STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) DENTISTRY, )
)
Petitioner, )
)
vs. )
)
JOHN DRIGGERS, D.M.D., )
)
Respondent. )
Case No. 06-1503PL
)
RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on September 28 and 29, 2006, in Orlando, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: H. Wayne Mitchell, Esquire
Jamie Ito, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: George F. Indest, III, Esquire
Michael L. Smith The Health Law Firm
220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701
STATEMENT OF THE ISSUES
Whether Respondent violated Subsection 466.028(1)(s), Florida Statutes (2000-2005), and, if so, what discipline should be imposed.
PRELIMINARY STATEMENT
On October 17, 2005, Petitioner, the Department of Health (Department), filed a two-count Administrative Complaint against Respondent, John Driggers, D.M.D (Dr. Driggers), alleging that he violated Subsection 466.028(1)(s), Florida Statutes (2000- 2005), and Subsection 456.072(1)(gg), Florida Statutes (2005).
Dr. Driggers requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings on April 20, 2006, for assignment of an Administrative Law Judge.
The final hearing was originally scheduled for July 13 and 14, 2006, but was rescheduled twice with the final hearing taking place on September 28 and 29, 2006.
On May 16, 2006, Petitioner filed a Motion to Take Official Recognition of Section 456.076 and Subsections 466.028(1)(s) and 466.0275(2), Florida Statutes (2005), and the motion was granted by order dated May 24, 2006.
At the final hearing, the Department withdrew Count II of the Administrative Complaint, which alleged a violation of Subsection 456.072(1)(gg), Florida Statutes (2005).
The Department called the following witnesses at the final hearing: Dr. Driggers and Martha Eugenia Brown, M.D. The Department submitted Petitioner's Exhibits 1 through 12, which were admitted in evidence.
Dr. Driggers testified and called the following witnesses at the final hearing: William Marchese, M.D., and Jeffrey A. Danziger, M.D. Respondent's Exhibits 1 through 13 were admitted in evidence. Respondent's Exhibits 14 through 19 were not admitted in evidence, but were proffered by Dr. Driggers.
Respondent's Exhibit 20 was admitted as a late-filed exhibit.
The three-volume Transcript was filed on January 29, 2007.
The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. On February 5, 2007, Dr. Driggers filed a motion to extend the time for filing proposed recommended orders. The motion was granted, and the parties timely filed their Proposed Recommended Orders, which have been considered in rendering this Recommended Order.
FINDINGS OF FACT
The Department is the state department charged with regulating the practice of dentistry pursuant to Section 20.43 and Chapters 456 and 466, Florida Statutes (2006).
Dr. Driggers is a licensed dentist in the State of Florida, having been issued license number 5473.
The Professional Resource Network (PRN) is the impaired practitioner program for the Board of Dentistry, pursuant to Section 456.076, Florida Statutes (2006). PRN monitors the evaluation, care, and treatment of impaired healthcare professionals.
Dr. Driggers has a long history of problems with alcohol. On January 15, 1987, he was arrested for driving under the influence (DUI). He was adjudicated guilty of that offense. In 1990, Dr. Ken Thompson did an intervention on Dr. Driggers based on Dr. Driggers' alcohol abuse. As a result, Dr. Driggers was admitted to Glenbeigh Hospital of Tampa for a three-day evaluation of alcoholism and chemical dependency. Dr. Driggers was diagnosed with alcohol abuse and benzodiazepine abuse.
Dr. Martin Zfaz, who evaluated Dr. Driggers, recommended that Dr. Driggers attend an outpatient treatment program with Dr. Ken Thompson five days a week, attend 90 Alcoholic Anonymous (AA) and Narcotics Anonymous (NA) meetings in 90 days, and obtain a sponsor.
On December 17, 1990, Dr. Driggers entered into an Impaired Practitioner Program of Florida Physicians Recovery Network Advocacy Contract. The contract required that he "abstain completely from the use of any medications, alcohol, and other mood altering substances." He agreed to attend a self-help group meeting such as AA or NA three times per week,
to participate in continuing care group therapy one time per week, and to attend a 12-step program of recovering professionals every other week. The contract was for five years, with renewal subject to review by PRN.
Dr. Driggers did complete an outpatient treatment program with Dr. Thompson by February 1991. He did attend some meetings of recovering professionals.
In January 1992, PRN referred Dr. Driggers to Anton M. Krone, M.D., for an evaluation of Dr. Driggers' status.
Dr. Driggers told Dr. Krone that he had not completely abstained from consuming alcohol, but that his consumption had not caused a problem. He was not attending AA meetings and did not have a sponsorship. Dr. Driggers did not consider himself to be an alcoholic and was opposed to attending AA meetings and abstaining completely from drinking. Dr. Krone opined that "it would be very difficult to engage [Dr. Driggers] in a recovery process at this time which is abstinence based." Dr. Krone suggested that "PRN follow him on an informal basis and watch to be sure that he is not getting into future trouble and to be ready to intervene with him promptly if such trouble begins to appear."
The contract between Dr. Driggers and PRN dated December 17, 1990, was voided as of February 1992.
On October 6, 2000, Dr. Driggers was again arrested for DUI. He drove his car into the back of a car stopped at a red light. He was given a breathalyzer test, which showed a blood alcohol level of .23, which is almost three times the limit for a presumption of DUI in Florida.1 Dr. Driggers did not feel like he was intoxicated and blamed the accident on his leaning over to prevent carry-out food from falling to the floor. He was adjudicated guilty of DUI in October 2001.
Dr. Driggers reactivated with PRN and agreed to an inpatient evaluation. On November 13, 2000, he went to Shands at Vista for the evaluation. Dr. Thompson evaluated Dr. Driggers and concluded that he was concerned about Dr. Driggers' ability to practice with reasonable skill and safety. He made the following recommendation for the treatment of Dr. Driggers: "Return for inpatient detoxification with further assessment. I do not believe that in view of his denial, stress, shame, and anxiety level that he would likely be very successful in detoxing himself on an outpatient basis even with supervision." Dr. Driggers remained at Shands at Vista until he was discharged on March 9, 2001, with a diagnosis of alcohol dependence, sedative dependence, and anxiety disorder.
On April 1, 2001, Dr. Driggers signed another five- year Impaired Practitioners Program of Florida Physician Recovery Network Advocacy Contract. As before, Dr. Driggers
agreed to abstain completely from the use of any medications, alcohol, and other mood altering substances. He agreed to attend self-help meetings such as AA or NA three to four times per week. He agreed to attend a PRN monitored professional support group. Dr. Driggers agreed to participate in a random urine drug or blood screen program within 12 hours of notification.
On June 23, 2004, Dr. Driggers tested positive for a metabolite of alcohol based on an ethyl glucuronide test, which detects metabolites of alcohol in urine. On July 12, 2004,
Dr. Driggers again tested positive for a metabolite of alcohol based on an ethyl glucuronide test. His July score was higher than his June score. Dr. Driggers admits that he had not completely abstained from the use of alcohol and that he occasionally had a glass of wine with his new wife.
Dr. Driggers rationalized his consumption of alcohol with the following comment: "I didn't think that the--that a glass of wine on a particular day would--would not only show in urine, but I didn't think that it was any major thing at the time. It was--it was something I did that I regret."
On August 16, 2004, Dr. Driggers was referred by PRN to Martha E. Brown, M.D., for an evaluation. Dr. Driggers admitted to Dr. Brown that he had not abstained completely from alcohol. He told her that he went to PRN group meetings for a
while, but quit going to the meetings. Dr. Brown concluded that she did "not feel Dr. Driggers can practice with reasonable skill and safety. He has been diagnosed with Alcohol Dependency in the past, yet has again resumed drinking. He appears to have much minimization of his alcohol use with rationalizations about it is okay that he has returned to drinking." Dr. Brown recommended that Dr. Driggers continue to participate in PRN, follow PRN recommendations, enter into a long-term residential treatment for chemical dependency, and abstain from all mood altering substances, including alcohol.
In September 2004, Dr. Driggers sought a second opinion from Chowallur Dev Chacko, M.D., who is board-certified by the American Board of Psychiatry in general psychiatry, addiction psychiatry, and forensic psychiatry. Based on
Dr. Driggers' long history of alcohol abuse and his continuing to drink while under a monitoring contract with PRN, Dr. Chacko opined that Dr. Driggers was not able to practice his profession with reasonable skill and safety and recommended that
Dr. Driggers receive long-term residential treatment for his alcoholism.
Dr. Driggers refused to follow the recommendations of either Dr. Brown or Dr. Chacko. On November 9, 2004, PRN sent notice to the Department advising that Dr. Driggers was not in compliance with his PRN monitoring contract.
On June 17, 2005, Dr. Driggers returned to Dr. Brown for a new evaluation. Dr. Brown was still of the opinion that Dr. Driggers had a substance dependency problem and needed treatment. During her evaluation of Dr. Driggers, he told her that he would not be in PRN and would not follow PRN's recommendations. He was in severe denial concerning his chemical dependency. Dr. Brown recommended that Dr. Driggers should participate in PRN and follow the recommendations of PRN; that Dr. Driggers should minimally enter a partial hospitalization program with a step-down to an intensive out- patient program for his chemical dependency; that he should abstain from all mood altering substances, including alcohol; that he should attend 90 meetings of a self-help program in
90 days; and that he should turn in a signed list for attendance at 12-step meetings for six months to document his recovery.
Dr. Driggers was evaluated by Jeffrey A. Danziger, M.D., on September 8, 2005, at the request of Dr. Driggers' attorney. Dr. Danziger opined that Dr. Driggers did not meet the criteria for alcohol dependence or active alcohol abuse at the time of the evaluation. Dr. Danziger diagnosed Dr. Driggers with posttraumatic stress disorder, in remission, and alcohol abuse, in sustained full remission. It was Dr. Danziger's "opinion that, from a psychiatric standpoint, Dr. Driggers did
not have any substance abuse or psychiatric problems that would impair his ability to safely function as a dentist."
Dr. Danziger explained that much of his evaluation was focused on whether Dr. Driggers posed an immediate danger that would justify an emergency suspension.
Dr. Brown reviewed Dr. Danziger's evaluation report on Dr. Driggers and her prior evaluations of Dr. Driggers. On January 30, 2006, she opined as follows:
I continue to believe that Dr. Driggers has a diagnosis of Alcohol Dependency as evidenced by having a BAL [blood alcohol level] of .2 at the time of one of his second DUI, indicating tolerance to the use of alcohol as "social" drinkers at a BAL of
.2 would not have been able to get in their car to drive; he has been unsuccessful in his efforts to control his substance use while in PRN (he had continued to drink while in PRN) and again, if he was a social drinker, should have been able to completely abstain from substance use in PRN without any difficulty; and he has continued to use alcohol despite knowledge of having a persistent and recurrent problem with alcohol. Certainly of note is the fact that he has had not one but 2 DUIs in his past.
He continues to have a great denial about the disease of chemical dependency and the need to abstain from all mood altering substances. This type of thinking poses an extreme risk to the public for him practicing without appropriate monitoring of his status by PRN. Alcohol Dependency is a permanent medical disease that does not go away once you develop it. A healthcare professional that has Alcohol Dependency must have long-term, appropriate treatment and monitoring to ensure they do well and
can practice. In the most recent records you sent, numerous individuals gave affidavits that they have never seen him impaired while practicing. However, I would point out that simply not drinking at work, or not looking impaired, does not translate into whether one can practice their profession with reasonable skill and safety.
Dr. Brown continued to recommend abstention from alcohol and mood altering substances, outpatient treatment, and participation in PRN monitoring. If those recommendations were followed, she felt that he could practice with reasonable safety and skill. However, Dr. Driggers has continued to refuse to participate in any PRN monitoring.
On September 27, 2006, Dr. Danziger again evaluated Dr. Driggers. He was still of the opinion that Dr. Driggers had a diagnosis of alcohol abuse rather than alcohol dependence. Once you have a diagnosis of alcohol abuse, you will always have alcohol abuse, but it can be in remission. He agrees with
Dr. Brown that Dr. Driggers is in need of outpatient treatment and monitoring.
Whether Dr. Driggers' drinking problem is labeled alcohol abuse or alcohol dependence, the consensus of the experts in addiction psychiatry who evaluated Dr. Driggers is that Dr. Driggers must have some type of treatment and must be monitored in order for him to be able to practice dentistry with reasonable skill and safety.
Dr. Driggers has been disciplined previously by the Board of Dentistry in 1989.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2006).
The Department has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996). The Department alleged in the Administrative Complaint that
Dr. Driggers violated Subsection 466.028(1)(s), Florida Statutes (2004), which provides that a dentist is subject to disciplinary action if the dentist is "unable to practice her or his profession 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."
The Department has established by clear and convincing evidence that Dr. Driggers is unable to practice dentistry with reasonable skill and safety by reason of his use of alcohol. Thus, he is in violation of Subsection 466.028(1)(s), Florida Statutes (2004).
Florida Administrative Code Rule 64B5-13.005 provides a range of penalties for violations of Chapter 466, Florida
Statutes:
Unless relevant mitigating factors are demonstrated the Board [of Dentistry] shall always impose a reprimand and an administrative fine of $10,000 per count or offense when disciplining a licensee for any of the discipline grounds listed in subsection (2) or (3) of this rule. The reprimand and administrative fine is in addition to the penalties specified in subsections (2) and (3) for each discipline ground.
* * *
(3)(w) Being unable to practice his profession with reasonable skill and safety to patients by reason of illness, or use of alcohol, drugs or narcotics, chemicals or any other type of materials or as a result of any mental or physical condition. The usual action of the Board shall be to impose a period of suspension until such time as the licensee demonstrates rehabilitation followed by a period of probation under such terms and conditions as set by the Board and/or restriction of practice.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Driggers has violated Subsection 466.028(1)(s), Florida Statutes (2004); giving Dr. Driggers a written reprimand; requiring Dr. Driggers to undergo a new evaluation by a PRN- approved evaluator; requiring Dr. Driggers to comply with PRN
recommendations; and suspending his license until he undergoes further evaluation and begins compliance with PRN recommendations.
DONE AND ENTERED this 17th day of April, 2007, in Tallahassee, Leon County, Florida.
S
SUSAN B. HARRELL
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 April, 2007.
ENDNOTE
1/ Subsection 316.193(1)(a), Florida Statutes (2000), provides that a person driving with a blood-alcohol level of .08 grams or greater per 100 milliliters of blood is guilty of the offense of driving under the influence.
COPIES FURNISHED:
H. Wayne Mitchell, Esquire Jamie Ito, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
George F. Indest, III, Esquire Michael L. Smith
The Health Law Firm
220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701
Susan Foster, Executive Director Board of Dentistry
Department of Health
4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-1701
R.S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Josefina M. Tamayo, 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 |
|---|---|---|
| Jul. 19, 2007 | Agency Final Order | |
| Apr. 17, 2007 | Recommended Order | Respondent was unable to practice with reasonable safety and skill due to alcohol use without treatment and monitoring by the Professional Resource Network, which he refused to do. |
