STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7048

) STEVEN L. BLENDER, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 10, 1994, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Joseph Harrison, J.D., Ph.D.

Contract Counsel for DBPR/AHCA

2500 North Military Trail, Suite 275 Boca Raton, Florida 33431

For Respondent: Steven L. Blender, M.D., pro se

250 Bradley Place, Apartment 608 Palm Beach, Florida 33480

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken, if any.

PRELIMINARY STATEMENT

On October 8, 1992, Petitioner issued an Administrative Complaint alleging that Respondent had violated several of the statutes regulating his practice of medicine, and Respondent timely requested a formal hearing regarding those allegations. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding. Based upon Respondent's medical condition at that time, the final hearing was delayed, and this cause was placed in abeyance. In March of 1994 the parties agreed that Respondent's medical condition was such that this cause should be scheduled for final hearing.

Petitioner presented the testimony of Philip Heveran and, by way of deposition, the testimony of Nancy Jill E. Blender; Gary J. Rosenberg, M.D.; Maria Vovou; Tammy Petrosky; Mary Peed; Robert Brody; Terry Winaker; Ronald

Pomerantz; and Robert Owen Buckman, M.D. Those depositions were admitted as Petitioner's Exhibits numbered 1-9. Although Petitioner's Exhibits numbered 10 and 11 were also admitted in evidence, Petitioner's Exhibit numbered 10 was withdrawn post hearing as being duplicative. The Respondent testified on his own behalf.

Although both parties were afforded an opportunity to file post hearing proposed findings of fact, only Petitioner did so. A specific ruling on each of Petitioner's proposed findings of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been a physician licensed in the state of Florida, having been issued license number ME 0033759. When Respondent was engaged in the practice of medicine, he practiced as a dermatologist, specializing in chemosurgery known as Moh's surgery. Subsequent to the events complained of herein, Respondent has not been engaged in the practice of medicine.

   
   

2. Respondent and his ex-wife Nancy were married in 1972. They separated, with Respondent moving out of the marital home, in September of 1990. Their divorce became final in July of 1992.

   
   

3. Over the years, Nancy Blender performed some secretarial and bookkeeping services for Respondent working part time or full time either at home or in Respondent's office, depending upon the ages and needs of their children.

   
   

4. Respondent treated Nancy as a patient on only two occasions. In the early 1980s, Respondent removed several moles from her face. In 1989 Respondent removed a growth from her leg. Other than those two episodes of dermatological treatment, Nancy Blender was not a patient of Respondent, and Respondent did not treat her in his office for any other conditions or illnesses. Specifically, Respondent did not treat Nancy Blender for any type of muscle pain or muscle spasm.

   
   

5. Toward the end of their marriage, Nancy Blender discovered a medical chart on her maintained by Respondent in his office. She was surprised to see that there was a chart on her. She opened the chart and saw that it contained only entries regarding the lesion removal from her leg in 1989. That chart contained no entries regarding medications prescribed for her and, specifically, did not contain any notations indicating that Respondent had prescribed for her either Darvocet or Valium. Nancy Blender removed her chart from Respondent's office. Thereafter, the location of that chart became unknown to both Nancy Blender and to Respondent.

   
   

6. From April 4, 1987, through December 30, 1991, Respondent wrote in the name of Nancy Blender twenty-five prescriptions for Darvocet, 100 mg., each prescription being for one hundred tablets, for a total of twenty-five hundred tablets. Darvocet is a legend drug as defined by Section 465.003(7), Florida Statutes, and contains propoxphene, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes.

   
   

7. From April 4, 1987, through December 30, 1991, Respondent issued twenty-four prescriptions in the name of Nancy Blender for Valium, 10 mg., each prescription being in the amount of one hundred tablets, for a total of twenty-

   four hundred tablets. Valium is a legend drug as defined by Section 465.003(7), Florida Statutes, and contains diazepam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes.

   
   

8. Each of those prescriptions was written by Respondent using either his own prescription forms or using blank prescription forms provided to him at the pharmacies where he filled the prescriptions. Each of the prescriptions was filled by Respondent personally, with Respondent physically going to a pharmacy and obtaining from the pharmacist the medication he had prescribed in Nancy's name.

   
   

9. Nancy Blender did not ask Respondent to write prescriptions for Valium or for Darvocet. She did not see any of the prescriptions in question at the time they were written and did not have any of those prescriptions filled. She did, however, see bottles of Valium and Darvocet in the medicine cabinet of her home with her name on the bottles. She also saw Respondent consume Valium and Darvocet.

   
   

10. During that time period Nancy Blender consumed one Darvocet, taking it for a headache while she and Respondent were on vacation. During that time period she also took a maximum of six to ten tablets of Valium per year with the exception of a two to three month period during 1989 when she took Valium three times a week.

    
    

11. Respondent wrote and filled the prescriptions for Valium and Darvocet in order to obtain those medications for his own use. Further, Respondent ingested that Valium and Darvocet without medical supervision and was, therefore, self-administering.

    
    

12. On Tuesdays Respondent performed Moh's surgery. Those patients undergoing surgery on Tuesdays would then return on either Thursday or Friday for repairs. An assistant was assigned to each room where patients would undergo surgery, the patients would be spread among those rooms, and Respondent would then move from room to room performing each stage of surgery on all patients before moving onto the next stage.

    
    

13. Sometimes Respondent changed his surgical gloves and mask between patients, and sometimes he did not. Sometimes Respondent would don a clean surgical mask and clean surgical gloves and would wear that same mask and those same gloves as he went from room to room performing a stage of surgery. After the last patient, he would then remove his mask and gloves. When he was ready to start the next stage, he would put on a clean mask and clean gloves and wear those as he went from room to room. Sometimes when Respondent came into a room to perform a stage of surgery on the patient in that room, his gloves were visibly bloodied or otherwise soiled from the prior patient. Yet, he did not change them.

    
    

14. When he did remove his surgical mask and gloves, Respondent would throw them and other items used into the sink in the patient room. The nurses and assistants would then dispose of the items in the sink, placing them either in the "red garbage" for bio-hazardous waste or into the regular trash receptacles.

    
    

15. Respondent's office procedures fell below the minimum standard of care both as to his failure to replace his surgical mask and gloves after treating each patient and as to his failure to place waste in the appropriate waste receptacle.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

17. The Administrative Complaint filed in this cause contains six Counts. Count One alleges that Respondent has violated Section 458.331(1)(k), Florida Statutes, by making fraudulent representations in or related to the practice of medicine in that Respondent issued prescriptions under the name of another for his own use from April 4, 1987, through December 30, 1991. Petitioner has met its burden of proving that Respondent is guilty of such fraudulent representations.

    
    

18. Count Two alleges that Respondent has violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records justifying the course of treatment of his now ex-wife in that Respondent kept no medical records documenting the prescriptions issued for her. Petitioner has not met its burden of proving that Respondent violated Section 458.331(1)(m). The evidence in this cause reveals that Respondent maintained a chart for his now ex-wife which contained notations regarding the lesion that he removed from her leg in 1989. That chart did not reflect that Valium or Darvocet was ever prescribed for her because Respondent was not prescribing that medication for her. Accordingly, there was no course of treatment to be reflected in her medical records.

    
    

19. Count Three alleges that Respondent has violated Section 458.331(1)(q), Florida Statutes, by prescribing a legend drug, including any controlled substance, other than in the course of the physician's professional practice in that Respondent prescribed for his now ex-wife twenty-five hundred tablets of Darvocet, 100 mg., and twenty-four hundred tablets of Valium, 10 mg., and subsequently ingested those medications. Petitioner has proven that Respondent is guilty of the allegations contained in Count Three.

    
    

20. Count Four alleges that Respondent has violated Section 458.331(1)(r), Florida Statutes, by administering medicinal drugs appearing on schedules set forth in Chapter 893, Florida Statutes, to himself in that from April 4, 1987, through December 30, 1991, Respondent prescribed Valium and Darvocet for his now ex-wife and ingested those medications himself. Petitioner has proven Respondent guilty of violating Section 458.331(1)(r).

    
    

21. Count Five alleges that Respondent was unable to practice medicine with reasonable skill and safety to patients by reason of his use of drugs from April 4, 1987, through December 30, 1991, thereby violating Section 458.331(1)(s). Petitioner offered no evidence that Respondent was in any way impaired or incapacitated during that time period as a result of his use of drugs. Accordingly, Petitioner has failed to prove the allegations contained in Count Five of the Administrative Complaint filed herein.

    
    

22. Count Six alleges that Respondent has violated Section 458.331(1)(t), Florida Statutes, by committing gross or repeated malpractice or 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 in that Respondent neglected to sterilize medical instruments after each use, neglected to replace his surgical mask and gloves after treating each patient, and disposed of previously used surgical

    gloves in the regular trash baskets. Although Petitioner offered no evidence that Respondent failed to sterilize medical instruments, Petitioner has met its burden of proving that Respondent neglected to replace his surgical mask and gloves after treating each patient and that Respondent caused used surgical gloves to be mixed with items subsequently placed in the regular trash baskets, thereby violating Section 458.331(1)(t).

    
    

23. The penalty guidelines of the Board of Medicine found in Section 61F6- 20.001, Florida Administrative Code, provide that a medical license can be revoked or suspended for violations of Section 458.331(1)(k), (q), (r), and (t), Florida Statutes. The seriousness of Respondent self-administering large quantities of Darvocet and Valium cannot be disputed. Similarly, his failure to follow minimum standards of sanitation cannot be condoned. Moreover, Respondent has offered no evidence in mitigation of the penalty to be imposed for the multiple violations proven by Petitioner in this cause.

RECOMMENDATION

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

1. Dismissing Counts Two and Five of the Administrative Complaint filed in this cause,

   
   

2. Finding Respondent guilty of the remaining allegations contained in the Administrative Complaint filed against him, and

   
   

3. Revoking Respondent's medical license ME 0033759.

DONE and ENTERED this 16th day of November, 1994, at Tallahassee, Florida.

LINDA M. RIGOT

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 16th day of November, 1994.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 1 and 4-11 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 2, 12, and 13 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law.

3. Petitioner's proposed finding of fact numbered 3 has been rejected as being subordinate to the issues under consideration in this cause.

COPIES FURNISHED:

Joseph Harrison, Esquire Slepin, Harrison and Feuer

2500 North Military Trail Suite 275 Boca Raton, Florida 33431

Steven L Blender, M.D.

250 Bradley Place, Apt. 608 Palm Beach, Florida 33480

Dr. Marm Harris, Executive Director Agency for Health Care Administration,

Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Harold D. Lewis, Esquire General Counsel

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Sam Power, Agency Clerk

Agency for Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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.

================================================================= RESPONDENT'S EXCEPTIONS TO ORDER OF HEARING

OFFICER DATED NOVEMBER 16, 1994

AND

RESPONDENT'S MOTION FOR REHEARING

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) DOAH NO. 92-07048

) DBPR/AHCA NO. 92-05155

STEVEN L. BLENDER, M.D., )

)

Respondent. )

)

RESPONDENT'S EXCEPTIONS TO ORDER OF HEARING OFFICER DATED NOVEMBER 16, 1994

AND

RESPONDENT'S MOTION FOR REHEARING

COMES NOW Respondent Steven L. Blender, M.D. in the above captioned proceeding and submits the following exceptions to the Recommended Order of November 16, 1994 by the Honorable Hearing Officer Linda Rigot as to all findings of fact and conclusions of law made against the Respondent as they are not supported by the clear and convincing weight of the evidence and testimony presented, moves for rehearing and further says:

RESPONDENT'S ARGUMENT

1. The Respondent Steven L. Blender, M.D. specifically files his exceptions and objections to the finding of facts and conclusions of law in paragraphs 3, 4, 5, 9, 10, 11, 13, 14, 15, 17, 18, 19, 20, 22 and 23 but not limited thereto of the November 16, 1994 recommended order of Hearing Officer Linda Rigot as they are not supported by the clear and convincing weight of the evidence and testimony presented at the formal administrative hearing held August 10, 1994.

   
   

   Re Counts 1, 3, and 4

   
   

2. As to Counts 1, 3 and 4, the Petitioner did not prove by the clear and convincing weight of the evidence and testimony presented that the Respondent Steven L. Blender, M.D. did ingest and did intend the aforesaid drugs for his own use and not for the use of his former wife. Therefore, the Administrative Hearing Officer erred by finding that the petitioner met its burden of proof as to Count's 1, 3 and 4 against the Respondent.

3. The Respondent's former wife Nancy Jill Blender admitted stealing her medical records from his office for her own purposes. Her theft of those records contaminated the integrity of those medical records and of her own testimony and credibility. According to the testimony of the Respondent's former wife, there was nothing peculiar about her medical file. Yet she offers no credible reason why she took the file. Even so, the Administrative Hearing Officer erroneously accepts everything she says particularly about her medical chart not having any references to her being treated by the Respondent for any medical condition that would require the prescription of Valium or Darvocet.

   
   

4. The testimony of the Respondent's former wife is no more credible than his. In fact her testimony is less credible than his. In addition to her stealing her medical file from Respondents' office for no credible reason, she is not a disinterested independent witness. It is just as likely she could be fabricating her testimony concerning the drug prescriptions to hurt her former husband and to cover up her own drug usage and lifestyle that might affect her child custody and therefore child support. It was therefore error for the Hearing officer to give more credibility to the testimony of the Respondent's former wife than that of the Respondent.

   
   

   The Administrative Hearing Officer further errs by minimizing the Respondent's former wife's contribution to his medical office; she did not just work there she managed his office and him for many years. With her master's degree in finance and her business acumen and shrewdness she was well qualified to do so.

   
   

5. Again, the Petitioner did not prove the charge that Dr. Blender intended the drug prescriptions in issue for himself and that those drugs were not intended for his former wife.

   
   

   1. First Mrs. Blender in her own testimony says she never used the drugs in issue, than she says she might have taken a few tablets of the drugs in issue and finally she admits to regularly taking them during a period of time.

      
      

   2. When asked if she denied taking Darvocet, Mrs. Blender answered not on a regular basis. It is obvious from her own testimony that she used the drugs is issue.

      
      

6. Additionally, no witness testified that Respondent Steven L. Blender,

   M.D. ever appeared impaired by drugs or medication while performing his medical duties or at any other time. If the Respondent showed signs of being drug impaired it would indicate that he was more likely to be taking the alleged drugs. The converse is also true; if the Respondent showed no signs of drug impairment, it would indicate that he was less likely to be taking the drugs in issue.

   
   

7. It is more probable that the Respondent's former wife was taking the medication in issue and not the Respondent. As testified to by the Respondent, this is why she could not regularly come into the office and work and why she needed full time domestic help to run her household because she could not. Again the Petitioner did not meet its burden of proof.

   
   

   Against the clear and convincing weight of the evidence and testimony, the Administrative Hearing Officer therefore erred by judging the testimony of the Respondent's former wife as more credible than his as to Counts 1, 3 and 4.

8. Over the period of time in issue, 1730 days, 2,400 Valium tablets and 2,500 Darvocet tablets were prescribed. That amounts to 1.387 tablets of Valium a day and 1.44 tablets of Darvocet a day. This adds up to slightly less than three (3) tablets a day. Yet the Petitioner's witnesses testified Dr. Blender was ingesting pills all the time at work. Therefore, the charges against Dr. Blender that he was taking the prescriptions drugs he prescribed for his former wife is not credible nor is it supported by the clear and convincing weight of the evidence and testimony presented.

   
   

9. Also, the mere fact that the Respondent Steven L. Blender, M.D. allegedly picked up from the respective pharmacies the prescriptions issue he prescribed for his former wife does not prove drugs were for his own use. Again the hearing officer erred by using that this fact to deduce the prescribed drugs in issue were for Respondent and not his former wife.

   
   

   Re Count 6

   
   

10. The Petitioner, after alleging massive abuses of hygienic medical procedures by the Respondent as alleged in Count 6 failed to show one single instance of infection that would have statistically and logically occurred if some or any of these alleged hygienic violations occurred. The petitioner had access to all of the Respondent's patient names and files and had the ability to investigate the issue of medically caused infection. The petitioner did not present any such testimony or evidence during the proceedings of even one case of infection which would have been the best evidence against him if such violations of medical hygienic standards had occurred.

    
    

11. Even the Petitioner's own witness did not testify that they observed any instances of infection on any of Dr. Blender's thousands of surgical patients following surgery. The average patient had three to five stages or cancer surgical sites. Petitioner's witnesses testified that Dr. Blender did 7-

9 surgery patients per week each with 3-5 surgical stages and he worked between 45-48 weeks a year. By averaging these figures and multiplying them it is shown that D. Blender did approximately 1,488 surgical procedures a year. Over a 7 year period he did approximately 10,416 such procedures and the Petitioner does not even prove up one case of surgical related infections therefrom. Therefore, the Administrative Hearing Officer erred by finding for Petitioner against the Respondent on this issue because the Petitioner did not meet its burden of proof by the clear and convincing weight of the evidence and testimony since the Petitioner could not explain away the absence of any infection caused by the Respondent's surgical practices and procedures.

1. There is also direct conflict between Petitioner's own witnesses concerning the alleged surgical glove irregularities. Mary Peed said Dr. Blender always changed his gloves between each patient during the first stage of surgery. Interestingly, Petitioner's witnesses Maria Vovou and Tammy Petrosky, who are close friends with each other, testified that Dr. Blender never changed his gloves between patients during the first stage.

   
   

2. Tammy Petrosky who testified she is nationally certified as a surgical assistant is particularly not credible. She remained in his employ two (2) years and did not leave his employ until the DPR searched Dr. Blender's office. If such irregularities were going on as she said, she logically, morally and professionally would have reported the problems to the DPR on her own, quit her job or both. She did neither. The testimony of Tammy Petrosky then is not credible and was it error on the part of the Administrative Hearing Officer to base her decision against the Respondent on such spurrious evidence.

3. It is also beyond coincidence that when both of Petitioner's witnesses Maria Vovou and Mary Peed were questioned as to their time of employment with Dr. Blender, each initially and erroneously testified she worked for him in 1971. Interestingly, 1991 was the last year for which the Respondent was being investigated. This tends to show the Petitioner's witnesses were either acting in collusion or being coaxed in their testimony.

   
   

4. The Petitioner did not prove by the clear and convincing weight of the evidence and testimony presented that the Respondent failed to follow proper medical office and surgical hygienic procedures regarding use of surgical gloves, face masks and medical waste disposal. Correspondingly, the Petitioner further did not prove by the clear and convincing weight of the evidence and testimony presented that the Respondent did commit gross malpractice and unsafe medical practices.

   
   

5. The testimony of Petitioner's alleged medical expert, Dr. Gary Rosenberg, is severely flawed. Dr. Rosenberg is not a dermatologist and his field of Plastic surgery is one that competes and disagrees with surgical dermatologists on various issues of medical appropriateness. He does not know Mohs' surgery. He only demonstrates he has superficial knowledge that it exists. Dr. Rosenberg did know that Dr. Nohs is a surgeon and not a dermatologist; he does not know the spelling of Dr. Mohs' name, the state in which Dr. Mohs practices and that Mohs' surgery is extensively used as a surgical treatment modality for cancer and not just a diagnostic tool. He also does not mention that Dr. Mohs was nominated for the Nobel Prize for medicine.

   
   

6. Dr. Rosenberg's testimony shows he is unsure of what dermatologists or dermatological surgeons do. He first says dermatologists do not do surgery then he says they might do minor office procedures like removing warts. He does not testify that dermatological surgeons regularly surgically remove skin cancers and surgically repair the site. He is unaware that dermatology is the only specialty in the division of medicine that employs extensive surgical techniques and procedures. Most importantly, Doctor Rosenberg does not differentiate that dermatologist properly use a "clean" surgical technique as opposed to a "sterile" one. He wrongfully states that all surgical procedures should be conducted under the same hospital like sterile procedures from open heart surgery to the removal of skin tags. This attitude would mean that no office surgical procedures could be done since medical offices are not set up with air purifying systems that are employed in hospital operating rooms. It also is patronizing and condescending to dermatologist and would drive the costs of such surgery drastically up.

   
   

   Attached and incorporated hereto is a copy of the cover of "Dermatological Surgery" a leading medical journal in the field of dermatological surgery to indicate that dermatologist do employ extensive and sophisticated surgical procedures in contradiction to Dr. Rosenberg's self serving testimony.

   
   

7. Dr. Rosenberg's only contribution is his war zone/television analogy that everyone knows that doctors should change gloves before touching a different patient. Therefore, the Administrative Hearing Officer erred by considering the testimony of Dr. Rosenberg and basing her decision in whole or in part on his testimony.

   
   

8. The Petitioner presented no testimony through Dr. Rosenberg or any one else that the prescriptions in issue were medically inappropriate or excessive for his former wife.

9. The investigation by the Petitioner is basically limited to a few disgruntled or scared employees. It did not include the majority of the Respondent's employees who worked with him in his medical office, particularly those who were surgical or laboratory technicians such as Steven Lee and who knew the Respondent's surgical and hygienic practices.

   
   

   SURPRISE TO THE RESPONDENT AT HEARING

   
   

10. The Petitioner's chief investigator Philip Heveran was not listed on Petitioner's witness list and the Respondent was prejudiced because he could not present witnesses to counter the surprise testimony of Heveran. During Heveran's direct testimony and his cross examination he could not give the time and place of his conversations with Steven Lee concerning Lee's alleged conversations with him.

    
    

11. Heveran said that Steven Lee only said that he left the employ of Dr. Blender because of a disagreement over tissue slide preservation and that he did not want to more involved than that. Heveran as an investigator for the Petitioner could have utilized the subpoena power of the Petitioner to ferret out those details concerning alleged tissue slide preservation irregularities and the alleged other matters that Steven Lee supposedly did not want to get involved.

    
    

12. Such testimony if it did exist would have strengthened Petitioner's case but Heveran did not do so because he knew there was no such evidence against the Petitioner to be given by Steven Lee. Therefore, not only is the hearsay based testimony of Philip Heveran suspect and not credible but the entire investigation against the Respondent is as well. As such, the Petitioner has not proved its case against the Respondent by the clear and convincing weight of the evidence and testimony. Heveran's references to Steven Lee's alleged statements were calculated by petitioner to further prejudice the Administrative Hearing Officer against the Respondent so that he would have no way of refuting such statements. Steven Lee is willing to deny such statements and other alleged irregularities for which the Respondent is charged.

    
    

13. Dr. Robert Buckman's deposition does not benefit the Petitioner's case in any way because it only shows that the Respondent's disability came after the times material to this case and his disability was not a result of ingesting medication or drugs. However, Dr. Buckman's testimony demonstrates that the Petitioner is so mentally and physically ill that he could not meaningfully and adequately represent himself at the formal administrative hearing in issue and it was error for the Administrative Hearing Officer not to give the Respondent a continuance or at least to give him an opportunity to re-open the evidence.

    
    

14. All in all, the Petitioner failed to prove by the clear and convincing weight of the evidence that the testimony of the Petitioner's witnesses was more credible than that of the Respondent himself and as such the Petitioner did not meet its burden of proof on the issues.

CONCLUSIONS OF LAW AND FACT

1. The Petitioner has the burden of proving its charges against the Respondent by clear and convincing evidence on every element of the charges against the Respondent. Ferris v. Turlington, 510 So.2d 292 (Fla.1987) and Slomowitz v Walker, 429 So.2d 797, 800 (Fla 4 DCA 1983) and Smith v HRS, 552 So2d 956 (1 DCA 1988).

2. These cases, supra., stand for the propositions that clear and convincing evidence means the evidence must be of such great weight that the trier of fact has such a firm belief of guilt based on credible evidence lacking in witness confusion that there is no hesitancy in that belief of guilt and that such a standard of proof is greater than the preponderance of the evidence found in most civil cases and less than the beyond a reasonable doubt standard in criminal cases. The Petitioner's burden of proof has not been met in the matter at hand.

   
   

3. Additionally, in the cases of Gonzalez v State, 547 So.2d 1274 (2 DCA 1989) and Green v state, 578 So2d 852 (1 DCA 1991), although criminal cases but analogous to the case at hand, these Courts held where the only proof of guilt is circumstantial, a conviction cannot be sustained if there is any reasonable hypothesis of innocence to the contrary no matter how strongly the evidence may suggest guilt. While these are criminal cases and the burden of proof is based on the exclusion of all reasonable doubt, they show the duty is on the prosecution to eliminate reasonable hypothesis of innocence. This the Petitioner herein did not do.

   
   

4. The Administrative Hearing Officer by ignoring all the contradictory and tainted evidence of the Petitioner's witnesses obviously erred in law and in fact by not employing the proper evidentiary standard of requiring the Petitioner to prove its allegations against the Respondent by the clear and convincing weight of the evidence and testimony presented.

   
   

5. A duly licensed physician in the State of Florida may prescribe medication of the type in issue to a family member including a spouse if the prescription is medically indicated and appropriate.

   
   

6. It is not the duty of the Respondent to prove his innocence by establishing or proving the negative existence of the charges against him.

   
   

7. The Courts of Florida have consistently held that when an individual is ill and can not adequately represent himself as was the Respondent he should be granted a continuance as a matter of right and due process and it was error to proceed to in the formal administrative hearing.

WHEREFORE, the Hearing Officer erred in finding for the Petitioner because the Petitioner did not meet its burden of proof as to any and all of the allegations against the Respondent Dr. Steven L. Blender as it did not show by the clear and convincing weight of the evidence and testimony presented that the Respondent Steven L. Blender, M.D. did commit any of charges against him.

Therefore, he should not have been found guilty on any of the alleged charges against him.

Alternatively, the Respondent prays he be given rehearing or be allowed to reopen evidence and present evidence to defend himself.

Additionally, the Administrative Hearing Officer erred by recommending that the Respondent's license to practice medicine in the State of Florida be revoked as it is too severe a penalty.

Respectfully submitted,

Respondent Steven Blender, M.D., Pro Se

250 Bradley Place, Apt. 608 Palm Beach, Florida 33480

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing has been furnished this 5th day of December 1994 to Agency for Health Care Administration, Board of Medicine, 1940 Monroe Street, Tallahassee, Florida 32399; Sam Power, Agency Clerk, Agency for Health Care Administration, The Atrium, Suite 301, 325 John Knox Road, Tallahassee, Florida 32303; Hearing officer Linda Rigot, Division of Administrative Hearings, The Desoto Building,1230 Appalachee Parkway, Tallahassee, Florida 32389 and to Petitioner's attorney Joseph Harrison, 2500 North Military Trail, Boca Raton, Florida 33431.

Steven Blender, M.D.

================================================================= ORDER ON MOTION FOR REHEARING

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7048

) STEVEN L. BLENDER, M.D., )

)

Respondent. )

)

ORDER

This cause camebefore the undersigned on Respondent's Motion for Rehearing, filed December 6, 1994. Rules 60Q-2.032(3), Florida Administrative Code, provides the following:

(3) No motion for rehearing shall be addressed to any recommended order or final order issued by

a Hearing Officer, or shall any motion for rehearing or motion for corrected order operate to stay the effect of any order issued by a Hearing Officer.

It is, therefore,

Ordered that Respondent's Motion for Rehearing be and the same is hereby denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of December, 1994.

LINDA M. RIGOT, 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 15th day of December, 1994.

COPIES FURNISHED:

Joseph Harrison, Esquire Slepin, Harrison and Feuer

2500 North Military Trail, Suite 275 Boca Raton, Florida 33431

Steven L. Blender, M.D.

250 Bradley Place, Apt. 608 Palm Beach, Florida 33480

=================================================================

AGENCY ORDER OF REMAND

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION

Petitioner, AHCA CASE NO.: 92-05155 vs. DOAH CASE NO.: 92-7048

STEVEN L. BLENDER, M.D.,

Respondent.

/

ORDER OF REMAND

This matter came before the Board of Medicine pursuant to section 120.57(1), Florida Statutes, to review the Recommended Order of the Hearing Officer in Division of Administrative Hearings case number 92-7048. The Board reviewed this matter at its regularly scheduled meeting of February 11, 1995, in Tampa, Florida. At the presentation of the Recommended Order Petitioner was represented by Joseph Harrison, Attorney at Law and Respondent was represented by Wilson Jerry Foster, Attorney at Law.

Respondent raised an issue in properly filed exceptions with regard to the fairness of the formal proceedings held before the Division of Administrative Hearings. Through counsel, Respondent asserted that he was not competent to represent himself at the formal hearing because of the complexity of such proceedings. He referred to the expert evaluations of his ability to comprehend various types of issues related to his own defense and asserted that he had not even been capable of fully addressing this issue at the time of formal hearing. It is clear in the record of this case that this issue was brought to the Hearing Officer's attention at the formal hearing. Counsel for Petitioner objected to any further consideration of this issue by the Board citing to the Hearing Officer's resolution at the formal hearing.

Although the Board does not take the position that a respondent has a clear right to be found competent to assist in his own defense as a prerequisite to administrative prosecution for violations of Chapter 458, Florida Statutes, the Board is concerned that every respondent be given at least the opportunity to be fully and properly represented in disciplinary proceedings. Based upon the representations of counsel for Respondent and a review of the record, the Board could not be certain that the Respondent had capably and fully brought to the Hearing Officer's attention the issue of whether the Respondent was adequately able to represent himself in the formal hearing on August 10, 1994.

THEREFORE the Board has determined that it is appropriate to remand this case to the Hearing Officer for the very narrow purpose of establishing whether or not the issue of Respondent's ability to fully comprehend and deal with the

necessity's of self-representation, including a sufficient understanding of what rights he could exercise in his own behalf at or after the formal hearing, had been sufficiently presented to the Hearing Officer on the date of the formal hearing. If this issue was not fully addressed before the Hearing Officer, this remand will provide the opportunity to further consider the matter. If the Hearing Officer is satisfied with the proceedings already conducted, then this case will be returned to the Board for consideration of the previously filed Recommended Order and record.

DONE AND ORDERED this 17 day of March 1995.

BOARD OF MEDICINE

GARY E. WINCHESTER, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Order has been sent by U.S. Mail to Steven L. Blender, M.D. c/o Wilson Jerry Foster, Attorney at Law, 1342 Timberlane Road, Suite 101-A Tallahassee, Florida 32312- 1775 and Linda M. Rigot, Hearing Officer, Division of Administrative Hearings, The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550, and to Joseph Harrison, Attorney at Law, 2500 N. Military Trail, Suite 275, Boca Raton, Florida 33431, this day of , 1995.

*

* Document filed with DOAH was undated and unsigned.

AMENDED CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Steven L. Blender, M.D., 3385 Burns Road, #208, Palm Beach Gardens, Florida 33410-4328, and Wilson Jerry Foster, Esquire, 1342 Timberlane Road, Suite 101-A, Tallahassee, Florida 32312-1775, and Linda

M. Rigot, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and Joseph Harrison, Esquire, 2500 North Military Trail, Suite 275, Boca Raton, Florida 33431 and by interoffice delivery to Larry G. McPherson, Chief Medical Attorney, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0792, at or before 5:00 p.m., this 20 day of March, 1995.

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DOAH ORDER ON REMAND

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF MEDICINE )

)

Petitioner, )

)

vs. ) CASE NO. 92-7048

)

STEVEN L. BLENDER, M.D., )

)

Respondent. )

)

ORDER ON REMAND

On March 21, 1995, the Board of Medicine's Order of Remand was filed with the Division of Administrative Hearings. By agreement of the parties, the transcript of the Board meeting at which the Board voted to remand this cause was filed on April 3, 1995, and a copy of the transcript of the final hearing in this cause, together with a copy of the exhibits, was filed on April 7, 1995.

The record in this cause reveals that the final hearing was conducted on August 10, 1994, a Recommended Order was entered on November 16, 1994, and the Board of Medicine met on February 11, 1995, to consider that Recommended Order. At the Board meeting, Respondent appeared through counsel and requested the Board remand this cause for two reasons: (1) That Respondent was not competent to represent himself at the formal hearing because of the complexity of such proceedings, and (2) That Respondent did not waive his right to cross-examine the witnesses at the final hearing. After extended argument of counsel and discussion among the Board members, the Board voted to remand this cause on the second issue only, i.e. Respondent's waiver or preservation of his right to cross-examination. Curiously, the Order of Remand entered March 17, 1995, recites that the remand involves the first argument, i.e., the issue of Respondent's ability to represent himself, including his ability to comprehend rights he could exercise in his own behalf.

Prior to the final hearing, this cause and the other disciplinary proceedings pending against Respondent were placed in abeyance as a result of certain psychological evaluations and reports which were made a part of the record in this cause. On February 21, 1994, the deposition of Respondent's treating psychiatrist was taken. In that deposition, the psychiatrist opined that Respondent could respond to the charges against him in this cause because the charges were straightforward and not of the complexity of the charges pending against him in the other disciplinary proceedings involving his adherence to the standard of care expected of him. Although the psychiatrist was not asked if Respondent were competent to represent himself, such a determination may not be solely a medical opinion, and Respondent was then represented by counsel.

The record in this cause demonstrated at the time of the final hearing that Respondent has not been adjudicated incompetent and that his treating psychiatrist had rendered an opinion that Respondent was capable of participating in the final hearing in this cause. Based upon that medical opinion, Respondent's attorney stipulated that this matter should be scheduled for final hearing, and it was. Thereafter, Respondent chose to represent himself at the final hearing rather than being represented by counsel. There is no legal requirement, and no mechanism, for determining whether a pro se litigant is competent to represent himself or herself in an administrative proceeding. Similarly, there is no legal requirement for, or mechanism for, determining whether an attorney is competent to represent a litigant in an administrative proceeding. Since a party to an administrative proceeding has a right to be represented by an attorney or other qualified representative and has a right to represent himself or herself, there is no basis in law for a Hearing Officer of the Division of Administrative Hearings to prohibit a party from representing himself or herself if that party chooses to do so even if that party is deficient intellectually or emotionally.

It is well settled law in Florida that a Respondent is not required to participate in a disciplinary proceeding and the licensee does not even have to be present. At the time of the final hearing in this cause, the record reveals that Respondent had discharged his attorney in this proceeding and did not obtain the services of another to represent him at the final hearing. The transcript from the final hearing reflects that at the commencement thereof Respondent requested a continuance so he could consult with attorneys representing him in other legal matters and reflects that his desire to postpone the final hearing related to his desire to relinquish his license to practice medicine at a time calculated to have no effect on his continued receipt of disability insurance payments. Thereafter Respondent participated in the final hearing. He objected to evidence, testified as to his version of the facts, and cross-examined the rebuttal witness presented by the Petitioner.

In summary, at the time of the final hearing in this cause, the record reflected, and the undersigned considered, that both Respondent's psychiatrist and his attorney had made medical and legal decisions that Respondent was able to participate in this proceeding, that Respondent had thereafter determined that he would represent himself, that Respondent did appear for the final hearing, that Respondent requested a continuance for reasons intertwined with other litigation in which he was involved, that his request for continuance made at the commencement of the final hearing was denied, and Respondent thereafter proceeded to represent himself. That representation included giving argument about the evidence, testifying on his own behalf, and cross-examining the rebuttal witness called by Petitioner.

Respondent's right to cross-examination was also considered at the final hearing in this cause. On February 23, 1993, the parties filed a joint status report agreeing that the Respondent was not prevented by any medical condition from proceeding forward in this case and requesting that the final hearing be scheduled for May of 1993 so the parties would have adequate time for discovery. A Notice of Hearing was entered scheduling the final hearing for May 25-26, 1993. Thereafter Petitioner began engaging in discovery in this proceeding.

Petitioner scheduled for deposition its witnesses and took those depositions.

Respondent then requested that the final hearing be continued and set forth the agreement between the parties that Petitioner would be permitted to complete its discovery in order to preserve that evidence. The continuance was granted,

and Petitioner noticed and took the depositions of four additional witnesses. Respondent's attorney was noticed for all of Petitioner's depositions, and Respondent's attorney participated in all depositions, appearing either in person or by telephone. Respondent's attorney was given the opportunity to cross-examine those witnesses during their depositions and did so. In those instances where he chose to not cross-examine, he did not reserve his right to cross-examine for a subsequent time.

Petitioner completed its depositions in May of 1993. In September 1993, Respondent requested that this proceeding remain in abeyance and reiterated in his motion his agreement that Petitioner would be permitted to continue with discovery for the purpose of preserving Petitioner's evidence. That motion expanded the agreement, however, as follows:

7. The parties have agreed that the Petitioner rwill be permitted to go forward without inter- ruption to obtain direct testimony in order to preserve evidence and testimony in this cause. The parties further agree that Respondent is not waiving his right to cross-examine the Petitioner's witnesses and that Petitioner's introduction and use of such evidence and testimony at a final hearing of this cause

will be subject to the Respondent having the opportunity to cross-examine the witness at or about the time of the final hearing of this cause. This paragraph shall not preclude the petitioner from requesting the hearing officer to require respondent to engage in cross- examination during this period of abeyance, on a witness by witness basis, upon a showing that

there is a substantial likelihood that the evidence from the witness will be lost, destroyed or will become otherwise unavailable for hearing.

Thereafter, the case remained in abeyance until the parties requested in March 1994 that this cause be severed from the remainder of the disciplinary proceedings against Respondent and that it be set for hearing.

There is no legal requirement that a party engage in cross-examination; however, there is a requirement that a party be given an opportunity to cross- examine. Respondent exercised that right at the depositions of the witnesses scheduled by Petitioner. Whether Respondent had further rights to cross-examine thereafter would be questionable but for the parties' agreement that Respondent would be given the "opportunity to cross-examine" the witnesses at or about the time of the final hearing. Thereafter, first Respondent's attorney and then Respondent made no attempt to engage in additional cross-examination of those previously cross-examined witnesses, did not subpoena any witnesses to appear at the final hearing, and did not indicate to Petitioner that Respondent was unhappy with the previous agreement regarding the introduction of the depositions at final hearing without Petitioner's witnesses attending the final hearing.

At the time of the final hearing in this cause, the record contained Petitioner's unilateral pre-hearing statement, filed August 3, 1994, representing that Petitioner had only been able to communicate with Respondent through counsel representing Respondent in other litigation, and advising

Respondent and the undersigned that Petitioner intended to offer only those depositions taken during April and May of 1993 as Petitioner's evidence in lieu of presenting those witnesses at the final hearing. Still, Respondent did nothing to exercise any right to cross-examine witnesses by objecting at that time to Petitioner's approach or by requesting subpoenas for those witnesses to appear at the final hearing or for any witnesses to appear on behalf of Respondent.

Respondent deserves to be indulged with the same presumptions given to other litigants: decisions made by parties in litigation are frequently strategic decisions. Decisions made by litigants, whether pro se or represented, are not always wise decisions; nevertheless, parties are entitled to make their own decisions. In this cause, first Respondent's attorney and then Respondent chose to not engage in discovery, chose to not subpoena any witnesses, and chose to not demand that Petitioner produce its witnesses when Petitioner disclosed that it intended to offer only the depositions.

Since Respondent was at the time represented by counsel in some of his legal matters, it is assumed that Respondent made a decision to not be represented by counsel in this matter except during those stages of this proceeding deemed by Respondent to be critical. Specifically, Respondent had counsel in this proceeding during the time that the proceeding was being delayed based on Respondent's psychiatrist's opinion. When the case was scheduled for final hearing, Respondent represented himself. After the final hearing, Respondent obtained the services of an attorney to obtain an extension of his deadline for filing a proposed recommended order after Respondent's deadline had passed. Thereafter, Respondent represented himself in filing exceptions to the Recommended Order. At the meeting of the Board of Medicine wherein the Board of Medicine would consider the adoption, or not, of the Recommended Order, Respondent appeared with his prior attorney to argue that he had been deprived of fundamental rights in this proceeding. Upon the Board's entry of its Order of Remand which is the subject of this Order, Respondent once again began representing himself and is currently not represented by an attorney.

Accordingly, in answer to the Board's inquiry as to whether the undersigned considered at the final hearing Respondent's ability to competently represent himself, that question is answered in the affirmative and in the context wherein Respondent's psychiatrist and his attorney had previously determined that Respondent was competent to participate in this proceeding and there is no legal authority for the undersigned inquiring into a pro se litigant's ability to represent himself or herself emotionally or intellectually. In response to the Board's inquiry whether the undersigned considered Respondent to have waived his right to cross-examine Petitioner's witnesses, the undersigned was aware at the time of the final hearing in this cause that Respondent's attorney had cross- examined those witnesses at deposition and Respondent had been advised that Petitioner would offer those depostitions in evidence in lieu of having those witnesses testify at the final hearing. Further, although the opportunity existed to secure the presence of those and other witnesses at the final hearing, Respondent did not exercise that right or take advantage of that opportunity. Such failure is normally considered a waiver, factually and legally. Lastly, in response to the Board's specific inquiry whether the undersigned is satisfied with the proceedings already conducted, that inquiry is answered in the affirmative.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of May, 1995.

LINDA M. RIGOT, 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 5th day of May, 1995.

COPIES FURNISHED:

Dr. Marm Harris, Executive Director Agency for Health Care

Administration Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

Joseph Harrison, Esquire Slepin, Harrison and Feuer

2500 North Military Trail, Suite 275 Boca Raton, Florida 33431

Steven L. Blender, M.D.

250 Bradley Place, Apt. 608 Palm Beach, Florida 33480

Tom Wallace, Assistant Director Agency for Health Care

Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Docket for Case No: 92-007048

Orders for Case No: 92-007048