STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1834

)

EDWIN T. GETTINS, D.O., )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Orlando, Florida on September 12, 1995 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Britt Thomas, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Wilson Jerry Foster, Esquire

1342 Timberlane Road, Suite 101-A Tallahassee, Florida 32321-1775

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Respondent's license to practice osteopathic medicine in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated July 21, 1993, Larry G. MacPherson, Chief Medical Attorney for the Agency for Health Care Administration, (Agency), on behalf of the Board of Osteopathic Medicine, (Board), seeks to discipline the Respondent's license as an osteopathic physician in Florida, alleging that he failed to register with the Board as a dispensing physician prior to dispensing medicinal drugs for human consumption; failed to properly maintain and dispense; prescribed medications inappropriately or in excessive or inappropriate quantities; failed to provide care within the appropriate standard; and failed to keep written medical records justifying the course of treatment to the patient, all in violation of the provisions of Section 459.015(1), Florida Statutes. Respondent demanded a formal hearing on the allegations and this hearing ensued.

At the hearing, Petitioner presented the testimony of Dr. Stanley Weiss, an osteopathic physician and expert in the field of osteopathic medicine and bariatric medicine, and introduced Petitioner's Exhibits 1 through 4.

Petitioner's Exhibit 4 for Identification, consisting of various pills in plastic containers, were retained by counsel for Petitioner and a photograph of them submitted in its place. Respondent, through deposition, presented the testimony of Dr. Wilmer L. Asher, a specialist in bariatric medicine.

Respondent also testified in his own behalf and was qualified as an expert in bariatric medicine even though he was a party. Respondent also introduced Respondent's Exhibits A through E.

A transcript of the proceedings was provided and subsequent to the receipt thereof, counsel for both sides submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations herein, the Board of Osteopathic Medicine was the state agency in Florida responsible for the licensing of osteopathic physicians and for the regulation of the practice of osteopathic medicine in this state. By stipulation, the parties agreed that Respondent was, at all times material hereto, a licensed osteopathic physician in the State of Florida.

   
   

2. On May 1, 1990, Patient #1, (R.C.) presented to the Respondent at his office in Orlando for treatment of obesity. At that time, the Respondent, who holds himself out as a specialist in and was determined to be an expert in the field of bariatric medicine, (weight control), had the weight, blood pressure and pulse rate of the patient taken, and other measurements made. At that time, the patient was 6'2" tall and weighed 196 pounds. His blood pressure was 124 over 76, and his pulse rate was 70. He had a waist measurement of 38 1/2" and a hip measurement of 40". As a part of the case history taken of the patient, it appeared that he had no significant matters to report except for the fact that he had periodic shortness of breath and members of his family had had both high blood pressure and heart trouble. There were no other contraindications to treatment.

   
   

3. Respondent conducted an examination of the patient and determined that the patient had had liposuction in the stomach area and breasts approximately one year previously, and that he got little exercise, yet smoked 2 1/2 packs of cigarettes per day. He was a reformed alcoholic and felt he was in good general health. Respondent's evaluation of the patient at the time was that he appeared to look well. The medical records reflect the word, "CORPUL", which is an acronym for cardiac/pulmonary, and in connection therewith, Respondent noted that the patient's condition was "excellent."

   
   

4. As a part of his initial work up, the Respondent drew blood from the patient which was forwarded to a laboratory for analysis, and he also did a cardiogram. Though the cardiogram appeared "grossly normal" there was some minor irregularity which the Respondent felt necessitated further evaluation. Therefore, the cardiogram was sent to a cardiologist, Dr. Arnold, for evaluation. The report of the cardiologist indicated that the cardiogram was essentially normal with a "PR" interval at the upper limit of normal.

   
   

5. Before the report was returned by the cardiologist, Respondent prescribed certain medications for this patient. Because the patient had high sodium levels in his blood, the Respondent prescribed a diuretic. He also

   prescribed Thyroglobulin, a specialized form of thyroid medication to aid the patient's metabolism mildly and safely. In addition, he prescribed 30 mg of Obazine per day to be taken in the morning as an appetite supressant; potassium chloride for extra potassium; and Phentermine, another appetite supressant to be taken in the afternoon. For after supper medication, Respondent prescribed a medication for digestion and to increase bile flow, and a 1/2 gram of Phenobarbitol to relax the patient in order to reduce his habit of snacking, and provided a detoxifying agent for the liver. These were the only drugs prescribed at that time. Respondent also, however, instructed the patient that he must not have any further liposuction.

   
   

6. In the opinion of Dr. Weiss, the Board's expert in the field of bariatric medicine, the use of the secretary to transcribe the Respondent's verbal comments regarding his patients into the record is not inappropriate. However, the use of the word, "CORPUL" followed by the word, "excellent" seems to fall somewhat below standard, in his opinion. In this case, an acceptable standard would be for the physician to put into the chart exactly the details of the evaluation, and the word, "excellent" does not say much. Notwithstanding the fact that records show the patient's pulse rate and blood pressure, they did not show that the Respondent palpated the patient's chest or listened to the heartbeat. Therefore, the use of the word, "excellent" in this case is below standard.

   
   

7. Respondent's records also include the word, "dispense", followed by several medications which Respondent prescribed for the patient. There was no indication in the record why each of these medications was prescribed. Dr. Weiss concludes this is a deficiency in that the record does not show that the Respondent actually examined the patient before medicating him, even though Respondent indicated he had done so. In fact, the only comment as to the patient's general health is made by the secretary, not by a physician or a nurse. Further, though Respondent indicated at hearing that the patient suffered from emphysema, there is no indication anywhere in the notes that that condition existed.

   
   

8. Dr. Weiss also noted that the Respondent prescribed medication for a thyroid condition but there appears, from the medical record kept by the Respondent, no reason to treat a thyroid condition. There is no indication that the patient demonstrated any of the clinical signs of hyperthyroidism. By the same token, a prescription for Phenobarbitol, to be taken in small quantities at the hour of sleep, is well within standards if proper indications for that use are noted. Here, according to Dr. Weiss, in Respondent's records there is no indication as to why the substance was dispensed. Respondent's testimony at hearing provides justification, and there is no challenge to the actual prescription, but the medical record is insufficient in that it fails to show the reason for the dispensing of any of the specific medications prescribed.

   
   

9. The Respondent's next contact with his patient was by telephone on May 17, 1990 when the patient indicated that the blue Phenobarbitol tablet was making him feel like he was dying. According to the records, the patient was nervous, "hyped-up" and his chest was tight. The medical note entered by the secretary indicates that she had spoken with the Respondent about the patient and the Respondent said for the patient to take one-half capsule with food. If that worked, the patient could return to a full dose.

   
   

10. According to Dr. Weiss, this is "far, far below the standard of care", especially when the patient was, as here, showing signs of cardiac problems in the sense of shortness of breath and tightness in the chest, A prudent

    physician, according to Dr. Weiss, would have stopped medication entirely, had the patient come to the office, or, if an emergency problem existed, told the patient to go to the hospital by ambulance. This is the case here, especially since the cardiogram report had not been received from the cardiologist. If the Respondent felt either inadequate to interpret the cardiogram or that the cardiogram showed some irregularity, he should not have recommended drugs to the patient, as he did here, which affected the heart. In that regard, Dr. Weiss opines, it is impossible to treat all patients within a standard template or protocol, as it appears Respondent did, since all patients are individuals.

    
    

11. On May 14, 1990, the patient again telephoned Respondent's office requesting a list of all medications he was then taking. At that point, the patient indicated he was at a cardiologist's office, (Dr. Latif), and needed to know the name of the drugs he was taking. Respondent's secretary asked the patient if this were an emergency visit, and the patient indicated it was not. Because the patient would not volunteer any information or answer directly any of the questions of the secretary, she suggested that Respondent call him right back at the cardiologist's office and the patient agreed. However, before the Respondent could call back, the patient departed Dr. Latif's office, apparently having decided he could not afford the cardiologist's fee.

    
    

12. The patient records reflect, in Respondent's handwriting, that the patient had told him he was at the cardiologist's because the cardiogram was borderline abnormal and he had been worrying about it since it was taken. Respondent's notes on this matter reflect he assured the patient that the cardiologist's report indicated there was no problem. The patient then indicated he felt fine and had gone to Dr. Latif only for a check up.

    Respondent contends he discussed with the patient his exercise regimen and advised him not to get overheated while on any of the medications he was taking.

    
    

13. The entry relating to the May 29, 1990 visit reflects that the patient had lost approximately 10 pounds and his blood pressure was down but his pulse rate was up somewhat. The note indicates that the patient "feels fine and is happy with the Obazine" which Respondent had prescribed for him. By observation, Respondent noted that the patient "looks well" and again, the notation "CORPUL excellent" in Respondent's hand, along with a change of some of the medications administered, is listed in the record with no reason being shown for either the change or the continuation. This is below standard. According to Dr. Weiss, the details rather than the conclusion should be reflected in the records.

    
    

14. The next appointment with the patient was on June 29, 1990 when the records reflect the patient had lost weight and his blood pressure remained good, but there was no indication of what his pulse rate was. The records reflect certain changes at the restaurant where the patient was working interfered with his sleep; that he was winning at the dog track and planned to go to Las Vegas; but that he was hungry after exercising in the evening and asked for a stronger pill to take in the morning with breakfast. The patient indicated that the Esidrix 50 mg made his heart race. In response, according to the records in the Respondent's handwriting, Respondent reduced the strength of the Esidrix dose from 50 mg to 25 mg and changed the Phenobarbitol from blue to yellow.

    
    

15. According to Dr. Weiss, the secretary's notes contain certain information but not all that is necessary. Weiss noted that the patient requested a stronger appetite supressant even though it is noted that the lighter dose made his heart race. A more prudent physician, in Dr. Weiss'

    opinion, practicing at the level of standard of care, would have discontinued any medication which made the patient's heart race and would have done a cardiogram or at least would have checked the patient's pulse. Here the record fails to reflect that the pulse rate was taken. If a doctor is made aware of that condition, he should look into it, and there is no indication, from the medical records, that this was done.

    
    

16. According to Weiss, this is grossly incorrect. In fact, there is no indication that Respondent even examined the patient before making any change in his medictions, and that, in itself, would be a deviation from standard. Respondent indicates that if he made any entry on a patient's record in his own hand, it was done as a result of an examination of the patient. In this case, however, if respondent did examine the patient, he made no reference in the notes as to why he did what he did nor did he make any record of his rationale or reasoning. This is below standard.

    
    

17. When the patient was informed that Respondent would not be able to keep the appointment scheduled for July 17, 1990, he indicated he had changed his schedule and needed a change in the times of taking and the strengths of his medications. When the patient did come in his blood pressure was taken along with his weight but there was no indication he pulse rate was measured, and the medical records in the Respondent's handwriting reveal certain changes to medications which do not show either details of the change or the reason therefor. Again, appetite supressants were dispensed, as was a tension reducer, without any physical examination being reflected in the records.

    
    

18. The patient was again seen in the office by Respondent on August 22, 1990, and the records for this visit reflect not only the weight but also the blood pressure reading and the pulse rate. Respondent contends that the entry relating to the pulse is in his handwriting and made as a result of an examination, as is the word "excellent" following the note, "CORPUL" in that entry. According to Dr. Weiss, the secretary noted in the record, and it so appears, that the patient was having problems with his bowels. Nonetheless, the records show no details of any examination as a result of this complaint, notwithstanding Respondent's assertion at hearing that whenever he makes an entry in the record he has examined the patient.

    
    

19. On October 1, 1990, even after the patient missed his September 20, 1990 appointment, the Respondent authorized his staff to mail a one month supply of prescription medications to the patient. According to Dr. Weiss, this is not within standards, and the medical record does not show why the drugs were mailed, nor does it say which medications were dispatched this way. Weiss contends one can assume it was the same regimen as previously prescribed, but in his opinion, it is inappropriate to do this in a metropolitan area, and to do so is well below the standard of care. This is so especially in light of the previous racing heart beat, the arrythmia and the patient's physical complaints. From Respondent's comment in the record, "this time only", it would appear Respondent recognized the riskiness of his actions, so Weiss believes.

    
    

20. On October 29, 1990, the patient again came to Respondent's office and his weight, blood pressure and pulse rate were taken. The secretary noted no problems and that the patient looked well. Respondent noted in his own hand that the cardiac pulmonary condition was excellent and also noted that the patient might be getting a new restaurant. According to Dr. Weiss, this is meaningless to anyone other than the person who wrote it since there is nothing in the record which indicates what the entry means.

21. When the patient came to the office on November 26, 1990, his weight and blood pressure were taken but there is no indication his pulse rate was measured nor is there any entry on the form for that date in the Respondent's hand. According to Dr. Weiss, the prescription for Xanax, which appears to be in the handwriting of the secretary, showed no indication that the patient was examined or, if he was, any clinical findings or clinical reason for the prescription.

    
    

22. Again, on December 26, 1990, the patient was weighed and his blood pressure taken, but no pulse entry was made. Again, there appears to be no entry in the Respondent's hand, including the CORPUL description, which is left blank. From this, it is assumed the Respondent did not see the patient.

    
    

23. R.C. missed his scheduled appointment on January 21, 1991, and when he appeared at Respondent's office on February 11, 1991, his blood pressure and his weight were noted, but there was no indication the Respondent saw the patient. In fact, the secretary's note indicates the Respondent approved a one month medication pickup but there is no entry in Respondent's hand. From this it would appear the medications were dispensed without the patient having seen the doctor, and in the opinion of Dr. Weiss, this is incorrect practice and below standard.

    
    

24. When the patient came in on April 19, 1991, he was seen by the Respondent; his weight, blood pressure and pulse were taken, and at least one of his medications was changed. On this date, Respondent prescribed a tranquilizer, Tranxene. Again, the record fails to indicate any reason for the prescription of a tranquilizer, especially in light of the fact that the note in the secretary's hand indicates that the patient was in a rush but was feeling good and looked well.

    
    

25. The record of the May 15, 1991 visit shows that the patient was weighed and his blood pressure taken, but there is no indication of his pulse rate. The secretary noted that the patient was upset because of his girlfriend's diagnosis of breast cancer. In the Respondent's hand, a notation reflects a prescription for Tranxene again as a result of the patient's nervous condition. According to Weiss, this is the type of entry that should be made routinely, but there is no reference in the record to the patient's cardiac pulmonary status which had been routinely commented upon previously.

    
    

26. The records also reflect that on July 21, 1991, without seeing the patient, Respondent prescribed a refill on the Tranxene, and called it in to the pharmacy. At this time, the patient had requested a 60 pill prescription with provision for a refill, but the medical note reflects the Respondent said "No." At hearing, Respondent claimed that his use of the word "no" is indicative of his recognition that the patient had a drug personality. This does not necessarily follow, but in any event, Respondent properly refused to give the patient more than a reasonable dose, and a prescription of 36 Tranxene, as given here, is not below standard.

    
    

27. On June 1, 1992, there is an indication that the weight, blood pressure and pulse were taken, and it appears the patient had, over a year, gained approximately 25 pounds, though his blood pressure remained about the same. At this point, the note in the secretary's hand reflects that the patient was starting a new job, was feeling fine physically, and was coming off a three month hiatus between jobs. In the Respondent's hand, however, is a reference to Phenobarbitol white and another drug, CH, which is not identified. According to Dr. Weiss, this was two years since a cardiogram or blood profile had been

    taken, and to continue to prescribe drugs of this nature without any intervening testing of blood or heart evaluation falls below the appropriate standard of care. In fact, the record does not reflect at this visit that the Respondent evaluated the patient's cardiac condition because his description of the CORPUL status does not appear in the record.

    
    

28. On July 7, 1992, according to the records, a telephone call to Respondent's office from the medical examiner of Volusia County indicated R.C. had died on June 17, 1992, and requesting the Respondent's medical records. The autopsy report, dated July 31, 1992, reflects that the cause of death was acute drug intoxication, and Respondent contends that this is justification for his refusal to give the patient all the various medications he wanted. A review of the post mortem toxicology relating to drugs found in the patient's urine and blood at the time of death indicates, however, that none of the drugs which were being prescribed by Respondent were found in the deceased's body on autopsy.

    
    

29. Respondent is a longstanding practitioner of osteopathic medicine having been in practice since August, 1954. When R.C. first came to see him, on May 1, 1990, the patient's history was taken and recorded on the history form. The patient was 34 years old and claimed to be in fair health. It appears that the patient had moderate emphysema, and at that point and continuing thereafter, Respondent claims, he tried to get the patient to quit smoking. He did not, however, enter this fact in the patient's records. All other signs, however, were normal, except for the patient's blood which showed elevated levels of lipid concentration and low iron. In short, the patient's triglycerides were elevated and his thyroid levels were moderately low. The patient's cardiogram showed a small abnormality in the computer evaluation which Respondent sent to a cardiologist, Dr. Arnold, for interpretation.

    
    

30. After the initial visit, and after giving the patient his standard dietary instructions and policies, the Respondent prescribed the medications previously described. According to Respondent, his normal practice was for the nurse to write down what the patient said while weight was taken and blood pressure measured. Respondent usually took the pulse rate. The term, "excellent", used in conjunction with the word "CORPUL" in the records related to heart function, not to the emphysema. Respondent admits that "perhaps" he should have entered the emphysema in the record. Respondent claims he entered all information regarding changes in prescriptions, yet a review of the records clearly shows this is not the case.

    
    

31. Many of the entries in the records, which appear to be in the nurse's handwriting, including such things as the patient's reaction to pills on May 7, 1990, was based on Respondent's conversations with the patient which he thereafter recounted to the nurse to be placed into the records. It would appear, however, that there is some confusion whether the entries other than those placed therein by the Respondent, were by a nurse or by a secretary. This was not clarified by the evidence of record.

    
    

32. Respondent admits that he does not keep the detailed records he would keep if he were practicing in a hospital situation. He is of the opinion that he is the only one to whom his records need make sense. Because in this case the patient was a friend of his, his need to make further and more detailed patient notes was even less that it would be ordinarily. He was aware of what he considered to be the patient's drug tendency and did not put it in the patient's record because he did not feel that he wanted to subject a friend to this type of record even though he recognized that medical records are, for the most part, confidential. On several occasions, Respondent admitted it was an

    omission to fail to place a pulse reading in the record or to fail to make certain comments, but he reiterated time and again, that in his opinion his notes did not have to reflect in any detail reasons or rationale for what he did. He consistently took the position that he knew what he did; that he was the only one who looked at the records; and to him, that was sufficient.

    
    

33. On July 29, 1991, medications were dispensed after a telephone conversation with the Patient. Respondent claims this was because he had had an argument with the patient over the number of pills which could be furnished; 36 Tranxene tables as opposed to the 60 tablets requested. Respondent admits he authorized the prescription even though he did not see the patient at that time, and in fact did not see the patient again for almost a year. On June 1, 1992, when he again saw the patient, he refused to treat the patient further without another cardiogram and blood work. Nonetheless, Respondent admits, and the records reflect, that on that particular occasion, he allowed the patient to receive his normal prescription for medications, with some modifications, and he admits that all of these medications dispensed are not listed in the patient record.

    
    

34. Respondent also admits he does not, and did not, in this case, dispense medications in a child-proof container, as is required by statute and rule. He claims this was because the patient requested they not be placed in a child-proof container, and introduced an entry on the back of the envelope containing the patient's medical records, bearing what purports to be the patient's signature, which so indicates. Respondent also claims that in a discussion with the chairman of the Board of Pharmacy, he determined that use of a crush-proof box in lieu of a child-proof container for these medications, which are, admittedly, controlled substances, was appropriate.

    
    

35. Respondent feels that his care of this patient was within standards and that his prescriptions were dispensed with proper medical justification. He contends that R.C. was a hard patient to deal with, being both compulsive and anal retentive. In treating this patient, Respondent claims he used a modified Weintraub protocol, an accepted guideline for the prescription of appetite suppressants and believes he prescribed appropriate medications in appropriate quantities. Respondent also believes he adequately examined the patient before he prescribed any medications for him and contends he always saw the patient before he allowed him to have any more drugs. This has been shown not to be the case.

    
    

36. Respondent agrees that a medical record should justify the course of treatment rendered to a patient. Everything should be justified but not, he claims, in as great a detail as in a hospital setting. Respondent is of the opinion that his records are such that a subsequent treating physician could take them and determine what clinical treatment was rendered to the individual without speaking with the Respondent. In addition to the daily narrative record, Respondent contends that the prescriptions are maintained in the records and should be examined in conjunction with the narrative record. If done, this would show what drugs were prescribed and in what amounts. However, it would not show why the prescription was issued initially, and this information is also not adequately laid out in the narrative records. Respondent claims he writes his chart for himself and not for others.

    
    

37. Respondent recognizes he did not note any emphysema in his medical records. He also did not enter any instructions he gave to the patient to quit smoking in the medical records. He did not discuss in the records, or with the patient right away, that the patient should continue to exercise. He admits

    the records do not show that he reviewed Dr. Arnold's report on the cardiogram but only that he received it, and he admits that the records do not show the patient was retaining fluid in the stomach. In that regard, Respondent had recommended metahydrine, a diuretic, for the patient but he contends the record reflecting the patient had had liposuction also reflects that the patient was retaining fluid, and he believed this was sufficient recognition of that fact. This does not necessarily follow, however. Respondent admits that even a bariatric specialist could have had trouble determining from his records that fluid was in the stomach rather than elsewhere in the body.

    
    

38. Respondent's treatment of this patient was evaluated by Dr. Wilmer L. Asher, a specialist in bariatric medicine practicing in Colorado for more than thirty years. In the course of his evaluation, Dr. Asher, who has known Respondent as a bariatric physician through the American Society of Bariatric Physicians for approximately twenty-five years, had the opportunity to evaluate Dr. Weiss' written report, the medical records in this case, the investigative report and Dr. Arnold's cardiographic report.

    
    

39. Based on his evaluation of the entire file, Dr. Asher concluded that Respondent provided the patient with an adequate initial work-up, more than that usually done. The use of an electrocardiogram on an individual who had no apparent cardiovascular complaints at the time of work-up was above and beyond the norm. He also concluded that the Respondent's prescription, dispensing and administering legend drugs to this patient was neither inappropriate nor in excessive nor inappropriate quantities.

    
    

40. Dr. Asher further concluded that on the basis of the Respondent's initial work-up, the diagnosis of obesity was appropriate and the plan of treatment Respondent developed was appropriate for this patient. He concludes that the medical records kept by the Respondent for this patient justified the course of treatment. There is no mention in the record of risk, but, in Dr. Asher's opinion, the medical management of an obese patient by a prudent bariatrician as Respondent, in Asher's opinion, involved a negligible amount of risk. Bariatricians do not ordinarily discuss risks associated with medical management of obesity. Therefore, he contends, Respondent's failure to do so was not below standard. Based on his thirty years of bariatric practice, Dr. Asher was able to find no evidence of Respondent's failure to meet applicable standards of care in his examinations, his diagnosis and his treatment of this patient. In that regard it should be noted that Dr. Asher admitted he was not specifically familiar with Florida standards but concluded they would, in all probability, be consistent with the medical standards in other states with which he is familiar.

    
    

41. On October 29, 1992, the Department conducted an inspection of the Respondent's office because of his license as a dispensing physician. At that time, there were several discrepancies noted, one of which was that the Respondent's license to dispense drugs had expired. Respondent admits that this is the case, and that during the period from January, 1992 through October, 1992, he was not registered as a dispensing physician. He claims that he was under the impression that the renewal was automatic, and when he found it was not and his certificate had expired, he immediately sent in the required fee and the application for recertification, which was granted. It is so found.

    
    

42. There were, however, other discrepancies discovered during the October 29, 1992 inspection, and these included a failure to properly label medications for dispensing; the sign indicating the availability of generic substitutes was not properly posted; all controlled substance refills were not properly

    initialed and dated; controlled substance prescriptions were not being properly maintained and purchase records for controlled substances were not maintained and readily recoverable. A follow-up inspection was conducted on July 13, 1994, and all previously identified discrepancies had been corrected. The inspection was considered to be satisfactory.

    
    

43. At the hearing, Petitioner offered no evidence of any prior disciplinary action having been taken against the Respondent by the Board or any other regulatory body. Subsequent to the hearing, however, Petitioner moved the introduction of a record of a previous disciplinary action by the Board, the admission of which Respondent strongly resists. A review of the pleading reveals that the record in issue was missed in the agency's prior search of its records because it was filed under a misspelled name. Examination of the document itself does not indicate the alleged misconduct upon which it is predicated. All that can be discerned from a review of the matter objected to is that in 1987 Respondent entered into a stipulated settlement of another Administrative Complaint filed by the Board and that as a result thereof, Respondent was fined $2,000, reprimanded and placed on probation for two years under conditions dictated by the Board.

    
    

44. Evidentiary acceptance of this prior action is granted over Respondent's objection with the understanding that it will not be considered on the disputed issue of the Respondent's guilt or innocence of the matters alleged in the instant Complaint but will be considered only if and after a finding of guilt of any of the misconduct alleged herein has been made, and then only as a matter in aggravation of punishment.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

46. Petitioner charges that Respondent failed to register with the Board as a dispensing practitioner before dispensing medicinal drugs for human consumption, in violation of Section 465.0276(2)(a), and failed to properly dispense and maintain medications in violation of Chapter 893, Florida Statutes, both, therefore, in violation of Section 459.015(1)(g), Florida Statutes; prescribed and dispensed a legend drug other than in the course of his practice, in violation of Section 459.015(1)(t), Florida Statutes; failed to practice osteopathic medicine with appropriate skill and within the proper standard of care, in violation of Section 459.015(1)(x), Florida Statutes; and failed to keep medical records justifying the course of treatment rendered his patient, in violation of Section 459.015(1)(o), Florida Statutes.

    
    

47. The burden of proof in this proceeding rests upon the Petitioner which must establish Respondent's guilt of the misconduct alleged by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

48. The evidence is clear, and Respondent admits, that during the period alleged, he failed to renew his registration as a dispensing practitioner with the Board as it was his responsibility to do. That his failure was inadvertent is not an excuse but goes only to the issue of mitigation of the punishment to be imposed. Also, notwithstanding Respondent's continuing contention that his medical records were sufficient for his purposes and his insistence that the requirement for records in a practitioner's office are well below the requirements for hospital records, his argument is not persuasive. Clearly

    Respondent's records fall well below standard and, for the most part, fail to justify the prescription of the medicines dispensed herein both as to variety and quantity. This is so notwithstanding the opinion of Dr. Asher to the contrary. However, there is substantial evidence that medications were dispensed to Patient R.C., not in a child-proof container,but since such was the request of the patient, misconduct has not been proven.

    
    

49. Petitioner also alleges that the Respondent's prescription and dispensing of appetite supressants, tranquilizers, gas deflators, and other medications, without having seen the patient before such dispensing or in inappropriate quantities and either by mail or by pickup, constitutes dispensing other than in the course of his osteopathic practice, in violation of Section 459.015(1)(t), Florida Statutes. In fact, the evidence clearly shows that the patient to whom these medicines were dispensed came to Respondent for weight reduction treatment and though the manner of treatment and the safeguards against over-dispensing utilized by the Respondent may have been inadequate and inappropriate, the substances were issued as a part of the Respondent's professional practice.

    
    

50. However, notwithstanding Dr. Asher's opinion that Respondent's actions were within proper medical standards, the better weight of the evidence is that such prescription of medications, and their dispensing without proper safeguards, constitutes practice well below standard as alleged, and is a violation of Section 459.015(1)(o), Florida Statutes.

    
    

51. Turning then to the issue of a disciplinary action appropriate to the matters of which Respondent has been found guilty, Petitioner seeks to impose a penalty within the disciplinary guidelines for the Board of Osteopathic Medicine found in Rules 59W-19.002 and 59W-19.003, F.A.C. Under those rules, the Board is allowed to consider, inter alia, the number of times the licensee has been previously disciplined by the Board.

    
    

52. In the instant case, the Board proposes to impose a fine in the amount of $5,000, a reprimand, and probation for two years under terms and conditions to be set by the Board. Considering the fact that Respondent's misconduct was not a proximate cause of his patient's death, but also considering the inappropriately loose manner in which the Respondent prescribed medications and the fact that he has previously been disciplined, the Board's suggested penalty is proper, but the fine should be reduced to $4,000.

RECOMMENDATION

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

RECOMMENDED that Respondent, Edwin Gettins, D.O. be found guilty of violating Sections 459.015(1)(x)(o)&(g), Florida Statutes, (other than utilizing an improper method of dispensing, for which he should be found not guilty); that he be reprimanded and ordered to pay an administrative fine of $4,000; and that his license to practice osteopathic medicine in Florida be placed on probation for two years under such terms and conditions as may be prescribed by the Board of Osteopathic Medicine.

RECOMMENDED this 9th day of November, 1995, in Tallahassee, Florida.

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

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1995.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1834

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

FOR THE PETITIONER:

1. - 3. Accepted and incorporated herein.

4. & 5. Accepted and incorporated herein.

1. - 8. Accepted and incorporated herein.

   1. Accepted.

   2. - 12. Accepted and incorporated herein.

13. & 14. Accepted and incorporated herein.

15. - 25. Accepted and incorporated herein.

1. & 27. Accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. Accepted and incorporated herein.

   3. - 32. Accepted.

33. & 34. Accepted but characterization of records as

1. - 69. Accepted and incorporated herein.

   1. Accepted.

   2. Accepted.

   3. Accepted and incorporated herein.

   4. Accepted.

   5. Accepted and incorporated herein.

   6. Accepted.

   7. Accepted and incorporated herein.

   8. Accepted.

   9. - 84. Accepted and incorporated herein.

      1. Accepted.

      2. - 92. Accepted and incorporated herein.

         1. Accepted.

         2. - 97. Accepted and incorporated herein.

98. Accepted.

FOR THE RESPONDENT:

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Rejected as not being an accurate statement of facts in all cases.

4. Accepted.

5. Rejected as contra to the weight of the evidence.

6. Rejected as contra to the weight of the evidence.

   
   

   COPIES FURNISHED:

   
   

   Britt Thomas, Esquire Agency for health Care

   Administration

   1940 North Monroe Street Tallahassee, Florida 32399-0792

   
   

   Wilson Jerry Foster, Esquire Suite 101-A

   1342 Timberlane Road

   Tallahassee, Florida 32321-1775

   
   

   Jerome W. Hoffman General Counsel

   Agency for Health Care Administration

   2727 Mahan Drive

   Tallahassee, Florida 32309

   William H. Buckhalt Executive Director

   Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

   
   

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

   
   

   ================================================================= MOTION FOR CLARIFICATION OF RECOMMENDED ORDER UPON REMAND

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

   
   

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   AGENCY FOR HEALTH CARE ADMINISTRATION,

   
   

   Petitioner,

   
   

   vs. CASE NO. 95-1834

   
   

   EDWIN T. GETTINS, D.O.,

   
   

   Respondent.

   /

   
   

   MOTION FOR CLARIFICATION OF RECOMMENDED ORDER UPON REMAND

   
   

   COMES NOW the Petitioner and request this Honorable Hearing Officer for clarification of the Recommended Order issued in this matter on November 9, 1995. As grounds therefore, Petitioner would state:

   
   

   1. The Recommended Order issued in this matter was presented to the Board of Osteopathic Medicine at their December 9-10, 1995 meeting. (The Hearing Officer's Recommended Order is attached as Exhibit A.)

      
      

   2. The Respondent took exception to paragraph 50 of the Recommended Order's Conclusions of Law regarding the Petitioner's required burden of proof in this case. (A copy of Respondent's Exceptions to the Recommended Order are attached as Exhibit B.)

   3. The Board was unable to make a determination on the exception, and requested the matter be remanded back to this Honorable Hearing Officer for clarification as to what was the Petitioner's burden of proof, and did the Petitioner meet the burden of clear and convincing in proving Respondent violated Section 459.015(1)(o), Florida Statutes. (A copy of the transcript of the Board's consideration of this matter is attached as Exhibit C.)

WHEREFORE, the Petitioner requests clarification of the Hearing Officer's Recommended Order regarding the required burden of proof, and whether the Petitioner has met the burden in this matter.

Respectfully submitted,

Kevin W. Crews Senior Attorney

Florida Bar No. 0031887 Agency for Health Care

Administration

Northwood Centre, Suite 60 1940 North Monroe Street

Tallahassee, Florida 32399-0792

(904) 488-0062

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. mail this 22 day of January, 1996 to Wilson Jerry Foster, Esquire, 1342 Timberlane Road, Suite 101-A, Tallahassee, Florida 32312-1775.

Kevin W. Crews Senior Attorney

Exhibit A is the Hearing Officer's Recommended Order which is not being copied as an attachment to this Motion.

Exhibit B STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

BOARD OF OSTEOPATHIC, MEDICINE

AGENCY FOR HEALTH CARE ADMINISTRATION, BOARD OF OSTEOPATHIC, MEDICINE

Petitioner,

1. DOAH CASE NO. 95-1834

   AHCA CASE NO. 92-11776

   EDWIN T. GETTINS, D.O.

   
   

   Respondent.

   /

   
   

   RESPONDENT'S EXCEPTIONS TO THE RECOMMENDED ORDER EXCEPTIONS TO FINDINGS OF FACT

   1. Finding of Fact 2-- The finding, "At that time, the patient was 6'2" tall. . ." is not supported by the evidence. See pages 84-85 of the transcript.

      
      

   2. Finding of Fact 26-- The finding that, "... patient had a drug personality." is not supported by the evidence. See pages 113 and 169 of the transcript where the Respondent testified that the patient was engaged in "drug seeking" behavior at the time he denied the patient the drug Tranzene in the amount requested.

      
      

   3. Finding of Fact 43 and 44-- The Respondent excepts and objects to any receipt and consideration of the exhibit referred to in the Petitioner's Motion to After-File exhibit and renews his objections as stated in his Objection and Motion to Strike and Remove from the DOAH file Petitioner's Motion to After-File Exhibit.

   4. Finding of Fact 44-- The Respondent excepts and objects to any receipt and consideration of the exhibit referred to in the Petitioner's Motion to After-File exhibit and renews his objections as stated in his Objection and

      Motion to Strike and Remove from the DOAH file Petitioner's Motion to After-File Exhibit.

      
      

      EXCEPTIONS TO THE CONCLUSIONS OF LAW

      
      

   5. Conclusion of Law 48-- The finding that, "Clearly Respondent's records fall well below standard and, for the most part, fail to justily the prescription of the medicines dispensed herein both as to variety and quantity." is not supported by clear and convincing evidence.

      
      

   6. Conclusion of Law 50-- This conclusion is not based on the application of the correct burden of proof set out in Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Petitioner has failed to meet the required burden to establish the alleged misconduct by clear and convincing evidence.

Respectfully submitted

Law Offices of Wilson Jerry Foster Counsel for Respondent

Suite 101-A

1342 Timberlane Road

Tallahassee, Florida 32312-1775

(904) 894-3022

(904) 894-1620 fax

Wilson Jerry Foster

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the foregoing has been provided by hand delivery to Kevin Crews, Attorney for Petitioner, Agency for Health Care Administration, 1940 North Monroe Street, Tallahassee, Florida 32399-0792 on this the 29th day of November, 1995.

Wilson Jerry Foster

Exhibit C is copy of the transcript of the Board's consideration of this matter and is not a part of this ACCESS document.

To view the transcript, please contact the Clerk's Office.

================================================================= CLARIFICATION OF RECOMMENDED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1834

)

EDWIN T. GETTINS, D.O., )

)

Respondent. )

)

CLARIFICATION OF RECOMMENDED ORDER

A hearing was held in this case in Orlando, Florida on September 12, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings. On November 9, 1995, the Hearing Officer entered his Recommended Order in this matter in which he recommended, among other things, that Respondent be found guilty as alleged, (except for utilizing an improper method of dispensing), and that a stated punishment be imposed.

Thereafter, by Exceptions filed on November 29, 1995, Respondent's counsel took exception to, among others, the Hearing Officer's Conclusion of Thaw contained in paragraph 50 of the Recommended Order, in which the Hearing Officer rejected Dr. Asher's opinion that Respondent's actions, as alleged, were within proper medical standards and concluded that Respondent's prescriptions constituted practice "well below standards as alleged."

In its meeting held in Orlando on December 8, 1995, the Board of Osteopathic Medicine experienced some difficulty in determining by what legal standard the Hearing Officer evaluated the evidence presented so as to come to the Conclusions drawn and the Recommendation made, as it related to paragraph 50 of the Recommended Order, and requested clarification which the undersigned takes to be an Order of Remand for Clarification. Thereafter, counsel for Petitioner filed a Motion For Clarification of Recommended Order Upon Remand.

It must be noted that at all times the Hearing Officer intended to apply, and did apply the "clear and convincing evidence" test in evaluating the evidence presented by the parties relative to the Respondent's alleged misconduct. In his analysis, the Hearing Officer intended to compare the opinion testimony of Dr. Asher to that of the Petitioner's evidence as presented and, on comparison, to reject that of Dr. Asher. The Hearing Officer intended to conclude the Board established, by clear and convincing evidence, that Respondent's practice, as shown by the evidence of record, was well below standard in that particular. No lesser standard of evidence was intended or applied.

DONE in Tallahassee, Florida this 29th day of January, 1996.

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

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1996.

COPIES FURNISHED:

Kevin W. Crews, Esquire Agency for Health Care

Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Wilson Jerry Foster, Esquire 1342 Timberlane Road

Suite 101-A

Tallahassee, Florida 32312-1775

Jerome W. Hoffman General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32309

William H. Buckhalt Executive Director

Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792

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

AGENCY ORDER OF REMAND

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

STATE OF FLORIDA

AGENCY FOER HEALTH CARE ADMINISTRATION BOARD OF OSTEOPATHIC MEDICINE

BOARD OF OSTEOPATHIC MEDICINE

Petitioner,

vs. AHCA CASE NO. 92-11776

DOAH CASE NO. 95-1834

EDWIN T. GETTINS, D.O.,

Respondent.

/

ORDER OF REMAND

This matter came before the Board of Osteopathic Medicine pursuant to section 120.57(1), Florida Statutes, to review the Recommended Order of the Hearing Officer in Division of Administrative Hearings case number 95-1834. The Board reviewed this matter at its regularly scheduled meeting of December 8, 1995, in Orlando, Florida. At the presentation of the Recommended Order Petitioner was represented by Francesca Plendl, Attorney at Law and Respondent was represented by Lorraine M. Kelly, Attorney at Law.

Respondent raised an issue in properly filed exceptions with regard to the application of the correct burden of proof before the Division of Administrative Hearings. Through counsel, Respondent asserted that in paragraph 50 of the Hearing Officer's Recommended Order the Hearing Officer states that "the better weight of the evidence..." while the applicable burden of proof is that of "clear and convincing evidence" which is evidenced by the Hearing Officer's conclusion of law in paragraph 47.

Although the Board believes that the apparent inconsistency can be remedied by a reference to section 459.015(3), Florida Statutes, the Board has determined that this matter be remanded for clarification.

THEREFORE the Board has determined that it is appropriate to remand this case to the Hearing Officer for the very narrow purpose of establishing whether or not there is conflict between the proof established by the Petitioner and the sufficiency of that proof vis a vis the statutory burden and whether paragraphs

47 and 50 in the Recommended Order are compatible.

DONE AND ORDERED this 13th day of February, 1996

DR. TODD PATTERSON, CHAIRMAN

Board of Osteopathic Medicine

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been provided by U.S. Mail to LORRAINE M. KELLY, ESQUIRE, P. O. Box 1212, St. Petersburg, FL 33731, on or before 5:00 p.m., this 29th day of February, 1996.

N. L. VanKirk

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

DOAH ORDER ON REMAND

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, BOARD OF )

OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1834

)

EDWIN T. GETTINS, D.O., )

)

Respondent. )

)

ORDER ON REMAND

By Recommended Order entered in this case on November 9, 1995, the undersigned, a Hearing Officer with the Division of Administrative Hearings, after conducting a hearing on allegations of misconduct contained in an Administrative Complaint filed by the Agency for Health Care Administration on behalf of the Board of Osteopathic Medicine, concluded that Respondent, Dr.

Gettins, had committed most of the violations alleged, and recommended that discipline be imposed.

Thereafter this matter was transmitted to the Board of Osteopathic Medicine for entry of a Final Order. By exceptions filed on November 29, 1995, Respondent's counsel took exception to the wording of the Hearing Officer's Conclusion of Law in paragraph 50 of the Recommended Order. At its December 8, 1995 meeting, the Board had some difficulty in determining by what standard the Hearing Officer evaluated the evidence presented and requested clarification.

In response to what appeared to be a remand, the undersigned entered a Clarification of Recommended Order, dated January 29, 1996, describing the

standard which he applied to the evaluation of the evidence and reiterating that it was the "clear and convincing evidence" standard.

On February 13, 1996, subsequent to the entry of the Clarification by the Hearing Officer, the Board returned this matter to the Hearing Officer again for clarification and a determination of "the very narrow issue" of "whether or not there is a conflict between the proof established by the Petitioner and the sufficiency of that proof vis a vis the statutory burden and whether paragraphs

46 and 50 in the Recommended Order are compatible." No other issue was raised.

This has already been accomplished by the Hearing Officer in the Clarification of January 29, 1996. No conflict exists and the proper standard was applied.

DONE and ENTERED in Tallahassee, Florida this 13th day of March, 1996.

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

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1996.

COPIES FURNISHED:

Britt Thomas, Esquire Agency for health Care

Administration

1940 North Monroe Street Tallahassee, Florida 32399-0792

Wilson Jerry Foster, Esquire Suite 101-A

1342 Timberlane Road

Tallahassee, Florida 32321-1775

Lorraine M. Kelly, Esquire

P. O. Box 1212

St. Petersburg, Florida 32399-0792

William H. Buckhalt Executive Director

Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792

Jerome W. Hoffman General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32309

Docket for Case No: 95-001834

Orders for Case No: 95-001834