Dr. Vizcarra was accepted as an expert in general medicine.
The parties presented one composite exhibit. The exhibit was marked as Joint Composite Exhibit 1 and was accepted into evidence. The parties also
filed a Stipulation which contains stipulated findings. Those stipulated facts are hereby accepted.
The Petitioner has filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is, attached hereto. Dr. Vizcarra did not file a proposed recommended order.
Whether disciplinary action should be taken against Dr. Vizcarra's Florida license to practice medicine for violating Sections 458.33l(1)(m), (q) and/or (t), Florida Statutes, as alleged in the Administrative Complaint against Dr.
The Petitioner is the state agency charged with the responsibility to prosecute administrative complaints against licensed physicians in the State of Florida.
Eulogio Vizcarra, M.D., is, and has been at all times relevant to this proceeding, a licensed physician in the State of Florida. Dr. Vizcarra's license number is ME 0030012.
On January 2, 1984, Dr. Vizcarra saw patient S.L. for the first time.
S.L. was diagnosed by Dr. Vizcarra as suffering from tension headaches and hypertension.
Dr. Vizcarra continued to see S.L. from January, 1984, until at least June 6, 1987.
Throughout the period of time that Dr. Vizcarra treated S.L., including the period of June 14, 1986, through June 6, 1987, S.L. complained of, and was diagnosed as suffering from, numerous ailments, including hemorrhoids, nasal conjunction, lacerations, back pain, abdominal cramps, sore throat, diarrhea, gastrointestinal bleeding, laryngitis, chest pain, tooth ache, rhinitis, upper respiratory tract infection, viral syndrome, impotence and a ganglion cyst.
During the time that Dr. Vizcarra treated S.L., including the period of June 14, 1986, through June 6, 1987, S.L. was seen by Dr. Vizcarra and other physicians on numerous occasions.
The primary and most repeated diagnosis of S.L. by Dr. Vizcarra during the period of time that Dr. Vizcarra treated S.L. was migraine headaches and hypertension.
In January of 1984, when S.L. first saw Dr. Vizcarra, S.L. was initially given Amitriptyline, a prophylactic drug, for his migraine headaches. The use of Amitriptyline, or other prophylactic drugs, was not continued by Dr. Vizcarra in his treatment of S.L., however.
In April, 1984, Dr. Vizcarra referred S.L. to Dr. Kohler, a neurologist, for tests concerning S.L.'s migraine headaches. Dr. Vizcarra also referred S.L. to Dr. Loucshmann (phonetic) in April, 1984, for treatment of his
migraine headaches and his hypertension. Neither physician continued to see
S.L. after April, 1984.
Dr. Vizcarra referred S.L. to other physicians: (1) Dr. Hernandez saw
S.L. in May, 1986, for hemorrhoids; Dr. Baker, a cardiologist, saw S.L. in July, 1986, for chest pain; (3) Dr. Desai, a general surgeon, saw S.L. in August, 1986, for hemorrhoids and in June, 1987, for abdominal pain; and (4) Dr. Bonzon saw S.L. from January, 1987, through April, 1987, for the removal of a ganglion cyst. Dr. Vizcarra did not, however, refer S.L. to any other physician after April, 1984, for treatment of, or testing concerning, S.L.'s migraine headaches.
During the period of time from June 14, 1986, through June 6, 1987,
S.L. also was seen by various emergency room physicians, including Dr. Sklar, Dr. Amadio and Dr. Adams. All of these physicians listed Dr. Vizcarra as the "family physician" or as the "physician notified" on their record of S.L.'s visit.
Finally, S.L. was seen in July and August, 1986, by Dr. Adom.
Dr. Vizcarra's medical records concerning S.L. include information concerning S.L.'s treatment by the physicians listed in findings of fact 9-12.
During the period of time from June 14, 1986, through June 6, 1987, Dr. Vizcarra prescribed over 60 injections of Talwin, Nubain and Stadol for S.L.
S.L. also received injections of these drugs from some of the other physicians
S.L. was seen by during this period of time.
S.L. was also given approximately 25 to 30 prescriptions for Tylox and Darvocet, as well as other analgesic medications, during the period of time at issue in this proceeding. S.L. also received prescriptions for these drugs from some of the other physicians S.L. was seen by during this period of time.
Talwin, Nubain, Stadol, Tylox and Darvocet (hereinafter referred to as the "Five Legend Drugs") are narcotic analgesic medications. They are all legend drugs and have the potential for addiction.
Dr. Vizcarra indicated that he prescribed the Five Legend Drugs given to S.L. in order to relieve the pain that S.L. was suffering from. The rapid relief of pain with narcotic analgesics is acceptable only on an infrequent basis. Dr. Vizcarra's use of the Five Legend Drugs during the period of June 14, 1986, through June 6, 1987, was excessive.
Dr. Vizcarra's use of the Five Legend Drugs during the period of June 14, 1986, through June 6, 1987, constituted an inappropriate use of legend drugs. Dr. Vizcarra failed to provide proof that he made an adequate medical assessment of S.L.'s condition or the possible consequences of S.L.'s exposure to the Five Legend Drugs prescribed for him by Dr. Vizcarra or the other physicians who treated S.L. from June 14, 1986, through June 6, 1987.
The medical records maintained by Dr. Vizcarra fail to justify his treatment of S.L. during the period of June 14, 1986, through June 6, 1987.
Dr. McCoy's testimony concerning whether Dr. Vizcarra's treatment of
S.L. constituted a violation of Section 458.331(1)(t), Florida Statutes, was based upon Dr. McCoy's review of Dr. Vizcarra's medical records. Dr. Vizcarra provided further details concerning his treatment of S.L. during the hearing which were not included in his medical records. Dr. McCoy did not hear this
testimony. Therefore, Dr. McCoy's opinions concerning whether Dr. Vizcarra's treatment of S.L. constituted a violation of Section 458.331(1)(t), Florida Statutes, did not take into account all of the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
This proceeding is penal in nature. Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 190). Because Dr. Vizcarra's license is at stake, the evidence to support the charges against him must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Section 458.331(2), Florida Statutes, authorizes the Board of Medicine to enter orders imposing one or more of the penalties specified in Section 458.331(2), Florida Statutes, if the Board of Medicine finds a licensee guilty of any of the acts set forth in Section 458.331(1), Florida Statutes.
In the Administrative Complaint filed against Dr. Vizcarra in this case, he has been charged with having committed the following prohibited acts of Section 458.311(1), Florida Statutes:
(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.
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(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 physicians' professional practice, without regard to his intent.
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(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. The board shall give great weight to the provisions of s.
768.45 when enforcing this paragraph. As used in this paragraph, "repeated
malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross 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," shall not be construed so as to require more than one instance, event, or act.
The evidence presented by the Petitioner proved that Dr. Vizcarra violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying his course of treatment for S.L. during the period of June 14, 1986, through June 6, 1987.
The evidence presented in this case also proved that Dr. Vizcarra prescribed, dispensed and administered the Five Legend Drugs to S.L. during the period of June 14, 1986, though June 6, 1987, in excessive and inappropriate quantities. Dr. Vizcarra's excessive use of the Five Legend Drugs in treating
S.L. was not in S.L.'s best interest. Dr. Vizcarra has, therefore, violated Section 458.331(1)(q), Florida Statutes.
The evidence presented in this case failed to prove that Dr. Vizcarra's treatment of S.L. during the period of June 14, 1986, through June 6, 1987, constituted 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. The evidence presented by the Petitioner was not sufficient to prove all of the elements of Section 458.331(1)(t), Florida Statutes, especially in light of the fact that Dr. McCoy's testimony was based upon his review of Dr. Vizcarra's medical records and did not take into consideration Dr. Vizcarra's testimony. The Petitioner has, therefore, failed to prove that Dr. Vizcarra violated Section 458.331(1)(t), Florida Statutes.
The Petitioner has included proposed penalties in its proposed recommended order. The penalties are based upon the Petitioner's conclusion that the three alleged violations of the Administrative Complaint have been proven. The evidence proved, however, that Dr. Vizcarra committed only two of those violations. Therefore, the proposed administrative fine of $5,000.00 should be reduced to a fine of $2,500.00. The Petitioner's proposed penalty, with the reduction of the administrative fine, is consistent with the disciplinary guidelines of Chapter 21M-20, Florida Administrative Code.
