STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICAL ) EXAMINERS, )
)
Petitioner, )
)
vs. ) CASE NO. 88-4602
)
MARTIN KASNER, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held before J. Stephen Menton, Hearing Officer, Division of Administrative Hearings, on December 19-21, 1989, in Fort Lauderdale, Florida.
APPEARANCES
For Petitioner: Joseph Harrison
Senior Attorney
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399
For Respondent: C. Craig Stella
Attorney at Law
200 S. Andrews Avenue Suite 300
Mercede City Center
Fort Lauderdale, Florida 33301 STATEMENT OF ISSUES
The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violations of Section 458.331(1), Florida Statutes, as set forth in the Administrative Complaint filed against Respondent.
PRELIMINARY STATEMENT
On September 2, 1988, Petitioner filed a Five Count Administrative Complaint alleging that Respondent violated:
Section 458.331(1)(q), Florida Statutes, by prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substances, other in the course of the physician's professional practice;
Section 458.331(1)(g), Florida Statutes, by failing to perform a statutory or legal obligation placed upon a licensed physician, i.e., the requirement in Section 893.05(1), Florida Statutes, that a physician may only prescribe a controlled substance in good faith and in the course of his professional practice;
Section 458.331(1)(t), Florida Statutes, by 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 conditions and circumstances and by committing gross or repeated malpractice;
Section 458.331(1)(m), Florida Statutes, by 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; and
Section 458.331(1)(k), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine.
All of the charges arise in connection with allegations that Respondent inappropriately and excessively prescribed controlled substances including Valium, Percocet and/or Percodan for two undercover police officers, Bob Trawinski and Susan Somerall, who posed as patients using the names Bob Conti and Jeanette Conti.
The Respondent timely requested a formal administrative hearing. The case was referred to the Division of Administrative Hearings which noticed and conducted the hearing.
At the hearing, the Petitioner presented the testimony of seven witnesses: Christie Dietert, an investigation manager for Petitioner; Mel Waxman, a medical quality assurance investigator for Petitioner; Sonja Clukey, supervisor of the compliance section of the narcotics division of the Broward County Sheriff's Office; Stanley L. Weiss, an osteopathic physician and surgeon who was accepted as an expert in the area of family medicine; Dr. Reynold M. Stein, who was accepted as an expert in the field of family practice and family medicine; Robert Trawinski, a detective with the narcotics division of the Broward County Sheriff's Office (Detective Trawinski assumed an undercover position as one of the patients involved in this case, Bob Conti); and Susan Somerall, a Deputy Sheriff with Broward County Sheriff's Office (Deputy Somerall assumed an undercover role as one of the patients involved in this case, Jeanette Conti, the purported wife of Bob Conti.) Petitioner offered twelve exhibits into evidence (Petitioner's Exhibit 12 was a composite of six reports prepared by one of the witnesses.) All of the exhibits were accepted except Petitioner's Exhibit
2 which was the July 24, 1989 deposition of Larry Brunell. Respondent objected to the admissibility of that deposition on the grounds that it was not relevant to any of the charges alleged in the Administrative Complaint. At the hearing, ruling on the admissibility of the deposition was reserved. After review of the deposition, Respondent's objection is sustained and Petitioner's Exhibit 2 is not admitted for the following two reasons. First, Petitioner has not established that the deposition is admissible under Rule 1.330 of the Florida Rules of Civil Procedure and/or Section 90.804(2)(a), Florida Statutes. The deposition is also rejected because it does not pertain to any of the specific charges alleged in the Administrative Complaint. The deposition deals exclusively with the Respondent's treatment of and issuance of prescriptions for
drugs to the deponent. Those incidents are not included in the charges set forth in the Administrative Complaint filed in this action. While they may provide a basis for a separate action against Respondent, they can not serve as a basis for disciplinary action in this proceeding. Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985).
The Respondent called one witness, Dr. Joel Klass, who was accepted as an expert in the field of psychiatry and in the field of prescribing controlled substances. The Respondent did not offer any exhibits.
A transcript of the proceedings has been filed. Both parties have filed proposed recommended orders including proposed findings of fact and conclusions of law. A specific ruling on each of the parties' proposed findings of fact is included in the Appendix attached hereto.
FINDINGS OF FACT
Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:
At all times pertinent to this proceeding, Respondent Martin Kasner was licensed to practice medicine in the State of Florida having been issued license number ME0031141 on August 24, 1977.
At all time pertinent to this proceeding, Respondent maintained an office at 1911 North Andrews Avenue, Wilton Manors, Florida 33311.
There is no evidence that Petitioner has ever been the subject of prior disciplinary action by the Petitioner, Department of Professional Regulation, Board of Medicine ("the Board").
On June 7, 1988, Detective Robert Trawinski of the Broward County Sheriff's Office visited Respondent's office in an undercover capacity posing as a new patient identifying himself as Robert Conti.
Detective Trawinski had never previously worked in an undercover capacity in a doctor's office. Prior to Detective Trawinski's June 7, 1988 visit to the Respondent's office, Detective Trawinski met with Sergeant Clukey of the narcotics division of the Broward County Sheriff's Office and Mel Waxman, an investigator for the Petitioner. Detective Trawinski was instructed to try to obtain a prescription for Valium from the Respondent without giving any valid medical purpose. Valium or Diazepam is a Schedule IV controlled substance that is not an analgesic, but is a potent tranquilizer and skeletal muscle relaxant which can have adverse effects on sensorium. It is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. Individual patients taking Valium can become dependent on the drug and withdrawal from addiction to the drug can lead to potentially life-threatening health problems. Detective Trawinski was not advised as to all of the potentially acceptable medical purposes for which Valium could be used. He understood his instructions to mean that he should not voice any complaint of pain.
Prior to seeing the Respondent during this first visit, Detective Trawinski filled out a medical questionnaire in Respondent's office using the fictitious name Bob Conti. In filling out the questionnaire, Detective
Trawinski did not state any specific medical complaints. The patient's blood pressure was taken by a nurse in the office and recorded at 150/84. That reading tends to confirm the patient's subsequent complaint of anxiety.
During the June 7, 1988 visit, Detective Trawinski advised Respondent that he was having problems performing sexually and was experiencing some anxiety as a result of job and family problems. Detective Trawinski also advised the Respondent that he had previously obtained prescriptions for Valium from a doctor up north and the drug had helped calm him down.
Detective Trawinski advised the Respondent that the Valium he had previously been taking relaxed him and alleviated many of the symptoms of which he was complaining. During this first visit, the Respondent took a limited medical history from the patient including questions regarding possible alternative sources of the patient's complaints such as diabetes and thyroid problems. The patient denied a history of any such possible alternative causes for his symptoms.
During the first visit, the Respondent made preliminary overtures towards conducting a physical examination of the patient. However, the detective told the doctor he did not want a physical. Respondent advised the Petitioner that he should consider having a blood work-up, but the Respondent indicated that because the tests were so expensive, the patient could wait until he had the money.
At the conclusion of the June 7, 1988 visit, the Respondent issued a prescription to Detective Trawinski for 30 ten milligram Valium tablets with the ability to refill the prescription three times.
The patient was advised to take two Valium per day as needed and one at night as a sleeping pill.
At the time of the first visit, Detective Trawinski did not know the therapeutic use for Valium and was not advised of the appropriate use for Valium by his superiors. In actuality, a prescription for Valium was not inappropriate for the patient given his high blood pressure, complaints of anxiety and minor sexual dysfunction which could have been related to anxiety.
Detective Trawinski returned for a second visit to the Respondent's office seventeen days later on June 24, 1988 at which time the patient's blood pressure was recorded at 164/80 which could reflect anxiety on the part of the patient. During this second visit, the Respondent questioned the patient regarding his appetite and medical history. Detective Trawinski denied a history of thyroid trouble, hayfever, etc. The Respondent conducted a limited physical examination of the patient checking his lungs and his heart rate.
During the June 24 visit, Detective Trawinski advised the doctor that, while he still had some anxious moments, the prescription for Valium was helping him. The Respondent asked the patient whether he had any Valium left. The patient responded that he did not have any and also advised the Respondent that he was taking the Valium as directed and was not sharing them with anyone else.
At the conclusion of the second visit, the Respondent provided the patient with a prescription for 50 Valium tablets with two refills.
While the medical records of Detective Trawinski's first and second visit are sketchy at best, the Valium prescriptions issued on these two
occasions do not fall beneath the standard of a reasonably prudent physician under the circumstances.
The third visit by Detective Trawinski to Respondent's office took place twelve days later on July 6, 1988. During that visit, the detective advised the Respondent that the reason the Valium were going so quickly was because he was sharing the prescription with his wife. Detective Trawinski attempted to obtain from Respondent a separate prescription for Valium for his wife. Detective Trawinski offered to pay Respondent the amount of an additional office visit if Respondent would issue a prescription in his wife's name. However, Respondent refused to accept the additional money or issue a prescription in the wife's name without seeing her. The Respondent stated that he would need to take a medical history and conduct a physical examination prior to prescribing anything for the patient's wife. The Respondent advised Detective Trawinski that his wife should not be taking prescription drugs without having seen a doctor and that, although the prescription seem to be working for him, it may not necessarily be good for his wife.
The Respondent advised the patient that, while his wife could take a few of his Valium until she could make an appointment to see the doctor, an appointment should be made as soon as possible and that no one should take prescription medication without being seen by the doctor.
Notwithstanding the cautionary statements to the patient regarding sharing the drug, at the conclusion of the third visit, Respondent increased the patient's prescription for Valium from 50 tablets to 100 tablets with 1 refill. In fact, Respondent originally made out the prescription for 50 tablets. However, after being advised that the patient was sharing the pills with his wife, the prescription was increased to 100 tablets. By increasing the prescription in this manner, the Respondent was excessively prescribing a controlled substance and fell below the standard of care expected in this community of a reasonably prudent similar physician under similar circumstances.
On July 13, 1988, Detective Trawinski returned to Respondent's office with Deputy Somerall of the Broward Sheriff's Office posing as his wife, Jeanette Conti. Upon arriving at the doctor's office, Deputy Somerall was weighed and her blood pressure was taken. In addition, the doctor performed a limited physical examination including listening to her heart and lungs with a stethoscope. The Respondent took a limited medical history from Deputy Somerall and she stated that she was suffering from stress and that Valium seemed to relieve it.
Deputy Somerall advised the Respondent that she had been taking some of the Valium prescribed for her purported husband. In response to questioning by the Respondent, Deputy Somerall stated that she took the Valium on an as needed basis and it did not cause her to be drowsy and seemed to relieve the stress and anxiety she sometimes experienced towards the end of the visit, the Respondent indicated he would issue a separate prescription for Valium for Deputy Somerall and stated that he did not want her taking pills from her husband without her seeing a doctor first. The Respondent issued a prescription in the name of Jeanette Conti for 30 ten milligram Valium tablets with two refills permitted.
During the July 13, 1988 visit, the Respondent inquired of Detective Trawinski whether his prescriptions were holding out. After Detective Trawinski indicated that he needed additional prescriptions, the Respondent issued a new
prescription in the name of Bob Conti for 100 ten milligram Valium tablets. No refills were indicated.
During this fourth visit, Detective Trawinski told the Respondent that he had tried some Percodan and had enjoyed it. He indicated that the drug had helped him to perform sexually and requested the doctor to issue him a prescription for that drug.
Percodan is a Schedule II Controlled Substance which is used to relieve moderate to severe pain. It is an opiate narcotic and can be addictive.
At the conclusion of this fourth visit, the Respondent issued a prescription to Detective Trawinski for 30 Percodan tablets. The prescription did not provide for any refills.
No valid medical reason was provided for the issuance of the Percodan prescription. While Respondent contends that the patient had previously complained of back pain and a prescription for Percodan was issued for that reason, no competent evidence was presented to establish that Detective Trawinski had ever made a serious complaint about back pain. Therefore, the Respondent fell below the standard of care expected of a reasonably prudent physician in this community by issuing the Percodan prescription. Likewise, the issuance of additional prescriptions for Valium in the name of Bob Conti was excessive when considered together with the previous prescriptions issued.
Pharmacists in Broward County will sometimes contact a physician to advise him if a patient is attempting to refill a prescription sooner than it should be refilled. The Respondent was never contacted by any pharmacist or advised that his patients were attempting to refill their prescriptions sooner than they should and there is no indication that the Respondent was ever advised that all of the refills allowed under the prescriptions were obtained by the patient. Patients often overlook the ability to refill a prescription and return to the doctor for a new prescription. The Respondent specifically advised Detective Trawinski during one of the visits that he could get the prescriptions refilled without returning to see the doctor. This statement indicates that the Respondent assumed that the patient had not sought all the refills of the earlier prescriptions. While the Respondent might have assumed that the patient had not sought all the refills provided, the Respondent should have been more cautious about issuing so many prescriptions with refills permitted within such a short period of time. However, at no time was the Respondent informed or led to believe that the patient was selling the drugs to others.
Although both patients were seen by the doctor and issued prescriptions during the July 13 visit, they were only charged Respondent's typical rate for a single visit, $30.00.
On July 19, 1988, both Detective Trawinski and Deputy Somerall returned to the Respondent's office. During this visit, Deputy Somerall advised Respondent she had taken some of the Percodan prescribed for her purported husband and requested a prescription of her own. Deputy Somerall told the Respondent that she was using the drug as an aphrodisiac. Detective Trawinski advised the doctor that he was taking four Percodan per day because it made him feel good. Detective Trawinski advised Respondent that he did not have any Percodan remaining because he had used it during a party with another couple. The Respondent lectured both patients about the dangers of Percodan and told them that the drug was habit forming and should not be taken for recreational
purposes. Respondent expressed surprise that the drug was serving as an aphrodisiac for the patients. While Respondent indicated he was reluctant to issue a new prescription for Percodan, he stated that the drug seemed to be providing some benefits to the patients and ultimately issued a prescription in the name of Bob Conti for an additional 30 Percodan tablets. Respondent would not issue a prescription for Percodan in the name of Jeanette Conti.
Furthermore, when Detective Trawinski inquired about making an appointment for his brother-in-law to see the Respondent, the Respondent replied that if the intention was to obtain Percodan, he did not want to see the patient. However, he indicated he would be willing to see the brother-in-law if he was simply seeking a prescription for Valium.
At no time did the Respondent adequately inform the patients regarding the synergistic effects of the use of Percodan and Valium nor did he adequately explain the risks associated with combining these drugs with alcohol or other substances. Moreover, Respondent failed to explore the possibility that the prescriptions he issued were increasing or exacerbating existing dependency by these Patients on the drugs involved.
On July 25, 1988, Detective Trawinski returned to Respondent's office and requested that his prescriptions be renewed. The patient denied any medical complaints and there is no indication that any physical examination was conducted by Respondent. In response to Respondent's inquiries, Detective Trawinski indicated that he was following the Respondent's previous advice and use of the Percodan was "under control."
At the conclusion of the July 25 visit, Respondent issued a prescription in the name of Bob Conti for 30 Percodan "for pain" and 50 Valium tablets. One refill was provided for the Valium prescription. No refills were indicated for the Percodan prescription.
No valid medical reasons were provided for the prescriptions that were issued following the July 25 visit.
There is no evidence indicating any pecuniary gain by the Respondent for writing any of the prescriptions in question. The only remuneration received by Respondent was his typical $30.00 office charge per visit.
The written medical records which the Respondent maintained fail to adequately justify the course of treatment of the patients known to Respondent as Bob and Jeanette Conti (collectively referred to as the "Patients"). The records do not reflect repeated evaluation of the persistent symptoms or adequate evaluation and follow-up of the results of medication, either as to effectiveness or possible side effects such as dependency.
Respondent's record-keeping with regard to the Patients falls below the acceptable standard. The records fail to include an adequate patient history and initial assessment of the Patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the Patient's background. In several instances, the Respondent's only notation of treatment is a listing of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken, especially with respect to the prescriptions for Percodan.
The Respondent's medical records for patient Bob Conti contain a very limited patient history and general background information. For this patient's first two visits, there is a brief notation which includes the patient's blood pressure and weight. On the first three visits, there is a diagnosis of "chronic anxiety" without any further discussion. On the final three visits, only the medication prescribed is noted. The patient's records for these three last visits contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from Bob Conti's medical records the reason that Percodan was prescribed.
The Respondent's medical records on the patient Jeanette Conti are similar to those previously described for patient Bob Conti. The office visit notes list no patient complaints or symptoms and no medical diagnosis or comprehensive assessments. While Respondent's counsel suggested that Respondent intended to supplement the medical records with additional information at a later date, no competent evidence was presented to support this claim.
The Respondent was examined and tested by a psychiatric expert Dr. Klass. The results of the psychiatric examination indicate that the Respondent is not corrupt, but that he is corruptible, i.e., easily manipulated and overly compliant.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding pursuant to Subsection 120.57(1), Florida Statutes (1987).
Section 458.331, Florida Statutes (1987) empowers the Board to revoke, suspend or otherwise discipline the license to practice medicine of any physician in the State of Florida found guilty of any of the acts enumerated in Section 458.331(1) (a-ee) Florida Statutes (1987).
In a disciplinary action such as this proceeding, the burden is upon the Board to establish the facts upon which its allegations of misconduct are based. The Petitioner must prove its allegations by clear and convincing evidence. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).
Disciplinary action with respect to a professional license is limited to offenses or facts alleged in the administrative complaint. Sternberg vs. Department of Professional Regulation Board, of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985).
The amended complaint charges Respondent with five statutory violations.
The Petitioner has established the allegations of Count One of the Administrative Complaint in which it was alleged that the Respondent violated Section 458.331(1)(g), Florida Statutes, by prescribing, dispensing, administering, mixing or otherwise preparing a legend drug, including any controlled substance, other than in the course of his professional practice. There is a legal presumption under this statute that the prescribing, dispensing, administering or otherwise preparing legend drugs, including controlled substances, inappropriately, or in excessive quantities is not in the best interest of the patient and is thus without the course of the physician's professional practice. No consideration for the physician's intent or state of mind is necessary under this statutory provision. Since the evidence of record
and the above findings of fact demonstrate that, beginning with the third visit, the medication course prescribed and followed for the Patients by the Respondent was inappropriate and/or in excessive or inappropriate quantities, it must be concluded that the Respondent violated this provision of Chapter 458, Florida Statutes.
Count Two alleges that Respondent violated Section 458.331(1)(g), Florida Statutes by failing to perform a statutory or legal obligation placed upon a licensed physician, i.e., the requirement in Section 893.05(1), Florida Statutes, that a physician may only prescribe a controlled substance in good faith and in the course of his professional practice. There is no indication that the Respondent was not acting in good faith or was deliberately prescribing drugs outside the course of his professional practice. The Respondent may have used poor judgement in issuing the prescriptions in question, however, absent the requisite mens rea, the Petitioner has not established a violation of Section 893.05(1) which is the predicate for the alleged violation of Section 458.331(1)(g). Therefore, Count Two has not been established by clear and convincing evidence and should be dismissed.
Count Three alleges that Respondent violated Section 458.331(1)(t), Florida Statutes (1987) by 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 conditions and circumstances. The Administrative Complaint also alleges that the Respondent was guilty of committing gross or repeated negligence. The Petitioner has proven by clear and convincing evidence that, beginning with the third visit, the care given to the Patients by Respondent failed to meet that level of skill, care and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances and that the Respondent is guilty of gross malpractice.
In Count Four, Respondent is charged with violating Section 458.331(1)(m), Florida Statutes (1987) for failing to keep adequate medical records justifying the course of treatment of the Patients. According to the statute, the records must include, at a minimum, information concerning the patient's history, examination and test results.
The medical records concerning the Patients are inadequate because they do not include an adequate patient history or an adequate evaluation and follow up of the results of medication. Accordingly, the evidence reflects that Respondent failed to keep those records necessary to comply with Subsection 458.331(1)(m), Florida Statutes (1987).
Count Five of the Administrative Complaint alleges that Respondent violated Section 458.331(1)(k), Florida Statutes by making deceptive or untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine. There is no evidence that the Respondent intentionally tried to deceive the Patients or made fraudulent representations or employed any trick or scheme in the practice of medicine. Therefore, Count Five has not been established by clear and convincing evidence and should be dismissed.
Rule 21M-20.001, Florida Administrative Code, sets forth suggested disciplinary guidelines enacted by the Board. Paragraph 1 of the Rule states, in part, that the purpose of the Rule "is to notify. . . licensees of the range of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given in this rule. The
ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or combination of the violations may result in a higher penalty then that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between."
For a single violation of failing to keep written medical records, Subsection 2(m) suggests a penalty ranging "from a reprimand ... or two (2) years suspension followed by probation, and an administrative fine from $250.00 to $5000.00." For a single violation of failing to meet community standards of skill, care and treatment of a patient, Subsection 2(t) suggest a penalty ranging from "two (2) years probation to revocation ... denial, and an administrative fine from $250.00 to $5000.00."
For a single violation of inappropriate or excessive prescribing Subsection 2(q) suggests a penalty ranging from 1 year probation to revocation and an administrative fine from $250.00 to $5000.00.
Paragraph (3) enumerates the aggravating and mitigating circumstances that may be considered in applying the guidelines: These include:
Exposure of a patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;
Legal status at the time of the offense: No restraints, or legal constraints;
Number of counts or separate offenses established;
The number of times the same
offense or offenses have previously been committed by the licensee or applicant;
The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;
Pecuniary benefits or self-gain inuring to the applicant or licensee;
Any other relevant mitigating factors.
Applying these factors, there is no evidence that Respondent has ever previously been disciplined during his career as a physician nor is there any evidence to indicate that he was under restraints or legal constraints at the time of the incidents alleged in the Administrative Complaint. There is also no evidence that the Respondent received any unusual pecuniary benefit for his treatment of the Patients. On the other hand, the excessive prescribing of drugs poses a substantial risk of harm to the community as well as the patients. Unjustified and excessive prescribing of drugs by a physician is an extremely serious offense and cannot be tolerated.
Petitioner urges in its Proposed Recommended Order that Respondent's license to practice medicine in this state be revoked. However, permanent revocation is a harsh punishment reserved for egregious cases where rehabilitation is improbable. See, the Florida Bar v. Davis, 361 So.2d 159 (Fla. 1978). While there is (by implication from certain of the collateral evidence) indication that what was aired at this hearing is not the complete litany of
Respondent's misconduct, there is no direct evidence of other misconduct. No other evidence was presented regarding Respondent's skill, knowledge or performance of medical procedures and there is no indication that the Respondent was deliberately over-prescribing drugs for profit. His personality was simply too malleable. While this does not excuse or justify his offenses, it is a mitigating factor.
Because the undercover police officers in this case were not totally familiar with the possible medical reasons for prescribing Valium, Detective Trawinski (apparently inadvertently) presented himself to Respondent with symptoms that justified at least the initial prescriptions. It was only after a seemingly normal patient/doctor relationship was established that the patients sought unjustifiable prescriptions. In each case, the prescriptions were deliberately and specifically sought by the Patients. While the Respondent's judgement was poor, he did resist some of their efforts and warned them about the possible dangers of the drugs they were using. Nonetheless, the Respondent's violations are severe and mandate serious disciplinary actions. However, under the evidence presented in this case, a penalty less then revocation is appropriate.
Based on the forgoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Board of
Medicine, enter a Final Order which finds Respondent guilty of the violations alleged in Count One, Three and Four of the Administrative Complaint, dismisses Counts Two and Five, imposes an administrative fine in the amount $5000.00 and suspends Respondent's license for a period of two years followed by a three (3) year term of probation during which time Respondent's prescribing practices should be closely monitored.
DONE and ORDERED this 3 day of May, 1990, in Tallahassee, Florida.
J. STEPHEN MENTON 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 3 day of May, 1990.
APPENDIX
Both parties have submitted Proposed Recommended Orders. To the extent that the proposed findings of fact can be isolated, they are addressed below.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or
Reason for Rejection.
Adopted in substance in Findings of Fact
Subordinate to Findings of Fact 4-33.
Subordinate to Findings of Fact 23, 24, 26, 29, 31 and 32.
Rejected as constituting argument and a summary of testimony rather than a finding of fact.
Rejected as constituting argument and a summary of testimony rather than a finding of fact. This subject matter is covered in Findings of Fact 34-37.
The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact
of Fact Number in the Recommended Order Where Accepted or Reason for Rejection.
Adopted in substance in Findings of Fact
Adopted in substance in Findings of Fact 2.
The first sentence is adopted in substance in Findings of Fact 33. The second sentence is adopted in part in Finding of Fact 27.
Rejected as irrelevant.
Rejected as irrelevant.
Rejected as irrelevant.
Rejected as irrelevant.
Rejected as irrelevant.
Rejected as irrelevant.
Rejected as irrelevant.
Subordinate to Findings of Fact 34-37.
Rejected as irrelevant. No evidence was presented to establish that the Respondent intended to further supplement the medical records.
Rejected as not constituting a finding of fact.
Subordinate to Findings of Fact 4-7 and 12.
Rejected as a summary of testimony rather than a finding of fact. This subject area is covered in Findings of Fact 6-10.
Subordinate to Findings of Fact 16.
Rejected as a summary of testimony rather than a finding of fact. This subject area is addressed in Findings of Fact 27.
Rejected as irrelevant and because it is merely a summary of testimony rather than a finding of fact.
Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 27.
Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 16.
Subordinate to Findings of Fact 13-15.
Subordinate to Findings of Fact 17 - 19.
Rejected as constituting argument rather than a finding of fact. This subject area is addressed in Findings of Fact 19.
Subordinate to Findings of Fact 20-23, 25, 26, and 28.
Subordinate to Findings of Fact 29.
Subordinate to Findings of Fact 30-33.
Rejected as constituting argument and a summary of testimony rather than a finding of fact.
Rejected as constituting argument.
Rejected as constituting argument.
Subordinate to Findings of Fact 38.
30. (SIC) Rejected as constituting argument.
COPIES FURNISHED:
Joseph Harrison, Esquire Senior Attorney
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
C. Craig Stella, Esquire Attorney at Law
200 S. Andrews Avenue
Suite 300 Mercede City Center Fort Lauderdale, Florida 33301
Kenneth E. Easely General Counsel
Department of Professional Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
Dorothy Faircloth Executive Director Department of Professional
Regulation
1940 North Monroe Street Suite 60
Tallahassee, Florida 32399-0792
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AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
DPR CASE NUMBER: 0102366
-vs- DOAH CASE NUMBER: 88-4602
LICENSE NUMBER: ME 0031141
MARTIN KASNER, M.D.,
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on June 1, 1990, in Tampa, Florida, for the purpose of considering the Hearing Officer's Recommended Order, (a copy of which is attached hereto as Exhibit A) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Stephanie A. Daniel, Attorney at Law. Respondent was not present or represented.
Upon review of the Recommended Order, the argument of the Petitioner, a review of the applicable law, and after a review of the complete record in this case, the Board makes the following findings- and conclusions.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The Board rejects the conclusion of law set forth in Paragraph 7 of the Conclusions of Law in the Recommended Order and finds, in lieu thereof, that the Findings of Fact support the conclusion that Respondent violated Section 458.331(1)(g), Florida Statutes, in that he violated section 893.05(1), Florida Statutes. Section 893.05(1) provides, in pertinent part, that a physician may prescribe a controlled substance "in good faith and in the course of his professional practice only. . . . [emphasis supplied]. The Hearing Officer's finding that there "was no indication that Respondent was not acting in good faith or was deliberately prescribing drugs outside the course of practice" is contradicted by Paragraphs 19, 26, 29, 31, and 32 of the findings of fact, which relate to Respondent's increasing the number of valium prescribed for his patient so that the patient could share the valium with his wife (who was not at that time Respondent's patient) and to Respondent's prescription of percodan for no valid medical reason. See also, Cohn v. Department of Professional Regulation, 477 So.2d 1039 (Fla. 3rd DCA 1985) on the issue of the interpretation of "good faith." In addition the Hearing Officer's finding in Paragraph 7 is contradicted by the conclusion of law in Paragraph 6 that Respondent had violated Section 458.331(1)(q), Florida Statutes, in that he prescribed other than in the course of his professional practice.
The Board rejects the conclusion of law set forth in Paragraph 10 of the Conclusions of Law in the Recommended Order and finds, in lieu thereof, that the Findings of Fact support the conclusion the Respondent did violate Section 458,331(1)(k), Florida Statutes, in that he did make deceptive, untrue, or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine. Specifically, Paragraphs 19, 23-26, 31, and
32 of the findings of fact establish that Respondent wrote a prescription for his patient for 100 valium, thereby representing that the 100 valium were for only that person, but, in fact, the number of valium prescribed was increased expressly so that some of the valium could be provided by the patient to another person. Secondly, Respondent wrote a prescription for percodan and noted on the prescription "for pain," thereby representing that there was a valid medical reason for prescribing percodan. In fact, the Hearing Officer found, the patient had never "made a serious complaint about back pain" and there was no valid medical reason for the prescription.
All other conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of law made by the Board.
PENALTY
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be ACCEPTED and ADOPTED. WHEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent is hereby found guilty of the violations alleged in Counts One, Two, Three, Four, and Five and the following penalty is hereby imposed:
Respondent shall pay an administrative fine in the amount of $5000.00 to the Executive Director within 30 days of the date this Final Order is filed.
Respondent's license to practice medicine in the State of Florida is SUSPENDED for two years
Said suspension shall be followed by a period of probation of three years, subject to terms and conditions to be set at the time of reinstatement from suspension with special emphasis on the use of scheduled controlled substances.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 12 day of June . 1990.
BOARD OF MEDICINE
MARGARET C.S. SKINNER, M.D. CHAIRMAN
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 mail to Martin Krasner, M.D., 1911 North Andrews Avenue, Ft. Lauderdale, Florida 33309 and C. Craig Stella, Attorney at Law, Suite 300, 200 South Andrews Avenue, Mercede City Center, Ft. Lauderdale, Florida 33301, by U.S. Mail to J. Stephen Menton, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interof fice delivery to Joseph Harrison, Attorney at Law, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this
19 day of June , 1990.
(SIGNED) Dorothy J. Faircloth
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 1991
MARTIN KASNER, M.D.,
Appellant,
vs. CASE NO. 90-2118.
DOAH CASE NO. 88-4602
DEPARTMENT OF PROFESSIONAL REGULATION,
Appellee.
/ Decision filed April 24, 1991
Appeal from the Department of Professional Regulation Board of Medicine; J. Stephen Menton, Hearing Officer.
C. Craig Stella of Law Offices of
C. Craig Stella, P.A., Fort Lauderdale, for appellant.
Lisa S. Nelson, of Department of Professional Regulation, Tallahassee, for appellee.
PER CURIAM.
AFFIRMED.
ANSTEAD, DELL and FARMER, JJ., concur.
| Issue Date | Proceedings |
|---|---|
| May 03, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 24, 1991 | Opinion | |
| Jun. 12, 1990 | Agency Final Order | |
| May 03, 1990 | Recommended Order | Resp. failed to keep adeq. records, failed to meet expected std of care & excessively prescribed valium & percodan to undercover cops |
