STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2770

) JOHN MARK PENNINGTON, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge, David M. Maloney, held a formal hearing in the above-styled case on September 23, 1996, via videoteleconference. The proceeding was conducted from facilities in Tallahassee with some of the participants present in Tallahassee. The court reporter was in Tampa with the other participants.

APPEARANCES

For Petitioner: Monica L. Felder, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Grover Freeman, Esquire

John Pellett, Esquire Freeman, Hunter & Malloy

201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602

STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against Respondent's license to practice medicine based on the administrative complaint in this case, which charges, in general, that he obtained his license through fraudulent misrepresentations and is unable to practice medicine safely because of illness or use of drugs he prescribed for himself illegally under the names of fictitious patients?

PRELIMINARY STATEMENT

On May 23, 1996, the Agency for Health Care Administration, (Petitioner, "AHCA" or the "agency,") filed an Administrative Complaint against John Mark Pennington, M.D., in AHCA Case No. 95-08955. The complaint seeks discipline from the Board of Medicine to be imposed on Dr. Pennington's license to practice medicine. In addition to factual allegations, the complaint contained four counts.

In the first count, Dr. Pennington is charged with violating Section 458.331(1)(a), Florida Statutes, for obtaining his license by fraudulent misrepresentations. In the second, he is charged with violating Section 458.331(1)(s), Florida Statute, based on the allegation that he is not able to practice medicine with skill and safety because of illness or use of drugs and narcotics. In the third, he is charged with violating Section 458.331(1)(r), Florida Statutes, through an allegation that he prescribed controlled medicinal drugs for himself. In the fourth, he is charged with violating Section 458.331(1)(k), Florida Statutes, by making deceptive representations in the practice of medicine in that the self-prescribed medications were obtained under the names of fictitious patients.

Through his attorney, Dr. Pennington requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The request, together with a copy of the administrative complaint, was received on June 11, 1996 by the Division of Administrative Hearings under cover of a letter from the agency requesting assignment of a hearing officer. The case was assigned to the undersigned.

Originally scheduled based on responses of the parties to an initial order for August 19, 1996, in Tampa, the case was continued at the request of the agency until September 23, 1996. Dr. Pennington's requests for Official Recognition of the Respondent's licensure file, the Americans with Disability Act, and federal alcohol and drug abuse confidentiality provisions were granted. Petitioner's request for Official Recognition of documents in a pending criminal matter were denied.

At hearing, the parties filed the joint prehearing statement as Joint Exhibit No. 1. The agency presented the testimony of Roger Goetz, M.D., Director of the Physician's Recovery Network and offered six exhibits into evidence. Petitioner's Exhibit Nos. 1, and 3 through 5, were admitted in their entirety. Portions of Petitioner's Exhibit No. 2, the deposition of Dr.

Pennington, were admitted over his objection but with certain portions of the testimony stricken and with Petitioner's Exhibit No. 1 to the deposition stricken and sealed. A portion of Petitioner's Exhibit No. 6 was offered and admitted and the remainder of it was admitted as a late-filed exhibit.

Respondent presented his own testimony and that of four other witnesses: James Noyes, M.D., Linda Ann Schlumbrecht, M.D., Rachel Jackson Pennington, and Raymond Pomm, M.D. Respondent's Exhibit Nos. 1, 2, and 4 through 7 were offered and admitted. Respondent's Exhibit Nos. 8 and 9, depositions of Margaret Anglin and Aleck Jorgensen, and an errata sheet supplementing Respondent's Ex. No. 7, were admitted as late- filed exhibits. Respondent's Ex. No. 3 was marked for identification but was not offered. In addition, Respondent was given leave to file as a late-filed exhibit any order identified as to the issue of penalty that fell within a discovery request for copies of all Final Orders during a certain time period where a licensee or applicant for licensure was charged with a violation of paragraphs (a), (k), (r), or (s) of Section 458.331(1), Florida Statutes. Three such orders were filed post-hearing by Respondent.

Due October 17, 1996, proposed recommended orders were filed on October 18 at 8:03 a.m. and October 17, 1996, by petitioner and respondent, respectively. Petitioner's proposed recommended order was deemed timely filed because of a natural gas main rupture on a major thoroughfare in Tallahassee the afternoon of October 17 which prevented petitioner's runner from reaching the Division of

Administrative Hearings before the close of the business day. Rulings on the parties' proposed findings of fact are contained in the appendix to this order.

FINDINGS OF FACT

The Parties

1. Petitioner, the Board of Medicine, created by Chapter 458, Florida Statutes, (the "Medical Practice Act,") is the regulatory authority charged with regulating the practice of medicine in the State of Florida. The Board is within the Agency for Health Care Administration, Section 20.42, Florida Statutes, which, in turn, is within the Department of Business and Professional Regulation. Id. In particular, as is pertinent to this case, the Board has the power to impose disciplinary penalties on a licensee when it finds guilt of any of the grounds set forth in subsection (1) of Section 458.331, Florida Statutes, the "grounds for disciplinary action" section of the Medical Practice Act.

   
   

2. Respondent, John Mark Pennington, M.D., is currently a licensee of the Board of Medicine. He has been continuously licensed as a physician in Florida since March 11, 1994. Currently residing in Terra Ceia, Florida, Respondent has a specialty in anesthesiology. He does not, however, presently practice in his specialty. He practices, instead, as a physician in a walk-in medical clinic where he is closely monitored and his access to drugs and medication is completely restricted. The reason for not presently practicing as an anesthesiologist and being closely monitored at the walk-in clinic is the same: an addiction to narcotics. In recovery from the disease of chemical dependency at the time of hearing, and as long as he remains in recovery, Dr. Pennington is not presently impaired as the result of his addiction.

   
   

   Respondent's Checkered Past

   
   

   1. History of Drug Use

      
      

3. Dr. Pennington's use and abuse of drugs spans many years. His illegal drug use began when he was a teenager in high school. In addition to drinking, he was using marijuana, cocaine and other drugs. He continued in college to use drugs, including amphetamines.

   
   

4. In 1981, Dr. Pennington graduated from pharmacy school and began work as a pharmacist licensed by the State of Georgia in the City of Savannah.

   During his employment, he would take from the pharmacy, without the benefit of a medical prescription and without authorization from the pharmacy, certain drugs for his personal use. These included opiate derivatives, Hydrocordone, for example, which are classified as narcotics, as well as amphetamines and amphetamine-like medications such as Ritalin. Sometime in 1981, shortly after he began using narcotics, Dr. Pennington became addicted to them.

   
   

5. Dr. Pennington managed to conceal his narcotic addiction from his closest associates, including his former wife, who was employed as a fellow pharmacist with him at the pharmacy in Savannah.

   
   

6. In 1985, following an inventory at the pharmacy that indicated a discrepancy in narcotics, Dr. Pennington admitted his drug usage. He went directly into treatment at Willingway Hospital in Statesboro, Georgia where he remained for six weeks until his release.

7. As the result of the discovery and Dr. Pennington's admission, disciplinary proceedings were brought against Dr.

   
   

   Pennington by the Georgia State Board of Pharmacy.

   
   

   1. The Georgia Administrative Hearing

      
      

8. At the hearing during those proceedings, Dr. Pennington acknowledged his addiction. He testified that he knew that he would have to deal with addiction the rest of his life. But, he further testified, thanks to being in recovery as a result of the program at Willingway and a continuing program of treatment, that he was then drug-free and committed to remaining so. Moreover, he testified, that he felt there was no pressure too great to cause him to return to illicit use of drugs. In his view, no pressure was too great because he was committed to the ongoing drug treatment program in which he was then involved. He found the program to be an effective method for dealing with the addiction, a method he had not even known existed prior to his entry into the Willingway program.

   
   

9. With regard to the effect the addiction and his behavior had on his life and others, Dr. Pennington testified:

   
   

   There is no way I can really express the guilt I feel and the remorse I feel for what I have done. I just want to do my best, and whatever the Board wants I will follow any direction they want me to go into. I embarrassed my profession by doing this. I almost lost my life, and my family, and my job and everything else. Regardless of what decision is made,

   I am going to go in the right direction to get my life back to the way it's supposed to be.

   
   

   Petitioner's Ex. No. 4, pgs. 46 - 47.

   
   

10. At this same hearing on the Georgia disciplinary proceeding, Dr. Pennington called as witnesses on his behalf his then current employer, Mr. Rupert Heller, and his then wife, Kim Pennington.

    
    

11. Mr. Heller testified that he had allowed Dr. Pennington to return to work at his pharmacy as a pharmacist. But the return was subject to certain conditions. The conditions included weekly random urinalyses, direct supervision by other pharmacists, no access to medications and lie-detector tests when requested.

    
    

12. Mr. Heller also testified that Dr. Pennington was a competent, conscientious pharmacist who always performed well the duties of his employment.

    
    

13. Kim Pennington testified that she had been unaware that Dr. Pennington had used drugs prior to the revelation of early 1985. She also testified about her involvement in Dr. Pennington's treatment program at Willingway, including spending five days at the facility to integrate her into his care and attendance at family counseling sessions.

    
    

14. Persuaded by the testimony of Dr. Pennington, his employer and his wife, Kim, and recommendations by the Attorney for the Board, the hearing officer wrote the following in his Initial Decision:

    The State produced evidence through testimony and the Respondent produced evidence through testimony of witnesses that the Respondent made a mistake in his life and is coping with that mistake in an attempt to overcome his use of drugs and drug abuse. The Respondent moved on his own volition with the help of others to search out and take advantage of programs that

    would rehabilitate him with respect to overcoming

    ... drug abuse ... . The Hearing Officer was persuaded to consider any recommendations which were made by the Attorney for the Board in these matters due to the goodwill effort on behalf

    of the Respondent as well as the assistance

    and guidance that has been given to the Respondent b[y] said Respondent's present employer....

    
    

    Exhibit No. 6 attached to Petitioner's Ex. No. 2.

    
    

    1. Georgia Discipline

       
       

15. Following the hearing in Georgia and the initial decision of the hearing officer, the Georgia Board imposed a suspension of Dr. Pennington's license to practice pharmacy for six months, just as the hearing officer had initially decided. But further, again following the lead of the hearing officer's initial decision, the Board suspended enforcement of the suspension for two years during which Dr. Pennington was to be on probation with conditions. Among other conditions of the probation, Dr. Pennington was required to submit to random urinalyses and to attend professional aftercare treatment and counseling.

    
    

16. The probationary period was set from December 1985 until December 1987.

    
    

    1. Medical School

       
       

17. After being on probation for a period of eight months, Dr. Pennington, in August of 1986, entered a medical school in the Caribbean on the island nation of Grenada.

    
    

18. Dr. Pennington requested the Board of Pharmacy that the conditions of probation be lifted while he was in medical school because of the difficulty in complying with them in Grenada.

    
    

19. The request was granted.

    
    

20. After his second year of medical school in Grenada, Dr. Pennington transferred to the Medical College of Georgia in Augusta, Georgia. While in medical school in Georgia, Dr. Pennington began working part-time as a pharmacist again.

    
    

21. Dr. Pennington did not resume compliance with the conditions of probation imposed by the order of the Georgia Board of Pharmacy. As to its role in overseeing Dr. Pennington, the Georgia Board apparently simply lost track of his case. In any event, the Georgia Board did not follow up to ensure that Dr. Pennington had completed his probation successfully.

    1. Resumption of Drug Use

       
       

22. During his third year of medical school, while working as a pharmacist again, Dr. Pennington began drinking. Before long, he was taking drugs from the pharmacy at which he was working for his own personal use, again without authorization from the pharmacy or a prescription.

    
    

23. Following graduation from medical school, Dr. Pennington undertook his residency at the Ochsner Clinic in New Orleans. His drug use continued. But instead of taking drugs from a pharmacy inventory, Dr. Pennington opted for a method not subject to pharmacy inventories. He wrote prescriptions for them in the names of other persons.

    
    

    1. Access to More Powerful Narcotics as an Anesthesiologist

    
    

24. Respondent began his residency in internal medicine but switched to anesthesiology. The switch was not helpful to Dr. Pennington in terms of controlling his addiction. Now, different drugs, often more powerful, were readily available to him.

    
    

25. Among them was Sufenta. To narcotic addicts subject to monitoring who want to resume narcotic use, Sufenta is a drug of choice because it is difficult to detect in bodily fluids. Listed as a controlled substance under Schedule II, Section 893.03(2), Florida Statutes, Sufenta is used primarily for analgesia in surgery. In addition to eliminating physical pain, it produces feelings of

    well-being and stops emotional pain. It has an effect similar to hydrocodone but it is shorter-acting and much more potent. In fact, Sufenta is the most potent opiate used in medicine today.

    
    

26. Dr. Pennington began using Sufenta while a resident in anesthesiology either by injecting it or by inhaling it nasally. His use of this extremely powerful narcotic continued throughout the first half of this decade.

    
    

    Application for Florida Licensure as an M.D.

    
    

27. In July of 1993, Dr. Pennington's fiance, Rachel, (now his wife,) assisted him in filling out his application for licensure by the Board of Medicine. Just as Dr. Pennington's previous spouse and other family members had been unaware of his narcotic addiction while a pharmacist prior to entering medical school, Rachel Pennington, too, was unaware that Dr. Pennington was using narcotics. Moreover, she did not know of his past history of drug use or his discipline in Georgia.

    
    

28. Rachel Pennington typed the application for Dr. Pennington. Questions 4, 9 and 10 on the application were these:

    
    

    Have you ever been notified to appear before any licensing agency for a hearing on a complaint of any nature, including, but not limited to, a charge or violation of the medical practice act, unprofessional or unethical conduct?

    
    

    Are you now or have you ever been addicted to or excessively used alcohol, narcotics, barbiturates, or any other medication?

    Have you ever voluntarily or otherwise been a patient in a hospital, institution, clinic or medical facility for the treatment of mental/ emotional illness, drug, addiction/abuse, or excessive use of alcohol?

    
    

    Although the correct answer to each of the three questions in Dr. Pennington's case is "yes," the answers he gave on the application to each were "no."

    
    

29. Dr. Pennington reviewed and signed the application. At this moment of opportunity to reveal the truth to his fiancee, Dr. Pennington chose to continue to conceal his addiction and past history of both drug use and discipline.

    
    

30. The falsified application was submitted to the Board of Medicine in November of 1993. During the hearing in this case, Dr. Pennington was asked on cross examination about his awareness that the application contained misrepresentations:

    
    

    Q You were aware at the time you filled out your licensure application that the answers to those three questions were incorrect, weren't you?

    A ... I don't think it is adequate to answer the question saying that because of my denial

    of the disease that I didn't know the question was wrong. I definitely, at some level, knew the question was wrong.

    Q ... You knew that you had been disciplined before?. A Yes.

    Q And you knew that you had been in a treatment facility before.

    A Yes.

    Q ... Did you consider that you were in a treatment facility because you were excessively using drugs?

    * * *

    A Well, I guess to answer that ... I have to say yes, at some level I definitely did. I was not willing to admit that but to answer your question I have to say yes.

    (Tr. 201).

    
    

    Practice in Florida and Continued Drug Use

    
    

31. Dr. Pennington was licensed by the Board of Medicine on March 11, 1994. He continues to hold that license, license number ME 0065888.

    
    

32. In June of 1994, Dr. Pennington completed his residency. Shortly thereafter, he moved to Florida to begin practice as an anesthesiologist. He continued to use narcotics.

    
    

33. In order to stave off withdrawal symptoms, the onset of which can occur within several hours of using a powerful opiate like Sufenta, Dr. Pennington was forced to use narcotics throughout the day, including while at

    work. Moreover, he was unable from time-to-time to avoid the side effects of withdrawal, which included chills and diarrhea. To control those symptoms, he used drugs such as Lomotil. Lomotil, like Sufenta and the other opiates Dr.

    Pennington has used, requires a prescription. Self-prescribing and Fictitious Patients

34. In order to obtain some of these drugs, Dr. Pennington wrote out prescriptions for Bob Pennington (his father), Rachel Pennington (his wife), and Kim Patrick (his ex-spouse), none of whom were patients of his. For example, between November, 1994, and February, 1995, he wrote or called in at least fourteen prescriptions for Hycodan, Lomotil and Tussionex, in the names of the three fictitious patients.

    
    

35. In reality, the prescriptions were for himself.

    
    

    The Self-prescribed Medications

    
    

36. Hycodan contains hydrocodone bitartrate, and is a Schedule III controlled substance under Section 893.03(3), Florida Statutes. It is used for cough-relief. The maximum recommended daily dose is 30 milliliters, or six tablets, which consists of thirty milligrams of hydrocodone.

    
    

37. Tussionex contains hydrocodone polistirex, and is a Schedule III controlled substance under Section 893.03(3), Florida Statutes. It is used for cough relief and upper respiratory symptoms associated with allergies or colds. The maximum recommended daily dose is ten milliliters consisting of twenty milligrams of hydrocodone.

    
    

38. Hydrocodone is a semisynthetic narcotic antitussive and analgesic with multiple actions qualitatively similar to those of codeine. It is a narcotic with potential, of course, for abuse.

    
    

39. It has the potential for abuse because it is an opiate derivative, one that, attached to the morphine or opiate receptor in the brain, produces effects of somnolence and euphoria, as well as suppressing other nerve impulses.

    
    

40. Hydrocodone causes one to feel good about oneself, blurs time relationships, and changes a person's perceptions. It can cause lack of attention or cause one to be easily distracted, traits that pose extreme danger to patients under the care of an anesthesiologist.

    
    

41. Once a certain level of tolerance is reached with hydrocodone, it causes twitching, nervousness, diarrhea, flushing, chills, goosepimples, and other classic symptoms of narcotics withdrawal.

    
    

42. Lomotil contains diphenoxylate hydrochloride, and is a Schedule V controlled substance under Section 893.03(5), Florida Statutes. It is used in the management of diarrhea, a common symptom of narcotics withdrawal. It is also used to control other symptoms of withdrawal such as pain and twitching. The maximum recommended daily dose of Lomotil is eight tablets a day or twenty milligrams. At high doses, it is addictive, causing codeine-like effects.

    
    

43. Between November, 1994, and March, 1995, Dr. Pennington was taking approximately 15-20 hydrocodone tablets, that is, 75- 100 milligrams, per day, and 30 to 50 Lomotil tablets or 75 to 125 milligrams per day. These levels of consumption are three to five times the recommended maximum daily dosage.

44. Dr. Pennington was self-administering these substances for several purposes: satisfying his addiction, fending of withdrawal symptoms and controlling withdrawal symptoms he could not avoid.

    
    

    Caught Again

    
    

45. On March 24, 1995, Dr. Pennington was questioned by an official of the Drug Enforcement Agency (DEA) and a Pinellas County Sheriff's Office detective regarding the fourteen prescriptions for fictitious patients written in late 1994 and early 1995.

    
    

46. The interview took place immediately after Dr. Pennington had completed administering anesthesia during an operative procedure on a patient.

    
    

47. Dr. Pennington admitted writing the fraudulent prescriptions. Furthermore, he provided the officers with a syringe containing approximately one cubic centimeter of Sufenta. Dr. Pennington admitted that he had used Sufenta about two hours earlier before administering anesthesia to the patient.

    
    

    Talbott-Marsh

    
    

48. On March 25, 1995, the day after the DEA discovered Dr. Pennington was illegally using narcotics, he was admitted to the Talbott-Marsh Recovery System in Georgia, having been referred because of his chemical dependency by the Physicians Recovery Network.

    
    

49. An inpatient chemical dependency treatment facility, Talbott-Marsh is specifically designed to meet the treatment needs of chemically addicted health care professionals, especially physicians.

    
    

50. Five months after admission, on August 25, 1995, Dr. Pennington was discharged from Talbott-Marsh. He had completed the program successfully. Once again, just as upon successful completion of the program at Willingway, Dr. Pennington was in recovery from the disease of chemical dependency.

    
    

    Addiction: the Disease of Chemical Dependency

    
    

    1. The Disease and its Stages

       
       

51. Chemical dependency or addiction is a chronic illness. An identifiable disease recognized by the medical profession, it is not the result of voluntary behavior. Rather, it is the result of a biogenetic defect, one with which the addicted person is born. Together with introduction into the person's system of a sufficient amount of a mood altering substance, this defect produces addiction.

    
    

52. Initially, the disease manifests itself in abuse of the drug. In this early stage, addiction has not yet occurred. As use recurs, however, at some point the person crosses the threshold of addiction. After addiction, the individual becomes more and more preoccupied with obtaining the drug, primarily to avoid withdrawal symptoms when the addiction is not satisfied. The more preoccupied the individual becomes with obtaining the drug, the more avoidance there is of external responsibilities: those related to family, work and self.

    
    

53. The disease is characterized by the continued use of the drug in the face of ongoing adversity as the result of the avoidance of external

    responsibilities. Left untreated, the disease leads to serious consequences: institutionalization due to a number of factors which may include brain damage or uncontrollability, disability, and, in extreme cases, death.

    
    

    1. Crossing the Wall

       
       

54. As the disease progresses, eventually it takes control of not only the individual's use of the drugs but all of the individual's thinking as well.

    This point is referred by practitioners of addictionology as "crossing the wall."

    
    

55. When the addict crosses the wall, the disease is in control. It is not uncommon for an addict who crosses the wall to conceal the drug use from everyone including spouse, other family members, friends, and employers. It is common for an addict who has crossed the wall to lie about drug use and minimize the extent of its effects on the addict's life. The acts of denying, concealing, and lying about drug use are common manifestations of the disease of chemical dependency. They fall into a continuum of symptoms of the disease ranging from denial, which relates to the negative consequences the use is having on the addict, to lying.

    
    

    1. Physicians as Addicts

    
    

56. It is common for physicians addicted to drugs to steal them, divert them, write prescriptions for their own use or engage in other deceptive means of obtaining drugs.

    
    

57. The manner used by physicians to obtain drugs is often dependent upon the physician's specialty. Nonetheless, self- prescribing medications is found in almost all of the cases of addicted physicians.

    
    

58. Consuming massive quantities of drugs is not unusual for the addicted physician, often, in part, because of ready access to drugs. It is, moreover, a sign of tolerance of the drugs. Even in cases of great consumption, and despite the characteristics of narcotics and opiates, when physicians develop tolerance, they remain able to function well while under the influence of the substance.

    It is common, therefore, for drug usage to go undetected for long periods of time.

    
    

59. Furthermore, with regard to opiates and narcotics, it is often difficult to determine whether a person is using them. There tends to be much less muscular coordination, slurred speech and recent memory deficits as would be observed of persons under the influence of other drugs. An individual addicted to and under the influence of opiates, even a physician practicing in a specialty as demanding as anesthesiology, can appear to be functioning as well as a person not under the influence of drugs. This is the case, in part, because a person addicted to opiates can develop tolerance rapidly. The more powerful the opiate, the sooner tolerance may be developed, as in the case of Sufenta. A physician under the influence of Sufenta can take a massive dose and appear to be basically normal to the untrained eye.

    
    

    Dr. Pennington's Stage of Addiction at the Time of Application

    
    

60. Prior to the fall of 1993, that is, the time when Dr. Pennington made out and submitted his application to the Board of Medicine, he exhibited all the symptoms of a person who has crossed the wall. He had concealed his drug use, which at that time had become quite advanced, from his fiancee, his family,

    friends, and colleagues. He was taking massive quantities of narcotic opiates, yet, to the untrained eye, he was not exhibiting symptoms of a person under the influence.

    
    

61. At the time of application, Dr. Pennington was well- thought of by his colleagues in the residency program in Louisiana. He was highly recommended for licensure to the Board of Medicine by the instructors of his residency training program.

    
    

    Treatment, Care and Aftercare

    
    

62. Treatment is an important phase of the recovery process. Those suffering chemical dependency generally do well in treatment because of the controlled and structured nature of the treatment environment. The environment is safe. The patient is surrounded by others with similar problems. There is a lot of support both from those suffering the disease as well as from professionals. A successful treatment program must insist that the patient be rigorously honest in order to attain full recovery.

    
    

    1. Rigorous Honesty

       
       

63. Because lying is an integral part of the disease of chemical dependency, a program of recovery demands rigorous honesty.

    
    

64. In an effective recovery program, such as the one Dr. Pennington participated in at Talbott-Marsh, the physician is required to face the consequences of addiction and participate in psychotherapy when needed. During the treatment phase, the physician is required to go through identification with the family, have a fourth and fifth step of identifying the history of past defects and telling them to another human being.

    
    

    1. The Physician Recovery Network

       
       

65. The Physician Recovery Network is the program used by the Board of Medicine to monitor physicians impaired by addiction in the State of Florida under Section 455.261, Florida Statutes.

    
    

66. The Physician Recovery Network ("PRN,") assists the physician in developing and maintaining a manner of living which demands rigorous honesty. PRN does this by requiring the physician to enter into an Advocacy Contract, a five year contract that can be extended if necessary.

    
    

67. The Advocacy Contract is designed to serve as a deterrent, promote honesty, to verify through face-to-face conferences and monthly and weekly meetings and periodic urine screens, that a physician is progressing or improving and is not endangering the public or him or herself. Physicians are required to identify the consequences of their drug use and admit their powerlessness over their ability to stop using drugs.

    
    

68. Rigorous honesty is demanded by PRN from its participants because it is absolutely required in order to break denial and to prevent rationalization and denial from returning to the behavioral patterns of the addicted physician.

    
    

69. PRN educates physicians about the negative behavioral patterns of their disease and monitors the physicians for the return of erratic behavior or evidence of returning denial or evidence of lying.

70. PRN educates physicians about their own indicators for relapse so that they avoid positions likely to produce relapse and so that they will not be unconsciously driven to resume drug use to relieve personal discomfort.

    
    

71. PRN monitors its physician participants through local group facilitators. Monitors are assigned because of geographic proximity that will allow immediate access in order to provide counseling.

    
    

72. Initially, the PRN monitor undertakes a direct physical evaluation of the physician and becomes familiarized with the physician's specific problems to allow early identification of developing problems that would endanger the public or the physician.

    
    

73. In addition, the monitor maintains close contact with PRN. Reports to PRN are made at least weekly providing information about general progress, insight, attentiveness, responsiveness to urine screens, participation in group sessions, openness of the physician, assessment of honesty, and assessment of coping skills. The contact between the monitor and PRN is so comprehensive that it can be characterized as an ongoing dialogue about all aspects of the physician related to management of the addiction and the medical-legal implications for the physician's practice and protection of the public.

    
    

74. The monitor is also charged with providing the participating physician with support. If a physician fails to comply with PRN instructions or relapses, the monitor immediately reports it to PRN so that the physician can be submitted to treatment. If necessary to protect the public in such a case, PRN does not hesitate to report the matter to the Agency for Health Care Administration for entry of an emergency order suspending the license.

    
    

75. While some number below 20 percent of physicians who enter PRN require more than one treatment to become firmly committed to recovery, 97 percent of the physicians who enter PRN practice without difficulty after five years. The ninety-seven percent success rate PRN has experienced with addicted physicians is significantly higher than the success after treatment of the general population of sufferers of chemical dependency in returning to lives committed to recovery and free of the problems of addiction.

    
    

    1. Aftercare

    
    

76. Aftercare, the stage of recovery which follows treatment and the diseased physician's entry into recovery, is an essential phase of the recovery process, every bit as important, if not more so, than the initial program of treatment. It must consist of close monitoring with repetitive follow-up. This is provided by PRN.

    
    

77. As an aftercare program more highly developed than the aftercare received by Dr. Pennington from Willingway in the previous decade, in part, due to advances in the study of addictionology, PRN provides the type of aftercare that supports recovery as fully as possible in light of the status of addictionology today.

    
    

78. For example, the syndrome of "protracted withdrawal from opiates," was not even known to exist at the time Dr. Pennington participated in the Willingway program. The syndrome is the result of the body shutting off its own, natural, manufacture of endorphins and other "internal opiates," necessary to a sense of well-being while taking narcotic opiates and introducing into the body exogenous opiates. As a result, it takes the body several years, a period

    longer than the initial treatment phase, to begin producing its own internal opiates. In the meantime, the opiate addict will continue to suffer withdrawal symptoms, hence the term "protracted" withdrawal. Unlike the care after the Willingway program, the PRN aftercare program provides treatment for protracted withdrawal.

    
    

    Dr. Pennington's Experience with PRN and Adherence to the Advocacy Contract

    
    

79. At least through the time of hearing, Dr. Pennington has maintained a strict adherence to his PRN contract. He has fully complied with monitoring by PRN. He has shown a significant commitment to his program of recovery since entering into the advocacy contract.

    
    

80. Since late summer, 1995, PRN has considered Dr. Pennington to be safe to practice under the terms of his advocacy contract with continued monitoring.

    
    

81. In making that determination, PRN has considered all of the Respondent's past addictive behavior including the length of his addiction, his ability to function normally while under the influence of opiates and other drugs, lying about drug use, concealing it from family, friends, work colleagues, even the Board, stealing drugs, and self-prescribing. Moreover, PRN has considered his prior discipline by the Georgia Board of Pharmacy, the treatment at Willingway and the failed aftercare in his first effort at recovery. Most importantly, PRN has considered the potential danger Dr. Pennington poses to patients and the public.

    
    

82. Because of restrictions imposed upon him by both Talbott-Marsh and PRN, Dr. Pennington is not practicing as an anesthesiologist. He cannot resume that practice until his treatment professionals and PRN agree that it is safe for him to do so.

    
    

83. Dr. Pennington is not permitted access to controlled substances. He must utilize triplicate prescriptions, one for the patient, one in the chart, and the other for monitoring.

    
    

84. Since leaving Talbott-Marsh, Dr. Pennington has successfully met these requirements imposed for his aftercare from the moment he left Talbott-Marsh:

    
    

    1. Monitor and addictionologist: Dr. Roger Goetz and a local monitor, Jim Noyes, Ph. D.

    2. Primary physician of Marte Kautzler, D.O.

    3. Not to return to anesthesiology for at least one year following treatment. Return to Talbott-Marsh for reassessment.

    4. Work 40 hours per week maximum. Utilize triplicate prescription pads in his practice.

    5. Reside with wife, Rachel, and attend couples therapy as directed by Dr. Noyes.

    6. Attend Caduceus and AA, 90 meetings in 90 days, followed by attending at a frequency of four to seven times per week.

       See Joint Exhibit 1.

       
       

       Board Action Had it Been Aware of the Truth at the Time the Application Was Filed

85. Had the Board been aware at the time Dr. Pennington filed his application that the answers to questions 4, 9 and 10 were inaccurate, Dr. Pennington would have had to appear before the Board's Credential Committee. The Committee would have required a personal appearance of Dr. Pennington and a PRN evaluation.

    
    

86. Based on the evaluation and Dr. Pennington's explanation for the inaccuracies in the application, the Committee would have recommended either denial of licensure or issuance of the license.

    
    

87. Dr. Pennington is in full compliance with his PRN contract and has demonstrated a strong commitment to his program of recovery and the requirements of PRN. It is likely, based on an analysis of similar cases, that if Dr. Pennington were to apply for a license today, with full disclosure, and under the current circumstances of his good standing in the PRN program, that the Board would grant him a license with conditions.

    
    

    Dr. Pennington's Practice Today

    
    

88. Today, Dr. Pennington is employed as a practicing physician at a private walk-in clinic.

    
    

89. In addition to the practice of requiring his prescriptions in triplicate, his access to controlled substances is completely restricted and the restriction is closely monitored. The nurses at the clinic maintain the keys which allow access to the drugs. An inventory is conducted in the morning when the facility opens and is matched every day with an inventory done in the evening when the facility closes.

    
    

90. A urinalysis to check for recent drug use was performed when Dr. Pennington was hired and random urinalyses are done of all employees, including the owner, from time to time without warning. Dr. Pennington, at the time of hearing, had been subject to two urinalyses.

    
    

91. Dr. Pennington is observed at the facility for behaviors that would indicate relapse. At the time of hearing, he had not exhibited any such behaviors.

    
    

92. His knowledge of medicine was described by his employer as good. Moreover, Dr. Pennington has shown good clinical judgment in the cases he has encountered as well as excellent skills in dealing with his patients.

    
    

    The Impact of Discipline on Dr. Pennington

    
    

93. It would be counter-therapeutic to Dr. Pennington to remove him from the practice of medicine while he is in recovery. In fact, one of the main reasons for the extremely high success rate of PRN's work with physicians suffering from the disease of chemical dependency when compared to the general population of those with the disease, is that the physician is working and his or her license is always at stake.

    
    

    Protection of the Public

    
    

94. The department, in an attempt to protect the public, is seeking discipline of Dr. Pennington. Yet, the Board, by not taking emergency action against his license, has conceded that he is not impaired at the moment and so long as he is in recovery. Moreover, by allowing his practice pending this

    proceeding and not taking emergency action against his license, the Board has determined Dr. Pennington's practice as a physician in a walk-in clinic does not pose an imminent danger to public health safety and welfare.

    
    

    CONCLUSIONS OF LAW

    
    

95. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.57 and 455.225, Florida Statutes.

    
    

96. Disciplinary proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973). In order to suspend or revoke Dr. Pennington's license, Petitioner has the burden of establishing the violations alleged in the Administrative Complaint by clear and convincing evidence. Section 458.331(3), Florida Statutes; Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

97. It is not in dispute that petitioner has met that burden with relation to three of the charges contained in the administrative complaint: that Dr. Pennington violated Section 458.331(1)(a), Florida Statutes, by providing false information on three questions on his application for licensure; that he violated Section 458.331(1)(k), Florida Statutes, by writing prescriptions for himself under the names of those who were not his patients; and, that he violated Section 458.331(1)(r), Florida Statutes, by dispensing and administering controlled substances to himself. Indeed, Dr. Pennington either stipulated to facts which constitute violation of these three charges prior to hearing or concedes in his proposed recommended order that the petitioner has proven by clear and convincing evidence the statutory violations as charged.

    
    

98. With regard to the remaining charge, violation of Section 458.331(1)(s), Florida Statutes, while the evidence establishes that Dr. Pennington is not now impaired because of the Talbott-Marsh treatment program and the excellent aftercare he is receiving through PRN, it is clear that Dr. Pennington was impaired and unable to practice with reasonable skill and safety from the moment he was licensed and at least up until some point subsequent to his entry into the Talbott-Marsh program.

    
    

99. This conclusion is reached despite Dr. Pennington's ability to function at a high level while under the influence of opiates. His ability to escape recognition of a drug problem by the untrained eye does not mean that he was not impaired or that he was practicing medicine with reasonable skill and safety. Dr. Pennington admitted practicing anesthesiology on one patient while under the influence of Sufenta the day he was questioned by federal and Pinellas County law enforcement agents. Given the magnitude of his opiate consumption, the inference can be drawn that he practiced anesthesiology, while under the influence of Sufenta, at one time or another, on many other patients. He was impaired as well while under the influence of the other opiates he consumed, among them, hydrocordone and tussionex. But whether impaired under the influence of less powerful narcotics like hydrocordone or under the influence of Sufenta, the most powerful opiate used in medicine today, Dr. Pennington was impaired due to addiction to narcotics and consumption of them and their influence on his mental and physical abilities while practicing anesthesiology, an extremely dangerous and absolutely deplorable situation for any anesthetized patient under his care.

    
    

100. This conclusion, moreover, is reached despite the lack of evidence that Dr. Pennington caused any injury to any of his anesthesiology patients at

     either Ochsner Clinic in Louisiana or while practicing anesthesiology in Florida. The lack of evidence of injury to patients is no reason to conclude that a physician under the influence of mind-altering substances was not impaired. See, Major v. Department of Professional Regulation, 531 So.2d 411 (Fla. 3rd DCA 1988).

     
     

101. It is concluded therefore that Dr. Pennington is in violation of each of the four statutory provisions he is charged to have violated in the four counts of the administrative complaint.

     
     

102. The much more difficult issue, and the one that likely prevented this case from settling prior to hearing with a consent agreement and a final order similar to the three cases which were submitted in Respondent's Exhibit No. 4, is the issue of appropriate penalty to be imposed in light of the violations.

     
     

103. The Agency for Health Care Administration proposes that Dr. Pennington's license be revoked without leave to apply and that he pay a fine in the amount of $10,000, that is $2,500 per count. The agency bases its proposal on the argument that this case is not a typical impairment case.

     
     

104. In making this argument, the agency points to the following distinguishing aspects of this case:

     
     

     1. The length of Dr. Pennington's drug problem, it having begun in high school;

     2. Dr. Pennington's choices of careers intimately connected with drugs: pharmacy

        and medicine with a specialty in anesthesiology;

     3. Illegal diversion of drugs and medicines by Dr. Pennington both through having stolen them when a pharmacist and having self-prescribed them

        in the name of fictitious patients, when a physician;

     4. The uncanny similarities between this case and Dr. Pennington's case before the Georgia Board of Pharmacy - in the two cases Dr. Pennington's wives testified that they had no knowledge of his drug use until he was caught, Dr. Penning- ton's employer testified how competent he was, what an excellent employee he was, and about measures taken to ensure he was not on drugs, and Dr. Pennington's testimony about his remorse and commitment to remaining drug free;

     5. Dr. Pennington's failure to complete the probation imposed on him by the Georgia Board of Pharmacy;

     6. Dr. Pennington's fraudulent misrepresentations to the Board which allowed him to practice in an unrestricted fashion for several years in Florida putting his patients at unnecessary and unacceptable risk;

     7. His failure to adhere to rigorous honesty after his earlier treatment at Willingway and the aftercare he received for at least the eight months prior to his entry into medical school;

     8. Dr. Pennington's lack of good moral character in lying on his application when he could have

        entered treatment and practiced under a consent agreement and final order that would have ensured he was safe to practice rather than the endangerment to which he exposed his patients; and, in sum,

     9. the totality of these circumstances, unlike

     any other case with which the agency is familiar, demanding, in the agency's view, that Dr.

     Pennington not be given a third chance following the second chance given him by the Georgia Board of Pharmacy.

     
     

105. Dr. Pennington, on the other hand, without diminishing the seriousness of the events which led to this proceeding, argues that he successfully completed the treatment program at Talbott-Marsh, is successfully practicing now in compliance with his advocacy contract administered by PRN, is subject to the strict scrutiny of the program of PRN, the Board's monitoring program, and, finally, is safe to practice so long as he remains in recovery. Dr. Pennington, therefore, proposes that his license be suspended for a period of three (3) to (6) months stayed and that he be placed on probation for a period of five years with conditions deemed appropriate by the Board.

     
     

106. The agency is rightfully appalled at the history of Dr. Pennington's drug use, addiction and practice of anesthesiology in Florida while impaired as well as illicit procurement of drugs for his own use through prescriptions for fictitious patients. It is just as rightfully indignant that Dr. Pennington was able to obtain his license by misleading the Board through misrepresentations. But the agency's view overlooks that Dr. Pennington's situation, when compared with other addicted physicians monitored by PRN, is one of circumstances. There but for certain graces goes many another addicted physician presently licensed in Florida and practicing under monitoring by the PRN program.

     
     

107. It is in the nature of addicts to lie and mislead, to steal drugs, and, in the cases of impaired physicians, to write prescriptions in the names of others to be used by themselves. It is in the nature of addicts to conceal their drug use, for as long as possible, from their families and friends, their colleagues at work, in short from everyone who may attempt to interrupt their addictive behavior. It is also in the nature of many addicts, particularly those with opiate addiction, to suffer relapses after entering recovery. That Dr. Pennington was given a second chance by the Georgia Board of Pharmacy and then relapsed once he found himself in a situation of not participating in a monitoring program is more easily understood, actually, than the impaired physician who relapses under the outstandingly high quality of care of PRN. And many of those under the care of PRN do suffer relapse. The evidence established that as many as 14 percent of those who participate in PRN suffer a relapse within the first few years of treatment. Unlike the care Dr. Pennington received the first time his addiction was discovered, Dr. Pennington is now in a comprehensive, well-designed, highly disciplined recovery program that has the advantage of recent advances made in the field of addictionology. The success rate of PRN is a phenomenal 97 percent at the end of five years.

     
     

108. When Dr. Pennington's addiction was discovered in 1995, the regulatory authorities in Florida had a choice. Dr. Pennington's practice could have been declared an imminent danger to public safety and his license suspended by emergency order. Otherwise, short of such drastic regulatory action, his case could have been handled on a non-emergency basis while he proceeded through treatment at Talbott-Marsh, aftercare under the auspices of PRN, and practice in

     a limited capacity as a walk-in clinic physician without access to drugs. The latter course, not the former, was selected by those with authority. That choice having been made, the PRN program should be given a chance to work.

     
     

109. On balance, then, the approach proposed by Dr. Pennington, stayed suspension and probation with adequate conditions, seems the more appropriate.

     
     

110. The length of suspension Dr. Pennington proposes, however, seems inadequate, grossly so. First of all, he may not yet have experienced the last of protracted withdrawal. Although there was no evidence that he is experiencing such withdrawal, the testimony established that protracted withdrawal can go on for up to two years. The hearing in this case took place barely a few months after the one year anniversary of Dr. Pennington's completion of initial treatment at Talbott-Marsh. Given Dr. Pennington's massive use of opiates, including a narcotic with the potency of Sufenta, it should not come as a surprise, if protracted withdrawal in his case lasted a longer time than the average. The Board should not take a chance that Dr. Pennington's withdrawal from the need for exogenous opiates has ceased.

     
     

111. Dr. Pennington's license should be suspended for at least five years. The suspension should be stayed with a concurrent period of probation. The Board should apply whatever conditions it deems appropriate. At a minimum, such conditions should include Dr. Pennington not being allowed to practice anesthesiology for the entire probationary period, if ever. Nor should he be allowed for the probationary period to have access to any drugs, again, if ever. During the five-year period, Dr. Pennington should be required to participate in the PRN program. Within a year of the conclusion of the stayed suspension and probationary period, Dr. Pennington's case should be re-assessed to see if the period of probation should be extended.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

1. That Dr. Pennington's license to practice medicine be suspended for five years;

   
   

2. That the suspension be stayed and that he be placed on probation immediately for at least five years with probation to be extended, if necessary at the end of the five years;

   
   

3. That appropriate conditions of the suspension be imposed by the Board to include, at a minimum:

1. No practice of anesthesiology during the period of probation;

   
   

2. No access to controlled substances, drugs or medicines requiring a prescription during the period of probation; and,

   
   

3. Participation in the Physician's Recovery Network for the entire period of probation.

DONE AND ENTERED this 22nd day of November, 1996, in Tallahassee, Leon County, Florida.

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1996.

COPIES FURNISHED:

Monica Felder, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399

Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy

201 East Kennedy Blvd., Suite 1950 Tampa, Florida 33602

Dr. Marm Harris Executive Director

Agency for Health Care Administration Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2770

) JOHN MARK PENNINGTON, M.D., )

)

Respondent. )

)

ORDER CORRECTING RECOMMENDED ORDER

Pursuant to Rule 60Q-2.032(2), the Recommended Order rendering in this case on November 22, 1996, is corrected as follows:

Under the section denominated "RECOMMENDATION," on page 35, the word "suspension," in the third recommendation is changed to "probation." The pertinent clause in the third recommendation now reads:

3. That appropriate conditions of the probation be imposed by the Board to include, at a minimum:

[conditions to follow]... .

The remainder of the Recommended Order remains unchanged.

DONE AND ENTERED this 2nd day of December, 1996, in Tallahassee, Leon County, Florida.

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1996.

COPIES FURNISHED:

Monica Felder, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399

Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy

201 East Kennedy Blvd., Suite 1950 Tampa, Florida 33602

Docket for Case No: 96-002770

Orders for Case No: 96-002770