STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2389

)

LUIS I. ARIAS, M.D., )

)

Respondent. )

) DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2484

)

MARTIN S. BELLE, 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 July 19 and 20, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Peter S. Fleitman, Esquire

Department of Professional Regulation

401 Northwest Second Avenue, Suite N621 Miami, Florida 33128

For Respondent: Paul Watson Lambert, Esquire

1355 Mahan Drive

Tallahassee, Florida 32308 STATEMENT OF THE ISSUES

Whether Respondents, who are licensed physicians in the State of Florida, are guilty of various violations of the Medical Practice Act, and, if so, what disciplinary action should be taken against them, if any.

PRELIMINARY STATEMENT

Petitioner filed Administrative Complaints against Respondents alleging that Respondents, who practice medicine together, committed various violations of the Medical Practice Act in their treatment of one patient over the course of

sixteen years, and Respondents timely requested a formal hearing on the allegations contained in those Administrative Complaints. The cases were referred to the Division of Administrative Hearings for the conduct of a formal proceeding and were subsequently consolidated for purposes of the formal hearing and the entry of a Recommended Order.

Petitioner presented the testimony of Laurence Neufeld, M.D.; Respondent Luis I. Arias, M.D.; and Respondent Martin S. Belle, M.D. Respondents Arias and Belle also testified on their own behalf. Additionally, Respondents' Exhibits numbered 1 and 2 were admitted in evidence.

Joint Exhibits numbered 1-15 were also admitted in evidence. Among those joint exhibits were the depositions of the following experts: Dale K. Lindberg, M.D.; John V. Handwerker, M.D.; Miguel Gonzalez, M.D.; Ray Edward Moseley, Ph.

D.; Thomas J. Fitzgerald, Ph.D.; and Martin Alan Cohn, M.D. The deposition of Robert T. Furman was also admitted as a joint exhibit.

All parties have submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondents have been physicians licensed in the State of Florida, with Dr. Arias having been issued license number ME 0018151 and Dr. Belle having been issued license number ME 0002207.

   
   

2. Robert Furman was a college-educated executive who was born November 16, 1905. He died November 8, 1988, of pancreatic cancer.

   
   

3. About 1940, Furman complained to his personal physician Jules Gordon, M.D., of a lack of energy. Dr. Gordon diagnosed Furman as having "a low thyroid" and prescribed a thyroid medication which improved Furman's low energy level to a degree. Furman continued to complain of lack of energy, and Dr. Gordon prescribed Dexedrine for Furman in 1943. The amount of Dexedrine first prescribed was too much, and Furman did not take it.

   
   

4. However, in 1945 Furman started a regimen of a daily 5 milligram Dexedrine pill, which helped his lack of energy allowing him to perform his daily employment responsibilities. Dr. Gordon also prescribed Seconal to Furman in 1945 which he began taking each night. Dr. Gordon also started Furman on a regimen of Testosterone/vitamin B-1/vitamin B-12 injections for the purpose of developing more energy.

   
   

5. While Furman was the president of an international real estate company in New York from 1950 until 1970, he spent quite a bit of time in the company's West Palm Beach office from 1965 until 1970. In 1970 he retired from the company and began permanently residing in South Florida.

   
   

6. In 1970, at 65 years of age, Furman started another career as marketing director for the Keyes Company in Miami and remained in that position through September, 1988.

7. Furman began seeing Drs. Belle and Arias, partners in a medical practice, in 1970 upon referral. At that time, Furman was taking two 5 mg. Dexedrine pills per day. Dr. Arias began treating Furman as his primary physician from 1970 until 1983. Dr. Belle treated Furman as his primary physician after 1983. Furman had the problem of lack of energy throughout his adult life.

   
   

8. Furman had no complaints regarding the treatment he received from Drs. Belle and Arias. He had great confidence in them.

   
   

9. As of September, 1988, Furman was taking nine 5 mg. Dexedrine pills per day and one 100 mg. and one 50 mg. Seconal pills per day.

   
   

10. Furman unsuccessfully tried to cut back on Dexedrine in 1986, but could not function without it; he was foggy, mentally slow and unable to perform his job. He also cut back on Seconal from two pills to one half pill per day. Furman was unwilling to stop taking Dexedrine, especially after taking it for so long.

    
    

11. Furman had been told by Respondents on a number of occasions that it would be better if he did not take Dexedrine and Seconal. Since he had been taking them since 1945 without any problems, he was unwilling to stop taking them because he knew he could not function without them. He continued to take them until his death at age 83, a total of 43 years. Since he never suffered any ill effects from them, he saw no reason to be concerned.

    
    

12. Furman jogged five times per week until he was 80 years old. At that time Respondents told him to stop jogging due to a back injury. He then switched to exercising twenty-five minutes per day on a stationary bicycle.

    
    

13. Furman was never contacted by anyone from the Department of Professional Regulation about his case, was unaware that the Department had subpoenaed his medical records and made them public, was never requested to give his permission for the release of his medical records, would not have given his authority to release his medical records if he had been asked, and was very distressed by the Department's subpoena and use of his records.

    
    

14. This prosecution of Drs. Belle and Arias had a tremendous effect of Furman's personal and professional life. It cost him a lot of time and money; it required him to travel to New York to continue his prescription for Dexedrine from Dr. Jules Gordon; it required him to consult with Dr. Cohn; and it affected his concentration in his day-to-day life.

    
    

15. An autopsy was performed on Robert Furman at the request of his family. The autopsy was performed by Board- certified pathologist Miguel Gonzalez, M.D. The autopsy was confined to the pancreas, but had Dr. Gonzalez seen anything else abnormal, he would have noted it in the report. No such notations were made. Dr. Gonzalez reviewed the microscopic section slides which would reveal the presence of chronic hypertensive state and Furman's general vascular condition. The review of the microscopic section slides did not reveal any evidence of sustained hypertensive state or hypertensive disease; it revealed that Furman's vascular condition was normal for a man of 83 years of age. One of the side effects of Dexedrine is hypertension; in small vessels, one might see changes that are suggestive or at least indicative that a patient had a sustained hypertensive state. The only thing seen in the microscopic slides of Furman's arteries was normal hardening of the arteries in the large blood vessels.

16. This case came about, not as a result of a patient complaint, but as a result of analyses of data from the Epson Survey, a computer review of prescriptions filled by Florida pharmacies. The computer is programmed to identify prescriptions which do not match its profile for appropriate quantities or combinations. The Epson survey identified four prescriptions for Dexedrine filled on 6/13/85, 6/14/85, 8/19/85, and 8/30/85 and three prescriptions for Seconal filled on 6/12/85, 6/14/85, and 6/14/85, written by Dr. Belle. The Epson survey identified one prescription each for Dexedrine and Seconal filled on 8/2/85, written by Dr. Arias. The DPR investigative report states that the

    
    

    data appears to indicate large amounts of Dexedrine and Seconal being prescribed by Doctors ARIAS and BELLE to a patient named Robert Furman. Investigation reveals both doctors (same practice) treating patient FURMAN for diagnosed severe depression.

    Patient is an 80 year old male who has been treated "for this condition for over 36 years. Patient is in good physical health and holds down a full time job.

    
    

17. The Department subpoenaed the medical records of patient Furman without his consent or knowledge and submitted them to one of the Department's consultants, John V. Handwerker, M.D.. Dr. Handwerker gave the Department a written letter opining that a review of the records revealed no violations of the Medical Practice Act.

    
    

18. Unsatisfied with Dr. Handwerker's opinion, the Department requested a supplemental investigation consisting of sending the patient records of Furman to a second consultant, Laurence Neufeld, M.D., who practices medicine in Tampa. Dr. Neufeld issued a conflicting written opinion stating both that the medical records of Furman supported the long-term prescribing of Seconal to him and that the prescription of Seconal to him was inappropriate.

    
    

19. Contrary to representations made to the Board of Medicine's probable cause panel by Department attorney, Leslie Brookmeyer, neither Dr. Arias nor Dr. Belle knew Dr. Handwerker, except on a casual basis; they would say "hello" while passing in the halls of Mercy Hospital where all three had hospital privileges, they did not socialize with each other, and they did not refer patients to one another.

    
    

20. The investigative reports, with the opinions of Drs. Handwerker and Neufeld, were considered by the probable cause panel of the Board of Medicine on April 27, 1987. One panel member physician commented that he had never before seen such well-documented records.

    
    

21. Dr. Arias has been certified by the American Board of Internal Medicine since 1972. He graduated first in his medical school class in 1948, studied under a British Council Scholarship in London (1950-51), studied on scholarship at Massachusetts General Hospital in the Department of Cardiology, and taught electrocardiography and phonocardiography during a fellowship at Massachusetts General Hospital, after which he practiced medicine in Cuba. He completed a residency at the Miami Heart Institute (Chief Resident) in 1961, and practiced at the V.A. Hospital in Nashville, after which he began a private practice in Miami in 1968. Dr. Arias served as Associate Professor (1967) and Clinical Professor (1968) of Medicine at the University of Miami Medical School.

    He is a member of the Florida Medical Association, the Dade County Medical Association and the American College of Physicians. He has written and published a number of articles. Dr. Arias has practiced in partnership with Dr. Belle since about 1970.

    
    

22. Dr. Belle has been certified by the American Board of Internal Medicine since 1948 and Board-certified in cardiovascular diseases since 1954. He received his medical degree from Emory University Medical School in 1939, completed his internship and residency at Grady Hospital in Atlanta, served in the Army Medical Corps, and served as Associate Clinical Professor of Medicine at the University of Miami School of Medicine (1962-present). He is a member of the Heart Association of Greater Miami (President 1962), the Florida Society of Internal Medicine, the American Society of Internal Medicine, the Dade County Medical Association, the American College of Physicians, the American Diabetes Association, and the American College of Chest Physicians.

    
    

23. Dr. Arias originally prescribed Dexedrine to Robert Furman in 1970 based upon, and after performing, a complete physical examination and based upon his past history of poor energy state, lassitude, fatigue, and sleepiness. He continued Furman on the regimen of Dexedrine which Furman had been on for the prior 25 years, because it allowed Furman to function normally in society, which he could not do without the Dexedrine. The doses prescribed to Furman were within the recommended doses set forth in the Physicians' Desk Reference (hereinafter "PDR").

    
    

24. Dr. Arias never formally diagnosed Furman as having narcolepsy, but treated him for lassitude, loss of energy, weakness, and mild depression, which are symptoms of narcolepsy. When Furman first came for treatment in 1970, the diagnosis of narcolepsy was not used by family practitioners, and Dexedrine was the medication used to treat the symptoms of lassitude, loss of energy, weakness, and mild depression. Physicians did not generally know, in the 1970s and early 1980s that the symptoms presented by Furman were narcoleptic symptoms. The narcolepsy explains why Furman could not function without Dexedrine and why he was always tired and could not function with the other medications Respondents prescribed when they attempted to switch him away from the Dexedrine.

    
    

25. Furman was the only patient out of 5,000 patients in the office of Dr. Arias and Dr. Belle whom they treated with Dexedrine. Dr. Arias tried to wean Furman from Dexedrine in the first few years of treatment with Ritalin and Ascendin, but Furman complained that the alternative methods did not work, and he returned to taking Dexedrine.

    
    

26. Dr. Belle continued to prescribe Dexedrine to Furman in 1983 for the continuing symptoms of fatigue, sleepiness, and poor energy state. Furman was even hospitalized in 1984 to try to find the reason for the poor energy state. Though Dr. Belle felt that Furman could be classified as narcoleptic, narcolepsy was not a common term for family practitioners in the 1970s. Dr. Belle did not write the diagnosis of narcolepsy in Furman's medical records, but did write the symptoms of narcolepsy, i.e., poor energy state, lassitude. Dr. Belle did not learn about sleep tests before about 1985. Furman had been doing well on Dexedrine for the prior 40 years before Dr. Belle continued prescribing it to him.

    
    

27. A dosage of Dexedrine within the PDR recommended limits for an indicated usage is in keeping with appropriate medical usage. A physician may even decide to use a dose higher than the PDR recommended dose. Not every

    person reacts in the same way to Dexedrine, and the best judge of how Dexedrine is affecting a patient is the patient's physician. A person who has taken Dexedrine on a daily basis for forty-three years, who lives a vigorous and productive personal and professional life until 83 years of age, and who suffers no adverse effect from the Dexedrine is not taking dangerous doses. Further, the only other effective drug for narcolepsy generally available during 1983 and 1984 was Ritalin, which did not work for Furman.

    
    

28. Comparison of the doses of Dexedrine taken by Furman with the doses recommended in the PDR reveals that the doses he was taking were always below the maximum PDR recommended limits.

    
    

29. Martin A. Cohn, M.D., an expert in sleep disorders, served as Chief, Sleep Disorders Center, at Mt. Sinai Medical Center in Miami Beach. Dr. Cohn examined Furman in 1987 at the request of Dr. Belle. Based upon that examination, Dr. Cohn wrote a report in which he stated:

    
    

    It is my medical opinion that the diagnosis of narcolepsy is probable but cannot be proven at this time in the face of continued treatment. It is also my opinion that it is in the best interest of the patient and society that he be continued on treatment for narcolepsy with Dexedrine especially in view of his continued functioning ability to work and relatively low dosage of medication required.

    
    

    Dr. Cohn concluded that the dosage of Dexedrine prescribed by Respondents to Furman was not excessive. Moreover, Dr. Cohn saw no evidence at the time he examined Furman of physical damage from taking Dexedrine or any evidence that Furman needed a referral to a psychiatrist.

    
    

30. Dr. Cohn describes narcolepsy as an uncommon but not rare disease, characterized by recurrent and excessive drowsiness or sleepiness from which subjects are readily awakened. It is frequently accompanied by cataplexy, a phenomenon of acute, brief, generalized muscular weakness, precipitated by feelings of emotion. If no cataplexy occurs, the disease is diagnosed as pure narcolepsy. The symptoms range from mild drowsiness to severe sleepiness in which subjects spend the day drifting in and out of sleep. The attacks may occur one or several times a day and may last minutes to hours. The sleep is similar to normal sleep but is apt to occur at inappropriate times. The usual onset of the disease is in adolescence or young adulthood, though some cases do not occur until later years. Once diagnosed, the symptoms generally remain forever, although in some cases they go into remission. Ideopathic narcolepsy is diagnosed when four symptoms are present: excessive daytime sleepiness, cataplexy, hypnogogic hallucinations, and sleep paralysis whereby the patient is unable to move although the limbs are not rigid. Only 10% of patients legitimately diagnosed as narcoleptic present all four of the above mentioned symptoms, and, therefore, most of the medical community uses the term "narcolepsy" in a broader, more general sense to mean essentially excessive, inappropriate daytime sleepiness, especially at inappropriate times. Narcolepsy can be a permanent or a transient condition and can be a by-product, of unusual psychological or physical stress. The best test to diagnose narcolepsy is the physician's clinical evaluation of the patient, and the mere response to medication alone cannot be the sole basis for diagnosing the disease. A

    combination of fatigue, lassitude, poor energy state and depression is consistent with a diagnosis of narcolepsy.

    
    

31. The most generally accepted treatment for narcolepsy is the dispensing of amphetamines. Once a person is under treatment with amphetamines, confirming a diagnosis of narcolepsy is not possible because the amphetamines affect the objective testing procedures.

    
    

32. The best way to diagnose narcolepsy is by sleep tests which did not become available in the Miami area until about 1978; even then, the medical community did not begin generally using them until about 1984. It would not have been appropriate to withdraw Dexedrine and Seconal from Furman just to administer a sleep test to confirm a diagnosis of narcolepsy. However, the treatment administered by Drs. Belle and Arias was appropriate and would probably have been confirmed, if a sleep test could have been administered and the diagnosis of narcolepsy confirmed. The treatment received by Furman from Drs. Belle and Arias is consistent with treatment for narcolepsy. Since the medical records of Drs. Belle and Arias contained symptoms of fatigue, lassitude, poor energy state and depression, that is equivalent to having written narcolepsy. Prescribing Dexedrine to Furman without referring him to a sleep disorder center was within community standards, especially in view of the length of time over which Furman took the Dexedrine. Dexedrine was a very common way years ago to treat patients with the symptoms presented by Furman. Such a diagnosis by a name other narcolepsy is consistent with the standard of medical practice in the 1970s and early 1980s. Furman would have had a deleterious effect had he been withdrawn from Dexedrine in 1970, at age 65, after taking Dexedrine for 25 years, or in 1980, at age 75, after taking it for

    35 years.

    
    

33. It would have been unethical for Respondents to discontinue treatment of Furman with Dexedrine under the circumstances of this case.

    
    

34. Furman did not develop hypertension in October, 1977, or at any time while he was treated by Respondents. There was no evidence of hypertension revealed in the 1988 autopsy of Furman. Furman's blood pressure was no cause for alarm. Furman had brief episodes of slight labile hypertension on a few visits, which was effectively reduced to normal with diuretics. A review of his blood pressure readings reveals overall normal readings for a man of Furman's age and condition.

    
    

35. If a person has taken Dexedrine in the quantities taken by Furman and does not experience an elevation in blood pressure until after 30 years, then that would indicate that the Dexedrine is not the cause of the elevation.

    
    

36. Dr. Arias did not refer Furman to a psychiatrist or for an electroencephalogram, because he did not feel Furman needed it. Dr. Belle did not refer Furman to a psychiatrist or for an EEG, because, even though Furman was mildly depressed, he saw no need to take him off his prescriptions merely to confirm or justify the prescriptions with which he was doing well; at Furman's age, he did not feel that the expense and anxiety of a psychiatric referral was justified and Dr. Belle felt that he could treat Furman's mild depression well, which was born out by Furman continuing to function successfully in society.

    
    

37. Dr. Arias originally prescribed Seconal to Furman in 1970 based on, and after performing, a complete physical examination on Furman and based upon his past history. Furman had been taking Seconal in small doses for 25 years before coming to Dr. Arias, and Arias kept him on it as the medicine of choice

    at that time for his symptoms of difficulty in sleeping. He continued Furman on the regimen of Seconal on which he had been for the past 25 years, because it allowed Furman to function normally in society, and because it could not safely be withdrawn.

    
    

38. Dr. Belle continued to prescribe Seconal to Furman in 1983, because of his symptoms and because Furman had been taking it for 38 years. It was unusual to see patients who had taken Seconal over a long period of time who were healthy and had not been harmed by it. There was no other drug to effectively substitute for Seconal that was not equally addictive. The dosage prescribed was a small therapeutic dose.

    
    

39. The Seconal was prescribed to Furman within the standard of the community, without referring him to a sleep disorder center, especially in view of the length of time over which Furman took the Seconal. Seconal was a very common way to treat patients years ago with the symptoms presented by Furman. It was appropriate to prescribe the Seconal, particularly in the low dosages prescribed. Furman would have suffered a deleterious effect had he been withdrawn from Seconal in 1970 at age 65, after taking Seconal for 25 years, or

    in 1980, at age 75, after taking it for 35 years. Dr. Cohn, the expert in sleep disorders who examined Furman in 1987, saw no adverse effects on Furman from taking the Dexedrine or the Seconal. It was common to combine the prescription of Seconal with the prescription of Dexedrine at the time Furman saw Respondents and continuing for some time. All patients do not respond the same way to Seconal. The best judge of how Seconal is affecting a patient is the patient's physician.

    
    

40. It would have been unethical for Respondents to discontinue treatment of Furman with Seconal under the circumstances of this case.

    
    

41. Withdrawing Furman from Seconal in 1970, at age 65, when he first came to Dr. Arias, after taking it for 25 years, could have been lethal. The risks of withdrawal would increase every year thereafter.

    
    

42. Dr. Arias did not treat Furman with systemic steroids between May, 1983, and September, 1983. Dr. Belle treated Furman with the systemic steroid cortisone during that period of time. Further, Dr. Arias was weaning Furman off the cortisone in September, 1983, not treating him with it. Dr. Belle had sound medical reason stated in the records for that treatment. The prescription of the cortisone met the appropriate standard of care and was within the limits of good practice.

    
    

43. There is no evidence that Furman needed a referral to a psychiatrist for the mild depression from which he suffered but from which he experienced no disabling effects.

    
    

44. Dr. Neufeld testified on behalf of Petitioner that Dr. Arias and Dr. Belle fell below minimum standards by not referring Furman to a psychiatrist. Dr. Lindberg, the other expert witness on behalf of Petitioner, disagreed with Dr. Neufeld on that point; Dr. Lindberg testified that Furman should not have been referred to a psychiatrist. Dr. Neufeld himself does not refer his patients to a psychiatrist for slight depression and Dr. Neufeld recognizes that Furman did not have severe depression.

    CONCLUSIONS OF LAW

    
    

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

    
    

46. Count One of the Administrative Complaint filed against Dr. Arias and Count One of the Administrative Complaint filed against Dr. Belle each charge that each Respondent violated Section 458.331(1)(cc), Florida Statutes, by prescribing Dexedrine, a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes, to Robert Furman for other than an authorized purpose. The Administrative Complaint against Dr. Arias alleges that he did so between July, 1970, and March, 1984. The Administrative Complaint filed against Dr. Belle alleges that he did so between the dates of April, 1983, and April, 1986. Section 458.331(1)(cc) did not become effective until July, 1980, upon the passage of Chapter 80-354, Laws of Florida. In the Prehearing Stipulation filed in this cause, Petitioner agreed that no prosecution can be maintained for violation of that statute prior to July of 1980.

    
    

47. One of the authorized purposes for the prescription of Dexedrine is narcolepsy. Although neither Dr. Arias nor Dr. Belle formally diagnosed Furman as suffering from narcolepsy, it is clear that both physicians diagnosed Furman as having the symptoms of narcolepsy and treated him with Dexedrine for those symptoms. At the time that Furman began his treatment with Dr. Arias he had been maintained on a daily regimen of Dexedrine, Seconal, and Testosterone for a period of 25 years. At the time there was no prohibition against the prescription of Dexedrine for any medical purpose. By the time that Dexedrine became a Schedule II controlled substance restricted to the treatment of narcolepsy, Furman had been taking Dexedrine for a period of 35 years. To have endangered Furman's life by withdrawing Dexedrine and Seconal from him in order that sleep tests could be performed to confirm a diagnosis of narcolepsy would have been unethical, below community standards, contrary to Dr. Arias' and Dr. Belle's sound medical judgments, and not in the best interests of the patient.

    
    

48. The testimony is uncontroverted that withdrawing Furman from Dexedrine and Seconal in order to run sleep tests could have been fatal. The suggestion of the Department's expert Dr. Neufeld that Dexedrine and Seconal should have been withheld from Furman anyway and/or that the patient should have been abandoned is shocking.

    
    

49. Section 458.331(1)(cc) allows the prescription of Dexedrine for narcolepsy and does not prohibit the prescription of Dexedrine for the symptoms of narcolepsy. The evidence is overwhelming that the symptoms for which Furman was being treated -- fatigue, lassitude, poor energy state, and mild depression

    -- are symptoms of narcolepsy. None of Petitioner's experts examined Robert Furman although he was alive during the time that these cases were being investigated by the Department. No competent, substantial evidence has been offered that Furman did not suffer from narcolepsy. Neither of Petitioner's expert witnesses who testified possesses the same qualifications as medical practitioners as Dr. Arias or Dr. Belle; neither is experienced in the treatment of narcolepsy; neither has ever treated a patient for 18 years let alone closely observed and monitored a patient for 18 years as Dr. Arias and Dr. Belle did with Robert Furman. The definition of narcolepsy recited in the Findings of Fact in this Recommended Order is the definition of narcolepsy which has been approved by the Board of Medicine. Department of Professional Regulation, Board of Medicine v. Rizzo, 9 F.A.L.R. 2206 (1986); Department of Professional Regulation, Board of Medicine v. Klotz, 6 F.A.L.R 4963 (1984). The definition of

    narcolepsy relied upon by both Doctors Neufeld and Lindberg are very different than that definition approved by the Board and cannot form the basis for discipline in this matter.

    
    

50. This is not a case in which a patient appeared at Dr. Arias' and Dr. Belle's office after the statutory restriction of the prescription of Dexedrine, and the Drs. simply started him on a Dexedrine regimen. This is clearly a case in which both Respondents continued to carry out a long term regimen which was successful for the patient, which was in the patient's best interests, and from which the patient could not be withdrawn. Additionally, both Dr. Arias and Dr. Belle did make efforts to substitute different medications, and when they did so the patient's symptoms returned and he was unable to function. The competent, substantial evidence in this cause is that both Dr. Arias and Dr. Belle properly and appropriately treated Robert Furman with Dexedrine, within the recommended dosage, for his narcoleptic symptoms, in good faith and sound professional medical judgment. Their attempts to withdraw him were unsuccessful, and their continuation of prescribing Dexedrine to him was clearly appropriate. The testimony is uncontroverted that Robert Furman was the only patient out of 5,000 patients in the office during the time period involved who was receiving a prescription of Dexedrine from either Dr. Arias or Dr. Belle. Petitioner has failed to prove that Respondents prescribed Dexedrine to Robert Furman for an unauthorized purpose.

    
    

51. Count Two of the Administrative Complaint charges Respondent Arias with both failing to discontinue treatment with Dexedrine when Robert Furman developed hypertension in October of 1977, and with prescribing Seconal to Furman between July, 1970 and April, 1986. Count Two further alleges that failure to discontinue treatment with Dexedrine and the prescribing of Seconal over a fourteen-year period was inappropriate, not in the patient's best interests, and was done other than in the course of the physician's professional practice. (The Administrative Complaint does not specify which fourteen years of the sixteen- year period specified constituted inappropriate treatment). As to Dr. Belle Count Two is the same in that the Administrative Complaint filed against him alleges that Furman suffered from hypertension between April, 1983, and April, 1986, that Dr. Belle failed to discontinue treatment with Dexedrine in a patient suffering from hypertension, that he prescribed Seconal to Furman for sleep during that time period, and that doing so for that three-year period was inappropriate and not in the patient's best interests. Although the Administrative Complaint against Dr. Belle alleges that that conduct is in violation of Section 458.331(1)(a), Florida Statutes, the parties appear to have agreed in the Prehearing Stipulation that the violation of Subsection (a) alleged in the Administrative Complaint against Dr. Belle should have been Subsection (q) the same subsection charged against Dr. Arias in the Administrative Complaint filed against him. Although Subsection (q) prohibits prescribing a controlled substance other than in the course of the physician's professional practice, the parties have stipulated that that subsection did not become effective until July 1, 1979, and, therefore, no violation of that section prior to its effective date will be considered since that subsection does not apply retroactively.

    
    

52. Neither Dr. Arias nor Dr. Belle diagnosed Furman as having hypertension although he did have occasions of elevated blood pressure, which episodes were successfully treated with appropriate medication. The autopsy of Robert Furman revealed no hypertension or hypertensive disease. Accordingly, Petitioner's premise that Dexedrine should have been discontinued when Furman

    developed, and during the time periods that Furman suffered from, hypertension is invalid. Further, there is no competent evidence that the Dexedrine taken by Furman for most of his adult life caused or contributed to those episodes of elevated blood pressure.

    
    

53. Similarly, the evidence is clear that the prescribing of Seconal to Furman based upon the symptoms from which he suffered was appropriate and in his best interests. As specifically found in this Recommended Order, the dosages of Dexedrine and Seconal prescribed for Furman were appropriate dosages and were not excessive. Further, neither Dr. Arias nor Dr. Belle started Furman on his regimen of Seconal, rather, they "inherited him" as a patient after he had been taking Dexedrine and Seconal for several decades. The evidence is also clear that withdrawing him from those medications would have endangered his life, and endangering a patient's life is not in the patient's best interests. Rather, preserving the patient's life is in the course of the physician's professional practice. Lastly, the overwhelming weight of the expert opinion is that the prescription of Seconal to Furman was within community standards. The combination of Dexedrine and Seconal was not only appropriate, but was the medication of choice, at the time that Furman started his patient-physician relationship with Drs. Arias and Belle.

    
    

54. Counts Three of both Administrative Complaints charge Respondents with treating Furman with systemic steroids without sound medical reason for such treatment between May, 1983, and September, 1983. The Administrative Complaints charge that such conduct violates Section 458.331(1)(n), Florida Statutes, now Section 458.331(1)(m), Florida Statutes. Dr. Arias did not treat Furman with systemic steroids between May, 1983, and September, 1983. Dr. Belle did so.

    Dr. Belle did so in another attempt to alleviate the patient's symptoms with a different medication. It was discovered that the patient took more of the steroids than had been prescribed for him, and Dr. Arias placed him on a schedule to wean him from that medication. The short-term treatment of the patient with systemic steroids is documented in the patient's medical records, the same medical records described by one member of the probable cause panel as well-documented. Petitioner has also failed to prove a violation of the Medical Practice Act by either Dr. Arias or Dr. Belle as alleged in Counts Three of the Administrative Complaints filed against them.

    
    

55. Counts Four of the Administrative Complaints allege that Respondents failed to refer Furman to a psychiatrist for evaluation and treatment of his depression. Therefore, it is alleged that Respondents have violated Section 458.331(1)(t), Florida Statutes, by 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 circumstances and conditions. Once again, the Prehearing Stipulation filed by the parties stipulates that Subsection (t), Florida Statutes, did not become effective until July 1, 1979, and, therefore, no conduct based upon that statute prior to its effective date can form the basis of a violation of that subsection. It is uncontroverted that Robert Furman suffered from a mild depression. That depression had no disabling effect on his life but was one of the additional symptoms of the narcolepsy from which he probably suffered.

    There is no requirement, either statutory or case law, that a physician refer a mildly depressed patient to a psychiatrist rather than treating that mild depression himself. The only testimony that Furman should have been referred to a psychiatrist is the testimony of Dr. Neufeld who admitted that he does not refer his own patients who suffer from mild depression to a psychiatrist.

    Petitioner has failed to prove a violation of the Medical Practice Act by the failure of Drs. Arias and Belle to refer Furman to a psychiatrist.

56. In its proposed recommended order, Petitioner appears to take the position that Testosterone is a systemic steroid which should not have been prescribed to Furman. There is no evidence in this record that Testosterone is a systemic steroid. Further, Count Three of each of the Administrative Complaints filed in this cause alleges the inappropriate prescription of systemic steroids during a four month period in 1983, the period during which hydrocortisone, a systemic steroid, was prescribed. Although it was appropriate for Petitioner to amend its Administrative Complaints filed in this cause in its Prehearing Stipulation by restricting its allegations of statutory violations to time periods when those statutes were in effect, it is not appropriate to attempt to amend the Administrative Complaints in its proposed recommended order by suggesting for the first time an inappropriate prescription of Testosterone. Accordingly, no violations are found based upon that additional ground.

    Although the Prehearing Stipulation indicates that the prescription of Testosterone during that four-month period is included in Counts Three of the Administrative Complaints, a reading of those Administrative Complaints belies that proposition. Further, it is illogical to believe that Petitioner would charge Drs. Arias and Belle with committing statutory violations for prescribing Testosterone during a four-month specific time period but would not complain about Ds. Arias and Belle treating Furman with Testosterone during the remainder of the eighteen years during which they treated him.

    
    

57. During the final hearing in this cause, Petitioner argued that the allegation found only in Counts Four of the Administrative Complaints -- that Respondents violated Section 458.331(1)(t), Florida Statutes, by committing gross or repeated malpractice or 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 circumstances and conditions -- applies to all four counts in each of the Administrative Complaints. Petitioner reasons that to be so because Count Four incorporates by reference the factual allegations contained in the prior counts. Such an argument requires an illogical reading of the Administrative Complaints filed in these causes. Each count of each Administrative Complaint, although incorporating by reference factual allegations in prior counts, contains specific factual allegations as to each count and then alleges the statutory violation charged based upon those facts. If the Administrative Complaints had been written with all factual allegations followed by separate counts containing only statutory violations, Petitioner's reading of the Administrative Complaints would be correct. Such is simply not the case. Each count appears to stand on its own and none of the statutory violations alleged is incorporated by reference or otherwise into any other count but simply appears in a singular count.

    
    

58. Even if Petitioner's reading of the Administrative Complaints were correct, and Respondents had indeed been charged with gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances as to each of the individual factual allegations contained in the Administrative Complaints, or even based upon the totality of all factual allegations found within the Administrative Complaints, Petitioner has failed to prove that allegation. Respondents met prevailing community standards as to each aspect of their treatment of Furman and further met community standards as to their overall treatment of that patient. They treated him solely in his best interests, solely in good faith, and solely in the course of their professional practice. Their treatment of Robert Furman was approved by the majority of experts who testified in this cause, and the testimony of the two experts who criticized

their treatment has been rejected for the same reasons that that testimony was rejected in the Klotz and Rizzo cases, supra, by the Board of Medicine.

Petitioner has offered no evidence that any similar physician treating a patient under similar conditions and circumstances would have done so differently than Drs. Arias and Belle. In short, Petitioner has failed to prove any of the statutory violations alleged in the Administrative Complaints filed against Drs. Arias and Belle.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondents not guilty of

the allegations contained in the Administrative Complaints filed against them

and dismissing those Administrative Complaints, with prejudice.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of December, 1989.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1989.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NOS. 87-2389 AND 87-2484

1. Petitioner's proposed findings of fact numbered 1-6, 8, 9, 11, 12, 14, 16, 17, 19, 20, 22, 24, 25, 29-34, and 64 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 13, 15, 21, 23, 26, 48, and 60 have been rejected as not being supported by the competent, substantial evidence in this cause.

3. Petitioner's proposed findings of fact numbered 18, 35, 36, 38-47, 49, 51-59, 63, and 65-96 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, conclusions of law, or argument of counsel.

4. Petitioner's proposed findings of fact numbered 10, 27, 37, and 50 have been rejected as being subordinate to the issues under consideration in this cause.

5. Petitioner's proposed findings of fact numbered 7, 28, 61, and 62 have been rejected as being irrelevant to the issues under consideration herein.

6. Respondents' proposed findings of fact numbered 1-17, 19, 20, 22, 23, 25, 26, 29 the first 32, 34, the first 35, the second 40, 41, 45-47, 51, 53, and

   54 have been adopted either verbatim or in substance in this Recommended Order.

7. Respondents' proposed findings of fact numbered 18, 24, 28, the second 35-the first 40, 43, 44, 48, and 49 have been rejected as being unnecessary for determination of the issues under consideration in this cause.

8. Respondents' proposed findings of fact numbered 21, 27, the second 32, 33, 50, and 52 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, recitation of the testimony, or argument of counsel.

COPIES FURNISHED:

Paul Watson Lambert, Esquire 1355 Mahan Drive

Tallahassee, Florida 32308

Peter S. Fleitman, Esquire

Department of Professional Regulation

401 Northwest Second Avenue Suite N621

Miami, Florida 33128

Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE,

Petitioner,

DPR CASE NUMBER: 0069851

vs. DOAH CASE NUMBER: 87-2389

LICENSE NUMBER: ME 0013151

LUIS I. ARIAS, M.D.,

Respondent.

/ DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICINE,

Petitioner,

vs. DPR CASE NUMBER: 0069850

DOAH CASE NUMBER: 87-2484 MARTIN S. BELLE, M.D., LICENSE NUMBER: ME 0002207

Respondent.

/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on February 3, 1990 in Ft. Lauderdale, Florida, and on April 7, 1990, in Tallahassee, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Petitioner's Exceptions to the Recommended Order, and Respondents Response to Petitioner's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Attorney at Law. Respondents were represented by Paul Watson Lambert, Attorney at Law. Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.

RULINGS ON EXCEPTIONS

1. Respondent's Objection to and Motion to Strike Petitioner's Exceptions to Recommended Order is DENIED. This cause was continued from the previous meetings in order to permit both parties to file appropriate pleadings with respect to the Conclusions of Law. Only Petitioner filed Exceptions. There is no time limit explicitly set by statute or rule relating to the filing of exceptions to Conclusions of Law. Cf. Rule 28-5.404, F.A.C., regarding exceptions to Findings of Fact.

2. Petitioner's Exception Number 1 is granted on the bases that the Board accepts and agrees with the reasoning set forth by Petitioner. Furthermore, the Board finds that the language of Section 458.331(1)(cc), Florida Statutes, does prohibit prescribing the substances at issue for symptoms alone. The physician can treat the symptoms of narcolepsy only when the patient has narcolepsy, as established by objective testing.

   
   

3. Petitioner's Exception Number 2 is granted on the bases that the Board agrees with the reasoning expressed by Petitioner. The Board adopts the language proposed by Petitioner on the last page of its Exceptions as the Board's Conclusion of Law in lieu of the language excepted to in the Recommended Order.

FINDINGS OF FACT

1. Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.

   
   

2. There is competent substantial evidence to support the findings of fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

   
   

2. The. Board rejects, sua sponte, the Hearing Officer's recommended conclusions of law set forth on pages 25 and 26 of the Recommended Order with regard to the drafting of and application of Count IV of the Administrative Complaint. While the Board does not disagree that none of the statutory violations alleged is incorporated by reference into later counts, it does disagree with the finding that the same is true with regard to factual matters alleged. It is explicitly stated that specified factual allegations previously alleged are realleged and incorporated by reference in Count IV. The Hearing Officer asserts no authority for her position that such pleading is insufficient and the Board rejects that position. The Board accepts the ultimate conclusion that the allegations of that Count were not proven; thus, the result in this case does not change in spite of the rejection of the conclusion of law rejected above.

   
   

3. Based on the ruling above and the rulings on Petitioner's Exceptions, the Board rejects all Conclusions of Law.

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE: DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified nail to Luis I. Arias, M.D. , 1444 Biscayne Boulevard, Suite 300, Miami, Florida 33132; Martin S. Belle, M.D., 1444 Biscayne Boulevard, Suite 300, Miami, Florida 33132; and Paul Watson Lambert, Attorney at Law, 1355 Mahan Drive, Tallahassee, Florida 32308, by U.S. Mail to Linda M. Rigot, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Stephanie A. Daniel, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 2nd day of May, 1990.

Docket for Case No: 87-002389

Orders for Case No: 87-002389