STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRVING ROYCE, M. D., )

)

Petitioner, )

)

vs. ) CASE NO. 95-3521F

)

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

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 20, 1996, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph S. Geller, Esquire

Sheraton Design Center Office Plaza 1815 Griffin Road, Suite 403

Dania, Florida 33004

For Respondent: Monica L. Felder, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792 STATEMENT OF THE ISSUE

Whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, for fees and costs he incurred as a result of his participation in the administrative proceeding Respondent's predecessor, the Department of Professional Regulation (later renamed the Department of Business and Professional Regulation and hereinafter referred to as the "Department"), 1/ initiated against him in DPR Case No. 00-61481 (DOAH Case No. 91-2811)?

PRELIMINARY STATEMENT

On January 18, 1995, the Hearing Officer issued a Recommended Order in DOAH Case No. 91-2811 in which he recommended that "the Board [of Medicine] enter a final order finding [Irving Royce, M.D.] guilty of the violations of former subsection (1)(n) of Section 458.331, Florida Statutes, noted above, disciplining him for having committed these violations by issuing him a reprimand, and dismissing the remaining charges against him." On May 11, 1995, the Board of Medicine (hereinafter also referred to as the "Board") entered a Final Order in AHCA Case No. 00-61481 adopting the Hearing Officer's recommendation except as to the penalty to be imposed on Dr. Royce. The Board

determined that "the penalty recommended by the Hearing Officer of a Reprimand [was] excessive and [it thus] substitute[d] therefor a Letter of Concern as the penalty in this case."

On July 11, 1995, following the entry of the Board's Final Order in AHCA Case No. 00-61481, Dr. Royce filed a petition with the Division of Administrative Hearings requesting that he be awarded attorney's fees and costs pursuant to Section 57.111, Florida Statutes, for fees and costs he had incurred in defending against the allegations of wrongdoing that were the subject of DOAH Case No. 91-2811. Respondent subsequently sought and obtained (without opposition) an extension of time to file its response to the petition.

Respondent filed its response on August 23, 1995. 2/

In its response, Respondent requested that the Hearing Officer "enter an Order granting summary judgment and dismissing the Petition for an Award of Attorney's Fees and Costs or in the alternative hold further evidentiary hearings to determine if the Petitioner is a prevailing small business party, and if so, whether the Respondent was substantially justified when it initiated the action against the Petitioner's license and/or special circumstances exist which would make the award unjust." 3/ On August 25, 1995, the Hearing Officer issued an order announcing that "an evidentiary hearing [would] be held on those issues in dispute in the instant case." Such a hearing was initially scheduled for November 30, 1995. The hearing, however, was continued at Petitioner's request and rescheduled for February 20, 1996.

As noted above, the hearing was held on February 20, 1996. At the outset of the hearing, counsel for Respondent indicated, on the record, that Respondent did not dispute the reasonableness of the amount of attorney's fees and costs requested by Petitioner ($15,000.00, the maximum allowed under Section 57.111, Florida Statutes).

Petitioner was the only witness to testify at the hearing. In addition to Petitioner's testimony, a total of 17 exhibits (Joint Exhibits 1 through 8, Petitioner's Exhibits 1 through 7, and Respondent's Exhibits 1 and 2) were offered and received into evidence. Among these exhibits were: the depositions of Lynn Quimby-Pennock and M. Catherine Lannon, state government attorneys who were present at the January 28, 1991, meeting of the probable cause panel of the Board of Medicine in DPR Case No. 00-61481 at which probable cause was found to file formal charges against Petitioner; and the deposition of Louis Collado, who formerly worked as an investigator with the Department and was involved in the Department's pre-probable cause investigation of the allegations made against Petitioner. These depositions were offered and received in lieu of the deponents' live testimony.

The evidentiary record was left open to allow the parties the opportunity to offer into evidence any portions of the record in DOAH Case No. 91-2811 that had not already been offered and received into evidence. On June 6, 1996, Petitioner filed with the Hearing Officer the transcript of the final hearing in DOAH Case No. 91-2811, along with the exhibits that were offered and received into evidence at that hearing. These materials will be considered a part of the evidentiary record in the instant case.

On May 31, 1996, Petitioner filed a motion requesting that the evidentiary record be reopened and supplemented with additional documents that were neither offered at the February 20, 1996, evidentiary hearing in the instant case, nor were contained in the record in DOAH Case No. 91-2811. Petitioner has not shown any good cause to excuse its failure to have offered these documents into

evidence at the February 20, 1996, evidentiary hearing in this case. Moreover, even if these documents had been offered and received into evidence, their inclusion in the evidentiary record would not alter the outcome of this case.

Accordingly, Petitioner's motion to reopen the record (which Respondent opposes 4/ ) is hereby DENIED. See Florida Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778, 786 (Fla. 1st DCA 1981)("[s]ubstantial authority holds that there is no abuse of discretion in denying a rehearing (or remand) sought for the purpose of introducing evidence that could, in the exercise of due diligence, have been offered at the original hearing").

The Hearing Officer initially established May 20, 1996, as the deadline for the filing of proposed final orders. At Petitioner's request, the deadline was subsequently extended to Friday, May 31, 1996.

On May 31, 1996, Respondent timely filed its proposed final order. On that same day, Petitioner filed an Emergency Motion for One-Day Extension of Time to file its proposed final order. On Monday, June 3, 1996, Petitioner filed its proposed final order, as well as a Verified Renewed Motion for a One-Day Extension of Time, or, in the Alternative, Motion to Accept Proposed Final Order Filed Out of Time (hereinafter referred to as the "Renewed Motion"). Good cause having been shown, Petitioner's Renewed Motion is hereby GRANTED to the extent that it requests that Petitioner's proposed final order be treated as if it had been timely filed.

The parties' proposed final orders have been carefully considered by the Hearing Officer. They each contain what are labelled as "findings of fact." These "findings of fact" proposed by the parties have been carefully considered and are specifically addressed in the Appendix to this Final Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

Facts Found in DOAH Case No. 91-2811 The Parties in DOAH Case No. 91-2811

1. Respondent, the Agency for Health Care Administration (hereinafter referred to as the "Agency") is a state government licensing and regulatory agency.

   
   

2. Irving Royce is now, and has been since 1962, a physician licensed to practice medicine in the State of Florida, holding license number ME 0010545.

   
   

3. He is also licensed to practice medicine in New Jersey and New York.

   
   

4. From 1948 to 1952, Dr. Royce attended the Chicago Medical School, from which he graduated with a M.D. degree.

   
   

5. From 1952 to 1953, he had a rotating internship in a Newark, New Jersey hospital.

   
   

6. After receiving his license to practice medicine in the State of New Jersey, Dr. Royce started a general medical practice there.

7. He closed his practice in 1955 to begin training in his current primary specialty, psychiatry.

   
   

8. He received such training from 1955 to 1960. He trained at Essex County Hospital in Cedar Grove, New Jersey, the New Jersey State Diagnostic Center in Menlo Park, New Jersey, the Veterans Administration Hospital in Lyons, New Jersey, Mount Sinai Hospital in New York, New York, and the Neuropsychiatric Institute in Princeton, New Jersey.

   
   

9. From 1960 to 1971, Dr. Royce had his own psychiatric practice in Woodcliff, New Jersey.

   
   

10. During the earlier portions of this period he also authored the following three articles which were published in the American Journal of Psychiatry: "Improving Insulin Therapy in Schizophrenia with Neostigmine" (May, 1961); "Improving Insulin Therapy with Calcium Gluconate" (February, 1962);

    and "Resistant Psychosis Treated Successfully by Indoklon" (February, 1962).

    
    

11. In 1971, Dr. Royce moved his psychiatric practice to Florida, specifically 9145 Northwest 27th Avenue in Miami.

    
    

12. He practiced psychiatry at this location in Miami until the early 1980's.

    
    

13. In addition to his private practice, in 1972, Dr. Royce was the Director of the Methadone and Alcohol Unit at Reed Memorial Hospital in Miami.

    
    

14. In October of 1973 and May of 1975, respectively, two articles that Dr. Royce had written, "Rapid Treatment of Opiate Addiction" and "The Post- Opiate Syndrome," were published in the Florida Journal of Medicine.

    
    

15. Furthermore, from 1982 to 1984, he taught a "Fundamentals of Medical Science" course at Florida International University's Bay Vista Campus in North Miami, Florida.

    
    

16. From July of 1983 to April of 1984, Dr. Royce was a staff psychiatrist at the Broward County Crisis Center in Pembroke Pines, Florida.

    
    

17. Since leaving the staff of the Broward County Crisis Center in April of 1984, Dr. Royce has been practicing psychiatry, and, to a lesser extent, family medicine, at his office located at 17122 West Dixie Highway in North Miami Beach, Florida.

    
    

18. In addition to his private practice, since approximately 1991, Dr. Royce has taught psychiatry courses at Nova Southeastern University in Miami.

    
    

19. Although he teaches and practices psychiatry, he is not board certified in this specialty.

    
    

    Dr. Royce's Care and Treatment of Patient C.R. Overview

20. From on or about October 2, 1984, to on or about July 8, 1985, (hereinafter referred to as the "treatment period") Dr. Royce provided medical care and treatment to patient C.R., a 35-year old overweight female with suicidal thoughts.

21. C.R. initially presented to Dr. Royce with complaints of melancholia, irritability, nervousness and inability to control her weight.

    
    

22. She explained that in the recent past her boyfriend had shot himself to death in her presence, her mother had passed away, and she had to put two of her cats to sleep, which events had led her to attempt to commit suicide by cutting her wrists.

    
    

23. She further informed Dr. Royce that she expected to die and join her dead boyfriend in the near future.

    
    

24. Dr. Royce diagnosed C.R. as having agitated depression with neurotic, not psychotic, features. He also concluded that she was suffering from obesity.

    
    

25. Depression is a disorder with a predominant complaint of melancholia and depressed affect.

    
    

26. A patient with agitated depression has features of melancholia, superimposed with anger and irritability. Agitated depression is more difficult to treat clinically than simple depression.

    
    

27. During subsequent visits C.R. also complained of diarrhea, headaches, coughing spells, and pain associated with a fissure in her anal canal.

    
    

28. Although C.R. made certain comments to Dr. Royce during the treatment period indicating that she used cocaine and consumed excessive amounts of alcohol, Dr. Royce reasonably believed, based upon the totality of circumstances, including other statements C.R. made to him and her appearance, demeanor and conduct during her visits to his office, that C.R.'s claims of cocaine and excessive alcohol use were "attention-getting" fabrications and that she did not have an addictive or abusive personality or a history of drug or alcohol abuse 5/ and he treated her accordingly. In doing so, Dr. Royce did not act in a manner that was inconsistent with what a reasonably prudent psychiatrist at the time would have done under similar circumstances.

    
    

29. In the medical records that he maintained on C.R., Dr. Royce noted that C.R. had made claims of cocaine and excessive alcohol use, but he did not indicate that he disbelieved these claims.

    
    

30. C.R.'s condition gradually improved during the treatment period. She lost weight, maintained a neater and cleaner appearance and became more outgoing.

    
    

    Overall Drug Regimen

    
    

31. During the treatment period, Dr. Royce prescribed the following legend drugs for C.R.: Plegine, which contains Phendimetrazine, a Schedule III controlled substance; Didrex, a Schedule III controlled substance; Sinequan; Elavil; Valium, which contains Diazepam, a Schedule IV controlled substance; Librium, which contains Chlordiazepoxide, a Schedule IV controlled substance; Xanax, which contains Alprazolam, a Schedule IV controlled substance; Inderal; Ativan, which contains Lorazepam, a Schedule IV controlled substance; Placidyl, which contains Ethchlovynol, a Schedule IV controlled substance; Hycodaphen, which contains Hydrocodone, a Schedule III controlled substance; Darvocet, which contains Propoxyphene, a Schedule IV controlled substance; Percocet,

    which contains Oxycodone, a Schedule II controlled substance; Percodan, which also contains Oxycodone; Sudafed; Gantrisin; Paregoric; and Xylocaine (in ointment form).

    
    

32. Dr. Royce also administered the legend drug Lasix to C.R.

    
    

33. In addition, he administered to C.R. the following legend drugs as adjuncts to psychotherapy: Ketamine Hydrochloride (hereinafter referred to simply as "Ketamine"), which is sold under the brand name of Ketalar; Brevital, a barbiturate containing Methohexital, a Schedule IV controlled substance; and, on a single occasion, Seconal, another barbiturate, which contains Secobarbital, a Schedule II controlled substance.

    
    

34. He further administered to C.R. Brevital and the legend drugs Atropine and Anectine in conjunction with non-convulsive electric current therapy.

    
    

35. That Dr. Royce prescribed or administered the legend drugs specified in the preceding four paragraphs is reflected in the medical records that he maintained on C.R. Dr. Royce further indicated in these medical records the amounts of these drugs that were prescribed and administered.

    
    

36. Dr. Royce's polypharmacy approach to treat the symptom clusters with which C.R. presented (and which were noted in the medical records that he maintained on C.R.) was not inappropriate and did not produce any significant, unwanted drug interactions. Furthermore, Dr. Royce did not prescribe or administer any drugs to C.R. 6/ in excessive amounts and he carefully monitored C.R.'s use of the drugs that he prescribed for her during her frequent office visits.

    
    

    Antidepressant Drug Therapy

    
    

37. In the ordinary case, where time is not of the essence, a tricyclic antidepressant, such as Sinequan or Elavil, which Dr. Royce prescribed for C.R. on her second visit on October 9, 1984, is the medication of choice in attempting to combat depression.

    
    

38. Sympathomimetic amines, such as Plegine and Didrex, are also used in treating depression. 7/ (In addition to helping fight depression, these amphetamine-like 8/ "mood elevators" also function as anorexic agents.)

    
    

39. Unlike tricyclic antidepressants, which produce no immediate effect, sympathomimetic amines are very rapid acting. Therefore, if a patient suffering from depression is suicidal and in the throes of a life threatening crisis, as was C.R. when she presented to Dr. Royce, treatment with sympathomimetic amines is warranted because of the quick relief it provides.

    
    

40. Because of C.R.'s desperate situation, Dr. Royce prescribed both Plegine and Didrex to treat her depression.

    
    

41. That these sympathomimetic amines might also help C.R. lose weight was, in Dr. Royce's mind, an added bonus, but it was not the primary reason that he prescribed them.

    
    

42. Neither Plegine nor Didrex should be prescribed for an individual who has an addictive or abusive personality or a history of drug or alcohol abuse. Dr. Royce, however, as noted above, reasonably believed that, in the case of C.R., he was not dealing with someone who had drug or alcohol problems.

43. While there were occasions that Dr. Royce prescribed both Plegine and Didrex for C.R. on the same date, he never prescribed them for concomitant use.

    
    

44. When he gave C.R., during the same visit, prescriptions for both Plegine and Didrex, he specifically instructed her to use them, not at the same time, but rather sequentially, for minimum periods of a week each. That he gave these instructions, however, is not reflected in the medical records he maintained on C.R.

    
    

45. It is an acceptable practice to alternate the use of Plegine and Didrex in such a manner to determine which produces the best results for the patient.

    
    

46. Dr. Royce found that Plegine was more effective than Didrex in combatting C.R.'s depression. He therefore stopped prescribing Didrex for C.R. The last time he prescribed Didrex for her was November 27, 1984.

    
    

47. He continued to prescribe Plegine until June 18, 1985.

    
    

    Antianxiety Drug Therapy

    
    

48. To reduce the anxiety that C.R. was experiencing, Dr. Royce appropriately prescribed the benzodiazepines Valium and Xanax and other antianxiety agents and sedatives, including Inderal, which he prescribed after

    C.R. reported having a "panic attack," and Placidyl, a strong hypnotic sedative or sleeping pill.

    
    

49. These antianxiety agents were prescribed for concomitant use with antidepressant medication.

    
    

50. Such concomitant use is appropriate where the patient is both depressed and anxious, as was C.R. in the instant case.

    
    

    Drug-Assisted Psychotherapy

    
    

51. On approximately 40 separate occasions, from November 10, 1984, to June 11, 1985, Dr. Royce administered Ketamine to C.R. intravenously prior to a psychotherapy session in order to reduce her resistance to psychotherapy. 9/

    
    

52. Ketamine is a commonly used, 10/ relatively safe, 11/ FDA-approved 12/ anesthetic that is structurally similar to PCP. 13/ It is a legend drug.

    
    

53. Unlike traditional anesthetics, which are general central nervous system depressants, Ketamine depresses some parts of the brain and stimulates others.

    
    

54. In sufficient dosage, it provides anesthesia quickly.

    
    

55. Its anesthetic effect lasts a relatively short period of time (approximately ten minutes) and there is generally rapid recovery, although postoperatively, some patients may hallucinate.

    
    

56. While Ketamine remains in the bloodstream for approximately 24 hours, a patient who has received an anesthetic dose of Ketamine 14/ and suffered no complications, as a general rule, may be released two hours after having been anesthesized, provided instructions are given that the patient is not to operate

    a motor vehicle or other dangerous machinery or to make any major decisions immediately upon the patient's release.

    
    

57. Aside from hallucinations, other possible side-effects from the use of Ketamine, according to the Physician's Desk Reference (hereinafter referred to as the "PDR"), include delirium, confusion, amnesia, tonic and clonic movements sometimes resembling seizures, anorexia, nausea and vomiting. Furthermore, because it tends to raise blood pressure, it should be used with caution where the patient is hypertensive. 15/ There is no evidence in the anesthesia literature that even the repeated use of Ketamine causes psychosis in normal patients.

    
    

58. The impact that Ketamine has on the psyche induces an abreactive or dissociative effect in the patient and results in the patient becoming more verbal and expressive. Furthermore, like all anesthetics, Ketamine can be used as a tranquillizer to allay anxiety if administered in a dosage and manner that does not achieve an anesthetic outcome. 16/ Because of these features, there is reason to believe that Ketamine may help as an adjunct to psychotherapy.

    
    

59. There are a number of authoritative, scientific articles, some dating as far back as the 1940's, which support such a view. Among them is a 1973 article, "The Use of Ketamine in Psychiatry," written by E. Khorramzadeh and

    A.O. Lofty (Respondent's (Dr. Royce's) Exhibit 11 in DOAH Case No. 91-2811) and a 1979 article, "Ketamine-Facilitated Induced Anxiety Therapy and Its Effect upon Clients' Reactions to Stressful Situations," written by A.A. Sappington, G. Corssen, A.T. Becker and M. Tavakoli (Respondent's (Dr. Royce's) Exhibit 10 in DOAH Case No. 91-2811). Dr. Royce reviewed these two articles before deciding to use Ketamine as an adjunct to C.R.'s psychotherapy.

    
    

60. Notwithstanding the foregoing, Ketamine-assisted psychotherapy is not now, nor was it at any time material to the instant case, recognized as a standard or conventional treatment in the mainstream psychiatric community.

    
    

61. It is not even mentioned in either the PDR or the American Psychiatric Association's four volume work on the treatment of psychiatric disorders.

    
    

62. Furthermore, the FDA-approved label and package insert for Ketamine make no mention of the drug having any use in the practice of psychiatry.

    
    

63. It is not necessarily inappropriate, however, for a physician to use a drug that has been approved as safe by the FDA for a purpose other than that which is indicated on the FDA-approved label and package insert.

    
    

64. Before he used Ketamine in his treatment of C.R. as an adjunct to psychotherapy, Dr. Royce discussed the matter with C.R. and obtained her full, informed written consent.

    
    

65. Such consent was given in a handwritten statement that C.R. signed on November 6, 1984. The statement, which Dr. Royce retained as part of his medical records on C.R., read as follows:

    
    

    Permit to Dr. Royce

    
    

    I, [C.R.], have been suffering from painful depression and nervousness. I have learned that Pentothal and Amytal (AMYTAL) Interviews, also known as TRUTH SERUM, have helped persons

    with symptoms such as mine. Dr. Royce who has been using Amytal interviews since 1957, has also had experience with the same technique using ketamine, a much safer drug than Amytal or Pentothal. The effect of ketamine (also known as KETALAR), wears off in less than 15 to 20 minutes. Therefore, a patient is able to leave the doctor's office hours sooner than

    would be possible with Amytal. Ketamine is also safer because it does not depress the cough or gag reflexes or respiration, as Amytal and Pentothal do.

    
    

    Because of these facts, I am now writing this statement with Dr. Royce's help to give permission to IRVING D. ROYCE, M.D. to treat me with psycho- therapy including intra-venous injections of ketamine. I expect that the ketamine will help

    me to feel less depressed and less agitated, at least for the 10 to 15 minutes during which time it will have an effect on me. If I am less distracted by my physical nervousness and my depression, I will at least be able to parti- cipate better in therapy with Dr. Royce.

    
    

    Also Dr. Royce has discussed with me studies involving persons who have shown improvement during psychotherapy using ketamine at the start of the therapy sessions. Since Dr. Royce will be using lower doses than described in the Physicians Desk Reference ("P.D.R.") to help control my physical agitation I do not expect that these added psychiatric benefits will positively occur. However, if my psychotherapy should happen to show some benefit because of the ketamine, then I shall be grateful for that.

    In my mind there is a narrow line dividing whether or not I can expect to evolate (EVOLATE) in time to be with David Clark in Heaven for New Year's Eve. I doubt that my fate can be changed.

    
    

    I already have some first-hand knowledge of the value and safety of ketamine because I used it quite a few times to clip the claws of my cats.

    
    

    Dr. Royce and I have discussed alternate treat- ments for overcoming my expectation to be dead before the end of this year. He favors electro- shock treatments in a hospital but I don't want to go through those seizures. We also discussed more frequent office visits and/or a higher dose of drugs for me, but I'd rather not change our

    pattern of having Dr. Royce evaluate my medications from one week to the next. We discuss how I feel each time and Dr. Royce adjusts the dose or changes medicines accordingly.

    I have told Dr. Royce that I expect to patch things up with David Clark as soon as I can get to him. I have to evolate (EVOLATE) as soon as possible to be with him before he returns to this life as somebody else. After his reincarnation (REINCARNATION), I may not be able to recognize who he really is. With or without any medication such as ketamine, I'm running out of time.

    
    

    The discussion of KETALAR in the P.D.R. says, "Ketalar has been studied in over 12,000 operative and diagnostic procedures, involving over 10,000 patients from 105 separate studies." Also, "Ketalar has a wide margin of safety." I feel confident now that Ketalar is a safe medication for me.

    
    

    In addition, Dr. Royce demonstrated to me how his Oxygen Resuscitator works in case he has to use it on me by breathing through it himself. Even when

    he held his breath, I could hear the machine cycling on and off, doing the breathing for him.

    
    

    Finally for thoroughness Dr. Royce and I made the following notes by referring to the P.D.R.:

    1. I will not become pregnant during the time when I am being treated.

    2. I will not take anything by mouth after midnight of the day before each Ketalar treatment.

    3. I will always bring some adult with me when I come here for the Ketalar treatments.

    4. I will take Valium 5 mg orally 45 minutes before the Ketalar instead of the 2 mg to 5mg intravenously described in the P.D.R.

    5. The valium is to help prevent "an EMERGENCE REACTION." I understand this reaction to be a period of emotional excitement which can occur in some instances when higher doses of Ketalar are

       used such as during surgery and where the prophylactic dose of Valium or some other sedative is not given to the patient before Ketalar. 17/

    6. The initial does of Ketalar will be "from 0.5 mg to 2.0 mg per pound.["] Therefore at my present weight of 167 lbs., no more than 334 mg will be used.

    7. After the Ketalar Therapy, I will wait one hour in the office discussing whatever seems to be important to me with Dr. Royce's assistants (Mrs. Royce and/or their daughter Jacki.) After the one- hour period, I will be examined by Dr. Royce who will dismiss me if he sees that I have recovered completely from the Ketalar Treatment.

    8. I will not drive an automobile or operate electrical or hazardous machinery for at least 24 hours after each Ketalar treatment.

    9. I will report to Dr. Royce anything unusual which occurs to me in the interval between Ketalar Treatments, such as fever, rash, nausea, infection, or unusual thoughts, dreams, or daydreams.

    
    

    No guarantee of results has been given to me by Dr. Royce, Mrs. Royce or Jacki.

    
    

66. The Ketamine-assisted psychotherapy sessions began on C.R.'s next visit, which was on November 10, 1984.

    
    

67. On that same date, she signed another handwritten statement in which she acknowledged that she was borrowing copies of nine different "scientific" articles dealing with or related to Ketamine use and agreed to return these borrowed materials to Dr. Royce after she had "had time to read them."

    
    

68. At no time during the treatment period did Dr. Royce administer Ketamine in a dosage or manner that was calculated to, or did in fact, anesthesize C.R. or subject her to undue risk or harm.

    
    

69. On only two occasions, toward the end of the treatment period, did he administer more than 100 milligrams of Ketamine during a session: the April 26, 1985, session, when he administered 112.5 milligrams; and the June 6, 1985, session when he administered 125 milligrams. 18/

    
    

70. On each and every occasion, Dr. Royce administered the Ketamine slowly over a period of time to avoid anesthesizing C.R.

    
    

71. There was no reason for Dr. Royce to believe that the interaction between the Ketamine and any of the other drugs he had administered to C.R. or prescribed for her would result in any adverse consequences.

    
    

72. At no time did Dr. Royce teach C.R. how to self-administer Ketamine, nor did he ever approve or sanction such self-administration.

    
    

73. Following each Ketamine-assisted psychotherapy session, which generally lasted at least an hour, C.R. remained in Dr. Royce's office, in the company of Dr. Royce's wife and/or his daughter Jacqueline, for a minimum of another hour to an hour and a half. C.R. was not permitted to leave until it was determined that it was safe for her to do so.

    
    

74. The last Ketamine-assisted psychotherapy session was on June 11, 1985.

    
    

75. Dr. Royce stopped using Ketamine as an adjunct to psychotherapy because he reasonably believed that, in light of the progress C.R. had made, she no longer needed to rely on the drug's abreactive or dissociative effect in order to engage in effective psychotherapy.

    
    

76. Instead of Ketamine, he used Brevital for C.R.'s last seven drug- assisted psychotherapy sessions.

    
    

77. The final drug-assisted psychotherapy session was held on July 9, 1985, which was the last time Dr. Royce saw C.R.

    Electric Current Therapy

    
    

78. Electroconvulsive therapy is an accepted treatment for serious depression involving the delivery, to electrodes placed on the patient's skull, of a measured amount of electric current (on the average 350 millilamps) sufficient to produce a seizure or convulsion. Ordinarily, the patient is premedicated with an anesthetic and medication to modify the convulsion and its impact.

    
    

79. Dr. Royce recommended that C.R. be hospitalized and receive in- hospital electroconvulsive therapy. C.R.'s reaction to the recommendation was a "very negative" one.

    
    

80. She did agree, however, to undergo non-convulsive electric current therapy, which is helpful in treating anxiety and in facilitating effective psychotherapy.

    
    

81. She gave her consent in two signed, handwritten statements, one dated November 13, 1984, and the other dated January 31, 1985.

    
    

82. C.R.'s November 13, 1984, statement read as follows:

    
    

    Permit for a Series of Electric-shock Treatments This is to give permission to Irving D. Royce, M.D. and to members of his office staff to administer a series of Electric Shock Treatments to me to treat my mental illness. These treatments will be given to me in addition to the Psychotherapy and medica- tions prescribed for me.

    
    

    The treatment procedure will include having electrodes placed on my head. Then an electric current will flow through the electrodes. There will be no pain or danger of a convulsion because of the very low amount of amperes that will flow. Medications which may be used during the series of electric treatments may include Atropine, Anectine, Brevital or Pentothal, and/or oxygen.

    
    

    I understand that these treatments are frequently effective (especially in regard to anxiety and/or depression) because they theoretically modify the chemical reactions within the brain. Other possible therapies have been discussed with me by Dr. Royce, including anti-depressant medication, psychotherapy, behavior modification, and convulsive electro-shock treatments (plus combination of these techniques.) However, I prefer at this time to start a series of the electro-shock treatment described in the second paragraph above, anywhere from five to twelve in number to comprise the series.

    
    

    I also understand that these treatments are not effective 100 percent of the time. Dr. Royce has also warned me that there have been side-effects reported in the literature but that patients he has known have not had any persistent complaints.

    Adverse reactions which have been reported included excitement and sedation. The injections may also cause local irritation of the skin.

    
    

    I am not pregnant and shall wait until the treat- ments are completed before considering becoming pregnant, although pregnancy is not in my plans at this time or in the near-future.

    
    

    Also, I agree to wait in Dr. Royce's office for at least an hour after each treatment, until he advises me that I may safely allow a responsible person to drive me home. I have been advised not to drive an automobile, not to operate any machinery, and to stay at home for the remainder of the day after each treatment.

    
    

    The actions and possible side-effects of each medication listed above has been described to me by Dr. Royce. In addition, I have been advised

    of the antidepressant and other actions of TOFRANIL, ELAVIL, MARPLAN, NARDIL, PARNATE, AMPHETAMINE, PLEGINE, AND DIDREX.

    
    

    No guarantees have been given to me as to the results which may be achieved by this course of treatment.

    
    

83. C.R.'s January 31, 1985, statement read as follows: Permission for Electro-shock Treatment

    I, [C.R.], hereby give permission to Irving D. Royce, M.D., and his assistants to give me a series of electro-shock treatments, using Anectine, Brevital, Pentothal, and/or Atropine and any related medication. I have occasional back pain from a previous injury.

    
    

84. Dr. Royce retained C.R.'s November 13, 1984, and January 31, 1985, statements as part of his medical records on C.R.

    
    

85. On seven different occasions, from January 31, 1985, to March 15, 1985, Dr. Royce administered non-convulsive electric current therapy to C.R. using a Reiter Electrostimulator (Model CW47).

    
    

86. Before doing so he did not consult with any other physician.

    
    

87. In administering non-convulsive electric current therapy to C.R. without consulting with and obtaining the agreement of another physician, Dr. Royce did not act in a manner that was inconsistent with what a reasonably prudent psychiatrist at the time would have done under similar circumstances.

    
    

88. Given C.R.'s symptomatology, such therapy was not inappropriate. Rather, it was indicated.

89. Some time after leaving Dr. Royce's office following the fifth non- convulsive therapy session on February 22, 1985, C.R. returned to the office for a second visit, during which she received Ketamine-assisted psychotherapy. Following the sixth non-convulsive electric therapy session on March 8, 1985,

    C.R. appeared to be disturbed about something and delayed leaving Dr. Royce's office. To help reduce her anxiety, Dr. Royce decided to have a Ketamine- assisted psychotherapy session with her before she left the office that day. These were the only occasions that Dr. Royce administered both non-convulsive electric current therapy and Ketamine to C.R. on the same date. 19/ In doing so on these two occasions, Dr. Royce did not act in a manner that was inconsistent with what a reasonably prudent psychiatrist at the time would have done under similar circumstances.

    
    

90. The Reiter Electrostimulator that Dr. Royce used to administer electric current therapy had three different settings, only one of which, Setting 3, was designed to generate a current sufficient to produce a seizure or convulsion. Dr. Royce never used Setting 3 in treating C.R. He only used Settings 1 and 2, which produced non-convulsive stimulation.

    
    

91. Although it was always Dr. Royce's intention to comply with C.R.'s wishes and administer non-convulsive, not convulsive, electric current therapy, Dr. Royce took the prudent precautionary measure before each electric current therapy session of premedicating C.R. with Brevital, Atropine and Anectine in the highly unlikely event that there was a mishap resulting in C.R. suffering a seizure or convulsion during a session.

    
    

92. Such a mishap never occurred. At no time during any electric current therapy session did C.R. have a seizure or convulsion.

    
    

93. Furthermore, she suffered no adverse reaction of any kind to the therapy.

    
    

94. Nonetheless, the non-convulsive electric current therapy was discontinued because Dr. Royce felt that, in light of the improvement C.R. had made, his time with her would be better spent pursuing other treatment alternatives.

    
    

95. Although the electric current therapy administered to C.R. was at all times non-convulsive in nature, Dr. Royce did not so indicate in the medical records that he maintained on C.R.

    
    

96. In these records, Dr. Royce used the abbreviation "ECT" to refer to the non-convulsive electric current therapy he was administering to C.R.

    
    

97. "ECT" was then, as it is now, understood by most practitioners to refer to electrconvulsive therapy, although it has also been used by some practitioners to indicate electric current therapy of any type. Therefore, at best, Dr. Royce's medical records convey that Respondent administered some form of electric current therapy in treating C.R., but leave the reader to speculate whether the therapy was convulsive or non-convulsive in nature. 20/ At worst, they inaccurately suggest that Dr. Royce administered electroconvulsive therapy to C.R.

    
    

    C.R.'s Rectal Fissure

    
    

98. Dr. Royce never treated C.R.'s rectal fissure.

99. Rather, he insisted that she be treated by a specialist.

    
    

100. He provided her with medication for the pain she was experiencing as a result of the fissure only after she had made an appointment to see a specialist.

     
     

101. In providing C.R. with such pain medication, Dr. Royce was not practicing outside the scope of his competence or expertise.

     
     

102. In January and February of 1985, David Ornstein, M.D., an internist and gastroenterologist, provided C.R. with treatment for her rectal fissure.

     
     

103. Following such treatment, Dr. Ornstein instructed C.R. to follow-up with her psychiatrist for psychiatric care.

     
     

     C.R.'s Death

     
     

104. On July 11, 1985, C.R. was found dead on the floor in the kitchen of her apartment. She was sitting with her legs crossed and her upper body bent forward. Her head was almost touching the floor. Next to her, lying on the floor, was a telephone receiver.

     
     

105. A search by police of the apartment and its contents revealed, among other things: hypodermic needles; syringes; two empty vodka bottles; a large number of empty, partially filled, and filled, labelled 21/ and unlabelled medication vials and containers; 22/ and labelled audio cassette tapes. 23/

     
     

106. An autopsy was conducted on C.R.'s body by the Dade County Medical Examiner's Office.

     
     

107. The autopsy revealed the presence of neither alcohol, cocaine or Ketamine in C.R.'s bloodstream.

     
     

108. Phenobarbital 24/ and Placidyl, however, were detected. The amount of the former, but not the latter, was in the fatal range. Other drugs, such as Valium, were determined to be present, but merely in insignificant trace amounts.

     
     

109. C.R.'s lungs were congested. Such congestion is common in drug- related deaths.

     
     

110. Small linear marks, which appeared to be needle track scars, were discovered on C.R.'s left arm. 25/

     
     

111. After the autopsy was performed, the Dade County Medical Examiner's Office determined that C.R.'s death was accidental, that the immediate cause of her death was acute "polydrug [to wit: Phenobarbital and Placidyl 26/] intoxication," and that "positional asphyxia" was a secondary contributing factor.

     
     

112. There was no evidence that C.R.'s death was the result of chronic substance abuse.

     
     

     The Department of Professional Regulation's Investigation

     
     

113. On or about August 14, 1985, the Department of Professional Regulation received a complaint from Roger Mittleman, M.D., Dade County's

     Associate Medical Examiner, concerning Dr. Royce's treatment of C.R. Dr. Mittleman's complaint was recorded on a Uniform Complaint Form, which contained the following "Analysis:"

     
     

     As a PSYCHIATRIST, SUBJECT [Dr. Royce] treated [C.R.] as a patient. Included in treatments were self-hypnotic drugs such as BREVITAL SODIUM (a barbiturate anesthetic), treatment for alcoh-

     olism, therapy for suicide tendencies. SUBJECT'S Business Card reads: Just Call "WHY SEXY (949-7399). SUBJECT allegedly dispensed unlabeled medications dating as recently as April 26, 1985; prescribed DARVOCET April 30, 1985; prescribed PLACIDYL, VALIUM, LIBRIUM BENADYRL, etc. and [C.R.] was

     reportedly taking up to 16 different prescribed medications daily, most of which were prescribed by DR. ROYCE. SUBJECT also was reportedly aware that [C.R.] had been self-injecting KET[A]LAR

     (which may have been obtained through DR. BERNSTEIN, VM, or DR. BLACK, VM). SUBJECT was reportedly aware of extreme dependency [C.R.] had on him, although SUBJECT continued to prescribe in high quantities

     to [C.R.] [C.R.] was found dead on her kitchen floor on July 1985 f[rom] a POLYDRUG OVERDOSE [ASPHYXIAL] POSITIONING. Documentation is available from Dr. Mittleman, Medical Examiner, and Detective Dellerson, North Miami Police Department.

     
     

     Possible excessive and inappropriate prescribing, and possible failure to practice psychiatric medicine according to peer standards- 458.331(1)(q)(t), F.S.

     
     

114. Dr. Mittleman's complaint was assigned a Department case number, DPR Case Number 00-61481, and a Department investigation into the matter was commenced.

     
     

115. As part of her investigation, the Department investigator working on the case, Allison Lichtenstein, interviewed Dr. Mittleman and then Dr. Royce. During her interview with Dr. Royce, Lichtenstein advised him of the substance of Dr. Mittleman's complaint and of the Department's investigation of that complaint. 27/

     
     

116. Thereafter, on or about April 18, 1986, Lichtenstein prepared a written investigative report (hereinafter referred to as "Lichtenstein's investigative report") summarizing what had transpired during the interviews.

     
     

117. With respect to her interview with Dr. Mittleman, Lichtenstein stated the following in her report:

     
     

     On September 4, 1985 this investigator inter- viewed Dr. ROGER MITTLEMAN at his place of employment, the Dade County's Medical Examiner's office, located at 1050 N.W. 19th Street, Miami, Florida 33233, (305) 549-7342.

     Dr. MITTLEMAN relayed the following information which can also be found in the Medical Examiner Department's Investigative Report,

     (Exhibit Number 2).

     
     

     On July 10, 1985 [C.R.'s] aunt, [S.S.], telephoned the North Miami Police Department and asked that a unit be sent to [C.R.'s] address to check on her welfare. Police units responded to the scene and found [C.R.] to be "alive and well." On July 11, 1985 [C.R.] failed to report to her place of employment, an animal hospital located at 1119

     N.E. 163rd Street, North Miami, Florida 33162.

     At the close of office hours Dr. LARRY BERNSTEIN sent two female employees to [C.R's] residence to check on her. The two female employees received no response from knocking at the door so they entered the residence through the unlocked door. [C.R.] was found dead on arrival sitting "indian style" on the floor with a telephone receiver in her hand. In addition a search of [C.R.'s] purse revealed nine containers of assorted medication including paregoric. According to friends [C.R.] was under psychiatric care and was "receiving injections" from Dr. ROYCE.

     
     

     On July 12, 1985, Dr. ROYCE spoke with the Medical Examiner's office and stated that he first saw [C.R.] on October 2, 1984 and began treating her for "depressive reaction" and "alcoholism." Dr.

     ROYCE stated that he last saw [C.R.] on July 9, 1985.

     
     

     Dr. Mittleman states then an autopsy and toxicology report reveals that at the time of [C.R.'s] death she had a high level of phenobarbital, as well as

     Placidyl, Valium and Paregoric present. In addition, [C.R.'s] urine contained opiates and she was "seen intoxicated prior to her death."

     
     

     Medications found in [C.R.'s] apartment at the time of her death consisted of Elavil, Percodan, Sudafed, Inderal, Paregoric, Desyril, Placidyl, Sinequan and Didrex, all prescribed by Dr. ROYCE. Assorted unmarked medications by Dr. ROYCE were also found.

     
     

     Also present were additional medications prescribed by various area physicians and veterinarians.

     
     

118. With respect to her interview with Dr. Royce, Lichtenstein stated the following in her report:

     
     

     On September 6, 1986 28/ this investigator interviewed IRVING D. ROYCE, M.D. at his place of practice located at 17122 West Dixie Highway, North Miami Beach, Florida 33162, telephone (305) 949-7399.

     Dr. ROYCE states that he received his medical training from the Chicago Medical School and his psychiatric training at the Lyons Veteran Hospital in New Jersey. Dr. ROYCE states that he is not a board certified psychiatrist but that he is board eligible, (Exhibit Number 3).

     
     

     Dr. ROYCE states that he first treated [C.R.] on October 2, 1984 after she was referred by another of his patients, [F.G.]. According to Dr. ROYCE, [C.R.] was complaining about her weight which was 167 1/2 pounds for her 5'1" frame. In addition [C.R.] was nervous and suffering from "agitated depression." Dr.

     ROYCE states that in the year previous to [C.R.'s] first visit she experienced the death of her mother, the suicide of her boyfriend and had to put two of her pet cats to sleep. According to Dr. ROYCE [C.R.] made

     a previous suicide attempt which Dr. ROYCE did not deem a "serious attempt" due to no apparent "wrist scars." Although Dr. ROYCE states that [C.R.] had undergone previous psychotherapy he found her in "good affect" and an "agitated mood." Dr. ROYCE states that [C.R.'s] medical history consisted of having silicon placed in her chin and "having her nose done." Dr. ROYCE states that [C.R.] had no previous history of schizophrenia.

     
     

     During Dr. ROYCE's subsequent examinations of [C.R.] he prescribed Sinequan (an Anti-depressant) and Valium (for irritability). Dr. ROYCE states that "at one time she mentioned extreme drinking," however Dr. Royce did state that he did not feel [C.R.] had an abusive personality.

     
     

     When questioned as to [C.R.'s] death on July 11, 1985 Dr. ROYCE stated that [C.R.] had the idea that she would die before January 1985 and had even paid for her own burial plot and found alternate homes for her pet cats. Dr. ROYCE stated this along with information he received from friends of [C.R.] were "episodes of atten- tion getting."

     
     

     Dr. ROYCE stated that he would see [C.R.] twice weekly and that she would telephone him daily. According to Dr. ROYCE, [C.R.] was "definitely improving" in that she had lost forty pounds

     with the aid of Plegine, which "curbs the appetite and elevates the mood," and Didrex, a substitute for Plegine.

     
     

     Dr. ROYCE states that [C.R.] was a "tense person" but did not have an abusive personality." Dr.

     ROYCE bases this opinion on the fact he never saw [C.R.] "staggering, sleepy or with slurred speech."

     
     

     Of medications prescribed to [C.R.], Dr. ROYCE states that [C.R.] had a "rectal fissure, diarrhea and stomach cramps" for which he prescribed Paregoric. Dr. ROYCE states that he prescribed Percodan for [C.R.] when she was unable to see

     her Proctologist, Dr. DAVID ORENSTEIN, however, Dr. ROYCE did not verify [C.R.'s] treatment by Dr. Orenstein. Dr. ROYCE states that he did examine [C.R.] when she complained about stomach cramps. Dr. ROYCE also prescribed Placidyl to help [C.R.] "sleep and cope with the loss of DAVID" (her boyfriend who committed suicide).

     According to Dr. ROYCE he "saw her or spoke with her daily and would have known if she took an overdose of Placidyl." Dr. ROYCE stated he prescribed Darvocet for anal or abdominal pain or "possibly for headaches" associated with [C.R.'s] menstrual cycle.

     
     

     According to Dr. ROYCE he prescribed Darvocet after refusing to prescribe Percodan. Dr.

     ROYCE prescribed XANAX instead of Valium and Inderal for "panic attacks" instead of a sedative. According to Dr. ROYCE he prescribed both Valium and Librium to [C.R.] as a sedative due to the fact that when she exhibited tension she would "say something inappropriate and this would

     lead to a panic attack." Dr. ROYCE states that [C.R.] "had difficulty with interpersonal relationships" and that the medication would

     be "safe as long as I had this close contact with her." Dr. ROYCE also prescribed Benadryl when [C.R.] complained of itching in the vulva area and skin." Dr. ROYCE examined her skin only and felt it was "nerves" and recommended [C.R.] see a Gynecologist. According to Dr.

     ROYCE, [C.R.] needed medication during the day to function and at night to sleep.

     
     

     Dr. ROYCE states that [C.R.] was also receiving Ketamine therapy which according to Dr. ROYCE has "great use in helping a person uncover resistance." Dr. ROYCE states that he is not aware if [C.R.] had self injected and that the hypodermic needles found in her apartment could have been used for giving "shots to her cats." DR. ROYCE also states that he performed five shock treatments with [C.R.] and that these had a "dramatic improvement in her."

     
     

     Dr. ROYCE states that the final time he saw [C.R.] prior to her death was July 9, 1985 and he did not

     prescribe any medication, however, on July 8, 1985 Dr. ROYCE did prescribe both Xanax and Placidyl for [C.R.], (Exhibit Number 4).

     
     

119. Appended as exhibits to Lichtenstein's investigative report were: the Uniform Complaint Form on which Dr. Mittleman's complaint against Dr. Royce was recorded (Exhibit 1); the report of the Dade County Medical Examiner's Office regarding its investigation of C.R.'s death (Exhibit 2); a copy of an appointment card and a letterhead used by Dr. Royce (Exhibit 3); and Dr. Royce's medical records on C.R. (Exhibit 4).

     
     

120. On May 24, 1986, Matthew M. Cohen, M.D., made the following written recommendation to the Department after having reviewed the "case file" in DPR Case No. 00-61481:

     
     

     It is alleged that the subject [Dr. Royce] treated [C.R.] who committed suicide on July 11, 1985, at age 35. She had been under the care

     of the subject since October 2, 1984. The Medical Examiner felt that the patient suffered death from polydrug overdose. The case file consists of a lengthy Medical Examiner's report as well as office records from the subject.

     There may be existence of Probable Cause as

     it appears that the subject was aware that the patient abused/misused medications including injectable Ketamine which she may have obtained illicitly from her veterinarian employers.

     
     

     It would be my recommendation that the Department have this case file reviewed by a psychiatrist.

     It seems to me that the patient had significant pathology and significant suicidal risks. This would be best evaluated by a psychiatrist.

     
     

121. The Department followed Dr. Cohen's advice. On June 10, 1986, it sent the following letter to Martin Rosenthal, M.D., a board-certified psychiatrist:

     
     

     This letter will confirm our telephone conver- sation of June 9, in which you agreed to act as a consultant in the case referenced above [DPR Case No. 00-61481]. Enclosed is a copy of the investigative file, including patient records sent to us by Allison Lichtenstein, Investigator in our Miami office. Please review this infor- mation and furnish your opinion on the following:

     1. Has Dr. Royce prescribed, dispensed, administered, mixed or otherwise prepared a legend drug, including any controlled substance, other than in the course of his professional practice?

     2. Has Dr. Royce practiced, or offered to practice beyond the scope permitted by law or accepted and performed professional responsi- bilities which he knows and has reason to know that he is not competent to perform?

     3. Would Dr. Royce's treatment of this patient constitute gross or repeated malpractice? If so, what would a reasonably prudent similar physician have done under similar conditions and circumstances?

     4. Would Dr. Royce's treatment of the patient constitute a failure to practice medicine with that level of care, skill and treatment which

        is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances? If so, what would a reasonably prudent similar physician have done under similar conditions and circumstances?

        
        

        Please detail your reasoning in answering each of these questions to help us in preparing an appropriate recommendation for the Board's Probable Cause Panel. Should you need further information, please contact Ms. Lichtenstein at (305) 592-1165. By copy of this letter,

        I have notified her that this case has been sent to you.

        
        

        As you will recall, the information contained in this file must remain confidential, pursuant to Section 455.225(9), Florida Statutes, until ten days after probable cause has been found.

        We would appreciate receiving your report in this matter as soon as possible.

        
        

122. Dr. Rosenthal responded to the Department's request by letter dated July 1, 1986. In his letter to the Department, Dr. Rosenthal stated the following:

     
     

     I have reviewed the file you sent me regarding the above designated physician [Dr. Royce] in relation to his treatment of C.A.R.

     
     

     The patient died on July 11, 1985, of "polydrug intoxication." Over a nine month period, the physician prescribed Elavil, Percodan, Percocet, Sudafed, Inderal, Paregoric, Desyryl, Plegine; and further, he administered Ketamine by injec- tion frequently, "to overcome resistance," in his office and may have sanctioned self

     administration of Ketamine at home by the patient.

     
     

     The review that the doctor gave indicated that she was treated for "depression and overweight."

     She had made prior suicide attempts which he did not take seriously, "because she had no scars on her wrists . . . at one time she mentioned extensive drinking." In his

     10-23-84 note he wrote: "she tends to drink to the point of oblivion if she starts to drink." Yet, he said, he "did not consider her to be an addictive personality." However,

     further, in his 11-24-84 and 12-11-84 notes, he made reference to her utilizing "coke."

     
     

     He made reference on several occasions to the patient experiencing anxiety and "panic."

     
     

     There were references to the patient having had a rectal fissure, diarrhea and stomach cramps for which he prescribed Paregoric and Percodan.

     
     

     Further, there was notation of the patient having received five or six electric shock treatments (E.C.T) on 1-31, 2-1, 8, 15 and 22 and March 8, 1985. There was no evidence in the record presented of a second opinion consultation recommending shock therapy (as

     is required by Florida Statutes) nor was there confirmation of medical clearance for E.C.T. In addition, there was no description of the patient having been brought to and taken to the place of treatment by a responsible adult, a condition required after induction of intravenous anesthesia (Brevital) and exper- iencing of a major seizure, with presumably consequent post-treatment confusion.

     
     

     In the same span of time, when the patient was receiving electric shock therapy, in February, 1985, the doctor also noted several

     office treatments involving Ketamine injection with adjuvant sedatives being used.

     
     

     It should be noted that the use of Ketamine in psychiatry has been very controversial and

     limited; it is by no means standard. Ketamine, basically, is an anesthetic which can often induce euphoria, confusional states, halluci- nations and, reportedly, it has been subject

     to abuse. The package insert specifies the risks associated with Ketamine and the injunc- tion that "when used on an out-patient basis,

     the patient should not be released until recovery from anesthesia is complete and then should be accompanied by a responsible adult."

     
     

     Given the expected side effects inherent in the use of electric shock therapy, with immediate and then some sustained confusion, it is in my opinion quite questionable to use Ketamine for psychiatric induction purposes in the same span of time that shock therapy is administered.

     Actually, the use of Ketamine for these purposes is very questionable in even a non-drug dependent individual, but is especially questionable in a person who has demonstrated clearly a drug dependency problem.

     I note further, in a report by the Medical Examiner, Dr. Roger Mittleman (7-12-85) under history (paragraph three): "according to friends, her psychiatrist gave her injections and took her

     on trips."

     
     

     Further, in his note of 3-21-85, the Doctor noted that the patient had a balance of $4200.00. This merely raises the issue as to why he would continue treatment under these circumstances.

     
     

     "Dial-sexy" imprinted on the Doctor's business cards and prescriptions is superficially noted,

     and in my opinion this is not properly professional.

     
     

     On a more serious level, there appear to be several matters representing poor judgment:

     1. There is ample evidence that this patient should have been considered an addictive personality. The heavy use of alcohol as such should have established this. Thus, in such an abusing personality, the use of controlled substances, including Benzodiazepines, babiturates, amphetamines or congeners (Didrex, Plegine), Placidyl, Percodan and Percocet is inappropriate; the use of Ketamine is equally representative of poor judgment.

     2. In the face of severe anxiety and "panic" the prescription of central nervous system stimulants, such as Didrex and Plegine, is typically contraindicated.

     3. The psychiatrist treating rectal fissure, as such appears to be acting inappropriately, out of the reach of his expertise.

     
     

     In reference to your questions:

     Number 1 (Has the Doctor prescribed .. other than in the course of his professional practice?) There was the allegation in Dr. Mittleman's note that the Doctor "took her on trips." This would have to be verified or disproved, but if it were to have been the case, then the behavior and then the concurrent treatment and the prescription of drugs would be non-professional.

     Number 2 (Has the Doctor practiced beyond the scope or the level which he knows or should know that he is not competent to perform?) I [c]ite here the inappropriateness of his treating the rectal fissure condition, his use and circumstances of use of Ketamine (because it is so controversial, and inappropriate, particularly in an addictive personality).

     Further, the fact of his claim to have completed an approved three year residency in psychiatry should be verified.

     Number 3 (Would his treatment of this patient constitute malpractice?) In my opinion the

     physician should not have prescribed the plethora of controlled substances and to use Ketamine in

     an addictive personality; in my opinion, he should not have utilized both electric shock therapy and Ketamine treatments in the same period of time.

     The presence or absence of a second opinion consultation recommending electric shock treatment as per Florida statute should be verified one way or the other.

     Number 4 (Did the Doctor fail to practice with the level of care . .) In my opinion, he did not practice at the proper level of care.

     
     

     A prudent other physician would have referred this patient for hospitalization or to an alcohol or drug rehabilitation unit or at least to A.A. He would not have prescribed the variety of controlled substances to her. He would have clearly obtained a second opinion consultation recommending electric shock treatment. He would have unlikely used Ketamine at all, but particularly not so in a drug- abusing personality or in conjunction with electric shock treatment.

     
     

123. In January of 1990, the investigation of Dr. Mittleman's complaint against Dr. Royce was still ongoing and another Department investigator, Louis Collado, was assigned to work on the case.

     
     

124. In a written investigative report that he prepared (hereinafter referred to as "Collado's investigative report") Collado gave the following "synopsis" of the results of the investigative work he performed:

     
     

     This investigation was based upon a January 10, 1990 memorandum from DPR Legal, Tallahassee, Florida. Several items are requested, trans- criptions or copies of tapes, analysis of 3 unmark[ed] medications, a curriculum vitae from subject [Dr. Royce] and verification of the types of "trips" which the subject took with patient.

     
     

     Analysis of unmarked medications 29/ and Dr. ROYCE C.V. 30/ are attached, Exhibits Number 1 & Number 2.

     
     

     Medical Examiner, Dr. Mittleman states, of the 17-20 recordings only 4 cassette[] tapes are still available[;] the others were discarded because [they] contained mostly babbling. No attempts to make transcriptions of the 4 remain[]ing tapes, (Exhibits Number 4, Number 5, Number 6 & Number 7) were made because of the poor quality of the recordings and the

     lack of coherent conversations. Dr. MI[TT]LEMAN states the tapes were made by [C.R.] of herself. Apparently, C.R. was monitoring herself while she

     was under the influence of Ketamine injections. Most of the recordings consist of incoherent babbling (see Exhibit Number 3 page 21).

     
     

     The "trips" in question, according to former North Miami Police Detective, MARGIE DELLERSON, came from a statement from Dr. STEVE BERNSTEIN, who said that Dr. ROYCE had given [C.R.] injections that would send her to another plane, "like a trip," (see Exhibit Number 3, page 13).

     
     

     Attempts to contact witnesses, [C.R.'s] father, [E.R.] (deceased), Aunt [S.S.], Co-worker [C.V.] and Boyfriend [E.T.], were unsuccessful.

     Interview with former co-worker [W.W.] was unremarkable.

     
     

125. "Exhibit Number 3," which, like the other exhibits referenced in Collado's "synopsis," was appended to his investigative report, was the City of North Miami Beach's report of its investigation of C.R.'s death (hereinafter referred to as the "police report"). On page 15 of the police report, which was authored by Detective Margaret Dellerson, Dellerson described a telephone conversation she had with Dr. Royce on July 15, 1985, four days after C.R.'s death, as follows:

     
     

     At 5:30 p.m. I contacted Dr. Irving Royce, 931-3363. He has treated the victim about

     6 months. He stated she was progressing well in her therapy. She did have a "crush" on Dr. Bernstein but she has resolved that problem.

     He also was aware of the "affair" she was having with Ricky. When he was questioned about what type of drugs he was using for injections he stated "Brevital and Ben[a]dryl." He denied using Ketamine or Ketalar. He did state however that she had mentioned she saw it used as an anesthetic and that she could get some to use

     on herself. He states he strongly advised her against this practice. He did make a statement, however, that he would not be surprised to find she died with a "syringe in her arm." He advised on Wed. July 10, 1985 he did get 3 messages. He states two were from [C.R.] and one from Mrs. [S.]. He states he did try to call her back until late Wednesday night but got a busy signal. He did not realize it was any type emergency.

     He states he did know that she did take the phone off the hook from time to time when she did not want to talk on the phone and accepted this as being the case. He did not try to call the aunt back due to the late hour. He stated that she did drink heavily, vodka he believed. She was progressing, well until her boss got married and then she began to go backwards for a time. He

     suggested I speak with a girl name[d] "Sissy" that she use[d] to work with as he felt they were good friends.

     
     

     The January 28, 1991, Meeting of the Probable Cause Panel

     
     

126. A three-member Board of Medicine probable cause panel met on January 28, 1991, to consider DPR Case No. 00-61481.

     
     

127. The members of the panel were James Burt, M.D., David Wertheimer, M.D., and Pamela Campbell.

     
     

128. M. Catherine Lannon, the Chief of the Attorney General's Administrative Law Section, served as the panel's legal advisor. She advised the panel members as to what their legal obligations were under the law.

     
     

129. Also present at the meeting was Department attorney Lynne Quimby- Pennock.

     
     

130. Prior to the meeting the panel members had reviewed various documents they had been furnished by the Department in connection with DPR Case No. 00- 61481, including the following: Lichtenstein's investigative report and the attached exhibits; Dr. Cohen's May 24, 1986, written recommendation; the Department's June 10, 1986, letter to Dr. Rosenthal; Dr. Rosenthal's July 1, 1986, letter to the Department; and Collado's investigative report and the attached exhibits. 31/

     
     

131. Acting reasonably and with substantial justification given the materials with which it had been provided, the panel voted unanimously to find probable cause and directed that an Administrative Complaint be issued against Dr. Royce. Thereafter, Dr. Burt, the chairperson of the panel, signed a Memorandum of Finding of Probable Cause, dated January 28, 1991, which read as follows:

     
     

     This matter was brought before the probable cause Panel membership composed of James Burt, M.D., David Wertheimer, M.D., Pamela Campbell, on the date set forth above. The panel, having received the investigative report, having care- fully reviewed that report, having reviewed the recommendation of the Department and having had the opportunity to inquire of counsel, and being otherwise duly advised in the premises thereof find that: Probable cause was found on the following statutory and rule grounds, including but not limited to Section(s): 458.331(1)(t), 458.331(1)(m), 458.331(1)(q), 458.331(1)(x),

     458.331(1)(v), 458.331(1)(u), Fla. Stat.

     
     

     The Administrative Complaint

     
     

132. On March 6, 1991, the Department issued an Administrative Complaint as directed by the probable cause panel.

     
     

133. The Administrative Complaint contained six counts. It alleged that, in connection with his care and treatment of C.R. (who was referred to in the Administrative Complaint as "Patient Number 1"), Dr. Royce violated: Count One-

     Section 458.331(1)(m), Florida Statutes, in that "[Dr. Royce's] medical records of Patient Number 1 do not justify [Dr. Royce's] failure to diagnose Patient Number 1's abusive and addictive personality; [Dr. Royce's] medical records do not justify [his] inappropriate and excessive prescribing of controlled substances and other legend drugs, especially Ketalar, over a ten (10) month period; [Dr. Royce's] medical records failed to justify [his] failure to seek a consultation with another physician, and document said consultation [prior] to performing ECT 32/ on Patient Number 1; [and Dr. Royce's] medical records fail to justify [his] inappropriate use of Ketalar (Ketamine) treatment concomitantly with ECT;" Count Two- Section 458.331(1)(q), Florida Statutes, "in that [Dr. Royce] prescribed Plegine for Patient Number 1, when [Dr. Royce] knew or had reason to have known that said patient had a history of drug abuse; [Dr. Royce] inappropriately prescribed Plegine concomitantly with Didrex, a CNS stimulant, for Patient Number 1; [Dr. Royce] inappropriately administered Ketalar, in conjunction with ECT treatment; [Dr. Royce] inappropriately and excessively prescribed the following controlled substances: Benzodiazepines, Barbiturates, Amphetamines, and Ketalar;" Count Three- Section 458.331(1)(t), Florida Statutes, "in that [Dr. Royce] failed to diagnose Patient Number 1's addictive and abusive personality; [Dr. Royce] inappropriately and excessively prescribed legend drugs, most of which were controlled substances, over a ten

     (10) month period to Patient Number 1, without proper justification; [Dr. Royce] failed to acquire a consultation with another physician before ordering ECT for Patient Number 1; [Dr. Royce] inappropriately administered ECT treatments in conjunction with Ketalar therapy; and [Dr. Royce] utilized ECT treatments when they were not indicated;" Count Four- Section 458.325(2), Florida Statutes, and therefore Section 458.331(1)(x), Florida Statutes, in that "[Dr. Royce] failed to have Patient Number 1's treatment record reviewed, and the proposed Electroconvulsive Therapy agreed to by another physician, not directly involved with Patient Number 1, before the electroconvulsive therapy was administered to Patient Number 1;" Count Five- Section 458.331(1)(v), Florida Statutes, in that "[Dr. Royce] practiced outside his expertise by treating Patient Number 1's rectal fissure during the course of her psychiatric treatment;" and Count Six- Section 458.331(1)(u), Florida Statutes, in that "[Dr. Royce] treated Patient Number 1's psychiatric condition with Ketalar (Ketamine) and utilized Ketalar (Ketamine) in conjunction with ECT treatments" without "first obtaining full, informed and written consent" from the patient.

     
     

     Proceedings Before the Division of Administrative Hearings

     
     

134. Dr. Royce denied the allegations of wrongdoing made against him in the Administrative Complaint and requested a formal hearing.

     
     

135. On May 6, 1991, the Department referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct the formal hearing Dr. Royce had requested. It was docketed as DOAH Case No. 91- 2811.

     
     

136. The formal hearing in DOAH Case No. 91-2811 was held on August 24, 1993, and February 22, 24 and 25, 1994. 33/

     
     

137. At the hearing, the Department presented the live testimony of three witnesses: Dr. Mittleman, the board-certified anatomic, clinical and forensic pathologist who performed the autopsy on C.R.; Dr. Rosenthal; and Daniel Sprehe, M.D., who, like Dr. Rosenthal, is a board certified psychiatrist. The Department also offered eight exhibits (Exhibits 1 through 8) into evidence, all of which, except for its Exhibit 7, were admitted by the Hearing Officer. Among the Department's exhibits received into evidence were the transcripts of the

     depositions of James Hillman, M.D., a board certified toxicologist, and Margaret Dellerson, formerly of the City of North Miami Beach Police Department, which were offered in lieu of the deponents' live testimony at hearing. Dr. Royce testified on his own behalf at hearing and presented the testimony of six other witnesses: Melvin Simonson, M.D., a board certified psychiatrist; Kenneth Lasseter, M.D., a board certified clinical pharmacologist; Norman Craythorne, M.D., a board certified anesthesiologist; Jacqueline Royce, Dr. Royce's daughter; Carol Royce, Dr. Royce's wife and office manager; and Debra Mash- Geller, Ph.D., an Associate Professor of Neurology and Cellular and Molecular Pharmacology at the University of Miami School of Medicine. In addition, Dr.

     Royce offered various exhibits into evidence at hearing. All of these exhibits, except those that were subsequently withdrawn, were received into evidence.

     Among the exhibits of Dr. Royce received into evidence were the transcripts of the depositions of Dr. Ornstein, the certified internist and gastroenterologist who treated C.R. in early 1985 for her rectal fissure, and Lloyd Miller, M.D., a board certified psychiatrist. These depositions were offered in lieu of the deponents' live testimony at hearing.

     
     

138. The Hearing Officer issued his Recommended Order in DOAH Case No. 91- 2811 on January 18, 1995.

     
     

139. The Hearing Officer recommended that the Board of Medicine enter a final order finding Dr. Royce guilty of certain alleged recordkeeping violations, disciplining him for having committed these violations by issuing him a reprimand, and dismissing the remaining charges against him.

     
     

140. Count One of the Administrative Complaint was addressed in Conclusions of Law 119 through 126 of the Recommended Order, which read as follows:

     
     

     1. Count One of the Administrative Complaint issued in the instant case alleges that, in connection with his care and treatment of C.R., Respondent [Dr. Royce] violated Section 458.331(1)(m), Florida Statutes, in that "Respondent's medical records of [C.R.] do

        not justify Respondent's failure to diagnose [C.R.'s] abusive and addictive personality; Respondent's medical records do not justify Respondent's inappropriate and excessive prescribing of controlled substances and other legend drugs, especially Ketalar, over

        a ten (10) month period; Respondent's medical records failed to justify Respondent's failure to seek a consultation with another physician, and document said consultation [prior] to performing ECT on [C.R.]; [and] Respondent's medical records fail to justify Respondent's inappropriate use of Ketalar (Ketamine) treatment concomitantly with ECT."

        
        

     2. Respondent correctly points out in his proposed recommended order 34/ that "Count [One] is flawed, in that it alleges a violation of Section 458.331(1)(m), Florida Statutes, in failing to keep written medical records justifying the course of treatment of the

        patient," but "[i]n fact, under the law in effect at the time (1984-1985) that Respondent treated the patient . . . Section 458.331(1)(m),

        [Florida Statutes, proscribed] soliciting patients through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct." The flaw, however, is not, contrary

        to the position taken by Respondent, a fatal one warranting the dismissal of this count of the Administrative Complaint. The Department simply cited the wrong subsection of the version of Section 458.331, Florida Statutes, that was in effect at the time of the alleged violations.

        Instead of subsection (1)(m), it should have referenced subsection (1)(n) of the statute. This mistake in no way misled or otherwise prejudiced Respondent. Accordingly, it should be treated as a mere scrivener's error and not have any impact on the disposition or outcome of the instant case. See Danzy v. State,

        603 So.2d 1320, 1322 (Fla. 1st DCA 1992);

        Sanders v. State, 386 So.2d 256, 257 (Fla.

        5th DCA 1980); Youngker v. State, 215 So.2d 318,

        322 (Fla. 4th DCA 1968); see also Seminole County Board of County Commissioners v. Long, 422 So.2d 938, 940 (Fla. 5th DCA 1982)("[a] complaint filed by an administrative agency is not required to fulfill the technical niceties of a pleading filed in a court of law;" "[s]uch

        an administrative complaint must only be specific enough to inform the accused with reasonable certainty of the nature of the charge").

        
        

     3. At all times material to the instant case subsection (1)(n) of Section 458.331, Florida Statutes, authorized the Board to discipline a Florida-licensed physician for "[f]ailing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results, and test results." 35/

        
        

     4. This statutory provision does not purport to encompass "JCAH standards or those of a 'reasonably prudent physician;'" nor can it "be interpreted as authorizing disciplinary action for a physician's failure to document

        in a patient's medical chart a basis for not undertaking a particular course of treatment." Breesmen v. Department of Professional Regulation, Board of Medicine, 567 So.2d 469, 471 (Fla. 1st

        DCA 1990).

        
        

     5. It does impose upon the physician, however, an obligation to provide sufficient documentation "so that 'neutral third parties can observe what

        transpired during the course of treatment of a patient.'" Robertson v. Department of Profes- sional Regulation, Board of Medicine, 574 So.2d 153, 156-57 (Fla. 1st DCA 1990).

        
        

     6. In the instant case, Respondent failed to meet this obligation by not documenting the following in the medical records that he maintained on C.R.: his belief that C.R.'s claims of cocaine and excessive alcohol use were "attention-getting" fabrications and the basis of this belief; 36/ his instructions to C.R. that the Plegine and Didrex he pre- scribed for her during the same visit be used sequentially and not concomitantly; 37/ and

        the true nature of the electric current therapy he administered to C.R. 38/

        
        

     7. His failure to have included such infor- mation in his medical records was a violation of former subsection (1)(n) of Section 458.331,

        Florida Statutes, for which he should be disciplined.

        
        

     8. In all other material respects, Respondent's records provide sufficient information to give "neutral third parties" a reasonably clear understanding of what Respondent did to treat

     C.R. during the time that she was under his care and the circumstances that led him to follow such a course of treatment. Accordingly, to the extent that Count One alleges that Respondent otherwise violated former subsection (1)(n) of Section 458.331, Florida Statutes, it is not supported

     by even a preponderance of the evidence and accordingly should be dismissed.

     
     

141. Count Two of the Administrative Complaint was addressed in Conclusions of Law 127 through 130 of the Recommended Order, which read as follows:

     
     

     1. Count Two of the Administrative Complaint issued in the instant case alleges that, in connection with his care and treatment of C.R., Respondent violated Section 458.331(1)(q), Florida Statutes, "in that Respondent prescribed Plegine for [C.R.], when Respondent knew or had reason to have known that said patient had a

        history of drug abuse; Respondent inappropriately prescribed Plegine concomitantly with Didrex, a CNS stimulant, for [C.R.]; Respondent inappro- priately administered Ketalar, in conjunction

        with ECT treatment; Respondent inappropriately

        and excessively prescribed the following controlled substances: Benzodiazepines, Barbiturates, Amphetamines, and Ketalar."

     2. At all times material to the instant case, subsection (1)(q) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[p]rescribing, dispensing, administering, mixing or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's practice" and has further provided

        as follows:

        "For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his intent."

        
        

     3. It has not been established by even a preponderance of the evidence that: Respondent knew or had reason to believe that C.R. had a history of drug abuse; Respondent acted inappro- priately, that is, contrary to what a reasonably prudent similar physician would have recognized as being acceptable under similar conditions and

        circumstances, in concomitantly prescribing Plegine and Didrex (but for sequential, not concomitant, use); Respondent administered electroconvulsive therapy to C.R.; Respondent administered Ketalar (Ketamine) to C.R. "in conjunction with" electric current therapy of any type; Respondent's use

        of Ketalar (Ketamine) as an adjunct to C.R.'s psychotherapy was at any time, including February

        22 and March 8, 1985, when it was administered following a non-convulsive electric current therapy session, either inappropriate or excessive; Respondent prescribed (rather than administered) Ketalar (Ketamine) for C.R.; Respondent prescribed, dispensed or administered any amphetamines; or Respondent prescribed, dispensed or administered

        any benzodiazepines, barbiturates or any other controlled substances inappropriately or in excessive amounts.

        
        

     4. Accordingly, Count Two should be dismissed in its entirety.

     
     

142. Count Three of the Administrative Complaint was addressed in Conclusions of Law 131 through 134 of the Recommended Order, which read as follows:

     
     

     1. Count Three of the Administrative Complaint issued in the instant case alleges that, in connection with his care and treatment of C.R., Respondent violated Section 458.331(1)(t), Florida Statutes, "in that Respondent failed to diagnose

        [C.R.'s] addictive and abusive personality; Respondent inappropriately and excessively pre- scribed legend drugs, most of which were controlled substances, over a ten (10) month period to [C.R.] without proper justification; Respondent failed

        to acquire a consultation with another physician before ordering ECT for [C.R.]; Respondent inappropriately administered ECT treatments in conjunction with Ketalar therapy; and Respondent utilized ECT treatments when they were not indicated."

        
        

     2. At all times material to the instant case, subsection (1)(t) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[g]ross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances."

        
        

     3. It has not been established by even a preponderance of the evidence that: in failing to conclude that C.R. had an addictive or abusive personality, Respondent acted in a manner that deviated from what a reasonably prudent similar

        physician would have recognized as being acceptable under similar conditions and circumstances; Respondent prescribed, dispensed or administered any legend drugs during the treatment period inappropriately, excessively or without reasonable justification; Respondent administered electro- convulsive therapy (as opposed to non-convulsive electric current therapy) to C.R.; the non- convulsive electric current therapy that Respondent administered to C.R. was at any time, including February 22 and March 8, 1985, when it was administered prior to a Ketamine-assisted psychotherapy session held later the same day, inappropriate or not indicated; a reasonably prudent similar physician would have consulted

        with another physician before administering such non-convulsive electric current therapy; or Respondent administered such non-convulsive electric current therapy "in conjunction with Ketalar therapy."

        
        

     4. Accordingly, Count Three should be dismissed in its entirety.

     
     

143. Count Four of the Administrative Complaint was addressed in Conclusions of Law 135 through 139 of the Recommended Order, which read as follows:

     
     

     1. Count Four of the Administrative Complaint issued in the instant case alleges that, in connection with his care and treatment of C.R.,

        Respondent violated Section 458.325(2), Florida Statutes, and therefore Section 458.331(1)(x),

        Florida Statutes, in that "Respondent failed

        to have [C.R.'s] treatment record reviewed, and the proposed Electroconvulsive Therapy agreed to by another physician, not directly involved

        with [C.R.], before the electroconvulsive therapy was administered to [C.R.]."

        
        

     2. At all times material to the instant case, subsection (1)(x) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[v]iolating any provision of this chapter."

        
        

     3. At all times material to the instant case, Section 458.325(2), Florida Statutes, has provided as follows:

        "Before convulsive therapy or psychosurgery may be administered, the patient's treatment record shall be reviewed and the proposed convulsive therapy or psychosurgery agreed to by one other physician not directly involved with the patient.

        Such agreement shall be documented in the patient's treatment record and shall be signed by both physicians."

        
        

     4. It is undisputed that Respondent did not

        take the measures prescribed by Section 458.325(2), Florida Statutes, at any time during the treatment period. He was not required to do so, however, inasmuch as he never administered electroconvulsive therapy to C.R. While he did administer electric current therapy during the treatment period, it

        was always of the non-convulsive type, to which the requirements of Section 458.325(2), Florida Statutes, did not apply.

        
        

     5. Accordingly, Count Four should be dismissed in its entirety.

     
     

144. Count Five of the Administrative Complaint was addressed in Conclusions of Law 140 through 143 of the Recommended Order, which read as follows:

     
     

     1. Count Five of the Administrative Complaint issued in the instant case alleges that, in connection with his care and treatment of C.R., Respondent violated Section 458.331(1)(v), Florida Statutes, in that "Respondent practiced outside his expertise by treating [C.R.'s] rectal fissure during the course of her psychiatric treatment."

        
        

     2. At all times material to the instant case, subsection (1)(v) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[p]racticing or

        offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has

        reason to know that he is not competent to perform."

        
        

     3. It has not been established by even a preponderance of the evidence that Respondent treated C.R.'s rectal fissure. He simply provided her with medication for the pain she was exper- iencing as a result of the fissure. In doing so, he was performing a professional responsibility

        he was competent to undertake.

        
        

     4. Accordingly, Count Five should be dismissed in its entirety.

     
     

145. Count Six of the Administrative Complaint was addressed in Conclusions of Law 144 through 147 of the Recommended Order, which read as follows:

1. Count Six of the Administrative Complaint issued in the instant case alleges that, in connection with his care and treatment of C.R., Respondent violated Section 458.331(1)(u), Florida Statutes, in that "Respondent treated [C.R.'s] psychiatric condition with Ketalar (Ketamine)

   and utilized Ketalar (Ketamine) in conjunction with ECT treatments" without "first obtaining full, informed and written consent" from C.R..

   
   

2. At all times material to the instant case, subsection (1)(u) of Section 458.331, Florida Statutes, has authorized the Board to discipline a Florida-licensed physician for "[p]erforming any procedure or prescribing any therapy which, by the prevailing standards of medical practice

   in the community, would constitute experimentation on a human subject, without first obtaining full, informed, and written consent."

   
   

3. While it is undisputed that Respondent used Ketalar (Ketamine) as an adjunct to psy- chotherapy in his treatment of C.R., it has not been established by even a preponderance of the evidence that he did so "in conjunction with ECT treatments." Moreover, Respondent obtained C.R.'s "full, informed, and written

   consent," in the form of her signed November 6, 1984 "Permit to Dr. Royce" (Respondent's [Dr.

   Royce's] Exhibit 6) before he engaged in Ketamine-assisted psychotherapy with her.

   
   

4. Accordingly, Count Six should be dismissed in its entirety.

The Board's Final Order

1. Dr. Royce filed exceptions to the Hearing Officer's Recommended Order.

   
   

2. The Board of Medicine issued its Final Order on May 10, 1995. It "approved and adopted, and . . . incorporated" in the Final Order all of the findings of fact and conclusions of law set forth in the Hearing Officer's Recommended Order, with the exception of Conclusion of Law 155, in which the Hearing Officer concluded that, "for having committed the violations of former subsection (1)(n) of Section 458.331, Florida Statutes, noted above, [Dr. Royce] should be issued a reprimand." The Board deemed the penalty recommended by the Hearing Officer to be "excessive" and "substitute[d] therefore as the penalty .

   . . , a Letter of Concern, based upon the limited nature of the violation." On May 11, 1995, the Board's Final Order was filed and a copy of the order was mailed to Dr. Royce .

   
   

   Dr. Royce's Status as a "Small Business Party"

   
   

3. Dr. Royce is now, and has been at all times material to the instant case, including when the probable cause panel voted unanimously to find probable cause and directed that an Administrative Complaint be issued against Dr. Royce and when that Administrative Complaint was issued, the sole proprietor of an unincorporated professional (medical) practice with less than 25 employees (from which he derives a substantial portion of his total income), who is domiciled, and maintains his principal office in, the State of Florida.

   
   

4. C.R. was a patient of Dr. Royce's practice.

   
   

5. The treatment that she received while such a patient was the subject of the charges set forth in the Administrative Complaint issued against Dr. Royce.

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner is seeking an award of attorney's fees and costs in the instant case pursuant Section 57.111, Florida Statutes, subsection (4)(a) of which provides as follows:

   
   

   Unless otherwise provided by law, an award of attorney's fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the

   agency were substantially justified or special circumstances exist which would make the award unjust.

   
   

7. Statutes, like Section 57.111, Florida Statutes, authorizing an award of attorney's fees, are in derogation of the common law and therefore must be strictly construed. See Whitten v. Progressive Casualty Insurance Co., 410 So.2d 501, 505 (Fla. 1982); Sunbeam Enterprises, Inc. v. Upthegrove, 316 So.2d 34, 37 (Fla. 1975); Ibanez v. Department of Business and Professional Regulation, DOAH Case No. 95-0639F (Fla. DOAH August 29, 1995).

8. Section 57.111, Florida Statutes "'is designed to discourage unreasonable governmental action, not to paralyze agencies doing the necessary and beneficial work of government.'" Caughey v. Department of Insurance, DOAH Case No. 90-4473F (Fla. DOAH December 27, 1990).

   
   

9. A party seeking an award of "attorney's fees and costs" 39/ pursuant to Section 57.111, Florida Statutes, has the initial burden of proving that it is a "small business party," within the meaning of the statute, which had prevailed in an earlier "adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency." Once such proof has been submitted, the burden shifts to the agency to establish by a preponderance of the evidence that its actions in initiating the proceeding "were substantially justified or special circumstances exist which would make the award unjust." See Department of Health and Rehabilitative Services v. South Beach Pharmacy, Inc., 635 So.2d 117, 121 (Fla. 1st DCA 1994); Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 717-18 (Fla. 1st DCA 1989). An agency meets its burden of demonstrating that its actions were "substantially justified" by showing that the proceeding "had a reasonable basis in law and fact at the time it was initiated." Section 57.111(3)(e), Fla. Stat.; Gentele v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

   
   

10. No award made pursuant to Section 57.111, Florida Statutes, may exceed $15,000.00. Section 57.111(4)(d)2., Fla. Stat.

    
    

11. Furthermore, no award may be made in any amount "in any case in which the state agency was a nominal party." Section 57.111(4)(d)1., Fla. Stat.

    
    

12. In the instant case, the Agency has not claimed that it was a "nominal party" in DOAH Case No. 91-2811, nor has it contested the reasonableness of the amount of attorney's fees and costs Petitioner seeks to recover. The only issues in dispute are whether Petitioner is a "prevailing small business party," and if so, whether the Agency's predecessor, the Department, was substantially justified when it initiated the underlying administrative proceeding or whether there exist special circumstances which would make the award sought by Petitioner unjust.

    
    

    "Small Business Party"

    
    

13. A "small business party," as that term is used in Section 57.111, Florida Statutes, is defined in subsection (3)(d) thereof as follows:

    
    

    The term "small business party" means:

    1.a. A sole proprietor of an unincorpor-

    ated business, including a professional practice, whose principal office is in this state, who

    is domiciled in this state, and whose business or professional practice has, at the time the action is initiated by a state agency, not more than 25 full-time employees or a net worth of

    not more than $2 million, including both personal and business investments; or

    b. A partnership or corporation, including

    a professional practice, which has its principal office in this state and has at the time the action

    is initiated by a state agency not more than 25 full-time employees or a net worth of not more than $2 million; or

    2. Either small business party as defined in subparagraph 1., without regard to the number of its employees or its net worth, in any action

    under s. 72.011 or in any administrative proceeding under that section and s. 120.575(1)(b) to contest the legality of any assessment of tax imposed for the sale or use of services as provided in chapter 212, or interest thereon, or penalty therefor.

    
    

14. The proof submitted in the instant matter establishes that Petitioner is a "small business party," as that term is defined in subsection (3)(d)1.a of Section 57.111, Florida Statutes, inasmuch as it reveals that Petitioner is domiciled, and maintains his principal office, in the State of Florida, and, in addition, is the sole proprietor 40/ of an unincorporated professional (medical) practice, which, at the time of the initiation of the underlying administrative proceeding, had less than 25 employees. Moreover, the charges that were the subject of the underlying administrative proceeding concerned conduct in which Petitioner allegedly engaged in connection with his practice. See Azima v. Agency for Health Care Administration, DOAH Case No. 93-4130F (Fla. DOAH November 2, 1994).

    
    

15. The Agency argues that "Petitioner has not established that his professional practice is a small business party within the meaning of Section 57.111, Florida Statutes, because he has not established his net worth was less than $2 million at the time the proceedings were initiated." It is true that Petitioner has "not established his net worth was less than $2 million at the time the [underlying administrative] proceedings were initiated." This, however, is of no significance given that Petitioner has established (by a preponderance of the evidence) that, at the time of the initiation of the underlying administrative proceeding, his practice had "not more than 25 full- time employees." In order to qualify as a "small business party," as defined in subsection (3)(d)1.a of Section 57.111, Florida Statutes, a sole proprietor, like Petitioner, need not prove that his practice had both "not more than 25 full-time employees" and "a net worth of not more than $2 million" when the underlying administrative proceeding was initiated. See Sparkman v. McClure,

    498 So.2d 892, 895 (Fla. 1986)("the word 'or' is generally construed in the disjunctive when used in a statute or rule;" "[t]he use of this particular disjunctive word in a statute or rule normally indicates that alternatives were intended"); Telophase Society of Florida v. State Board of Funeral Directors and Embalmers, 334 So.2d 563, 566 (Fla. 1976)("[o]r when used in a statutes is generally to be construed in the disjunctive"); McKenzie Tank Lines, Inc., v. McCauley, 418 So.2d 1177, 1179 (Fla. 1st DCA 1982)("use of the emphasized word 'or' requires that the two clauses that it separates be read disjunctively"); but see March v. Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, DOAH Case No. 94-1251F (Fla. DOAH December 20, 1994), aff'd, 661 So.2d 13 (Fla. 3d DCA 1995). 41/

    
    

    "Prevailing Small Business Party"

    
    

16. According to subsection (3)(c) of Section 57.111, Florida Statutes, a "small business party" is a "prevailing small business party," as that term is used in Section 57.111, when:

    1. A final judgment or order has been entered in favor of the small business party and such judgment or order has not been reversed on appeal or the time for seeking judicial review of the judgment or order has expired;

    2. A settlement has been obtained by the small business party which is favorable to the small business party on the majority of issues which such party raised during the course of the pro- ceeding; or

    3. The state agency sought a voluntary dismissal of its complaint.

       
       

17. In the instant case, the underlying administrative proceeding came to a conclusion as the result of, not a settlement or a voluntary dismissal of the charges against Petitioner, but the entry of final order which disposed of these charges by finding Petitioner guilty of violations of former subsection (1)(n) of Section 458.331, Florida Statutes, alleged in Count One of the six-count Administrative Complaint, disciplining him for having committed these violations by issuing him a Letter of Concern, and dismissing the remaining charges against him.

    
    

18. A final order finding a physician guilty of misconduct alleged in one count of a six-count administrative complaint and disciplining the physician for having engaged in such misconduct is not a "final . . . order . . . in favor" of the physician, within the meaning of subsection (3)(c)1. of Section 57.111, Florida Statutes, notwithstanding that the order also dismisses the remaining, more serious, charges against the physician. 42/ See Ruffin v. Department of Professional Regulation, Division of Real Estate, 8 FALR 1312, 1316 (Fla. DOAH 1986)("[i]n her amended petition, Ruffin claims that the 'Final Order (found) for (her) on a majority of the issues raised in the Complaint.' But this criterion (that she prevail on a majority of the issues) applies only in the case where a settlement has been obtained"); but see Prisament v. Department of Professional Regulation, Division of Real Estate, DOAH Case No. 90-7684F (Fla. DOAH March 20, 1991); Gentele v. Department of Professional Regulation, Board of Optometry, 9 FALR 311, 323-25 (Fla. DOAH 1986), aff'd on other grounds, 513 So.2d 672 (Fla. 1st DCA 1987). Had the Legislature intended otherwise, it would have included in subsection (3)(c)1. of Section 57.111, Florida Statutes, language similar to the language it used in subsection (3)(c)2. of the same statute. Its failure to have done so reflects the Legislature's intent to make an award of attorney's fees and costs under Section 57.111, Florida Statutes, unavailable to a "small business party" who does not enter into a settlement and only partially prevails in the underlying administrative proceeding. See Department of Professional Regulation, Board of Medicine v. Durrani, 455 So.2d 515, 518 (Fla. 1st DCA 1984)("[t]he legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended"); Ocasio v. Bureau of Crimes Compensation, Division of Workers' Compensation, 408 So.2d 751, 753 (Fla. 3d DCA 1982)("[p]erhaps more important is that, if it wished, the legislature could easily have accomplished the result achieved below simply by using the familiar and unequivocal expression 'husband or wife' or, even more obviously, 'spouse'- as it significantly did in another portion, subsection (1)(c) of the identical statute. Its deliberate use of a quite different term in (2)(c) is strong evidence indeed that it intended a quite different meaning").

    
    

19. Because Petitioner failed to meet his burden of proving that he falls within the statutory definition of "prevailing small business party," he is not

    entitled to an award of attorney's fees and costs in any amount under Section 57.111, Florida Statutes. See Florida Real Estate Commission v. Shealy, 647 So.2d 151, 152 (Fla. 1st DCA 1994); Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 716 (Fla. 1st DCA 1989); Thompson v. Department of Health and Rehabilitative Services, 533 So.2d 840, 841 (Fla. 1st DCA 1988).

    
    

    "Substantially Justified"

    
    

20. In determining whether there was substantial justification to initiate the underlying administrative proceeding against Petitioner, it is necessary to examine the information that was before the probable cause panel- not information that was revealed subsequent to the initiation of the proceeding. See Rindley v. Department of Professional Regulation, Board of Dentistry, DOAH Case No. 92-0972F (Fla. DOAH March 22, 1994); Woodson v. Department of Professional Regulation, DOAH Case No. 91-4278F (Fla. DOAH October 31, 1991); Grosch v. Department of Professional Regulation, DOAH Case No. 91- 3997F (Fla. DOAH October 8, 1991), aff'd, 602 So.2d 947 (Fla. 2d DCA 1992); Brown v. Board of Psychological Examiners, DOAH Case No. 90-5318F (Fla. DOAH August 2, 1991).

    
    

21. "To sustain a probable cause determination, there must be some evidence considered by the panel that would reasonably indicate that the violations alleged had indeed occurred." Kibler v. Department of Professional Regulation, 418 So.2d 1081, 1084 (Fla. 4th DCA 1982). The evidence, however, need not be as compelling as that which must be presented at the post-probable cause formal hearing in order to justify the taking of disciplinary action. 43/ See Rindley v. Department of Professional Regulation, Board of Dentistry, DOAH Case No. 92-0972F (Fla. DOAH March 22, 1994). That such compelling evidence of guilt was not ultimately presented at the formal hearing is not, in and of itself, a basis upon which to conclude that the charges, when filed, were not substantially justified. See Department of Health and Rehabilitative Services

    v. S.G., 613 So.2d 1380, 1386 (Fla. 1st DCA 1993)(to avoid an award of attorney's fees and costs under Section 57.111, Florida Statutes, "'the government must have a solid though not necessarily correct basis in fact and law for the position it took' in the action"); Brown v. Board of Psychological Examiners, DOAH Case No. 90-5318F (Fla. DOAH August 2, 1991)("the fact that the Department did not prevail at the final hearing does not raise the presumption that it was not 'substantially justified' in initiating a disciplinary action against the Petitioner's license"). Moreover, substantial justification will be found even if the probable cause panel had before it, in addition to "evidence reasonably indicating that the violations alleged had indeed occurred," conflicting, exculpatory evidence, which, it could have been anticipated, would be difficult to overcome at the formal hearing. See Hoover v. Department of Professional Regulation, DOAH Case No. 91-7526F (Fla. DOAH March 31, 1992).

    
    

22. In the instant case, the evidentiary record affirmatively establishes that the formal charges filed against Petitioner at the direction of the probable cause panel in DPR Case No. 00-61481 had a reasonable basis in law and fact at the time they were filed. The probable cause panel had before it evidence, (including, most significantly, the medical records that Petitioner maintained on C.R., statements attributed to Petitioner, 44/ and the expert opinion of Dr. Rosenthal 45/ ) reasonably indicating that the violations alleged had indeed occurred. While the Department's pre-probable cause investigation may not have been as thorough as it could have been, it was thorough enough to yield information sufficient to support the probable cause panel's finding of probable cause. That the panel did not have the benefit of

    additional information concerning Petitioner's treatment of C.R. that Petitioner now claims he would have provided had the Department specifically asked him for it during its investigation does not taint the panel's probable cause finding and mandate the conclusion that the charges against Petitioner were not "substantially justified." The Department was under no obligation to specifically request such information from Petitioner and, in any event, even if the Department had requested and obtained the information and presented it to the probable cause panel for its consideration, the panel would not have been required to credit Petitioner's version of what had occurred during his treatment of C.R. See Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 719 (Fla. 1st DCA 1989); Gentele

    v. Department of Professional Regulation, Board of Optometry, 513 So.2d 672, 673 (Fla. 1st DCA 1987); Rindley v. Department of Professional Regulation, Board of Dentistry, DOAH Case No. 92-0972F (Fla. DOAH March 22, 1994); Woodson v. Department of Professional Regulation, DOAH Case No. 91-4278F (Fla. DOAH October 31, 1991); Brown v. Board of Psychological Examiners, DOAH Case No. 90-5318F (Fla. DOAH August 2, 1991).

    
    

23. Inasmuch as the charges filed against Petitioner in the underlying administrative proceeding were "substantially justified," even if Petitioner qualified as a "prevailing small business party," he would still not be entitled to an award of attorney's fees and costs under Section 57.111, Florida Statutes, for fees and costs he incurred in defending against these charges. See Gentele

v. Department of Regulation, Board of Optometry, 513 So.2d 672 (Fla. 1st DCA 1987).

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

ORDERED that Petitioner's application for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, is hereby DENIED.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of July, 1996.

STUART M. LERNER, 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 3rd day of July, 1996.

ENDNOTES

/ 1 Effective July 1, 1994, pursuant to Chapter 93-129, Laws of Florida, the Agency for Health Care Administration was transferred the authority that the Department had previously possessed to regulate the practice of medicine in this state, including the licensure of those engaging in such practice. On that date, it therefore became the Department's successor in the underlying administrative proceeding.

2/ In his proposed final order, Petitioner argues, for the first time, that, because Respondent did not respond to his petition by affidavit, Respondent "has not contested [his] petition in a legally sufficient manner, and the [petition] should thus be granted." The argument is not persuasive. An examination of Respondent's response reveals that it conforms, in all material respects, with the requirements of Rule 60Q-2.035, Florida Administrative Code, which provides that an agency challenging a petition for attorney's fees and costs under Section 57.111, Florida Statutes, must file an affidavit only if it disputes the reasonableness of the fees and costs sought by the petitioner. In the instant case, the reasonableness of the fees and costs sought by Petitioner is not in dispute.

3/ At no time in this proceeding has Respondent disputed the reasonableness of the fees and costs claimed by Petitioner, nor has it alleged that it was a nominal party only in the underlying proceeding.

4/ On June 6, 1996, Respondent filed a response in opposition to the motion. On June 21, 1996, Petitioner filed a reply to Respondent's response.

5/ In the Recommended Order he issued in DOAH Case No. 91-2811, the Hearing Officer, in a footnote, noted that "[i]n making this finding, [he] ha[d] considered, but rejected as unworthy of belief because it [wa]s inconsistent with other testimony that, in the opinion of the Hearing Officer [wa]s more credible, the evidence that [Dr. Royce] made statements to [Detective Margaret] Dellerson [of the City of North Miami Beach Police Department] indicating that he believed otherwise."

6/ Contrary to the assertion made in the Administrative Complaint, the drugs that were prescribed and administered did not include any amphetamines.

7/ M.A.O. inhibitors comprise a third group of drugs used as antidepressants. 8/ While "amphetamine-like," they are not amphetamines.

9/ The Ketamine that Dr. Royce used was not supplied by C.R. Rather, it came from bottles of Ketamine that were part of Dr. Royce's inventory. Dr. Royce placed labels bearing C.R.'s name on these bottles and administered their contents to only C.R. and no other patient.

10/ While it is commonly used, Ketamine is not a widely abused drug, although it is subject to abuse.

11/ That is to say, there are less risks associated with the use of Ketamine than with the use of other anesthetics. There is no anesthetic that is totally safe.

12/ Inasmuch as it has been approved by the FDA as safe for human use, it cannot be considered an experimental drug, even if used for a purpose other than that which is indicated on its label and package insert.

13/ Although Ketamine and PCP are chemically related, their pharmacodynamics are not identical. The former is considerably less dangerous than the latter.

14/ For the average 150-pound male, the anesthetic dose of Ketamine is between

70 to 100 milligrams.

15/ For the very same reason, however, it is helpful in treating patients who are in shock or are hypotensive.

16/ A dose of Ketamine in the 70 to 100 milligram range, administered slowly to a person weighing approximately 150 pounds, will act as a tranquillizer. If administered quickly, however, it likely will have an anesthetic effect.

17/ Valium is frequently used in conjunction with Ketamine when the latter is employed to anesthesize a patient undergoing surgery. It serves a useful purpose in both the pre-surgery period and the post-surgery recovery period in helping to allay anxiety and emotional excitement. Moreover, it does not potentiate any of the adverse effects of Ketamine.

18/ There were two separate Ketamine-assisted psychotherapy sessions on both February 12, 1985, and May 30, 1985. On each of these dates, C.R. received a total of more 100 milligrams for the two sessions combined, but during no one session on either of these dates did she receive more than 100 milligrams.

19/ Although Ketamine was administered on these two dates, it is inaccurate to state, as the Department did in paragraphs 107, 110 and 113 of the Administrative Complaint, that the Ketamine was administered "concomitantly with" or "in conjunction with" the electric current therapy she received those days.

20/ While C.R.'s November 13, 1984, and January 31, 1985, written statements were made a part of Dr. Royce's file on C.R., these documents purport to describe the type of electric current therapy to which C.R. consented, not the type she actually was administered.

21/ The labels of some, but not all, of these labelled vials and containers, bore the name of Dr. Royce as the prescribing physician.

22/ Although Ketamine bottles were found in the apartment, there was no indication that they were prescribed or dispensed by Dr. Royce.

23/ One of the tapes was labelled "Doctor." Another tape was labelled "At Home." A third tape was labelled "Self Injection." Margaret Dellerson, one of the investigating officers, listened to approximately ten of the tapes. On these tapes, she heard female voices, but no male voices. It sounded to Dellerson as if these were recordings of someone "under the influence of a drug," although, she recognized, the tapes may have been "distorted."

24/ In his treatment of C.R., Dr. Royce never prescribed, dispensed or administered Phenobarbital.

25/ In his Recommended Order in DOAH Case No. 91-2811, the Hearing Officer, in a footnote, noted that "[i]n evaluating the significance of this discovery, it must be remembered that C.R. received a number of intravenous injections while under [Dr. Royce's] care which may have produced these linear marks."

26/ Although there was a toxic level of Phenobarbital, but only a therapeutic level of Placidyl that alone would not have killed C.R., the Medical Examiner's Office nonetheless termed the immediate cause of death "polydrug intoxication" because Placidyl combined with Phenobarbital has a synergistic effect on respiration.

27/ In so doing, Lichtenstein, on behalf of the Department, was complying with the then existing notice requirements of Section 455.225(1), Florida Statutes. (The requirement, currently set forth in Section 458.331(9), Florida Statutes, that the Department furnish a physician against whom a complaint is filed a copy of the complaint did not come into effect until October of 1990. See Chapter

90-44, Laws of Florida.)

28/ The interview was actually conducted on or about September 6, 1985.

29/ This written "analysis" was prepared by the Dade County Medical Examiner's office.

30/ Collado telephoned Dr. Royce and asked him to provide the Department with a copy of his "C.V." Dr. Royce complied with Collado's request.

31/ The documents reviewed by the panel did not include a written response by Dr. Royce to Dr. Mittleman's complaint. There is no indication that Dr. Royce, after having been advised of the substance of the complaint, ever submitted such a written response to the Department.

32/ "ECT," as used in the Administrative Complaint, was, according to paragraph

55 thereof, intended to signify "Electroconvulsive Therapy."

33/ The formal hearing in DOAH Case No. 91-2811 was originally scheduled for September 5, 1991, but was rescheduled on numerous occasions for a variety reasons, including, among others, Dr. Royce's ill health, scheduling conflicts, the appearances of substitute counsel, and problems associated with Hurricane Andrew.

34/ In a footnote, the Hearing Officer noted that Dr. Royce "raise[d] this issue for the first time in his proposed recommended order."

35/ In a footnote, the Hearing Officer noted that "[t]he current version of this statutory provision is found in subsection (1)(m) of Section 458.331, Florida Statutes, which authorizes the Board to discipline a Florida-licensed physician for '[f]ailing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.'"

36/ In a footnote, the Hearing Officer noted that "[t]he pharmacological component of the course of treatment that Respondent followed would not have been justified if [Dr. Royce] had no reason to believe that these claims were false."

37/ In a footnote, the Hearing Officer noted the following:

It would have been inappropriate for [Dr. Royce] to have prescribed Plegine and Didrex for concomitant use. While the Hearing Officer has concluded, based upon [Dr. Royce's] testimony, that [Dr. Royce] did not engage in such an inappropriate prescribing practice, it is not at all clear from [Dr. Royce's] records whether the Plegine and Didrex he prescribed for C.R. were prescribed for concomitant or sequential use.

38/ In a footnote, the Hearing Officer noted the following:

Had he administered electroconvulsive therapy, [Dr. Royce] would have needed the prior written approval of another physician with no direct involvement with C.R., which he did not obtain. The Hearing Officer has concluded, based upon [Dr. Royce's] testimony, that [Dr. Royce] did not obtain

such approval because it was never his intention to administer electroconvulsive therapy and that he only provided non-convulsive electric current therapy to

C.R. [Dr. Royce's] records, however, are reasonably susceptible of a contrary conclusion.

39/ "Attorney's fees and costs," as that term is used in Section 57.111, Florida Statutes, "means the reasonable and necessary attorney's fees and costs incurred for all preparations, motions, hearings, trials, and appeals in a proceeding."

40/ A "sole proprietor," as that term is used in Section 57.111(3)(d)1.a, Florida Statutes, is "the single or individual owner of a business." A.S. v. Department of Health and Rehabilitative Services, DOAH Case No. 95-1476F (Fla. DOAH May 1, 1995).

41/ The hearing officer in March held that, even though March's sole proprietorship had had less than 25 full-time employees at the time charges had been filed against him, because "[n]o evidence was presented to establish that his net worth, including business and personal assets, [had been] $2 million or less at the time the action was initiated by DBPR[,] March did not establish that he [was] a small business party as defined by Section 57.111(3)(d)1.a., Florida Statutes." The hearing officer further held that DBPR "established that it was substantially justified at the time that it initiated the action against March." March appealed the hearing officer's order. The Third District Court of Appeal affirmed the order without an opinion.

42/ Even if the final order's finding of guilt was not accompanied by the imposition of any disciplinary action (due the presence of mititgating circumstances), the final order would still not be a "final . . . order . . . in favor" of the physician, within the meaning of subsection (3)(c)1. of Section 57.111, Florida Statutes. See Hilgeman v. Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes, DOAH Case No. 90- 6664F (Fla. DOAH April 26, 1991), aff'd, 595 So.2d 52 (Fla. 1st DCA 1992).

43/ The panel may rely on hearsay evidence in finding probable cause. See Department of Professional Regulation, Division of Real Estate v. Toledo Realty, Inc., 549 So.2d 715, 718-19 (Fla. 1st DCA 1989); Caughey v. Department of Insurance, DOAH Case No. 90-4473F (Fla. DOAH December 27, 1990).

44/ Among these statements are those Petitioner reportedly made during a July 15, 1985, conversation he had with Detective Margaret Dellerson, when he mentioned that "he would not be surprised to find [C.R.] died with a 'syringe in her arm'" and that C.R. "did drink heavily, vodka he believed," and those he made during an earlier July 12, 1985, conversation he had with the Dade County Medical Examiner's office, when he stated that he had been treating C.R. for "alcoholism."

45/ Although the probable cause panel had the opinion of an independent expert, such an expert opinion was not a prerequisite to a finding of probable cause.

See David v. Department of Professional Regulation, Board of Medicine, DOAH Case No. 91-1018F (Fla. DOAH May 31, 1991), aff'd, 601 So.2d 555 (Fla. 1st DCA

1992)("[t]here is, however, no requirement by statute or case law that any expert be obtained to review cases for the Panel;" "[w]ith physicians in the majority the panel is presumed capable of determining probable cause in a medical matter").

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-3521F

The following are the Hearing Officer's specific rulings on what are labelled as "findings of fact" in the proposed final orders submitted by the parties:

Petitioner's Proposed Findings

1-2. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Final Order.

1. To the extent that this proposed finding states that the Board's Final Order "incorporated the Recommended Order of the Hearing Officer" in toto, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

2. Rejected as a finding fact because it is more in the nature of legal argument.

3. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding fact because it is more in the nature of legal argument.

6-9. Accepted and incorporated in substance.

10. First sentence: Not incorporated in this Final Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony adduced at hearing than a finding of fact. See T.S.

v. Department of Health and Rehabilitative Services, 654 So.2d 1028, 1030 (Fla. 1st DCA 1995)(hearing officer's factual findings which "merely summarize[d] the testimony of witnesses" were "insufficient").

11-13. Accepted and incorporated in substance.

1. To the extent that this proposed finding suggests that the Board's Final Order did not find Dr. Royce guilty of any of the recordkeeping violations alleged in Count One of the Administrative Complaint, it has been rejected because it lacks sufficient evidentiary/record support. Otherwise, it has been accepted and incorporated in substance.

2. To the extent that this proposed finding states that the count on which the Agency partially prevailed was "the least serious violation charged," it has been rejected as a finding of fact because it is more in the nature of legal argument. Otherwise, it has been accepted and incorporated in substance.

3. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Final Order because, even if it had sufficient evidentiary/record support and was true, it would have no impact on the outcome of this case.

4. To the extent that this proposed finding states that Dr. Royce was not "properly charged," it has been rejected as a finding of fact because it is more in the nature of legal argument. To the extent that it states that a settlement would have been negotiated and approved had he been "properly charged," it has been rejected because it constitutes speculation lacking evidentiary/record support.

5. Rejected as a finding of fact because it is more in the nature of a statement of law.

6. First sentence: Rejected as a finding of fact because it is more in the nature of a statement of law; Second sentence: Accepted and incorporated in substance.

20-22. Rejected as finding of facts because they are more in the nature of legal argument.

1. To the extent that this proposed finding states that the probable cause panel did not consider any written response made by Dr. Royce to Dr.

   Mittleman's complaint, it has been accepted and incorporated in substance. To the extent that it states that the panel did not consider any reports of oral statements made by Dr. Royce to Lichtenstein, the first Department investigator to investigate Dr. Mittleman's complaint, and to others concerning the care and treatment of C.R., it has been rejected because it lacks sufficient evidentiary/record support.

2. Rejected as a finding of fact because it is more in the nature of a summary, and argument concerning the significance, of testimony (presented by deposition) than a finding of fact.

3. Rejected as a finding of fact because it is more in the nature of legal argument.

4. To the extent that this proposed finding states that the Department's investigation was "inadequate," it has been rejected because it is contrary to the greater weight of the evidence, which reflects that the investigation produced evidence reasonably indicating that the violations with which Dr. Royce was subsequently formally charged had indeed occurred. To the extent that it states that the Department's investigation was "incorrect" and describes the purported inaccuracies, it has not been incorporated in this Final Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Although the Department's investigation may have yielded certain information that later proved to be inaccurate, the formal charges against Dr. Royce nonetheless had a reasonable basis in law and fact at the time they were filed.

5. First sentence: To the extent that this proposed finding suggests that the probable cause panel ignored and did not consider "the results of [the Department's] investigation," it has been rejected because it lacks sufficient evidentiary/record support; Second, third and fifth sentences: Not incorporated in this Final Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Fourth, seventh through eleventh, and thirteenth sentences: Accepted and incorporated in substance; Sixth sentence: To the extent that this proposed finding states that "[t]his misstates the interview," it has been rejected because it lacks sufficient evidentiary/record support. To the extent that it states that, in Lichtenstein's written summary of her interview with Dr. Royce, she made no mention of Dr. Royce having said during the interview that he believed that C.R. had a drinking problem, it has been accepted and incorporated in substance. (Lichtenstein, however, did report that, during the interview, "Dr. Royce state[d] that 'at one time [C.R.] mentioned extreme drinking.'"); Twelfth sentence: Not incorporated in this Final Order because, even if true, it would have no impact on the outcome of this case inasmuch as the Board was not required to credit Dr. Royce's self-serving statement.

6. Not incorporated in this Final Order because, even if true, it would have no impact on the outcome of this case.

7. First sentence: Accepted and incorporated in substance; Remaining sentences: Not incorporated in this Final Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

8. To the extent that this proposed finding states that the Department's investigation was characterized by "gross negligence and inattention" and that the probable cause panel failed "to adequately review the records submitted to it," it has been rejected because it is contrary to the greater weight of the evidence. As to the other components of this proposed finding, they have not been incorporated in this Final Order because, even if true, they would have no impact on the outcome of this case.

9. Not incorporated in this Final Order because, even if true, it would have no impact on the outcome of this case.

10. To the extent that this proposed finding states that the probable cause panel did not refer the matter back to the Department for further

    investigation, it has been accepted and incorporated in substance. To the extent that it states that the panel relied on "obvious misinformation," it has been rejected because it is contrary to the greater weight of the evidence.

11. To the extent that this finding states that the Department did not conduct a "proper investigation" and that a review of Dr. Royce's records, in their entirety, "clearly reveals that the type of electro-shock therapy contemplated [and actually administered] was not convulsive therapy," it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance.

12. Not incorporated in this Final Order because even if true, it would have no impact on the outcome of this case.

13. Fourth sentence, to the extent that it states that "[n]o information

    . . . regarding the recordkeeping violations which were ultimately adjudicated was before the probable cause panel, at the time of its consideration:" Rejected because it is contrary to the greater weight of the evidence; Remainder: Not incorporated in this Final Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

14. Sixth sentence, to the extent it states that "this information was not reviewed . . . by the probable cause panel:" Rejected because it lacks sufficient evidentiary/record support; Remainder: Not incorporated in this Final Order because, even if true, it would have no impact on the outcome of this case.

15. To the extent that this proposed finding states that the Department's investigation and Dr. Rosenthal's "review of the investigative record" were inadequate, that before rendering his expert opinion Dr. Rosenthal should have contacted Dr. Royce to clarify and supplement the written materials he (Dr. Rosenthal) had been provided (including Dr. Royce's records concerning C.R., which, the Hearing Officer notes, as he did in Conclusion of Law 123 of his Recommended Order in the underlying administrative proceeding, should have provided "sufficient documentation 'so that neutral third parties [like Dr. Rosenthal] c[ould have] observe[d] what [had] transpired during the course of treatment of [C.R.]'"), and that the probable cause panel should have "referred the matter back to the Department," it has been rejected because it is contrary to the greater weight of the evidence. To the extent that it states that Dr. Rosenthal's opinion was based upon factual inferences and beliefs that later proved to be inaccurate and it describes the purported inaccuracies, it has not been incorporated in this Final Order because it would add only unnecessary detail to the findings made by the Hearing Officer.

The Agency's Proposed Findings

1-3. Accepted and incorporated in substance.

4-5. Not incorporated in this Final Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

6-11. Accepted and incorporated in substance.

12. To the extent that this proposed finding states that "Respondent['s predecessor, the Department] initiated action against the Petitioner's license to practice medicine, as directed by the Probable Cause Panel of the Board in [DPR] Case No. 0061481, through the filing of an Administrative Complaint," it has been accepted and incorporated in substance. To the extent that it states that the Department did so on January 28, 1991, not March 6, 1991, it has been rejected because it lacks sufficient evidentiary/record support.

13-18. Accepted and incorporated in substance.

19-23. Not incorporated in this Final Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.

24-30. Accepted and incorporated in substance.

31. Not incorporated in this Final Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Joseph S. Geller, Esquire

Sheraton Design Center Office Plaza 1815 Griffin Road, Suite 403

Dania, Florida 33004

Monica L. Felder, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jerome Hoffman, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 95-003521F

Orders for Case No: 95-003521F