STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 96-5687

)

DANIEL KULICK, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Ft.

Myers, Florida, on March 20, 1997.

APPEARANCES

For Petitioner: Joseph S. Garwood

Senior Attorney

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229 For Respondent: no appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of being unable to practice as a physician assistant with reasonable skill and safety due to illness or use of alcohol or drugs, in violation of Section 458.331(1)(s); inappropriately prescribing medicine to family members by using the name of his supervising physician, in violation of Section 458.331(1)(q); and engaging in fraud in the practice of medicine by obtaining controlled substances through

fraudulent means, in violation of Section 458.331(1)(k). If so, an additional issue is what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated October 24, 1996, Petitioner alleged that Respondent was a certified physician assistant. When he appli7ed to the Board of Medicine to be certified as a physician assistant, the Board referred Respondent to the Physicians’ Recovery Network for evaluation due to his history of impairment.

The Administrative Complaint alleges that the Physicians’ Recovery Network referred Respondent to a psychiatrist specializing in the evaluation of impaired health care professionals. The psychiatrist completed his evaluation of Respondent by May 5, 1995, and determined that Respondent had a long history of drug addiction and had opiates present in his urine.

After the Board of Medicine denied Respondent’s application for certification, Respondent allegedly was treated by Dr. Goetz at Charter Glade Hospital. On August 8, 1995, Dr. Goetz determined that Respondent was safe to return to work.

The Administrative Complaint alleges that, on September 11, 1995, Respondent signed a five-year contract with the Physicians’ Recovery Network under which he agreed to undergo random drug screens; abstain from drug use; undergo monitoring by a physician; undergo psychiatric treatment; notify the Physicians’

Recovery Network of any change in address, employment, or mental or physical health; participate in Alcoholics Anonymous and group therapy; and withdraw from practice for evaluation at the request of the Physicians’ Recovery Network.

The Administrative Complaint alleges that the Board of Medicine granted Respondent a physician assistant license on September 26, 1995, provided Respondent complied with the conditions of his contract.

According to the Administrative Complaint, on or about August 1, 1996, Respondent changed his address without notifying the Physicians’ Recovery Network; obtained controlled substances by fraudulent means at the Lee County hospital where he worked; was terminated from his job at the hospital after threatening two patients and stalking a third; and failed to notify the Physicians’ Recovery Network of the change in employment.

The Administrative Complaint alleges that, on or about August 15, 1996, the Physicians’ Recovery Network contacted Respondent and directed him to report to his psychiatrist’s office immediately, but Respondent refused. At this time, Respondent’s wife discovered that he had obtained prescribed controlled substances by fraudulently using her name.

The Administrative Complaint alleges that Respondent is guilty of being unable to practice as a physician assistant with reasonable skill and safety, in violation of Section 458.331(1)(s); inappropriately prescribing legend drugs to family

members, in violation of Section 458.331(1)(q); and engaging in fraud in the practice of medicine by obtaining controlled substances for himself using the names of family members and his supervising physician, in violation of Section 458.331(1)(k).

On November 8, 1996, Respondent filed a letter disputing the material facts and demanding a formal hearing.

At the hearing, Petitioner called four witnesses and offered into evidence four exhibits, including a late-filed deposition transcript. All exhibits were admitted. Respondent did not appear.

The court reporter did not file the transcript. Petitioner filed a proposed recommended order on April 25, 1997.

FINDINGS OF FACT

1. At all material times, Respondent has been licensed as a physician assistant, holding license number PA 0002975.

2. When applying for his license, Respondent supplied the Board of Medicine with certain information that resulted in a referral of Respondent to the Physician’s Recovery Network (PRN) for a psychiatric evaluation.

3. The initial evaluation was completed on May 5, 1995. The evaluating psychiatrist determined that Respondent suffered from opiate dependency, probably as a result of some injuries that he had suffered years earlier. The psychiatrist concluded that Respondent could undergo outpatient treatment in an intensive program where he would be seen 3-5 times weekly.

4. At the end of May, on the advice of the evaluating psychiatrist, Respondent entered a six-week intensive outpatient treatment in a chemical dependency program at Charter Glade Hospital. He also commenced attending meetings of Alcoholics Anonymous and Narcotics Anonymous and undergoing random drug screens.

5. For the summer of 1995, Respondent had drug-free urine and seemed to be doing well. The evaluating psychiatrist informed the PRN that Respondent could safely return to practice, and the Board of Medicine certified Respondent to practice as a physician assistant.

6. By early summer, 1996, the evaluating psychiatrist, who had continued seeing Respondent, began to suspect that something was not quite right with him. Respondent had begun acting hypomanically, developing, for example, a get-rich-quick scheme that was not well-founded in reality.

7. During the summer of 1996, Respondent began using the name of his supervising physician to call in prescriptions for Vicodin, Trimox, and Ultram in the name of Respondent’s wife. These were fraudulent acts to gain possession of these narcotics for use by Respondent.

8. Respondent’s physician employer terminated Respondent’s employment in June 1996 following bizarre behavior on Respondent’s part in professional settings involving patients and prospective patients.

9. Respondent resisted all efforts by his evaluating psychiatrist to undergo reevaluation and retreatment, if necessary. Instead, Respondent became highly suspicious and unstable.

10. On October 4, 1996, Petitioner entered an order of emergency suspension of Respondent’s license.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

12. Section 458.347(11) provides that the Board of Medicine may revoke or suspend the certificate of a physician assistant if he has violated any provisions of Chapter 458.

13. Section 458.331(2) authorizes the Board of Medicine to revoke, suspend, or otherwise discipline the license of any person guilty of a violation of Section 458.331(1).

14. Section 458.331(1)(k) prohibits making “deceptive, untrue, or fraudulent representations in or related to the practice of medicine.”

15. Section 458.331(1)(q) prohibits “prescribing . . . a legend drug . . . other than in the course of the physician’s professional practice.”

16. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v.

    Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. Petitioner has proved that Respondent has violated Sections 458.331(k)(1) and (q). Respondent’s failure to respond to repeated attempts to engage him in a constructive effort to address the recurrence of his evident drug problem necessitates revocation of his certificate as a physician assistant.

RECOMMENDATION

It is

RECOMMENDED that the Board of Medicine enter a final order revoking Respondent’s certificate as a physician assistant.

ENTERED in Tallahassee, Florida, on June 4, 1997.

ROBERT E. MEALE

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 on June 4, 1997.

COPIES FURNISHED:

Joseph S. Garwood Senior Attorney

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229

Daniel Kulick

4641 Southwest Santa Barbara Place Cape Coral, Florida 33914

Dr. Marm Harris, Executive Director Board of Medicine

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 32308-5403

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-005687

Orders for Case No: 96-005687