STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL REGULATION, ) BOARD OF OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1553

)

BENJAMIN D. GOLDBERG, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 8, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Francesca Plendl, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750 For Respondent: No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint filed September 9, 1992, the Petitioner alleges that the Respondent wrote prescriptions for Demerol for patients and having the scripts filled for his own use. The Respondent disputed the allegations and requested a hearing. The request was forwarded to DOAH and scheduled for hearing.

At the hearing, Petitioner presented the testimony of two witnesses and offered exhibits 1-12 which were admitted into evidence. The Respondent made no appearance at the hearing.

A hearing transcript was filed. The Petitioner filed a proposed recommended order which has been duly considered in the preparation of this Order. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.

Pursuant to Rule 1.370, Florida Rule of Civil Procedure, the Petitioner, on June 4, 1993, filed a Motion to Deem Admitted the Request for Admissions previously filed with the Respondent. Under the provisions of Rule 60Q- 2.016(1), Florida Administrative Code, insufficient time remained prior to the hearing to permit a ruling on the motion. Time for response to the motion has now passed without contact from the Respondent. Based on the motion and being otherwise fully advised in the premises, the motion is hereby granted.

FINDINGS OF FACT

1. Petitioner is the state agency charged by statute with regulating the practice of osteopathic medicine in the State of Florida pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes.

   
   

2. The Respondent is and at all times material to this case was a licensed physician in the State of Florida, license #OS 0004352, last known address identified as 1232 S.W. 8th Place, Cape Coral, Florida 33991. From 1985 until 1992, the Respondent had a private general medical practice in Fort Myers.

   
   

3. In 1991, the Respondent began to exhibit signs of emotional instability.

   
   

4. In April 1991, the Department of Professional Regulation (DPR) received a report that the Respondent was attempting to locate injectible Demerol allegedly for his own use. This information was forwarded to the Physician's Recovery Network (PRN), but remained unverified.

   
   

5. The PRN is a program operated by the health care professions to assist practitioners impaired by mental illness, physical or mental disability or chemical dependence.

   
   

6. Demerol is a Schedule II Controlled Substance pursuant to Chapter 893, Florida Statutes.

   
   

7. On July 8, 1991, the DPR again received a report that the Respondent was writing inappropriate prescriptions for patients and obtaining the medication for personal use. This information was again forwarded to the Physician's Recovery Network (PRN), but remained unverified. The PRN contacted the Respondent about the allegation. The Respondent denied the report.

   
   

8. In 1992, the Respondent began to exhibit profuse sweating, involuntary muscle jerks, and inattentiveness to his work. Some patients expressed concern to office staff about the Respondent's condition.

   
   

9. In 1992, a DPR investigator visited pharmacies in the Fort Myers area. She learned that the Respondent had been contacting area pharmacies in an attempt to locate injectible Demerol. She further learned that the Respondent would arrive at a pharmacy with a Demerol prescription made out to a patient and which he would obtain supposedly on the patient's behalf. She collected a number of such prescriptions which had been filled by pharmacies.

   
   

10. Many of the prescriptions were made out for patients at Meadowbrook Manor, a nursing home at which the Respondent had patients. A review of the patient records indicated that none of the patients had been prescribed Demerol.

11. On March 27, 1992, an member of his office staff contacted the Respondent by telephone and determined him to be incoherent. She went to the Respondent's house to ascertain his condition.

    
    

12. After gaining entry to the home, she found a number of Demerol bottles in an open dresser drawer, at least one of which was empty. She also discovered syringes in the drawer.

    
    

13. The Respondent's eye was blackened. Blood was visible about the bathroom in the house. The staff member determined that although the Respondent had fallen during the night, he was reluctant to seek medical attention.

    
    

14. Several hours after the staff member had arrived at the Respondent's house, he was incoherent. She called for an ambulance.

    
    

15. The Respondent was subsequently transported to the hospital. Examination of the Respondent clearly indicated that he had suffered a head injury.

    
    

16. While in the hospital, the Respondent was examined by a board certified psychiatrist. According to the psychiatrist, the Respondent exhibited substantially impaired memory, was very guarded with his communication and, notwithstanding the injury, indicated his intent to leave the hospital quickly. He was unable to recall the current month and date. He denied prior consumption of alcohol despite lab tests to the contrary. He also denied having previously been chemically dependent, although he had been involved in the intervention of said problem in 1981.

    
    

17. The psychiatrist diagnosed the Respondent as having residual organic brain syndrome as a result of his chemical intake.

    
    

18. Based on the diagnosis, the psychiatrist recommended that the Respondent begin an inpatient drug rehabilitation program. The psychiatrist also referred the Respondent's impairment to the DPR.

    
    

19. In March of 1992, the DPR alerted the PRN about the Respondent's condition. The PRN assigned a local representative to encourage the Respondent to seek treatment.

    
    

20. On March 31, 1992, the Respondent entered a treatment program at Palmview Hospital. While in the program, he admitted to having self-injected Demerol.

    
    

21. The Respondent was resistant to treatment while at Palmview Hospital. Although he acknowledged having previously received inpatient treatment at another facility, he alternately admitted and denied abusing Demerol.

    
    

22. On April 10, 1992, the Respondent discharged himself from Palmview Hospital.

    
    

23. The discharge was against the advise of the treating physician at Palmview.

    
    

24. At the time of the discharge, PRN representatives discussed the matter with the Respondent. The Respondent stated that he was leaving the inpatient treatment program and was going to being outpatient treatment from the Palmview facility.

25. The treating physician at Palmview told the PRN that the Respondent required three to four weeks of inpatient treatment. It was the opinion of the treating physician that the Respondent was not capable of safely providing medical care to patients at that time.

    
    

26. Based on the Palmview information, the PRN instructed the Respondent that he must complete inpatient treatment and that he could not practice medicine until it was decided that he could do so safely.

    
    

27. In April 13-16, 1992, the Respondent obtained a second opinion from another physician affiliated with the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach, Florida, where he was examined by a board certified addictionologist.

    
    

28. According to the Mount Sinai addictionologist, the Respondent is addicted to Demerol and requires treatment.

    
    

29. Based on the Mount Sinai information, the PRN instructed the Respondent not to practice and to seek immediate treatment for his addiction.

    
    

30. On April 22, 1992, the Respondent reentered Palmview Hospital.

    
    

31. Upon reentry, the Respondent denied using Demerol, but eventually acknowledged using the drug and being chemically dependent.

    
    

32. It was determined during the second Palmview admission, that the Respondent was in need of approximately four months in a long term inpatient care treatment facility.

    
    

33. On May 22, 1992, the Respondent was admitted to the Talbott-Marsh recovery program. He was diagnosed as having a personality disorder with antisocial, paranoid and narcissistic traits, and to being opiate dependent,

    
    

34. On August 3, 1992, the Respondent left the Talbott-Marsh center without completing the program.

    
    

35. The records and reports of the Respondent's condition were reviewed by Dr. Roger Goetz, M.D., the director of the PRN. Dr. Goetz, who also has personal knowledge of the Respondent's condition, is certified by the American Association of Addiction Medicine and has extensive experience as a medical doctor and in treating impaired physicians.

    
    

36. Dr. Goetz asserted that the Respondent is suffering from a dangerous condition, that he is mentally ill and that he poses a threat to himself and to the public.

    
    

37. Dr. Goetz opined that the Respondent is unable to practice medicine with reasonable skill and safety to patients and that his continued practice constitutes an immediate and serious danger to the public health, safety and welfare.

    
    

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

39. Petitioner has responsibility for disciplinary action taken against licensed physicians. The burden of proof is on the Petitioner to establish the truthfulness of the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). In this case, the burden has been met.

    
    

40. The Board of Osteopathic Medicine is authorized to revoke, suspend or otherwise discipline the license of a physician unable to practice osteopathic medicine with reasonable skill and safety to patients by reason of illness, use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. Sections 459.015(1)(w) and 459.015(2), Florida Statutes.

    
    

41. The clear and convincing evidence establishes that, due to the Respondent's chemical dependency, he is unable to practice osteopathic medicine with reasonable skill and safety to patients, and is therefore in violation of Section 459.015(1)(w), Florida Statutes.

    
    

42. Rule 21R-19, Florida Administrative Code, sets forth the disciplinary guidelines of the Board of Osteopathic Medicine applicable to violations of Section 459.015(1), Florida Statutes. Rule 21R-19.003, Florida Administrative Code, provides as follows:

    
    

    The range of disciplinary penalties which the Board may impose includes denial of an appli- cation, revocation, suspension, probation, reprimand, and a fine. In determining the appropriate disciplinary action to be imposed in each case, the Board shall take into con- sideration the following factors:

    
    

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of offenses;

    4. The length of time since the date of the violation;

    5. The number of previous disciplinary cases filed against the certificate holder or registrant;

    6. The length of time the certificate holder or registrant has practiced;

    7. The actual damage, physical or otherwise, to the patient;

    8. The deterrent effect of the penalty imposed;

    9. The effect of the penalty upon the certificate holder's or registrant's livelihood;

    10. Any efforts for rehabilitation;

    11. The actual knowledge of the licensee pertaining to the violation;

    12. Attempts by the licensee to correct or stop violations or refusal by the

        licensee to correct or stop violations;

    13. Related violations against the licensee in another state, including findings of guilt or innocence, penalties imposed and penalties served;

    14. The actual negligence of the licensee pertaining to any violations;

    15. The penalties imposed for related offenses;

    16. The pecuniary gain to the licensee;

    17. Any other mitigating or aggravating circumstances.

        
        

43. In this case, the offense is severe and presents a danger to the public. The chemical dependency resulting in the Respondent's inability to practice has been and apparently continues to be repeated. He has failed to successfully complete the course of therapy prescribed by treating physicians.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Professional Regulation, Board of Medicine, enter a Final Order determining that Benjamin D. Goldberg, D.O., has violated Section 459.015(1)(w), Florida Statutes, and revoking his license (#OS 0004352) to practice as a physician in the State of Florida.

DONE and RECOMMENDED this 13th day of August, 1993, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1553

The Respondent did not file a proposed recommended order. To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the Petitioner.

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

22, 37. Rejected, unnecessary.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 32399-0792

Francesca Plendl, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Benjamin Goldberg, D.O. 1232 South West 8th Place Cape Coral, Florida 33991

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 ten 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.

================================================================= MOTION FOR CORRECTION OF RECOMMENDED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs. DOAH CASE NO. 93-1553

DPR CASE NO. 92-05353

BENJAMIN D. GOLDBERG, D.O.

Respondent.

/

MOTION FOR CORRECTION OF RECOMMENDED ORDER

COMES NOW Petitioner by and through undersigned counsel, and moves this Honorable Hearing Officer to issue a corrected Recommended Order changing the title "Board of Medicine" to "Board of Osteopathic Medicine" on page ten (10) of the Recommended Order as submitted by the Honorable Hearing Officer.

WHEREFORE, Petitioner respectfully requests that this Honorable Hearing Officer enter a corrected Recommended Order or such other order as he deems appropriate.

Respectfully submitted,

Francesca Plendl Senior Attorney Fla. Bar No. 765996

Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

(904) 488-0062

CERTIFICATION OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Petitioner's Motion for Correction of Recommended Order has been furnished by U.S. mail this 20th day of September 1993, to Benjamin D. Goldberg, D.O., 13281 McGregor Boulevard, Ft. Myers, Florida 33919.

FP:gn (Distribution)

Original and copy to DOAH

Francesca Plendl Senior Attorney

Copy to person listed in Certificate of Service Copy to file

Copy to reading file.

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

ORDER OF CORRECTION

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF OSTEOPATHIC ) MEDICINE, )

)

Petitioner, )

) CASE NO. 93-1553

vs. )

)

BENJAMIN D. GOLDBERG, D.O., )

)

Respondent. )

)

ORDER OF CORRECTION

On September 20, 1993, the Petitioner moved for correction of a typographical error contained on page ten of the Recommended Order entered in this case. Good cause being shown, it is hereby

ORDERED that:

The reference to the "Board of Medicine" set forth on page ten of the Recommended Order entered in this case is corrected to read "Board of Osteopathic Medicine."

DONE and ORDERED this 24th day of September 1993, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The Desot Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 24th day of September 1986.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 32399-0792

Francesca Plendl, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

Benjamin Goldberg, D.O. 1232 S.W. 8th Place

Cape Coral, Florida 33991

Docket for Case No: 93-001553

Orders for Case No: 93-001553