The Issue Whether the Respondent committed the violations set forth in the Amended Administrative Complaint dated November 19, 1998, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Board of Osteopathic Medicine is the entity responsible for imposing discipline on those licensed in Florida as osteopathic physicians. Section 459.015(2), Florida Statutes. The Department of Health is the state agency responsible for investigating and prosecuting disciplinary cases in which a probable cause panel of the Board of Osteopathic Medicine has found probable cause to support the filing of a formal complaint against a licensee. Section 455.621(4), Florida Statutes. Christopher Wayne, D.O., was at the times material to this proceeding, and is currently, a licensed osteopathic physician in the State of Florida, specializing in family practice and certified by the American Osteopathic Board of Family Physicians. Dr. Wayne operated at the times material to this proceeding, and currently operates, a primary care medical practice under the name of Dr. Christopher Wayne, D.O., Incorporated ("Company"). At the times material to this proceeding, the Company's office was located on the fifth floor in a building adjacent to the Mount Sinai Medical Center in Miami Beach, Florida. At the times material to this proceeding, Dr. Wayne and the physicians employed in his practice had staff privileges at several hospitals and medical centers in the Dade County area. However, at the times material to this proceeding, Dr. Wayne did not have staff privileges at Parkway Regional Medical Center ("Parkway"). At least one physician employed by the Company, Agustin Andrade, had staff privileges at Parkway. Dr. Wayne began discussions with Agustin Andrade with respect to his possible employment by the Company as a family practice physician in or around June 1995. Dr. Andrade is a medical doctor who completed a three-year residency in internal medicine and a two-year fellowship in endocrinology at the University of Miami, in Miami, Florida; he is board-certified in internal medicine and endocrinology. Dr. Andrade was also a citizen of Ecuador at the times material to this proceeding. On July 7, 1995, Dr. Andrade signed an Employment Agreement with the Company, and he began working for the Company in October 1996. The delay was attributable to Dr. Andrade's need to obtain legal residency and authority to work in this country. He obtained legal residency and authorization to work in this country in June 1996, and he obtained his green card, representing the permanent right to stay in this country, in February 1997. As part of the process for obtaining a green card, Dr. Andarde completed a HUD J-1 Visa Waiver Policy Affidavit and Agreement in which he agreed to the following conditions: I understand and agree that in consideration for a waiver, . . . I shall render primary medical services to patients, including the indigent, for a minimum of forty (40) hours per week within a USPHS designated HPSA. Such service . . . shall continue for a period of at least two (2) years. I agree to incorporate all the terms of this HUD J-1 Visa Waiver Affidavit and Agreement into any and all employment agreements I enter pursuant to paragraph 3 and to include in each such agreement a liquidated damages clause, of not less than $250,000 payable to the employer. This damages clause shall be activated by my termination of employment, initiated by me for any reason, only if my termination occurs before fulfilling the minimum two year service agreement. Soon after he began working for the Company, Dr. Andrade's professional relationship with Dr. Wayne deteriorated rapidly for a variety of reasons. After two weeks, Dr. Andrade told Dr. Wayne that he wanted a raise because he had learned that the other physician employed by the Company at the time was paid a higher salary than he was paid. Dr. Andrade also accused Dr. Wayne of forcing him to engage in what Dr. Andrade termed "illegalities," of forcing him to see too many patients at too many different hospitals, and of requiring him to see pediatric patients, which he did not feel he was qualified to treat. On January 7, 1997, Dr. Wayne and Dr. Andrade were the only physicians employed by the Company. On the evening of January 7, 1997, medical orders were given by telephone for three of Dr. Andrade's patients hospitalized at Parkway. The physician order forms indicate that the person giving the orders was Dr. Andrade. Dr. Andrade denies giving these orders, and he subsequently refused to accept responsibility for the orders by declining to sign them. At around 8:00 p.m. on January 9, 1997, Dr. Andrade went to Parkway and spoke with the nurses in Parkway's surgical intensive care unit, specifically Ann Bravi, a registered nurse who has been employed at Parkway for twenty-eight years. Dr. Andrade told Nurse Bravi that someone was impersonating him and giving telephone orders for his patients. While Dr. Andrade was standing beside her, Nurse Bravi called Dr. Andrade's answering service regarding one of his patients. The call was returned by someone who identified himself to Nurse Bravi as Dr. Andrade and who told her that there would be "[n]o orders for now." Nurse Bravi cannot recall whether she telephoned the answering service at Dr. Andrade's request or on her own initiative, nor could she recall whether she called the answering service number noted on the patient's chart or called a number that Dr. Andrade gave her. On Friday, January 10, 1997, Dr. Andrade terminated his employment with the Company, accusing Dr. Wayne of having breached the Employment Agreement by impersonating him with the staff at Parkway and by giving telephone orders on Dr. Andrade's patients at Parkway. On Monday, January 13, 1997, Dr. Andrade was distributing business cards indicating that he was practicing medicine with another physician, whose offices were located on the first floor of the building in which the Company's office was located. The Company has sued Dr. Andrade for damages resulting from breach of contract, and Dr. Andrade has sued Dr. Wayne for defamation. At the time of the final hearing, both lawsuits were pending in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida. If an osteopathic physician gives medical orders by telephone for a patient who is not his patient and who is hospitalized in a facility at which he does not have medical staff privileges, then that physician has acted in a manner inconsistent with ethics and the standard of care practiced by an osteopathic family physician. The osteopathic physician has further acted in a manner inconsistent with ethics and the standard of care practiced by an osteopathic family physician if that physician gives telephone orders using the name of another physician. The evidence presented by the Department is insufficient to establish with the requisite degree of certainty that Dr. Wayne gave telephone orders for any of Dr. Andrade's patients at the Parkway Regional Medical Center or that he identified himself as Dr. Andrade in telephone conversations with staff at the Parkway Regional Medical Center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a final order dismissing the Amended Administrative Complaint against Christopher Wayne, D.O. DONE AND ENTERED this 28th day of October, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1999.
Findings Of Fact Respondent, Eugene W. Williams, II, is an osteopathic physician licensed in Florida, and was so licensed at all times relevant to this proceeding. His address is 4394 Palm Beach Boulevard, Fort Myers, Florida 33905. On June 21, 1979, Sue Riley presented herself to Respondent for treatment of a fractured left distal radius. Respondent ordered arm elevation and ice bag treatment to reduce the swelling. The next day, he set the arm in a cast and performed a closed reduction. The injured arm was initially x-rayed at the hospital emergency room on June 21, 1979, and was not x-rayed again until July 5, 1979, when Respondent noted that the fracture was not closed. He then referred the patient to an orthopedic specialist. The testimony of Petitioner's expert witness indicated that a second X ray should have been taken after casting rather than two weeks later to insure that the fracture was, in fact, closed. Without such an X ray, Respondent could not be certain that the fracture was closed initially or that it had not reopened. Respondent's testimony and that of two other experienced physicians established that it is not uncommon to omit the X ray immediately after casting. In their view, no X ray is needed for ten days to two weeks provided the fracture appears to have been closed and properly aligned. Respondent's testimony established that all indications were favorable following casting and that he did not believe an X ray was needed for ten days to two weeks.
Recommendation From the foregoing, it is RECOMMENDED that the Second Amended Administrative Complaint be dismissed. DONE and ENTERED THIS 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: James B. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 JulieAnn Ricco, Esquire 1655 Palm Beach Lakes Boulevard Suite 106, Forum III West Palm Beach, Florida 33401 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Prior to and during part of 1983 Dr. Sturdivant practiced as an osteopathic physician. Dr. Sturdivant operated an office in Bradenton, Florida. Sometime during 1983 Dr. Sturdivant met and discussed employment with Dr. Daniel Clark. Dr. Clark operated the Total Health Care Clinic Center (hereinafter referred to as the "Center"), in Ormond Beach, Volusia County, Florida. Dr. Clark had been licensed as a physician in Florida. Dr. Clark's license to practice medicine in Florida was revoked, however, on April 21, 1983. As a result of his discussions with Dr. Clark, Dr. Sturdivant practiced medicine at the Center four days a week during most of 1983. One day a week Dr. Sturdivant continued to work out of his office in Bradenton. Sometime during 1984 Dr. Sturdivant left the Center. He did not return to the Center until 1985. During the early part of 1985 Dr. Sturdivant returned to the Center where he worked full time as the Center's Medical Director. Dr. Sturdivant worked at the Center from at least March 27, 1985 to at least June 22, 1985. During the period of time during 1985 that Dr. Sturdivant acted as the Medical Director of the Center, Dr. Clark's title was Administrator of the Center. During the period of time after April 21, 1983, that Dr. Sturdivant was employed at the Center Dr. Sturdivant knew or had reason to know that Dr. Clark's license to practice medicine in the State of Florida had been revoked. During the portion of 1985 that Dr. Sturdivant was employed as the Medical Director of the Center Dr. Sturdivant was aware that he was responsible for the medical care of patients seen at the Center. Ms. Judy Baxley was seen as a patient at the Center several times beginning in March, 1985, while Dr. Sturdivant was the Medical Director. Ms. Baxley was treated for asthma and a "yeast" infection. Ms. Baxley was seen by Dr. Clark on some of her visits. She received medical tests and treatments at the direction of Dr. Clark, as evidenced, at least in part, by progress notes signed by Dr. Clark. Ms. Shirley Van Gampler was seen as a patient at the Center on May 8, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Van Gampler was seen by Dr. Clark as a patient. Dr. Clark's treatment of Ms. Van Gampler included examination, testing and diagnosis, as evidenced, at least in part, by progress notes signed by Dr. Clark. Mr. Douglas Cutsail was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director. Mr. Cutsail had a history of heart attacks and hypertension. He went to the Clinic in an effort to control his high blood pressure. Dr. Clark treated Mr. Cutsail as a patient, performing tests on Mr. Cutsail and directing chelation therapy treatments of Mr. Cutsail's medical problems. Dr. Clark signed the progress notes on Mr. Cutsail. Dr. Sturdivant also signed the progress notes but his signature was added at a later date after Dr. Clark had already treated Mr. Cutsail. Ms. Eileen Deasy was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Dr. Clark treated Ms. Deasy as a patient, as evidenced by progress notes signed by Dr. Clark. Ms. Lonna Sloan was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Sloan, who is now deceased, had breast cancer at the time she was seen by Dr. Clark. Ms. Sloan was treated as a patient by Dr. Clark. The treatment received by Ms. Sloan was substandard treatment. Dr. Sturdivant allowed Dr. Clark to exercise professional medical responsibilities during 1985 while Dr. Sturdivant was the Medical Director of the Center and with knowledge that Dr. Clark was not licensed to carry out those responsibilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Dr. Sturdivant's license to practice in the State of Florida be suspended for a period of one (1) year. It is further, RECOMMENDED that the recommended suspension of Dr. Sturdivant's license for one (1) year be stayed and set aside and that he be placed on probation for a period of three (3) years in lieu thereof. During the period that Dr. Sturdivant is on probation, he should be required to work under the supervision of an osteopathic physician. He should not work in any supervisory capacity. During the period of his probation, Dr. Sturdivant and his supervisor should submit quarterly written reports of Dr. Sturdivant's employment activities. DONE and ENTERED this 8th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 8th day of February, 1988. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection 1 Stipulated to by the parties. 2 3. 2 and 4. 5 and 6. 5 6. 6 7. 7 8. 8 9. 9 10. 10 11. 11 12. 12-13 13. This is a conclusion of law. Lonna Sloan's deposition is hearsay. It has been accepted only to the extent that it corroborates the testimony of Dr. Smith and Petitioner's exhibit 3, the progress notes on Ms. Sloan. Summary of testimony. Cumulative and hearsay. The Respondent's Proposed Findings of Fact Not supported by the weight of the evidence and irrelevant. The evidence established that Dr. Sturdivant was aware that Dr. Clark's license to practice in Florida had been revoked. Whether Dr. Clark had a license to practice in Georgia is irrelevant. The evidence failed to prove this contention. The evidence did prove that some of the products sold by the Center were nutritional products available in health food stores. The evidence also proved that persons who received nutritional products were treated medically by Dr. Clark. The evidence failed to prove that these nutritional products were prescribed as only for nutritional purposes. COPIES FURNISHED: Susan Branson, Esquire William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Sturdivant, D.O. 800 South Nova Road Suite H Ormond Beach, Florida 32074 Mr. Rod Presnell Executive Director Department of Professional Regulation Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue is whether the osteopathic medical license of James E. Mhoon, D.O., (Mhoon) should be revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.
Findings Of Fact James E. Mhoon, D.O., is a licensed osteopathic physician in the State of Florida, having been issued license number 050001142. He practices at 1502 Roberts Drive, Jacksonville Beach, Florida, and has practiced in Florida since 1958. Between January 25, 1982, and June 19, 1985, Mhoon treated Mrs. Vernon (Vee) Howard for osteoarthritis, degenerative disc disease, and osteoporosis. Throughout this time period, Mhoon prescribed a Schedule II narcotic, Nembutal, to Mrs. Howard. Specifically, between January 1, 1984, and March 7, 1985, Mhoon prescribed 800 Nembutal to the patient. Mrs. Howard first saw Mhoon on January 25, 1982, at age 63. Mhoon hospitalized her and referred her to a neurologist. She was already taking Nembutal prescribed by another doctor, although Mhoon's records do not indicate who that doctor was. According to Mhoon, she was seen by a neurologist, referred to University Hospital to a neurosurgeon, and ultimately had disc surgery in March, 1982; however, Mhoon's records do not contain any documentation of these events. Nembutal, according to the Physician's Desk Reference (PDR), is a hypnotic agent and is appropriate for short-term treatment of insomnia. Mhoon explained that he used Nembutal in this patient because it was an extremely strong sedative hypnotic which also potentiates the narcotic analgesic medication he gave her (Percodan). He prescribed it because Mrs. Howard had constant severe pain and was unable to sleep. He believed that this was the only choice for this patient because he could use these drugs to relieve her pain and allow for sleep while risking addiction or he could allow Mrs. Howard to die. No other viable surgical or medical alternatives existed. Dr. Lloyd Gladding acknowledged that Nembutal was useful in conjunction with Schedule II analgesics in the long- term management of severe pain. According to Gladding it would be useful if other alternatives were not available. Duane L. Bork, M.D., also agreed that the use of Nembutal with this patient was appropriate considering her chronic problems with severe pain. Mhoon's medical records on Mrs. Howard do contain multiple references to her chronic pain and associated sleep disturbance. They also contain numerous references to Mrs. Howard's severe alcoholism, including one hospitalization for an overdose of Percodan and alcohol. In these respects, the medical records are adequate to justify the course of treatment. Mhoon treated a patient, Roy Landrum, from March, 1971, until June, 1985, for hypotension and anxiety as well as other injuries and illnesses. Throughout this time Mhoon prescribed Seconal, a Schedule II drug. While Mhoon prescribed Seconal throughout the time he saw Landrum, specifically between January 30, 1984, and June 5, 1985, he prescribed and the patient received 5450 milligrams of Seconal or approximately 500 milligrams per day (10 50 mg. capsules per day). Seconal has the side effects of confusion, disorientation, and drowsiness, and is addictive. According to the PDR, the recommended dosage of Seconal is between 50 and 100 milligrams daily for short periods. According to Mhoon's testimony, he first saw Landrum in 1971 at age Landrum had been receiving Seconal for 38 years from another doctor for treatment anxiety. Mhoon claims he counselled with Landrum in an attempt to get Landrum to give up the drug and seek detoxification. Landrum refused to abandon Seconal because he believed it worked well for his anxiety. Mhoon claims he allowed Landrum to have 10 capsules daily because Landrum's wife died unexpectedly. None of this information is in Mhoon's medical records on Landrum. Landrum's wife died in July, 1984; however, Mhoon prescribed 5450 mg. of Seconal between January, 1984, and June 5, 1985, six months before and one year after Landrum's wife died. Accordingly, little weight is given to Mhoon's explanation for this prescribing of massive amounts of Seconal. Mhoon did appropriately monitor Landrum for side effects and organ damage from the massive doses of Seconal. According to Thomas A. Michelsen, D.O., allowing Landrum to have 10 capsules of Seconal daily is excessive even allowing for some variance from the PDR. Seconal is recommended for treatment of insomnia for a 2-3 week period. It is not recommended for anxiety, and lower scheduled drugs, such as Restoril, Dalmane, and Halcion, are appropriate and recommended. Dr. Michelsen reviewed Mhoon's records and opined that the records are inadequate and fail to justify the course of treatment. Lloyd D. Gladding, D.O., stated that Seconal was inappropriate because better medication was available for treatment of anxiety. Dr. Bork testified that Seconal was the drug of choice for treatment of anxiety for most of the 38 years before Landrum came to Mhoon. It was replaced by the benzodiazepines such as Valium and Librium, however it is still listed in Rakel's Textbook of Family Practice as an anti-anxiety drug and it is still appropriate in some cases. Bork believes Mhoon's treatment of Landrum was appropriate, however he bases his opinion on the medical records and detailed discussions with Mhoon. Harry Curtis Benson, M.D., saw Landrum twice in 1986 and reviewed Mhoon's records and discussed the matter with Mhoon and Landrum. Because Landrum had done very well on the Seconal and because he refused to change, Benson thought Mhoon's prescribing was appropriate, even considering the large amounts for 1984 and 1985. The opinions of Dr. Bork and Dr. Benson are credited because their opinions are based on more than a simple review of the PDR and Mhoon's records. Accordingly, it is found that Mhoon's prescribing to Landrum was not excessive or inappropriate. It is, however, found that Mhoon's medical records fail to justify the course of treatment. Mhoon also treated three patients for narcolepsy. Narcolepsy is a disorder which is treated with a range of central nervous system stimulants. These drugs are subject to abuse. Narcolepsy is primarily diagnosed by a detailed patient history and clinical observation of the patient. Mhoon treated Kathryn Tackett from September, 1981, until July, 1985, for, among other things, narcolepsy. There is no indication in the medical records of her first visit with Mhoon that she had symptoms of narcolepsy. According to Mhoon, Tackett told him that she had suffered from narcolepsy and that her previous physician prescribed Ritalin and Fastin. She also advised that she had been treated for narcolepsy by a neurologist in Jacksonville, Dr. McCullough. Mhoon's medical records do not contain any medical records from these other physicians confirming the diagnosis of narcolepsy. Mhoon claims that he did a thorough workup and took a detailed patient history on Tackett. Mhoon's medical records do not contain any notations of patient history regarding symptoms of narcolepsy or of physical examination findings or clinical observation which relate to narcolepsy findings. Mhoon prescribed Ritalin and Fastin for Tackett throughout the four years he saw her. Ritalin is a commonly used drug for narcolepsy. Fastin is a sympathomimeticamine and is chemically and pharmacologically related to Ritalin and the amphetamines, but is a weaker central nervous system stimulant. The PDR recommends Fastin as an anorectic drug to be used for weight reduction in abuse patients. The PDR recommends a dosage of one capsule per day. Mhoon continued to give Fastin to Tackett because it was sufficient stimulation to control her narcolepsy at times and was a less dangerous drug than Ritalin and the amphetamines. Dr. Michelsen disapproved of the use of Fastin simply because it was not in the PDR for treatment of narcolepsy. Michelsen did not understand the relationship between Fastin and the amphetamines. Dr. Gladding initially disagreed with the use of Fastin because it was not listed as a drug indicated for use in narcolepsy. He did finally agree that Fastin was a weaker stimulant than the indicated drugs. Dr. Bork agreed that Fastin is a central nervous system stimulant that is considerably safer than the amphetamines. Bork found Mhoon's treatment and prescribing to Tackett to be appropriate. Dr. Bork's opinion is accepted in this regard and it is found that the use of Fastin was appropriate for narcolepsy. Dr. Bork also testified that Mhoon's records were adequate to justify the course of treatment. However, when questioned further, he was unable to reference the records to support his opinion. Both Dr. Michelsen and Dr. Gladding found the medical records to be inadequate to justify the course of treatment given by Mhoon to Tackett. A review of the medical records supports these opinions. It is found that Mhoon's records regarding Tackett contain inadequate documentation to support a finding of narcolepsy or to support the course of treatment. Mhoon treated Mildred Lockwood for narcolepsy from May, 1974, until June, 1985. Mhoon testified that he took a long detailed history from the patients regarding her narcolepsy. Mhoon's medical records do not reflect such a patient history. Mhoon also claims that the patient had been treated by Dr. Faris for narcolepsy and that he called Dr. Faris and confirmed the diagnosis. Again, Mhoon's medical records do not mention Dr. Faris or any contact with him. The medical records reflect only that the patient said she had narcolepsy. Subsequently, in 1987, Mhoon sent Lockwood to a neurologist who, according to Mhoon, agreed with his diagnosis and treatment of Lockwood. Dr. Bork also concurred with the diagnosis and treatment of Lockwood. A review of the medical records shows that the records are inadequate to justify the course of treatment given to Lockwood because they contain no detailed patient history, no clinical observations, and no confirming opinions. Mhoon treated Glen Burke for narcolepsy from October, 1974, until June, 1985. In Burke's case, Mhoon had a neurological consultation report from a Paul W. Jones, M.D., from February 2, 1971, which contained a detailed patient history, a record of an EEG, and a diagnosis of narcolepsy. The medical records of Dr. Jones, which reflect his treatment of Burke for narcolepsy from February, 1971, until September 6, 1974, show a history of successful treatment with Benzedrine and Dexedrine. Mhoon treated Burke with Benzedrine and Dexedrine. He also followed Burke on a regular basis and adjusted his medication as necessary. Dr. Bork opined that the treatment and records of Mhoon for Burke are appropriate and adequate. In 1986, Mhoon referred Burke to a neurologist, Dr. R. L. Hudgins. Dr. Hudgins examined Burke and determined that Mhoon's diagnosis, treatment and medications for Burke are correct and appropriate. It is found that Mhoon's diagnosis and treatment of Burke are appropriate and that the medical records justify the course of treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Osteopathic Medical Examiners, enter a Final Order and therein: Find the Respondent, James E. Mhoon, D.O., guilty of violating Section 459.015(1)(n), Florida Statutes (1985), now Section 459.015(1)(p), Florida Statutes (Supp. 1986), as charged in Count II of the Amended Administrative Complaint, as it relates to patients Landrum, Lockwood and Tackett. Dismiss all other charges contained in the Amended Administrative Complaint. Order the Respondent to attend continuing education courses to improve his record keeping and documentation. Reprimand Respondent for these violations. Impose a fine of $1,000.00. Case No. 86-1710 DONE AND ENTERED this 2nd day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 2nd day of March, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1710 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, Department of Professional Regulation, Board of Medical Examiners Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 & 2 (1); 3 & 4 (2); 8 (29); 9 (30); 10 (29); 11 (8); 12 (8); 13 (9 & 10); 15 (11 & 14); 16 (34); 19 & 20 (20); 21 (21); 22 (23); and 24 (28) Proposed findings of fact 5, 6, and 7 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 17 is unsupported by the competent, substantial evidence. Proposed finding of fact 18 is unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, James E. Mhoon, D.O. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4 (2 & 4); 6 (5); 7 (6); 8 (7); 13 (14); 14 (14); 16 (16); 17 (16); 18 (17); 22 (34); 23 (37); 24 (21); 25 (25); 30 (32); and 32 (32) 2. Proposed findings of fact 5, 10, 11, 12, 15, 19, 20, 21, 26, 27, 28, 29, and 33 are subordinate to the facts actually found in the Recommended Order. Proposed findings of fact 1, 2, and 3 set forth in the Procedural Matters section of this Recommended Order and are not necessary as findings of fact. Proposed finding of fact 9 is rejected as being argumentative and conclusionary. Proposed finding of fact 31 is rejected as being unsupported by the competent, substantial evidence. The exhibit upon which it is based was not admitted in evidence. COPIES FURNISHED: Francine Landau, Esquire Inman and Landau 2252 Gulf Life Tower Jacksonville, Florida 32207 Harry L. Shorstein, Esquire 615 Blackstone Building Jacksonville, Florida 32202 Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Rod Presnell Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent's license or authority to practice osteopathic medicine was acted against by the licensing authority of another jurisdiction, in violation of section 459.015(1)(b), Florida Statutes (2016)1; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of osteopathic medicine and prosecuting disciplinary actions on the Board's behalf, pursuant to section 20.43 and chapters 456 and 459, Florida Statutes. 2 Respondent's Exhibits A through D were also initially offered into evidence and admitted. However, during the hearing, the parties noted that Respondent's Exhibits A through D duplicated Petitioner's Exhibits A, B, J, and M, except that Petitioner's versions of these exhibits contained redactions. After the hearing, the parties filed a joint motion to allow Respondent to adopt Petitioner's Exhibits A, B, J, and M and withdraw Respondent's Exhibits A through D. The joint motion was granted. Accordingly, the record does not include Respondent's withdrawn Exhibits A through D. 3 By agreeing to an extended deadline of more than ten days after the filing of the transcript for filing PROs, the parties waived the 30-day time period for issuing the Recommended Order. See Fla. Admin. Code R. 28-106.216. Respondent is licensed to practice osteopathic medicine in Florida, having been issued license number OS 10315 on or about March 4, 2008. Although Respondent has been licensed to practice osteopathic medicine in Florida since 2008, including at all times relevant to the Complaint, he testified that he did not practice osteopathic medicine in Florida until sometime after December 14, 2016. Currently, Respondent does not hold any other active licenses to practice osteopathic medicine in other states. Previously, he held licenses in Ohio, Missouri, and Kansas. The factual allegation in the Complaint that is the predicate for the charge against Respondent is as follows: On or about December 14, 2016, the State Medical Board of Ohio issued an Entry of Order permanently revoking the license of Respondent to practice osteopathic medicine and surgery in the State of Ohio. (Complaint at 2, ¶ 5). The parties stipulated that the Ohio Board is the licensing authority of the practice of osteopathic medicine in the state of Ohio. The parties also stipulated to the following: On December 14, 2016, in case number 16-CRF- 0055 and in accordance with chapter 119, Ohio Revised Code, the State Medical Board of Ohio entered an order which permanently revoked Respondent's certificate to practice osteopathic medicine and surgery in Ohio. (Amended Jt. Pre- hrg. Stip. Part E (Stipulated Facts), ¶ 10). Respondent disputed the Complaint's allegation quoted above, notwithstanding the stipulations, based on the argument that the word "license" in the Complaint is different from the word "certificate" in the stipulation. Respondent attempted to argue that the "certificate" that was permanently revoked was not a form of authority to practice osteopathic medicine and surgery. Respondent offered various possibilities, such as that the permanently revoked "certificate" must have been the "training certificate" that he believed he was given in 2004 to participate in a training program before licensure, or that it was some other kind of "certificate." Respondent's argument is not credible, is inconsistent with the words following "certificate"—"to practice osteopathic medicine and surgery"—and is wholly unsupported by the evidence. Ohio Licensure History In late December 2003, Respondent applied for osteopathic medical licensure in Ohio via an application for a Certificate to Practice Osteopathic Medicine and Surgery (Ohio Application) submitted to the Ohio Board.4 The application was not deemed officially received for processing until January 29, 2004, because Respondent's initial submission was not accompanied by the required $335.00 fee and he did not pay the fee until January 29, 2004. See Pet. Ex. 1, Bates p. 28, 3, and 18. The Ohio Application form asked whether the applicant was, or intended to be, in an accredited training program in Ohio. Respondent answered that he intended to be in an accredited training program. He identified the training program as Doctor's Hospital/Anesthesiology in Columbus, Ohio, with a planned start date of June 30, 2004. On January 30, 2004, the Ohio Board sent Respondent its "Acknowledgement of Application for Certificate to Practice Medicine and Surgery or Osteopathic Medicine and Surgery" (Acknowledgement), notifying Respondent that his application for a certificate to practice osteopathic medicine and surgery was received by the Board on January 29, 2004. The Acknowledgement also notified Respondent that he was authorized to 4 Respondent's entire licensure file, certified as complete by the Ohio Board, is in evidence, with Bates page numbers added in red. It is apparent that the pages representing Respondent's application for licensure to practice osteopathic medicine and surgery are not in order, perhaps because his initial submission in late December 2003 was incomplete and supplemented with various revised answers and additional documentation between 2004 and early 2005. participate in the training program identified in his application: "Please be advised that you are hereby authorized to begin participation in the training program to which you have been appointed … while your application is being processed." (Pet. Ex. 1, Bates p. 18). Respondent claimed that the Acknowledgement notified him that he was granted a "training certificate" so he could participate in the residency program while his application for a license to practice osteopathic medicine and surgery was being processed. The Acknowledgement says no such thing. Respondent's argument to the contrary is rejected. No evidence was offered to prove that a training certificate was ever issued to Respondent. Respondent's "training certificate" argument was part of his broader attempt to argue that in Ohio, the terms "certificate" and "license" refer to distinct items, and that a "license" is the form of authority to practice osteopathic medicine and surgery. Here too, Respondent's argument is contradicted by the record evidence and by Ohio law. Beginning with Respondent's initial submission, date-stamped by the Ohio Board on December 23, 2003, it is clear that the specific phrase used to describe the form of authority to practice osteopathic medicine and surgery in Ohio was a "certificate to practice osteopathic medicine and surgery," although the umbrella term "license" was frequently used interchangeably with "certificate."5 The interchangeable use of "license" and "certificate," prefacing the phrase "to practice osteopathic medicine and surgery," is replete throughout Respondent's Ohio licensure file. The interchangeable use of these terms is evident perhaps nowhere more clearly than in the Ohio Board's form "Affidavit and Release of Applicant [-] Medicine or Osteopathic 5 Pursuant to the Ohio Administrative Procedure Act, just as under the Florida Administrative Procedure Act, "license" is an umbrella term defined to mean "any license, permit, certificate, commission, or charter issued by any agency." § 119.01(b), Ohio Rev. Code; compare § 120.52(10), Fla. Stat. (defining "license" as "a franchise, permit, certification, registration, charger, or similar form of authorization required by law[.]"). Medicine"6 executed by Respondent and submitted as part of the Ohio Application bearing the Ohio Board's "received" stamp dated December 26, 2003. By the executed affidavit, Respondent certified under oath: that I am the person named in this application for a license to practice medicine or osteopathic medicine in the State of Ohio … and that all documents, forms or copies thereof furnished or to be furnished with respect to my application are strictly true in every respect. … I further understand that the issuance of a certificate to practice medicine or osteopathic medicine in Ohio will be considered based on the truth of the statements and documents contained herein or to be furnished[.] (Pet. Ex. 1, Bates p. 26, emphasis added). Respondent's Ohio Application contained multiple deficiencies and required several rounds of requests for omitted information/documentation followed by submissions that attempted to respond to the requests. This process, documented in Respondent's complete Ohio licensure file in evidence, spanned from early 2004 through early 2005. On April 13, 2005, the Ohio Board gave Respondent notice that it intended to determine whether to refuse to grant his certificate to practice osteopathic medicine and surgery, for reasons set forth in a detailed three- page letter. The gist of the reasons was that Respondent allegedly made false, fraudulent, deceptive, or misleading statements to the Acting Director of Medical Education for Respondent's residency program in Missouri pertaining to Respondent's failure to appear or respond to pages when he was on call. Respondent was informed of his right to a hearing. Respondent requested a hearing, which was held before a hearing examiner for the Ohio Board on August 24, 2005. The hearing examiner's report and recommendation in evidence sets forth a summary of the evidence 6 The title of this form is on two lines: the first line is "Affidavit and Release of Applicant"; the second line, immediately below the first, is "Medicine or Osteopathic Medicine." The dash has been inserted to denote separation between the two lines of the title, for clarity. (including Respondent's testimony at the hearing), findings of fact, and conclusions of law. (Pet. Ex. B, Bates p. 71-80). The findings were that Respondent had failed to report to work when he was scheduled to be the resident on call, and failed to respond to several pages from the emergency department. He met with the Acting Director, and after the meeting, a determination was made to terminate Respondent from the residency program for "grievous dereliction of duty and subsequent imminent risk to quality patient care." (Pet. Ex. B, Bates p. 77). Respondent appealed the termination. Shortly thereafter, upon questioning by the Acting Director, Respondent falsely reported that he had been at the hospital, on duty that night, and received no pages. Respondent said that he had been in the hospital library and had used the computer. The Acting Director asked Respondent three times if he had used the computer at the library, and Respondent said yes. But the Acting Director verified with library staff that the computers had remained inactive during the time in question. Caught in the lie, Respondent ultimately admitted to the Acting Director that he had failed to report to duty. Instead, he had taken cold medicine and slept the entire night at home. Respondent "admitted that he had used very poor judgment and had been dishonest." (Pet. Ex. B, Bates p. 77). Respondent's termination from the residency program was upheld on appeal. The hearing examiner concluded that Respondent's conduct violated section 4731.22(B)(5), Ohio Revised Code (making false, fraudulent, deceptive, or misleading statements in relation to the practice of osteopathic medicine and surgery), but did not demonstrate a current failure to prove good moral character. The hearing examiner elaborated on these conclusions: Dr. Hall issued a series of deceitful and self-serving misstatements during the course of his practice. Such conduct would justify permanent denial of his certificate to practice in this state. Nevertheless, Dr. Hall admitted his misconduct and deceit within a short time of their occurrence. Moreover, Dr. Hall was forthcoming in his application for licensure in Ohio. Therefore the evidence suggests that Dr. Hall has learned from his mistakes and will be more cautious and forthcoming in the future. (Pet. Ex. B, Bates p. 78, emphasis added). Based on the hearing examiner's findings and conclusions, her proposed order was that Respondent's application "for a certificate to practice osteopathic medicine and surgery" in Ohio be granted, "provided that he otherwise meets all statutory and regulatory requirements." If so, the "certificate" should be issued on the effective date of the order. However, the "certificate" should be immediately suspended for 30 days, then reinstated subject to a number of probationary terms for a period of at least two years. The hearing examiner's proposed order concluded with a provision addressing when the order would become effective: "This Order shall become effective thirty days after mailing of notification of approval by the Board." (Pet. Ex. B, Bates p. 78-80, emphasis added). At a meeting of the Ohio Board on December 14, 2005, the hearing examiner's proposed findings of fact, conclusions, and order were approved. A letter dated December 14, 2005, notifying Respondent that the Ohio Board had approved the hearing examiner's recommendations, bears a notation that it was mailed December 16, 2005. Respondent was required to update certain components of his licensure application. By letter dated December 29, 2005, Respondent was given notice as "a follow-up to your application for Ohio licensure" that he had to update his resume of activities from July 2004 forward; update the listing of licensure activity in other states; and execute another notarized Affidavit and Release of Applicant. (Pet. Ex. A, Bates p. 89, emphasis added). Respondent executed another Affidavit and Release on January 13, 2006; the form appears unchanged from the one he signed in 2003, continuing to use the terms "certificate" and "license" to practice osteopathic medicine and surgery interchangeably (Pet. Ex. A, Bates p. 25). Other updates to his application also were submitted on or shortly after January 13, 2006, including a letter from Doctors Hospital verifying that Respondent was in the anesthesia residency program, having begun February 2, 2004, and was anticipated to complete the program February 1, 2007. The submission of the required update items on or shortly after January 13, 2006, resulted in Respondent's certificate (a/k/a license) to practice osteopathic medicine and surgery being issued on January 17, 2006, two days after it otherwise could have been consistent with the provisions of the hearing examiner's proposed order. Also in accordance with the hearing examiner's proposed order, approved by the Ohio Board, Respondent's certificate to practice osteopathic medicine and surgery was immediately suspended for 30 days, which included the day that the certificate was issued. The 30-day suspension ran from January 17, 2006, through February 15, 2006. Respondent was permitted to practice osteopathic medicine pursuant to his certificate beginning February 16, 2006, subject to the terms of probation for at least two years. Less than six months after Respondent's first suspension was over, Respondent self-reported to the Ohio Board that he was terminated from the anesthesia residency program for diverting a drug he had prescribed to a patient for his own use. One month after the self-report, on August 30, 2006, Respondent signed a Step I Consent Agreement (Step I Agreement) with the Ohio Board. The Step I Agreement included the following stipulations and admissions: Dr. Hall admits that the Board ordered him to submit to a three-day examination at The Woods at Parkside [Parkside], a Board-approved treatment provider in Columbus Ohio, on or about July 31, 2006, based upon his self-report that he was terminated from his anesthesia residency program with Doctors Hospital in Columbus, Ohio, because he diverted for self-use Celestone, a corticosteroid, that he prescribed for a patient; and that he had diverted Kenalog, another corticosteroid, in the past. Dr. Hall further admits that during this examination, he was diagnosed with substance abuse and Bipolar Disorder with mixed anxiety and that he entered Parkside for further treatment, including 28-day residential treatment. Dr. Hall further admits that due to his substance abuse he currently is impaired in his ability to practice osteopathic medicine and surgery according to acceptable and prevailing standards of care because of habitual or excessive use or abuse of drugs, alcohol, or other substances that impair ability to practice and an inability to practice according to acceptable and prevailing standards of care by reason of mental illness or physical illness, including, but not limited to, physical deterioration that adversely affects cognitive, motor, or perceptive skills, due to his Bipolar Disorder with mixed anxiety. (Pet. Ex. B, Bates p. 57). The Step I Agreement provided that, based on the stipulations and admissions, Respondent's certificate to practice osteopathic medicine and surgery was suspended indefinitely. A series of requirements and conditions were imposed, which had to be met before the Ohio Board would "consider reinstatement of Dr. Hall's certificate to practice osteopathic medicine and surgery." (Pet. Ex. B, Bates p. 60). The Step I Agreement took effect September 13, 2006, when signed on behalf of the Ohio Board. (Pet. Ex. B, Bates p. 63). Six months later, on March 14, 2007, Respondent and the Ohio Board entered into the Step II Consent Agreement (Step II Agreement). Pursuant to the Step II Agreement, the indefinite suspension was lifted and Respondent's certificate to practice osteopathic medicine and surgery was conditionally reinstated under new probationary terms set forth in the Step II Agreement. The Step II Agreement contained additional stipulations and admissions agreed to by Respondent, including: C. Dr. Hall is applying for reinstatement of his license to practice osteopathic medicine and surgery in the state of Ohio, which was indefinitely suspended pursuant to the terms of the [Step I Agreement]. * * * E. Dr. Hall admits that he initially entered inpatient treatment for cortical steroid abuse, at the Woods at Parkside [Parkside], a Board- approved treatment provider in Columbus, Ohio, on or about July 31, 2006, that he transitioned to out- patient treatment on or about August 28, 2006, and that he was subsequently discharged, treatment complete, on or about September 5, 2006. Dr. Hall further admits that in addition to his abuse of corticosteroids, in the past he also self-medicated with Elavil and Ultram, and excessively consumed alcohol to the point of having blackout events. Dr. Hall further admits that during his treatment at Parkside, he received an additional diagnosis of Bipolar Disorder for which he was prescribed medication. * * * G. … Dr. Hall states … that Victoria Sanelli, M.D., a psychiatrist who was approved by the Board to provide an assessment of Dr. Hall, evaluated Dr. Hall and submitted a report to the Board … in which she stated that Dr. Hall's diagnoses include steroid dependence in early sustained remission, and that although Dr. Hall has been recently diagnosed with possible Bipolar Disorder, it was Dr. Sanelli's opinion as an addiction psychiatrist that it is extremely difficult to assign an Axis I diagnosis to someone who has recently been involved in substance abuse. … Dr. Sanelli further opined that Dr. Hall has a Mood Disorder, which may be depressed mood or Bipolar Disorder, and that Dr. Hall's ability to practice osteopathic medicine and surgery has been assessed, and he is capable of practicing according to acceptable and prevailing standards of care so long as certain treatment and monitoring requirements are in place. The Step II Agreement provided that reinstatement of Respondent's license would be subject to a probationary term of at least five years from March 14, 2007, with numerous conditions and limitations imposed, including the treatment and monitoring requirements deemed necessary to ensure Respondent remained capable of practicing according to acceptable standards of care. The terms of Respondent's probation included random drug and alcohol tests, evaluations, restrictions on travel outside the state, use of a monitoring physician to monitor Respondent's practice of osteopathic medicine and surgery, and submission of quarterly reports to the Ohio Board in which Respondent attested under oath to full compliance with all conditions of the Step II Agreement. Respondent testified that, at the beginning, he complied with the probationary terms he agreed to. For example, with regard to the travel restrictions, in 2007, when Respondent decided on the spur of the moment to travel to Alabama to visit a friend, he requested and obtained last-minute permission from the Ohio Board for the trip with the proviso that he continue to be subject to random screenings and go to meetings there. However, in or about September 2008, after the Step II Agreement had been in place for only a year and a half, Respondent decided he could no longer comply with the agreement he entered into. When his brothers, who lived in Florida, asked him to travel with them to Italy and Lebanon for a vacation, for which the brothers would pay, Respondent agreed. The brothers coordinated the travel dates to work with Respondent's schedule. Respondent testified that he could not recall how long the trip was, but it was more than one week and possibly less than two weeks. Even though this longer trip was planned, rather than spontaneous like the Alabama trip for which Respondent had obtained Ohio Board approval, this time Respondent did not request approval. This was no accident. Instead, Respondent schemed to leave "clean" urine samples and slips filled out to submit with the samples to the lab, and left them behind with an employee who kept the samples in a freezer and submitted one or more samples while Respondent was out of the country. Respondent devised this scheme to cover up his unauthorized travel, and to give the impression that the samples were being given contemporaneously with their submission to the lab. Instead, Respondent went unmonitored during his unauthorized trip abroad. This was a blatant and devious affront to the terms of the Step II Agreement Respondent promised to abide by. At the hearing, Respondent attempted to explain several different times why he carried out a scheme to circumvent the Step II Agreement's monitoring requirements and cover up his unauthorized travel: Because I had no control in my life. I was doing everything that the board had asked; I had gone to meetings, two, three, sometimes four times a week as required; I was doing random urine drug screens for almost two years; and I had done everything that was asked, and I felt I had no control of my life. I wasn't getting anywhere with this board program. I felt that they were completely inflexible and had a total lack of understanding. And I thought that the suspension—I'm sorry; the impairment diagnosis for basically prednisone, which is an anti-inflammatory drug, was cruel. … [W]hen the program in Ohio said that I had an [impairment], based on the use of drug that in literature is used for inflammatory conditions, it blew my mind. I was still being required to test like a drug addict for over two years and I was labeled a drug addict for two-plus years at that point, and the board didn't want to listen to my protest or my concerns. And there was just a total lack of understanding on the part of the board. And I—and I got—I got overwhelmed emotionally. And just said I had enough of being controlled by somebody who didn't—who didn't have any of my interests at heart. They only wanted to punish. (Tr. 135-136). * * * I was put in a vice like a grape and crushed. (Tr. 142). * * * I don't know that I thought it was okay [to circumvent the Step Two Agreement]. … At the time, like I said, I was under the impairment agreement; I was hoping there would be some benefits to asking for help for mental health issues, and like I said, rolling in the drug portion. But as time went on, there was no positive affect on my life. I couldn't travel to see family. Family is important. Family is who we turn to in times of stress. I couldn't see them without the board's approval. I couldn't find work because of the scarlet letter that was on me. I couldn't find work because I didn't finish the residency. You know, I think when we tell patients by the way, we have a treatment for your problem, but it's going to kill you, most people would say, well, screw that, I'm not going to do it. And you know, I don't think any of the downside was anticipated by me. (Tr. 144). I didn't foresee all of the negative repercussions that would come through in my life. And I was—I was adhering to everything they that they asked of me, meetings, urine drug screens. This—you know, when you have to do a urine drug screen, you have to basically strip for them and someone has to look at you. And it's intrusive. And I was doing that. I was more than willing to work within their system, and do back flips and front flips. If they said, you know, stand on one leg, I would have said yes, sir, for how long, sir? But at the same time, you could only get beaten and put into a corner for so long and say what in the hell is this program designed to do except excommunicate people from a profession? … And so I broke. After a certain amount of time, I broke. It was too much. I—I know I did something stupid. I know I did. And I regret it every day of my life. And I look at it and kick myself and wish I would have never done it. But all I can say is I'm sorry. … So, you know, that's all I can say. I know I screwed up and I took the punishment for it, and I'm here today to say, I am not that person from 12 years ago. (Tr. 145-146). * * * In 2008, like I said, I had been compliant with the board's ruling since '06, since August of '06. I think it was August of '06. And now we're looking at two years later and despite having done everything the board asked, I'm getting—I'm getting nowhere. I'm just feeling like I'm spinning my wheels and there's no end in sight to this—to this situation. And so I threw my hands up. (Tr. 149). No evidence was offered to substantiate Respondent's dramatic claims that the Ohio Board showed inflexibility, a lack of understanding, or an unwillingness to consider any protests or concerns submitted by Respondent. No evidence was offered to show that the Ohio Board ever denied a request by Respondent to travel; the only evidence was that Respondent's single last- minute request was granted and Respondent was allowed to meet his monitoring and treatment requirements while traveling. As Respondent acknowledged, the Step II Agreement that he signed was for a minimum of five years, beginning March 2007. Before March 2007, Respondent was subject to the Step I Agreement, which he also signed. These agreements included stipulations and admissions agreed to by Respondent, and imposed terms and conditions that he accepted. Respondent's characterization at the hearing of the terms he had agreed to as cruel, and his explanation at the hearing that he could not abide by the Step II Agreement because he decided he needed to take back control, after less than one-third of the five-year minimum term had passed, are very troubling current-day admissions. Respondent attempted to refute his admissions in the Step I and Step II Agreements, disputing the substance abuse characterizations and claiming that he admitted to them as a means to have his license reinstated. Without any evidentiary basis to contradict his own admissions in the Step I and Step II Agreements, it is sufficient for purposes of this proceeding to simply point out that Respondent's admissions speak for themselves, and Respondent is not painted in a favorable light, whether he admitted to facts he did not believe as a means to the end of having his suspended license reinstated or whether he admitted to facts that were true. Respondent's claims of oppression and torture (i.e., being put in a vice like a grape and crushed) to explain the backdrop to the Ohio Board's action permanently revoking his certificate to practice osteopathic medicine cause concern. Respondent overly dramatizes the simple fact that he chose to enter into the Step I and Step II Agreements, regardless of his rationalizations for having done so. Also of concern is that for all of his dramatic expressions at the hearing, Respondent ignored a troubling series of admissions. In the Step II Agreement, Respondent admitted to diverting the hospital's prescription medication that he had prescribed for a patient for his own use, and he also admitted to having diverted other medication for his own use in the past. His diversion of hospital medication that he prescribed for a patient for his own use instead was essentially theft, resulting in his termination from the hospital's residency program. Respondent admitted to drug diversion on more than one occasion, in addition to self-medicating, and those admissions were predicates for the conditions imposed by the Step II Agreement. At the hearing, Respondent never addressed this dishonest conduct. That makes Respondent's attempted explanation for why he could no longer abide by the Step II Agreement, with three and a half years left to the agreement he entered into, wholly unsatisfactory. Respondent seemingly has not recognized that these underlying dishonest dealings in medication played a part in his being "painted with a scarlet letter." Whether he recognized it or not, he certainly expressed no remorse. Respondent's scheme to violate the Step II Agreement and cover up his violation succeeded, initially, and for several years thereafter. Respondent made it to the end of his five-year probation, falsely representing under oath to the Ohio Board in quarterly reports that he complied with the terms the entire time. Respondent's probation was lifted under false presences, based on the false impression given by Respondent to the Ohio Board that as of March 14, 2012, he had complied with the Step II Agreement for the five-year probationary term. From then until April 1, 2013, Respondent's certificate to practice was active and unrestricted for the first time since it was issued. Respondent's scheme came to light after Respondent fired an employee and reported to police that the employee was discovered forging prescriptions to obtain prescription drugs. The employee reciprocated by reporting to the Ohio Board that Respondent had falsified his urine samples to cover up an unauthorized jaunt abroad, during which he evaded the required monitoring. Once again, Respondent's certificate to practice osteopathic medicine in Ohio was immediately and indefinitely suspended by the Ohio Board on April 1, 2013. Criminal charges were brought against Respondent in the fall of 2014, based on his scheme to have an employee submit "clean" urine samples that were kept in a freezer, with slips Respondent filled out ahead of time, to give the appearance that he was providing those samples while he was on his overseas trip. Respondent's Ohio certificate to practice osteopathic medicine was still under indefinite suspension when it came up for biennial renewal in 2014. Respondent chose not to renew the license, so the license became inactive on October 1, 2014, but remained under suspension. Respondent did not surrender his license/certificate to practice osteopathic medicine in 2014 or at any time thereafter. On March 2, 2016, Respondent pled guilty to, and was found guilty of, two felonies: attempted tampering with evidence, a fourth degree felony; and possession of criminal tools, a fifth degree felony. After the felony convictions, on April 13, 2016, the Ohio Board both vacated the summary suspension of his certificate and initiated the disciplinary action against Respondent's certificate, designated case number 16-CRF-0055, notwithstanding that Respondent's certificate was inactive. The notice mailed to Respondent on April 14, 2016, informed Respondent that the Ohio Board "intends to determine whether or not to limit, revoke, permanently revoke, suspend, refuse to register or reinstate your certificate to practice osteopathic medicine and surgery, or to reprimand you or place you on probation" for reasons enumerated in the notice. The reasons included the two felony convictions, Respondent's falsification of his quarterly reports to the Ohio Board attesting to full compliance with the Step II Agreement, and Respondent's violations of the limits placed on his certificate to practice pursuant to the terms of the Step II Agreement. Respondent was informed of his right to a hearing. Respondent asked for a hearing regarding the proposed disciplinary action against his certificate to practice osteopathic medicine and surgery in Ohio. Respondent testified at the hearing in this case that he pursued a hearing before the Ohio Board in the hope that he and his attorneys could persuade the Ohio Board to reinstate his inactive license. In his view, he had been punished enough and deserved something less than the most draconian punishment of permanent revocation. He believed that reinstating his license, likely subject to more conditions, was a possible outcome of the proceeding. Instead, the decision following an evidentiary hearing was to permanently revoke Respondent's certificate to practice osteopathic medicine and surgery in Ohio. The written decision reflects that the basis for the permanent revocation was, in part, Respondent's lack of remorse, downplaying his past crimes for which he pled guilty, and dishonesty displayed at the hearing. After setting forth proposed findings of fact and conclusions of law, the hearing examiner provided a summary to explain why the proposed order recommended permanent revocation: Dr. Hall was dismissed from a residency program at the University of Health Sciences in Independence, Missouri, for sleeping through a shift, then lied about his whereabouts in an effort to regain his position. Before this Board, he testified that he learned his lesson and had come to understand the importance of telling the truth. Yet while working at Doctors Hospital in Columbus, Ohio, he created a false patient record in order to obtain corticosteroids to treat his own pain. Then, in 2008, Dr. Hall devised and employed a scheme to deceive the Board that he remained in Ohio when in fact he was abroad, because he feared his request to travel might be refused. He caused specimens, provided in different times than he had indicated, to be submitted for drug testing, as part of that scheme. He has been under Board supervision his entire tenure in Ohio, up to 2012. It is indeed true that several years have passed since the 2008 conduct at issue in this hearing, and that there have been no proven instances of misconduct or non-compliance with monitoring for the five years between 2008 and 2013, when Dr. Hall's license was summarily suspended, or since early 2016 when Dr. Hall resumed practice in Florida. But his career up to that point in 2008 had consisted of a nearly unbroken chain of deceitful conduct, and for four of the five following years, Dr. Hall had remained under Board supervision on pain of revocation of his license. So the question now is whether Dr. Hall's pattern of lying "under pressure" was situational, caused by pain, depression, and perhaps frustration, the causes of which are largely in his past, or whether this conduct reflects an ingrained character trait. Given his history, if Dr. Hall wished to regain the Board's "trust" and demonstrate a character trait for truthfulness, it was incumbent upon Dr. Hall to testify with complete candor in the proceedings before this Hearing Examiner. This Hearing Examiner did not, however, find Dr. Hall's testimony to be particularly credible as a general matter, based on his demeanor and testimony. Three factors stand out in particular: Dr. Hall attempted to minimize his deceit to [the Acting Director of his Missouri residency program] … . But the Board's prior finding was that Dr. Hall's lie was premeditated; … Dr. Hall repeatedly attempted to minimize the character of his scheme to conceal from the Board his travel outside Ohio, and to submit urine specimens not given at the times indicated … . … Dr. Hall repeatedly resorted to pat phrases to describe, and in all likelihood exaggerate, the level of discomfort he experienced … . The evidence that Dr. Hall's persistent lack of candor is merely a result of past causes, no longer at play in his life, is less than convincing. Accordingly, this Hearing Examiner does not believe that the record reflects mitigating circumstances sufficient to support providing a pathway for Dr. Hall to regain licensure by this Board.[7] (Pet. Ex. B, Bates p. 27-28). 7 The hearing examiner's observation regarding whether mitigating circumstances supported providing a pathway for Respondent to regain licensure confirms Respondent's testimony that the reason he invested time and resources in this hearing was in the hope that the Ohio Board would consider mitigating circumstances, with the possibility of having his license reinstated subject to conditions. This would have been similar to the approach of the Step I and Step II Agreements, whereby in Step I, Respondent's certificate to practice was suspended, and would be considered for reinstatement only after Respondent complied with a series of requirements, followed by Step II, which was treated as an application for reinstatement, and was granted subject to limitations and conditions. This time, Respondent failed to convince the hearing examiner or the Ohio Board to allow another similar pathway. The Ohio Board entered an Order on December 14, 2016, attaching and incorporating the hearing examiner's report and recommendation and ordering as follows: "The certificate of Adam Patrick Hall, D.O., to practice osteopathic medicine and surgery in the State of Ohio shall be permanently revoked." (Pet. Ex. B, Bates p. 3). Just as Respondent's candor was found lacking in the Ohio proceeding, so, too, at the hearing in this case, Respondent was not credible, based on his demeanor and testimony. Instead, he was evasive, dramatizing his personal tribulations to which he attributed his past mistakes, while downplaying the extent and significance of his past wrongdoing. Several months after the Ohio Board permanently revoked Respondent's certificate to practice osteopathic medicine, Respondent's counsel, who had represented him since the Ohio proceedings in 2016, and worked with local Ohio counsel in the 2016 disciplinary proceeding, wrote the following on his behalf as a "self-report" to the Department on April 3, 2017: Please be advised that Adam Hall is represented by Chapman Law Group before the Florida Department of Health ("Department") and Board of Osteopathic Medicine ("Board"). … In November 2016, Dr. Hall submitted his response to the Department's Administrative Complaint. Subsequently, the Ohio Board of Osteopathic Medicine took action against his license. To wit, on December 15, 2016, by an order of the Board, Dr. Halls' [sic] Osteopathic medical license was permanently revoked. Such an order was based on convictions in the Court of Common Pleas of Lawrence County, Ohio in which Dr. Hall pled guilty to Attempted Tampering of Evidence, a fourth degree felony and Possession of Criminal Tools, a fifth degree felony. … Dr. Hall knows that pursuant to Florida Statute, his Ohio Board action constitutes grounds for disciplinary action, as specified in s. 456.072(2). To wit s. 456.015 [sic; 459.015(1)(b)] reads that: Having a license or the authority to practice osteopathic medicine revoked, suspended, or otherwise acted against, including the denial of licensure, by the licensing authority of any jurisdiction, including its agencies or subdivisions. The licensing authority's acceptance of a physician's relinquishment of license, stipulation, consent order, or other settlement offered in response to or in anticipation of the filing of administrative charges against the physician shall be construed as action against the physician's license. Chapman Law Group respectfully submits that no action is needed on the part of either the Department or Board, because Dr. Hall reported this incident to the Department as required by law. (Pet. Ex. E, emphasis added). The letter was submitted on Respondent's behalf by attorneys Steven D. Brownlee and Ronald W. Chapman for the firm. Other Relevant Facts Respondent had a license to practice osteopathic medicine in Missouri at one time. He testified that "Missouri followed the action of Ohio, and I lost my license to practice in Missouri." (Tr. 148). Respondent did not provide specific details regarding the basis for the Missouri action to take away Respondent's license to practice in Missouri. Respondent had a license to practice osteopathic medicine in Kansas at one time. Respondent did not provide details regarding what happened to the Kansas license he held at one time. Respondent's Ohio licensure file contains a Kansas license verification form submitted as part of Respondent's application for a license (certificate) to practice osteopathic medicine and surgery in Ohio. The Kansas license verification form dated April 15, 2004, reports that Respondent's "original license date" was April 26, 2003; and the "expiration date" was September 30, 2003. The license status was reported as "cancelled." (Pet. Ex. A, Bates p. 31). No other evidence was offered regarding Respondent's Kansas licensure history, the reason for the short duration of his license, or why his license was "cancelled." As previously noted, Respondent has also been licensed to practice osteopathic medicine in Florida since 2008. However, he testified that he did not begin practicing in Florida until after the Ohio proceedings concluded with the Ohio Board's order of permanent revocation. There is no evidence of any blemishes on his track record practicing in Florida, but the tenure has been relatively short—three and a half years at the time of the hearing.8 Respondent is married, with three children. At the time of his hearing in Ohio that resulted in permanent revocation of his certificate to practice osteopathic medicine, his now-wife was his fiancée and they had a one- month-old child. Respondent testified that his wife is a lawyer. He credited her with coming up with the argument that the permanent revocation of his "certificate" to practice osteopathic medicine in Ohio was arguably something different than a permanent revocation of a "license" to practice osteopathic medicine in Ohio. Respondent noted that she raised this question before the Ohio disciplinary hearing, but the argument was not pursued there.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, enter a final order revoking Respondent, Adam Patrick Hall, D.O.'s, license to practice osteopathic medicine and assessing costs against him for the investigation and prosecution of this matter. DONE AND ENTERED this 15th day of October, 2020, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 2020. COPIES FURNISHED: Michael Jovane Williams, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Ronald W. Chapman, Esquire Chapman Law Group 6841 Energy Court Sarasota, Florida 34240 (eServed) Lauren Ashley Leikam, Esquire Chapman Law Group 6841 Energy Court Sarasota, Florida 34240 (eServed) Jamal Burk, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Kama Monroe, Executive Director Board of Osteopathic Medicine Department of Health Bin C-06 4052 Bald Cypress Way Tallahassee, Florida 32399-3257 (eServed) Louise St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 (eServed)
The Issue Respondent is charged, pursuant to Count I with a violation of Section 459.015(1)(h) in that he allegedly failed to perform any statutory or legal obligation placed upon a licensed physician by his alleged violation of Section 459.0154 Florida Statutes, which statute sets forth requirements of physicians who treat with the substance dimethyl sulfoxide ("D.M.S.O."), pursuant to Count II, with a violation of Section 459.015(1)(o) in that he allegedly exercised influence on a patient in such a manner as to exploit the patient for financial gain, pursuant to Count III, with a violation of Section 459.015(1)(t) in that he allegedly committed gross or repeated malpractice or failed to practice medicine with that level of care; skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances, pursuant to Count IV, with a violation of Section 459.015(1)(u) in that he allegedly performed a procedure or prescribed a therapy which, by the prevailing standards of medical practice in the community would constitute experimentation on human subjects; pursuant to Count V, with a violation of Section 459.015(1)(n), in that he allegedly failed to keep written medical records justifying the course of treatment of a patient, including but not limited to patient histories, examination results and test results; and pursuant to Count VI, with a violation of Section 459.015(1)(1); in that he allegedly made deceptive untrue or fraudulent representations in the practice of osteopathic medicine or employed a trick or scheme in the practice of osteopathic medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment. Counts VII and VIII, were severed, to remain pending in the instant action until such time as Petitioner should file a voluntary dismissal thereof or a notice that same were ready for hearing. Petitioner had every opportunity to resolve this state of the pleadings and did not do so. PROCEDURAL AND EVIDENTIARY MATTERS At formal hearing, Respondent and Gregory D. Seeley, Esquire, were examined pursuant to Rules 22I-6.05 and 28-5.1055 F.A.C. and Gregory D. Seeley, an Ohio attorney, was determined to be a qualified representative of Respondent for purposes of this cause only. Respondent thereafter attempted to file a formal written answer, which request was denied pursuant to Rules 22I- 6.04 (5) and 25- 5.203 F.A.C. Petitioner presented the live testimony of Frank R. Laine, Lloyd D. Gladding, D.O., Jeffrey Erlich, M.D., William Pawley, Respondent Wilfred Mittlestadt, D.O., Mark Montgomery, Ph.D., and the deposition testimony of Wilbur Blechman, M.D. Petitioner offered 12 exhibits, all of which were admitted in evidence. Deposition of Dr. Blechman is Petitioner's Exhibit 4 and Petitioner's Requests for Admission with extensive Answers thereto are Petitioner's Composite Exhibit 1, within the twelve. A request of Petitioner for judicial notice was denied. Respondent testified on his own behalf. Respondent also was permitted to late-file the depositions of Garry Gordon, M.D., and Stanley Jacobs, M.D. Inasmuch as the transcripts of those depositions were timely filed, they are admitted in evidence as Respondent's Exhibits 4 and 5 respectively. Respondent offered 3 exhibits in evidence; all were excluded. Exhibits not admitted or at least proffered were not retained as part of the record. A number of requests for judicial notice by Respondent were also denied. In the course of formal hearing, Respondent also made several motions for mistrial and/or recusal of the undersigned due to admission in evidence of what Respondent characterized as "prejudicial material." None of these motions was meritorious and all were denied, but a discussion of these rulings is also incorporated within this recommended order. By agreement at hearing and without subsequent objection, copies of those matters actually judicially noticed by the undersigned were attached by the parties to their respective post-hearing proposals. The parties' pre-hearing stipulation (H.O. Exhibit 2 as interlineated) also included stipulations as to many facts and has been extensively utilized in preparation of this recommended order. At the close of Petitioner's case in chief Respondent moved to dismiss the pending charges as unproved. This motion was taken under advisement for resolution within this recommended order. The motion was renewed within Respondent's post-hearing proposals with written argument. The Motion to Dismiss within Respondent's post-hearing proposals also renews all previous motions to dismiss, incorporating by reference what may be read as previous arguments concerning procedural and pleading irregularities as to Counts VII and These issues are also disposed of within this recommended order. Transcript of formal hearing was provided by Petitioner, who filed its proposed findings of fact and conclusions of law beyond the 10 day limitation. Respondent's proposed findings of fact and conclusions of law were timely filed. The late-filing of Petitioner's proposals without objection by Respondent are deemed a waiver of the 30 days for entry of this recommended order pursuant to Rule 22I-6.31 F.A.C., but all proposals have been considered and Petitioner's proposed findings of fact and Respondent's proposed findings of fact are ruled on in the appendix hereto.
Findings Of Fact At all times material, Respondent was licensed as an osteopathic physician in the State of Florida having been issued license number 05 0001510. He has practiced approximately 40 years. On April 4, 1983 Frank R. Laine went to Bio-Equilibrium Testing located in Ft. Lauderdale, Florida. Laine complained of pain in his hands, feet, knees, and shoulders. On five different visits, Laine saw a Diane La Berge. At all times material hereto, Diane La Berge was not licensed to practice either medicine or osteopathic medicine in the State of Florida but held herself out as a homeopathic physician and Director of Bio-Equilibrium Testing. She conducted a series of "tests" and made "evaluations" regarding Laine's condition. Among the tests performed was a metal analysis based on a cutting of Laine's hair sent to Biochemical Concepts, a testing laboratory. Based on her evaluation of the results of the hair analysis for metal La Berge diagnosed Laine as suffering from "heavy or acute copper poisoning". As treatment therefore La Berge recommended chelation therapy, acupuncture, and numerous "supplements", presumably vitamins. Laine understood, based on his conversations with La Berge, that chelation therapy would "cure" his condition. Laine attempted, on a couple of occasions, to obtain chelation therapy from a physician recommended by La Berge; however, there was never anyone at that physician's office. Therefore, Laine went to Respondent's office after being referred by Dr. Harvey Frank, Laine's personal chiropractor. There is absolutely no proof of any connection or relationship of any kind between La Berge or Bio-Equilibrium Testing and Respondent. About two months prior to his seeking out Bio- Equilibrium, Laine, a boat captain, had sanded the hull of a boat coated with a copper-based paint. He performed this type of work approximately once a year, always outdoors with adequate ventilation. Laine informed Respondent that he had been scraping the hull of a copper boat and brought a copy of the hair analysis to their initial office consultation on May 16, 1983. Laine initially presented himself to Respondent seeking chelation therapy on May 16, 1983. He complained of constant pain in his hands, feet, knees, and shoulders. Respondent obtained a medical history based in part on responses to a Cornell Medical Index Health Questionnaire (CMI), a health questionnaire on Respondent's stationery, and another history form, which contained a description of symptoms, family history, and personal history. Some of these responses were filled in, not by Laine, but by his wife. Respondent also got a brief verbal history from Laine but did no extensive one-on-one questioning of Laine or verification of prior physicians and diagnoses listed by Laine and/or his wife. He did no questioning concerning all of the responses or even significant relevant responses. The significant relevant responses include a "yes" response to the question: "Are you crippled with severe rheumatism (arthritis)?" Laine's symptoms were consistent with a diagnosis of rheumatoid arthritis but Respondent only recorded "inflamed joints onset following scraping copper bottom of boat." There is no recorded physical examination of Laine by Respondent at this initial office visit or at any time thereafter. On May 16, 1983, Respondent diagnosed Laine as having "Copper poisoning as told by hair analysis," wrote this in his records, and administered intravenous chelation with 5cc. dimethyl sulfoxide (D.M.S.O.), intramuscular injections of zinc; and an intravenous injection of Phillpott's formula and sulfur cyl. Apparently, an oral dose of zinc was also prescribed. Respondent also obtained a urine specimen for analysis by tests which would be helpful in determining kidney function. Although there is clear evidence that Laine specifically requested chelation therapy of Respondent, there is no evidence that he ever requested administration of D.M.S.O. or any other substance specifically. Chelation therapy in general involves the use of certain chemicals called chelation agents to bind, immobilize, and in some instances to increase the excretion of a target molecule, in most cases heavy metals, so that the free amount in the blood is decreased more rapidly than the body would do absent the chelation therapy. Vitamin C and D.M.S.O. are not generally recognized as effective chelation agents. Both Vitamin C and D.M.S.O. have only weak binding properties. Phillpott's formula is an I.V. for allergies and a nutritional supplement containing Vitamin C and other vitamins and minerals. Among those testifying, only Dr. Gordon and Respondent, members of the American Academy of Medical Preventics, even recognized its name, absent a list of ingredients. Sulfur cyl is a salycilate useful in the treatment of inflamed joints and arthritis. D.M.S.O. is an organic solvent with the potential to dissolve the vascular system. At no time did Respondent obtain a written release from Laine, releasing Respondent from any liability for the administration of D.M.S.O. intravenously through chelation therapy. At a May 17, 1983 office visit, Respondent administered intravenous chelation with 5cc. D.M.S.O. and an intravenous injection of sulfur cyl to Laine. No further testing was done by Respondent on that day. On this date Laine indicated that he was subjectively feeling better. On May 19, 1983, Respondent administered intravenous chelation with D.M.S.O. and an intravenous injection of Phillpott's formula and sulfur cyl to Laine. D.M.S.O. was also prescribed topically for skin and shoulders as needed. Respondent also ordered copper levels to be obtained from blood and urine specimens. Laine provided a 24 hour urine specimen which Respondent had tested. The specimen analyzed at 74.8 micrograms per liter. The normal copper values for the laboratory in question were .00-60.00 micrograms per liter. The greater weight of the direct credible expert testimony is that Laine's test showed a mild elevation not diagnostically significant for acute copper poisoning, however some rheumatoid arthritis sufferers show elevated copper levels. Respondent received the results of this urine test on May 22, 1983. On May 23, 1983 Respondent administered chelation with D.M.S.O. and intravenous injection of sulfur cyl to Laine. D.M.S.O. 99.9 was prescribed topically for shoulders. No further testing was performed on that date. On May 24, 1983, Laine was administered intravenous chelation with D.M.S.O. and an intravenous injection of sulfur cyl by Respondent. A blood sample was drawn for testing. On May 25, 1983, Respondent administered an intravenous injection of sulfur cyl to Laine. At this visit, Respondent used a plethysmograph to study Laine's entire body. Plethysmography is used to measure pulse pressure, usually in the venous system, for determining impeded blood flow in the veins and was apparently done because of a response on Laine's medical history involving angina and prior myocardial infarctions and because of a protocol or teaching of the American Academy of Medical Preventics. The blood sample drawn on May 24, 1983 was tested. The tests performed included serum copper levels, a SMAC profile, and r.a. latex titer results. The results showed a serum copper level of 135 micrograms per deciliter (normal values 70-155) and an r.a. latex titer of 1/1280. The greater weight of the direct credible expert testimony is that these results are not indicative of significant copper poisoning but were one significant indicator of rheumatoid arthritis. The results were reported to Respondent on May 26, 1983. On May 26, 1983, Respondent administered intravenous chelation with D.M.S.O. with sulfur cyl and calcium disodium edetate (E.D.T.A.) added. Chelin was also prescribed, apparently orally. Blood urea nitrogen (BUN) levels were also obtained that day. E.D.T.A. is most often used in the treatment of mild to severe lead poisoning. Although E.D.T.A. will chelate other heavy metals, including copper, it is not the treatment of choice by the majority of medical and osteopathic physicians for treatment of either copper poisoning or rheumatoid arthritis. D- penicillamine is preferred over E.D.T.A. because it is more effective and because E.D.T.A. has significant side effects, including primarily kidney failure. E.D.T.A. also has a problem permeating cell membranes. On May 27, 1983, Respondent administered intravenous chelation with D.M.S.O. and sulfur cyl to Laine. In Respondent's discussions with Laine between May 16 and May 27, 1983, Respondent suggested that a reduction of Laine's copper level would improve his symptoms. Respondent did not fully inform Laine of any of the potential side effects of E.D.T.A. chelation therapy or intravenous D.M.S.O. Respondent told Laine that his treatment was not completely accepted in the general medical community but he believed in it and it would be acceptable. This falls far short of fully informing Laine as to alternative methods of treatment and their potential for cure of his condition. In total, Respondent billed Laine $1,350.00 for office visits, various tests, examinations, and treatments. At each visit, Respondent provided Laine with bills and health insurance claim forms. These do not reflect a diagnosis until May 26 and then only the single diagnosis of "toxic metal poisoning". The bills were never paid by Laine whose wife complained to the Department of Professional Regulation concerning Respondent's treatment of Laine when Laine's insurance declined to pay for Respondent's treatment of him. Despite Respondent's oral testimony to the contrary, the patient records do not reflect that Respondent diagnosed Laine as having rheumatoid arthritis or cardiovascular disease, they show only copper poisoning of various degrees as reflected in the above findings of fact. Respondent maintains that the many tests were necessary and conservative for the purpose of confirming or rejecting his initial diagnosis of copper poisoning, to determine the presence of rheumatoid arthritis, and to guard against potential kidney failure before E.D.T.A. chelation was attempted. Since Respondent never performed any "hands on" physical examination and did no one-on-one questioning of Laine concerning the medical history forms, the tests may appear excessive, particularly in light of the probability that E.D.T.A. was used on Laine before Respondent received the final test results, but the characterization of Dr. Blechman is accepted that the type and spectrum of tests including plethysmography actually ordered by Respondent do not demonstrate significant fault. Respondent's office staff regularly took readings of Laine's bloodpressure and pulsed and measured his height and weights but the patient records do not reflect any "hands on" physical examination by Respondent of Laine on any of the eight office visits. The greater weight of the expert testimony is that a minimal physical examination for a new patient with unverified complaints should entail a complete hands-on physical which palpates the head, eyes, ears, nose, throat, neck, chest, abdomen, and the extremities and joints, listening to the heart and lungs and examining the skin, plus a rectal examination. If only joint diseased arthritis, or rheumatoid arthritis were suspected or being investigated for treatment, a minimal physical examination should emphasize evaluating all joints (including peripheral joints) by palpation, determining the range of motion of affected joints, listening to the heart and lungs, taking blood pressure, and evaluating length and duration of symptoms. According to physicians board- certified or with a majority of their practices in rheumatology or internal medicine, it is particularly important in joint disease cases for the physician to feel the joint to determine which element thereof is swollen and to see if it is warm to the touch i.e. inflamed. Respondent admits his initial physical examination of Laine was merely observation of Laine's movements and his general ambulatory motion with his clothes on, examination of tophi in his ears, and listening to his heart and lungs. Respondent is vague about whether he observed Laine's hands. Respondent's type of initial physical examination, if it can be called that, and lack of follow-up examinations fall short of the level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as acceptable under similar conditions and circumstances. On May 27, 1983 Laine also went to see Jeffrey Erlich, M.D. He was in pain and getting no relief from Respondent. On that date Dr. Erlich took a history from Laine, performed a complete "hands on" physical examination, reviewed laboratory data provided him by Laine from Respondent and tentatively diagnosed Laine as having rheumatoid arthritis. Laine's condition was such that, at formal hearing, Dr. Erlich characterized Laine as "the second sickest rheumatoid arthritis patient" he had seen. Because of the severity of Laine's condition Dr. Erlich began Laine on oral predisone which is the conservative treatment of choice among the majority of medical physicians and osteopathic physicians for the treatment of rheumatoid arthritis. Laine was subsequently hospitalized for what may have been side effects of the predisone itself or aggravation of a pre-existing ulcer by the predisone. From this hospitalization, Respondent desires that the inference be drawn that Dr. Erlich was less close to prevailing standards of treatment than was Respondent because Erlich's prescription for predisone constituted an error of Erlich based on failed physical examination and history-taking, which error Respondent knowingly avoided by electing chelation therapy over the predisone treatment. Respondent's argument is not persuasive, and that leap of the imagination cannot be made upon the credible competent substantial evidence in the record. Faulty judgment calls of Dr. Erlich, even if any existed, are non-issues advanced by Respondent to draw attention from relevant and material issues. Further, while in the hospital, Laine was seen by a rheumatologist and a gastroenterologist who essentially confirmed Erlich's diagnosis of rheumatoid arthritis. Laine has since been administered several types of treatment for rheumatoid arthritis, including but not limited to D-Penicillamine, by both Erlich and the rheumatologist without much success, but Laine continues to tolerate predisone and to receive some pain relief therefrom. In light of the foregoing, it is found that Laine had rheumatoid arthritis which Respondent failed to diagnose principally because of Respondent's persistent reliance on the previous hair analysis and his failure to use "hands-on" physical examination contrary to the prevailing level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as acceptable under similar conditions and circumstances. Respondent's reliance on hair analysis performed by a non-physician was misplaced and did not conform to the practice of medicine with that level of care, skill and treatment which is recognized by a reasonably prudent osteopathic physician under similar facts and circumstances. Not only is the greater weight of all credible expert evidence that hair analysis has little or no clinical value in diagnosing elevated copper levels or anything else because hair analysis indicates not only endogenous (internal or ingested) but also exogenous (external) sources of copper, but Respondent's own testimony further reveals that he merely assumed that the hair sample had been properly taken from the nape of Laine's neck and properly washed prior to testing. In making this finding of fact, the undersigned has not overlooked the testimony of Respondent's expert, Dr. Garry Gordon, who considers hair analysis to be a valuable diagnostic tool when laboratories meet all protocols. However, even Dr. Gordon admits that hair analysis is only relied on by a "distinct clear cut minority" nationwide; it is not required by the American Academy of Preventics; and the particular hair analysis of Laine in this case would probably show his most recent exogenous exposure to the copper boat hull. Respondent is a member of the American Academy of Medical Preventics and considers himself a holistic practitioner and an expert in the use of chelation therapy for prevention and cure of disease. /1 He administers chelation therapy to an average of 32 persons per week for one ailment or another. The American Academy of Medical Preventics is a group with a nationwide membership of 500-1000; of whom perhaps 100 are certified physicians. A protocol of this group requires extensive testing to verify the presence of various diseases, commends the least invasive approaches to testing and treatment, and favors chelation therapy for a number of ailments as well as hair analysis as a testing device. According to Respondents the D.M.S.O. was administered for the purpose of aiding the cell permeability of the vitamin C and later to aid the cell permeability of the E.D.T.A., E.D.T.A. was administered one time for the purpose of treating rheumatoid arthritis; the Phillpott's formula (primarily vitamin C) was for chelation of copper allergies and improving nutrition; and sulfur cyl was for inflammed joints. This treatment conforms to the American Academy of Preventics' protocol. It is stipulated by the parties that Respondent did not use D.M.S.O. as a treatment or cure for copper poisoning or as a treatment or cure for rheumatoid arthritis. (Pre-Hearing Stipulation paragraphs 33 and 34; H.O. Exhibit 2). Expert testimony was permitted to be elicited from Lloyd D. Gladding, D.O., Jeffrey Erlich M.D., Mark Montgomery, Ph.D., Wilbur Blechman, M.D., Garry Gordon, M.D., and Stanley Jacobs, M.D. Respondent objected to any testimony by Petitioner's witnesses, Dr. Gladding, D.O. (the only Florida licensed osteopathic physician other than Respondent to testify), Jeffrey Erlich, M.D., Mark Montgomery, Ph.D. in toxicology and instructor of both medical and osteopathic physicians, and Wilbur Blechman, M.D. because they were not "similar health care providers" in that none were physicians specializing in holistic and preventive medicine upon grounds that only reasonably prudent similar physicians may properly evaluate Respondent's performance. Dr. Blechman's testimony by deposition was further objected to by Respondent upon the ground that a medical physician may not testify to the statutory standard required of a "reasonably prudent similar osteopathic physician as acceptable under similar conditions and circumstances" as specified in Section 459.015(1)(t) F.S. This position was not consistent with Respondent's relying heavily on the testimony of Dr. Jacob, also a medical physician (M.D.) or Dr. Gordon, trained as an osteopath but accredited through a merger of schools as an M.D. Upon authority of Wright v. Schulte 441 So.2d 660 (Fla. 2d DCA 1983) 2/ upon the definition of "physician" contained in Section 459.0514(1) embracing both medical physicians and osteopathic physicians, upon the statutory language contained in Section 459.015(1)(t), specifying "The board shall give great weight to the provisions of Section 768.45 when enforcing this paragraph," and upon each witness' specialized education, training, and experience as evident from the records the undersigned overruled Respondent's objections and qualified the witnesses as experts pursuant to their respective qualifications. This ruling is also in accord with the history of Chapter 21R F.A.C., of which judicial notice has been taken, and which shows holistic and preventive medicine has never been recognized as a sub-speciality by the Board of Osteopathic Medical Examiners. This evidentiary ruling is here reaffirmed and reiterated as clarification of the weight and credibility of the experts' opinions accepted, relied upon, or rejected in this recommended order. The Food and Drug Administration (F.D.A.) is the federal agency charged with the enforcement of the federal Food and Drug Acts which includes the regulation of the manufacture and distribution of drug products. As part of its regulatory powers, the F.D.A. approves or disapproves drugs for human consumption. It does not approve or disapprove uses or treatments of drugs. Once the drug has been approved as a prescriptive agent, physicians are not limited by the F.D.A. in their utilization of approved drugs to the specific indications set forth in the F.D.A. package inserts. D.M.S.O. has been approved for human consumption. The package insert for D.M.S.O. as reported in the Physician's Desk Reference (PDR), a standard reference used by practicing physicians, recognizes it as indicated for treatment of the condition of interstitial cystitis only, a condition Laine did not have. E.D.T.A. has also been approved by the F.D.A. for human consumption. Its package insert as reported in PDR recognizes it as indicated for treatment of the conditions of digitalis toxicity, hypercalcemia, lead, and other heavy metal toxicities. The undersigned has considered the testimony of all the experts qualified in this case subject to differing weight and credibility considerations of their education, training, and experience. The definition of "experimental treatment" as that type of treatment which has not been shown to be effective or safe under clinical studies conducted after F.D.A. approval of the drug involved is accepted. With some minor variation of choice of words, that is the definition advanced by Dr. Gladding, D.O., Dr. Blechman, M.D. and by toxicologist Mark Montgomery, even though clinical tests also precede F.D.A. approval. D.M.S.O. and E.D.T.A. in the quantities and treatments used by Respondent are experimental and not approved or recognized as acceptable for treatment of either copper poisoning or rheumatoid arthritis by a respectable minority of the medical profession. The opinions of the Florida physicians board certified or with a majority of their practices in rheumatology or internal medicine and of Mark Montgomery, who teaches both medical physicians and osteopathic physicians the physical and physiological operation of various drugs, are considered more credible on this issue than that of Dr. Gordon, drafter of the American Academy of Preventics' protocol using E.D.T.A. and D.M.S.O. together in chelation. Dr. Gordon admits that in many ways all D.M.S.O. and E.D.T.A. treatments are practiced only by members of the American Academy of Medical Preventics, which has not yet been recognized by the American Medical Association and which represents a minority of physicians nationwide. Even by the construction of the evidence most favorable to Respondent, that is, the testimony of Dr. Jacob, Respondent's expert in D.M.S.O., the small quantities of D.M.S.O. administered by Respondent in the course of eight treatments would not have been therepeutically effective in reducing the copper levels in Laine's body and would not have been therepeutically effective in treatment of rheumatoid arthritis. A stronger solution than that used by Respondent would have been necessary to have either a positive or negative effect upon Laine. Dr. Jacob does not use D.M.S.O. for chelation but when using it by intravenous injection requires a release be signed. Laine was not physically harmed by the treatments administered by Respondent. The most that can be said is that the Respondent's misdiagnosis and useless treatments delayed his obtaining appropriate treatment. There is no recognized cure for rheumatoid arthritis and it has been shown that any of the numerous treatments utilized for rheumatoid arthritis will work on some individuals while not working on others. The symptoms of rheumatoid arthritis may alleviate without any treatments or conversely may get progressively worse regardless of any treatment utilized or they may clear up for no apparent reason.
Recommendation That the Board of Osteopathic Medical Examiners enter a final order finding Respondent guilty of violations of Count I [sections 459.015(h) and 459.0154], Count III [Section 459.015(1)(t)], Count IV [Section 459.015(1)(u)], Count V [Section 459.015(1)(n)], and Count VI, (section 459.015(1)(1)], suspending Respondent's license for a total period of one year therefor, and dismissing Count II [Section 459.015(1)(o)] with prejudice and dismissing Counts VII and VIII without prejudice. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue The issue presented for decision herein is whether or not Respondent has engaged in conduct, more particularly set forth in the Administrative Complaint filed herein, signed April 10, 1986, violative of Chapter 459, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Donald J. Weiss, D.O., during times material herein, was licensed as an osteopathic physician in Florida and has been issued license number OS 0003459. The investigative report of Petitioner's investigator Mel Waxman, medical records and a consultant's report of Dr. Ralph Birzon, D.O., were received into evidence without objection except for certain unspecified prescriptions (by Respondent). During the time period 1980 through 1985, Respondent admitted to having treated patients R.N., H.M. and C.B. or C.P. Respondent admitted to the treatment of the above- referred patients with specific dates relating to prescriptions of Schedule II drugs for patients R.N. and H.M. (Request for Admissions dated June 2, 1986). A review of the medical records for patients R.N., H.M. and C.B. or C.P. reveals that Respondent failed to maintain appropriate medical records justifying his course of medical treatment for such patients. As example, during the period January 1984 and June 19, 1985, Respondent prescribed 1,970 4 mg. Dilaudid and 380 Seconal 100 mg. capsules for patient R.N. Also, during the same time period, Respondent prescribed 2,665 4 mg. tablets of Dilaudid for patient H.M. (Responses to Request for Admissions dated June 2, 1986). Respondent failed to take adequate physical exams, laboratory reports or other medical histories to justify the quantity of controlled substances prescribed for patients R.N and H.M. In his treatment of patient R.N., H.M. and C.B., each patient was addicted to the medication Dilaudid and Seconal, both Schedule II controlled substances as defined in Sections 893.03(2)(a) and (c), Florida Statutes. Respondent's treatment of patients R.N., H.M. and C.B. by prescribing Dilaudid, Seconal and Valium (also a Schedule II controlled substance) was not in their best interest as addicts. Based upon a review of the medical records for patients R.N., H.M. and C.B. or C.P., Respondent's prescriptions for Dilaudid, Seconal and Valium were excessive, inappropriate and unacceptable for an osteopathic physician. Respondent's treatment for patients R.N., H.M and C.B. or C.P. fell below the level of care, skill and treatment as recognized by a reasonable prudent similar osteopathic physician as being acceptable under similar conditions and circumstances. (Testimony of Ralph Birzon, D.O., TR 41-46). An examination of the Physician's Desk Reference (PDR) reveals that Respondent, by prescribing Dilaudid and Seconal to patients R.N. and H.M. was inappropriate, and when taken together, exacerbated those patient's medical problems. Additionally, a review of the PDR indicates that Dilaudid cannot be safely prescribed for long periods of time. A long period of time is, based on the reference, a period in excess of three months. Respondent admits that he made a mistake in his treatment of the above-referred patients by prescribing Schedule II controlled substances. Respondent considered that he was "duped" and offered that this was his first contact with drug addicts. Respondent prays that his license not be revoked or suspended and offered to accept any lesser ordered penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED THAT: Respondent's license be suspended for a period of six (6) months; Following the period of suspension, Respondent be placed on probation for a similar period of six (6) months; During the probationary period, Respondent be required to successfully complete eighty (80) hours of continuing education related to the physician and proper substance abuse prescribing procedures. RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1986. COPIES FURNISHED: Preston T. Everett, Jr., Esquire Fred Roche, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Donald J. Weiss, D.O. Wings Benton, Esquire 145 River North Circle General Counsel Atlanta, Georgia 30328 Department of Professional Regulation Rod Presnell, Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
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
The Issue An amended administrative complaint, dated July 31, 1989, alleges various violations of Chapter 459, F.S., by Respondent. Counts V, VI and VII, relating to Respondent's treatment of patient, R.C., were voluntarily dismissed by Petitioner at the commencement of the hearing. The following allegations are left at issue: That Respondent violated Section 459.015(1)(u), and (y), F.S., by prescribing Percodan and Ritalin, controlled substances, to his wife, G.I., inappropriately or in excessive quantities. That in the treatment of his wife, Respondent failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances, in violation of Section 459.015(1)(y), F.S. That Respondent violated Section 459.015(1)(p), F.S., by failing to keep medical records justifying the course of treatment of G.I.; and that of his mother, M.I., for whom he prescribed Demerol.
Findings Of Fact Respondent, Donald Iafornaro, D.O., is and has been at all times material to the allegations of the amended administrative complaint, a licensed physician in the State of Florida, with license number OS 0001794. Dr. Iafornaro has a limited osteopathic practice which he conducts from his home at 1802 North Lakemont, Winter Park, Florida. He has about fifty patients, and also treats his large family, including his wife, mother, eleven children and grandchildren. G.I. has been a patient of Dr. Iafornaro for approximately 25 years -- since 1973, as his wife, and prior to that, from 1964, along with the rest of her family in Cleveland, Ohio. Mrs. Iafornaro has had a demanding job caring for the Iafornaro children, her mother-in-law, the house and pets, and has recently been her husband's only staff in his practice. Between May 1985, and April 1987, her husband treated her for a variety of medical problems, including severe allergies, sleep apnea (a mechanical difficulty in breathing during deep sleep), depression, fatigue, a chronic fracture of the foot bone (a fracture which failed to heal), spinal stenosis, an unstable hip, ulcers, angina and various gynecological complaints Between May 1, 1985, and April 11, 1987, Dr. Iafornaro prescribed the following drugs, among others, to his wife: 2,720 tablets of Percodan 900 tablets of Ritalin Percodan is the product name for oxycodone hydrochloride, and Ritalin is the product name for methylphenidate hydrochloride. Both are Schedule II controlled substances and are legend drugs as defined in Section 465.003(7), F.S. With the concurrence of the parties, official recognition was taken of the Physician's Desk Reference (PDR) for the years 1984-1987. Petitioner also presented the testimony of two osteopathic physicians practicing in Dr. Iafornaro's community. The evidence from these authorities established that the prescriptions of Percodan and Ritalin for G.I. were inappropriate or in excessive quantities. Dr. Iafornaro felt that Ritalin was necessary to counteract the sedative effect of the antihistamines his wife had to take for her many allergies. He also prescribed the Ritalin for her depression. Ritalin is a mild central nervous system stimulant. It is indicated for attention deficit disorders (primarily in children) and narcolepsy. It should not be used for severe depression or for the prevention or treatment of normal fatigue. The PDR warns of drug dependence. Ritalin is also contraindicated in patients, such as G.I., who have exhibited anxiety, tension, depression and agitation. Ritalin may cause reactions such as skin rashes, a common complaint of this patient, but a problem which Dr. Iafornaro attributed to her multiple allergies. The Percodan was prescribed by Dr. Iafornaro for his wife's pain in her foot and for other pain in her low back and in her wrist. The PDR warns that Percodan may be habit forming. It contains aspirin, which can aggravate ulcers. It is indicated for relief of moderate to moderately severe pain; it is a depressant; it can cause apnea and respiratory depression in an overdose. Mrs. Iafornaro's statement that she used only about a half a tablet a day is inconsistent with the volume of the drugs prescribed for her over the relevant period. Dr. Iafornaro produced all of his medical records for G.I. for the relevant period. He claims they are incomplete because he also makes notes on odds and ends, writes on the back of a medical journal and keeps a lot of records in his head. (Iafornaro Deposition, p.15) The medical records produced by Dr. Iafornaro do not justify his course of treatment,for this patient, and particularly fail to explain the long-term volume of drugs that he was prescribing. Dr. Iafornaro claims that the probable cause panel previously reviewed his records and found them acceptable. The records were produced in response to charges that he had violated certain terms of an earlier disciplinary action. The issue was resolved with a "no probable cause" finding. That finding, in 1983, was for a different time period than the period at issue in this proceeding. Dr. Iafornaro provided records to the panel covering a limited period in 1983 when he was treating his wife for her foot fracture, a slip and fall accident and other acute conditions. The 1983 records, in contrast to those at issue here, describe the condition and his treatment. The later records provide copious listings of a variety of prescriptions, including the Percodan and Ritalin, with scant examination results, explanation of the condition being treated, or diagnoses of the complaints. Complete written medical records are an essential element of prudent osteopathic practice, particularly when, as here, the physician is treating his family and his objectivity may be questioned. Between January 5, 1987, and March 1, 1987, Dr. Iafornaro prescribed 200 50 mg Demerol tablets to his 84 year old mother, M.I. Demerol is a product name for meperidine hydrocloride, a Schedule II controlled substance, and a legend drug as defined in Section 465.003(7), F.S. The basis for the prescriptions was an episode of right upper quadrant pain felt to be of gallbladder origin. It is cheaper to purchase Demerol tablets by the 100. After M.I. took a few of the first prescription of 100, she lost the bottle and Dr. Iafornaro replaced it with another prescription. The medical records make no mention of the lost prescription, but they marginally justify the use of this drug for the limited period in issue and for the purpose intended. A previous disciplinary case involving allegations of Dr. Iafornaro's improper prescriptions and record-keeping practices was resolved with a stipulation for his one-year probation with conditions. The stipulation was approved by the Board of Osteopathic Medical Examiners in a Final Order entered on December 28, 1982. (DPR Cases #0010979, 0014467, and 0015303)
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the Department of Professional Regulation, Board of Osteopathic Medical Examiners enter a Final Order which finds Donald Iafornaro, D.O., guilty of having violated the provision of Subsection 459.015(i)(p), (u) and (y), F.S. and imposing the following penalties: Suspension of license for 90 days and until such time as he appears before the Board of Osteopathic Medical Examiners and establishes that he has taken and passed the examination conducted by the National Board of Examiners for Osteopathic Physicians and Surgeons or the Special Purpose Examination (SPEX) of the Federation of State Medical Boards, as designated by the Board of Osteopathic Medical Examiners in its final order; Upon reinstatement that his license be placed on probation for two years subject to such terms and conditions deemed appropriate by the Board, including, but not limited to, restriction of practice, direct or indirect supervision of practice or prescribing of controlled substances and required additional continuing education; That he be permanently restricted from prescribing controlled substances to family members, unless under direct supervision of another osteopathic physician; That a reprimand be imposed; That a fine of $2,000. be imposed. DONE AND RECOMMENDED this 23rd day of February, 1990, in Tallahassee, Leon County, Florida. MARY CLARK 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 23rd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5277 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Rejected as unnecessary. Adopted in paragraph 1. 3.-5. Adopted in paragraph 5. Adopted in paragraphs 6, 8 and 10. Some blood pressure monitoring is found in the records however. Adopted in paragraph 6. Adopted as a conclusion of law and in paragraph 6. Adopted in paragraph 12. Adopted in paragraph 15. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. Adopted in substance in paragraph 19. Respondent's Proposed Findings Rejected as unnecessary. Adopted in paragraph l. Adopted in part in paragraphs 7-10, otherwise rejected as unnecessary. 4.-6. Rejected as contrary to the weight of evidence. 7.&8. Adopted in paragraphs 15, 17 and 18. 9. Rejected as immaterial. COPIES FURNISHED: Bruce D. Lamb, Esquire Dept. of Professional Regulation 730 S. Sterling Street Tampa, FL 33609 Sam Murrell, Jr., Esquire P.O. Box 1749 Orlando, FL 32802 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Rod Presnell Executive Director Osteopathic Medical Examiners Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792
