STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 86-2771
) MANUEL P. VILLAFLOR, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Deland, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on April 23, 1987, and finished the following day in Daytona Beach. The Division of Administrative Hearings received the transcript of proceedings on May 29, 1987. The exhibits followed on June 10, 1987. On petitioner's motions, time for filing proposed recommended orders was extended until July 24, 1987. The attached appendix addresses proposed findings of fact.
The parties are represented by counsel:
For Petitioner: Julie Gallagher
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For respondent: James W. Smith
Smith, Schoder & Rouse, P.A. 605 South Ridgewood Avenue Daytona Beach, Florida 32014
By administrative complaint dated June 18, 1986, petitioner Department of Professional Regulation (DPR) alleged that respondent Manuel P. Villaflor "at all times material ... a licensed physician in the State of Florida ... [o]n December 19, 1984, ... experienced a massive cerebrovascular accident" and "[a]s a result ... suffers mental and physical impairment and is unable to practice medicine with reasonable skill and safety ... in violation of Section 458.331(1)(s), Florida Statutes." Respondent conceded the fact of the cerebrovascular accident, but denied the other allegations.
With the agreement of the parties, the present case was scheduled concurrently with the final hearing in Department of Professional Regulation vs. Villaflor, No. 86-3256. Because of this consolidation for hearing, evidence offered in support of the allegations in Case No. 86-3256 has also been taken into consideration insofar as relevant to the matters at issue here.
FINDINGS OF FACT
At all pertinent times, respondent Manuel P. Villaflor, M.D., held a Florida license as a physician, No. ME 0020072. Since the 1970's, he has engaged in the general practice of medicine in Daytona Beach. A former president of the Volusia County Medical Society testified that Dr. Villaflor was "a very capable general practitioner" (T. 465) and that he at one time had charge of the special clinics for indigent patients at Halifax Hospital.
UNTIMELY DEATH
K. D., a white male, was pronounced dead at 3:59 P.M. on October 19, 1985, a few days shy of his 34th birthday. The autopsy disclosed superficial abrasions, acute blunt trauma to K. D.'s face, scalp and right hand, and acute, diffuse subdural hemorrhage. A paper bag full of prescription medicine containers accompanied the body to the autopsy. Apparently because the labels indicated that Dr. Villaflor had written pain killing prescriptions for K. D., the medical examiner's office notified DPR.
Some four months later, analysis of samples of K. D.'s blood and urine revealed that codeine, oxycodone, amitriptyline, also known as Elavil, nortriptyline, also known as Pamelor, and chlordiazepoxide, also known as Librium, had been present in the corpse in quantities "beyond the reference range for therapeutic use." Botting deposition, p. 6. The pathologist amended his initial conclusion that head injuries resulting from "multi-focal blunt trauma," id., p. 7, had caused K. D.'s death, by adding "multiple drug intoxication," id., as another cause of death.
As far as the record shows, Dr. Villaflor never prescribed Elavil, Pamelor, Librium or their chemical equivalents for K. D. An osteopath whom K.
D. saw toward the end of his life prescribed at least two of these medications, as well as medicine containing oxycodone.
CONTROLLED SUBSTANCES UNCONTROLLED
On November 15, 1985, Diane Rabideau, an investigator for DPR, called on Dr. Villaflor at his office. He was polite and cooperative. Ms. Rabideau had some difficulty understanding him; he is not a native English speaker, and he had recently suffered a stroke. But she understood well enough Dr. Villaflor's assertions that he did not believe K. D. to have been addicted to any drugs, and that he had not over-prescribed any medicine.
Ms. Rabideau inspected the controlled substances kept in Dr. Villaflor's office. She found Tenuate Dospan, Restoril, Darvocet, Valium, Tylenol No. 4, Fiorinal No. 3, Xanax, Vicodin, Tylenol with codeine elixir, Dalmane, Anexsia, Centrax, "Tussend Ex. 1/2 oz.," Limbitrol, Equagesic, Phrenilin with codeine, Novahistine, Naldecon, Ativan, Nucofed, and "P.V. Tussin." When she saw them, they were not under lock and key. No inventory records reflected what was on hand and what had been dispensed. The parties stipulated that Dr. Villaflor "failed to maintain records of the[se] schedule controlled substances ... as required by Section 893.07, Florida Statutes"; and that he "failed to keep the[se] drugs ... under lock and key as required by 21
C.F.R. Section 1301.72."
When Ms. Rabideau pointed out these omissions, Dr. Villaflor and his wife, who works with him in the office, said they would comply in the future. Mrs. Villaflor said she had not known of these requirements. A subsequent
inspection by a DPR investigation found Dr. Villaflor in full compliance with reporting requirements governing controlled substances.
K. D.'s PAIN
On July 8, 1981, Dr. Villaflor saw K. D., apparently for the first time, at the Halifax Hospital Medical Center emergency room, and admitted him to the hospital. K. D. had sustained an electrical shock when he struck a high voltage power line with an aluminum ladder, as he was hurrying for shelter from a sudden rain. He lost consciousness "surrounded by a bluish flame." Petitioner's Exhibit No. 12. The electricity burned his feet and made his lower legs tender, as well. Discharged from the hospital, he visited Dr. Villaflor's office on July 15, 1981. In these proceedings, DPR does not question Dr. Villaflor's prescription of Percocet, a combination of Tylenol and oxycodone, for pain on that visit.
As a teenager, K. D. had broken his collar bone in falls from motorcycles on two separate occasions. One accident involved a ride over a waterfall. When he was 21 years old, he "was smashed between a construction vehicle and a bulldozer," Petitioner's Exhibit No. 12, suffering "a severe crushing injury to his chest." Some ten years later he "still ha[d] very mobile ribs secondary to this injury," and persistent pain in his back and legs.
In November of 1981, Dr. Kolin, a psychiatrist in Orlando, admitted K.
D. to Orlando Regional Medical Center. A myelogram "revealed a mild L5 radicular lesion on the left, consistent with chronic myofascial pain and left L5 radiculitis." Petitioner's Exhibit No. 11. During this hospital stay, K. D.'s "narcotic medications were tapered and discontinued." Id. Dr. Villaflor sent copies of his records to Dr. Kolin, to whom Dr. Gillespie in Nashua, New Hampshire, had referred K. D. Apparently Dr. Villaflor never asked and Dr. Kolin never volunteered to forward Dr. Kolin's records to Dr. Villaflor.
Gary G. Parsons, a vocation rehabilitation counselor, met K. D. on February 8, 1982. After K. D. made a perfect score on an aptitude test, a state agency subsidized his vocational training at the American Computer Institute. When K. D.'s training there concluded on January 4, 1983, Mr. Parsons tried to assist him in obtaining employment, but eventually concluded that K. D. could not hold a job because "his pain, and his limitation was greater than" (T. 283) Mr. Parsons had originally realized. K. D.'s pain or his physical condition "was primary in his conversation almost every time" (T. 283-
4) he and Mr. Parsons spoke. Even after the vocational rehabilitation file was closed on June 26, 1984, he came by Mr. Parsons' office twice. Both times K. D. seemed depressed to Mr. Parsons, who had recommended he go for counseling to the Human Resources Center, a community mental health center. Mr. Parsons saw K. D. for the last time on March 22, 1985.
At least as early as August of 1984, K. D. mentioned suicide to Mr. Parsons as a possibility. In March of 1985, K. D. began weekly counselling sessions with Dr. Rafael Parlade, a clinical psychologist at the Human Resources Center. In these sessions "the two issues ... were his suicidal ideation combination with the depression, and the departure of his live-in girlfriend." (T. 273) He "still had a lot of pain." (T. 274) Dr. Parlade hoped K. D. would "increase his activities," (T. 276) so that
with ... activity in his life more, he would focus away from his pain. Because
for a period of time that was all he was living with. (T. 276)
Dr. Parlade viewed decreasing the amount of pain medication as a secondary goal (T. 275), a result he hoped would flow from K. D.'s being less preoccupied with the pain he experienced continually.
PAIN REMEDIES
On January 31, 1983, K. D. visited Dr. Villaflor's office. Dr. Villaflor's notes for that day mentioned K. D.'s "Electrocution High Voltage in 7/81" and reflect a prescription for 50 tablets of Talwin. K. D.'s blood pressure, 120 over 70, is noted, and reference is made to a TENS unit, or transcutaneous nerve stimulator. Somebody at the Orlando pain clinic K. D. had visited had recommended one of these electrical devices to K. D., but it had proved ineffective against his pain. At one time or other, K. D. resorted to acupuncture and resumed wearing a corset of the kind originally prescribed for the back pain he experienced in the wake of the cascading motorcycle accident.
Dr. Villaflor's office notes of April 15, 1983, record "Back Pain," a second prescription for 50 tablets of Talwin and another prescription for Xanax. On Nay 11, 1983, Dr. Villaflor's records again note K. D.'s "Back Pain" and indicate prescriptions for Xanax and Percocet.
Nothing suggests Dr. Villaflor knew that Talwin had been dispensed to
K. D. five days earlier, when K. D. appeared at his office on May 26, 1983. Essentially illegible, Dr. Villaflor's office notes for May 26, 1983, reflect prescriptions for Percocet and Xanax tablets, with which K. D. obtained 30 quarter milligram Xanax tablets on June 6, 1983, and 35 Percocet tablets on June 8, 1983. Xanax, a tranquilizer, is taken three or four times daily. Since Percocet in the quantity prescribed may be taken every four to six hours, it was "very much within reason" (T. 239) for Dr. Villaflor to prescribe more on June 9, 1983. When this prescription was filled on June 22, 1983, K. D. received 45 tablets.
On July 7, 1983, Dr. Villaflor saw K. D. at his office for the first time in almost a month, and prescribed 35 more tablets of Percocet, also known as oxycodone with acetaminophen. The same day K. D. had the prescription filled, obtaining 35 tablets. Some three weeks later, on July 29, 1983, Dr. Villaflor again prescribed and K. D. again obtained 35 Percocet tablets. On the same day two other prescriptions Dr. Villaflor wrote for K. D. were filled, one for Atarax, an antihistamine sometimes prescribed in lieu of a tranquilizer, and one for Tylenol with codeine. This 35-tablet Tylenol prescription was refilled on September 7, 1983.
With more and less potent pain medications, K. D. could take one or the other, as appropriate, depending upon the intensity of the pain. Since no other prescription for pain killing medication was written or filled until October 4, 1983, these prescriptions were, according to one of the Department's witnesses, "[w]ithin reason." (T. 243) On the October 4 visit, Dr. Villaflor noted "Back Pain from Electrocution" and recorded K. D.'s blood pressure as 138 over 70 or 80, before prescribing 45 Percocet tablets. That day, K. D. obtained the Percocet. He returned to Dr. Villaflor's office on October 13, 1983, complaining not only of back pain, but also of nausea and vomiting. Dr. Villaflor prescribed an additional 30 Percocet tablets.
On October 15, 1983, K. D. acquired 50 tablets of the antihistamine Dr. Villaflor had been prescribing for him, "hydroxizine pam." On November 3, 1983, he obtained 60 Percocet tablets and 50 Tylenol No. 3 tablets. On November 12, 1983, the antihistamine prescription was refilled as was, on November 16, the Tylenol No. 3 prescription. Perhaps Dr. Villaflor wrote the antihistamine prescription two days before it was first filled. The off ice notes are difficult to decipher. He wrote the Percocet and Tylenol prescriptions when he saw K. D. on November 3, 1983, at which time he recorded his blood pressure (132 over 70) and noted "back injury."
On December 2, 1983, Dr. Villaflor's office notes reflect a visit and prescriptions for Tylenol No. 3, Percocet and the antihistamine. With respect to prescriptions filled on and after November 3, 1983, but before December 2, 1983, DPR's witness testified that the amount of medication was "a little high, but it's still, you know, again, acceptable for a person in pain." (T. 246) On December 2, 1983, K. D. obtained 60 Percocet tablets and 50 Tylenol No. 3 tablets, the latter by virtue of a prescription that was refilled on December 14, 1983.
On January 3, 1984, K. D. returned to Dr. Villaflor's office where he obtained prescriptions for Percocet and Tylenol No. 3. In March, Dr. Villaflor began prescribing a tranquilizer, Dalmane, instead of the antihistamine, but the new year progressed much as the old year had, in terms of Dr. Villaflor's prescriptions and documentation, and, apparently, of K. D.'s pain, as well, until early August.
PHARMACIST CONCERNED
On August 3, 1984, Dr. Villaflor prescribed for K. D., 200 "Sk- Oxycodone w/Apap" tablets, 200 Tylenol No. 4 tablets and 180 Dalmane capsules.
K. D. had asked for them to take along to New England, where he travelled for an extended visit with his parents and others. This represented more than a two months' supply, and the prescriptions inspired a pharmacist, Paul Douglas, to telephone Dr. Villaflor's office before filling them.
Mr. Douglas had called once before in the spring of the year, when he noticed that a total of 100 Tylenol (acetaminophen with codeine) No. 3 tablets and 60 tablets of Percocet (or the generic equivalent) had been dispensed to K.
D. for use over a 24-day (April 2 to April 26, 1984) period. The pharmacist was concerned on that occasion because K. D. would have needed only 144, not 160, tablets during that period, if he had been taking no more than one every four hours.
After his last telephone call to Dr. Villaflor's office, the pharmacist talked to K. D., telling him he would "not fill these medications again ... until the prescribed number of days." (T. 222). At no time, however, as far as the evidence showed, did the pharmacist actually decline to fill any prescription when presented.
Back in Daytona Beach, K. D. presented himself at Dr. Villaflor's office on November 5, 1984, and received prescriptions for 45 tablets of Percocet, 55 tablets of Tylenol No. 3 and a quantity of Dalmane. All three prescriptions were filled the same day, and the prescription for Tylenol No. 3 was refilled on November 19, 1984.
On December 5, 1984, K. D. appeared a second time after his return from up north, and Dr. Villaflor again prescribed all three drugs, this time
specifying 50 tablets of Percocet and 50 tablets of Tylenol No. 3. K. D. caused these prescriptions to be filled the day he got them. The office motes for both these visits mention only electrical shock by way of explanation for the prescriptions.
DOCTOR FALLS ILL
On December 19, 1984, Dr. Villaflor had a massive cerebrovascular accident. He experienced "a dense hemorrhagic infarction ... sort of between the parietal and frontal temporal regions" (T. 64) of the brain. "Most people with intracranial bleeding, like Dr. Villaflor had, die." (T. 47) At least one of the physicians who attended Dr. Villaflor did not think he would survive the hospital stay. Paralyzed on his right side and unable to communicate, Dr. Villaflor did survive, and began speech and physical therapy.
While Dr. Villaflor was indisposed on account of the stroke, Dr. Wagid
F. Guirgis filled in for him. At no time did Dr. Guirgis and Dr. Villaflor discuss K. D. or his treatment. The day Dr. Guirgis began, K. D. came in complaining of severe pain in his lower back and legs. Dr. Guirgis prescribed Dalmane, 50 Percocet tablets and 50 Tylenol No. 3 tablets, the latter prescription being twice refillable. He suggested to K. D. that he see an orthopedist or a neurologist, and, on January 21, 1985, refused K. D.'s request to prescribe more Percocet.
Later the same day K. D. went to Dr. M. H. Ledbetter's office. This osteopath prescribed 30 Percocet tablets to be taken twice daily, as well as Elavil and Tranxene. On February 4, 1985, Dr. Ledbetter prescribed the same medicines. On February 28, 1985, Dr. Ledbetter prescribed Elavil, Librium and
50 tablets of Percocet. On March 22, 1985, he prescribed the same things. On April 19, 1985, K. D. again visited Dr. Ledbetter. The same day he purchased Librium and 60 Percocet tablets at Walgreen's. Dr. Ledbetter prescribed Librium, Elavil and 60 tablets of Percocet, to be taken twice daily, when he saw K. D. on May 16, 1985.
DR. VILLAFLOR RETURNS
By now, Dr. Villaflor has very likely recovered from his stroke about as much as he ever will. He exercises regularly at the YMCA and has been attending medical education seminars in Orlando. (T. 76 ) Formerly right- handed, he still has a significant expressive speech disorder, walks with a cane, and has to do without the use of his right hand. His left side, however, was never affected.
Dr. Klanke, the cardiologist and internist who treated Dr. Villaflor in the emergency room and for the three weeks he stayed in the hospital after his stroke, still sees him twice a year, principally as part of an effort to keep his blood pressure down. Although Dr. Klanke did not foresee his being able to, at the time of his discharge from the hospital, Dr. Villaflor returned to medical practice in May of 1985.
K. D. appeared at Dr. Villaflor's office on May 21, 1985, five days after he had last seen Dr. Ledbetter. Dr. Villaflor prescribed 60 Percocet and
50 Tylenol No, 3 tablets for K. D., along with Dalmane and a vitamin (B12) injection. K. D. weighed 142 pounds that day and his blood pressure was also noted. The office notes report "same complaints."
On June 18, 1985, Dr. Villaflor prescribed 60 Percocet tablets, the same number he prescribed on K. D.'s next visit, on July 17, 1985 , when K. D. limped "on left foot." In July, Dr. Villaflor also prescribed Dalmane and 50 Tylenol No. 3 tablets. On both visits K. D.'s weight (142 then 138) and blood pressure (122 then 120 over 80) were noted.
On August 19, 1985, K. D.'s weight had fallen to 132 pounds but his blood pressure remained 120 over 80. Sixty Percocet tablets - one every four hours - were prescribed, as were 50 Tylenol No. 3 tablets. The diagnosis indicated in Dr. Villaflor's office notes was "electrocution." On September 16, 1985, Dr. Villaflor again prescribed Dalmane, Tylenol and 60 Percocet tablets.
On October 17, 1985, K. D. limped to his last visit to Dr. Villaflor's office. His face bruised, K. D. complained that both feet were swollen, and reported that he had lost his balance and fallen down four stairs and over a concrete wall. For the last time, Dr. Villaflor prescribed Tylenol No. 3 and Percocet for K. D., 30 and 60 tablets respectively.
Unbeknownst to Dr. Villaflor, K. D. had continued to visit Dr. Ledbetter, himself apparently unaware of Dr. Villaflor's renewed involvement with K. D. On June 7, July 5, July 26, August 27, September 16 and October 10, 1985, Dr. Ledbetter prescribed Librium, Elavil and Percocet. Dr. Ledbetter's office notes also reflect K. D.'s fall.
REQUIRED PRACTICE
Although each is "a moderate type of analgesic," (T. 324), both codeine and oxycodone are "narcotic derivatives ... [and] addictive in nature." Id. Dalmane "can be" (T. 221) "potentially addictive." Id. Because of his depression, K. D. "was not a good candidate" to entrust with several hundred pills at once.
A physician who suspects addiction should limit prescriptions to "around ten to fifteen" (T. 326) tablets and "start checking with other pharmacies to make sure if a patient is getting drugs from any other source ... " Id. He should perform "very close and repeated physical exams" (T. 327) and be alert for "overdose side effects," id., such as dizziness, slurred speech, or staggering. The evidence here fell short of a clear and convincing showing that Dr. Villaflor was remiss in failing to suspect addiction, however. Dr. Ledbetter, who had similar, albeit similarly incomplete, information apparently did not suspect.
The evidence did not prove the existence of side effects from the drugs Dr. Villaflor prescribed. Although, on his last visit to Dr. Villaflor's office, K. D. reported dizziness, the cause is unknown. On the other hand, his office records do not suggest that Dr. Villaflor took any steps to determine the cause of K. D.'s dizziness or of his swollen feet.
Dr. Villaflor's treatment of K. D. fell below acceptable levels, if he failed to refer K. D. for periodic reevaluations of the underlying orthopedic or neurological problem, which his records suggest he did not do. His treatment was also inadequate for failure periodically to "get the medicine .. out of the system ... for a limited time" (T. 337) in an effort to learn what side effects, if any, the drugs he prescribed caused, either singly or in combination. This is so, even though the effort might have been frustrated, if K. D. had acquired the same medicines from other sources.
Keeping complete medical records is important not only as a mnemonic aid for the treating physician, but also to make the patient's history available to other physicians who may succeed or assist the recordkeeper. A physician who has examined charts Dr. Villaflor kept before his stroke as well as charts he has kept since testified "that his charts, since the stroke, were in better order than they had been before he had his stroke." (T. 469). Since his stroke, his wife has assisted with the charts.
Since Dr. Villaflor resumed office hours, he works no more than three hours a day. He has given up the hospital practice entirely. If he feels he is unable to treat a patient adequately he refers the patient to a specialist or, sometimes, to another family practitioner. On two or three occasions he has referred patients to Dr. Klanke, and in each case the referral has been appropriate. With respect to one of these patients, Dr. Klanke testified, "[H]e called up and told me the man had congestive heart failure and that's exactly what the man had." (T. 55).
ONEHANDEDNESS
Ordinarily, doctors use both hands in performing certain tasks often necessary in routine examinations. Use of a conventional sphygmomanometer requires one hand for the cuff and another for the stethoscope. "Percussion" involves placing one hand on the patient and tapping it with the other, listening carefully while, and, to some extent, feeling with the hand being tapped. Doctors usually use both hands for breast examinations. Performing pelvic examinations with only one hand "would be very difficult," (T. 82) as would be "adequate detail muscle strength testings," id., which, however, general practitioners do not do, as a rule.
In case of a knee sprain, an examination to determine the range of motion is better performed with two hands. But a one-handed physician could examine the knee "and feel yes, the person is tender over the ligaments, or the joint is swollen. And in that situation he may turn around and say, `I would suggest that you see an orthopedic surgeon for treatment." (T. 86).
Although the lack of the use of one hand would disqualify a physician from performing vascular surgery, for example, a general practitioner with good judgment and competent assistance can manage well enough in an office setting, with the use of only one hand. A one-handed physician can accomplish percussion with the help of an assistant who taps his hand. An assistant can support the patient's breast while a one-handed examiner palpates. Sphygmomanometers that can be operated with one hand are available.
INTELLECTUAL REQUIREMENTS
A physician must be able to learn if he and his patients are to have the benefit of advances in general medical knowledge, and the full benefits of the physician's own experience. Although would-be physicians are not required to attain a particular score on an I.Q. test, acquiring a medical education and passing licensing examinations require some intellectual ability.
A physician "probably" (T.49) needs to be able to perform simple arithmetic. In some instances, appropriate dosages depend on the patient's weight and must be calculated; multiplication is required. Memory is essential in terms of the ability to retain medical knowledge. Although desirable, memory of a patient's history is less important, assuming adequate records are kept.
Deductive reasoning is necessary in moving from a perception of symptoms to diagnosis and treatment. Pertinent questions must be formulated and communicated. Patients' answers must be understood. If patients cannot supply the answers, laboratory tests may be appropriate. It is the physician's job to make this judgment.
PSYCHOLOGICAL EVALUATIONS
Born in Manila on March 2, 1928, Dr. Villaflor began speaking English at an early age. The Wechsler Adult Intelligence Scale-Revised, I.Q. test, administered after his stroke, put his full scale I.Q. at 82. The examiner concluded that "his general fund of information is severely impaired," partly on the basis of these questions and answers:
When asked where the sun rose, Dr. Villaflor, after a long pause, stated, "in the West."
When asked how many weeks in a year, Dr. Villaflor stated, "56."
When asked how many days in a year, Dr. Villaflor stated, "369."
When asked how many senators in the United States Senate, he responded, "200." Petitioner's Exhibit No. 8.
There was some indication that Dr. Villaflor had suffered a loss of medical knowledge, too. Asked to name the lobes of the brain, he named the frontal, parietal and occipital lobes, but omitted the temporal lobe. When a psychiatrist asked him to identify the symbols for microgram and milligram, "he was not forthcoming, he did not do this for me at that time." (T. 452).
On the other hand, Dr. Villaflor answered appropriately in response to informal questioning by Dr. Derbenwick, Dr. Villaflor's treating neurologist, "with regard to common dosages of medications that would be used in, for example, treating infections." (T. 68) Another neurologist, Jacob Green, reported:
Specific studies show that he could tell me it was the 26th of February, 1987, and he said "Gasville" several times instead of Jacksonville for location. He took 7 from 100, and got 93. Asked to take 5 from that and got 87 initially, then corrected it to
88. When asked which dose of Codeine would be appropriate, 1/2 gr., 1 gr. or 3 gr., he told me that the 1/2 gr. was the only appropriate dose. I asked him about Dilantin and he said he would give three a day at 100 mg. I asked about the dose of Digoxin and he says .1 and later corrected it to .25 (both these doses are correct). I gave him several hypothetical instances, such as a 50 year old male coming in with nausea and vomiting for a day and having some arm pain and some chest pain. He immediately picked up that this
could be a heart attack and stated the patient should be hospitalized for further observation, which is certainly correct.
DPR retained Dr. Green to evaluate Dr. Villaflor's mental status in the wake of the stroke.
When Dr. Graham, the clinical psychologist, saw Dr. Villaflor, he had difficulty in naming objects; he slurred and mispronounced words. His ability to communicate verbally was and presumably is significantly impaired. (He did not testify at hearing.) Dr. Villaflor
could not pronounce rhinorocerous [sic] or Massachusetts [sic] - Episcopal correctly. Houwever [sic], he could pronounce difficult medically related words ...
Petitioner's Exhibit No. 8, p. 15.
He could not recite the days of the week in chronological order, although he could recite them in reverse chronological order. When the clinical psychologist showed him a quarter and asked him what it was, Dr. Villaflor said, "nickel, coin, 25. He never could say "'quarter'" Petitioner's Exhibit No. 8, p. 14.
Dr. Villaflor told Dr. Graham that his mathematical ability was the same after his stroke as before, and this may be so. The psychologist reported, however:
He was unable to subtract 85 from 27 [sic] giving the answer 48. He was unable to multiple [sic] 3 times 17 correctly giving the answer of 44.
Petitioner's Exhibit No. 8, p. 10.
Dr. Miller testified that, when he asked Dr. Villaflor to multiply two times 48, Dr. Villaflor answered 56. On the other hand, Dr. Derbenwick, the neurologist, reported that Dr. Villaflor "was a little bit slow on complex calculations, [but] performed simple calculations without too much trouble." (T. 68) Altogether the evidence showed that Dr. Villaflor is not good at arithmetic, but did clearly establish to what extent his stroke was responsible.
It was clear that the stroke, or some other impairment of the central nervous system, has affected Dr. Villaflor's intellectual functioning in many particulars, however. "All areas of the central nervous system are dysfunctioning." (T. 134) He was unable to repeat five digits in the order they were spoken. He was unable to repeat three digits backwards. His "short term auditory memory" is such "that his ability to remember factual information reported to him is severely impaired." Petitioner's Exhibit No. 8, p. 9. His visual memory is also impaired. (T. 145).
Any score above 50 on th[e Category Booklet T]est is indicative [of] central nervous system impairment." Id p. 10. Dr. Villaflor scored 114 on this test, designed to measure "current learning skills, abstract concept formation, and mental efficiency." Id. Except for three scales - "Reading Polysyllabic Words," "Concept Recognition," and "Reading Simple Material" - Dr. Villaflor's scores on the Luria-Nebraska tests indicated central nervous system impairment. "Any interference between memory tests results in his inability to recall
material on the first test." Id p. 16. "He is unable to recall more than two or three discrete units of information on a consistent basis." Id., p. 19.
Dr. Villaflor visited Ernest Carl Miller, a psychiatrist, twice at DPR's behest. While he viewed Dr. Villaflor as "obviously an intelligent man" (T. 451), he reported problems with arithmetic; and noted Dr. Villaflor's "tendency to be somewhat concrete; that is verbally." Id. Dr. Miller concluded that Dr. Villaflor "would be better not engaged in the active practice of medicine." (T. 455). As Dr. Miller sees it
[A]part from any discrepancy in knowledge, medical knowledge, which he may have as a product of his massive stroke, there may be stresses imposed on him by practice, which is adversely affecting his blood pressure and his physiology. (T. 455).
Dr. Miller also reported that Dr. Villaflor did not, in the case of hypothetical cases they discussed, suggest a liver enzyme study to confirm a diagnosis of cirrhosis of the liver; and, in another instance, said that chest pain might indicate mitral valve prolapse.
SURVIVING PATIENTS CONTENT
Dr. Villaflor's stroke does not seem to have diminished his popularity with his patients. Some of them, like Vivian Patterson, do not believe the stroke has affected his mental ability. Georgetta T. Rogers, a nurse who suffers from high blood pressure and gout is impressed with Dr. Villaflor's thoroughness. She finds him easier to understand since the stroke than he was before. Frank Runfola, who views Dr. Villaflor as "a throwback to the old time doctor" (T. 428), testified that the physical examinations Dr. Villaflor has performed on him have been no less thorough since the stroke than they were before.
Marilyn McCann, a patient for some ten years, has noticed no difference in the way Dr. Villaflor practices medicine since the stroke, except as far as his using his right arm. She testified that he still
looks up whatever medications he's going to give me, he looks up whatever he has to do, and checks it out thoroughly to make sure what examination I have to have in the office. If I have any complaints, he does check them very thoroughly, he makes sure. (T. 433)
John Peterson, Dr. Villaflor's patient for 15 years, has not "seen too much difference in [Dr. Villaflor's] alertness" (T. 445) since the stroke.
On at least one occasion since Dr. Villaflor's stroke, David Smith took his father-in-law to the doctor's office. While Dr. Villaflor was checking the patient's blood pressure, he looked up at Mr. Peterson and said
"Is your throat sore?"; and I said, "No sir." He said, "Let me see"; so I opened up my mouth and he looked in there and he said, "Your throat[']s, all red," he said, "It's
infected"; he said, "and that's what's causing your eye infection." I had an eye infection ... He prescribed some medicine for me, and two days later the eye infection was cleared up and my throat wasn't red.
(T. 485-6)
On another occasion, after the stroke, Mr. Smith complained to Dr. Villaflor of dizziness. Dr. Villaflor diagnosed an ear infection and prescribed medicine.
The dizziness abated. Like her husband, Sharon Smith believes Dr. Villaflor seems unchanged intellectually by the stroke.
Liliosa Bohenzky, who suffers from hypertension and rheumatoid arthritis, believes the examinations Dr. Villaflor performs twice or four times a year on her back, neck, arms and shoulders, have been as thorough since the doctor's stroke as they were before. Rene Stenius, who has been a patient of Dr. Villaflor's for 12 years, "was very pleased when he did come back to work, even in a somewhat diminished capacity."
One day in January of last year, Ms. Stenius stopped by Dr. Villaflor's office, although she had no appointment and had not indicated beforehand that she was coming. She had not seen Dr. Villaflor for three or four months. Nobody was in the waiting room until she arrived. When she was taken into an examining room, her chart accompanied her. Before he examined the chart, Dr. Villaflor inquired, "`Are you still taking a half a pill every six days?'" (T. 517) This was a reference to medicine for her hypothyroid condition that he had in fact prescribed some months back for her to take at the rate of a half pill every six days.
It was on this same visit that Dr. Villaflor prescribed Tranxene for Ms. Stenius. Since the stroke he dictates prescriptions to his wife, then signs with his left hand. "Most physicians have the nurses fill out the prescriptions, if you really want to know the truth." (T. 51) When she wrote 375, he said, "`No, no, point'" and he was hitting the ... decimal point, and he was saying, `point, decimal,' `telling her where the decimal should be." (T.
519) Once the decimal point had been supplied, he signed Ms. Stenius' prescription for 3.75 milligram doses of Tranxene.
Mrs. Villaflor, trained as a nurse but not licensed in Florida, began assisting her husband when he resumed practicing after his stroke. He asks the patient what his complaint is and she writes down the complaint. In measuring patients' blood pressure, she attends to "the cuff and he would read it," (T.
507) and tell her the reading, which she would write down. After he checked a patient's lungs, he might say, "`[C]lear, very good,'" id., which Mrs. Villaflor would write down. Mrs. Villaflor assists in examinations. For example, Ms. Stenius reported that she "helped with the insertion of the tool for the pap test, but Dr. Villaflor actually took the culture for the examination." (T. 515).
When Dr. Villaflor examined patients' breasts, the patients themselves generally assisted. Under his direction, Mrs. Villaflor draws medicines from vials, swabs skin with alcohol and sometimes holds the skin while Dr. Villaflor administers intramuscular, intradermal and subcutaneous injections.
A SAMPLE OF TWO
DPR's own experts, Dr. Miller, the psychiatrist, and Dr. Green, a neurologist, agreed with a number of Dr. Villaflor's witnesses that the most appropriate means for determining whether Dr. Villaflor could practice reasonably skillful medicine reasonably safely would be to monitor his practice
-- Dr. Green suggested monitoring for a week -- and
to have physicians review the ... actual office records to check the appropriateness and quality of care. Dr. Green's letter to Mr. Coats dated February 14, 1986.
Despite their consultant's advice, over a year before the final hearing took place, to do so, DPR never monitored Dr. Villaflor's practice nor caused any review of his charts to be undertaken.
A family practitioner and an internist, both of whom practice in Daytona Beach, did monitor Dr. Villaflor briefly one afternoon, at Dr. Villaflor's lawyer's request. They observed him interview and examine two patients. He "would ask the patients questions which appeared to be adequate, as far as their complaints were concerned." (T. 470) If a patient could not understand him, his wife "interpreted." Dr. Villaflor examined each patient's "head, the heart, the lungs, their abdomen, their extremities." (T. 473).
In the opinion of one of the doctors who monitored Dr. Villaflor's examination and treatment of these two patients, Dr. Villaflor's medical judgment "was quite adequate for the complaints they had and for the findings of his physical examination." (T. 470) At least one of the doctors examined an unspecified number of Dr. Villaflor's charts that afternoon and found them to be "quite adequate." The other monitor did not testify.
SKILL AND SAFETY
Dr. Villaflor has indicated and the evidence showed that he referred patients he felt he could not treat adequately himself. But there is a question how well he succeeds in identifying such patients.
To some extent people can be counted on to recognize a medical emergency on their own and to seek out an emergency room, of which there are a number in the Daytona Beach area. A cardiologist testified he sees only about two seriously ill patients a year in his office. (T. 59) Nor are all medical problems difficult to diagnose. "Anybody in medicine can be right ninety-five percent of the time." (T. 55)
But symptoms as familiar as fever and headache can be manifestations of the most serious disorders. A physician in private practice cannot prevent seriously ill people from presenting themselves in his office.
Jacob Green, the neurologist DPR retained, testified that Dr. Villaflor is unable to practice medicine with reasonable skill and safety. Green deposition, p. 11. He was the only witness who so testified. When DPR sought to adduce the clinical psychologist's opinion as to Dr. Villaflor's ability to practice medicine safely and skillfully, objection was sustained on grounds that, Dr. Graham not being a medical practitioner, his opinion was not competent.
Dr. Green posed a hypothetical case to Dr. Villaflor, when he saw him on February 26, 1987:
[A] 60 year old male ... with a history of
a fever of 101 degrees, achiness all over and a headache for two days.
Dr. Villaflor said such a patient's blood pressure should be checked, and that he would prescribe "Tylenol for migraine." But fever does not necessarily accompany migraine headaches, and might, in conjunction with a persistent headache, be a symptom of encephalitis or meningitis. Green Deposition, p. 8. The record does not show how, frequently encephalitis or meningitis occurs either in the general population or among feverish 60-year old men with two-day- old headaches.
Dr. Klanke, the cardiologist to whom Dr. Villaflor has referred two or three patients since resuming his practice, testified he had not noticed "any change [as a result of the stroke] in [Dr. Villaflor's] medical perception, or judgement, [sic] in dealing with the patients" he referred to Dr. Klanke. Dr. Derbenwick, like Dr. Miller, offered no opinion on how skillfully or safely (to others) Dr. Villaflor is able to practice medicine. Dr. Carratt, the only witness who had examined Dr. Villaflor's charts and watched him practice, albeit briefly, since he had suffered his stroke, testified that Dr. Villaflor could practice "reasonable medicine" as "long as he realizes his limitations." (T. 471.)
CONCLUSIONS OF LAW
The Board of Medicine is authorized to revoke or suspend a physician's license, reprimand or fine him, restrict a physician's practice or place him on "probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician ... to work under the supervision of another physician," Section 458.331(2)(f), Florida Statutes (1987), if the evidence shows that a physician is
unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition ... A licensee or certificate holder affected under this paragraph shall at reasonable intervals be afforded an opportunity to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients.
The statutory standard is whether the physician can practice with reasonable skill, without endangering his patients unreasonably. Any hazard to his own health is outside the statute's purview.
License revocation proceedings have been said to be "'penal' in nature." State ex rel. Vining vs. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz vs. Florida Real Estate Commission, 289 So.2d
391 (Fla. 1974); Bach vs. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). But, in a bar disciplinary case, the Court recently said:
[M]any remedial statutes, designed to benefit or protect the public have "penal" aspects; this does not alter their basic purpose and transform them into penal measures. DeBock vs. State, 512 So.2d 164, 167 n.2 (Fla. 1987)
(citation omitted)
The statutory provision at issue here, although clearly "designed to benefit or protect the public," 512 So.2d at 167 n.2, may nevertheless be a basis for action no less drastic than the most severe disciplinary measures to which licensees are subject. Strict procedural protections apply in disciplinary cases, and the prosecuting agency's burden is to prove its case clearly and convincingly. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987). See Addington vs. Texas, 441 U.S. 426 (1979); Ferris vs. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986); Anheuser-Busch, Inc. vs. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Walker vs. State Board of Optometry, 322 So.2d 612 (Fla. 3rd DCA 1975); Reid vs. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2nd DCA 1966). The burden of proof should be no less here.
The evidence showed that Dr. Villaflor's stroke has caused both physical and mental problems that interfere with his work as a physician. His physical problems alone have diminished his skill to the point that he cannot practice without assistance. But he has such assistance, and there was no proof his physical disabilities pose a hazard to his patients.
His mental status, however, is another matter, whatever its precise etiology. Dr. Villaflor's inattention to widely known legal requirements regarding controlled substances, and his claim that the stroke did not diminish his arithmetic ability raise the possibility that his intelligence, even before the stroke, was not the highest. This possibility militates in his favor, to the extent he may have learned to compensate by thoroughness and carefulness. But it also raises the specter of a fund of medical knowledge none too large, even before the stroke depleted it.
Even though good medical practice would have required referring K. D. to a neurologist or an orthopedist from time to time to evaluate his underlying problem, virtually no danger exists that Dr. Villaflor would rush recklessly ahead to treat a problem he recognized as requiring a specialist's attention. The evidence suggested Dr. Villaflor had a policy of referring people he diagnosed as seriously ill, even if only to another family practitioner.
The danger lies in the possibility that Dr. Villaflor would fail to recognize a serious illness. Less likely perhaps than his failing to recognize a medical emergency is the possibility that a more subtle condition might develop undetected, posing a preventable threat to a patient's health. Just how dangerous his misdiagnoses would likely prove must remain a matter of conjecture on the present record.
The statute requires, however, not only that a physician practice with reasonable safety to patients, but also that he or she practice with reasonable skill. The evidence falls short of a clear and convincing demonstration that Dr. Villaflor's failure to detect K. D.'s addiction, assuming K. D. was addicted, reflected a lack of reasonable skill. Both Dr. Parlade and Dr. Ledbetter also evidently failed to recognize any problem. But the evidence as a whole established clearly and convincingly that Dr. Villaflor can no longer practice medicine with reasonable skill.
The memory problems Dr. Villaflor has, both the diminution of his general fund of knowledge and his inability "to recall more than two or three discrete units of information on a consistent basis," Petitioner's Exhibit No. 8, p. 19, coupled with his impaired ability to learn, make him unskillful and unreliable as a diagnostician. Dr. Green's testimony to this effect has been credited.
In a setting in which he was not responsible for ruling out the possibility of serious illness, Dr. Villaflor could undoubtedly make a contribution, what with the care and thoroughness he brings to his work, and his concern for his patients, which the evidence showed he has in large measure.
But the office practice to which he has made a truncated return does not insulate him from responsibility for identifying seriously ill patients.
It is, accordingly, RECOMMENDED:
That the Board of Medicine restrict Dr. Villaflor's license to allow him to practice only under the supervision of another physician.
DONE AND ENTERED this 26th day of February, 1988, in Tallahassee, Leon County, Florida.
ROBERT T. BENTON, II
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 26th day of February, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2771
Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 7, 8, 9, 10, 11 and
12 have been adopted, in substance, insofar as material.
With respect to petitioner's proposed findings of fact Nos. 5 and 6, which have largely been adopted, in substance, insofar as material, Dr. Miller opined that Dr. Villaflor's own health might be jeopardized by practicing.
Respondent's proposed findings of fact Nos. 1, 3, 5, 6, 8, 10, 12, 13, 14,
15, 18, 19, 21, 22, 23 and 24 have been adopted, in substance, insofar as material.
With respect to respondent's proposed finding of fact No. 2, Dr.
Villaflor's speech impairment is not the same as his intellectual impairment, but the evidence failed to show that "Dr. Villaflor thinks quite well."
With respect to respondent's proposed finding of fact No. 4, the evidence did not show that Dr. Villaflor "is still an accurate diagnostician and the only problem now is with his speech."
With respect to respondent's proposed finding of fact No. 7, Dr. Villaflor has problems with memory and comprehension, whatever Dr. Derbenwick's views are. Respondent's proposed finding of fact No. 9 has been adopted, in substance,
except that there is nothing to prevent acutely ill patients from coming to a doctor's office.
Respondent's proposed finding of fact No. 16 has been rejected, insofar as it purports to summarize the February 14 letter.
Respondent's proposed finding of fact No. 17 has been rejected insofar as it purports to summarize the February 26 letter.
With respect to respondent's proposed finding of fact No. 20, Dr. Corratt did not say physical limitations.
COPIES FURNISHED:
Julie Gallagher, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
James W. Smith, Esquire SMITH, SCHODER & ROUSE, P.A.
605 South Ridgewood Avenue Daytona Beach, Florida 32014
Ms. Dorothy Faircloth Executive Director Board of Medicine
130 North Monroe Street Tallahassee, Florida 32399-0750
Tom Gallagher Secretary
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32399-0750
| Issue Date | Proceedings |
|---|---|
| Feb. 26, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 26, 1988 | Recommended Order | Physician-victim of stroke should have license restricted to allow him to practice only under the supervision of another physician. |
