The Issue Whether or not Respondent is guilty of violating Sections 943.1395(5) and (6) and Section 943.13(7) F.S. and Rule 11B-27.0011(4) (a) F.A.C. so as to subject his certification to discipline by the Criminal Justice Standards and Training Commission.
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on March 26, 1976 and holds Certificate No. 02-16273. At all times material hereto, he has been a certified law enforcement officer in the State of Florida. At the request of the Putnam County Sheriff's Department, the Florida Department of Law Enforcement (FDLE) conducted an independent investigation into suspicions and allegations that Respondent, a Putnam County Deputy Sheriff, had knowingly and unlawfully as a public servant requested, solicited, accepted, or agreed to accept pecuniary or other benefits not authorized by law, for performance or non- performance or an act or omission of an act within Respondent's discretion as a law enforcement officer or in violation of his public duty. Specifically, the Sheriff had a tip or a rumor to the effect that the Respondent had failed to enforce Chapter 893, "The Florida Comprehensive Drug Abuse Prevention and Control Act," for pecuniary compensation or other benefit and that the Respondent did unlawfully agree, conspire, combine or confederate with Franklin Kaymore and others to commit the crime of "unlawful sale or delivery of, or unlawful possession with intent to sell or deliver cocaine" at some unspecified time or times between May 1, 1985 and December 20, 1985. The FDLE investigation was spearheaded by Special Agent Jimmie Collins and focused on Franklin Kaymore, a dealer in narcotics in Palatka, Putnam County. When approached by Collins' confidential informer (CI), Kaymore told the CI to get away from him. Investigator Collins made two cognitive leaps of faith based on this reaction of Kaymore's: First, that Kaymore knew the CI was associated with law enforcement, and second, that Respondent or another "leak" in the Putnam County Sheriff's Department had tipped off Kaymore to the drug investigation and to the CI's true identity as a "narc." However, there is no direct evidence to support either of Collins' inferences. The initial tipster concerning both Kaymore and Respondent as conspiring to sell or deliver drugs and concerning Kaymore paying Respondent not to enforce Florida drug laws was one Waddell Johnson, and Collins conceded that Waddell Johnson had admitted at their initial interview that it had been Respondent who had arrested him and Kaymore had given evidence to convict him or at least had not been prosecuted for Johnson's and Kaymore's joint offense. (See Finding of Fact 9, infra.) Collins further conceded that Waddell Johnson, two members of the Putnam County Sheriff's Office, and Collins' Palatka Police Department contact could have "leaked" information on his investigation as easily or more easily than Respondent. Collins' investigation revealed nothing to involve Respondent with Kaymore's drug dealing money, and Collins never recovered any unlawful contraband or money or specific benefits that could be shown to have flowed from Kaymore to Respondent. Kaymore testified that he actually got his information concerning drug enforcement from some of his own street salesmen of drugs who were doubling as police "snitches." Franklin Kaymore, the admitted drug dealer, now incarcerated on fraud and forgery charges, had been a neighborhood acquaintance of Respondent in Palatka, Florida, for approximately 20 years. Throughout this period of time, Kaymore was one of those community characters without visible steady employment but who always had money to spend or to loan to others. Many people borrowed money from him over the years, including Respondent. For years, Kaymore's employments were transient and unsteady but existed sporadically, and he was known in the community to be a proficient and extraordinarily successful dog track gambler, pool hustler and crap shooter. Presumably, he also collected interest on his various loans. Occasional legitimate jobs in demolition, electronics installation, and migrant labor and in the foregoing borderline activities camouflaged Kaymore's true income sources, but he was also widely rumored to be dealing in illicit drugs. At some point in 1984 or 1985, Kaymore "took up" with Celestine Cross a/k/a Lisa Cross, the Respondent's goddaughter. This brought Kaymore and Respondent into a much closer relationship than before. On one occasion, the Respondent and his wife visited Kaymore because their goddaughter had moved in with him, and in Respondent's presence, Kaymore denied a point-blank question from Respondent's wife as to whether or not he was dealing drugs. By the time in 1985 that the whole of Kaymore's income was derived from drug dealing, he and Respondent's goddaughter were openly living together in a new house, rented from Respondent's cousin. Respondent and his wife helped them move and settle in, and Respondent then often visited in their home. Kaymore testified that he warned his drug customers and street salesmen not to come to his house when they saw the Sheriff's car which Respondent drove or Respondent's wife's car in his driveway; that he "always have had respect for [Respondent about] doing my business" and did his drug sales out of Respondent's sight; and that he often sent potential drug customers to his street operatives just to keep them away from his house. On the other hand, Kaymore assumed that although Respondent never saw money or "boosted," i.e., stolen, goods exchanged to Kaymore for drugs, Respondent "must have known" Kaymore was selling and trading for drugs. Therefore, after he was "busted" in 1986, in his quest for a "deal," Kaymore expressed this latter opinion to law enforcement officers in the course of negotiating his and "Lisa's" plea bargain. In 1985, Respondent had borrowed approximately $300-$400 from Kaymore, and Respondent's wife accepted some dresses as a gift from Kaymore. The details of the loan or its repayment, if any, are not in evidence, but there is also no evidence that Respondent did anything or refrained from doing anything either personally or in his official capacity as a law enforcement officer in order to get the loan from Kaymore. Kaymore had also previously loaned Respondent money before Respondent entered law enforcement and before Kaymore began to deal drugs for a living. Kaymore categorically denied that Respondent ever offered him protection or threatened prosecution in exchange for the loan in 1985. The only inference possible from all the evidence is that the dresses were "boosted" by one of Kaymore's drug customers, were accepted by Kaymore in exchange for drugs, and were then passed off by Kaymore to Respondent's wife because the dresses were not "Lisa's" size. However, there is insufficient credible evidence to show that either Respondent or his wife could be certain of the origin of these dresses. On one occasion, Kaymore bought a stolen cassette player from Waddell Johnson. Kaymore assumed the cassette player was stolen because Johnson delivered it to Kaymore in the original Sears box with all its original paperwork. When Respondent came to Kaymore's house and viewed the cassette player, he told Kaymore that it was stolen and later returned with a detective. After questioning Kaymore, Respondent and the detective impounded the stolen cassette player and told Kaymore he would have to be a witness against Johnson. Apparently, Kaymore admitted he knew the cassette player was stolen, and the detective, not Respondent, made a deal for his testimony against Waddell Johnson. Kaymore was not charged or prosecuted, and he did not have to testify, but there is no evidence Respondent had anything to do with that result. Willie Johnson, a former runner and drug customer of Kaymore's during the period of time material to these proceedings, also was once arrested by Respondent. In Willie Johnson's view, the arrest was "for something I didn't do," and he was in fact released after seven days. Nonetheless, Willie Johnson presented no evidence to clearly show Respondent had knowledge of any drug dealing. According to Johnson, he had bought drugs in Kaymore's house while the Respondent was there, but he did not fear arrest by Respondent since the drug transaction occurred out of Respondent's sight in another part of the house. Elbert Grant knew Kaymore sold "reefer and cocaine" from his house but Respondent was never present when Grant was buying drugs at Kaymore's house, and Grant had no knowledge of whether Respondent ever saw any outside drug transactions. The testimony of Princess Robinson, a convicted felon with a long history of retail theft convictions, was not directed to the charges within the four corners of the Administrative Complaint. It was also not credible. The testimony of Connie Hodges was internally unreasonable and not credible upon the application of simple logic and further was not credible because of Ms. Hodges' clear bias against Respondent due to prior arrests he had participated in either directly or peripherally. The external credibility of Hodges' testimony was utterly destroyed by her observable lack of candor and demeanor on the stand, which demeanor clearly demonstrated Hodges' current substance abuse. Moreover, Hodges, who maintained she is currently "clean", acknowledged that her former drug ingestion had affected her reason and judgment and that her memory as of the date of formal hearing was unclear. The criminal charges filed against Respondent in connection with all events material hereto have been heard before the Circuit Court in Putnam County and have been either dismissed or tried by jury trial with a verdict of "not guilty".
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Administrative Complaint. DONE and ENTERED this 13th day November, 1989, at Tallahassee, Florida. ELLA JANE DAVIS, 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 November, 1989. COPIES FURNISHED: John Rosner Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney W. Smith, Esquire Post Office Box 628 Alachua, Florida 32615 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether or not on or about May 24, 1978, the Respondent was arrested by officers of the Jacksonville Sheriff's Office, in Jacksonville, Duval County, Florida, and found to be in illegal possession of the controlled substance, to- wit, Pentothal (Sodium Thiopental), injectable, and, therefore, in violation of Subsections 464.21(1)(b) and (d), Florida Statutes. Whether or not on or about May 24, 1978, the Respondent was found to be in possession of several prescription drugs without having obtained a prescription for those drugs, in violation of Subsection 464.21(1)(b), Florida Statutes.
Recommendation It is recommended that the license of the Respondent, Gloria Nesmith Moore Callender, R.N., No. 48527-2, be REVOKED. DONE and ENTERED this 28th day of November, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire Geraldine B. Johnson, R.N. 1005 Blackstone Building Department of Professional and Jacksonville, Florida 32202 Occupational Regulation Board of Nursing Ms. Gloria N. M. Callender 6501 Arlington Expressway, 8030 Almar Place Bldg. "B" Jacksonville, Florida 32208 Jacksonville, Florida 32211
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint; and if so, what penalty should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Parties The Department is the state agency responsible for regulating the practice of medicine in Florida, pursuant to chapters 456 and 458, Florida Statutes. The Department also oversees Florida’s medical marijuana program via the Office of Medical Marijuana Use, formerly known as the Office of Compassionate Use. Art. X, § 29, Fla. Const.; § 381.986, Fla. Stat. Section 381.986 provides that a “qualified patient” can receive medical marijuana from a medical marijuana treatment center.2 A qualified patient must have at least one of the statutorily-designated qualifying medical conditions and obtain a certification from a qualified physician. § 381.986(2) and (4), Fla. Stat. Section 381.986(2)(f) identifies “post-traumatic stress disorder” (“PTSD”) as a qualifying medical condition. A qualified physician must hold an active, unrestricted license as an allopathic physician under chapter 458 or as an osteopathic physician under 2 A marijuana treatment center holds a license issued by the Department to cultivate, process, transport, and dispense low-THC cannabis, medical cannabis, and cannabis delivery devices. § 381.986(8)(a), Fla. Stat. chapter 459, Florida Statutes. § 381.986(1)(m), Fla. Stat. A qualified physician must also “successfully complete a 2-hour course and subsequent examination offered by the Florida Medical Association or the Florida Osteopathic Medical Association, which encompasses the requirements of [section 381.986] and any rules adopted hereunder.” A qualified physician may not have a “direct or indirect economic interest” in a medical marijuana treatment center. § 381.986(3)(b), Fla. Stat. Dr. Davis is a qualified physician and a board-certified family practitioner who has been licensed to practice medicine in Florida since 2003. His practice focuses on holistic medicine and alternative treatments including medical marijuana. Dr. Davis is based in Gainesville, Florida, and practices via a corporation he founded in 2016 called “Florida Marijuana Doctors, Inc.” or “FMD Green.” Dr. Davis has treated hundreds of patients with PTSD and has prescribed medical marijuana to treat PTSD. The Ties Between Dr. Davis and Trulieve Trulieve is a medical marijuana treatment center that operates 43 of the 213 medical marijuana dispensaries in Florida. As measured by sales, Trulieve holds 50 percent of the medical marijuana market in Florida. In 2017, Trulieve’s Florida market share was approximately 80 percent. Trulieve opened a medical marijuana dispensary (“the Lady Lake dispensary”) in the Ocala/Lady Lake area in 2017 by leasing 2,243 square feet for $40,374 a year in a building located in the Oakland Hills Professional Center at 13940 Highway 441 in The Villages. In 2017, there were not enough qualified physicians to handle the number of Florida residents seeking medical marijuana prescriptions.3 In an 3 Benjamin Atkins was involved with ensuring Trulieve’s dispensaries were compliant with state law, and he was involved with opening the Lady Lake dispensary. He described the shortage of qualified physicians as “disastrous.” When Trulieve opened the Lady Lake dispensary, he was unaware of there being any qualified physicians practicing in that area. Mr. Atkins further testified that “[t]here’s approximately 45,000 licensed physicians in Florida, and when [the medical marijuana program] first started there were maybe five effort to alleviate that problem, Trulieve contacted qualified physicians and reached agreements for them to work one day a week or one day a month inside buildings with Trulieve dispensaries where there was a shortage of qualified physicians.4 Trulieve subleased office space to Dr. Davis and at least three other qualified physicians at the Lady Lake dispensary for $100 a month.5 Upon entering the Lady Lake dispensary one would immediately be in a lobby or waiting room with a Trulieve sign identifying the dispensary on one side and office space behind a door on the opposite side.6 physicians that were qualified and willing to see patients So I would call it a crisis. If you [had] that situation with something like pediatrics, the news would have been talking about what a crisis it is.” 4 With regard to how Trulieve contacted Dr. Davis about working in the Ocala/Lady Lake region, Mr. Atkins offered the following testimony: A: And then we would reach out to physicians we were aware of in other parts, and to be honest with you, some were very cold and uncaring and just focused on getting patients to make money, but then there were people like Dr. Davis who were compassionate and caring. And I remember at one time he drove all the way to Miami to see a child who nobody would see. There was just a lot of demand like that. So we would say to somebody like Dr. Davis, “Hey, you know, would you be able to work in the area of The Villages to see people,” and the compassionate physician would agree to one day a month or one day a week, go to different areas of the state that were underserved even though it wasn’t easy. Q: Did you seek out Dr. Davis to have him come to The Villages area then? A: I don’t remember exactly who sought who. What I can tell you is he was always regarded as somebody that was compassionate and, you know, passionate about helping people and was willing to in special circumstances travel around and see people and do stuff like that. I honestly don’t remember who said first, “Hey, would you come to The Villages,” or if he said, “I’m willing to come to The Villages,” or what. 5 Similar arrangements existed at other Trulieve dispensaries. 6 Trulieve did not solicit nonqualified physicians or other businesses to sublease space. However, if a nonqualified physician had inquired about subleasing space in the facility, Lester Perling, a compliance attorney with Broad and Cassell, wrote the sublease, and Trulieve utilized the same sublease for all of the qualified physicians at the Lady Lake dispensary. Mr. Perling did not advise Trulieve what to charge for the subleases, but he did advise Trulieve that it had to be at or above the market price. Benjamin Atkins was responsible for the subleases between Trulieve and any qualifying physicians working at the Lady Lake dispensary. Mr. Atkins testified convincingly that $500 a month was the fair market price for such space. His testimony was substantiated by that of Department witness Thomas Oldenborg as discussed below. Trulieve’s leasing plan was to enter subleases with up to five qualified physicians, and charge each $100 a month to use the space one day a week, thus earning Trulieve $500 a month in rental income, i.e., the fair market value for the space. Dr. Davis’s one-fifth share of the $500 monthly fair market value rental rate for his one fifth share of the monthly occupancy was commercially reasonable. The evidence firmly established that the leasing arrangement was not a trick or scheme related to the practice of medicine. Furthermore, the evidence firmly established that Dr. Davis’s rental of office space at a commercially reasonable rate from Trulieve did not create a direct or indirect economic interest between Dr. Davis and Trulieve.7 Mr. Atkins testified that “we would probably lease to a variety of people so long as they were willing to abide by the lease and it was safe.” 7 Mr. Atkins’s calculations about how much revenue Trulieve realized from the sublease appear to be erroneous in that he believed Trulieve was receiving $100 per week from each sublease rather than $100 a month. Nonetheless, his testimony clearly established the underlying fact that “if somebody came and said I’ll give you $500 a month or something for that space, that was probably well within market.” The subsequent inflation of that figure based on a miscalculation of the lease term does not lessen the weight of his testimony that the total market value was $500 a month, and constitutes competent, substantial evidence that Trulieve was not offering the leases for a below market price. When questioned again about Trulieve’s methodology, Mr. Atkins reiterated his earlier testimony: While the sublease that Trulieve utilized for Dr. Davis and the other qualified physicians had provisions pertaining to late fees, common area maintenance, and a security deposit, the spaces for the associated amounts were left blank. As a result, Trulieve did not: (a) charge Dr. Davis for making late rental payments; (b) pass along the costs of common area maintenance; or (c) require a security deposit. Trulieve was not concerned with a late fee because it would have been an inconsequential amount. As for a common area maintenance charge, Trulieve deemed that to be immaterial given its belief that it was subleasing the physician suite for an amount far in excess of the fair market price.8 So we would take the space and say, okay, what would the space be leased out for in the fair market, and that space I recall was like $500 or something like that. So then to make sure you’re charging above market, say you have 30 days that you could lease in an average year – or in a year, 30 days per month, taking 355 and dividing it by 12, that you would essentially be charging different people to rent, and so charging $100 a month for the four days is like six times market. 8 When asked if Trulieve acted intentionally by omitting those incidental charges, Mr. Atkins testified as follows: A: I don’t want to say it was intentional or unintentional or misremember. I can just tell you from my state of mind sitting here today that when your rent from somebody is $100 a month, because you’re looking for 30 different people to pay that 100 or whatever, whatever the math is, you know, to charge a late fee of, you know, $8 or something would not have been something I would have been concerned with. *** Q: Mr. Atkins, in your experience dealing with the Trulieve dispensary subleases to qualified physicians, could you offer the Court what some typical or reasonable rates would be for late charges in any of those subleases? A: Yeah, my opinion is if it was $100 a month, a late charge would be like $5 or $6 or something. Q: Same question as to the past due on the common area maintenance, the CAM. From your experience with the As for other arrangements, qualified physicians were responsible for bringing their own equipment to the Lady Lake dispensary. Also, Trulieve had a policy prohibiting employees from directing patients to a particular physician. If a patient inquired about where he or she could locate a qualifying physician, a Trulieve employee was supposed to direct that patient to a state-run website or the “find-a-doctor” tool on Trulieve’s website. Qualifying physicians who subleased space from Trulieve did not receive preferential status on Trulieve’s website. Between January 1, 2016, and January 25, 2018, Dr. Davis prescribed 4,941,075 milligrams of medical marijuana. Trulieve filled 76.71% of that amount. Given Trulieve’s dominant position in the Florida market for medical marijuana, that number is not surprising. The Department’s Critique of the Sublease The Department presented the testimony of Thomas Oldenborg, a commercial real estate broker whose territory includes the Lady Lake area. Mr. Oldenborg deals with investment properties and lease analysis. Mr. Oldenborg noted that the main lease between Trulieve and the landlord of the Oakland Hills Professional Center does not allow for subletting. Mr. Oldenborg opined that $100 a month was not a reasonable rate for the sublease between Dr. Davis and Trulieve. He testified that it would be difficult to find parties interested in leasing a 500 square foot space for one day a week. Leases with such terms are not typically advertised to the Trulieve subleases to qualifying physicians, what would the CAM passthrough be? A: I mean, if you’re charging six times market rent, I wouldn’t charge the CAM. I would only charge a CAM if I was overcharging. general public. Instead, such leases are usually done privately between parties that have a preexisting relationship.9 9 Mr. Oldenborg’s full opinion was as follows: Q: Mr. Oldenborg, given your review of this lease and your knowledge of commercial real estate in the area, is the $100 per month rental rate a reasonable rate? A: No. Q: Why not? A: Because there would be, in my opinion, no possible way to facilitate the lease or the transaction as in there is no way to advertise that type of deal on a normal commercial real estate platform or any available commercial real estate platform. Q: Would you mind elaborating on that? A: Sure. Normally if somebody is to sublease a space it has to be pretty clear on what it is and put out to the general public. This, again in my opinion, seems that the two parties would almost have to have a personal relationship or something to come across this deal. Somebody would have to approach somebody in person and have this conversation. *** Q: Have you ever, in your time, seen a lease advertised on one of these lease platforms with restrictions on days of use? A: No, sir. Q: Have you ever seen time restrictions, as in specific hours? A: No, sir. Q: Are you aware of whether that can even be advertised on these platforms? A: I do not believe it can, which is the predication of my answer. I don’t know how they would list it. There’s really no availability to do so, in my knowledge. Q: If a client came in – if a client came in asking for a lease for one day per week for, say, three hours a day, would you be able to facilitate a search to find something of that sort? A: No. However, contrary to his initial opinion, when questioned about other parameters of the sublease between Dr. Davis and Trulieve, Mr. Oldenborg’s testimony indicated that the sublease was priced at fair market value: Q: In your experience and your knowledge of the area, what is the going rate for a single office or executive suite sublease of a comparable size, say 500 square feet in this region? A: You’re normally looking at – for an executive suite, you’re normally looking at a ten-by-ten office with access to a conference room and you’re looking at roughly $500 a month to a thousand dollars a month, [depending] on what area of The Villages you’re in, but you’re not getting very much square footage. *** Q: Could you estimate about how much square footage that $500 a month lease would purchase? A: It would come with a single office, which would be roughly a hundred square feet and then you would have access to a conference room, which is usually an appointment basis. *** Q: In your experience would you say that [the current lease space of Dr. Davis] is consistent with approximately 500 square feet of office space? A: Yes, sir. Mr. Oldenborg was then led through a series of calculations from which he ultimately agreed that the cost to Trulieve of the office space used by Dr. Davis was, based on all of the agreed upon assumptions, $107 per Q: So you would not be able to find a lease offered on the open market similar to this sublease? A: No, sir. month. He further testified that a payment by Dr. Davis to Trulieve of $100 a month is “[f]air market value, just not typical for that type of lease setup or sublease.” However, the qualification to his testimony that the lease was fair market value was reduced to near zero by the following: Q: And describe for me any experience that you’ve had with part-time leasing arrangements with physicians? A: Very little. Q: Okay. Can you recall any of those instances where you’ve done any kind of a part-time lease? A: No. Given that Dr. Davis only had access to the space in question for one day a week rather than five days a week, Mr. Oldenborg’s testimony established that Trulieve charged a fair price for the sublease. Findings as to Whether Dr. Davis Engaged in a Trick or Scheme Related to the Practice of Medicine or Had a Direct or Indirect Economic Interest in Trulieve Trulieve sought out qualified physicians to sublease unused space in Trulieve dispensaries. However, there is no evidence that the arrangement between Dr. Davis and Trulieve was an attempt to defraud Florida residents seeking medical marijuana or an attempt to “game the system” by circumventing any statutory requirements. There is no persuasive evidence indicating that Dr. Davis referred patients to Trulieve or that Trulieve referred prospective patients to Dr. Davis. As a result, the evidence does not clearly and convincingly demonstrate that Dr. Davis employed a trick or scheme related to the practice of medicine. Dr. Davis had no ownership stake in Trulieve. Thus, the evidence does not clearly and convincingly demonstrate that Dr. Davis had a direct or indirect economic interest in Trulieve. K.B.’s Appointment with Dr. Davis K.B. retired in 2015 after 35 years in law enforcement. After a year, she returned to the workforce and was employed as an investigator in the Department’s unlicensed activity section from August of 2017 through November of 2017. Her duties included undercover operations. K.B. used the alias of K.G. (“K.G.”) during her undercover operations. Her “K.G.” alias was a white female who had been in the military and had received treatment for PTSD. K.B. began an undercover investigation of Dr. Davis with the intent to get him to qualify her to receive medical marijuana for the treatment of PTSD. K.B. initially visited the Lady Lake dispensary on August 2, 2017, in order to gather information about the business. She walked through the front door of the Lady Lake dispensary and saw a Trulieve sign to her right. She saw no signs referring to Dr. Davis. K.B. met a security guard named Jason who wrote some information about Dr. Davis on a Post-It note and essentially referred to Dr. Davis as Trulieve’s “in-house doctor.” However, the security guard said that K.B. was not required to utilize Dr. Davis and mentioned other doctors in the area who could qualify her for medical marijuana. After her conversation with the security guard, K.B. returned to her office and ultimately went on-line in order to schedule an appointment with Dr. Davis for November 1, 2017. She used a prepaid card to pay the $300 appointment fee. She also faxed “K.G.’s” fictitious medical records to Dr. Davis’s office. Those fictitious medical records purported to memorialize treatment rendered to “K.G.” at Camp Pendleton in December of 2007, January 2008, and December 2008. Those records indicated that “K.G.” had witnessed a traumatic event while in the military and was experiencing difficulty sleeping and hallucinations. She also supposedly reported that she had become irritable, angry, and had withdrawn from friends and family. Dr. Davis received those records, reviewed them, and incorporated them into the medical records that he created for “K.G.” He also reviewed “K.G.’s” controlled substance history via E-Force, a database for controlled substances. K.B. arrived at the Lady Lake dispensary and waited in the lobby until Dr. Davis brought her back into his office. The appointment began with typical doctor-patient banter before turning to the reason for “K.G.’s” appointment, PTSD.10 Rather than relying on the fabricated medical records that K.B. had faxed to his office, Dr. Davis attempted to ensure that “K.G.” still suffered from PTSD. Accordingly, he had K.B. describe “K.G.’s” purported symptoms. In doing so, K.B. described experiencing nightmares and/or flashbacks for a long period of time and probably alluded to them being related to “K.G.’s” military service. K.B. also mentioned experiencing generalized anxiety and headaches.11 In addition to discussing PTSD and medical marijuana, Dr. Davis measured K.B.’s blood pressure, heart rate, temperature, respiration rate, height, weight, and body mass index. He noticed that her blood pressure was 10 The Department’s expert witness, Dr. Jeffrey Danziger, testified that PTSD “involves the development of certain characteristic symptoms following exposure to one or more extreme traumatic events. And the traumatic event must involve exposure to actual or threatened death, serious injury, or sexual violence. The person must directly experience the trauma, witness it occurring to others or learn that it occurred to a close family member or close friend. Or the exception is people exposed to – with repeated exposure to trauma such as first responders or police officers.” 11 Dr. Davis testified that K.B. “indicated a lot of symptoms. She had extreme nightmares, anxiety, insomnia, and social isolation, some depression, although she made it very clear to me that she wasn’t suicidal. I remember making it clear. She – and I said, ‘social isolation,’ she said she was gaining weight, she said she was having a lot of – she said flashbacks and having a lot of recurring thoughts about death or death of her friend. I think she may have said some other things but those were sort of the salient points and certainly were enough to corroborate her past medical history and her current symptoms.” moderately high and checked her lower extremities for edema. While her blood pressure was not high enough to cause him to prescribe a hypertension drug, Dr. Davis did recommend that she see a primary care physician about her elevated blood pressure. Dr. Davis also checked K.B.’s bodily strength and conducted a gait analysis. K.B. described her demeanor during the appointment as “somewhat brief and evasive” and acknowledged that she was intentionally attempting to give Dr. Davis as few details as possible about her purported symptoms. For example, K.B. deflected Dr. Davis’s questions about the nature of the nightmares and/or flashbacks by saying they were too painful to discuss.12 K.B. acknowledged during her testimony that there was no difference between the symptoms she described to him and the symptoms documented in “K.G.’s” fabricated medical records. Also, K.B. did not recall giving Dr. Davis any information that would suggest “K.G.” did not have PTSD. Dr. Davis and K.B. did not go into great detail about any PTSD treatment that “K.G.” had received between 2008 and the time of the appointment with Dr. Davis, and K.B. did not recall any discussion about taking any medications that might interact negatively with medical marijuana. However, K.B. did tell Dr. Davis that Xanax and Zoloft had not been helpful and were discontinued. She also told Dr. Davis that “K.G.” had previously used medical marijuana and that the treatment had been effective.13 12 While Dr. Davis estimated that the appointment lasted 24 to 30 minutes, K.B. estimated that it lasted 15 minutes. Nevertheless, K.B. testified that she did not feel rushed during the appointment and did not feel that Dr. Davis should have afforded her more time. “I can say this: From the discussion that we had and from the exam that he gave and the discussion we had about the product and he asked me if I had any additional questions, so – and I believe I said I did not at that time, so I think we were done having that discussion.” Also, in response to a question asking if the appointment would have taken longer if she had not been intentionally evasive, K.B. testified that, “I’ll say that Dr. Davis was willing to answer any questions I had if I had chosen to be longer-winded. So I don’t feel like I was rushed and I don’t feel like I was kept in there longer than I needed to be. I’d say it was fair.” 13 With regard to K.B.’s description of “K.G.’s” medical marijuana use, Dr. Davis testified that, “For her symptoms, she had used it previously and it was very effective for her in The fabricated medical records and what was relayed to him during the appointment convinced Dr. Davis that medical marijuana was appropriate for “K.G.”14 At that point, Dr. Davis discussed the risks and benefits associated with medical marijuana, the different types of medical marijuana, and the different delivery methods. Dr. Davis mentioned that one type of medical marijuana would be better to use at nighttime and another would be better for daytime use if she lacked energy. He instructed her to begin with very small doses and gave her a preprinted log to keep track of the amount she was taking. K.B. acknowledged during her testimony that Dr. Davis told her that she did not have to acquire medical marijuana at Trulieve and that she could acquire the product wherever she chose.15 K.B. also acknowledged that Dr. Davis never referred to himself as Trulieve’s “in-house doctor,” and that he never indicated that he had any relieving her symptoms. She also related to me that she had tried not only the – I think she had indicated not only the other medications that were specifically listed on here, but had tried multiple medications and treatments and had not had a lot of success or had had side effects, but that she had used marijuana in the past with excellent results.” 14 Dr. Davis remarked that, “This was a pretty classic textbook case of post traumatic stress, as it was designed to be. She was a very good agent.” 15 Dr. Davis testified that patients frequently ask him to recommend a dispensary. However he does not do so because “that’s not my job. I have no interest in any dispensary. I actually have very good relationships with all the dispensaries, and my business is to educate people about – make sure that they’re qualified and then educate them about the safe use of marijuana and what products might be appropriate for them, et cetera, it’s not which dispensary. And it’s also a very individualized thing. You know, people like different dispensaries for different reasons, they have different products, and the system is actually designed specifically to encourage people to be allowed to go to different dispensaries, and that’s very different than narcotics where it’s very frowned upon. If you go to – if you get an Adderall prescription and then you go to another pharmacy, it’s very frowned upon, whereas this system is specifically set up to be transparent and allow people to go to any dispensary that they wish, and I encourage that.” relationship with Trulieve. Also, Dr. Davis corrected K.B. when she referred to Trulieve as “your dispensary.”16 Findings Regarding the Sufficiency of Dr. Davis’s Assessment of “K.G.” Dr. Davis’s medical records for “K.G.” list her problems as PTSD stemming “from traumas she witnessed in the military,” anxiety, flashbacks, and extreme nightmares. His medical records note that “K.G.” “[s]ays that the worst for her has been nightmares. She is looking for something that can help her. She has tried numerous medications in the past and they have not worked and she hates the side effects.” Dr. Davis also noted that “K.G.” “has tried [medical marijuana] in the past and it worked very well for her.” Dr. Jeffrey Danziger has been a Florida-licensed psychiatrist since November of 1986, and he has treated patients suffering from PTSD. Dr. Danziger based his testimony about the diagnosis of PTSD on the Diagnostic and Statistical Manual, Fifth Edition, the DSM-5. In addition to suffering a severe trauma, Dr. Danziger explained that someone suffering from PTSD must have “at least four categories of symptoms:” The first category is the presence of intrusion symptoms associated with the traumatic event, which can incur – involve recurrent and intrusive distressing memories, recurrent distressing dreams in which the content or nature of the dream are related to the trauma, dissociative reactions and/or if one is exposed to stimuli that symbolize or resemble the traumatic event they develop intense or prolonged psychological distress or marked physical reactions. The second broad category is persistent avoidance of stimuli associated with the trauma, which can be efforts to avoid distressing memories, thoughts or feelings, or avoidance or efforts to avoid external 16 When asked if she had any reason to believe that Trulieve and Dr. Davis were referring patients to one another, K.B. testified that, “I’m just basically saying that in my presence, no one did any direct referral from one – from the doctor to the business or from the business to the doctor. While the – while the employee of Trulieve did say that Dr. Davis was the in- house doctor, he did not state [that] I had to get product if I saw Dr. Davis at Trulieve.” reminders, people, places, conversations, objects or situations that remind them of the trauma. The third category is that of negative alternations in cognition and mood associated with the trauma, which begins or worsens after the trauma occurred. And there’s several – there’s seven factors, somebody must have two or more of them. Persistent or exaggerated negative beliefs about oneself or the world; trouble remembering a key event to the trauma; inappropriate guilt; distorted cognitions that lead them to inappropriately blame themselves or others; a persistently negative emotional state such as fear, horror, anger or guilt; markedly diminished interest in activities; feelings of detachment or estrangement from others; or, the inability to experience positive emotions. You need to have at least two of those seven. The fourth broad category is marked alternations in arousal and reactivity associated with the trauma. And people suffering from PTSD need to have two of the following six. Irritability and angry outbursts, reckless or self-destructive behavior, hypervigilance, an exaggerated startle response, problems with concentration or sleep disturbance. And a few other qualifiers are that this constellation of symptoms in response to a sufficiently severe qualifying trauma must last at least one month. That the syndrome causes significant distress or impairment in functioning, either social, occupational or other important areas. And the disturbance is not due to the effects of a drug or other medical condition. So these are the basis criteria for PTSD as defined in our Diagnostic and Statistical Manual, Fifth Edition. Based solely on a review of the medical records that Dr. Davis maintained for “K.G.”, Dr. Danziger offered the following critique: We know that, looking at the military records, that Criterion A [was] probably met. Criterion A means exposure to actual or threatened death or serious injury. So, if those records from 2007, what they reflected, that would be a sufficient stressor. Now what the patient talked about was, there’s references on the problem list to anxiety, flashbacks and nightmares. Now flashbacks and nightmares are intrusion symptoms, which are B. But there [were] no questions asked as to how often, how frequent, how distressing, tell me about the flashbacks which involve a literal – involve a sense that the incident is literally recurring. So, but Criterion A was probably in the old notes and if she did talk about extreme nightmares and was reluctant to discuss them, all right. I’d give him Criterion B. But what we’re not seeing is, was there any investigation as to avoidance of stimuli, negative alternations in cognition and mood or marked alternations in arousal and activity. So there’s some information as to a qualifying stressor contained in the old records and some information, albeit brief, about nightmares. But other important facets of PTSD were not addressed. Further, there’s a reference there to she’s been tried on numerous medications. Well, what medications? It’d be reasonable to ask what medications were you tried on that failed. And then secondly, in treating PTSD, there are various specific psychotherapies [that are] very useful in the treatment of PTSD. And that would include cognitive processing therapy, cognitive exposure therapy and EMDR, the eye movement resonance treatment. So there was, in other words, there was no inquiry into what medicines have you been on that failed and then have you had any counseling or psychotherapy. Because PTSD spontaneously resolves for up to half of those suffering from it, Dr. Danziger was adamant that Dr. Davis could not base his diagnosis solely on “K.G.’s” old medical records: The records from a decade earlier reflect Criterion A, which refers to a sufficient stressor. That’s there. And Criterion B. She says she’s having nightmares, she didn’t want to talk about it further. Okay. I’ll give him Criterion B. I’ll give Dr. Davis that and if someone didn’t want to talk about it, you don’t want to force it. But there’s no reference to C, D, and E, which is the avoidance behavior, negative alterations and marked alterations in arousal and reactivity. And no documentation as to, well, what treatments were tried, what medicines were you on, did they do individual therapy, group therapy, how did you respond. That’s what’s missing. So what’s missing in terms of PTSD assessment is the full dimension of PTSD, is it still present and what treatment did you or did you not receive before making his decision on how to treat. Despite the supposed shortcomings in Dr. Davis’s diagnosis of “K.G.”, Dr. Danziger declined to say that Dr. Davis’s diagnosis was erroneous: I would answer that by saying she had possible PTSD, but the examination was not complete enough to definitively make the diagnosis and proceed with treatment. So, possible PTSD, but insufficient data to verify that was the right diagnosis. Dr. Danziger also qualified his testimony by stating he was not comfortable opining about the standard of care in different specialties and, as a psychiatrist, he is not a qualified physician under section 381.986: Q: Is there any difference in what you would anticipate for an initial patient visit or an encounter to make a determination of posttraumatic stress between a psychiatrist and a non-psychiatrist? A: There likely would be. My colleagues in primary care treat hypertension, diabetes, asthma, arthritis, heart failure, a host of medical conditions that I don’t treat. Some may – some of my colleagues in primary care and internal medicine are very comfortable treating psychiatric conditions and only referring those who are the most severe or refractory to treatment, and others refer just about everything. So it depends on the practitioner. I want to be careful opining what’s an appropriate standard on a different specialty than mine. Dr. Davis had “K.G.’s” fabricated medical records at his disposal, and those records indicated that she had been diagnosed and treated for PTSD. In addition, Dr. Davis’s own exam indicated that “K.G.” had several symptoms indicating she was still suffering from PTSD. Section 381.986(4)(a) requires a qualified physician to conduct “a full assessment of the medical history of the patient,” and Dr. Davis did not gather a significant amount of information about “K.G.’s” struggles with PTSD during the years between the last fictitious appointment in 2008 and her appointment with Dr. Davis in 2017. However, the Department has not adopted a rule elaborating on what a qualified physician must do in order to conduct a “full assessment.” Also, the Department has not adopted a rule requiring qualifying physicians to follow the DSM-5. The evidence does not clearly and convincingly demonstrate that Dr. Davis violated section 381.986(4)(a) by failing to conduct a full assessment of “K.G.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine issue a Final Order dismissing the Administrative Complaint against Justin C.K. Davis, M.D. DONE AND ENTERED this 14th day of April, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 14th day of April, 2020. COPIES FURNISHED: Kristen M. Summers, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Mark S. Thomas, Esquire Thomas Health Law Group, P.A. 5200 Southwest 91st Terrace, Suite 101-B Gainesville, Florida 32608 (eServed) Major Ryan Thompson, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Claudia Kemp, J.D., Executive Director Board of Medicine Department of Health Board of Medicine 4052 Bald Cypress Way, Bin C03 Tallahassee, Florida 32399 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed)
Findings Of Fact Diane Potts Kyle is a registered nurse, licensed to practice in the state and is the holder of license number 62079-2. On November 5, 1975, following a formal hearing held pursuant to Florida Statutes, Section 120.57(1), Respondent's license to practice nursing as a registered nurse in the State of Florida was suspended for a period of two years, based upon a finding that the Respondent had engaged in unprofessional conduct due to her failure to properly chart or account for controlled narcotics signed out by her for patients in her care. Thereafter, on April 22, 1978, while working as a staff relief nurse at Coral Gables Hospital, Coral Gables, Florida, the Respondent, on several occasions, converted to her own use a controlled drug, to wit: Demerol, by signing out for said narcotic which was intended for patients in her care and failed to administer said drugs to the patients. She thereafter failed to account for said drug withdrawals on the patients' medical charts. On or about May 1, 1978, Respondent voluntarily executed a notarized statement admitting to converting to her own use Demerol ordered for patients in her care by signing out for said drug but not administering same to the patient and not charting it on the patient's medical chart. Thereafter, Respondent subsequently voluntarily surrendered her license to the Petitioner. (See Board's Exhibits A, B, and C.) As stated, there is little dispute respecting the facts in this case, however, the Petitioner appeared on her own behalf and offered testimony in mitigation of the allegations of the complaint which were stipulated to by her. (Board Exhibit A.) Some time during May, 1978, the Respondent enrolled in the Spectrum Drug Abuse Program and has been under the care and guidance of drug counsellor Robert Healy. The Respondent attends weekly sessions and the course uses as a primary approach of therapy, Transactional Analysis. Counsellor Healy, who holds a Master's degree in Psychology and is a drug counsellor at the Spectrum program, appeared and testified that he has been working with the Respondent for approximately six months. He testified that Respondent has undergone serious changes on her own and that he determined that the Respondent's problems stem from stress situations in which she was involved both at work and at home. According to Healy's prognosis, the Respondent will successfully graduate from the Spectrum program within the next six months. Healy opined that the Respondent's life style is one in which she feels that all around her must be "all-perfect" and that based on such a life-style, she is constantly in a state of stress. He testified that since her enrollment in the Spectrum program, she has isolated this problem and is now able to return to work with little danger of abusing drugs. Healy testified that the likelihood of the Respondent receeding to a drug abuser is minimal inasmuch as she is a very confident person and she has a family, her husband and children. The undersigned has considered all of the mitigating factors offered on behalf of the Respondent in this case. However, as noted in the prior case, 1/ a failure to enter medication on a patient's medical chart is a very serious omission on the part of a registered nurse, since it could lead to either the administering of double dosages of medicine or a failure to properly administer medication to nurses as the case may be, which could result in fatal accidents. Such a practice amounts to unprofessional conduct within the meaning of Chapter 464.21, as alleged, and it is so found.
Recommendation Based on the foregoing findings and conclusions, it is hereby recommended that the Respondent be placed on probation for a period of two (2) years. While the period of probation is in effect, it is further recommended that the Respondent be placed in roles of employment wherein her contact with narcotics and other controlled substances is minimal. Additionally, it is recommended that the Respondent be required to submit to periodic medical examinations as requested by the Board to verify the fact that the Respondent is not abusing drugs. ENTERED this 2nd day of November, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did sell marijuana (cannibas) to an employee, agent or servant of the Clearwater Police Department, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about May 17, 1979, Marvin Jones, licensed under the beverage laws, did possess marijuana (cannibas) in excess of five (5) grams with the intent to sell same, in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess over five (5) grams of marijuana (cannibas), in violation of the Florida Comprehensive Drug Abuse Prevention and Control Act, to-wit: Subsection 893.13(2), Florida Statutes, and Section 561.29, Florida Statutes. Whether or not on or about June 6, 1979, Marvin Jones, licensed under the beverage laws, did unlawfully possess gambling paraphenalia, in violation of the gambling laws, to-wit: Subsections 849.09(1)(k) and (2), Florida Statutes, and Section 561.29, Florida Statutes.
Findings Of Fact Marvin and Flossie Jones, husband and wife, are the holders of license No. 62-383, Series 2-COP, as held with the Petitioner, State of Florida, Division of Alcoholic Beverages and Tobacco. This license entitles the Joneses to sell beer and wine for consumption on or off their licensed premises which is located at 1104 North Greenwood Avenue, Clearwater, Florida, where the Respondents trade as Marvin's Beer and Nine. The Respondents are here charged by the Petitioner through a Notice to Show Cause/Administrative Complaint with' violations whose particulars are set forth in the issues statement of this Recommended Order. In consideration of this dispute, a formal hearing was held on February 27, 1980. The facts reveal that on May 17, 1979, one Henry Irving entered the licensed premises and purchased 5.2 grams of marijuana (cannibas) by weight, from the Respondent, Marvin Jones. At that time Irving was acting as an operative for the Clearwater Police Department, Clearwater, Florida, and while in the licensed premises, Irving paid Marvin Jones $20.00 for this purchase of marijuana (cannibas). The money that was paid was money provided by the Clearwater Police Department. On June 6, 1979, acting under the authority of an arrest warrant, officers of the Clearwater Police Department arrested the Respondent, Marvin Jones, based on the sale of marijuana (cannibas) which he had made to Henry Irving. In making a search of Marvin Jones incidental to the arrest, two manila envelopes were found in Marvin Jones's sock and these envelopes contained marijuana (cannibas), the weight of that marijuana (cannibas) in the aggregate was 4.2 grams. The Respondent Jones was given his statement of rights in accordance with Miranda and after receiving those warnings, Jones stated that it was his practice to buy marijuana (cannibas) in amounts of a pound or two pounds and he in turn sold it in small amounts to adults. He further stated that he had purchased marijuana (cannibas) on mere than one occasion. In searching Marvin Jones, the officers also discovered $400.00 in cash and a number of slips of paper with numbers on them. Those slips of paper were explained by Jones to be numbers or combinations of numbers for dogs running at pari-mutuel races in Sarasota, Florida, and they were numbers which persons wished to have bet for them. Of the $400.00 found on the Respondent, Jones indicated that $50.00 of that money was for placing bets at the race track in particular for daily doubles races in the pari-mutuel events. He further stated that he would place the bets himself or have someone place them for him.
Recommendation Upon the consideration of the facts herein and these matters in aggravation and mitigation, it is RECOMMENDED that the license No. 62-383, Series 2-COP, held by the Respondents, Marvin and Flossie Jones, be REVOKED. DONE AND ENTERED this 26th day of March, 1980, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Daniel C. Brown, Esquire Deputy General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Douglas Prior, Esquire CAMPBELL AND PRIOR, P.A. 205 South Garden Avenue Clearwater, Florida 33516
Findings Of Fact Respondent, Jay S. Reese, is a physician in family practice in Temple Terrace, Florida. He holds license number ME 0014119 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. Reese graduated from the Indiana University of Medicine in 1961. He became licensed in the State of Florida in March 1969 and has practiced in the Tampa area since 1972. He is on the active medical staff of the University Community Hospital in Tampa and enjoys an excellent professional reputation with his peers. He has been considered by some to be an "outstanding physician" in his field. Indeed, one of those physicians who testified against Reese in this proceeding characterized him as being a "very capable physician." Respondent has had a long and sincere interest in drug abuse problems since the late 1960s when he served in the U.S. Navy. Thereafter, he became affiliated with a drug clinic in Winter Haven, Florida, which provided assistance to drug abusers. When he moved to Tampa in 1972 he continued his efforts to fight drug abuse by serving on the Department of Health and Rehabilitative Services Advisory Council for Drug Abuse, and on the board of the Drug Abuse Comprehensive Coordinating Office (DACCO) for Tampa and Hillsborough County. He was also on the steering committee which founded the Hillsborough County Alcohol Community Treatment Services in 1979. He is in frequent contact with various law enforcement authorities and judges in Hillsborough County in association with this work. Because of his involvement with drug and alcohol abuse clinics, Reese has often taken care of patients who have had alcohol or drug addiction or habituation problems. This group of patients is considered to be the most difficult to treat. It is not uncommon for such patients to claim they lost their prescriptions, alter prescriptions, steal blank pads from a physician's office, buy and sell drugs on the streets, or to be seeing more than one physician at the same time. In view of this, few physicians are willing to assume the inherent difficulties associated with a former addict or alcoholic. Nonetheless, Reese has opened his doors to the former drug addicts and alcoholics who are in need of medical treatment because of his concern and interest in this field. In light of his longtime volunteer work in the drug abuse area, it came as a surprise to Reese when petitioner filed a lengthy administrative complaint charging him with prescribing excessive and inappropriate amounts of controlled substances to numerous patients for non-medically justified purposes and not in the course of his professional practice. 1/ This prompted the instant proceeding. As narrowed during the course of the hearing and by subsequent pleadings of petitioner, the charges involve thirteen patients treated by Reese at varying times between 1979 and 1982. Most, if not all, had a history of prior alcohol or drug addiction or habituation problems. Nonetheless, they had legitimate medical problems requiring the attention and care of a competent physician. The quantities and duration of controlled substances given to the thirteen patients are set forth in petitioner's exhibits 2-8 and 10-15 received in evidence. Nine patients received controlled substances (dilaudid, percodan, demerol, mequin and percocet) for the treatment and management of pain, three were given quaalude exclusively, and a fourth received both quaalude and sapor. The latter four patients suffered from legitimate sleeping problems which necessitated the prescriptions in question. In treating these patients, Reese acted prudently and honestly, and used his best medical judgment to select the type and amount of drug prescribed. All were given thorough physical examinations and necessary periodic follow-up checks. Those patients for whom Dr. Reese prescribed painkilling controlled substances had various ailments which inflicted pain on the patient in varying degrees of severity and duration. All medical problems were legitimate in nature, and the testimony did not establish otherwise. Dr. Reese's treatment was in accord with mainstream medical opinion that the utilization of controlled substances in the management of patient pain is appropriate. The prescription of controlled substances for various types of pain will depend on the severity of the pain and the response of the individual, among other factors. Authoritative medical literature declares that pain should be treated and should be treated early. In the absence of an alternative therapy, narcotic drugs should not necessarily be withheld from the patient. Each patient must be individually evaluated and continually evaluated during the doctor-patient relationship. The results of such treatment should be continually monitored. Because pain can be psychologically and physically debilitating, it should be brought under control as quickly as possible. To do so requires a subjective evaluation by the physician of the patient since there is no prescribed or defined procession through which a physician goes in determining the strength of pain medication. Generally, a doctor will prescribe smaller amounts of medication when first treating a patient, and once he gets to know the patient and his condition, a physician will schedule longer intervals between visits and larger quantities of drugs with more frequent refills. This is true since once a situation is under control, there is no reason to have the patient come to the office on a frequent, recurring basis. In treating pain, a drug of greater potency and potential for abuse should not be ignored in favor of a less potent drug, simply by virtue of the former drug's potential for abuse. In this regard, a physician achieves a better pain control with Schedule II medications than with Schedule III medications. The bottom line is the treating physician's medical judgment, that is, his judgment as to how severe the pain might be as he interprets it and what medication can achieve the best results. Pain control is the most difficult area to quantitate by virtue of the manner in which patients react to pain under medication. The prescription of drugs by a competent physician for the management of pain is a legitimate medical objective. The use of quaaludes for sleeping disorders was shown to be medically justified. Although some physicians do not ascribe to its use, it is nonetheless an appropriate drug for certain diagnoses, and was not shown to be inappropriate for patient numbers 5, 7, 13 and 14 as to either quantity or duration. Petitioner presented the testimony of two physicians who were accepted as experts for this proceeding. Their evaluation of the treatment given by Dr. Reese was based only upon a review of the patient records. They did not interview the patients, or meet with Dr. Reese to discuss his prescribing regimen. They had never actually seen or treated the patients. They generally concluded that Reese had not acted as a reasonably prudent physician or in accord with the level of care, skill and treatment which is recognized by a reasonably prudent physician in the Hillsborough County area. In short, they supported the relevant allegations in the administrative complaint. In contrast, experts presented by respondent painted a completely different picture and found no violations of applicable statutes, rules or standards of conduct. Indeed, they praised respondent for his willingness to treat this most difficult type of patient, and his dedication to the medical profession. It is noteworthy that the experts on both sides had minimal experience in treating patients who abuse alcohol and drugs, and in any event far less than the experience of Reese. It is a well-accepted fact in the medical community that as between two equally competent physicians, one of whom treats the patient and one of whom looks at records after the fact, the former physician will have substantially greater knowledge and "feel" of the treatment result than one merely looking at records. Given this fact, and the more persuasive testimony of respondent's experts, it is found that no deviation from the level of care, skill and treatment of the patients in question has occurred. It is further found that the drugs were in appropriate quantities and duration, were for medically justifiable purposes, and were not prescribed outside the course of Reese's medical profession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Dr. Jay S. Reese be DISMISSED with prejudice. DONE and ENTERED this 10th day of February 1984, in Tallahassee, Florida. DONALD R. ALEXANDER 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 10th day of February 1984.
