STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-1247

)

JAMES P. BOWMAN, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Patricia Hart Malono, Hearing Officer of the Division of Administrative Hearings, on February 2, 1995, and on April 27, 1995, at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Joseph S. Garwood, Esquire

Counsel to the Agency for Health Care Administration

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Roy R. Watson, Esquire

ADAMS, COOGLER, WATSON & MERKEL, P.A.

Nationsbank Tower, Suite 1600 1555 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33402-2069 STATEMENT OF THE ISSUE

Whether the respondent committed the violation alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.

PRELIMINARY STATEMENT

On October 5, 1993, the respondent's license to practice medicine was suspended pursuant to the Order of Emergency Suspension of License entered that date by the Secretary of the Department of Business and Professional Regulation, the predecessor of the Agency for Health Care Administration ("Agency") 1/ in the regulation of the practice of medicine. This suspension was followed by a one-count Administrative Complaint dated October 21, 1993, in which the Agency charged that James P. Bowman, M.D., ("respondent") was chemically dependent on alcohol and, therefore, unable to practice medicine with reasonable skill and safety, in violation of section 458.331(1)(s), Florida Statutes. The Agency requested imposition of one or more penalties, including suspension or revocation of the respondent's license to practice medicine.

The respondent timely requested a formal hearing pursuant to section 120.57(1), Florida Statutes, disputing the allegations stated in the Administrative Complaint. By Notice of Hearing dated November 15, 1994, the case was set for hearing on February 2, 1995. It was necessary to schedule an additional day of hearing, and, by Order dated April 3, 1995, the continuation of the hearing was set for April 27, 1995.

At the hearing, the Agency presented the testimony of five witnesses: Neville S. Marks, M.D., a Florida-licensed physician specializing in psychiatry; Rohit Dandiya, M.D., a Florida-licensed physician specializing in internal medicine; Roger R. Goetz, M.D., medical director of the Physicians Recovery Network; Donald W. Goodwin, M.D., the respondent's former partner; and Walter H. Forman, M.D., also the respondent's former partner. Petitioner's exhibits 1 through 9, 11, and 12 were offered and accepted into evidence, including the transcript of the deposition of Jeffrey S. Wenger, M.D, a Florida-licensed gastroenterologist. A hearsay objection was raised as to the contents of the records of the respondent's hospitalization at St. Mary's Hospital, but the objection was subsequently withdrawn.

The respondent testified in his own behalf and presented the testimony of two witnesses: James M. Cooper, M.D., a Florida- licensed physician; and John Burigo, M.D., a Florida-licensed physician. Respondent's exhibits 2 through 4,

6 through 12, and 14 through 19 were offered and accepted into evidence. Hearsay objections were raised to respondent's exhibits 6 through 8, 10 through 12, and 14 through 17. The record was kept open until May 12, 1995, to allow the respondent time to depose two additional witnesses and to file the deposition transcripts; no transcripts have been filed to date.

The final volumes of the transcript of the proceedings were filed May 15, 1995. The Agency timely filed its Proposed Recommended Order; the respondent did not file a Proposed Recommended Order. A ruling on each of the Agency's proposed findings of fact is contained in the appendix to this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Agency for Health Care Administration is the state agency charged with the responsibility for investigating complaints filed against health care professionals. The Board of Medicine ("Board") is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction.

   
   

2. At all times relevant to this proceeding, the respondent was licensed to practice medicine in Florida and holds the license numbered ME 0008667.

   
   

3. From 1973 until his retirement in the summer of 1993, the respondent was a staff radiologist at Good Samaritan Hospital in West Palm Beach, Florida. He was a founding member of the group of radiologists now known as Palm Beach Imaging Associates.

   
   

4. In December 1990, the respondent was going through a divorce, drinking three to four drinks each evening during the week and more on the weekends,

   dating several women, and generally "living hard." He was concerned about his lifestyle and intended to spend the month of February 1991, at a spa, resting and getting himself back to his normal condition.

   
   

5. Instead, on December 17, 1990, he checked into South Miami Hospital for a five-day evaluation at the urging of Drs. Walter H. Forman and Donald W. Goodwin, his partners in Palm Beach Imaging Associates. Although they had been concerned about the respondent's health and his consumption of alcohol for years, Drs. Forman and Goodwin had been afraid to confront him about it previously.

   
   

6. Upon his admission to South Miami Hospital, the respondent's blood pressure was taken and he was sent to the laboratory for a lab work-up and x- rays. He was then given a large dose of librium, which he continued to receive regularly until December 19. On December 19, the respondent was discharged from South Miami Hospital against medical advice because he was dissatisfied with his treatment and with the evaluation procedure. The respondent was diagnosed at South Miami Hospital as suffering from chronic alcoholism.

   
   

7. When he left South Miami Hospital, the respondent drove himself to West Palm Beach. He was still heavily drugged and drove off the road twice. When he arrived in West Palm Beach, he learned from his estranged wife that Drs. Forman and Goodman had called and advised her that the respondent needed treatment for alcoholism and that he would lose his medical license if he failed to get it. Dr. Goodman was contacted by the hospital when the respondent was discharged, and the Physician's Recovery Network ("PRN") 2/ was also notified by South Miami Hospital of the respondent's discharge. This was the PRN's first involvement with the respondent.

   
   

8. Upon being told that his medical license could be in jeopardy, the respondent immediately made arrangements to be admitted to the Talbott Recovery Systems ("Talbott"), a chemical dependency evaluation and treatment center in Atlanta, Georgia. He was admitted to Anchor Hospital, a part of the Talbott system, on December 20, remaining there for twenty-eight days before being transferred on January 17 to the Talbott Recovery Center.

   
   

9. At the Talbott Recovery Center, the respondent lived in an apartment with several other patients and attended counseling sessions several times a day. The treatment was patterned after the twelve-step Alcoholics Anonymous Program.

   
   

10. In January 1991, the respondent wrote a letter to three of his partners, Drs. Forman, Goodwin, and Wimbush, as part of the first step in his treatment. In the letter, he admitted that he needed to quit drinking but that he was too addicted to do it by himself, and he acknowledged that he could get himself and the radiology group into trouble if he didn't get his drinking under control. He described the treatment program as "totalitarian" but stated that he knew it would really help him.

    
    

11. The respondent completed the twelve steps of the treatment program and was discharged from Talbott on April 13, 1991. Before his discharge, Talbott required the respondent to sign a five-year monitoring contract with Florida's PRN. He signed this contract on April 9, 1991. The terms of the contract required the respondent to attend weekly chemical dependency follow-up group meetings for two years, to submit to random urine and blood testing for two years, and to notify the PRN whenever he was going out of town. The contract

    also gave the PRN the power to order the respondent to be reevaluated if the PRN received any negative information about the respondent's behavior.

    
    

12. After a two-week vacation, the respondent returned to West Palm Beach and, in late April or early May 1991, resumed the active practice of medicine. He rejoined his group, Palm Beach Imaging Associates, and worked as a staff radiologist at Good Samaritan Hospital.

    
    

13. The respondent did not begin attending the follow-up meetings required by the PRN contract for several weeks after his return to practice, when he was notified that he must attend the meetings to be in compliance with the contract. The meetings were held at 6:00 p.m. in Stuart, Florida, about an hour's drive from Good Samaritan Hospital. The PRN expected attendance at all fifty-two meetings per year, and a participant who missed a meeting was required to have a good excuse for doing so. In a letter dated June 15, 1993, Gordon S. Bohl, President of Recovery Associates, Inc., wrote to the PRN affirming that the respondent had successfully completed his participation in the follow-up group meetings.

    
    

14. As required by the PRN monitoring contract, the respondent submitted to random blood and urine testing for two years following his release from Talbott. He had approximately fifty blood tests and approximately twenty urine tests over the two-year period. He would usually receive a telephone call in the morning telling him to report to the office of a local physician in the afternoon. He never tested positive for alcohol. 3/

    
    

15. From early May 1991 until the end of May 1993, the respondent worked at the diagnostic center run by Palm Beach Imaging Associates in the professional office building adjacent to the Good Samaritan Hospital. The center was a very busy place, and the respondent spent more time working there than any of his partners. He handled the business of the center alone during the mornings, and, in the afternoons, all the partners shared in the responsibility.

    
    

16. For approximately one year after his return from Talbott, the respondent did an excellent job. He routinely handled a very large workload, and the quality of his work was outstanding. However, beginning in the summer of 1992 and continuing into the fall, Dr. Goodwin and Dr. Forman noticed that his work habits were deteriorating and his personality changing. He still worked well in the mornings, but he began to take longer lunch hours and would run errands in the afternoons which took longer than seemed reasonable. Although the quality of his work was good, Dr. Forman noticed that the respondent's behavior was reverting back to what it had been prior to his treatment at Talbott.

    
    

17. In November 1992, word came to Dr. Forman, and from him to Dr. Goodwin, that a technician had told another Palm Beach Imaging Associates partner, Donald Russell, that a patient had remarked that she smelled alcohol on the respondent's breath as he gave her an injection. Neither Dr. Forman nor Dr. Goodwin learned the name of the patient, and they did not attempt to verify the accuracy of the information conveyed to Dr. Russell by the technician.

    
    

18. As a result of this report, as well as the changes they had observed in the respondent's work habits and personality, Drs. Forman and Goodwin decided to confront the respondent regarding their perception that he had resumed drinking and that his drinking might have an adverse effect on his work. In December 1992, Dr. Forman prepared a letter in which he set out the partner's

    concerns and offered the respondent three career choices: He could retire immediately from the group, undergo evaluation and treatment for his drinking, or work part-time in the diagnostic center for six months at a reduced salary and then retire.

    
    

19. When the partners delivered this letter and confronted the respondent, he was furious and refused to accept any of the three alternatives. He told his partners that he was drinking, that he intended to continue drinking, that he was not an alcoholic, and that he would not cause the partners any trouble. In the face of the respondent's angry denials, the partners took no further action at the time, and the respondent continued to work full-time in the diagnostic center.

    
    

20. Dr. Forman smelled alcohol on the respondent's breath several times between December 1992 and May 1993 and talked to him about it. The respondent denied any problem, but he continued to take long lunches and to be absent from work for long periods during the afternoons. In May 1993, the partners were told that, on three occasions, the respondent had asked a technologist to perform a procedure that, pursuant to the policies of the Palm Beach Imaging Associates, was to be performed by a radiologist.

    
    

21. The partners met again in May 1993 to discuss their ongoing concerns regarding the respondent's behavior. They asked Dr. Goodwin to contact the PRN and ask for guidance in handling the problem. Dr. Goodwin telephoned the PRN and eventually spoke with Dr. Roger A. Goetz, a Florida-licensed physician who is the Director of the Physician's Resource Network/The Impaired Practitioner's Program of Florida, which includes the PRN.

    
    

22. During their long professional association with the respondent, Dr. Forman and Dr. Goodwin never observed him in an impaired condition while at work, and they never heard any complaints that the respondent had been observed in an impaired condition while acting in his professional capacity. Dr. Forman and Dr. Goodwin never had reason to criticize the quality of the respondent's work, which they felt was consistently good and sometimes outstanding, and they never heard any complaints from other physicians or from patients regarding the quality of his work.

    
    

23. Even so, Dr. Goodwin told Dr. Goetz that, although the partners had no evidence that the respondent had ever been intoxicated on the job or that the respondent had ever made a mistake in his work as a result of the use of alcohol, they were concerned about his behavior. Dr. Goodwin identified the bases for this concern as the respondent's previous history of alcohol abuse and the change in his work habits and behavior; he included the information that a patient had reported smelling alcohol on the respondent's breath. The partners followed up Dr. Goodwin's telephone call with a letter to Dr. Goetz dated May 26, 1993. They also notified the respondent that they had made a report to the PRN. The respondent ceased practicing medicine at the end of May 1993.

    
    

24. On the basis of the information received from the respondent's partners, Dr. Goetz requested in a letter dated June 3, 1993, that the respondent present himself for an in-depth evaluation at one of the several PRN- approved facilities listed in the letter. The respondent found these facilities unacceptable because they were affiliated with the PRN, and he proposed three other facilities. Dr. Goetz agreed that the respondent could be evaluated at one of these, but he refused to agree to the respondent's suggestion that the evaluation be conducted without the examining physician having access to his medical history or, alternatively, that the medical history be provided only

    after the submission of the evaluation report. As a result, the respondent refused to undergo the requested evaluation.

    
    

25. In September 1993, the respondent received an order from the Agency compelling him to submit to both a physical and a mental examination. The Agency chose the doctors and told the respondent when to appear for the appointments.

    
    

26. On September 9, the respondent was seen at approximately 10:00 a.m. by Dr. Rohit Dandiya, a Florida-licensed physician board-certified in internal medicine. Dr. Dandiya performed a physical examination at the request of the Agency for the purpose of determining whether the respondent could practice medicine with reasonable skill and safety.

    
    

27. Tests were run for several blood chemistries, including liver function, and, with the respondent's consent, for alcohol. The blood test results showed that two liver functions were abnormal. In Dr. Dandiya's opinion, the abnormalities could be related to injuries to the liver from the use of alcohol, but they could also be related to injuries to the liver from numerous other sources.

    
    

28. The blood test results showed an alcohol level of twenty- seven milligrams per decaliter, which Dr. Dandiya considered very unusual given that the blood was drawn between 10:00 a.m. and 11:00 a.m. In Dr. Dandiya's opinion, this result indicated that the respondent had consumed alcohol within two or three hours before the blood was drawn.

    
    

29. Dr. Dandiya did not receive any information regarding the respondent's medical history from the Agency. The information contained in the report was obtained solely from the respondent, who told Dr. Dandiya that he did not have any problems related to the use of alcohol; that he consumed four to six drinks per day, two to three before going home in the evening and two to three with dinner; that his consumption of alcohol had been at this level for the past twenty years; and that he had been treated at Talbott from January to April 13, 1991, for chemical dependency.

    
    

30. Based on the results of the physical examination and on the history provided by the respondent, it is Dr. Dandiya's opinion that the respondent suffers from the disease of alcoholism. Although Dr. Dandiya included in his report to the Agency his opinion that the respondent's ability to practice medicine was questionable, he refused to state an opinion as to whether the respondent can currently practice medicine with reasonable skill and safety, explaining that he had examined the respondent fifteen months previously and had no knowledge of the respondent's current condition.

    
    

31. On September 10, 1993, the respondent was seen by Dr. Neville S. Marks, a Florida-licensed psychiatrist with considerable experience in the diagnosis and treatment of alcohol dependency. Dr. Marks conducted the examination of the respondent at the Agency's request and received from the Agency the respondent's records from South Miami Hospital, Anchor Hospital, and the Talbott Recovery Center. Dr. Marks reviewed these records and performed a psychiatric examination in which he took a full history from the respondent, conducted a mental status examination, and performed two psychological tests. At the respondent's request and expense, Dr. Marks interviewed him a second time.

32. The psychological tests administered were the 16PF Test Profile and the Minnesota Multiphasic Personality Inventory. The results of both of these tests were in the normal range, although the results suggested that the respondent was dependent and had a need for social approval. Dr. Marks concluded that the respondent had no significant pathology.

    
    

33. In the history the respondent gave Dr. Marks, he stated that his father and two relatives on his mother's side were alcoholics and that his daughter had been treated for chemical dependency. He confirmed that, at the time he went into South Miami Hospital, he routinely consumed four to six drinks per day and six to twelve beers on Saturdays and Sundays. He described himself as very sharp and feeling very good for about a year after his release from the Talbott treatment program. He admitted that he likes to drink and that he had been drinking vodka and soda the night before the examination. He stated that he did not experience any effects from the use of alcohol, and he denied that he was an alcoholic.

    
    

34. Dr. Marks observed the respondent's physical appearance and demeanor during the interviews, and he telephoned the respondent's partner, Dr. Goodwin, for additional information about the respondent, a normal procedure in evaluations of this type. Dr. Goodwin told Dr. Marks that the respondent had never been impaired on the job but that he had missed certain procedures, could be gruff over the telephone, and shown poor judgment at times.

    
    

35. Based upon this information, Dr. Marks is of the opinion that, within a reasonable degree of medical certainty, the respondent suffers from chemical dependency of the alcohol type and that, until he obtains treatment and is motivated to stop using alcohol, the potential exists for him to practice medicine below the acceptable standard. In forming this opinion, Dr. Marks considered it significant that, even though his license to practice medicine was at stake, the respondent stated that he had consumed alcohol the night before his examination, that he had been drinking for many years, and that he wanted to continue to drink.

    
    

36. As Director of the PRN, Dr. Goetz provides consulting services to the Agency with respect to impaired physicians, pursuant to the PRN's contract with the Agency. In his capacity as consultant to the Agency, Dr. Goetz, by letter dated September 30, 1995, notified the Agency that the respondent was not in compliance with his PRN monitoring contract and that, in his professional opinion, the respondent posed a serious danger to the public health, safety, and welfare. In making this assessment, Dr. Goetz considered the respondent's medical records, including oral reports from the Agency regarding the results of the examinations performed by Dr. Dandiya and Dr. Marks; the respondent's progress through the follow-up group meetings and the PRN monitoring process as reported by the treatment providers; and the behavioral and attitudinal changes and complaints reported by the respondent's partners. The respondent's medical license was suspended on October 5, 1993.

    
    

37. Two letters were written to the respondent by Dr. John J. Purcell, a psychiatrist practicing at the Harvard Medical School, setting out his observations and opinions regarding the respondent's condition. In a letter dated November 23, 1991, Dr. Purcell reported that, based on three one-hour meetings with the respondent, it was his personal opinion that the respondent was merely a heavy social drinker, not an alcoholic. In a letter dated December 4, 1993, Dr. Purcell reported on his November 11, 1993, meeting with the respondent. He expressed his conclusions that the respondent's consumption of alcohol was less than that of a social drinker, that the respondent was being

    treated unfairly, and that there was no reason the respondent should be prevented from working.

    
    

38. On December 20, 1993, the respondent was seen for a three-day evaluation by the staff of the Meninger Foundation in Topeka, Kansas, a well- respected chemical dependency evaluation and treatment facility. In the examination report, dated December 23, 1993, Roy W. Meninger, M.D., a psychiatrist, stated that the examining staff could find no basis for a diagnosis of alcohol abuse at the time of the examination, although they could neither affirm nor negate the earlier diagnoses at South Miami Hospital and Talbott. Likewise, the staff found no basis for concluding that the respondent was not competent to practice medicine or posed a public hazard.

    
    

39. On August 19, 1994, the respondent was admitted to St. Mary's Hospital by Dr. William Donovan, with an admission diagnosis of gastroenteritis or hepatitis. Dr. Jeffrey S. Wenger, a gastroenterologist, was asked by Dr. Donovan to consult with regard to the condition of the respondent's liver. When he first examined the respondent, Dr. Wenger had no chronic history and was aware only of the acute history reported by Dr. Donovan that the respondent presented with acute intoxication and that he needed to undergo detoxification. Dr. Wenger's diagnosis on consultation was that the respondent suffered from acute hepatitis, likely alcohol related, and he ordered serologies which eliminated other causes of the liver disease. The respondent was discharged on August 29, 1994, to the Hanley-Hazelton Center for rehabilitation; he was released after four days.

    
    

40. When Dr. Wenger spoke with the respondent on August 19, 1994, shortly after his admission, he admitted drinking about three glasses of vodka and soda per day, although the respondent claimed that the amount had decreased over the previous few months. Given his acute intoxication on admission, Dr. Wenger ordered that seventy-five milligrams of librium be administered to the respondent three times per day to prevent delerium tremens; this dosage was decreased incrementally during the respondent's hospitalization. Dr. Wenger has no opinion as to whether the respondent suffers from the disease of alcoholism or whether he is presently capable of practicing medicine with reasonable skill and safety. He is of the opinion that, during his hospitalization at St. Mary's, the respondent was not capable of practicing medicine with reasonable skill and safety.

    
    

41. The respondent denies that he is an alcoholic and believes that all of his troubles originated with an incorrect "non-diagnosis" of chronic alcoholism made by a physician's assistant at South Miami Hospital in December 1990.

    During the summer and fall of 1990, he was having marital problems and was 'living life pretty hard.' Although he was drinking two to four drinks per day, he felt that he did not have a problem with alcohol but that he was just not getting enough rest.

    
    

42. The respondent went into the Talbott Recovery System only because Drs. Forman and Goodwin threatened him with the loss of his license to practice medicine. He claims that he was not evaluated when he was in Anchor Hospital, and he believes that the staff at Anchor and Talbott merely accepted the incorrect diagnosis of chronic alcoholism made at South Miami Hospital and forced him to participate in a four-month inpatient treatment program on this basis alone.

    
    

43. He felt he never belonged in the Talbott treatment program, so he lied and made things up in order to progress through the program's twelve steps.

    Specifically, the respondent claims that the January 1991 letter to his partners was written under duress, that his first draft was rejected because he didn't adequately admit his alcoholism, and that the letter he actually sent was essentially dictated to him. He would not have agreed to sign the PRN monitoring contract if it were not a condition of his release from Talbott.

    
    

44. The respondent denies each allegation made by his partners in the confrontation of December 1992: He never took -longer than thirty minutes for lunch; he did not ever leave the diagnostic center unattended or for long periods of time; it was impossible for anyone to have smelled alcohol on his breath because at the time he was drinking no more than one or two beers on Saturday after playing golf. He was furious at the accusations and believes that his partners were trying to force him to retire because they knew he would never again submit to the humiliation and degradation of treatment. From December 1992 until May 1993, when his partners contacted the PRN, he settled back into his old pattern of having two drinks with his friends each evening after work.

    
    

45. The respondent disputed the validity of the examination performed by Dr. Dandiya. According to the respondent, Dr. Dandiya did a very cursory, five- minute physical examination and took no past medical history whatsoever. The only conversation the respondent claimed he had with Dr. Dandiya was to tell him why he was there and to request that he draw blood to test for alcohol. The respondent testified that Dr. Dandiya drew the blood as requested but that he used an alcohol swab when he did so, thus contaminating the blood and ensuring a positive test result.

    
    

46. Dr. Marks likewise did an inadequate psychiatric examination, according to the respondent. The respondent testified that Dr. Marks already had his notes prepared when the respondent arrived, having taken them from the records of his previous hospital admissions and of his time at Talbott. The respondent claims that Dr. Marks spent only fifteen minutes asking him about the things written in his notes; the remaining forty-five minutes of the first visit were spent in the secretary's office taking psychological tests. The respondent told Dr. Marks he thought he had not been evaluated at all and arranged for a second visit. The respondent described the second visit as much like the first, and he insisted that, in the only discussion he and Dr. Marks had, he told Dr. Marks he drank nothing more than an occasional beer.

    
    

47. The respondent admits he was extremely ill when he was admitted to St. Mary's Hospital in August 1994. He concedes that he was drinking at that time but that he really wasn't keeping track of how much he was drinking. He did not think, however, that he was drinking enough to cause hepatitis. The respondent testified that, since his release from the Hanley-Hazelton Center, his alcohol consumption has been "almost" nonexistent. He is aware that he cannot drink without becoming seriously ill.

    
    

48. The respondent has never been reported by a physician or other health care professional or by a patient as impaired on the job as a result of the use of alcohol or otherwise. None of the physicians for whom he has done work have complained that his work was of less than acceptable quality. Because the respondent has not practiced medicine since May 1993, except for a period of about one week in late September 1993, there is no current evidence regarding his ability to practice with reasonable skill and safety.

    
    

49. Alcoholism is a disease characterized by the use of alcohol in an amount excessive for a particular person. This excessive use of alcohol can

    impair a person's ability to work; it can cause physical damage such as liver damage and brain damage manifested as loss of concentration and memory lapses; and it can adversely affect social and interpersonal relationships. The consumption of alcohol need not be compulsive; a person can decide that drinking will be part of his or her life and then continue drinking as a matter of choice even though it is clear that there are adverse effects and deterioration in the ability to function on a day-to-day basis. After a period of time, the consumption of alcohol becomes a pattern, and the person becomes dependent on drinking, both physically and psychologically. One of the classic symptoms of alcoholism is denial, denial of adverse effects on one's life as a result of continued drinking and denial that it would be physically and emotionally healthier to quit drinking. Alcoholism is a chronic, relapsing condition which, if left untreated, will get progressively worse. Alcoholism can only be treated and controlled. It cannot be cured.

    
    

50. The testimony of the respondent, summarized above in paragraphs 41 through 47, is not credible to prove that he is not an alcoholic and that his ability to practice medicine with reasonable skill and safety has never been, is not now, and never will be, affected by his use of alcohol. The respondent accused all of the health care professionals who have diagnosed him as an alcoholic of incompetence, malpractice, and lying; he offered excuses for behavior which his partners considered questionable and denied every allegation they raised in December 1992; he blamed his troubles on conspiracies mounted against him because of greed - the greed of his partners to split his $600,000 annual salary among themselves and the greed of Dr. Goetz and those running state- approved treatment programs to enrich themselves at the expense of professionals like himself, who have been deliberately misdiagnosed as alcoholic. The respondent did not admit to a single fault and even explained away his deteriorated condition in December 1990 as the result of the lack of sufficient rest. Rather than support his assertion that, in spite of his drinking, he is not an alcoholic, this testimony merely confirms the extent of his denial of all signs and symptoms of the adverse effects of his consumption of alcohol. The respondent has shown a consistent pattern of drinking which, since December 1990, has been broken only by the one-year period following his discharge from Talbott in April 1991. He was diagnosed in August 1994 with alcohol-related hepatitis after being admitted to St. Mary's Hospital acutely intoxicated, yet he still drinks alcohol.

    
    

51. The letters of Dr. John J. Purcell are not credible evidence to prove that the respondent is not an alcoholic and that his ability to practice medicine with reasonable skill and safety is not affected by his use of alcohol. At best, this hearsay evidence merely supplements the respondent's self-serving testimony that he is nothing more than a social drinker and that he is being treated unfairly. Nor is the Meninger report sufficient to prove that the respondent is not an alcoholic and that his ability to practice medicine with reasonable skill and safety is not affected by his use of alcohol under the standards recognized by the State of Florida. The staff was equivocal about whether the respondent is an alcoholic, concluding only that there was no present evidence of alcohol abuse. The staff's opinion that the respondent was competent to practice medicine was based on the assessment of his condition in December 1993.

    
    

52. The evidence is clear and convincing that the respondent suffers from the disease of alcoholism. Even though there have been no complaints regarding the quality of his work and no indication that he has been impaired or intoxicated on the job, the respondent has shown extremely poor judgment regarding his consumption of alcohol in personal life. The evidence is clear

    and convincing that the respondent is an impaired physician and cannot practice medicine with reasonable skill and safety unless he abstains completely from the consumption of alcohol. This can be assured only if the respondent successfully completes an approved treatment program and keeps his alcoholism in remission.

    
    

    CONCLUSIONS OF LAW

    
    

53. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. 120.57(1), Fla. Stat.

    
    

54. The Board of Medicine has the authority to take disciplinary action against physicians based on the grounds stated in section 458.331(1), Florida Statutes (1993). 455.225(6), Fla. Stat. Permissible penalties for the violations identified in section 458.331(1) include suspension or revocation of the license to practice medicine, imposition of an administrative fine not to exceed $5,000 for each violation, placement of the physician on probation for a specified period of time and subject to conditions set by the Board. 458.331(2), Fla. Stat.

    
    

55. In the Administrative Complaint, the Agency has requested imposition of penalties including revocation and suspension of the respondent's license to practice medicine. The Agency must, therefore, prove the allegations against him by clear and convincing evidence. 458.331(3), Fla. Stat. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Nair v. Department of Business & Professional Regulation, Board of Medicine, 654 so. 2d 205, 207 (Fla. 1st DCA 1995).

    
    

56. The Agency asks the Board to impose a penalty on the respondent pursuant to section 458.331(1)(s), which provides as grounds for discipline

    
    

    [b]eing unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any type of material or as a result of any mental or physical condition. . . . A licensee or certificate- holder affected under this paragraph shall

    at reasonable intervals be afforded an opportunity to demonstrate that he [or she] can resume

    the competent practice of medicine with reasonable skill and safety to patients.

    
    

57. The Board has a clear mandate to protect the public from the practice of medicine by impaired physicians. The Florida Supreme Court has summarized that responsibility as follows:

    
    

    When a conflict arises between the right of a physician to pursue the medical profession and

    the right of the sovereign to protect its citizenry, it follows that the rights of the physician must yield to the power of the state to prescribe reasonable rules and regulations which will

    protect the people from incompetent and unfit practitioners.

    
    

    The interest of the sovereign in regulating physicians is especially great since physicians

    are in a position of public trust and responsi- bility. Like other professionals, the physician is constantly interacting with the public. As such, mental fitness and emotional stability are essential traits that a physician must possess in order to competently practice medicine in a manner not injurious to the citizenry.

    (Citation omitted).

    * * *

    Section 458.331(1)(s) does not deal with an issue of guilt or innocence. Misconduct and subsequent penalties for that misconduct are not at issue under the statute. What is at issue under the statute is whether a physician is fit to practice medicine with reasonable skill and safety.

    
    

    Boedy v. Department of Professional Regulation, 463 So. 2d 215, 217 (Fla. 1985).

    
    

58. Section 458.331(1)(s) does not require a showing of actual harm to patients or actual failure to practice medicine with reasonable skill and safety. In Major v. Department of Professional Regulation, Board of Medicine,

    531 So. 2d 411 (Fla. 3d DCA 1988), the court held that the Board need not wait for an impaired physician to commit gross malpractice before it acts to protect the public interest by imposing penalties and restrictions on the physician's ability to practice medicine. According to the court in Major, discipline may be imposed pursuant to section 458.331(1)(s) even though a physician "has not, as yet, let her personal problems affect her professional performance." Id. at 414.

    
    

59. The Agency has proven by clear and convincing evidence that the respondent suffers from the disease of alcoholism. The Agency has also proven by clear and convincing evidence that, under the standard set out in Major, the respondent is unable to practice medicine with reasonable skill and safety as a result of his use of alcohol. Additionally, the evidence is clear and convincing that the respondent is not presently abstaining from the use of alcohol.

    
    

60. Rule 59R-8.001, Florida Administrative Code, sets out the disciplinary guidelines which shall be imposed on physicians who have violated the provisions of chapter 458, Florida Statutes. Rule 59R-8.001(2)(s) provides penalties for a physician unable "to practice medicine with skill and safety" under section 488.331(1)(s) ranging "[f]rom probation to denial or indefinite suspension until licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation, and an administrative fine from $250.00 to

    $5,000.00." Given the facts of this case, no deviation from this penalty range is suggested by the mitigating and aggravating circumstances set out in rule 59R-8.001(3)

    
    

61. In determining the appropriate penalty to impose in this case, it is significant that the most recent information regarding the respondent's medical condition establishes that, in August 1994, he was admitted to St. Mary's Hospital suffering from acute intoxication and was diagnosed with alcohol- related hepatitis. Although the respondent recognizes that the use of alcohol is, for him, life-threatening, his admission that his current consumption of alcohol is "almost nonexistent" indicates that he is not in abstinence.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order

finding that James P. Bowman, M.D., is unable to practice medicine with reasonable skill and safety to patients by reason of the use of alcohol and

1. Suspending his medical license until he appears before the Board and demonstrates that he is able to resume the practice of medicine with reasonable skill and safety;

   
   

2. Requiring that this demonstration be supported, at a minimum, by satisfactory mental and physical evaluations performed by experts approved by the Board and by evidence of successful completion of an approved alcohol rehabilitation program;

   
   

3. Placing Dr. Bowman on probation for five (5) years subject to terms and conditions set by the Board to ensure his continued ability to practice medicine with reasonable and safety, if or when the terms of the suspension are satisfied;

   
   

4. Imposing an administrative fine of $3,000.00.

DONE AND ENTERED this 28th day of August 1995, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 28th day of August 1995.

ENDNOTES

1/ The original petitioner was the Department of Business and Professional Regulation. The Agency was substituted as a matter of law upon the transfer of the Board of Medicine.

2/ The Physician's Recovery Network is part of the Florida Medical Association's Physicians Resource Network/The Impaired Practitioners Program of Florida. The PRN provides intervention, referral, and monitoring services for health care professionals in Florida who suffer from chemical dependency, including alcoholism, or mental or emotional illness.

3/ Alcohol is detoxified at the rate of one ounce per hour. The blood and urine of a person consuming six one-ounce drinks would, therefore, be clear within approximately six hours.

APPENDIX

The following are my specific rulings on petitioner's Proposed Findings of Fact.

Paragraphs 1 through 5: Adopted in substance in paragraphs 1, 2, 4 through

6, 8, and 10 of the Recommended Order.

Paragraph 6: The proposed finding of fact in the first sentence is adopted as modified in paragraph 11 of the Recommended Order to correctly reflect the evidence. The remaining sentence is adopted in substance in paragraph 12 of the Recommended Order.

Paragraph 7: Adopted in substance in paragraphs 16 through 21 of the Recommended Order.

Paragraph 8: Adopted as modified in paragraph 36 of the Recommended Order to correctly reflect the evidence.

Paragraphs 9 and 10: Adopted in substance in paragraphs 25, 30, 35, and 36 of the Recommended Order.

Paragraphs 11 through 13: Adopted in substance in paragraphs 39 and 40 of the Recommended Order except where unnecessary or subordinate.

Paragraph 14: Adopted in substance, though with some modifications, in paragraph 49 of the Recommended Order.

Paragraph 15: The proposed findings of fact in the first two sentences are rejected as not supported by the evidence except that the proposed finding that the respondent admitted consuming alcohol before his psychiatric examination is adopted in substance in paragraph 33 of the Recommended Order. The proposed finding of fact in the third, fourth, and fifth sentences are adopted in substance in paragraph 28 of the Recommended Order. The proposed finding of fact in the last sentence is rejected as not accurately reflecting the testimony. See paragraph 40 of the Recommended Order.

Paragraphs 16 and 17: Adopted in substance in paragraphs 47 and 27 of the Recommended Order.

Paragraph 18: Rejected as unnecessary or subordinate. Paragraph 19: Rejected as not supported by the evidence.

Paragraph 20: Adopted in substance in paragraphs 16 and 17 of the Recommended Order except that the proposed finding stated in the last sentence is rejected as not supported by the evidence.

Paragraphs 21 through 24: Adopted in substance in paragraphs 33, 19, 41, 47, and 52 of the Recommended Order.

COPIES FURNISHED:

Joseph S. Garwood, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Suite 60

Tallahassee, Florida 32399-0792

Roy R. Watson, Esquire

ADAMS, COOGLER, WATSON & MERKEL, P.A.

Nationsbank Tower, Suite 1600 1555 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33402-2069

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0770

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

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: 94-001247

Orders for Case No: 94-001247