STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-1519

)

NESTOR GARCIA, M.D., )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on March 22, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Randolph P. Collette, Esquire

Senior Attorney

Department of Professional Regulation

Suite 60, Northwood Centre 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Harold M. Braxton, Esquire (At the hearing) Suite 400, One Datron Center

9100 South Dadeland Blvd. Miami, Florida 33156

For Respondent: Nestor Garcia, M.D., pro se (Post-hearing 533 Northeast 92nd Street

submittal) Miami Shores, Florida 33138

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in the Administrative Complaint dated February 27, 1991, and, if so, whether his license to practice medicine in the State of Florida should be disciplined.

PRELIMINARY STATEMENT

On February 13, 1991, Petitioner issued an Emergency Suspension Order which suspended the Respondent's license to practice medicine in the State of Florida. On February 27, 1991, Petitioner filed an Administrative Complaint against Respondent. The gravamen of the complaint is that Respondent is unable to

practice medicine with reasonable skill and safety to patients as a result of his addiction to controlled substances.

By an executed Election of Rights, Respondent requested a Formal Hearing on an expedited basis. The formal hearing was scheduled, with the consent of the parties, for March 22, 1991.

At the hearing, Petitioner presented the testimony of Louis Collado of the Petitioner's Bureau of Investigative Services, John Eustace, M.D., William Schmidt, M.D., and Roger A. Goetz, M.D. Dr. Eustace was accepted as an expert witness in the field of addiction medicine. Dr. Schmidt was accepted as an expert witness in the fields of internal medicine and endocrinology. Dr. Goetz was accepted as an expert witness in the field of addiction medicine.

Petitioner offered eighteen exhibits into evidence, 1/ each of which was accepted into evidence. In addition, Petitioner was permitted to file the deposition of Neville S. Marks, M.D., as a late-filed exhibit. At Petitioner's request, official recognition was taken of Chapter 21M-20, Florida Administrative Code.

Respondent presented the testimony of his office administrator, Maria Ciriello, and testified on his own behalf. Respondent offered one exhibit, which was accepted into evidence. In addition, Respondent was permitted to file the deposition of Charles B. Mutter, M.D., as a late-filed exhibit.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent has been licensed to practice medicine in the State of Florida and has held license number ME 0048998.

   
   

2. Prior to April 5, 1990, Respondent engaged in the private practice of medicine in Dade County, Florida, concentrating in the fields of general medicine and psychiatry.

   
   

3. Prior to April 5, 1990, the Respondent contacted his wife (from whom he was separated) and informed her that he felt he was starting to develop a problem with Demerol. Respondent's wife contacted the Physicians Recovery Network (PRN), which is an organization designed to assist impaired physicians, and reported that she was concerned about Respondent's possible addiction to Demerol.

   
   

4. On April 5, 1990, an intervention was made by the PRN. This intervention occurred by Roger A. Goetz, M.D., the Director of the PRN, presenting himself at Respondent's office and offering to Respondent the assistance of his organization. On April 5, 1990, Respondent accompanied Dr. Goetz to Mt. Sinai Medical Center, Chemical Dependency Unit, Miami, Florida. At Mt. Sinai, Respondent came under the care of John Eustace, M.D. Respondent was detoxified at Mount Sinai and an initial evaluation of his condition was made. Prior to his admission to Mount Sinai, Respondent had been practicing medicine

   although he was in an impaired condition and was incapable of practicing medicine with reasonable skill or safety. At Mount Sinai, Respondent was diagnosed as having an advanced chemical dependency to intravenous and intramuscular Demerol. Respondent admitted that he had become addicted to Demerol, and that he had been taking self-prescribed doses of Demerol intravenously. Respondent's initial usage of Demerol was for his self- prescribed treatment of his migraine headaches.

   
   

5. The urine sample Respondent submitted at Mount Sinai on April 5, 1990, tested positive for meperidine and benzodiazepine. Meperidine is the generic name for Demerol. Benzodiazepine is a class of controlled drugs including valium. Respondent had, prior to his admission at Mount Sinai, self-prescribed and self-injected Demerol and valium. The progress staffing session signed by Dr. Eustace on April 11, 1990, reflects that Respondent was diagnosed at Mount Sinai as "... an advanced, parenteral Demerol addict, who was in need in (sic) structured, long-term treatment. The patient was recommended to Talbott Recovery Centers (sic) in Atlanta, Georgia." The recommendation to Talbott Recovery Center (Talbott) was made, in part, because of the severity of Respondent's addiction and the difficulty of the management of his case.

   
   

6. Respondent voluntarily accepted Mount Sinai's recommendation that he be admitted to Talbott, and he was discharged from Mount Sinai and admitted to Talbott on April 12, 1990.

   
   

7. Talbott Recovery Center is a highly structured, intensive treatment program geared for difficult management problems involving physicians. At Talbott, Respondent was diagnosed as having an opiate dependency and as having a narcissistic and antisocial components to his personality. Respondent did not interact well with the staff of Talbott and he tried to manipulate his medication and manage his treatment. Respondent was not considered by the Talbott staff to be truthful. It was recommended by the Talbott staff that Respondent be transferred to Parkside Recovery Center (Parkside) in Illinois because of his lack of progress at Talbott. Parkside is a treatment facility for impaired phyicians similar to Talbott. On May 4, 1990, Respondent was discharged from Talbott so he could return to Dade County, Florida, to make arrangements for treatment at Parkside.

   
   

8. On May 9, 1990, Respondent entered treatment at Parkside. Upon his admission to Parkside, Respondent's urine sample tested positive for opiates, which is consistent with his ingestion of either Demerol or his ingestion of morphine. On May 25, 1990, Respondent submitted a urine sample which tested positive for benzodiazepine, which is consistent with his ingestion of valium or his ingestion of an antihistamine. Respondent contends that his urine sample tested positive for opiates because he had taken morphine for a migraine headache and that his urine tested positive for benzodiazepine because he had taken an over the counter antihistamine. 2/

   
   

9. At Parkside, Respondent was diagnosed as having an opiate dependency and a narcissistic personality disorder with antisocial features. Respondent did not successfully complete the Parkside program because he was considered to be deceptive with staff. Respondent was discharged from Parkside on July 27, 1990.

   
   

10. The initial recommendation from Parkside for Respondent's future treatment was for a 20-month monitoring program to include peer support groups, AA sponsorship, monitoring groups, and random urinalysis testing; individual

    psychotherapy; supervision of his practice; and neurological treatment for migraine headaches.

    
    

11. After his discharge from Parkside, Respondent returned to Talbott for reassessment prior to his return home. Following this reassessment, Dr. Daniel

    H. Angres, Executive Medical Director of Parkside, and Dr. G. Douglas Talbott, Medical Director of Talbott, submitted a recommendation to the PRN dated August 27, 1990, that stated, in pertinent part, as follows:

    
    

    Based on our review of Dr. Nestor Garcia's progress at Talbott Recovery Systems, Parkside Treatment Program, and findings following Dr. Garcia's discharge 3/ we would like to recommend that Dr. Garcia refrain from the practice of medicine for a period of one year. During this time, it is essential that Dr. Garcia focus his energies on his recovery.

    We would additionally suggest, that Dr. Garcia be involved in a rigorous monitoring program which includes drug screening, caduceus groups, and individual therapy. At the conclusion of one year, Dr. Garcia will be reassessed by our teams in order to determine his readiness to return to the practice of medicine.

    
    

12. On August 3, 1990, Respondent signed an agreement, referred to as an Advocacy Contract with the Impaired Practitioner Program of Florida PRN by which Respondent agreed to the following for the five-year duration of the contract:

    
    

    1. I agree to participate in a random urine drug and or blood screen program ... within twenty-four hours of notification.

       I will release by waiver of confidentiality the written results of all such screens to the Physicians Recovery Network to validate my continuing progress in recovery.

    2. I agree to abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medications unless ordered by my primary physician, and when appropriate,

in consultation with the Physicians Recovery Network.

* * *

6. I agree to notify the Physicians Recovery Network of any changes in physical or mental health, address or employment.

* * *

8. I agree to attend a self help group such as AA or NA 3 times per week.

* * *

1. I agree to attend a 12-step program of recovering professionals.

2. I agree to notify the Physicians Recovery Network in the event of use of mood altering substances without a prescription from one of the physicians above.

3. I agree to contact the office of the Physicians Recovery Network [monthly by letter].

4. I agree to provide appropriate release forms for urine screen results, treatment center records, therapist reports, and other written and verbal information required to comply and in compliance with the above requests.

5. I agree to withdraw from practice for evaluation at the request of the Physicians Recovery Network if any problem develops.

* * *

16. If I fail to comply with this contract it may result in my being reported to DPR through the Physicians Recovery Network.

1. On August 3, 1990, Respondent submitted a urine sample which tested positive for barbiturates. Respondent explained that this test result was because he had taken Benadryl for a chlorine allergy.

   
   

2. Respondent returned to the private practice of medicine after August 3, 1990.

   
   

3. Following his execution of the Advocacy Contract with the PRN, Respondent entered a long-term outpatient rehabilitation and treatment program operated by Mount Sinai. Respondent broke the Advocacy Contract by leaving the Mount Sinai treatment program in the fall of 1990. Respondent did not believe that he was receiving any benefit from the treatment program. At the time of the formal hearing, Respondent was not enrolled in any type of rehabilitation or treatment program.

   
   

4. On October 3, 1990, Dr. Roger Goetz recommended to Petitioner that the Respondent be suspended from the practice of medicine. 4/

   
   

5. On December 13, 1990, Petitioner ordered Respondent to submit to a mental examination by Neville S. Marks, M.D., and to a physical examination by William M. I. Schmidt, M.D. Respondent attended his scheduled appointments.

   
   

6. As a result of his examination and evaluation of Respondent, Dr. Marks diagnosed Respondent as having a chemical dependency on Demerol and other medications by history and of antisocial personality disorder (Dr. Marks also referred to the latter diagnosis as being sociopathic personality traits). 5/ Dr. Marks was of the opinion that Respondent's "... chemical dependency could impair his ability to practice medicine with reasonable skill and safety, and that his sociopathic personality traits also could impair his ability to practice medicine with reasonable skill and safety." (Emphasis added.) Dr. Marks did not express his opinion that the chemical dependency or the sociopathic personality has, within a reasonable degree of medical certainty, impaired his ability to practice medicine with reasonable skill and safety. Dr. Marks was also of the opinion that Respondent should be in treatment and that the treatment program should include long-term chemical dependency treatment on an outpatient basis and long-term psychotherapy treatment.

7. Dr. Schmidt was qualified and accepted as an expert witness in the fields of internal medicine and endocrinology. Dr. Schmidt was of the opinion that the Respondent was not being truthful to him during the course of the interview and that, based on his examination of the Respondent and of the Respondent's medical records, it would be inappropriate and dangerous for him to be practicing medicine.

   
   

8. On February 11, 1991, the Secretary of the Department of Professional Regulation ordered an emergency suspension of Respondent's license to practice medicine. Respondent has not practiced medicine in the State of Florida since that suspension.

   
   

9. Respondent was examined on March 13, 1991, by Dr. Charles Mutter. Dr. Mutter took a complete psychiatric history from Respondent, administered a Minnesota Multiphasic Personality Inventory Test to him, and reviewed his medical records. Dr. Mutter did not find any defect in Respondent's personality structure that would prohibit him from practicing medicine with reasonable skill and safety. Dr. Mutter was of the opinion that Respondent could practice medicine with reasonable degree of skill and safety. Because of his history of drug addiction and abuse, Dr. Mutter recommended that Respondent's practice be indirectly supervised, that he be required to submit to random drug screenings on 12-hour notice, and that he attend meetings for recovering physicians.

   
   

10. Respondent testified that he had, as of the time of the formal hearing, been drug-free for nine months and that he had successfully practiced medicine until his license was suspended. This testimony was unrefuted largely because of Respondent's withdrawal from the PRN program. This self-serving testimony is insufficient to document Respondent's recovery from this severe addiction, which is a chronic, relapsing disease.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

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

    
    

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

       * * *

       (s) Being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. ...

       * * *

    2. When the board finds any person guilty of any of the grounds set forth in subsection

       1. ... it may enter an order imposing one or more of the following penalties:

          * * *

          1. Revocation or suspension of a license.

          2. Restriction of practice.

          3. Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.

          4. Issuance of a reprimand.

          5. Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.

          * * *

          In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the public. Only after those sanctions have been imposed may the disciplining authority consider and include

          in the order requirements designed to rehabilitate the physician. All costs associated with compliance with orders issued under this subsection are the obligation of the physician.

          
          

13. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v.

    Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

14. Petitioner has established by clear and convincing evidence that Respondent suffers from an addiction to Demerol and that his severe addiction is a chronic, relapsing disease that tends to repeat itself. Because of the conflict in the record, it is concluded that Petitioner has not established by clear and convincing evidence that Respondent suffers from sociopathic personality traits or antisocial personality. However, Petitioner did establish by clear and convincing evidence that the management of Respondent's recovery

    has been complicated by Respondent's attempts to manipulate his treatment and by his deceptive behavior during treatment.

    
    

15. Petitioner has also established by clear and convincing evidence that Respondent was, at the time of his initial admission to Mount Sinai on April 5, 1990, impaired as a consequence of his drug dependency, that such dependency rendered him unable to practice medicine with reasonable skill and safety to patients within the meaning of Section 458.331(1)(s), Florida Statutes, and that his dependency was a chronic condition that tends to relapse. It is concluded that such proof establishes a prima facia case of Respondent's violation of the provisions of Section 458.331(1)(s), Florida Statutes. Respondent failed to establish that he has recovered from his impaired condition or that he is capable of practicing medicine with reasonable skill and safety to his patients.

    
    

16. Rule 21M-20.001(2), Florida Administrative Code, contains certain disciplinary guidelines pertinent to this proceeding. For a violation of Section 458.331(1)(s), Florida Statutes, the recommended penalty range is from probation to denial or indefinite suspension of licensure until the licensee is able to demonstrate his ability to practice with reasonable skill and safety followed by probation and an administrative fine from $250.00 to $5,000.00. Rule 21M-20.001(3), Florida Administrative Code, provides for mitigating and aggravating circumstances, none of which pertains to this proceeding. However,

it is recommended that the minimum administrative fine be imposed because of the financial disruption suffered by Respondent when he voluntarily sought treatment and when his license was suspended.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent

violated the provisions of Section 458.331(1)(s), Florida Statutes, which imposes an administrative fine in the amount of $250.00, which suspends his license to practice medicine for a period of one year, and which places his licensure on probation for a period of five years. It is further recommended that the terms of his probation incorporate those terms of the Advocacy Contract Respondent executed with the Physicians Recovery Network. It is further recommended that the suspension of Respondent's licensure to practice medicine be lifted once he has demonstrated to the satisfaction of the Board of Medicine that he has regained his ability to practice medicine with reasonable skill and safety to patients.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of June, 1991.

CLAUDE B. ARRINGTON

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 21st day of June, 1991.

ENDNOTES

1/ Petitioner's Exhibits 3, 4, and 5 contain certain findings of fact and conclusions of law. No consideration has been given to the findings of fact and conclusions of law contained in those three exhibits, and no finding of fact or conclusion of law contained in this Recommended Order is based thereon.

2/ Respondent's explanations of these test results are accepted. Nevertheless, his ingestion of such drugs is contraindicated for a patient with Respondent's addictions.

3/ These findings relate to Respondent's behavior with a female patient at Parkside and to the discovery of incidents during which Respondent had been deceptive during his stay at Parkside.

4/ This recommendation was based, in part, on the receipt by Dr. Goetz from DPR of a DEA (Drug Enforcement Agency) Form 222 which Dr. Goetz believed to have been generated when Respondent purchased certain drugs. While this particular form has Respondent's name stamped thereon and a signature which purports to be that of the Respondent, Respondent denied that he generated this form or that the signature appearing thereon is his. There was no competent evidence to establish that Respondent generated or signed the form. No weight is given to this form and no finding of fact, conclusion, or recommendation is base thereon.

5/ Dr. Marks's use of the term "sociopathic personality traits" is a reflection of his education in Scotland and England. He diagnosed Respondent as having sociopathic personality traits because Respondent admitted to Dr. Marks certain unethical and illegal behavior without any evidence of remorse. Dr. Marks did not consider Respondent to have the level of conscience that he would expect of a man in Respondent's profession. Dr. Charles Mutter, one of Respondent's witnesses, described a sociopath as follows:

A sociopath may be a lot of things, but one behavior alone does not make him a sociopath. A sociopath is an individual ... who has a defect in his personality structure. He has a disturbance in his super ego or conscience. He is the kind of individual ... [who] does not learn from prior experience. He takes advantage of other people at their expense, and will manipulate. He is a liar, a cheater, and a con artist, and this is basically what a sociopath is. He has difficulty with sexual relationships which

is one of his dynamics. He fails to learn from prior experiences. He has no conscience. He may be remorseful when caught, but once off the hook, he goes back and repeats antisocial behavior.

This is a chronic, repeated problem that

usually occurs in adolescence and stays in a lifetime pattern. These people are usually not too dependable to treatment.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-1519

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact submitted by Petitioner in paragraphs 1-28, and 30-45 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 29 are rejected as being unnecessary to the conclusions reached and because the significance of those findings was not established.

3. The proposed findings of fact in paragraph 46 are rejected as findings, but are incorporated in the conclusions of law section of the Recommended Order.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraph 1 are adopted in part by the Recommended Order and are rejected to the extent they are contrary to the findings made.

2. The proposed findings of fact in paragraphs 2-4 and 13-16 are adopted in material part by the Recommended Order.

3. The proposed findings of fact in paragraphs 5 and 9 are rejected as being unsubstantiated by the evidence and as being contrary to the findings made.

4. The proposed findings of fact in paragraphs 6 and 7 are rejected as being subordinate to the findings made.

5. The proposed findings of fact in paragraphs 8, 10, 11, and 12 are rejected as being the recitation of testimony that is either subordinate to the findings made or unnecessary to the conclusions reached.

COPIES FURNISHED:

Nestor Garcia, M.D.

533 Northeast 92nd Street Miami Shores, Florida 33138

Randolph P. Collette, Esquire Senior Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold M. Braxton, Esquire Suite 400, One Datron Center 9100 South Dadeland Blvd.

Miami, Florida 33156

Dorothy Faircloth, Executive Director Department of Professional

Regulation, Board of Medicne 1940 North Monroe Street Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation

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.

Docket for Case No: 91-001519

Orders for Case No: 91-001519