STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) CHIROPRACTIC MEDICINE, )

)

Petitioner, )

)

vs. )

) DAVID JOHN GUERRIERO, D.C., )

)

Respondent. )

Case No. 07-0185PL

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on March 27, 2007, in Tampa, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tobey Schultz, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 456.072(1)(gg), 456.072(1)(y), and 460.413(1)(q),

Florida Statutes (2005),1 and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On August 8, 2006, the Department of Health (Department) filed an Administrative Complaint with the Board of Chiropractic Medicine (Board) against Respondent, David John Guerriero, D.C. (Dr. Guerriero), alleging that Dr. Guerriero violated Subsections 456.072(1)(gg), 456.072(1)(y), and 460.413(1)(q),

Florida Statutes. By letter dated November 17, 2006,

Dr. Guerriero responded to the allegations in the Administrative Complaint. The case was forwarded to the Division of Administrative Hearings on January 12, 2007, for assignment to an Administrative Law Judge.

On February 27, 2007, the Department filed Petitioner's Motion to Compel Discovery: With Sanctions. The motion was noticed to be heard by telephonic conference call on March 19, 2007. Dr. Guerriero failed to attend the motion hearing.

On March 20, 2007, the Department filed an Emergency Motion to Relinquish Jurisdiction. On March 20, 2007, an Order Deeming Admissions Admitted was entered for Dr. Guerriero's failure to respond to Petitioner's First Request for Admissions.

The Emergency Motion to Relinquish Jurisdiction was noticed to be heard by telephonic conference call on March 23, 2007.

Dr. Guerriero failed to attend the motion hearing. At the motion hearing, counsel for the Department advised the undersigned that Dr. Guerriero had served responses to the

requests for admissions. Based on this representation, the Order Deeming Admissions Admitted was orally vacated, and the Emergency Motion to Relinquish Jurisdiction was denied. It is hereby ORDERED, nunc pro tunc, that the Order Deeming Admissions Admitted is VACATED, and the Emergency Motion to Relinquish Jurisdiction is DENIED.

The final hearing was noticed by Notice of Hearing issued on January 26, 2007. Dr. Guerriero was sent a Notice of Hearing. The final hearing was to commence at 9:00 a.m. on March 27, 2007, but Dr. Guerriero failed to appear at the noticed time. Commencement of the final hearing was delayed until 9:30 a.m., to give Dr. Guerriero time to appear, but he failed to do so. He did not contact the Division of Administrative Hearings to advise of the reason he did not appear.

At the final hearing, the Department called Martha Eugenia Brown, M.D., and Jerome M. Gropper, D.D.S., as its witnesses.

Petitioner's Exhibits 1 through 7 were admitted in evidence.

The Transcript of the final hearing was filed on April 12, 2007. On April 23, 2007, the Department filed its Proposed Recommended Order, which has been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with the regulation of chiropractic medicine pursuant to Chapters 20, 256 and 460, Florida Statutes.

2. Dr. Guerriero is a licensed chiropractic physician with the State of Florida, having been issued license number CH 6373 on or about August 21, 1991.

3. The Professional Resource Network (PRN) is the impaired practitioners program for the Board of Chiropractic 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 treatment providers and the Department for the protection of the public.

4. On or about October 26, 2005, Dr. Guerriero was admitted to the Center for Drug Free Living, Inc., for detoxification related to opiate and benzodiazepine use. On October 31, 2005, he self-reported to PRN that he was discontinuing the use of benzodiazepines and opiates prescribed by his doctor and that he had entered the Center for Drug Free Living, Inc., to be weaned from these prescription medications.

5. PRN arranged for Dr. Guerriero to be evaluated by Chowallur Dev Chacko, M.D. (Dr. Chacko), who is a psychiatrist.

   The evaluation was made to determine whether Dr. Guerriero's addiction problems prevented him from practicing chiropractic medicine with reasonable skill and safety to patients.

   Dr. Chacko saw Dr. Guerriero on November 7, 2005. Dr. Guerriero admitted to continuing the use of prescription medications containing opioids and benzodiazepines after his recent detoxification.

6. Dr. Chacko diagnosed Dr. Guerriero as having opioid and benzodiazepine dependence, as well as suffering from alcohol abuse. It was Dr. Chacko's opinion that Dr. Guerriero was not able to practice chiropractic medicine with reasonable skill and safety. He recommended that Dr. Guerriero receive inpatient substance abuse treatment.

7. After PRN received the evaluation performed by

   
   

   Dr. Chacko, there were several unsuccessful attempts to contact Dr. Guerriero. However, Dr. Guerriero did talk with his case manager on December 16, 2005, to discuss options for treatment. Dr. Guerriero maintained that he could not afford the inpatient treatment. His case manager informed him that one option would be an intensive outpatient program with no less than nine hours a week of therapy. During the therapy, Dr. Guerriero would not be allowed to practice chiropractic medicine. After the treatment was completed, Dr. Guerriero would be required to be

   evaluated to determine if he could practice chiropractic medicine with reasonable skill and safety to patients.

8. Dr. Guerriero did not provide PRN with any evidence that he had completed any treatment program. PRN received no further contact from Dr. Guerriero until May 2, 2006. Dr. Guerriero indicated that he wanted to get a second opinion.

9. On July 31, 2006, Martha E. Brown, M.D. (Dr. Brown), who is board-certified in psychiatry and addiction psychiatry, saw Dr. Guerriero for an evaluation. During the evaluation, Dr. Guerriero indicated that he was taking Dalmante, which had been prescribed for him as a sleep-aid. He admitted to drinking from one-to-two glasses of wine three times a week.

   Dr. Guerriero was given a drug test during the evaluation, and he tested positive for alcohol, opioid, and benzodiazepine use. Dr. Brown's diagnosis of Dr. Guerriero was that he was alcohol dependent, opiate dependent, and sedative hypnotic dependent.

10. It is Dr. Brown's opinion that Dr. Guerriero cannot practice chiropractic medicine with reasonable skill and safety. She recommended that he enter a detoxification program and then a residential long-term treatment program, that he see a pain management specialist to look at his pain issues, that he see a psychiatrist acceptable to PRN to help him with his sleep difficulties, that he abstain from all mood altering substances

    including alcohol, and that he be in PRN for long-term monitoring.

11. Dr. Guerriero did not provide PRN with proof that he had completed an inpatient program. He did not execute a contract with PRN. PRN sent Dr. Guerriero contracts to sign, but the contracts were returned as unclaimed. The last contact that Dr. Guerriero had with PRN was on August 31, 2006.

12. Jerome M. Gropper, D.D.S. (Dr. Gropper), is a clinical network coordinator at PRN. He is a practicing dentist and has a master's degree in counseling. Based on his review of the PRN file of Dr. Guerriero, he is of the opinion that Dr. Guerriero could not practice chiropractic medicine with reasonable skill and safety and that Dr. Guerriero will need long-term residential treatment before he could safely return to practice.

13. Based on the opinions of Drs. Chacko, Brown, and Gropper, Dr. Guerriero cannot practice chiropractic medicine with reasonable skill and safety to his patients due to his dependence on drugs and alcohol. In order to be able to return to practice chiropractic medicine, Dr. Guerriero will need long- term residential treatment and will need to enter into a monitoring contract with PRN.

    CONCLUSIONS OF LAW

    
    

14. 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).

15. 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 Co., 670 So. 2d 932 (Fla. 1996). The Department alleged that Dr. Guerriero violated Subsections 456.072(1)(y), 456.072(1)(gg), and 460.413(1)(q), Florida Statutes.

    16. Subsections 456.072(1)(y) and 456.072(1)(gg), Florida Statutes, provide:

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

* * *

(y) Being unable to practice 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.

* * *

(gg) Being terminated from a treatment program for impaired practitioners, which is overseen by an impaired practitioner consultant as described in s. 456.076, for failure to comply, without good cause, with the terms of the monitoring or treatment

contract entered into by the licensee, or for not successfully completing any drug treatment or alcohol treatment program.

1. Subsection 460.413(1)(q), Florida Statutes, provides:

   
   

   1. The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):

      
      

      * * *

      
      

      (q) Being unable to practice chiropractic 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. . . .

      
      

2. The Department has established by clear and convincing evidence that Dr. Guerriero is unable to practice chiropractic medicine with reasonable skill and safety to patients by reason of his use of alcohol and prescription medications. Thus,

   Dr. Guerriero is in violation of Subsections 456.072(1)(y) and 460.413(1)(q), Florida Statutes.

3. The Department has established by clear and convincing evidence that Dr. Guerriero failed to complete the treatment programs recommended by the PRN evaluators. Thus, the Department has established that Dr. Guerriero is in violation of Subsection 456.072(1)(gg), Florida Statutes.

4. Florida Administrative Code Rule 64B2-16.003(1)(y) provides that the range of penalties for a violation of Subsections 456.072(1)(y) and 460.413(1)(q), Florida Statutes,

is a minimum of $1,000 fine, three years' probation, and referral for a PRN evaluation to a maximum of suspension of license for one year, followed by up to five years of probation. Florida Administrative Code Rule 64B2-16.003(1)(aaa) provides that the penalty of a violation of Subsection 456.072(1)(gg), Florida Statutes, is from a minimum suspension until compliant with a PRN contract to $1,000 fine and/or revocation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Guerriero violated Subsections 456.072(1)(y), 456.072(1)(gg), and 460.413(1)(q), Florida Statutes; imposing a

$1,000 administrative fine; and suspending his license until such time the following conditions are satisfied:

1. Dr. Guerriero executes a PRN advocacy contract,

   
   

2. Dr. Guerriero successfully completes a six-month period in which he complies with all of PRN's treatment recommendations,

3. PRN appears before the Board and advocates for

Dr. Guerriero's return to active practice during a Board meeting in which Dr. Guerriero is present, and (4) the Board determines that Dr. Guerriero is able to practice with reasonable skill and safety.

DONE AND ENTERED this 7th day of May, 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 7th day of May, 2007.

ENDNOTE

1/ Unless otherwise stated, references to the Florida Statutes are to the 2005 version.

COPIES FURNISHED:

Tobey Schultz, Esquire Department of Health

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399

David J. Guerriero

447 Opal Court

Altamonte Springs, Florida 32714

Josefina M. Tamayo, General Counsel Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health

4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701

R.S. Power, Agency Clerk 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.

Docket for Case No: 07-000185PL

Orders for Case No: 07-000185PL