W-\N3 STATE OF FLORIDA DEPARTMENT OF HEALTH DEPARTMENT OF HEALTH, Petitioner, Vv. CASE NO.: 2011-19788 KEITH B. MURRAY, M.D., Respondent. __/ ADMINISTRATIVE COMPLAINT Petitioner Department of Health files this Administrative Complaint and states: 1. Petitioner is the state agency charged with regulating the practice of medicine, pursuant to Chapters 20, 456, and 458, Florida Statutes (2010-2011). 2. At all times material to this matter, Respondent was licensed to practice as a physician in the State of Florida. 3. Respondent's address of record is 1523 South Orange Avenue, Orlando, Florida 32806. 4. Atall times material to this matter, Respondent treated patients Filed October 2, 2012 3:04 PM Division of Administrative Hearings JH v. Keith B. Murray, M.D. Case Number: 2011-19788 at the Casselberry Relief Center, a pain management clinic located at 919 State Road 436, Casselberry, Florida, 32707; the Lake Mary Wellness Center, a healthcare clinic located at 3525 West Lake Mary Boulevard, Suite 301, Lake Mary, Florida, 32746; and Amerinet Health, a healthcare clinic located at 305 North Mangoustine Avenue, Suite 100, Sanford, Florida, 32771 (hereafter collectively referred to as the Clinics”). 5. While practicing at the Clinics, Respondent prescribed oxycodone, Valium, Xanax, Ambien and/or Soma to Patients AK, JS, BD, EB and AM. 6. | Oxycodone, an opioid, is commonly prescribed to treat pain. According to Section 893.03(2), Florida Statutes (2010-2011), oxycodone is a Schedule II controlled substance. 7. 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. 8. Valium is the brand name for diazepam and is prescribed to treat anxiety. According to Section 893.03(4), Florida Statutes (2010- 2011), diazepam is a Schedule IV controlled substance. 9. Soma is the brand name for carisoprodol, a muscle relaxant JH v. Keith B. Murray, M.D. Case Number: 2011-19788 commonly prescribed to treat muscular pain. According to Section 893.03(4), Florida Statutes (2010-2011), carisoprodol is a Schedule IV controlled substance. 10. Ambien is the brand name for the drug zolpidem, prescribed to treat insomnia. According to Title 21, Section 1308.14, Code of Federal Regulations (2010-2011), zolpidem is a Schedule IV controlled substance. Facts specific to Patient AK 11. On February 4, 2011, Patient AK presented to Respondent with complaints of lower back and leg pain. Patient AK’s medical records indicate Patient AK had a history of taking oxycodone 30 mg, oxycodone 15 mg and alprazolam 2 mg. Respondent examined the patient and prescribed 120 tablets of oxycodone 30 mg, 60 tablets of oxycodone 15 mg and 30 tablets of Mobic 15 mg (a nonsteroidal anti-inflammatory drug (NSAID) used to relieve pain and swelling) to the patient. 12. Patient AK presented to Respondent for follow-up appointments on March 31 and April 28, 2011. At each visit, Respondent prescribed 100 tablets of oxycodone 30 mg, 60 tablets of oxycodone 15 mg, 30 tablets of Xanax 1 mg and 30 tablets of Mobic 15 mg. JH v. Keith B: Murray, M.D. Case Number: 2011-19788 13. On May 26, June 23 and July 21, 2011, Patient AK presented to Respondent for follow-up appointments. At each appointment, Respondent prescribed between 100 and 110 tablets of oxycodone 30 mg; between 35 and 70 tablets of oxycodone 15 mg; 30 tablets of Xanax 1 mg or Valium 5 mg; and 30 tablets of Mobic 15 mg. 14. On August 17, September 26 and October 24, 2011, Patient AK presented to Respondent for follow-up appointments. At each appointment, Respondent prescribed 110 tablets of oxycodone 30 ma, between 14 and 35 tablets of oxycodone 15 mg and between 28 and 30 tablets of Valium 5 mg. 15. Ata follow-up appointment on November 21, 2011, Patient AK submitted to a multi-drug urine screen, which was positive for barbiturates but negative for oxycodone and benzodiazepines, notwithstanding the fact that Respondent had prescribed oxycodone and benzodiazepines to the patient. A notation on the drug screen indicates that Patient AK “ran out of meds”; however, Respondent then discontinued Patient AK’s prescription of oxycodone 15 mg, increased the prescription of oxycodone 30 mg to 115 tablets and prescribed 28 tablets of Valium 5 mg. The medical records lack OH v. Keith B. Murray, M.D. Case Number: 2011-19788 any documentation as to the justification for the alteration in the drug regimen or consideration of the patient's unexplained drug screen. 16. Patient AK’s medical records indicate that Respondent's initial treatment plan for the patient included physical therapy, massage and chiropractic treatment, but there is no indication in the medical records that Respondent offered any consults with other specialists or treatment modalities other than the prescribed medications. In addition, there is no indication that Respondent considered the patient’s discordant drug screens in relation to the continued prescription of controlled substances. . 17. An independent medical expert retained by Petitioner opined that Respondent's treatment of Patient AK fell below the minimum standard of care in that he prescribed controlled substances without justification. The expert also opined that Respondent failed to properly evaluate the patient or refer the patient to utilize other modalities of treatment. 18. The medical records created by Respondent for Patient AK do not document a justification for the types and amounts of medications prescribed by Respondent. In addition, Respondent failed to document a treatment plan that identified treatment objectives and failed to document OH v. Keith B. Murray, M.D. Case Number: 2011-19788 any significant abnormal examinations findings or functional changes in the patient that would justify the treatment. Facts specific to Patient JS 19, On March 10, 2011, Patient JS, a 30-year-old male, presented to the Lake Mary clinic with complaints of right wrist, lower back and upper back pain. Records indicate that Patient JS disclosed a medication history consisting of monthly prescriptions of 180 tablets of oxycodone 30 mg and that he had not received treatment other than pain medications. Dr. TB, a physician at the clinic, diagnosed chronic wrist pain and lumbar degenerative disc disease (DDD) and prescribed 112 tablets of oxycodone 30 mg, 28 tablets of Valium 10 mg, 28 tablets of Mobic 15 mg and 28 tablets of Flexeril 10 mg to JS. In addition, Dr. TB referred JS to a chiropractor and massage therapy, but there are no records indicating that Patient JS consulted with a chiropractor or massage therapist. 20. On March 31, May 3 and June 2, 2011, Patient JS presented to Respondent for follow-up appointments. At each appointment, Respondent prescribed 150 tablets of oxycodone 30 mg, 30 tablets of Xanax 1 mg, 60 tablets of Naproxen 500 mg (NSAID) and 60 tablets of Flexeril 10 mg to Patient JS. Respondent diagnosed displacement of Jumbar invertebrae; JH v. Keith B. Murray, M.D. Case Number: 2011-19788 however, there is no documentation reflecting the extent of the displacement or any objective examinations to confirm the diagnosis. “34. Patient JS presented to Respondent for a follow-up appointment on July 18, 2011, at which time Respondent prescribed 150 tablets of oxycodone 30 mg, 30 tablets of Valium 5 mg and 60 tablets of Flexeril 10 mg to Patient JS. There is no documentation explaining the discontinuance of Naproxen. 22. At a follow-up appointment on August 16, 2011, Respondent prescribed 150 tablets of oxycodone 30 mg and increased the Valium prescription to 56 tablets of Valium 10 mg. In addition, Respondent prescribed 10 tablets of Cialis 10 mg to Patient JS to treat complaints of erectile dysfunction; however, Respondent failed to conduct any erectile dysfunction-specific medical evaluations, or work-up, including laboratory and imaging testing. 23. On September 13, October 19 and November 21, 2011, Patient JS presented to Respondent for follow-up appointments. At each appointment, Respondent prescribed 140 tablets of oxycodone 30 mg and 56 tablets of Valium 10 mg to Patient JS. At the November 21 appointment, Patient JS submitted to a multi-drug urine screen, which was OH v. Keith B. Murray, M.D. Case Number: 2011-19788 negative for benzodiazepines despite his long-term prescriptions of Xanax and Valium. There is no documentation as to the discordant urine screen. 24. Petitioner's expert opined Respondent's treatment of Patient JS fell below the minimum standard of care in that he prescribed controlled substances to JS without justification. The expert also opined that Respondent failed to properly evaluate the patient or refer the patient for other modalities of treatment. 25. The medical records for Patient JS’s treatment fail to document a treatment plan, including objectives that would be used to determine treatment success, and fail to document a justification for the types and amounts of medications prescribed. In addition, the records fail to document any significant abnormal examination findings or functional changes in the patient that would justify the treatment. Finally, Respondent failed to document any justification or medical indication for the long-term benzodiazepine prescriptions. Facts specific to Patient BD 26. On March 30, 2011, Patient BD, a 22-year-old female, presented to Respondent with complaints of lower back pain resulting from an old spinal fracture initially treated surgically. Patient BD had a JOH v. Keith B. Murray, M.D. Case Number: 2011-19788 prescription history consisting of hydrocodone and oxycodone prescriptions from four different healthcare providers during the previous two months. Respondent prescribed 120 tablets of oxycodone 30 mg, 60 tablets of oxycodone 15 mg, 60 tablets of gabapentin 300 mg (used to treat seizures and pain relief) and 60 tablets of Mobic 7.5 mg to the patient; however, BD’s medical records lack any evidence Respondent conducted a physical examination of the patient’s back or that Respondent established a treatment plan for the patient. 27. On April 27 and May 25, 2011, Patient BD presented to Respondent for follow-up appointments. At each appointment, Respondent prescribed 120 tablets of oxycodone 30 mg, 60 tablets of oxycodone 15 mg, 30 tablets of Ambien 5 mg, 60 tablets of gabapentin 300 mg and 60 tablets of Mobic 7.5 mg to the patient; however, the patient’s records lack any indication Respondent conducted or documented an appropriate physical examination of the patient or established a treatment plan for the patient. 28. At the April 27, 2011, appointment, Patient BD submitted to a multi-drug urine screen, which was negative for oxycodone and benzodiazepines, despite the patient’s current prescriptions for both. The OH v. Keith B. Murray, M.D. Case Number: 2011-19788 medical records fail to contain any indication that Respondent considered this abnormal urine screen in the continued treatment of Patient BD with controlled substances. 29. Patient BD presented to Respondent for a follow-up appointment on June 22, 2011, at which time Respondent prescribed 120 tablets of oxycodone 30 mg, 30 tablets of oxycodone 15 mg, 30 tablets of Valium 5 mg, 60 tablets of gabapentin 300 mg and 60 tablets of Mobic 7.5 mg to the patient; however, the medical records offer no justification for the discontinuance of Ambien or the prescription of Valium. 30. On July 20 and August 17, 2011, Patient BD presented to Respondent for follow-up appointments. At each appointment, Respondent prescribed 120 tablets of oxycodone 30 mg, 30 tablets of Valium 5 mg and 60 tablets of gabapentin; however, the medical records offer no justification for the discontinuance of the oxycodone 15 mg prescription. 31. Patient BD presented to Respondent for follow-up appointments on September 19, October 17 and November 21, 2011. At each appointment, Respondent prescribed 112 tablets of oxycodone 30 mg, 28 tablets of Valium 5 mg and 56 tablets of gabapentin 300 mg to Patient BD. 10 DH v. Keith B. Murray, M.D. Case Number: 2011-19788 32. Petitioner’s expert opined that Respondent's treatment of Patient BD fell below the minimum standard of care in that he prescribed controlled substances to the patient without justification. The expert also opined that Respondent failed to properly evaluate the patient or prescribe other modalities of treatment. 33. The medical records for Patient BD fail to document a treatment plan for the patient, a physical examination or documentation of _ previous historical treatments. In addition, the records fail to contain a justification for the medications prescribed or alterations thereto. Facts specific to Patient EB 34. On April 14, 2011, Patient EB, a 23-year-old female, presented to Respondent with complaints of pain regarding her right shoulder, right hip, right knee, back and neck. Patient EB had a prescription history consisting of 6 tablets of oxycodone 30 mg per day. Respondent evaluated the patient and prescribed 120 tablets of oxycodone 30 mg, 60 tablets of Flexeril 5 mg, 60 tablets of gabapentin 300 mg and 30 tablets of Mobic 15 mg to the patient. Respondent prescribed the same medications to Patient EB at a follow-up appointment on May 18, 2011. 11 OH v. Keith B. Murray, M.D. Case Number: 2011-19788 35. On June 5 and July 13, 2011, Patient EB presented to Respondent for follow-up appointments. At each visit, Respondent prescribed 120 tablets of oxycodone 30 mg, 60 tablets of Flexeril 5 mg and 60 tablets of gabapentin 300 mg to Patient EB. Records indicate that at the July 13 appointment, Respondent discussed with Patient EB the tapering of the medications to begin the following month. ) 36. Patient EB presented to Respondent for follow-up appointments on August 11 and September 8, 2011. Despite the July discussion regarding the tapering of medications, Respondent prescribed 120 tablets of oxycodone 30 mg, 60 tablets of Flexeril 5 mg and 60 tablets of gabapentin 600 mg to Patient EB at each appointment. 37. On October 6, 2011, Patient EB presented to Respondent for a follow-up appointment, at which time Respondent prescribed 112 tablets of oxycodone 30 mg, 56 tablets of Flexeril 5 mg and 56 tablets of gabapentin 600 mg to the patient. Similarly, on November 3, 2011, Patient EB presented to Respondent, at which time Respondent prescribed 112 tablets of oxycodone 30 mg, 28 tablets of Flexeril 5 mg and: 56 tablets of gabapentin 600 mg to the patient. The medical records do not document any basis for the alteration of the medication regimen. A multi-drug urine 12 JH v. Keith B. Murray, M.D. Case Number: 2011-19788 screen completed on November 3, 2011, was positive for benzodiazepines despite the fact that no benzodiazepines had been prescribed to the patient. There is no notation or action by Respondent documented in the patient’s record concerning this inconsistency. 38. Petitioner's expert opined that Respondent's treatment of Patient EB fell below the minimum standard of care in that he prescribed controlled substances to EB without justification. The expert also opined that Respondent failed to prescribe other modalities of treatment and failed to refer the patient to consultations with other specialists. 39. . Patient EB’s medical records lack a treatment plan, including objectives that would be used to determine treatment success, and fail to document a justification for the types and amounts of medications prescribed or altered. The records also fail to document any significant abnormal examination findings or functional changes in the patient that would justify the treatment provided by Respondent. Facts specific to Patient AM 40. On May 16, 2011, Patient AM, a 28-year-old female, presented to Respondent with complaints of neck, back and hip pain; anxiety; headaches; and seizures. Patient AM indicated she currently was taking 13 OH v. Keith B. Murray, M.D. Case Number: 2011-19788 Mobic 15 mg and Robaxin 750 mg to treat her symptoms. 41. Respondent evaluated the patient but failed to examine or document key relevant exam findings, namely the patient’s sensation, reflexes, motor strength or hip range of motion. Respondent prescribed 120 tablets of oxycodone 15 mg, 30 tablets of Valium 5 mg, 30 tablets of Soma 350 mg, 30 tablets of Mobic 30 mg and 90 tablets of gabapentin 300 mg to Patient AM; however, Respondent failed to document any treatment plan for the patient. 42, Patient AM presented to Respondent for a_ follow-up appointment on June 9, 2011. At that time, Respondent prescribed 120 tablets of oxycodone 15 mg, 30 tablets of Valium 5 mg, 30 tablets of Soma 350 mg, 15 tablets of Mobic 30 mg and 90 tablets of gabapentin 300 mg to Patient AM. Similarly, at a follow-up appointment on July 28, 2011, Respondent prescribed 120 tablets of oxycodone 15 mg, 30 tablets of Valium 5 mg, 15 Lidoderm patches, 60 tablets of Flexeril 5 mg, 30 tablets of Mobic 15 mg and 90 tablets of gabapentin 600 mg to Patient AM. 43. Ata follow-up appointment on August 25, 2011, Patient AM submitted to a multi-drug urine screen, which was negative for oxycodone, opiates and benzodiazepines, despite her current prescriptions of 14 DH v. Keith B. Murray, M.D. Case Number: 2011-19788 oxycodone and Valium. At that appointment, Respondent increased the oxycodone 15 mg prescription to 150 tablets and prescribed 30 tablets of Valium 5 mg and 15 tablets of Mobic 15 mg. 44. On September 26 and October 24, 2012, Patient AM presented to Respondent for follow-up appointments. At each appointment, Respondent prescribed 150 tablets of oxycodone 15 mg and 28 tablets of Valium 10 mg. 45. Patient AM submitted to a multi-drug urine screen at a follow- up appointment on November 21, 2011, at which time she tested positive for Tetrahydrocannabinol (THC); however, the medical records for the patient fail to document any consideration by Respondent of the patient's positive THC result or the discordant results of the August 25, 2011, urine screen. At that time, Respondent prescribed 150 tablets of oxycodone 15 mg and 42 tablets of Valium 10 mg. 46. THC is the psychoactive ingredient in marijuana, or cannabis. According to Section 893.03(1), Florida Statutes (2011), THC is a Schedule I controlled substance. 47. Although records indicate that Respondent expressed an intent to refer the patient to obtain an orthopedic consultation in January, there is 15 OH v. Keith B. Murray, M.D. Case Number: 2011-19788 no indication in the medical record that Respondent actually offered or pursued any consults with other specialists or treatment modalities. In addition, there was no documented treatment plan or justification for the Valium prescription. 48. Petitioner's expert opined that Respondent's treatment of Patient AM fell below the minimum standard of care in that he prescribed controlled substances without justification. In addition, thé expert opined that Respondent failed to properly evaluate the patient or refer the patient to utilize other modalities of treatment. Count One 49. Petitioner realleges and incorporates paragraphs 1 through 48 as if fully set forth herein. 50. 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 (2010-2011). “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 16 OH v. Keith B. Murray, M.D. Case Number: 2011-19788 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(1), Florida Statutes (2010-2011), which states 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. Section 458.331(1)(t)1., Florida Statutes (2010-2011), directs the Board of Medicine (Board) to give “great weight” to this provision of Section 766.102, Florida Statutes (2010-2011). 51. Respondent failed to meet the prevailing standard of care in one or more of the following manners: a. By prescribing inappropriate types and quantities of controlled substances to Patients AK, JS, BD, EB and AM without justification; b. By simultaneously prescribing two immediate-release opioids to Patients AK and BD; c. By failing to refer Patients AK, JS, BD, EB and AM to receive consultations with other medical providers; 17 DOH v. Keith B. Murray, M.D. Case Number: 2011-19788 d. By failing to employ other modalities for the treatment of pain in connection with Patients AK, JS, BD, EB and AM; and e. By failing to properly monitor Patients AK, JS, BD, EB and AM regarding their use of controlled substances and _ potential adverse side effects. 52. Based on the foregoing, Respondent violated Section 458.331(1)(t)1, Florida Statutes (2010-2011). Count Two 53. Petitioner realleges and incorporates paragraphs 1 through 48 as if fully set forth herein. 54. Section 458.331(1)(nn), Florida Statutes (2010-2011), subjects a physician to discipline for violating any provision of Chapters 456 or 458, Florida Statutes, or any rules adopted pursuant thereto. 55. 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 18 JOH v. Keith B. Murray, M.D. Case Number: 2011-19788 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 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; 19 OH v. Keith B. Murray, M.D. Case Number: 2011-19788 2. Diagnostic, therapeutic, and laboratory results; 3. Evaluations and consultations; 4. Treatment objectives; * * * 56. Respondent failed to meet the standards for the use of controlled substances for the treatment of pain in one or more of the following manners: a. By failing to document an adequate treatment plan for Patients AK, JS, BD, EB and AM. b. By failing to conduct or document an adequate physical examination of Patients BD and AM; Cc. By failing to justify the prescriptions of controlled substances to Patients EB, AM, AK, JS and BD; d. By failing to appropriately monitor, or document appropriate monitoring of, Patients AK, JS, BD and AM for drug diversion or drug abuse; and e. By failing to document an indication for the Valium and/or Xanax prescriptions to Patients AM, AK, JS and BD. 57. Based on the foregoing, Respondent violated Section 458.331(1)(nn), Florida Statutes (2010-2011). 20 WHEREFORE, Petitioner respectfully requests the Board of Medicine enter an order imposing one or more of the following penalties upon Respondent: permanent revocation or suspension of license, restriction of practice, imposition of administrative fine, issuance of reprimand; placement of Respondent on probation, corrective action, refund of fees billed or collected, remedial education, or any other relief the Board deems appropriate. Signed this 1S day of _\ nay} , 2012. ENT C HEALTH EPARTMENT OF ° DEPUTY CLERK cLeRK .Angel Sanders DATE MAY 29 2012 Date: 5/25/12 JOHN H. ARMSTRONG, MD Surgeon General and Secretary of Health ERA Caps SOUSANE Be DANIEL HERNANDEZ Chief Legal Counsel Florida Bar No. #176834 Florida Department of Health Office of the General Counsel 4052 Bald Cypress Way Bin-C-65 Tallahassee, Florida 32399-3265 Telephone: (850) 245-4640 Fascimile: (850) 245-4662 Email: Daniel_Hernandez@doh.state.fl.us PCP Members: Dr. Miguel, Dr. Stringer & Mr. Levine 21 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 to any other discipline imposed. -15-

Docket for Case No: 12-003249PL