STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE )
)
Petitioner, )
)
vs. ) CASE NO. 90-1500
) WILLIAM F. GESSLER, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on March 28, March 29, April 15 and May 1, 1991, in Fort Lauderdale, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Larry G. McPherson, Jr.
Chief Medical Attorney
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
For Respondent: Charles L. Curtis, Esquire
Allsworth, Doumar, Cazel, Curtis & Cross 1177 Southeast 3rd Avenue
Fort Lauderdale, Florida 33136 STATEMENT OF THE ISSUE
The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine, number ME 00067895, based on the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint. The allegations of the Administrative Complaint focus on the Respondent's treatment of a patient, hereinafter referred to as D.D., with legend drugs (commonly known as prescription drugs), including controlled substances, at his office during the period of October 1985 through December 1985 and later at his personal residence during the period of February 1-3, 1986. Petitioner charges that Respondent's treatment of D.D. was (1) inappropriate or excessive, and/or (2) below an acceptable standard of medical care, and that (3) Respondent failed to maintain adequate medical records to justify his course of treatment.
PRELIMINARY STATEMENT
In a four count Administrative Complaint dated October 6, 1988, Petitioner alleged that the Respondent violated the Medical Practice Act in his treatment of D.D. Specifically, Petitioner alleged that Respondent violated Sections 458.331(1)(m), (q), (g) and (t), Florida Statutes. Respondent disputed the factual allegations set forth in the Administrative Complaint and requested a formal administrative hearing. The case was referred to the Division of Administrative Hearings and was initially assigned to Hearing Officer Claude A. Arrington.
The administrative action against Respondent has a long and tortuous history. A prior Administrative Complaint (the "Initial Complaint") was filed against Respondent by Petitioner in 1986. That Initial Complaint (DOAH Case No. 86-3600) alleged essentially the same violations by Respondent as set forth in the Administrative Complaint in this case. The Initial Complaint was referred to the Division of Administrative Hearings. The Hearing Officer in that prior proceeding entered an order closing the case and relinquishing jurisdiction to the Board of Medicine after the parties failed to timely file documents while the case was held in abeyance. The Hearing Officer in the initial case subsequently denied both the Petitioner's Motion to Re-open the case and the Respondent's Motion for Attorneys Fees.
After the present complaint was filed, the Respondent sought to have it dismissed arguing, among other things, that Petitioner had reneged on a settlement agreement and/or that any further action was precluded under the doctrine of res judicata. Respondent unsuccessfully sought review by the Fourth District Court of Appeals to bar the continued prosecution of this case.
Subsequently, Hearing Officer Arrington denied several prehearing motions including: Respondent's Motion to Dismiss the Complaint; Respondent's Motion to Suppress Investigative Information; Respondent's Motion to Exclude Transcript of Interview; Respondent's Motion to Compel Discovery and Compliance with Section 120.53, Florida Statutes; Respondent's Renewed Motion to Compel Discovery; Respondent's Motion for Partial Summary Final Order; Respondent's Motion for Relinquishment of Jurisdiction/Continuance; and Petitioner's Motion for a Protective Order.
On January 7, 1991 Hearing Officer Arrington entered an Order of Prehearing Instructions and an Amended Notice of Hearing rescheduling the hearing for March 28-29, 1991 in Fort Lauderdale, Florida. Prior to the hearing, Hearing Officer Arrington granted Respondent's Motion for Official Recognition and Petitioner's Motion for Official Recognition regarding certain rules and statutes.1
On March 27, 1991, the case was transferred to Hearing Officer J. Stephen Menton and the case began as scheduled on March 28, 1991. The parties were advised at the outset of the hearing that the rulings made by Hearing Officer Arrington would be considered the law of the case. The parties were further advised that they would be given an opportunity to preserve the record for review purposes, but the rulings made by Hearing Officer Arrington on the various prehearing motions would be followed for purposes of the administrative hearing.
At the commencement of the hearing, Count III was voluntarily dismissed by Petitioner and paragraphs 16 and 25 of the Administrative Complaint were verbally amended without objection to reflect the correct Florida Statute citations.
During the hearing, Petitioner presented the testimony of seven witnesses: Daniel O'Connell, who is employed as an investigator by Petitioner; B.D., the mother of D.D.; Michael Halprin; Police Officer Charles Curtis; Police Officer Patricia Eng; Bruce Landy, M.D.; and Martin Zfaz, M.D. At the hearing, the Respondent moved to exclude the testimony of Petitioner's two expert witnesses, Dr. Landy and Dr. Zfaz. The witnesses were allowed to testify and ruling on the objections was reserved. Respondent filed written Motions to Exclude regarding each of those witnesses on April 15, 1991. Petitioner's Response to Respondent's Motion to Exclude was attached and incorporated in Petitioner's Proposed Recommended Order. After considering the verbal and written arguments of the parties, the objections are overruled and the testimony of both witnesses has been considered in the preparation of this Recommended Order.2
Petitioner had fifteen (15) exhibits marked for identification at the hearing. Petitioner's Exhibit 1 is the handwritten name of D.D. which was used during the hearing to identify the patient while preserving her confidentiality. The Exhibit also identified D.D.'s mother. This exhibit and all of the other exhibits which identify D.D. or her mother, B.D. by name have been and should remain "sealed" in order to preserve the patient's confidentiality.
Petitioner's Exhibit 2 was a copy of the Respondent's prehearing stipulation in this case. This Exhibit was offered only to establish the stipulated facts in this proceeding. Petitioner's Exhibit 3 was a copy of Respondent's Response to Request for Admissions, Request for Production of Documents and Interrogatories. This Exhibit was accepted only for the limited purpose of establishing the admissions made by Respondent. Petitioner's Exhibits 4-83 and 10-14 were accepted into evidence. Petitioner's Exhibit 9 was not offered in evidence.
Petitioner's Exhibit 15 is a deposition of Dr. Fernando de Elejalde, who was an expert witness retained by Respondent. During the hearing, Respondent objected to the introduction of this deposition. Ruling on that objection was reserved. After further review and consideration, that objection is hereby overruled.
At Petitioner's request, official recognition has been taken of Sections 893.02, 893.03, 893.05 and 893.07, Florida Statutes, as well as the statutes and rules cited in Petitioner's Motion for Official Recognition filed on January 3, 1991.
Respondent testified on his own behalf and also presented the testimony of Shirley Palma, a Records Custodian with North Broward Medical Center, and Police Officer Robert Holdorf. Respondent also offered the deposition testimony of Patrick Callaghan, M.D. and Fernando de Elejalde, M.D. Those depositions were accepted without objection. Respondent had sixteen (16) exhibits marked for identification during the course of the hearing. Respondent's Exhibits 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 15 were accepted into evidence. Petitioner's Exhibit 14 was withdrawn by the Respondent. Respondent's Exhibits 1 and 5 were not admitted in evidence. These Exhibits were "medical records" allegedly prepared by Respondent regarding his treatment of D.D. These exhibits had not been produced by Respondent as required in the Prehearing Stipulation, therefore, they were not accepted into evidence. In addition, as discussed in more detail below, the undersigned Hearing Officer has rejected as not credible the testimony of Respondent that these "medical records" were kept contemporaneously with Respondent's treatment of D.D. Respondent's Exhibit 8 was a vial of Dilaudid which was produced at the hearing, but is not included as part of the record in this case because it is a controlled substance. The notations on the bottle and the volume remaining in the bottle were noted for the record. Respondent's Exhibit 16, which was a letter from counsel for Respondent to counsel for Petitioner regarding the availability of the vial for testing purposes, was not accepted into evidence.
A transcript of the proceeding has been filed. Both parties have submitted proposed recommended orders. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.
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, the Respondent was licensed as a physician in the State of Florida having been issued license number ME 0006795. Respondent has been a licensed physician since 1955. No evidence of any prior disciplinary action against Respondent was presented.
At all times pertinent to this proceeding, Respondent was a Board Certified Urologist. He has been certified in that specialty by the American Board of Urology since 1971. The practice of urology is a specialty in the field of medicine focusing on the treatment of the urinary tract and diseases of the kidney, prostate, bladder and genitalia.
On or about October 1985, the Respondent was practicing urology in Fort Lauderdale, Florida when he met D.D., a patient's girlfriend. Shortly thereafter, he hired D.D. to help in his office. D.D. worked at the Respondent's Fort Lauderdale office until late December 1985 when, as discussed in more detail below, the Respondent fired her.
In October, 1985, D.D. was a 27 year-old female with a history of drug and alcohol abuse which began during her teenage years. From the outset of her employment with Respondent, D.D.'s relationship with Respondent was not a typical employer/employee or physician/patient association. While there is no evidence of any sexual relationship between D.D. and Respondent other than "some mild foreplay," the relationship was fraught with sexual overtones. Respondent prepared a typewritten summary of his version of the relationship which was accepted into evidence as Petitioner's Exhibit 5. This "resume" details the unusual relationship that developed. As reflected in this "resume," Respondent loaned money to D.D. and brought her expensive Christmas presents. In addition, during the period from October 1985 through February 1986, Respondent and D.D. frequently dined together. On several occasions while they were together, D.D. became intoxicated and exhibited bizarre and troublesome behavior.
On October 13, 1985, four days prior to starting work at the Respondent's office, D.D. presented at the Boca Raton Hospital Emergency Room (the "Boca Raton E.R.") for treatment of post-abortion complications. The hospital record of that visit indicates that D.D. had alcohol on her breath and had a history of drug and alcohol abuse. During that visit, D.D. was provided with Keflex (an antibiotic) and was given an intramuscular injection of 2 mgs. of Stadol, a controlled substance. Between the time of D.D.'s visit to the Boca Raton ER and the time she started working for Respondent, Respondent arranged to provide D.D. with Keflex samples which he had in his office. He provided the Keflex to her because she supposedly did not have enough money to fill her prescription.
D.D. began working for Respondent on October 17, 1985. While D.D. was in his employ, Respondent entered into a physician-patient relationship with
D.D. and began treating her for her post-abortion complications which he described as "pain in the lower left quadrant". Pain in the lower left quadrant resulting from post abortion complications is a medical condition which is normally treated by a physician in the specialty area of gynecology, not urology. Respondent contends that he undertook to treat D.D. because she had limited funds and he wanted to help insure that his employee was healthy.
On October 18, 1985, the day after she began work, Respondent provided
D.D. with one tablet of the legend drug Tylenol #3 for her pain prior to conducting a physical examination and without reviewing the chart from the Boca Raton ER or discussing the case with her prior physician.
Between October 23 and November 20, 1985, Respondent conducted at least five separate pelvic examinations of D.D., reviewed her sonogram test results, had a pregnancy test performed on her and a culture taken. Respondent diagnosed D.D.'s condition as severe pain coming from residual-decidual fragments following her September 28, 1985 abortion. During this period, Respondent treated her continuing complaints of pain with Stadol because D.D. claimed Tylenol #3 had been ineffective.
Respondent had some Stadol samples in his office which had been provided by the manufacturer's representative. During the period from October 21, 1985 through November 18, 1985, Respondent administered approximately 12 injections of Stadol to D.D. in response to her complaints of pain while at work. There is no evidence that more than one injection was ever given on any one day or that any injection exceeded 2 mgs.
Tylenol #3 is a legend (prescription) painkilling drug and is a Schedule III controlled substance pursuant to Chapter 893, Florida Statutes. It contains codeine and can produce psychic and physical dependence and should be prescribed and administered with caution.
Stadol is a legend (prescription) drug which is a potent analgesic pain killer. Because of its antagonist properties, Stadol is not recommended for patients physically dependent on narcotics. Detoxification of narcotic dependent patients is strongly suggested prior to use. At all pertinent times, Stadol was not a scheduled drug. However, the Physician's Desk Reference ("PDR") recommends that special care be exercised in administering Stadol to emotionally unstable patients and to patients with a history of drug misuse.
Tylenol #3 is indicated for the relief of mild to moderate pain and Stadol is used to relieve moderate to severe pain. The PDR indicates that the dosage of Tylenol should be adjusted according to the severity of pain and the response of the patient. Tylenol #3 is usually administered orally and one or two tablets may be given every four hours as required. Stadol is usually administered through intramuscular or intravenous injection. The usual recommended single dose for Stadol is 2 mgs. for intramuscular administration. The effective dosage range, depending on the severity of pain, is 1-4 mgs. repeated every three to four hours for intramuscular administration.
Respondent contends that he only administered Stadol to D.D. after observing her in his office and listening to her complaints of severe pain while in the office. He claims that he inquired as to her prior medical history and was advised that she was not a drug user. D.D. also advised that the Tylenol #3 had been ineffectual.
Following the onset of menses on approximately November 21, 1985, Respondent contends that D.D.'s complaints of pain diminished and she no longer sought pain medication from him.
Respondent contends that, prior to administering any injections to D.D., he contacted the Boca Raton ER and obtained specific information regarding the tests that had been performed on D.D. at the hospital. While the Boca Raton ER records specifically mention D.D.'s history of substance abuse, Respondent denies seeing the actual hospital records and denies being told by the hospital staff that D.D. had a history of drug and alcohol abuse. In fact, Respondent denies having any knowledge that D.D. had problems with substance abuse until sometime after Thanksgiving in 1985. No persuasive evidence was presented to refute these claims and/or establish that Respondent saw the ER records in 1985.
Petitioner contends that Respondent should have discovered that D.D. had a history of alcohol and drug abuse prior to administering Tylenol and Stadol to her during the October through November, 1985 period. This information could have been discovered from a review of the October 13, 1985 ER record. While D.D.'s sometimes bizarre behavior during this period should have made him more cautious, it cannot be concluded based upon the evidence presented that Respondent knew or should have known that D.D. had a serious drug problem until late November, 1985.
Respondent admits to increasing concern or "second thoughts" in late November regarding D.D.'s possible drug use. Around November 19th or 20th, Respondent discovered two syringes and needles in the waste basket of his office which had not been used by him. This evidence suggested to him that D.D. may have been using drugs in the office. Around the same time, he had conversations with D.D.'s mother who confirmed that her daughter had a long history of drug and alcohol problems. Respondent hid the remaining Stadol in his desk. Based on subsequent conversations with D.D., Respondent now believes that she gained access to and used that Stadol while still in his employ.
After Thanksgiving, Respondent noticed a marked change in D.D.'s disposition and behavior. Respondent discussed the situation with a psychiatrist friend of his and, based upon those conversations, began providing
D.D. with Limbitrol, which is a combination of an antidepressant and Librium.4
Limbitrol is an antidepressant used in the treatment of psychotic patients who are having psychotic episodes or are going through alcohol or drug withdrawal. Respondent had received some samples from the manufacturer's representative and, at D.D.'s request, sought additional samples.
During the month of December, 1985, Respondent and D.D. frequently dined together and, on occasions, went to bars or parties together. During this time, there were several incidents that indicated pretty clearly that D.D. was involved in illicit drug use.
On December 23, 1985, Respondent monitored at least two phone conversations during which D.D. phoned in false prescriptions for Stadol using another physician's name and DEA number.
During the latter part of December, Respondent became very concerned about some of D.D.'s friends and certain suspicious activities that he noted. Respondent became apprehensive that D.D. may be "setting him up" for some sort of drug transaction. He reported his concerns to the police.
On December 30, 1985, Respondent advised D.D. that she was "fired" as of December 31, 1985. Respondent says he fired her because he suspected her of stealing from the office petty cash fund, using drugs in his office and using his office to order prescription drugs, i.e., Stadol, for herself. He notified the Pompano Police Department of her suspected activities.
During January of 1986, Respondent was in frequent telephone contact with D.D. They had dinner at least one time during January. He also saw her on at least one other occasion when she came to his house. During this month, Respondent discovered that D.D. had removed the sample box of Limbitrol from his office. She refused to return it to him.
Based upon his phone conversations and other interactions with D.D. during January, Respondent concluded that she was drinking excessively and/or taking drugs. Respondent contends that throughout the month he frequently cautioned her about the dangers of drugs and advised her of her need for treatment.
Early on Saturday morning February 1, 1986, D.D. called Respondent claiming that she was in severe pain and needed to get to a hospital.
At approximately 8:30 a.m., Respondent, accompanied by an off duty policeman, went to D.D.'s residence. At the residence, D.D. stated that she had been at a party the night before and had been raped by her boyfriend and his friends. She complained of severe pain in the left pelvis and in the lower abdomen. Respondent examined her, took her blood pressure and pulse and gave her a 2 mg. injection of Stadol.
After approximately ten to twenty minutes, D.D.'s condition had not improved and she continued to complain of pain. D.D. was very unsteady on her feet, disoriented and, at times, speaking unintelligibly. Respondent and the off duty police officer proceeded to take her to the North Broward General Hospital Emergency Room. Respondent's name and signature appear on the ER record as the attending physician. That ER report listed D.D.'s chief complaint as pain in the lower left quadrant. Drug withdrawal was not mentioned on the ER record.
While D.D. was in the Emergency Room, Respondent made rounds to visit his other patients in the hospital. He also contacted D.D.'s mother, B.D., who expressed a strong desire to have her daughter placed in a facility to treat her drug and alcohol problems.
After speaking with Respondent on the morning of February 1, B.D. contacted the Coral Springs Care Unit, a drug and alcohol treatment center.
B.D. spoke with Michael Halprin, the Emergency Director of the facility, who indicated that he was willing to go to the Emergency Room to evaluate D.D. for admission to the Care Unit and to assist in getting her there. B.D. contacted Respondent and advised him of her discussions with the Coral Springs Care Unit.
Mr. Halprin made several calls to the Emergency Room and was told that
D.D. was in an agitated state and was being cared for by Respondent. Subsequently, Mr. Halprin spoke with Respondent who questioned him regarding the detoxification of an individual who was chemically dependent. Mr. Halprin advised Respondent that the best place for such an individual would be in a drug and alcohol rehabilitation center under nursing care. Mr. Halprin told
Respondent that he was willing to go to the ER, as he had done for other patients in the past, to evaluate D.D. for admission to the Care Unit and that he would assist in getting her there.
Respondent contends that the Coral Springs Care Unit was not willing to pick up D.D. from the Emergency Room and/or treat her until they could confirm that she was able to pay for the necessary services. This contention is rejected as contrary to the greater weight of the evidence.
At approximately 9:30 or 10:00 that morning, Respondent ordered a 4 mg. injection of Stadol for D.D. which was given to her intramuscularly. In addition, Respondent ordered blood tests and laboratory tests and reexamined her. The Stadol appeared to alleviate some of D.D.'s pain, however, she was still somewhat agitated. The lab tests conducted on D.D. were normal. There was no indication that her temperature was high, her pulse, respiration and blood rate were relatively normal and she was not nauseous or otherwise exhibiting signs of acute drug withdrawal.
During the course of the morning, D.D. became more agitated and indicated that she was still in pain and the Stadol was not providing her any relief. Respondent attempted to contact certain physicians that he knew who were familiar with treating patients undergoing drug withdrawal. Respondent also tried to contact a few hospitals and facilities that he knew provided treatment to such individuals.
At some point, Respondent contacted Dr. de Eljalde, a board certified psychiatrist and neurologist, to determine whether he could treat the patient and/or the appropriate drugs to use for detoxifying D.D. Dr. de Eljalde indicated that he would be willing to treat D.D. when a bed became available at Imperial Point Hospital. In the meantime, Dr. de Eljalde advised Respondent to use Dilaudid and Talwin in decreasing dosages until she could be admitted.
While Respondent now contends that his discussion with Dr. de Eljalde took place on the morning of February 1, 1986, his discussion with Dr. de Eljelade was not mentioned in the interview conducted on May 8, 1986 or in the "resume" which Respondent prepared prior to that interview. In view of the conclusions reached in this Recommended Order, it is not necessary to determine exactly when the contact with Dr. de Eljalde was actually made. However, the more persuasive evidence indicates that the contact was made sometime after D.D. left the ER.
At approximately 12 noon, Respondent administered another injection of Stadol to D.D. At approximately 12:45 p.m., Respondent administered a 1cc. (2 mg.) injection of Dilaudid. Dilaudid is a hydrogenated ketone of morphine. It is a powerful narcotic analgesic, and a Schedule II controlled substance. Psychic dependence and/or physical dependence may develop upon repeated administration. The PDR provides that it is indicated for moderate to severe pain due to surgery, cancer, trauma, biliary colic, myocardial infarction, burns and renal colic.
Within a very short time after the Dilaudid injection, D.D. showed significant improvement and expressed her desire to leave the hospital.
In view of D.D.'s marked change following the administration of Dilaudid, Respondent concluded that D.D. was experiencing withdrawal from narcotics. D.D. would not disclose to Respondent the exact type or amount of drugs that she had been taking. As indicated above, several diagnostic tests were conducted, however, all test results were normal. Other than D.D.'s agitation and complaints of pain, there were no clinical or diagnostic indications of drug or alcohol withdrawal or any other emergency condition.
After D.D.'s mental and physical condition improved following the injection of Dilaudid, Respondent decided to treat D.D. at his residence and had her discharged to his care. He took her to lunch and then brought her to his house.
Based upon his knowledge and experience and the practices at the time, Mr. Halprin had the authority to involuntarily place patients in a facility for observation if necessary. Respondent took D.D. to his house despite Mr. Halprin's willingness to evaluate her at the Emergency Room for placement. Respondent did not contact B.D. or Mr. Halprin before leaving the hospital with
D.D. Both Mr. Halprin and B.D. were very surprised when they learned that Respondent left the hospital with D.D. before Mr. Halprin had an opportunity to see her.
Respondent claims that D.D. insisted that he treat her and that she adamantly refused to go to the Coral Springs Care Unit. Respondent contends that D.D. agreed to treatment at the Imperial Point Hospital Psychiatric Unit if a bed opened up on Monday. In the meantime, he claims that he was "maintaining" her until she could get treatment.
D.D. remained at Respondent's residence from the afternoon of February 1, 1986 until the morning of February 3, 1986. Respondent admits to administering three additional 2 mg. injections of Dilaudid as follows: at approximately 6:30 p.m. on February 1, 1986; between midnight and 1:00 a.m. on February 2, 1986; and between 8:00 and 9:00 a.m. on February 2, 1986. On the afternoon of February 2, 1986, Respondent administered a 1cc.(30mg.) injection of Talwin. Respondent felt the Talwin was "not working" and he noticed some changes in D.D.'s behavior. Therefore, he administered another 2 mg. injection of Dilaudid to D.D. at approximately midnight that evening. At 8:00 a.m. the next morning, February 3, 1986, Respondent administered another 30 mg. injection of Talwin to D.D.
According to the PDR, the usual starting dose for Dilaudid is 1-2 mg. intramuscularly every four to six hours as necessary for pain control. The dose should be adjusted according to the severity of the pain. A gradual increase in the dose may be required if analgesia is inadequate, tolerance occurs or if pain severity increases. Talwin is a legend (prescription) drug and a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. It is a potent analgesic and 30 mg. of Talwin is usually as effective as 10 mg. of morphine. Talwin carries with it a special warning for prescribing this drug to emotionally unstable patients and patients with a history of drug abuse. For Talwin, the recommended single intramuscular dosage is 30 mg. which may be repeated every three to four hours.
Respondent did not and does not hold any licenses, permits or authorizations from any federal or state agency to detoxify persons addicted to controlled substances. Under the federal regulations governing the dispensing of narcotic drugs for detoxification treatment or "maintenance treatment", any physician can administer narcotic drugs in certain instances. Physicians who
are not specifically registered to conduct a narcotic treatment program are authorized to administer (but not prescribe) narcotic controlled substances to a person as part of "maintenance treatment" for the sole purpose of relieving acute withdrawal symptoms when necessary while arrangements are being made for referral for treatment. Not more than one day's medication may be administered to the person or for the person's use at one time. Such an emergency treatment may be carried out for not more than three days and may not be extended or renewed. Respondent argues that his conduct in this case falls within the allowed "maintenance treatment" of the federal regulations (which have been followed by the Board.) However, based upon all of the facts in this case, it is concluded that Respondent has not adequately demonstrated that the injections he administered were "necessary" or that appropriate efforts were being undertaken to arrange necessary treatment.
In view of all the circumstances and evidence presented in this case, it is concluded that Respondent undertook to treat D.D. at his personal residence without fully and adequately exploring more appropriate treatment by better trained professionals at a more suitable facility. Respondent should not have undertaken the "detoxification" or "maintenance" of D.D. with such powerful narcotics without a better understanding of the patient's history and a better treatment plan than simply "maintaining" her with whatever dosage was necessary.
Because Dilaudid is a very powerful drug with potential impacts on the respiratory center, heart rate and pulse rate as well as other possible complications, the frequent or large volume utilization of Dilaudid should only take place in a hospital or similar setting where the patient can be closely monitored and the resources are available to address potential problems.
Conflicting testimony was presented as to whether Dilaudid is ever an appropriate drug to use for maintaining and/or detoxifying an addicted patient. That conflict need not be resolved in this case. Given all of the facts and circumstances, including, but not limited to, Respondent's lack of knowledge as to the specific drugs that D.D. was taking, the absence of acute withdrawal symptoms, Respondent's knowledge that D.D. had been taking Limbitrol, the Respondent's lack of training, and the setting in which the drugs were administered, it is concluded that Respondent's administration of Dilaudid to
D.D. during the weekend of February 1-3, 1986 was inappropriate and, therefore, was in violation of Section 458.331(1)(q), Florida Statutes.
After leaving the ER, Respondent spoke with D.D.'s mother and told her that all of D.D.'s tests were normal and that D.D. was with him at his house and that he was going to "wean her off" drugs slowly. D.D.'s mother was upset with this arrangement and called the police. The police went to Respondent's house on February 2, 1986. Respondent only reluctantly allowed them to enter. The police officer noted that D.D. appeared to be under the influence of some intoxicant and was wearing only panties and a T-shirt. However, because the officer could not conclude that D.D. was being held against her will, no action was taken. During the visit, Respondent told the officer that he had overreacted in his prior police complaint that D.D. had placed false prescriptions. Respondent asked the police officer to delete this prior report. No cogent explanation has been given for this request and it tends to confirm that Respondent's motives during this period were not wholly alturistic.
On the morning of February 3, 1986, Respondent left D.D. at his residence and went to make hospital rounds before going to his office for work.
Respondent returned to his residence at approximately noon and let a friend of D.D. enter the house to stay with her. At approximately 2:00, he received a call from the friend who was leaving to go to work and said that D.D. was becoming very agitated and unruly. Respondent returned home and found D.D. in an extremely agitated and aggressive state. He called the police.
When the police officers came to Respondent's house, D.D. was still clad only in panties and a T-shirt. She was extremely agitated and made a wide variety of accusations against Respondent. D.D. pointed to her buttocks where there were numerous injection marks, and screamed that Respondent had been "sticking me with drugs." D.D. had to be physically restrained and removed from Respondent's residence and taken to a hospital. Subsequently, after meeting with Michael Halprin, she was placed in the drug treatment program at the Coral Springs Care Unit.
Respondent's treatment of D.D. during the period February 1-3, 1986 constituted practice below an acceptable standard of medical care.
Respondent should not have taken a suspected drug addict from the ER to treat her with a powerful narcotic, Dilaudid, at his home. Even Respondent's own expert called it unwise to treat a patient with narcotics at a personal residence. After the injection of Dilaudid at the hospital, D.D. appeared fine. She was not screaming and there was no medical reason to take the patient from the ER to the Respondent's home. A review of her vital signs at the ER and the results of the diagnostic tests do not reflect any clinical indication associated with drug withdrawal. In addition, there are numerous complications that can occur as a result of using a powerful medication such as Dilaudid, including decreased respiration, slowing of the heart rate and pulse rate and a drop of the blood pressure. If Dilaudid was to be used, the patient should have been kept in a setting where her condition was closely monitored.
There is a great deal of confusion regarding the Respondent's "medical records" of his treatment of D.D. When interviewed by Petitioner's Investigator on May 8, 1986, the Respondent was asked for a copy of his patient medical records regarding D.D. The Investigator served a Patient Release Form on Respondent which directed that he provide "full and complete medical records, medical reports, psychological, psychiatric reports, and information including reports or information prepared by other persons that may be in your possession and all financial records to the Florida Department of Professional Regulation or any official representative of the Department pursuant to Section 455.241, Florida Statutes." In response, the Respondent indicated that he had not really kept medical records, but he provided the Investigator with a copy of his "resume" regarding his dealings with D.D. This "resume" was clearly prepared after the described incidents took place and does not constitute a "medical record" for purposes of Section 458.331(1)(m).
At Respondent's request, the Investigator returned to Respondent's office several days after the May 8, 1986 interview to pick up Petitioner's Exhibit 7, which were notes of Respondent's treatment of D.D. from October through December, 1985. At the hearing, Respondent's Exhibits 1 and 5 were produced for the first time. Respondent contends that these exhibits are the medical records of his treatment of D.D. for the October through December, 1985 period. As indicated in the Preliminary Statement, Respondent's Exhibits 1 and
5 were not accepted into evidence because they were not properly identified as required in the Prehearing Order. Respondent's claim that Respondent's Exhibits
1 and 5 were provided to the Investigator who allegedly lost them is rejected as not persuasive. In any event, after considering all of the evidence, it is
concluded that Petitioner's Exhibit 7 and Respondent's Exhibits 1 and 5 were not contemporaneous records regarding Respondent's treatment of D.D., but, instead, were prepared after the fact 56. Accordingly, it is concluded that the Respondent failed to maintain adequate medical records to justify his treatment of D.D. at his office during the period October 1985-December 1985. In addition, Respondent did not keep adequate records of his treatment of D.D. while she was at his home from February 1-3, 1986. Respondent failed to keep adequate patient records by failing to record the drugs he prescribed and/or administered, the dosage amounts, and the patient's condition during this period.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.57, Florida Statutes.
Under the provisions of Section 458.331(2), Florida Statutes, the Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for any of the following violations of Section 458.331(1), Florida Statutes:
(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.
* * *
(m) Failing to keep written medical records justifying the course of treatment of
the patient, including, but not limited to, patient histories; examination results; test results; records of drug prescribed, dispensed, or administered; and reports of consultations and hospitalizations.
* * *
(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.
Disciplinary action with respect to a professional license is limited to the offenses and facts alleged in the Administrative Complaint. Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So.2d 1324, 1325 (Fla. 1st DCA 1985). The Administrative Complaint in this case charges Respondent with violating the three subsections cited above, Sections 458.331(1)(m),(q) and (t), Florida Statutes, in his treatment of D.D.
Petitioner has the burden of proof in this license discipline case and must prove the allegations set forth in the Administrative Complaint by clear and convincing evidence. Ferris vs. Turlington, 510 So.2d 292 (Fla. 1987).
The relationship which developed between the Respondent and D.D., according to the Respondent's own written recollection of the events, was unusual to say the least. By his own admission, the Respondent enjoyed the company of D.D. during this period. He maintained a social relationship with her, which included going to dinner together, driving her back and forth to work, going to parties together, loaning her money, buying her expensive gifts and, on at least one occasion, engaging in mild sexual foreplay. This relationship was set against a backdrop of Respondent's increasing awareness that D.D. was using the relationship to get drugs.
After firing D.D. in December 1985 for theft and drug abuse, the Respondent was fearful of D.D. and her friends and reported her activities to the police. He also hired off-duty police to protect his office. Notwithstanding this history, and his growing realization that D.D. was using their relationship to get drugs, Respondent took D.D. to his house on February 1, 1986 and administered powerful narcotics to her.
Despite the availability and willingness of Mr. Halprin to come to the ER and evaluate D.D., the Respondent did not allow Mr. Halprin to see D.D. at the ER. Instead, he developed his own "maintenance" program which he implemented at his residence. There was no emergency to justify Respondent's treatment approach. There were other people, including the Director of a Care Unit, available to help.
Respondent's "maintenance" program consisted of injecting D.D. with Dilaudid, Talwin and Stadol until he was forced to call the police. After 48 hours of Respondent's "maintenance" treatment, the patient became so uncontrollable that the police had to physically restrained her.
The Administrative Complaint alleges that the Respondent violated Section 458.331(1)(q), Florida Statutes by inappropriately or excessively prescribing Dilaudid, Talwin and Tylenol #3, scheduled controlled drugs, and Stadol, a legend drug, to a drug dependent person at his office and later at his private residence. It is clear that all of these drugs were administered or ordered for D.D. by the Respondent. However, insufficient evidence was presented to conclude that Respondent's administration of Tylenol and Stadol to
D.D. during the period from October to November 1985 was inappropriate or excessive.
There is no evidence that Respondent administered more than one Tylenol #3 tablet to the patient. At the time that he gave her the Tylenol #3, Respondent knew of the patient's complaints of severe pain in her left lower quadrant, that she had recently had an abortion, that she had been running a fever, and that she had sought prior medical treatment at the Boca Raton Community ER. Prior to his administration of the Tylenol #3 tablet, Respondent had dispensed the antibiotic Keflex to D.D. Even though he had not conducted a physical exam of the patient, the evidence indicates that the administration of the Tylenol #3 was during office hours and was approximately two hours prior to D.D.'s departure from work. Thus, Respondent was in a position to observe her reaction, if any, to the drug. Tylenol #3 is appropriate for pain and the amount administered by Respondent was within the recommended dosage. No conclusive evidence was presented to establish that Respondent knew or should have known at this point in time that D.D. had a problem with substance abuse. While he probably should have been more cautious, it can not be concluded that Respondent's administration of Tylenol #3 was inappropraite or excessive.
Similarly, Respondent's administration of Stadol to D.D. during this period for her gynecological problem was not shown to be inappropriate or excessive. Respondent was aware of some of D.D.'s history as noted above. Respondent had contacted the Boca Raton ER regarding D.D.'s recent treatment and he was aware that she had been given Keflex and 2 mgs. of Stadol for pain while in the ER. Respondent also observed D.D. and heard her continued complaints of severe pain in the left lower quadrant while working. Under these circumstances, it cannot be concluded that the administration of 2 mgs. of Stadol to the patient prior to performing the first pelvic examination was inappropriate. Again, Respondent probably should have been more cautious. However, the evidence was insufficient to refute Respondent's clinical observations and his conclusion that he had sufficient personal knowledge of the patient's physical condition and prior medical treatment to justify the administration of this drug in the amount administered. With respect to the subsequent injections of Stadol during October and November, 1985, there is no evidence that the amount administered ever exceeded the single dosage amount recommended by the PDR. The evidence indicates that twelve injections were given over the twenty-eight day period of the treatment. The total administered was below the cumulative total dosage that could have been administered. Certainly, Respondent should have had a growing concern and awareness of D.D.'s substance abuse problem, especially in view of his close personal relationship with her. However, the evidence was insufficient to establish that Respondent's knowledge of D.D.'s problems in October and November was such that he should have halted the administration of Stadol which was otherwise indicated to relieve the patient's complaints of pain.
Clear and convincing evidence was presented that Respondent's administration of Dilaudid and Talwin was inappropriate and excessive. Respondent treated D.D. with these powerful narcotic medications at his home during the weekend of February 1-3, 1986. It was medically inappropriate to administer these controlled substances to a suspected drug addicted person at a private residence where there were inadequate resources and medical controls to adequately monitor such an individual. The Director of a rehabilitation clinic was ready, willing and able to come to the North Broward Hospital ER to evaluate D.D. for placement in the Care Unit. Respondent, with no valid medical reason, took D.D. from the hospital to his house for "maintenance" treatment without fully exploring more appropriate options. Respondent did not have adequate training or experience to appropriately administer the drugs and/or to "maintain" a suspected addict. Moreover, the Respondent inappropriately prescribed and administered Dilaudid and Talwin to D.D. without fully obtaining her history.
These same facts establish that Respondent violated Section 458.331(1)(t), Florida Statutes in his treatment of D.D. 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. Respondent's medical judgment was apparently clouded by his personal involvement with D.D. While he claims that he was trying to salvage a woman who had "a great deal of potential," the evidence established that he exercised poor medical judgment.
The evidence in this case also clearly and convincing established that Respondent violated Section 458.331(1)(m), Florida Statutes, by failing to maintain adequate medical records to justify his course of treatment of D.D. Respondent did not keep adequate records of the treatment rendered to D.D. at his house or at his office. It is concluded that Petitioner's Exhibit 7 and Respondent's Exhibits 1 and 5 were not prepared until after Respondent's treatment of D.D. ended. In addition, there are no records to justify Respondent's course of treatment at his house on February 1-3, 1986.
In sum, Petitioner has met its burden by clear and convincing evidence that Respondent's treatment of the patient D.D. violated Sections 458.331(1)(q),
(m) and (t), Florida Statutes, as set forth above.
Disciplinary guidelines for violations of Section 458.331(1), Florida Statutes, are provided in Florida Administrative Code Rule 21M-20.001. Rule 21M-20.001(2) requires Petitioner to impose penalties within the stated range for each statutory violation. For a violation of Section 458.331(1)(m), Rule 21M-20.001(2)(m) requires a minimum penalty of a reprimand and administrative fine in the amount of $250 and authorizes a maximum penalty of two years suspension followed by probation, and an administrative fine of $5,000. For a violation of Section 458.331(1)(q), Rule 21M-20.001(2)(q) requires a minimum penalty of one year probation and an administrative fine of $250 and authorizes a maximum penalty of revocation and an administrative fine of $5,000. For a violation of Section 458.331(1)(t), Rule 21M-20.001(2)(t) requires a minimum
penalty of two years probation and an administrative fine of $250 and authorizes a maximum penalty of revocation and an administrative fine of $5,000.
Rule 21M-37.001(2) requires the Board of Medicine to take into consideration the following factors in determining the appropriate discipline in each case:
The severity of the offense;
The danger to the public;
The number of repetitions of offenses;
The length of time since the date of the violation;
The number of previous disciplinary cases filed against the...registrant;
The length of time...registrant has practiced;
The actual damage, physical or otherwise, to the patient;
The deterrent effect of the penalty imposed;
The effect of the penalty upon the...registrant's livelihood;
Any efforts for rehabilitation;
Any other mitigating or aggravating circumstances.
Determining the appropriate penalty requires careful analysis of the circumstances of the case in light of the guidelines set forth in the rule.
Key factors in determining an appropriate penalty are the severity of the offenses and the danger to the public. The offenses in this case were not slight, however, no conclusive evidence was presented to establish the short- term or long-term consequences of Respondent's conduct on D.D. While Respondent has practiced a long time without prior incident or discipline, Respondent's refusal to recognize the severity of his conduct mandates a penalty with some deterrent effect.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding
Respondent guilty of violating Sections 458.331(1)(q), (m) and (t), Florida
Statutes. As punishment therefore, Respondent should be (1) reprimanded, (2) fined $10,000, (3) suspended from the practice of medicine for six months, three months of which should be suspended if Respondent successfully completes board approved continuing Medical Education Courses, and (4) thereafter, Respondent should be placed on probation for a period of 3 years, the terms and conditions of which should be set by the Board of Medicine.
DONE and ENTERED this 12th day of June, 1992, at 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 12th day of June, 1992.
ENDNOTE
1/ Petitioner filed a second Request for Official Recognition regarding eight Final Orders entered by the Board of Medicine. As explained during the course of the hearing, Petitioner's citation to these Final Orders was in the nature of argument regarding the appropriate penalty to be imposed in this case. Those Final Orders have been reviewed and considered in the preparation of this Recommended Order.
2/ Essentially, Respondent argues that Dr. Landy's testimony should be excluded because he was not board certified in urology until 1989 and did not begin practicing medicine in Broward County until March of 1986. Respondent contends that, since the events at issue in this case took place between October, 1985 and February, 1986, Dr. Landy cannot properly comment on Respondent's treatment. Respondent argues that the testimony of Dr. Zfaz should be precluded because he did not reside or practice in Broward County during the time period at issue in this case and because he was not given all of the "salient" facts regarding Respondent's treatment of D.D. In support of both motions, Respondent cites to Section 766.102, Florida Statutes. Section 458.331(t), Florida Statutes
provides that the Board "shall give great weight to the provisions of s.766.102 when enforcing this paragraph..." However, Section 458.331(t) does not mandate the application of Section 766.102 in all administrative proceedings. In view of the facts and circumstances of this case and the nature of the challenged testimony, it is concluded that it would be inappropriate to exclude the testimony of either of the witnesses based upon the provisions of Section
766.102. It is noted that Respondent has not demonstrated that there were any pertinent changes in the field of urology from the time of the incidents in question until the time that Dr. Landy became board certified. Similarly, there was no persuasive evidence of any dissimilarity in the medical communities where Dr. Zfaz and Respondent practice. In any event, since Respondent was providing treatment for a condition which was not within his specialty, Dr. Zfaz's testimony clearly qualifies under Section 766.102(b).
3/ Respondent objected to Petitioner's Exhibits 4, 5, 6, 7 and 8 arguing, among other things, that Respondent did not have the advice of counsel prior to providing those statements and documents and Respondent was not advised of his rights against self-incrimination. These objections were initially raised in a Motion to Suppress Investigative Information which was denied by Hearing Officer Arrington. At the hearing, Respondent renewed the objections, which were again overruled. Respondent also argued that Petitioner's Exhibit 8, which was a transcript of an interview conducted on May 8, 1986 during which Respondent explained his treatment of D.D. to Daniel O'Connell, a department investigator, should not be admitted because the tape of that interview was lost and there was no way to confirm the accuracy of the transcription. Respondent was aware that the interview was being taped and consented to the taping. The investigator who conducted the interview testified at the hearing that he had reviewed the tape and transcript, made corrections to the transcript when he found it to be inaccurate and that the transcript offered at hearing (Petitioner's Exhibit 8) accurately reflected the interview. Based upon this testimony, Petitioner's Exhibit 8 was accepted under the provisions of Section 120.58(1)(a), Florida Statutes.
4/ At the hearing, Respondent objected to any testimony or references to Limbitrol on the grounds that the Administrative Complaint did not mention that drug and Respondent had not been charged with inappropriately prescribing that substance. Ruling on that objection was reserved. That objection is hereby overruled. No conclusions are reached in this Recommended Order regarding whether Respondent's administration of Limbitrol was appropriate. However, the facts surrounding Respondent's provision of Limbitrol to D.D. are pertinent to evaluating Respondent's treatment of the patient and his administration of other drugs.
5/ There is a serious question whether Respondent's Exhibits 6 and 7, which detail his treatment at the ER on February 1, 1986 were contemporanously prepared. Since it is clear that Respondent's records of his treatment of D.D. after her discharge are woefully inadequate, this issue need not be resolved.
APPENDIX
Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.
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 1.
Rejected as unnecessary.
Adopted in substance in Findings of Fact 2.
Adopted in substance in Findings of Fact 3 and 23.
Adopted in substance in Findings of Fact 42, except that there is no evidence that Respondent administered Stadol at his home during the weekend of February 1-3, 1986.
Adopted in pertinent part in Findings of Fact 4 and also addressed in Conclusions of Law 5.
The first sentence is adopted in substance in Findings of Fact 4. The remainder is rejected as constituting argument rather than a Finding of Fact.
Adopted in substance in Findings of Fact 4 and 5.
Adopted in substance in Findings of Fact 6, 7, 8 and 9.
Adopted in substance in Findings of Fact 11.
Adopted in substance in Findings of Fact 10.
Adopted in substance in Findings of Fact 19.
Adopted in substance in Findings of Fact 6.
Adopted in substance in the Preliminary Statement and in Findings of Fact 54.
Rejected as constituting argument.
Subordinate to Findings of Fact 54-56.
Subordinate to Findings of Fact 54.
Rejected as unnecessary.
19.-22. Subordinate to Findings of Fact 54-56.
23.-24. Rejected as a summary of testimony rather than Findings of Fact.
This subject matter is addressed in Conclusions of Law 10 and 11.
Adopted in substance in Findings of Fact 22, 23 and 27.
Adopted in pertinent part in Findings of Fact 28.
Adopted in pertinent part in Findings of Fact 33 and 38.
Adopted in substance in Findings of Fact 36 and 44.
Subordinate to Findings of Fact 30, 31, 32, 34 and 35.
Adopted in substance in Findings of Fact 31 and 32.
Adopted in substance in Findings of Fact 40.
Subordinate to Findings of Fact 39-42 and 50-51.
Adopted in substance in Findings of Fact 43.
Adopted in substance in Findings of Fact 48.
Adopted in pertinent part in Findings of Fact 48.
Adopted in pertinent part in Findings of Fact 48.
Subordinate to Findings of Fact 50 and 51.
Adopted in pertinent part in Findings of Fact 51.
Subordinate to Findings of Fact 53.
Subordinate to Findings of Fact 46 and 47.
Addressed in the Preliminary Statement.
Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 46, 47 and 52.
Adopted in pertinent part in Findings of Fact 46, 47, 52 and 53.
Subordinate to Findings of Fact 47.
Adopted in pertinent part in Findings of Fact 53.
Subordinate to Findings of Fact 46 and 47.
Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 54-56.
Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 46, 47, 52 and 53.
Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 54-56.
Rejected as constituting argument.
Rejected as constituting argument.
Rejected as constituting argument.
The Respondents'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.
Addressed in the Preliminary Statement.
Adopted in substance in Findings of Fact 1 and 2.
Subordinate to Findings of Fact 3-5.
Adopted in substance in Findings of Fact 5.
Adopted in substance in Findings of Fact 6.
Adopted in substance in Findings of Fact 7.
Subordinate to Findings of Fact 6 and 7 and also addressed in Conclusions of Law 10.
Adopted in substance in Findings of Fact 8, 9 and 13 and addressed in Conclusions of Law 11.
Adopted in substance in Findings of Fact 9.
Adopted in substance in Findings of Fact 12.
Adopted in substance in Findings of Fact 8.
Rejected as vague and indefinite as to time.
Subordinate to Findings of Fact 15 and 16.
Adopted in substance in Findings of Fact 3 and 23.
Subordinate to Findings of Fact 26 and 27.
Subordinate to Findings of Fact 27-35.
Subordinate to Findings of Fact 28, 35 and 41.
Subordinate to Findings of Fact 35.
Subordinate to Findings of Fact 40 and 41.
Subordinate to Findings of Fact 40-42.
Rejected as not established by confidence of substantial evidence. While the vial was produced at the hearing as noted in the Preliminary Statement, no tests on the contents of that bottle were provided.
Adopted in substance in Findings of Fact 43.
Rejected as unnecessary.
Subordinate to Findings of Fact 48.
Adopted in substance in Findings of Fact 49-51.
Adopted in substance in Findings of Fact 44.
Adopted in substance in Findings of Fact 44.
Rejected as contrary to the weight of the evidence and subordinate to Findings of Fact 44.
Rejected as unnecessary.
Rejected as unnecessary and subordinate to Findings of Fact 28, 33 and
38.
Rejected as contrary to the weight of the evidence and subordinate to
Findings of Fact 44.
Rejected as unnecessary.
Rejected as unnecessary and subordinate to Findings of Fact 44.
34.-35. The issue of the qualifications of the experts is addressed in the Preliminary Statement. The remainder of these proposalsis rejected as constituting argument.
Rejected as constituting argument. Pertinent portions of this proposal are addressed in Findings of Fact 35.
36.[sic] Subordinate to Findings of Fact 47.
Rejected as a summary of testimony and argument.
Rejected as contrary to the weight of the evidence.
Rejected as a summary of testimony and argument.
Subordinate to Findings of Fact 54-56.
COPIES FURNISHED:
Jack McRay, 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
Larry G. McPherson, Jr. Chief Medical Attorney Department of Professional
Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Charles L. Curtis, Esquire Allsworth, Doumar, Cazel,
Curtis & Cross
1177 S.E. Third Avenue
Fort Lauderdale, Florida 33316
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
DPR CASE NUMBER: 0068106
-vs- DOAH CASE NUMBER: 90-1500
LICENSE NUMBER: ME 0006795
WILLIAM F. GESSLER, 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 August 7, 1992, in Tallahassee, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, Petitioner's Response to Respondent's Exceptions and Petitioner's Exceptions to the Recommended Order (copies of which are attached hereto as Exhibits A, B, C, and D respectively) in the above-styled cause. Petitioner, Department of Professional Regulation, was represented by Larry G. McPherson, Jr., Attorney at Law. Respondent was present and represented by Charles L. Curtis, 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
Petitioner's Exceptions
Petitioner's Exception number 1 is GRANTED without objection by Respondent as an accurate reflection of the record.
Petitioner's Exception number 2 is GRANTED without objection by Respondent as an accurate reflection of the record. It is consistent with Respondent's Exception number 1.
Petitioner's Exception numbers 3 and 4 are GRANTED as a correct statement of the penalty applicable to an offense committed at the time the conduct alleged occurred. They are consistent with Respondent's Exception number 45.
Respondent's Exceptions
Respondent's exception number 1 is GRANTED without objection by Petitioner as an accurate reflection of the record. It is consistent with Petitioner's Exception number 2.
Respondent's Exception number 2 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 3 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 4 is DENIED for the reasons stated by Petitioner in the last sentence of its response. The Board does not agree that it has no authority to review evidentiary rulings.
Respondent's Exception number 5 is DENIED for the reasons stated by Petitioner in the last sentence of its response. The Board does not agree that it has no authority to review evidentiary rulings.
On the record at the hearing, Respondent's Exception number 6 was clarified to be an objection to the Hearing Officer's rejection of Respondent's claim that the "medical records" at issue were kept contemporaneously on the basis of lack of credibility. This Exception is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 7 is DENIED for the reasons stated by Petitioner orally and in writing except that the Board does not agree that it has no authority to review evidentiary rulings.
Respondent's Exception number 8 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 9 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondents Exception number 10 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 11 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 12 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 13 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 14 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 15 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 16 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 17 is DENIED for the reasons stated by Petitioner orally and in writing. 18. Respondent's Exception number 18 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 19 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 20 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 21 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 22 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 23 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 24 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 25 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 26 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 27 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 28 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 29 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 30 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 31 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 32 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 33 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 34 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 35 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 36 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 37 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 38 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 39 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 40 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 41 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 42 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 43 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 44 is DENIED for the reasons stated by Petitioner orally and in writing.
Respondent's Exception number 45 is GRANTED as to the amount of the fine, but is DENIED in all respects for the reasons stated by Petitioner orally and in writing.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order, as amended by the Board's rulings on the Exceptions, are approved and adopted and incorporated herein.
There is competent substantial evidence to support the findings of fact of the Board.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The conclusions of law set forth in the Recommended Order, as amended by the Board's rulings on Exceptions, are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of law of 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's license to practice medicine is REPRIMANDED.
Respondent shall pay an administrative fine in the amount of $3000 to the Board of Medicine, Department of Professional Regulation, 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 a period of 6 months; however 3 months of the suspension shall be stayed if Respondent completes the course offered by the University of South Florida and the Florida Medical Association entitled, "Protecting Your Medical Practice: Clinical, Legal, and Ethical Issues in Prescribing Abusable Drugs," or a Board-approved equivalent course. The Chair of the Probation Committee is authorized to approve or reject any course proffered as compliance with this provision.
Upon reinstatement from suspension, Respondent's license to practice medicine in the State of Florida is placed on PROBATION for a period of 3 years, subject to the following terms and conditions:
Respondent shall comply with all state and federal statutes, rules, and regulations pertaining to the practice of medicine, including Chapters 455, 458, and 893, Florida Statutes, and Rules 21M, Florida Administrative Code.
Respondent shall appear before the Probation Committee at the first meeting after said probation commences, at the last meeting of the Probation Committee preceding termination of probation, quarterly, and at such other times requested by the Committee. Respondent shall be noticed by Board staff of the date, time and place of the Board's Probation Committee meeting whereat Respondent's appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of this Order, and shall subject the Respondent to disciplinary action.
In the event Respondent leaves the State of Florida for a period of thirty (30) days or more, or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.
In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of the probation shall be tolled:
The time period of probation shall be tolled.
The provisions regarding supervision whether direct or indirect by another physician, included in paragraphs
f through h below
The provisions regarding preparation of investigative reports detailing compliance with this Order. See paragraph m below.
In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Probation Committee may require Respondent to appear before the Probation Committee and demonstrate his ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.
Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probation Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring physician, as provided below, Respondent shall cease practice and not practice until the Probation Committee or the Board approves a monitoring physician. Respondent shall have the monitoring physician with Respondent at the first probation appearance before the Probation Committee. Prior to approval of the monitoring physician by the Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee meeting shall constitute a violation of this Order. Prior to the approval of the monitoring physician by the Committee, Respondent shall submit to the Committee a current curriculum vitae and a description of the current practice from the proposed monitoring physician. Said materials shall be received by the Board office no later than fourteen days before Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of the monitoring physician shall include:
Submit quarterly reports, in affidavit form, which shall include:
Brief statement of why physician is on probation.
Description of probationer's practice.
Brief statement of probationer's compliance with terms of probation.
Brief description of probationer's relationship with monitoring physician.
Detail any problems which may have arisen with probationer.
Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.
Be available for consultation with Respondent whenever necessary, at a frequency of at
least once per week.
Review 25 percent of Respondent's patient records selected on a random basis at least once every month. In order to comply
with this responsibility of random review, the
monitoring physician shall go to Respondent's office once every month. At that
time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician.
Review all patient records of patients treated with Schedule II-V controlled substances.
Consult with Respondent on all cases involving psychiatric diagnoses.
Receive and review copies of all Schedule II-V controlled substance prescriptions in order to determine the appropriateness of Respondent's prescribing of controlled substances.
Report to the Board any violations by the probationer of Chapters 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.
The Board shall confer authority on the Chairman of the Board's Probation Committee to temporarily approve Respondent's supervisory/monitoring physician. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Probation Committee the name and curriculum vitae of the proposed supervisory/monitoring physician. This information shall be furnished to the Chairman of the Probationer's Committee by way of the Board of Medicine's Executive Director, within 48 hours after Respondent receives the Final Order in this matter. This information may be faxed to the Board of Medicine at (904) 487-9622 or may be sent by overnight mail or hand delivery to the Board of Medicine at the Department of Professional Regulation, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399- 0750. In order to provide time for Respondent's proposed supervisory/monitoring physician to be approved or disapproved by the Chairman of the Probation Committee, Respondent shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Order. If Respondent's supervisory/monitoring physician has not been approved during that time frame, then Respondent shall cease practicing until such time as the supervisory/monitoring physician is temporarily approved. In the event that the proposed supervisory/monitoring physician is not approved, then Respondent shall cease practicing immediately. Should Respondent's supervisory/monitoring physician be approved, said approval shall only remain in effect until the next meeting of the Board or the Probation Committee. Absent said approval, Respondent shall not practice medicine until a monitoring/supervising physician is approved.
In view of the need for ongoing and continuous monitoring or supervision, Respondent shall also submit the curriculum vitae and name of an alternate supervisory/monitoring physician to be approved by the Board or its Probation Committee. Such physician shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring/supervising physician, during those periods of time when Respondent's monitoring/supervisory physician is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring physician or the direct supervision of the alternate supervisory physician, Respondent shall so advise
the Board in writing. Respondent shall further advise the Board in writing of the period of time during which Respondent shall practice under the supervision of the alternate monitoring/supervisory physician. Respondent shall not practice unless he is under the supervision of either the approved monitoring/supervisory physician or the approved alternate.
Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:
Brief statement of why physician is on probation.
Practice location
Describe current practice (type and composition)
Brief statement of compliance with probation terms.
Describe relationship with monitoring/supervisory physician.
Advise Board of any problems.
Respondent shall attend 30 hours of Category I Continuing Medical Education courses in the area of medical recordkeeping and risk management. Respondent shall submit a written plan to the Chairman of the Probation Committee for approval prior to completion of said courses. The Board confers authority on the Chairman of the Probation Committee to approve or disapprove said continuing education courses. In addition, Respondent shall submit documentation of these continuing medical education courses in his quarterly reports. These hours shall be in addition to those hours required for renewal of licensure. Unless otherwise approved by the Board or the Chairman of the Probation Committee, said continuing education courses shall consist of a formal live lecture format.
Respondent shall not prescribe, administer, dispense, mix, or order any injectable Controlled Substances Schedule II-V, other than in the hospital setting, for a period of not less than the term of probation.
Respondent may prescribe Schedule II-V controlled substances with the restrictions set forth below:
Respondent shall utilize sequentially numbered triplicate prescriptions in the prescribing of said controlled substances.
Respondent shall provide one copy of each prescription for said controlled substances
to the Department's investigator within 30 days.
Respondent shall, within two weeks after issuance, provide one copy of each prescription for said controlled substances to his/her monitoring/supervising physician.
Respondent shall maintain one copy of each prescription for said controlled substances in the patient's medical record. This copy may be a xerox copy.
During this period of probation, semi-annual investigative reports will be compiled by the Department of Professional Regulation concerning Respondent's compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine.
Respondent shall pay all costs necessary to comply with the terms of the Order issued based on this proceeding. Such costs include, but are not limited to, the cost of preparation of investigative reports detailing compliance with the terms of this Order, the cost of analysis of any blood or urine specimens submitted pursuant to the Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.
This order takes effect upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 14th day of August, 1992.
BOARD OF MEDICINE
JAMES N. BURT, M.D. VICE 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 William F. Gessler, M.D., Suite 1, 2231 N.E. 25th Avenue, Pompano Beach, Florida 33062-1139 and Charles L. Curtis, Attorney at Law, 1177 S.E. 3rd Avenue, Ft. Lauderdale, Florida 33136, 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 interoffice delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 at or before 5:00 P.M., this 24th day of August, 1992.
DOROTHY J. FAIRCLOTH
AugOrders
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JULY TERM 1993
WILLIAM F. GESSLER, M.D., NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
Appellant, AND, IF FILED, DISPOSED OF.
vs. CASE NO. 92-2737
L.T. CASE NO. 0068106 DEPARTMENT OF BUSINESS AND DOAH CASE NO. 90-1500 PROFESSIONAL REGULATION,
Appellee.
/ Opinion filed September 22, 1993
Administrative appeal from the Department of Business and Professional Regulation.
Charles L. Curtis of Doumar, Curtis, Cross, Laystrom & Perloff, Fort Lauderdale, for appellant.
Charles F. Tunnicliff, Lisa S. Nelson and Kathryn L. Kasprzak of Department of Professional Regulation, Tallahassee, for appellee.
ANSTEAD, J.
Appellant, William F. Gessler, appeals the suspension of his medical license and the imposition of other sanctions entered by the Florida Board of Medicine and the Department of Business and Professional Regulation based upon the failure of the Board and the Department to properly compile and index their prior decisions in accord with a legislative mandate. We reverse.
FACTS
After the formal filing of administrative charges, a hearing officer conducted an evidentiary hearing and found that Gessler had: (1) inappropriately and excessively administered controlled substances to an employee-patient-friend between February 1-3, 1986; (2) failed to practice medicine with the level of care, skill and treatment recognized by a reasonably prudent and similar physician as being acceptable under the circumstances; and
failed to maintain adequate medical records to justify his course of treatment. As penalties, the hearing officer recommended Gessler be: (1) reprimanded; (2) fined $10,000; (3) suspended for 6 months (reducible by 3 months if he successfully completed a board approved continuing medical
education course); and (4) placed on 3 years probation. The Board accepted the recommended order and entered a final order thereon, excepting a reduction of the $10,000 fine to $3,000.
Gessler filed a notice of appeal to this court and also sought a stay. A stay was granted under conditions agreed upon between the parties. The Board also notified various entities and individuals of the suspension of Gessler's license within the 30 day period following the Final Order. However, upon Gessler's request the Board notified the same entities of his appeal and the stay agreed to by the parties pending appeal.
BOARD'S PREMATURE NOTICE
Gessler claims as his first point on appeal that the Board's notification to various entities of his suspension immediately following the final order was a premature enforcement of the suspension of his license. We decline to address this issue.
The notice of appeal is directed to the final order and matters leading up to it. Formally, then, this issue is outside the scope of the appeal, and relief should have been sought through another avenue, perhaps by motion practice in this court or with the agency, or other similar means. In fact, of course, a stay has been entered and the Board has acted by notifying the entities affected of the pendency of this appeal and the supersedeas.
Therefore, we decline to consider any further action against the Board.
FAILURE TO COMPLY WITH SECTION 120.53.
Gessler next claims a violation by the Board of section 120.53(2), Florida Statutes (1989), which provides:
Each agency shall make available ...:
All rules formulated, adopted, or used by the agency in the discharge of its functions.
All agency orders.
A current subject-matter index, identify- ing for the public any rule or order issued or adopted after January 1, 1975.
All rules adopted pursuant to this act shall be indexed within 90 days. The Department of State shall by rule establish uniform indexing procedures.
Section 120.53(4) provides:
An agency may comply with paragraphs (2)(b) and (c) by designating by rule an official reporter which publishes and indexes by subject matter each agency order rendered after a proceeding which affects substantial interests has been held.
Further, section 120.68(8) provides:
The court shall remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.
Failure of any agency to comply with s. 120.53 shall be presumed to be a material error in procedure.
Gessler contends the Board has never made all of its orders available and has never prepared a subject-matter index as required by sections 120.53(2)(b) and (c). He claims the resulting prejudice is that he cannot compare his case and the punishment imposed with other cases that may be similar. Based on these violations Gessler made numerous motions during the administrative proceedings seeking a summary disposition in his favor or a stay of proceedings. All such motions were denied.
In response, the Board candidly concedes Gessler is correct: all of the orders by the Board issued after January 1, 1975, many of which may affect substantial rights, are still not published or indexed. The Board's counsel also candidly conceded it would be difficult, if not impossible, to determine if there were other cases similar to Gessler's without reviewing the cases not currently indexed. The Board notes that more recently, and especially with the advent of the Florida Administrative Law Reports in 1979, most of its orders have been published and indexed. At oral argument, counsel for the Board informed this court that the Board was having difficulty in finding someone to compile, index and publish the orders of the Board not included in the existing publications.
Obviously, the legislature has determined the compiling and indexing of Board orders is an important part of the administrative system of justice. It appears the legislature has made a policy decision that the judicial concept of stare decisis should apply to administrative proceedings by requiring the agency to provide reasonable access to prior agency orders. An indexing system is essential to access:
No matter how many rules the agencies adopt, citizens will still need access to a subject matter index of orders. The Florida Act re- quires each agency to prepare a subject matter index of its orders and to make this index available to the public. The purpose is to protect citizens against arbitrariness, to give citizens the means of finding out whether they are receiving treatment equal to similar- ly situated persons, and to give the courts the opportunity to determine whether the agency is acting arbitrarily or evenhandedly.
L. Harold Levinson, The Florida Administrative Procedure Act After 15 Years, 18 Fla. St. U. L. Rev. 749, 764 (1991)(footnote omitted).
In McDonald v. Department of Banking and Finance, 346 So.2d 569, 582 (Fla.
1st DCA 1977), the court explained:
The agency's final order in 120.57 proceed- ings must describe its "policy within the agency's exercise of delegated discretion" sufficiently for judicial review. Section 120.68(7). By requiring agency explanation of any deviation from "an agency rule, an officially stated policy, or a prior agency practice," Section 120.68(12)(b) recognizes there may be "officially stated agency policy" otherwise than in "an agency rule"; and, since all agency action tends under the APA to become either a rule or an order, such other "official- ly stated agency policy" is necessarily record- ed in agency orders. All such rules and
orders, catalogued by a subject-matter index, must be made available for inspection and copy- ing by the public in an ever-expanding library of precedents to which the agency must adhere or explain its deviation. Sections 120.53(2), 120.68(12)(b) (footnote omitted).
Persons have the right to examine agency precedent and the right to know the factual basis and policy reasons for agency action. Amos v. Department of Health and Rehabilitative Servs., 444 So.2d 43, 47 (Fla. 1st DCA 1983); State ex. rel. Department of General Servs. v. Willis, 344 So.2d 580, 591 (Fla. 1st DCA 1977). In North Miami General Hospital v. Department of Health and Rehabilitation Services, 355 So.2d 1272, 1278 (Fla. 1st DCA 1978), the court noted that the entry of inconsistent orders based upon similar facts, without a reasonable explanation, may violate section 120.68(12)(b), Florida Statutes (1991), as well as the equal protection guarantees of both the Florida and United States Constitutions.
The comments made by counsel for the agency at oral argument unfortunately echo remarks made years ago to another appellate court. The First District issued a warning to administrative agencies in Graham Contracting, Inc. v.
Department of General Services, 363 So.2d 810 (Fla. 1st DCA 1978), cert. denied, 373 So.2d 457 (Fla. 1979):
Lamentably, four years after the adoption of Chapter 120 and three years after it became effective, the Department remains in violation of Section 120.53(1)(a), (b), and (c). Its counsel also advises, upon our inquiry at oral argument, that the Department maintains no subject matter index of its orders entered these past three years in such controversies. If that is true, the Department also violates Section 120.53(2) and deprives itself, its contractors, the general public, and this court of the continuity and rationality such a re- source would provide. See McDonald, supra,
346 So.2d at 582.
Id. at 815. The late teacher and writer, Patricia A. Dore, one of Florida's leading scholars on administrative law, noted even more recently that things had not changed:
We have had fifteen years experience with the revised chapter 120, and at all times during those fifteen years agencies have been required to compile and maintain subject matter indexes of their orders and to keep those orders available for public inspection. Left to their own devices, agencies simply have not done the job.
See Patricia A. Dore, Seventh Administrative Law Conference Agenda and Report, 18 Fla. St. U. L. Rev. 703, 721 (1991).
Sadly, we must acknowledge that several more years have passed and the agency before us still remains in default. We cannot continue to ignore the violation of such a clear and important mandate. The Board has enormous authority including the power of life and death over the right to practice medicine in this state. It cannot just throw up its hands and say "I'm sorry" to those entitled to the benefit of the legislative mandate.
The concept of stare decisis, by treating like cases alike and following decisions rendered previously involving similar circumstances, is a core principle of our system of justice. The importance of the doctrine of stare decisis has recently been underscored by a decision of the Florida Supreme Court in which Justice Overton, although believing the majority holding on an issue of enormous significance to the people of Florida was wrong, nevertheless cast his deciding vote to create that majority because he believed the doctrine of stare decisis compelled him to do so. 1/ While it is apparent that agencies, with their significant policy-making roles, may not be bound to follow prior decisions to the extent that the courts are bound by precedent, it is nevertheless apparent the legislature intends there be a principle of administrative stare decisis in Florida.
CONCLUSION
The issue presented is straightforward. The agency has received a legislative directive which it has substantially ignored. It has no discretion to ignore such a directive. The default is presumptively prejudicial and the issue of prejudice cannot be resolved without compliance with the directive.
We are inclined to hold that the sanctions imposed against appellant must be stayed pending agency compliance with the legislative mandate contained in section 120.53(4). However, we recognize our holding will substantially affect the proceedings before the Board and all other state agencies that have failed to comply with the legislative mandate.
Accordingly, we invoke the provisions of Rule 9.125 of the Florida Rules of Appellate Procedure and certify the issue before us as one requiring immediate resolution by the supreme court because it is an issue of great public importance and will have a great effect on the proper administration of justice throughout the state.
WARNER, J., and MAGER, GERALD, Senior Judge, concur.
ENDNOTE
1/ Perez v. State, 620 So.2d 1256, 1258-61 (Fla. 1993)(Overton, J., concurring).
| Issue Date | Proceedings |
|---|---|
| Feb. 24, 1994 | 4th DCA Opinion filed. |
| Aug. 25, 1992 | Final Order filed. |
| Jun. 12, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held March 28, and 29, April 15 and May 1, 1991. |
| Jun. 20, 1991 | Respondent`s Proposed Recommended Order filed. (from Charles L. Curtis) |
| Jun. 18, 1991 | Proposed Recommended Order; Petitioner`s Response to Respondent`s Motion to Exclude/Limit Expert Testimony of Dr. Martin ZFAZ; Petitioner`s Response to Respondent`s Motion to Exclude Expert Testimony of Bruce Landy, M. D. filed. (From Larry G. McPherson, |
| Jun. 10, 1991 | Letter to JSM from Charles L. Curtis (re: Extension for filing PRO) filed. |
| Jun. 03, 1991 | Order Granting Extension of Time in Which to File Proposed Recommended Order sent out. (due 6/16/91) |
| May 30, 1991 | Order Granting Extension of Time (for Hearing Officer to sign) filed. |
| May 17, 1991 | Transcript (Volumes. VI & VII) filed. |
| May 06, 1991 | Respondent`s Exhibit-15 & cover ltr filed. (From Charles L. Curtis) |
| May 01, 1991 | CASE STATUS: Hearing Held. |
| Apr. 29, 1991 | Transcript (Volumes IV & V); Pages 21 & 34 of Volume 1 filed. |
| Apr. 18, 1991 | Respondent`s Motion to Exclude Expert Testimony of Bruce Landy, M. D.; Respondent`s Motion to/Limit Expert Testimony of Dr. Martin ZFAZ filed. (From Charles L. Curtis) |
| Apr. 17, 1991 | Notice of Continuation of Hearing sent out. (hearing set for May 1-2, 1991: 9:00am: Fort Lauderdale) |
| Apr. 15, 1991 | CASE STATUS: Hearing Partially Held, continued to 5-1-91: 9:00am: Ft. Lauderdale) |
| Apr. 15, 1991 | Respondent`s Motion to Exclude Expert Testimony of Bruce Landy, M.D.; Respondent`s Motion to Exclude/Limit Expert Testimony of Dr. Martin ZFAZ filed. (from Charles L. Curtis) |
| Apr. 02, 1991 | Notice of Continuation of Hearing sent out. (hearing set for 4/15/91; 9:00am; Ft Laud) |
| Mar. 27, 1991 | (Petitioner) Notice of Voluntary Dismissal of Count Three filed. (From Larry G. McPherson, Jr.) |
| Mar. 26, 1991 | Order sent out. (Motion DENIED) |
| Mar. 25, 1991 | Respondents Pre-Hearing "Stipulation" filed. |
| Mar. 21, 1991 | (Petitioner) Notice of Serving Petitioners Response to Respondents Fourth Request to Produce filed. |
| Mar. 21, 1991 | (Petitioner) Notice of Taking Deposition filed. |
| Mar. 21, 1991 | Respondents Notice of Reliance Upon Additional Authority filed. |
| Mar. 20, 1991 | (Petitioner) Prehearing Stipulation and Statement of Explanation; Notice of Serving Petitioners Response to Respondents Telephonic Notice to Produce; Petitioners Motion for Official Recognition w/Exhibits filed. |
| Mar. 20, 1991 | (Respondent) Notice of Taking Deposition (to Preserve Testimony for Trial) filed. |
| Mar. 11, 1991 | Petitioners Memorandum of Law in Support of Response to Respondents Motion for Partial Summary Order and Motion for Relinquishment of Jurisdiction/Continuance; Petitioners Response to Respondents Motion for Partial Summary Order; Petitioners Response to R |
| Mar. 08, 1991 | Respondent`s Notice of Filing Original Transcripts; Deposition of Dorothy Faircloth ; Deposition of Jim Konish filed. |
| Mar. 06, 1991 | Respondents Motion for Partial Summary Final Order; Respondents Motion for Relinquishment of Jurisdiction/Continuance; Statement of The Facts (Exhibits Attached) filed. |
| Mar. 06, 1991 | (Respondent) Notice of Telephonic Hearing (March 25, 1991: 4:00 pm) filed. |
| Feb. 28, 1991 | Notice of Serving Petitioners Response to Respondents Notice to Produce filed. |
| Feb. 21, 1991 | Respondents Notice to Produce filed. |
| Feb. 14, 1991 | Respondent`s Fourth Request to Produce filed. (From Charles L. Curtis) |
| Feb. 11, 1991 | (Petitioner) Motion for Protective Order & attachments filed. (From Larry G. McPherson, Jr.) |
| Jan. 31, 1991 | (Petitioner) Notice of Serving Petitioner`s Response to Respondent`s Fourth Request for Admissions filed. (From Larry G. McPherson, Jr.) |
| Jan. 25, 1991 | Order (Ruling on Motions) sent out. |
| Jan. 25, 1991 | Deposition of Dr. Patrick Callaghan filed. |
| Jan. 25, 1991 | Letter to CBA from Charles L. Curtis (re: Conducting Telephonic Hearing) w/(unsigned) Order; Respondent`s Notice of Unavailability of Expert at Time of Formal Administrative Hearing and Intent to Use Prior Deposition As Testimony at Time of Formal Adminis |
| Jan. 22, 1991 | Petitioner`s Response to Respondent`s Motion to Expedite Request for Admissions filed. (From Larry McPherson, Jr.) |
| Jan. 22, 1991 | Notice of Hearing filed. (From Charles L. Curtis) |
| Jan. 17, 1991 | Respondent`s Motion to Expedite Request for Admissions; Respondent`s Fourth Request for Admissions filed. (From Charles Curtis) |
| Jan. 16, 1991 | (Respondent) Notice of Possible Conflict filed. (From Charles L. Curtis) |
| Jan. 07, 1991 | Amended Notice of Hearing sent out. (hearing set for March 28-29, 1991: 9:00am: Fort Lauderdale) |
| Jan. 07, 1991 | Order of Prehearing Instructions sent out. |
| Jan. 04, 1991 | (Respondent) Motion for Protective Order and to Exclude Expert Witness; (Respondent) Motion for Official Recognition & attachment filed. (From Charles L. Curtis) |
| Jan. 03, 1991 | (Respondent) Motion for Protective Order and to Exclude Expert Witness; Petitioner`s Motion for Official Recognition filed. (From Charles L. Curtis) |
| Jan. 03, 1991 | Respondent`s Motion to Compel Discovery and Compliance With Section 120.53 F. S. filed. (from Charles L. Curtis) |
| Jan. 02, 1991 | Petitioner`s Response to Respondent`s Motion to Compel Discovery and Compliance With Section 120.53, Florida Statutes; Petitioner`s Response to Respondent`s Motion for A Protective Order and to Exclude Expert Witness filed. (From Larry G. McPherson, Jr.) |
| Jan. 02, 1991 | CC: FAX Respondent`s Motion to Compel Discovery and compliance With Section 120.53 F.S. filed. |
| Dec. 24, 1990 | (DPR) Notice of Taking Deposition filed. |
| Dec. 24, 1990 | Petitioner`s Response to Respondent`s Motion to Exclude Transcript of Interview filed. |
| Dec. 20, 1990 | Petitioner`s Response to Respondent`s Renewed Motion to Compel Discovery filed. (From Larry G. McPherson, Jr.) |
| Dec. 18, 1990 | (Petitioner) Notice of Serving Petitioner`s Response to Respondent`s Third Request to Produce and Request for Admissions of Fact filed. (From Larry G. McPherson, Jr.) |
| Dec. 17, 1990 | Respondent`s Motion to Exclude Transcript of Interview; Respondent`s Renewed Motion to Compel Discovery filed. (From C. L. Curtis) |
| Dec. 14, 1990 | Notice of Taking Deposition (5) filed. (from Larry G. McPherson) |
| Dec. 11, 1990 | Petitioner`s Response to Respondent`s Motion to Suppress Investigative Information filed. (From L. G. McPherson, Jr.) |
| Dec. 06, 1990 | Respondent`s Motion to Suppress Investigative Information filed. (from C. L. Curtis) |
| Nov. 29, 1990 | Notice of Serving Petitioner`s Response to Respondent`s Second Set of Interrogatories, Requests to Produce and Request for Admissions of Fact and Genuineness of Documents filed. (From L. G. McPherson, Jr.) |
| Nov. 28, 1990 | (Respondent) Response to Petitioner`s First Set of Requests for Admissions, Request for Production of Documents and Interrogatories to Respondent & attachments filed. (From C. L. Curtis) |
| Nov. 16, 1990 | Respondent`s Third Request to Produce and Request for Admissions of Fact filed. (From Charles L. Curtis) |
| Nov. 07, 1990 | Order Denying Motion to Compel sent out. |
| Nov. 05, 1990 | Respondent`s Motion to Compel Discovery & Affidavit filed. (From Charles L. Curtis) |
| Nov. 05, 1990 | Notice of Serving Respondent`s Second Set of Interrogs, Requests to Produce and Request for Admissions of Face and Genuineness of Documents; Respondent`s Second Set of Interrogs, Requests to Produce and Request for Admissions of Fact and Genuineness of Do |
| Oct. 25, 1990 | (Petitioner) Notice of Serving Petitioner`s First Set of Request for Admissions, Request for Production of Documents and Interrogatories to Respondent filed. (from Larry G. McPherson, Jr.) |
| Sep. 27, 1990 | (Petitioner) Notice of Serving Petitioner`s response to Respondent`s Motion for Production/Interrogatories filed. (From Larry G. McPherson, Jr.) |
| Sep. 18, 1990 | Amended Notice of Hearing sent out. (hearing set for Jan. 8-9, 1990: 9:00am: Fort Lauderdale) |
| Sep. 14, 1990 | (Petitioner) Status Report and Motion to Reset Formal Hearing filed. (from Larry G. McPherson, Jr.) |
| Aug. 29, 1990 | Respondent`s Motion for Production/Interrogatories & Respondent`s Request for Issuance of Subpoenas filed. (From Charles L. Curtis) |
| Aug. 13, 1990 | Continued Order of Abeyance sent out. (Status report due by 09/14/90) |
| Jul. 27, 1990 | (DPR) Status Report filed. |
| Jul. 02, 1990 | (DPR) Notice of Substitution of Counsel filed. (From Larry G. McPherson) |
| Jun. 27, 1990 | Motion for Rehearing and Clarification from DCA filed. |
| Jun. 13, 1990 | Order of Abeyance sent out. (by 7-27-90 the parties shall advise the Hearing Officer of the status of the case) |
| May 25, 1990 | Letter to CBA from Charles L. Curtis (re: Petition for Review being filed w/DCA & attachment) filed. |
| May 17, 1990 | Order Granting Continuance and Requiring Response sent out. |
| May 14, 1990 | Joint Motion for Continuance filed. (from Peter S. Fleitman & Charles L. Curtis) |
| May 07, 1990 | Respondent`s Exceptions to Findings of Fact and Conclusions of Law filed. |
| Apr. 24, 1990 | Order Denying Motion to Dismiss sent out. |
| Apr. 19, 1990 | Letter to CBA from C. L. Curtis (re: Respondent`s Motion & Supplemental Reply) filed. |
| Apr. 16, 1990 | Respondent`s Supplemental Reply to Petitioner`s Response to Motion to Dismiss filed. |
| Apr. 13, 1990 | Respondent`s Reply to Petitioner`s Response to Motion to Dismiss filed. |
| Apr. 11, 1990 | (Petitioner) Response to Petitioner`s Motion to Dismiss Formal Hearing filed. |
| Mar. 28, 1990 | Request for Oral Argument filed. |
| Mar. 27, 1990 | Notice of Hearing sent out. (hearing set for June 12-13, 1990; 9:00am; Ft. Laud) |
| Mar. 23, 1990 | (Joint) Response to Initial Order filed. |
| Mar. 14, 1990 | Initial Order issued. |
| Mar. 05, 1990 | Referral Letter; Administrative Complaint; Election of Rights filed. |
| Jul. 17, 1989 | Referral Letter; Administrative Complaint; Explanation of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 22, 1993 | Opinion | |
| Aug. 14, 1992 | Agency Final Order | |
| Jun. 12, 1992 | Recommended Order | Physician inappropriately administered controlled substances to a patient in his personal residence and failed to keep accurate records. |
