Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-28-2885 14:43 AHCA/LEGAL MEDICAL 85@ 414 1989 ~ STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, OS ce TIP? L ve CASE NO. 2004-10214 ALFRED E. AVERY, M.D., RESPONDENT. fd ADMINIST PLAINT COMES NOW, Petitioner, Department of Health, by and through Its undersigned counsel, and files this Administrative Complaint before the Board of Medicine against Respondent, Alfred —. Avery, M.D., and in support thereof alleges: 1. Petitioner is the state Department charged with regulating the practice of Medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. 2. Al all limes material to this Complaint, Respondent was a licensed physician within the state of Florida having been issued license number 48943. Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-28-2285 14:43 AHCA/LEGAL MEDICAL _ a52 414 1989 P.23 7" 1 \ - 4 3. .Respondent’s address of record is 2900 — 12” Avenue North, \ #340, Billings, Montana 59101. - 4. Respondent is board certified in psychiatry. 5. The Professionals Recovery Network (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. 6. The Medical Director of PRN is a Board-certified psychiatrist and addictionologist, and is charged with responsibility for the oversight of the program and documentation of compliance and noncompliance with PRN monitoring contracts. 7. In of about March of 2000, co-workers at Fisherman’s Hospital in Marathon, Florida reported to PRN that Respondent appeared confused and glassy-eyed, that he regularly disappeared from his department for 20+ 30 minutes at a time, and that on several instances Respondent's department could not account for some Demerol. Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-28-2085 14:44 ARCA/LEGAL MEDICAL _ 858 414 1989 P.a4 8. _Demerol, which contains meperidine hydrochloride, is a schedule II controlled substance pursuant to Chapter 893, Florida Statutes. A substance in schedule II has a high potential for abuse and has a currently accepted, but severely restricted medical use in treatment. Abuse of a ‘schedule II controlled substance may lead to severe psychological ar physical dependence. Demerol is used for the relief of moderate to severe pain. 9. Respondent agreed to submit to a PRN approved evaluation by a board-approved psychiatrist. 10. During the evaluation, Respondent admitted to self-injecting Demerol on two (2) occasions, and to occasional use of OxyContin. Respondent was diagnosed with substance abuse, During the evaluation, Respondent was asked to undergo a hair drug screen test but he refused. The evaluator recommended that Respondent enter into an intensive outpatient treatment program and a monitoring agreement with PRN. 11. On or about May 4, 2000, Respondent entered into a five-year monitoring contract with PRN in which he agreed to submit to periodic drug tests, regularly attend Alcoholics Anonymous meetings and obtain outpatient treatment. In November of 2000, Respondent completed the ' Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax a FEB-28-2085 14:44 AHCA/LEGAL MEDICAL A 858 414 1989 P.@5 a . outpatient treatment. 12. According to PRN, Respondent’s compliance with his PRN contract between May 2000 and January 2002 was marginal in that he regularly falled to return PRN tclephone calls and failed to attend several mandatory PRN group sessions. 13. Between August of 1999 and September of 2001, Respondent's privileges at Fisherman’s Hospital were suspended on several occasions due to Respondent’s repeated delay Jn preparing medical records, failure to document required patient visits, and failure to timely complete progress notes. Except for the September 2001 suspension that was permanent, each previous time that the hospital suspended Respondent's privileges, he was subsequently reinstated. 14. In January 2002, Respondent indicated ta his PRN group facilitator that he would be moving to Montana. Respondent did not Provide PRN with a forwarding address and did not coordinate with PRN to obtain replacement monitoring in Montana. Following this, PRN lost contact with Respondent. PRN’s several telephone calls and letters to Respondent during this timeframe went unanswered. 15. Unknown to PRN, in September of 2001, Respondent applled Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-28-2085 14:44 AHCA/LEGAL MEDICAL _ 65a 414 1989 P.Q6 vo for a medical license in Oklahoma. The Application for Licensure in Oklahoma asked Respondent, “Have you ever been denied, or had removed or suspended, hospital or staff privileges?” Respondent answered the question, “No.” On September 14, 2001, Respondent signed and submitted the above-described application for licensure in Oklahoma. 16. In December of 2001, Respondent was granted a temporary license to practice medicine in Oklahoma and on or about March 24, 2002, Respondent was granted a full license to practice medicine based on the information provided by Respondent in his application. 17. In January of 2002, Respondent began working for Hillcrest : Medical Center in Tulsa, Oklahoma, 18. In September of 2002, staff at the Hillcrest Medical Center raised concerns about Respondent's possible diversion of Demerol, Fentanyl, and Versed. The Center conducted an audit of patlent charts and hospital pharmacy records and found that cleven 50-mg. vials of Demerol had been checked out by Respondent but not documented as administered to a patient. The audit also revealed that twelve 100 mcg. Fentanyl ampoules had been checked out by Respondent’s nurse for administration by him, but were not documented as administered to a patient, and that in G6 Received Event (Event Succeeded) P.87 Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-28-2085 14:44 BACACLEGAL MEDICAL _. 858 414 1989 four Instances Respondent administered Versed without properly documenting that he disposed of or wasted unused amounts of the drug. 19. Fentanyt is listed as a schedule II controlled substance in Chapter 893, Florida Statutes. Fentanyl is a potent opioid analgesic and is used as a sedative during surgery or to treat moderate to severe pain. A substance In schedule II has a high potential for abuse and may lead to severe psychological or physical dependence similar to morphine. 20. Versed (midazolam) is a benzodiazepine and ts ilsted as a schedule IV controlled substance in Chapter 893, Florida Statutes. Versed is a short-acting central nervous system (CNS) depressant and is used intravenously or intramuscularly as a pre-operative sedative. 21. In Septernber of 2002, an employee at a clinic affiliated with Hillcrest Medical Center accused Respondent of diverting drugs. In response to the accusation, the administrator of the clinic asked Respondent to submit to a drug test, which Respondent refused. Thereupon, Hillcrest Medical Center revoked Respondent's _ staff membership and clinical privileges. 22. In February of 2003, the Oklahoma State Board of Medical Licensure and Supervision filed a Complaint against Respondent and 6 Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-28-2085 14:45 AHICA/LEGAL MEDICAL . 858 414 1989 P.69 charged him with unprofessional conduct in that he habitually used habit forming drugs in violation of state law, engaged in dishonorable or immoral conduct which was likely to deceive, defraud, or harm the public, was unable to practice with reasonable skill and safety to patients, purchased or prescribed a regulated substance for the physician‘s personal use, failed to ‘ . keep accurate records of purchase and disposal ot controlled drugs, engaged in fraud or misrepresentation in applying for and procuring a es medical license, and violated state and federal laws relating to controlled substances. 23. On or about November 20, 2003, the Oklahoma State Board of Medical Licensure and Supervision entered a Final Order of Revocation of . : . Respondent's license to practice medicine in Oklahoma. As of this date, Respondent has not reported the disciplinary action taken against his Oklahoma license by the Oklahoma Board of Medicine to the Florida Board of ves Medicine. COUNT ONE 24. Petitioner realleges and incorporates paragraphs one (1) through twenty-three (23) as if fully set forth herein. Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-26-2885 14:45 AHCA/’LEGAL MEDICAL _ 8548 414 1989 P.@9 a % 25. .Section 458.331(1)(b), Florida Statutes (2003), subjects a physician to discipline for having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including Its agencies or subdivisions. 26. Respondent is subject to discipline because in November of 2003, the Oklahoma Board of Medical Licensure and Supervision revoked Respondent's ficense to practice medicine in the state of Oklahoma. 27. Based on the foregoing, Respondent has violated Section 458.331(1)(b), Florida Statutes (2003), for having a license or the authority to practice medicine revoked, suspended, or otherwise acted against, Including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions. COUNT TWO 28. Petitioner realleges and incorporates paragraphs one (1) through twenty-three (23) as if fully set forth herein. 29. Section 458,331(1)(kk), Florida Statutes (2003), subjects a physician to discipline for failing to report to the Florida Board of Medicine, 9 Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Fax Type: oN FEB-28-2025 14:45 AHCAYLEGAL MEDICAL 858 414 1989 P.18 ~~ in writing,.within 30 days if action as defined in paragraph 458.331(1)(b) has been taken against one’s license to practice medicine in another state, territory, or country. 30. Respondent failed to report to the Florida Board of Medicine, in writing, within 30 days that in November of 2003, the Oklahoma Board of Medical Licensure and Supervision revoked Respondent's license to practice medicine in the state of Oklahoma. 31. Based on the foregoing, Respondent has violated Section 458.331(1)(kk), Florida Statutes (2003), for failing to report to the Florida Board of Medicine, in writing, within 30 days if action as defined in paragraph 458.331(1)(b) has been taken against one’s license to practice medicine in another state, territory, or country. COUNT THREE 32, Petitioner realleges and incorporates paragraphs one (1) through twenty-three (23) as If fully set forth herein. 33. Section 458.331(1)(s), Florida Statutes (2003), sets forth grounds for disciplinary action by the Board of Medicine for being unable to practice medicine with reasonable skill and safety to patients by reason of Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-28-2885 14:45 RHCA/LEGAL MEDICAL ~ 850 414 1989 P.it on illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. 34. Respondent is 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, in one or more of the following ways: a) by co-workers reporting to PRN that Respondent appeared confused and glassy-eyed, that he regularly disappeared fram his department for 20-30 minutes at a time, and that on several instances Respondent’s department could not account for some Demerol, b) by failing to or inadequately complying with the requirements set forth by the PRN contract, c) by admitting to self-injecting Demerol on two (2) occasions, and to occasianal use of OxyContin, d) by moving to Montana and nat providing PRN with a forwarding address, not coordinating with PRN to obtain replacement monitoring in Montana and not responding to PRN’s several telephone calls and letters, and/or e) by diverting Demerol, Fentanyl, and Versed from the Hillcrest Medical Center and refusing to submit to a drug test. 35, Based on the foregoing, Respondent has violated Section 458.331(1)(s), Florida Statutes (2003), by being unable to practice medicine 11 Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Fax FEB-28-2885 14:46 AHCA”LEGAL MEDICAL . 858 414 1989 P.i2 ~~ with reasonable skill and safety to patients by reason of illness or use of alcohal, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. ) COUNT FOUR 36. Petitioner realleges and incorporates paragraphs one (1) through twenty-three (23) as if fully set forth herein. 37. Section 458.331(1)(q), Florida Statutes (2003), provides that prescribing, dispensing, administering, mixing, or otherwise preparing a : a legend drug, including any controlled substance, other than in the course of the physician‘s professional practice constitutes grounds for disciplinary action by the Board of Medicine. For the purposes of paragraph 458.331(1)(q), It shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including all controlled substances, inappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and not in the course of the physician's professional practice, without regard to his or her intent. 38. Respondent prescribed, dispensed, administered, mixed, or otherwise prepared a legend drug, including any controlied substance, other than in the course of the physician’s professional practice in one or more of It Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-28-2085 14:46 AHCA’LEGAL MEDICAL A 858 414 1989 P.13 ’ the following ways: a) by admitting to self-injecting Demerol on two (2) i occasions, and to occasional use of OxyContin, and/or b) by diverting Demerol, Fentanyl, and Versed from the Hillcrest Medical Center and refusing to submit to a drug test. 39. Based on the forcgoing, Respondent violated Section 458.331(1)(q), Florida Statutes (2003), by prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any an ; controlled substance, other than in the course of the physician's . professional practice. COUNT FIVE 40. Petitioner realleges and incorporates paragraphs one (1) through twenty-three (23) as if fully set forth herein, 41. Section 458.331(1)(r), Florida Statutes (2003), subjects a physician to discipline for prescribing, dispensing, or administering any medicinal drug appearing on any schedule set forth in chapter 893 by the prescribing physician to himself. 42. Respondent prescribed, dispensed, or administered medicinal drug appearing on any schedule set forth in chapter 893 to himself in one or more of the following ways; a) by admitting to self-injecting Demerol on two 2 ae Received Event (Event Succeeded) Date: 2/28/2005 Time: 2:46 PM Pages: 20 Duration: 5 min 5 sec Sender: 850 414 1989 Company: Fax Number: Subject: Type: Fax FEB-28-2085 14:46 AHCA/LEGAL MEDICAL 8 85@ 414 1989 P.14 (2) occasions, and to occasional use of OxyContin, and/or b). by diverting Demerol, Fentanyl, and Versed from the Hillcrest Medical Center and refusing to submit to a drug test. 43, Based on the foregoing, Respondent violated Section 958.331(1)(r), Florida Statutes (2003), by prescribing, dispensing, or administering any medicinal drug appearing on any schedule set forth in chapter 893 by the prescribing physician to himself. WHEREFORE, the Petitioner respectfully requests that the Board of Medicine enter an order imposing one or more of the following penaltics: permanent revocation or suspension of Respondent's license, restriction of practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any other relief that the Board deems appropriate. - ow t, SIGNED this_—_ day of hay 2004, — Se ee enema John O. Agwunobi, M.D., M.B.A. Secretary, Department of Health Received Event (Event Succeeded) Date: Pages: Sender: Fax Number: Type: 2/28/2005 Time: 2:46 PM 20 Duration: 5 min 5 sec 850 414 1989 Company: Subject: Fax FEB-28-2895 14:46 wal) XE Irving Li Fi LED Assistant Ger 1eral Counsel DEPARTMENT OF HEALTH DOH-Prosecution Services Unit DEPUTY CLERK . Loot Cairn 4052 Bald Cypress Way-Bin C-65 CLER “o Tallahassee, Florida 32399-3265 care Se Florida Bar # 0822957 (850) 414-8126 (850) 414-1989 fax Reviewed and approved by:~a>_._(initials) dulos (date) PCP imay 21, 2004 PCP Members: sanri, miguel Dr, Avery, Case 2001-10214 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted In accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any other discipline Imposed. 4 RHCAZLEGAL MEDICAL g5@ 414 1989 7 P. 15

Docket for Case No: 05-000719PL