The Issue The question presented in this case, is whether or not the Respondent, James R. Gibbons, has violated the conditions of Section 465.22(1)(c), Florida Statutes, by failing to maintain on a current basis a complete and accurate record of each controlled substance controlled by Chapter 893, Florida Statutes; in particular controlled by Section 893.07, Florida Statutes. This violation is alleged to have occurred at Washington Park Pharmacy, Inc., 750 Northwest 22 Road, Ft. Lauderdale, Florida. The alleged violation was noted by V. K. Bell, agent, Florida Board of Pharmacy, based upon a drug accountability audit which covered the period from September 1, 1976 to October 3, 1977.
Findings Of Fact This cause comes on for consideration based upon the complaint and notice to show cause brought by the Petitioner, Florida Board of Pharmacy, in an action against James R. Gibbons, who is licensed to practice pharmacy by the Petitioner and who is the owner/operator of Washington Park Pharmacy, Inc., located at 750 Northwest 22 Road, Ft. Lauderdale, Florida. The action charges that James R. Gibbons, while licensed to practice pharmacy in the State of Florida, violated the provisions of Section 465.22(1)(c), Florida Statutes. This claim of violation is premised upon the alleged failure of the Respondent, James R. Gibbons, to comply with the conditions of Section 893.07, Florida Statutes, in that the Respondent permitted the improper keeping of records, by failing to maintain on a current basis a complete and accurate record of each controlled substance controlled by Chapter 893, Florida Statutes. This failure of control was alleged to have occurred at the Washington Park Pharmacy, Inc., at 750 Northwest 22 Road, Ft. Lauderdale, Florida. The prosecution is grounded on the investigation performed by V. K. Bell, agent, of the Petitioner and specifically arises from a drug accountability audit which covered the period from September 1, 1976 to October 3, 1977. As a part of his duties, agent V. K. Bell, an employee with the Florida Board of Pharmacy, conducted an audit of the Washington Park Pharmacy, Inc., located at 750 Northwest 22 Road, Ft. Lauderdale, Florida. The period of the audit covered September 1, 1976 through October 3, 1977. An element of the audit concerned the class II drugs, Dilaudid, 4mg. tablets and Quaalude, 300 mg. tablets. A synopsis or summary of the audit process pertaining to the two drugs by weight, may be found as Petitioner's Exhibit #1, admitted into evidence. In that audit report, agent Bell has broken down the amounts of the questioned drugs into categories. These categories begin with a zero initial inventory on September 1, 1976 and report the total number of tablets purchased; the amount of ending inventory; the amount of sales by prescription, both legitimate and possible forgeries; the amount of losses by theft; and the amount short, for which there is allegedly no explanation. By the figures reported by agent Bell; 59,100 Dilaudid 4mg. tablets were purchased in the audit period; 200 tablets remained as ending inventory; 49,869 tablets were reported as sales or loss by theft; and 9,031 tablets were reported short. Looking at the report rendered by agent Bell on the substance Quaalude, 300 mg. tablets, it shows a total purchase within the inventory period of 32,200; an ending inventory of 50; sales of 25,421 by prescription; and 6,729 tablets short. The Respondent has taken issue with the statistical data offered by the Petitioner. In its argument against the case of the Petitioner, the Respondent has offered Respondent's Exhibits 5 & 6, admitted into evidence. These exhibits are respectively a compilation of the sales made to the Respondent by the Gulf Drug Company and Crandon Drugs, Inc. The tapes which are attached to those exhibits act as a take-off in adding the amounts of the two questioned substances, and show that 54,200 Dilaudid 4mg. tablets were purchased during the audit period and 29,700 Quaalude 300mg. tablets were purchased during the audit period, according to the computations of the Respondent, James R. Gibbons. Gibbons also takes issue with the allegation found in the audit summary, to the effect that certain prescriptions were forged by the doctors listed. The depositions of Drs. Collier, Cohen, Morris, and Walker were taken prior to the hearing. Those depositions have been admitted into the record in lieu of testimony at the hearing. The deposition of David Collier, D.O., shows that during the audit period, he wasn't treating the patients who needed the two drugs Dilaudid and Quaalude. He did indicate that at one time he had left prescription pads in the treatment rooms where someone may have picked those prescription pads up. However, he denies signing any prescriptions which were shown to him and alleged to have been under his signature. He thereby states that those prescriptions are forgeries. He also denied that any prescription forms with the name Washington Park Pharmacy had been provided to him. Dr. Collier's partner for a time, was Bernard Cohen, D.O. Dr. Cohen states that he wrote prescriptions for Quaalude and Dilaudid in November, 1975, but not on pads from Washington Park Pharmacy. He also admitted that employees within his office other than he and Dr. Collier had access to the prescription pads. He recalls that during the audit period one patient was on Dilaudid and one patient was receiving Quaalude. The writing exemplars that were shown to him which are prescriptions allegedly written by him were felt to be forgeries, with the exception of his patients which he identified as his. From his recollection the Washington Park Pharmacy never called about any alleged forgeries that may have been received bearing his name. The deposition of William A. Morris, III, M.D. establishes that he has prescribed Dilaudid and Quaalude, but not in the amounts attributed to him in the audit. He also stated that in February, 1976, there was a "break-in" and certain prescription pads were missing. The signature on the exemplars shown to him were felt to be similar to his signature; however, he did not recognize any of the names to be his patients and therefore felt that the substance of the prescription was a forgery. The deposition of Dr. Thomas J. Walker, M.D., establishes that he was not prescribing the drugs Dilaudid and Quaalude at the time of the audit. After looking at the exemplars of the prescriptions presented him he stated that those prescriptions had not been written by him. In his estimation, the prescription pads in his office were secure during the audit period and no "break-ins" or thefts had occurred. The explanation which the Respondent gave on the question of any possible forgeries was to the effect that he has a duty to fill the prescriptions which are tendered to him by a treating physician, and further that his practice is to notify the alleged treating physician when there is some question about the authenticity of the prescription given to him by a customer. The Respondent's explanation for any shortage of prescriptions during the audit period was to the effect that either the agent for the Petitioner or the representatives of the United States Drug Enforcement Authority had lost some of the records in transporting his books and records to their office for examination, or in the alternative those records still remained in his pharmacy and were undiscovered by the Petitioner's representative and representatives of the Drug Enforcement Authority. The positions of the parties should be examined in view of the requirements of the law under which the charge is brought. Section 465.22(1)(c), Florida Statutes, reads as follows: 465.22 Authority to revoke or suspend pharmacy permits.- (1) The Board of Pharmacy may revoke or suspend the permit of any pharmacy after giving reasonable notice and an opportunity to be heard to any permittee who shall have: * * * (c) Violated any of the requirements of this chap- ter or any of the rules and regulations of the Board of Pharmacy, of chapter 500, known as the Florida Food, Drug and Cosmetic Law, of Chapter 893, or who has been convicted of a felony or any other crime involving moral turpitude in any of the courts of this state, of any other state, or of the United States. By this charging document, the Petitioner is claiming that the Respondents have violated Section 893.07, Florida Statutes. A portion of that section is Section 893.07(3), Florida Statutes, which calls for the record of all controlled substances sold, administered, dispensed, or otherwise disposed of to be kept; to the extent of among other things, showing the kind and quantity of controlled substances sold, administered, or dispensed. Section 893.07 (4), Florida Statutes, also states that these records shall be kept and made available for a period of at least two years for inspection and copying by law enforcement officials. Section 893.07(5), Florida Statutes, calls for the maintenance of records of any substances lost, destroyed or stolen, as to the kind and quantity of such controlled substances and the date of discovery of the loss, destruction or theft. In reviewing the facts offered into evidence at the hearing, in the context of the position taken by the Petitioner at that hearing, it appears that the Petitioner is most concerned with the shortages, as opposed to the questioned prescriptions which they feel might be forgeries. Moreover, the facts establish that there was a "break-in" on August 30, 1977, in which the Respondent, James R. Gibbons' inventory showed that 128 Dilaudid 4mg. tablets were stolen or missing, for which the Petitioner gives credit in the audit process. Therefore, the analysis to be given this case will center on the "so- called" shortages of the two substances. The undersigned has reviewed the Exhibits 5 & 6 by the Respondent and finds the computations of the Respondent to be incorrect. An examination of those exhibits shows that 55,400 Dilaudid 4mg. tablets were purchased in the audit period and 30,200 Quaalude 300mg. tablets were purchased in the audit period. Using those figures, and subtracting the amount of tablets dispensed by prescriptions or lost through theft, to include questioned prescriptions, it shows 5,531 Dilaudid 4mg. tablets are short and 4,779 Quaalude 300mg. tablets are short. These shortages are shortages in which no meaningful explanation has been offered. The substances Dilaudid and Quaalude are class II drugs, for which records must be kept in a manner described above, in keeping with Section 893.07, Florida Statutes. The Respondent, James R. Gibbons, has failed to maintain the records in accordance with Section 893.07, Florida Statutes, and has thereby violated Section 465.22(1)(c), Florida Statutes.
Recommendation It is recommended that the permit to operate a pharmacy given to James R. Gibbons, owner/operator of Washington Park Pharmacy, Inc., be revoked. DONE AND ENTERED this 5th day of April, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Robert A. Pierce, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 W. George Allen, Esquire 116 Southeast Sixth Court Post Office Box 14738 Ft. Lauderdale, Florida 33302
Findings Of Fact At all pertinent times, respondent Margie V. Gray Denomme worked the 3- to-11 shift as a licensed practical nurse on the orthopedic floor, 3 North, of West Florida Hospital, in Pensacola. On or about September 9, 1980, respondent was counseled for failing to record the administration of Stadol and Demerol, controlled substances, "on MAR." Petitioner's Exhibit No. 2. CHART NO. 670613 On December 19, 1980, Dr. Hooper ordered, inter alia, 10 to 12 milligrams of morphine sulfate for a patient (Chart No. 670613) "q 3-4 hrs prn pain." Petitioner's Exhibit No. 1. According to a Narcotics and Controlled Drug Administration Record, Petitioner's Exhibit No. 2, respondent administered 10 milligrams of a 15-milligram tubex of morphine (sulfate) to the patient at five o'clock on the afternoon of December 26, 1980, and wasted the other five milligrams, the wastage being witnessed by another licensed practical nurse, Ms. Grant. The December 26, 1980, patient progress notes for the patient, Petitioner's Exhibit No. 1, contain an entry reflecting administration of medication at five o'clock in the afternoon: [complaining] o[f] pain, medicated [with] M[orphine] S[ulfate] 10 mg IM . . . as stated by M. Denomme LPN." The entry is signed, "G. Grant LPN." The PRN medication administration record for this patient was signed by "G. Grant LPN" for the 3-to-11 shift on December 26, 1980. Petitioner's Exhibit No. 1. CHART NO. 667312 On December 17, 1980, Dr. Batson ordered morphine sulfate for this patient "1/4 to 1/6 IM q 34 PRN Pain." Petitioner's Exhibit No. 1. At quarter of seven on the evening of December 17, 1980, respondent administered 15 milligrams of morphine sulfate to the patient, using one 10-milligram tubex and half of another, the wastage being witnessed by another licensed practical nurse, Ms. Grant, all according to the Narcotics and Controlled Drug Administration Record. Petitioner's Exhibit No. 2. "v. Robertson, GPN" signed the patient's PRN medication administration record for the 3-to-11 shift on December 17, 1980. Petitioner's Exhibit No. 1. The nurses' notes contain this entry for 6:45 (pm.): "c/o pain-Medicated E MS 15 mg IM as stated by V. Robertson GPN-G. Grant GPN." CHART NO. 67194-3 For this patient, Dr. Batson ordered, among other things, "Morphine gr 1/6-gr 1/4 IM q 3-4 h prn pain. or Demerol 50-75-100 mg q 3-4 h IM prn pain. Tylenol #3 po T-TT q 3-4 h prn pain" on December 17, 1980, the date of his admission to West Florida Hospital's orthopedic ward. At half past six on the evening of December 17, 1980, the patient was given two tablets of Tylenol #3. Petitioner's Exhibit No. 1. He got another two tablets of Tylenol #3 about noon the following day. Petitioner's Exhibit No. 1. On December 19, 1980, Randy Godwin, a licensed practical nurse at West Florida Hospital, signed a Narcotics and Controlled Drug Administration Record indicating he had administered 15 milligrams of morphine to the patient at 6:20 p.m. Petitioner's Exhibit No. 2. Attached to this Narcotics and Controlled Drug Administration Record is an interoffice memorandum to the hospital pharmacy from Cynthia Ayres, R.N., Assistant Director of Nursing. Ms. Ayres wrote, "I have met with Randy Godwin, LPN and discussed his specific narcotic errors. He was terminated from employment at WFH. I did not allow him to correct these errors." Petitioner's Exhibit No. 2. There is no indication on this patient's PRN medication administration record that he was given any morphine on December 19, 1980. Petitioner's Exhibit No. 1. No administration of morphine on December 19, 1980, was charted in the patient's progress notes. Petitioner's Exhibit No. 1. Respondent administered 75 milligrams of Demerol, the entire contents of a tubex, to this patient at half past seven on the evening of December 19, 1980, according to a Narcotics and Controlled Drug Administration Record. Petitioner's Exhibit No. 2. (Count II) At nine o'clock that night, the patient was watching television, and had no complaint of pain. JANUARY 24, 1981 As she administered narcotics to patients during the 3-to-11 shift on January 24, 1981, respondent dropped waste paper and other debris in the narcotics drawer of the medication cart she had charge of. Toward the end of the shift, she was in the process of cleaning out the narcotics drawer when she felt something wet. Exclaiming something like, "Oh God, look at this," (T. 156; Testimony of Peat), she retrieved a cardboard container soaked to the point of disintegration with a solution of morphine sulfate, in the presence of Sandra Jean Peat, Randy Godwin, and other nurses who were in the medical room on the orthopedic floor at the time. Respondent recorded these events in an incident report and took the five-tubex plastic sleeve to the hospital pharmacy, about quarter of eleven. She asked the hospital pharmacist, James Thomas Allred, "to swap them out for five good ones." (T. 88.) At Mr. Allred's request, respondent prepared a second incident report in which she stated: When I was cleaning the Narcotics drawer, I picked up some of the packages and felt moisture on my hands. I then took the cartridges out of the PCK & found solution in bottom of Plastic Jacket. Two cartridges had the stopper out & 1 cartridge was broken. The tabs were intact as wit- nessed by R. Godwin LPN. Petitioner's Exhibit No. 3. After the wet plastic sleeve had been exchanged for a new one, respondent returned to the floor to catch up on charting. By this time, Randy Godwin had left the hospital. Mr. Allred jotted down his own contemporaneous account on the Narcotics and Controlled Drug Administration Record: Replaced a packet of five morphine sulfate 15 mgs. for a packet of five returned by M. Denomme LPN. The packet returned had two syringes with their rubber plungers out. One of these two syringes was broken. All tabs were intact except for the broken syringe. The cart count will remain the same. Petitioner's Exhibit No. 2. When respondent noticed broken glass in the five-tubex plastic sleeve, after another nurse had seen the sleeve with all tabs intact but before respondent took it to the pharmacy, she opened a tab to fish out syringe shards. The evidence clearly and convincingly established that somebody tampered with more than one of the disposable syringes or tubexes inside the plastic sleeve. Although factory defects . . . do occur, this was not a case of defective manufacture; a needle had punctured the sleeve. As the medication nurse for the 3-to-11 shift, respondent had signed for the narcotics and controlled drugs in the medication cart and taken the keys at three o'clock on the afternoon of January 24, 1981. Petitioner's Exhibit No. When she counted narcotics, before assuming responsibility for them, respondent did not pick up each item. Looking down into the narcotics drawer, she would not necessarily have known whether the bottom of the cardboard container holding two plastic sleeves, each of which contained five 15-milligram tubexes of morphine sulfate, was wet. Respondent was the third person to sign the Narcotics and Controlled Drug Administration Record as "oncoming nurse." Petitioner's Exhibit No. 2. She had the keys to the medication cart during the entire 3-to-11 shift except when she went to supper or took a break. No patient on the orthopedic floor received any morphine sulfate during the whole 24-hour-period. CHART NO. 682231 Also on January 24, 1981, respondent administered two tablets of Tylenol #3 to this patient at 5:30 and another two tablets of Tylenol #3 at 9:35, according to a Narcotics and Controlled Drug Administration Record. Petitioner's Exhibit No. 2. This "patient had been medicated with Tylenol #3 since January 20th, and this medication had held her . . . for a period of at least four hours." (T. 55.) Respondent signed out for 75 milligrams of Demerol for this patient but wasted it, in the presence of Randy Godwin. Randy Godwin did not sign the Narcotics and Controlled Drug Administration Record as a witness, however. OTHER MATTERS There was absolutely no evidence that respondent acted strangely or as if under the influence of a controlled substance at any time between September, 1980, and February, 1981. No evidence was adduced regarding anything that happened on or about February 8, 1981. On or about January 30, 1981, Altha Steen Chandler, then a ward clerk on the 3-to-11 shift for the orthopedic floor, told Gail Price that, two weeks earlier, while cleaning in the conference room, she had knocked respondent's purse off a table; that the purse opened when it fell; and that she saw containers of codeine, Demerol, and Benadryl. On hearing this, Ms. Price promptly relayed it to Bonnie Ellen Ripstein, then departmental nursing supervisor over surgical floors. The truth of this allegation, repeated under oath at the hearing (T. 5), was not clearly and convincingly established, considering all the evidence. There was no proof that any codeine was ever missing or unaccounted for at West Florida Hospital at any time between September of 1980 and February of 1981. The only record keeping irregularity with which respondent has been charged regarding Demerol has to do with records kept on January 24, 1981, after the ward clerk claims to have seen a vial of Demerol in her purse. The substances themselves were not in evidence. Ms. Chandler's testimony about their packaging was contradictory: "The demerol and the codeine was in a plastic like container and had red writing on it. The benadryl was in a brown container, and it had yellow writing on it . . . . The benadryl was a glass vial, but the other two vials, seemed like they were plastic to me." (T. 16.) Respondent admits that she regularly carries a vial of Benadryl in her purse; she testified that she is allergic to bee stings. She denied that there was codeine or Demerol in her purse on or about January 16, 1981, and claimed to be allergic both to codeine and to Demerol. At some point,, Ms. Ripstein was given the assignment of auditing narcotics records with which respondent, Randy Godwin, Nancy Torch, and Debra Mann, now Rezzarday, had been involved. None of the four is now employed at West Florida Hospital. This audit turned up most of the charges made against respondent in these proceedings. STANDARDS AND CONDITIONS The nurses at West Florida Hospital were strongly encouraged to finish their duties before shift's end to avoid their employer's having to pay overtime wages. Once, when respondent stayed late to finish her charting, she was reprimanded even though she had clocked out. On the orthopedic floor, a nurse who was "caught up" with her work would chart for other nurses who were busy, indicating on the records that she was relying on oral representations of another nurse. This practice was against hospital policy and does not conform to minimal standards of acceptable and prevailing nursing practice. It is also a departure from minimal standards to waste a controlled substance like Demerol without a witness's signing the control sheet at the time the drug is wasted. It was not shown that any patient suffered any injury at respondent's hands or on her account. The written closing argument of respondent and petitioner's proposed recommended order have been considered in preparation of the foregoing findings of fact. Petitioner's proposed findings of fact have been adopted in substance, except where unsupported by clear and convincing evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for thirty days. DONE AND ENTERED this 28th day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 28th day of June, 1982. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire Samuel R. Shorstein, Secretary 119 North Monroe Street Department of Professional Tallahassee, Florida 32301 Regulation 130 North Monroe Street Allen W. Lindsay, Jr., Esquire Tallahassee, Florida 32301 Post Office Box 586 Milton, Florida 32570 Helen P. Keefe Executive Director Board of Nursing 111 East Coastline Drive Jacksonville, Florida 32202
The Issue Whether the permit held by the Respondents to operate a pharmacy in the State of Florida should be revoked.
Findings Of Fact A Complaint and Notice to Show Cause was filed against the Respondents, Ponce de Leon, Inc., doing business as Capel Drugstore, and Milagros Ferreras, Evina Valera and Julio C. Pascual, on December 27, 1978, alleging that the Respondents failed to maintain on a current basis a complete and accurate record of controlled substances controlled by Chapter 893, Florida Statutes, and that Respondents while holding a permit to operate a pharmacy in the State of Florida permitted the unlawful practice of pharmacy at Ponce de Leon, Inc., doing business as Capel Drugstore, located at 6661 SW 8th Street, Miami, Florida, by permitting a person not licensed or registered as a pharmacist or pharmacy intern in this state, to wit Milagros Ferreras, to fill and dispense a controlled substance with prescriptions and without prescriptions to various people on various dates. A hearing was requested by the Respondents on January 5, 1979. Notice of Hearing was sent to the parties on February 5, 1979. The first witness called on behalf of the Petitioner was V. K. Bell, Agent for the Florida Board of Pharmacy and a licensed pharmacist. Agent Bell testified that while at a local wholesaler in the Miami area he noticed that Ponce de Leon, Inc., doing business as Capel Drugstore, had been buying a large volume of Quaalude tablets, which is a Schedule II controlled substance that has been the subject of high abuse in the Dade County area. Thereupon, he proceeded to Capel Drugstore in order to review their records. He said that he found the prescription records did not account for proper disposition through lawful dispensing of a large volume of the Quaalude tablets that were purchased and documented by the invoices. He testified that he talked with the pharmacist, Francisco DeQueuedo, and Respondent, Milagros Ferreras, one of the owners of Ponce de Leon, Inc., doing business as Capel Drugstore, and the President of the corporation. Mr. Bell advised Ms. Ferreras and Mr. DeQueuedo of their right to remain silent and not answer questions, that anything they said could be used against them, and that they had the right to have an attorney present if they desired. He then questioned the Respondent, Ms. Ferreras, and Mr. DeQueuedo. Ms. Ferreras stated that she had bought a bad business and found that she was having financial difficulties with the business, and she started to sell Quaalude tablets for 50 cents each to some 15 or 20 different people without prescriptions. Mr. Bell testified that Ms. Ferreras then stated that she had made sales of the controlled substance without prescriptions. Agent Bell testified that the pharmacist, Mr. DeQueuedo, admitted to him that he knew that Respondent Ferreras was making these sales, and that she would from time to time bring him prescriptions which he would sign, indicating on the prescriptions that he did in fact fill them, although he had not, and then put them on file at the pharmacy in an attempt to cover up some of the shortages due to the unlawful sales of the Quaalude tablets. After this conversation Mr. Bell testified that he proceeded to do a drug accountability audit. Mr. Bell said that even with giving the pharmacy credit for those prescriptions which were signed by the pharmacist, he could not account for 27,440 Quaalude tablets. The drug accountability report was identified by Mr. Bell and was introduced into evidence as Petitioner's Exhibit number 1. Agent Bell identified a series of documents which constituted various invoices and prescriptions utilized in the drug accountability audit as well as a perpetual inventory, which the pharmacist had run. These documents were marked as Petitioner's Composite Exhibit number 2 and were introduced into evidence. Thereafter, Mr. Bell identified a document which he noted was a copy of a receipt which he gave to the pharmacist noting the various invoices contained in Composite Exhibit number 2, which were removed from the pharmacy. This receipt was marked as Petitioner's Exhibit number 3 and was introduced into evidence. Mr. Bell verified a document which was the receipt that he gave to the pharmacist, Mr. DeQueuedo, when he removed the original prescriptions from the pharmacy file, which prescriptions were also part of the Composite Exhibit number 2. This receipt was marked as Petitioner's Exhibit number 4 and was introduced into evidence. Mr. Bell then identified another document, which was marked for identification as Petitioner's Exhibit number 5, and Agent Bell testified that this was a statement made to him in his conversations with the Respondent, Ms. Ferreras, and the pharmacist, Mr. DeQueuedo, which he reduced to writing and which both the pharmacist and Respondent Ferreras signed. Exhibit number 5 substantiates the testimony which was given by Mr. Bell in respect to the unlawful dispensing of controlled substances by Ms. Ferreras, falsification of the prescription records by Mr. DeQueuedo, and the shortages found in the drug accountability audit. Robert S. Pacitti, a police officer with the Dade County Public Safety Department, was called as a witness for Petitioner. Officer Pacitti stated that he had received a telephone call from Agent Bell with reference to Ms. Ferreras and Mr. DeQueuedo. Officer Pacitti testified that he went to the Capel Drugstore and advised both the Respondent Ferreras and Mr. DeQueuedo, the pharmacist, of their Miranda rights. Officer Pacitti obtained a verbal statement from Mr. DeQueuedo that he was aware of the fact that Ms. Ferreras was dispensing Quaalude tablets. Officer Pacitti then took Respondent Ferreras down to the Dade County Public Safety Department, where she made a statement taken by a stenographer in Officer Pacitti's presence confirming the testimony of Agent Bell and Officer Pacitti. Respondent Ferreras stated that the individuals to whom she had sold Quaalude tablets promised to bring her prescriptions for them at a later date but did not do so. Officer Pacitti identified a document marked as Petitioner's Exhibit number 6 as a copy of the statement of Respondent Milagros Ferreras, and thereafter this statement was introduced into evidence as Petitioner's Exhibit number 6. Officer Pacitti testified that even though the large quantity of Quaalude tablets was being sold for 50 cents each, the street value of these tablets was between $3.00 and $5.00 per tablet. The secretary of Jack R. Blumenfeld, the attorney of record for Respondent Milagros Ferreras, presented photocopies of letters from two physicians indicating that Ms. Ferreras had been in the hospital and then had been advised to restrict her physical activity and avoid emotional strain. These letters were marked and filed by the Hearing Officer. After listening to the testimony of Agent Bell and Officer Pacitti, and after examining the exhibits introduced into evidence, it is the finding of this Hearing Officer that the Respondent, Milagros Ferreras, did permit the improper keeping of records at Ponce de Leon, Inc., doing business as Capel Drugstore, and that complete and accurate records of controlled substances were not maintained on a current basis. It is the further finding of this Hearing Officer that the Respondent, Milagros Ferreras, allowed the pharmacist, Francisco DeQueuedo, to file false information in the files of Ponce de Leon, Inc., doing business as Capel Drugstore, by placing prescriptions in the files which were not actually dispensed by the pharmacist to the individuals named thereon. The Hearing Officer finds that the Respondent, Milagros Ferreras, President of the corporation doing business as Capel Drugstore, improperly dispensed and sold Quaalude tablets to individuals with prescriptions and to individuals without prescriptions.
Recommendation Revoke the permit to operate a pharmacy in the State of Florida issued to Ponce de Leon, Inc., doing business as Capel Drugstore, and Milagros Ferreras, Evina Valera and Julio C. Pascual. DONE and ORDERED this 15th day of March, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jack R. Blumenfeld, Esquire 619 NW 12th Avenue Miami, Florida 33136 Michael Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 H. F. Bevis Executive Secretary Florida Board of Pharmacy Post Office Box 3355 Tallahassee, Florida 32302
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent, Esmildo E. Machado, was a licensed physician in the State of Florida having been issued license number ME-0028831. Respondent came to the United States from Cuba in approximately April of 1974. Respondent was and is a fervent anti-communist. Prior to coming to the United States, Respondent was imprisoned in Cuba from 1969 through 1974 for aiding anti-communists who were attempting to overthrow the government of Cuba. Respondent has been a licensed physician in Florida since 1976 and has been practicing out of an office located at 456 Southwest 8th Street in Miami, Florida, since that time. No evidence was presented of any prior disciplinary action taken by Petitioner against Respondent. In March of 1992, the Federal Drug Enforcement Agency ("DEA") initiated a criminal investigation into the prescribing practices of Respondent. The investigation was apparently initiated after a confidential informant (the "Confidential Informant" or the "Patient") told DEA that he could obtain drugs through Respondent. The DEA enlisted the Confidential Informant to try to buy drugs and prescriptions from the Respondent. The Confidential Informant was not otherwise employed during the time period in question. He was paid by DEA based in part upon the quantities and strength of the drugs and prescriptions obtained. On or about April 13, 1992, the Confidential Informant telephoned the Respondent's office and set up an appointment to meet with the Respondent that afternoon. The Confidential Informant had been a patient of the Respondent's several years earlier. In addition, the Confidential Informant's father had been treated by the Respondent in the recent past. As discussed in more detail below, Respondent claims that he thought the Confidential Informant came to see him to complain about Respondent's treatment of the Confidential Informant's father. Respondent contends that the Confidential Informant had visited his office approximately one week before the April 13 visit and, during the earlier meeting, the Confidential Informant told Respondent that he needed drugs for the "Nicaraguan anti-communists." Respondent claims that he felt compelled to help. The Confidential Informant denies any such conversation took place. Respondent's purported desire to help the Nicaraguan anti-communists does not relieve him of the obligation to practice medicine in accordance with community standards and the laws of Florida. In any event, Respondent's contention is not credible. As discussed in more detail below, the Confidential Informant recorded his April 13 visit to Respondent's office and also recorded several subsequent visits. None of the transcripts of the recorded conversations between Respondent and the Confidential Informant reflect that either the Confidential Informant or Respondent ever made any mention of "Nicaraguan anti- communists." Respondent also contends that he was intimidated by the Confidential Informant and alleged hints made by him of a possible malpractice lawsuit over Respondent's treatment of the Confidential Informant's father. The transcripts of the initial meetings between Respondent and the Confidential Informant reflect that Respondent was very solicitous regarding the Confidential Informant's father. However, there is no persuasive evidence that the Confidential Informant said or did anything to foster Respondent's concern about a possible malpractice action. Any subjective fears on Respondent's part were not reasonably based and provide no defense to the charges that he violated Chapter 458, Florida Statutes. The more persuasive evidence in this case did not support Respondent's contention that he was coerced or tricked into selling the Patient prescriptions and drugs during any of the meetings. Moreover, Respondent's claim that he was "entrapped" to dispense drugs and prescriptions to the Confidential Informant was not persuasive. Before the April 13 meeting, the Patient met with DEA Investigator Robert Yakubec and another DEA agent a few blocks from Respondent's office. Investigator Yakubec instructed the Patient on the law of entrapment and the DEA procedures for making a controlled buy. The Patient and his car were both searched, after which the Patient was given two hundred dollars to purchase prescriptions or drugs. The Patient was also given a recorder to record his conversation with the Respondent. Investigator Yakubec and another DEA agent followed the Patient to the Respondent's office. They maintained surveillance outside Respondent's office until the Patient exited. They then followed him to a prearranged meeting place where he was again searched. DEA regulations mandate the procedures described in paragraph 9. The evidence established that these procedures were followed for each and every purchase attempt described in this Recommended Order. During the April 13, 1992 meeting, Respondent provided the Patient with ten (10) Hydrocodone Bitartrate 7.5 mg. tablets (Vicodin), one prescription for forty (40) Acetaminophen with Codeine 30 mg. tablets (Tylenol III) in the name of "Roberto Gomez," and one prescription for thirty (30) Vicodin 5 mg. tablets in the name of "Juan Quinones." Vicodin is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Hydrocodone, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Tylenol III is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Codeine, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Respondent failed to take a medical history or conduct a physical examination of the Patient during the April 13 visit or during any subsequent visits by the Confidential Informant. The Confidential Informant was in Respondent's office for approximately twenty (20) minutes on April 13. He paid Respondent's secretary ten dollars ($10) for the office visit. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed by the DEA agents, who searched him and his car. The Confidential Informant returned one hundred and ninety dollars ($190) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 16, 1992, the Patient returned to Respondent's office. Before the visit, the search and preparatory procedures described in paragraph 9 were performed by Investigator Yakubec and the Patient was given one hundred dollars ($100) to make a purchase. During the April 16 visit, Respondent asked the Patient about the money Respondent made on the prescriptions from the last visit. Respondent suggested he could help the Patient by giving him Vicodin and they could split the earnings from the drugs. Respondent did not comply with the Patient's request for a prescription for Demerol. During the April 16 visit, Respondent gave the Patient one prescription for forty (40) Tylenol III 30 mg. tablets in the name of "Edna Pavon." He also gave the Patient eight (8) Toradol tablets and a prescription for forty (40) more Toradol. The Confidential Informant paid Respondent sixty dollars ($60) for these items. Toradol is a legend drug pursuant to Section 465.003(7), Florida Statutes. The Patient was in Respondent's office for approximately ten minutes on April 16. The Patient proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned forty dollars ($40) to Investigator Yakubec along with the prescriptions and Toradol provided by the Respondent. The Confidential Informant's next visit to Respondent's office was on April 21, 1992. Prior to the visit, the Patient met with Investigator Yakubec and was given two hundred and fifty dollars ($250) to make a purchase. The standard search and preparatory procedures were performed by Investigator Yakubec. The Patient had to wait for more than an hour to see the Respondent on the April 21. Respondent contends that on this and other occasions he deliberately made the Patient wait in the hope that the Patient would get discouraged and leave. After considering all of the evidence, it is concluded that Respondent did very little to discourage the Confidential Informant's efforts to obtain drugs and prescriptions. While Respondent resisted some efforts by the Confidential Informant to obtain stronger drugs, this resistance appears to have been predicated on concerns that those drugs were more closely monitored. When the Patient finally got in to see the doctor on April 21, Respondent gave the Patient one hundred and sixteen (116) Vicodin 5 mg. tablets, one prescription for sixty (60) Tylenol III 30 mg. tablets in the name of "Georgio Rojas," and one prescription for sixty (60) Darvocet 100 mg. tablets in the name of "Celia Garcia." The Patient paid Respondent one hundred thirty dollars ($130) for these items. Darvocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Propoxyphene Napsylate, a Schedule IV controlled substance as defined in Section 893.03(4), Florida Statutes. After leaving Respondent's office on April 21, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and twenty dollars ($120) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 24, 1992, the Patient again presented at Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec before the visit, and the Patient was given two hundred dollars ($200) with which to make a purchase. During the April 24 visit, the Patient told Respondent he wanted a prescription for "Xanax" and a prescription for "Tranzene" for a "Cuban friend." Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets, one prescription for sixty (60) Xanax 25 mg. tablets in the name of "[illegible]", one prescription for thirty (30) Tranxene 3.75 mg. tablets in the name of "[illegible] Martinez," one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "Georgio Rojas", and one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "[illegible]." The Patient paid the Respondent one hundred thirty dollars ($130) for the drugs and prescriptions. Xanax is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Tranxene is a legend drug pursuant to by Section 465.003(7), Florida Statutes and contains Clorazepate Dipotassium, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately twenty-three (23) minutes on April 24. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned seventy dollars ($70) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 29, 1992, the Patient returned to Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec prior to the visit. The Patient was given one hundred and seventy dollars ($170) with which to make a purchase. During the April 29 visit, the Patient asked Respondent for a prescription for Tylox. Respondent directed the Patient to wait in the office while he obtained some Vicodin. After waiting less than one hour, Respondent gave the Patient ninety (90) Tylenol III 30 mg. tablets, one hundred (100) Vicodin 5 mg. tablets, and one prescription for thirty (30) Halcion 25 mg. tablets in the name of "Carlos Quinones" and a prescription for sixty (60) Tylox in the name of "Belen Portela". The Patient paid Respondent a total of one hundred fifty dollars ($150) for these items. Tylox is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance as defined in Section 893.03(2), Florida Statutes. Halcion is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Triazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately fifty (50) minutes on April 29. Upon leaving, he proceeded directly to a prearranged meeting place where he was debriefed and searched. He returned twenty dollars ($20) to Investigator Yakubec along with the Tylenol, Vicodin and prescriptions. On May 4, 1992, the Patient again presented at Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 4 visit, Respondent gave the Patient two hundred (200) Vicodin 7.5 mg. tablets and one prescription for thirty (30) Tylox tablets in the name of "Luis Moran." The Patient paid Respondent two hundred dollars ($200) for these items. The Patient was in Respondent's office for approximately twenty (20) minutes on May 4. Upon leaving, he proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned fifty dollars ($50) to Investigator Yakubec along with the prescription and Vicodin provided by the Respondent. On May 6, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 6, 1992 visit, the Patient asked Respondent to try to obtain some steroids, in particular Deca Durabdin, for some of his friends. Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets and three hundred (300) Vicodin 5 mg. tablets in return for which the Patient paid Respondent two hundred fifty dollars ($250). The Patient promised to pay Respondent an additional fifty dollars ($50) on his next visit. The Patient was in Respondent's office for approximately twenty (20) minutes on May 6. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. The Patient's next visit to Respondent's office was on May 15, 1992. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given three hundred fifty dollars ($350). Fifty dollars ($50) was to pay for the drugs obtained during the previous visit. The Patient entered Respondent's office at approximately 1:00 p.m. on May 15 and remained inside for approximately fifteen (15) minutes. Petitioner paid Respondent the fifty dollars ($50) due from the previous visit. Respondent told the Patient he was trying to determine if he could obtain any steroids. Respondent and the Patient also discussed other drugs, including Dilaudid, Percodan and Percocet, and they discussed problems with obtaining such drugs from various pharmacies in the area. Respondent did not agree to provide any of these stronger drugs to the Confidental Informant at this time. Respondent told the Patient to return at 2:00 p.m. to pick up some Vicodin. The Patient returned to Respondent's office at approximately 1:45 p.m. on May 15 at which time Respondent gave the Patient two hundred and ninety seven (297) Vicodin 5 mg. tablets in return for which the Patient paid the Respondent two hundred fifty dollars ($250). The Patient left Respondent's office at approximately 2:02 p.m. and proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. On May 20, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 20 visit, the Patient and Respondent discussed how prescriptions could be presented at various pharmacies so as to minimize suspicion. Respondent gave the Patient one prescription for forty (40) Percocet #40 tablets in the name of "Daysi Lopez"; one prescription for forty (40) Percocet #40 tablets in the name of "Centuedis Nundez"; one prescription for forty (40) Percocet #40 tablets in the name of "Anzetia Perez"; and one prescription for 2 vials/2cc of Deca Durabolin in the name of "Miguel Castro." The Patient paid the Respondent one hundred twenty dollars ($120) for the prescriptions. Deca Durabolin is a legend drug pursuant to Section 465.003(7), Florida Statutes. Percocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance listed in Section 893.03, Florida Statutes. The Patient was in Respondent's office for approximately one (1) hour and ten (10) minutes on May 20 and proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and thirty dollars ($130) to Investigator Yakubec along with the prescriptions provided by the Respondent. On June 10, 1992, the Patient again returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given one hundred and fifty dollars ($150) with which to make a purchase. During the June 10 visit, Respondent gave the Patient one prescription for "6 amps" of Deca Durabolin in the name of "Manny Lorenzana;" one prescription for Percocet #60 in the name of "Hypolita Herrera;" one prescription for Percocet #40 in the name of "Marina Quintana;" and one prescription for Percocet #40 where the name was illegible. The Patient paid the Respondent $140 for the prescriptions. The Patient was in Respondent's office for approximately forty-five minutes on June 10. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned ten dollars ($10) to Investigator Yakubec along with the prescriptions provided by the Respondent. As noted above, Respondent never performed a physical examination of the Patient and never took a physical history from him. The evidence established that, prior to prescribing legend drugs to a patient, a physician should perform a physical examination to arrive at a legitimate medical reason to prescribe the drugs. Prescribing controlled substances for no legitimate medical reason is below the standard of care recognized by a reasonably prudent physician. A physician is required to keep accurate written medical records of his treatment of patients. These records should include a record of all drugs prescribed or dispensed to a patient and the reasons why the drugs were dispensed or prescribed. The reasons should be supported by the results of physical examinations and/or the patient's history. Respondent failed to document adequate medical histories and physical examinations in the Patient's medical records to justify his numerous prescriptions for legend drugs, including controlled substances. Accordingly, it is concluded that Respondent failed to keep written medical records justifying the course of treatment of the Patient It is also concluded that Respondent dispensed Tylox and Percocet, Schedule II substances, outside the course of his professional practice and without a legitimate medical reason. Schedule II controlled substances have a high potential for abuse. They have a currently accepted but severely restricted medical use in treatment in the United States. Abuse of a Schedule II substance may lead to severe psychological or physical dependence. 57 The evidence also established that Respondent dispensed Vicodin and Tylenol III, both Schedule III controlled substances, outside the course of his professional medical practice and without a legitimate medical reason. Abuse of a Schedule III substance can lead to moderate or low physical dependence or high psychological dependence. In addition, Respondent dispensed the following Schedule IV substances outside the course of his professional medical practice and without a legitimate medical reason: Darvocet, Xanax, Tranxene, and Halcion. Abuse of a Schedule IV substance may lead to limited physical or psychological dependence. Respondent also inappropriately prescribed and dispensed the legend drugs Toradol and Deca Durabolin to the Patient outside the course of the physician's professional practice. On several occasions between April 13, 1992, and June 10, 1992, Respondent gave prescriptions to the Confidential Informant which included a patient name other than the Confidential Informant. These actions by Respondent are below the acceptable standard of care for a reasonably prudent similar physician. There is no indication that Respondent ever attempted to contact the police about perceived threats or coercion by the Patient. There is also no evidence that Respondent ever alerted any authorities to the Patient's admissions that he intended to resell the drugs. In fact, the evidence indicates that Respondent was a willing, albeit sometimes cautious participant in the Confidential Informant's apparent drug trafficking scheme. His deliberate decision to use the name of other patients on some of the prescriptions indicates that he was well aware of what he was doing and was trying to cover his tracks. Respondent presented testimony from several members of the community who stated that Respondent is a respected and valued member of the community and has provided needed medical services to the community. Notwithstanding the allegations in this case, they have expressed confidence in his medical judgment and want to see him continue his practice in the community. Respondent was apparently involved in the final stages of a hotly contested divorce during the period when the incidents alleged in this case took place. He suggests that the stress from his divorce may have impaired his judgment in handling what he claims were high pressure tactics from the Confidential Informant. While the Confidential Informant instigated the sales and continuously sought more and stronger drugs, the more persuasive evidence did not, however, support Respondent's claim of high pressure tactics from the Confidential Informant. The stress Respondent was feeling from his divorce can be considered in mitigation, but it does not provide an excuse for Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Sections 458.331(1)(t), (q) and (m) as alleged in the Administrative Complaint. As a penalty for the violations, Respondent's license to practice medicine should be suspended for five (5) years followed by a three-year term of probation during which time Respondent's prescribing practices should be closely monitored. In addition, an administrative fine in the amount of ten thousand dollars ($10,000) should be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of November 1994. J. STEPHEN MENTON 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 18th day of November 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Findings of Fact 9 and 15. Adopted in substance in Finding of Fact 7. Adopted in pertinent part in Finding of Fact 8. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Rejected as unnecessary. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 22. Adopted in substance in Findings of Fact 21 and 24. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 25. Adopted in pertinent part in Finding of Fact 29. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 29. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 27. Adopted in substance in Finding of Fact 28. Adopted in substance in Finding of Fact 30. Adopted in substance in Finding of Fact 30. Adopted in pertinent part in Finding of Fact 34. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 34. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 33. Adopted in substance in Finding of Fact 35. Adopted in substance in Finding of Fact 35. Rejected as unnecessary. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 37. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 32. Adopted in substance in Finding of Fact 38. Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. [NOTE: 59. is blank on original document filed with DOAH.] Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. Adopted in substance in Finding of Fact 39. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 42. Adopted in substance in Finding of Fact 43. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 44. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 45. Adopted in substance in Finding of Fact 45. Adopted in pertinent part in Finding of Fact 49. Adopted in pertinent part in Findings of Fact 7, 8 and 56. Adopted in pertinent part in Finding of Fact 46, except the prescriptions were for Percocet instead of Tylox. Adopted in substance in Finding of Fact 49. Adopted in substance in Finding of Fact 46. Adopted in substance in Finding of Fact 47. Adopted in substance in Finding of Fact 50. Adopted in substance in Finding of Fact 50. Adopted in pertinent part in Finding of Fact 52. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 51. Adopted in substance in Finding of Fact 52. Adopted in substance in Finding of Fact 51. Adopted in substance in Findings of Fact 14 and 53. Adopted in substance in Findings of Fact 14 and 53. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as argumentative. The subject matter is addressed in Finding of Fact 53. Rejected as argumentative. The subject matter is addressed in Finding of Fact 54. Adopted in pertinent part in Findings of Fact 14, 53 and 55. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 58. Adopted in substance in Finding of Fact 57 and addressed in the Conclusions of Law. Adopted in substance in Finding of Fact 59. Subordinate to Finding of Fact 7. Rejected as vague and unnecessary. Adopted in substance in Finding of Fact 60. Rejected as argumentative and unnecessary. Subordinate to Findings of Fact 7 and 8. Rejected as vague and unnecessary. Rejected as unnecessary. Respondent's proposed findings of fact Rejected as unnecessary. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Rejected as unnecessary. Adopted in substance in Finding of Fact 4. Rejected as vague and unnecessary. Subordinate to Finding of Fact 2. Adopted in substance in Finding of Fact 2. Rejected as unnecessary. The subject matter is addressed in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in substance in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in pertinent part in Findings of Fact 9. Subordinate to Finding of Fact 5. Rejected as vague and argumentative. Rejected as argumentative and unnecessary. Some of these issues are addressed in Findings of Fact 5 and 9. Adopted in pertinent part in Findings of Fact 5. Rejected as vague and unnecessary. Rejected as vague and unnecessary. Adopted in pertinent part in Findings of Fact 5. Rejected as unnecessary. Addressed in the preliminary statement. Rejected as irrelevant. As set forth in the Preliminary Statement, the Confidential Informant authenticated the transcripts. Rejected as irrelevant. The clear and convincing evidence established that the Confidential Informant paid Respondent for the drugs and prescriptions he obtained. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as vague and unnecessary. Rejected as unnecessary. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Adopted in substance in Finding of Fact 15. Rejected as unnecessary. Rejected as unnecessary and irrelevant. Subordinate to Finding of Fact 8. Rejected as contrary to the weight of the evidence. Subordinate to Finding of Fact 62. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Francesca Plendl, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Harold D. Lewis, General Counsel Agency for Health Care Administration 325 John Knox Road Tallahassee, Florida 32303 Gary Robert Fine, Esquire 633 Southeast Third Avenue #4R Fort Lauderdale, Florida 33301
The Issue The issue is whether Norwood Pines' annual licensure to operate an adult congregate living facility should be renewed. The Department denied renewal because of repeated failures to correct deficiencies at the facility, and due to the necessity to impose a moratorium on admissions on March 31, 1989, due to conditions at the home which threatened the health, safety, and welfare of residents.
Findings Of Fact Norwood Pines had been licensed as an Adult Congregate Living Facility (ACLF) under the "Adulte Congregate Living Facilities Act", Part II, Chapter 400, Florida Statutes. It had a licensed capacity of four beds. A survey of Norwood Pines was conducted by Lorraine Grissom, a registered nurse who serves as a senior community health nursing consultant for the Department. She regularly conducts ACLF licensure surveys. An ACLF is a home which provides housing, food service, and personal services for adults, which may include limited nursing services when the home is specifically licensed to do so. Section 400.402(2), Florida Statutes. An ACLF license is good for only one year. Section 400.417(1), Florida Statutes. At the time of the survey on March 31, 1989, four elderly women resided at the Norwood Pines ACLF: J.M., R.R., B.A.; and a fourth resident whose condition is not at issue in this proceeding. The home had been established by David Winfrey, and his wife, Barbara Winfrey, who is a registered nurse. Barbara Winfrey had been involved in the operation of the facility but had turned over responsibility for the ACLF to Mr. Winfrey. At the time of the survey on March 31, 1989, she was but of town, out of touch, and unavailable to consult with the aide at the home about problems with any of the residents. On her first visit Ms. Grissom observed one of the aides at the home was under the influence of come substance (whether alcohol or drugs could not be readily determined). The aide's gait was unsteady (she stumbled several times), her speech was slurred, and the content of her conversation was disorganized. The aides had never been given written job descriptions outlining their duties and responsibilities in providing personal care to the residents. Two residents at the ACLF were inappropriate for ACLF care. J.M. was incontinent, confused, and needed care beyond that which Norwood Pines was able to provide. Rule 10A- 5.0181(3)(a)1.e., Florida Administrative Code. B.A. was confused and disoriented; would wander outside in the rain, needed to be watched constantly; and needed to have drugs administered, because she was too disoriented to medicate herself. Rule 10A- 5.018(2)(a)4.c., Florida Administrative Code. B.A. was so disoriented that in case of fire she could not preserve herself or follow directions. Rule 10A-5.0181(2)(a)4.f., Florida Administrative Code. Food service at the home was inappropriate in that menus had not been dated and planned one week in advance, and menus were not followed in the preparation and service of food. Mr. Winfrey did not contest this survey finding, although he did maintain that residents got enough to eat. The administration of medications to residents was a severe problem at the home. There were problems with the supervision of administration of medications, the maintenance of proper medication records, and proper storage and labeling of medications. If a resident is fully capable of taking her own medication, she may purchase and maintain in her own room over- the-counter drugs such as aspirin or rolaids without a prescription, and without the necessity of a label showing the name of the resident, the name of the prescribing M.D. and instructions for the use of the medication. If the facility undertakes the responsibility for supervision of self- administered medications, staff must read the medication label to the resident when it is taken, check self-administered dosages against the label of the container, and assure that resident obtains and takes the dosage prescribed. Rules 10A-5.013(2)(jj) and 10A-5.024(1)(c), Florida Administrative Code. Medicines may be centrally stored but medicines so stored must be kept locked. Rule 10A-5.0182(3)(a)4.a., Florida Administrative Code. Resident R.R. was seen removing Excedrin from an unsecured cabinet in violation of the rule. The centrally stored medicines were not labeled with the name of the resident, the dose, the M.D. who prescribed it, and the directions for use, in violation of Rule 10A-5.0182(3)(a)5., Florida Administrative Code. A medication sheet was not kept for the medication administered to residents, contrary to Rule 10-5.024(1)(c), Florida Administrative Code. For example, resident R.R. had a prescription for 30 Tylenol #3 tablets filled on March 25, 1984. Although 5 tablets were left in the bottle on March 31, 1989, there is no indication on her medication sheet that she had been provided those tablets. This violates Rule 10A-5.0182(3)(b)2.h. and (c)1., Florida Administrative Code. In addition, there was no indication that Peri- Colace, which had been ordered by a physician for resident J.M., had been given. Staff advised Ms. Grissom that J.M. had not been given the medicine during the month of March because J.M. could not swallow it. This information was not given to J.M.'s physician. As a result, J.M. became impacted with feces. Staff was then instructed to administer Ex-lax to J.M. without a physician's order, and not to document its use on the medication sheet for J.M. Staff also gave J.M. a Fleet enema, without a physician's order. This was not proper treatment for the impaction. As a result of the impaction, JAM. had refused to eat for 2-3 days, was lethargic and was aspirating mucus. She also had difficulty breathing. The aide did not notify J.M.'s physician of this, even though her condition was a significant deviation from J.M.'s normal state of health, in violation of Rule 10A-5.0182 (1)(d), Florida Administrative Code. Resident B.A. needed to have her medication actually administered to her, rather than having supervision in taking her own medication. Staff at an ACLF may administer medication to a resident if there is a licensed RN or LPN on staff. There was no nurse at Norwood Pines to administer medication; it was done by an untrained, unlicensed aide, in violation of Rule 10A-5.0182(3)(b) and (c), Florida Administrative Code. This is especially significant because the medications involved were psychotropic drugs such as Mellaril, which the doctor ordered to be administered on an "as needed" basis for depression. This medication was given daily, because the aide did not know how to recognize behaviors which show that it was needed, something which a LPN or RN could be trained to recognize. Daily administration of Mellaril is dangerous, and contrary to the physician's instructions. The side effects of Mellaril can be severe shaking and involuntary movements, which is a particularly high risk for elderly persons, and can be irreversible. Other drugs which did appear on the medication sheets for patients on March 31, 1989, such as Lanoxin, and Haldol were not in the ACLF and therefore could not be administered as required. These violations found on March 31, 1989, had been brought to the attention of the Administrator before. Unlabeled medications, use of unlicensed staff to give medication and the lack of health assessments had been cited as deficiencies on the October 22, 1988, survey. Ms. Grissom returned on May 31, 1989, for a follow- up survey to see whether the deficiencies identified on March 31, 1989, had been corrected. All of the deficiencies remained uncorrected, including those related to proper storage, labeling, recording and supervision of the administration of medication; to the criteria for retaining residents at the home; to staff awareness of health and well-being of residents; and to provision of appropriate staff and food service. The Administrator, Mr. Winfrey, did not contest that these deficiencies had not been corrected on May 31, 1989. On May 31, 1989, Mellaril was still being given to R.R. by an untrained, unlicensed aide when the physician required that it be given on an "as needed" basis. Five hundred milligrams of calcium was being given to R.R., although the medication was unlabeled, and there was no doctor's order to provide it. A doctor had ordered that potassium be given to B.A. with plenty of water and with food, but she was given only a small amount of orange juice in a four ounce cup with the potassium. Ms. Grissom explained that it is dangerous to give potassium in a manner other than as ordered to patients with heart problems such as B.A. The medication records did not show that two other medications given for heart disease, Lanoxin and Lasix were being given daily as prescribed. B.A. was still a resident at the home on May 31, 1989, though she was still so disoriented that it was inappropriate for her to be in an ACLF. B.A. was only transferred to a facility appropriate for her care after Ms. Grissom made another visit on October 30, 1989. On May 31, 1989, staff was still unable to perform duties and ensure proper care of residents because the untrained aide was still responsible for administering psychotropic medications to residents. A final appraisal of the home was done on October 30, 1989, by Ms. Grissom. At that time, untrained, unlicensed staff was still administering medications and admitted doing so. As noted above, B.A. who was an inappropriate client, still resided at the facility. Medication records were still as inaccurate as they had been on March 31 and May 31, 1989. The daily records were not being kept as medications were given. When Ms. Grissom asked the aide for the resident's files, the aide brought menus. In short, the aide was unprepared to do those things expected of her. Health assessments for the residents were not available, although the facility had been cited for this deficiency in the October 28, 1988, survey. By the October visit, Haldol had been ordered for B.A. by her physician, to be administered "as needed," but was given as a regular dose. Mellaril, another dangerous drug, had been ordered to be given up to three times a day as needed for depression to R.R., but it was given three times a day as a regular dose, even though R.R. showed no signs of depression. None of the findings about the October 30, 1989, were controverted by Mr. Winfrey. As a result of the March 31, 1989, survey a moratorium on admissions was imposed at the Norwood Pines ACLF due to conditions which threatened the residents' health, safety, and welfare. Norwood Pines did not appeal the moratorium.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the request of Norwood Pines for a renewal license to operate an Adult Congregate Living Facility. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March, 1990. WILLIAM R. DORSEY, JR. 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 27th day of March, 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-4346 The substance of the proposals submitted by the Department have been accepted. No proposed findings of fact were submitted by Norwood Pines. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue North Tower, Room 526 Miami, Florida 33128 David G. Winfrey Norwood Pines 19021 Northwest 10th Street Miami, Florida 33169 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding concerns whether the Respondent committed the violations charged in the Administrative Complaint, involving possessing and introducing onto the grounds of a state correctional institution, certain controlled substances and, if so, what if any penalty is warranted.
Findings Of Fact The Respondent, Erlene Stewart, has been employed as a correctional officer at Union Correctional Institution (UCI). She was so employed on February 1, 1999, and had been employed there for almost five years at that time. The Respondent was working on Saturday, January 30, 1999. On that day, officers at UCI examined employees coming to work by conducting an "Ion Scan" of employees to attempt to detect any drug or drug residues on or about their persons when they entered the institution to go on duty. The Respondent was subjected to such an Ion Scan and successfully passed it. Thus, she was aware that a drug detection effort was being conducted on Saturday, January 30, 1999, at UCI. February 1, 1999, was the Monday after that Saturday. The Respondent was working that day in tower number five of UCI. She had driven to work that day in the black Pontiac Grand Am in question, which is registered in her name. She was working on the 8:00 a.m. to 4:00 p.m., shift on that Monday. It was very unusual for a drug detection operation to be conducted on that Monday, immediately succeeding the Ion Scan drug detection operation which had been conducted on Saturday, two days before. Such a drug detection operation was conducted in the parking lot of UCI on Monday, February 1, 1999, however, using a drug detection dog. It was very unusual for a drug detection dog to be used so soon after an Ion Scan drug detection operation and also unusual for the dog to be used at 12:30 in the afternoon. The Respondent was surprised to find that a drug detection dog was being used in the parking lot of UCI on February 1, 1999. When the Respondent came to work on that day she locked her car leaving the windows slightly cracked and went inside to go on duty. Later that day, at approximately 12:30 p.m., a drug detection dog, handled by Sergeant Box of UCI, was examining vehicles in the parking lot and "alerted" to the presence or odor of narcotics inside or on the Respondent's vehicle. The dog had been trained and certified to be capable of passively alerting to the odors of four narcotics: marijuana, powdered cocaine, crack cocaine and heroin. After the dog alerted to the presence of contraband drugs in or on the Respondent's vehicle, the Respondent, who was then working in tower number five, was relieved of duty and summoned to her vehicle in the parking lot on the grounds of UCI. When she arrived in the vicinity of her vehicle, she was informed that a drug detection dog had alerted to her vehicle. She provided a written consent, to the officers present, to a search of her vehicle. The Respondent had to unlock her vehicle in order for the drug detection officers to begin their search of its interior. Upon gaining access to the interior of the Respondent's vehicle, Sergeant Mobley of Hamilton Correctional Institution, discovered an aluminum foil package containing a white powder suspected to be cocaine, on the passenger's side of her vehicle. Sergeant Mobley turned that package over to the custody of Inspector Bailey. Sergeant Dugger found what appeared to be marijuana on the driver's side of the Respondent's vehicle. Prior to his entry into the vehicle, Sergeant Dugger and Inspector Bailey had observed through the window what appeared to be marijuana and marijuana seeds on and about the driver's seat. The Respondent is familiar with the appearance of marijuana and cocaine. Moreover, she is aware that cocaine is commonly wrapped in aluminum foil. Her former husband had been known to use cocaine according to the Respondent's testimony. Inspector Bailey took custody of the suspected cocaine and marijuana and conducted two tests on both substances. The results of his field test and Ion Scan test were positive for marijuana and cocaine. The evidence was then turned over to Inspector Yaw who conducted another Ion Scan test on the white powder confirming it as cocaine. Sergeant Dale Pfalzgraf of the Union County Sheriff's Office, was summoned to UCI on that day, after the suspected drugs were located in the Respondent's vehicle. Inspector Yaw turned over to him a sealed plastic bag containing what appeared to be marijuana and a tin-foil package of what appeared to be cocaine. Deputy Pfalzgraf placed the Respondent under arrest and transported her and the evidence to the Sheriff's office. He placed the evidence into a secure locker with the evidence custodian, pending its transportation to the Florida Department of Law Enforcement (FDLE) laboratory. Deputy Tomlinson of the Union County Sheriff's Office was given the evidence that was seized from the Respondent's vehicle by the evidence custodian and transported it to the FDLE laboratory in Jacksonville, Florida, for testing. At the FDLE laboratory, Allison Harms received the evidence from Deputy Tomlinson. The evidence bag remained sealed until testing was performed by Ms. Somera, the FDLE chemistry analyst. Ms. Somera tested the substances contained within the bag and positively identified them as cannibis and cocaine. The Respondent maintains in her testimony that her former husband had access to her vehicle and had used it in the last several days with some of his friends. She contends that he is a known illicit drug user (cocaine). She also states that she left the windows to her car slightly cracked for ventilation when she parked it in the parking lot on the day in question to go to work. She states, in essence, that either the illicit drug materials found in her car were placed there without her knowledge by her former husband or his friends or, alternatively, that the correctional officers involved in the investigation planted the drug materials in her car in order to remove her from employment and/or licensure as retaliation for past employment-related friction she states she had with prison authorities. She also contends that another prison employee told her in private that she was being "framed" but that that person refused to testify on her behalf because of fear of potential loss of his job. In any event, her self-serving testimony is not corroborated by any other witness or exhibit and is not credited.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent be found guilty of failure to maintain good moral character as defined by the above-cited legal authority and that her certification be suspended for a period of two years. DONE AND ENTERED this 2nd day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 2nd day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Erlene Stewart Route 1, Box 52 Sanderson, Florida 32087 A. Leon Lowry, II Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Shirley Ahlers is a doctor of osteopathy licensed by the Florida Board of Osteopathic Medical Examiners, holding license No. 1003. Dr. Ahlers has a general D.O. practice in Tampa, Florida, and treats approximately 40 patients per day. On or about February 27, 1975, Shirley Ahlers received a patient known to him as Cindy Garcia, who was in reality Detective C. Arnett, Hillsborough County Sheriff's Office. Garcia/Arnett told the doctor that she was from Miami and that her doctor there had prescribed Quaalude for her and that she needed some more. Prior to her seeing Dr. Ahlers, Dr. Ahlers' staff had taken and recorded her weight and asked her if she had any drug allergies or reactions. Dr. Ahlers took Garcia/Arnett's blood pressure and pulse rate and told her that her pulse and blood pressure were within normal limits. Dr. Ahlers advised her that Quaalude was being abused by students at the University of South Florida, and that he would prescribe for her but he did not want to do anything to encourage or assist abuse of this drug. Garcia/Arnett was charged and paid $10.00 for the office visit which lasted approximately 15 minutes. Ten dollars was Dr. Ahlers' basic office visit charge. The prescription and receipt were introduced and received as the Board's Exhibits 1 and 2 respectively. Garcia/Arnett again visited Dr. Ahlers' office on April 23, 1975. Upon this visit she wore a transmitting device in her shoe which broadcast her conversation to another police officer, Welchel, who was outside and recorded the transmitted conversation on magnetic tape. Garcia/Arnett identified the tape cassette which she removed from the recorder-radio after she had left the office which was marked as Exhibit 3. On her April 23, 1974 visit Garcia/Arnett signed in with the receptionist, waited for some time for the doctor and was finally taken back to the examining room. Her blood pressure and pulse rate were again taken. She advised Dr. Ahlers when she saw him that she needed a prescription for Quaalude. Dr. Ahlers advised her that she could not get Quaalude in the Tampa area because the pharmacies were not carrying it. He explained that this was the result of the drug abuse and suggested that he substitute another drug. He suggested two drugs with the same characteristics as Quaalude and read from the Physician's Desk Reference the general description of the drugs, their effects, and general warnings. After having explained and read to Garcia/Arnett about these two drugs, Dr. Ahlers asked her which of them she would prefer to have prescribed for her. She selected Placidyl, Garcia/Arnett identified Exhibit 4, prescription for Placidyl, which she had been given. Prior to her leaving, Dr. Ahlers also gave her two physician's samples of Mellaril, three 15 mg tablets and three 25 mg tablets. Dr. Ahlers suggested that she try these and see how she liked them. Again Garcia/Arnett paid $10.00 for the office visit and received a receipt therefore which she identified and which was received as Exhibit 5. On May 28, 1975, Garcia/Arnett visited Dr. Ahlers' office again equipped with a transmitting device as on the last visit. On this occasion the conversation was recorded by William Strickland. Her blood pressure and pulse rate were taken. On this visit she told the doctor that she did not like Placidyl and preferred the Quaalude. Dr. Ahlers again explained that she could not get Quaalude in the Tampa area. Garcia/Arnett told Dr. Ahlers that she was staying in the Bradenton area with a girl friend and would get it filled there. Dr. Ahlers them prescribed Quaalude for Garcia/Arnett, who at hearing identified the prescription which was received as Exhibit 6. Again Garcia/Arnett paid $10.00 for the visit and received a receipt therefore which she identified and was received into evidence as Exhibit 7. Garcia/Arnett also identified the tape of the visit which was marked as Exhibit 8. Dr. Ahlers' patient records for Garcia/Arnett were introduced as Exhibit 9, and showed that the patient's weight, blood pressure, pulse rate and comments by the patient together with the medications prescribed, to include the physician's samples of Mellaril, were entered on the date of each visit. Exhibit 1, the prescription for Quaalude given Garcia/Arnett on February 29, 1975, indicates that the medication was given to assist the patient to sleep. Exhibit 4, the prescription for Placidyl, given Garcia/Arnett on April 23, 1975, indicates that the medication was given to assist the patient to sleep. Exhibit 6, the prescription for Quaalude, given Garcia/Arnett on May 28, 1975, indicates that the medication was for sleep. On April 24, 1975, Detective E. C. Stokes of the Hillsborough County Sheriff's Office, visited Dr. Ahlers' office representing himself as Eugene Teliska seeking to see Dr. Ahlers as a patient. At the time he wore a transmitter to record his conversation with Dr. Ahlers as Garcia/Arnett had done. In all instances the transmitter was controlled by the officers, Stokes and Arnett, who voluntarily recorded their conversations with Dr. Ahlers. During the visit on April 24, 1975, Stokes/Teliska's height, weight, blood pressure and pulse rate were taken and recorded. His blood pressure was 158/94 when first taken during the visit, Dr. Ahlers later took his blood pressure again and recorded it as 136/90. Stokes/Teliska stated he was a student at the local college, commuting from the Bradenton area, and stated that his girl friend had told him he could get a prescription for Quaalude from Dr. Ahlers. Dr. Ahlers told Stokes/Teliska that he could not prescribe Quaalude because the pharmacies did not carry it and that he did not wish to prescribe these drugs for his patients because they were suspect medications. Dr. Ahlers recommended that he use Placidyl which would have essentially the same effects, and Dr. Ahlers explained the nature of Quaalude and Class II drugs and Placidyl and Class III [sic] drugs. After discussing this for some time and convincing Stokes/Teliska to take Placidyl, they then discussed the dosage. Dr. Ahlers suggested that he should try the 500 mg dosage which was generally the normal dosage. When asked if Dr. Ahlers could prescribe for his girl friend, Stokes/Teliska was advised that Dr. Ahlers could not legitimately prescribe medications for non-patients. Dr. Ahlers noted that Stokes/Teliska's blood pressure was high. Thereafter Dr. Ahlers suggested that Stokes/Teliska might need a relaxant more than a sleeping medication, and gave Stokes/Teliska a physician's sample of Mellaril for Stokes/Teliska to experiment with to determine how a tranquilizer effects him opposed to a hypnotic. Dr. Ahlers' patient records for Stokes/Teliska indicate that he had requested a check-up, that Dr. Ahlers could not prescribe Quaalude, that the patient was very understanding of problems (in prescribing Quaalude), and the drugs by type and and number prescribed for him. Stokes/Teliska paid $10.00 for his visit to Dr. Ahlers' office and received a receipt for the payment. Stokes/Teliska again visited Dr. Ahlers' office on May 12, 1975, equipped with a transmitter. On this occasion the patient records indicate in handwriting which is different from that of Dr. Ahlers' handwriting that Stokes/Teliska requested a refill of sleeping medications. Stokes/Teliska explained that the prescriptions he had been given were not strong enough. Dr. Ahlers again tried to avoid prescribing Quaalude, and suggested going to 750 mg of Placidyl. Dr. Ahlers stated that he could give him heavier medication. Dr. Ahlers and Stokes/Teliska had discussions of its effects, and Dr. Ahlers explained that Placidyl was not instantly effective and that it was relaxing as Stokes/Teliska desired. Stokes/Teliska then stated he could get Quaalude in Bradenton where he lived. It was only then that Dr. Ahlers prescribed Quaalude for Stokes/Teliska and then Dr. Ahlers cautioned Stokes/Teliska not to tell any of his classmates he had prescribed Quaalude for him because he was trying to avoid prescribing Class II drugs [sic] adding to the community problems. Upon leaving Dr. Ahlers' officer, Stokes/Teliska paid $10.00 for the office visit and received a receipt for payment. It was apparent from Dr. Ahlers' conversation that he was aware of the drug problem, was aware his reputation was being questioned by pharmacists and a fellow hospital staff member but that he felt that he was professionally entitled to prescribe as he saw best for his patients although be sought to avoid prescribing Class II drugs. Stokes/Teliska identified the tapes of his conversations with Dr. Ahlers, Exhibit 10, tape of the April 24, 1975 visit, and Exhibit II, tape of the May 12, 1975 visit, Stokes/Teliska also identified his medical charts from Dr. Ahlers' office, Exhibit 12; the prescription given to him by Dr. Ahlers for Placidyl on April 24, 1975, Exhibit 13; the prescription for Quaalude given to him by Dr. Ahlers on May 12, 1974, Exhibit 14; the receipts for the visits to Dr. Ahlers' office, April 24, 1975, Exhibit 15 and May 12, 1975, Exhibit 16; and the medical records seized at Dr. Ahlers' office pursuant to search warrant on September 19, 1974, Exhibits 32-39, all of the exhibits above except the tapes being received into evidence. The medical records seized and identified by Stokes/Teliska but not received were marked as rejected Exhibits 17-25. John C. Whechel, Deputy Sheriff, who had operated the receiver-tape recorder on April 23, April 24, and May 12, 1975 when Garcia/Arnett and Stokes/Teliska visited Dr. Ahlers' office, identified the tapes Exhibits 10, 11, and 13. He stated he could hear the conversation and recognized Garcia/Arnett's voice and he started the tapes when conversation with Dr. Ahlers began, except that the very first portion of Garcia/Arnett's first taped conversation was missed when he could not get the recorder started fast enough. There were no difficulties hearing or recording on the equipment which he had operated before and tested. He knew that Garcia/Arnett and Stokes/Teliska had consented to taping, and that they could control their transmitters with its own off-on switch. Drs. Vigderman, Dam, Wright, and Nichols reviewed the patient records kept by Dr. Ahlers on Garcia/Arnett and Stokes/Teliska and listened to the tapes recorded during their visits on April 23, and 24, 1975, and May 12 and 28, 1975. Their consensus opinion was that Dr. Ahlers' histories and patient interviews were a sufficient basis for Dr. Ahlers to have prescribed the drugs in question to these "patients". The affidavit of William Strickland was received wherein he swore that he recorded the May 28, 1975 visit between Garcia/Arnett and Dr. Ahlers, that he turned on the equipment when Garcia/Arnett entered Dr. Ahlers' office and stopped the equipment after she left, that he knew how to operate the equipment which he tested before use, that he monitored Garcia/Arnett's voice and a male who identified himself as Dr. Ahlers, that there were no mechanical problems, and that he had removed the tape from the recording machine and placed it in the custody vault of the Sheriff's Office. Based upon the testimony of Garcia/Arnett, Stokes/Teliska, Whechel, and Strickland, the Hearing Officer finds Exhibit 8, 10, 11 and 13 admissible evidence which is properly received into the record and considered by the Hearing Officer in this case. It should be noted that the tapes, Exhibits 3, 8, 10, and 11 were transcribed and a true copy made which was approved by both counsel and which is attached and made a part of the record. The Board presented the testimony of Dr. Harry Kornhiser, D.O., who the Hearing Officer finds to be a qualified expert in the practice of osteopathy. Dr. Kornhiser was presented hypothetical questions by the Board's counsel. In short, Dr. Kornhiser did not believe that in the hypothetical situation the D.O. prescribed in good faith because: The patient had no chief complaint; The D.O. did not check the body systems beyond the circulatory system; and The D.O. did not specifically examine the patient regarding his chief complaint, and the D.O. did not give a general physical examination. Dr. Kornhiser opined regarding the second hypothetical situation that the patient's history was not complete, there was a lack of physical examination, and therefore, no basis for prescribing. Dr. Kornhiser stated that with patients experiencing sleeping difficulties he would want to determine when they had the difficulty and would then prescribe as indicated. Dr. Kornhiser admitted that doctors of osteopathy vary regarding how to evaluate patients but that all generally take time to give a physical. Dr. Kornhiser said with regard to Quaalude that it had a low toxity but a high potential for abuse. Dr. Kornhiser said he would inquire of patients how the drug effected them. Of Quaalude, Dr. Kornhiser further stated it was a sleeping medication with greater capacity than Placidyl. Dr. Kornhiser expressed the opinion that a blood pressure of 158/94 in a young man of Stokes/Teliska's age and weight would bear watching the patient. Dr. Kornhiser also said any of the drugs, Placidyl, Mellaril or Quaalude, could be used to control anxiety. According to the testimony and the PDR, Quaalude is a trade name for methaqualone, Mellaril is a trade name for thioridazine, and Placidyl is a trade name for ethchlorvynol. Ethchlorvymol is a Schedule IV controlled substance as defined in Section 893.03(4), F.S.. Methaqualone is a Schedule III controlled substance as defined in Section 893.03(3), Thioridazine is not defined as a controlled substance. The charges against Dr. Ahlers arise from the several visits by two police undercover officers to Dr. Ahlers' office. Based upon the events and circumstances surrounding those events the Florida Board of Osteopathic Medical Examiners has alleged that Dr. Ahlers violated Section 459.14 by violating Section 893.04 primarily. Under the charge alleged in the absence of a showing a violation of Section 893.04 neither 893.13 of 459.14 are proven. Section 893.05, F.S., provides in part: "893.05 Practitioners and persons administering controlled substances in their absence.-- A practitioner, in good faith and in the course of his professional practice only, may prescribe, administer, dispense, mix, or other- wise prepare a controlled substance." The keys to application of this statute to the instant case are "good faith" and "in the course of his professional practice". If Dr. Ahlers prescribed the medication involved in good faith and in the course of his professional practice to Stokes/Teliska and Garcia/Arnett then he could not have violated either statutory provision. IN THE COURSE OF PROFESSIONAL PRACTICE The testimony in both instances is clear that both officers visited Dr. Ahlers' office during normal office hours, saw Dr. Ahlers on each occasion, gave some medical information regarding themselves, were weighed, and had their blood pressure and heart rates recorded. They were charged $10.00 for each visit which was Dr. Ahlers' regular office visit charge. Stokes/Teliska asked Dr. Ahlers if he could prescribe for Stokes/Teliska's girl friend without seeing her and was told by Dr. Ahlers that he could not legitimately prescribe for anyone who was not his patient and who he had not seen. There is no evidence that Dr. Ahlers prescribed for Garcia/Arnett or Stokes/Teliska outside the scope of his professional practice, but on the contrary, the evidence supports the Hearing Officer's finding that all the prescriptions were written within the course of his professional practice. GOOD FAITH A definition of good faith and discussion thereof is found in 37 Am Jur 2d, Fraud and Deceit 1, p. 19. Particularly of interest and applicable to the instant situation is the discussion of "bad faith" because good faith as it is apparently used in the statute refers to the non-fraudulent prescription of drugs. The Am Jur 2d citation above states generally that bad faith is an indefinite term and then goes on to state: " it [bad faith] differs from, and is stronger than, the idea of negligence in that it contemplates a state of mind affirmatively operating with a furtive design, with some motive of self-interest or ill will, or for an ulterior purpose. There seems to be but little difference between bad faith and fraud in this particular relation." When these criteria are applied to the evidence of violation of Section 893.05 presented at hearing there is no showing of bad faith. The circumstances do not indicate that Dr. Ahlers operated with furtive design. Certainly Dr. Ahlers' taped conversations were very open and revealed no serious intent to fraudulently prescribe the drugs in question. It is incredible to think that Dr. Ahlers having illegally prescribed drugs for Garcia/Arnett and Stokes/Teliska would have made such detailed notes concerning their visits, the conditions which they described, the nature of their conversations, and the medications which Mr. Ahlers prescribed and gave them. Dr. Ahlers' attempts to see if both Stokes/Teliska and Garcia/Arnett's problems could be managed by Mellaril, a non-controlled substance, was consistent with good medical practice and control of drugs. No motive of self interest was demonstrated because both Stokes/Teliska and Garcia/Arnett stated the only benefit Dr. Ahlers received or was offered was the $10.00 charge for the office visit. With a busy, established practice, Dr. Ahlers did not have to seek patients by providing them with drugs. Therefore, the basic elements necessary to show bad faith are missing. Even if it is assumed that Dr. Ahlers' handling of the patients was negligent, bad faith prescription of drugs would require more than negligence. In Section 254, Fraud and Deceit, supra, there is a discussion of the effects of a confidential relationship on fraud which is very relevant and important to consideration of the issues in this case and which states in pertinent part: "It is well settled that a representee has a right to rely upon representations where a confidential or fiduciary relationship exists between the parties. In such cases a high degree of frankness and fair dealing is required, and the representee cannot be charged with lack of diligence in failing to make an independent investigation, either at the time or afterwards." Much was made of the fact that Dr. Ahlers did not check further to determine the nature of the patients' complaints by further physical examination and development of case history. While this may relate to the standard of care exercised as in a negligence case, it is immaterial to a determination if the prescription was dispensed in good faith. With regard to "fraudulent" prescriptions, the relationship existing between a doctor and patient is a special one. Many states even provide for privileged communications between patient and physician. This is based upon a public policy to encourage and protect the communications of a patient to his physician and thereby enable the physician to better treat the patient. Although Florida does not recognize the patient-physician privilege, it does recognize that the statements of a patient to his physician are an exception to the hearsay rule which excludes from evidence, among other things, the self serving declaration of a party. The statements of a patient to his treating physician are admissible in Florida to prove the truth of the facts manifested or stated to the physician. See Florida Evidence, by Gard, p. 255. Therefore, clearly, the special relation between the physician and patient is recognized in Florida. Considering this relationship, the physician cannot be charged with a lack of due diligence in failing to make an independent investigation to prove or disprove facts given him by a patient. It would be contrary to the best interest of the public in seeking and obtaining medical services to require doctors to independently verify each patient's complaint and statement of medical history. Therefore, under the circumstances, Dr. Ahlers was justified in accepting Stokes/Teliska's story and Garcia/Arnett's story without inquiring into them in so far as Section 893.05 is concerned. It may be that Dr. Ahlers' failure to take further medical history or to obtain detailed information relating to the person's chief complaint could show negligence but Dr. Ahlers was not charged with negligence but with an offense bordering closely on fraud. Dr. Ahlers was charged with immoral or unprofessional conduct by virtue of bad faith prescription. The Hearing Officer finds this charge not proven.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that no action be taken to revoke or suspend the the license of Dr. Shirley Ahlers. DONE and ORDERED this 11th day of April, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 James M. McEwen, Esquire Post Office Box 1363 Tampa, Florida 33601
