STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-1731

)

DONALD J. WEISS, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 14, 1986, in Fort Lauderdale, Florida. The parties were afforded leave through November 17, 1986, to submit memoranda supportive of their respective positions. Petitioner has submitted a Proposed Recommended Order which was considered by me in preparation of this Recommended Order.

Proposed findings which are not incorporated are the subject of specific rulings in an Appendix to this Recommended Order.

APPEARANCES

For Petitioner: Preston T. Everett, Jr., Esquire

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Donald J. Weiss, D.O., pro se

145 River North Circle Atlanta, Georgia 30328

ISSUES PRESENTED

The issue presented for decision herein is whether or not Respondent has engaged in conduct, more particularly set forth in the Administrative Complaint filed herein, signed April 10, 1986, violative of Chapter 459, Florida Statutes.

INTRODUCTION AND BACKGROUND

In an Administrative Complaint filed April 15, 1986, Petitioner, Department of Professional Regulation, Board of Osteopathic Medical Examiners, charged that the Respondent, Dr. Donald J. Weiss, D.O., violated Section 459.015(1)(t), Florida Statutes, by committing gross or repeated malpractice or failing to practice osteopathic medicine with the level of skill, care and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar circumstances and conditions.

Further, the Administrative Complaint alleged violations of Section 459.015(1)(q) and (n), Florida Statutes, based upon prescribing, dispensing, administering, mixing or otherwise preparing a legend drug, including all controlled substances, other than in the course of the osteopathic physician's practice, and failure to keep written medical records justifying the course of treatment for his patients.

In response to the Administrative Complaint, Respondent disputed the allegations therein and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, to contest the charges. The matter was referred to the Division of Administrative Hearings on May 9, 1986.

At the hearing, the deposition testimony of Matthew Cohen, M.D., was offered in lieu of live testimony. Respondent objected to the introduction of Dr. Cohen's deposition on the grounds that he did not receive adequate notice of the taking of Dr. Cohen's deposition. After due consideration of the position of the parties, respecting Dr. Cohen's deposition, it having been shown that Respondent was only provided 48 hours notice of the taking of Dr. Cohen's deposition, it is herein concluded that the notice provided Respondent was not "reasonable notice in writing" as provided pursuant to Rule 1.310(b)(1), Florida Rules of Civil Procedure. For that reason, the deposition of Dr. Matthew Cohen is rejected and will not be considered by the under signed in the rendition of this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings.

1. Respondent, Donald J. Weiss, D.O., during times material herein, was licensed as an osteopathic physician in Florida and has been issued license number OS 0003459.

   
   

2. The investigative report of Petitioner's investigator Mel Waxman, medical records and a consultant's report of Dr. Ralph Birzon, D.O., were received into evidence without objection except for certain unspecified prescriptions (by Respondent).

   
   

3. During the time period 1980 through 1985, Respondent admitted to having treated patients R.N., H.M. and C.B. or C.P.

   
   

4. Respondent admitted to the treatment of the above- referred patients with specific dates relating to prescriptions of Schedule II drugs for patients

   R.N. and H.M. (Request for Admissions dated June 2, 1986).

   
   

5. A review of the medical records for patients R.N., H.M. and C.B. or

   C.P. reveals that Respondent failed to maintain appropriate medical records justifying his course of medical treatment for such patients.

   
   

6. As example, during the period January 1984 and June 19, 1985, Respondent prescribed 1,970 4 mg. Dilaudid and 380 Seconal 100 mg. capsules for patient R.N. Also, during the same time period, Respondent prescribed 2,665 4 mg. tablets of Dilaudid for patient H.M. (Responses to Request for Admissions dated June 2, 1986).

7. Respondent failed to take adequate physical exams, laboratory reports or other medical histories to justify the quantity of controlled substances prescribed for patients R.N and H.M.

   
   

8. In his treatment of patient R.N., H.M. and C.B., each patient was addicted to the medication Dilaudid and Seconal, both Schedule II controlled substances as defined in Sections 893.03(2)(a) and (c), Florida Statutes. Respondent's treatment of patients R.N., H.M. and C.B. by prescribing Dilaudid, Seconal and Valium (also a Schedule II controlled substance) was not in their best interest as addicts.

   
   

9. Based upon a review of the medical records for patients R.N., H.M. and

   C.B. or C.P., Respondent's prescriptions for Dilaudid, Seconal and Valium were excessive, inappropriate and unacceptable for an osteopathic physician.

   
   

10. Respondent's treatment for patients R.N., H.M and C.B. or C.P. fell below the level of care, skill and treatment as recognized by a reasonable prudent similar osteopathic physician as being acceptable under similar conditions and circumstances. (Testimony of Ralph Birzon, D.O., TR 41-46).

    
    

11. An examination of the Physician's Desk Reference (PDR) reveals that Respondent, by prescribing Dilaudid and Seconal to patients R.N. and H.M. was inappropriate, and when taken together, exacerbated those patient's medical problems. Additionally, a review of the PDR indicates that Dilaudid cannot be safely prescribed for long periods of time. A long period of time is, based on the reference, a period in excess of three months.

    
    

12. Respondent admits that he made a mistake in his treatment of the above-referred patients by prescribing Schedule II controlled substances. Respondent considered that he was "duped" and offered that this was his first contact with drug addicts. Respondent prays that his license not be revoked or suspended and offered to accept any lesser ordered penalty.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this action. Section 120.57(1), Florida Statutes.

    
    

14. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

15. Authority of the Petitioner is derived from Chapter 459, Florida Statutes.

    
    

16. Competent and substantial evidence was offered herein to establish that Respondent failed to practice osteopathic medicine, relative to his treatment of patients R.N., H.M. and C.B. or C.P., with the level of skill, care and treatment recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar circumstances and conditions.

    
    

17. Competent and substantial evidence was offered herein to establish that Respondent prescribed controlled substances other than in the course of the osteopathic physician's professional practice relative to his treatment for patients R.N., H.M. and C.B. or C.P.

18. Competent and substantial evidence was offered herein to establish that Respondent failed to keep written medical records justifying the course of his treatment for patients R.N., H.M. and C.B. or C.P.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED THAT:

1. Respondent's license be suspended for a period of six (6) months;

   
   

2. Following the period of suspension, Respondent be placed on probation for a similar period of six (6) months;

   
   

3. During the probationary period, Respondent be required to successfully complete eighty (80) hours of continuing education related to the physician and proper substance abuse prescribing procedures.

RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida.

JAMES E. BRADWELL

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 18th day of December, 1986.

COPIES FURNISHED:

Preston T. Everett, Jr., Esquire Fred Roche, Secretary Department of Professional Department of Professional

Regulation Regulation

130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301

Donald J. Weiss, D.O. Wings Benton, Esquire

145 River North Circle General Counsel

Atlanta, Georgia 30328 Department of Professional Regulation

Rod Presnell, Executive Director Board of Osteopathic

Medical Examiners

130 North Monroe Street Tallahassee, Florida 32301

130 North Monroe Street Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

================================================================= BEFORE THE BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. DPR CASE NO.: 0057317

DOAH CASE NO.: 86-1731

DONALD J. WEISS, D.O.,

Respondent.

/

FINAL ORDER

Respondent, Donald J. Weiss, D.O., is a licensed osteopathic physician in the State of Florida, having been issued license No. OS 0003459. Petitioner filed an Administrative Complaint seeking suspension, revocation, or disciplinary action against the licensee.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. The Recommended Order has been forwarded to the Board pursuant to Section 120.571, F.S.; it is attached to and made a part of this Order.

The Board of Osteopathic Medical Examiners met on September 19, 1987, in Tampa, Florida to take final agency action. The Petitioner was represented by Leslie Brookmeyer; the Respondent was present but not represented. The Board has reviewed the entire record in the case.

The Board adopts the findings of fact, conclusions of law, and of the recommended order. With regard to the recommended penalty, the Board specifically adopts the six (6) months suspension, but increases the probation from six (6) months to two (2 years), the conditions of which shall be as follows:

Respondent shall comply with all state and federal statutes, rules and regulations pertaining to the practice of medicine, including Chapters 455, 458 and 893, Florida Statutes, and Rules 21M, Florida Administrative Code.

Respondent shall appear before the Board at the first meeting after said probation commences, semi-annually and at the last meeting of the Board preceding termination of probation.

Respondent shall work under the indirect suspervision of a physician to be approved by the Board. Respondent shall have the monitoring physician with him at his first probation appearance before the Board. Prior to approval of the monitoring physician by the Board, the Respondent shall provide to the monitoring physician a copy of the administrative complaint filed in this case. The responsibilities of the monitoring physician shall include:

1. Submit semi-annual reports, in affidavit form, which shall include:

1. Brief statement of which physician is on probation.

   
   

2. Description of probationer's practice.

   
   

3. Brief statement of probationer's comp- liance with terms of probation.

   
   

4. Brief description of probationer's relationship with monitoring physician.

   
   

5. Detail any problems which may have arisen with probationer.

Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.

Review Respondent's patient records on a random basis at least once every two weeks.

Review Respondent's prescribing of controlled substances.

Report to the Board any violations by the probationer of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.

Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:

1. Brief statement of why physician is on probation.

   
   

2. Practice location.

   
   

3. Describe current practice (type and composition).

   
   

4. Brief statement of compliance with pro- bationary terms.

   
   

5. Describe relationship with monitoring/ supervising physician.

   
   

6. Advise Board of any problems.

The Board's stated reasons for increases of the probation period are: the inappropriate and excessive prescriptions of scheduled drugs as evidenced in the record and the nature of the violations.

With regard to the continuing education recommended by the hearing officer, the Board concurs that 80 hours is appropriate, but requires an emphasis in substance abuse prescribing procedures.

Wherefore it is hereby ORDERED that Respondent's license be suspended for six (6) months; thereafter, that he be placed on probation for a period of two

(2) years during which he shall meet all conditions listed above; that he complete 80 hours of continuing education; and that he pay an administrative fine of $1,000.00 to the Board within 30 days of the filing of this order. This order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S. and Florida Rule of Appellate Procedure 9.110(b)(c) within 30 days of the date of filing.

DONE AND ORDERED this 22nd day of October, 1987.

BOARD OF OSTEOPATHIC MEDICAL EXAMINERS

LUIS F. BARROSO, D.O., CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was furnished by hand to Leslie Brookmeyer, Esquire, Department of Professional Regulation, 130 North Monroe Street, Tallahassee, Florida 32301, by Certified Mail to Donald J. Weiss, by U.S. Mail to James Bradwell, Hearing Officer, Division Of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301 this 22nd day of October, 1987.

Docket for Case No: 86-001731

Orders for Case No: 86-001731