STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD ) OF MEDICINE, )

Petitioner, )

)

vs. ) Case No. 97-0721

)

ERNESTO PINZON-REYES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Sebring, Florida, on September 8-10, 1997.

APPEARANCES

For Petitioner: Steven Rothenburg

Senior Attorney Department of Health

Office of the General Counsel Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: Grover C. Freeman

Freeman, Hunter & Malloy

201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of violating the applicable standard of care; prescribing a legend drug other than in the course of his professional practice; failing to keep written medical records justifying the course of treatment of the patient; making deceptive, untrue, or

fraudulent representations related to the practice of medicine or employed a trick or scheme in the practice of medicine; or practicing beyond the scope permitted by law or performed professional responsibilities that he knew or had reason to know he was incompetent to perform. If so, an additional issue is what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 1, 1996, Petitioner alleged that Respondent admitted R.G. to Highlands Regional Medical Center with complaints of shortness of breath, weakness, constipation, and rectal bleeding. R.G. had recently been diagnosed with lung cancer, which had metastasized to the spinal cord and liver.

The Administrative Complaint alleges that R.G. was the patient of another physician. However, on October 4, 1996, Respondent assumed care for R.G. for the weekend. The Administrative Complaint alleges that Respondent is not trained in oncology or pain management and was incompetent to care for a patient in acute pain in the final stages of terminal cancer.

The Administrative Complaint alleges that on October 6, 1996, R.G.’s family reported that R.G. continued to suffer pain. The Administrative Complaint alleges that Respondent ordered the intravenous administration of 10 milligrams of

morphine, but a nurse refused to give the injection and Respondent canceled the order.

The Administrative Complaint alleges that Respondent later administered 15 milligrams of morphine intravenously, followed by another 120 milligrams over a half-hour period in six separate doses and 10 milligrams of Valium in two doses. The Administrative Complaint alleges that Respondent administered these medications by intravenous push. The Administrative Complaint alleges that R.G. had fallen asleep by the second shot of morphine, although his breathing remained labored and he was sweating heavily, but he did not appear to be in pain.

The Administrative Complaint alleges that, following the administration of the morphine and Valium, R.G. was breathing at a rate of 1-2 breaths every 1-2 minutes and remained in respiratory distress. He was tachycardic with a regular, strong pulse of over 100 beats per minute. At this point, Respondent allegedly administered potassium chloride to R.G. by intravenous push. Sometime in the next half hour, R.G. died.

The Administrative Complaint alleges that Respondent then completed the medical records, indicating that he had administered 30 milliequivalents of potassium chloride at the rate of 15 cubic centimeters per hour.

The Administrative Complaint alleges that Respondent failed to practice within the acceptable standard of care by administering large doses of morphine after R.G. had fallen asleep and administering potassium chloride by intravenous push without medical justification. The Administrative Complaint alleges that Respondent accepted professional responsibility for a patient for whom he was not qualified to care and failed to obtain appropriate consultations for pain management. The Administrative Complaint alleges that Respondent’s records fail to provide justification for the plan of treatment because the records provide no medical justification for the use of excessive amounts of morphine with Valium and potassium chloride. The Administrative Complaint alleges that Respondent failed to maintain appropriate medical records and made untrue representations in the practice of medicine because he falsified the records by incorrectly documenting the method of administration of morphine and potassium chloride.

The first count alleges that Respondent failed to practice medicine within the acceptable level of care by inappropriately administering an excessive amount of morphine intravenously and administering Valium and potassium chloride without medical justification. The first count alleges that these departures from the applicable standard of care violate Section 458.331(1)(t), Florida Statutes.

The second count alleges that Respondent inappropriately prescribed excessive amounts of morphine and inappropriately prescribed Valium and potassium chloride. The second count alleges that these prescriptions of legend drugs outside the course of Respondent’s professional practice violate Section 458.331(1)(q), Florida Statutes.

The third count alleges that Respondent failed to maintain appropriate medical records because he failed to provide justification for the use of excessive amounts of morphine while using Valium and potassium chloride and he falsified the medical records as to the method of administration of these medications. The third count alleges that these actions violate Section 458.331(1)(m), Florida Statutes.

The fourth count alleges that Respondent made deceptive representations by falsifying his medical records when he incorrectly documented the method of administering morphine, Valium, and potassium chloride. The fourth count alleges that these actions violate Section 458.331(1)(k).

The fifth count alleges that Respondent performed professional responsibilities he knew or should have known he was not competent to perform when he treated R.G. with high amounts of pain medication without appropriate experience and without obtaining appropriate consultations. The fifth count alleges that these actions violate Section 458.331(1)(v).

At the hearing, Petitioner called eight witnesses and offered into evidence eight exhibits. Respondent called nine witnesses and offered into evidence eight exhibits. The parties jointly sponsored three exhibits. All exhibits were admitted except Respondent Exhibit 11.

The court reporter filed the transcript on September 24, 1997.

FINDINGS OF FACT

1. R.G. and his wife had been happily married for 46 years when R.G. died, at 70 years of age, in the fall of 1996. For some time, they had lived in Sebring, surrounded by families and friends.

2. Since the early 1990s, Dr. Fabio Oliveros served as R.G.'s primary physician. For two or three years prior to his death, R.G. took pain medications, principally for the relief of the symptoms of rheumatoid arthritis. R.G.'s health deteriorated in 1996. In the last year of his life, R.G. suffered from congestive heart failure, pulmonary congestion, high blood pressure, shortness of breath, and irregular heartbeat.

3. Dr. Oliveros hospitalized R.G. several times in 1996. In September, R.G. complained of pain in his right shoulder and an inability to raise his right arm. R.G. was admitted to the hospital on September 16. Suspecting a disorder of the spinal cord, Dr. Oliveros ordered a series of x-rays and

   magnetic resonance images. When he saw the chest x-ray, Dr. Oliveros questioned whether it was of R.G.'s lungs because he had had a clear x-ray only a couple of weeks earlier. The later x-ray revealed countless spots or nodules occupying every square centimeter of R.G.'s lungs.

4. Dr. Oliveros and Dr. Dennis Bassetti, a local pulmonologist, diagnosed R.G. with bronchoalveolar carcinoma, which, due to its widespread appearance throughout R.G.'s lungs, was incurable. The cancer had already metastasized to R.G.'s spine and liver.

5. Fearing that R.G. would suffer paralysis due to bone compression in the spinal cord, Dr. Oliveros recommended immediate neurosurgery. Mentioning that he had undergone two back surgeries, R.G. declined, saying that he was too old for such surgery.

6. Dr. Oliveros discharged R.G. from the hospital on September 25. He gave R.G. Percocet for pain, but, a couple of days later, prescribed a stronger pain reliever, MS Contin, which is a form of morphine. Responding to R.G.'s continuing complaints of pain, Dr. Oliveros increased the frequency of the dosage from every 12 hours to every 8 hours.

7. After R.G.'s release from the hospital, his wife and children contacted the local hospice to arrange for services. It is unclear whether they knew that R.G. had little time left to live, but they obviously knew that he was gravely ill with

   cancer in several parts of his body and would not recover from this disease.

8. R.G.'s wife returned him to the hospital on

   
   

   September 27 with complaints of extreme uncontrolled pain. He was discharged the same day. Dr. Oliveros prescribed Roxanol, a liquid form of morphine, for use in between doses of MS Contin. By September 30, R.G. was taking up to 2.5 milligrams of liquid morphine over 5 1/2 hours with little pain relief.

9. On September 30, a home health care nurse tried to relieve R.G.'s constipation by giving him an enema. R.G. began to bleed from his rectum and was in pain. The nurse called Dr. Oliveros, who advised R.G.'s wife to take him to the hospital if the bleeding persisted.

10. Late that evening or in the early hours of October 1, R.G.'s wife transported him to the Highlands

    Regional Medical Center. R.G. remained hospitalized until his death on Sunday, October 6.

11. R.G. was terminally ill upon his October 1 admission and his prognosis was poor. Respondent was on call at the time of R.G.'s arrival at the hospital, and Respondent ordered that R.G. be placed in the intensive care unit. Respondent ordered antibiotics, heart medications, bronchial inhalers, and stool softeners.

12. Respondent remained on call on the weekday nights and weekend of R.G.'s final hospitalization. Although

    Dr. Oliveros saw R.G. during the weekdays, Respondent handled R.G.'s medications. At this time, Highlands Regional Medical Center had no pain management specialists on staff or with privileges.

13. R.G.'s condition stabilized by the evening of October 1, and Respondent ordered that he be moved to the progressive care unit.

14. From October 1-4, R.G. suffered from irregular heart beat and his potassium levels were at the low end of the normal range. The primary purpose of R.G.'s care during this hospitalization was pain management.

15. R.G.'s pain intensified during the week so that Respondent repeatedly had to shorten the intervals between the administration of the morphine. R.G.'s family frequently voiced their concern to hospital staff concerning R.G.'s evident discomfort. The nurses frequently called Respondent.

16. When Respondent examined R.G. on the morning of October 5, he found the patient in severe respiratory distress due to emphysema, congestive heart failure, and lung cancer.

17. At the time, Respondent had been licensed to practice medicine for about 10 months. His specialization was internal medicine with an emphasis in nephrology. Respondent was board-eligible. He had begun his practice of medicine in early 1996 in association with Dr. Oliveros.

18. Respondent asked Dr. Bassetti to examine R.G. to see if there was something they could do to ease R.G.'s breathing pain. After doing so, Dr. Bassetti found R.G. in deep trouble, probably with no more than a couple of days to live. In his 12 years of practice, Dr. Bassetti had seen few patients suffer as severely as was R.G. Dr. Bassetti advised Respondent to administer large doses of morphine to alleviate R.G.'s pain.

19. Dr. Bassetti's advice was implicitly based on the principal of "double effect." This principle, more accurately one of "triple effect," justifies treatment to relieve pain, even though the treatment incidentally renders the patient unconscious so as to be unavailable to his friends and family and may shorten his life.

20. The misnomer, "double effect" reveals the professional and ethical ambivalence concerning palliative care and impedes careful consideration of one aspect of this principle. Ignoring the effect of rendering a patient unconscious obscures the fact that, in cases such as the present where patient suffering is extreme, the deep-sedation effect is not only an acceptable incidental effect of pain relief, but is also an acceptable end in itself, as part of the therapeutic effect to relieve pain.

21. On October 5, R.G.'s family discussed terminating all medications except for those to relieve pain. Three

    months earlier, R.G. had appointed his wife as his health care surrogate to decide on his behalf whether to withhold or withdraw life-prolonging procedures.

22. R.G.'s living will outlines three scenarios. The first involves a coma or persistent vegetative state and is inapplicable. The second scenario is a progressive terminal illness that cannot be cured, and the patient has reached the point that he no longer can recognize family and friends or speak understandably. The third scenario is a permanent, incurable, nonterminal condition in which the patient is unable to recognize people or speak understandably. Although neither of these latter scenarios precisely describes R.G.'s condition on October 5 and 6, they are illustrative, not exhaustive (i.e., they do not limit the implementation of the instrument to the stated scenarios). More importantly, for each illustrative scenario, Respondent explicitly endorsed the principle of "triple effect," stating that he would want pain medications even if they dulled his consciousness and could shorten his life, and he wanted his wife to make all other decisions.

23. R.G. restated these desires in a simple living will form that he executed on September 16, 1996. On R.G.'s hospital admission on October 1, his wife and one of his daughters signed a form acknowledging that death is "expected and inevitable" and requesting that hospital personnel not use

    extraordinary measures, but instead only keep R.G. "comfortable."

24. Based on their understanding of the treatment given R.G.'s sister, whom a physician sedated to the point of unconsciousness about 5 hours before her death at the end of a painful illness, R.G.'s family decided to ask Respondent for an injection to make R.G. sleep and rest. When discussing the issue with Respondent, R.G.'s wife mentioned a "shot" but did not mention morphine. However, R.G.'s wife and family were ambivalent about when to give him the injection because, knowing that he was dying, they wanted him conscious to say goodbye to out-of-town family members en route to the hospital. R.G.'s wife and family eventually asked Respondent to give R.G. heavy sedation if his condition worsened, which they evidently hoped would not be until after the arrival of the family members coming to the hospital.

25. Respondent continued administration of MS Contin, now every 4 hours. He ordered a Duragesic Patch, which introduces a steady stream of morphine over time, and reduced the MS Contin to every 8 hours, as needed.

26. The next morning, in response to continuing complaints of pain from R.G. and his family, Respondent raised the dosage on the patch, but, before staff executed this order, he replaced all pain relievers with a patient- controlled pump, which allowed R.G. or his family to

    administer morphine as needed, up to 2 milligrams every 8 minutes and 20 milligrams every 4 hours. The nurses set up the pump by noon. Also in the morning at the request of R.G.'s wife, Respondent discontinued all medications except pain relievers.

27. In the morning, while Respondent was at the hospital changing orders to the pump, he spoke with R.G.'s wife and family about heavy sedation. As a nurse later described October 6, "R.G. just couldn't get his pain under control." Respondent knew that R.G. was near death. His respiratory rate was 23, and he was using abdominal muscles to try to breathe. Respondent told the family to tell him if and when they wanted heavy sedation.

28. That afternoon, a nurse called Respondent and told him that the family was asking for more pain medication. Respondent told the nurse to give R.G. 10 milligrams of morphine by intravenous push. The nurse was inexperienced, having been licensed as a registered nurse for a little more than 1 1/2 years. She was also stressed to the point of crying from the twin ordeals of watching R.G.'s painful death and dealing with the anxieties and fears of a large number of family members. She told Respondent that she was uncomfortable with giving R.G. so much morphine.

    Rather than castigate the nurse, Respondent agreed to come to the hospital and administer the morphine himself. In

    the meantime, the family had a priest come to the hospital and administer last rites.

29. Arriving at the hospital at around 5:00 p.m., Respondent spoke briefly with R.G.'s wife and son and then conducted a physical examination of R.G. He found R.G. very close to respiratory failure, with death probably not more than 2-3 hours away. His respiration rate was now 40. He was sweating profusely and laboring for each breath. In great pain despite the morphine, R.G. was slowly suffocating to death in the presence of his wife and about a dozen other family members. Respondent was not immune to the suffering.

30. A claim throughout the testimony of R.G.'s wife is that she and her husband never received adequate communications from his doctors -- from the start when he suffered from pain for two or three years through the diagnosis of cancer and ending with the meeting with Respondent late in the afternoon October 6.

31. The present record provides an inadequate basis for a determination of the viability of this claim. Perhaps communications could have been better between R.G. and his wife, on the one hand, and all of his providers in the three years before his death, on the other hand. But the claim of R.G.'s wife that Respondent inadequately communicated his treatment plans late in the afternoon of October 6 is crucial and requires careful analysis.

32. Neither R.G.'s wife nor any of his children initiated the present proceeding or the criminal prosecution that is described below. R.G.'s wife and son testified with remarkable strength and courage about one of the most private events of one's life -- the pain-racked death of a beloved husband and father -- that was followed by what had to be a nightmarish succession of public events involving a media- saturated murder trial of the treating physician and much less intense, but agony-prolonging disciplinary proceeding. These unprecedented developments following R.G.'s death likely prompted R.G.'s wife and son to examine and reexamine their roles in the alleged murder of R.G. by his physician.

33. Under these most difficult circumstances, it is impossible to credit the testimony of R.G.'s wife and son that Respondent left them ignorant of "Respondent's" decision to sedate R.G. to the point of unconsciousness, thereby ending his suffering and possibly shortening his life by a theoretical amount of time. R.G.'s son had asked the nurse for the "shot" around 2:30 or 3:00 p.m. The entire family pressured the nurses to eliminate R.G.'s pain when the pump proved ineffective.

34. In fact, Respondent and R.G.'s wife and family agreed that it was time to sedate R.G. heavily in the little remaining time he had before his death, even if this process incidentally hastened his death.

35. After obtaining the consent of the family, Respondent returned to R.G.'s room and administered 20 milligrams of morphine by intravenous push. R.G. showed little sign of sedation. His breathing remained labored.

36. After 5-10 minutes, Respondent administered another

    
    

    20 milligrams of morphine by intravenous push. R.G. became more sedated, but was still struggling hard to breathe. Before and after the second injection of morphine, Respondent administrated 10 milligrams of Valium in two separate intravenous pushes of 5 milligrams each over 60-90 seconds each.

37. After these four injections, R.G. was somewhat sedated, but still fighting to breathe. He was sweating profusely and his heart rate remained rapid and irregular.

38. Respondent proceeded to inject by intravenous push four more doses of morphine, bringing the total to 117 milligrams over 30 minutes, from about 5:23 to 5:53 p.m. After each injection, Respondent waited a few minutes to see if R.G. obtained the desired relief. When R.G. failed to evidence relief from his distress, Respondent followed with another injection.

39. After completing the sixth and final morphine injection, R.G. was asleep and settled, but his neck veins were still pounding and his heart rate remained over 100. Seeing this, Respondent ordered the nurse to bring him 30

    milliequivalents (meq) of potassium chloride. She drew it in two syringes -- one with 20 meq and one with 10 meq.

40. Respondent took one of the two syringes -- no one knows which -- and administered it by intravenous push over a couple of minutes between 5:53 and 6:00 p.m. Respondent never administered the second syringe.

41. Over the next few minutes, R.G.'s heartbeat slowed and his neck veins pounded less hard. As Respondent and the nurse left the room, he told her that he had been amazed at how hard R.G.'s heart had pounded. When the nurse said that she had not previously seen potassium chloride administered by intravenous push, Respondent admitted that it was not the usual manner of administration and he would not be charting it that way. He did not ask her to mischart the method of administering the potassium chloride.

42. After leaving R.G.'s room, Respondent went to the telemetry room to get a read-out of R.G.'s heart rate. His profuse sweating prevented the body sensors from working, but Respondent told the telemetry staff not to discontinue the device. Respondent then left the hospital without giving follow-up orders because he knew R.G. would soon be dead.

43. At 6:37 p.m., R.G. died due to multi-organ failure and the tumor burden imposed on his body by pervasive cancer. His family thanked the nurse for her help and left the hospital quietly in small groups.

44. Shortly after R.G.'s death, Respondent was arrested for first-degree murder. He was incarcerated for two weeks until he could post bond. He was tried over a period of 6-7 weeks and acquitted on June 26, 1997. Petitioner suspended Respondent's license to practice medicine on October 22, 1996.

45. There is no evidence that Respondent's administration of the Valium, alone or in combination with the morphine and potassium chloride, was below the applicable standard of care.

46. There is no credible evidence that Respondent's administration of 117 milligrams of morphine over 30 minutes by intravenous push, alone or in combination with the Valium and potassium chloride, was below the applicable standard of care.

47. This finding as to morphine is obviously specific to R.G.'s situation. He had become morphine-tolerant and could thus withstand higher doses, which were necessitated by his extreme pain.

48. Dr. David McGrew, a hospice physician for 13 years, described the morphine dosage as more "exuberant" than what he would have selected, but not dangerous and in a reasonable range under the circumstances. He testified that it was unlikely that the morphine hastened R.G.'s death at all.

49. The situation is more complicated for the potassium chloride. However, the evidence is undisputed that the

    potassium chloride did not kill R.G. or shorten his life. Potassium chloride is an agent used for lethal injection when a state kills. The method of administration is by intravenous push. The sudden rush of sufficient amounts of potassium into the heart interrupts the organ's electrical activity, causing death in no more than 3-5 minutes. Administered in this fashion and dosage, the potassium chloride kills quickly; it cannot kill over 30 minutes later.

50. The evidence suggests that Respondent's motive in administering the potassium chloride by intravenous push was palliative, not lethal. He was concerned for the comfort of R.G., who, though asleep, remained tachycardic with an extremely high heart rate. Respondent's training in nephrology led him to consider the possibility of an electrolyte imbalance caused by hypokalemia. There was no time to test R.G.'s potassium levels, as this would have taken at least 30 minutes; there was little time even to think through the treatment plan, if Respondent were to deliver effective palliative care in the little time that R.G. had remaining. Respondent knew that R.G.'s potassium levels had been at the bottom of the low range three days earlier and he had since sweated profusely, thus probably losing more potassium.

51. Doubtlessly, the standard method of administration of potassium chloride for a hypokalemic patient is not an

    intravenous push, unless the hypokalemia, if not immediately corrected, presents a greater risk to the patient's life than the risk of mortality -- however small -- through intravenous push of the potassium chloride.

52. However, R.G. was in his final minutes of life and effective relief could not be delayed. It is difficult to find that Respondent reasonably accelerated the introduction of the potassium chloride; Respondent himself wisely concedes that he would not do this again. It is sufficient to find that Petitioner has not proved by clear and convincing evidence that Respondent's administration of 10 meq of potassium chloride, alone or in combination with the morphine and Valium, was below the applicable standard of care.

53. The evidence is clear and convincing that Respondent mischarted the manner of administration to show that he administered the potassium chloride by diluting it in the intravenous bag. The mischarting was intentional, although Respondent did not try to get the nurse to mischart the method of administration. Respondent could not explain this lapse in judgment, which he never tried to conceal and for which he now feels remorse. Perhaps this act represents an acknowledgment of the unorthodoxy of administering potassium chloride by intravenous push. But it was not an attempt to conceal a murder, assisted suicide, or hastened death.

54. Respondent has no previous disciplinary history. The local medical community supports him. Residents of Sebring raised a large sum of money for Respondent's legal defense. In his relations with patients, hospital staff, and other physicians, Respondent demonstrates the virtues of civility, patience, and compassion.

    CONCLUSIONS OF LAW

    
    

55. The Division of Administrative Hearings has jurisdiction over the subject matter under Section 120.57(1).

56. Petitioner must prove the material allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

57. Section 458.331(1) provides, in relevant part, that the Board of Medicine may impose discipline for

    (k) Making deceptive, untrue, or fraudulent representations in or related to the practice of medicine . . . .

    
    

    (m) Failure to keep written records justifying the course of treatment of the patient, including . . . records of drugs

    . . . administered . . . .

    
    

    (q) Prescribing [or] . . . administering a legend drug, including any controlled substance, other than in the course of the physician's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing [or] . . .

    administering 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.

    (t) . . . the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician being acceptable under similar conditions or circumstances.

    
    

    (v) Practicing 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.

    
    

58. The first count alleges that Respondent violated the applicable standard of care, as provided in Section 458.331(1)(t), by inappropriately administering an excessive amount of morphine intravenously and Valium and potassium chloride without medical justification. The second count alleges that these acts were outside of the course of Respondent's practice, in violation of Section 458.331(1)(q). The fifth count alleges that Respondent knew or should have known that he was not competent to prescribe high amounts of pain medication without appropriate experience and consultations. Petitioner has failed to prove the allegations of these three counts.

59. As to the first count, Petitioner failed to prove that the administration of morphine, Valium, and potassium chloride violated the applicable standard of care. As to the second count, Petitioner failed to prove that these acts were outside the course of Respondent's practice because, among other things,

    Petitioner failed to prove that Respondent's administration of these drugs was inappropriate or excessive. As to the fifth count, Petitioner failed to prove that Respondent was not competent to prescribe high amounts of pain medication because Petitioner failed to prove that the prescribed amounts and methods were inappropriate or excessive, and Respondent consulted with Dr. Bassetti on October 5.

60. The third count alleges that Respondent failed to maintain appropriate medical records because he failed to justify the excessive amounts of morphine and falsified the records as to the method of administration. The fourth count alleges that Respondent made deceptive representations by falsifying his medical records.

61. Petitioner proved that Respondent mischarted the method of administration of the potassium chloride. The mischarting was intentional and constituted the falsification of records.

62. Respondent's single act of falsifying R.G.'s medical records is not converted to two separate violations merely because it is prohibited by two statutes. Although the offense involves medical records, it is better described as a deceptive, untrue, or fraudulent statement in the practice of medicine

    than it is as a failure to keep medical records justifying the course of treatment. It is thus a violation of Section 458.331(1)(k), not Section 458.331(1)(m).

63. Rule 59R-8.001(2) sets a penalty range for a violation of Section 458.331(1)(k) from probation to revocation and a fine of $250 to $5,000.

64. Rule 59R-8.001(3) lists aggravating and mitigating circumstances. The circumstances are entirely mitigating. At the time of the mischarting,

    R.G. was dead or dying of causes unrelated to the method of administration of the potassium chloride. Respondent had no prior disciplinary history. This was a single violation. Respondent's act was not for pecuniary reasons. Other mitigating factors are that Respondent had been under considerable stress in treating this very sick patient and assisting his concerned family, has shown remorse for his mischarting, never lied about the mischarting, and enjoys the support of his professional and local communities. A unique mitigating factor is the deterrent effect of undergoing a 6-7 week, highly publicized criminal trial for first degree murder in which Respondent was literally fighting for his life. Undoubtedly, he became acutely aware of the link

    between his professional credibility and the accuracy of his medical charts.

65. Respondent contends that the penalty in this case should be based on the penalty in Department of Business and Professional Regulation v. Michael Morrison, DOAH Case No. 93-6228. In Morrison, a blameless pediatrician learns, while on vacation with his 7 1/2-month pregnant wife, their two young children, and his in-laws, that a 16-year-old boy, whom the physician has seen only once, has suddenly died, and his father, for whom the police already have a "mug shot" due to his criminal record, has threatened to kill the doctors and their families. On the advice of the senior physician in their pediatric practice and the group's attorney, the respondent, while still under police protection, rewrote the medical charts to make them more complete. As stressed as Respondent may have been when he mischarted the treatment of R.G., the Morrison respondent was more stressed.

66. In two respects, though, the Morrison final order is instructive. In paragraph 45, it states: "Rewriting the chart after [the boy's] death did not relate to the course of treatment rendered to [the boy] by Respondent and had no effect on the health of the

    patient." Also, the Morrison respondent did not lie about his alteration of the records.

67. In Morrison, the Board of Medicine suspended the respondent's license for one year, but stayed the suspension upon payment of a $5,000 fine and performance of 300 hours of community service over 3 years. The final order contains an instructive review of penalties in a variety of cases.

68. The Sebring community has spoken in the forum of a jury verdict of acquittal and support for this beleaguered physician, around whom Sebring physicians have rallied. Revocation is too harsh a penalty under the circumstances. A fine or community service would add nothing to the murder trial and one-year suspension, except more financial distress. Beyond doubt, Respondent has already learned the importance of accurate chart entries. The penalty should therefore be limited to the one-year suspension that he has already served.

RECOMMENDATION

It is

RECOMMENDED that the Board of Medicine enter a Final Order dismissing all counts except the fourth count, finding Respondent guilty of violating Section

458.331(1)(k), imposing a penalty of one-year suspension, and crediting Respondent with the period from October 22, 1996, to present, during which his license has been suspended.

DONE AND ORDERED this 20th day of October, 1997, in Tallahassee, Leon County, Florida.

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 this 20th day of October, 1997.

COPIES FURNISHED:

Steven Rothenburg, Esquire Department of Health

Post Office Box 14229 Tallahassee, Florida 32317-4229

Grover C. Freeman, Esquire Suite 1950

201 East Kennedy Boulevard Tampa, Florida 33602

Angela T. Hall, Agency Clerk Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Dr. Marm Harris, Executive Director Board of Medicine

Department of Health Building 6

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

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: 97-000721

Orders for Case No: 97-000721