Judges: WILLIAM R. CAVE
Agency: Department of Health
Latest Update: Jul. 28, 1986
Summary: Prescribing drugs that are contraindicated sufficient to show failure to practice medicine with proper level of care
86-0633.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE No. 86-0633
)
JOHN H. SHACKELTON, M.D. )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before William R. Cave, Hearing Officer, with the Division of Administrative Hearings on May 15, 1986 in Jacksonville, Florida. The issue for determination is whether disciplinary action should be taken against the Respondent's physician's license, ME 0005920, based upon allegations that he violated various provisions of Section 458.331, Florida Statutes, as set forth in the Administrative Complaint.
APPEARANCES
FOR PETITIONER: Leslie Brookmeyer, Esquire
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
FOR RESPONDENT: John W. Shackelton, Pro Se
6404 Arlington Road
Jacksonville, Florida 32211
By an Administrative Complaint dated February 6, 1986 and filed with the Division of Administrative Hearings on February 27, 1986, the Petitioner seeks to revoke, suspend or otherwise discipline the Respondent's physician's license. As grounds therefor, it is alleged that: (1) Respondent violated Section 458.331(1)(h), Florida Statutes by failing to perform the statutory and legal obligation placed upon a licensed physician pursuant to Section 893.05(1), Florida Statutes; (2) Respondent violated Section 458.331(1)(n), Florida Statutes by failing to keep written medical records justifying the course of treatment of a patient; (3) Respondent violated Section 458.331(1)(q), Florida Statutes by 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 and; (4) Respondent violated Section 458.331(1)(t), Florida Statutes by failing 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 support of the charges, Petitioner presented the testimony of John Shackelton, Stephen J. Clark and John E. Danson. Petitioner's exhibits 1 through 4 were received into evidence.
Respondent testified on his own behalf but did not introduce any documentary evidence.
The Petitioner submitted posthearing Proposed Findings of Fact and Conclusions of Law. Respondent submitted what was categorized as a summary of essential points covered in the hearing on May 15, 1986. A ruling on each proposed finding of fact has been made as reflected in the Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral testimony and documentary evidence adduced at the hearing, the following relevant facts are found:
The Respondent is and has been at all times material to this proceeding, a licensed physician in the State of Florida having been issued license number ME 0005920.
Between July 26, 1982 and June 28, 1985, Clarence Keener was a patient of Respondent.
Clarence Keener is approximately eighty-five (85) years old.
Clarence Keener was taking Tuinal, a brand name for a drug containing Schedule II Controlled Substance as listed in Chapter 893, Florida Statutes, when Respondent began treating him. Respondent continued to prescribe Tuinal for Clarence Keener's insomnia. Tuinal is an accepted sleeping preparation, although a hypnotic medication.
On January 6, 1984, Respondent began prescribing Ritalin, a brand name for a drug containing Schedule II Controlled Substance as listed in Chapter 893, Florida Statutes, for Clarence Keener's depression and fatigue. Ritalin is an anti-depressant.
Respondent prescribed Tuinal and Ritalin at the same time for Clarence Keener from January, 1984 until June, 1985. Tuinal to be taken at night for sleep and Ritalin to be taken in the morning for depression.
In his care and treatment of Clarence Keener, Respondent did not perform: (1) a complete physical examination; (2) any lab work, other than urinalysis; (3) a blood chemistry; (4) a chest x-ray or; (5) an electrocardiogram.
Respondent failed to include in Clarence Keener's medical records the results of blood counts performed in the office.
Respondent's medical records on Clarence Keener did not justify his course of treatment of Clarence Keener, however, the evidence was insufficient to prove that Respondent had failed to substantially document his treatment of Clarence Keener considering that Respondent had not performed a complete physical examination, blood chemistries, or any lab work (other than a urinalysis none of which could be documented since they had not been performed.
During the course of treatment, Clarence Keener, told Respondent he had problems with heart irregularity and premature ventricular contractions.
Respondent continued to prescribe Ritalin for Clarence Keener even after the patient exhibited hypertension and irregular heartbeats, which are known side effects to the use of Ritalin.
Respondent neither attempted to "wean" Clarence Keener from the use of Tuinal for insomnia nor did he attempt to use any other type anti-depressant that was less dangerous than Ritalin.
Respondent failed to adequately evaluate Clarence Keener regarding the side effects of Tuinal and Ritalin.
Between March, 1978 and June, 1985, Gladys Hooten was a patient of Respondent.
Gladys Hooten is approximately seventy-one (71 years old.
In March, 1978, when Respondent first began treating Gladys Hooten for nerves, he took her blood pressure, checked her heart and urine. Without performing a complete physical on Gladys Hooten, Respondent began prescribing Valium and Quaaludes.
Prior to treating Gladys Hooten, Respondent failed to appropriately evaluate and diagnose her condition.
On October 5, 1981, Respondent began prescribing Ritalin for Gladys Hooten.
Respondent continued to prescribe Quaaludes and Ritalin at the same time for Gladys Hooten until May, 1984.
Respondent never tried to "wean" Gladys Hooten from Quaaludes to see if it would stop her depression.
Respondent failed to try other drugs instead of Ritalin to treat Gladys Hooten's depression.
In May, 1984, when Quaaludes were removed from the market, Respondent began prescribing Tuinal for Gladys Hooten for insomnia.
Respondent prescribed Ritalin and Tuinal at the same time for Gladys Hooten from May, 1984 until June, 1985, Tuinal to be taken at night for sleep and Ritalin to be taken in the morning for depression.
In his care and treatment of Gladys Hooten, Respondent did not perform: (1) a complete physical examination; (2) any lab work, other than urinalysis; (3) blood chemistry; (4) chest x-ray or; (5) electrocardiogram.
Respondent's medical records on Gladys Hooten did not justify his course of treatment of Gladys Hooten, however, the evidence was insufficient to prove that Respondent had failed to substantially document his treatment of Gladys Hooten considering that Respondent had not performed a complete physical examination, blood chemistries, or any lab work (other than a urinalysis) none of which could be documented since they had not been performed.
Respondent's concomitant use of Tuinal and Ritalin for Clarence Keener and Gladys Hooten was inappropriate.
Both Ritalin and Tuinal are addictive drugs.
Neither Ritalin nor Tuinal should be used over a long period of time as was the case here. The usual time period recommended is fourteen (14 days.)
One of the known side effects of Tuinal is depression.
Respondent prescribed Ritalin for Clarence Keener and Gladys Hooten for treatment of depression.
Respondent's use of Ritalin for treatment of depression for Clarence Keener and Gladys Hooten was inappropriate.
Ritalin can be a dangerous drug for elderly patients such as Clarence Keener and Gladys Hooten because one of the side effects is ventricular tachycardia or increased heart rate.
Respondent's use of Ritalin and Tuinal for Clarence Keener and Gladys Hooten was inappropriate because he failed to evaluate them properly regarding the drugs and their potential harm for the elderly.
There was credible evidence that drugs less dangerous to elderly person were available for use by Respondent in his treatment of Clarence Keener and Gladys Hooten.
In treating Clarence Keener and Gladys Hooten, Respondent failed 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.
Respondent has been practicing medicine for approximately forty (40 years without any apparent blemish on his record.
Respondent did not prescribe either Ritalin or Tuinal in excessive or inappropriate amounts for either Clarence Keener or Gladys Hooten in his treatment of them.
Respondent's testimony that because of Clarence Keener's and Gladys Hooten's age and their financial status his treatment of them without a battery of expensive test was reasonable and that their quality of life had improved through his treatment was credible. However, the more credible and persuasive evidence was that Ritalin and Quaaludes or Ritalin and Tuinal in combination as in this situation was contraindicated and could have caused some serious problems notwithstanding that neither Clarence Keener nor Gladys Hooten suffered any bad effects from Respondent's treatment.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding, pursuant to Section 120.57(1), Florida Statutes.
The alleged misconduct of which Respondent is accused purportedly violates Section 458.331(1)(h)(n)(q) and (t); and Section 893.05(1), Florida Statutes. Section 458.331(1)(h)(n)(q) and (t), Florida Statutes provides as follows:
The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken:
(h) Failing to perform any statutory or legal obligation placed upon a licensed physician.
(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.
(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 purpose 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. (emphasis supplied)
* * *
(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...As used in this paragraph,..."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," shall not be construed so as to require more than one instance, event, or act. (emphasis supplied)
Section 893.05(1), Florida Statutes in pertinent part provides as follows:
A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix or otherwise prepare a controlled substance, or he may cause the same to be administered by a licensed nurse or an intern practitioner under his discretion and supervision only....
In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino
v. Department of Rehabilitative Services, 348 So2d 349, (1 DCA Fla. 1977). The Petitioner has met its burden of proof to show that Respondent: (1) failed to perform the statutory and legal obligation placed on him pursuant to Section 893.05(1), Florida Statutes, in violation of Section 458.331(1)(h), Florida Statutes; (2) prescribed a controlled substance other than in the course of his professional practice in violation of Section 458.331(1)(q), Florida Statutes and; (3) failed 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. However, Petitioner has failed to meet its burden of proof to show that Respondent violated Section 458.331(1)(n), Florida Statutes by failing to keep written medical records justifying his course of treatment for Clarence Keener and Gladys Hooten.
RECOMMENDATION
Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found guilty of a violation of Section 458.331(1)(h)(q) and (t), Florida Statutes. For such violation, considering the mitigating circumstances surrounding the violation, it is RECOMMENDED that the Board suspend Respondent's license for a period of one (1) year, stay the suspension and place Respondent on probation subject to terms deemed appropriate by the Board. It is further RECOMMENDED that Count One and Count Five be DISMISSED.
Respectfully submitted and entered this 28th day of July, 1986, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Adminisrative Hearings this 28th day of July, 1986.
APPENDIX TO RECOMMENDED ORDER IN CASE No. 86-0633
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
1-8. Adopted in Findings of Fact 1 through 8 consecutively.
9. Rejected as not comporting with the substantial competent evidence in the record in that the medical records were complete but did not support the course of treatment.
10-24. Adopted in Findings of Fact 10 through 24 consecutively.
Rejected as not comporting with the substantial competent evidence in the record in that the medical records were complete but did not support the course of treatment.
Adopted in Finding of Fact 26.
Adopted in Finding of Fact 4 and 5.
Adopted in Finding of Fact 27.
Adopted in Finding of Fact 28.
30-36. Adopted in Findings of Fact 28 through 34 consecutively. 37-38. Adopted in Finding of Fact 35 as modified.
Rulings on Proposed Findings of Fact Submitted by the Respondent
Rejected as argument or a statement of what the Administrative Complaint alleged.
The first sentence rejected as not supported by substantial competent evidence in the record. The second and third sentences are rejected as immaterial and irrelevant.
Rejected as not supported by substantial evidence in the record or as argument.
Rejected as argument.
COPIES FURNISHED:
Leslie Brookmeyer, Esquire Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
John H. Shackelton, M.D. 6404 Arlington Road
Jacksonville, Florida 32211
=================================================================
AGENCY FINAL ORDER
================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
DPR CASE NO. 0059413
vs. DOAH CASE NO. 86-0633
LICENSE NO. ME 0005920
JOHN H. SHACKELTON, M.D.,
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 October 11, 1986, in Tampa, Florida for the purpose of considering the hearing officer's Recommended Order (a copy of which is attached hereto) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Esquire.
Respondent was not present, but affirmatively agreed to the Board's acting in his absence.
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 findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the 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 conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein, with the exception of the finding in paragraph 2 that Petitioner failed to meet its burden of proof to show that Respondent violated Section 458.331(1)(n), Florida Statutes, by failing to keep written medical records justifying his course of treatment for Clarence Keener and Gladys Hooten. This conclusion of law is rejected for the reasons set forth in Exception 1 of Petitioner's Exceptions to Recommended Order.
There is competent substantial evidence to support the conclusions of law adopted by the Board.
RULINGS ON EXCEPTIONS
Granted. The statute requires that a physician keep written medical records justifying his course of treatment, it does not simply require the physician to document what he did.
Granted in part. The Board agrees that the penalty recommended by the Hearing Officer is unduly mild in that the entire suspension recommended would be stayed.
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be increased based upon the findings of fact of the Hearing Officer that Respondent performed inadequate physical examinations, recorded inadequate medical histories, and performed inadequate tests and examinations. In addition, the Board has, for reasons stated above, differed with the Hearing Officer by finding an additional
violation of failing to keep adequate medical records. Furthermore, the record reveals that Respondent does not understand the inappropriateness of his treatment of the patients at issue. WHEREFORE,
IT IS HEREBY ADOPTED AND ADJUDGED that
Respondent's license to practice medicine in Florida shall be suspended for a period of 6 months.
Within one year of the date of this order Respondent shall obtain 20 hours of Category I Continuing Medical Education in pharmacology. Such continuing education hours shall be in addition to any hours required for license renewal.
Prior to the end of the suspension, Respondent shall appear before the Board, at which time his license shall be placed on probation for 3 years subject to terms and conditions set by the Board at that time. Said probationary period shall begin upon the termination of the suspension.
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 thirty 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 24th day of February, 1987.
BOARD OF MEDICAL EXAMINERS
WILLIAM F. BRUNNER, M.D. 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 JOHN W. SHACKELTON, M.D., 6404 Arlington Road, Jacksonville, Florida 32211; by U. S. Mail to WILLIAM R. CAVE, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302, and by hand delivery to LESLIE BR0OKMEYER, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301 on or before 5:00 p.m., this 24th day of February, 1987.
Dorothy J. Faircloth Executive Director
Docket for Case No: 86-000633
Orders for Case No: 86-000633
| Issue Date |
Document |
Summary |
|
Feb. 24, 1987 |
Agency Final Order
|
|
|
Jul. 28, 1986 |
Recommended Order
|
Prescribing drugs that are contraindicated sufficient to show failure to practice medicine with proper level of care
|
