STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Petitioner, )
)
vs. ) CASE NO. 94-2375
)
STEPHEN L. WATSON, M. D., )
)
Respondent. )
)
RECOMMENDED ORDER
On August 24, 1994, a formal administrative hearing was held in this case in Lakeland, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Alex D. Barker, Esquire
Elaine Lucas, Esquire
Agency for Health Care Administration 7960 Arlington Expressway, Suite 230
Jacksonville, Florida 32211-7466
For Respondent: John A. Naser, Esquire
1401 South Florida Avenue, Suite 201
Lakeland, Florida 33802 STATEMENT OF THE ISSUES
The issues in this case are whether the Board of Medicine should discipline the Respondent on the following charges: Count I, that he inappropriately prescribed legend drugs (Didrex, Tenuate, and Tenuate Dospan) other than in the course of his professional practice, in violation of Section 458.331(1)(q), Fla. Stat. (1993); and, Count II, that he 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, in violation of Section 458.331(1)(t), Fla. Stat. (1993). Specifically, it was alleged that the named legend drugs which the Respondent prescribed were inappropriate due to the patient's hypertension; that he prescribed them notwithstanding his awareness of precautions regarding those prescriptions; that he failed to recognize the patient's progressive dependency on amphetamine-type medications; and that he failed to refer the patient to a specialist.
PRELIMINARY STATEMENT
The Administrative Complaint against the Respondent in this case was filed on February 3, 1994. The Respondent requested a formal administrative hearing, and on April 29, 1994, the matter was referred to the Division of Administrative
Hearings (DOAH), where it was given DOAH Case No. 94-2375. Final hearing was scheduled for August 24, 1994.
At final hearing, the Agency for Health Care Administration (AHCA) called four witnesses (including two experts) and had Petitioner's Exhibits 1 through 7 admitted in evidence. The Respondent called three witnesses (including two experts), testified in his own behalf, and had Respondent's Exhibits 1 through 5 admitted in evidence.
At the end of the hearing, the AHCA ordered the preparation of a transcript, and the parties requested 14 days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on September 12, making proposed recommended orders due on September 26, 1994.
Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 94-2375.
FINDINGS OF FACT
The Respondent, Stephen L. Watson, M.D., has been practicing medicine in Lakeland, Florida, since 1945. Since 1950, he has been board-certified in obstetrics and gynecology. Until this case, he has not been the subject of any Board of Medicine disciplinary proceeding. He recently closed his practice of medicine due to his own poor health.
The Respondent saw B. D., as a gynecology patient, for the first time in December, 1983. She was 33 years old at the time and was obese, weighing 184 pounds and standing only approximately five feet, four inches. She also had borderline high blood pressure, at 140/90.
On the patient's second visit in July, 1984, the Respondent discussed her weight and gave her a book on diet and weight loss entitled, "The Lighter Side of Life, the Doctor's Program that Really Works." He discussed the contents of the book with her, emphasizing certain parts of it. He also prescribed a month's supply of an appetite suppressant called Fastin, to be taken in conjunction with the diet recommendations, along with a diuretic.
The patient's next visit was a weight conference on January 2, 1987. On this visit the patient weighed 212; her blood pressure was 140/90. The Respondent again discussed weight and diet with the patient and prescribed a month's supply of another appetite suppressant called Didrex, to be taken in conjunction with the diet recommendations, along with a diuretic.
Didrex contains the anorectic agent benzphetamine hydrochloride. It is a sympathomimetic amine with pharmacologic activity similar to the prototype drugs of this class used in obesity, the amphetamines. Actions include some central nervous system stimulation and elevation of blood pressure. Didrex is contraindicated in patients with moderate to severe hypertension, and caution is to be exercised in prescribing amphetamines for patients with even mild hypertension.
At the visit on January 2, 1987, it also was arranged that the Respondent would have blood work done on January 6, a pelvic examination on January 7, and another weight conference on January 29, 1987. As often would happen during the long doctor-patient relationship, the patient missed all three appointments and did not request a refill of her medications.
The patient's next visit was for another weight conference on February 10, 1987. She had lost 12 pounds (down to 200), and her blood pressure reading was down to 130/88. The Respondent's course of treatment seemed to be effective. The Respondent prescribed another month's supply of Didrex, to be taken in conjunction with the diet recommendations, along with a diuretic.
Ten days later, the patient came in complaining of "nerves" after taking her medications. The Respondent discontinued the Didrex and the diuretic and scheduled the patient for another weight conference for March 10, 1987.
The patient missed the March 10, 1987, appointment as well as the next two rescheduled appointments, and she did not request a refill of her medications.
Finally, the patient kept the third rescheduled appointment for a weight conference, for May 6, 1987. By this time, the patient's weight was back up to 208. Her blood pressure reading was 120/80. The Respondent prescribed a month's supply of another appetite suppressant called Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic.
The patient missed her weight conference scheduled for June 3, 1987, and did not request a refill of her medications.
The patient kept her rescheduled appointment for a weight conference, for June 11, 1987. This time, her weight was back down, to 197, and her blood pressure reading was 120/80. The Respondent's course of treatment seemed to be effective. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic.
The patient again missed her next scheduled weight conference, for July 9, 1987, and did not request a refill of her medications. The patient kept her rescheduled appointment for a weight conference, for July 13, 1987. This time, her weight was down further, to 187, and her blood pressure reading again was 120/80. The Respondent's course of treatment continued to seem to be effective. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic.
The patient's next weight conference was on August 17, 1987. Her weight was down a little more, to 183.5, and her blood pressure reading remained at 120/80. The Respondent's course of treatment continued to seem to be effective, although the patient's rate of weight loss was decreasing. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, but discontinued the diuretic apparently due to a bladder problem.
The patient missed her next scheduled weight conference, for September 15, 1987, and did not request a refill of her medications.
The patient's next rescheduled weight conference was on October 9, 1987. Her weight was up a little, to 184.75. Her blood pressure reading again was 120/80. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic.
The patient missed her next scheduled weight conference, for November 6, 1987, and did not request a refill of her medications.
The patient's next rescheduled weight conference was on December 7, 1987. Her weight was down a little, to 183. Her blood pressure reading again was 120/80. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, along with a diuretic.
The patient missed her next scheduled weight conference, for January 5, 1988, and did not request a refill of her medications.
The patient's next rescheduled weight conference was on February 18, 1988. Her weight was up a little, to 187.5. Her blood pressure reading was 130/80. The Respondent prescribed a month's supply of another appetite suppressant called Tenuate Dospan, to be taken in conjunction with the diet recommendations, along with a diuretic.
Tenuate Dospan contains the anorectic agent diethylpropion hydrochloride. Like Didrex, it is a sympathomimetic amine with some pharmacologic activity similar to that of the prototype drugs of this class used in obesity, the amphetamines. Actions include some central nervous system stimulation and elevation of blood pressure. It is contraindicated in patients with severe hypertension, and caution is to be exercised in prescribing it for any patient with hypertension.
The Respondent did not see the patient again for weight control, or prescribe any more medication, until May 3, 1988, when the patient was seen for bladder problems. Her weight was down a little, to 181.5, and her blood pressure reading was 120/80. The Respondent prescribed another month's supply of Ionamin, to be taken in conjunction with the diet recommendations, but discontinued the diuretic again apparently due to a bladder problem. The patient preferred Tenuate Dospan, and the Respondent changed the prescription to another month's supply of Tenuate Dospan.
The patient missed the next two conferences, scheduled for August 8 and rescheduled for August 9, 1988, and did not request a refill of her medications. She did not see the Respondent or get any more medications from him until a weight conference on December 2, 1988. Her weight was up a little, to 185. Her blood pressure reading was 130/80. The Respondent prescribed a month's supply of Tenuate Dospan, to be taken in conjunction with the diet recommendations, along with a diuretic.
The patient missed her next four scheduled appointments and did not request a refill of her medications. She did not see the Respondent or get any more medications from him until a blood pressure conference on June 28, 1989. Her weight was up significantly, to 200, and her blood pressure reading was up significantly, to 140/100. Although the patient still was relatively young (approximatly 39), and the Respondent believed there was a causal connection between the patient's weight and blood pressure, the Respondent prescribed only a month's supply of Enduron, a medication for hypertension.
The patient missed her next two scheduled blood pressure conferences and did not request a refill of her blood pressure medications, or request any other medications. She did not see the Respondent or get any more medications from him until she saw him for blood in the urine on October 3, 1989, and had a urinalysis and conference. At the time, her weight was up a little more, to 203, and her blood pressure reading was 140/90. The Respondent prescribed an antibiotic and, for reasons not apparent from the evidence, a month's supply of a mild antidepressant, called Elavil.
On or about October 23, 1989, the patient telephoned for a refill of her Enduron prescription, which was about to run out, and the Respondent prescribed another month's supply.
The patient again missed her next weight conference scheduled for October 30, 1989, and did not request any other medications. She did not see the Respondent or get any more medications from him until a rescheduled weight conference on December 11, 1989. By this time her weight was up to 217, and her blood pressure reading was 140/98.
The Respondent was aware that amphetamine-like appetite suppressants should be used with caution with patients having moderately high blood pressure, as the patient had by December 11, 1989. But he also continued to believe that there was a causal connection between the patient's weight and blood pressure and that, given the patient's relative youth and the past success with the treatment, it was worth trying appetite suppressants, in conjunction with diet recommendations, to help reduce both the patient's weight and her blood pressure. He prescribed a month's supply of Tenuate, to be taken in conjunction with the diet recommendations, along with a diuretic. (Tenuate is essentially the same drug as Tenuate Dospan but is shorter lasting.)
On January 5, 1990, the patient telephoned the Respondent with a complaint of "nerves." The Respondent prescribed another month's supply of Elavil, with authority for two refills.
The patient's next weight conference was on January 24, 1990. Her weight was up a little more, to 220, and her blood pressure reading was 160/98. At that point, it seemed that perhaps the Tenuate Dospan was not effective. Although there could be other explanations why the patient was not losing weight, and it was possible that all appetite suppressants had become ineffective, the Respondent decided to switch the patient to Didrex, which seemed to have been effective in the past, and prescribed a month's supply, to be taken in conjunction with the diet recommendations, along with a diuretic. He also changed her blood pressure medication to Wytensin.
The patient missed her next weight conference, scheduled for January 31, 1990, and did not request any additional medications. The patient did not see the Respondent again, or get any additional medications from him, until March 21, 1990, when she saw him to get a letter for employment purposes certifying that she was disease-free. Her weight was up to 226, and her blood pressure was 164/96. The Respondent prescribed another month's supply of Didrex, to be taken in conjunction with the diet recommendations, along with a diuretic and another month's supply of Wytensin.
The patient did not see the Respondent again, or get any additional medications from him until August 28, 1991, when she saw him to complain of blood in the urine. At this time, her weight was 234, and her blood pressure reading was 140/90. In addition to treating the urine problem, the Respondent prescribed a month's supply of Tenuate, to be taken in conjunction with the diet recommendations, along with a diuretic and a month's supply of Wytensin.
The patient missed her appointment for a pelvic examination on September 5, 1991, and did not see the Respondent, or get any additional medications from him until she went to a weight conference on December 11, 1989. Her weight was 234.5, and her blood pressure reading was 140/94. The Respondent prescribed a month's supply of Tenuate, to be taken in conjunction
with the diet recommendations, along with a diuretic. (It is not clear from the evidence why no blood pressure medication was prescribed.)
The patient missed her appointment for a pelvic exam on December 17, 1991, and missed scheduled weight conferences for February 10, 11, and 19, 1992. She did not request any additional medications during this time.
The patient made her next scheduled appointment on March 16, 1992, when the Respondent discussed her weight, blood pressure and complaint of headaches. Both her weight and her blood pressure were at their highest: weight, 237; blood pressure reading, 150/110.
At this point, there was a real question whether the appetite suppressants still were effective in controlling the patient's weight and thereby helping reduce the patient's blood pressure. On the other hand, the patient continued to miss weight conferences and not follow through on the Respondent's instructions, and it was not clear whether the patient ever had followed the Respondent's weight control treatment long enough to give it a fair chance to work. The patient's blood pressure now was moderately to severely high; on the other hand, she still was only about 42 years of age, and her weight still could have been contributing to her high blood pressure. Nonetheless, the Respondent decided to prescribe only Wytensin on March 16; he also scheduled a complete physical for March 20, 1992.
On March 20, 1992, the Respondent had the patient undergo a complete physical. Her weight still was 237, and her blood pressure reading was 160/120. He switched her blood pressure medication to Accupril and decided not to prescribe any appetite suppressants at that time. He scheduled the patient for a weight conference on April 3, 1992.
On April 3, 1992, the patient's weight still was 237, but her blood pressure reading was 150/110. Although the patient's blood pressure still was moderately to severely high, the Respondent decided to try an appetite suppressant to reduce her weight in the hopes of, together with the blood pressure medication, effecting a lasting reduction in her blood pressure. He prescribed a month's supply of Tenuate Dospan, to be taken in conjunction with the diet recommendations, along with a diuretic.
On April 14, 1992, the patient telephoned the Respondent to report that her blood pressure still was up and that she continued to suffer from headaches. The Respondent decided that it was time to refer the patient to a specialist in internal medicine and made an appointment for her.
The patient missed her next scheduled weight conference on April 16, 1992, and missed the appointment with the internist which the Respondent had scheduled for her. She never saw the internist.
The patient's next appointment was on May 6, 1992. The Respondent discussed the patient's weight and her hypertension. Her weight was 236, and her blood pressure reading was down to 144/100. The Respondent decided to prescribe a month's supply of Tenuate, to be taken in conjunction with the diet recommendations, along with a diuretic.
The patient overdosed on a pain medication (not the appetite suppressant) and was hospitalized on June 4, 1992. She missed the next scheduled weight conference on June 15, 1992. She did not request any additional medications.
The patient's next appointment with the Respondent was on June 18, 1992. She weighed 230, and her blood pressure reading was 140/110. The Respondent prescribed only Accupril and an iron supplement.
The Respondent only saw the patient once more, on July 17, 1992, for gynecological problems, and referred the patient to a specialist. He did not prescribe any medications. The patient's blood pressure was 130/100. Her weight was not recorded.
The evidence does not reflect that the patient, B. D., grew progressively dependent on the appetite suppressants the Respondent prescribed for her. There was no evidence that the patient ever asked for a refill or new prescription early. She often missed scheduled appointments, resulting in gaps of time between prescriptions when the patient presumably had no appetite suppressants available to her. There also were extended periods of time between visits during which time the patient presumably had no appetite suppressants available to her.
Some reputable physicians now seriously question the use of appetite suppressants. There is some evidence that patients lose as much weight and maintain as much weight loss without them as with them. The trend in the late 1980s and early 1990s has been to treat patients for obesity with behavior modification (essentially, diet and exercise) only. But there is no evidence that it is below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances to treat patients for obesity by prescribing appetite suppressants in conjunction with diet recommendations.
It is true that the Respondent prescribed appetite suppressants for longer periods of time than recommended in the medical and pharmaceutical literature. The literature recommends using appetite suppressants only during the early weeks of a weight reduction program. The reasons are twofold and related: first, the patient generally builds a tolerance to the appetite suppressant, making them less effective; second, the patient can become dependent on them. The goal is to use appetite suppressants to begin reducing caloric intake for initial weight loss, while changing eating habits for long term reduction in caloric intake and weight.
The problem confronting the Respondent in this case lay in the nature of the patient's noncompliance. She would begin the program but not follow it or continue with it for long. When she returned to the Respondent after a long hiatus, it was like starting the program over again. The evidence did not prove that it was below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances for the Respondent to repeatedly restart his treatment for obesity, namely by prescribing appetite suppressants in conjunction with diet recommendations.
There were occasions when the Respondent prescribed an appetite suppressant when the patient's blood pressure reading was high. According to the medical and pharmaceutical literature and the expert medical testimony, caution should be exercised in prescribing these medications for patients with high blood pressure. But the exercise of that caution is a matter of medical judgment, based on an overall knowledge and understanding of the patient and circumstances involved.
Only once, on April 3, 1992, did the Respondent prescribe an appetite suppressant (Tenuate Dospan) when the patient's blood pressure reading was so high (150/110) as to clearly contraindicate the use of the appetite suppressant. On all other occasions, the patient's blood pressure would be considered mildly or moderately high, requiring the Respondent to exercise caution, which he did. In all cases, the Respondent believed that there was a causal connection between the patient's weight and blood pressure and that, given the patient's relative youth and the past success with the treatment, it was worth trying appetite suppressants, in conjunction with diet recommendations, to help reduce both the patient's weight and her blood pressure. Although some physicians would disagree with the Respondent's medical judgments, except for April 3, 1992, it was not proven that the Respondent's medical judgment in this case fell below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. However, it is found that it was below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances for the Respondent to prescribe Tenuate Dospan on April 3, 1992.
It was not proven that it was below the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances for the Respondent not to refer the patient to a specialist for hypertension before April 14, 1992. The first evidence of severe hypertension appeared on her visit on March 16, 1992. But the Respondent had not seen the patient since December, 1991, due to missed appointments, and it was reasonable at that point for the Respondent not to refer immediately. It could be argued that he should have referred the patient after one of the next two visits, but the delay until April 14, 1992, was fairly short. It was not the Respondent's fault that the patient did not keep the appointment with the specialist which he made for her.
It should be noted that the patient does not complain about the level of care and treatment given by the Respondent. Nor is there any evidence that the Respondent's care and treatment harmed the patient. Apparently, while the patient was hospitalized for overdosing on pain medication unrelated to the Respondent's care and treatment, the patient's medical records were brought to the attention of the predecessor of the AHCA, and it appeared to that agency (and to the AHCA) that the Respondent was guilty of worse practice of medicine than ultimately was proven in this case.
CONCLUSIONS OF LAW
Section 458.331, Fla. Stat. (1993), provides in pertinent part:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(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.
* * *
(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. The board shall give great weight to the provisions of s.
766.102 when enforcing this paragraph. As used
in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in
excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treat- ment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances," shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed
to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.
* * *
When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:
Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $5,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.
Issuance of a letter of concern.
Corrective action.
Refund of fees billed to and collected from the patient.
In determining what action is appropriate, the board must first consider what sanctions are
necessary to protect the public or to compensate the patient. Only after those sanctions have
been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the physician. All costs associated with compliance with orders issued under this subsection are the obligation of the physician.
In any administrative action against a physician which does not involve revocation or suspension of license, the division shall have
the burden, by the greater weight of the evidence,
to establish the existence of grounds for disciplinary action. The division shall establish grounds for revocation or suspension of license by clear and convincing evidence.
As found, the Respondent was guilty of a single violation, on April 3, 1992, of Section 458.331(1)(t), which also resulted in a technical violation of Section 458.331(1)(q), Fla. Stat. (1993).
Under F.A.C. Rule 59R-8.00 (formerly 61F6-20): the range of penalties for a violation of Section 458.331(1)(q) is from a one year probation to revocation, and a fine from $250 to $5,000; the range of penalty for a violation of Section 458.331(1)(t) is from a two year probation to revocation, and a fine from $250 to $5,000. However, the rules also require that consideration be given to both aggravating and mitigating factors, and those factors justify a penalty below the recommended range in this case.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent guilty of a single violation, on April 3, 1992, of Section 458.331(1)(t), which also resulted in a technical violation of Section 458.331(1)(q), Fla. Stat. (1993); (2) requiring the Respondent to notify the Board or the AHCA if he reopens his practice of medicine; (3) placing the Respondent on probation on appropriate terms in the event the Respondent reopens his practice; and (4) fining the Respondent $500.
RECOMMENDED this 15th day of November, 1994, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 15th day of November, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2375
To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
1.-8. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven.
Rejected as not proven. (The Respondent testified.)
Accepted but subordinate and unnecessary.
Accepted. First sentence, subordinate to facts contrary to those found; second sentence, subordinate to facts found.
Rejected as not proven that the patient's hypertension was severe. Otherwise, accepted but subordinate to facts contrary to those found.
14.-19. Accepted and incorporated.
Rejected as not proven, except for patients with severe hypertension.
First sentence, rejected as not proven. (He believed it permissible because the patient's blood pressure was not stable.) Second sentence, accepted but subordinate to facts contrary to those found. Third sentence, accepted but subordinate to facts contrary to those found, and unnecessary.
First sentence, accepted but subordinate to facts contrary to those found. Second sentence, rejected as not proven.
Accepted. Subordinate to facts found.
Accepted but subordinate to facts contrary to those found.
First sentence, accepted but subordinate to facts contrary to those found. Second sentence, rejected as not proven as to Didrex after 1990; otherwise, accepted and incorporated.
First sentence, accepted and incorporated. Second sentence, accepted but subordinate to facts contrary to those found, and unnecessary. (The AHCA did not charge inadequate records.)
27.-29. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as not proven.
Accepted but subordinate to facts contrary to those found.
Accepted and incorporated to the extent not subordinate or unnecessary. (The question is not whether a referral would have been appropriate but rather whether not referring was inappropriate.)
Accepted and incorporated.
Rejected as not proven that referral was required in 1984 or that the patient's weight and blood pressure did not respond to treatment before 1988. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. (The question is not whether a referral would have been appropriate but rather whether not referring was inappropriate.)
Accepted but subordinate and unnecessary.
Rejected. They knew it to the extent that it is the same as for an internist.
37.-38. Accepted but subordinate and unnecessary.
39. Rejected as not proven and as contrary to the facts found.
Respondent's Proposed Findings of Fact.
1.-4. Accepted and incorporated to the extent not subordinate or unnecessary.
5. Accepted but subordinate and unnecessary.
6.-20. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as contrary to the greater weight of the evidence.
Accepted but subordinate and unnecessary.
23.-28. Accepted and incorporated to the extent not subordinate or unnecessary.
Other than evidence that she may have become nervous on occasion from the appetite suppressants, accepted and incorporated to the extent not subordinate or unnecessary.
Accepted. The second occasion is irrelevant, having occurred after the events in issue in this case. The first is accepted and incorporated to the extent not subordinate or unnecessary.
31.-32. Accepted and incorporated to the extent not subordinate or unnecessary.
Rejected as contrary to the greater weight of the evidence.
Accepted and incorporated.
Accepted but subordinate and unnecessary. 36.-37. Accepted and incorporated.
38.-40. Accepted. Subordinate to facts found.
First sentence, accepted and incorporated. Second sentence, accepted but subordinate and unnecessary.
Accepted (that it is not necessarily inappropriate) and incorporated.
Accepted. First two sentences, incorporated; second, subordinate to facts found.
Accepted. Subordinate to facts found.
Rejected as to April 3, 1992, as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted but subordinate to facts found.
46.-47. Accepted and incorporated.
48. Rejected as to April 3, 1992, as contrary to facts found and to the greater weight of the evidence. Otherwise, accepted and incorporated.
COPIES FURNISHED:
Alex D. Barker, Esquire Elaine Lucas, Esquire Agency for Health Care
Administration
7960 Arlington Expressway
Suite 230
Jacksonville, Florida 32211-7466
John A. Naser, Esquire 1401 South Florida Avenue Suite 201
Lakeland, Florida 33802
Dr. Marm Harris
Executive Director, Board of Medicine Agency for Health Care Administration Northwood Centre
1940 North Monroe Street Tallahassee, Florida 32399-0792
Harold D. Lewis, Esquire
Agency for Health Care Administration The Atrium, Suite 301
325 John Knox Road Tallahassee, Florida 32303
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit to the Board of Medicine written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Board of Medicine concerning its rules on the deadline for filing exceptions to this Recommended Order.
| Issue Date | Proceedings |
|---|---|
| Feb. 28, 1995 | Final Order filed. |
| Nov. 15, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 8-24-94. |
| Nov. 15, 1994 | Order Determining Expert Witness Fee sent out. |
| Oct. 28, 1994 | (Petitioner) Motion to Determine Expert Witness Fee filed. |
| Sep. 26, 1994 | Petitioner's Proposed Recommended Order filed. |
| Sep. 23, 1994 | Respondent's Proposed Recommended Order filed. |
| Sep. 12, 1994 | Transcript of Proceedings filed. |
| Aug. 22, 1994 | (Respondent) Notice of Filing; Deposition of Dennis R. Brightwell filed. |
| Aug. 15, 1994 | Petitioner's Prehearing Statement w/Exhibits A-C & cover ltr filed. |
| Aug. 15, 1994 | Letter to Wendy Deckerhoff from Carolyn Glenn (re: request for subpoenas) filed. |
| Aug. 15, 1994 | Respondent's Pre-Hearing Statement filed. |
| Aug. 15, 1994 | Respondent's Prehearing Statement w/Exhibit-A filed. |
| Aug. 12, 1994 | (Petitioner) Notice of Co-Counsel filed. |
| Aug. 11, 1994 | Petitioner's Motion to Take Official Recognition filed. |
| Aug. 10, 1994 | (Respondent) Notice of Taking Deposition; Deposition Subpoena; Cover Letter filed. |
| Aug. 09, 1994 | Petitioner's First Set of Request for Admissions, Request for Production of Documents and Interrogatories to Respondent filed. |
| Jul. 22, 1994 | Petitioner's Response to Respondent's Request to Produce filed. |
| Jul. 18, 1994 | (Respondent) Request to Produce filed. |
| Jul. 12, 1994 | (Petitioner) Notice of Serving Petitioners First Set of Request for Admissions, Request for Production of Documents And Interrogatories To Respondent filed. |
| Jun. 08, 1994 | Prehearing Order sent out. |
| Jun. 08, 1994 | Notice of Hearing sent out. (hearing set for 8/24/94; 9:00am; Lakeland) |
| May 26, 1994 | (Respondent) Response to Initial Order filed. |
| May 18, 1994 | (Petitioner) Unilateral Response to Initial Order filed. |
| May 09, 1994 | Initial Order issued. |
| Apr. 29, 1994 | Agency referral letter; Administrative Complaint; Election of Rights;Explanation of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 22, 1995 | Agency Final Order | |
| Nov. 15, 1994 | Recommended Order | Petitioner proved one violation for prescribing amphetamine-like appetite suppressant to patient with high blood pressure, but no evidence of progresive dependence. |
