STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, ) CASE NO. 86-1490

)

vs. )

)

EDWARDO A. GARCIA, 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 October 27, 1986 in Vero Beach, Florida.

APPEARANCES

For Petitioner: E. Raymond Shope, Jr., Esquire

Stephanie A. Daniel, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Robert L. Pegg, Esquire

Post Office Box 1000

Vero Beach, Florida 32961 BACKGROUND

By administrative complaint filed on April 18, 1986, petitioner, Department of Professional Regulation, Board of Medical Examiners, has charged that respondent, Edwardo A. Garcia, a licensed physician, had violated various provisions within Chapter 458, Florida Statutes. The underlying allegations supporting the complaint are that while treating a patient from December, 1984 until April, 1986 respondent sold various prescriptions to the patient without medical justification, and by doing so (a) committed gross or repeated malpractice or failed to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician under similar conditions and circumstances in violation of Subsection 458.331(1)(t),

1. (1985)(Count I); (b) prescribed or dispensed a legend drug other than in the course of his professional practice as proscribed by subsection 458.331(1)(q), F.S. (1985)(Count II); (c) made deceptive, untrue or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine in violation of subsection 458.331(1)(r), F.S. (1985)(Count III); (d) failed to keep written medical records justifying a patient's course of treatment as required by subsection 458.331(1)(n), F.S. (1985)(Count IV); (e) exercised influence on a patient in such a manner as to exploit the patient for financial gain of the licensee in violation of subsection 458.331(1)(o), F.S. (1985)(Count V); (f) violated subsection 458.331(1)(h), F.S. (1985) by failing

   to perform a statutory (21 CFR 1306.03) obligation imposed upon a licensee (Count VI); and (g) violated a statutory [s.893.02(17)] obligation imposed upon a licensee in contravention of subsection 458.331(1)(h), F.S. (1985)(Count VII).

   
   

   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 May 1, 1986, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated June 3, 1986, the final hearing was scheduled on September 10 and 11, 1986, in Vero Beach, Florida. At the request of the parties, the matter was rescheduled to October 27, 1986, at the same location.

   
   

   At final hearing petitioner presented the testimony of Christie Dietert, Earl Donald Tovatt and Sonia McKee. It also offered petitioner's exhibits 1-23. All were received in evidence. Petitioner was given leave to late-file the depositions of Dr. James Johnson, Kevin Martin and Vincent Laconia. Respondent testified on his own behalf and offered respondent's exhibit 1 which was received in evidence.

   
   

   The transcript of hearing was filed on November 20, 1986. The late-filed depositions were filed on November 26, 1986. Proposed findings of fact and conclusions of law were filed by petitioner on December 10, 1986. 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 administrative complaint.

   
   

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

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant hereto, respondent, Edwardo A. Garcia, held physician license number ME 0021719 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners (DPR). Garcia is a 1936 graduate of the medical school at the University of Colombia in Bogota, Colombia. He moved to New York City in 1959 where he completed a residency in neurology and psychiatry. He was then issued a temporary license to practice medicine in the State of New York. In 1973, Garcia relocated to Vero Beach. He received his Florida license the following year and practiced in the field of family medicine until May, 1986 when he sold his practice. He is now retired.

      
      

   2. Earl D. Tovatt, a sixty-two year male whose complaint against respondent precipitated this proceeding, has a long history of back ailments.

      He fell off of a bunk bed in 1943, was a passenger in an Army jeep that struck a land mine in 1944, and unsuccessfully attempted to lift a 350 pound woman in 1950. As a result of these unfortunate incidents, Tovatt has used various back braces and orthopedic shoes, and has had at least five myelograms since 1951.

      He has also been treated by a shopping list of physicians over the years, most of whom were in the Detroit area where he once lived.

      
      

   3. For back pain, Tovatt began using prescription drugs many years ago. By his own admission he became addicted to painkillers as early as 1979. He began with codeine and empirim, but later switched to pure codeine. He then

      used percodan, and finally began using demerol in 1977. Demerol is a Schedule II controlled substance and has a high potential for abuse. It can also cause addiction after a short period of use. Access to quantities of demerol was made easier by the fact that Tovatt's wife was a medical doctor at the Doctor's Clinic in Vero Beach. Tovatt received demerol injections from his wife until 1981 when they divorced. Thereafter, Dr. Tovatt continued to give her former husband prescriptions of demerol (one per month) for another year.

      
      

   4. Beginning in 1982, and continuing until at least December, 1984, Tovatt was treated without charge by Dr. Gold, one of his ex-wife's partners at the clinic. Initially Dr. Gold gave Tovatt one or two injections of demerol per day for pain. By December, 1984, however, Dr. Gold had reduced the injection to

      one-half of an ampule per day. Because he was still experiencing pain, Tovatt was advised by an unnamed clinic employee in December, 1984 to contact respondent to obtain more demerol.

      
      

   5. Just prior to Christmas, 1984 Tovatt telephoned Dr. Garcia's office and attempted to make an appointment. After learning that Garcia's office hours were filled, Tovatt requested that Dr. Garcia make a house call to his apartment after 5:00 p.m. That same day, Dr. Garcia visited Tovatt's apartment and was told by Tovatt that he had a lot of pain in his lumbar spine and down his right leg. Without making any tests, obtaining a history, or inquiring about prior medical treatment, Dr. Garcia gave Tovatt an injection of demerol and a shot of valium. For this he charged Tovatt $600, or $300 per shot. Tovatt paid Dr. Garcia in cash. Garcia acknowledged that he knew Tovatt was addicted to demerol at that time.

      
      

   6. After the first house visit, Tovatt went to respondent's office the next day, and received two more shots for $150 each. When Tovatt complained that the visits were expensive, Dr. Garcia agreed to write Tovatt demerol prescriptions for $1,000 each. Dr. Garcia also insisted that only cash be used, and accordingly no checks were ever given to respondent. In addition, Dr. Garcia asked for and was given $25,000 cash for "one year's privilege of having him write a prescription."

      
      

   7. Approximately six weeks after the first office visit, Dr. Garcia conducted his first complete physical examination of Tovatt. However, he obtained a patient history from Tovatt during the first office visit on December 19, 1984. Even so, it was inadequate since it failed to contain any interpretations of the patient's history. On each visit he took Tovatt's blood pressure and checked his heart. Also, he noted in his patient records that the patient had "severe back pain, history of slipped disc of 30 years duration with arthritis following a fall. Had been using demerol for long periods of time for the above. He takes biroca, which is vitamin B, for the heart condition. He has had two heart attacks."

      
      

   8. For the next fourteen months or so, Tovatt continued to obtain one or two prescriptions per week from Dr. Garcia at a cost of $1,000 per prescription. The prescriptions generally contained 25 ampules of demerol per box. They were filled at various pharmacies in the Vero Beach and Melbourne areas. Copies of the prescription have been received in evidence as petitioner's exhibits 3-17 and a compilation is set forth in petitioner's exhibit 18. In all, there were

      137 prescriptions for demerol, 15 for valium and 9 for percodan. Valium is a Schedule IV controlled substance while percodan is a Schedule II controlled substance. Finally, ten of those prescriptions had orders for demerol and valium on the same prescription while one had an order for demerol, percodan and valium. This was inappropriate.

   9. In addition to the above prescriptions, several times Tovatt purchased bottles or boxes of demerol directly from Dr. Garcia. Each bottle was the equivalent of twenty shots while a box had twenty-five ampules, or the equivalent of twenty-five shots. On one occasion he was charged $7,000 for one or two bottles, on another $9,000 for one box of 25 ampules, and $8,000 on another occasion for four boxes.

      
      

   10. Becoming concerned that Dr. Garcia would stop writing prescriptions, Tovatt purchased an air dehumidifier at a cost of $312.70 for Garcia's birthday. On several occasions Garcia suggested to Tovatt that he include Garcia as a beneficiary in his will. In Garcia's presence, Tovatt directed his attorney to prepare a codicil to his will and bequeath $75,000 to Dr. Garcia. This was executed on November 20, 1985. The codicil is still in effect. At Dr. Garcia's request, Tovatt gave respondent a copy of the codicil.

       
       

   11. Each time that Tovatt requested a prescription, Garcia provided him with one. Tovatt's injections numbered from five to six a day when he first began seeing Dr. Garcia, and numbered around fifty per week towards the end. Tovatt suffered side effects from the massive amounts of painkillers, including passing out on one occasion and being unable to move on another. He also lost an undisclosed amount of weight. In all, Tovatt paid Dr. Garcia approximately

       $200,000 in cash over a fourteen month period, which represented his entire life savings. He is now in the process of filing a malpractice suit against respondent.

       
       

   12. In early 1986 Tovatt obtained four final prescriptions for demerol from Dr. Garcia. When he found no drug store would honor them, he refused to pay Dr. Garcia. Dr. Garcia came to his apartment at least six times demanding payment for the same. Tovatt then mailed the unfilled prescriptions to a DPR investigator.

       
       

   13. In February, 1986 a DPR investigator interviewed Dr. Garcia concerning the Tovatt prescriptions. At that time Dr. Garcia acknowledged he had treated Tovatt and had charged him $1,000 per prescription for demerol. He also admitted this to his office receptionist. During the same interview, the investigator observed that Dr. Garcia's Drug Enforcement Agency (DEA) registration had expired on September 30, 1985. This was necessary in order to write certain prescriptions. Finally, when the administrative complaint in this case was issued in April, 1986 respondent told Tovatt "we're in trouble" and that Tovatt was "going to pay for my lawyer."

       
       

   14. Tovatt also filed a complaint with the City of Vero Beach Police Department in April, 1986. While a police officer tape recorded the call, Tovatt telephoned respondent on April 29 and requested a prescription of demerol. Since Tovatt still owed Garcia $4,000 for the four unfilled prescriptions, Dr. Garcia demanded payment of that sum. Tovatt said it would take time to raise the money. Tovatt then told Garcia he knew of a pharmacy in Cocoa Beach that would fill a prescription. Garcia said he didn't want to use Tovatt's name on the prescription, but agreed to use a fictitious name. Garcia also said he would require the usual amount, or $1,000, up front before he would give Tovatt the prescription.

       
       

   15. According to the uncontradicted testimony of a board certified family practitioner, Dr. Garcia should have taken a complete patient history on the first visit to Tovatt's apartment and at least "a cursory examination" of the patient. Because the patient complained of persistent pain, it would have been

       prudent to take additional tests and refer Tovatt to a neurologist or orthopedist after several visits. Garcia also had insufficient records to justify the course of treatment rendered, that is, the dispensing of various pain killers and sedatives. It was further inappropriate to prescribe addictive drugs to a patient in that quantity, combination and duration of time "for anything except a terminal illness." In this case, Tovatt did not have a terminal illness. In short, Dr. Garcia did not practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician would recognize as acceptable under similar conditions and circumstances.

       Finally, the fees charged by Dr. Garcia were clearly excessive and represented an exploitation of the patient for financial gain. Moreover, it is not customary in the medical community to charge a patient for writing a prescription.

       
       

   16. In December, 1985 a pharmacist in Vero Beach became concerned that Tovatt was filling an excessive number of prescriptions for demerol and percodan. He called Dr. Garcia who explained Tovatt had a back condition caused by a brain tumor and that Tovatt needed large amounts of painkillers until he received an operation in San Francisco. However, Tovatt's medical records contained no reference to a brain tumor or an operation/consultation in San Francisco.

       
       

   17. Until 1985 Dr. Garcia had no prior complaints filed against him by any person. Dr. Garcia portrayed Tovatt as a desperate man who he knew to be a drug addict. Although he contended he did not wish to treat Tovatt, he stated he did so only because Tovatt constantly approached him for drugs, and because he feared Tovatt might harm him. Dr. Garcia denied receiving excessive fees from Tovatt, and estimated he charged Tovatt only $20,000 while he was a patient. However, this version of events is not deemed to be credible and is accordingly discredited.

       
       

       CONCLUSIONS OF LAW

       
       

   18. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), F.S. (1985).

       
       

   19. Respondent is charged with a multitude of violations in conjunction with his dealings with Tovatt. These include seven violations within Subsection 458.331(1), F.S. (1985). By clear and convincing evidence, petitioner has established that Dr. Garcia: failed to practice medicine with the level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (s. 458.331(1)(t), F.S.); prescribed a drug other than in the course of the physician's professional practice (s. 458.331(1)(q), F.S.); employed a trick or scheme in the practice of medicine (s. 458.331(1)(1), F.S.); failed to keep written medical records which justified the treatment (s. 458.331(1)(n), F.S.); exploited a patient for financial gain (s. 458.331(1)(o), F.S.); violated a statutory legal obligation in Subsection 893.02(17) by filling a prescription for a controlled substance not in good faith (s. 458.331(1)(h), F.S.); and violated the statutory obligation in 21 CFR 1306.03 by writing a prescription without a valid DEA registration (s. 458.331(1)(h), F.S.).

       
       

   20. Given the nature of the violations, revocation of respondent's medical license is appropriate.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all violations charged in

Counts I-VII of the administrative complaint and that his medical license be REVOKED.

DONE and ORDERED this 17th day of December, 1986 in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 17th day of December, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1490

Petitioner:

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 3.

4. Covered in finding of fact 4.

5. Covered in findings of fact 3 and 4.

6. Covered in finding of fact 5.

7. Covered in finding of fact 3.

8. Covered in finding of fact 5.

9. Covered in finding of fact 5.

10. Covered in finding of fact 15.

11. Covered in finding of fact 7.

12. Covered in finding of fact 15.

13. Covered in finding of fact 15.

14. Covered in finding of fact 15.

15. Covered in finding of fact 6.

16. Covered in finding of fact 6.

17. Covered in finding of fact 8.

18. Covered in finding of fact 8.

19. Covered in finding of fact 8.

20. Covered in finding of fact 9.

21. Covered in finding of fact 11.

22. Covered in finding of fact 13.

23. Covered in finding of fact 16.

24. Covered in finding of fact 16.

25. Covered in finding of fact 15.

26. Covered in finding of fact 15.

27. Covered in finding of fact 8.

28. Covered in finding of fact 8.

29. Covered in finding of fact 13.

30. Covered in findings of fact 8 and 15.

31. Covered in finding of fact 15.

COPIES FURNISHED:

E. Raymond Shope, Jr., Esquire Stephanie A. Daniel, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

Robert L. Pegg, Esquire

P. O. Box 1000

Vero Beach, Florida 32961

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Wings S. Benton, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Dorothy J. Faircloth Executive Director

Board of Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001490

Orders for Case No: 86-001490