STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, AGENCY FOR HEALTH ) COST ADMINISTRATION, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7167

)

DAVID MARK MCGREW, M. D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on August 4, 1992, in Brooksville, Florida.

APPEARANCES

For Petitioner: Richard A. Grumberg, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Lee Sims Kniskern, Esquire

2121 Ponce de Leon, Suite 630 Coral Gables, Florida 33134-5222

STATEMENT OF THE ISSUES

The issue is whether respondent's license as a medical doctor should be disciplined for the reasons stated in the administrative complaint.

PRELIMINARY STATEMENT

This case began on October 24, 1990, when petitioner, Department of Professional Regulation, Board of Medicine (Board), issued an administrative complaint charging that respondent, David M. McGrew, a licensed medical doctor, had violated Subsection 458.331(1)(x), Florida Statutes, by failing to comply with a previously entered lawful order of the Board. The order allegedly violated was a final order entered on August 17, 1989, which disposed of an administrative complaint and required, among other things, that respondent complete a Board approved course in pharmacotherapeutics and addictionology within six months and pay a $500 fine.

Respondent disputed the above charges and requested a formal hearing. The matter was referred by petitioner to the Division of Administrative Hearings on November 9, 1990, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated November 1, 1990, a final hearing

was scheduled on February 5, 1991, in Tampa, Florida. The matter was thereafter abated at the parties' request and was eventually rescheduled to July 7, 1992, in Brooksville, Florida. By agreement of the parties, the matter was continued to August 4, 1992, at the same location. On March 24, 1992, the case was transferred from Hearing Officer Ken N. Ayers to the undersigned.

At final hearing, petitioner offered petitioner's exhibits 1-4. All exhibits were received in evidence. Respondent testified on his own behalf and offered respondent's exhibits 1-4 which were received in evidence. Also, joint exhibit 1 was stipulated into evidence.

The transcript of the hearing was filed on August 21, 1992. Proposed findings of fact and conclusions of law were originally due on September 8, 1992. At respondent's request, this time was extended to September 15, 1992, and proposed orders were timely filed by the parties on that date. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based on all of the evidence, the following findings of fact are determined.

1. At all times relevant hereto, respondent, David Mark McGrew, was licensed as a medical doctor by petitioner, Department of Professional Regulation, Agency for Health Cost Administration, Board of Medicine (Board), having been issued license number ME 0042526. Respondent is engaged in the practice of medicine as a family practitioner at 4655 Keysville Avenue, Spring Hill, Florida. He has been licensed by the Board since 1983, is board certified in family practice, and is president of the Florida chapter of the Academy of Hospice Physicians. Except for this proceeding, which is based on a failure by respondent to comply with a previous Board final order disposing of a complaint, there is no evidence that respondent has been subjected to prior disciplinary action.

   
   

2. The facts which gave rise to this dispute are as follows. On an undisclosed date in 1988 or 1989, the Board issued an administrative complaint against respondent alleging generally that he had inappropriately prescribed certain pain medication to a longtime patient. Although respondent was not represented by counsel, he entered into negotiations with the prosecuting attorney and eventually executed a stipulation wherein he agreed to certain conditions, including the imposition of a $500 fine to be paid within thirty days from date of the final order, a reprimand, and a requirement that he attend a three day course at the University of South Florida School of Medicine. However, respondent did not admit that his prescribing was inappropriate or excessive. The stipulation was presented to the Board at a meeting held on August 5, 1989.

   
   

3. The dialogue of the relevant portion of the meeting was introduced into evidence as a part of joint exhibit 1 and petitioner's exhibit 3. It should be noted that a considerable amount of discussion was given to whether new conditions should be substituted for those contained in the stipulation. The discussion in the transcript does contain comments, albeit somewhat unclear, which lend support to the Board's contention that it intended to add a number of new conditions to the agreement but also retain the $500 fine. At the same time, however, the transcript discloses that respondent, who was not represented by counsel at the meeting, did not fully understand that certain features of the

   original agreement were being retained in the new agreement. This is evidenced by the fact that near the end of the meeting, respondent was requested to reiterate his understanding of the terms and when he did he failed to include a fine. No one corrected his misunderstanding. Accordingly, respondent left the meeting with the impression that the original stipulation had been rejected by the Board and a new agreement approved which required that respondent be reprimanded, he complete a course of at least two weeks duration in pharmacotherapeutics and addictionology within six months from the date of the final order, and for a period of one year after completion of the course, he use sequentially numbered duplicate prescriptions in prescribing controlled substances, retain one copy of the prescription in the patient's records, and furnish a DPR investigator a copy of all such prescriptions within thirty days after being written. Respondent believed that the Board no longer intended to impose a $500 fine, particularly since no specific mention of the fine was made by the Board's members while discussing the new conditions and because the Board had imposed a new (and more costly) requirement that he attend a two-week approved course. Finally, respondent was under the impression that the Board would lend assistance in finding a course of the nature prescribed at the meeting since respondent was unaware of any formal course of that duration.

   
   

4. On August 17, 1989, the Board issued its final order concerning the stipulation. The order provided that "the (original) Stipulation as submitted be and is hereby approved and adopted in toto and incorporated by reference herein with the following additions:" Thus, the Board actually approved the original stipulation, including the fine, with certain modifications. The final order did not carry the advice that if respondent disagreed with the order, he must file an appeal with the district court of appeal within thirty days. This was probably because, in the original stipulation, respondent had specifically waived "all further procedural steps, and expressly waive(d) all rights to seek judicial review of or to otherwise challenge or contest the validity of the joint stipulation". Thus, the final order was never appealed, and its specific terms were not timely satisfied. However, for the reasons stated later, the failure by respondent to satisfy these conditions was not intentional and occurred because of his misunderstanding of the agreement and his failure to find a satisfactory two-week course.

   
   

5. On August 22, 1989, respondent wrote the Board a letter acknowledging receipt of the final order and stating that he believed the Board had specifically rejected the fine in favor of a two-week educational course and that he "did not agree to a $500 fine." He asked what he should do about this disagreement, and then noted that he had contacted fourteen schools, individuals or organizations regarding courses that might satisfy the educational requirement imposed by the Board, and had been offered an internship at a pain clinic.

   
   

6. After receiving no reply to his August 22, 1989, letter, respondent again wrote the Board on October 17, 1989, regarding his prior inquiry. He added that "it is my sincere desire to get this matter resolved at the earliest convenience." A second follow-up letter was sent by respondent to the Board on January 19, 1990, with copies of his two earlier letters. In addition, he made several telephone calls to the Board seeking to obtain a reply to his inquiries.

7. On June 11, 1990, or some ten months after respondent's first letter, a Board administrative assistant replied to respondent's letter and acknowledged that "there was some confusion as to the administrative fine imposed by the Final Order dated August 17, 1989." The letter also stated:

   
   

   The tape of your appearance before the Board of Medicine on August 5, 1989, has been reviewed and there is no indication that the Board agreed to waive the $500 administrative fine which was due September 16, 1989.

   
   

   The amendment to the Stipulation concerned a formal course in pharmacotherapeutics and addictionology, to be a minimum of two weeks in length and approved by the Board. This course was to have been taken as soon as possible, but in any event, no later than six months after the date of the Final Order.

   After completion of the course reference (sic) above, the one year monitoring of your prescribing habits was to begin.

   
   

   At this time, there is no indication in your file that such a course has been approved by the Board or completed by you.

   
   

   In order to avoid possible disciplinary action against your license, please comply as soon as possible with the requirements of the Final Order. If you have further questions regarding this matter, please contact the Board office. (Emphasis in original)

   
   

   This letter prompted further correspondence between respondent and the Board.

   
   

8. On June 26, 1990, respondent wrote another letter to the Board in which he acknowledged receipt of the Board's recent letter and gave a lengthy description of his unsuccessful efforts to find a course of the nature prescribed by the Board in its final order. He identified several shorter courses he had already attended plus future courses he planned to attend and asked that they be used collectively to satisfy the two weeks of educational training. He also asked for a copy of the tape of the Board's meeting.

   
   

9. On July 25, 1990, a Board administrative assistant replied to respondent's letter and advised him that he was "in violation of the Final Order." The letter further stated that he was required to pay a $500 fine no later than September 16, 1989, or thirty days after the final order. As to the educational requirement, the assistant noted that the Board "acknowledges your attempts to receive guidance regarding the course of education, therefore, if it is your wish to attempt to comply with the requirement of the Order, we suggest that you consider the following individuals." The letter then identified two physicians in Minnesota who had "experience in assisting physicians fulfill particular course requirements." Finally, the letter noted that "failure to comply with a lawful order of the Board may be grounds for further disciplinary action."

10. On August 18, 1990, respondent again wrote the Board and stated that he had just learned the Board was considering the issuance of another administrative complaint and was surprised. He also indicated he had contacted the two individuals mentioned in the Board's letter of July 25, 1990, and the courses offered by those individuals were "unstructured internship programs" of a type which had been previously rejected by the Board as being insufficient. Finally, respondent mentioned that he could attend a two-week course offered by a substance abuse center if this met the Board's approval.

    
    

11. By letter dated August 29, 1990, a Board administrative assistant replied to respondent's letter and told him his suggested coursework would be presented to the Board at its September 20, 1990, meeting, and he would be notified of its decision. Thereafter, on October 8, 1990, respondent was advised by letter that the Board had rejected his request for approval of the two-week course at the substance abuse center. The Board also advised that respondent's request for partial credit for attending a conference on prescription drug abuse had been rejected.

    
    

12. On October 24, 1990, the Board filed an administrative complaint against respondent for failing to comply with the terms of the final order issued on August 22, 1989. That prompted respondent to initiate this proceeding.

    
    

13. At hearing respondent established that, although he had not yet attended a formal two-week course in pharmacotherapeutics and addictionology, he had no intent to defy the Board's order. Indeed, respondent has made a genuine effort to comply with this requirement by contacting numerous schools, individuals and organizations, including several suggested by the Board, but he has had no success in finding a two-week course that would meet the Board's approval. He has repeatedly asked the Board for assistance in finding such a course but was offered only very limited assistance. To illustrate his willingness to attend continuing medical education courses, respondent identified twenty-five courses of varying duration (but all less than two weeks) he has attended since the Board's final order, many of which deal with pain management and therapy. These courses total 173.25 hours, or twice the hours that would be included in a formal two-week course. He was also certified as a diplomate in the American Academy of Pain Management in 1990, which evidences further skills and knowledge obtained in this area after the Board's final order. He has expressed a complete willingness to attend the requisite course if he can find one that meets the Board's satisfaction. In the alternative, he has asked that the hours spent attending shorter courses in the same subject matter be used as credit towards satisfying the two-week course. This is a reasonable alternative and should be approved since the number of hours far exceeds the number he would receive in a two-week course. As to the fine, respondent has reviewed the transcript of the Board's meeting and still maintains that there is no indication in the transcript that the Board intended to assess a $500 fine when it imposed the new conditions. However, because he has now, for the first time, been given his "day in court" in this proceeding to explain his side of the story, he is willing to pay the fine if in fact the Board still intends to assess one. There is no evidence to show that respondent deliberately defied the Board's order that he pay the fine since he genuinely believes his position on that issue is correct. Finally, respondent is concerned that if he is found guilty in this proceeding, the disposition will be reported to the National Practitioners Data Bank and will be a permanent mark against his license to practice medicine.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1991).

    
    

15. Since respondent's license as a medical doctor is at risk, the Board is obliged to establish by clear and convincing evidence that the charges in the administrative complaint are true. See, e. g., Ramsey v. Department of Professional Regulation, Division of Real Estate, 574 So.2d 291 (Fla. 5th DCA 1991).

    
    

16. Respondent is charged with violating Subsection 458.331(1)(x), Florida Statutes. That subsection authorizes the Board to take disciplinary action against a licensee for:

    
    

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

    
    

17. The foregoing statute is penal in nature and should be strictly construed in favor of respondent. Therefore, to establish a violation of subsection 458.331(1)(x), there must be a showing that respondent willfully intended to violate the terms of the Board's final order. Cf. Munch v. Department of Professional Regulation, Division of Real Estate, 592 So.2d 1136, 1143-44 (Fla. 1st DCA 1992)(an intentional act must be proven before a violation of chapter 475 can be found). Put another way, before a licensee is subjected to the serious consequences of having his license disciplined for violating the terms of a Board order, there should be clear and convincing proof that the licensee intended to circumvent its provisions. Since the evidence shows that respondent did not intend to violate the final order, and has acted in good faith throughout this proceeding, the charge that he violated the above statute must fail. Even so, the requirements contained in the final order, which was never appealed and is now final, should be satisfied. Accordingly, respondent should pay the $500 fine within thirty days from the date of final order in this case. In addition, credit should be given for the hours of courses attended by respondent since August 17, 1989, in lieu of a two-week course.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order dismissing with prejudice

the administrative complaint. Respondent should also be required to comply with the terms of the final order issued on August 17, 1989, as discussed in paragraph 17 of this order.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of September 1992.

DONALD R. ALEXANDER

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 18th day of September 1992.

APPENDIX

Petitioner:

1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 3. 6-8. Partially accepted in finding of fact 4.

9. Rejected as being unnecessary.

Respondent:

1. Rejected as being unnecessary.

   14-18. Partially accepted in finding of fact 3.

   19.	Rejected as being contrary to	the evidence.
   20-22.	Partially accepted in finding	of fact 3.
   23.	Partially accepted in finding	of fact 4.
   24.	Partially accepted in finding	of fact 7.
   25.	Partially accepted in finding	of fact 8.
   26.	Partially accepted in finding	of fact 10.
   27.	Partially accepted in finding	of fact 13.
   28.	Rejected as being unnecessary.
   29.	Partially accepted in findings	of fact 9 and	10.
   30.	Partially accepted in finding	of fact 10.
   31.	Partially accepted in finding	of fact 11.

   32.	Partially accepted in finding of	fact	12.
   33.	Rejected as being unnecessary.
   34.	Partially accepted in finding of	fact	13.
   35.	Rejected as being unnecessary.
   36.	Partially accepted in finding of	fact	13.
   37.	Rejected as being unnecessary.
   38-39.	Rejected as being irrelevant.
   40-41.	Partially accepted in finding of	fact	10.
   42-43.	Partially accepted in finding of	fact	13.
   44.	Rejected as being irrelevant.
   45.	Rejected as being unnecessary.
   46-47.	Partially accepted in finding of	fact	13.

   
   

   Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, not supported by the evidence, subordinate, or a conclusion of law.

   
   

   COPIES FURNISHED:

   
   

   Richard A. Grumberg, Esquire Suite 60

   1940 North Monroe Street Tallahassee, Florida 32399-0792

   
   

   Lee Sims Kniskern, Esquire Suite 630

   2121 Ponce de Leon

   Coral Gables, Florida 33134-5222

   
   

   Dorothy Faircloth Executive Director Board of Medicine

   1940 North Monroe Street Tallahassee, Florida 32399-0770

   
   

   Jack L. McRay, Esquire 1940 North Monroe Street Suite 60

   Tallahassee, Florida 32399-0792

   
   

   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,

   DOAH CASE NO.: 90-7167

   vs. DPR CASE NO.: 90-09020

   LICENSE NO.: ME 0042526

   DAVID MARK MCGREW, M.D.,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS CAUSE came before the Board of Medicine (Board) in Orlando, Florida, on December 5, 1992, pursuant to Section 120.57(1). A Recommended Order had been issued in this cause. At the hearing on the Recommended Order, the parties entered into an agreement on the record, which agreement the Board adopted. The agreement is as follows:

   
   

   1. Respondent, David Mark McGrew, M.D., agrees to pay $500 to the Board of Medicine, Department of Professional Regulation.

      
      

   2. Respondent waives attorneys fees and costs.

      
      

   3. The Board of Medicine dismisses the administrative complaint in this cause. The Board of Medicine expressly does not adopt or take any other action on the Recommended Order filed by the Hearing Officer.

      
      

   4. The courses taken by Respondent shall be counted and there are no outstanding obligations under the initial Final Order.

IT IS HEREBY ORDERED,

That the Administrative Complaint in this cause is hereby DISMISSED.

This Order shall become final upon filing by the Clerk of the Department of Professional Regulation.

Done and Ordered this 23rd day of December, 1992.

BOARD MEDICINE

JAMES N. BURT, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to David Mark McGrew, M.D., 4655 Keysville Avenue, Spring Hill, Florida 34608-3516 and to Lee Sims Kniskern, Attorney at Law, Suite 630, 2121 Ponce de Leon Boulevard, Coral Gables, Florida 33134-5222, 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 day of , 1993.

(not dated or signed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY HIS 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 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 90-007167

Orders for Case No: 90-007167