STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF ) MEDICINE, )
)
Petitioner, )
)
vs. ) Case No. 06-2014PL
)
MATTHEW WISE, M.D., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on September 14, 2006, by video teleconference between West Palm Beach and Tallahassee, Florida.
APPEARANCES
For Petitioner: Jennifer Forshey
Assistant General Counsel Office of General Counsel Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Joseph Harrison, Esquire
Law Offices of Joseph Harrison, P.A. Post Office Box 810637
Boca Raton, Florida 33481-0637
STATEMENT OF THE ISSUES
The first issue in this case for determination is whether Petitioner has jurisdiction over the actions of Respondent, Matthew J. Wise, M.D., alleged in an Administrative Complaint filed with Petitioner on March 14, 2006, in DOH Case No. 2004- 06604, and amended by Order entered July 14, 2006.
If the first issue is decided favorably to Petitioner, the second issue for determination is whether Respondent committed the violations of Chapter 458, Florida Statutes, alleged in the Amended Administrative Complaint; and, if so, what disciplinary action should be taken against his license to practice medicine in Florida.
PRELIMINARY STATEMENT
On or about March 13, 2006, the Department of Health filed an Administrative Complaint against Respondent Matthew J. Wise, M.D., an individual licensed to practice medicine in Florida, before the Board of Medicine, in which it alleged that Dr. Wise had committed violations of Subsections 458.331(1)(t) and (nn), Florida Statutes (2004)(All references to Florida Statues and the Florida Administrative Code are to the 2004 versions, unless otherwise indicated). Respondent, through counsel, disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing pursuant to Sections 120.569(2)(a) and 120.57(1), Florida Statutes (2006).
On June 9, 2006, the matter was filed with the Division of Administrative Hearings with a request that an administrative law judge be assigned to conduct proceedings pursuant to Section 120.57(1), Florida Statutes (2006). The matter was designated DOAH Case Number 06-2014PL and was assigned to the undersigned.
The final hearing was scheduled to be held on August 16, 2006, by Notice of Hearing entered June 19, 2006. The hearing was subsequently continued to September 14, 2006, at the request of the Respondent.
On July 6, 2006, Petitioner's Motion to Amend Administrative Complaint was filed. That Motion, opposed by Respondent, was granted by Order entered July 14, 2006.
On September 8, 2006, Petitioner filed a Proposed Pre- hearing Statement. Petitioner's Amended Proposed Pre-Hearing Statement was filed on September 11, 2006. The day of the hearing, September 14, 2006, at 8:28 a.m., Respondent fax-filed Respondent's Supplement to the Amended Pre-Hearing Stipulation Filed by Petitioner. Respondent stated, in part, the following in the Supplement:
It is in fact not clear why the Joint statement was Not [sic] filed as such, but in any event, the Respondent adds the Following [sic]:
. . . .
2. Respondent would state that there IS a pending MOTION. The JURISDICTION issue, and
Respondent's Motion to Dismiss based on lack of jurisdiction is in fact Still [sic] pending today's evidentiary portion of a Hearing, As [sic] Ordered by the Court.
Respondent strongly contends There [sic] is no basis for the Petitioner to have jurisdiction. As such, Respondent OBJECTS to ALL of Petitioner's Witnesses and ALL of the exhibits for that specific reason.
. . . .
4. Finally, Respondent adds that an Issue of Law to be Litigated [sic] is whether Respondent's conduct falls explicitly Within [sic] the "emergency" exception to the Rule of the Board That [sic] Petitioner claims was allegedly violated.
The first issue quoted above raised by Respondent relates to three separate motions which Respondent had previously filed seeking the summary disposition of this matter on the grounds that Petitioner lacked jurisdiction over the conduct alleged in the Amended Administrative Complaint. Those motions had all been denied, two by Order and one, due to the proximity of the final hearing, ore tenus, during a motion hearing conducted by telephone. At the commencement of the final hearing, having not received Respondent's Supplement, Respondent explained the contents of the Supplement, including the issue of jurisdiction. After hearing argument of the parties, the parties were informed that the issue of Petitioner's jurisdiction or lack thereof was an issue that had properly been raised by Respondent, whether by "outstanding motion" or as an affirmative defense.
Consequently, that issue has been dealt with in the Findings of Fact and Conclusions of Law of the Recommended Order.
As to the additional "Issue of Law" that Respondent cited in his Supplement, after hearing further explanation from Respondent it was determined that Respondent was for the first time in this proceeding raising an issue as to whether his conduct came under an exemption from the laws he allegedly had violated. The issue is one for which Respondent, and not Petitioner, has the burden of proof. Petitioner initially objected because it had not been put on notice of Respondent's reliance upon the exemption until the commencement of the hearing and, therefore, was not prepared to address the issue with its own proof. A ruling on the issue was reserved until Respondent presented his proof on the question so that it could be determined whether Petitioner was truly prejudiced by Respondent's questionable trial tactic. Ultimately, however, Petitioner withdrew its objection after having an opportunity to review the exemption and to hear Respondent's evidence.
After resolving preliminary matters at the final hearing, Petitioner presented the testimony of James L. Jones, M.D., Ph.D., who was accepted as an expert in obstetrics and gynecology. Petitioner offered and had admitted Petitioner's Exhibits A-1, C, D, and G. Rather than accepting Petitioner's Exhibits E and F, which consisted of certified copies of Section
458.331, Florida Statutes (2003 and 2004), and Florida Administrative Code Rule 64B8-9.014, as evidence, official recognition was taken of those laws.
Respondent, who was accepted as an expert in obstetrics and gynecology, testified on his own behalf. Respondent offered no exhibits. Without objection, the record was left open for Respondent to file either the deposition testimony of, or an affidavit by, David Grimes, M.D.
On October 11, 2006, Respondent filed a Joint Status Report on Post-Hearing Matters in which Respondent represented that the parties had agreed to file an affidavit from Dr. Grimes.
The two-volume Transcript of the final hearing was filed on October 6, 2006. Dr. Grimes' Affidavit was filed on October 13, 2006. By Notice of Filing Transcript entered October 16, 2006, the parties were informed that the Transcript and Affidavit had been filed and that their proposed recommended orders were to be filed on or by October 27, 2006. The date for filing proposed recommended orders was extended to October 30, 2006, at the unopposed request of Respondent.
Both parties filed proposed recommended orders on
October 30, 2006. The proposed orders of both parties have been fully considered in rendering this Recommended Order.
FINDINGS OF FACT
The Parties.
Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat.
Respondent, Matthew J. Wise, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 84654. Dr. Wise has been licensed in Florida since 2002.
Dr. Wise's mailing address of record at all times relevant to this matter is 616 Manor Place, West Melbourne, Florida 32940.
Since November 2005, Dr. Wise has been board certified by the American Board of Medical Specialties in obstetrics and gynecology (hereinafter referred to as "OB/GYN").
No evidence that Dr. Wise has previously been the subject of a license disciplinary proceeding was offered.
Location of Dr. Wise's Medical Training and Practice.
Dr. Wise, who has never resided in Florida, began medical school at the University of Virginia, located in
Charlottesville, Virginia, in 1994. He graduated in 1998 with a degree in medicine.
Dr. Wise next moved to Chapel Hill, North Carolina, where he attended residence in OB/GYN at the University of North Carolina.
Dr. Wise completed his residency in 2002.
In 2003, following his successful completion of the OB/GYN residency program in North Carolina, Dr. Wise moved to Gallup, New Mexico. Dr. Wise accepted employment with the United States Department of Health and Human Services. In particular, Dr. Wise accepted employment at an American Indian health service hospital.
Dr. Wise, after moving to New Mexico, began working in the OB/GYN department at Gallup Indian Medical Center, seeing Navajo and Zuni female patients.
At no time has Dr. Wise physically practiced medicine with the State of Florida.
Getthepill.com.
Getthepill.com is a Florida corporation created by or on behalf of Dr. Wise. Dr. Wise is president of the corporation.
Getthepill.com's main office is located at 6355 South Highway A1A, Suite 3, Melbourne, Florida 32951 (hereinafter referred to as the "Melbourne Office Address"). Some of
Dr. Wise's family and friends, who reside in Melbourne, assist in operating the company from that location.
Between February 2004 and October 2004 Dr. Wise provided medical services, and thus practiced medicine, through Getthepill.com.
Dr. Wise, through Getthepill.com's internet web-site address, "www.getthepill.com" (hereinafter referred to as the "Internet Address"), provided prescriptions for contraceptives to individuals who complied with instructions provided at the Internet Address.
In particular, individuals interested in obtaining a prescription for contraceptives were required to complete an on- line medical questionnaire (hereinafter referred to as the "Internet-Line Medical Questionnaire") that was then submitted to Getthepill.com and ultimately to Dr. Wise for his review and approval.
The Internet Medical Questionnaire utilized by Geetthepill.com at the times relevant asked prospective patients to answer the following questions:
Are you 18 years or older?
Are you 35 years or older AND a smoker?
Do you have or have you ever had high blood pressure?
Blood pressure taken within the last month (systolic/diastolic)
Are you experiencing abnormal vaginal bleeding that has not been evaluated by a physician?
Do you know or suspect that you are pregnant?
Do you know or suspect that you have breast cancer?
Do you have or have you ever had liver tumors or liver disease?
Have you, your parents or your siblings ever had blood clots in the deep veins of the legs?
Have you, your parents, or your siblings ever had a pulmonary embolism (a detached blood clot that formed in the deep veins of the legs and traveled to the lung)?
Have you ever had a heart attack?
Have you ever had a stroke (a sudden neurological affliction caused by impaired blood supply to the brain)?
Do you have valvular heart disease complicated by pulmonary hypertension, atrial fibrillation, or history of subacute bacterial endocarditis?
Do you have diabetes with associated kidney, eye, or nerve disease?
Do you suffer from migraine headaches?
Will you be undergoing a major surgery followed by a prolonged period of immobilization within the next week?
Are you on any of the following medications: rifampin (Rimactane or Rifadin), Phenobarbital (Luminal or Solfoton), phenytoin (Dilantin), primidone (Mysoline), carbamazepine (Tegreto), ethosuximide (Zarontin), griseofulvin (Fulvicin or Grifulvin), or troglitazone (Rezulin)?
I understand that the use of birth control pills may cause side effect and adverse reaction, including but not limited to nausea, abdominal pain, fatigue, headache, heavier or lighter menstrual bleeding, dizziness, and breast tenderness.
I understand that no doctor, physician or other healthcare professional can guarantee that birth control pills can completely prevent pregnancy. I understand that I may use birth control pills properly and still become pregnant.
The information solicited on the Internet Medical Questionnaire was information designed to assist in determining whether an individual was qualified to take the requested contraceptive, including whether the individual lacked any contraindications to taking the drug sought.
No prescription was issued without the submission of an Internet Medical Questionnaire or if the information provided, in Dr. Wise's opinion, disqualified the individual as an appropriate candidate for the requested prescription.
Dr. Wise was provided completed Internet Medical Questionnaires, which he reviewed and, if the information provided appeared acceptable, he would approve the requested prescription.
If a request was approved by Dr. Wise, either he or someone at his direction called the prescription into a pharmacy identified by the individual patient.
Patient L.R.
On or about February 6, May 24, and October 21, 2004 (hereinafter referred to as the "Solicitation Dates"), an individual who identified herself or himself as "L.R." sought a prescription from Getthepill.com by going to the Internet Address.
Although L.R.'s names suggest that the individual is a female, and the parties discussed L.R. throughout the proceeding as being female, there was no competent substantial evidence presented which proved L.R.'s sex. Other than hearsay documents submitted by L.R. to Getthepill.com, there was no identification of who the individual was that sent the various e-mails at issue in this case. It cannot, therefore, even be found that L.R. is the individual's correct name.
L.R. completed a separate Internet Medical Questionnaire provided at Getthepill.com's Internet Address and submitted them by internet transmission on the Solicitation Dates. The Questionnaires completed by L.R. were identical to the one quoted in Finding of Fact 17.
On the Internet Medical Questionnaire submitted by
L.R. on or about February 6, 2004, L.R. answered question 1, "Are you 18 years or older?" with a "Yes"; in response to question 4, L.R. gave what apparently was intended to be a blood pressure reading of "115/78"; L.R. indicated in response to questions 18 and 19, "I Understand"; and L.R. answered the remaining questions "No."
Upon receipt of the Internet Medical Questionnaire at 12:16 p.m., February 6, 2004, L.R. was sent an e-mail indicating that the questionnaire had been received and was awaiting
physician approval. The evidence failed to prove where the e- mail was sent from or by whom.
In response to an e-mail inquiry from L.R., an e-mail was sent to L.R. at 1:12 p.m. indicating that the credit card statement for the prescription would read "getthepill.com."
L.R.'s February 6, 2004, Internet Medical Questionnaire was reviewed by Dr. Wise in New Mexico and, based solely upon the information in the Internet Medical Questionnaire provided by L.R., whom he had not seen or spoken to, electronically authorized the issuance of a prescription for
L.R. to receive Trivora-28.
Trivora-28 is a legend drug indicated as a monthly oral contraceptive for the prevention of pregnancy.
At 4:01 p.m., on February 6, 2004, L.R. was informed by e-mail that the prescription had been approved. L.R., who had previously provided the name and phone number of the pharmacy where the prescription was to be filled, was also informed that the phone number provided for the pharmacy was incorrect. L.R. provided a new telephone number with an Ohio area code for a CVS pharmacy.
At 4:10 p.m., an e-mail was sent to L.R. indicating, in part, the following:
Dr. Matthew Wise has reviewed your submitted medical information and blood pressure measurement and determined that you are an
appropriate candidate for birth control pills. Your prescription for Trivora-28 was called in to the voice mail at CVS Pharmacy at (937) . . . at 4:10 PM CST on 02.06.2004.
. . .
Dr. Wise's telemedicine office is located in Melbourne, Florida. His office telephone number is (321) 724-5714. If you would like to ask a medical question of Dr. Wise or you have a comment for him, please feel free to contact him by e-mail at doctor@getthepill.com or by telephone at the office number above. (Emphasis added).
The e-mail went on to give instructions concerning the proper use of the contraceptive being prescribed, including the following warning:
Although getthepill.com is committed to providing safe, easy access to contraceptives for healthy young women with no risk factors, we cannot overemphasize the importance of a yearly gynecologic examination, which includes a breast examination, a Pap smear, and tests for sexually transmitted infections (STIs).
Please schedule an appointment with a local gynecologist.
The area code of the telephone number for Dr. Wise given to L.R. quoted above is a Florida area code, specifically covering Melbourne, Florida. It is the only phone number for Dr. Wise provided to L.R. The reference to the Melbourne Office Address is the only indication of the location of Dr. Wise given to L.R. Dr. Wise thus held himself out to L.R. as a Florida physician.
Someone from Getthepill.com, on behalf of Dr. Wise, telephoned the prescription Dr. Wise had approved for L.R. to a CVS pharmacy located in Ohio. Dr. Wise's Florida medical license number was not used.
A "Telemedicine Electronic Medical Record" (hereinafter referred to as the "Medical Record") consisting of typed "medical notes," the completed Internet Medical Questionnaire submitted by L.R., and the e-mail correspondence between L.R. and, on behalf of Dr. Wise, Getthepill.com was maintained for the February 6, 2004, prescription.
Dr. Wise's address listed on the Medical Record for
L.R. is the Internet Address. The phone number is the same Melbourne phone number provided to L.R.
Among other things, the Medical Record lists what purports to be L.R.'s name, address, age, phone number, e-mail address, sex, and a summary of medical history taken from the answers to the Internet Medical Questionnaire L.R. Provided. Whether any of the information was accurate was not known, and could not with any certainty, be known by Dr. Wise. Having never seen or talked to L.R., Dr. Wise did not even know, despite indications to the contrary on the Medical Record, that
L.R. was in fact a female.
L.R., through Getthepill.com, contacted Dr. Wise again on May 24, 2004. L.R. completed a second Internet Medical
Questionnaire, giving the same answers provided on the first one, except for reporting a purported blood pressure reading of 102/76.
The May 24, 2004, request from L.R. was treated, in all material respects, the same as the February 6, 2004, request.
L.R. contacted Dr. Wise a final time, again through Getthepill.com, on October 21, 2004. Other than reporting a purported blood pressure of 115/70, L.R. provided the same answers to the questions on the Internet Medical Questionnaire given in the previously filed Internet Medical Questionnaires.
Again, L.R.'s third request for a prescription was treated in all material respects in the same manner as the February 6, and May 24, 2004, requests, with one exception. Following notification to L.R. that the request had been approved, L.R. was sent an e-mail which stated the following:
We regret to inform you that this will be your last prescription refill for birth control pills. It is our mission to provide only emergency prescriptions for contraceptives. In the case of birth control pills, we are happy to submit prescriptions for three (3) months of medication for women who have not yet established gynecologic care with a local health care provided. We feel that three
(3) months should provide adequate time for a patient to schedule an appointment with a local physician or women's clinic. While we have provided refills for women who have requested them, since August 2002 it has
been our office policy to restrict prescription refills to a total of twelve
(12) months.
As you are well aware, women of all ages clearly benefit from yearly visits to the gynecologist. Preventative health care in the form of contraceptive counseling, general health education, and screening for high blood pressure, breast cancer, and cervical cancer is invaluable. There has been some concern that our convenient service may allow some women to avoid these vital annual visits--another reason to restrict prescriptions to one year. We apologize for any inconvenience.
As is discussed further, infra, the evidence failed to prove that L.R. was seeking contraceptives on the Solicitation Dates as an "emergency." No information, even assuming that such information could have been considered reliable, which it would not have been, was elicited from L.R. or otherwise by Dr. Wise or Getthepill.com that indicated the reason L.R. was seeking contraceptives through Getthepill.com. Nor was any convincing evidence presented at hearing to support a finding that L.R. was requesting contraceptives on the Solicitation Dates for anything remotely related to an emergency.
Florida Administrative Code Rule 64B8-9.014 (hereinafter referred to as the "Telemedicine Rule") prescribes standards which Florida physicians are required to adhere to when prescribing medications electronically. The standards required by the Telemedicine Rule are that the physician
document a patient evaluation, including a physical examination, to establish a diagnosis for the which a drug is prescribed; that the physician discuss with the patient the treatment options, risks and benefits of the treatment being provided; and that the physician maintain contemporaneous medical records.
Dr. Wise failed to comply with these standards in prescribing medications to L.R. on all three of the Solicitation Dates.
Dr. Wise did not document any patient evaluation which included the results of a physical examination of L.R. Dr. Wise plainly did not perform any examination of L.R. whatsoever.
Dr. Wise did not see, touch, or even speak with L.R. on Solicitation Dates or at any other time.
Dr. Wise's suggestion at hearing that, by considering the blood pressure information provided to him by L.R. on the Internet Medical Questionnaire, he performed a relevant physical examination is rejected. What Dr. Wise was provided by L.R. were merely "numbers" that purported to be blood pressure readings. Even at hearing, no evidence was presented to substantiate what the numbers provided by L.R. on the Internet Medical Questionnaire represent. Just as those numbers do not reliably justify a finding of fact as to what they represent, they also do not justify a physician's unbridled reliance on them to determine the health of a patient. While it may be appropriate for a physician to rely on some information provided
by a patient, no reasonable physician would simply ask his or her patient what their blood pressure is when they visit the physician's office; a reasonable physician would actually take, or have an assistant take, the patient's blood pressure.
Dr. Jones' opinion on this matter, that simply relying upon what a patient reports is their blood pressure does not constitute a physical examination, is credited. Dr. Wise's testimony to the contrary is rejected.
Dr. Wise also suggested that it is necessary for a physician to rely upon what a patient tells them. While it may be true that a physician must often rely upon information provided by a patient, in this matter Dr. Wise's reliance solely upon the input of L.R. provided on the Internet Medical Questionnaire lacked any justification whatsoever and was unreasonable. Many things that a face-to-face examination of a patient would allow a physician to verify, Dr. Wise simply assumed. Dr. Wise, because he did not conduct any physical examination of L.R., had to assume L.R.'s sex, blood pressure, and whether the age given by L.R. was reasonably consistent with L.R.'s appearance. Dr. Wise also had to assume that L.R. was capable of understanding the medical questions asked on the Internet Medical Questionnaire and that L.R. had no questions about the information sought.
Dr. Wise's expert witness, Dr. David A. Grimes, failed to provide any credible, convincing testimony to support a finding that Dr. Wise conducted a physical examination in compliance with the Telemedicine Rule. Dr. Grimes, recognizing that Dr. Wise did not conduct a physical examination, merely suggests that a physical examination was not necessary:
In providing short-term prescriptions for birth control pills without requiring a physical examination or an office visit for appropriately screened patients, Dr. Wise was allowing patients the opportunity to obtain and use effective contraceptives while awaiting health insurance coverage or an appointment with a local physician.
Dr. Grimes also states in his Affidavit that "there is no medical evidence that supports the practice of requiring a physical examination prior to the prescribing of birth control pills." This very limited statement, that there is "no medical evidence," misses the point. First, whether supported by "medical evidence" or not, the Telemedicine Rule requires a physical examination. Secondly, the better evidence in this case, whether "medical evidence" supporting the need for a physical examination exists or not, supports the finding that a physical examination of a person seeking contraceptives, which includes at a minimum ensuring that the patient is a female and checking the patient's blood pressure, is medically necessary.
Dr. Wise also failed to have any "discussion" with
L.R. on any of the Solicitation Dates about treatment options or risks and benefits of the contraceptive which L.R. sought and was provided. While information was provided at the Getthepill.com Internet Address concerning contraceptives, including options and risks and benefits, Dr. Wise could not, with any assurance, assume that L.R. had read or even seen that information.
L.R.'s purported medical history, while recorded in a medical record contemporaneously, was limited to the information provided on the three Internet Medical Questionnaires. That information was not reliable nor, if it were, did it contain all the information concerning L.R. that should have been collected and maintained in a medical record. For example, the Internet Medical Questionnaire did not elicit information from L.R. as to L.R.'s last menstrual cycle: whether L.R. had had a hysterectomy; and whether L.R. had ever taken oral contraceptives and, if so, whether any problems had been experienced.
L.R.'s purported medical history also lacked reliable information as to whether there were any contraindications to oral contraceptives. There are several contraindications, which if present, would cause a physician to refuse to prescribe oral contraceptives. Those contraindications include a history of
liver or heart disease, a history of smoking by a person over the age of 35, current pregnancy, a history of migraine headaches, a history of high blood pressure, and a history of insulin-dependent diabetes. Dr. Wise did not obtain any information concerning these contraindications from L.R.
In addition to failing to meet the standards of the Telemedicine Rule, Dr. Wise failed to create any reasonable doctor-patient relationship with L.R. on any of the Solicitation Dates. Dr. Wise failed to do so because he failed to conduct a physical examination of L.R., he failed to obtain a reliable medical history from L.R., discussed, supra, and he failed to obtain L.R.'s informed consent.
Again, the purported blood pressure information L.R. provided lacks reliability. If L.R. suffered from high blood pressure, which would be revealed if a physical examination had been performed, Dr. Wise very likely would not have approved the prescriptions. Not knowing how L.R. came up with the numbers provided to him, Dr. Wise could only assume that the numbers actually reflected L.R.'s blood pressure. Without knowing who administered the blood pressure measurement, how it was administered, or even whether it was measured at all, Dr. Wise's reliance on the numbers provided by L.R. was not reasonable.
As to obtaining "informed consent," Dr. Wise had no discussion with L.R. as to L.R.'s understanding of what the
contraceptive requested was. L.R.'s request was simply approved by Dr. Wise without any idea why L.R. had requested the particular oral contraceptive L.R. sought or why L.R. though contraception was necessary. Dr. Wise simply had no discussion with L.R. from which he could determine whether L.R. understood what was being prescribed or whether, based upon contraindications, L.R. was or was not a proper candidate for the requested medication. Merely providing information about contraception at the Internet Address does nothing to ensure that a patient, L.R. in particular, actually paid any attention to the information or understood it.
The Standard of Care.
Dr. Wise's failure to conduct a physical examination of L.R. constituted the failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent physicians as being acceptable under similar condition and circumstances (hereinafter referred to as the "Standard of Care"). See § 458.331(1)(t), Fla. Stat.
Dr. Jones' testimony in this regard is credited, while any opinion to the contrary from Dr. Wise or Dr. Grimes is rejected.
Dr. Wise violated the Standard of Care by failing, as discussed, supra, to establish a doctor-patient relationship with L.R. prior to prescribing Trivora-28. The lack of a
doctor-patient relationship is the only factual basis alleged in the Amended Administrative Complaint for the alleged violation of the Standard of Care.
Dr. Grimes' opinions to the contrary are rejected.
First, Dr. Grimes assumes facts not in evidence--that L.R. is a female and that the age L.R. gave was accurate. Dr. Grimes also failed to indicate in his Affidavit that Dr. Wise's conduct was within the Standard of Care in Florida, which is the only relevant issue. Dr. Grimes' opinions are also too general in nature and lack the specificity concerning L.R.'s treatment in particular necessary to be of much use.
The Telemedicine Rule Emergency Exception.
The Telemedicine Rule contains an exception to the physician conduct prescribed in the Rule. The evidence failed to prove that the exception applies to Dr. Wise's treatment of L.R.
There was no information, even if it could be assumed to be reliable, provided by L.R. or anyone else which Dr. Wise could have relied upon to conclude that L.R.'s requests were being made in "an emergency situation." There was nothing in the information provided by L.R. that indicated that the immediate administration of the medication was "necessary for the proper treatment of [L.R.] "
L.R. made no representations, even assuming it would have been acceptable to rely upon such representations if they had been made, to indicate there was any emergency or the need for immediate administration of the Trivora-28 L.R. was provided. L.R. did not give any explanation whatsoever as to why the medication was being sought through Getthepill.com or when L.R. intended to take the medication, if at all. All L.R. did was ask for the prescriptions. While Dr. Wise testified about a number of factors that might support the immediate approval of a prescription for an oral contraceptive, Dr. Wise had been provided with no information by L.R. or anyone else that would indicate that those factors pertained to L.R.
Dr. Grimes' opinion with regard to the applicability of the emergency exception to the Telemedicine Rule, quoted in Finding of Fact 45, is also rejected. First, Dr. Grimes mistakes the facts of this matter by assuming that: L.R. was an "appropriately screened patient[]"; and that L.R. was awaiting health insurance coverage or an appointment with a local physician. The evidence failed to prove any of these assumed facts and, therefore, Dr. Grimes' opinion concerning the exception to the Telemedicine Rule is rejected.
The exception to the Telemedicine Rule does not apply to Dr. Wise's treatment of L.R.
Dr. Wise's Florida Connection.
In filling the three prescriptions for L.R., Dr. Wise had the following connections with Florida:
He is licensed by the State of Florida as a physician;
The business through which he dealt with L.R., Getthepill.com, is a Florida corporation with its main office located in Florida and, at least in part, some of its dealings with L.R. were handled from the Florida office. Dr. Wise is the president of that corporation;
L.R. was notified that Dr. Wise's address was a Melbourne, Florida, address and that his telephone number was the same as Getthepill.com's Melbourne office phone number.
L.R. was not given any other information that would indicate that Dr. Wise was practicing medicine from any location other than Florida;
At least one of the prescriptions Dr. Wise filled for
was called in on his behalf from an individual physically located in Florida;
At least one of the e-mail communications to L.R. was sent from an individual physically located in Florida; and
The Telemedicine Electronic Medical Records maintained for L.R. by Dr. Wise lists the following office information at the top of those records:
The Offices of Dr. Matthew Wise 6355 Hwy A1A Suite 3
Melbourne Beach, FL 32951 (321)724-5714
In filling the three prescriptions for L.R., the following aspects of the transactions had no Florida connection:
Dr. Wise was, at no time, located in Florida. He has, as found, supra, never practiced in Florida in person. He approved L.R.'s solicitations from New Mexico;
The physician number provided to the pharmacy was not his Florida license number;
The pharmacy at which the prescriptions were placed was a pharmacy with an Ohio telephone number;
The evidence failed to prove that L.R. was located in Florida;
Some of the prescriptions were called in to the pharmacy by someone located outside of Florida; and
E-mails on some of the transactions with L.R. were sent from a location outside of Florida.
Based upon the findings in paragraph 62, it is found that Dr. Wise was practicing medicine in Florida in his dealings with L.R.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569, 120.57(1), and 456.073(5), Florida Statutes (2006).
Dr. Wise has argued that the Board of Medicine (hereinafter referred to as the "Board"), lacks jurisdiction over him, suggesting that the nexus between his activities were insufficient to support a finding that the Board has jurisdiction over him. These arguments are rejected.
The Department has suggested that the Board has jurisdiction over Dr. Wise pursuant to Section 48.193(1)(a), Florida Statutes, Florida's "long-arm statute." That provision governs the circumstances which must be present before it may be concluded that the "courts" of Florida have civil jurisdiction over the person. That provision does not apply in this case because this forum and the Board are not "courts" and the issue in this case is not whether a civil action may be maintained over Dr. Wise.
The Board's jurisdiction over Dr. Wise stems from the fact that he has obtained and maintained a license to practice medicine in Florida. In so doing, Dr. Wise has subjected himself to the application of Section 458.331(1), Florida
Statutes. Section 458.331(1), Florida Statutes, authorizes the Board to impose penalties ranging from the issuance of a letter of concern to revocation of a physician's license to practice medicine in Florida, if a physician commits one or more acts specified therein. Dr. Wise is a physician licensed by the State of Florida and is subject to discipline by the Board to the extent that he practiced medicine in Florida.
In this matter, although a number of the pertinent activities at issue did not take place in Florida, there are enough activities which did take place in Florida to give the Board both subject and personal jurisdiction over Dr. Wise.
Most important is the fact that Dr. Wise held himself out to L.R. as a physician with a Florida address and telephone number. At no time was L.R. informed that Dr. Wise was not practicing medicine in Florida. This fact, coupled with the other actions which connect Dr. Wise's treatment of L.R. with Florida found in this Recommended Order, are adequate to give the Board jurisdiction over Dr. Wise's treatment of L.R.
The Burden and Standard of Proof.
The Department seeks to impose penalties against Dr. Wise through the Amended Administrative Complaint that include suspension or revocation of his license and/or the
imposition of an administrative fine. Therefore, the Department has the burden of proving the specific allegations of fact that
support its charge that Dr. Wise violated Sections 458.331(1)(t) and (nn), Florida Statutes, by clear and convincing evidence.
Department of Banking and Finance, Division of Securities and
Investor Protection v. Osborne Stern and Co., | 670 | So. 2d 932 |
(Fla. 1996); Ferris v. Turlington, 510 So. 2d | 292 | (Fla. 1987); |
Pou v. Department of Insurance and Treasurer, | 707 | So. 2d 941 |
(Fla. 3d DCA 1998); and Section 120.57(1)(j), Florida Statutes (2005)("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute.").
What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:
. . . [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
See also In re Graziano, 696 So. 2d 744 (Fla. 1997); In re
Davey, 645 So. 2d 398 (Fla. 1994); and Walker v. Florida
Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).
Section 458.331(1)(t), Florida Statutes; The Standard of Care.
Section 458.331(1)(t), Florida Statutes, defines the following disciplinable offense:
(t) . . . [T]he 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. . . .
In paragraph 32 of the Amended Administrative Complaint, it has been alleged that Dr. Wise violated the Standard of Care by "failing to establish a doctor-patient relationship with individual L.R. prior to prescribing Trivora-28."
The evidence has clearly and convincingly proved that Dr. Wise has violated the Standard of Care as alleged in paragraphs 32 as described in the Findings of Fact.
Section 458.331(1)(nn), Florida Statutes; The
Telemedicine Rule.
Section 458.331(1)(nn), Florida Statutes, provides that any violation of Chapters 456 or 458, or any rules adopted pursuant to those Chapters, constitutes grounds for disciplinary action by the Board. In this case, the Department has alleged
that Dr. Wise violated Section 458.331(1)(nn), Florida Statutes, by violating the Telemedicine Rule.
The evidence proved clearly and convincingly that Dr.
Wise failed to comply with the requirements of the Telemedicine Rule in prescribing medications to L.R. Dr. Wise prescribed medication to L.R. based solely on the Internet Medical Questionnaires provided through Getthepill.com. and, therefore, is guilty of providing "treatment recommendations, including issuing a prescription, via electronic or other means" and none of the following elements required by the Telemedicine Rule were
met:
A documented patient evaluation, including history and physical examination to establish the diagnosis for which any legend drug is prescribed.
Discussion between the physician . .
. and the patient regarding treatment options and the risks and benefits of treatment.
Maintenance of contemporaneous medical records meeting the requirements of rule 64B8-9.003, F.A.C.
Finally, the evidence failed to prove that the exception to the Telemedicine Rule applies in this matter. That exception provides the following:
(3) The provisions of this rule are not applicable in an emergency situation. For purposes of this rule an emergency situation means those situations in which the prescribing physician or physician assistant
determines that the immediate administration of the medication is necessary for the proper treatment of the patient, and that it is not reasonably possible for the prescribing physician or physician assistant to comply with the provision of this rule prior to providing such prescription.
The evidence failed to prove that Dr. Wise had any information which would have supported a decision that the prescriptions sought by L.R. were medically necessary for immediate administration in order to treat L.R.
Having proved that Dr. Wise violated the Telemedicine Rule, it has been proved clearly and convincingly that Dr. Wise violated Section 458.331(1)(nn), Florida Statutes.
The Appropriate Penalty.
In determining the appropriate punitive action to recommend to the Board in this case, it is necessary to consult the Board's "disciplinary guidelines," which impose restrictions and limitations on the exercise of the Board's disciplinary authority under Section 458.331, Florida Statutes. See Parrot Heads, Inc. v. Department of Business and Professional
Regulation, 741 So. 2d 1231 (Fla. 5th DCA 1999).
The Board's guidelines are set out in Florida Administrative Code Rule 64B8-8.001, which provides the following "purpose" and instruction on the application of the penalty ranges provided in the Rule:
Purpose. Pursuant to Section 456.079, F.S., the Board provides within this rule disciplinary guidelines which shall be imposed upon applicants or licensees whom it regulates under Chapter 458, F.S. The purpose of this rule is to notify applicants and licensees of the ranges of penalties which will routinely be imposed unless the Board finds it necessary to deviate from the guidelines for the stated reasons given within this rule. The ranges of penalties provided below are based upon a single count violation of each provision listed; multiple counts of the violated provisions or a combination of the violations may result in a higher penalty than that for a single, isolated violation. Each range includes the lowest and highest penalty and all penalties falling between. The purposes of the imposition of discipline are 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.
Violations and Range of Penalties. In imposing discipline upon applicants and licensees, in proceedings pursuant to Section 120.57(1) and 120.57(2), F.S., the Board shall act in accordance with the following disciplinary guidelines and shall impose a penalty within the range corresponding to the violations set forth below. The verbal identification of offenses are descriptive only; the full language of each statutory provision cited must be consulted in order to determine the conduct included.
Florida Administrative Code Rule 64B8-8.001(2)(t)3. provides, in pertinent part, the following penalty for a violation of Section 458.331(1)(t), Florida Statutes: from two
years’ probation to revocation, and an administrative fine from
$1,000.00 to $10,000.00.
Florida Administrative Code Rule 64B8-8.001(2)(x)1. provides the following penalty guidelines for a violation of Section 458.331(1)(nn), Florida Statutes: a reprimand to revocation and an administrative fine from $1,000.00 to
$10,000.00.
Florida Administrative Code Rule 64B8-8.001(3) provides that, in applying the penalty guidelines, the following aggravating and mitigating circumstances are to be taken into
account:
Aggravating and Mitigating Circumstances. Based upon consideration of aggravating and mitigating factors present in an individual case, the Board may deviate from the penalties recommended above. The Board shall consider as aggravating or mitigating factors the following:
Exposure of patient or public to injury or potential injury, physical or otherwise: none, slight, severe, or death;
Legal status at the time of the offense: no restraints, or legal constraints;
The number of counts or separate offenses established;
The number of times the same offense or offenses have previously been committed by the licensee or applicant;
The disciplinary history of the applicant or licensee in any jurisdiction and the length of practice;
Pecuniary benefit or self-gain inuring to the applicant or licensee;
The involvement in any violation of Section 458.331, Florida Statutes, of the
provision of controlled substances for trade, barter or sale, by a licensee. In such cases, the Board will deviate from the penalties recommended above and impose suspension or revocation of licensure;
Any other relevant mitigating factors.
In Petitioner's Proposed Recommended Order, the Department has requested that it be recommended that Dr. Wise's license be suspended for six months, followed by one year of probation, and that he be required to pay a fine in the amount of $10,000.00.
Having carefully considered the facts of this matter in light of the provisions of Florida Administrative Code Rule 64B8-8.001, it is concluded that the Department's suggested penalty is reasonable. The Board may, however, want to consider not suspending Dr. Wise's license because of the nature of his
government employment.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the a final order be entered by the Board of Medicine finding that Matthew J. Wise, M.D., has violated Subsections 458.331(1)(t) and (nn), Florida Statutes, as described in this Recommended Order; suspending his license to practice medicine in Florida for six months, followed by
probation for two years; and requiring that he pay an administrative fine of $10,000.00.
DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida.
S
LARRY J. SARTIN
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 9th day of November, 2006.
COPIES FURNISHED:
Jennifer Forshey Assistant General Counsel Office of General Counsel Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
Joseph Harrison, Esquire
Law Offices of Joseph Harrison, P.A. Post Office Box 810637
Boca Raton, Florida 33481-0637
Larry McPherson, Executive Director Board of Medicine
Department of Health 4052 Bald Cypress Way
Tallahassee, Florida 32399-1701
R. S. Power, Agency Clerk Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Timothy M. Cerio, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Dr. M. Rony François, Secretary Department of Health
4052 Bald Cypress Way, Bin A00 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 these cases.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 09, 2006 | Recommended Order | Respondent approved prescribed medication over the Internet without seeing or talking to the patient, a violation of the standard of care and Rule governing electronic prescriptions. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JOSE SUAREZ-DIAZ, M.D., 06-002014PL (2006)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MAHESH ALLAM, M.D., 06-002014PL (2006)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs PAUL M. MURRY, M.D., 06-002014PL (2006)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JORGE O. WEKSLER, M.D., 06-002014PL (2006)
