STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1801

)

EDUARD0 MEJIA, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Divisian of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on November 3, 1988 in Miami, Florida. The following appearances were entered:

APPEARANCES

FOR PETITIONER: Thomas W. Stahl, Esquire

817 North Gadsden Street Tallahassee, Florida 32303-6313

FOR RESPONDENT: Carl Di Bernardo, Esquire

8603 South Dixie Highway, Suite 210 Commercial Bank of Kendall

Miami, Florida 33141 BACKGROUND

By administrative complaint, Petitioner charged Respondent with medical malpractice; prescribing a legend drug other than in the course of professional practice; practicing medicine without a license; and failure to keep written medical records justifying the course of treatment of a patient. Respondent requested a formal administrative hearing on the charges in the administrative complaint and this proceeding ensued. At the hearing, Petitioner presented the testimony of three witnesses. One of those witnesses' testimony was presented in the form of a prior deposition. Petitioner also presented six evidentiary exhibits. Respondent presented testimony of six witnesses.

Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Respondent, Eduardo Mejia, M.D., was a licensed physician from September 1, 1966, through December 1982. His license was not renewed from

   January, 1982 through December, 1985. Subsequently he received a reprimand from the Board of Medicine for failure to timely renew his license. His license was renewed and he is presently on an active license status, having been issued license number ME 0012387.

   
   

2. T.B., the patient in this case, has been treated by Respondent since at least 1975 through the present date for essential hypertension, recurring headaches, and stress.

   
   

3. Respondent prescribed Percodan to patient T.B. on a continuous basis from 1975 to the present date. During one period of two months in 1985, Respondent prescribed a total of 500 Percodan pills for the patient, reflecting a daily dosage of approximately 10 pills. During the period from November of 1983 until August of 1986, Respondent prescribed over 8,000 Percodan pills for the patient. Recently Respondent has begun to prescribe reduced daily doses of Percodan in conjunction with other pain killing drugs.

   
   

4. Percodan is the brand name for Oxycodene, a Schedule II controlled substance. It is a synthetic form of morphine and comes from the opiate family of drugs which also includes heroin, morphine and codeine. Percodan is highly addictive and has a high potential for dependency.

   
   

5. Typically used to treat acute pain of the type associated with broken bones or postoperative recovery, Percodan is normally prescribed for a limited, short period of time and its use carefully monitored by a physician. Percodan is not usually prescribed for an extended period of time due to the potential for patient addiction and dependence. The prescription of Percodan by Respondent in the quantities and duration proven in this case is generally appropriate only for the treatment of a terminal patient.

   
   

6. The proof establishes that Percodan is not a drug indicated for use in the treatment of stress or anxiety. Further, the quantities of this drug, as prescribed by Respondent for patient T.B. for such a long period of time, is inappropriate, excessive and not justifiable by a prudent physician.

   
   

7. Reynold Montague Stein, M.D., is a physician licensed in California, Florida and New York. Stein is an expert in chemical dependency or addictionology. He reviewed Respondent's medical records relating to treatment of the patient T.B. His review confirms that Respondent prescribed Percodan, a narcotic and schedule II drug, for T.B.'s chronic headaches, hypertension and job stress without making a diagnosis of the cause of the patient's health problems. Dr. Stein's testimony is corroborated by the testimony of Dr. Matthew Cohen, a family practice physician, and further establishes that Respondent's use of Percodan in the treatment of patient T.B.'s headaches constitutes a failure to practice medicine at that level of care, skill and treatment recognized as reasonably prudent by a similar physician in Florida.

   
   

8. Respondent's medical records do not justiiy Respondent's course of treatment of patient T.B. The cause of the patient's continuing headaches is not addressed, nor do the records reflect that Respondent cautioned the patient with regard to continued use of large quantities of Percodan. Respondent did testify that his prescription of Percodan was a good faith effort to relieve the patient's headaches; however, he failed to offer any credible proof that such prescribing was in the best interests of the patient.

   
   

9. Expert witnesses who testified on behalf of Respondent were not familiar with Respondent's records for patient T.B. One of Respondent's

   experts, Dr. Daniel Jacome, a neurologist who examined patient T.B., testified that he would not have prescribed Percodan for over 10 years to the patient and would have taken a different treatment approach.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

    
    

11. Section 458.331(2), Florida Statutes, authorizes the Board of Medicine to revoke, suspend or otherwise discipline the license of a physician found guilty of any one of the acts enumerated in Section 458.331(1), Florida Statutes.

    
    

12. Section 458.331(1), Florida Statutes, provides in pertinent part as follows:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       (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.

       * * *

       (x) Violating any provision of this chapter, a rule of the board or department, or lawful order of the board or department previously entered in a disciplinary hearing or failings to comply with a lawfully issued subpoena of the department.

13. In count one of the administrative complaint, Petitioner charges Respondent with violation of Section 458.331(1)(q), Florida Statutes. Petitioner has clearly and convincingly proven that Respondent inappropriately prescribed Percodan over an extended period of time to patient T.B. The drug is highly addictive and is generally prescribed over a short period of time for patients experiencing acute chronic pain or terminally ill patients. While Respondent testified that his prescriptions of Percodan were issued in a good faith effort to relieve the patient's headaches, Respondent's good motives do not allow him to ignore the key words "without regard to his intent" contained in Section 458.331(1)(q), Florida Statutes, which prohibits the inappropriate and excessive prescribing of controlled substances as not being in the best interest of the patient and the course of a physician's professional practice. Respondent is guilty of the charge contained in count one of the administrative complaint.

    
    

14. Count two of the administrative complaint charges Respondent with violation of Section 458.331(1)(m), Florida Statutes, through his failure to maintain written medical records justifying the course of treatment of the patient. While Respondent's records show he continuously prescribed Percodan to patient T.B. for at least 10 years, the records fail to show that Respondent cautioned the patient concerning excessive use of the drug or its highly addictive properties. Further, the records do not show that Respondent investigated the cause or nature of the patient's headaches. Such omissions by Respondent clearly and convincingly support a finding of violation of Section 458.331(1)(m) , Florida Statutes.

    
    

15. In count three of the administrative complaint, Petitioner charges Respondent with violation of Section 458.331(1)(t), Florida Statutes. The testimony of Drs. Cohen and Stein clearly and convincingly establishes that Respondent's treatment of T.B. was not in accordance with the level of care, skill and treatment recognized by similar physicians as acceptable under similar conditions and circumstances. Testimony of Respondent's experts, with the exception of Dr. Jacome, regarding treatment of patient T.B. cannot be credited in view of their failure to review the patient's medica1 records or examine the patient. The one expert for Respondent who had previously examined the patient, Dr. Jacome, was not in agreement with the treatment accorded the patient.

    
    

16. Respondent cites the case of Johnston vs. Department of Professional Regulation, Board of Medical Examiners, 456 So.2d 939 (Fla. 1st DCA 1984), as authority for the proposition that Respondent's prescription of Percodan was appropriate in the instant case. In Johnston, the physician's action of prescribing another drug, Dilaudid, for four patients over a period of 16 months was defended by testimony of four experts. At least one of the patients had a long history of chronic severe pain which prevented enjoyment of a normal life. The instant case is distinguishable in that Respondent presented no credited expert testimony that prescription of Percodan to patient T.B. was medically appropriate. None of Respondent's experts expressed an opinion that Respondent's treatment of patient T.B. was within the accepted standard of care. Respondent is guilty of violation of 458.331(1)(t), Florida Statutes.

    
    

17. Petitioner is deemed to have abandoned prosecution of count four of the administrative complaint, charging Respondent with practice of medicine without an active license, in view of Respondent's reinstatement to active licensure status and previous reprimand for failure to timely renew his license. No finding is made with regard to this count of the administrative complaint.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of

violation of counts one, two and three of the administrative complaint and that such final order further impose an administrative penalty of $1500; place Respondent's license on probation for a period of two years upon terms and conditions to be determined by the Department of Professional Regulation, Board of Medicine; and prohibit Respondent from prescribing Schedule II controlled substances during such term of probation or for such longer period as may be determined by the Board.

DONE AND ENTERED this 29th day of December, 1988, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 29th day of January, 1989.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

PETITIONER'S PROPOSED FINDINGS

1.-13. Addressed and adopted by reference.

RESPONDENT'S PROPOSED FINDINGS

1. Rejected, conclusion of law. 2.-4. Adopted by reference.

5.-6. Rejected, unsupported by the evidence.

1. Rejected as cumulative.

2. Adopted by reference.

3. Rejected, not relevant.

4. Adopted by reference.

11.-13. Unnecessary to conclusion.

1. Adopted by reference.

2. Addressed.

3. Adopted by reference.

4. Unnecessary to conclusion.

5. Not supported by the weight of the evidence.

6. Rejected as substantial competent evidence regarding treatment rendered by Respondent.

7. Not credited.

8. Count four of the administrative complaint, having been dealt with by the Board of Medicine, is not ruled upon in this order.

9. Not supported by the weight of the evidence. 23.-24. Unnecessary to conclusion reached.

COPIES FURNISHED:

Thomas W. Stahl, Esquire 817 North Gadsden Street

Tallahassee, Florida 32303-6313

Carl Di Bernardo, Esquire 8603 South Dixie Highway Suite 210

Commercial Bank of Kendall Miami, Florida 33141

Bruce D. Lamb, Esquire General Counsel Department of Professidnal

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-001801

Orders for Case No: 88-001801