STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

On October 23, 2009, a duly-noticed hearing was held by means of video teleconferencing with sites in Tallahassee and Jacksonville, Florida, before Administrative Law Judge Lisa Shearer Nelson, assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas J. Morton, Esquire

Diane K. Kiesling, Esquire Department of Health Prosecution Services Unit

4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265

For Respondent: T. A. Delegal, Esquire

Delegal Law Offices, P.A.

424 East Monroe Street Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues to be determined are whether Respondent is unable to practice medicine with reasonable skill and safety by reason of illness, or physical or mental condition, in violation of

Section 458.331(1)(s), Florida Statutes (2008, 2009)1/, and if so, what penalty or restriction should be imposed?

PRELIMINARY STATEMENT

On July 27, 2009, the Department of Health (the Department or DOH) filed an Administrative Complaint alleging that Respondent was unable to practice medicine with reasonable skill and safety in violation of Section 458.331(1)(s), Florida Statutes. On August 21, 2009, Respondent filed an Election of Rights and Answer to the Administrative Complaint and Petition for Formal Hearing. On October 1, 2009, the Department referred the case to the Division of Administrative Hearings requesting assignment of an administrative law judge. In its referral letter, the Department notified the Division that Respondent was under an Emergency Suspension Order and that she was requesting an expedited hearing.

On October 6, 2009, a Notice of Hearing issued scheduling the case for final hearing on October 23, 2009. Petitioner's Motion to Expedite Discovery was granted by Order dated October 8, 2009. Petitioner also moved to amend the Administrative Complaint, and the parties moved jointly to shorten the time for filing the Pre-Hearing Stipulation. By Order dated October 15, 2009, both motions were granted.

The case proceeded as scheduled. Pursuant to Petitioner's Motion, Official Recognition is taken of Florida Administrative Code Rule 64B8-8.001, both as it existed from January 30, 2007,

through February 17, 2009, and as it exists from February 17, 2009, to the present. At hearing, Petitioner presented the testimony of Elaina Gonzales, Tracy Rogers, Wendy Foy, Charles Coates, Frank Hayes and George Joseph (by deposition).

Petitioner's Exhibits 1-12 were admitted into evidence. Respondent appeared through counsel only, and presented the testimony of William Howard.

The Transcript of the proceedings was filed with the Division on November 9, 2009. Both parties filed Proposed Recommended Orders which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to Section 20.43, and Chapters 456 and 458, Florida Statutes.

2. At all times material to these proceedings, Respondent has been a licensed medical doctor within the State of Florida, having been issued license number ME 33042. She is board certified in internal medicine and has never been the subject of a disciplinary proceeding against her Florida license.

3. Dr. Sharpe's mailing address of record during the time relevant to these proceedings was 6603 San Juan Avenue, #1, Jacksonville, Florida 32210, and she practiced medicine at this address.

4. On November 8, 2008, Detective Elaina Gonzales of the Jacksonville Sheriff's Office Narcotics Division was investigating a complaint that a patient, E.R., might be "doctor shopping." As part of that investigation, Detective Gonzales contacted Dr. Sharpe to see if E.R. was a patient of hers. When Dr. Sharpe confirmed that E.R. had been a patient for a couple of months, Detective Gonzales asked her to locate the chart so that they could verify what medications E.R. had received and the dates they had been prescribed.

5. Dr. Sharpe related that she could not locate the chart at that time, because she was at the office alone, was in a wheelchair, and was very ill with "African fever." Detective Gonzales asked her whether she required her patients to sign pain contracts, and Dr. Sharpe indicated that she did not believe in them. The conversation, which was by telephone, left Detective Gonzales "uneasy," and she found Dr. Sharpe's responses to be strange, in that she appeared to be confused and would answer questions in a tangential manner that was hard to follow.

6. On January 19, 2009, two and a half months later, Detective Gonzales arrested two suspects who attempted to fill fraudulent prescriptions at Panama Pharmacy. During the arrest, there was a search of the suspects' vehicle, and a blank prescription pad bearing Dr. Sharpe's name was seized, along with a prescription for 60 pills of Oxycontin 80 mg dated January 20, 2009, taken from suspect G.L.'s wallet. Four other prescriptions

   G.L. attempted to fill were recovered from pharmacies. All four were on printed prescription forms bearing Dr. Sharpe's name.

7. The handwriting on the four prescriptions recovered from various pharmacies, while on Dr. Sharpe's prescription pad, is not consistent with the handwriting from prescriptions that

   Dr. Sharpe identified as ones she wrote.

   
   

8. Detective Gonzales attempted to contact Dr. Sharpe to verify whether she wrote the prescriptions on January 19, 2009, but was unable to contact her. The next day, she called

   Dr. Sharpe and asked whether G.L. was a patient, which Dr. Sharpe confirmed. Detective Gonzales asked Respondent if she post-dated prescriptions, which she denied. Gonzales asked Dr. Sharpe to locate the chart so that she could verify when prescriptions were written for G.L. Dr. Sharpe indicated that she could not find the file, that she did not have an office staff and that she was ill and by herself.

9. Detective Gonzales tried to impress on Dr. Sharpe the importance of verifying the prescriptions, because she had two suspects sitting in jail, and indicated that she would be coming to the office to have Dr. Sharpe look at the prescriptions.

   Dr. Sharp became upset and at first stated she would not open the door because she was sick. Eventually, she relented and gave instructions for the detective to let the phone ring three times in order for her to gain entrance to the office.

10. Upon Detective Gonzales' arrival at the office at approximately 2:00 p.m. on January 20, 2009, she found Respondent in a wheelchair, wearing a nightgown and socks with no shoes.

    Dr. Sharpe asked Detective Gonzales to wear gloves so she would not get sick. At the time Detective Gonzales arrived, there was a woman in the reception area who Dr. Sharpe described as helping her.

11. Detective Gonzales observed a patient waiting area and reception area that was cluttered and disorganized. The area appeared to include both household and office furniture, and the reception area contained what appeared to be piles of medical charts.

12. Detective Gonzales showed Dr. Sharpe the prescriptions retrieved from G.L. and from the pharmacies. Dr. Sharpe denied writing the prescriptions presented to the pharmacies and described in paragraph 7. She identified the prescription to

    G.L. dated January 20, 2009, taken from G.L.'s wallet, as being a prescription she wrote. (See Petitioner's Exhibit 3).

13. When Detective Gonzales asked Dr. Sharpe why she post- dated the prescription, Dr. Sharpe became upset with her, and started telling a story that did not answer the question. Gonzales asked to see the patient's file, and Dr. Sharpe could not find it.

14. Detective called DEA Drug Diversion Investigator Lutz while she was at the office, because she wanted to have someone else observe what she had observed. While she waited for Investigator Lutz to arrive, she sat with Dr. Sharpe and talked, and the woman helping Dr. Sharpe continued to look for G.L.'s file. The file was never located during this visit. During this time, a couple arrived with soup for Dr. Sharpe. Once Investigator Lutz arrived, Detective Gonzales left the reception area to search for a restroom. While in the back part of the building, she observed a room with a bed and a TV on, along with a dresser and clothes. It appeared to Detective Gonzales that Dr. Sharpe was living out of her office.

15. Detective Gonzales asked Dr. Sharpe if she was living in her office, and Respondent said she would stay at the office for a couple of days, because she could not get up and down the stairs at her home.

16. Investigator Lutz has since married, and is now known as Investigator Walters. She and another DEA agent arrived at the office while Detective Gonzales was still present. She also confirmed that Dr. Sharpe was in a wheelchair, wearing a nightgown and robe, and that she did not appear to be feeling well. She also confirmed that the office was disorganized.

    Dr. Sharpe also asked her and her partner to wear gloves because she was concerned she might be contagious.

17. Investigator Walters was concerned that Dr. Sharpe was not in any condition to be seeing patients. She asked Dr. Sharpe if she was in fact seeing patients, and Dr. Sharpe indicated she was not feeling well, and had been sick for a while, but was seeing patients when she was able. Given her age and the comments regarding her health, Investigator Walters asked

    Dr. Sharpe if she had thought about retiring. Dr. Sharpe was upset by the question and said she had not thought about doing so.

18. Investigator Walters also indicated that Dr. Sharpe rarely answered a question directly. She would start to, then go off on a tangent about something in her past, and indicated that she thought she had some type of African Fever. Investigator Walters felt the interview was not productive, and Dr. Sharpe kept stressing how poorly she felt, so Investigator Walters asked Dr. Sharpe to contact her in the next couple of weeks.

19. Dr. Sharpe left Investigator Walters one voice message. When Investigator Walters tried to return the call, sometime in February, she reached the answering service and was informed that Dr. Sharpe was still sick. Detective Gonzales also attempted to contact Dr. Sharpe after the January 20 visit. Each time,

    Dr. Sharpe's answering service indicated that she was ill.

    
    

20. A prescription bearing Dr. Sharpe's signature was written for patient D.T. on March 3, 2009. The prescription was for 480 pills of Oxycontin 15mg. (See Petitioner's Exhibit

6). Two other prescriptions written for D.T. on Dr. Sharpe's prescription pad were subsequently recovered from Walgreen's pharmacy and are included in the record as Petitioner's Exhibit

1. One, dated March 5, 2009, was for 360 pills of Oxycontin 40mg. The second, dated April 2, 2009, was also for 360 pills of Oxycontin 40mg. While no testimony was presented indicating that Dr. Sharpe ever confirmed that she had written the two prescriptions described above and contained in Petitioner's Exhibit 9, the handwriting appears to be the same as that on the prescription in Petitioner's Exhibit 6, which Dr. Sharpe confirmed was her handwriting.

   1. On March 25, 2009, Investigator Wendy Foy of DOH notified Dr. Sharpe by letter that she was under investigation. Dr. Sharpe was advised that she had 45 days to submit a written response and to contact the office to schedule an interview, if she chose. The letter also requested that she provide a copy of her curriculum vitae. The 45-day period for filing a response would have required that any response be filed by May 9, 2009.

   2. Dr. Sharpe called in response to the letter. She appeared to be aggravated that the Department was investigating her, and referred to Detective Gonzales as "a loud mouth detective" who barged in her office, demanding to see information. She told Ms. Foy that she would be providing a written response to the complaint, but said she had been sick for weeks.

   3. Ms. Foy called Respondent again because she had not received a response, although the timing of the phone call is not clear. Dr. Sharpe stated that she had been sick and was in the process of writing her response and sending it to her typist.

   4. Dr. Sharpe's response was received by the Department on April 28, 2009. The response are as follows:2/

      The delay in response is not dismissive.

      I needed to gather facts and explain myself while considering the facts you need.

      
      

      One thing I find interesting is "confidential" at the top of your letter.

      The detective -- whose name I don't recall -- I referred to her as "the mouth" acted as a bully here and told me by phone that I pass out medication "like candy" (news to my patients) before I ever met her. She has told pharmacists around the Westside that I am under investigation. They've told my patients. My patients have told me. I have explained to the patients that it is appropriate, if there is a question, to have an investigation. That is the right and the job of the State to protect them. However, she was unprofessional and demonstrated inability or unwillingness; definitely unworthiness to keep a confidence. There is another narcotics detective in the JSO that I work with very well. I have, on occasion, had a questionable prescription. When this happened I reported to her and fired the patient. . . . If indeed the patient IS a patient. You may be interested in the fact that I fly in the dark as I've talked to some of my colleagues. We don't get notified of people that are using narcotics or selling things or anything. If I were a gun salesman or a pawn broker I would have a hot list.

      I'm supposed to know to spot criminals when what I see are patients that are sick. This whole system is remarkable. It's "gotcha", but that's for another letter.

      On the day that the questionable detective demanded entry, I had already placed myself in isolation. That is the only thing a good citizen would do with a severe virus to keep it from spreading.

      
      

      Two volunteer friends were sorting out the mail and "shuffling papers". They were friends NOT regular employees or "trained medical assistants." She had them terrified standing over them. She claimed to be waiting for a partner. She was waiting for the DEA. They insisted on entry as well.

      Before the detective came I had told my helpers I was exhausted and needed a nap. I never got dressed that day. I wore a nightgown and a thermal blanket which is better than a housecoat as I am in a wheelchair. . . . yet they pressed on. Why she lied leaves me mystified, where was I going? I met them all at the door with a box of rubber gloves because, again, I tried to protect anyone else from this terrible virus which kept me out of work for weeks.

      
      

      The DEA asked questions like "what do you give to a new patient?" Well teaching for four years in the United States Peace Corps and before that in Watts before the riots, I believed that there was no such thing as a dumb question but that sure is one. In my diminished state I waited for the rest of the question. An example would be, maybe, presentation of a case. When that did not come I told them all to leave. They were "kicking me when I was down". You've asked about the chart they demanded. My terrified helpers were separated from me and looked everywhere. I didn't know what the problem was as they were in the business office and I was in the waiting room.

      
      

      I NEVER SAW THE PATIENT SHE REQUESTED AS

      THERE WAS NO CHART. He was due several days later. (Please see the page from my calendar) There were two charts requested,

      G.L. was going to be seen on February 3, 2009 as a new patient. I never saw him. The other chart they requested was R.G.

      That chart was taken. I want it back. I have no receipt.

      
      

      I don't know what this woman thinks she knows but she is destructive and inefficient in her gang buster method. We're not used to this. The JSO is better than she is. I recently had the pleasure to write some lovely letters to Sheriff Rutherford regarding some of his staff when I suffered a felony. I never planned to write about this individual or her demeanor. "If you can't say something nice . . .". She is, however, a disgrace and I guess I need to defend myself and let you know the details so that you can come to your own conclusion.

      
      

      The detective demanded two charts.

      1. R.G., she took the chart and did not give it back. I've not seen him again, anyway.

      2. G.L. They came in on January 15th or 16th

      -- I'm unsure as I said and he was due to come in for a new patient evaluation (2 hours) on February 3, 2009 at 2:00 pm. If this signifies giving out medicine like candy then I guess it is.

      
      

      As a double check I asked my transcriptionist for a history and physical from her computer memory and there was no such patient as G.L. I've never seen him.

      
      

      I hope this explains your legitimate concerns and her attempt to build a case from thin air. I don't know what she thinks she knows.

      
      

      I do request all of the reports if I can get them as you said is my right. Further, I have such an extensive Curriculum Vitae. I cleaned it up as I don't put everything in it. I don't even know if I have one right now. I have to reconstruct it as nobody asks for them. I will ask my transcriptionist if she has one in memory. As a blind copy I'm going to send you the letters that I've sent the Sheriff because it has a couple of things from my background anyway and my awe of the police force and the JSO here. I don't have

      an attitude toward them, just her. She is an outlier certainly.

      
      

      Thank you for opportunity to respond to your concerns.

      
      

      Sincerely yours, (signed)

      Isabella K. Sharpe, M.D. Isabella K. Sharpe, M.S.M.D.,F.A.C.P.

      
      

   5. Dr. Sharpe's written response differs from Detective Gonzales' and Investigator Walters' accounts of the events in several respects. For example, she identifies the date of their visit to be January 15 or 16, as opposed to January 20. She claims that Detective Gonzales retrieved a chart for a patient

      R.G. when there has been no testimony about such a patient. She claims that she never saw patient G.L. when Detective Gonzales testified that Respondent confirmed G.L. was her patient and identified the signature on his January 20, 2009, prescription as her signature. She claimed to be "separated" from her volunteers and unable to know what they were looking for, when all testimony indicates that the rooms involved are adjacent, with an opening between them. Detective Gonzalez' and Investigator Walters' testimony is credited.

   6. On June 23, 2009, DOH Investigator Foy as well as Investigative Manager Charles Coates went to Respondent's office to serve a subpoena for patient records. The Investigators had arranged previously for an appointment with Respondent for 12 o'clock sharp. When they arrived for the appointment, there were

      approximately seven or eight people in the waiting area, but appeared to be no one working in the reception area.

   7. Within 15 minutes of the investigators' arrival, all but two or three of the people in the waiting room left the office without seeing Respondent. Despite having a noon appointment with Respondent, the investigators waited for approximately an hour to see her. During that entire time, no one appeared to be attending the reception area. It was not only unattended, but it appeared to the investigators that the area was in disarray. There were files stacked that appeared to be medical records in different areas on the counters, in no apparent order. The files were readily accessible to anyone seeking to look at them.

   8. Respondent finally appeared after the investigators had waited an hour. Once again, she appeared in a wheelchair with socks and no shoes. She attempted to conduct her interview with the DOH investigators in the patient waiting area in front of the remaining people waiting there. Mr. Coates advised her that the interview should be conducted in private, so the investigators and Respondent moved to the back of the building.

   9. During the interview, Dr. Sharpe confirmed that E.R.,

T.D. and S.D.T. (also referred to as D.T.) were her patients.

Mr. Coates presented her with a prescription dated March 3, 2009, for 480 pills of Oxycontin 15mg, referenced in finding of fact

1. Dr. Sharpe confirmed that D.T. was her patient, and that the

   prescription bore her signature, but that she "must have been out of it" when she wrote the prescription. She volunteered that she had been sick for weeks at a time.

   1. Subsequent to the June 23, 2009, interview, Investigator Foy contacted Dr. Sharpe about the records that were the subject of the subpoena. Dr. Sharpe indicated that she did not have time to get them and she wanted to get a volunteer to get the copies to DOH. She also told the investigator that one of her prescription pads was missing prescriptions from the middle of the pad. Dr. Sharpe apparently believed the prescriptions were taken by a volunteer, whom she "fired" by not treating the volunteer any longer.

   2. No evidence was presented to indicate that any of the subpoenaed records were ever supplied to the Department.

   3. On September 18, 2009, Dr. Sharpe was evaluated by George M. Joseph, M.D., a board certified psychiatrist.

      Dr. Joseph has been licensed in Florida since 1970, and has performed evaluations for the Professionals Resource Network (PRN) since the mid '80's.

   4. In addition to interviewing Dr. Sharpe for 90 minutes, Dr. Joseph administered the MMPI and reviewed investigative materials supplied by the Department and chronicled in the collateral history section of Dr. Joseph's report to the Department (See Petitioner's Exhibit 10).

   5. Dr. Sharpe related to Dr. Joseph that her general health was affected when 17 years ago she received vancomycin, a very powerful antibiotic, for an infection. The medicine caused renal failure and neurotoxicity, which in turn caused severe vertigo from which she still suffers. As a result, she is confined to a wheelchair. Dr. Sharpe also indicated to

      Dr. Joseph that she self-prescribes medicine for a pituitary tumor, and for hypothyroidism.

   6. During his interview with Dr. Sharpe, they talked about several topics, including her reaction to Detective Gonzales and the DOH investigation; her prescribing practices; and her office management style. With respect to her prescribing practices,

      Dr. Sharpe acknowledged treating a number of patients who suffer from severe pain, and indicated that "I have to believe my patient," regarding their reporting of pain. She also stated her belief that other physicians were not giving patients the medication they needed, and that she did, enabling patients to have a better quality of life. She acknowledged that she is not a pain management specialist. Dr. Joseph also noted that in the interview, Dr. Sharpe's thought process was circumstantial and digressive, with reference to previous life experiences as opposed to analyzing a question and discussing it directly.

   7. Dr. Joseph opined that Dr. Sharpe has an Axis II, personality disorder not otherwise specified (NOS), with marked characteristics of hyperthymia. A personality disorder, NOS, is

      recognized in the Diagnostic and Statistical Manual IV (DSM-IV) under diagnostic number 301.9.

   8. Hyperthymia is a personality temperament that would be characterized by a prominently upbeat mood, and a person who admits to very few, if any problems. A person who is hyperthymic is overly enthusiastic and upbeat, exuberant, grandiose and talkative. Such a person minimizes the effect of any negative situations and always try to portray herself in a positive light, believing she can "trump" the applicable rules with rules they fashion themselves. A personality temperament becomes indicative of a personality disorder where, as here, it has some affect on a person's functioning occupationally or socially, or both.

   9. Dr. Joseph opined that Dr Sharpe is unable to practice with reasonable skill and safety. He reached this ultimate opinion because, in his view, her personality disorder creates a tendency on her part to form judgments about prescribing to pain patients that can be idiosyncratic and excessive, and impairs her clinical judgment. The impairment of her clinical judgment impairs her ability to discern legitimate patients from patients who are manipulating physicians for medications. This represents a danger to patients by the prescription of excessive amounts of medication with possible misuse by those receiving them.

   10. Dr. Joseph also opined that Dr. Sharpe's personality disorder impairs her ability to maintain adequate medical records for her patients, and to maintain an orderly practice. He based

       this opinion on her failure to maintain boundaries with her patients, as illustrated by her using patients as "volunteers" in her office, and her inability to retrieve records when requested. These failures present, in his view, a danger to patients because of the failure to maintain adequate records for providing a history of medications prescribed, any side effects to those medications, and the patient's ongoing treatment. With pain management patients, the need for accurate and available medical records is especially important. In other words, Respondent displayed a cavalier attitude with respect to both prescribing pain medication and recordkeeping, in areas that the medical profession generally regards as very serious, controlled and organized.

   11. The Respondent did not present any expert testimony to rebut Dr. Joseph's view. Dr. Joseph's opinion that Respondent cannot practice with reasonable skill and safety at this time is accepted.

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2009).

   13. The Department is seeking to take action against Respondent's license to practice medicine. Accordingly, it bears the burden of proving its allegations by clear and convincing

       evidence. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern, Inc., 670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292

       (Fla. 1987).

       
       

   14. Clear 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 testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

       
       

       In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

       
       

       v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

       
       

   15. The Amended Administrative Complaint alleges that Respondent violated Section 458.331(1)(s), Florida Statutes, and 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. The Department alleges that Respondent's inability to practice with reasonable skill and safety as demonstrated by the following:

       1. Respondent's admission that "must have been out of it" when she prescribed 480 pills of oxycodone 15mg;

       2. Respondent's continuing statements that she is ill;

       3. Respondent's confused demeanor;

       4. Respondent's inability to locate medical charts;

       5. Respondent's inability to prevent theft of her prescription pad;

       6. Respondent's inability to explain why she prescribed Oxycontin to an individual she had no record of examining; and/or

       7. By reason of her personality disorder, which impairs her ability to safely practice medicine based on poor judgment regarding prescribing of narcotic analgesics.

          
          

   16. While most violations of Section 458.331, Florida Statutes, are considered disciplinary, penal violations, a violation of Section 458.331(1)(s) is not. As stated by the Supreme Court of Florida,

       Section 458.331(1)(s) does not deal with an issue of guilt or innocence. Misconduct and subsequent penalties for that misconduct are not at issue under the statute. What is at issue under the statute is whether a physician is fit to practice medicine with reasonable skill and safety.

       
       

       Boedy v. Department of Professional Regulation, 463 So. 2d 215, 217 (Fla. 1985).

   17. The Department is not obligated to demonstrate that patient harm has already occurred before finding that a physician is unable to practice with reasonable skill and safety by virtue of a mental condition. Major v. Department of Professional Regulation, 531 So. 2d 411 (Fla. 3d DCA 1988). However, it is not enough that a physician's ability to practice be simply impaired to find a violation of Section 458.311(1)(s). In Lortz v. Department of Health, 700 So. 2d 383 (Fla. 1st DCA 1997), the First District held that "[n]ot everything that impairs or interferes with a practitioner's ability renders safe and

       skillful practice impossible or even unlikely."

       
       

   18. The focus in this case is not whether Respondent is physically or mentally capable of practicing medicine, but whether she can practice with reasonable skill and safety. The Department has proven that she cannot by clear and convincing evidence.

   19. The undersigned has carefully considered a variety of factors in determining that Respondent is unable to practice with reasonable skill and safety. First, it is important to note that Section 458.331(1)(s), Florida Statutes, does not require the establishment of an Axis I mental illness that makes one unable to practice medicine with reasonable skill and safety. It requires a finding that the physician suffer from a mental condition. Such a condition has been demonstrated here.

   20. Second, with every encounter by law enforcement and DOH from November 2008 through late April 2009, Respondent pointed to her illness as a basis for not providing records or information. She repeatedly claimed that she was unable to locate patient records because of a lack of staff or because of her illness.

       In fact, the record leads to the conclusion that she never provided the requested patient records despite receiving a subpoena to do so. However, during this same period of time she continued to see patients and to prescribe large amounts of pain medication to them.

   21. Respondent confirmed that G.L. was a patient and that she wrote a prescription for him until his records were requested. It was only after authorities repeatedly requested his file that she reported that in fact, she had never seen him as a patient. Her change in position is inconsistent with the rest of the evidence presented. She never explained how she could have written a prescription for him if she had never seen him, but she also never denied writing the prescription. A more likely scenario is that she saw him, wrote a prescription for Oxycontin in response to his request for pain killers, but either never created a file for him or the file created was inaccessible due to the disorganization in her office.

   22. Indeed, her behavior is consistent with the opinion of Dr. Joseph, in minimizing her own shortcomings and blaming any apparent problems in her practice on the actions of others, whether it be Detective Gonzales or her lack of staff. The use of volunteers is problematic in that there seemed to be no recognition of confidentiality issues for patient records, and no structure to ensure consistent patient care. The lack of organization also allows Respondent to attempt to avoid accountability with respect to her patients.

   23. Most troubling, however, is her unwillingness to filter the claims of those seeking pain killers, insisting that she must simply believe her patients when they request narcotic pain killers from her. Dr. Joseph opines that her personality

       disorder makes her especially vulnerable to exploitation from drug-seeking individuals. Her willingness to provide large amounts of narcotics to people because "she must believe her patients" places those patients, and those who may eventually use those drugs, at significant risk for their safety. While this case does not present the traditional allegations regarding violations of Section 458.331(1)(s), the undersigned is left with the firm conviction that Respondent is unable to practice medicine with reasonable skill and safety at this time without some sort of supervision or monitoring.

   24. The Department has provided copies of the Disciplinary Guidelines in effect at all times during the allegations in the Amended Administrative Complaint. Florida Administrative Code Rule 64B8-8.001 currently provides that the appropriate penalty for a first time violation of Section 458.331(1)(s) is a penalty from probation, 50-to-100 hours of community service, to denial or indefinite suspension until the licensee is able to demonstrate ability to practice with reasonable skill and safety followed by probation, and an administrative fine from $1,000 to

       $5,000. In making its recommendation regarding the appropriate penalty, the Department makes the following statement:

       Respondent's inability to practice with reasonable skill and safety to patients is the result of a mental condition that has not been shown to be linked to the use of alcohol, drugs, narcotics, chemicals, or any other type of material. Respondent did not intend any harm to her patients and did not act in such a way for personal gain. She

       truly believed she was helping her patients. However, Respondent's continued practice of medicine poses a danger to her patients and the public at this time.

       
       

       Accordingly, the Department recommended a suspension with a fine of $1,000.00.

   25. The imposition of a fine would serve no purpose in this case. As noted by the Department, Respondent has not acted for personal gain. In all other respects the recommendation of the Department is appropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED that the Florida Board of Medicine enter a final order finding that Respondent is unable to practice with reasonable skill and safety by virtue of a mental condition, as proscribed in Section 458.331(1)(s), Florida Statutes. It is further recommended that Respondent's license to practice medicine be suspended, until such time as she demonstrates that she can practice with reasonable skill and safety.

DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2009.

ENDNOTES

1/ All references to the Florida Statutes are to the 2008 version unless otherwise indicated. There were no amendments to Section 458.331, Florida Statutes, in 2009.

2/ The letter from Dr. Sharpe is lengthy. However, her response is telling in terms of her attitude regarding these proceedings and is consistent with Dr. Joseph's opinion regarding her ability to practice with reasonable skill and safety.

COPIES FURNISHED:

T. A. Delegal, Esquire Delegal Law Offices, P.A.

424 East Monroe Street Jacksonville, Florida 32202

Thomas J. Morton, Esquire Diane K. Kiesling, Esquire Department of Health

4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399

R. S. Power, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703

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: 09-005341PL

Orders for Case No: 09-005341PL