STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )
)
Petitioner, )
)
vs. )
)
DAVID IRA MINKOFF, M.D., )
)
Respondent. )
Case No. 00-0023
)
RECOMMENDED ORDER
On December 11, 2000, and March 1, 2001, a formal administrative hearing in this case was held in Largo, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Ephraim D. Livingston, Esquire
John E. Terrel, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
For Respondent: Bruce D. Lamb, Esquire
J. Travis Godwin, Esquire Ruden, McCloskey, Smith,
Schuster & Russell, P.A.
401 East Jackson Street, 27th Floor Tampa, Florida 33602
STATEMENT OF THE ISSUE
The issue in the case is whether the allegations set forth in the Administrative Complaint filed against the Respondent are correct and, if so, what penalty should be imposed.
PRELIMINARY STATEMENT
On December 16, 1999, the Department of Health, Board of Medicine (Petitioner), filed an Administrative Complaint against David Minkoff, M.D. (Respondent), alleging that he acted inappropriately in prescribing medication for an individual with whom he had no professional medical relationship. The Respondent filed a request for formal hearing. The request was forwarded to the Division of Administrative Hearings. At the request of the parties, the matter was scheduled for hearing on July 17 through 19, 2000. The hearing was continued and rescheduled for December 11 through 12, 2000, at the request of the parties who asserted that settlement was imminent. The hearing commenced on December 11, 2000, settlement efforts apparently concluding unsuccessfully.
At the December 11, 2000, hearing, the Petitioner indicated its intention to introduce deposition testimony of the Respondent into the record. The deposition was taken for use in a separate but related case. Different legal counsel represented the Respondent during the deposition than in this administrative case.
The Respondent objected to the introduction of the deposition on the grounds that the deposition was sealed under the terms of a Protective Order issued by a Circuit Court with jurisdiction over the separate case. The Petitioner stated that it was aware of the Protective Order that restricted the use of the deposition and had filed a motion in the Circuit Court a few days prior to the administrative hearing to have the Protective Order set aside for purposes of the administrative hearing. The Protective Order was apparently issued in the interests of protecting the religious freedom of certain individuals involved in the related case. As of December 11, 2000, no action on the motion had been taken. In order to permit the deposition issue to be resolved, the hearing was recessed after taking the testimony of witnesses present.
Subsequently, the Petitioner informed the Administrative Law Judge that the Circuit Court had resolved the issue and that the Petitioner was ready to proceed. The matter was resolved, at the direction of the Circuit Court, by redacting portions of the deposition that related to religious issues. The redactions were jointly made by counsel representing the Respondent in the separate case and by counsel for the Petitioner. The hearing was then scheduled to resume on March 1, 2001, at which time the deposition was admitted.
During the proceeding, the Petitioner presented the testimony of three witnesses and had Exhibits numbered 1-7 admitted into evidence. The Respondent had Exhibit numbered 1 admitted into evidence. Two documents were admitted as Administrative Law Judge’s exhibits.
A Transcript of the hearing was filed on March 22, 2001. Both parties filed Proposed Recommended Orders that have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Respondent is a licensed physician in Florida, holding license number ME0056777.
According to the Respondent's curriculum vitae, he graduated Magna Cum Laude in 1974 from the University of
Wisconsin Medical School and has apparently practiced since, primarily in pediatrics, infectious diseases, and emergency medicine.
At all times material to this case, the Respondent worked as an emergency room physician at the Columbia HCA Hospital in New Port Richey, Florida. A private company providing emergency room physicians to the hospital employed the Respondent.
Patient L. M. was a 36-year-old female living in Clearwater, Florida.
Patient L. M. was apparently involved with a religious organization and resided at a facility operated by the organization.
On or about November 20, 1995, the Respondent received a telephone call from a person or persons at the facility who reported that a resident was sleepless and in need of rest. The caller(s) requested that the Respondent prescribe medication for the patient.
Although the Respondent is unable to specifically recall the identity of the caller, he believes he spoke with "Janice Johnson," "David Haughton," or "Alain Kartuzinski," or a combination thereof.
The Respondent acknowledges that he was likely advised during the call that the resident was Patient L. M., but the identity of the patient does not appear to have been significant to him at the time, and he has no specific recollection of being told of her identity.
Based on the telephone call, the Respondent telephoned in a prescription for ten vials of liquid Valium, 5mg per vial, to an Eckerd's pharmacy he often used. The prescription was called in for issuance to a person identified as "David Haughton."
On or about November 29, 1995, the Respondent received another telephone call from a person or persons at the facility
who reported that the resident continued to be sleepless. The call suggested that the Valium had not been administered to the patient. The caller requested the Respondent prescribe something in a liquid form because the resident could not swallow a pill.
Although the Respondent is unable to specifically identify the caller, he again believes he spoke with "Janice Johnson," "David Haughton," or "Alain Kartuzinski," or a combination thereof.
Based on the telephone call, the Respondent called in a prescription to the same pharmacy as on November 20, this time for a medication identified as "Chloral Hydrate 500" to be issued in the name of Patient L. M. He believed the Chloral Hydrate was a liquid medication.
The Respondent did not know Patient L. M. and never met her.
The Respondent performed no physical examination of Patient L. M. and, other than what others told him, had no personal knowledge of her condition.
The Respondent obtained no medical history for Patient
L. M. from the patient or from anyone in a position to know the patient's medical history.
The Respondent performed no tests and made no independent diagnosis of any medical problems experienced by Patient L. M.
The Respondent failed to document any reason for providing medication to Patient L. M.
The Respondent failed to document any reason for providing the medication at issue in this case to any person involved in the situation including "David Haughton."
A reasonably prudent physician would not prescribe medication including Valium and Chloral Hydrate without establishing a proper patient-physician relationship, including a physical examination, obtaining a medical history, and ascertaining the appropriateness of the medication for the patient's condition.
As set forth herein, the Respondent's actions in this case were below the acceptable standard of care and constitute a failure to practice medicine with the level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
At about 7:30 p.m., on December 5, 1995, the Respondent, working as an emergency room physician at Columbia HCA Hospital in New Port Richey, Florida, received a telephone call from Janice Johnson about Patient L. M.
Ms. Johnson reported that Patient L. M. was ill and required medical attention. The Respondent advised Ms. Johnson to take Patient L. M. to the closest emergency room.
At about 9:30 p.m., Ms. Johnson delivered Patient L. M. to the New Port Richey Columbia HCA Hospital emergency room.
Upon arrival, Patient L. M. was in cardiac arrest and respiratory arrest, and her pupils were unresponsive.
Attempts to resuscitate the patient were unsuccessful, and she was declared dead approximately 15 minutes after her arrival.
By autopsy on December 6, 1995, the immediate cause of death was identified as thromboembolus of the left main pulmonary artery, due to thrombosis of the left popliteal vein, due to bed rest and severe dehydration.
For reasons unknown, an amended autopsy report dated February 16, 2000, identified the immediate cause of death as pulmonary thromboembolus due to thrombotic occlusion of left popliteal vein with traumatic hemorrhage of left popliteal area.
There was no evidence that any trace of the medications identified herein were present or detectable upon examination of the body of the deceased.
There was no evidence presented at the hearing that the medications prescribed by the Respondent were administered to Patient L. M.
There was no evidence that the medications prescribed by the Respondent were responsible for or contributed to the
death of Patient L. M.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Subsection 120.57(1), Florida Statutes.
The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case,
the burden has been met as to inappropriate prescribing of medication.
The evidence establishes that the Respondent failed to practice medicine with the level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Section 458.331, Florida Statutes, sets forth the grounds for disciplinary action by the Board of Medicine against a licensed physician.
Subsection 458.331(1)(q), Florida Statutes, prohibits "[p]rescribing, dispensing, administering, mixing, or otherwise
preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice."
Pursuant to Subsection 893.03(4), Florida Statutes, Valium (identified as Diazepam) and Chloral Hydrate are "Schedule IV Controlled Substances."
The evidence establishes that on November 20, 1995, the Respondent prescribed Valium to "David Haughton" with whom the Respondent had no professional medical relationship.
The evidence establishes that on November 29, 1995, the Respondent prescribed Chloral Hydrate to Patient L. M. with whom the Respondent had no professional medical relationship.
Subsection 458.331(1)(k), Florida Statutes, prohibits "[m]aking deceptive, untrue, or fraudulent representations in or related to the practice of medicine "
The evidence establishes that on November 20, 1995, the Respondent called in a prescription for Valium and identified the patient as "David Haughton" although the Respondent was aware that the medication was intended for administration to Patient L. M.
Subsection 458.331(1)(m), Florida Statutes, requires that medical records identifying the licensed physician responsible and which "justify 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" be maintained.
The evidence establishes that the Respondent kept no records justifying any course of treatment related to the prescriptions at issue in this proceeding.
Subsection 458.331(1)(t), Florida Statutes, provides that discipline is warranted for "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 prescribing of medication as set forth herein constitutes a violation of Subsection 458.331(1)(t), Florida Statutes.
At the hearing, the Petitioner presented testimony about an automobile accident involving Patient L. M. on November 18, 1995. Although the patient was not injured in the accident, based on her bizarre behavior at the scene of the accident she was taken by paramedics to Morton Plant Hospital for psychiatric evaluation. After her arrival at the hospital, she apparently left with persons allegedly affiliated with the religious organization with whom she lived.
There is no evidence that the Respondent was involved in the accident, in the post-accident treatment or evaluation of
her condition at Morton Plant Hospital, or in her departure from the hospital. Although the Respondent acknowledges that he was likely informed of the patient's identity during the initial November 20, 1995, request for medication, it appears not to have been a significant factor in his decision to call the prescription into the pharmacy.
Presumably the evidence related to the automobile accident was intended to suggest that the Respondent should not have prescribed medication for this particular patient given her behavior at the accident site. Although the circumstances might have been unusual, the disciplinary statute indicates that no medication should be prescribed to any person with whom the prescribing physician has no professional medical relationship.
It should be noted that the Respondent raised objections to copies of prescriptions introduced by the Petitioner during case presentation based on lack of authentication. The witness who testified to the documents (the Eckerd's store manager) was not the records custodian and had no independent information related to the prescriptions. The findings of fact set forth herein and related to two prescriptions at issue are based, not on the documents or the testimony of the store manager, but on the subsequently admitted deposition testimony of the Respondent.
As to the deposition, after the submission of the Proposed Recommended Orders, the Respondent filed a Notice of Additional Authority again asserting that the Respondent's Fifth Amendment right against self-incrimination had been violated by the admission of the deposition testimony. The issue had been raised previously in the Respondent's Motion in Limine and had been denied prior to the hearing.
The Respondent asserts that the waiver of the Fifth Amendment right against self-incrimination must be "voluntary and a knowing intelligent act done with sufficient awareness of relevant circumstances and likely consequences" and apparently suggests that his decision to sit for deposition was not a "voluntary and knowing intelligent act."
According to the deposition, the Respondent was represented by legal counsel during the deposition, though not the same counsel representing him in this case. The attorney representing the Respondent in the separate case participated in preparation of the redacted transcript that was admitted into the record of this case.
Given the involvement of counsel at all stages of this legal proceeding and the fact that the Respondent, a physician for more than 25 years, asserts that his actions in this case were outside his normal prescription practice, it is simply inconceivable that the Respondent's decision to sit for the
deposition was as ill-informed and as unknowing as the Respondent now suggests. The Respondent's deposition testimony was admitted and forms the basis for the Findings of Fact set forth herein.
Subsection 458.331(2) Florida Statutes, provides as
follows:
When the board finds any person guilty of any of the grounds set forth in subsection (1), including conduct that would constitute a substantial violation of subsection (1) which occurred prior to licensure, it may enter an order imposing one or more of the following penalties:
Refusal to certify, or certification with restrictions, to the department an application for licensure, certification, or registration.
Revocation or suspension of a license.
Restriction of practice.
Imposition of an administrative fine not to exceed $10,000 for each count or separate offense.
Issuance of a reprimand.
Placement of the physician on probation for a period of time and subject to such conditions as the board may specify, including, but not limited to, requiring the physician to submit to treatment, to attend continuing education courses, to submit to reexamination, or to work under the supervision of another physician.
Issuance of a letter of concern.
Corrective action.
Refund of fees billed to and collected from the patient.
(j) Imposition of an administrative fine in accordance with s. 381.0261 for violations regarding patient rights.
In determining what action is appropriate, the board must first consider what sanctions are necessary to protect the public or to compensate the patient. Only after those sanctions have been imposed may the disciplining authority consider and include in the order requirements designed to rehabilitate the physician. All costs associated with compliance with orders issued under this subsection are the obligation of the physician.
Rule 61F6-20.001, Florida Administrative Code, was in effect at the time of the violations established herein, and provides guidelines for the determination of appropriate discipline imposed upon a violation of the statute. (Current guidelines are set forth at Rule 64B-8.8001, Florida Administrative Code.)
As set forth at Rule 61F6-20.001, Florida Administrative Code, the purpose for the imposition of discipline is "to punish the applicants or licensees for violations and to deter them from future violations; to offer opportunities for rehabilitation, when appropriate; and to deter other applicants or licensees from violations."
For a violation of Subsection 458.331(1)(q), Florida Statutes, the rule provides a penalty range of one-year
probation to revocation of licensure, and an administrative fine of $250 to $5,000.
For a violation of Subsection 458.331(1)(k), Florida Statutes, the rule provides a penalty range of probation to revocation of licensure, and an administrative fine of $250 to
$5,000.
For a violation of Subsection 458.331(1)(m), Florida Statutes, the rule provides a penalty range of reprimand to two years suspension followed by probation and an administrative fine of $250 to $5,000.
For a violation of Subsection 458.331(1)(t), Florida Statutes, the rule provides a penalty range of two years' probation to revocation of licensure and an administrative fine of $250 to $5,000.
Rule 61F6-20.001(3), Florida Administrative Code, provides for application of aggravating and mitigating circumstances that permit the Board of Medicine to deviate from the potential penalties set forth in the rule. In this case, there is no evidence that the Respondent has been involved in any prior disciplinary proceedings. While the patient outcome in this case was tragic, there is no evidence that the medications prescribed by the Respondent affected the outcome. On the other hand, the risk of exposure to the public from the practice of prescribing medication without personal knowledge of
the patient is great. Further, had the Respondent performed a medical evaluation to determine the cause of the alleged "sleeplessness," it is possible that the patient outcome could have been different. Given the great range of penalties possible under the guidelines, no deviation from the rule
guidelines is required.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Medicine, enter a final order suspending the Respondent's licensure for a period of one year to be followed by a two-year probationary period and imposing an administrative fine
of $10,000.
DONE AND ENTERED this 29th day of May, 2001, in Tallahassee, Leon County, Florida.
WILLIAM F. QUATTLEBAUM
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 29th day of May, 2001.
COPIES FURNISHED:
Bruce D. Lamb, Esquire
J. Travis Godwin, Esquire Ruden, McClosky, Smith,
Schuster & Russell, P.A.
401 East Jackson Street, 27th Floor Tampa, Florida 33602
Ephraim D. Livingston, Esquire John E. Terrel, Esquire
Agency for Health Care Administration Post Office Box 14229
Tallahassee, Florida 32317-4229
Tanya Williams, Executive Director Board of Medicine
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-1701
Theodore M. Henderson, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
William W. Large, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 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.
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 29, 2001 | Agency Final Order | |
| May 29, 2001 | Recommended Order | Providing prescription medication to non-patient warrants discipline. |
