STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93

) JERI-LIN FURLOW BURTON, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 21, 1995, in Melbourne, Florida.

APPEARANCES

For Petitioner: Monica L. Felder, Esquire

Agency For Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Lane W. Vaughn, Esquire

2013 South Melbourne Court Post Office Box 370

Melbourne, Florida 32902-0370 STATEMENT OF THE ISSUES

The issues for determination are whether Respondent violated Section 458.331(1)(m), Florida Statutes, 1/ by failing to maintain adequate medical records; and, if so, what disciplinary action should be taken against Respondent's license.

PRELIMINARY STATEMENT

Petitioner filed a Corrected Second Administrative Complaint against Respondent on July 29, 1994. Respondent timely requested a formal hearing.

At the formal hearing, Petitioner submitted the deposition testimony of one expert and four other exhibits for admission in evidence. Respondent testified in her own behalf and submitted no exhibits for admission in evidence.

The identity of the exhibits and rulings concerning each are reported in the transcript of the formal hearing filed with the undersigned on March 15, 1995. Petitioner timely filed its proposed recommended order ("PRO") on March 27, 1995. Proposed findings of fact in Petitioner's PRO are accepted in this Recommended Order.

Respondent did not file a PRO. On or about April 3, 1995, Counsel for Respondent telephoned the undersigned and left a message requesting an extension of time in which to file Respondent's PRO. The undersigned returned counsel's telephone call and left a message that any request for extension would have to be made in writing and served on opposing counsel. As of the date of this Recommended Order, counsel for Respondent has not filed a written request for extension of time in which to file a PRO for Respondent.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to practice medicine and for regulating such

   licensees on behalf of the state. Respondent practices general medicine under license number ME 0042559.

   
   

2. The parties stipulated to all material facts alleged in the Corrected Second Amended Administrative Complaint except one. The disputed fact is whether Respondent maintained adequate medical records of her treatment of patient R.W. with Lortab.

   
   

3. Lortab is a legend drug within the meaning of Section 465.003(7). It contains hydrocodone. Hydrocodone is a Schedule III controlled substance in Chapter 893.

   
   

4. On April 7, 1989, Respondent signed a prescription for 30 Lortab 7.5 mg tablets as an analgesic medication for a toothache. Respondent's medical records contain no entry for R.W.'s office visit on April 7, 1989, and no entries disclosing the nature of R.W.'s complaint, diagnosis, plan of treatment, or justification for prescribing Lortab.

   
   

5. On January 5, 1990, Respondent prescribed Indocin 7.5 mg., an anti- inflammatory medication, and Lortab 7.5 mg. for R.W.'s shoulder pain. Respondent's medical records contain no entries documenting the examination of R.W., exam results, or diagnosis.

   
   

6. There is no justification in Respondent's medical records for prescribing Lortab for R.W. on January 5, 1990. In addition, Respondent failed to document the number of Lortab tablets prescribed for R.W. on January 5, 1990.

   
   

7. On January 26, 1990, R.W. complained of pain in his right shoulder secondary to an injury sustained while pushing a

   car. Respondent again prescribed Lortab 7.5 mg. Respondent did not document in her medical records the number of Lortab tablets prescribed.

   
   

8. On February 25, 1990, R.W. advised Respondent that he had reinjured his shoulder in a fight. Respondent instructed R.W. to wear a sling and rest. Respondent again prescribed Indocin and Lortab 7.5 mg.

   
   

9. On May 4, 1990, R.W. again complained of shoulder pain. Respondent performed an x-ray of R.W.'s shoulder. Respondent's medical records do not document that the x-ray was taken or the results of the x-ray.

   
   

10. On May 4, 1990, Respondent diagnosed R.W. with possible rotator cuff tear. Respondent prescribed Indocin and Lortab 7.5 mg. Respondent's medical records do not document the number of Lortab tablets prescribed.

11. Respondent did not know the number of Lortab tablets R.W. received or the number he took each day. Respondent's medical records do not document Respondent's instructions concerning the number of tablets to be taken each day or the frequency with which the tablets were to be taken. Respondent's medical records do not document the number of refills R.W. was given.

    
    

12. On May 24, 1990, Respondent's medical records document that she warned

    R.W. of the potential for addiction to Lortab. However, Respondent continued to prescribe Lortab without documenting the amount of Lortab prescribed for R.W.

    
    

13. Respondent failed to keep written medical records justifying the course of treatment for R.W., including patient history, examination results, and records of drugs prescribed. Respondent failed to document patient history on April 7, 1989. Respondent failed to document x-ray examination results on May 4, 1990. Respondent failed to document Lortab prescribed, dispensed, or administered from April 7, 1989, through July, 1990.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

    
    

15. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

16. Respondent failed to keep written medical records justifying the course of treatment for R.W. within the meaning of Section 458.331(1)(m). Respondent failed to document R.W.'s patient history on April 7, 1989. Respondent failed to document her examination results and the x-ray examination performed on R.W. on May 4, 1990. Respondent failed to document Lortab prescribed, dispensed, or administered from April 7, 1989, through July, 1990.

    
    

17. Section 458.331(2) authorizes the Board of Medicine to revoke, suspend, or otherwise discipline Respondent's license for committing acts in violation of Section 458.331(1)(m). Disciplinary guidelines in Florida Administrative Code Rule 59R- 8.001 range from a reprimand to revocation of Respondent's license.

    
    

18. As Petitioner acknowledges in its PRO, the facts and circumstances in this proceeding do not warrant suspension or revocation of Respondent's license. Petitioner presented no evidence that Respondent has a prior disciplinary history or that a member of the public was harmed.

    
    

19. However, the failure to maintain adequate medical records concerning controlled substances is a significant violation because of its potential for harm to the public. Therefore, Respondent's license to practice medicine should be reprimanded, and Petitioner should impose an administrative fine of $3,000.

    
    

20. Respondent has indicated through her practice and through her testimony that she lacks sufficient understanding of the appropriate use of controlled substances. Respondent needs supervision and monitoring.

    
    

21. Respondent's license to practice medicine should be placed on probation for one year. During the term of the probation, Respondent should be indirectly monitored. The monitor should review 25 percent of Respondent's active patient

    files each month and all patient files in which Respondent prescribes a controlled substance.

    
    

22. Respondent should use triplicate prescriptions for all controlled substances. One copy should be provided to the probation monitor, one copy to the investigator, and one copy should be placed in the patient file.

    
    

23. Respondent should complete 12 hours of continuing medical education in risk management and general practice. In addition, Respondent should complete the course entitled "Quality Medical Record Keeping For Health Care Professionals."

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty

of violating Section 458.331(1)(m), reprimanding Respondent, imposing a fine of

$3,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed herein.

RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488

Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1995.

ENDNOTES

1/ All section references are to Florida Statutes (1993) unless otherwise stated.

COPIES FURNISHED:

Dr. Marm Harris, Executive Director Board of Medicine

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Jerome Hoffman, Esquire General Counsel

Agency For Health Care Administration The Atrium, Suite 301

325 John Knox Road Tallahassee, FL 32303

Monica L. Felder, Esquire

Agency For Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Lane W. Vaughn, Esquire 2013 S. Melbourne Court Post Office Box 370

Melbourne, Florida 32902-0370

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions

to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-003096

Orders for Case No: 93-003096