs or alcohol. He knows that she regularly sees her psychiatrist. He has received no complaints from anyone in the medical community, the patient community, or the general community of Key West with regard to Respondent since he has served in a monitoring capacity for her.

    
    

14. Even Sally Parr who testified on behalf of the Petitioner denied that Respondent ever used alcohol when she was in a situation in any way connected with patients.

    
    

15. Regarding the change of monitoring physicians in April, 1986, the testimony of Respondent and her witnesses was consistent and uncontradicted, with Petitioner presenting no facts other than those stipulated. The individual having the most knowledge regarding the circumstances under which Dr. Buckner left Key West, was his secretary, Iris Cervantes. She, like the other witnesses, was aware that he had gone to look at a number of schools and other medical positions. He would say he was going to leave, but he always came back. On April 6, 1986, Buckner's wife told Respondent the Island Clinic was being closed and Buckner was leaving. On April 7, the locks on the doors to the Island Clinic were changed. Cervantes was one of two people to have a new key; Respondent and the other doctors practicing with Dr. Buckner were not given keys. This left Respondent in a position where she could not write some pharmaceutical prescriptions, all appointments had to be cancelled, and there was no way to treat ongoing patients who were ill at the time.

    
    

16. When the locksmiths changed the locks, Respondent contacted Buckner to ask if he knew what he was doing and if he were going to be gone permanently.

    He indicated that he had started working in California, but he did not know whether it would be permanent. He said that he had spoken with Dr. Davidson and asked him to act as a temporary supervising physician in addition to himself.

    Respondent spoke with Dr. Davidson who said that she was welcome to see patients at his office and that he would monitor until Buckner decided what he was doing. They spoke about immediately notifying the Board of the change in her office location. It was her impression that Dr. Davidson had actually notified the Board with a handwritten memo the first day she was there and that was how the investigator from the Department knew how to find her when the investigator came

    to see Respondent at Davidson's office on April 18, 1986. On that date Davidson also discussed with the investigator Buckner's abrupt departure which might be permanent. Respondent ultimately wrote the Board herself. That correspondence dated April 22, 1986, was received by the Department of Professional Regulation on April 28, 1986, the same day on which the Department received from Davidson his notification letter dated April 17, 1986. Four to six weeks after that letter, Dr. Davidson and Respondent were advised that the Board had received the information and would consider Dr. Davidson as her supervisor. On August 2, 1986 Davidson and Respondent appeared before the Board of Medical Examiners and received formal approval.

    
    

17. The remaining allegations involve two separate incidents occurring during the week of September 16, 1985. At that time, and since January of that year, Respondent was living in the home of Sally Parr, an Assistant State Attorney for Monroe County. It was Parr's testimony that several months after Respondent moved in, Respondent began to drink wine on a regular basis sometimes to the point of intoxication. Parr is the sole person to testify to having seen Respondent drink alcoholic beverages. Other witnesses testified to Parr's own problems with alcohol. The emotional relationship between Parr and Respondent from March, 1985, until September, 1985, was "stormy" and "tremendously emotional." The two of them attended therapy with Dr. Jerrold Weinstock.

    
    

18. On September 16-17, 1985, all of this emotionalism culminated in Parr calling the emergency number 911. During the evening of Monday, September 16, Parr's sister arrived in town. There were highly controverted scenes which both Parr and Respondent described. The two participants were clearly emotionally charged, angry, and upset. It was Parr's testimony that Respondent walked into the back bedroom and with a syringe in her hand with a pale yellow fluid in it, lifted her shirt and injected that material into her chest under her left breast Saying she was going to kill herself. According to Parr, Respondent said the fluid was 100 percent xylccaine and she would die in one minute. Parr then called 911, Respondent told her she was a fool to believe that, and Respondent left the house and drove away. Parr also confusedly describes a later scene that night with Respondent and another syringe and more light yellow fluid.

    
    

19. Officer Cynthia Tingley responded to that call from Parr. The report was treated as one for an "attempted suicide". At no time did Ms. Parr tell the officer that Respondent was not in danger or that Respondent had told Parr that she was "a fool" to believe that this was a way to kill oneself. In the opinion of the investigating officer, Parr had an odor of alcoholic beverage on her breath. The officer had no personal knowledge that Respondent had administered the legend drug to herself. She did note an empty bottle of xylocaine in the room but no syringe was found. Later the officer was called to where another officer had stopped Respondent and had given her a citation for careless driving. Respondent was cooperative and did not seem to be having health problems, although she did appear to be under a lot of stress and appeared anxious. Neither officer made any attempt to detain Respondent after the stopping.

    
    

20. Under Parr's version of this event, it ended with Respondent refusing to go to sleep in the back bedroom and only agreeing to go to sleep if she could sleep in Parr's room. That occurred and ended the evening. Respondent continued to live at the house, and on Thursday Parr and her sister left for a

    short vacation. Parr testified that she called from out-of-town to tell Respondent that she was not coming back to the house unless Respondent had moved out. Respondent agrees that Parr called and told her that but adds that Parr had promised to go on vacation with Respondent and told Respondent to arrange that vacation while Parr and her sister were gone.

    
    

21. Respondent specifically denies that she made a suicide attempt or attempted to give the impression she was trying to commit suicide on September 16-17, 1985, or any other time. She denies that the events described by Parr occurred but agrees that it was a very confusing, emotional night. She denies that there was any further incident when she returned that night and only recalls them both being pretty tired and having gone to bed.

    
    

22. Dr. Jerrold Weinstock, Respondent's treating psychiatrist and the individual to whom Parr and Respondent had gone for counselling, testified that the only description of the xylocaine/suicide incident he received came from Parr, not from Respondent. No information that Weinstock gained from his psychotherapy of Respondent indicated that Respondent's version of the event (or non-event) was incorrect.

    
    

23. It is specifically found based upon the credibility of the witnesses that Respondent did not inject herself or attempt to inject herself with anything and specifically not with xylocaine.

    
    

24. The second incident of that week occurred on Friday evening, September 20-21, 1985. This was the evening when Parr called Respondent and told her to move out of the house. Respondent describes that scene as follows.

    
    

    She [Parr] called. We had arranged that she would call at that time. I had seen my last patient about 5:30 or 5:45 and I was waiting at home for her call . . . She started screaming at me to get out of her home, that she did not want me there when she got back. I was stunned because I was making arrangements for vacation. I said, "What about the vacation?" She said, "I lied to get out."

    
    

    And I said, "Well, what will you do." "Call the police," she said. "I know people on the police force and I won't hesitate to use them." And then she hung up on me. (Transcript, P. 248)

    
    

    Respondent had taken steps during the day to arrange a trip to New York and Connecticut because Parr had never been to New York. An acquaintance came by while Respondent was still sitting stunned and asked her if she wanted to go to the Black Angus and have a drink. Respondent went with this individual to the Black Angus and had three very strong drinks there. She realized that she was feeling intoxicated after the third drink. She asked the woman, who was driving, to drop her off at Sally's house, but the woman wanted to go downtown to a few more bars. Respondent pleaded to be dropped off, and her companion became belligerent. Ultimately, the acquaintance assaulted Respondent tearing her shirt off, punching her in the face, hitting her about the head, grabbing her purse and pulling it away from her. During the scuffle, Respondent even lost her sandals. Petitioner has not controverted this account. Cervantes and

    Buckner both confirmed the bruises and scratches from the fight. Cervantes also described an incident a few days later whereby the same woman came into the Clinic, gave Cervantes some earrings she said she had taken out of Respondent's purse, and slashed the tires on Respondent's car on her way out.

    
    

25. Respondent was left intoxicated, running, frightened, with no top on and three miles from Parr's house. She did not have her keys which had been in her purse and could not get into the clinic but felt she could get into Parr's house if she could get there. She felt intoxicated and becoming more so, uncertain whether it was the alcohol or being beaten that was affecting her.

    She was disoriented and embarrassed to be running down the street wearing only a pair of shorts. She crawled under a garage on the side of the road to sleep to clear her head to find a solution to her predicament. She was awakened by police officers but said nothing in response to questioning.

    
    

26. Respondent was taken by the police to Florida Keys Memorial Hospital. When the police officers tried to transport Respondent, she became physically violent, kicking at the officers and attempting to kick out the windows of the patrol car. When she arrived at the hospital, she was physically restrained with arm and leg restraints. A drug analysis performed on Respondent at the hospital showed her blood alcohol level to be 0.235 percent.

    
    

27. Respondent was next transported to Marc House in Marathon, Florida. She was involuntarily committed under the Baker Act for that one night. The next morning, Dr. Jesse Sewell, Director of Marc House, spoke with Respondent, determined there was absolutely no reason for Respondent to be there, and called Buckner to pick up Respondent and transport her back to Key West. Dr. Buckner did and took Respondent to Parr's house so she could move out her belongings.

    
    

28. Respondent and Buckner discussed the episode at great length and she got in touch with Dr. Weinstock. Buckner and Respondent called her probation officer with the Department of Professional Regulation, a Diane Robie, who advised them to contact Dr. Roger Goetz, head of the Florida Impaired Physicians Program. Buckner called Goetz and described the incident that resulted in Respondent being committed overnight. He told Goetz that Respondent had moved out of the place where she had been living which seemed to have precipitated the disturbance; that she was in daily contact with her psychiatrist; that she had started attending A.A. meetings daily as recommended to someone who has had an episode of drinking; and that she would bring her support systems together. Goetz suggested going for evaluation at South Miami Hospital with Dr. Lynn Hankes. When Respondent was evaluated by Hankes, he recommended entry into South Miami's treatment program. Respondent went back to Key West and conferred with Buckner, Weinstock, and Goetz. Although Weinstock believed the inpatient program at South Miami would be therapeutically counterproductive, Respondent followed the recommendations of Goetz and Hankes and entered the treatment program on October 6, 1985.

    
    

29. Buckner (whose deposition was taken prior to his departure from Key West in April, 1986) considers Respondent the best internal medicine doctor in Monroe County. Since he had noticed nothing wrong with Respondent through Friday afternoon, September 20, 1985, he was surprised by the telephone call from Dr. Sewell at Marc House on Saturday morning. When Buckner spoke with Weinstock that day, Weinstock explained that Respondent completely removes her emotional problems from her professional self. After the Friday/Saturday Marc

    House incident, Respondent finished her weekend move from Parr's house on Monday and came back to work on Tuesday. From Tuesday until she entered South Miami's treatment program, her performance as a practicing physician remained exemplary, analytical and calm.

    
    

30. Respondent entered the program committed to making the program work and seeking insights into the nature of her disastrous interpersonal relationships as well as the episode that led to her admission to Marc House. Dr. Lynn Hankes testified that Respondent is a chronic alcoholic who will always be an impaired physician. He described in detail the South Miami Treatment Program beginning with the first phase of detox and assessment. He admitted that Respondent did not require detoxification and that she suffered no abstinence syndrome or withdrawal syndrome. She became immediately oriented to the program and began interacting with her counselor. However, Dr. Hankes believes that Respondent only intellectually admitted to the problem and that she was preoccupied with only interacting with the other medical professionals on the unit. He described at some length Respondent's "negative limit testing" and her preoccupation with the medical professionals on the unit. He regarded her as "sabotaging her own treatment". For example, Respondent did not initially tell program personnel that she sometimes had a glass of wine at dinner over the last several months or that she shared a marijuana cigarette on her way from Key West to admit herself into South Miami Hospital although she did disclose that information during her stay in the program. It is his opinion that there is a clear medical indication for extended treatment in a secondary facility for many reasons. Basically, in his opinion, it was a bottom line of an intellectual admission of the disease with only minimal acceptance. He administratively discharged Respondent from the program on October 31, 1985 just prior to her completing the program because she refused to accept his recommendation for extended care for an indefinite period of time. Dr. Hankes did not see Respondent after October 31, 1985 in any capacity. All of his testimony was based on information which he had prior to October 31, 1985. Dr. Hankes admitted that the only limit testing, rule breaking that Respondent had engaged in was that she spoke to other medical professionals, she spoke to male patients in their room while she stood at the door, and she walked a friend to the lobby of the hospital but did not leave the premises. He also observed isolation tendencies on her part. His dire predictions of doom have not proven accurate. In the subsequent year and a quarter Respondent has stayed sober and practiced medicine successfully with no further incident.

    
    

31. It was Buckner's impression that the major reason Respondent was being required to go into the hospital for the inpatient treatment was because other impaired physicians in the Key West area had had to go through the program, and they were unhappy that she had somehow missed it. Buckner encouraged Respondent to enter the treatment program, even against the advice of her psychiatrist, so that the Board would be on her side after she "completed the drill." Buckner spoke with her counselor and therapist regularly during the time she was at South Miami Hospital and got indications that everything was progressing well and that she would be back to Key West to practice at the scheduled time.

    
    

32. Buckner went to South Miami Hospital three weeks after Respondent's admission to meet with Dr. Hankes on a Saturday. Hankes did not show up for the appointment, but Buckner later reached him by phone. Hankes told Buckner that Respondent was progressing fine, although she still had some problems. Hankes said Respondent would be back in Key West practicing the next week and could have outpatient treatment with Dr. Weinstock. Buckner returned to Key West and told his staff to schedule Respondent for patients the next week when she would

    return. On Monday Respondent telephoned to tell him that Hankes had changed his mind, that they were not going to release her, and that she was going to have to sign herself out.

    
    

33. No explanation has been offered as to why Hankes changed his mind between Saturday and Monday so radically from outpatient treatment with Respondent's treating psychiatrist to indefinite inpatient hospitalization. Buckner and Weinstock agreed the best treatment for Respondent was to get her back practicing medicine. Buckner contacted Cecilia Bradley, the attorney representing the Department and the Board, asking for direction. Bradley advised Buckner that he would have to personally decide whether Respondent was a threat to the community. He saw no such threat. Respondent returned to the Island Clinic and resumed her practice. Buckner saw her there on a daily basis, and her performance was, in his opinion, the same as before, "absolutely flawless."

    
    

34. When Respondent did not accept Hankes' recommendation of indefinite long-term treatment in Mississippi, she became, in Dr. Goetz's opinion, in noncompliance with the Florida statute on impaired physicians. Dr. Goetz subsequently reported her to the Department of Professional Regulation for her failure to continue satisfactorily in the program. Goetz admitted that his role as Director of the program was one of an administrative officer, and he has offered no opinion as to whether Respondent is in fact impaired. Goetz has received no information that Respondent's impairment, if any, has in any way affected her practice or patient contact.

    
    

35. All the information that Goetz relies on is information prior to Respondent's discharge from South Miami Hospital on October 31, 1985.

    
    

36. It was Buckner's understanding, and that of Respondent, that she had not violated the Order of the Board in having an instance where she "slipped" with regard to drinking. Dr. Goetz agreed with that assessment a "slip" can be a part of a rehabilitation program. Linda Parks, Diane Robie, and Dr. Weinstock agree with that assessment.

    
    

37. Respondent could not have financially afforded the Mississippi program. Despite the testimony of Hankes and Goetz that Respondent could have gone there for free, Goetz did not tell her that, Hankes did not know what the financial arrangement was, and the Director of that program whom Respondent personally contacted regarding the program did not mention such a possibility.

    
    

38. Jerrold Weinstock has been Respondent's treating psychiatrist since 1984. His opinion is that there is no basis for the allegation that Respondent be considered an impaired physician incapable of rendering safe, quality, and competent services to her patients. In fact, Weinstock refers members of his own family to her. That opinion is shared by two independent psychiatrists, Stanley I. Holzberg, M.D., and Milton Burglass, M.D.

    
    

39. Dr. Holzberg examined Respondent initially on behalf of the Florida Impaired Physicians Program in 1983; reexamined her at the request of the Department in February, 1984; and saw her for a third time at her own request in November, 1985, following Respondent's discharge from South Miami Hospital. On all of the occasions when he examined Respondent, Holzberg opined that she could practice medicine with skill and safety with the conditions that she have treatment and monitoring. Holzberg considers the treatment she is receiving from Weinstock, including the prescription of an antidepressant, as appropriate long-term treatment. He agrees with Weinstock and Buckner that long-term

    inpatient hospitalization would not be helpful to Respondent. Holzberg further agrees with Weinstock that Respondent's major illness is chronic depression, the affective disorder.

    
    

40. Dr. Milton Burglass evaluated Respondent on March 25 and April 2, 1986, and reached the same conclusion. Burglass administered a full series of psychological tests to Respondent, including the Minnesota Multi-Phasic' Personality Inventory; the Beck Depression Inventory; the Cattell Use for Tension and Anxiety Survey Schedule; the Rotter Incomplete Sentences Blank; the Cattell Assertive Behavior Survey Schedule; the Cattell Thought Stopping Survey Schedule; and the Standardized Medical and Personal History Form. He spent, in addition, a total of five hours interviewing Respondent, and he went over all the records from other psychiatric and related medical evaluations that she had had from 1980 forward.

    
    

41. Burglass found nothing to suggest that Respondent is incapable of practicing medicine with skill and safety. Burglass believes that people can, in fact, function normally and be able to perform professionally in their chosen profession after recovering from a chemical dependency, be it drug or alcohol. Burglass specifically opined that Respondent is not impaired.

    
    

    CONCLUSIONS OF LAW

    
    

42. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

    
    

43. The Administrative Complaint filed in DOAH Case No. 86-0469 essentially alleges that Respondent injected herself with xylocaine, that Respondent was involuntarily hospitalized under the Baker Act, that Respondent failed to progress satisfactorily in the Impaired Physician Program by refusing to continue therapy, and that Respondent has been unable to practice medicine with reasonable skill and safety to patients. It alleges, therefore, that Respondent has violated Sections 458.331(1)(q), 458.331(1)(s), and 458.331(1)(x), Florida Statutes, which read as follows:

    
    

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

    
    

    (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. In enforcing this

    paragraph, the department shall have, upon a finding of the secretary or his designee that probable cause exists to believe that the licensee is unable to practice medicine because of the reasons stated in this paragraph, the authority to issue an order to compel a licensee to submit to a mental or physical examination by physicians designated by the department. If the licensee refuses to comply with such order, the department's order directing such examination may be enforced by filing a petition for enforcement in the circuit court in the circuit in which the licensee resides or does business. The licensee against whom the petition is filed may not be named or identified by initials in any public court records or documents, and the proceedings shall be closed to the public. The department shall be entitled to the summary procedure provided in S. 51.011. A licensee or certificateholder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients.

    
    

    (x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department.

    
    

    As to the first charge --administering a legend drug other than in the course of the physician's professional practice -- it has been specifically found that Respondent did not inject herself with xylocaine on September 16-17, 1985. The only evidence of such an event comes from the confused and uncorroborated testimony of Sally Parr which was denied by the Respondent. The conflicting testimony of these two women has been resolved in Respondent's favor due to the incredible nature of Parr's testimony, and the circumstantial evidence surrounding that evening, i.e., the investigating officer believes Parr to have been drinking that evening, found no syringe, and found no reason to detain Respondent upon talking to her when she was stopped by another police officer a short time later for careless driving. The presence of the empty xylocaine bottle in Parr's house is legally and logically insufficient to lend credence to her version of the events of that night.

    
    

44. Petitioner has also failed in its burden of proving that Respondent is or has been unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any mental or physical condition due to the absence of any evidence in support of that allegation. Rather, the evidence is uncontroverted that Respondent has functioned only as a caring and highly competent physician from the time her license was reinstated in Florida in March, 1984 through the present time.

    While Dr. Buckner was monitoring Respondent, he found her skills to be consistently "flawless"; Buckner's replacement monitor Dr. Davidson considers

    Respondent to be highly competent; Dr. Weinstock and Iris Cervantes have never questioned Respondent's skills and refer family members to her for treatment; the Administrator of the Health Care Center is "very pleased with her performance"; and the evaluating psychiatrists Drs. Holzberg and Burglass found no indication that Respondent was unable to practice medicine with skill and safety to her patients. Bizarre though the events of the week of September 16, 1985 may be, there is no relationship between Respondent's having become intoxicated on Friday night and any patient contact.

    
    

45. The only testimony questioning Respondent's ability to safely practice is that of Dr. Hankes (Dr. Goetz having no opinion). Much evidence was presented to show the divergence of viewpoint within the medical community as to the definition of an alcoholic, the definition of an impaired physician, the appropriate treatment to be rendered to alcoholics or impaired physicians, whether that treatment is better rendered by psychiatrists rather than other kinds of physicians, whether only an "addictionologist" is the appropriate provider of such treatment, and even whether a sub-specialty known as addictionology exists or should exist within the medical profession. There are many schools of thought with few professionals committed to any one of them.

    Dr. Hankes believes that Respondent is an alcoholic and therefore an impaired physician, that she will always be one, and that her questioning of those labels proves that she is a chronic alcoholic in denial. He further believes that unless she follows his recommendation for treatment, she can never be considered a recovered alcoholic. Interesting though the debate may be, it need not be resolved in this Recommended Order. It is not necessary to determine if Respondent should be labeled an alcoholic or an impaired physician since the answer to those questions is immaterial. Respondent is not charged with being either. Respondent has been charged with being unable to practice medicine safely and no evidence has been presented in support of that allegation.

    Respondent's refusal to follow Dr. Hankes' recommendation that she commit herself for an indefinite period of time is probative of nothing since Respondent could not afford the facility recommended and since Respondent was advised against that treatment by her treating psychiatrist who believed such treatment to be counterproductive and destructive to Respondent's recovery.

    Respondent's continued weekly sessions with Dr. Weinstock and her sometimes- daily attendance at A.A. meetings while actively practicing medicine in Key West between the time of her discharge from South Miami Hospital and the time of the final hearing in this cause appears to have constituted a successful treatment plan thus far. A difference in opinion as to the appropriate form of treatment with one being chosen and the other not being chosen--certainly cannot form the basis for disciplinary action against Respondent's license to practice medicine. Lastly, Petitioner's attempt to rely upon evidence as to Respondent's participation or not in Florida's impaired physician program prior to Respondent's stipulation with the Board relinquishing her license is irrelevant to this proceeding since the stipulation resolved all allegations by settlement instead of adjudication and such evidence predates the Board's March 1984 determination that Respondent was capable of practicing medicine safety when her license to practice in Florida was reinstated.

    
    

46. The last charge in that Administrative Complaint alleges that Respondent violated some order of the Board, no facts are pled in the Administrative Complaint and no evidence was offered at the final hearing as to the meaning of that charge in that Administrative Complaint.

    
    

47. The Administrative Complaint filed in DOAH Case NO. 86-2065 also charges Respondent with violating Section 458.331(1)(x), Florida Statutes, by violating a lawful order of the Board by her commencing to practice medicine at

    the office of Dr. Davidson without the prior approval of the Board of Medical Examiners. The parties agree that the Order reinstating Respondent's license to practice medicine in Florida entered by the Board on March 14, 1984 provides that Respondent shall practice medicine in Florida only under the supervision of John W. Buckner, M.D., at the Island Clinic in Key West. The parties further agree that that Order was subsequently modified to allow Respondent to also practice at the Health Care Center at Florida Keys Memorial Hospital. The evidence is clear and uncontroverted that no one knew for sure when John Buckner was leaving Key West, was not leaving Key West, was coming back to Key West, or was never coming back to Key West due to the number of times that he left and returned or at least advised people that he would. The evidence is also clear that on April 6, 1986 Buckner's wife told Respondent that Buckner was again leaving but that this time he was closing the Clinic; and on Monday, April 7, the Clinic was in fact closed, and the locks were changed. At the time that the locks were changed, Respondent had patients who were in need of continuing treatment. She contacted Buckner in California and he advised her that he would be back in two weeks and that Dr. Davidson had agreed to temporarily co-monitor Respondent while Buckner was away. Respondent spoke with Dr. Davidson who agreed. On Monday, April 14, 1986 Respondent commenced practicing with Dr.

    Davidson. She believed that Davidson sent a handwritten memo to the Board on that day, with the understanding that both Davidson and Respondent would send follow-up letters explaining the situation in more detail. On April 18, 1986 when the Department's investigator who had normally come to the Island Clinic to take urine specimens of Respondent came to Davidson's office, Respondent assumed that the Board had received notice. In fact, the follow-up letters sent by Davidson and Respondent were received by the Department on April 28, 1986 and subsequently by the Board on May 1, 1986. Subsequent authorization for Respondent to practice with Davidson as her monitoring physician was given, and that approval was formalized when Respondent and Davidson appeared before the Board on August 2, 1986. That one week between April 7 and April 14, 1986 must have been chaotic in that Respondent was treating patients at the time, (some of whom were quite ill), and had no place to practice and no authority to sign certain prescriptions without Buckner's cc-signature. Yet, there exists a distinction between notifying the Board of a change in practice location and obtaining approval of the Board prior to such change. The Order of the Board is silent as to any requirement for obtaining prior approval; yet, the Order and the conditions contained therein are clearly premised on the contract between Buckner and Respondent regulating their practice together. Although Respondent's plight during that week when Buckner suddenly departed is understandable, the Order only permits her to practice at the Island Clinic (and as modified), also at the Health Care Center) By not contacting the Board to receive prior approval Respondent violated the Order of the Board when she began practicing in Davidson's office. Accordingly, Petitioner has proven that Respondent violated an Order of the Board as charged in the Administrative Complaint filed in DOAH Case NO. 86-2065.

    
    

48. In its proposed recommended order, Petitioner makes no recommendation as to any disciplinary action to be taken against Respondent for practicing at Davidson's office without obtaining prior approval. Further, no injury or prejudice is alleged to have occurred due to Respondent's conduct, and in fact approval was obtained when it was requested. Respondent's conduct is more in the nature of a technical violation, and there is no reason to believe that Respondent would make that mistake again. Respondent's license is already severely restricted since she has not yet completed her probationary period established when her license was reinstated. Additional "punishment" seems meaningless.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered:

1. Dismissing with prejudice the complaint filed against Respondent in DOAH Case NO. 86-0469;

   
   

2. Finding Respondent guilty of the allegation contained in the Administrative Complaint filed in Case No. 86-2065 but taking no disciplinary action against her, and

   
   

3. Allowing Respondent to continue to practice medicine under reasonable monitoring conditions until the period of her probation has been completed on March 15, 1987.

DONE AND ORDERED this 5th day of March, 1987, in Tallahassee, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1987.

APPENDIX TO RECOMMENDED ORDER DOAH Case Nos. 86- 0469

and 86-2065

Rulings are made as to each of Petitioner's proposed findings of fact as follows:

1-2. Adopted.

3. Rejected as irrelevant.

4-5. Adopted.

6-7. Rejected as not supported by the weight of the credible evidence.

1. Rejected as being contrary to the weight of the credible evidence.

2. Adopted.

3. Rejected as not supported by the weight of the credible evidence.

4. Adopted.

5. Rejected as being a statement taken totally out of context.

6. Adopted.

7. Rejected as being contrary to the weight of the credible evidence.

15-17. Adopted.

1. Rejected as not supported by the weight of the credible evidence.

2. Adopted.

3. Rejected as not supported by the weight of the credible evidence.

4. First two sentences adopted; third sentence rejected as being contrary to the weight of the credible evidence.

22-23. Adopted.

1. Rejected as being secondary.

2. Adopted.

3. First sentence rejected as being contrary to the weight of the credible evidence. Second sentence adopted.

4. Rejected as being contrary to the weight of the credible evidence.

28-29. Adopted.

30-32. Rejected as not supported by any evidence.

1. Rejected as being secondary.

2. Rejected as being contrary.

3. Rejected as being irrelevant.

4. Rejected as being secondary.

5. Adopted.

6. Rejected as not supported by any evidence.

7. Rejected as being irrelevant. 40-45. Adopted.

1. Rejected as being irrelevant.

2. Adopted.

Rulings are made as to each of Respondent's proposed findings of fact as follows:

1-27. Adopted.

28. Rejected as being redundant. 29-32. Adopted.

33. Rejected as being redundant. 34-39. Adopted.

40-41. Rejected as being unnecessary. 42-43. Adopted.

COPIES FURNISHED:

Leslie Brookmeyer, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Elizabeth Du Fresne, Esquire 2950 S.W. 27th Avenue, Suite 10 Coconut Grove, Florida 33133

Nathan Eden, Esquire

417 Eaton Street

Key West, Florida 33040

Van Poole, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Dorothy Faircloth Executive Director

Board of Medical Examiners

130 N. Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-000469

Orders for Case No: 86-000469