STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-2590

) JERRY MASON ROBINSON, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on June 23, 1987, in Sanford, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Stephanie A. Daniels, Esquire

Julie Gallagher, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

For Respondent: Mack N. Cleveland, Jr., Esquire

CLEVELAND & BRIDGES

Post Office Drawer Z Sanford, Florida 32772-0778

BACKGROUND AND PROCEDURAL MATTERS

This proceeding commenced with Respondent's timely request for a formal hearing after the Department of Professional Regulation (DPR) filed its Five- Count Administrative Complaint on June 20, 1986.

At the hearing DPR presented the testimony of five witnesses and submitted sixteen exhibits, including (without objection) the depositions of three experts. Dr. Robinson testified in his own behalf and presented the testimony of three additional expert witnesses. He submitted one exhibit: an additional deposition of one of the DPR experts, Stephen J. Clark, M.D.

Both parties submitted Proposed Recommended Orders which have been carefully considered in my preparation of this Order. Specific rulings on the proposed findings of fact are found in the attached Appendix.

ISSUES

At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes.

The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.

FINDINGS OF FACT

1. Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice.

   
   

   Patient Fleming

   
   

2. Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital.

   
   

3. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient.

   
   

4. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times.

   
   

5. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness.

   
   

6. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched.

   
   

7. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important

   to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia.

   
   

8. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy.

   
   

9. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms.

   
   

10. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin.

    
    

11. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine.

    
    

12. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy.

    
    

13. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing.

    
    

14. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed.

    
    

15. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate.

    
    

16. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition.

17. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate.

    
    

18. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones.

    
    

19. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits.

    
    

20. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records.

    
    

21. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed.

    
    

22. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions.

    
    

    Patient Kipp

    
    

23. Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina.

    
    

24. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida.

    
    

25. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for

    pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease.

    
    

26. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions.

    
    

27. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene.

    
    

28. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful.

    
    

29. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice.

    
    

30. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates.

    
    

31. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs.

    
    

32. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life.

    
    

33. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities.

34. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.

    
    

    CONCLUSIONS OF LAW

    
    

35. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to section 120.57(1) F.S. and section 455.225(4) F.S.

    
    

36. Dr. Robinson is charged with the following violations of section 458.331(1) F.S.:

    
    

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

    (emphasis added)

    * * *

    (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. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" 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 settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross 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, "shall not be construed so as to require more than one instance, event, or act.

    * * *

    
    

37. The Petitioner has the burden of proving the allegations of its Complaint by clear and convincing evidence. Ferris v. Turlington, 12 FLW 393 (Fla. Supreme Ct. opinion dated July, 1987.)

    
    

38. Petitioner proved by clear and convincing evidence that Dr. Robinson violated section 458.331(1)(n) F.S. in failing to keep adequate written medical records justifying the continued administration of Dexedrine to Jesse Fleming and Percodan to Fred Kipp, as alleged in Counts III and IV of the Administrative Complaint.

    
    

39. Petitioner presented clear and convincing evidence that Dr. Robinson excessively and inappropriately prescribed Dexedrine spansules to Jesse Fleming in violation of section 458.331(i)(q) F.S., as alleged in Count I of the Administrative Complaint. Contrary to Respondent's contention, disciplinary action pursuant to Chapter 458 does not require a showing of actual injury. Britt v. Department of Professional Regulation 492 So.2nd 697 (Fla. 1st DCA 1986). The overwhelming weight of expert testimony established that, given the other physical problems of this patient and the other types of medication prescribed for him, the continued use of an amphetamine was highly dangerous and inappropriate.

    
    

40. Petitioner failed to prove that Dr. Robinson violated section 458.331(1)(t) F.S. as to Fred Kipp, but did prove that violation, failure to practice medicine within accepted levels of care, skill and treatment, as to Jesse Fleming. Count V of the Administrative Complaint was therefore, partially proven. The substantial weight of expert testimony established that, rather than enhance the quality of life for Jesse Fleming, the prescription of Dexedrine under the circumstances that existed, threatened his quality of life and represented a departure from any reasonable standard of care.

    
    

41. In considering the appropriate discipline in this case, reference has been made to the Disciplinary Guidelines found in Rule 21M-20.001 F.A.C. While the substantial potential injury to Jesse Fleming is considered an aggravating circumstance, no actual injury to either patient was found. Nor was there evidence of prior disciplinary actions against Dr. Robinson in a 20-year active family practice. The violations committed were the result of haste and misjudgment rather than any more malicious or self-serving motives.

Based on the foregoing, it is hereby, RECOMMENDED:

That a Final Order be entered finding Jerry Mason Robinson, M. D., guilty of violations subsections 458.331(1), (n), (q), and (t) F.S. and imposing the following discipline:

(a) Reprimand

(b) $750.00 fine

(c) 3 years probation under conditions to be determined by

the Board, relating to improved record-keeping and continued education in pharmacology.

DONE and RECOMMENDED this 24th day of September, 1987 in Tallahassee, Florida.

MARY CLARK

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 24th day of September, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2590

The following constitute my specific rulings on the parties' proposed findings of fact.

Petitioner's Proposed Findings of Fact 1-2. Adopted in Paragraph 1.

3-4. Adopted in substance in Paragraphs 2 and 3.

1. Adopted in substance in Paragraphs 4, 7, and 11.

2. Adopted in Paragraph 3.

3. Adopted in Paragraph 4.

4. Rejected as cumulative and unnecessary. 9-10. Adopted in substance in Paragraph 9.

1. Adopted in Paragraph 7.

2. Rejected as unnecessary.

3. Adopted in Paragraphs 7 and 8.

4. Adopted in Paragraph 5.

5. Adopted in Paragraph 6. 16-17. Adopted in Paragraph 11.

1. Rejected as cumulative.

2. Adopted in Paragraph 12.

3. Adopted in Paragraph 11.

4. Adopted in substance in Paragraph 8.

5. Adopted in Paragraph 7.

6. Rejected as unnecessary.

7. Adopted in Paragraph 10.

8. Adopted in substance in Paragraph 10.

9. (No finding - the number was skipped.)

10. Rejected as unnecessary.

11. Rejected as cumulative and unnecessary.

12. Adopted in substance in Paragraph 14.

13. Rejected as cumulative.

14. Adopted in substance in Paragraph 14. 32-34. Rejected as cumulative.

35. Adopted in Paragraph 15, however the patient is

Fred, not Lois.

36-39. Adopted in substance in Paragraph 19.

1. Adopted in substance in Paragraph 17.

2. Rejected as unnecessary.

42-43. Adopted in Paragraph 18; however the diagnosis was also confirmed by testimony.

1. Rejected as contrary to the weight of evidence.

2. Adopted in part in Paragraph 22. The inadequacies of the treatment, as opposed to the record-keeping are not supported by the weight of evidence.

3. Adopted in summary in Paragraph 21.

4. Adopted in summary in Paragraph 22.

5. Rejected as repetitive.

6. Rejected as contrary to the weight of evidence.

Respondent's Proposed Findings of Fact

Because of the narrative form of Respondent's proposed findings it is not possible to address each paragraph. Instead, the separate headings are addressed generally as follows:

"Preliminary Findings of Fact": Adopted in the statement of Background, Issues and Findings of Fact, Paragraph 1. The lack of injury is irrelevant, except as to mitigating circumstances in assessing a penalty. See Conclusions of Law, Paragraphs 5 and 7.

"Count I, Findings of Fact": The history of treatment of Patient Fleming has been adopted generally. The testimony of Dr. Robinson's experts regarding the diagnosis of narcolepsy has been generally rejected, as their examinations were cursory and in no way in conformity with the more competent testimony as to how such a diagnosis might appropriately be obtained. The proposed findings do not address the fact that Dexedrine was prescribed along with other medications which either negated or exacerbated the effects of the amphetamine, in a dangerous manner.

"Count III Findings of Fact": Even Dr. Robinson's experts confirmed the need for adequate medical records and none testified convincingly that Dr.

Robinson's records were adequate.

"Count IV Findings of Fact": The history of treatment of Patient Kipp has been adopted in less detail in Paragraphs 15- 22. The findings with regard to the use of Percodan have been adopted generally in Paragraph 21.

"Count V Findings of Fact": The findings with regard to adequacy of medical records are rejected as contrary to the weight of evidence. The findings with regard to adequacy of treatment as to Patient Kipp have been adopted, but are rejected as to Patient Fleming, as unsupported by competent substantial evidence.

COPIES FURNISHED:

Stephanie A. Daniels, Esquire Julie Gallagher, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Mack N. Cleveland, Jr., Esquire CLEVELAND & BRIDGES

Post Office Drawer Z Sanford, Florida 32772-0778

Dorothy Faircloth, Executive Director Board of Medical Examiners

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Tom Gallagher, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-002590

Orders for Case No: 86-002590