STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF MEDICINE, )

)

Petitioner, )

)

v. ) CASE NO. 92-2204

)

ROBERT E. BELL, JR., M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 15, 1992, in Gainesville, Florida, before the Division of Administrative Hearings, by its designated Hearing Officer, Diane K. Kiesling.

APPEARANCES

For Petitioner: Larry G. McPherson, Jr.

Chief Medical Attorney and

Barbara W. Makant Staff Attorney

Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Robert E. Bell, Jr., M.D. Pro Se

Route 3, Box 503

Starke, Florida 32091 STATEMENT OF ISSUES

The issue is whether the medical license of Respondent, Robert E. Bell, Jr., M.D., (Bell) should be revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.

PRELIMINARY STATEMENT

Petitioner, Department of Professional Regulation, Board of Medicine, (DPR) presented the testimony of Lynn Hankes, M.D., Roger A. Goetz, M.D., John E. Perchalski, M.D., Ernest C. Miller, M.D., and Thomas M. Sweat. Petitioner's Exhibits 1-10 were admitted in evidence. Bell testified on his own behalf and offered no exhibits.

The transcript of the proceedings was filed on July 23, 1992. Bell's proposed findings of fact and conclusions of law were timely filed on July 29, 1992, and DPR's were timely filed on July 31, 1992. All proposed findings of fact and conclusions of law have been considered. A specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.

FINDINGS OF FACT

1. Bell holds license no. ME 0008297 issued by the State of Florida. His license was active from January 7, 1959, until December 31, 1991, at which time Bell's license became inactive because of his failure to pay the renewal fee.

   
   

2. Bell is a board certified child and adult psychiatrist. In addition to his practice of psychiatry, Bell practiced general medicine for a year in 1979, worked as a contract physician in several emergency room in Georgia during 1986 and 1987, and worked as a parts warehouseman for an automobile dealership between February and September, 1989.

   
   

3. Bell has a long history of alcohol related problems, beginning in August, 1982, when Bell was charged in South Carolina with driving under the influence of alcohol and was later convicted of reckless driving, which Bell acknowledges to have been alcohol related.

   
   

4. In 1987, Bell called Roger A. Goetz, M.D., Director of the Florida Physicians Recovery Network (PRN), because he could not find employment in Georgia. He told Goetz that he was an alcoholic and agreed to enter the South Miami Hospital's addiction treatment program. This was not the first alcohol treatment program from which Bell had received treatment.

   
   

5. Lynn A. Hankes, M.D., evaluated and observed Bell during his treatment at South Miami Hospital. Dr. Hankes also saw Bell in August, 1988, for a reevaluation. When Bell entered South Miami Hospital, he gave an extensive history of alcohol abuse and he acknowledged that he was an alcoholic.

   
   

6. Alcoholism is a primary disease characterized by continuous or periodic impaired control, drinking to excess, preoccupation with the drug of alcohol, the use of alcohol despite adverse consequences, and distortions in thinking, most notably, denial. The disease of alcoholism is progressive, causing multi- system impairment. The alcoholic is impaired and cannot predict or control when his drinking is going to be out of control. Denial is an integral part of the illness and a major obstacle to recovery.

   
   

7. According to Dr. Hankes, at the time of his evaluations of Bell, Bell suffered from the disease of alcoholism. Despite the treatment and a period of abstinence after his release, Bell's attitude, awareness, and belief system, as manifested by his denial and lack of insight, indicated to Dr. Hankes that Bell would be unable to change his behavior, vis-a-vis alcohol.

   
   

8. In his testimony, Dr. Hankes expressed an opinion that Bell is unable to practice with reasonable skill and safety due to his alcoholism and use of alcohol. However, Dr. Hankes' opinion was based only on his personal knowledge from 1988 and on his review of the reports of the other experts and the interviews with Bell.

   
   

9. On August 23, 1988, Bell entered into a five-year contract with PRN in which he agreed to abstain from use of alcohol, to have Dr. Hankes as his

   monitoring physician, to attend AA three times per week, to attend aftercare, to notify PRN in case of a relapse, to contact PRN two times per month, to withdraw from practice on evaluation at the request of PRN, and to be reported to DPR by PRN if he failed to comply with the contract.

   
   

10. Bell claims to have unilaterally "cancelled" his contract about two weeks after signing it, but he failed to advise PRN or anyone else about this cancellation. He cancelled the contract because Dr. Goetz did not find him a job which Bell believed Dr. Goetz had agreed to do if he went to treatment and signed a contract.

    
    

11. PRN and Bell corresponded in 1989 and 1991 regarding the contract and Bell's alcohol usage. In August, 1991, Bell advised Dr. Goetz and PRN that he had no problem with alcohol.

    
    

12. In May, 1991, Bell was arrested after an alcohol-related incident. The events leading up to this arrest involved a drinking binge Bell had with a lady friend who lived in a trailer next to him. Bell believed that the friend

    had stolen his carton of cigarettes and bottle of vodka while Bell was "asleep." He went to retrieve these items and entered the friend's trailer through the floor air duct. An altercation ensued involving a butcher knife.

    
    

13. On August 22, 1991, Bell pled no contest to the charge of trespass in an occupied structure.

    
    

14. At the time of the arrest, Bell's trailer was unkempt and strewn with empty liquor bottles.

    
    

15. In December, 1991, at the request of DPR, Bell was examined by two physicians, John E. Perchalski, a family practitioner, and Ernest C. Miller, a psychiatrist and expert in addiction medicine.

    
    

16. Bell reported to Dr. Perchalski and acknowledged at hearing that his average daily alcohol intake was 14.5 ounces and that his alcohol intake had remained at that level for many years. Dr. Perchalski assessed this information and determined that Bell had a history of chronic excessive alcohol intake.

    
    

17. Additionally, Bell had a high corpuscular volume which can be indicative of excessive alcohol intake.

    
    

18. According to Dr. Perchalski, while Bell has no physical disability that would prevent him from practicing medicine, his long history of maladaptive behavior and excessive, regular alcohol intake would make it very difficult for Bell to be able to perform in a completely rational and safe way in his care for his patients.

    
    

19. Bell told Dr. Miller that he consumed an average of 14.5 ounces of alcohol per day and that he suffered from occasional blackouts and hangovers. Bell's further discussions with Dr. Miller supported Dr. Miller's opinion that Bell has no insight into his problem with dealing with, relating to, and controlling the use of alcohol and that treatment programs have thus far been unsuccessful. Bell's refusal to admit that he is an alcoholic is consistent with the level of Bell's denial regarding his problems with alcohol.

    
    

20. The history given by Bell, the physical examination results, and the evaluation and assessment of Dr. Miller support Dr. Miller's diagnosis of chronic alcoholism, alcohol abuse, alcohol dependency, and gamma alcoholism.

21. Dr. Miller's opinion is that in light of the progressive dysfunctional aspects of the disease, Bell will become incapable of sustaining an effective clinical role. As Bell drinks, which is inevitable without treatment, he will not function effectively and his functioning will become less effective as the disease asserts itself on the various aspects of Bell's being. While Dr. Miller acknowledges that Bell may be able to practice currently, the probability is that he will be or will become unable to practice safely until his disease of alcoholism and its disease process are successfully treated. Bell is not currently practicing so no immediate evidence of impaired practice exists.

    
    

22. Additionally, Miller indicated that the ingestion of 14.5 ounces of alcohol would take 20 hours to dissipate from Bell's system and any work with patients before the alcohol dissipated would be affected.

    
    

23. Bell maintains that he has no problem with alcohol and that at no time has there been any allegation that he treated any patient while under the influence of alcohol.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction of the parties to and subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

25. The Board of Medicine has the power to revoke, suspend, or otherwise discipline the license of a physician who is found to be in violation of Section 458.331(1), Florida Statutes. Specifically, Bell is charged with violating Section 458.331(1)(s) which states:

    
    

    (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. . . .

    
    

26. The statute does not require a showing of actual patient harm and there is no mandate that DPR must wait for a physician to engage in acts of gross malpractice before it acts to protect the public interest. In Major v. Department of Professional Regulation, Board of Medicine, 531 So.2d 411 (Fla. 3rd DCA 1988), the court analyzed a similar case. Dr. Major had an admitted problem with alcohol and drugs which led to a relinquishment of her license, readmittance on probation, violation of the probationary terms, and an extension and modification of the probation. Dr. Major appealed the order extending and modifying the probation because the events supporting the Board's order involved no patients and were unconnected with her medical practice.

    
    

27. The Major court affirmed the Board's order and stated:

    
    

    Even talented physicians are capable of tragic mistakes if they practice while under the influence of alcohol or drugs--and the Board need not wait for a physician like

    Dr. Major to engage in such acts of gross malpractice before it acts, as here, to protect the public. [citations omitted]

    The court also agreed with the Board when it said:

    
    

    . . . [r]espondent, an impaired physician, exhibited exceedingly poor judgment [and] resumed consuming alcoholic beverages at times excessively . . . The fact that no patient harm occurred was fortuitous.

    Section 458.331(1)(s), Florida Statutes, sets forth a violation when the physician is unable to practice medicine with reasonable skill and safety to patients. Surely, [r]espondent was unable to do so when her blood alcohol level was 0.235% percent. The statute does not require a showing that patient treatment occurred or was attempted at the time of disability.

    
    

28. Dr. Major had an admitted history of alcohol abuse and had undergone treatment, but while on probation became involved in an incident of public intoxication "which the Board was entitled to view with considerable seriousness." It was not an isolated incident in her personal life "which the Board was required to view as professionally irrelevant." Instead, these events:

    
    

    reflected seriously on Dr. Major's mental stability and, thus, her competency as a physician--given her documented past history of alcohol and drug abuse. It surely stands to reason that an impaired physician like Dr. Major who is capable of "falling off the wagon" in such an explosive way in her personal life may very well do so in her professional life as well--even if she has not as yet done so. Based on this showing, the Board was entitled to conclude that

    Dr. Major was, as charged, "unable to practice medicine with reasonable skill and safety to patients by reason of . . . use of alcohol, drugs, narcotics, chemicals or physical condition." [citations omitted]

    
    

29. The Board's mandate in its dealings with impaired physicians is discussed by the Florida Supreme Court in Boedy v. Department of Professional Regulation, 463 So.2d 215 (Fla. 1985). The Court stated:

    
    

    The interest of the sovereignty in regulating physicians is especially great since physicians are in a position of public trust and responsibility. Like other professionals, the physician is constantly interacting with the public. As such, mental fitness and emotional stability are essential traits that a physician must possess in order to competently practice medicine in a manner not injurious to the citizenry. . . .

    Section 458.331(1)(s) does not deal with an issue of guilt or innocence. Misconduct and subsequent penalties for that misconduct are not at issue under the statute. What is at issue under the statute is whether a physician is fit to practice medicine with reasonable skill and safety. . . .

    
    

    [T]he state has a compelling interest in the regulation of the practice of medicine within its boundaries in order to protect the health, safety and welfare of its citizens.

    
    

30. By applying these legal principles and standards to the facts of this case, it must be concluded that Bell is an impaired physician and that DPR has carried its burden of proof by clear and convincing evidence.

    
    

31. Like Dr. Major, Bell has an admitted history of alcohol abuse and alcoholism. Bell is suffering from the disease of alcoholism and regularly consumes excessive amounts of alcohol. Despite his denials to the contrary, he is impaired by his alcohol abuse and has not been rehabilitated. While he was intoxicated in May, 1991, he was involved in an major incident which reflected seriously on his judgment and stability and which led to his arrest and criminal conviction. Like Dr. Major, it is reasonable to believe that Bell, who has made no attempt in three years to stay "on the wagon," may very well show such a lapse in judgment and instability in his professional life, even if he has not as yet done so.

    
    

32. The experts have all expressed credited opinions that such a serious lapse in his professional life is simply inevitable unless Bell's alcoholism is adequately treated and placed in remission through abstinence. The state would be derelict in its responsibility to protect the health and welfare of its citizenry were it to wait for Dr. Bell to commit some act of malpractice before it took action on his impaired condition.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order and therein:

1. Suspend the medical license of Robert E. Bell, Jr., M.D., for a period of one year or until he appears before the Board of Medicine and demonstrates that he is able to resume the practice of medicine with reasonable skill and safety.

   
   

2. If or when the terms of the suspension have been satisfied, place Dr. Bell on probation for five (5) years with terms and conditions to be set by the Board to insure his continued ability to practice with reasonable skill and safety.

   
   

3. At a minimum, the demonstration of skill and safety should be supported by satisfactory mental and physical examinations by Board approved experts and by evidence of successful completion of an acceptable alcohol rehabilitation program.

DONE and ENTERED this 26th day of August, 1992, in Tallahassee, Florida.

DIANE K. KIESLING

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2204

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact

Submitted by Petitioner, Department of Professional Regulation

1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(3); 7(4); 8(12); 9(13); 10(16); 12(6); 13(5); 14(6 & 7); 15(7); 18(9 & 10); 20(15); 21(16); 22(18); 23(19); 24(19); 25(20); 26(21); and 27(23).

   
   

2. Proposed findings of fact 2, 3, and 17 are unnecessary.

   
   

3. Proposed findings of fact 6, 11, and 16 are subordinate to the facts actually found in this Recommended Order.

   
   

4. Proposed finding of fact 19 is unsupported by the credible, competent and substantial evidence in that Goetz's opinions were based on the evaluations and opinions of other experts and have insufficient support to stand alone.

   
   

5. Proposed finding of fact 28 is irrelevant.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Robert E. Bell, Jr., M.D.

1. Proposed findings of fact 1a, 1b, 1d, 1e, 1f, 1g, 2a, and 2b are subordinate to the facts actually found in this Recommended Order.

   
   

2. Proposed findings of fact 1c, 1h, and 1i are irrelevant.

   
   

3. Proposed finding of fact 2c is unnecessary.

COPIES FURNISHED:

Larry G. McPherson, Jr. Barbara W. Makant Attorneys at Law

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Robert E. Bell, Jr., M.D. Route 3, Box 503

Starke, FL 32091

Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Dorothy Faircloth, Executive Director Board of Medicine

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 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: 92-002204

Orders for Case No: 92-002204