STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, PETITIONER, CASE NO.: 2010-13103 JOSEPH HERNANDEZ, 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 Respondent, Joseph Hernandez, M.D., 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. Filed March 9, 2012 3:12 PM Division of Administrative Hearings 2. At all times material to this Complaint, Respondent was a licensed physician within the State of Florida, having been issued license number ME 44356. 3. Respondent's address of record is 826 Southwest Main Boulevard, Suite 102, Lake City, FL 32025. 4. At all times material to this cause between March 29, 2010 and June 30, 2010 Respondent treated patient TB. 5. The Department of Health (Department) began an investigation of Respondent subsequent to a Columbia County Sheriff’s Office deputy questioning TB. 6. TB admitted to being treated by Respondent and provided copies of receipts for alprazolam and oxycodone. 7. TB advised that on each occasion Respondent did not complete a physical exam or review TB’s patient history. 8. The types of controlled substances in question that were prescribed by Respondent to TB are listed as follows: a) | Oxycodone (opioid) is commonly prescribed to treat pain. According to Section 893.03(2), Florida Statutes, 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. b) Alprazolam (brand name Xanax) is prescribed to treat anxiety. According to Section 893.03(4), Florida Statutes, 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, and abuse of the substance may lead to limited physical or psychological dependence relative to the substances in Schedule III. 9. From on or about March 29, 2010 through on or about June 30, 2010 patient TB, a then 38 year old male, presented to Respondent with complaints of lower back and leg pain. 10. Respondent’s medical records indicate that Respondent prescribed the following controlled substances for TB on the dates and in the quantities described in the following table: Xanax Oxycodone Oxycodone 2 mg. 30 mg. 15 mg. 3/29/2010 3/29/2010 2 mg. 30 mg. 60 Tablets 120 Tablets 4/29/2010 4/29/2010 4/29/2010 2 mg. 30 mg. 15 mg. 60 Tablets 150 Tablets 90 Tablets 5/27/2010 5/27/2010 5/27/2010 2 mg. 30 mg. 15 mg. 60 Tablets 150 Tablets 90 Tablets 6/30/2010 6/30/2010 6/30/2010 2 mg. 30 mg. 15 mg. 60 Tablets 150 Tablets 90 Tablets 11. In medicine, a proper medical assessment includes the patient’s prior medical history, prior pain management treatment history, intensity of pain, factors that make the pain worse or alleviate the pain, the pain’s intensity and location, verification of prior controlled substance prescriptions including the date and quantity of the last prescription received, name of the previous treating physician, name and address of the pharmacy where the last controlled substance prescriptions were filled together with all relevant contact information and verification of all the foregoing by the physician personally contacting the previous pharmacy and treating physician, together with the reason for the referral, and verification for the reasons of referral with the prior treating physician. 12. Respondent failed to conduct a complete physical examination of TB on TBs initial visit. 13. Respondent failed to make a diligent attempt to obtain medical records from the previous treating physician. 14. Respondent failed to properly monitor TB by failing to perform a subsequent urine drug screen at the second visit of TB, in light of the negative finding of the first urine drug screen of one or more of the controlled substances Respondent prescribed to TB. COUNT ONE 15. Petitioner reincorporates and re-alleges paragraphs 1 through fourteen (14) as if fully set forth herein. 16. Section 458.331(1)(nn), Florida Statutes (2009), provides that violating any provision of Chapters 456 or 458, Florida Statutes, or any rules adopted pursuant thereto is grounds for discipline by the Board of Medicine. 17. Rule 64B8-9.013(3), Florida Administrative Code (2009) provides as follows: 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 should document the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse. The medical record also should document the presence of one or more recognized medical indications for the use of a controlled substance. b) Treatment Plan. The written treatment plan should state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and should indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician should adjust drug therapy 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. c) Informed Consent and Agreement for Treatment. The physician should discuss the risks and benefits of the use of controlled substances with the patient, persons designated by the patient, or with the patient's surrogate or guardian if the patient is incompetent. The patient should receive prescriptions from one physician and one pharmacy where possible. If the patient is determined to be at high risk for medication abuse or have a history of substance abuse, the physician should employ the use of a written agreement between physician and patient outlining patient responsibilities, including, but not limited to: 1. Urine/serum medication levels screening when requested; 2. Number and frequency of all prescription refills; and 3. Reasons for which drug therapy may be discontinued (i.e., violation of agreement). d) Periodic Review. At reasonable intervals based on the individual circumstances of the patient, the physician should review the course of treatment and any new information about the etiology of the pain. Continuation or modification of therapy should depend on the physician’s evaluation of the patient's progress. If treatment goals are not being achieved, despite medication adjustments, the physician should reevaluate the appropriateness of continued treatment. The physician should monitor patient compliance in medication usage and related treatment plans. e) Consultation. The physician should be willing to refer the patient as necessary for additional evaluation and treatment in order to achieve treatment objectives. Special attention should 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 medical history and physical examination, including history of drug abuse or dependence, as appropriate; 2. Diagnostic, therapeutic, and laboratory results; 3. Evaluations and consultations; 4. Treatment objectives; 5. Discussion of risks and benefits; 6. Treatments; 7. Medications (including date, type, dosage, and quantity prescribed); 8. — Instructions and agreements; and 9. Periodic reviews. Records must remain current and be maintained in an accessible manner and readily available for review. 18. On or about March 29, 2010 through June 30, 2010 Respondent violated Rule 64B8-9.013(3), Florida Administrative Code, in one or more of the following ways: a) by prescribing one or more controlled substances in the doses and/or quantities as outlined in paragraph ten (10) without conducting a complete medical history of TB b) _ by prescribing one or more controlled substances in the doses and/or quantities as outlined in paragraph ten(10) without conducting a complete physical examination of TB c) _ by prescribing one or more controlled substances in the doses and/or quantities as outlined in paragraph ten (10) without verification of prior controlled substance prescriptions, including the date and quantity of the last prescription received, name of the previous treating physician, name and address of the pharmacy where the last controlled substance prescriptions were filled with all relevant contact information and verification of all the foregoing by the physician personally contacting the previous pharmacy and treating physician, together with the reason for the referral, and verification for the reasons of referral with the prior treating physician. 19. Based on the foregoing, Respondent has violated Section 458.331(1)(nn), Florida Statutes (2009) by violating Rule 64B8- 9.013(3), Florida Administrative Code. COUNT TWO 20. Petitioner reincorporates and re-alleges paragraphs 1 through fourteen (14) and seventeen (17) as if fully set forth herein. 21. Section 458.331(1)(t), Florida Statutes (2009), subjects a licensee to discipline for committing medical malpractice as defined in Section 456.50, Florida Statutes. Section 456.50, Florida Statutes (2009) defines medical malpractice 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. 22. For purposes of Section 458.331(1(t), Florida Statutes, the Board shall give great weight to the provisions of Section 766.102, Florida Statutes (2009) which provide that 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. 23. Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in treating TB in one or more of the following ways: a) by prescribing controlled substances oxycodone 15 and/or oxycodone 30 and/or Xanax inappropriately or in excessive and/or inappropriate amounts in the doses and/or quantities as outlined in paragraph ten (10) considering the results of a urine drug screen which showed negative for the medications prescribed to TB. b) by failing to order a subsequent urine drug screen in light of the prescribing of one or more controlled substances in the doses and/or quantities as outlined in paragraph ten (10) and considering the negative drug screen on TB‘s initial visit. c) by failing to perform a complete, thorough and/or accurate medical assessment of TB 24. Based on the foregoing, Respondent has violated Section 458.331(1(t), Florida Statutes (2009) by committing medical malpractice. COUNT THREE 25. Petitioner reincorporates and re-alleges paragraphs 1 through fourteen (14) as if fully set forth herein. 26. Section 458.331(1)(q), Florida Statutes 2009) subjects a licensee to discipline for prescribing controlled substances inappropriately or in excessive or inappropriate quantities. 27. Section 458.331(1)(q) states the following acts constitute grounds for disciplinary action: . 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, inappropriately 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. 28. Respondent prescribed controlled substances other than in the course of his professional practice by prescribing controlled substances inappropriately or excessively in one or more of the following ways: ow) a) by prescribing controlled substances in the doses and quantities as outlined in paragraph ten (10) although an initial urine screen for TB showed negative for the controlled substances prescribed. b) by. prescribing controlled substances in the doses and quantities as outlined in paragraph ten (10) without performing a urine drug screen on the second visit of TB considering that the first urine drug screen was negative for the controlled substances prescribed. 29. Based on the foregoing, Respondent has violated Section 458.331(1)(q), Florida Statutes (2009). 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 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 other relief that the Board deems appropriate. pol SIGNED this 22" dayof_Av-yot 2041. H. Frank Farmer, Jr., M.D., Ph.D., State Surgeon General Department of Health QUIDES |Z Cper-— Robert J. Bobek Assistant General Counsel FILED Florida Bar # 434337 DEPARTMENT OF HEALTH DOH Prosecution Services Unit eeu ee 4052 Bald Cypress Way-Bin C-65 CLERK: SA-vedlon. Soo Tallahassee, Florida 32399-3265 paTe:_*\16 22 20a (850) 245-4640 Office (850) 245-4681 Facsimile RJB/das PCP Members: Leon, El Sanadi & Goersch PCP: August 19, 2011 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 his 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 to any other discipline imposed. 16

Docket for Case No: 12-000868PL