STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 94-3752

)

GEORGE J. DETKO, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on December 7, 1994, in Vero Beach, Florida.

APPEARANCES

For Petitioner: Alex D. Barker, Esquire

Agency for Health Care Administration 7960 Arlington Expressway, Suite 230

Jacksonville, Florida 32211

For Respondent: Joseph L. Mannikko, Esquire

215 South Federal Highway, Suite 100 Stuart, Florida 34994

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

On December 20, 1993, Petitioner issued an Administrative Complaint alleging that Respondent had violated certain statutes regulating his conduct as a physician, and Respondent timely requested a formal hearing regarding the allegations contained in that Administrative Complaint. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.

Petitioner presented the testimony of Peter G. Wernicke, M.D.; Thomas Joseph Brennan, M.D.; Jacqueline Cammarene; Haynes A. McDaniel, Jr.; and Darryl

1. Fruth. Respondent George J. Detko, Jr., M.D., testified on his own behalf and presented the testimony of Darryl D. Fruth and, by way of post-hearing depositions, the testimony of Abraham J. Layon, M.D.; and Louis Brady, M.D. Additionally, Petitioner's Exhibits 1-6 were admitted in evidence.

   Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent has been a physician licensed to practice in the State of Florida, having been issued license number ME 0025685. For 18 years prior to the event complained of herein, Respondent worked at Indian River Memorial Hospital, where he practiced as an anaesthesiologist.

      
      

   2. Also prior to the event complained of herein, Respondent was a tri- athlete, training in swimming, biking, and running. During the summer of 1992 he competed in five or six tri-athalons and did quite well in his age class. Respondent was also a snow skier. In accordance with his physical fitness values, Respondent does not drink alcoholic beverages or smoke cigarettes. He is also a vegetarian.

      
      

   3. Peter G. Wernicke is an orthopedic surgeon in the Vero Beach area. After arriving there, he and Respondent became social friends and went on ski trips together. He also became Respondent's treating physician, caring for Respondent when Respondent suffered broken bones, strains, and sprains as a result of his sporting activities.

      
      

   4. In early winter of 1992 Respondent seriously injured his knee while snow skiing. Respondent discussed his need for surgery with Wernicke after Respondent returned to the Vero Beach area. Wernicke was insistent that he perform Respondent's knee surgery, but Respondent wanted to have the surgery performed by Dr. Richard Steadman in Vail, Colorado, since he believed that Dr. Steadman was probably the best in the world at taking care of that particular kind of knee injury. Wernicke then insisted that Respondent allow Wernicke to perform the knee surgery with Respondent awake, and once the knee was opened up, Wernicke and Respondent would look at it and decide whether it was something Wernicke was able to take care of or if the knee should be closed and Respondent would then go to whomever he wanted to have the surgery performed. Respondent would not agree to that approach since he well understood that opening the knee twice would double Respondent's risk of infection in that injured knee. Up to the time that Respondent left to travel to Vail for his knee surgery, Wernicke maintained that he was not giving Respondent his blessing for having the surgery performed by someone else.

      
      

   5. Respondent went to Vail and had Dr. Steadman perform the surgery in early December of 1992. Respondent remained in Vail post-operatively undergoing physical therapy which commenced within hours of surgery being completed to increase his chances of obtaining full range of motion with that knee by keeping it moving and preventing scarring.

      
      

   6. Respondent returned to Vero Beach on December 13 and returned to work the next morning, working a full shift that day. After his shift was over, he drove himself to Orlando for a meeting. While in Orlando, Respondent began to have very severe pain and swelling in his knee. He drove back to Vero Beach, arriving at his home at approximately 9:30 p.m.

      
      

   7. Upon his arrival, he telephoned Wernicke, told Wernicke he was in a great deal of pain, and begged Wernicke to help him by meeting him at the hospital and looking at Respondent's knee. Wernicke told Respondent that he

      would not go to the hospital to meet Respondent, that Respondent should elevate his knee and apply ice, and then see Wernicke in the morning.

      
      

   8. Respondent elevated his leg and applied ice for the next few hours. By approximately midnight the pain had become "absolutely excruciating," unlike any Respondent had experienced with all of his broken bones and other sports injuries. Although Respondent's tolerance for pain was high enough that he had gone through the surgery performed by Dr. Steadman without pain pills and had tolerated getting on an exercise bike 12 hours after that surgery, Respondent knew that he could no longer endure the pain, that he had a serious problem with his post-operative knee, and that he needed to get help immediately.

      
      

   9. Respondent got himself up with crutches and got in the car to drive himself to the emergency room. While driving, he telephoned the emergency room at Indian River Memorial Hospital and told the staff he was on his way there and asked the name of the orthopedist who was on call. He was advised that Dr. Wernicke was not only on call, but was present in the emergency room at that moment. Respondent told the emergency room staff to tell Wernicke to wait for him.

      
      

   10. Respondent then called the operating room at Indian River Memorial Hospital and asked if an anaesthesiologist were there so he could get something to relieve his pain. He was told that Dr. Brennan had just finished with surgery and had taken the patient to the intensive care unit. Respondent then asked for two things: (1) to have Dr. Brennan go to the emergency room to take care of Respondent and (2) to bring Respondent's anaesthesia cart to the emergency room. The operating room staff agreed.

       
       

   11. Respondent's requests resulted from his experience with that hospital's emergency room staff and procedures. He knew he needed medication for his knee and for his pain. He knew that Dr. Brennan was not employed by the hospital and did not have his own anaesthesia cart there. He knew that the emergency room staff were notoriously slow in responding to patient needs or doctor requests. Therefore, over the years, Respondent had learned that whenever he was called to the emergency room, the patient was better served if Respondent took his own anaesthesia cart and supplies with him.

       
       

   12. As a result of his telephoning ahead, Respondent's arrival was expected. Dr. Wernicke waited for him. Someone took Respondent's anaesthesia cart to the emergency room and placed it next to a stretcher. Dr. Brennan was paged and told that Respondent needed him in the emergency room, and Dr. Brennan went to the emergency room to assist his colleague.

       
       

   13. When Brennan got there, Respondent had not yet arrived, but Wernicke was present. Brennan told Wernicke he was there to help with Respondent. For whatever reason, Wernicke told Brennan that Brennan was not needed and told him to leave. Before leaving the emergency room, Brennan told Wernicke that if he were needed he would be nearby in the intensive care unit and to please summon him.

       
       

   14. Respondent arrived at the hospital emergency room on crutches. The emergency room was currently under construction and had no dividing walls or partitions so that it was simply one room in which everyone could see everything occurring. There were no patients in the emergency room when Respondent arrived, but there were three or four nurses and the emergency room doctor at the nurses' station.

   15. Respondent went to the nurses' station to be admitted. He was told that he should wait in the lobby and he would be called when they were ready to begin the admission process. Respondent refused to do that, told them he was in excruciating pain, and insisted that he be given the emergency room release form and financial responsibility form to sign and be taken to one of the emergency room stretchers. He was given the forms to sign, which he did, and he was then escorted to the stretcher next to his anaesthesia cart. For the remainder of his time in the emergency room, Respondent remained on that stretcher which was no more than 30 feet from the nurses' station.

       
       

   16. No chart for his emergency room visit was prepared by the hospital personnel. Further, no one took his vital signs; no one took his blood pressure; no one asked what his problem or complaints were which caused his visit; and no one asked whether Respondent had any allergies or had recently eaten.

       
       

   17. Respondent lay on the stretcher waiting for Wernicke to return to the emergency room for approximately five minutes. When Wernicke came in, he was wearing a big smile. He remarked to Respondent that Wernicke could see that Respondent had a problem with his knee. Wernicke then gave one swipe across Respondent's knee with an alcohol swab and prepared to jab an 18 gauge needle into the knee to aspirate it, i.e., to drain the fluid. Respondent became terrified and told Wernicke to stop.

       
       

   18. Respondent's terror was caused by two fears. First, it was apparent that his knee was full of blood. He knew that blood outside of its normal confines is an irritant which causes inflammation and he knew that it was also the perfect medium in which bacteria could grow. He also knew that the risk of infection in his knee was substantial because it was a post-operative knee. Infection in such a knee presents a best-case scenario of a damaged knee and a worst-case scenario of rendering him a cripple, requiring a total knee replacement. Yet, Respondent saw that Wernicke intended to stick the needle into Respondent's dirty knee without even using a Betadine preparation to remove bacteria from the skin. Second, Respondent was in "unbelievable" pain from the significant swelling in his knee. The surgical incisions above and below his knee had ruptured from the pressure caused by the swelling. In order for Wernicke to aspirate Respondent's knee, it would be necessary for him to poke his fingers into the swollen knee area in order to locate the right place to stick the needle, and it was impossible for Respondent to hold his leg still for Dr. Wernicke to palpate, let alone insert the needle in the correct location.

       
       

   19. Respondent told Wernicke that he needed an I.V. started; that he needed Kefzol, an I.V. antibiotic, to prevent infection; that he needed Toradol intravenously for its anti-inflammatory effect; and that he was in very, very severe pain and needed pain medication so he could hold his leg still for Wernicke to aspirate. Although Wernicke recognized that Respondent was in significant, severe pain, he told Respondent he would agree to the antibiotic and he would agree to the anti-inflammatory, but that he didn't think Respondent needed anything for pain.

       
       

   20. Respondent's anaesthesia cart was not equipped with I.V. fluids. Someone brought an I.V. bag and set-up. Respondent does not know who brought the I.V. and whether it was on Dr. Wernicke's order or ordered by the emergency room doctor, but Respondent did not order the I.V. brought. No one offered to start Respondent's I.V. for him, and Wernicke did not tell Respondent that Dr. Brennan had come to the emergency room, had been sent away by Wernicke but was nearby, and had told Wernicke to summon him if he were needed.

   21. Wernicke kept telling Respondent to hurry up because it was late and he wanted to go home. He told Respondent that they needed to get finished because Wernicke was doing Respondent a favor just by being there.

       
       

   22. Respondent, while still lying on his stretcher, started his own I.V. Wernicke assisted Respondent by handing him tape for the I.V. since Respondent was performing the task with one hand. Respondent then removed his medication box from the bottom of his anaesthesia cart. He took out an ampule of Kefzol, a dry powder. He took a syringe and drew fluid from the I.V. that was running into him and mixed up that dry powder antibiotic by flushing it back and forth. He then gave the antibiotic to himself. He attempted to delay Wernicke from inserting the needle into his knee until after the antibiotic could circulate through his system and get to his knee before any bacteria was introduced, a process which would take approximately six minutes to complete enough circulations.

       
       

   23. Respondent next prepped his own knee with Betadine solution while Dr. Wernicke continued to stand there by his side, watching him. Respondent then took an ampule of Toradol, a new anti-inflammatory medication, and gave himself

       60 milligrams intravenously, while Wernicke stood and watched. Although that anti-inflammatory medication would also serve to reduce Respondent's pain, Toradol is a slow-acting medication in that regard, having a slow onset but thereafter lasting for a number of hours.

       
       

   24. Respondent then removed from his medication box a 5 cc ampule of Alfenta. That ampule is a 2 1/2 inch object made of glass with its name in blue lettering on the outside, large enough to read. Alfenta is a Schedule II controlled substance and is a narcotic. Alfenta has a fast onset and a fast offset; it works in 30 to 60 seconds, and its effect lasts for approximately 10 minutes. While Dr. Wernicke watched, Respondent filled a needle and gave himself 1 cc of Alfenta which is a very conservative test dose for a man weighing 190 pounds who is in good condition. Respondent then waited a minute or a minute and a half to see what effect it had on his pain level and trembling leg. It had very little effect. Therefore, Respondent injected an additional 1/2 cc and waited. That additional amount was sufficient. Wernicke watched as Respondent gave himself the Alfenta, standing, as he had been, within inches of Respondent. As he injected the medications, Respondent filled out the chart on his anaesthesia cart, noting the medication, the dosage, and that he was the patient. Respondent then laid back on the stretcher, closed his eyes, and then told Wernicke he was ready.

       
       

   25. Wernicke then palpated Respondent's knee and inserted the needle to aspirate Respondent's knee. The pressure in his knee was so high that it blew the syringe back. Wernicke commented that he had never before seen that happen and had never seen pressure like that. Wernicke withdrew approximately 100 ccs of fluid from Respondent's knee, commenting that he did not think he'd seen one with more volume.

       
       

   26. Although initially Wernicke had said that he did not agree that Respondent needed any pain medication, Wernicke totally acquiesced in everything Respondent did to assist Wernicke in treating Respondent. Wernicke accepted Respondent's judgment and watched Respondent execute step by step the course of treatment Respondent said was needed to render proper medical treatment. Wernicke totally agreed and acquiesced with the use of Alfenta as much as he did the antibiotic and the anti-inflammatory as evidenced by Wernicke's own conduct. Wernicke never told Respondent to stop doing Wernicke's work for him. Wernicke

       never told him not to administer the medications. Wernicke never suggested that he or someone else perform the administration. Wernicke could have easily stopped Respondent who was laying on a stretcher but did not. Wernicke knew that Alfenta was a pain killer and a narcotic. He did nothing to stop or prevent Respondent from injecting a medication Respondent needed. Further, Wernicke continued to treat Respondent after the administration of Alfenta by thereafter performing the aspiration.

       
       

   27. After he completed the aspiration, Wernicke left. Respondent lay on the stretcher for a little while. The nurses and the emergency room doctor remained at the nurses' station, and there were still no other patients in the emergency room. Respondent asked if someone would bring him a wheelchair so he could leave, and he was told that they were too busy. Respondent took his crutches and hobbled out of the emergency room.

       
       

   28. The next morning Respondent reported to work for his regular shift which began at 7:00 a.m. After Respondent completed the first case on his shift that day, at approximately 10:30 to 11:30 a.m. he called Haynes McDaniel, the hospital's pharmacist, and told him what had happened the night before, what medications Respondent had used, and that he had used the medications on himself. Respondent said he needed to do whatever paperwork the pharmacist wanted and specifically asked the pharmacist to bill him for the medications he had used. McDaniel told Respondent that there was no problem regarding the Kefzol and the Toradol and that he would simply send Respondent a bill for those medications; however, as to the Alfenta, the pharmacist needed a prescription for his records. McDaniel asked Respondent who the attending physician had been, and Respondent told him that Peter Wernicke was the attending doctor. McDaniel told Respondent to get a prescription from Wernicke for the Alfenta so that the hospital record keeping would be proper.

       
       

   29. Respondent went to Wernicke and asked him for a prescription for the Alfenta that had been used, and Wernicke refused. Respondent then personally went to McDaniel and told him that Wernicke would not write the prescription and told McDaniel why, i.e., that Wernicke was still mad that Respondent had not considered him good enough to do Respondent's surgery. McDaniel asked Respondent who could write the prescription because Respondent needed a prescription from somebody and Respondent could not write the prescription for himself. Respondent told McDaniel that he had asked Dr. Brennan to be there to give him the pain medication, that Dr. Brennan had never showed up, but that Brennan was in the hospital at the time the medication was administered. McDaniel suggested that Respondent see if Brennan would sign a prescription.

       
       

   30. Respondent went to Brennan's office and told Brennan exactly what had happened. He told Brennan he had given himself 1 1/2 ccs of Alfenta and that Wernicke was the attending physician. He told Brennan that Respondent had self- administered and why, that Wernicke had refused to write the prescription and why, and that Haynes McDaniel had suggested that Brennan could sign the prescription for the hospital's records.

       
       

   31. Dr. Brennan became upset that he had not been there to help when his colleague needed him, agreed to sign the prescription, and offered Respondent pain pills or anything else Respondent needed for what remained a painful knee and leg. Respondent declined the offer of any additional medication. In good faith and in the course of his professional practice, Dr. Brennan signed a prescription for 1 1/2 ccs of Alfenta for Respondent. Respondent then hand- delivered that prescription to the pharmacist.

   32. After receiving the prescription from Respondent, the pharmacist wrote an Unusual Occurrence Report dated December 16, 1992. In January of 1993 the hospital summarily suspended Respondent's privileges, and he has been unable to practice medicine since that time.

       
       

   33. Respondent's emergency room visit happened on a Monday evening. On the following Thursday, Respondent and Wernicke's partner Dr. Jim Cain were in the doctor's lounge together. Respondent told Cain that his leg really hurt him and was swollen, and Cain offered to look at it. Respondent pulled up his scrub suit and showed Cain his calf which was twice its normal size and "hot". Cain suggested that Respondent get an ultrasound and get some blood thinner since it looked as though Respondent had developed phlebitis, a dangerous condition. Respondent immediately went to the x-ray department and had an ultrasound performed. The ultrasound revealed that Respondent had compartment syndrome in his calf, four days after the aspiration was performed. Dr. Wernicke's office notes regarding Respondent's emergency room visit, supposedly dictated that same evening or the following day, discussed the ultrasound that Respondent had. Accordingly, Dr. Wernicke did not dictate his notes regarding his treatment of Respondent on Monday evening or on Tuesday. Those notes, however, do bear Tuesday's date and are included in the hospital's medical record for Respondent's emergency room visit.

       
       

   34. The medical chart created by the hospital was likely created on December 21, 1992, the date stated on the Unusual Occurrence Report as the date the chart was initiated. The chart which thereafter purports to be Respondent's emergency room record is actually a composite of different patients' charts. To the extent it purports to be Respondent's chart, the entries contained therein are false.

       
       

   35. The Alfenta used by Respondent was an appropriate drug for the purpose for which it was used. It is a rapid but short-acting narcotic analgesic when given in the amount in which it was given. Further, the amount of Alfenta administered was an appropriate dose.

       
       

   36. Respondent used the Alfenta because it was an appropriate drug for immediate relief so he could endure the palpation and aspiration of his knee and so he could stop his leg from trembling allowing Wernicke to aspirate it. He knew the Alfenta would be worn off even before the analgesic effect of the anti- inflammatory medication was felt. It is noteworthy that all physicians who testified in this proceeding rated the pain Respondent was in as between eight and ten on a pain scale where ten is the worst.

       
       

   37. Respondent did not use Alfenta as a result of any addiction, and his use of the drug under the circumstances in this case was not related to any abuse of narcotics. Respondent has not exhibited any of the behavior of a drug user.

       
       

   38. Respondent did not engage in any attempt to "cover up" his administration of Alfenta to himself. He called the hospital and requested his anaesthesia cart be brought and that an anaesthesiologist come to the emergency room to administer the medication. The administration occurred with the implicit consent of Wernicke and it took place in front of Wernicke, in front of three or four emergency room nurses, and in front of the emergency room doctor. At the time, he filled out the narcotics record on his anaesthesia cart and telephoned the hospital's pharmacist the following day to tell him what had occurred and request that he be billed for the medication he used. His giving the hospital a prescription from Dr. Brennan was caused by Wernicke's refusal to

       document the treatment he rendered to Respondent, by Respondent's inability to write his own prescription, and was in response to the hospital's specific request that a prescription be written for the purpose of the hospital's record keeping. Further, Dr. Wernicke knew what had happened, as did the other emergency room personnel present that evening, and Respondent fully disclosed the events that had occurred to both Dr. Brennan and to the hospital pharmacist.

       
       

   39. Respondent's use of Alfenta on December 14, 1992, was not in any way related to patient care and had no impact on any patient care rendered by Respondent.

CONCLUSIONS OF LAW

40 The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

1. The Administrative Complaint filed in this cause consists of two Counts and alleges that Respondent violated two statutes by engaging in the self-administration of narcotic medication and by failing to report a

   colleague's inappropriate writing of a post-facto prescription to the Department of Professional Regulation (now the Agency for Health Care Administration).

   Petitioner has failed in its burden of proving Respondent guilty of either violation.

   
   

2. Count One of the Administrative Complaint charges Respondent with violating Section 458.331(1)(e), Florida Statutes, by failing to report any person who the licensee knows is in violation of Chapter 458 or of any rules of the Department of Professional Regulation (now the Agency for Health Care Administration) or of the Board of Medicine. The factual basis of that Count is Respondent's failure to report Dr. Brennan writing the "post-facto prescription." In its proposed recommended order, Petitioner broadens its factual basis by alleging that Dr. Brennan was not Respondent's treating or attending physician as required in Chapter 458. Interestingly, both the Administrative Complaint and Petitioner's proposed recommended order fail to specify what statute or rule Dr. Brennan allegedly violated which Respondent should have reported. Petitioner's failure to specify is caused by the fact that Dr. Brennan did not violate any statute or rule. Petitioner's own expert testified that there is no statute or rule which provides that a physician cannot write a prescription for a patient he has not seen. Further, there is no statute or rule which provides that a prescription for a medication written for record keeping purposes cannot be written after the medication has been given. Accordingly, there is no reason that Respondent should have reported Dr. Brennan, and he did not, accordingly, fail to report a person whom he knew to be in violation of a statute or a rule.

   
   

3. Further, under the facts of this case, Dr. Brennan did not write a prescription for medication to then be administered. He wrote a prescription to reflect that on the prior day medication had been dispensed from Respondent's anaesthesia cart to Respondent solely for the purpose of meeting the hospital's record keeping requirements because Wernicke refused to fulfill those requirements and the pharmacist advised Respondent that Respondent was legally prohibited from writing the prescription required by the pharmacist. Further, Dr. Brennan, like the other physicians who testified in this proceeding, knew that the Alfenta in question was administered appropriately in an appropriate amount and for an appropriate purpose.

4. Count Two of the Administrative Complaint alleges that Respondent violated Section 458.331(1)(r), Florida Statutes, by "conducting self- administration of narcotics." That statutory provision prohibits

   
   

   (r) Prescribing, dispensing, or administering any medicinal drug appearing on any schedule set forth in chapter 893 by the physician to himself, except one prescribed, dispensed, or administered

   to the physician by another practitioner authorized

   to prescribe, dispense, or administer medicinal drugs.

   
   

   The statute does prohibit physicians from self-administering controlled substances to themselves. The obvious intent of the statute is reflected by the uncontroverted evidence in this cause that the statute is intended to prevent physicians who have access to controlled substances from abusing those substances or using them in conjunction with an addiction or a chemical dependency. The unusual circumstances in this case are clearly outside the confines of the evil the Legislature intended to prevent. Respondent took a conservative amount of a short-acting narcotic which he knew would last for approximately ten minutes, just long enough to ease the pain and stop his leg from trembling so that Wernicke could remove the fluid from Respondent's post- operative knee which had developed a very serious condition. Respondent described his pain as "unbelievable", the other physicians who testified in this proceeding have no doubt that Respondent was in "excruciating pain," and even Wernicke admits he knew Respondent was in "significant, severe pain." The use of Alfenta under the circumstances of this case is not a misuse or abuse of a narcotic drug.

   
   

5. Further, although it was Respondent's thumb that depressed the plunger on the syringe, it cannot be concluded that Respondent engaged in "self- administration." Although initially Wernicke told Respondent he didn't need anything for pain, both doctors knew that he did. Wernicke acquiesced in, and therefore approved, each step in the procedure engaged in by Respondent, which Respondent was doing because of his own insistence that his treatment be medically proper. Wernicke in fact assisted Respondent in starting the I.V.

   The unusual circumstances of this case lead one to the conclusion that although Wernicke was the attending physician, he had his patient execute that part of the treatment within the expertise of an anaesthesiologist and Wernicke executed that portion of the treatment within the expertise of an orthopedic surgeon.

   They jointly administered the Alfenta in question, and by acquiescing to the use of Alfenta, Wernicke became the prescribing physician within the meaning of the statute. Respondent comes within the exception to the statute which permits the administration of a controlled substance by a physician to himself under the direct supervision of another practitioner.

   
   

6. Petitioner's experts and Respondent's experts who testified in this proceeding agree with Respondent's statement that he made an error in judgment that night. Respondent fully understands that when it became apparent to him that he was being given inferior care, he should have discharged Wernicke and waited until another orthopedic surgeon was summoned, or he should have insisted that Wernicke wait while another anaesthesiologist was summoned, or he should have called an ambulance to take him to a different hospital. Instead, under the watchful eye of Wernicke and with what Respondent at the time believed to have been Wernicke's agreement with the course of treatment outlined by Respondent, Respondent, in his severe pain reacted to Wernicke's pressure to hurry so that Wernicke could go home and did those things necessary to insure

   that he received appropriate medical treatment. Respondent did make an error in judgment; he did not violate the statutes regulating his conduct as a physician.

   
   

7. Even if Respondent had technically violated the statute restricting physicians from prescribing, dispensing, or administering scheduled medications to themselves, even the Petitioner's expert testified that Respondent should receive no more than a "slap on the wrist" due to the unusual circumstances of this case in that Respondent was trapped in a care setting with a physician who was not properly treating him. Respondent has been unable to practice medicine for over two years. Even a "slap on the wrist" would increase his punishment beyond that level related to his conduct.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and

dismissing the Administrative Complaint filed against him in this cause.

DONE and ENTERED this 28th day of March, 1995, at Tallahassee, Florida.

LINDA M. RIGOT

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 March, 1995.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 2-6 and 9-12 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

3. Petitioner's proposed findings of fact numbered 7, 8, 13, 14, and 16 have been rejected as not being supported by the weight of the competent evidence in this cause.

4. Petitioner's proposed finding of fact numbered 15 has been rejected as being subordinate to the issues herein.

5. Respondent's proposed findings of fact numbered 1, 3-19, 21-31, 33-35, 38-40, 42, 43, and 45 have been adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed findings of fact numbered 2, 20, 32, 36, 37, and

   44 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

7. Respondent's proposed finding of fact numbered 41 has been rejected as being subordinate to the issues herein.

COPIES FURNISHED:

Arthur B. Skafidas, Esquire Agency for Health Care

Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Joseph L. Mannikko, Esquire

215 South Federal Highway, Suite 100 Stuart, Florida 34994

Dr. Marm Harris, Executive Director Agency for Health Care

Administration Board of Medicine

1940 North Monroe Street Tallahassee, FL 32399-0792

Tom Wallace, Assistant Director Agency for Health Care

Administration Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION BOARD OF MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF MEDICINE,

Petitioner,

AHCA CASE NO: 93-04178

1. DOAH CASE NO: 94-3752

   LICENSE NO: ME 0025685

   GEORGE J. DETKO, M.D.,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   THIS MATTER was heard by the Board of Medicine (hereinafter Board) pursuant to Section 120.57(1)(b) 10, Florida Statutes, on June 9, 1995, in Gainesville, Florida, for consideration of the Hearing Officer's Recommended Order and Petitioner's Exceptions to the Recommended Order and Respondent's Response to Petitioner's Exceptions (Attached as App. A and B) in the case of Agency for Health Care Administration, Board of Medicine v. George J. Detko, M.D. At the hearing before the Board, Petitioner was represented by Larry G. McPherson, Jr., Chief Medical Attorney. Respondent was not present and was represented by Joseph L. Mannikko, Esquire. Upon consideration of the Hearing Officer's Recommended Order and the Exceptions filed thereto and after review of the complete record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions:

   
   

   RULINGS ON PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT

   
   

   1. Petitioner's Exception to paragraph 26 of the Findings of Fact of the Recommended Order that Dr. Wernicke acquiesced in the Respondent's actions, is rejected. There was competent substantial evidence to support this finding.

      
      

   2. That portion of Petitioner's Exception to paragraph 31 of the Findings of Fact of the Recommended Order that Dr. Brennan wrote a prescription to the Respondent in good faith and in the course of his professional practice, is accepted. There was no competent substantial evidence to support this finding. The remainder of the exception to paragraph 31 is rejected.

      
      

   3. Petitioner's Exception to paragraph 38 of the Findings of Fact of the Recommended Order that Dr. Wernicke implicitly complied with the Respondent's actions, is rejected. There was competent substantial evidence to support this finding.

FINDINGS OF FACT

1. The Hearing Officer's Recommended Findings of Fact, as amended, are approved and adopted and are incorporated herein by reference as the Findings of Fact of the Board in this cause.

   
   

2. There is competent, substantial evidence to support the Board's findings herein.

RULINGS ON PETITIONER'S EXCEPTIONS TO THE CONCLUSIONS OF LAW

1. Petitioner's Exception to paragraph 42 of the Conclusions of Law of the Recommended Order which provided that there was no statute or rule that would preclude Dr. Brennan's after-the-fact prescription and thus Dr. Brennan engaged in no wrong doing, is accepted. It is not within the standard of care for a physician to prescribe controlled medications to a patient whom he has not examined or treated and determined the need for such medication.

   
   

2. Petitioner's Exception to paragraph 44 of the Conclusions of Law of the Recommended Order which provided that the intent of the statute was to prevent substance abuse by physicians, is accepted. The intent of the statute was to prevent physicians from making treatment decisions concerning themselves when controlled substances are involved.

   
   

3. Petitioner's Exception to paragraph 45 of the Conclusions of Law of the Recommended Order which provided that the Respondent did not engage in self- administration of the controlled substance because the attending physician did not physically try to stop him from doing so, is accepted. The attending physician advised the Respondent he would not administer or prescribed controlled substances and he is not required to take physical action to prevent the self-administration.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over the parties and subject matter of this case pursuant to Section 120.57 and Chapter 458, Florida Statutes.

   
   

2. The findings of fact set forth above do not establish that Respondent has violated Section 458.331(1)(e) and (r), Florida Statutes as charged in the Administrative Complaint.

   
   

3. The Conclusions of Law of the Recommended Order, as amended, are approved and adopted and incorporated herein.

DISPOSITION

Based upon the Recommended Findings of Fact and Conclusions of Law, the Hearing Officer recommended the following penalty:

1. That the Respondent is not guilty of violating Section 458.331(1)(e) and (r), Florida Statutes.

In light of the foregoing Findings of Fact and Conclusions of Law the Board hereby determines that pursuant to Rule 59R-8, Florida Administrative Code, the penalty recommended by the Hearing Officer is appropriate as set forth in the Recommended Order.

WHEREFORE, it is found, ordered and adjudged that the Respondent is not guilty of violating Section 458.331(1)(e) and (r) of the Administrative Complaint and pursuant to Rule 59R-8, F.A.C., the Board of Medicine imposes the following:

1. This case be and is hereby DISMISSED.

This Final Order becomes effective upon its filing with the Clerk of the Agency for Health Care Administration.

NOTICE

The parties are hereby notified pursuant to Section 120.59(4), Florida Statutes, that an appeal of this Final Order may be taken pursuant to Section 120.68, Florida Statutes, by filing one copy of a Notice of Appeal with the Clerk of the Agency for Health Care Administration and one copy of a Notice of Appeal with the required filing fee with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE and ORDERED this 9th DAY OF June, 1995.

BOARD OF MEDICINE

GARY E. WINCHESTER, M.D. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order and its attachments have been forwarded by U.S. Mail to George J. Detko, M.D.,

333 17th Street, Suite 2-J, Vero Beach, Florida 32960, Joseph L. Mannikko, Esquire, 215 South Federal Expressway, Suite 100, Stuart, Florida 34994, and Linda M. Rigot, Hearing Officer, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida 32399-1550 and by hand delivery to Larry G. McPherson, Jr., Chief Medical Attorney, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this 17th day of July, 1995.

Marm Harris, Ed.D. Executive Director

Docket for Case No: 94-003752

Orders for Case No: 94-003752