STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01-1188PL

) RALPH HENRY HARTKE, JR., M.D., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on June 13, 2001, by Barbara J. Staros, assigned Administrative Law Judge of the Division of Administrative Hearings, in Gainesville, Florida.

APPEARANCES

For Petitioner: Bruce Campbell, Esquire

Shirley Whitsitt, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: No appearance was made on behalf

of Respondent STATEMENT OF THE ISSUE

Whether Respondent violated Section 458.331(1)(s), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On December 1, 2000, the Department of Health (Department) issued an Order of Emergency Suspension of

License suspending Respondent, Ralph Henry Hartke, Jr.'s license to practice medicine.

On January 8, 2001, the Department filed an Administrative Complaint against Respondent which alleges that Respondent violated Section 458.331(1)(s), Florida Statutes, by being unable to practice medicine with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, chemicals or any other type of material, or as a result of any mental or physical condition. Respondent disputed the allegations in the Administrative Complaint and petitioned for a formal hearing involving disputed issues of material fact. The case was referred to the Division of Administrative Hearings on March 28, 2001. A Notice of Hearing was mailed by the Division to the parties on April 10, 2001, setting a formal hearing for June 13, 2001, in Gainesville, Florida.

At the time the hearing was scheduled to commence, the hearing was opened but no appearance was made on behalf of the Respondent. The hearing was recessed until one half hour after the scheduled commencement time, to give Respondent every opportunity to appear, but no appearance was made on his behalf.

At hearing, Petitioner presented the testimony of Michele Groeb, John J. Burton, Kenneth W. Thompson, and Raymond M.

Pomm. Official recognition was taken of Sections 20.43, 456.073, and 458.331, Florida Statutes; and Chapter 64B8-8, Florida Administrative Code. Petitioner's Exhibits 1 through

5 were admitted into evidence.

A Transcript, consisting of one volume, was filed on July 13, 2001. Petitioner filed a Proposed Recommended Order

on July 25, 2001, which has been considered in the preparation of this Recommended Order. Respondent did not file any post- hearing submission.

FINDINGS OF FACT

1. Respondent is, and has been at all times material hereto, a licensed medical physician in the State of Florida, having been issued license number ME 055502.

2. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes.

   Findings of Facts Derived From The Order of Emergency Suspension of License

   
   

3. The Physicians Recovery Network (hereinafter referred to as “PRN”) is the impaired practitioners program for the Board of Medicine, pursuant to Section 456.076, Florida Statutes. PRN is an independent program that monitors the evaluation, care, and treatment of impaired healthcare

   professionals. PRN oversees random drug screens and provides for the exchange of information between the treatment providers, PRN and the Department, for the protection of the public. Raymond M. Pomm, M.D., is the Medical Director of the PRN and is charged with responsibility for the oversight of the program and documentation of compliance and noncompliance with PRN monitoring contracts.

4. On or about January of 2000, the Director of Medical Staff Services at Alachua General Hospital, Gainesville, Florida, referred Dr. Hartke to PRN because the staff that worked with him at the hospital complained about Dr. Hartke's smelling of alcohol, walking unsteadily, and being a disruptive physician while working.

5. As a result of the staff’s complaint, an investigative committee was appointed by the hospital administrator. The committee concluded that Dr. Hartke had a “substance abuse/impairment problem” and the committee recommended that Dr. Hartke contact PRN.

6. On or about January 25, 2000, in response to the information received from Alachua General Hospital, PRN contacted Dr. Hartke and referred him for an evaluation regarding possible alcohol dependency.

7. On or about February 10, 2000, Dr. Hartke underwent evaluation by Anthony P. Albanese, M.D., Co-Medical Director,

   Addiction Treatment Center, at Mt. Sinai Medical Center, in Miami Beach, Florida.

8. Dr. Albanese’s evaluation of Dr. Hartke included a diagnosis of “alcohol related disorder, not otherwise specified, and adjustment disorder with mixed disturbance of emotion and conduct.” Dr. Albanese recommended that

   Dr. Hartke abstain from alcohol and establish a PRN contract.

   
   

9. On March 1, 2000, Dr. Hartke signed a modified PRN contract in which he agreed to: a) submit to random urine drug or blood screens; b) abstain from any use of drugs or alcohol; and c) attend a PRN monitored professional support group.

10. On or about April 27, 2000, PRN staff was notified by a local PRN group monitor that Dr. Hartke appeared to be intoxicated at the meeting the previous evening. PRN staff contacted Dr. Hartke, requested that he refrain from practice, and undergo re-evaluation.

11. On May 3, 2000, Dr. Hartke presented to Dr. Albanese again for evaluation. Dr. Albanese revised his original diagnosis to Alcohol Abuse. Dr. Albanese also suggested that Dr. Hartke obtain residential treatment.

12. From May 8, 2000 to May 26, 2000, Dr. Hartke underwent and completed residential treatment at Mt. Sinai Medical Center, in Miami Beach, Florida.

13. Following Dr. Hartke’s completion of residential treatment, he transitioned to outpatient treatment with Richey and Associates, in Gainesville, Florida.

14. On June 14, 2000, Dr. Hartke signed a PRN monitoring contract. The PRN contract provided that Dr. Hartke would:

    a) submit to random urine drug or blood screens; b) abstain from any use of drugs or alcohol; c) attend Alcoholics or Narcotics Anonymous meetings two times a week; d) participate in continuing care group therapy three times a week; e) attend a 12-step program for recovering professionals; f) agree to intensive outpatient treatment two times per week; g) notify PRN of the use of any drugs or alcohol; h) notify PRN of any changes in address; i) contact the PRN office by phone on a monthly basis; j) provide appropriate release forms for urine screen results, treatment center records, therapist reports, and other written and verbal information required to comply and in compliance with the above requirements; and k) to withdraw from practice for evaluation at the request of PRN if any problem develops.

15. Upon receiving several reports from hospital office staff that they believed that Dr. Hartke continued to drink alcohol, PRN increased the urine drug screen frequency, including back-to-back urine drug screens on September 7 and September 8. Both screens were negative.

16. On or about September 25, 2000, PRN received written notification from a physician colleague and office staff that Dr. Hartke had relapsed and that he had a “slip” in his abstention from alcohol. PRN notified Dr. Harke that he must withdraw from practice and undergo re-evaluation.

17. On or about September 27, 2000, Dr. Hartke presented to Kenneth Thompson, M.D., Gainesville, Florida, a board- approved provider. Dr. Thompson concluded that Dr. Hartke was in need of residential treatment again in order to ensure the safety of his patients. Dr. Hartke was notified of Dr. Thompson’s conclusion and recommendation. Dr. Hartke was given several choices of acceptable treatment facilities.

18. On October 5, 2000, Dr. Hartke attended a PRN group meeting and the physician leader smelled a strong odor of alcohol on Dr. Hartke.

19. Because Dr. Hartke failed to make a choice of approved programs for treatment, PRN notified him by telephone that he had until October 11, 2000, to enter a treatment program.

20. On or about October 17, 2000, Dr. Pomm, Executive Director of PRN, sent a certified letter to Dr. Hartke notifying him that PRN was referring his case to the Agency because of his failure to enter residential treatment with a

    board-approved provider pursuant to the recommendations of Dr. Thompson.

21. On or about October 17, 2000, Dr. Pomm, Executive Director of PRN, sent a letter to AHCA stating that due to the fact that Dr. Hartke suffers from Alcoholism, is in need of further treatment, and has failed to obtain treatment, it is his opinion that “Dr. Hartke is unsafe to practice his profession with reasonable skill and safety, and is a threat to the public health, safety and welfare.”

22. On or about October 24, 2000, based on the complaint received from PRN, the Agency opened a complaint file and conducted an investigation into the allegations concerning Dr. Hartke’s alleged impairment.

    Findings of Fact Based on The Evidence of The Record

    
    

23. The Department entered an Order of Emergency Suspension of License on December 11, 2000, suspending Respondent's license to practice medicine.

24. Respondent has not practiced medicine by actually seeing patients since October 4, 2000.

25. Since that time, Respondent was observed by colleagues and staff in an intoxicated condition on several occasions. Respondent was observed by office staff to have the odor of alcohol on his breath or person as recently as June 4, 2001.

26. Because of Respondent's failure to demonstrate sobriety or stability, it continues to be the opinion of

    Drs. Thompson and Pomm that Respondent is not safe to practice medicine with reasonable skill and safety.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter pursuant to Sections 120.57 and 456.073, Florida Statutes.

28. The Board of Medicine is empowered to revoke, suspend or otherwise discipline the license of a physician for violation of Section 458.331(1), Florida Statutes.

29. Section 458.331(1)(s), Florida Statutes, provides that the Board may impose discipline on a physician for being unable to practice medicine with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.

30. Petitioner’s burden in this case is to prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

31. Respondent suffers from alcoholism, is in need of further treatment, has failed to demonstrate that he has obtained the necessary treatment, and has failed to

    demonstrate his sobriety or stability. Thus, Petitioner in this case has demonstrated, by clear and convincing evidence, that Respondent violated Section 458.331(1)(s), Florida Statutes, in that he is unable to practice medicine with reasonable skill and safety to patients by reason of the use of alcohol.

32. By the terms of Rule 64B8-8.001, Florida Administrative Code, for a violation of Section 458.331(1)(s), Florida Statutes, the Board of Medicine is authorized to impose a penalty from probation to indefinite suspension until licensee is able to practice with reasonable skill and safety followed by probation and an administrative fine ranging from

    $1,000 to $5,000.

    
    

33. The Department is seeking a penalty of an indefinite suspension until Respondent is able to demonstrate his ability to practice with reasonable skill and safety followed by probation and an administrative fine of $5,000.00.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED, that the Department of Health, Board of Medicine issue a Final Order imposing a penalty of: an indefinite suspension until Respondent is able to demonstrate

ability to practice with reasonable skill and safety followed by probation.

DONE AND ENTERED this 17th day of August, 2001, in Tallahassee, Leon County, Florida.

BARBARA J. STAROS

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 August, 2001.

COPIES FURNISHED:

Bruce Campbell, Esquire Shirley Whitsitt, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Ralph Henry Hartke, Jr., M.D.

1505 Fort Clarke Boulevard, Suite 14-402

Gainesville, Florida 32606

Sam Power, Agency Clerk

Agency for Health Care Administration For Knox Building Three, Suite 3431 2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, General Counsel Agency for Health Care Administration For Knox Building Three, Suite 3431 2727 Mahan Drive

Tallahassee, Florida 32308

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: 01-001188PL

Orders for Case No: 01-001188PL