STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-1211

) JERI-LIN FURLOW BURTON, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on March 8-10, 1999, in Melbourne, Viera, Florida.

APPEARANCES

For Petitioner: John E. Terrel, Senior Attorney

Office of the General Counsel Department of Health

Post Office Box 14229 Tallahassee, Florida 32317-4229

For Respondent: George Ollinger, Esquire

100 Rialto Place, Suite 700 Melbourne, Florida 32940

ISSUES

An administrative complaint dated June 20, 1997, alleges that Respondent, Dr. Jeri-Lin Furlow Burton, committed various violations of Chapter 458, Florida Statutes, the Medical Practice Act. The issues in this proceeding are whether those violations occurred and, if so, what discipline is appropriate.

PRELIMINARY STATEMENT

After Dr. Burton contested the factual allegations of the Administrative Complaint and requested a formal evidentiary hearing, the case was forwarded to the Division of Administrative Hearings on March 10, 1998, where the case was assigned and set for hearing on July 21-23, 1998.

The Administrative Law Judge twice granted Respondent's unopposed requests for continuance; a third continuance was granted at the request of both parties when they suggested the hearing would require more time than allocated.

At the hearing Petitioner presented testimony of these witnesses: Theresa Wells; Edward J. DeStefano III; Carl D. Aquaviva; J.M.; Reynold M. Stein, M.D.; Peggy Cochran; and Donald Bauman. Petitioner offered Exhibits 1, 3-7, 9-14, 16-20, and 22-

1. Petitioner's Exhibits 19 and 22 were rejected and marked for identification only; Petitioner's Exhibit 23 was withdrawn. Petitioner's Exhibits 14, 16 and 17 (police reports and statements taken by police) were taken under advisement and are now rejected as uncorroborated hearsay. See Harris v. Game and Fresh Water Fish Commission, 495 So. 2d 806 (Fla. 1st DCA 1986). The remaining identified exhibits were received in evidence. Petitioner's Exhibit 6, a deposition of Gordon J. Rafool, M.D., was received in evidence and has been considered. Contrary to Respondent's assertion, it is not excludable as cumulative or repetitious testimony.

   Respondent Dr. Burton testified in her own behalf and presented the additional testimony of L.V. and Robert Lee Burton. Respondent offered Exhibits 2, 6-8, 13, 19, and 23-32.

   Respondent's Exhibits 2 and 13 were marked for identification only; the remaining identified exhibits were received in evidence including Respondent's Exhibit 6, the deposition of her expert witness, Dr. Centrone. Respondent's Exhibits 7 and 8, medical records of Dr. Turse and Dr. Weiss are found in a manila envelope marked "original exhibits Dr. Rafool's deposition." Respondent's Exhibit 23 includes unredacted pharmacy records of various individuals; that exhibit is sealed, without objection.

   The Transcript of the hearing was filed on April 12, 1999; the parties filed their Proposed Recommended Orders on May 10 and May 12, 1999. These have been considered in the preparation of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. Respondent Dr. Burton is and has been at all material times a licensed medical physician in the State of Florida, having been issued license number ME: 0042559. Dr. Burton is a general practitioner and has been a physician for 21 years. At all relevant times she was practicing in Melbourne, Brevard County, Florida.

   2. The Department of Health (agency) is the state agency now charged with regulating the practice of medicine in Florida.

      Patient J.M.

      
      

   3. In 1996 J.M. lived in Melbourne, Florida, in an apartment complex frequented by Dr. Burton. Dr. Burton's former husband and a friend, L.V., both lived at the complex and she visited, provided some medical care to them, and sometimes brought them groceries. J.M. knew Dr. Burton was a physician.

   4. On February 15, 1996, J.M. awakened feeling awful. At the urging of her boyfriend, J.T., and accompanied by J.T., J.M. visited Dr. Burton at her office.

   5. According to Dr. Burton's treatment sheet notes, J.M. presented with complaints of a sore throat and migraine headaches associated with nausea and vomiting. Dr. Burton performed a brief physical examination, but not a neurological examination. J.M.'s temperature and blood pressure are documented, but not her pulse, weight, or respiration. Dr. Burton recorded that J.M. had a history of migraine headaches for years and was sometimes sick in bed for days. Dr. Burton performed a streptococcus screen, which was negative.

   6. For a first visit there should have been a more complete history in the records of this patient. Moreover, any complaint of serious headache, and especially a migraine headache, should have prompted Dr. Burton to perform and record a neurological examination.

   7. Dr. Burton diagnosed J.M.'s immediate problem as an upper respiratory infection with pharyngitis. Dr. Burton

      prescribed Inderal to prevent migraine headaches and Bactrim D.S., an antibiotic. Dr. Burton also gave J.M. some samples of Imitrex, which relieves migraine headaches. These prescriptions were appropriate and were justified by the medical record of the February 15, 1996, visit.

   8. There were subsequent prescriptions, however, that were not justified by Dr. Burton's medical notes for her patient, J.M. On March 12, 1996, Dr. Burton prescribed 30 Percocet for J.M.'s headache. The office note merely recites the date and the complaint that the headache was not getting relief from the Imitrex which usually produced good results.

   9. The next office note is dated March 21, 1996, and states only that patient needs refill of medications for headaches. "Again 'sick' headaches in bed. Written RX Percocet(30)." (Petitioner's Exhibit No. 7)

   10. On April 19, 1996, Dr. Burton again prescribed a refill of 30 Percocet for J.M. The office note merely reflects this fact.

   11. On May 10, 1996, Dr. Burton noted that she gave J.M. samples of Imitrex, 25 milligrams, No. 9.

   12. On none of the occasions noted after the initial visit in February 1996 was any examination described. Dr. Burton explained at the hearing that these were occasions when she saw

       J.M. at the apartment complex, generally in the evenings.

   13. Imitrex is a non-narcotic medication that works on progestagen. It is effective in approximately 90 percent of cases. When J.M. complained that it did not work, Dr. Burton did not pursue that complaint further with a neurological examination and detailed history; instead she simply prescribed Percocet, an inappropriate narcotic. (Roxicet, reflected in the pharmacy records for J.M., is a generic substitute for Percocet.) Inexplicably on the final occasion noted in J.M.'s chart, Dr. Burton switched back to Imitrex. The records by Dr. Burton are thoroughly void of any explanation for her course of treatment of J.M.'s headaches.

       Patient D.W.

       
       

   14. According to Dr. Burton, D.W., born March 5, 1953, was a long-standing patient, having first seen Dr. Burton in 1990 when Dr. Burton was employed by a walk-in clinic. The records of those visits are not part of the record in this case. The walk- in clinic has closed.

   15. The documented chronology of Dr. Burton's treatment of

       
       

       D.W. commences with D.W.'s visit to Dr. Burton's new private practice office in October 1995.

   16. D.W. presented to Dr. Burton's office on October 17, 1995, with complaints of Crohn's Disease (an autoimmune disease that affects the intestinal tract and causes severe abdominal pain, inflammation, bleeding, and in some instances infection and perforation of the intestinal tract), headache, and weight loss.

       There is no documentation of physical examination or an objective finding other than D.W. was in no acute distress (NAD).

       Dr. Burton prescribed three vials of Stadol NS (nasal spray) with two refills and one hundred tablets of Fioricet.

   17. On November 1, 1995, Dr. Turse, a gastroenterologist, evaluated D.W. Dr. Turse reviewed prior records from a Dr. Klein, which dated back to April 1995, revealing an extensive work-up including a normal upper gastro-intestinal endoscopy, bisopsies that were negative, an unremarkable colonoscopy, a normal abdominal and pelvic ultrasound, and a negative sigmoidoscopy. Dr. Turse noted that Dr. Klein suspected that the patient's problem might be psychogenic. Dr. Turse performed two studies, an endoscopy study, and a gastric emptying study. In a report dated November 16, 1995, Dr. Turse indicated that the EGD with mucosal biopsy revealed minimal findings and that he wanted to rule out gastroparesis/gastric motility disorder. Dr. Turse followed up with a gastric emptying study, which was normal. These studies allowed Dr. Turse to rule out Crohn's disease and gastroparesis in this patient. In a letter dated December 4, 1995, Dr. Turse advised Dr. Burton that the EGD was unremarkable and the gastric emptying study was normal, and despite an extensive work-up, there was no explanation for patient D.W.'s chronic recurrent vomiting. This doctor then indicated that his main impression was gastric motility disorder.

   18. On November 6, 1995, D.W. presented to Dr. Burton complaining of headaches. The medical records do not reflect a physical examination or that any lab studies were performed. Dr. Burton's "diagnoses" were a headache, Crohn's Disease, and nausea and vomiting. She prescribed Stadol NS No. 20 (twenty), Lortab

       7.5 No. 100 (one hundred) and Fioricet No. 500 (five hundred).

       
       

   19. From December 5, 1995, through December 19, 1996, D.W. presented to Dr. Burton's office multiple times with various complaints of headache, diarrhea, nausea, and vomiting. Dr. Burton continued to diagnose gastroparesis and Crohn's disease without additional testing or consultation. At this time, it is clear that Dr. Burton had Dr. Turse's letter of December 4, 1995. While it was not inappropriate for her to continue with the diagnosis of Crohn's disease or gastroparesis, a general practitioner receiving a patient with Crohn's disease or gastroparesis would perform a physical examination with a minimum of a rectal exam. A stool test should also have been done to determine if the patient was experiencing blood, parasites, or infection in the intestines. These tests were not done.

   20. On December 27, 1995, D.W. presented to Dr. Burton with complaints of a headache. She was tearful, upset, and plucking her hair. Dr. Burton diagnosed Obsessive-Compulsive Disorder and prescribed one hundred tablets of Anafranil 5mg, and Buprenex.

   21. On March 8, 1996, D.W. presented to Dr. Burton with gastrointestinal complaints. She reported a history of two

       episodes of anorexia and Dr. Burton's diagnosis reflects "r/o (rule out) anorexia." On July 12, 1996, Dr. Burton prescribed Wellbutrin to D.W. She had already prescribed Prozac to D.W. on June 27, 1996.

   22. Documentation of numerous office visits from October 17, 1995, through December 19, 1996, for D.W. do not

       contain a complete history and physical examination, or physical findings and assessment. Several of the records, such as the July 12, 1996, record, contain no physical findings whatsoever; others contain merely a temperature reading.

   23. Dr. Burton continued to indicate Crohn's disease and gastroparesis as the working diagnoses. She continued to prescribe narcotics like Lortab in high doses for this patient and Donnatrol, Lomotil, and Bentyl, all of which will slow down the motility of the digestive tract. D.W. had a motility problem with her digestive tract. To prescribe medications that slow down the digestive tract further is contra-indicated and can make the patient subject to a perforation of the colon or a systemic infection called septicemia which can be life-threatening.

   24. Dr. Burton prescribed significant amounts of Lortab and Fioricet, which contain acetaminophen. Large doses of acetaminophen can be toxic to the liver. She did not perform any liver tests on D.W. Dr. Burton prescribed Xanax, a tranqulizer and Wellbutrin, an anti-depressant, to D.W. in a short period of time. It is not appropriate to prescribe a tranquilizer with an

       antidepressant in a depressed patient. Dr. Burton also prescribed Prozac and Wellbutrin in the same month. Wellbutrin and Prozac can lower the seizure threshold in people and the former can increase the effect of the latter. It is inappropriate to prescribe these drugs together so close in time.

   25. Dr. Burton failed to practice medicine within the acceptable level of care in that she failed to perform an adequate or complete history, physical examination, and assessment of D.W. related to multiple complaints. Dr. Burton failed to perform a rectal exam or a stool test; in addition, she failed to perform a liver test. She also fell below the acceptable standard of care by prescribing medications that slow down the digestive tract and are contra-indicated for a patient with either Crohn's disease or gastric motility disorder. She fell below the standard of care by prescribing Stadol, a narcotic antagonist, with the amount of narcotics prescribed for this patient.

   26. Dr. Burton failed to keep written records justifying the course of treatment in that she failed to document a detailed history, physical examination, assessment of physical findings, and plan of treatment for D.W. She consistently prescribed controlled substances for Patient D.W. without performing a complete physical assessment to determine need and she prescribed medications that had the potential to exacerbate some of D.W.'s previous known conditions.

       Patient C.W.

       
       

   27. C.W., born March 9, 1955, was D.W.'s husband and also a long-term patient of Dr. Burton. The records of his visit commence with his visit to Dr. Burton's office on October 26, 1995, with complaints of backache and headaches.

   28. Dr. Burton's records note a history of three back surgeries, one with insertion of Harrington rods (rods surgically placed along the spine to correct curvature) and recent epidural block. Dr. Burton's office records of C.W. do not contain reports of the surgeries, CTs, or Magnetic Resonance Imaging. There is no documentation of a physical examination or findings other than blood pressure. Dr. Burton diagnosed C.W. with headache, back pain, and depression and prescribed multiple medications including but not limited to: two hundred tablets of Lortab 7.5mg, one hundred tablets of Zoloft, one hundred tablets of Xanax 2mg, six units of Stadol NS, fifty tablets of Imitrex 50mg, ten units of injectable Imitrex, and 100 M.S. Contin 30mg, a narcotic.

   29. Prior to his visit with Respondent, C.W. was treated by a Dr. Weiss from December 3, 1992, through October 1995.

       Dr. Weiss' records, the majority of which were not obtained by Dr. Burton until shortly before the final hearing in this case, did substantiate the prior back surgeries and problems.

       Dr. Weiss also prescribed Lortab, a narcotic analgesic, for this patient. However, Dr. Weiss indicated in his reports that he

       either dropped the dosage on the Lortabs or he cancelled the prescriptions completely. As an example, in his report of August 31, 1993, it is noted that patient tried again for Lortab No. 60 but Dr. Weiss said it was too soon.

   30. Contained in Dr. Weiss' reports is a report from Dr. Hynes. Dr. Hynes treated C.W. on June 28, 1994, and

       commented that Patient C.W. was on Lortabs for three years and that the patient recognized that there probably was an addiction problem. This doctor strongly recommended an inpatient pain program.

   31. Dr. Burton did not have this record from Dr. Hynes or Dr. Weiss' records, other than a note giving C.W. a disability rating, when Dr. Burton treated him. A reasonably prudent physician would not prescribe the amount of narcotics that Dr. Burton has done in this case without documentation establishing the patient's history.

   32. During the period of about October 26, 1995, through December 9, 1996, C.W. presented to Dr. Burton on approximately sixteen occasions with complaints of back pain. Dr. Burton diagnosed chronic back pain and "failed back syndrome" and continued to prescribed Lortabs and other narcotics during this time period. There is no documentation of referral for orthopedic or neurological consultation, and inadequate documentation of physical assessment or clinical evaluation for

       treatment. There is no documentation concerning a referral to a pain management program.

   33. In her note of November 6, 1995, Dr. Burton indicated that C.W. took five tablets of MS Contin at once with no relief. Dr. Burton had indicated in her October 26, 1995, report, less than 2 weeks earlier, that she had warned the patient to take only one a day. Based on this history, C.W. was non-compliant with medication and Dr. Burton should have realized there may be a problem.

   34. On April 1, 1996, C.W. presented to Dr. Burton with complaints of weight loss and increased sleeping. Respondent prescribed several medications including Wellbutrin.

   35. From October 26, 1995, through December 9, 1996, C.W. received the following medications, among others, prescribed by Dr. Burton in the following approximate amounts:

       Lortab 7.5	1100	tablets
       Lortab 10	500	tablets
       Xanax 2mg	30	tablets
       Ritalin 20mg	10	tablets
       Imitrex 50mg	100	tablets
       Fioricet	900	tablets
       Duragesic 100mg	5	patches
       Methadone 10mg	40
       Despiramine 25mg	30
       Stadol NS	60	Vials

   36. Dr. Burton failed to practice medicine within the acceptable level of care in that she failed to perform an adequate or complete history, physical examination, and assessment of C.W. related to complaints of chronic back pain. Dr. Burton failed to practice medicine within the acceptable level of care when she failed to refer C.W. for neurological consultation and physical or pain management therapy of any kind. She failed to practice medicine within the acceptable standard of care for C.W. by consistently prescribing controlled substances in excessive quantities that are addictive without documenting the risks and by not attempting to decrease the dosage or detoxify the patient.

   37. Dr. Burton failed to maintain medical records documenting a detailed history, complete physical examinations, and assessments of physical findings of C.W. She failed to obtain records of prior surgeries or diagnostic evaluations to supplement C.W.'s record. Dr. Burton's medical records do not justify the course and scope of treatment of this patient.

       Weighing the Evidence

       
       

   38. The testimony of Drs. Rafool and Stein on behalf of the agency was competent and credible. Both reviewed all of the medical records provided by Dr. Burton to the agency and pharmacy records obtained independently by the agency. They also received some law enforcement records which have been excluded from this proceeding as hearsay. Both experts relied appropriately and

       substantially on Dr. Burton's medical records, or lack thereof, in rendering their opinions of her violations. Both experts explained their conclusions with specific examples and discussions of various office visits of the patients at issue.

   39. It is difficult to assess the credibility of Dr. Burton's expert witness, Dr. Centrone, a neurosurgeon. Like the other experts, he reviewed Dr. Burton's records, but he also reviewed detailed statements provided to him by Dr. Burton, which were prepared in the course of this proceeding and not contemporaneously with the office notes. Dr. Centrone, without detailing any basis, concluded that Dr. Burton properly treated the patients at issue.

   40. The testimony of J.M. regarding finding prescription bottles, in her name and provided by Dr. Burton, among the abandoned possessions of her former live-in boyfriend was unspecific and confusing and an inadequate basis for finding that Dr. Burton illegally provided drugs to the boyfriend, J.T., through prescriptions written to J.M. Likewise, J.M. never plainly contradicted Dr. Burton's explanation of her encounters with J.M. subsequent to the one office visit in February 1996.

       J.M. insists that she never returned to Dr. Burton's office, but Dr. Burton's notes do not state that she did return. Instead, as Dr. Burton explained, the notes reflect more casual encounters at the apartment complex and Dr. Burton's prescriptions for continued migraine complaints.

   41. Although the agency failed to prove alleged fraud by Dr. Burton, it did prove that Dr. Burton failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. For each patient at issue Dr. Burton consistently responded with prescriptions of controlled substances in inappropriate amounts or combinations. Her testimony that the patients had intractable pain, that she often provided free medical treatment to poor or uninsured patients, and that she had many patients, "nuts", that had been "dumped by every doctor in town," is not a valid defense.

   42. Moreover, the explanations in Dr. Burton's written statements offered at hearing and in her testimony regarding her treatment do not obviate the serious deficiencies in her medical records for J.M., D.W., and C.W. Those records provide a sketchy statement of complaint, diagnosis (often no more then "headaches," "back pain," or "failed back syndrome"), and a listing of medications prescribed (sometimes as many as 6 for a single visit). Rarely is there any evidence of an examination or any written justification for prescriptions.

   43. The agency's evidence, primarily Dr. Burton's own records, clearly establishes that she failed to keep written medical records justifying the course of treatment of the patients at issue.

   44. In a Final Order dated June 10, 1995, in DOAH Case No. 93-3096, Dr. Burton was disciplined by the Board of Medicine for failure to maintain appropriate medical records. In a consent order entered in Case No. 96-02493, Dr. Burton agreed to a fine and other conditions, after she was charged with violating the Board's order in the prior case.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction in this case pursuant to Sections 120.569, 120.57(1), and 455.225, Florida Statutes.

2. The Administrative Complaint at issue in this proceeding alleges that Dr. Burton committed the following violations of Section 458.331(1), Florida Statutes (1995):

458.331 Grounds for disciplinary action; action by the board and department.

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

* * *

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

* * *

(m) Failing to keep written records justifying the course of treatment of the patient, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations.

* * *

(q) Prescribing, dispensing, administering, mixing, or other wise preparing 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 , dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician's professional practice, without regard to his intent.

* * *

(t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of Section 766.102, when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in indemnities being paid in excess of $10,000 each to the claimant in a judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, "shall not be construed so as to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph.

1. In license discipline cases such as this the agency must prove the violations by Respondent with evidence that is clear and convincing. Department of Banking and Finance v. Osborne Stein and Company, 670 S. 2d 932 (Fla. 1996). See also Section 458.331 (3), Florida Statutes (1995).

2. As found above, the agency met its burden of proof as to violations of Sections 458.331(1)(m), (q), and (t), Florida Statutes, but not as to Section 458.331(1)(k), Florida Statutes.

3. The Board of Medicine has adopted Rule 64B8-8.001, Florida Administrative Code, establishing disciplinary guidelines to be applied when a licensee violates Chapter 458, Florida Statutes. The penalty recommended below is within the range of penalties prescribed by that rule and considers the aggravating circumstances of the Respondent's prior disciplinary record.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED: that the Board of Medicine enter its final order finding that Respondent violated Sections 458.331(1)(m),(q), and (t), Florida Statutes (1995), and imposing discipline of a 2-year suspension, $2,000 fine and 2-year probation under appropriate conditions to be established by the Board.

DONE AND ENTERED this 17th day of June, 1999, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1999.

COPIES FURNISHED:

John E. Terrell, Senior Attorney Office of the General Counsel Department of Health

Post Office Box 14229 Tallahassee, Florida 32317-4229

George Ollinger, Esquire

100 Rialto Place, Suite 700 Melbourne, Florida 32940

Tanya Williams, Executive Director Board of Medicine

Department of Health Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast, Bin A023 Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

Bin A02

2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701

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: 98-001211

Orders for Case No: 98-001211