STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-0836

)

VIRGIL R. RIZZO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 2, 1986 in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Leslie A. Brookmeyer, Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Walter G. Campbell, Jr., Esquire

700 Southeast Third Avenue, Suite 100 Fort Lauderdale, Florida 33316

BACKGROUND

In a five count amended administrative complaint filed on April 25, 1986, petitioner, Department of Professional Regulation, Board of Medical Examiners, has charged that respondent, Virgil R. Rizzo, a licensed physician, had violated various provisions within Chapter 458, Florida statutes. /1 The underlying allegations supporting the complaint are that (a) while treating a patient between June, 1982 and October, 1985 respondent failed to perform adequate testing to properly diagnose that the patient had narcolepsy, that respondent dispensed an inappropriate and excessive amount of dextroamphetamine sulfate to the patient between February, 1982 and February, 1985, and failed to keep adequate written medical records justifying the course of treatment to the patient, (b) while treating a second patient between October, 1982 and August, 1985 respondent diagnosed the patient as being narcoleptic without adequate medical justification and without performing sufficient testing and diagnosis, that between October, 1982 and June, 1985 respondent inappropriately dispensed excessive amounts of dextroamphetamine sulfate to the patient, and failed to keep adequate written medical records justifying his course of treatment, and

(c) while treating a third patient between June, 1982 and April, 1985, who had previously been diagnosed as having narcolepsy, respondent inappropriately dispensed an excessive amount of dextroamphetamine sulfate to said patient, and failed to keep adequate medical records justifying the course of treatment to said patient. It is alleged that the foregoing conduct (a) violated Subsection

458.331(1)(n), Florida Statutes, in that respondent failed to keep written medical records justifying his course of treatment of said patients (Count I),

1. constituted a violation of Subsection 458.331(1)(q), Florida Statutes, because respondent dispensed a legend drug (dextroamphetamine sulfate) other than in the course of his professional practice (Count II), (c) violated Subsection 458.331(1)(cc), Florida Statutes, by dispensing a drug which is an amphetamine to persons who did not have narcolepsy (Count III), (d) violated Subsection 458.331(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent misrepresentations in the practice of medicine or employing a trick or scheme in the practice of medicine when said scheme or trick failed to conform to the generally prevailing standards of treatment in the medical community (Count IV), and (e) violated Subsection 458.331(1)(t), Florida Statutes, by being guilty of gross or repeated malpractice or failing to practice medicine with that level of skill, care and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (Count V).

   
   

   Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1985). The matter was referred by petitioner to the Division of Administrative Hearings on March 11, 1986, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated March 31, 1986 the final hearing was scheduled on June 13, 1986 in Fort Lauderdale, Florida. At the request of the parties, the matter was rescheduled to July 2, 1986 at the same location.

   
   

   At final hearing petitioner presented the testimony of respondent and Dr.

   Jeffrey E. Erlich. It also offered petitioner's exhibits 1-5. All were received in evidence except exhibits 4 and 5 upon which ruling was reserved. The latter two exhibits are the depositions of Drs. Matthew Cohen and Jacob Green. Respondent testified on his own behalf and presented the testimony of Drs. James T. Trezza and Irving Vinger, Betty E Conner, Nora Poulson and John Westyn. He offered respondent's exhibits 1-6 which were received in evidence. Exhibits 1 and 2 are the affidavits of Drs. Hector J. Sanchez and Merwin E Buchwald.

   
   

   The transcript of hearing was filed on July 21, 1986. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on August 1 and 4, 1986, respectively. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

   
   

   At issue is whether respondent's license as a medical doctor should be disciplined for the alleged violations set forth in the amended administrative complaint.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Introduction

      
      

      1. At all times relevant hereto, respondent, Virgil R. Rizzo, held physician license number ME 0013066 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners (DPR). He has never been the subject of an investigation by DPR prior to this proceeding.

      2. Rizzo received an undergraduate degree in chemistry from the University of Pittsburg. He later applied to and was accepted in medical school at the University of Basel, Switzerland where he received his medical degree in 1966. After graduating, Rizzo worked for six months in the research division of a Swiss dermatology/immunology clinic and studied for three months at the Swiss Institute of Tropical Medicine. He then returned to Lakeland, Florida where he completed a one year internship at Lakeland General Hospital and Polk County Hospital. At about the same time, Rizzo successfully passed the Florida examination for licensure and was licensed to practice medicine in the state around 1967 or 1968. Rizzo thereafter opened an office in the general practice of medicine in Plantation, Florida. Within a few months he was drafted into the army for a two year stint in the Medical Corps. Upon discharge he returned to Plantation to resume his medical practice. In 1976, Rizzo sold his practice and took a sabbatical for a year. Upon returning, he sharply reduced the number of patients that he treated to approximately one hundred per year. They included some former patients, friends and a few referrals. He also obtained a law degree and has been a licensed attorney since 1981. He still sees and treats some 20 to 30 patients per month, mostly at his home.

         
         

      3. This proceeding does not stem from complaints filed by former Rizzo patients. Rather, it arose after the Drug Enforcement Agency (DEA) gave DPR a list of Schedule II legend drugs purchased by Rizzo from various pharmaceutical suppliers. This was to be expected since Rizzo was required to fill out a DEA form 222 when purchasing the drugs, and such purchases were then routinely reviewed by DPR investigators. Indeed, Rizzo was aware of this procedure when he filled out the form and ordered the drugs.

         
         

   2. Narcolepsy

      
      

      1. Narcolepsy is an uncommon but not rare disease. It is characterized by recurrent and excessive drowsiness or sleepiness from which subjects are readily awakened. It is frequently, but not always, accompanied by cataplexy, a phenomenon of acute, brief, episodic, generalized muscular weakness, precipitated by feelings of emotion. If no cataplexy occurs, the disease is diagnosed as pure narcolepsy. The symptoms range from mild drowsiness to severe sleepiness in which subjects spend the entire day drifting in and out of sleep. The attacks of sleep may occur once or several times a day and may last minutes to hours. The sleep is similar to normal sleep but is apt to occur at inappropriate times, such as during work or while walking or driving. The usual onset of the disease is in adolescence or young adulthood, although some cases do not occur until later years. Once a person is diagnosed as having narcolepsy, the typical symptoms generally remain forever, although in some cases they go into remission. The most generally accepted treatment is the dispensing of amphetamines (dexedrine), a class II controlled substance, to the patient. Hypertension and cardiovascular disease are contraindications in the use of the drug. Because of this, the regular monitoring of the patient's blood pressure and heart rate is required. In addition, the drug has a high potential for abuse, and for this reason, care must be used by the physician in prescribing its use.

         
         

      2. To properly diagnose the disease, a complete physical examination and adequate patient history is necessary. The best test to diagnose narcolepsy is the physician's clinical evaluation of the patient. An electroencephalogram (EEG) is recommended in some, but not all, cases to verify the existence of the disease. The mere response to medication alone cannot be the sole basis for diagnosing the disease.

   3. Patient Donald D. Conner

      
      

      1. In 1973, Rizzo began treating one Donald D. Conner, then 55 years of age and a long distance truck driver who resided in Fort Pierce, Florida. Rizzo initially treated Conner for hemorrhoids. In October, 1982 Conner complained to Rizzo that he frequently felt great urges to fall asleep during daylight hours, particularly while driving his truck. Rizzo recommended multivitamin tablets. On that visit, Rizzo took a complete patient history from Conner and gave him a thorough physical examination. Because there were no pertinent positive physical findings, Rizzo did not record any entries concerning the examination in Conner's medical records. This was consistent with his instruction at medical school and internship training in Lakeland where he was told not to "clutter up" the records with all findings, but only with those that were positive. The actual recorded notes in Conner's records for that visit were as follows: Falling asleep during day while driving. Recommend multivitamins.

         
         

      2. On November 10, 1982 Conner returned to Rizzo's office again complaining that he was experiencing frequent sleeping episodes both at home and on the road, particularly when he was driving. Conner told Rizzo that he had been diagnosed by another physician as having narcolepsy, and had been given dexedrine to counter its symptoms. Conner also told Rizzo that the medication had produced favorable results in terms of controlling the sleeping episodes. Conner produced an empty vial for a prescription of dexedrine written by an out- of-state physician. This was not unusual since Conner had visited several out- of-state physicians while on his long trucking sojourns each year. Having excluded psychological and neurological problems, and having ruled out sleeping disorders and hypothyroidism, Rizzo postulated a tentative diagnosis of pure narcolepsy, and wrote Conner a prescription for dextroamphetamine sulfate. In making this diagnosis he did not attempt to contact the unnamed out-of-state physician who had been treating Conner. After the visit, Rizzo recorded Conner's blood pressure, pulse rate and the following notes in Conner's records:

         
         

         Given Dexedrine 5mg.q.4h by M.D. out west

         with good results. Told has case of narcolepsy. Will order dexedrine for him.

         
         

      3. Conner returned to Rizzo's office on December 18, 1982. Rizzo again performed a complete physical examination of Conner and found no positive findings. In addition, his blood pressure and heart rate were within normal limits. Therefore, there were no recordings in the patient records relative to the physical examination. After completing the evaluation, and having ruled out all other problems, Rizzo concluded that Conner had pure narcolepsy and made the following notation in Conner's patient records:

         
         

         Diagnosis: Narcolepsy

         Rx. 500 Dextroamphetamine Sulphate 5mg.

         
         

      4. Rizzo continued to see Conner over the next few years. The last recorded visit by Conner was on February 15, 1985. Between December, 1982 and February, 1985, Rizzo gave periodic prescriptions to Conner for dexedrine in the following quantities:

         
         

         Date Quantity Dosage

         
         

         12/18/82	500	5mg. tablets
         04/12/83	500	10mg. tablets
         07/29/83	500	10mg. tablets

         12/10/83	500	10mg. tablets
         03/20/84	500	10mg. tablets
         06/18/84	500	10mg. tablets
         10/15/84	500	10mg. tablets
         02/18/85	500	10mg. tablets

         
         

      5. However, after taking into account the time interval between refills, and the instructions given to the patient, the drug was given in quantities and strength that were in conformity with recognized and prevailing dosages and amounts for treating narcolepsy. On each visit Conner's heart rate and blood pressure were taken. Since they were within normal limits they were not recorded on the chart except on March 20, 1984. Rizzo did not take Conner's weight on any visit but stated Conner had told him his weight, and that it was being "monitored." Conner later died in 1985 from an unrelated illness.

         
         

   4. Patient Edmund Bonnett

      
      

      1. Patient Edmund Bonnett first visited Rizzo around 1971. On or about October 18, 1982 Bonnett visited Rizzo complaining of lassitude, depression and sleepiness. Upon performing a complete physical examination with no positive findings, Rizzo recorded only Bonnett's blood pressure and heart rate in the records. Rizzo also obtained a patient history but did not record the results. Bonnett had specific complaints of having a sudden urge to collapse and fall asleep at work during the daytime. These episodes would last from a few minutes to an hour. After ruling out other causes, including hypothyroidism and sleeping disorders, Rizzo postulated a tentative diagnosis of depression and "possible narcolepsy." He prescribed dexedrine and multivitamins with minerals. His notations in Bonnett's records read as follows:

         
         

         Lassitude, depression and sleepyness (sic)

         Dx Depression and possible Narcolepsy try: Dexedrine 5 mg tid (#100) and multivitamins c mineral q P.M.

         
         

      2. Bonnett next visited Rizzo on December 22, 1982. After further evaluation, and finding that Bonnett had responded well to dexedrine, Rizzo concluded that Bonnett had narcolepsy and continued him on the same medication. His notations in the records were as follows:

         
         

         Improved c Dexedrine Dx Narcolepsy

         give 100 Dexedrine 5 mg tid

         
         

         He also recorded Bonnett's blood pressure and heart rate.

         
         

      3. When Bonnett returned on April 10, 1983 he reported to Rizzo that his symptoms had been alleviated with the treatment. Rizzo was then satisfied that his diagnosis was correct and made the following notes in the patient records:

         
         

         Satisfied c Rx

         Continue same c Dx Narcolepsy

         500 5mg. Dextroamphetamine Sulfate (x2)

         
         

         Notes recorded by Rizzo after visits by Bonnett on June 22, 1983 and in October, 1983 are not legible.

      4. On April 1, 1984 Rizzo noted in Bonnett's patient records that the patient "feels not responding as well to meds. Try non-generic Dextro for Narcolepsy 5-10 mgs. Dextrodrine 5 mg 400-$24. Warned of possible increased tolerance to Dexedrine. Recommended periodic abstention."

         
         

      5. Rizzo continued to see Bonnett as a patient through 1985 and to prescribe dexedrine for his illness. During the period from October, 1982 through June, 1985 Rizzo prescribed the following quantities of dexadrine:

         
         

         Date Quantity Dosage

         
         

         10/18/82	100	5mg. tablets
         12/22/82	100	5mg. tablets
         04/10/83	500	5mg. tablets
         06/22/83	500	10mg. tablets
         02/01/84	400	5mg. tablets
         05/22/84	500	(unknown strength)
         10/15/84	500	10mg. tablets
         02/01/85	500	10mg. tablets
         04/13/85	500	10mg. tablets
         06/12/85	500	10mg. tablets

         
         

      6. However, after taking into account the time interval between refills, and the instructions given to the patient, the drug was given in quantities and strength that were within acceptable limits for treating narcolepsy.

         
         

      7. Rizzo examined Bonnett on each visit but found no positive findings. Accordingly, he did not record the results on the patient records. Although Rizzo never recorded Bonnett's weight on his records during the relevant thirty- two months period, Rizzo was aware of the patient's weight from earlier visits, and stated it varied from between 210 and 240 pounds. In a physical performed by another physician in June, 1986 Bonnett was found to be "mildly hypertensive." Whether he was mildly hypertensive while being treated by Rizzo was not disclosed.

         
         

   5. Patient John Westyn

      
      

      1. This patient initially came to Rizzo for an eye injury suffered on June 18, 1982. On September 20, 1982 Westyn returned to Rizzo's office complaining of sudden attacks of falling asleep at work and while driving. He also told Rizzo he had recently been told by a local internist that he possibly had narcolepsy. Rizzo performed a complete physical examination of Westyn but found no positive findings. He accordingly only noted the patient's blood pressure and heart rate in the notes. Rizzo also took a complete history from the patient. After doing so, Rizzo recommended that Westyn take dexadrine "to take care of the diagnosis." He also made the following notation in the records:

         
         

         9/20/82 c/o sleeping all the time.

         Recent exam and tests by internist who told has possible narcolepsy. Recommend dexa- drine. Dx narcolepsy. Rx try dextroamphete- mine sulfate 5 mg (500)T-II TID.

         
         

         Rizzo did not contact the other unnamed internist, or request copies of patient records to assist him in the diagnosis.

      2. When Westyn returned on October 15, 1982 he told Rizzo he was feeling much better after taking the dexadrine. Based upon the patient's history, physical and response to the medication Rizzo made the following notation in his records.

         
         

         10/15/82 Feeling much better c periodic Dexadrine.

         Dx Narcolepsy

         Rx continue c same.

         
         

      3. Rizzo continued to treat Westyn over the next few years. He always checked the patient's blood pressure and pulse although this was not recorded in the records. Rizzo was unsure if he weighed the patient, and did not record the patient's weight at any time. During the period from September, 1982 through July, 1985 Rizzo prescribed the following quantities of dextroamphetemine sulfate:

         
         

         Date Quantity Dosage

         
         

         09/20/82	500	5mg.	tablets
         1982	500	5mg.	tablets
         01/28/83	500	10mg.	tablets
         05/06/83	500	10mg.	tablets
         09/20/83	400	10mg.	tablets
         01/18/84	1000	5mg.	tablets
         05/29/84	500	10mg.	tablets
         10/12/84	500	10mg.	tablets
         02/15/85	500	10mg.	tablets
         04/03/85	500	10mg.	tablets

         
         

      4. Given the time interval between refills, and the instructions to the patient, the quantities and strength were acceptable for treating narcolepsy.

         
         

      5. Westyn testified at final hearing and confirmed that he would have sudden sleep attacks at work in mid-day, or nod off while stopped at a traffic light. He also believes he fell asleep at the wheel just prior to being in an automobile accident. He further confirmed that the sleep attacks had been alleviated since taking the medication. He has continued to take dexadrine since late 1982 but in less strength and frequency, and last took the drug some two months before the final hearing.

         
         

   6. Expert Testimony

1. Petitioner presented the testimony (one live and two by deposition) of three physicians who were tendered as experts in various areas of medicine. One was a neurologist from Jacksonville offered as an expert in narcolepsy, the second a family practitioner from Tallahassee offered as an expert in general medicine and family practice, and the third a board certified internist from Hollywood tendered as an expert in drug usage, patient records and internal medicine. In addition to his own testimony, respondent countered with two experts, one a board certified internist from Hollywood who had recently examined patient Bonnett, and the second a former University of Miami Medical School associate professor of family medicine and now a medical consultant in Miami. Rizzo also submitted two from physicians (one in Dade County and the other in Broward County) whose statements supplemented the testimony of Rizzo and his two experts. As might be expected, the two sets of physicians presented sharply conflicting testimony on whether Rizzo deviated from the requirements of

   Chapter 458. Where findings in favor of a party have been hereinafter made, the undersigned has considered that party's expert testimony to be more credible and persuasive.

   
   

2. The amended complaint contends that Rizzo's medical records were inadequate to justify the course of treatment on the three patients in question. In this regard, the three DPR experts opined that such records were indeed inadequate. However, the testimony of Dr. Vinger on behalf of respondent is deemed to be more credible and persuasive on this issue, particularly since Vinger is now a physician reviewer for Medicare and the Medical Foundation of South Florida. As such, he reviews the medical records of over one hundred facilities in the Dade-Broward area and is therefore more familiar with the community practice and standard on the adequacy of recordkeeping. In his opinion, Rizzo's records, although quite brief, were in conformity with the standard practiced by other South Florida physicians. /2 Therefore, it is found that such medical records were sufficient to justify the course of treatment of patients Conner, Bonnett and Westyn.

   
   

3. With one exception (Dr. Green), all experts agreed that amphetamines (dexadrine) were an acceptable course of treatment for narcoleptic patients. Indeed, this course of treatment is consistent with that prescribed by relevant excerpts of various authoritative medical treatises received in evidence. The sole dissenter (Dr. Green) preferred to use retalin rather than dexadrine since the latter drug can become addictive and has some side effects on the cardiovascular system. In all cases, the amounts and dosage of dexadrine given the patients by Rizzo were in conformity with the Physicians Desk Reference, and within acceptable limits for narcoleptic patients. Although DPR's witnesses criticized the large number of pills given the patients at one time, Dr. Vinger established that the practice of prescribing large numbers of tablets at one time was now encouraged so that patients would not have to see the physician each month merely to obtain a prescription refill. Rizzo confirmed that saving money for his patients was his motive, and that by purchasing large quantities of the drug at a time, he could do so. /3 Therefore, it is found that the amounts and dosage were not excessive or inappropriately prescribed, and were in the course of his professional practice.

   
   

4. It is charged that Rizzo dispensed a legend drug (dexadrine) to three patients who did not have narcolepsy. In this regard, no DPR expert could confirm or establish that the patients did not have narcolepsy. Indeed, only one DPR expert (Dr. Ehrlich) had actually treated one of the three patients (Westyn), and in that case, he was not looking for narcolepsy. Conversely, a board certified internist (Dr. Trezza) examined Bonnett in June, 1986 and made a similar diagnosis of narcolepsy. Like Rizzo, he did so without the benefit of an EEG, and relied solely on the patient's history, physical and lab work. Therefore, Rizzo's dispensement of dexadrine to the patients was for the treatment of narcolepsy, and was accordingly proper.

   
   

5. Through testimony of Rizzo's experts, as supplemented by the two physicians who submitted affidavits, it was established that Rizzo's treatment of the three patients was in conformity with prevailing standards of treatment in the Dade-Broward area. This being so, it is found Rizzo did not employ a scheme or trick that failed to conform with such standards.

   
   

6. No expert characterized Rizzo's conduct as equating to malpractice. However, there was sharply conflicting testimony on whether his conduct fell below the level of skill, care and treatment which is recognized by a reasonably prudent similar physician under similar circumstances. Through the more

   credible and persuasive testimony it was established that Rizzo's conduct met the minimum level of skill, care and treatment expected of a general practitioner in the Broward County area during the years in question.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

8. Petitioner's exhibits 4 and 5 are received in evidence. /4 Wright V. Schulte, 441 So.2d 660 (Fla. 2nd DCA 1983)(an expert need not possess the same specialty, or be in the same branch of medicine, to give testimony as to the standard of care if the witness is found to possess sufficient training, knowledge and experience to express the opinion).

   
   

9. In the amended complaint, respondent is charged with five violations of Subsection 458.331(1), Florida Statutes (1985), while treating patients Conner, Bonnett and Westyn. The pertinent statutory provisions are as follows:

   
   

   1. Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the prac- tice of medicine when such scheme or trick fails to conform to the generally prevailing

      standards of treatment in the medical community.

      (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 profes- sional 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, inappro- priately 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.

      (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recog- nized by a reasonably prudent similar physi- cian as being acceptable under similar condi- tions and circumstances. The board shall give great weight to the provisions of s.

      1. when enforcing this paragraph. As used in this paragraph, "repeated malprac- tice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in

         indemnities being paid in excess of $10,000 each to the claimant in a judgment or settle- ment and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpraotice" or "the fail- ure to practice medicine with that level of care, skill, and treatment which is recog- nized by a reasonably prudent similar physi- cian as being acceptable under similar condi- tions and circumstances," shall not be con- strued so as to require more than one in- stance, event, or act.

         (cc) Prescribing, ordering, dispensing, administering, supplying, selling, or giving any drug which is an amphetamine or sympatho- mimetic amine drug or a compound designated as a Schedule II controlled substance, pursu- ant to chapter 893, to or for any person except for:

         1. The treatment of narcolepsy; hyperkine- sis; behavioral syndrome in children charac- terized by the developmentally inappropriate symptoms of moderate to severe distractabil- ity, short attention span, hyperactivity, emotional liability, and impulsivity; or

      drug-induced brain dysfunction; or

      
      

10. The greater weight of evidence reveals that respondent (a) did not employ a trick or scheme in the practice of medicine which failed to conform to generally prevailing standards of treatment in the community, (b) kept adequate medical records justifying the course of treatment of the three patients, (c) prescribed dexadrine in the course of his professional practice, (d) practiced medicine with that level of skill, care and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances, and (e) prescribed dexadrine for the treatment of narcolepsy. Therefore, it is concluded the charges in Counts I-V must fail.

    
    

11. In view of the above conclusions, respondent's contention that the Board of Medical Examiners has failed to adopt by rule "guidelines for the disposition of disciplinary cases involving specific types of violations" as required by Subsection 458.331(4), becomes moot and need not be addressed./5

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended administrative complaint be DISMISSED, with

prejudice.

DONE and ORDERED this 29th day of August, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 Administrative Hearings this 29th day of August, 1986.

ENDNOTES

1/ The original administrative complaint was filed on February 10, 1986. After respondent's motion to dismiss the original complaint was partially granted by order dated April 14, 1986, the amended complaint was filed.

2/ Doctor Vinger stated that he sometimes sees records of other physicians with even less documentation than Rizzo. While he stated that the brevity of records was "unfortunate," it was nonetheless the norm for area physicians.

3/ For example, one bottle of 500 tablets of dexadrine purchased from a pharmaceutical house cost Rizzo (and ultimately his patient) around $23. If he gave his patients a prescription for only 100 tablets, their cost would be around $150.

4/ Most of respondent's objections go to the weight to be accorded the deposition testimony of DPR witnesses Green and Cohen. The undersigned has taken these objections into account in weighing their testimony.

5/ Although respondent's contention is rendered moot, the Board may wish to consider amending its Rule 21M-20.01 to avoid future similar arguments. This is because the rule refers to violations under Chapter 458, Florida Statutes (1979), and to citations in Chapter 458 that do not appear in the 1979 or later amended versions of that chapter. Moreover, reference is made to certain violations under Chapter 455 which presumably are typographical errors since they have no bearing upon medical doctors.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0836 PETITIONER:

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 2.

4. Covered in findings of fact 6-9.

5. Covered in finding of fact 7.

6. Covered in finding of fact 7.

7. Covered in finding of fact 9.

8. Covered in finding of fact 8.

9. Rejected as being contrary to the greater weight of evidence.

10. Rejected as being contrary to the greater weight of evidence.

11. Rejected as being contrary to the greater weight of evidence.

12. Rejected as being contrary to the greater weight of evidence.

13. Partially covered in finding of fact 9.

14. Covered in findings of fact 10-14.

15. Covered in finding of fact 10.

16. Covered in finding of fact 14.

17. Rejected as being contrary to the greater weight of evidence.

18. Rejected as being contrary to the greater weight of evidence.

19. Rejected as being contrary to the greater weight of evidence.

20. Rejected as being contrary to the greater weight of evidence.

21. Covered in finding of fact 4.

22. Covered in finding of fact 4.

23. Covered in finding of fact 14.

24. Partially covered in finding of fact 14.

25. Covered in findings of fact 15-17.

26. Covered in finding of fact 15.

27. Covered in finding of fact 15.

28. Covered in finding of fact 17.

29. Covered in finding of fact 16.

30. Covered in finding of fact 22.

31. Rejected as being contrary to the greater weight of evidence.

32. Rejected as being contrary to the greater weight of evidence.

33. Rejected as being contrary to the greater weight of evidence.

34. Rejected as being contrary to the greater weight of evidence.

35. Covered in finding of fact 17.

36. Covered in finding of fact 5.

37. Covered in finding of fact 5.

38. Rejected as being contrary to the greater weight of evidence.

39. Covered in finding of fact 5.

Respondent:

1. Covered in background except the last sentence which is a conclusion of

   law.

   
   

2. Covered in finding of fact 1.

3. Rejected as being unnecessary.

4. Covered in finding of fact 19 and conclusion of law 2.

5. Covered in finding of fact 19.

6. Covered in finding of fact 19.

7. Rejected for the reasons stated in conclusion of law 2.

8. Covered in findings of fact 7, 8, 10, 11, 15 and 16.

9. Covered in finding of fact 22.

10. Covered in finding of fact 24.

11. Covered in finding of fact 22.

12. Covered in findings of fact 21 and 22.

13. Covered in finding of fact 22.

14. Covered in findings of fact 20-24.

15. Covered in finding of fact 19.

16. Covered in finding of fact 5. Respondent's proposed findings are set

forth in unnumbered paragraphs. For ease of ruling, the undersigned has given numbers tothe sixteen unnumbered paragraphs.

COPIES FURNISHED:

Leslie Brookmeyer, Esquire

130 N. Monroe Street Tallahassee, Florida 32301

Walter G. Campbell, Jr., Esquire

700 Southeast Third Avenue, Suite 100 Fort Lauderdale, Florida 33316

Ms. Dorothy Faircloth, Executive Director Florida Board of Medical Examiners

130 North Monroe St. Tallahassee, Florida 32301

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AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DPR CASE NO. 0059884

vs. DOAH CASE NO. 86-0836

LICENSE NO. ME 0013066

VIRGIL R. RIZZO, M.D.,

Respondent.

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FINAL ORDER OF THE BOARD OF MEDICINE

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 Bruce D. Lamb, Esquire. Respondent was not present, but was represented by Walter G. Campbell, Jr., Esquire.

Upon review of the recommended order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein, with the exception of the conclusion set forth in paragraph 4 that Respondent kept adequate medical records justifying the course of treatment of the three patients. This conclusion of law is rejected for the reasons set forth in Exception 2 of Petitioner's Exceptions to Recommended Order.

   
   

3. There is competent substantial evidence to support the conclusions of law adopted by the Board.

RULINGS ON EXCEPTIONS

The following rulings are made on the Exceptions to Recommended Order:

1. The first sentence of the exception is granted. While the weight of the evidence might be that the patients did not have narcolepsy, the Hearing Officer erred in asserting that there was a total lack of evidence on that point, as shown at pages 98, 109 and 133 of the transcript.

   
   

2. Granted for the reasons set forth in the exception. The Board finds that the statute sets the standard for adequate medical records, not the standard of practice of other physicians.

   
   

3. Withdrawn at hearing.

   
   

4. At the hearing, Petitioner orally limited this exception to the issue of recordkeeping. Rejected; the Hearing Officer was authorized to believe the witnesses who testified contrary to Petitioner's witnesses.

   
   

5. Withdrawn at hearing.

   
   

6. Withdrawn at hearing.

   
   

7. At the hearing, Petitioner orally limited this exception to urging that a violation of Section 458.331(1)(n) Florida Statutes, be found and the penalty be assessed accordingly. Granted for the reasons set forth in Exception 2.

Upon a complete review of the record in this case, the Board determines that the recommendation of the Hearing Officer that the Administrative Complaint be dismissed with prejudice must be REJECTED in light of the Board's finding of a violation of Section 458.331(1)(n), Florida Statutes, and a penalty appropriate to that finding should be imposed.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED that:

1. Respondent shall be, and hereby is, given a written reprimand.

2. Respondent shall pay an administrative fine in the amount of $1,000 to the Executive Director within 30 days of the date this order is filed.

   
   

3. Prior to December 31, 1987, Respondent shall obtain 10 hours of Category I Continuing Medical Education in the subject area of recordkeeping. Such continuing education hours shall be in addition to any hours required for license renewal.

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 16th day of December, 1986.

BOARD OF MEDICINE

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 Virgil R. Rizzo, M.D., Post Office Box 14611, Ft. Lauderdale, Florida, 33302 and Walter G. Campbell, Jr., Esquire, 700 Southeast Third Avenue, Suite 100, Ft. Lauderdale, Florida, 33316; by U.S. Mail to Donald R. Alexander, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32302, and by hand delivery to Leslie Brookmeyer, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301 at or before 5:00 p.m. on this 16th day of December, 1986.

Docket for Case No: 86-000836

Orders for Case No: 86-000836