STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE )
)
Petitioner, )
)
vs. ) CASE NO. 93-0117
)
ASHER S. A. PADEH, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case at Miami, Florida, on March 4, 1994, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:
APPEARANCES
For Petitioner: Francesca Plendl, Esquire
Senior Attorney
Department of Business and Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
For Respondent: Harold M. Braxton, Esquire, and
Tania Therese Wong, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156
STATEMENT OF THE ISSUES
This is a license discipline case in which the Petitioner seeks to take disciplinary action against a medical doctor on the basis of alleged violations of paragraphs (m), (q), and (t) of Section 458.331(1), Florida Statutes. The violations charged relate to allegations that the Respondent improperly prescribed legend drugs, including controlled substances, and that he failed to keep certain records.
PRELIMINARY STATEMENT
At the hearing on March 4, 1994, the Petitioner presented the testimony of four witnesses, including a medical expert and an expert in the field of questioned-document examination. The Petitioner also had twelve exhibits marked for identification, of which ten were received in evidence. The Respondent did not present any testimony. The Respondent offered two exhibits, both of which were rejected.
At the conclusion of the hearing the parties were allowed twenty days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the hearing was filed with the Hearing Officer on March 24, 1994. Thereafter, at the request of the Respondent, the deadline for filing proposed recommended orders was extended until April 25, 1994.
Both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix hereto.
FINDINGS OF FACT
The Respondent is, and has been at all times material to this proceeding, a licensed physician, having been issued license number ME 0026758 by the State of Florida.
During 1988 and 1990 the Respondent wrote five prescriptions for a person named V. L. R. The prescriptions were dated 7/9/88, 8/23/88, 9/27/88 11/18/88, and 2/12/90.
As of October 22, 1990, the Respondent did not have any medical records in his possession regarding V. L. R. The Respondent has never had any medical records regarding V. L. R.
The prescriptions the Respondent gave to V. R. L. included a prescription for 100 tablets of Eskalith CR, 450 milligrams each. Eskalith is a brand name for Lithium. The prescriptions the Respondent gave to V. L. R. also included a prescription for 500 tablets of Lithobid, 300 milligrams each, which is another brand name for Lithium. Before prescribing Lithium, a physician should establish the existence of a mood disorder as a diagnostic basis for the prescription. The diagnosis should be reflected in medical records.
When prescribing Lithium, a physician should also monitor the concentration of the drug in the system of the person to whom the drug is prescribed, because the therapeutic level of Lithium is very close to the toxic level of Lithium. If the concentration is too low, the drug is not effective. If the concentration is too high, there can be toxic effects including vomiting, diarrhea, unsteady gait, and the possibility of falling.
The prescriptions the Respondent gave to V. R. L. included a prescription for 30 tablets of Ativan, 100 milligrams each. Ativan is a controlled substance which is habit forming. It is a tranquilizer. A physician should not prescribe Ativan without a diagnosis of a sleeping problem or anxiety. The diagnosis should be documented in the medical records of the person to whom the prescription is given. The name of the drug, the dosage, and the times the drug should be taken should all be included in the medical records.
The prescriptions the Respondent gave to V. R. L. included a prescription for 100 tablets of Tegretol, 100 milligrams each. Tegretol is an anti-seizure medication that is also used as a mood stabilizer in people who have a major mood disorder. When prescribing Tegretol, a physician should also monitor the concentration of the drug in the system of the person to whom the drug is prescribed, because the drug has the potential for adverse side effects, including inhibition of blood cell production and the production of platelets
leading to the risk of infection or bleeding. A physician should not prescribe Tegretol unless a diagnosis of a mood disorder has been made. The diagnosis should be reflected in medical records. A physician should not prescribe Tegretol and Lithobid to the same person unless there have been some difficulties in the treatment of the person and a need for simultaneous prescription of both drugs has been established by the physician. The name of the drug, the dosage, and the times the drug should be taken should all be included in the medical records.
The prescriptions the Respondent gave to V. R. L. included a prescription for 100 tablets of Anafranil, 25 milligrams each. Anafranil is a drug prescribed to treat obsessive/compulsive disorder with or without depression. A physician should not prescribe Anafranil without a diagnosis of an obsessive/compulsive disorder. The diagnosis should be documented in the medical records of the person to whom the prescription is given. Any symptoms of depression should also be noted in the medical records. The name of the drug, the dosage, and the times the drug should be taken should all be included in the medical records. When prescribing Anafranil, the physician should monitor the effect of the drug by observation of the person to whom the prescription is given. Such observations should be noted in the medical records.
The prescriptions the Respondent gave to V. R. L. included a prescription for 10 tablets of Endep, 25 milligrams each. Endep is a commercial name for amitriptyline, which is an antidepressant. It is used to treat depression. A physician should not prescribe Endep unless a diagnosis of depression has been made. The diagnosis should be included in the medical records. The name of the drug, the dosage, and the times the drug should be taken should all be included in the medical records.
The prescriptions the Respondent gave to V. R. L. included a prescription for 15 tablets of Halcion, 25 milligrams each. Halcion is a controlled substance that is used to treat sleeping disorders. A physician should not prescribe Halcion unless a diagnosis of a sleeping disorder has been made and the need for the drug is established. When prescribing Halcion, the physician should monitor the effect of the drug by means of observations of and discussions with the person to whom the prescription was given. The diagnosis of sleeping disorder and the observations and discussions should all be noted in the medical records. The name of the drug, the dosage, and the times the drug should be taken should also all be included in the medical records.
The Respondent prescribed quantities of medication that represented a potential danger to V. L. R. The Respondent prescribed excessive or inappropriate quantities of drugs to V. L. R. The Respondent, by providing the prescriptions described above to V. L. R., prescribed legend drugs, including controlled substances, outside the scope of his professional practice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.
In a license discipline proceeding of this nature the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris
v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):
We therefore hold that clear 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 testimony 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the above- quoted language from Slomowitz. The Smith case also includes the following at page 958:
"Clear and convincing evidence" is an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970).
Section 458.331(1), Florida Statutes (1989), includes the following as acts for which disciplinary action may be taken against a licensed physician:
(m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.
* * *
(q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best
interest of the patient and is not in the course of the physician's professional practice, without regard to his intent.
* * *
(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Count One of the Amended Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(m), Florida Statutes (1989), by "failing to keep written medical records justifying the course of treatment of the patient. . . ." A similar charge was addressed in the Recommended Order in Department of Professional Regulation, Board of Medicine v. James H. Sternberg, M.D., DOAH Case No. 91-5044 (Recommended Order issued January 20, 1993). Paragraph 19 of the conclusions of law in the Sternberg Recommended Order includes the following:
19. The statutory provision quoted immediately above requires written medical records only when the physician is engaged in "treatment of the patient." In this case there is no evidence that the Respondent was engaged in treating any medical condition of either himself or his girl friend, nor is there any evidence that either of the two had any medical condition which required treatment. In the absence of proof of treatment of a patient, there can be no violation of subsection (m) of Section 458.331(1), Florida Statutes (1987), because under that subsection there is no duty to keep medical records unless a patient is being treated. Accordingly, Count One of the Amended Administrative Complaint should be dismissed.
The same result should be reached in this case because there is no clear and convincing evidence that V. L. R. was ever a patient of the Respondent, nor is there any clear and convincing evidence that the Respondent ever treated any medical condition of V. L. R. The proof being insufficient to establish that the Respondent was engaged in the treatment of a patient when he wrote prescriptions for V. L. R., the proof is also insufficient to establish that the Respondent had a duty to prepare or keep medical records regarding V.
L. R. Therefore, the violation charged in Count One of the Administrative Complaint should be dismissed.
Count Two of the Amended Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(t), Florida Statutes (1989), "in that Respondent failed to take a patient history, perform a physical examination, obtain laboratory testing, or develop a diagnosis and treatment plan before writing prescriptions for [V. L. R.]." There is no clear and convincing evidence of the factual predicate for this charge. While it is clear that the Respondent neither made nor kept any medical records regarding V. L.
R., there is no evidence one way or the other as to whether he took a history, performed a physical examination, obtained laboratory testing, or developed a diagnosis and treatment plan. While it is certainly unlikely that the Respondent did such things as take a history, perform a physical examination, obtain laboratory testing, and/or develop a diagnosis and treatment plan prior to giving prescriptions to V. L. R., there is a big difference between establishing that something is unlikely to have happened and proving by clear and convincing evidence that it did not happen. In view of the insufficiency of the evidence in this regard, Count Two of the Amended Administrative Complaint should be dismissed.
Count Three of the Amended Administrative Complaint charges the Respondent with a violation of Section 458.331(1)(q), Florida Statutes (1989), "by prescribing . . . a legend drug, including any controlled substance, other than in the course of the physician's professional practice." This violation has been proved by clear and convincing evidence. The Respondent has admitted to the essentials of this violation by his admission that V. L. R. was never his patient and by his admission that he wrote the several prescriptions described in the findings of fact and gave the prescriptions to V. L. R. Therefore, the Respondent should be found guilty of the violation charged in Count Three of the Amended Administrative Complaint.
With regard to the determination of an appropriate penalty for the violation described above, the Respondent has argued in his proposed recommended order that, because of the similarity of the violation in this case to the violations found in Department of Professional Regulation, Board of Medicine v. James H. Sternberg, M.D., DOAH Case No. 91-5044 (Recommended Order issued January 20, 1993), the penalty in this case should be the same as that recommended in the Sternberg case. The similarity of the violations is sufficient to warrant similar penalties.
On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect:
Dismissing the charges alleged in Counts One and Two of the Amended Administrative Complaint;
Finding the Respondent guilty of a violation of Section 458.331(1)(q), Florida Statutes, as alleged in Count Three of the Amended Administrative Complaint; and
Imposing an administrative penalty comprised of (i) an administrative fine in the amount of one thousand dollars ($1,000.00), (ii) a requirement that the Respondent attend one or more continuing education courses on the subject of legal and ethical issues associated with the prescription of controlled substances, and (iii) a public reprimand of the Respondent for the violation described above.
DONE AND ENTERED this 28th day of June, 1994, at Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH, 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 Adminsitrative Hearings this 28thday of June, 1994.
APPENDIX
The following are the specific rulings on all proposed findings of fact submitted by all parties.
Findings submitted by Petitioner: Paragraphs 1 and 2: Accepted.
Paragraph 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance.
Paragraph 5: Rejected as not supported by clear and convincing evidence. (It is clear that the Respondent did not make any records of any such examinations or tests, but it is not clearly established that he did not perform the examinations or tests.)
Paragraph 6: Rejected as subordinate and unnecessary details.
Paragraph 7: Accepted in part and rejected in part. It is clear that the Respondent failed to keep medical records regarding V. L. R.; it is not clear that he "treated" her or that she was a patient.
Paragraphs 8 through 36: Accepted.
Paragraphs 37 and 38: Rejected for several reasons, including the following: These two paragraphs are to some extent arguments, rather than proposed findings of fact. The opinions described in these two paragraphs are both based on an assumption that was not proved; the assumption that V. L. R. was a patient who was being treated. There is no clear and convincing evidence that V. L. R. was the Respondent's patient.
Paragraph 39: Rejected as an invalid and incorrect opinion. The issuance of a prescription does not always constitute treatment of the person for whom the prescription is written. (A classic example of when prescription writing does not constitute treatment is when a prescription is written for a drug to be used for recreational purposes, rather than for a legitimate medical purpose.)
Paragraph 40: Rejected as not supported by clear and convincing evidence. (It is clear that the Respondent did not make any records of any history, psychiatric evaluation, or diagnosis of V. L. R., but it is not clearly established that he did not do those things.)
Paragraph 41: Accepted.
Paragraph 42: Rejected for several reasons. First, the facts proposed in this paragraph were not established by clear and convincing evidence. (McKenzie's testimony about who wrote the notes was hearsay that would not meet one of the recognized hearsay exceptions; Norwich's testimony about who wrote the notes was limited to an unquantifiable "probably.")
Paragraph 43: Rejected for several reasons. First the evidence is insufficient to establish what kind of relationship the Respondent had with V.
L. R. Second, there is no clear and convincing evidence of a sexual relationship between the Respondent
and V. L. R. Third, there is no clear and convincing evidence that V. L.
was a patient of the Respondent. Fourth, any findings about a sexual relationship would be irrelevant because there is no allegation in the Amended Administrative Complaint regarding any sexual relationship.
Paragraph 44: Rejected because this opinion is based on at least one fact that was not proved at the formal hearing.
Paragraph 45: Accepted.
Paragraph 46: First three lines and first word of fourth line are accepted. The reference to the sexual relationship is rejected as not charged and as not proved by clear and convincing evidence.
Paragraph 47: Rejected because this opinion is based on at least one fact that was not proved at the formal hearing.
Findings submitted by Respondent: Paragraph 1: Accepted.
Paragraphs 2 and 3: Rejected as subordinate and unnecessary procedural details.
Paragraphs 4 and 5: Rejected as not supported by persuasive competent substantial evidence.
Paragraph 6: Accepted in substance.
Paragraph 7: Rejected as subordinate and unnecessary details.
Paragraphs 8 through 10: Accepted in substance, with some subordinate and unnecessary details omitted.
Paragraph 11: Rejected as incorrect dates; the correct dates are 1988 to 1990.
Paragraph 12: Accepted in substance. Paragraph 13: Rejected as irrelevant.
COPIES FURNISHED:
Francesca Plendl, Esquire Senior Attorney
Department of Business and Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Harold M. Braxton, Esquire, and Tania Therese Wong, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156
Jack McRay, General Counsel General Counsel
Department of Business and Professional Regulation
Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Dr. Marm Harris Executive Director Board of Medicine
Department of Business and Professional Regulation
Northwood Centre
1940 North Monroe Street 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.
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AGENCY FINAL ORDER
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STATE OF FLORIDA
AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE
AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,
Petitioner,
vs. CASE NO. 90-05417
DOAH CASE NO: 93-0117
ASHER S. A. PADEH, M.D.,
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b)10., Florida Statutes, on August 6, 1994, in Orlando, Florida, for consideration of the Hearing Officer's Recommended Order (Attached as App. A) in the case of Agency for Health Care Administration, Board of Medicine v. Asher S.A. Padeh, M.D..
APPEARANCES
For Petitioner: Larry G. McPherson, Jr.,
Chief Medical Attorney.
For Respondent: Richard Kozek,
Law Offices of Harold Braxton, Esquire.
Upon consideration of the Hearing Officer's Recommended Order, Petitioner's Exceptions to Recommended Order, Motion to Increase Penalty, and after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:
FINDINGS OF FACT
The Hearing Officer's Recommended Findings of Fact are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.
There is competent, substantial evidence to support the Board's findings herein.
RULINGS ON PETITIONER'S EXCEPTIONS TO THE CONCLUSIONS OF LAW
Petitioner's Exception to paragraph 15 of the Findings of Fact of the Recommended Order which finds that Section 458.331(1)(m), Florida Statutes, doesn't apply to Respondent because he was not "treating" the patient, is accepted. The Board determined in the Final Order of Department of Professional Regulation, Board of Medicine v. James H. Sternberg, M.D., DOAH Case No. 910544 (Final order filed April 26, 1993), that when a physician provides drugs to a person the physician creates a physician-patient relationship and the concomitant duty to maintain patient records. Accordingly, paragraph 15 of the Findings of Fact is rejected and the following substituted therefore:
15. The Board rejects the interpretation of Section 458.331(1)(m), Florida Statutes, as applying only when a physician is treating a medical condition or when a patient has a medical condition that requires treatment
and as not applying when, as here, a physician is gratuitously prescribing medications that require special monitoring to avoid serious toxicity. Such interpretation would lead to a ludicrous result. This the board is not required to do. Further, it ignores the statutory phrase "course of treatment" which the board finds is broader than just treatment and includes diagnosis and prescription, administration, and dispensing of drugs and all other acts that constitute the practice of medicine. That diagnosis and not just treatment is included is evident from the fact that the statute explicates, "including, but not limited to, patient histories,
examination results, and test results." That the statute was intended to include the provision of drugs to patients is evident by
the later (1989) amendment to the "included, but not limited to" language to specify "records of drugs prescribed, dispensed, or administered." The board finds that when a physician provides drugs to another person (regardless of whether by prescription, administration, or dispensing), the physician creates a physician-patient relationship and the concomitant duty to maintain patient records.
Petitioner's Exception to paragraph 16 of the Conclusions of Law of the Recommended Order that Count One of the Administrative Complaint be dismissed, is accepted. For reasons stated above, a physician-patient relationship and the concomitant duty to maintain records occurs when a physician prescribes medications to a patient. Accordingly, paragraph 16 of the Conclusions of Law is rejected and the following conclusion substituted therefore:
16. Competent, substantial evidence was presented to demonstrate both that a physician-patient relationship between Respondent and the patient and that Respondent kept no medical records of his prescriptions to the patient. Accordingly, Respondent is in violation of Section 458.331(1)(m), Florida Statutes.
CONCLUSIONS OF LAW
The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.
The findings of fact set forth above establish that Respondent has violated Sections 458.331(1)(g) and 458.331(1)(m) Florida Statutes, as charged in the administrative complaint.
Count Two, alleging a violation of Section 458.331(1), (t), Florida Statutes is DISMISSED.
RULING ON PETITIONER'S EXCEPTION TO THE RECOMMENDED PENALTY AND MOTION TO INCREASE PENALTY
For reasons stated in Petitioner's Motion To Increase Penalty (attached as Exhibit B), the Board rejects the recommended penalty of the Recommended Order and imposes the following penalty:
On the basis of all the foregoing, to include the finding of a violation of 458.331(1)(m), Florida Statutes, and in consideration of the serious nature of prescribing tranquilizers, anti-seizure medication, antidepressants, sleeping disorder medication and mood altering drugs which could reach toxic levels without proper monitoring, and the Disciplinary Guidelines of the Board, Rule 61Q-20.001, Florida Administrative Code.
DISPOSITION
WHEREFORE, it is found, ORDERED and ADJUDGED that the Respondent has violated Section 458.331(1) and pursuant to Rule 61F6-20, that the following penalty is hereby imposed upon the Respondent:
The Respondent is hereby REPRIMANDED.
The Respondent shall pay a fine in the amount of $5,000.00 (five thousand dollars) to the Board within one year of the filing of the final order in this case.
Respondent is permanently restricted from prescribing for or treating Patient V.L.R.
The Respondent shall complete the course, "Protecting Your Medical Practice, Clinical, Legal and Ethical Issues in Prescribing Abusable Drugs," sponsored by the Florida Medical Association and the University of South Florida, or a Board-approved equivalent, within one year of the filing of the final order in this case.
Effective upon the filing of the final order in this case, Respondent's license shall be placed on PROBATION for a period of two (2) years, subject to the following terms and conditions:
Respondent shall comply with all state and federal statutes, rules, and regulations pertaining to the practice of medicine, including Chapters 455, 458, 893, Florida Statutes, and Rule Chapter 61F6, Florida Administrative Code.
Respondent shall appear before the Board's Probationer's Committee at the first meeting after said probation commences, at the last meeting of the Board's Probationer's Committee preceding termination of probation, annually, and at such other times as requested by the Board's Probationer's Committee. Respondent shall be noticed by Board staff of the date, time and place of the meeting whereat Respondent's appearance is required. Failure of the Respondent to appear as requested or directed shall be considered a violation of the terms of the Final Order entered in this matter, and shall subject the Respondent to disciplinary action.
In the event the Respondent leaves the State of Florida for a period of thirty days or more or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondent's probation (and only those provisions of said probation) shall be tolled as enumerated below and shall remain in a tolled status until Respondent returns to active practice in the State of Florida. Respondent must keep current residence and business addresses on file with the Board. Respondent shall notify the Board within ten (10) days of any changes of said addresses. Furthermore, Respondent shall notify the Board within ten (10) days in the event that Respondent leaves the active practice of medicine in Florida.
In the event that Respondent leaves the active practice of medicine in this state for a period of thirty days or more, the following provisions of his probation shall be tolled:
The time period of probation shall be tolled.
The provisions regarding indirect monitoring by another physician, included below.
The provisions regarding preparation of investigative reports detailing compliance with this Stipulation.
In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Board's Probationer's Committee may require Respondent to appear before the Probationer's Committee and demonstrate his ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.
Respondent shall not practice except under the indirect supervision of a physician fully licensed under Chapter 458 who has been approved by the Board or its Probationer's Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring physician set forth in paragraph 8 below, Respondent shall cease practice and not practice until the Board's Probationer's Committee approves a monitoring physician. Respondent shall have the monitoring physician with him at his first probation appearance before the Board's Probationer's Committee. A failure of the Respondent or his monitoring physician to appear at the scheduled probation meeting shall constitute a violation of the Board's Final Order. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee shall constitute a violation of this Order. Prior to approval of the monitoring physician by the Board's Probationer's Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the monitoring physician by the Board's Probationer's Committee, Respondent shall submit to the Board's Probationer's Committee a current curriculum vitae and description of the current practice from the proposed monitoring physician. Said materials shall be received in the Board office no later than fourteen days before the Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of a monitoring physician shall include:
Submit quarterly reports, in affidavit form, which shall include:
Brief statement of why physician is on probation.
Description of probationer's practice.
Brief statement of probationer's compliance with term of
probation.
Brief description of probationer's relationship with
monitoring physician.
Detail any problems which may have arisen with probationer. Respondent shall be responsible for ensuring that the monitoring physician submits the required reports.
Be available for consultation with Respondent whenever necessary, at a frequency of at least once per month.
Review 25 percent of Respondent's patient records selected on a random basis at least once every month. In order to comply with this responsibility of random review, the monitoring physician shall go to Respondent's office once every month. At that time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician.
Report to the Board any violations by the probationer of Chapter 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.
The Board shall confer authority on the Chairman of the Board's Probationer's Committee to temporarily approve Respondent's monitoring physician. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Board's Probationer's Committee the name and curriculum vitae of the proposed monitoring physician. This information shall be furnished to the Chairman of the Board's Probationer's Committee by way of the Board of Medicine's executive director, within 48 hours after Respondent receives the Final Order in this matter. This information may be faxed to the Board of Medicine at (904) 487-2622, or may be sent by overnight mail or hand delivery to the Board of Medicine at the Department of Professional Regulation, 1940 North Monroe Street, Suite 60, Tallahassee, Florida 32399-0750. In order to provide time for Respondent's proposed monitoring physician to be approved or disapproved by the Chairman of the Board's Probationer's Committee, Respondent shall be allowed to practice medicine while approval is being sought, but only for a period of five working days after Respondent receives the Final Order. If Respondent's monitoring physician has not been approved during that time frame, then Respondent shall cease practicing until such time as the monitoring physician is temporarily approved. In the event that the proposed monitoring physician is not approved, then Respondent shall cease practicing immediately. Should Respondent's monitoring physician be approved, said approval shall only remain in effect until the next meeting of the Board's Probationer's Committee. Absent said approval, Respondent shall not practice medicine until a monitoring physician is approved.
In view of the need for ongoing and continuous monitoring, Respondent shall also submit the curriculum vitae and name of an alternate monitoring physician to be approved by the Board or its Probationer's Committee. Such physician shall be licensed pursuant to Chapter 458, Florida Statutes, and shall have the same duties and responsibilities as specified for Respondent's monitoring physician during those periods of time which Respondent's monitoring physician is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring physician, Respondent shall so advise the Board's Probationer's Committee in writing. Respondent shall further advise the Board's Probationer's Committee in writing of the period of time during which Respondent shall practice under the supervision of the alternate monitoring physician. Respondent shall not practice unless he is under the supervision of either the approved monitoring physician or the approved alternate.
Respondent shall submit quarterly reports in affidavit form, the contents of which shall be specified by the Board. The reports shall include:
Brief statement of why physician is on probation.
Practice location.
Describe current practice (type and composition)
Brief statement of compliance, with probationary terms.
Describe relationship with monitoring physician.
Advise Board of any problems.
PROVISIONS GOVERNING PHYSICIANS PRACTICING UNDER SUPERVISION OF ANOTHER PHYSICIAN
DEFINITIONS:
INDIRECT SUPERVISION is supervision by a monitoring physician whose responsibilities are set by the Board. Indirect supervision does not require that the monitor practice on the same premises as the Respondent. However, the monitor shall practice within a reasonable geographic proximity to Respondent, which shall be within 20 miles unless otherwise provided by the Board's Probationer's Committee, and shall be readily available for consultation. The monitor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Board's Probationer's Committee.
DIRECT SUPERVISION is supervision by a supervising physician. Direct supervision requires that the supervisor and Respondent work on the same premises. Specific responsibilities are set by the Board. The supervisor shall be board-certified in the same specialty area in which Respondent practices, unless otherwise ordered by the Probationer's Committee.
Provisions governing all supervised or monitored physicians:
The supervisor/monitor shall be furnished with copies of the Administrative Complaint, Final Order, Stipulation (if applicable), and other relevant orders.
The Respondent shall not practice without a monitoring or supervising physician unless otherwise ordered by the Board. The Respondent shall appear at the next meeting of the Board's Probationer's Committee following entry of a Final Order with his proposed supervisor or monitor unless otherwise ordered by the Board. In the event that Respondent has not obtained temporary approval of his monitor or supervisor by the Chairman of the Board's Probationer's Committee prior to that first meeting of thee Board's Probationer's Committee, then Respondent may not practice medicine until he has obtained such approval. Temporary approval is only available if provided for in the Final Order.
After the next meeting of the Board's Probationer's Committee occurs Respondent shall only practice under the supervision of the supervisor or monitor. If for any reason the approved supervisor or monitor is unwilling or unable to serve, Respondent shall immediately notify the Executive Director of the Board and shall cease practice until a temporary supervisor/monitor is approved. The chairman of the Board's Probationer's Committee may approve a
temporary supervisor or monitor who may serve in that capacity until the next meeting of the Board's Probationer's Committee at which time the Board's Probationer's Committee shall accept or reject a new proposed supervisor or monitor. If the new proposed supervisor/monitor is rejected, Respondent shall cease practice until a new supervisor or monitor is temporarily approved by the Chairman of the Board's Probationer's Committee. Furthermore, the monitoring or supervising physician shall appear at the next meeting of the Board's Probationer's Committee, and at such other times as are requested by the Board's Probationer's Committee. Failure to appear by the monitor or supervisor as directed shall constituted a violation of the Board's Final Order.
The supervisor or monitor must be a licensee under Chapter 458, Florida Statutes, in good standing without restriction or limitation on his license. In addition, the Board's Probationer's Committee may reject any proposed supervisor or monitor on the basis that he has previously been subject to any disciplinary action against his medical license in this or any other jurisdiction. The supervisor or monitor must be actively engaged in the same or similar specialty area unless otherwise provided by the Board's Probationer's Committee. The Board's Probationer's Committee may also reject the proposed supervisor/monitor for good cause shown.
This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.
NOTICE
The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.
DONE and ORDERED this 25th DAY OF August, 1994.
Board of Medicine
EDWARD A. DAUER, M.D. CHAIRMAN
ENDNOTE
1/ Effective July 01, 1994, the Board of Medicine was transferred to from the Department of Business and Professional Regulation to the Agency for Health Care Administration pursuant to Section 20.42, Florida Statutes.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to Asher A.S. Padeh, M.D., 9489 Harding Avenue, Surfside, Florida 33154 and 3450 East Fletcher Avenue, Tampa, Florida 33613, and Richard Kozek, Law Offices of Harold Braxton, Esquire, Suite 400, One Datron Center, 9100 South Dadeland Blvd., Miami, Florida 33156-7815, Michael M. Parrish, Esquire, Hearing Officer, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 30th day of August, 1994.
Marm Harris, Ed.D. Executive Director
| Issue Date | Proceedings |
|---|---|
| Nov. 16, 1994 | BY ORDER OF THE COURT (Appeal dismissed by Appellant) filed. |
| Aug. 31, 1994 | Final Order filed. |
| Jun. 28, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 3-4-94. |
| Apr. 18, 1994 | Respondent`s Proposed Recommended Order filed. |
| Apr. 14, 1994 | Petitioner`s Proposed Recommended Order filed. |
| Apr. 08, 1994 | Order sent out. (Parties are allowed until 4/25/94 to serve proposed recommended orders) |
| Mar. 24, 1994 | Transcript filed. |
| Mar. 04, 1994 | CASE STATUS: Hearing Held. |
| Mar. 02, 1994 | Petitioner`s Motion to Compel Testimony or, Inc the Alternative, to Limit Respondent`s Testimony w/CC Deposition of Asher S. A Padeh,M.D. filed. |
| Feb. 23, 1994 | (Petitioner) Notice of Telephonic Hearing on Petitioner`s Motion to Compel filed. |
| Feb. 22, 1994 | Order sent out. (Petitioner`s Motion to compel discovery denied) |
| Feb. 21, 1994 | (Respondent) Notice of Taking Deposition filed. |
| Feb. 21, 1994 | (Respondent) Notice of Taking Deposition filed. |
| Feb. 17, 1994 | Respondent`s Motion in Opposition to Compel Discovery or, In the Alternative, to Limit Respondent`s Testimony filed. |
| Feb. 16, 1994 | (Petitioner) Motion to Take Official Recognition filed. |
| Feb. 09, 1994 | Petitioner`s Motion to Compel Discovery or, in the Alternative, to Limit Respondent`s Testimony filed. |
| Feb. 03, 1994 | Petitioner`s Response to Respondent`s Request for Production filed. |
| Jan. 31, 1994 | Respondent`s Second Request for Production filed. |
| Jan. 03, 1994 | Petitioner`s First Request for Admissions filed. |
| Jan. 03, 1994 | Notice of Furnishing Answers to Petitioner`s Interrogatories to Respondent; Response to Request to Produce filed. |
| Dec. 08, 1993 | Order sent out. (Re: Motion to amend Granted) |
| Dec. 08, 1993 | Second Notice of Hearing sent out. (hearing set for 3/4/94; 9:00am; Miami) |
| Nov. 30, 1993 | (Petitioner) Notice of Appearance Substitute Counsel filed. |
| Nov. 30, 1993 | (Petitioner) Motion to Set Hearing filed. |
| Oct. 28, 1993 | (Petitioner) Motion to Amend Administrative Complaint w/Amended Administrative Complaint filed. |
| Sep. 28, 1993 | Order Granting Continuance and Placing Case in Abeyance sent out. (Parties to file status report by 11/30/93) |
| Sep. 27, 1993 | Joint Motion for Continuance filed. |
| Jun. 30, 1993 | (Petitioners) Status Report filed. |
| Jun. 28, 1993 | Notice of Hearing sent out. (hearing set for 10/7/93; 9:00am; Miami) |
| Jun. 28, 1993 | Order Restoring Case to Active Status sent out. |
| Jun. 24, 1993 | Petitioner`s Second Set of Interrogatories; Supplemental Answer to Respondent`s First Set of Interrogatories Dated February 23, 1993 filed. |
| Jun. 24, 1993 | (Petitioner) Status Report and Request to Set Formal Hearing filed. |
| Jun. 16, 1993 | (Petitioner) Notice of Absence filed. |
| May 13, 1993 | Order of Abeyance sent out. (Parties to file status report within 60 days from the date of this order) |
| May 07, 1993 | Joint Motion to Abate DOAH Proceeding filed. |
| Mar. 15, 1993 | (Petitioner) Notice of Absence filed. |
| Mar. 08, 1993 | Petitioner`s First Set of Expert Interrogatories; Petitioner`s First Request for Admissions; Petitioner`s Request to Produce filed. |
| Feb. 25, 1993 | (Respondent) Notice of Service of Interrogatories; Respondent`s First Request for Production filed. |
| Feb. 19, 1993 | Notice of Hearing sent out. (hearing set for 5-20-93; 9:00am; Miami) |
| Jan. 28, 1993 | Joint Response to Notice of Assignment and Order filed. |
| Jan. 15, 1993 | Initial Order issued. |
| Jan. 12, 1993 | Agency referral letter; Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 25, 1994 | Agency Final Order | |
| Jun. 28, 1994 | Recommended Order | Physician prescribing drugs to person who is not a patient is guilty of violating 458.331(1)(q). Evidence insufficient to prove other charges. |
