STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 86-3256
) 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 July 3, 1986, DPR alleged that Dr.
Villaflor "[b]etween on or about July 15, 1981, and October 17, 1985, . . . was the treating physician for K.D." for whom he allegedly "inappropriately and/or excessively prescribed" certain "schedule controlled substances." The administrative complaint also alleged that Dr. Villaflor "in treating patient
K.D. for back pain, failed to perform routine physical examination, continually evaluate the patient and order or perform diagnostic testing"; that he "knew or should have known that patient K.D was addicted, mentally and/or physically dependent upon narcotics"; that he "failed to keep medical records justifying his course of treatment of patient K.D. . . . (and) failed to practice medicine with that level of care, skill and treatment which a reasonably prudent similar physician recognizes as acceptable under similar conditions and circumstances, in his treatment of patient K.D." all in violation of Sections 458.331(1)(n),
and (t), Florida Statutes. At hearing, DPR abandoned the count alleging a violation of Section 458.331(1)(1) , Florida Statutes.
The administrative complaint also alleged that Dr. Villaflor "failed to maintain [certain] records of the schedule controlled substances," a fact to which respondent stipulated at hearing. The administrative complaint alleges and respondent's counsel conceded (T. 11) that this record keeping failure violated Section 458.331(1)(h), Florida Statutes. The present case was consolidated for hearing with another case involving the same parties, No. 86- 2771.
ISSUE
Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
FINDINGS OF FACT
At all pertinent times, respondent Manuel P. Villaflor, M.D., held a Florida license as a physician, No. ME 0020072. He practices in Daytona Beach, where he has an office on Ridgewood Avenue.
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 prescriptidn 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 R.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 elecricity 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 2l 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 May 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 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 prescripton 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 office 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.
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.
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. 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).
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 notes for both these visits mention only electrical shock by way of explanation for the prescriptions.
On December 19, 1984, Dr. Villaflor suffered a stroke and was hospitalized. Two days later prescriptions he had purportedly written for K.D. were filled, but their authenticity, like that of the prescriptions filled on November 21, 1984, is not certain.
While Dr. Villaflor was indisposed on account of the stroke, Dr. Wagid
F. Guirgis filled in for him. The day he 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. Dr. Guirgis suggested to R.D. that he see an orthopedist or a neurologist, and, on January 21, 1985, refused K.D.'s request to prescribe more Percocet. At no time did Dr. Guirgis and Dr. Villaflor discuss K.D. or his treatment.
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.
In May Dr. Villaflor returned to his office, and K.D. appeared on May 21, 1985, five days after he had seen Dr. Ledbetter. Dr. Villaflor prescribed
60 Percocet and 50 Tylenol No. 3 tablets for K.D., along with Dalmane and a vitamin (Bl2) 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, ten fewer than 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 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
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. 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.
CONCLUSIONS OF LAW
The Board of Medicine is authorized to suspend or revoke physicians' licenses, restrict their practice, place them on probation, reprimand them or levy administrative fines not to exceed $5,000 "for each count or separate offense," Section 458.331(2), Florida Statutes (1987), whenever it is shown that a physician licensed in Florida has been guilty of
Making or filing a report which the licensee knows to be false,
intentionally or negligently failing to file a report or record requested by state or federal law, willfully impeding or obstructing such filing or inducing another person to do so. Such reports or records shall include only those which are signed in the capacity as a licensed physician.
* * *
(m) 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.
* * *
(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.
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. Section 458.331(1), Florida Statutes (1987).
Subsection (m) of Section 458.331(1), Florida Statutes (1937) contains the same language as subsection (n) of Section 458.331(1), Florida Statutes (1985).
Section 768.45, Florida Statutes (1987), to which subsection (t) refers, provides, in part:
In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 768.50(2)(b), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
(2)(a) If the health care provider whose negligence is claimed to have created the cause of action is not certified by the appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a "similar health care provider" is one who:
Is licensed by the appropriate regulatory agency of this state;
Is trained and experienced in the same discipline or school of practice; and
Practices in the same or similar medical community.
(b) If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care provider" is one who:
The parties have stipulated that Dr. Villaflor's record keeping or lack thereof, as regards controlled substances in his office, amounted to a violation of Section 458.331(1)(h), Florida Statutes (1987). Although startling, this dereliction was apparently innocent, and has been corrected.
Petitioner has the burden to prove those allegations that are in dispute. Associated Home Health Agency, Inc. vs. State Department of Health and Rehabilitative Services, 453 So.2d 104 (Fla. 1st DCA 1984). 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). 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).
Since there were occasions on which Dr. Villaflor omitted even to note that K.D. continued to complain of pain, but prescribed pain killing medications nevertheless, petitioner has proven technical violations of Section 458.331(1)(m) , Florida Statutes (1987), requiring that a doctor's records reflect justification for the course of the patient's treatment. If he ever referred K.D. to a neurologist or an orthopedist, the records give no indication.
Petitioner has not demonstrated that Dr. Villaflor prescribed drugs for K.D. "other than in the course of the physician's professional practice," Section 458.331(1)(q), Florida Statutes (1987), despite the statutory presumption that can arise upon proof of "excessive or inappropriate" prescriptions. As petitioner concedes in its proposed recommended order, it "is not negligent, per se, to manage chronic pain with the long term use of narcotics." The evidence showed that Dr. Villaflor prescribed these medicines on account of K.D.'s chronic pain. The records reflect Dr. Villaflor's awareness of K.D.'s efforts to find other means to control pain, including the TENS unit and acupuncture. Although the evidence did not demonstrate that Dr. Villaflor inspired K.D.'s search, Dr. Villaflor's failure to urge K.D. to do what he knew had already been done did not constitute a deviation from acceptable practice.
During one interval only, from April 2 to April 26, 1984, did the evidence show that more than six pain killing pills a day had been prescribed. On the problematic assumption that Percocet and Tylenol No. 3 should never be taken within four hours of one another, this amounted to a 16-pill overprescription for a 24-day period, or two-thirds of a pill too much per day. Such a minimal overage is not sufficiently "excessive" to give rise to the statutory presumption.
For failure to evaluate or to refer K.D. for evaluation of his underlying physiological problems from time to time and for failure to require drug free holidays occasionally or by other means to keep a closer handle on possible side effects of the drugs he prescribed for K.D., especially at the end, when dizziness was reported, Dr. Villaflor fell below "that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances." Section 458.33l(1)(t) , Florida Statutes (1987).
It is, accordingly, RECOMMENDED:
That petitioner suspend respondent's license for five days.
DONE and ENTERED this 18th day of February, 1988, in Tallahassee, Florida.
ROBERT T. BENTON, II
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
FILED with the Clerk of the Division of Administrative Hearings this 18th day of February, 1988.
APPENDIX
Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 6, 9, 15, 16, 17 and 18 have been adopted, in substance, insofar as material.
With respect to petitioner's proposed finding of fact No. 5, the office records contain K.D.'s blood pressure on that visit and the hospital records of the preceding week.
With respect to petitioner's proposed finding of fact No. 7, the pharmacist singled out the interval from April 2 to April 26, 1984. At no time, as far as the evidence showed, did K.D. ever present a prescription the pharmacist declined to fill when presented.
With respect to petitioner's proposed finding of fact No. 8, Dr. Guirgis' testimony was as to "the way [he] [do]es it." (T. 312) "I prefer," id., to refer, he testified.
With respesct to petitioner's proposed findings of fact Nos. 10 and 11, and the adequacy or inadequacy of Dr. Villaflor's documentation, see findings of fact under the heading "Pain Remedies."
With respect to petitioner's proposed findings of fact Nos. 12, 13 and 14, see findings of fact under the heading "Required Practice."
Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9, 13, 14, 15 and 16 have been adopted,in substance, insofar as material.
With respect to respondent's proposed finding of fact No. 6, the pharmacist did not speak directly to the doctor on the telephone.
With respect to respondent's proposed finding of fact No. 7, the pills prescribed would not have lasted a full three months if taken six times daily.
Respondent's proposed findings of fact Nos. 10, 11 and 12 are subordinate and No. 17 is immaterial.
COPIES FURNISHED:
Julie Gallagher
Department of Professional Regulation
130 N. Monroe Street Tallahassee, Florida 32399-0750
James W. Smith
Smith, Schoder & Rome, P.A. 605 S. Ridgewood Avenue Daytona Beach, Florida 32014
Dorothy Faircloth Executive Director Board of Medicine
130 N. Monroe Street Tallahassee, Florida 32399-0750
Tom Gallagher Secretary
Department of Professional Regulation
130 N. Monroe Street Tallahassee, Florida 32399-0750
| Issue Date | Proceedings |
|---|---|
| Feb. 18, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 15, 1988 | Agency Final Order | |
| Feb. 18, 1988 | Recommended Order | Narcotics for pain were justified, but failure to evaluate underlying problems and to require a drug free holiday justified five-day suspension. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JOHN P. CHRISTENSEN, M.D., 86-003256 (1986)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MICHAEL SHOOK, M.D., 86-003256 (1986)
LIFESTREAM BEHAVIORAL CENTER, INC. vs DEPARTMENT OF CHILDREN AND FAMILIES, 86-003256 (1986)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs STEPHEN E. NADEAU, M.D., 86-003256 (1986)
