STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE,)

)

Petitioner, )

)

vs. ) CASE NO. 87-0225

) WILLIAM LARRY PIGG, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this proceeding was held on April 14, 1988, in Orlando, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: John Namey, Esquire

22 East Pine Street Orlando, Florida 32801

For Respondent: Deborah J. Miller, Esquire

One Biscayne Tower, Suite 2500 Two South Biscayne Boulevard Miami, Florida 33131

ISSUES AND BACKGROUND

The amended Administrative complaint, forwarded to the Division of Administrative Hearings on January 20, 1987, alleges that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of alcohol and substance abuse; that Respondent attempted to treat patients while under the influence of alcohol, constituting gross or repeated malpractice or failure to practice medicine with the level of care recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances; and that Respondent failed to fulfill a statutory or legal obligation placed upon a licensed physician.

After lengthy discovery and negotiations and Respondent's submittal to an inpatient mental and physical examination, the parties filed a stipulation substantially limiting the issue to the conditions under which Respondent should be allowed to return to the practice of medicine and appropriate monitoring once he returns to practice.

At the final hearing, DPR presented the testimony of two witnesses: Lynn Hankes, M. D., qualified as expert in addictionology without objection, treated Dr. Pigg for alcoholism in 1985 and examined him as an inpatient in January, 1988. Robert A. Goetz, M. D., qualified without objection as an expert in the

field of impaired physicians, has been the director of Florida's Physicians' Recovery Network since February 1988, and has known Dr. Pigg since shortly after that time.

Respondent's sole witness was Milton R. Burglass, M.D., qualified without objection as an expert in psychiatry and in addiction treatment. Dr. Burglass reviewed Dr. Pigg's records and files and interviewed him on April 7, 1988, in anticipation of this hearing.

After the hearing the transcript was filed and both parties submitted proposed recommended orders. Specific rulings on the proposed findings of fact are found in the attached appendix.

FINDINGS OF FACT

1. William Larry Pigg is, and has been at all time material, a licensed physician in the State of Florida, having been issued license number ME 0040625.

   
   

2. The parties in their prehearing stipulation filed on February 15, 1988, agree to the following:

   
   

   1. Peitioner, the Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes.

   2. Since at least the summer of 1984, Respondent has had a problem with alcohol abuse.

   3. On or about June 13, 1985, Respondent entered the Impaired Physician's Program. Respondent completed an alcohol treatment program in Miami, Florida. Thereafter, Respondent also completed an extended program in Mississippi.

   4. On or about December 17, 1985, Respondent was granted staff privileges at Holmes

      Regional Medical Center in Melbourne, Florida. In order to obtain staff privileges, Respondent signed a statement agreeing to do the following:

      1. to abide by the Aftercare Con- tract of the Mississippi State Medical Association Impaired Physician's Program; and

      2. to submit to blood alcohol levels [sic] at any time at the request of any physician on the staff of Holmes Regional Medical Center.

   5. In or about April 1986, Respondent began to abuse alcohol again.

   6. On or about April 12, 1986, Respondent was attempting to perform a right hip reduction on a patient at Holmes Regional Medical Center. The patient in question was legally intoxicated and a large muscular man.

      Respondent, in attempting to relax the patient, ordered a large dose of narcotics, including Demerol and Nubain, as well as Phenergan and Valium.

   7. On or about the evening of April 12, 1986 or the morning of April 13, 1986, Respondent left the emergency room, took a Phenergan tablet and went home.

   8. Phenergan is the brand name for prometnazine Hydrochloride. Phenergan can cause drowsiness or impair the mental and/or physical abilities of the individual taking the drug.

   9. Later on the same evening, the Emergency Department Physician, Dr. Wagner, spoke with Dr. Pigg by telephone in reference to two patients with fractures that required orthopedic intervention. Respondent agreed

      to come and resume care for the patients. However, Respondent never came to the medical center and could not be located by police.

   10. On or about April 16, 1986, Respondent's wife contacted the Melbourne Police

       Department because her husband had come home intoxicated.

   11. On or about June 7, 1986, Respondent was arrested for driving while under the

       influence of alcohol and reckless driving.

   12. On or about June 30, 1986, the Director of the Florida Medical Foundation Committee on Impaired Physicians, Roger A. Goetz, M.D., advised the Petitioner, by letter, that Respondent was not progressing satisfactorily with the program and had not complied with all aspects of his aftercare contract.

   13. Respondent is and has been at all times alleged in the above stipulated facts, unable to practice medicine with reasonable skill and safety to patients by reason of alcohol abuse.

1. No evidence was presented as to substance abuse, other than alcohol. Nor was there evidence that Dr. Pigg suffers from a mental condition. Although his records reflect some prior diagnosis of a passive/aggressive personality disorder, the prevailing thought in the addictionology community is that psychiatric diagnoses are invalid until an individual has been sober long enough to assure that the problem is not solely the alcohol's effect on the individual. There is no evidence that Dr. Pigg has had this requisite period of sobriety since 1984, and particularly the time that he was examined by Dr. Burglass, the only psychiatrist to testify in this proceeding.

   
   

2. Of the experts who testified, Dr. Hankes is most familiar with Dr. Pigg, having been his primary treating physician in the past, and having examined him recently over several days as an inpatient. Dr. Hankes found that Dr. Pigg progressed from the mid stage of alcoholism to the early late stage of this disease between 1985 and 1988.

3. In addition to Dr. Hankes' program at South Miami Hospital, Dr. Pigg has undergone primary treatment at a series of facilities in Georgia, Mississippi and Florida, all of which have an excellent reputation. At this point, in Dr. Hankes' opinion, he is a treatment failure. He has, at various times in his treatment experience also undergone detoxification at a Myers Act facility, attempted Antabuse therapy, and tried and rejected Alcoholics Anonymous.

   
   

4. In spite of the past failures, the experts concurred that Dr. Pigg, like other alcoholics, is capable of recovery and that once recovered, Dr. Pigg would be capable of practicing medicine safely. All concurred that the recovery must be verified prior to Dr. Pigg's return to practice, and that thereafter the recovery must be monitored for an unforeseeable period of time.

   
   

5. Dr. Hankes' advice, based on his concern as Dr. Pigg's treatment provider and primary therapist, is a six-part program:

   
   

   1. that addiction therapy continue on an outpatient basis, at least weekly, by a certified alcohol or addiction professional;

   2. that Dr. Pigg engage in psychotherapy with a qualified psychiatrist knowledgeable about addictive disease, the frequency to be determined by the psychiatrist;

   3. that a primary internist or family general practitioner monitor his physical well-being, especially his liver dysfunction;

   4. that Dr. Pigg participate in Alcoholics Anonymous, with a lay individual sponsor, as well as engage in International Doctors in Alcoholics Anonymous with a recovering physician sponsor;

   5. that Dr. Pigg be assigned a monitoring physician, knowledgeable in addictive disease, who has the authority to require random, unannounced surprise testing of blood or

      urine and that personal contact be made every two weeks and telephone contact in the alternate weeks;

   6. that the treating and monitoring individuals report on a quarterly basis to Dr. Roger Goetz, the Recovery Network director and that at the end of a two-year period Dr. Pigg be examined again by Dr. Hankes who would make his recommendation to Dr. Goetz. Dr. Pigg would also have the right to go to another AMA approved treatment provider for a second opinion.

      
      

6. Dr. Hankes distinguishes between the state of being "dry" or free from alcohol use for a period, and recovery from alcoholism which requires a personal transformation with some undefined indicators.

   
   

   Dr. Hankes is convinced that the latter state is essential for real recovery and that Alcoholics Anonymous is the most effective, though not exclusive, route to that state.

7. Although Dr. Hankes recommends a two year period during which Dr. Pigg would not be permitted to practice, he concedes that recovery could be effective in less time and that he would readily endorse his return to practice if the recovery were completed sooner. He describes Dr. Pigg as a "very competent physician", a "very bright guy", a "multi-talented individual, who flies airplanes and does wonderful things in his life."

   
   

8. None can predict the time required for recovery, but each of the three experts recommends a period of one to two years of verified sobriety prior to the return to practice.

   
   

9. Dr. Burglass recommends neither Alcoholics Anonymous participation nor the multi-part program outlined by Dr. Hankes. Since Alcoholics Anonymous and the other treatment/recovery models have been unsuccessful, Dr. Burglass suggests that Dr. Pigg be allowed to devise his own method of achieving recovery; he emphasizes that the goal, and not the route to that goal, is the concern here. He recommends that sobriety be verified for a period of one year and thereafter Dr. Pigg be allowed to return to practice with monitoring for approximately three years.

   
   

10. The evidence, weighed and considered as a whole, fails to establish that an absolute two-year suspension from medical practice is necessary or that involvement in Alcoholics Anonymous is essential.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.57(1), F.S. and 455.225(4), F.S.

    
    

12. The parties in their prehearing statement have stipulated that, based on facts recited in paragraph 2, above,

    
    

    ...Respondent has violated Section 458.331(1)(s), F.S., by being unable to practice medicine with reasonable skill and safety to patients by reason of use of alcohol." (page 3, joint exhibit #1)

    
    

13. As alleged, Respondent has violated Section 458.331(1)(g), F.S. (1987) solely by virtue of his violation of Section 458.331(1)(s), F.S.

    
    

14. The parties have stipulated that Count two of the amended administrative complaint, alleging a violation of Section 458.331(1)(t), F.S., is dismissed with prejudice.

    
    

15. Section 458.331(1)(s), F.S. (1985) provides, in pertinent part:

    
    

    [The following acts shall constitute grounds for which disciplinary actions may be taken:]

    
    

    (s) Being 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 physician 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. In any proceeding under this paragraph, neither the record of proceedings nor the orders entered by the board shall be used against a physician in any other proceeding.

    
    

16. The issues in this proceeding, while factual, are issues uniquely within the expertise of the Board of Medicine, which Board must determine in accordance with its experience and policy, what best achieves rehabilitation and protects the public. In other words, the Board should have "special insight" in the matter for determination. McDonald v. Department of Banking and Finance.

346 So.2nd 569, 579 (Fla. 1st DCA 1977), School Board of Leon County v. Hargis,

400 So.2nd 103, 107 (Fla. 1st DCA 1981). Nonetheless, my recommendation is made based upon a consideration of the testimony of the three highly articulate and sincere witnesses presented by the parties.

RECOMMENDATION

Based on the foregoing, it is, hereby RECOMMENDED:

That William Larry Pigg, M.D. be suspended from the practice of medicine for an indefinite period, provided that he be given an opportunity to appear before the Board at twelve month intervals to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients.

That demonstration should include, as a minimum:

a ) That he has totally abstained from the use of alcohol for a period of twelve months, as evidenced by frequent unannounced random collection of blood samples by an agent designated by the Board.

1. That he has been under the continuous care and supervision of a physician qualified to provide addiction therapy and that, if recommended by that individual after a necessary period of sobriety, he has also undergone a psychiatric evaluation to determine the existence of mental disease or disorder. If detected, the disease or disorder must be treated.

   
   

2. That he has been evaluated successfully participated in Alcoholics Anonymous or other similar peer support group program. Successful participation means frequent regular attendance at meetings and the association with a qualified sponsor from the program.

   
   

3. That he has been evaluated and recommended for return to practice by Dr. Hankes or other treatment professional designated by the Board. However, if the recommendation is negative, Dr. Pigg should be permitted to obtain a second opinion independent of the Board's designated evaluator, from an individual other than that described in b), above, who is also qualified in the field of addictionology.

The length and type of monitoring necessary once Dr. Pigg returns to practice should be determined at that time, based on recommendations of the professionals responsible for assisting in his recovery.

DONE and RECOMMENDED this 4th day of August, 1988, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0225

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

Petitioner's Proposed Findings

1. Adopted in paragraph 2.

2. Adopted in paragraph 1.

3-13. Adopted in paragraph 2, incorporating the parties pre-hearing stipulation.

14. Adopted in paragraph 7.

Respondent's Proposed Findings

1-4. Incorporated in Issues and Background statement.

5. Adopted in paragraph 2, incorporating the parties' prehearing stipulation.

6-8. Included in Background Statement.

9-12. Rejected as unnecessary restatement of the witnesses' testimony.

1. Adopted in substance in paragraph 3.

2. Included in Background Statement.

15-16. Adopted in substance in paragraph 4.

1. Adopted in paragraph 6.

2. Adopted in paragraph 9.

19-20. Adopted in paragraph 7.

1. Adopted in paragraph 8.

2. Adopted in paragraph 9.

23-24. Incorporated in substance in the Background statement.

25-28. Adopted in substance in paragraph 11, otherwise rejected as cumulative and unnecessary.

29. Adopted by implication in paragraph 12.

30-31. Rejected as cumulative and unnecessary.

1. Adopted in paragraph 12.

2. Rejected as a conclusion of law.

3. Rejected as contrary to the evidence. Abstinence alone is insufficient.

4. Adopted in substance in paragraphs 3, 11, and 12.

5. Rejected as unnecessary.

COPIES FURNISHED:

John Namey, Esquire

22 East Pine Street Orlando, Florida 32801

Deborah J. Miller, Esquire

One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131

Dorothy Faircloth Executive Director Board of Medicine

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-000225

Orders for Case No: 87-000225