STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD ) OF MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 93-3972
)
RAUL FROILAN NODAL, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on August 6, 1993 at Tampa, Florida.
APPEARANCES
For Petitioner: Michael K. Blazicek, Esquire
9325 Bay Plaza Boulevard, Suite 210
Tampa, Florida 33619
For Respondent: Grover C. Freeman, Esquire
201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602
STATEMENT OF THE ISSUES
Whether Respondent can practice medicine with reasonable skill and safety to his patients.
PRELIMINARY STATEMENT
By order of emergency suspension of license dated May 24, 1993, the Department of Professional Regulation, Petitioner summarily suspended the Florida license of Raul F. Nodal, Respondent, as a medical doctor. As grounds therefore it is alleged that Respondent is unable to practice medicine with reasonable skill and safety to his patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any type of material or as a result of a medical or physical condition. These charges are contained in an administrative complaint filed June 7, 1993.
By Request for Expedited Formal Hearing dated July 21, 1993 Respondent requested an expedited hearing to challenge the allegations in the Emergency Suspension Order and the Administrative Complaint and these proceedings followed.
At the hearing Petitioner called five witnesses, Respondent submitted the late filed deposition of Dennis Brightwell, M.D., called four additional witnesses, including himself, and 13 exhibits were admitted into evidence.
Exhibit 13 is the deposition of Dr. Brightwell. Exhibit 9, 10 and 11 are the depositions of Dr. Edward A'Zary, Dr. Lena Kupferman, and Dr. Roger A. Goetz respectively. Ruling on Respondent's objections to parts of Exhibits 9 and 10, the depositions of A'Zary and Kupferman, was reserved at the hearing. These objections are now overruled.
Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is contained in the Appendix attached hereto. Having fully considered all evidence presented, I make the following.
FINDINGS OF FACT
At all times relevant hereto Raul F. Nodal, Respondent, was licensed by the Florida Board of Medicine as a medical doctor. Dr. Nodal is a board certified neurologist.
The Department of Business and Professional Regulation is a state agency charged with enforcing provisions of Chapter 458, Florida Statutes.
The history of Respondent's problem with chemicals is noted in Exhibit 4, the medical records of Respondent which was admitted into evidence. However, those records were not properly authenticated and are admissible only as hearsay evidence which corroborates other admissible evidence.
Respondent acknowledged that the stress of his brother's apparent murder in 1985 created stresses which he relieved with sedatives and that he developed a dependency on those tranquilizers which progressed to the point where he felt his use was out of control. In the summer of 1990 Respondent found himself taking more and more tranquilizers just to stay calm enough to conduct his practice.
A friend referred Respondent to Dr. Krone of the Physician's Recovery Network (PRN) in Tampa, Florida.
The PRN is a non-profit association under contract with the Department of Business and Professional Regulation to monitor the progress of Florida physicians admitted to the impaired physicians program for treatment for alcohol or drug dependency and to act as agent for the Department and liaison between the practitioner and the treatment providers.
Dr. Krone referred Respondent to the treatment program at South Miami Hospital where Respondent entered and completed the 28 day residence program.
Upon completion of the inpatient treatment on 10/18/90 Respondent entered into the first of three Advocacy Contracts in which he agreed, inter alia, to abstain from further use of medications, alcohol or other mood altering substances including over the counter medications unless ordered by his primary care physician; to participate in a random urine drug or blood screen program through PRN; to attend various self-help programs; to provide release forms for urine screen results, treatment center records, therapist reports and other written and verbal information (to comply and in compliance) with the above request; and to withdraw from practice for evaluation at the request of the PRN if any problem develops.
Upon his release from South Miami Hospital Respondent was given the name of a doctor as his contact person in Tampa. Because his contact turned out to be a colleague with whom Respondent had worked, Respondent did not feel comfortable sharing his problem with this doctor. Accordingly, he did not do any follow-up care at that point except some meetings he attended on his own.
In April, 1991 a friend of Respondent who was being cared for by Respondent in an emergency situation died within hours of a brain hemorrhage. Respondent resumed taking tranquilizers to relieve his stress and a random urine sample taken 5/23/91 tested positive for barbituates.
Respondent was then referred to Glenbeigh Hospital in Tampa for an evaluation. He was admitted on 6/03/91 and discharged 6/12/91. Respondent testified he stayed at Glenbeigh close to two weeks.
Upon discharge from Glenbeigh he entered an after care program with an addiction counselor in a one on one situation. After a few months his funds ran out and Respondent stopped the program. He continued sporadic attendance at after care groups such as AA and NA.
On July 18, 1991 Respondent signed another Advocacy Contract with PRN similar, if not identical, to the contract signed 10/18/90.
As the result of a random urine sample which tested positive for barbituates Respondent was requested to enter a long term treatment program. He was admitted at Talbott-March Recovery Program (TMP) in Atlanta, Georgia on December 9, 1991 for evaluation. At TMP Respondent received neuropsychological testing and it was recommended he enter a long range rehabilitation program for three to six months. Respondent testified he could not afford the recommended treatment and he was discharged and returned to Tampa where he was supervised by Dr. David Myers at Health Care Connections.
Although Respondent denies taking any drugs other than those noted in findings 9-14 above at any time, competent evidence was presented that a urine sample taken April 1, 1992 tested positively for methaphetamine; on November 3, 1992 a sample tested positive for barbituates; and on March 22, 1993 a sample tested positive for amphetamines and barbituates.
Respondent's denial of having used tranquilizers since 1991 despite the positive samples noted in the above finding and of his persistance in disclaiming any present dependency clearly indicates Respondent is in the denial stage of addiction and is failing to face the fact that he has a serious problem.
Upon receipt of these 1992-1993 results PRN found Respondent to be not in compliance with the Advocacy Contracts he had signed; and Dr. Roger A. Goetz, Director of the PRN, submitted a complaint to the Department of Professional Regulation alleging that Respondent was unable to practice medicine with a reasonable degree of safety to his patients by reason of his impairment due to chemical dependency. This complaint is predicated on Respondent's failure to comply with the provisions of his Advocacy Contract.
Urine samples referred to above were taken and tested in accordance with standard procedures established to insure the integrity of the sample and of the test results. Those reports accurately reflect the presence of illicit drugs found in urine samples provided by and from Respondent.
Petitioner's expert witness, Dr. Michael Sheehan, M.D. is board certified in psychiatry and specializes in addiction psychiatry. Dr. Sheehan's opinion that Respondent cannot practice medicine with a reasonable degree of safety to his patients by reason of his impairment due to chemical dependence is based upon the documents contained in Exhibit 4 which is a medical record of Respondent maintained by the PRN from his entry into the impaired physician's program in 1990 until the complaint was submitted by the PRN to the Department. Although Exhibit 4 purports to be the business records of PRN they were not authenticated as such at the hearing. Numerous documents in Exhibit 4, particularly the drug screens, were admitted into evidence by virtue of witnesses testifying to their authenticity. Other documents in Exhibit 4 were corroborated by Respondent's testimony. Thus, those parts of Exhibit 4 which were admitted by other means are sufficient to support the opinion of Dr. Sheehan that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of his chemical dependence; and Dr. Sheehan's opinion that Respondent is in denial of his addiction.
Respondent's expert witness, Christie Roberts, holds a Ph.D. in counseling psychology and specializes in addiction therapy. Dr. Roberts administered the Minnesota multifacet personality inventory (MMPI) to Respondent. All of the ten clinical scores assigned to Respondent from the test were in the normal range. On the McAndrews scale, an important scale in determining addiction, Respondent's score was below the established cutoff score indicating addition. Above this cutoff Dr. Roberts usually finds addiction. However, when the McAndrews is below the cutoff, Dr. Roberts acknowledged the possibility that the person tested could have an addiction problem.
Petitioner's second expert witness Dennis Brightwell, M.D. has been board certified in psychiatry since 1976 and has treated literally thousands of substance abusers, principally alcoholics.
Dr. Brightwell interviewed Respondent for one hour and fifteen minutes and considered the MMPI performed by Dr. Roberts. Dr. Brightwell did not review the medical records of Respondent or administer any other test to Respondent, but based his opinion on the interview and the MMPI. Dr. Brightwell opined Respondent could practice medicine with reasonable skill and safety to patients and did not currently present that he was substance dependent.
Based upon the information provided by Respondent Dr. Brightwell further opined that "given the fact that in 1990 he was using it on a regular basis, there is a risk that he could resume that. And I think the appropriate approach to insure that that doesn't happen would be very tight behavioral control to make sure it isn't occurring. Assuming that he is not so sick from substance abuse that he can't make the decision to not use, all he would need is very close monitoring to give him the opportunity, really, to make the decision on a regular basis not to use."
Respondent's front office employee who had worked 1 1/2 years for Respondent observed no abnormalities in Respondent's conduct during the time she worked for him. She never saw him self-medicate or appear under the influence of drugs or alcohol.
Two medical doctors who have known Respondent both professionally and socially for several years and who testified in these proceedings have never observed Respondent under the influence of drugs or alcohol and consider Respondent to be a capable neurologist. One of these doctors attends a weekly
meeting of a group, including Respondent, who study philosophy and discuss the writings of philosophers. This witness deems Respondent an intellectual member of that group.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 458.3315, Florida Statutes establishes treatment programs and procedures to be followed for impaired practitioners. This section provides for the medical board to engage a consultant to administer the program and be the liaison between the board and the impaired physician and the treatment provider. Subsection (4)(a) provides:
Whenever the consultant is notified there is reason to believe that a practitioner licensed under this chapter is impaired as a result of the misuse or abuse of alcohol or drugs, or both, or due to a mental condition, which could affect the practitioner's ability to practice his profession, and no complaint against the practitioner other than impairment exists, the reporting of such information shall not constitute a complaint within the meaning of s. 455.225 if the probable cause panel of the board under which the practitioner is licensed finds that:
The practitioner has acknowledged his impairment problem;
The practitioner has voluntarily enrolled in an appropriate, approved program;
The practitioner has voluntarily withdrawn from his practice or limited the scope of his practice as determined by the panel in each case, until such time as the panel is satisfied that he has successfully completed an approved treatment program; and
The practitioner has executed the releases for medical records, authorizing the release of all records of evaluations,
diagnoses, and treatment of the practitioner, including records of treatment for emotional or mental conditions, to the consultant. The consultant shall make no copies or reports
of records that do not regard the issue of the practitioner's impairment and his participation in a treatment program.
Chapter 21-20, Florida Administrative Code contains rules applicable to impaired practitioner's programs with the intent to provide a therapeutic alternative for those practitioners who are unable to practice with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental condition. Participation in the program may be either an alternative to or mitigation of disciplinary action. Among the currently approved impaired practitioner's programs is the Florida Medical Foundation Physicians Recovery
Network. The PRN serves as liaison between the treatment providers and the Department and assists practitioners in obtaining referral services when appropriate.
Rule 21-20.004, Florida Administrative Code establishes various requirements that must be met by the practitioner as a condition to his acceptance into the program. These include the Petitioner: (a) must agree to evaluation and/or treatment as approved by the consultant; (b) must provide all information for a completed screening form; (c) must request participation in the program and such request must be agreed to by the consultant; (d) shall execute medical release forms to allow the consultant and the impaired practitioner's program to obtain medical records from any professional, treatment provider, or physician treating or having treated or evaluated the practitioner and shall execute a limited waiver of confidentiality; and (e) shall present and agree to follow a plan of treatment appropriate to the severity of the impairment. In the case of those impaired due to chemical dependency the treatment shall include structured continuing care treatment and follow-up care.
Respondent's argument that 42 USC 290ee-3 precludes the use of Respondent's medical records and urine test results by Petitioner is without merit. Not only has Respondent waived this confidentiality each time he executed an Advocacy Contract but also once confidentiality has been waived it cannot be restored. See Tibaldo v. Brees, 212 So.2d 61 (Fla. 2d DCA 1968). Further, even under the federal confidentiality rule Congress provided an exception when the patient himself gives written consent. United States v. Hopper, 440 F. Supp. 1208 (N.D. ILL. E.D. 1977). See also H.J.M. v. BRC, 603 So.2d 1331 (Fla. 1st DCA 1992). The statute and rule both provide that the Department shall have access to these records.
In these proceedings Petitioner has the burden of proving the charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Respondent is here charged with violating Section 458.331(1)(s), Florida Statutes which provides in pertinent part that the following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken:
Being unable to practice medicine with reasonable skill and safety to patients by reason of illness, or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.
Subsection (2) provides in pertinent part:
When the board finds any person guilty of any of the grounds set forth in subsection (1) .
. . it may enter an order imposing one or more of the following penalties:
Refusal to certify....
Revocation or suspension of license.
Restriction of practice.
Imposition of an administrative fine....
Issuance of a reprimand.
Placement of the physician on probation....
Issuance of a letter of concern.
Corrective action.
Refund the fees billed to and collected from the patient.
Here we have a practitioner who has entered into the impaired physician treatment program because of his chemical dependence. As a condition to entering into this program Respondent agreed to refrain from using any drugs not prescribed by his primary care physician, to submit random urine samples for analysis, and to comply with all the requirements of the consultant. Failure of the Respondent to comply with the terms of his Advocacy Contract requires the consultant to file a complaint with the Department. When Respondent's urine samples tested positive for barbituates and amphetamines the consultant could request Respondent to enter a treatment facility. If Respondent failed to comply with this request the counsel had no choice but to file the complaint required by the statute. That is exactly what occurred here.
This leaves the question whether the evidence that Respondent entered into the impaired physician's program and spent four weeks at the South Miami Hospital in 1990, and upon release therefrom entered into this first Advocacy Contract with PRN; that subsequent thereto he dropped off the urine samples that tested positive for barbituates and amphetamines; that following these positive urine tests he was admitted to Glenbeigh Hospital in Tampa at least one time; that following additional positive urine tests he went to the Talbott-March Recovery Campus in Atlanta where he remained for about one week and departed despite the recommendation that he needed long term treatment; that upon his return to Tampa his urine again tested positive for barbituates and amphetamines; and despite these positive urine samples Respondent continues to deny that he has a problem of chemical dependence is clear and convincing evidence that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of his chemical dependency.
From the foregoing it is concluded that the Respondent is presently unable to practice medicine with reasonable skill and safety to patients by reason of his chemical dependency.
It is recommended that Respondent be found guilty of violation of Section 358.331(1)(s), Florida Statutes and that his license to practice medicine be revoked. It is further recommended that imposition of that discipline be stayed for a period of five years probation under such terms as the board may direct but to require Respondent to remain in the impaired physician's program and submit random urine samples as directed, and that, if any one of those samples tests positive for banned chemicals, the stay be vacated and the license revoked. However, if Respondent successfully completes this five years' probation, the revocation shall be vacated and Respondent's license be restored to good standing.
DONE AND ENTERED this 7th day of September, 1993, in Tallahassee, Florida.
K. N. AYERS 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 7th day of September, 1993.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3972
Proposed findings submitted by Petitioner are accepted except as noted below. Proposed findings neither noted below nor contained in the Hearing Officer's findings were deemed unnecessary to the conclusions reached.
13. Rejected. This hearsay evidence in Exhibit 4 was not corroborated by admissible evidence.
Proposed findings submitted by Respondent are accepted except as noted below. Those proposed findings neither included in the Hearing Officer's findings nor accepted below were deemed unnecessary to the conclusions reached.
4. Rejected. Respondent testified that he felt "more and more tense" for the next several weeks following the death of his friend and he "remembers taking something for sleep or something for, like a tranquilizer during the day."
11. First sentence rejected. Dr. Roberts testified that she virtually never sees a patient who has an elevated McAndrews scale who was not also addicted.
13. Accepted. But see Hearing Officer's Nos. 21 and 22.
COPIES FURNISHED:
Michael K. Blazicek, Esquire 9325 Bay Plaza Boulevard Suite 210
Tampa, Florida 33619
Grover C. Freeman, Esquire
201 East Kennedy Boulevard Suite 1950
Tampa, Florida 33602
Jack McRay, Acting General Counsel Department of Business and
Professional Regulation
1940 North Monroe Street, Suite 60
Tallahassee, Florida 32399-0792
Dorothy Faircloth, Executive Director Department of Business and
Professional Regulation Board of Medicine
1940 North Monroe Street, Suite 60
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.
=================================================================
AGENCY FINAL ORDER
=================================================================
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION BOARD OF MEDICINE
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,
Petitioner,
DBPR CASE NUMBER: 93-06725
vs DOAH CASE NUMBER: 93-3972
LICENSE NUMBER: ME 0037867
RAUL FROILAN NODAL, M.D.,
Respondent.
/
FINAL ORDER
This cause came before the Board of Medicine (Board) pursuant to Section 120.57(1)(b)10, Florida Statutes, on December 3, 1993, in Boca Raton, Florida, for the purpose of considering the Hearing Officer's Recommended Order, Respondent's Exceptions to the Recommended Order, and Petitioner's Response to Respondent's Exceptions (copies of which are attached hereto as Exhibits A, B, and C, respectively) in the above-styled cause. Petitioner, Department of Business and Professional Regulation, was represented by Larry G. McPherson, Jr., Attorney at Law. Respondent was present and represented by Grover C. Freeman, Attorney at Law.
Upon review of the Recommended Order, the argument of the parties, and after a review of the complete record in this case, the Board makes the following findings and conclusions.
FINDINGS OF FACT
Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the findings of fact.
CONCLUSIONS OF LAW
The Board has jurisdiction of this matter pursuant to Section 120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.
The conclusions of law set forth in the Recommended Order are approved and adopted and incorporated herein.
There is competent substantial evidence to support the conclusions of
law.
RULINGS ON EXCEPTIONS
Respondent filed one exception to the Recommended Findings of Fact (Exhibit
objecting to the Hearing Officer's finding in paragraph 12. The Petitioner filed a response (Exhibit C). After due consideration of the filed pleadings and the record, the Board rejected the exception stating as its reason the response filed by the Petitioner.
Respondent also made an ore tenus exception to the Recommended Conclusions of Law set forth at paragraph 30 of the Recommended Order (Exhibit A).
Respondent repeated those arguments already contained in the record. Petitioner responded. After the consideration of the parties' arguments and the record, the Board rejected the exception and adopted the reasoning of the Hearing Officer.
PENALTY
Upon a complete review of the record in this case, the Board determines that the penalty recommended by the Hearing Officer be ADOPTED with one minor change. The Board believes that the stay recommended by the Hearing Officer should be vacated if a required urine sample tests positive and that positive result is confirmed by the Physician's Recovery Network (PRN). THEREFORE,
IT IS HEREBY ORDERED AND ADJUDGED that
Respondent's license to practice medicine in the State of Florida is REVOKED. However, said revocation shall be stayed for a period of five years during which time Respondent's license shall be on PROBATION 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, and 893, Florida Statutes, and Rules 61F6, Florida Administrative Code.
Respondent shall appear before the Probation Committee at the first meeting after said probation commences, at the last meeting of the Probation Committee preceding termination of probation, quarterly, and at such other times
requested by the Committee. Respondent shall be noticed by Board staff of the date, time and place of the Board's Probation Committee 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 this Order, and shall subject the Respondent to disciplinary action.
In the event Respondent leaves the State of Florida for a period of thirty (30) days or more, or otherwise does not engage in the active practice of medicine in the State of Florida, then certain provisions of Respondents 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 the probation shall be tolled:
The time period of probation
The provisions regarding supervision whether direct or indirect by another physician, included in paragraphs
6 through 9 below
In the event that Respondent leaves the active practice of medicine for a period of one year or more, the Probation Committee may require Respondent to appear before the Probation Committee and demonstrate the ability to practice medicine with skill and safety to patients prior to resuming the practice of medicine in this State.
During the first two years of probation Respondent shall not practice except under the direct supervision of a physician fully licensed under Chapter
458 who has been approved by the Board or its Probation Committee. The supervisory physician shall share offices with Respondent. Respondent shall have the supervising physician with him at the first probation appearance before the Committee. Absent provision for and compliance with the terms regarding temporary approval of a supervising physician, as set forth below, Respondent shall cease practice and not practice until the Board or its Probation Committee approves a supervising physician. Prior to approval of the supervising physician by the Board or its Probation Committee, the Respondent shall provide to the supervising physician a copy of the Administrative Complaint and Final Order filed in this case. Prior to the approval of the supervisory physician by the Committee, Respondent shall submit to the Committee a current curriculum vitae and a description of the current practice from the proposed supervisory physician. Said materials shall be received in the Board office no later than fourteen days before Respondent's first scheduled probation appearance. A failure of Respondent or the supervising physician to appear at the scheduled Probation Committee meeting shall constitute a violation of the Board's Order. The attached definition of a supervisory physician is incorporated herein. The responsibilities of the supervisory 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 terms of probation.
Brief description of probationer's relationship with monitoring physician.
Detail any problems which may have arisen with probationer.
Review 50 percent of Respondent's patient
records on a random basis at least once every two weeks.
Respondent shall be responsible for ensuring that the supervisory physician submits the required reports.
During the last three years of probation 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 Probation Committee. Absent provision for and compliance with the terms regarding temporary approval of a monitoring physician, as provided below, Respondent shall cease practice and not practice until the Probation Committee or the Board approves a monitoring physician. Respondent shall have the monitoring physician with Respondent at the first probation appearance before the Probation Committee. Prior to approval of the monitoring physician by the Committee, the Respondent shall provide to the monitoring physician a copy of the Administrative Complaint and Final Order filed in this case. Failure of the Respondent or the monitoring physician to appear at the scheduled Probation Committee meeting shall constitute a violation of this Order. Prior to the approval of the monitoring physician by the Committee, Respondent shall submit to the Committee a current curriculum vitae and a description of the current practice from the proposed monitoring physician. Said materials shall be received by the Board office no later than fourteen days before Respondent's first scheduled probation appearance. The attached definition of a monitoring physician is incorporated herein. The responsibilities of the 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 terms 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 week.
Review 50 percent of Respondent's patient records selected on a random basis at least once every two weeks. In order to comply
with this responsibility of random review, the monitoring physician shall go to Respondent's office once every two weeks. At that
time, the monitoring physician shall be responsible for making the random selection of the records to be reviewed by the monitoring physician.
Receive and review copies of all Scheduled and controlled substance prescriptions in order to determine the appropriateness of Respondent's prescribing of controlled substances.
Report to the Board any violations by the probationer of Chapters 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto.
The Board shall confer authority on the Chairman of the Board's Probation Committee to temporarily approve Respondent's supervisory/monitoring physician. In order to obtain this temporary approval, Respondent shall submit to the Chairman of the Probation Committee the name and curriculum vitae of the proposed supervisory/monitoring physician. This information shall be furnished to the Chairman of the 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) 487-9622 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 supervisory/monitoring physician to be approved or disapproved by the Chairman of the Probation 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 Order. If Respondent's supervisory/monitoring physician has not been approved during that time frame, then Respondent shall cease practicing until such time as the supervisory/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 supervisory/monitoring physician be approved, said approval shall only remain in effect until the next meeting of the Board or the Probation Committee. Absent said approval, Respondent shall not practice medicine until a supervising physician is approved.
In view of the need for ongoing and continuous monitoring or supervision, Respondent shall also submit the curriculum vitae and name of an alternate supervisory/monitoring physician to be approved by the Board or its Probation 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/supervising physician, during those periods of time when Respondent's monitoring/supervisory physician is temporarily unable to provide supervision. Prior to practicing under the indirect supervision of the alternate monitoring physician or the direct supervision of the alternate supervisory physician, Respondent shall so advise the Board in writing. Respondent shall further advise the Board in writing of the period of time during which Respondent shall practice under the supervision of the alternate supervisory physician. Respondent shall not practice unless he is under the supervision of either the approved monitoring/supervisory 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 probation terms.
Describe relationship with monitoring/supervisory physician.
Advise Board of any problems.
During the term of probation, Respondent must complete the course offered by the University of South Florida and the Florida Medical Association entitled, "Protecting Your Medical Practice: Clinical, Legal, and Ethical Issues in Prescribing Abusable Drugs." Respondent shall submit documentation of this continuing medical education course. These hours shall be in addition to those hours required for renewal of licensure.
Respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practitioner authorized by law to prescribe or dispense controlled substances. However, the drugs shall only be consumed, injected, or ingested for a medically justifiable purpose. Furthermore, Respondent shall immediately advise the Board in writing of any controlled substances which Respondent is taking. Such written notification shall provide the name, strength, and dosage of the controlled substance, the name of the practitioner responsible for prescribing, administering, dispensing, or ordering the controlled substance, and the medical reason for which the drug is prescribed.
Respondent shall not consume alcohol.
Respondent shall participate in and comply with the Physicians' Recovery Network. Respondent shall enter into an after care contract with the Physicians' Recovery Network and shall cause the medical director of the Network to send the Board a copy of that after care contract. Respondent shall comply with all of the conditions of his after care contract with the Florida Medical Foundation's Physicians' Recovery Network. Respondent shall execute a release for the Physicians' Recovery Network to authorize the Network to release information and medical records (including psychiatric records and records relating to treatment for drug dependence and alcoholism) to the Board as needed to monitor the progress of Respondent in the Network's program.
Respondent shall cause the director of the Physicians' Recovery Network to report to the Board any problems that may occur with Respondent and any violations of Chapter 458, Florida Statutes, that occur. Respondent shall cause the director to make such a report within 30 days of the occurrence of any problems, or violations of chapter 458, Florida Statutes.
Respondent shall attend AA or NA meetings on a frequency of at least one meeting per week. Additionally, Respondent shall attend Cadeucus meetings on a frequency of not less than one meeting per week. Respondent shall document attendance of the meetings in the quarterly/semiannual reports.
Respondent shall submit to random urine testing for the purposes of ascertaining Respondent's compliance with his probation. The random urine screen shall be conducted as follows:
An investigator shall at unannounced times present himself to the Respondent and
shall request that the Respondent furnish a specimen of urine and provide it
in the presence of the investigator.
The Respondent shall, upon such request, immediately provide said urine
specimen and shall provide it in the presence of the investigator.
Respondent shall not at any time refuse to immediately provide the requested specimen.
Respondent shall, at the time that the specimen is furnished, advise the investigator of all drugs
or medications taken by the Respondent (whether legend or otherwise) in the period since the last random specimen was obtained.
Respondent may prescribe all Scheduled and controlled substances with the restrictions set forth below:
Respondent shall utilize sequentially numbered triplicate prescriptions in
the prescribing of said controlled substances.
Respondent shall, within two weeks after issuance, provide one copy of each prescription for said controlled substances to his supervising physician.
Respondent shall maintain one copy of each prescription for said controlled substances
in the patient's medical record. This copy may be a xerox copy.
During this period of probation, semi-annual investigative reports will be compiled by the Department of Professional Regulation concerning Respondent's compliance with the terms and conditions of probation and the rules and statutes regulating the practice of medicine.
Respondent shall pay all costs necessary to comply with the terms of the Order issued based on this proceeding. Such costs include, but are not limited to, the cost of preparation of investigative reports detailing compliance with the terms of this Order, the cost of analysis of any blood or urine specimens submitted pursuant to the Order entered as a result of this proceeding, and administrative costs directly associated with Respondent's probation. See Section 458.331(2), Florida Statutes.
2l. If at any time during Respondent's term of probation a required urine sample tests positive for banned chemicals and such test result is confirmed by PRN the stay shall be vacated and Respondent's license shall be revoked.
This order takes effect upon filing with the Clerk of the Department of Business and Professional Regulation.
DONE AND ORDERED this 23rd day of December, 1994.
BOARD OF MEDICINE
EDWARD A. DAUER, CHAIRMAN
NOTICE OF RIGHT TO JUDICIAL REVIEW
A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Raul Froilan Nodal, M.D., c/o Grover C. Freeman, Esquire, 201 East Kennedy Boulevard, Suite 1950, Tampa, Florida 33602, by U.S. Mail to K. N. Ayers, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, i230 Apalachee Parkway, Tallahassee, Florida 32399-1550; and by interoffice delivery to Larry G. McPherson, Jr., 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 (filed document not dated) day of (filed document not dated), 1994.
AMENDED CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order has been provided by certified mail to Raul Froilan Nodal, 1931-F Dr. Martin L. King, Jr., Tampa, Florida 33607, Grover C. Freeman, 201 E. Kennedy Blvd., #1950, Tampa, Florida 33602 and K.N. Ayers, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550, at or before 5:00 p.m., this 28th day of December, 1993.
MARM HARRIS
| Issue Date | Proceedings |
|---|---|
| Jan. 04, 1994 | Final Order filed. |
| Nov. 15, 1993 | (Respondent) Motion for Clarification and Alternative Motion to Allow Exception to Conclusion of Law; Notice of Objection to Conclusions of Law filed. |
| Sep. 27, 1993 | Exceptions to Recommended Order filed. |
| Sep. 07, 1993 | Recommended Order sent out. CASE CLOSED. Hearing held August 6, 1993. |
| Aug. 31, 1993 | (Petitioner) Proposed Recommended Order filed. |
| Aug. 31, 1993 | (Petitioner) Legal Authorities in Response to Motion in Limine filed. |
| Aug. 31, 1993 | (Respondent's) Proposed Recommended Order filed. |
| Aug. 24, 1993 | Deposition of Dr. Dennis Brightwell filed. |
| Aug. 18, 1993 | (Respondent) Notice of Taking Deposition filed. |
| Aug. 16, 1993 | Curriculum Vitae for Michael Finber Sheenan filed. (from Michael K. Blazicek) |
| Aug. 13, 1993 | Transcript (Vols 1&2) filed. |
| Aug. 06, 1993 | CASE STATUS: Hearing Held. |
| Jul. 23, 1993 | Notice of Hearing sent out. (hearing set for 8/6/93; 9:00am; Tampa) |
| Jul. 22, 1993 | Agency referral letter; (DBPR) Notice of Appearance; Administrative Complaint; Request for Expedited Formal Hearing filed. |
| May 25, 1993 | Order of Emergency Suspension of License; & Cover Letter to DOAH from B. Thomas filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 23, 1993 | Agency Final Order | |
| Sep. 07, 1993 | Recommended Order | Several positive urine samples dropped while physician is in impaired physicians program is clear and convincing evidence that physical can't safely practice medicine. |
