STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, v. CASE NO.: 2011-13923 RICHARD W. HAYS, M.D., RESPONDENT. ADMINISTRATIVE COMPLAINT COMES NOW, Petitioner, Department of Health, by and through its undersigned counsel, and files this Administrative Complaint before the Board of Medicine against the Respondent, Richard W. Hays, MLD., and in support thereof alleges: 1. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. 2. At all times material to this Complaint, Respondent was a licensed physician within :the State of Florida, having been issued license number ME 43956. Filed February 23, 2012 9:28 AM Division of Administrative Hearings 3. Respondent’s address of record is 1901 South John Young Parkway, Suite 103, Kissimmee, Florida, 34741. 4. At all times material to this Complaint, Respondent practiced medicine at the Kenaday Medical Clinic (Clinic), a registered pain management clinic located at 6001 Silver Star Road, Suite 1-B, Orlando, Florida, 32808. 5. While practicing at the Clinic, Respondent prescribed large doses and quantities of methadone, oxycodone, Lorcet, Percocet, Xanax and Soma to patients. 6. Methadone is an opioid that is prescribed to treat pain. According to Section 893.03(2), Florida Statutes (2010-2011), methadone is a Schedule 0 controlled substance that has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, Abuse of methadone may lead to severe psychological or physical dependence. 7. Lorcet is a brand of hydrocodone/APAP, which is a mixture of oxycodone and acetaminophen and is prescribed to treat pain. According to Section 893.03(3), Florida Statutes (2010-2011), hydrocodone, in the dosages found in hydrocodone/APAP, is a Schedule III controlled substance that has a potential for abuse less than the substances in Schedules 1 and II and has a currently accepted medical use in treatment in the United States. Abuse of the substance may lead to moderate or low physical dependence or high psychological dependence. 8. Percocet is a brand of drug that contains oxycodone and acetaminophen and is prescribed to treat pain. According to Section 893.03(2), Florida Statutes (2010-2011), oxycodone is a Schedule II controlled substance that has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. 9. Xanax is a brand of alprazolam (benzodiazepine) and is prescribed to treat anxiety. According to Section 893.03(4), Florida Statutes (2010-2011), alprazolam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use in treatment in the United States. Abuse of alprazolam may lead to limited physical or psychological dependence relative to the substances in Schedule III. 10. Soma is a brand of carisoprodol and is.a muscle relaxant prescribed to treat muscular pain. According to Section 893.03(4), Florida Statutes (2010-2011), carisoprodol is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule II and has a currently accepted medical use in treatment in the United States. Abuse of carisoprodol may lead to limited physical or psychological dependence relative to the substances in Schedule IT. Facts Related to Patient K.P. 11. Inor about June 6, 2011, Patient K.P. presented to Respondent for her regularly scheduled medical appointment. 12. At the conclusion of Respondent’s medical evaluation, she, Respondent and a medical assistant began to exit the room. 13, After the medical assistant left the room, Respondent grabbed Patient K.P.’s hand and pulled her into him, at which time he hugged her and kissed her near her mouth. 14. Respondent then prescribed 180 tablets of methadone 10 mg, 90 tablets of oxycodone 30 mg, 150 tablets of Lorcet 10 mg, 120 tablets of Xanax 1 mg and 60 tablets of Soma 350 mg to Patient K.P. and requested that she return for a follow-up appointment on June 13, 2011. 15. Patient K.P. presented to Respondent for a follow-up appointment on June 13, 2011. 16. At that appointment, Respondent greeted Patient K.P. with a kiss to her lips and a hug. 17. Patient K.P. requested that Respondent increase her prescription of oxycodone 30 mg from 90 tablets to 105 tablets, and Respondent agreed. 18. After a conversation about where Patient K.P. kept valuables on her person, Respondent approached her, placed his hands inside the front pockets of her pants and attempted to touch her groin from inside her pants pockets. 19. Respondent’s attempt to touch Patient K.P.’s groin was completely extraneous to his medical treatment. 20. Respondent then prescribed 105 tablets of oxycodone 30 mg, 180 tablets of methadone 10 mg, 150 tablets of Lortab, 120 tablets of alprazolam 1 mg and 60 tablets of Soma 350 mg to Patient K.P. 21. On July 11, 2011, Patient K-P., presented to Respondent for a follow- up appointment, at which time Respondent greeted Patient K.P. with a kiss to her lips and a hug. 22. Respondent then prescribed 150 tablets of oxycodone 30 mg, 180 tablets of methadone 10 mg, 60 tablets of Lortab 10/500, 120 tablets of alprazolam 1 mg and 60 tablets of Soma 350 mg to Patient K.P. 23. Respondent did not perform a physical examination of Patient K.P. at either the June 13 or the July 11, 2011, appointments. Facts Related.to Patient W.P. 24. On July 18, 2011, Patient W.P., an undercover MBI agent equipped with undercover surveillance equipment, presented to Respondent for treatment of purported chronic pain. 25. Patient W.P. provided a Clinic employee with an MRI report and a pharmacy history of prescribed drugs, indicating W.P. last received 120 tablets of Percocet on April 18, 2011. 26. Thereafter, a medical assistant briefly evaluated Patient W.P. and informed the patient that he would have a follow-up appointment in 28 days and that Respondent would prescribe a 30-day supply of medications. 27. Respondent entered the examination room and inquired as to Patient W.P.’s pain. 28. At-that time, Patient W.P. stated he had neck pain and sometimes a sore neck, and Respondent felt Patient W.P.’s neck and back and inquired as to the patient’s pain. 29, Patient W.P. denied pain in his neck and stated that his back was “a little bit” painful and then informed Respondent that he had not received any medical treatment since April 2011. 30. Respondent then prescribed 120 tablets of Percocet 10/325 and 30 tablets of Flexeril to W.P. 31. Patient W.P. presented to Respondent for a follow-up appointment on August 22, 2011. 32, At that time, Respondent inquired as to the location of Patient W.P.’s pain, and Patient W.P. pointed to his lower back. 33. Patient W.P. stated his pain was 3 out of 10 without medication and 0 out of 10 with medication. 34, After a discussion about the patient’s pain level, Patient W.P. stated that his pain level was 6 out-of 10 with the medications and 3 out of 10 without the medications. 35. Respondent then prescribed 30 tablets of Flexeril 10 mg and 120 tablets of Percocet 10 mg to the patient. COUNT ONE 36. Petitioner realleges and incorporates Paragraphs 1 through 35, as if fully set forth herein. 37. Section 458.331(1)(t)1., Florida Statutes (2010-2011), subjects a physician to discipline for committing medical malpractice as defined in Section 456.50, Florida Statutes, and shall give great weight to the provisions of Section 766.102, Florida Statutes. 38. “Medical malpractice” is defined by Section 456.50(1)(g), Florida Statutes (2010-2011), as “the failure to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure.” Section 456.50(1)(e), Florida Statutes (2010-2011), provides that the “level of care, skill, and treatment recognized in general law related to health care licensure" means the standard of care that is specified in Section 766.102, Florida Statutes, as follows: The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. 39. Respondent failed to meet the prevailing standard of care in one or more of the following manners: a, By excessively or inappropriately prescribing controlled substances to Patient Patient K.P; b. . By excessively or inappropriately prescribing controlled substances to Patient W.P.; c. By failing to obtain a complete medical history of Patient WP. prior to prescribing controlled substances to the patient, d. _ By failing to perform an adequate physical examination on Patients W.P. and/or Patient K.P. prior to prescribing controlled substances, and/or 40. Based on the foregoing, Respondent has violated Section 458.331(1)(t)1., Florida Statutes (2010-2011), by committing medical malpractice. COUNT TWO 41, Petitioner realleges and incorporates Paragraphs 1 through 35, as if fully set forth herein. 42, Section 458.331(1)(q), Florida Statutes (2010-2011), allows the Board of Medicine to discipline or suspend the license of a physician for prescribing, dispensing, administering, mixing or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician’s professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, imappropriately or in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the physician’s professional practice, without regard to his or her intent. 43, Respondent prescribed controlled substances inappropriately or in excessive or inappropriate quantities in one or more of the following manners: a. By excessively or inappropriately prescribing controlled substances to Patient W.P, b. By excessively or inappropriately prescribing controlled substances to and Patient K.P.; c} By failing to obtain a complete medical history of Patient W.P. prior to prescribing controlled substances to the patient; d. By failing to perform an adequate physical examination of Patient Patient K.P. prior to prescribing controlled substances to the patient; and/or e. By failing to perform an adequate physical examination of Patient W.P. prior to prescribing controlled substances to the patient. 44, Based on the foregoing, Respondent violated Section 458.331(1)(q), Florida Statutes (2010-2011), by prescribing or otherwise preparing a legend drug, including any controlled substance, other than .in the course of the physician’s professional practice. COUNT THREE 45. Petitioner realleges and incorporates Paragraphs 1 through 35, as if fully set forth herein. 46. Section 458.331(1)(nn), Florida Statutes (2010-2011), allows the Board of Medicine to discipline or suspend the license of a physician for violating any provision of Chapters 456 or 458, Florida Statutes, or any rules adopted pursuant thereto. 47. Rule 64B8-9.013, Florida Administrative Code, sets forth the standards for the use of controlled substances for the treatment of pain, in part, as follows: (3) Standards. The Board has adopted the following standards for the use of controlled substances for pain control: (a) Evaluation of the Patient. A complete medical history and physical examination must be conducted and documented in the medical record. The medical record shall document the nature and intensity of the pain, current and past treatments for pain, underlying 10 or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse. The medical record also shall document the presence of one or more recognized medical indications for the use of a controlled substance. (b) Treatment Plan. The written treatment plan shall state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and shall indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician shall adjust drug therapy, if necessary, to the individual medical needs of each patient. Other treatment modalities or a rehabilitation program may be necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment. * * * (e) Consultation. The physician shall be willing to refer the patient as necessary for additional evaluation and treatment in order to achieve treatment objectives. Special attention must be given to those pain patients who are at risk for misusing their medications and those whose living arrangements pose a risk for medication misuse or diversion. The management of pain in patients with a history of substance abuse or with a comorbid psychiatric disorder requires extra care, monitoring, and documentation, and may require consultation with or referral to an expert in the management of such patients. (f) Medical Records, The physician is required to keep accurate and complete records to include, but not be limited to: 1. The complete medical history and a physical examination, including history of drug abuse or dependence, as appropriate; 2. Diagnostic, therapeutic, and laboratory results; 3, Evaluations and consultations; 4, Treatment objectives; §, Discussion of risks and benefits; 6. Treatments, 7, Medications (including date, type, dosage, and quantity prescribed), 8. Instructions and agreements; 11 9. Drug testing results; and 10. Periodic reviews. Records must remain current, maintained in an accessible manner, readily available for review, and must be in full compliance with Rule 64B 8-9,003, F.A.C, and Section 458,331(1 )(m), ES. Records must remain current and be maintained in an accessible manner and readily available for review. 48. Respondent violated Rule 64B8-9.013, Florida Administrative Code, in one or more of the following manners: a. By failing to obtain a complete medical history of Patient W.P.; b. By failing to discuss the risks and benefits of treatment with Patients W.P. and/or Patient K.P; c. By failing to set forth an adequate treatment plan for Patient W.P.; d. _ By failing to perform a physical examination or meaningful evaluation of Patients W-P. and Patient K.P., e. By failing to monitor Patient K.P., who was a high risk of drug diversion or substance abuse based on previous use of illegal drugs; and/or f. By failing to refer Patient K.P. to drug abuse counseling. 49, Based on the foregoing, Respondent has violated Section 458.331(1)(nn), Florida Statutes (2010-2011), by violating Rule 64B8-9.013, Florida Administrative Code. 12 COUNT FOUR 50. Petitioner realleges and incorporates Paragraphs 1 through 35, as if fully set forth herein. 51. Section 458.331(1)(nn), Florida Statutes (2011), allows the Board of Medicine to discipline or suspend the license of a physician for violating any provision of Chapters 456 or 458, Florida Statutes, or any rules adopted pursuant thereto. 52. Section 458.3265(2)(c), Florida Statutes (2011), provides, in part: A physician must perform a physical examination of a patient on the same day that he or she dispenses or prescribes a controlled substance to a patient at a pain-management clinic. ... 53. Respondent violated Section 458.3265(2)(c), Florida Statutes (2011), in one or more of the following manners: 8 By failing to perform a physical examination on Patient Patient KP. prior to prescribing controlled substances to the patient; and/or b. By failing to perform a physical examination on Patient W.P. prior to prescribing controlled substances to the patient. 13 54. Based on the foregoing, Respondent has violated Section 458.331(1)(nn), Florida Statutes (2011), by violating Section 458.3265(2)(c), Florida Statutes (2011). COUNT FIVE 55, Petitioner realleges and incorporates Paragraphs 1 through 23, as if fully set forth herein. 56. Section 458.331(1)(j), Florida Statutes (2010-2011), subjects a physician to discipline for exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. 57. Rule 64B8-9.008, Florida Administrative Code, specifies sexual misconduct as follows: (1) Sexual contact with a patient is sexual misconduct and is a violation of Sections 458.329 and 458.331(1)(j), FS. (2) For purposes of this ‘rule, sexual misconduct between a physician and a patient includes, but it is not limited to: (a) Sexual behavior or involvement with a patient including verbal or physical behavior which , 1. May reasonably be interpreted as romantic involvement with — a patient regardless of whether such involvement occurs in the professional setting or outside of it; 14 2. May reasonably be interpreted as intended for the sexual arousal or gratification of the physician, the patient or any third party; or 3. May reasonably be interpreted by the patient as being sexual. * * * 58. Respondent exercised influence in the physician-patient relationship in order to engage a patient in sexual activity in one or more of the following manners: a. By placing his hands inside the front pants AEG of Patient K.P; b. By attempting to touch Patient K.P.’s groin; c. By hugging Patient K.P.; and/or d. By kissing Patient K.P. 59. Based on the foregoing, Respondent violated Section 458,331(1)(), Florida Statutes (2010-2011), by exercising influence within a patient-physician relationship for purposes of engaging a patient in sexual activity. COUNT SIX 60. Petitioner realleges and incorporates Paragraphs 1 through 23, as if fully set forth herein. 61. Section 458.331(1)(nn), Florida Statutes (2010-2011), allows the Board of Medicine to discipline or suspend the license of a physician for violating 15 any provision of Chapters 456 or 458, Florida Statutes, or any rules adopted pursuant thereto. 62. Section 456.063, Florida Statutes (2010-2011), prohibits sexual misconduct, which is defined as a health care practitioner who uses the practitioner-patient relationship to engage or attempt to engage the patient in verbal or physical sexual activity outside the scope of the professional practice. 63. Respondent used the practitioner-patient relationship to engage or attempt to engage a patient in verbal or physical sexual activity outside the scope of the professional practice in one or more of the following manners: a. By placing his hands inside the front pants pockets of Patient K.P; b. By attempting to touch Patient K-P.’s groin; c. By hugging Patient K.P.; and/or d. By kissing Patient K.P. 64. Based on the foregoing, Respondent violated Section 458.331(1)(nn), Florida Statutes (2010-2011), by violating Section 456.063, Florida Statutes (2010- 2011). WHEREFORE, the Petitioner respectfully requests that the Board of Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of Respondent’s license, restriction of 16 practice, imposition of an administrative fine, issuance of a reprimand, placement of the Respondent on probation, corrective action, refund of fees billed or collected, remedial education and/or any otber relief that the Board deems appropriate. SIGNED this na day of Ozcombvr , 2011. gdb PCP: 11/28/11 ., MLD., Ph.D., FA.C.P. 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399-3265 Florida Bar # 013311 (850) 245-4640 (850) 245-4681 FAX PCP Members: Leon, Mullins, Gerbert 17 DOH vs. Richard W. Hays, M.D. Case No. 2011-13923 NOTICE OF RIGHTS Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to.call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested. NOTICE REGARDING ASSESSMENT OF COSTS Respondent is placed on notice that Petitioner has incurred costs related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board shall assess costs related to the investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition any other discipline imposed. 18

Docket for Case No: 12-000749PL