STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-2968

)

JEFFREY A. CHANCE, M.D. )

)

Respondent. )

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

)

Petitioner, )

)

vs. ) CASE NO. 86-3339

)

JEFFREY A. CHANCE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 22, 1986, in Miami, Florida.

Petitioner Department of Professional Regulation, Board of Medical Examiners, was represented by Joel S. Fass, Esquire, North Miami, Florida; and Respondent Jeffrey A. Chance, M.D., was represented by Deborah J. Miller, Esquire, Coral Gables, Florida.

By Administrative Complaint dated June 30, 1986, Petitioner alleges that Respondent, while a licensed physician in the State of Florida, violated a Stipulation that was entered into between Respondent and Petitioner with reference to charges contained in an Administrative Complaint filed on October 13, 1983, which was incorporated into an Order of the Board of Medical Examiners. The Administrative Complaint alleges that, as a result of failing to submit copies of certain Schedule II controlled substance prescriptions to Petitioner, Respondent failed to perform a legal obligation placed upon him as a licensed physician and further violated a lawful order of the Board or the Department previously entered at a disciplinary hearing.

By a second Administrative Complaint dated July 22, 1986, Petitioner alleges that Respondent, while a licensed physician in the State of Florida, failed to identify or properly document a patient's demise in his charts and medical records, failed to keep written medical records justifying the course of

treatment of that patient, and failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as acceptable under similar circumstances and conditions in his record-keeping with reference to that patient.

Petitioner presented the testimony of Charles C. Samen, and Petitioner's Exhibits numbered 1-3 were admitted in evidence, with Petitioner's Exhibit numbered 2 being the deposition of Respondent. Additionally, Respondent's Exhibit numbered 1 was admitted in evidence.

Both parties submitted proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Jeffrey A. Chance, is and has been at all times material to both Administrative Complaints, a licensed physician in the State of Florida having been issued license number MEO14972. On October 13, 1983, an Administrative Complaint against Respondent was filed, which resulted in a Stipulation being entered into between Petitioner and Respondent on January 12, 1984. By its Order filed March 2, 1984, approving and adopting the Stipulation between Petitioner and Respondent, the Board of Medical Examiners directed Respondent to submit carbon copies of all Schedule II controlled substance prescriptions written by him to the Department of Professional Regulation and the Board of Medical Examiners, on a bi-monthly basis. During the period between May 1984 and December 1984, Respondent filed with Petitioner copies of

   70 prescriptions that he wrote for Schedule II controlled substances. During that same period of time, however, he failed to submit copies of a total of twelve (12) prescriptions that he had written for Percocet-5 which is a Schedule II controlled substance, pursuant to Chapter 893, Florida Statutes.

   
   

2. When Petitioner brought to Respondent's attention his failure to file all required prescriptions, Respondent readily admitted having written the 12 prescriptions and indicated to Petitioner's investigator that he was in error in neglecting to send copies of the prescriptions to Petitioner as required by the conditions of his probation. Respondent also admitted in deposition that his failure to submit the prescriptions was unintentional and that he did not think that he was violating his probation. He further stated that the persons for whom he had written the prescriptions were persons who were not only patients of his but personal friends as well for whom he personally had the prescriptions filled.

   
   

3. Since the Petitioner's (and therefore the Respondent's) discovery of the uncopied prescriptions, Respondent has begun using carbonless prescription pads, and there have been no recurrences of this problem.

   
   

4. The second Administrative Complaint herein charges Respondent with failure to properly document patient records. The parties in their pre-trial stipulation stipulated as to the testimony of two witnesses to be considered as expert witnesses. It was further stipulated that if called to testify as a witness, Petitioner's expert would testify that Respondent's admitting note in the hospital records of one patient was illegible and that Respondent's discharge summary was inadequate because it did not mention a myocardial infarction as the cause of death. It was further stipulated that Respondent's expert would testify that Respondent's admitting note was legible and that the discharge summary was adequate. Further, Respondent's expert witness disagrees

   that a myocardial infarction was the cause of death, indicating that one could not determine the cause of this patient's demise absent an autopsy. When asked to read his charts and records in deposition, Respondent was able to do so.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

6. The Administrative Complaint in DOAH Case No. 86-2968 involves Respondent's failure to file with Petitioner copies of Schedule II controlled substance prescriptions written by him during the term of his probation. That Administrative Complaint charges that Respondent has violated section 458.331(1)(h), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician, and section 458.331(1)(x), Florida Statutes, by violating a lawful order of the Board or of the Department previously entered in a disciplinary hearing. The parties have stipulated that Respondent was required by Order of the Board of Medical Examiners to submit carbon copies of all Schedule II prescriptions written by him and that Respondent failed to file carbon copies of 12 such prescriptions written by him. Accordingly, it is clear that Respondent has violated the terms of that Order, which Order adopted a settlement stipulation entered into by Respondent and the Petitioner. Respondent argues that he cannot be disciplined for his failure to comply with the Board's Order since he did not intend to violate the Order and that the violation of a statute requires intent. Respondent's argument is without merit and Respondent's intent or lack of intent is immaterial where, as here, Respondent is not charged with violating a statutory prohibition but rather is charged with failing to comply with a stipulated condition under which he was previously placed on probation. Respondent knew that he was required to file with Petitioner copies of certain prescriptions with Petitioner and failed to establish appropriate procedures to ensure his compliance with that condition. The Board's Order which adopts the agreement signed by Respondent grants no exemptions to the filing requirement if the prescriptions are written by friends, if Respondent personally pays for such prescriptions, or if Respondent personally fills those prescriptions written for his friends. The condition agreed to by Respondent requires Respondent simply to file copies of all Schedule II controlled substance prescriptions written for him, and Respondent failed to do so. Petitioner has, therefore, met its burden of proving that Respondent is guilty of violating sections 458.331(1)(h) and (1)(x), Florida Statutes.

   
   

7. The Administrative Complaint filed in DOAH Case No. 86-3339 charges Respondent with violating section 458.331(1)(n), Florida Statutes, by failing to keep written medical records justifying the course of treatment of a patient, including, but not limited to, patient histories, examination results and test results; and with violating section 458.331(1)(t), Florida Statutes, by failing 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 in his record-keeping with reference to that one patient. Petitioner has failed to sustain its burden of proof with regard to Respondent's alleged record-keeping deficiencies. The parties stipulated that Petitioner's single expert would testify that Respondent's admitting note was illegible and discharge note was inadequate but that Respondent's expert would testify that Respondent's admitting note was legible and his discharge note was adequate. No additional evidence was presented as to

   any standard of care alleged to have been violated by Respondent. Petitioner has accordingly failed to meet its burden of proof in this cause.

   
   

8. In its proposed recommended order, Petitioner recommends that Respondent be reprimanded for being negligent and failing to comply with the term of his probation requiring him to file copies of certain prescriptions. Such a recommendation is appropriate under the circumstances of this cause.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing the Administrative

Complaint against Respondent in DOAH Case No. 86-3339 but finding Respondent

guilty of the allegations contained in the Administrative Complaint filed in DOAH Case No. 86-2968 and reprimanding him therefor.

DONE and RECOMMENDED this 5th day of February, 1987, at Tallahassee, Florida.

LINDA M. RIGOT, 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 5th day of February, 1987.

APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 86-2968,86-3339

1. In its proposed recommended order, Petitioner submitted a single set of proposed findings of fact as to both DOAH Case Nos. 86-2968 and 86-3339. Each of Petitioner's proposed findings of fact has been

   adopted in this Recommended Order either verbatim or in substance.

2. In his proposed recommended order, Respondent submitted one set of proposed findings of fact as to DOAH Case No. 86-2968 and a second set of proposed findings of fact as to DOAH Case No. 86-3339. Respondent, however, used the same numbers in numbering both sets of proposed findings of fact.

3. As to DOAH Case No. 86-2968, Respondent's proposed findings of fact numbered 2, 3, 4, 5, 6, the first sentence of 7, and the first three sentences of 13 have been adopted either verbatim or in substance in this Recommended Order. The remainder of Respondent's proposed findings of fact have been rejected as follows: 1 as not constituting a finding of fact; 7 (other than the first sentence), 8, and 14 as being unnecessary; and 9, 10, 11, 12,

   and the last two sentences of 13 as being immaterial.

4. As to DOAH Case No. 86-3339, Respondent's proposed findings of fact numbered 2, 5, and 6 have been adopted either verbatim or in substance in this Recommended Order. The remainder of Respondent's proposed findings of fact have been rejected as follows: 3 and 7 as being unnecessary; and 1, 4, and 8 as not constituting findings of fact.

COPIES FURNISHED:

Julie Gallagher, Esquire Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Joel S. Fass, Esquire 626 N.E. 124 Street

North Miami, Florida 33161

Deborah J. Miller, Esquire 2100 Ponce de Leon Boulevard Suite 1201

Coral Gables, Florida 33134

Dorothy Faircloth Executive Director

Board of Medical Examiners Department of Professional

Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Fred Roche Secretary

Department of Professional Regulation

130 N. Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-002968

Orders for Case No: 86-002968