STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 96-3354

)

JESSE BRANCALEONE, N.C., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 12, 1997, at Fort Lauderdale, Florida, before Claude B. Arrington, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Hugh R. Brown, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: E. Renee Alsobrook, Esquire

Alsobrook, Dove and Elliott, P.A. Post Office Box 10426 Tallahassee, Florida 32302-2426

STATEMENT OF THE ISSUES

Whether Respondent, a licensed nutritional counselor, committed the offenses alleged in the administrative complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

On April 25, 1996, the Petitioner filed a two-count administrative complaint against the Respondent, a licensed nutritional counselor. The administrative complaint alleged certain facts pertaining to advice allegedly given by Respondent to C. B., a cancer patient who had sought nutritional counseling from Respondent. Based on those allegations, Petitioner alleged in Count One that Respondent violated the provisions of Section 468.518(1)(a), Florida Statutes. Petitioner alleged in Count Two that Respondent violated the provisions of Section 468.518(1)(j), Florida Statutes. At the start of the formal hearing, Petitioner voluntarily dismissed Count One.

At the formal hearing, Petitioner presented the testimony of Francisco Bellette, a medical doctor specializing in oncology, who was C. B.’s treating physician at the times pertinent to this proceeding. The two exhibits offered by Petitioner were admitted into evidence. One of the Petitioner’s exhibits was the deposition of patient C. B., who was too ill to attend the formal hearing. The Respondent testified on his own behalf, but offered no other testimony and no exhibit.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the

requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. The Petitioner and Respondent filed proposed recommended orders, which have been duly considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating the practice of nutritional counseling pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes, and Chapter 468, Florida Statutes.

2. Respondent was licensed as a nutritional counselor at all times pertinent to this proceeding. Respondent was issued license number NC 0000427 in 1990. At the time of the formal hearing, Respondent’s address was 6661 Royal Palm Boulevard, Margate, Florida 33063-2108.

3. At all times pertinent to this proceeding, C. B. was a female cancer patient of Franciso Bellette, M.D., a physician specializing in the field of oncology.

4. Before Dr. Bellette moved to Florida in 1993, C. B. was treated by another physician in the practice group that Dr. Bellette subsequently joined. Prior to 1993, C. B. had chemotherapy, which she tolerated poorly.

5. In October 1995, Dr. Bellette diagnosed C. B. as having Stage 4 breast cancer with bony metastasis. Although the

   preferred treatment was chemotherapy, C. B. refused further chemotherapy because of her poor prior experience with chemotherapy. As the alternative treatment, Dr. Bellette prescribed the drug Tamoxifen for C. B., and she began taking that medicine.

6. Tamoxifen has been used to treat cancer patients for several years. There are documented side effects and risks associated with taking the drug. Dr. Bellette was aware of those side effects and risks and explained them to C. B. before she began taking Tamoxifen. It was Dr. Bellette’s opinion that for C. B. the benefits of taking Tamoxifen outweighed the known side effects and risks.

7. In January 1996, C. B. traveled to Mexico to investigate an alternative treatment plan that included special diets. Because of the language barrier, she was not certain she understood the nutritional counseling she had received in Mexico. After she returned from Mexico, C. B. made an appointment with Respondent to discuss her nutritional needs.

8. C. B. and Respondent met only on one occasion in late January or early February 1996.

9. Respondent’s nutritional counseling typically includes three visits. The first visit is typically an informal meeting during which he explains nutritional counseling to the prospective client, which includes a discussion as to the

   client’s nutritional needs and goals. If the client wants to continue with the other two visits, Respondent prepares and thereafter implements a nutritional plan for the client.

10. C. B. decided that she did not want to pursue the other two visits with Respondent. Consequently, Respondent did not prepare a nutritional assessment of C. B., did not prepare a nutritional plan for C. B., and did not become her nutritional counselor.

11. During his meeting with C. B., Respondent discussed her illness and the fact that she was taking Tamoxifen. C. B. testified in her deposition that Respondent told her that Tamoxifen was a killer drug and that she should stop taking the drug. C. B. also testified that she was sure Respondent had told her to stop taking Tamoxifen. Respondent testified, credibly, that he did not tell C. B. to stop taking Tamoxifen, but that he discussed the drug and its severe side effects with her so she could make an informed decision as to her course of treatment. C. B. was in hospice at the time of her deposition and heavily medicated. C. B. readily conceded that the medication she was on impaired her memory. It is not clear whether C. B. accurately recalled the statements made by Respondent, as opposed to recalling her interpretation of what Respondent had said. This conflict in the evidence is resolved by finding that Respondent discussed with C. B. the severe side

    effects of Tamoxifen in a manner designed to discourage C. B. from taking the medicine. The testimony of C. B. is insufficient to establish by clear and convincing evidence that Respondent told her to stop taking Tamoxifen.

12. Respondent did not hold himself out as a physician or

    
    

    as a pharmacist.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the parties to and the subject of this proceeding. Section 120.57(1), Florida Statutes.

14. Section 468.518(1)(j), Florida Statutes, provides as follows:

    1. The following acts constitute grounds for which the disciplinary actions in subsection (2) may be taken:

       * * *

       (j) Treating or undertaking to treat human ailments by means other than by dietetics and nutrition practice, as defined in ss. 468.501-468.518.

       
       

15. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing

    Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

16. Petitioner’s conclusion that Respondent treated or undertook treatment of C. B.’s cancer was not supported by expert testimony. As reflected by the findings of fact, the record does not establish by the requisite clear and convincing standard that Respondent told C. B. to stop taking the medicine that had been prescribed by her oncologist. While Respondent discussed the side effects and risks of the drug in a manner designed to discourage its use, that does not constitute an attempt to treat C. B.’s cancer. Because the record does not establish, by clear and convincing evidence, that Respondent treated or attempted to treat C. B.’s cancer, it is concluded that Petitioner failed to establish by clear and convincing evidence that Respondent violated Section 468.518(1)(j), Florida Statutes.1

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that

adopts the findings of fact and conclusions of law contained herein. It is further recommended that the final order dismiss the administrative complaint against Respondent.

DONE AND ENTERED this 5th day of June, 1997, in Tallahassee, Leon County, Florida.

Hearings

Hearings

CLAUDE B. ARRINGTON

Administrative Law Judge Division of Administrative

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

this 5th day of June, 1997

ENDNOTES

1/ The record may have supported the conclusion that Respondent engaged in misconduct in the practice of nutritional counseling in violation of Section 468.518(1)(h), Florida Statutes, by engaging in conduct he knew or should have known would impair the physician-patient relationship. That allegation was not made by the administrative complaint and that conclusion is not reached by the undersigned.

COPIES FURNISHED:

Hugh R. Brown, Esquire

Agency For Health Care Administration, Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

E. Rene Alsobrook, Esquire Alsobrook & Dove, P.A.

924 North Gadsden Street Tallahassee, Florida 32303

Dr. Marm Harris, Executive Director Board of Medicine

Agency for Health Care Administration 1940 Monroe Street

Tallahassee, Florida 32399-0792

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32309

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.

Docket for Case No: 96-003354

Orders for Case No: 96-003354