STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 94-0760

) AHCA CASE NO. 91-01980 HAROLD SHELDON LASKI, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 19, 1994 in Jacksonville, Florida.

APPEARANCES

For Petitioner: Albert Peacock

Senior Attorney

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: James J. Pratt, Esquire

1020 Blackstone Building

Jacksonville, Florida 32202 STATEMENT OF THE ISSUE

Whether Respondent's license to practice as a physician in Florida should be disciplined for violations of Florida law alleged in an Administrative Complaint entered March 8, 1993.

PRELIMINARY STATEMENT

On or about March 8, 1993 the Department of Professional Regulation filed an Administrative Complaint with the Board of Medicine charging that Respondent, Harold Sheldon Laski, M.D., had violated Florida law governing his license to practice as a physician in Florida. Respondent filed an Election of Rights form dated March 19, 1993, with Petitioner contesting the charges.

On February 8, 1994 Petitioner filed the Administrative Complaint and Election of Rights with the Division of Administrative Hearings requesting the assignment of a Hearing Officer to conduct a formal administrative hearing. The matter was designated case number 94-0760 and was assigned to the undersigned.

A final hearing was scheduled for July 19, 1994 by Notice of Hearing entered March 8, 1994.

On July 14, 1994, the parties filed a Joint Pre-Hearing Stipulation. The parties stipulated that the facts alleged in paragraphs 1-11 of the Administrative Complaint were accurate.

At the final hearing Petitioner presented the testimony of Charles C. Coats, III and Stanley H. Bernstein, M.D. Petitioner also offered 4 exhibits which were accepted into evidence.

Respondent testified on his own behalf and presented the testimony of M. G. Respondent offered no exhibits.

Official recognition of Section 465.003(7), Florida Statutes and Chapter 893, Florida Statutes, was taken.

A transcript of the final hearing was filed on August 10, 1994.

The parties filed proposed recommended orders on September 9, 1994. A ruling on each proposed finding of fact contained in the proposed orders filed by the parties has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

FINDINGS OF FACT

1. The Parties.

   
   

   1. Petitioner, the Agency for Health Care Administration (hereinafter referred to as "AHCA"), is an agency of the State of Florida charged with responsibility for regulating the practice of medicine in the State of Florida. Section 20.30 and Chapters 455 and 458, Florida Statutes. (Stipulated Facts).

      
      

   2. The Respondent, Harold Sheldon Laski, M.D., is, and has been at all times material hereto, a licensed physician in the State of Florida. Dr. Laski has been issued license number ME 0039033. (Stipulated Facts).

      
      

   3. Dr. Laski's last known address is 10369 Sequoya Drive, Jacksonville, Florida 32257-6454. (Stipulated Facts).

      
      

   4. Dr. Laski is a family practitioner. (Stipulated Facts).

      
      

2. Dr. Laski's Treatment of M.G.

   
   

   1. Dr. Laski first saw the patient whose treatment is at issue in this proceeding, M. G., on August 13, 1988. M. G. was a 53 year old female at the time of her first visit.

      
      

   2. M. G. had a history of chronic low back pain, rotator cuff injury to the shoulder, migraine headaches, rheumatoid arthritis, morbid obesity, and cervical strain. (Stipulated Facts).

      
      

   3. During the first visit, M.G. told Dr. Laski that she suffered from arthritis and migraine headaches. Dr. Laski wrote in his notes under the "diagnoses" section "Arthritis" and "Migraine H/A [headache]". The evidence failed to prove that Dr. Laski took the steps necessary to determine that M. G.

      actually suffered from arthritis or migraine headaches. Dr. Laski merely accepted M. G.'s representation without making his own determination.

      
      

   4. On or about May 12, 1989, M. G. presented herself to Dr. Laski with injuries to her neck and shoulders. The injuries had been sustained in an automobile accident. (Stipulated Facts).

      
      

   5. From on or about May 12, 1989 to on or about July 5, 1990, Dr. Laski treated M. G. for various conditions, including neck and shoulder pain, recurrent headaches, and painful joints. (Stipulated Facts).

      
      

   6. Throughout the period of time at issue in this proceeding, May 12, 1989 to July 5, 1990, M. G. presented herself to Dr. Laski on a regular basis with numerous complaints. The complaints were almost always subjective. Dr. Laski failed to determine what M. G. was suffering from; he failed to make any diagnoses. Dr. Laski did, however, treat M. G.'s symptoms with a variety of medications.

      
      

   7. The medications prescribed by Dr. Laski to M. G. included several drugs, including the following:

      
      

      1. Esgic with Codeine, which is a legend drug as defined in Section 465.003(7), Florida

         Statutes. Esgic with Codeine contains butalbital and codeine, a Schedule III controlled substance listed in Chapter 893, Florida Statutes;

      2. Diazepam, a legend drug as defined in Section 465.003(7), Florida Statutes. Diazepam contains benzodiazepine, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes;

      3. Percocet, a legend drug as defined in Section 465.003(7), Florida Statutes. Percocet contains oxycodone, a Schedule II controlled substance listed in Chapter 893, Florida Statutes;

      4. Lortab, a legend drug as defined in Section 465.003(7), Florida Statutes. Lortab contains hydrocodone, a Schedule III controlled substance listed in Chapter 893, Florida Statutes; and

      5. Valium, a legend drug as defined in Section 465.003(7), Florida Statutes. Valium contains diazepam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. (Stipulated Facts).

         
         

   8. Drugs are "scheduled" because of their potential to produce addiction or dependency. Therefore, they should be given cautiously.

      
      

   9. Although Dr. Laski did not prescribe any of the scheduled drugs in excess of the recommended dosages or prescribe more than one scheduled drug at a time in an overlapping fashion, Dr. Laski did prescribe scheduled drugs during the time period at issue in excessive and inappropriate quantities because of his failure to determine a diagnosis that would warrant any medication for M. G.

      
      

   10. Dr. Laski's treatment of M. G., by virtue of prescribing medications without a diagnosis, failed to practice medicine with that level of care, skill, and treatment which is recognized as acceptable under similar conditions and circumstances.

3. Failure to Consult with a Specialist.

1. Having a patient consult with a physician specialists is a valuable medical tool for family practitioners. This is especially true for patients who present with predominately subjective symptoms.

   
   

2. Dr. Laski should have insisted that M. G. see specialists during his treatment of her.

   
   

3. Dr. Laski recognized the need for a consultation for M. G. On more than one occasion he recommended a consultation for M. G. M. G. failed to follow through on the appointments with specialists arranged by Dr. Laski. M.

   G. told Dr. Laski that she could not afford the consultation fees.

   
   

4. While it is true that Dr. Laski might not have been able to force M.

   G. to see a specialist, he was required to insure that she did so or cease providing her with medications. Dr. Laski failed to do so.

   
   

5. Dr. Laski's treatment of M. G., by virtue of his failure to insist on a consult before continuing her treatment, failed to practice medicine with that level of care, skill, and treatment which is recognized as acceptable under similar conditions and circumstances.

   
   

   D. Other Factors.

   
   

6. The evidence failed to prove that Dr. Laski has had any other disciplinary cases filed against him.

   
   

7. M. G. was able to work and perform most of her household duties during her treatment by Dr. Laski.

   
   

8. The evidence failed to prove that Dr. Laski's treatment of M. G. resulted in any lasting adverse impacts on her. The impacts upon M. G. were slight.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

9. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1993).

   
   

   1. Burden of Proof.

      
      

10. The burden of proof absent a statutory directive to the contrary is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977).

    
    

11. In this proceeding it is AHCA that is asserting the affirmative. AHCA therefore had the burden of proving by clear and convincing proof that Dr. Laski committed the offenses he has been charged with in this proceeding. Ferris v. Turlington, 510 So. 2d 292 (Fla.. 1st DCA 1987).

    1. The Charges Against Dr. Laski.

       
       

12. The Board of Medicine is authorized to revoke, suspend or otherwise discipline the license of a physician to practice medicine in Florida who commits certain acts specified in Section 458.331(2), Florida Statutes (1989). In this proceeding, Dr. Laski has been charged with having committed the acts described in Section 458.331(2)(q) and (t), Florida Statutes (1989).

    
    

13. Section 458.331(2)(q), Florida Statutes (1989), describes the following prohibited act:

    
    

    (q) Prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course

    of the physician's professional practice, without regard to his intent.

    
    

14. Section 458.331(2)(t), Florida Statutes (1989), describes the following prohibited act:

    
    

    (t) Being guilty of gross or repeated mal- practice 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. . . .

    
    

15. The evidence in this case proved that Dr. Laski prescribed, dispensed and administered legend drugs, including controlled substances, inappropriately or in excessive or inappropriate quantities during his treatment of M. G. Dr. Laski has, therefore, violated Section 458.331(1)(q), Florida Statutes (1989).

    
    

16. The evidence also proved the Dr. Laski failed 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 when he failed to consult a specialist regarding M. G.'s recurrent complaints of chronic pain and in failing to appropriately diagnose her condition. Dr. Laski, therefore, violated Section 458.331(1)(t), Florida Statutes (1989).

    
    

    1. Penalty.

    
    

17. Rule 61F6-20.001, Florida Administrative Code, contains penalty guidelines for violations of Section 458.311(1)(q) and (t), Florida Statutes. Rule 61F6-20.001(2), Florida Administrative Code, provides the following:

    
    

    The range of disciplinary penalties which the

    Board may impose includes denial of an application,

    revocation, suspension, probation, reprimand, and

    a fine. In determining the appropriate disciplinary action to be imposed in each case, the Board shall take into consideration the following factors:

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of offenses;

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

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

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

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

    8. The deterrent effect of the penalty imposed;

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

    10. Any efforts for rehabilitation;

    11. Any other mitigating or aggravating circumstances.

    
    

18. The mitigating factors in this case are the fact that the damage to M.

    G. was slight and Dr. Laski has no prior disciplinary history.

    
    

19. The aggravating factor in this case is the fact that the drugs used were dangerous.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Harold Sheldon Laski,

M.D., guilty of the violating Section 458.331(1)(q) and (t), Florida Statutes,

as alleged in the Administrative Complaint of March 8, 1993. It is further

RECOMMENDED that Dr. Laski's license to practice as a physician in the State of Florida be placed on probation for a period of one year and that Dr. Laski be reprimanded in writing, required to take a course in the proper use of abusable drugs by family practitioners and that he be required to pay a fine within 30 days after the entry of the final order in the amount of $5,000.00.

DONE AND ENTERED this 9th day of November, 1994, in Tallahassee Florida.

LARRY J. SARTIN

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 9th day of November, 1994.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

AHCA's Proposed Findings of Fact

1. Accepted in 1.

2. Accepted in 2.

3. Accepted in 8.

4. Accepted in 5-6.

5. Accepted in 4 and 9.

6. Accepted in 10-11. 7-11 Accepted in 11.

1. Accepted in 10.

2. Accepted in 12.

3. Accepted in 12.

4. Accepted in 15.

5. Accepted in 18.

6. Accepted in 13.

7. Accepted in 14 and 19.

Dr. Laski's Proposed Findings of Fact

6-11 Accepted in 11.

1. See 5. The first visit was in August and not October.

2. Not supported by the weight of the evidence.

3. Not supported by the weight of the evidence.

15-16 Although generally correct, these findings are not relevant because Dr. Laski failed to make a diagnosis.

17-19 Not supported by the weight of the evidence.

20-21 Although generally correct, these findings are not relevant because Dr. Laski failed to make a diagnosis.

1. Accepted in 8.

2. Not supported by the weight of the evidence. 24-25 Accepted in 13.

1. Hereby accepted.

2. Accepted in 21.

3. Accepted in 22.

COPIES FURNISHED:

Albert Peacock Senior Attorney

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

James J. Pratt, Esquire 1020 Blackstone Building

Jacksonville, Florida 32202

Sam Power, Agency Clerk

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

The Atrium, Suite 301

325 John Knox Road Tallahassee, Florida 32303

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: 94-000760

Orders for Case No: 94-000760