STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1318

)

RALPH E. HELLAND, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on May 31, 1988 before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether Respondent's license as a naturopath in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

APPEARANCES

Petitioner: John R. Alexander, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Respondent: John M. Fitzgibbons, Esquire

600 North Florida Avenue, Suite 1550

Tampa, Florida 33602-4505 BACKGROUND INFORMATION

On March 4, 1988, the Secretary, Department of Professional Regulation, (DPR) executed an Administrative Complaint in this case alleging several violations by Respondent of Section 462, Florida Statutes, by prescribing a legend drug other than in the course of his professional practice; failing to perform a statutory obligation by prescribing in good faith; employing a trick or scheme in the practice of medicine; and being guilty of gross or repeated malpractice.

Respondent requested a formal hearing which was set by Hearing Officer Ayers and held as scheduled by the undersigned.

At the hearing, Petitioner presented the testimony of Arthur Fierman- Rentas, an investigator with the Drug Enforcement Administration, (DEA); and Robert S. DuBose and Robert D. Sinclair, detectives with the Tampa Police Department, (TPD), and introduced Petitioner's Exhibits 1 through 7. Respondent presented the testimony of Cindy Stanbro, a detective with TPD and introduced Respondent's Exhibit A.

Subsequent to the hearing, Respondent provided the undersigned with a transcript of the hearing and both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, Respondent was licensed as a naturopath in Florida under license number NA0000530, issued by the State of Florida, and maintained an office for his practice at 7202 East Broadway, Tampa, Florida. The Petitioner, Board of Medicine, is the state agency charged with regulating the practice of naturopathy in Florida.

   
   

2. Pursuant to an ongoing investigation, on September 24, 1987, Detective Robert S. DuBose, acting in an undercover capacity in the name of Robert Adams, went to the Respondent's office to try to buy a controlled drug. He was accompanied by several other police officers and Mr. Fierman-Rentas, a DEA agent, all of whom remained outside in a car across the street, attempting to record the transmission from the body brig Mr. DuBose was wearing.

   
   

3. On entering the Respondent's office, Mr. DuBose introduced himself to the doctor and told him he had been cut off from his prior source of Valium pills formerly supplied by an unstated friend. When the Respondent asked DuBose why he wanted the Valium, DuBose replied that nothing was wrong with him but that the Valium just made him feel good. Dr. Helland took DuBose's temperature, blood pressure, and pulse rate, stating at the time that he had to have some support for the prescription but that he knew nothing was wrong with DuBose.

   
   

4. As a matter of fact, at that time, DuBose was under the care of another physician for a stomach condition not treated by Valium, but did not advise Respondent of this. DuBose's actual condition had no bearing on his relationship with the Respondent.

   
   

5. During their conversation, Respondent asked DuBose how long he had been taking Valium and DuBose replied that though he had been taking it for 6 months, he was not sick but just wanted it because of how it made him feel. Respondent indicated he knew DuBose had nothing wrong with him but he had to put something down in his records. As a result, DuBose laughingly stated he was nervous. After filling out a small card on which he wrote some of the information given him by DuBose, Respondent then wrote out a prescription for Robert Adams for 30 tablets of 10 mg Valium for which DuBose paid him $30.00. At no time did Respondent take a proper medical history from DuBose or ask him if he was under the care of another physician.

   
   

6. Valium is the commercial brand name of Diazepam, a Schedule IV controlled substance.

   
   

7. On October 1, 1987, DuBose returned to Respondent's office, again accompanied by the other officers who waited in cars across the street. DuBose asked for a refill of his prescription and after Respondent asked DuBose what his name was and looked at his patient card, he indicated that DuBose was three days early for a refill. Thirty pills, prescribed for use at the rate of three a day, would not be used up for 10 days. When Respondent pointed this out, DuBose indicated he had given some to his girlfriend. Dr. Helland responded that he didn't care what DuBose did with them, but that he should come for a refill only every 10 days. However, Respondent stated that since he had obviously not explained that fully on the prior visit, he would write another prescription for 30 Valium tablets which he did after giving DuBose a cursory

   examination. When DuBose asked if an exam would be necessary each visit, Respondent stated that it would. Respondent seemed concerned that DuBose not suffer any side effects from the Valium and counselled him to stop taking them. Nonetheless, he wrote out the prescription which he gave to DuBose upon payment of a $30.00 fee. Again, DuBose indicated no medical support for a prescription for Valium.

   
   

8. DuBose went back to Respondent's office on October 27, 1987, this time in the company of Detective Sinclair, also under cover as Donald Simpson, a construction worker. Sinclair waited in the waiting room while DuBose saw Respondent who took his pulse and blood pressure and listened to his heart and lungs. When DuBose asked why they had to go through that each time, Respondent replied that he had to make sure DuBose was all right. After receiving his third prescription for 30 Valium tablets from the Respondent, DuBose asked him if he could see his friend. Respondent asked what was wrong with the friend and DuBose stated he didn't think anything was wrong. Respondent stated then that he'd have to have some reason to prescribe for Sinclair. DuBose then got Sinclair, introduced him to the doctor, and left them alone.

   
   

9. Sinclair had a brief introductory conversation with the Respondent during which Respondent asked what he wanted. Sinclair indicated he wanted Percodan, a Schedule II drug, because it made him feel good. Respondent would not prescribe Percodan for Sinclair stating he needed something more to justify any prescription. Respondent asked if Sinclair were nervous or needed something to help him sleep, which Sinclair denied. Respondent then said he had to have some "damned" thing to justify a prescription. Sinclair continued to decline to say more than it made him feel better. Respondent ultimately indicated that Sinclair must be nervous and needed a tranquilizer and Sinclair finally agreed. Respondent then took some personal information from him, took his blood pressure, temperature, and pulse, and listened to his heart and lungs. He then wrote out a prescription for 30 Valium tablets, whereupon Sinclair paid him

   $30.00 and left. At no time did Respondent take any medical tests or ask if Sinclair was under the care of another physician.

   
   

10. When DuBose again went to Respondent's office, on November 19, 1987, he had Detective Stanbro with him posing as his girlfriend. As previously done, Respondent took his blood pressure and did a cursory examination during which DuBose said he felt good. Respondent wrote out a prescription for 30 Valium and DuBose asked if the doctor would prescribe Percodan as well. Respondent refused to do so. DuBose then asked Respondent to see his "girlfriend", introduced her, and left after paying for his own visit and prescription.

    
    

11. At no time did DuBose ever indicate to the Respondent he had any ailment. In fact, he always said he felt good. When Respondent indicated he needed some medical justification to prescribe Valium, DuBose told him to put down that he was nervous and could not sleep. Respondent never tried to find a legitimate cause for that condition but instead merely conducted a cursory examination. He never asked if DuBose was under the care of another physician or if he was taking any medication. The first visit lasted about 15 minutes and the others were shorter. It is clear, therefore, that the "examinations" conducted by the Respondent of DuBose and Sinclair were no more than shadow exercises to justify writing a prescription and had no basis in actual medical diagnosis or treatment.

    
    

12. When Ms. Stanbro saw the Respondent on November 19, 1987, he immediately saw there was nothing wrong with her and refused to give her a prescription for anything other than aspirin. He denied her request for

    Percodan and Valium even though he did no examination of any sort. Stanbro was with the doctor for only about a minute and a half. When he turned her down for both drugs, she left. At all times in his relationship with Ms. Stanbro, Respondent acted in a professional manner.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

14. In four Counts in the Administrative Complaint, Petitioner has charged Respondent with several violations of the statute regulating the practice of naturopathic medicine in Florida. Section 462.14, Florida Statutes, gives DPR the authority to discipline the license of a naturopathic physician for, among other things:

    
    

    1. Failing to perform any statutory or legal obligation placed upon [him].

       1. Making deceptive, untrue or fraudulent representations in the practice of naturopathic medicine when such ... fails to conform to the generally prevailing standards of treatment in the medical community.

          (q) Prescribing ... a controlled substance other than in the course of [his) professional practice. ...

          (t) Gross or repeated malpractice or the failure to practice ... with that level of care, skill, and treatment ...

          recognized ... as being acceptable under similar conditions and circumstances.

          
          

          Section 893.05, Florida Statutes, provides:

          (1) A practitioner, in good faith and in the course of his professional practice only, may prescribe ... a controlled substance....

          
          

15. The examination of a patient with a view toward the treatment of an illness or existing condition requiring such treatment and the prescription of a controlled substance in connection therewith, is a part of the practice of medicine. Incorporated within that spectrum of action is the bona fide effort to treat an existing condition or to prevent development thereof. In the instant case, Respondent took no medical history, an item of great importance in the proper provision of medical treatment; made no effort to determine if the patient was under the care of another physician; and made no sincere effort to determine a legitimate reason to prescribe the drug requested by his patient.

    In short, it is abundantly clear this Respondent was only going through the motions of a medical visit, without substance to his actions, in order to superficially conform to the requirements of the law prior to prescribing a controlled substance. Under the circumstances, the actions of the Respondent were not accomplished in good faith and do not constitute a bona fide professional practice of naturopathic medicine. Consequently, his prescription of Valium, a Schedule IV drug, under these circumstances constituted a violation of Section 893.05 and, thereby, a violation of Section 462.14(h) as well as (q).

16. By the same token, the testimony of Mr. DuBose and Mr. Sinclair, establishes that Respondent, fully cognizant of the fact that neither individual had a legitimate medical reason to receive a prescription for Valium, nonetheless participated in a fraudulent charade in order to prescribe the drug on repeated occasions, and to receive his fee in each case. That he refused to prescribe Percodan, a more dangerous substance, is to his credit and may mitigate but does not excuse his misconduct as to the Valium. His willing participation in a fraudulent scheme, even one prompted by law enforcement officials, constituted, under the circumstances of this case, a violation of Section 462.14(1). Entrapment was not raised as a defense at the hearing nor, in light of Respondent's willing and ready participation, would it be successful.

    
    

17. Turning to the issue of malpractice, commonly thought to include negligence in a substandard professional practice, accepted medical authority also includes, "incorrect" treatment as differentiated from "negligent" treatment. Taber's Cyclopedic Medical Dictionary, 14th Edition, c. 1981, p.854. There is no indication from the evidence presented at the hearing that Respondent was negligent in his treatment of the police officers for whom he prescribed Valium save his failure to complete a detailed examination with history. To the contrary, there is no evidence he provided any bona fide treatment, negligent or otherwise. The evidence clearly and convincingly demonstrates that, motivated apparently by profit, Respondent provided a Schedule IV drug to two individuals solely on the basis of their request and to facilitate this, participated in a fabrication of records to support the prescriptions. If anything, this constitutes incorrect treatment and properly may be considered malpractice. His performance of routine procedures such as the taking of temperature, blood pressure, pulse rate, and other basic actions, does not justify or support his prescriptions where they are done merely for the record and have no bearing on whether the drug will be prescribed. It is clear that Dr. Helland had no intention of refusing the officers and went through the subterfuge of meaningless procedures only in an attempt to protect himself from action. His efforts, properly, were not successful.

    
    

18. Penalties authorized for a violation of the statute range from placing the physician on probation to revocation of his license. In the instant case, the department urges revocation of the Respondent's license and a fine. Ordinarily, the most serious penalty should be reserved for the most serious of offenses. Here, Respondent refused to prescribe Percodan for Sinclair and Stanbro and, as to the latter, refused to prescribe anything at all except aspirin. His motives for this were not shown but it is to his credit that he did not. By the same token, his willingness to participate in a continuing, obviously inappropriate course of conduct in prescribing Valium without a valid medical basis therefor, for profit, is venal and egregious misconduct and supports the imposition of drastic sanctions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent's license as a naturopathic physician in Florida be revoked.

RECOMMENDED this 8th day of August, 1988, at Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 8th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1318

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For the Petitioner: DPR

1 - 2. Accepted and incorporated in Findings of Fact 1.

3. Accepted and incorporated in Findings of Fact 6.

4 - 8. Accepted and incorporated in Findings of Fact 2-5.

9 -10. Accepted and incorporated in Findings of Fact 7.

11 - 19. Accepted and incorporated in Findings of Fact 8-9.

For the Respondent: Dr. Helland

13 - 16. Accepted and incorporated in Findings of Fact 7.

17 - 20. Accepted and incorporated in Findings of Fact 8-9. 21 - 23. Accepted and incorporated in Findings of Fact

10-11.

24. Accepted as a restatement of testimony and not a Finding of Fact.

25 - 26. Accepted and incorporated in Finding of Fact 9.

1. Accepted as a restatement of testimony and not a Finding of Fact.

2. Accepted and incorporated in Finding of Fact 12.

3. Rejected as a comment in the evidence and not a Finding of Fact.

COPIES FURNISHED:

John R. Alexander, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

John M. Fitzgibbons, Esquire Suite 1550

600 North Florida Avenue Tampa, Florida 33602-4505

Dorothy Faircloth, Executive Director DPR, Board of Medicine

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001318

Orders for Case No: 88-001318