STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 93-5048

)

ALFRED E. FIREMAN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Clearwater, Florida on July 6, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Steven Rothenberg, Esquire

Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210

Tampa, Florida 33619

For the Respondent: Bruce D. Lamb, Esquire

Shear, Newman, Hahn and Rosenkranz, P.A.

201 East Kennedy Boulevard, Suite 1000 Post Office Box 2378

Tampa, Florida 33601-2378 STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated August 10, 1993, Larry G. McPherson, Jr., Chief Medical Attorney for the Department of Business and Professional Regulation, charged the Respondent, Alfred E. Fireman, M.D., Respondent herein, with failing to keep written medical records justifying the course of treatment he rendered to Patient 1, as alleged therein; inappropriately prescribing and dispensing a legend drug other than in the course of his practice; and practicing medicine below the appropriate standard of care; all in violation of Section 458.331(1), Florida Statutes.

By letter dated August 17, 1993, Respondent's counsel requested formal hearing in this matter, and this hearing followed. The matter was forwarded to the Division of Administrative Hearings and initially referred to Hearing Officer K.N. Ayers who, by Notice of Hearing dated September 27, 1993, set the hearing in Tampa for December 2, 1993. Thereafter, Petitioner moved to hold the matter in abeyance pending consideration by the Board of Medicine of the parties' stipulated disposition of the issues herein, but the settlement negotiations thereafter reached an impasse and the parties requested the matter be set for hearing. The undersigned, to whom the matter was transferred in the interim, set the matter for hearing in Tampa on July 6, 1994, and it was, thereafter, held as scheduled.

At the hearing, Petitioner presented the testimony of Mary Sue Sutton, a medical quality assurance investigator for the Department, and Dr. Jack Greener, a psychiatrist and expert on the standard of care, prescribing drugs, and the keeping of medical records in 1988. Petitioner also introduced Petitioner's Exhibit 1.

Respondent testified in his own behalf and presented the testimony of Drs. David J. Spreyhe and M.K. El Yousef, psychiatrists; I.E. Funkhouser and Robert

T. Wivagg, pharmacists; W.L.P., an attorney and former patient of Respondent; M.J.S., a former patient; Marion Macguire, Respondent's current secretary; and Charles L. Lewis, a pharmacist, licensed pharmacy consultant, and licensed private investigator. Respondent also introduced Respondent's Exhibits A and B. The parties also introduced Joint Exhibit 1, a series of documents relating to this matter and marked as sub-exhibits a through q.

A transcript of the proceeding was provided. Subsequent to the hearing, both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

At the close of the proceedings, counsel for the Respondent reminded the undersigned that there was an unresolved Motion to Dismiss relating to the action of the Probable Cause Panel which had been filed prior to the undersigned taking over as Hearing Officer in this matter. The undersigned advised Respondent's counsel he would consider and rule upon the motion as a part of the preparation of this Recommended Order. A thorough review of the file in this case, however, indicates the only motion relating to the action of the Probable Cause Panel was that filed by Respondent's counsel on October 18, 1993. This motion was denied by Hearing Officer Ayers on November 5, 1993, after response by counsel for the Department.

At the close of the Department's case, Respondent's counsel made an ore tenus Motion for Summary Recommended Order determining that the Department had failed to carry its burden of proof to establish that Respondent had committed the offenses alleged in the Administrative Complaint. The undersigned denied the motion for summary action and ruled that the matter would be disposed of as a part of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Board of Medicine was the state agency responsible for the licensing of physicians and the regulation of the practice of medicine in this state. Respondent was licensed as a physician in Florida and holds license number ME 0017915. He practices medicine, specializing in psychiatry, in Clearwater, Florida. He is board certified in that specialty.

2. On September 7, 1987, Patient #1, a 55 year old married female, whose husband had recently separated from many years in the armed service of the United States, came to see Respondent at his office, complaining of severe headaches, loneliness, depression, and a lowering of self esteem. She had been referred to him by physicians at the U.S. Coast Guard Station Dispensary.

   
   

3. Respondent examined Patient #1 and found her to be of limited intelligence, considerably overweight, anxious, depressed and confused. She was ashamed of her new status in life as a result of her husband's inability to find work and was experiencing difficulties with him and her children. She was suffering from severe insomnia.

   
   

4. Respondent's examination of Patient #1 was limited. He was satisfied with the medical work-up which had been conducted by his colleagues at the Dispensary. Because he was consulting psychiatrist for that facility, he knew all the physicians there and was familiar with the caliber of their work.

   
   

5. Based on the medical information furnished him from the Dispensary and his own examination, he diagnosed Patient #1 as suffering a major depression and a psychogenic pain disorder manifested by headaches and insomnia. He developed a treatment plan for the patient which included a wide variety of psychotherapy interventions, the first of which was to effect relief of the symptoms. This included clarification of relationships, interpretation of dreams and fantasies, and allowed for catharsis.

   
   

6. When Respondent found out that empathy and intervention alone would not work on this patient, and he had established a relationship with her, he started psychotropic medications including Elavil, the drug of choice for this type of condition in 1988. Elavil is a "superb" antidepressant. While the antidepressant factor is "cranking in", the medication also works as a sedative. For this reason, it is normally prescribed for administration at bedtime.

   
   

7. Patient #1 responded to this course of treatment and she and the Respondent established a good and friendly working relationship, which he noted in his April 4, 1988 letter and treatment report to the Coast Guard and to CHAMPUS. In that treatment report, however, Respondent noted Patient #1 had a suicidal ideation. The term "suicidal ideation" does not import that the patient was, at that time, seriously considering suicide. Her mentioning suicide was but an overcompensation - more an alerting statement of depression and sadness with emptiness and angst. She never indicated to Respondent any thought of or plan to commit suicide.

   
   

8. Patient #1 thrived for many months in Respondent's therapy. She complained often of her impoverished condition, however, and as a result, he wrote prescriptions for her in such a way that they could be filled at the Coast Guard dispensary without charge. This required writing prescriptions for more tablets of a drug at a lower strength which was stocked by the Dispensary. It was a surprise to him to learn, later on, that she was filling her prescriptions at Eckerds.

   
   

9. Throughout the period he treated her, Dr. Fireman prescribed psychotropic drugs for Patient #1, which consisted primarily of amitriptyline, (Elavil), and butalbital, (Fiorinal), in varying strengths, and, at times, in compounds with other substances. As was noted previously, Elavil is an antidepressant with sedative effects. The recommended daily dose for a patient in an outpatient setting is indicated as 150 mg by the Physicians' Desk

   Reference, (PDR), which also recommends suicidal patients not be allowed unrestricted access to it because of the danger of intentional overdose. Other qualified psychiatrists who testified, including Dr. Spreyhe and Dr. El Yousef, indicate up to 300 or even 350 mg/day may be appropriate. As Dr. Spreyhe noted, it is not so much the daily dose on any given day which is pertinent but the aliquot over an extended period. In that regard, he notes, Dr. Fireman's prescriptions for both Elavil and Fiorinal were within recommended maximums and, therefore, within the appropriate standard of care.

   
   

10. Fiorinal is a barbiturate anti-anxiety agent and muscle relaxant with habit forming potential. Fiorinal #3 contains codeine, a legend drug and narcotic. Generally, according to Dr. El Yousef, it should be dispensed for use at a rate of between 8 to 12 tablets per day over the short term, but over a 9 month period he would prescribe between 4 and 9 tablets per day.

    
    

11. Pharmacy records indicate that over the period he treated patient #1, Respondent gave her numerous prescriptions for both Elavil and Fiorinal which, at first glance, appear to be excessive. For example, the records reflect that on December 29, 1987, Respondent wrote prescription number 390073 for 100 Elavil

    25 mg tablets. Though the prescription clearly indicates no refills were authorized, and the back of the prescription form, where refills are noted by the pharmacist, fails to reflect any refills were authorized by the physician, the pharmacy records indicate two additional dispensings by the pharmacy for 100 tablets each on January 11 and April 20, 1988. There is no evidence to indicate how these additional fillings came about; who arranged for them, or who received them.

    
    

12. On February 22, 1988, Respondent wrote prescription number 394289 to the patient for 12 Fiorinal #3 tablets. Again the prescription form authorizes no refills and the back of the prescription form indicates but one coordinated refill but the pharmacy records show the prescription was filled twice - once on April 6, 1988 and once on April 23, 1998. Only the latter is annotated.

    
    

13. On March 3, 1988, Respondent wrote prescription number 397144 to the patient for 60 Fiorinal tablets. While the doctor's refill note reflects none were allowed, the computer printout sticker for the bottle reflects 2 refills were authorized. The back of the prescription form shows no refills annotated thereon as required, but the pharmacy's computer listing of all prescriptions indicates the prescription was refilled on May 28 and again on June 3, 1988. No further explanation is given.

    
    

14. Prescription number 396378, written to the patient by Respondent on March 14, 1988 for 50 Fiorinal tablets, reflects no refills authorized by the physician nor does the reverse of the form bear any refill annotations. Nonetheless, the pharmacy records as shown on the computer printout indicates a refill on March 27 and April 6, 1988 with no explanation therefore. Before the last refill, however, Respondent wrote prescription number 397091 to the patient on March 29, 1988, for 21 Fiorinal #2, later approved for #3's. He also, on April 4, 1988, wrote prescription number 398853 for 35 Fiorinal tablets. Respondent claims he would not authorize a refill of a prior prescription for the same medication for which he is writing a new prescription, and, since neither of the refills of the earlier prescription properly reflect any physician authorization, it is so found.

    
    

15. On May 2, 1988, Respondent wrote prescription 399717 for 50 Fiorinal tablets, and prescription 399718 for 100 Elavil 25 mg tablets. Both reflect Respondent's instruction that no refill be given, and neither form bears an

    annotation for authorized phone refills. Yet, the pharmacy's computer printout indicates that the prescription for Elavil was written on May 31, 1988 even though the bottle sticker shows it was filled on May 3, 1988.

    
    

16. On August 1, 1988, Respondent wrote prescription 405572 for 100 Fiorinal and 475573 for 100 Elavil 100 mg tablets. Both were filled the next day but neither form bears any annotation of authorized refill, consistent with the physician's instructions. On August 16, 1988, Respondent prescribed another

    100 Fiorinal by Prescription 406536. It was not refilled.

    
    

17. On August 29, 1988, Respondent wrote prescription 407201 for 150 Elavil 50 mg tablets to patient #1, and number 407202 for 100 Fiorinal tablets. Both prescription forms clearly reflected no refills, but the back of the forms reflect refills were authorized. The Elavil prescription was refilled on September 10, 1988 by pharmacist Ivan Funkhouser who contends he refilled on the basis either of a call to or from the doctor's office. He cannot recall which. He also, at the same time, refilled the Fiorinal prescription under the same conditions. The Elavil prescription was filled again, this time for 225 tablets, on September 30, 1988, by pharmacist Robert Wivagg who also indicated phone refills made only on the basis of a call to or from the physician's office. In this case, however, he believes that because of the amounts involved, he would have spoken to the physician himself before filling the prescription. He cannot be sure of this, however, and Respondent denies having ever prescribed 225 Elavil tablets, regardless of strength, at one time. Mr. Lewis, the pharmacy expert, indicates that proper pharmacy practice would have allowed the pharmacist to issue fewer tablets than on the prescription but not more without express approval of the physician. The Fiorinal prescription, refilled on September 30, 1988, this time for 150 tablets, is not reflected on the prescription form though it is on the computer printout.

    
    

18. Respondent denies that he ever called in prescriptions for Patient #1 because he never had to. She came to his office frequently enough that he was able to provide her with a new prescription for whatever medication she needed. Indeed, his medical office billing records reflect that in June, 1988 he saw her on June 6, 13, 20, and 27; in July, 1988 on July 5, 12, 19, and 26; and in August, 1988, on August 2, 9, 16, and 30. It would appear, therefore, that the refills of prescriptions reflected on the pharmacy computer printout either are in error or were arranged for under some unexplained process not involving Respondent. There appears to be no reason for him having had to authorize refills since he saw the patient so frequently, notwithstanding his comments to Ms. Sutton, during the investigation, that 90 percent of the refill calls are authorized by him personally, and only 10 percent through his secretary. There was no showing that the authorization comment Ms. Sutton recalls was related to this particular patient. Further, according to Ms. Maguire, Respondent's secretary, Respondent frequently refuses to grant refills, and, to her knowledge, he never gives refills to psychiatric patients. Since most, if not all Respondent's patients are psychiatric patients, this does not make sense.

    
    

19. Respondent does not deny writing the two prescriptions on August 29, 1988. At that particular time patient #1 was planning a trip to New York to make peace with her dying mother. As a result, and since her headaches had gotten worse, as had her depression, he decided to increase her dosage of Elavil. This was a medical decision which is not in issue here. He admits that Elavil is a drug which is often used to commit suicide and that prescribed at even its lowest strength, a full prescription can be lethal. This became,

    therefore, an assessment problem wherein Respondent, the physician, had to evaluate the risk of the patient's depression against the benefits to be gained by the use of the drug.

    
    

20. Respondent gave patient #1 enough Elavil to hold her through her visit up north. He had previously given her sixty 50 mg tablets to be taken 6 per day for a 300 mg dose at bedtime. He now told her not to use the 50 mg tablets any more and to destroy them. He believed she did. He then gave her a new prescription for one hundred and twenty 25 mg tablets for her trip. He unequivocally states that he never prescribes more than 300 mg/day of Elavil.

    He admits, however, that while she was on that dosage, he neither hospitalized her nor had blood work done on her.

    
    

21. Respondent feels his original treatment plan and diagnosis were sufficient and his records pertaining to those factors were adequate. He uses checkoff forms because he believes they are the most open way of showing how he sees his patient and what he is doing for her. This same conclusion was reached by Dr. Spreyhe, another Board certified psychiatrist who is Clinical Professor of psychiatry at the University of South Florida Medical School, who has served as an expert witness for the Department in the past, and who continues to serve as a contract consultant for it and as a member of the Medical Advisory Committee of the Department.

    
    

22. Examination of Respondent's medical records pertaining to Patient #1 indicates that the medical history and treatment plan are in the form of check sheets on which the physician makes no more than minimally worded entries. The Department's witness, Dr. Greener, an expert in the completeness of medical records, is of the opinion that Respondent's records should have reflected an initial detailed assessment of the patient's condition, including the reasons for her referral to him, a complete medical history, and a subsequent detailed mental status examination. This should be followed by a formulation of her problems and a treatment program. After the initial evaluation, according to Dr. Greener, the physician should make regular progress notes as to treatments, communications with others, phone calls received, prescriptions issued, and matters of that nature. This is done to memorialize the particulars for the patient and to keep a tally of which and how much of any drug is given to the patient. This would show over or under use as a possible flag as to how well the patient follows instructions or if the patient develops a use addiction problem.

    
    

23. Based on Dr. Greener's review of Respondent's records for patient #1 and the prescription records relevant to her, he concluded those records were "totally inadequate." This conclusion is based on his opinion that the initial evaluation is cursory and without detail and there are few progress notes in the records. Those which are there are inadequate in detail and full of conclusions without the required supporting information such as drug side-effects, the patient's ability to follow instructions, follow-up, changes in dosages, and the like. He complains that Respondent's records do not really outline a plan of treatment designed specifically for that patient.

    
    

24. For example, the forms used by Respondent are merely check-off forms even though, during the period, the patient was receiving continuing analgesic medications. From Respondent's records, it was impossible to determine how the patient was doing on the medications prescribed or whether additional medical evaluation was required. It is important to put this information in patient records to memorialize what is done and not just to keep the information in the treating physician's memory.

25. Respondent denies that his initial evaluation and treatment plan, prepared by the use of form check sheets, is below standard. Dr. Spreyhe concluded the use of such check sheets is not inappropriate for the initial work-up of a patient and he opined that Respondent's forms, and the information thereon provide sufficient information for an independent understanding of the patient's situation and are within an appropriate standard of care. It is so found. However, the medical progress notes which make up the bulk of the remaining medical records are not so complete and, in Dr. Spreyhe's opinion are insufficient. Respondent concurs and admits this. It is so found.

    
    

26. As to Respondent's prescribing practices, Dr. Greener is far more conservative than Respondent in prescribing Elavil. He starts with a low dose and gradually works up to a therapeutic level dosage depending upon the patient. He would start an average patient out at 25 mg/day and work up to a maintenance dose of 150 mg/day. Elavil is a dangerous drug and the doctor must closely monitor the patient for possible side effects and the direct effect it is having on the patient. It should never be ordered "prn", (as needed) when that designation relates to the amount to be taken.

    
    

27. Based on Respondent's records for this patient, it would appear to Dr. Greener that the medication was being used improperly. There appears to have been no monitoring of the amount of the drug the patient was getting and it would appear that the patient was given the prerogative as to dose, which is not a good thing to do. In his opinion, a dose at 300 mg/day of Elavil is very and unnaturally high and he would not use so high a dose. He would do other tests first to see why the medication was not working at the lower dosage. As was seen before, however, other physicians of equal expertise disagree.

    
    

28. Fiorinal is habit forming and, according to Dr. Greener, should be used only over the short term. If needed for a longer period, the patient should be reviewed to see why. The doctor must keep in mind the addictive properties of the drug. Here, Dr. Greener is of the opinion that Respondent prescribed excessive amounts of Fiorinal for patient #1. From January 27, 1988 through March 2, 1988, a period of 34 or 35 days, Respondent prescribed 302 tablets and Dr. Greener would be concerned that the patient was addicted. On March 21, 1988 Respondent prescribed another 50 tablets, and on March 27,1988, he prescribed 50 more followed by another 60 somewhat later and more after that. All of these were being prescribed for a patient whose records reflect she was doing "OK", and was "nicely stabilized". To Dr. Greener, this is just too much, especially for a patient who is obviously addicted and who appears to be taking the medication only to prevent withdrawal symptoms.

    
    

29. By his prescription regimen, a patient would get no more than 10 tablets a day for no more than 4 to 5 days, and he would prescribe this drug for

    9 months, as here, only with support for it in the patient records, including the opinions of other specialists to whom the patient would have been referred. While it is obvious Dr. Greener is more conservative in his approach to medication than is Respondent, the evidence does not clearly show Respondent's approach fell below standards.

    
    

30. Dr. Spreyhe is of the opinion that the levels of Elavil and Fiorinal prescribed by Respondent for this patient were appropriate in both dosage and amounts. He has patients of his own who take such doses and he is not swayed by the PDR recommendations for dosage which, he believes, is too conservative. As for the Fiorinal, he would prescribe no more than 8 per day because there is

    some information that a patient may develop a tolerance for the substance. In any case, the drug is appropriate for the treatment of psychogenic headaches as were suffered by Respondent's patient here.

    
    

31. Both W.L.P. and M.J.S. have been patients of Respondent. Both found him to be concerned and available. When patient #1 died, Ms. Sherman was in a therapy group with her. She did not appear to be suicidal and was looking forward to her proposed trip to New York.

    
    

32. Patient #1 died on October 8, 1988. The report of the Hillsborough County Medical Examiner reflected her death as suicide from the combined effects of amitriptyline, (Elavil), butalbital, (Fiorinal), and salicylate.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

34. In Count One of the Complaint, Petitioner alleges that Respondent failed to keep medical records justifying the course of treatment for his patient, in violation of Section 358.331(1)(m), Florida Statutes. Count Two alleged that Respondent prescribed a legend drug other than in the course of his professional practice, in violation of Section 458.331(1)(q), Florida Statutes. In Count Three, Respondent is alleged to have been guilty of gross or repeated malpractice by allowing Patient #1 large quantities of Elavil after having diagnosed her with suicidal ideation; by failing to outline a plan of treatment specific to the patient's needs, by failing to do appropriate drug level tests and evaluation of abuse potential of the patient, and by failing to test or evaluate the patient's progress, all in violation of Section 458.331(1)(t), Florida Statutes.

    
    

35. Section 458.331(1), Florida Statutes, lists as grounds for disciplinary action:

    
    

    (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. (Prescribing legend drugs inappropriately or in inappropriate quantities, 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.

    
    

36. The action sought by Petitioner in this case is discipline of the Respondent's license to practice medicine in the State of Florida. In order to take that action, Petitioner must establish that Respondent is guilty of one or more of the offenses alleged in the Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

37. With regard to the allegations regarding the Respondent's medical record keeping, as outlined in Count One, Petitioner has established that for the most part, Respondent's intake records are forms which require the physician to check off certain items in the patient history form. There are also blanks to be filled in, and no where are there any requirements for a narrative description of any facet of the patient profile which might give the attending physician an opportunity to evaluate the patient's drug abuse potential. There is also no treatment plan outlined to specifically address the Patient's situation. Petitioner's expert contends these records are totally inadequate as they do not reveal any in-depth evaluation of the patient's condition or provide a record for continuity of care in the event a change in physician might be required.

    
    

38. Respondent, on the other hand, contends that he knew the physicians who referred the patient to him from having worked with them on staff at the Coast Guard dispensary which was the facility giving the patient primary care. He claims he had access to her records at that location and had no need to replicate the entries contained therein in his records. Were he to remain the sole psychiatric provider, his argument might have merit, but there can be no guarantee he would remain so. Dr. Spreyhe, an expert in the type of treatment provided by Respondent in this case, opined that Respondent's records were adequate. However, even Dr. Spreyhe contends, and Respondent admits, that his progress notes relating to this patient are inadequate and Petitioner has sustained its burden to show the insufficiency of Respondent's record keeping.

    
    

39. In Count Two, Petitioner alleges that Respondent prescribed drugs for patient #1 other than in the course of his professional practice. In that regard, it is a given that prescribing drugs in excessive amounts constitutes prescribing other than in the course of a professional practice. For that reason, if Petitioner has proven that the drugs prescribed by Respondent here were excessive, even though prescribed during the course of and pursuant to his treatment of patient #1, such prescriptions would be other than in the course of a professional practice.

    
    

40. The issue here has two basic facets. One relates to the number of prescriptions for Elavil and Fiorinal given to Patient #1 over all, and the other to whether, in light of her diagnosed suicidal ideation, the prescriptions for Elavil were excessive. There is considerable confusion regarding the number of prescriptions written by Respondent for this patient. The pharmacy printout shows many more prescriptions filled than were called for by the actual prescriptions written. The evidence shows that Respondent repeatedly and almost uniformly noted on each prescription form that refills were not authorized. The pharmacists indicated that all refills were to be noted on the back of the prescription form, yet the printout shows many more refills than were noted by the pharmacists on the back of the prescription form. Further, though the investigator indicates Respondent told her he, personally, handles 90 percent of the pharmacy calls regarding refills, he did not authorize any for this Patient

    because, due to her documented frequent visits to his office, he had no reason to authorize more prescriptions by phone. Clearly, too many prescriptions were filled for Patient #1 at the pharmacy in question here, but the evidence of Respondent's implication in those excessive fillings is neither clear nor convincing.

    
    

41. This, then, brings to consideration the other aspect of this issue - whether in light of patient #1's diagnosed suicidal ideation, Respondent prescribed too many Elavil as alleged in Count Three. Here, too the evidence in support of Petitioner's position is not clear and convincing. To be sure, Respondent recognized this patient had a suicidal ideation, but his definition of that term, not contradicted by Petitioner, is that she had thought of and mentioned the concept of suicide. The only evidence of record to support Petitioner's position, other than the act of the patient's ultimate completion of the act, is the Respondent's notation that she had mentioned suicide during one or more of their sessions. He did not believe she would take her life and, according to his testimony, she had never indicated to him she was seriously contemplating or considering it. This opinion is supported by another member of the patient's therapy group who, as late as just before the final act, had no indication from the patient she was considering so drastic an action.

    
    

42. Further, the evidence of record shows that Respondent, in anticipation of the patient's trip, modified her medication so that she could maintain her normal dosage without risk of overdose. The Petitioner's expert opines the maintenance dose prescribed by Respondent was excessive based not only on his experience, but also on the terms express in the Physician's Desk Reference. Respondent's two expert colleagues disagreed, however, noting that the PDR is not governing authority, and indicating their normal practice with this drug was consistent with that followed by Respondent. Under these circumstances, again, it must be concluded that the evidence of Respondent's misconduct is neither clear nor convincing.

    
    

43. In Count Three, Petitioner also alleges Respondent failed to outline a plan of treatment specific to his patient's medications; failed to do appropriate drug level tests and evaluations of abuse potential; and failed to test or evaluate the patient's progress. The issue of Respondent's records has been addressed in the discussion of the allegations in Count One. There it was determined that Petitioner established by clear and convincing evidence that the treatment plan by Respondent was insufficient, as were his follow-on records. There is a paucity of evidence in the record on the issue of drug level tests and evaluations and on the basis of the existing state of the evidence, this allegation must fall. The issue of the evaluation of the patient's abuse potential has been resolved previously herein in favor of Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be issued herein, finding Respondent not guilty of all allegations except those relating to his failure to keep adequate medical records regarding Patient #1 as alleged in Count One, of which he is shown to be guilty, and imposing an administrative reprimand and a requirement for continuing medical education in the area of proper record keeping.

RECOMMENDED this 31st day of August, 1994, in Tallahassee, Florida.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1994.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5048

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

as a Finding of Fact.

9. & 10. Accepted that the medications were dispensed based on prescriptions written under the patient's name.

11. & 12. Accepted and incorporated herein.

13. & 14. Accepted as a restatement of witness testimony.

1. - 18. Accepted and incorporated herein.

   1. Rejected as not a necessary conclusion to be drawn.

   2. Accepted.

   3. - 23. Accepted as restatements of witness testimony.

      1. Accepted and incorporated herein.

      2. - 26. Accepted and incorporated herein as pertaining to the dosage level of Elavil used and the balance accepted as a restatement of witness testimony.

         1. Accepted and incorporated herein.

         2. Accepted as a restatement of witness testimony.

         3. Accepted and incorporated herein.

         4. Accepted.

         5. & 32. Rejected as Findings of Fact, and found to be Conclusions of Law.

            
            

            FOR THE RESPONDENT:

            
            

            1. Accepted and incorporated herein.

            2. - 4. Accepted and incorporated herein.

1. - 7. Accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. - 12. Accepted and incorporated herein.

adequacy, however.

32. & 33. Rejected as contra to the weight of the evidence.

1. & 35. Accepted as the substance of the witness' testimony.

   1. Accepted and incorporated herein.

   2. Accepted.

   3. Accepted.

   4. Rejected as a Conclusion of Law.

COPIES FURNISHED:

Steven Rothenberg, Esquire Agency for Health Care Administration

9325 Bay Plaza Boulevard Suite 210

Tampa, Florida 33619

Bruce D. Lamb, Esquire Christopher J. Schulte, Esquire Shear, Newman, Hahn &

Rosenkranz, P.A. Post Office Box 2378 Tampa, Florida 33601

Harold D. Lewis, Esquire Agency for Health Care Administration

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

Dr. Marm Harris Executive Director

Agency for Health Care Administration Board of Medicine

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-005048

Orders for Case No: 93-005048