Findings Of Fact The Respondent is licensed by the Board to practice as an osteopathic physician in Florida. The Respondent has been licensed to practice as an osteopathic physician in the State of Pennsylvania. He was criminally charged in the State of Pennsylvania with various violations of 35 Penna. Stat. Section 780- 113(a)(14). After entering a plea of not guilty, he was tried and convicted of three counts of violating the statute. He was adjudicated guilty and sentenced. The Respondent has exhausted all direct appellate remedies in Pennsylvania. He continues to pursue available collateral remedies. The Pennsylvania State Board of Osteopathic Examiners initiated disciplinary action against the Respondent. A hearing was conducted, and the Pennsylvania board concluded that the Respondent was convicted of a crime involving moral turpitude and was guilty of unethical conduct. The Board stated: It is clear that the Respondent blatantly disregarded the health and welfare of the citizens of Pennsylvania and the Board can impose a penalty for such disregard. How- ever, the Board has taken into consideration the fact that the Respondent no longer resides or practices osteopathic medicine in Pennsylvania, and therefore, he is presently not a danger to the health, safety and welfare of Pennsylvania. Apparently disregarding the testimony of the Respondent in the record that he did intend to continue practicing osteopathic medicine in Pennsylvania if his license was not revoked, the Board imposed no penalty against the Respondent. The Respondent thus continues to be licensed to practice osteopathic medicine in Pennsylvania. The Respondent is presently engaged in the general practice of osteopathic medicine in Florida. He practices in a black area and is the only doctor who accepts Medicaid patients in the area. During 1976 he turned in his federal license to dispense controlled substances. He is thus not able to prescribe controlled substances in his practice, but he can prescribe other drugs. The Respondent has not been the subject of any other disciplinary proceedings during his many years as a practicing osteopathic physician.
The Issue Whether Petitioner's license as an Osteopathic Physician in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found: Respondent is, and has been at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0003822. Respondent's last known address is 1804 Nelson Street, No. 15, Ormond Beach, Florida 32074. From on or about July 17, 1985, until on or about April 28, 1987, Respondent diagnosed patient L.K. as suffering from, and rendered medical care and treatment for, juvenile fibromatosis or fibromatosis colli. Juvenile fibromatosis and fibromatosis colli are conditions characterized by the occurrence of multiple fibromas. Fribromas are benign (non- malignant) neoplasms. On or about July 17, 1985, Respondent executed a letter which was sent to the Exceptional Student Education Services section of the School Board of Volusia County (School Board) wherein Respondent represents that the patient L.K. "is being treated for a malignancy of the neck, etiology undermined." On or about August 22, 1986, Respondent executed a letter intended to allow the patient L.K. to avoid required immunization wherein Respondent represents that patient L.K. "...has a malignancy which was not identified by multiple biopsy." The representations made to the School Board in his letters of July 17, 1985, and August 22, 1986, were made in Respondent's practice of Osteopathic Medicine. Only one biopsy of the patient's neck mass was performed prior to Respondent's letter of August 22, 1986, to the School Board. This biopsy was performed during March of 1980 by Gary Horndeski, M.D. The pathology report concerning this biopsy was not received by Respondent until March 18, 1987. The patient's neck mass had not been subjected to multiple biopsy as represented by the Respondent on August 22, 1986. The Respondent's representations in the August 22, 1986 letter were deceptive, untrue, and fraudulent. The medical records of Respondent fail to document that Respondent performed multiple biopsies on the mass. Respondent has failed to keep written medical records justifying the course of treatment of the patient, including but not limited patient histories, examination results, and test results. Respondent prescribed, dispensed or recommended BHI Regeneration, Polyzyme 022 and Vitamin C 500 mg tablets to patient L.K. On or about November 21, 1986, Respondent executed three separate forms authorizing the administration of BHI Regeneration, Polyzyme 022 and Vitamin C to patient L.K. by school personnel of Volusia County, indicating that he had ordered the administration of these substances as a "part of scheduled med program." BHI Regeneration and Polyzyme 022 are "drugs" as defined by Section 499.003(8), Florida Statutes. Respondent failed to note in patient L.K.'s medical records his prescribing, dispensing or recommendation of BHI Regeneration and Polyzyme 022. Respondent's written medical records fail to document "informed consent" to the drug therapy initiated including medically acceptable alternative procedures or treatments. The preferred course of treatment for a mass of the size and location as existing on patient L.K. would be surgical intervention. Respondent's written medical records fail to adequately document the reason for not following the preferred course of treatment (surgery), that surgery was discussed with the patient's parents, or that the parents declined surgery. Respondent's entry for March 10, 1987, in the medical record of patient L.K. indicates "recommend to get physiotherapy in lieu of surgery." Respondent's medical records fail to justify the course of treatment of the patient, including but not limited to patient histories, examination results, and test results. A reasonably prudent similar physician under similar conditions and circumstances would have referred patient L.K. to a specialist or obtained a consultation with a specialist. Respondent failed to do so. A reasonably prudent similar physician under similar conditions and circumstances would not have recommended that patient L.K. not receive standard immunizations nor would such a physician have executed a school form allowing patient L.K. to be exempted from required immunizations. A reasonably prudent similar physician would have obtained and reviewed prior biopsy report or conducted a biopsy on patient L.K. soon after undertaking the care of the patient. Respondent has failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably osteopathic physician as being acceptable under similar conditions and circumstances. On or about April 7, 1987, the Board of Osteopathic Medical Examiners issued a Subpoena Duces Tecum commanding Respondent produce for copying and inspection any and all medical records of patient L.K. On or about May 8, 1987, the aforementioned subpoena was served on Respondent to produce copies of any and all medical records of patient, L.K., on May 10, 1987, at 6501 Arlington Expressway, Jacksonville, Florida. Respondent did not file a challenge or object in any fashion to the subpoena. As a result of the Petitioner filing a petition for enforcement of the subpoena, Respondent furnished to Petitioner what was purported to be the medical records of patient L.K., and did not in any way advise Petitioner that there were certain records pertaining to L.K. that he did not consider medical records. The medical records of patient L.K. submitted by Respondent in response to the subpoena were incomplete. Respondent's license to practice osteopathic medicine in the state of Florida was disciplined by the Board of Osteopathic Medical Examiners (Board) by its final order issued on April 19, 1988, wherein Respondent's license was suspended for one year; to be followed by a three year period of probation.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 459.015(1)(n), (p), (y) (cc), Florida Statutes (1989), as set forth in Counts I, III, IV and V of the Second Amended Administrative Complaint, as amended, and for such violation, considering the guidelines for imposing penalties set forth in Rule 2IR-19, Florida Administrative Code, and the aggravating or mitigating circumstances allowing the Board to deviate from those guidelines set forth in Rule 2IR-19, Florida Administrative Code, it is RECOMMENDED that Respondent's license to practice osteopathic medicine in the State of Florida be suspended for one year subject to the terms and conditions the Board deems appropriate for reinstatement. It is further RECOMMENDED that Count II be DISMISSED. Respectfully submitted and entered this 27th day of October, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 27th day of October, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0308 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on the proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1-26. Adopted in Findings of Fact 1-26, respectively. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Respondent filed a one page, two paragraph Proposed Findings of Fact and Proposed Conclusion of Law that was an argument consisting of facts and law. To the extent that there are facts contained in his argument, they are either not material or not relevant. COPIES FURNISHED: Bruce D. Lamb, Esquire Chief Trial Counsel 730 S. Sterling Street Suite 201 Tampa, Florida 32609 David L. Sturdivant, Sr. 1804 Nelson Street, #I15 Ormond Beach, Florida 32704 Rod Presnell Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether disciplinary action should be taken against the Respondent's license based on the alleged violations of Section 459.015(1), Florida Statutes, and Rule 21R-20, Florida Administrative Code, as set forth in the Administrative Complaint: By fraudulently misrepresenting that he met the criteria for exemption from demonstrating financial responsibility. By failing to demonstrate his financial responsibility to pay claims for medical care. By falsely swearing on his Physician's License Renewal form. By violating a term of the Final Order of the Board of Osteopathic Medical Examiners dated August 22, 1988.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes. Respondent is and has been at all times material hereto licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001663. Respondent's practice is in Tampa, Florida. Respondent was employed, in his capacity as an osteopathic physician, as an independent contractor at a walk-in clinic owned and operated by Dr. J. Eloian followed by Mitchell D. Checkver, D.O., which office is currently located at 7211 N. Dale Mabry, #100, Tampa, Florida, from 1984 through 1990. Respondent's license to practice osteopathic medicine was in a probationary status from August of 1988, until June 15, 1990, pursuant to a Final Order filed by the Board of Osteopathic Medical Examiners (Board) on August 2, 1988, regarding case numbers 0055173, 0038979 and 00372994. As a condition of probation Respondent was to comply with all state and federal statutes, rules and regulations pertaining to the practice of osteopathic, including Chapters 455 and 459, Florida Statutes and the Florida Administrative Code. As a condition of probation, Respondent was to pay the Board a total administrative fine of $3,000, which was said. About a year before Dr. John Eloian retired in August 1988, he discussed the possibility of utilizing the exemption for part time physicians (in Section 459.0085, Florida Statute) with other doctors in his office, including Respondent. A condition of renewing an active license to practice osteopathic medicine in the State of Florida, is compliance with Section 459.0085, Florida Statutes. The licensee must demonstrate financial responsibility or meet the criteria for exemption. Two years later, on November 6, 1989, Respondent submitted a Board of Osteopathic Medical Examiners' Physician's License Renewal Form, and signed a sworn affidavit as to the veracity of the information provided therein. A sign was posted announcing to the patients that no malpractice insurance was carried by Respondent and Dr. Eloian. Within the License Renewal Form, Respondent represented that he was exempt from demonstrating financial responsibility based on his meeting all of the criteria listed. The exemption which the Respondent attempted to utilize had criteria which included the condition that the Respondent has not been subject, within the past ten (10) years of practice, to a fine of $500.00 or more for a violation of Section 459, Florida Statutes. The form specifies that a regulatory agency's acceptance of a stipulation, in response to filing of administrative charges against a licensee, shall be construed as action against a licensee. The exemption also had criteria which specified that the Respondent had maintained a part time practice of no more than 1,000 patient contact hours per year. Based on Respondent's submission to the Board of Osteopathic Medical Examiners of this Physician's Licensure Renewal Form in November 1989, and the information given therein, his license to practice osteopathic medicine was renewed through 1991. Subsequently, Respondent acknowledged he was ineligible for the exemption and obtained medical malpractice insurance, effective July 1, 1990. Respondent read, or should have read, the Physician's License Renewal form sufficiently to be aware of the language therein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 459.015(1)(a), Florida Statutes. As punishment therefore Respondent should pay a fine of $1,000, and he should be placed on probation by the Board of Osteopathic Medical Examiners with such reasonable terms and conditions as the Board may require. RECOMMENDED this 13th day of May, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0395 The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact: Accepted in substance: paragraphs 1,3,4,5,6,7,8,9,10,11,12,13, 14,18 Rejected as irrelevant or as argument: paragraphs 2,15,16,17 Respondent's proposed findings of fact: Accepted in substance: paragraphs 1 (in part), 4 (in part), 7 (in part), 9 Rejected: paragraphs 2 (in part, as against the greater weight of the evidence and as a conclusion of law), 3 (conclusion of law), 5 (irrelevant), 6 (irrelevant), 7 (in part), 8 (irrelevant) 10 (irrelevant) COPIES FURNISHED: Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 John R. Feegel, Esquire Thomas Sabella, Jr., Esquire 401 South Albany Avenue Tampa, FL 33606 Bill Buckhalt Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation, Suite 60 Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Respondent, Leon L. Shore, was at all times material hereto a licensed osteopathic physician in the State of Florida, having been issued license number OS 0001600. On or about December 19, 1985, respondent presented to Harvey Sogoloff a pharmacist licensed in the State of Florida, a prescription to be filled. The subject prescription was written by respondent, and prescribed Percodan for himself. Mr. Sogaloff duly filled the subject prescription. Percodan, whose active ingredient is Oxicodone Hydrochloride, a salt of oxicode, is a Schedule II narcotic drug, as defined by Section 893.03(2)(a), Florida Statutes (1985). At the time of the prescription was written, respondent maintained his primary place of practice at 4801 South University Drive, Davie, Florida. During the first week of September, 1986, respondent closed his practice at that location without notice to petitioner, and did not thereafter practice for several months. In January, 1987, respondent resumed his practice at a new location, without notice to petitioner. Respondent asserts, however, that 2-3 weeks after commencing such practice, he instructed one of the medical directors at the center to notify petitioner of his new address. There was no proof that such notice was given, but following the commencement of this case, respondent did notify the petitioner of his new address, and no untoward consequences were shown to have resulted from such delay.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered placing respondent on probation for a period of one (1) year subject to such conditions as the board may specify, and imposing an administrative fine against respondent in the sum of $1,000. DONE AND ORDERED this 21st day of January, 1988, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 2. & 8. Addressed in paragraphs 4 and 5. & 4. Addressed in paragraphs 2 and 3. 5-7 & 9. Rejected as not a finding of fact, or subordinate. Respondent's proposed findings of fact are addressed as follows: Not necessary to result reached. Not necessary to result reached. 3-9 & 12. Rejected as not a finding of fact, subordinate, or contrary to the result reached. 10 & 11. Addressed in paragraphs 4 and 5. COPIES FURNISHED: David G. Vinikoor, Esquire DAVID G. VINIKOOR, P.A. 420 S. E. Twelfth Street Fort Lauderdale, Florida 33316 Derk A. Young, Esquire 320 Southeast 9th Street Fort Lauderdale, Florida 33316 Mr. Rod Presnell Executive Director Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The Petitioner, State of Florida, Department of Professional Regulation, Board of Osteopathic Medical Examiners, has brought an action by Administrative Complaint against the Respondent, George Warren Frison, Jr., D.O., charging that on January 4 and 31, 1978, and February 28, 1978, the Respondent issued prescriptions for a substance commonly known as Quaalude, otherwise known as Methaqualone, and prescriptions for a substance known as Biphetamine, a material, mixture, compound or preparation which contains Amphetamines; both types of prescriptions being controlled substances within the meaning of Chapter 893, Florida Statutes. The complaint further alleges that the prescriptions were delivered to a patient, George DeBella, also known as George J. Conlon, without good faith and not in the course of the Respondent's professional practice, and, therefore, unlawfully. See Section 893.03, Florida Statutes. Finally, the Administrative Complaint alleges that these acts on the part of the Respondent are prohibited by Sections 893.05 and 893.13, Florida Statutes, and are violative of Subsections 459.14(2)(m) and (n), Florida Statutes, in that the Respondent is guilty of unprofessional conduct and has violated the laws of the State of Florida.
Findings Of Fact This cause comes on for consideration based upon the Administrative Complaint filed by the State of Florida, Department of Professional Regulation, Board of Osteopathic Medical Examiners. The Respondent in this cause is George Warren Frison, Jr., D.O., who holds license No. 1169 under regulation by the Petitioner. Dr. Frison also held license No. 1169 at all times pertinent to the Administrative Complaint. The Administrative Complaint is a six-count document, the general nature of which has been outlined in the issues statement of this Administrative Complaint. The specific contentions of the Administrative Complaint will be addressed in the course of these findings of fact. The proof offered reveals that on January 4, 1978, an officer of the Daytona Beach Police Department, one George Joseph Conlon, went to the office of the Respondent in DeBarry, Florida. At the time of this visit, Officer Conlon was operating under the assumed name of George DeBella. The purpose of Officer Conlon's visit was to ascertain if the Respondent was issuing prescriptions for drugs, not as a part of Dr. Frison's professional practice, but merely to satiate the desires of the ostensible patient and to profit from the encounter by charging the patient for the office visit. When Conlon entered the doctor's office on January 4, 1978, he was initially seen by Dr. Frison's nurse, who took the patient's blood pressure end weighed him and had the patient complete a form medical history data sheet. Conlon was then ushered in to see the doctor and he proceeded to tell Dr. Frison that he was not a "doper" and was not there for the purpose of getting Dilaudids. He explained to Dr. Frison that he had two jobs and that he was taking small black capsules to keep him going, to which Dr. Frison replied as an interrogatory, "Biphetamines?". Conlon explained that he didn't know what the substance was but that he had been paying $3.00 apiece to buy them from dealers and that arrangement was stupid and could he get some from the Respondent. Dr. Frison asked if Conlon meant a prescription and Conlon replied in the affirmative, and Frison said that he could get a prescription. Conlon in turn asked if he needed to provide other information. Frison responded by asking Conlon, "How many do you take?" Conlon indicated that he took one in the morning and one around six o'clock p.m. There was further conversation in which Conlon explained that he worked in a nursery in the daylight working hours and as a bartender from 2:00 p.m. to 2:00 a.m. Conlon also made remarks to the effect that he, Conlon, was not a "freak" and that he was trying to be "straight" with the doctor. Dr. Frison inquired if the small black capsules were the only thing that Conlon took and Conlon, in answering the doctor, indicated he had taken several Quaaludes, which helped to put him to sleep at night and that his frequency of using the drug was three times a week, at most. In response to the comments about Quaaludes, Dr. Frison asked Conlon if he would like a prescription for a few Quaaludes, and Conlon agreed. Frison indicated that he would give him a prescription for the Quaaludes, but not in the quantity of the Biphetamines which he was prescribing. There was further conversation about where the patient lived and in answering the Respondent's question, Conlon acknowledged that he lived in Daytona Beach, Florida. The Respondent asked why he didn't ask for a prescription in Daytona Beach and Conlon said it was because someone had mentioned Dr. Frison. There was a final series of remarks about buying drugs from other sources and paying $3.00 and that terminated the conversation. The only other examination or discussion which the doctor had with Conlon on January 4, 1978, involved the doctor taking the pulse of Officer Conlon during their conference. After this meeting between Dr. Frison and Conlon, Dr. Frison prescribed sixty Biphetamines, which is a mixture which contains Amphetamines and is a controlled substance within the meaning of Chapter 893.03, Florida Statutes, specifically a Schedule II item. Dr. Frison also prescribed thirty Quaaludes, also known as Methaqualone, which is a controlled substance within the meaning of Section 893.03, Florida Statutes, and specifically a Schedule II item. A copy of the prescriptions may be found as the Petitioner's Composite Exhibit No. 1 admitted into evidence. Officer Conlon was carrying a concealed transmitter on his person when this visit and the following visits were made to the Respondent's office, and tapes were made of the office conversations which were recorded from Conlon's transmitter. A transcript of the intelligible parts of the conversations between Conlon and the Respondent and Conlon and the Respondent's nurse, that occurred on January 4, 1978, may be found as the Petitioner's Exhibit No. 2 admitted into evidence. On January 31, 1978, Conlon returned to the office of the Respondent in DeBary, Florida. Again, the nurse weighed Conlon and took his blood pressure. Dr. Frison saw the patient and asked how the patient had been progressing and inquired about the number of tablets the patient had taken. Conlon responded that he took two or three a day. Dr. Frison indicated that that number was too many. Dr. Frison also noted that it had only been twenty-seven days since the last visit. Dr. Frison then determined to issue new prescriptions, but to postdate prescriptions for Biphetamines and Quaaludes to February 3, 1978. In connection with this, he prescribed sixty Biphetamines and sixty Quaaludes. There was some discussion held about the nature of the Quaaludes and how the patient, Conlon, might become dependent on them, leading to potential addiction. Frison also indicated that addiction to Biphetamines is one of the worst addictions and that Conlon should cut down the use of them. There was a further inquiry by Dr. Frison about why the patient did not get the prescriptions in Daytona Beach, to which Conlon replied that he was nervous about that. Frison terminated the conversation by telling Conlon not to take too many of the tablets and agreeing to write the prescriptions. There was no further physical examination of the patient or other discussion of the patient's condition. A copy of the prescriptions dated February 3, 1978, may be found as the Petitioner's Composite Exhibit No. 3 admitted into evidence and a copy of the transcript of the conversation between Conlon and the Respondent to the extent the conversation was intelligible, may be found as the Petitioner's Exhibit No. 4 admitted into evidence. Conlon made another trip to Dr. Frison's DeBary, Florida, office on February 28, 1978. He again was weighed and had his blood pressure taken by the nurse. Conlon was seen by Dr. Frison, who checked his pulse and chest. In the course of the visit, the Respondent inquired about Conlon's health and about his job at the bar. Then Frison stated that he would give Conlon prescriptions for that date, but would not be able to give him prescriptions for Quaalude and Biphetamine in the future. He explained to Conlon the reason for termination of the practice was that he was having problems of an unspecified nature. There was some brief discussion about a skin infection which the Patient had and that ended the conversation between the Respondent and Conlon. (Frison did not treat the patient for the skin condition.) Frison prescribed sixty Biphetamines and sixty Quaaludes and copies of these prescriptions may be found as part of the Petitioner's Composite Exhibit No. 5 admitted into evidence. As before, the intelligible parts of the conversation, as transcribed, may be found in the copy of that transcribed conversation which is Petitioner's Exhibit No. 6 admitted into evidence. In view of the events which occurred on January 4 and 31, 1978, and February 28, 1978, involving George J. Conlon, the ostensible patient of the Respondent, the Petitioner has brought the Administrative Complaint. Counts I and II deal with the events of January 4, 1978, and the prescription for Quaalude, otherwise known as Methaqualone; and Biphetamine, a material, mixture, compound or preparation containing Amphetamines, Count I dealing with the Quaalude and Count II dealing with the Biphetamine. Counts III and IV deal with the events of January 31, 1978, and the prescription for Quaalude, otherwise known as Methaqualone; and Biphetamine, a material, mixture, compound or preparation containing Amphetamines, Count III dealing with the Quaalude and Count IV dealing with the Biphetamine. Finally, Counts V and VI deal with the events of February 28, 1978, and the prescription for Quaalude, otherwise known as Methaqualone; and Biphetamine, a material, mixture, compound or preparation containing Amphetamines, Count V dealing with the Quaalude and Count VI dealing with the Biphetamines. In each of the counts, the Respondent is accused of delivering drugs without good faith and not in the course of professional practice and thereby unlawfully distributing and dispensing a controlled substance described in Section 893.03, Florida Statutes. According to the allegations, the acts of the Respondent in those instances are prohibited by Sections 893.05 and 893.13, Florida Statutes, and such acts constitute a violation of Subsections 459.14 (2)(m) and (n), Florida Statutes, in showing that the Respondent is guilty of unprofessional conduct and has violated the laws of the State of Florida. The substantive provisions dealing with disciplinary action against the Respondent are found in Subsection 459.14(2)(m), Florida Statutes, and Subsection 459.14(2)(n), Florida Statutes. The former provision states: 459.14(2)(m) A finding of the board that the individual is guilty of immoral or unprofes- sional conduct. Unprofessional conduct shall include any departure from, or failure to conform to, the minimal standards of accept- able and prevailing osteopathic medical prac- tice, without regard to the injury of a patient, or the committing of any act contrary to hon- esty, whether the same is committed in the course of practice or not. The evidential facts shown indicate that the substance commonly known as Quaalude, otherwise known as Methaqualone, a controlled substance within the meaning of Chapter 893, Florida Statutes, and the substance known as Biphetamine, a material, mixture, compound or preparation which contains Amphetamines, a controlled substance within the meaning of Chapter 893, Florida Statutes; were not prescribed in good faith and in the course of the Respondent's professional practice, as required by Section 893.05, Florida Statutes, if the Respondent is to avoid the penalties of the provisions of Section 893.13, Florida Statutes. This lack of good faith constituted unprofessional conduct, in the sense that the Respondent was departing from and failing to conform to the minimal standards of acceptable and prevailing osteopathic medical practice, set out in Subsection 459.14(2)(m), Florida Statutes. In particular, the departure from and failure to conform to those minimal standards is evidenced by the Petitioner's act of prescribing the controlled substance for Conlon when there was no specific complaint of a physical problem. This finding is made in spite of the witnesses who testified in behalf of the Respondent, who claimed that you could prescribe medication for compassionate reasons, and notwithstanding the Respondent's false entry into the medical chart of the patient, Conlon, indicating that the patient was being treated for the condition of being overweight. The Respondent further violated the standards of his professional community by failing to take an adequate history of the patient's condition on the occasions the patient was seen; failing to make an adequate physical examination of the patient on the occasions when the patient was seen; and by not placing reasonable controls over the drugs that were prescribed for the patient, particularly in his failure to warn the patient not to drive or use heavy machinery while under the influence of the medications. The Physician's Desk Reference manual creates a necessity for these cautionary instructions referred to above, and the Respondent should have warned the patient of the medications' possible effects. The Respondent also violated medical practice by postdating the prescriptions which were issued on January 31, 1978. Finally, the Respondent violated the minimum standards of his profession by prescribing Quaaludes and Biphetamines in combination when these drugs are known to have an antagonistic effect in combination. These findings of violations pertain to each date that the patient was seen; January 4 and 31, 1978, and February 28, 1978, involving both the substances, Quaalude and Biphetamine. The other substantive grounds of a violation alleged by the Petitioner deal with Subsection 459.14(2)(n), Florida Statutes, which reads as follows: 459.14 (2)(n) Violation of any statute or law of this state or any other state or terri- tory of the United States or any foreign country, which statute or law relates to the practice of medicine. To establish this violation, it would be necessary for a court of competent jurisdiction to have found the Respondent guilty of a violation of Section 893.13, Florida Statutes. This determination cannot be made by an administrative tribunal and in view of the fact that no court of competent jurisdiction has found such a violation, the Petitioner's claim under Subsection 459.14(2)(n), Florida Statutes, has not been sustained.
Recommendation It is recommended that the Petitioner, State of Florida, Department of Professional Regulation, Board of Osteopathic Medical Examiners, suspend the Respondent, George Warren Frison, Jr., D.O., for a period of one (1) year for the violations established in Counts I and II; for one year for the violations established in Counts III and IV, to run concurrently with the penalty imposed for Counts I and II; and for one (1) year for the violations established in Counts V and VI, to run concurrently with the penalty imposed for Counts I and II. DONE AND ORDERED this 25th day of July, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801
