V

STATE OF FLORIDA

DEPARTMENT OF HEALTH

DEPARTMENT OF HEALTH,

PETITIONER,

v. CASE NO. 2()10-06419

STEVEN BARRY BROWN, M.D.,

RESPONDENT,

ADMINISTRATIVE COMPLA:tNlf

COMES NOW, Petitioner, Department of Health (hereinafte referred

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to as "Department"), by and through its undersigned counsel, andl files this

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  Administrative Complaint before the Board of M dicine agtinst the

  
  

  Respondent, STEVEN BARRY BROWN, M.D., and in support thereo1 alleges:

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  1. Petitioner is the state agency charged ' with regul ting the

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     practice of medicine pursuant to Section 20.43, Flori a Statutes;'! Chapter

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     456, Florida Statutes; and Chapter 458, Florida Statute$.

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  2. At all times material to this Complaint,. Responde t was a

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     licensed physician within the State of Florida, having been issue license

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     number ME 60483. '

     
     

     
     

  3. Responvdent's address of record is 21W09 N.E.

     1st ,

     
     

     Avenue,

     
     

     Wilton Manors, Florida 33305.

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  4. At all times material to this complaint Respondent was not

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     Board Certified in Pain Management, or in any American Medea! Board specialty.

  5. At all times material to this complaint, · Responden practiced

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     pain management at his office located at 605 East Atlantic oulevard,

     
     

     Pompano Beach, .Florida 33060.

     
     

  6. At all times material to this complaint,

     
     

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     Respon ent was

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     registered as a dispensing practitioner in the State ci>f Florida p rsuant to

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     Section 465.0276, Florida Statutes. !

     
     

  7. Registration as a dispensing practitioner enables a p ysician to

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     order and dispense prescription drugs, including, but not lilmited to,

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     Schedule II, Schedule III, Schedule IV and Schedule V , ontrolled

     
     

     .substances as designated in Chapter 893, Florida Statutes.

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  8. The types of controlled substances in question that were

     
     

     prescribed by Respondent are listed as follows:

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     1. Oxycodone is a Schedule II controlled substancf listed in

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        Chapter 893, Florida Statutes, which is indicated for the manag ment of

        
        

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        moderate to severe pain when a continuous, around-t:he clock anlalgesic is

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        needed for an extended period of time. Oxycodone hflS a high P1tential for

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        abuse and has a currently accepted, but severely restricted, medlical use in

        
        

        treatment in the United States. Abuse of Oxycodone may lead to severe

        
        

        
        

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        physical and psychological dependence, and is marketed co monly as

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        "OxyContin," "OxyIR," "Percocet," "Percodan," "Endocet," "Roficodone,"

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        and "Tylox". [

     2. Methadone is a legend drug as,. defined br Section

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        465.003(7), Florida Statutes, and is a narcotic Stihedule II rontrolled

        
        

        substance listed in, Chapter 893.03(2), Florida Statutes. Met adone is

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        indicated for the relief of severe pain, for detoxificatipn treatment in cases

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        of narcot.ic addiction, and for the !Ernporary rnalnttnance ,tment of

        
        

        narcotic addiction. Methadone can produce drug,',·. dependen of the

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        morphine type. Psychological dependence, physical depender,ce, and tolerance may develop upon re eated administration of methado e, and is

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        marketed commonly as "Methadose" and "Roxane." I

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     3. Endocet contains a combination of

        Oxycod ne

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        and

        acetaminophen and is used to treat pain. According Section 8 3.03(2),

        
        

        Florida Statutes, Endocet is a Schedule III controlled substance that has

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        potential for abuse and has a currently accepted but restricted me ical use

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        in treatment in the United States, and abuse of ndocet miy lead to

        
        

        psychological or physical dependence,

     4. Amphetamine is a stimulant. According tp Section

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        893.03(2), Florida Statute, it is a Schedule II controlled substant that has

        a high potential for abuse and has a currently accepted buf severely restricted medical use in treatment in the United States, and! abuse of

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        amphetamine may lead to severe psychological or physical depen ence.

        
        

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     5. Ketorolac Tromethamine is indicate for the short-term, less than 5 day, management of moderately se\l(ere acute pain that requires analgesia at the opioid level, usually in a postoperati e setting.

        - Therapy should always be initiated with IV or IM dosing of I Ketorolac

        
        

        Tromethamine, and tablets should be used only as continuation t eatment,

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        if necessary. i

        
        

     6. Lidocaine is a common loc I anesth tic and

        
        

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        antiarrhythmic drug. Lidocaine is used topically to relieve itchin9, burning and pain from skin inflammations, injected as a dental anestheti or as a

        · local anesthetic for minor surgery.

        
        

        COMMON FACTUAL ALLEGATIONSitND

        · FACTS SPECIFIC TO PATIENT C_

        
        

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  9. During the week of March 22, 2010, 1a confidential source

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     (patient CS) informed the Broward County Sheriff's Office (BCS¢>) and the

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     U.S. Drug Enforcement Administration, Miami Field Divisio , Tactical

     
     

     Diversion Squad (DEA) that she had been involved in illegal dryg dealings

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     with Respondent. '1

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  10. Patient CS reported that during the last fpur (4) years she had been a "pain ma·nagement" patient of Respondents, RespondJnt initially

      treated patient CS with only Methadone.

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  11. Patient CS reported that approximately two (2) year$ ago, she

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      agreed to enter into an unlawful arrangement proposed by Respordent. .

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  12. The arrangement was for Respondent to pres ribe on hundred

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(160)Oxycodone (30mg) tablets every month for patient CS (in ddition to

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the Methadone that Respondent had been prescribing), r which

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Respondent would either advance patient CS the mamey, or reim urse her

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fully. In exchange, patient CS would have the pr¢scription filled at a

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separate pharmacy, and deliver at least one-half (1/2/).of the O ycodone

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tablets to Respondent for his personal use, !

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13, Patient CS reported that to avoid raising suspicions ofr provide

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evidence that Respondent was prescribing Methadone and Oxycfone, he

J:\PSU\Medicol\Saundre W\BROWN ,, AC 5,17.10 corrections.doc 5

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did not want to dispense these drugs at his clinic, so he instruct d patient CS to fill the prescriptions at Publix, and other pharmt:1des.

1. Patient CS reported that during the next two 2) years

   Respondent prescribed and paid for her to fill as many as on hundred eighty (180) Oxycodone (30mg) tablets, every monttt. Respond nt either gave patient cs cash to pay for the prescriptions or he gave hier money

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   after the prescriptions were filled in exchange for the Oxycodo e tablets.

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   P.atient cs continued to provide Respondent with at le st half of t e tablets

   that he prescribed, and she filled, every month. \

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2. On or about March 24, 2010, patient CS· repo ed that

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   Respondent wrote her a prescription for one h4ndred eig ty (180)

   
   

   Oxycodone (30mg) tablets, and she filled the prescription. However,

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   according to patient CS, in this instance, she did not give any of t e tablets

   
   

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   to Respondent. Patient CS reported that she wished to 1end the

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   arrangement, so she contacted law enforcement. I

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3. On or about March 26, 2010, patient C.• S receive, several cellular telephone text messages from Respondent's telephone inquiring

   about the delivery of Oxycodone. Respondent's first message wa$, "So do

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   you Hun. That is why I made you take off today, to be with (pa ient CS's

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   child), not work. Get to Publix?" Patient CS responded that she Ii had not

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   filled the prescription because she had to first cash a check to p y for the

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   prescription. Respondent replied "What check are you waiting fot and why

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   don't you let me loan/advance."

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4. On or about March 27, 2010, patient CS received [a cellular

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telephone text message from Respondent's telephone !again inquiting about the delivery of Oxycodone. The message was, "Ye:ii or No answer ONLY:

Are you getting Rx filled today?"

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18.. A BCSO detective and DEA agent arranged for pati nt CS to place a recorded telephone call to Respondent. :fatient CS placed a recorded telephone call to Responde, nt and mcK: jI le arrange ents to

exchange the oxycodone tablets at a Wendy's restauraint parking lpt.

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1. Before patient CS departed to meet With Resp ndent to complete the transaction, the DEA prepared an unlabeled medic ne bottle

   containing fifty (50) Oxycodone tablets (30 mg), and provided it to patient

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   CS for use in the transaction. The bottle was placed: in patient ts's right

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   front pocket.

   
   

2. As planned, Respondent arrived at the Wendy's r staurant

   parking. lot, were he was driving a silver BMW convertible, wit the top

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   down. Patient CS w• alked over to respondent's vehi.c. l , and engI Respondent in conversation. i

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   ged the

   
   

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3. During the brief conversation, Respondent retrieved[ a plastic

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   bottle containing "Oxydose" (liquid Oxycodone) from the center donsole of

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     his vehicle and ingested some of the contents. Law enforceme t officers

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     also observed Respondent place an unknown object in his mouth,f as he sat

     behind the wheel of his vehicle and continued his conversation with patient

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     cs.

     
     

4. Law enforcement observed patient CS emove the

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   unlabeled bottle of fifty (50) Oxycodone tablets from her right fromt pocket,

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   and then. display it to Respondent. Respondent directed pati nt CS to

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   "drop it right here' as he motioned towards his lap; Patient cs] followed

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   Respondent's instructions, and delivered the bottle to Respondent!

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5. In exchange for the bottle containing fifty (50) O ycodone

   
   

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   tablets, law enforcement officers observed Respond nt hand d liver an

   unknown object to patient CS, which was later identified as eighj:y dollars

   
   

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   ($80.00) in U.S. currency.

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6. The law enforcement officers then followe¢:! patient C back to

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   their office to debrief her, and discuss the transaction. Patient CS advised

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   law enforcement that she believed that Respondent appeare to be

   
   

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   impaired or under the influence, based upon her observations of

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   Respondent while he sat in his vehicle. The officers request1d BCSO

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   detectives to make contact with Respondent to determine wheth r he was

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   physically well, and would be able to drive safely.

7. Two detectives arrived at the Wendy's restaurant p+rking lot,

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     and observed the Respondent still sitting in his vehicle. As the 8etectives

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     approached the vehicle, they noticed the Respondent in actual Bossession

     
     

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     of an oxycodone tablet, and the unlabeled prescripti n bottle th t was still

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     in his lap. Upon detecting the detectives' presence, R.espondent fttempted

     to hide the unlabeled bottle, and stated the Oxycodone tablets b longed to

     
     

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     his cousin "Ester Glick."

     
     

8. The detectives conducted a search of Res ondent's v¢hicle c!lnd

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   found, in addition to the unlabeled bottle containing fqrty-eight (18) tablets

   of Oxycodone, a prescription bottled labeled to Ester Glick

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   ' ontaining

   
   

   ninety (90) Oxycodone tablets (30 mg) prescribed y Respond nt. The

   
   

   prescription bottle containe.d forty-eight (48) OxyCQdone tabl s. The

   
   

   detectives also found a medicine bottle with the label torn ff which

   contained Oxydose, a liquid form of oxycodone, and a syringe. I addition

   to the above, the search of Respondent's car revealed one

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   pottle of

   
   

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   Lidocaine and four bottles of Ketorolac Tromethamine. · i

9. Following the completion of the search of Respondent'l car, the

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   detectives placed Respondent under arrest for traffickin.'g in Oxycodone.

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   · J:\PSU\Medrcal\Saundre W\BROWN -AC 5.17.10 corrections.doc 9

   
   

   
   

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10. On or about April 28, 2010, a Department investigatolr went to

    
    

    Respondent's office located 605 East Atlantic Boulevc1rd, Pompa o Beach,

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    Florida 33060 to serve a subpoena to examine his. required dlispens1ing

    practitioner logs. T11e investigator spoke with JG, th 'office manf ger, who

    stated that he was a patient of Respondent. Patient.• JG signedf release

    for his medical records to be released to the Department. I

    
    

11. Respondent provided the dispensing 11'.)gs, and investigator permission to review all patient record , including patient CS, patient JG, and patient Ju.G, the wife of patient JG..

12. However, it Vl(as discovered that Respondent failed to

    ave the those of

    
    

    ave any

    
    

    medical records for patients CS, JG, or Ju.G, or Re pondent r fused to

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    make the medical records available to the Departm nt and in farticular

    
    

    there were no records showing that Respondent had' complied ith Rule 64B8-9.013(3)(a), Florida Administrative Code (F.A.C.).

13. While serving the subpoena at Respondenfs office, tre BCSO observed Respondent in the parking lot of his medical practice lacing a small round white object into his mouth and swallowing. Th deputy approached and found a pill bottle containing twenty-five (25) ttblets of

Oxycodone (30 mg) in Respondent's possession. Respondent w s again

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J:\PSU\Medical\Saundre W\BROWN • AC 5.17.10 corrections.doc 0

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arrested, charged with felony possession of Oxycodone, and late released

on bail.

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. PACTS SPECIFIC TO PATIENT J

32..

On or. about April 28, 2010, the Department investi

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ator did

review the prescription logs for patient JG. The prescription log showed,

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in relevant part, that Respondent prescribed the following for pati1mt JG:

Oxycodone Oxyc::odone Methadone Endoceti Amphe' amine

30ma 1Sma

12/09/2008 7/18/08 8/12/08 11/24/08: 9/26 08

30 mg 15 mg 10mg 10-325 rn 30 I ng

195 tablets 90 tablets 180 tablets 120 tablets 30 ta ilets 1/06/09 8/26/08 3/13/09 4/08/09•"• 1111: /08

30 mg 15 mg 10mg 10-325 mj 30 r ng

195 tablets 90 tablets 120 tablets 120 tablets 60 ta 1lets 7/24/09 1/02/09 12/0 /08

30 mg 15mg 30 I 1g

180 tablets 180 tablets . 60 ta ,lets

1/39/09 1/06 09

1s,mg 30 r 1g

120 tablets 60 tal lets

3/13/09 3/13 09

15mg . 30 r lQ

195 tablets 60 tat lets

7/24/08 7/24, 09

15.. mg 30 n g

90 tablets 60 tat lets

8/10/09 · 8/10/09 I

30 mg 15 mg

180 tablets 90 tablets ...

.

9/28/09 10/08/09 10/19 ·og

30 mg 15 mg 30 n g

180 tablets 120 tablets 60 tab ets

J:\PSU\Medical\Saundre W\BROWN -'AC 5.17.10 corrections.doc 11

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1. Respondent presclibed, dispensed adn,lnistered, iixed, or

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   otherwise preparing a legend drug, including any controlled subs ance, to-

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   wit: nine hundred thirty (930) Oxycodone tablets ( 0mg), nin hundred

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   seventy-five (975) Oxycodone tablets (15mg), tltlree hundr d (300)

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   Methadone tablets (10mg), two hundred forty (240) Endocet tatlets (10·

   
   

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   325mg), and three hundred ninety (390) amphetamime tablets ( 0mg) for

   
   

   patient JG..

   
   

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   . FACTS SPECIFIC TO PATIENT l -G I .

   
   

2. On or about April 28,. 2010, the Department investigator did

   
   

   review the prescription logs for patient Ju.G. The prescription log showed,

   
   

   Oxycodone 30mg .	Oxycodone 1$ma	Methadone	Endocet: ;		Amphe	mine
   8/14/08 30 mg 180 tablets	5/15/09 15 mg 90 tablets		12/23/081 10·325 m 90 tablets		1/16 30 r 60 tal	09 ng lets
   9/12/08 30 mg 210 tablets	8/19/09 15mg 120 tablets		1/30/09 ;. 10·325 mg 90 table$		6/11 30 r 60 tal	09 ,g lets
   10/14/08 30 mg	9/23/09 15 mg		;.		11/H 30 r	/09 IQ
   195 tablets	180 tablets		;		60 tat	lets
   11/24/08 30 mg . 195 tablets	10/26/09 15 mg 120 tablets		.		1/5/ 30 r 60 tat	,0 g lets	.
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   J:\PSU\Medical\Saundre W\BROWN		AC 5,17,10 corrections.doc	i; 'i

   in relevant part, that Respondent prescribed the follo ing for path nt Ju.G:

   
   

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   Oxycodone Oxytodone Methadone Endocet Arfiphe tamlne 30ma 15ma

   1/16/09 12/11/09 ' 2/11 /10

   30 mg

   15 mg

   30 mg

   180 tablets 4/24/09

   120tablets 1/11/10

   60 ta Jlets

   4/1! /10

   30 mg

   1 mg

   30 ng

   180 tablets 5/15/09

   30 mg

   180 tablets 6/11/09

   30 mg

   180 tablets

   7/14/09

   30 mg

   180 tablets 8/19/09

   ·30 mg

   195 tablets

   9/14/09

   30 mg

   150tablets 2/16/10

   .15 mg

   60 tablets 3/10/10

   15mg

   150 tablets

   4/15/10

   15 mg

   60 tablets

   
   

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   60 ta Jlets

   
   

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   195 tablets

   10/19/09

   30 mg

   ' 180 tablets

   11/14/09

   30 mg

   180 tablets 1/5/10 30 mg

   180 tablets

   1/25/10

   30 mg

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   180 tablets I '

   2/20/10

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   30 mg II

   180 tablets I

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   Oxycodone 30ma	Oxy done 15ma	Methadone	Endocet. .	Amphe mine
   3/26/10 30 mg 180 tablets	.		''

   
   

3. Respondent prescribed, dispensed admihistered, nfiixed, or

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   otherwise preparing a legend drug, including any con rolled subs ance, to-

   
   

   wit: three thousand one hundred fifty (3,150) Oxyco one tablet (30mg),

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   one thousand fifty (1,050) Oxycodone tablets (1Smg),i one hundr d eighty

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   (180) Endocet tablets (10-325mg), and three hundred sir

   
   

   amphetamine tablets (30mg) to patient Ju.G. .

   SPECIFIC ALLEGATIONS AS TO PATi,NT CS

   COUNT I

   F.S. 458.331(1)(q) · I

   (360)

   
   

4. Petitioner realleges and incorporates paragraphs (1) th ough

   
   

   (31), as if fully set forth herein.

   
   

5. Section 458.331(1)(q), Florida Statutes (2009), su jects a

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   licensee to discipline by the Board of Medicine, inclU¢1ing suspe sion, for

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   prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, othe than in thb course of the physician's professional practice. For purposes· of this para raph, it

   shall be legally presumed that prescribing, dispensing, admi istering,

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   mixing, or otherwise preparing legend drugs, including all Fontrolled

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   substances, inappropriately or in excessive or inappropriate qu ntities is

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   not in the best interest of the patient and is not iin the cour e of the

   
   

   physician's professiorial practice, without regard to his ior his intent,

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6. Respondent's actions clearly constitute prescribing 04tside the

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   , practice of medicine. i

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7. Respondent

   
   

   otherwise prepared., a

   prescribed, dispensed, adrriiinistered, rtixed, or

   
   

   legend drug, other than imj: the court of his

   
   

   
   

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   professional practice, on or about March 22, 2010, iri one or m9re of the

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   following ways: 1

   
   

   1. By prescribing, dispensing, or ad inistering legend

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      drug, to-wit: Oxycodone, a controlled substance, to p ient in an fxcessive

      
      

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      amount, for an alleged pain condition; and/or

      
      

   2. by prescribing, dispensing, or adrtiinistering

      
      

      legend

      
      

      drug, to-wit: Oxycodone,

      ,a controlled substance , ito patient

      without

      
      

      recordi,ng the medical rationale or medical justificatibn for the tarcotics being prescribed. , •

8. Based on,· the foregoing, the Respondent ,ijas violated Section

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   458.33l(l)(q), Florida Statutes. (2009), by presqribing, dispensing,

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   administering, mixing, or otherwise preparing a legend ,drug, inclu ing any

   
   

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   controlled substance for patient other than in the course of the p ysician's

   
   

   professional practice, with no medical records to justify hy the

   
   

   
   

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   prescriptions were being written. ' I

   
   

   COUNT II

   section 4SS.331C1}Ctl

   
   

9. Petitioner realleges and incorporates para:1.graphs (l

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   through

   
   

   (31), as if fully set forth herein. •

   
   

10. Section 458.331(1)(t), Florida Statutes·• :(2009), sjbjects a

    
    

    doctor to discipline for committing medical malpr!fctice as d Section 456.50, Florida Statutes (2009).

11. Section 456.50, Florida Statutes (200 ), defines

    fined • in

    
    

    medical

    
    

    
    

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    malpractice as the failure to practice medicine in acco¢dance with the level of care, skill, and treatment recognized in general l w related to health care licensure.

12. The level of care, skill, and treatment is r,cognized. i general

    
    

    law related to health Care licensure means the standa of care sptcified in

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    Section 766.102, Florida Statutes (2009).

13. Section 766.102(1), Florida Statutes ( 009), defipes the standard of care to mean " ... [T]he prevailing proftssional stahdard of

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    care for a given health care provider shall be that level of care, kill, and

    
    

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    treatment which, in light of all relevant surroundi11g circumstf nces, is recognized as acceptable and appropriate by reasol'lably prudett similar health care providers ... " ·

14. Respondent failed to practice medicine wi h that leve of care,

    
    

    skill and treatment which is recognized by a reason bly prude t similar

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    physician as being acceptable under similar conditionr, and circujnstances

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    in the treatment of patient CS in one or more of the following way :

    1. By failing to maintain any medical records to justify why the prescriptions are being written, particularly in such hig,111 doses;

b, by failing ID clearly and legibley docum t the p4ibing of

controlled substances in compliance with applicable sta e or federal law;

1. by prescribing controlled substances in qu ntities and dosages

   
   

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   with the knowledge that patient was misusing the controlled substtnces;·

   
   

2. by une hically and illegally exploiting•. :the patiet's drug dependency as a means of getting patient to obtain controlled su stances for his personal illegitimate use;

3. by unethically and illegally misusinS . his pro essional

   . relationship as a physician with a patient to obtain cdntrolled su stances

   
   

   for his personal illegitimate use; I

   
   

   J:\PSU\Medical\Saundre W\BROWN -Ac 5.17.10 corrections.doc 17

   
   

   I

   i

   V iV I

4. by failing to act diligently in preventihg the divbrsion of controlled substances for illegitimate purposes, and aittually facili ating the diversion of controlled substances for illegitimate purp¢>ses;

5. by prescribing excessive and or inapJl)ropriate a ounts • of legend drugs, and, or controlled substances;

6. by.prescribing controlled substances in q antities an dosages

   that would cause abuse, misuse and addiction to contjplled subst nces;

7. by prescribing quantities and combinations of ontrolled substances that was excessive and dangerous, yeij failed to medically address the misuse and abuse of the prescribed contr lled substa ces;

j, by prescribing, dispensing, injecting, or:!,administeri g legend

drugs or any substance to a patient that was .. inappropria , in an

. . .

inappropriate manner, or in excessive or inappropriate qµantities;

k. by failing to prescribe, dispense, or dminister ontrolled substances including opioid analgesics, for a legitimate medical purpose

. I

that was supported by appropriate documentation iestablishin a valid medical need and treatment plan;

.: i,

I. . by failing to prescribe, order, administer, or dispense controlled substances for pain, based upon a legitimijte medical purpose,

l:\PSU\Medical\Saundre W\BROWNll AC S.1.7.10 correctlon5..doc 18

I

:: j:

I

V !

and based on accepted scientific knowledge of the ttreatment of pain or based on sound clinical grounds; •• I

1. by failing to document any discussions 1 irectiing · atient to

   I

   only receive prescriptions from one physician (i.e., Respondent)· and one

   pharmacy, where possible;

2. by failing to document any determinatiornj or make r1asonable attempts to determifl1e whether the patient is at high risk for mfdication abuse or have a history of substance abuse;

3. by failing to employ the use of a written1 iagreement between

   
   

   ' '

   physician and patient outlining patient responsibiliti , including, limited to:

   but riot

   1. Urine/serum medication levels screening iwhen requ

   2. Number and frequency of all prescriptiorM refills; and

   3. Reasons for which drug therapy may b discontin violation of agreement)?

      sted; ed (i.e.,

      
      

      !

4. by failing to put into practice a written tre tment. plan, or state objectives that will be used to determine treatment s ccess, such as pain

   relief and improved physical and psychosocial function;

5. by failing to direct tile patient to; submit

   ' '

   '

   screening/testing duririg treatment;

   
   

6. by failing to plan any diagnostic evi!luations o

   
   

   J:\PSU\Modical\Saund"' W\BROWN - At 5.17.10 corr@ctlons.doc

   '

   
   

   drug

   
   

   other

   
   

   19

   
   

   treatments;

   
   

7. by failing to recommend other treatm¢nt modalit es or a rehabilitation program based upon the etiology of the: pain and t e extent to which the pain was· associated with physic ! and ps hosocial impairment;

8. by failing to evaluate and document pati nt's progre s for the

   I

   
   

   purpose of determining whether continuation or mooification of therapy

   
   

   I

   should be considered;

   
   

9. by faUing to determine whether , :specialized testing, consultations for diagnosis and/or treatment were appr¢priate;

   .

10. by performing acts, or directing others tt$ perform a ts, and,

    '

    
    

    or making statements to hide and conceal, and cau e to be hi den and

    
    

    concealed, the misuse and abuse of the prescribed controlled subs ances.

    ''

11. by failing to fully assess the patient;

i '

1. by direct·•·ing patient to fill prescriptions at Y.•.•.arious p.h.a1macies;

2. by violating the standards for the use of cbntrolled su stances

, I

for pain control provi1 ded by the Board of Medicine iff Rule 64B8-$.013(3),

'

F.A.C.

, 47. Based on the foregoing, the Respondent • as violate Section 458.331(1)(t), Florida Statutes (2009), by committing l'lf)edical mal ractice.

J:\PSU\Medical\Saundr$ W\BROWN -.AC 5.17.10 corrections.doc 20

' j'

I

COUNT III  

Section 458.331(1)(nn).

1. Petitioner realleges and incorporates paIragraphs ( 1 through

   I

   (31), as if fully set forth herein. I

   ' '1

2. Section 4.58.331(1)(nn), Florida Statutes : .•.2009), prorides that

violating any provision of chapters 456 or 458, Fldrtida Statutef, or any rules adopted pursuant thereto, is grounds for discipli e by the Bf rd.

SO. Section 458.326, Florida Statutes ( 2009)1 authorized licensed

I

physicians to prescribe controlled substances under hei;lules II - V to a person for trl;:!atment of intractable pain, provided that the physi ian does

so in acrordance with that level of care, skill and treall\ient recog11zed by a

rea onable prude.n.t p.hysician under similar condition.s;·•.$nd circ.umsfances.

1. The State of Florida Board of Medicine prq!nulganed R le 64B8-

   ,: I

   9.013, Flotida Admi!nistrative Code (F.A.C.), Stand ds For th, Use of

   
   

   Controlled Substances For Treatment of Pain, with i. which Florida Law

   I

   required all licensed physicians to comply. I

   
   

   5.2. Rule 6488-9.013(3)(a), F.A.C., provides staridards,for t e use of

   
   

   controlled substances for pain control. Th'ose stand rds requir that. a complete medical hi tory and physical examination !. be condu

   : ,I

   documented in the medical record. The medical recdrtd should drcument

   
   

   I

   
   

   
   

   I

   ,,,

   J:\PSU\Medical\SaundreW\BROWN • C 5.17.lO corrections.doc

   ,,

   1:: !!;

   j;

   I. ;1;

   v

   the nature and intensity of the pain, current and pasti,treatments for pain,

   
   

   underlying or coexisting diseases or conditions, the ffect of th pain on

   . '

   physical and psycholbgical function, and history of sijbstance a use. The medical record also should · document the presente of one or more

   recognized medical indications for the use of a controllt\!d substal'lc .

   1. Respondent violated Rule 64B8-9.013(31)(a), F,.Ac 1., which outlines the standards for prescribing controlled substainces for pain control in one _or more of th following ways:

      1. By prescribing a legend. drug an , or a

         
         

         ;

         substance in the quantities and combinations without cond cting or

         '

         · documenting a complete medical patient;

         
         

         '

         history or physical - examinatio

         , I

         
         

         I

         of the

      2. by prescribing a legend drug and, or'tontrolled s without documenting one or more of the following:

         1. The nature'and Intensity of the patient's pairj;

         2. any current and, or past treatments for pain)

         Iii. any underlying or coexisting diseases or cori itions;

         bstance

         1. the effect ¢>f the pain on physical and psych logical func Ion;

         2. any history of substance abuse; ..

         a

         vi.. the presence of one or more recognized meqical indicati the use of controlled substance; and

         vii. any objectives that would be used to. dttermlne t atment success or indicate If any further diagnostic l$valuations r other t eatmen.ts are planned. ·

         
         

         . J:\PSU\Medical\Seundre W\BROW:.N, • AI C 5.17.10 corr ctions.doc

         !

         j.' i

         
         

   2. Based on the forgoing, Respondent viol ted 458.3 Florida Statutes (2009), by violating any provision of !chapters 4

      l(l)(nn), 6 or 458,

      Florida Statutes, or' any rules adopted pursuant thereto, spec fically by

      
      

      . violating Rule 64B8-9.013(3)(a), F.A.C.

      COUNT IV

      Section 458.331(1)(m) I

      
      

   3. Petitione,r realleges and incorporates pa,-agraphs (·1 through (31), as if fully set fJrth herein. I

   4. Section A58.331(l)(m), Florida Statutes '.{2009), protides that

      
      

      failing to keep legible medical records that justify th course of reatment of the patient, inclu ing, but not limited to, patient Histories; ex mination results; test results; records of drugs prescri ed, dispe sed,· or administered; and reports of consultations and hospitillizations, c nstitutes grounds for disciplinary action by the Board of MediCilJ ·

   5. Respondent failed to keep legible medical!records just fying t:he

      
      

      course of treatment for patient in one or more of the ffbllowirig wa s:

      • ', I

      
      

      1. By Jailing to keep legible medical r:El!cords reco ding the reasons for prescribing the aforementioned medica!pns for pafient CS; and/or

         
         

         . J:\PSU\Medical\Saundte W\BROWN ·iAC 5,17.10 corrections.dee 23

         V ',i,jj

      2. by Jailing to keep medical records hich legibly recorded the patient history, examination results, test resul!ljs, drugs p escribed, dispensed or administered for patient; and/or

         '

         . c. by failing to keep medical record which jus ified the

         '

         
         

         course of treatment for patient; and/or '•· · I

         d. by failing to keep legible medical rerrds that idrntify tt,e

         licensed physician or the physician extender and su rvising ph sician by

         ,'. i

         name and professional title who is or are respd sible for ndering,

         :\ j,

         ordering, supervising, or billing for each diagnostic otitreatment rocedure

         
         

         and that justify the course of treatment of patient.

         
         

         e, by failing to keep medical records .in: ompliance ith Rule 64B8 9.013(3)(a), F.A.C.

   6. Based o the foregoing, the Respondent has violater Section 458.331(1)(m), Florida Statutes (2009).

      G

      
      

      COUNTY

      Section 458,331(1)(q)

      
      

   7. Petitioner realleges and incorporates pa i!lgraphs (1) through

      
      

      · (37), as If fully set fOrth herein.

      
      

      J:\PSU\Medlcal\Saundre W\BROWN, AC 5.17.10 corrections.doc 24

      
      

      .V ij,J

   8. Section 458.331(1)(q), Florida Statutes: (2009), s bjects a licensee to discipline by the Board of Medicine, ind1:1ding susp nsion, for

      prescribing, dispensing, administering, mixing, or 6therwise p paring a

      ' ' '

      legend drug, includiing any controlled substance, oth r than in e course

      ,,

      of the physician's ptofessional practice. For purpOSEIS of this pa agraph, it

      ; 1, '

      
      

      shall be legally p esumed that prescribing, disPe!ising, administering,

      mixing, or otherwise preparing legend drugs, inqluding all substances, inapprdpriately or in excessive or inap ropriate qu ntities is

      in

      : !

      
      

      not in the best interest of the patient and is not ; the cou e of the

      1: ' : '

      I

      
      

      physician's professiohal practice, without regard to hi$ for his inten .

      
      

   9. Respondent's actions clearly constitute prescribing o tside the

      
      

      practice ofmedicir,e,

      
      

      ( i'•

      
      

      ) 1; '

   10. Respondent prescribed, dispensed, adnpjnisteted, ixed, : or

       ,: !: ' ' ,'

       otherwise . prepared a legend drug, other than im: the cour e of his

       professional practlce, on the dates contained therein, Jn one or m re of the following ways:

       1. By .! prescribing, dispensing, or ad#inistering legend drug, to-wit: Oxycodone, a controlled substance, to patients JG nd Ju.G

          inappropriately and/or in an excessive amount, f:cbr an. alle ed pain condition; and/or

          
          

          J:\PSU\Medical\Saundre W\BROWN -;AC 5.17.10 corrections.doc

          ii,

          'I

          :·: 25

          1,1

          
          

       2. by prescribing, dispensing, or administering a legend

          
          

          drug, to•wit: Oxycodone, a controlled substance to· jpatients JG and Ju.G

          '

          
          

          . .. I

          without re.cording t.he medical rationale or medicc1t justificati9n for the

          narcotics being prescribed; and/or I

       3. by prescribing, di5;pensing, or administering a controlled

          , substance to·wit: amphetamine, to patients JG and! Ju.G inap ropriately and/or ih an excessive amount, for an alleged pain condition; and or

          . '' ·1

       4. by prescribing, dispensing, or adm!i istering a controlled substance, to·wit: amphetamine, to patients JG and jµ,G without recording

          ·· the medical rationale or medical justification for: the narco ics being prescribed; and/or . .

       5. by prescribing, dispensing, or administering a I ontroliled substance to·wit:· Endocet, to patients JG and Ju.G imappropria ly and/or

          in an excessive amoant, for an alleged pain condition; 1and/or

       6. by ·• prescribing, dispensing, or admjTistering af

          I

          
          

          i

          ontrolled

          
          

          substance, to·wit: Etidocet, to patients JG and Ju.G \IVithout rec9rding the

          . I

          medical rationale or medical justification for the narcofics being ptescribed;

          t

          and/or I

          
          

          I

       7. by ·. prescribing, dispensing, or adr,fiinistering legend

          
          

          drug, to-wit: MetMadone, a controlled substan¢e, to pa ient JG

          
          

          l:\PSU\Medical\5aund,... W\SR.OWN AC 5.17.10 corrections.doc 26

          
          

          inappropriately and/or· in an excessive amount, for an a,II ged pain

          
          

          condition; and/or

          
          

          ; I

          
          

       8. by prescribing, dispensing, or agflinistering

          ' '.:: '

          qi J

          . •• Ii .

          drug, topwit: Methadone, a controlled substance patient

          
          

          a legend without

          recording the medical rationale or medical justificaijion for the narcotics

          
          

          being prescribed.

          
          

   11. Based on the foregoing, the Respondenti: has violatid Section 458.331(1)(q), lorida Statutes (2009), by prJ cribing, djspensihg, administering, mixing, or otherwise,preparing a legemcf drug, inclrding any

controlled substance, for patient other than in the coyrse of the 9hysician's

, I

prescriptions were being written.

COUNT VI

Section 458.331Cl)Ctl

''

. 64. Petitionet realleges and incorporate5; paragraphs (1

. ' ! '

(37), and paragraph ·(62) through (63), as if fully setl rth herei!n.

I, I,

through

1. Section lt58.331(1)(t), Florida Statutes: i(2009), subjects a

   
   

   
   

   I,!

   doctor to discipline ,· for committing medical malpr,!=l;ice as d Section 456.50, Florida Statutes (2009).

   fined . in

   
   

   l, \PSU\Medical\Saundre W\BROW,N • ifC 5.!7,l O corrections.doc

   , '< I

   
   

   Ii

   ' [I

   ' I

   I:

   ;27

   Mar 2 2011 16:06 P.32

   
   

2. Section 456.50, Florida Statutes (20Q9), define

   ' ,'

   malpractice as the failure to practice medicine in acc:brdance wi

   medical the level

   ,

   of care, skill, and treatment recognized in genera[ !law related to health care licensure.

3. 
   

   The lev!:!1 of care, skill, and treatment is [irecognized

   \. ti, ' '

   ' ,,

   in general

   
   

   law related to health care licensure· means the stand rd of care Section 766.102, Flprida Statutes (2009).

4. Section 766.102(1), Florida Statutes [(2009), d

   pecified in

   
   

   fines the

   
   

   standard of care td mean " ... [T]he prevailing p tfessi9nal • standar¢1 of

   care for a given health care provider shall be that ijvel of care) skill, and

   ''

   treatment which, in light of all relevant surroundjng circum tances, is

   ' Ii

   ': .'

   recognized as acc ptable and appropriate by reas¢>rably prud nt similar

   ' \ ii '

   ',

   health care providers ... "

   ·,

5. Respondent failed to practice medicine ith that lev I of ci3re, skill and treatment! which is recognized by a rea hably prud nt similar

   ' ·,

   
   

   physician as being cceptable under similar conditiq s and circ mstances

   • • 1:

   
   

   in the treatment .of;patients JG and Ju.G, in one or \tnore of th following

   '

   ways:

   
   

   1. sYi'

      
      

      failing to maintain any medical

      
      

      '

      cords to j stlfy why

      
      

      i:

      the prescriptions are being written, particularly in sucH high doses·

      
      

      J:\PSU\Medical\Saundre W\BROW -AC 5.l7.10 corrections.doc 28

      I

      "I'

   2. by failing to clearly and legibley dodiµmentthe rescriqing

      ' ,': ' '

      of controlled substances in compliance with applicable: state or fe eral law;

      :· ',;

      ' " I

      
      

   3. by: failing to act diligently in preveijting the di ersion of controlled substanc s for illegitimate purposes, and ually fatili ting the diversion of contr lled substances for illegitimate purµ,pses;

   4. by prescribing excessive and or ina propriate ,a aunts of

      
      

      legend drugs, and, cyr controlled substances;

      . '

   5. by prescribing controlled substandts in quan ities and dosages that woula cause abuse, misuse and addiction to ntroUed substances;

   6. bf prescribing quantities and comb hations of ontrolled substances that was excessive and dangerous, vet failed to medically address the misuse and abuse of the prescribed cont lled substa ces;

      or

      1. '

   7. by I prescribing, dispensing, injecting, ad inisterlng

      
      

      legend drugs or any substance to a patient that wa . inappropri te, in an

      ' '

      inappropriate manner, or in excessive or inappropriate quantities;

   8. by Jailing to prescribe, dispense, ori dminister ontrolled substances including opioid analgesics, for a legitini te medical purpose

   I

   
   

   that was supported by appropriate documentationi,,establishin a valid

   '

   
   

   medical need and treatment plan;

   
   

   • l:\PSU\Medical\Saun(lte W\BRQWN ! AC 5.17.10 corrections.dot

     , I

     i 29

     
     

     1. by failing to prescribe, order, aditninister, or

     ,' ,''

     controlled substances for pain, based upon a legitirflate medica

     ''

     
     

     and based, on accepted scientific knowledge of the ttreatment based on sound clinical grounds;

     1. by failing to document any discussions

        "'

        dispense purpose, f pain or

        
        

        directiing

        patients to only receive prescriptions from one physiq!an (i.e., Re pondent) and one pharmacy, jlvhere possible;

     2. by failing to document any det rmination or make reasonable attempts to determine whether the patie ts are at hi h risk for

        medication abuse o have a history of substance abu$' ¢;

        ; r ;:

        
        

        1. by' failing to employ the use of ,,

           written

           
           

           
           

           '

           between physician : and each patient outlining p tient

           ''

           including, but not limited to:

           1. U,dne/serum medication levels scre ing when r,quested;

           2. Nu:mber and frequency of all prescription refills; nd

           3. Reasons for which drug therapy, mayi:be disconti ued

     , (i.e., violation of agreement)? , .

     
     

     m.

     by failing to put into practice a wtitten treatme t plan,, or

     . '

     
     

     state objectives that will be used to determine treat#ent succes , such as

     ' " .

     pain relief and impro'v'ed physical and psychosocial furnrtion;

     1. by failing to direct the patients I to submit, to drug

        
        

        J:\PSU\Medical\SfuCldre W\BR?W1':- AC 5,17,10 corrections.doc 30

        
        

        V

        screening/testing during treatment;

        
        

     2. by failing to plan any diagnostiq evaluatioh or other

        
        

        treatments;

        
        

     3. by failing to recommend other tre tment ,mod

        
        

        lities or a

        ' ' i ·,: i: :

        rehabilitation program based upon the etiology of t e pain and

        • i, I

          to which the paj!n was associated with physioal· and p

          i

          
          

          he extent

          
          

          . choscicial

          
          

          impairment;

          
          

     4. byi,failing to evaluate and documentfipatients' p

        j ::

        
        

        gress1 for

        the purpose of determining· whether continuatloH or modif cation of therapy should be cmnsidered;

     5. by failing to determine whethet;!: specialize

        
        

        consultations for diagnosis and/or treatment were app !priate;

        .'; , j !i I

     6. by i performing acts, or directing ottlers to pe

        testing,

        
        

        rm acts,

        
        

        and, or making statements to hide and conceal, an i cause to e hidden

        
        

        and concealed, the misuse and abuse of the rescribed ontrolled

        
        

        substances.

        
        

        .1

        
        

     7. by failing to fully assess the patient;

        
        

     8. by I directing patient to fill presbriptions at

     'I•·

     '

     
     

     various

     pharmacies;

     
     

     J:\PSU\Medical\Saundre W\BRO\1/N • c 5.17.10 corrections.doc

     :j

     i: ;::

     ' i !;I

     Mar 2 2011 16:07 P.36

     
     

     v. by violating the standards for t e use of substances for pain control provided by the Beare! of Medici

     64B8-9.013(3), F.A.C.

6. Based dn the foregoing, the Respondent has violated

   ! !

   
   

   458.331(1)(t), Florida Statutes (2009), by committing,! medical m

   
   

   COUNT VII .... i

   Section 458.331(1)(nn) . '

   controlled e in Rule

   
   

   Section

   !practice.

   
   

   I

   
   

7. Petitioner realleges and incorporates Pf1r agraphs ( ) through

   (37), and. paragraphs (62} through (70), as if fully s . forth herei

   ''

   
   

8. Section A58.331(1)(nn), Florida Statutesi i:(2009), pr vides that

• violating any provlision of chapters 456 or 458, Fldrida Statut s, or any rules adopted pursuant thereto, is grounds for discipllpe by the B ard.

  
  

  '

  73.. Rule 641B8·9.013(3)(a), F.A.C., provides s $ndards for

  he use of

  
  

  controlled substandes for pain control. Those starh ards requ re that a

  
  

  complete medical history and physical examinatio be cond cted and

  ''

  
  

  documented in the medical record. The medical retord should ocument

  . '

  
  

  the nature and interisity of the pain, current and pa t treatment for pain,

• underlying or coexisting diseases or conditions, the; ffect of thb pain on

  l :· ' I

  physical and psychological function, and history of S: bstance ab se. The

  
  

  J;\PSU\Medlcal\Saµ dre W\BR9wNj· AC 5.17.10 corrections.doc 32

  ' ..,

  Mar 2 2011 16:08 P.37

  
  

  medical record also should document the presehce of one

  ' ', '

  
  

  recognized medical indications for the use of a controllled substan

  1. Respondent violated Rule 64B8-9.013(]3)(a),·• F.A.

     ' : '

     
     

     '

     outlines the standards for prescribing controlled subs!]3nces for p

     : \ i

     
     

     in one or more of the following ways:

     1. By failing to.perform a legal obligation; :placed upo physician by illegitimately prescribing a legend dnHJ, ancl, or substance;

        
        

        or more e.

        ., which in control

        
        

        him as a controlled

     2. by ptescribing a legend drug and, or ! controlled ubstance

        : ; ,'.

        in the quantities and combinations without conductitJg or docu enting a

        . '

        complete medical hi$tory or physical examination of t e patient;

        
        

     3. by prj:!scribing a legend drug and, or !controlled ubstance without doc:umentin4} one or more of the following: · ·

        
        

        i.

        ii. iii. iv.

        V.

        vi.

        
        

        vii.

        The nature and intensity of the patient's P !n; any curr,nt and, or past treatments for pcjip;

        any und rlying or coexisting diseases or c#,ditions;

        the effeq _of the pain on physical and psyq ological fu ction;

        any histqry of substance abuse; ·•· ·•

        the pres,nce of one or more recognizeq Jtiedical indic tions for

        the use elf a controlled substance; and !! . . any objectives that would be used to i etermine reatment success or indicate if any further diagnostip evaluation or other treatments are planned. ··

        
        

        ' : \. i

        1. Based on the forgoing, Respondent viol ted 458.331(1)(nn),

           . .

           Florida Statutes (2009), by violating any provision of hapters 45 or 458,

           ' :

           
           

           l:\PSU\Medical\Saundrti W\BR:OV,,N jAC 5.17.10 corrections.doc 33

           . I

           ;:

           
           

           Florida Statutes, orr any rules adopted pursuant t ereto, spe ifically by

           
           

           
           

           ;' ' '

           violating Rule 64B8 9.013(3)(a), F.A.C.

           
           

           COUNT VIII

           Section 458.331(1)(m)

        2. · Petitione!r realleges and incorporates p agraphs (1) through (37), and paragraphs (62) through (75), as if fully setl(forth herei .

        3. Section 58.331(1)(m), Florida Statutes i(2009), pro ides that

           : . ' :, :

           
           

           failing to keep legicile medical records that justify tH, course Of treatment

           : :I I' ,: :

           
           

           of the patient, including, but not limited to, patientj istories; e amination

           i !·:

           ''

           results; test results; records of drugs prescrlilbed, disp nsed,· or

           ' 1 '·

           ; ·::

           I:

           administered; and rjeports of consultations and hospl lizations, onstitutes

           ' ' .:: : ,, :1 '

           grounds for disciplinary action by the Board of Medicihe·.

           • ' ,, 1:

           ,,

           '

        4. Respondent failed to keep legible medi11:al! 1r ecordsjus ifying the

        ' ·: :!

        ;_ ' :''.' i

        course of treatment!for patient in one or more of the!following w ys:

        I • /:

        
        

        a. ' :

        ', :: ;::

        By failing to keep legible medical l ecords rec rding the

        , I:·,

        
        

• reasons for prescribing the aforementioned medicatitjTs for patie ts JG and

Ju.G; and/or

1. byJailing to keep medical records iJvhich legibl recorded

   the patient history, examination .results, test resuj , drugs p escribed, dispensed or admini tered for patient; and/or

   
   

   
   

   ' ' ' ' j

   l:\PSU\Medical\Sa.uodre W\BROWNf· AC 5.17.10 corrections.doc . 34

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2. by failing· to keep medical recormis which ju tified the

   
   

   course of treatment for patient; and/or

   
   

3. by failing to keep legible medical. r ords that i entify the

   
   

   
   

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   licensed physician 9r the physician extender and s4pervising p

   
   

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   ysician by

   
   

   .name and professional title who is or are resp!=)nsible. for

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   ordering, supervising, or billing for each diagnostic <lit treatment

   rendering, procedure

   and that Justify the!course of treatment of patient. :

4. by failing to keep·medical records in complianc with ule 64B8-9.013(3)(a), .A.C.

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81. Based qn the foregoing, the Responde tt hpS violat d Section

458.331(1)(m), Floriida Statutes (2009).

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WHEltEFORE, the Petitioner respectfully requests that th Board of

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Medicine enter an ci>rder imposing one or more of tti following penalties:

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permanent revocatibn or suspension of Respondent's! license, re triction of

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practice, imposition! of an administrative fine, issu nce , of a primand,

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placement of the Respondent on probation, correctilve action·,

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refund of

fees billed or collected, remedial education and/or a y other reli f that the

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Board deems appro riate.

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J:\PSU\Medlcal\Saundre W\BRQWN:i- AC 5.17.1O corrections.doc

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Ana M. Viamont os, M.D.,

State Surgeon· •

Jheral

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DEPAft'f'Ml\!NT-;:HEALTH .

·. P_ ._EEPPUTVUTV'!C?lj,lll,E·;·•·R'S--, ,

CLERK:

DAtE 5/ ZJ [ ID

Mich J • il!p Assistant Generali t:ounsel Florida Bar# 84a719

DOH Prosecution lfervices Uni 4052 Bald Cypre$j Way-Bin C 65

T(8a5ll0ah) a2s4s5e-e4,6F4lo0_·r;·f-f·•·ic3e.239.9-3· 2s (850) 245-4681 , _csimile .

STEVEN BARRY BROWN, M.D,, CASE. NO;l:2010 064 9

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J:\PSI.J\Med,cal\Saundre W\BROWN 1 AC 5.17.10 correction5,doc

36

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STEVEN, B RRY BROWN, M.D., CASE Ndl 2010-06 19

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NOTICE OF RIGHTS

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Res.Po.·nden .. &as the right to request a he rl g to l;,e co ducted in

$ta u

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accordance with $E1ction 120,569 and 120.57, 'F ril!la s, to, be

representecl by cou,sel or other qualified representat : e, to l)tese t evidence

and argum... ent, t dall and cross examine witnessesl·f'•··ncl t hav subpoena and subpoena duc s tecum Issued on his or his ,tehalf if a hearin ,is requ.ested. , ·, ·

019

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NOtICE REGARDING ASSESSMENT OSTS

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, Respondent i placed on notice that Petltip ·pr int rred costs related to the investigation and prosecution of thi 1: matter.. P rsuant to Section 456.072(4) Florida Statutes, the Board shall ,ssess cos relateJt to

the investigation a,.t prosecution of a disciplinary maij:er, wliiich ay include attorney hours an costs, on the Respondent in ijddition to any other discipline imposed,.

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J:\PSU\Medlcal\Sa ndre W\BROWN!; AC 5.17.10 corrections.doc 37

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Docket for Case No: 11-003351PL