Findings Of Fact The Respondent, Judith Blake Persky, is a licensed practical ours holding License No. 39779-1 issued by the Florida State Board of Nursing. On or about May 30, 1978, the Respondent converted to her own use a controlled substance, Dilaudid. She admitted this to her supervisor, and she was suspended and referred to a psychiatrist for evaluation. The psychiatric evaluation determined that the Respondent was not dependent upon drugs. Upon this determination, the Respondent was reinstated and continued to work at the Hollywood Medical Center. On or about March 6, 1979, members of the staff at the Hollywood Medical Center discovered that stocks of Dilaudid, more than twenty (20) doses, maintained in the Intensive Care Unit and the Progressive Care Unit, had been tampered with and the tampering disguised. As a result of this discovery, members of the staff with access to these stocks were polygraphed. The Respondent, when advised that her responses indicated deception, admitted she had taken the drugs in question and prepared a hand-written admission. The handwritten admission asserts that the Respondent had been coerced into taking the drugs by threats of physical harm to her and to her husband.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, and fully considering the facts in mitigation, the Hearing Officer recommends that the Florida State Board of Nursing suspend the license of the Respondent for one year. DONE and ORDERED this 25th day of October, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Judith Blake Perskey 202 South Federal Highway Dania, Florida 33314 Geraldine B. Johnson, R. N. Board of Nursing 111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202
The Issue The issue is whether the medical license of Respondent, Elizer F. Castro, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint. The Petitioner, Department of Professional Regulation, Board of Medical Examiners, (DPR) presented the testimony of David F. Scales, M.D., John E. Danson, and Steven J. Clark, M.D. Petitioner's Exhibits 1-3 were admitted in evidence. Respondent presented his own testimony and that of Melvin Greer, M.D., by deposition. Respondent's Exhibit 1 was admitted in evidence. DPR recalled John E. Danson for rebuttal. The transcript of the proceedings was filed on November 2, 1987. The deposition of Melvin Greer, M.D., was filed on November 24, 1987. The parties agreed that they would file proposed findings of fact and conclusions of law within ten days following the filing of the Greer deposition. DPR filed its proposed findings of fact and conclusions of law on December 4, 1987. Respondent's proposed order was filed on December 11, 1987, and is therefore untimely. It has not been considered. The proposed findings of fact submitted by DPR have been considered and a specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times relevant, Elizer F. Castro, M.D., was a licensed physician in the State of Florida, having been issued license number ME 0029506. Dr. Castro treated a patient, A.S., from May 9, 1983, to September 23, 1986. Dr. Castro treated A.S. for narcolepsy. A.S. was formerly treated by David Scales, M.D., of Jacksonville, Florida. Dr. Scales, a neurologist, treated A.S. for narcolepsy from December 16, 1982, until March or April, 1983. At that time, Dr. Scales discontinued treatment because he had received outside information that A.S. was a known drug dealer. Narcolepsy is a sleep disorder in which the patient has an uncontrollable urge to fall asleep at inappropriate times. Diagnosis of narcolepsy can only be made through a patient history and patient information regarding symptoms, past illnesses, past physicians, prior medications, sleep patterns and the existence of features associated with the disease such as cataplexy, nightmares and sleep paralysis. According to Dr. Castro, he took such a patient's history and performed a complete physical examination during the first visit by A.S. on May 9, 1983. Dr. Castro also asserted that he called Dr. Scales' office immediately following the first visit with A.S. and was advised by the physician's assistant that A.S. had been treated by Dr. Scales for narcolepsy. However, Dr. Castro's medical records, including the patient information sheet, do not contain any documentation of the history, specific examination results, or the phone calls to Dr. Scales' office. The first page of the medical records regarding A.S. which is entitled "Patient Information" reflects information regarding tests which were done on August 5, 1983, at Jacksonville Memorial Medical Center following involvement of A.S. in an automobile accident. Clearly this information was not given to Dr. Castro during the first visit of May 9, 1983 (despite Dr. Castro's testimony to the contrary), because these tests were not even done until three months after the first visit. Hence, these tests cannot be relied on by Dr. Castro to support his clinical diagnosis of narcolepsy because the tests postdate the diagnosis and because Dr. Castro never sought copies of the test results. Both Dr. Clark, DPR's expert, and Dr. Greer, Dr. Castro's expert, expressed the opinion that the medical records maintained by Dr. Castro failed to reflect an adequate history upon which to make the clinical diagnosis of narcolepsy. It is also important to perform certain tests in order to rule out other etiologies or problems which can complicate or confuse a physician in the diagnosis of narcolepsy. Here, Dr. Castro's records do not reflect any such testing prior to Dr. Castro's diagnosis of narcolepsy in A.S. In diagnosing narcolepsy in A.S., Dr. Castro acknowledged that his diagnosis was based on the representations of A.S. that he had narcolepsy and had been treated in the past for narcolepsy. Dr. Castro also stated that he did a physical examination, took an extensive patient history, and spoke to Dr. Scales' office for confirmation of the narcolepsy diagnosis. Dr. Castro did not record any of this in the patient records. Dr. Castro treated A.S. for narcolepsy by prescribing Preludin, 75 milligrams, three times per day. A.S. told Dr. Castro that that was medication he had been receiving and that was the dosage he had been receiving form Dr. Scales. In order to follow A.S. on this medication, Dr. Castro began by prescribing 45 tablets for a fifteen day supply. Dr. Castro saw A.S. at fifteen day intervals for the first few visits in order to monitor his progress and to examine him for side effects. Only after assuring himself that the dosage was correct and any side effects were being effectively managed, did Dr. Castro began prescribing the Preludin on a monthly basis. After November, 1983, Dr. Castro saw A.S. on a monthly basis to monitor his medication. Preludin is the brand name for phenmetrazine hydrochloride, which is a sympathomimetic amine and Schedule II controlled substance. The Physician's Desk Reference (PDR) is compiled by drug companies and contains data on all drugs, including indications for use, contraindications, adverse side effects, and recommended dosages. The PDR states that the maximum safe dose of Preludin is one 75 milligram tablet per day. The PDR also reflects that Preludin is contraindicated with hypertension. Dr. Castro was treating A.S. for hypertension. While Dr. Castro was prescribing Preludin in dosages beyond those set forth in the PDR, his prescription was not inappropriate. According to Dr. Greer, prescribing Preludin three times a day is a dosage that would be within a medically safe range and would be within the range appropriate within a physician's professional practice. Additionally, that prescription and dosage, being monitored on a monthly basis for side effects, would be within the range of sound medical practice. The dosage prescribed by Dr. Castro is also within the appropriate range that would be used on a patient of this type who had hypertension, as long as the physician also follows the hypertension. Here, Dr. Castro prescribed medication for A.S.'s hypertension and, according to Dr. Greer, that medication and treatment was appropriate. Dr. Castro's records reflect that A.S. was not referred for any consultations with other specialists until November 20, 1986. According to Dr. Greer, waiting two and one-half years to refer a patient for consultation with a neurologist to confirm the diagnosis of narcolepsy would be inappropriate unless the doctor had gotten additional information to confirm the diagnosis. Here, Dr. Castro asserts that he did receive additional information in the form of telephone confirmation by Dr. Scales' physician's assistant which confirmed the diagnosis of narcolepsy. Dr. Castro did not record this in his medical records. Dr. Castro practiced medicine within the community standard in his diagnosis and treatment of A.S. His failure was in the lack of documentation throughout his treatment of A.S.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order, and therein: Dismiss Counts II, III, IV, and V of the Administrative Complaint. Find Elizer F. Castro, M.D., guilty of violating Section 458.331(1)(n), Florida Statutes, as set forth in Count I of the Administrative Complaint. Assess a fine in the amount of five hundred ($500) dollars. Order Elizer F. Castro, M.D., to attend and complete continuing medical education in the area of record keeping. DONE AND ENTERED this 17th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4106 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(2); 4(3); 5(4); 6 & 7(5-7); 8(7); 9(8); 10(8); 14(10); 15(11); 16(11); 17(11); and 18(12). Proposed findings of fact 11, 12, 13, and 19-23 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Clyde E. Wolfe, Esquire 1 Corporation Square, Suite B-10 St. Augustine, Florida 32086 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is charged under Chapter 39, Florida Statutes, to conduct background screenings on individuals employed by any of its providers of delinquency services or programs who are working with juvenile offenders in positions of special trust. The purpose of the background screening is to determine if the individual has committed an offense which would disqualify the individual from working in positions of special trust with juvenile offenders. Petitioner was employed by the Lakeland Marine Institute (LMI) on May 24, 1994, as a counselor. LMI is a step-down program for juvenile offenders being released from boot camps and detention centers. A large percentage of the juveniles coming through LMI are convicted of drug offenses. During 1994, LMI was providing delinquency service and programs for the Department of Health and Rehabilitative Services (HRS) in connection with juvenile offenders who came through its facility and, as such, was an HRS provider. Because Petitioner was working in a position of special trust with juvenile offenders at LMI he was required to undergo background screening. Petitioner's fingerprints were taken on May 24, 1994, and submitted to HRS for processing. It is not clear from the record if HRS conducted a background screening on Petitioner. In any event, HRS did not provide LMI with any results from Petitioner's background screening. Chapter 94-209, Laws of Florida, transferred certain responsibilities concerning juvenile offenders from HRS to the Department of Juvenile Justice, a newly-created department. On January 1, 1995, the Department began background screenings on all of its providers' employees who were working in positions of special trust with juvenile offenders on January 1, 1995. On June 1, 1995, LMI submitted to the Department a Request for Preliminary FCIC/NCIC and DHSMV Screening Check and a Request for Preliminary FAHIS Screening Check on Petitioner. As part of the screening process, Petitioner signed and filed with the Department an Affidavit of Good Moral Character. His signature on this standard form affidavit indicates that Petitioner had not been convicted of any drug offenses under Chapter 893, Florida Statutes. However, it does not appear that Petitioner was attempting to conceal his convictions because at the same time he disclosed those convictions in his application for employment. The FAHIS Screening Check was negative, in that no abuse history was found. Likewise, the results of the DHSMV Screening Check indicated that Petitioner's record was clear. Preliminary FCIC/NCIC Screening Check indicated that Petitioner had been convicted of possessing cocaine with intent to sell and the sale of cocaine, a second degree felony and a disqualifying offense. The screening check was rated as Unfavorable/Disqualifying. Petitioner's criminal record revealed that Petitioner had committed the following offenses: Possession of cocaine with intent to sell - March 28, 1991. Sale of Cocaine - March 28, 1991. Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes. Possession of cocaine with intent to sell - January 7, 1993. Sale of cocaine - January 7, 1993. Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes. Possession of cocaine with intent to sell - February 18, 1993. Sale of cocaine - February 18, 1993, Both of these offenses were in violation of Section 893.13, Florida Statutes, a second degree felony and a disqualifying offense under Section 39.076(3)(y), Florida Statutes. Originally, Petitioner was placed on probation for the offenses committed on March 28, 1991 However, when Petitioner committed the above listed offenses in 1993, probation was revoked. On June 10, 1993, Petitioner pled nolo contendere to all of the above offenses. Petitioner was adjudicated guilty on all counts and sentenced to a term of seven years on each count listed with each sentence to run concurrently with the other sentences. Additionally, Petitioner was placed on seven years probation on each count listed above with each term of probation to run concurrently with the other terms of probation. However, the terms of probation were to run consecutively to the sentences imposed. Petitioner freely admits that he was on drugs for a period of time before his incarceration in 1993, and that the offenses were committed for the purpose of paying for his drug habit and not as a means of making money. The offenses committed by Petitioner in 1991, were his first brush with the law, and at that time Petitioner was 38 years of age. Although the March 28, 1991, offenses involved the sale of cocaine within a 1000 feet of the Fort Meade Middle School, there is no evidence that Petitioner ever sold, or attempted to sell, illegal drugs to a minor. Petitioner served his time at Hardee Correctional Institution and Madison Correctional Institution. From the record it appears that Petitioner was eligible for early release and was released by the Department of Corrections (DOC) on February 8, 1994, and placed on probation. Petitioner began his rehabilitation while still incarcerated by DOC by participating in the DOC Drug Abuse Program and Prison Fellowship. Petitioner has continued his rehabilitation since being released from prison through his work at LMI, the church and the community. Since his release from prison, and during his tenure with LMI, approximately 15 months, Petitioner has gained the respect and support of his fellow workers and supervisors at LMI. Also, during his tenure with LMI, Petitioner has gained the respect and support of Department employees with whom he came in contact as a result of his work with juvenile offenders at LMI. Petitioner has complied with all conditions of his probation, including random drug testing with all reports showing negative results, and has shown a positive attitude toward community supervision while on probation. Since being placed on probation, Petitioner has gained the support and respect of the Correctional Probation Officers who handle his case. Since his release, Petitioner has not associated with the criminal element with whom he had association before his conviction. Since his release, Petitioner has gained the respect and support of the community of Fort Meade, specifically the religious and school community, for his work with children. During his tenure with LMI, Petitioner worked closely with children. Petitioner has counseled children and their parents without any problems. There is competent substantial evidence to establish facts to show that Petitioner has rehabilitated himself such that he will not present a danger to the safety or well being of children and that he is of good moral character so as to justify an exemption from disqualification, notwithstanding Petitioner's age when he committed the offenses or that the offenses are close in time to the request for exemption or that he has only served approximately two years and two months of a seven year probation and is still under supervised probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Juvenile Justice enter a final order granting Petitioner's request for an exemption from disqualification from employment in a position of special trust. RECOMMENDED this 23rd day of April, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5330J The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the Petitioner and the Department in this case. Petitioner's Proposed Findings of Fact. Petitioner's proposed findings of fact 1 through 9 are set forth more as argument than findings of fact. However, where a proposed finding of fact can be gleaned from the argument it has adopted in Findings of Fact 1 through 22, with the exception of Petitioner's argument in proposed findings of fact 1, 2, 5 and 6 that his background screening with HRS had been completed by HRS and was favorable but was being disregarded by the Department. There is no evidence that HRS completed this screening or that the Department had any knowledge of any results of such screening. Department's Proposed Findings of Fact. Proposed findings of fact 1 through 12 are adopted in substance as modified in Findings of Fact 1 through 22. Proposed findings of fact 13-15 are covered in the Preliminary Statement. COPIES FURNISHED: Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Phillip White, Pro se 1370 North Charleston Fort Meade, Florida 33841 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Respondent, Peter N. Brawn, M.D., committed violations of Chapter 458, Florida Statutes (2001), as alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on November 23, 2005, in DOH Case Number 2002-12896, as amended; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact Petitioner, the Department of Health (hereinafter referred to as the "Department") is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Peter N. Brawn, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 75202. Dr. Brawn is board-certified in pathology. Dr. Brawn's address at the times relevant to this proceeding was 525 Caroline Street, Key West, Florida 33040. Dr. Brawn's Status as a Dispensing Practitioner. At the times relevant to this proceeding, Dr. Brawn was registered with the Board of Medicine (hereinafter referred to as the "Board"), as a "Dispensing Practitioner." Dr. Brawn had informed the Department on March 25, 2002, that he did not dispense medical drugs for a fee, but also stated that he wished to remain on the dispensing practitioner register. He, therefore, was registered as a dispensing practitioner at the times relevant. The Department is statutorily required to conduct inspections at the offices of dispensing practitioners for the purpose of determining whether the practitioner is in compliance with the statutes and rules applicable to his or her dispensing practice. The Events of April 15-16, 2002. On or about April 15, 2002, Jaiser Figuereo, an investigator for the Department's Investigation Services Unit, traveled to Dr. Brawn's office to conduct an inspection of his dispensing practice. Dr. Brawn had no prior notice of the inspection. Upon arriving at Dr. Brawn's premises, which were located in a "typical Key West home," Investigator Figuereo entered an unlocked front gate and walked up the front porch to the front door. Finding the front door open, Investigator Figuereo entered the building where she found several ladies in a room who appeared to be accessing the internet at computer terminals. She identified herself to the ladies and asked to speak with Dr. Brawn. Shortly thereafter, a gentleman came downstairs and indicated he was Dr. Brawn. Investigator Figuereo verified Dr. Brawn's identity with his driver's license. Investigator Figuereo, who was new to her position, did not feel comfortable proceeding with the inspection alone because of her concern that the office was being used to dispense medications via the internet. Therefore, she told Dr. Brawn that she would return the following day to conduct the office inspection. After leaving the office, Investigator Figuereo returned to the hotel where she was staying with other investigators with whom she had traveled to Key West. Those investigators were employees of the Agency for Health Care Administration (hereinafter referred to as "AHCA"). Investigator Figuereo explained what she had seen at Dr. Brawn's office and requested assistance from fellow Investigators Evelyn Garrido-Morgan, Jose Rodriguez, and Paul Randall. On April 16, 2002, Investigators Figuereo, Garrido- Morgan, Rodriquez, and Randall drove to Dr. Brawn's office to conduct the inspection, where they were met by Dr. Brawn. As the inspection progressed, Investigator Figuereo, among other things, completed an AHCA Investigative Services Inspection Form for Dispensing Practitioners (hereinafter referred to as the "Inspection Form"). The Inspection Form lists 28 inquiries which investigators are to make during the inspection of a dispensing practitioner. The investigator is supposed to make a determination of and note on the form whether the 28 areas of inquiry are "satisfactory." Dr. Brawn's personal office was accessible by walking around the front porch of the house to the left side of the building. Sitting outside the door to his office was a refrigerator, which Dr. Brawn identified as the one he used to store medications which required refrigeration. The refrigerator, which had no visible means of being locked, could be accessed by anyone who entered the front gate and climbed the stairs to the porch. Investigators Figuereo and Garrido-Morgan found the inside of the refrigerator to be dirty and observed a foul smell about it. The following was found inside the refrigerator: (1) insulin, which requires refrigeration to remain safe and effective for patient use; (2) uncapped, unlabeled syringes containing an unidentified clear liquid; (3) a vial, which was leaking, containing a brown substance which appeared to be blood (this observation was not, however, proved); and (4) a substance that was described as either "spoiled food" or "fish or bait or something." When asked by Investigator Figuereo why he had stored the uncapped, unlabeled syringes in the refrigerator, Dr. Brawn responded that he could not otherwise dispose of them because he did not know where his "sharps container" was located. Upon entering Dr. Brawn's office, the investigators found it cramped in size, dusty, and messy. It did not appear that the office was air-conditioned and the atmosphere was described as "musty." Medications were stored on Dr. Brawn's desk, three shelves on the side of the office, and in a closet. Dr. Brawn's office was the only place the investigators found on the premises where non-refrigerated medications were being stored. The investigators observed that opened medicine bottles containing pills were scattered among boxes lying around the office. Uncontained pills were also found lying on a counter and Dr. Brawn's desk. Open manufacturer-type medicine containers were also found. Investigators Figuereo and Garrido-Morgan also found expired and unexpired medications stored mixed together in Dr. Brawn's office. The investigators found 19 boxes of expired "Baycol" during their inspection of Dr. Brawn's office. Baycol is a medication that was recalled by its manufacturer on August 8, 2001. The recall was supported by the Food and Drug Administration in a publication bearing the same date. Because of the recall, the investigators confiscated the 19 boxes of medication. Following the removal of the Baycol from Dr. Brawn's office, the medication was transferred to the Department's evidence custodian. Investigator Garrido-Morgan gathered the remaining expired medications found during the inspection and, while accompanied by Dr. Brawn, proceeded to dispose of them down a toilet within the office. Of the 28 areas of inquiry on the Inspection Form completed by Investigator Figuereo during the inspection of Dr. Brawn's office, it was found that 15 of the 28 areas of inquiry were not satisfactory. Petitioner's Exhibit 1. Relevant to the charges of the Administrative Complaint, as amended, the following areas of inquiry were determined to be unsatisfactory: . . . . Generic drug sign displayed. {465.025(7), F.S.}{64B8-8.011(3)(b)10, F.A.C.} Stock medications appropriately labeled for dispensing from a licensed manufacturer. {499.007(2), F.S.} . . . . Outdated medications removed from stock. {499.007(2), F.S.}{64B16-28.110, F.A.C.} Medications requiring refrigeration appropriately stored. {64B16-28.104, F.A.C.} . . . . Patient record contains medical history required for counseling. {64B16-27.800, F.A.C.} Controlled substances securely maintained and stored in a locked cabinet. {21 CFR 1301.75} . . . . 20. Controlled substance prescriptions provide practitioner's name/address and DEA number. {893.04(1)(c)2, F.S.} . . . . 25. Controlled substance biennial inventory conducted. {893.07(1)(a), F.S.} Dr. Brawn did not display in a prominent, clear, and unobstructed place at or near where prescriptions were being dispersed by him, the notice required by Section 465.025(7), Florida Statutes. Dr. Brawn's office contained medications which were loose and, therefore, not properly labeled. The syringes stored in the refrigerator lacked proper labels, required by Section 499.007(2), Florida Statutes. There were expired prescription medications (outdated) stored, unquarantined, in Dr. Brawn's office inconsistent with Florida Administrative Code Rule 64B16-28.110. The medications stored within Dr. Brawn's refrigerator were not properly stored. The refrigerator was unlocked and easily accessible and unsanitary. The only patient records maintained by Dr. Brawn, as he admitted during the investigation, consisted of a copy of an internet questionnaire completed by patients and submitted via computer. The questionnaire lacked information about a patient's date of birth, age, gender, medical and drug history, and new and refilled prescriptions received from Dr. Brawn's office. The evidence failed to prove that Dr. Brawn had any controlled substances on the premises. The only direct testimony on this issue was that of Ms. Figuereo who indicated that she saw unsecured controlled substances. She did not, however, indicate what controlled substances or how she identified them, or where she saw the medications. Given this lack of specificity and testimony that Dr. Brawn had indicated he had no controlled substances, it is found that the Department failed to prove there were any controlled substances found during the inspection. It cannot, therefore, be found that Dr. Brawn did not use a proper prescription form for controlled substances. While the form provided to the investigators was not adequate, the evidence failed to prove that Dr. Brawn used that form to prescribe controlled substances. Dr. Brawn admitted that he did not have a biennial inventory of controlled substances, stating that he was not aware one was required. At the conclusion of the inspection, Dr. Brawn signed the Inspection Form which had been completed by Investigator Figuereo. Dr. Brawn was told that the investigators would return in 30 days to see if the deficiencies noted had been rectified. Upon returning the Dr. Brawn's office, Ms. Figuereo was told that Dr. Brawn was out of town.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine finding that Peter M. Brawn, M.D., has violated Section 458.331(g), Florida Statutes (2001), as described in this Recommended Order, issuing a reprimand of Dr. Brawn's license to practice medicine, requiring that he pay an administrative fine of $4,000.00, and requiring that he attend appropriate continuing education classes in number and of a nature determined by the Board. DONE AND ENTERED this 28th day of December, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 2006. COPIES FURNISHED: April Dawn M. Skilling Warren James Pearson Assistants General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Shawn M. Ellsworth, Esquire Ellsworth Law Firm, P.A. 404 Washington Avenue, Suite 750 Miami Beach, Florida 33139 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. M. Rony François, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact At all times relevant hereto, Eric A. Baum was a licensed physician in the State of Florida having been issued License No. ME 0027880. He is board certified as a psychiatrist and board eligible in internal medicine (Exhibit 3). Respondent has never established an active practice in Florida, although in the latter part of 1985 he maintained an office at his residence and later, for approximately 2 months, in a downtown office building in Sarasota. Between August 19, 1985 and December 30, 1985, Respondent prescribed Bentyl, Ritalin, Fiorinal, Cylert, Urecholine and Laradopa to "Terri Leigh", generally in quantities of 100 for Ritalin (10 mg.) and Fiorinal (Tab). During this period, 1250 10 mg. of Ritalin and 1550 tabs of Fiorinal were prescribed (Exhibit 14). Terri Leigh is an alias used by Respondent for his wife, Terri Baum (Exhibit 7). Ritalin is a Class II controlled substance, Fiorinal is a Class III controlled substance and Cylert is a Class IV controlled substance. During part of this time until delivery on October 21, 1985, Terri Baum was pregnant. Medical records prepared by Respondent for Terri Baum would indicate the medication was prescribed for headaches and depression. Both Ritalin and Fiorinal are contraindicated during pregnancy. Between July 30, 1985 and December 30, 1985, Respondent wrote prescriptions for "Pam Leigh" for 200 Fiorinal, 600 Cylert (37.5 mg.) and 500 Ritalin (10 mg.), (Exhibit 10). Pam Leigh is an alias for Respondent's then 16 year old daughter, Pam Baum. Respondent contends that Pam is hyperkinetic and suffered from migraine headaches, and the medication was prescribed for those diagnoses. However, Pam denies ever taking any drugs or having any illness requiring such medication. Mark Baum, Pam's twin brother, denies that Pam is or was hyperkinetic or that he ever saw her take any medication. This latter evidence is deemed to be more credible than Respondent's testimony (Exhibit 3). The quantity of controlled substances prescribed for Terri and Pam by Respondent during the periods above-noted are greater than should be prescribed for the symptoms noted and were inappropriate. On April 15, 1987, Respondent pleaded nolo contendere to the offense of obtaining drugs by fraud in the Circuit Court of Sarasota County, Florida, adjudication of guilt was withheld, and he was placed on probation for one year with certain terms (Exhibit 11). At the time Respondent's residence (and office) were searched by police pursuant to a search warrant seeking patient's records for Terri and Pam Baum, those records could not be found, and Respondent denied knowledge of their whereabouts. The records (Exhibits 6 and 7) were subsequently produced by Respondent. It is likely that Respondent prepared Exhibits 6 and 7 subsequent to the arrest of Terri Baum shortly before the search was conducted. Subsequent to the arrest, Terri Baum and Pam Baum on February 26, 1986 had an appointment with Dr. Sayers Brenner, M.D., a psychiatrist, at which Terri requested Ritalin, Cylert and Fiorinal for herself and Ritalin and Cylert for Pam. Dr. Brenner, at the time unaware of Terri's arrest, prescribed a 10-day supply of these drugs and told Terri that he would not continue to supply drugs to her and that he did not treat adolescent patients. Although an appointment was made for a subsequent visit in two weeks, neither Terri nor Pam returned. Although no charges were made in this regard, evidence was presented in Exhibit 8 that Respondent wrote prescriptions for himself for Lasix, Lanoxin and Urecholine. No evidence was submitted from which a determination can be made that Respondent has a drug dependency problem, although the evidence is clear that if Respondent does not have a drug dependency problem, his wife does, and that prescriptions were written by Respondent to several fictitious persons to support this dependency.
The Issue At issue in this case is whether the Respondent's license as a physician should be disciplined for alleged violations of Section 458.331(1), Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Petitioner is the state department responsible for regulating the practice of medicine in Florida pursuant to Sections 20.165 and 20.43, and Chapters 456, 458, Florida Statutes. Respondent is Kanwaljit S. Serai, M.D. At all times material to this matter he has been a licensed physician in the State of Florida, having been issued license No. ME 0042038. His last known address on record with Petitioner is 5054 Crawfordville Road, Tallahassee, Florida 32310. Respondent was born and educated in India, receiving his medical and surgical credentials in that country. He came to the United States in 1979. He has been licensed in the State of Florida since 1983. Respondent is Board-certified in the area of family practice. Demerol is a Schedule II narcotic that is indicated for relief of moderate to severe pain. Demerol carries a high potential for abuse or addiction. Dilaudid is a Schedule II narcotic that contains hydromorphone. Hydromorphone is a powerful narcotic analgesic indicated for the relief of moderate to severe pain, and carries a high potential for abuse and addiction. Dilaudid is a heavy- duty painkiller that should only be used in terminal illnesses. Lorcet contains Hydrocodone bitartrate and acetaminophen which, when mixed together, is a Schedule III controlled substance. Lorcet is indicated for the relief of moderate to moderately severe pain. Lorcet has a potential for abuse and addiction. Lortab contains Hydrocodone bitartrate and acetaminophen (Tylenol) which, when mixed together, is a Schedule III controlled substance. Lortab is indicated for the relief of moderate to moderately severe pain. Lortab has a potential for misuse, abuse, dependency, and in the person who is prone to addiction, it can contribute to and accelerate his addiction. Methadone is a Schedule II controlled substance. Methadone is indicated for the relief of severe pain, for detoxification treatment in cases of narcotic addiction, and for the temporary maintenance treatment of narcotic addiction. Methadone can produce drug dependence of the morphine type. Psychological dependence, physical dependence, and tolerance may develop upon repeated administration of methadone. Oxycontin contains Oxycodone, a Schedule II controlled substance. Oxycodone is a narcotic analgesic indicated for the relief of moderate to moderately severe pain and carries a high potential for dependency, producing and feeding into the addiction of a person who has an addictive behavior. Percocet contains Oxycodone, a Schedule II controlled substance. Oxycodone is a narcotic analgesic indicated for the relief of moderate to moderately severe pain and carries a high potential for abuse and dependence. Valium contains Diazepam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Diazepam is a benzodiazepine anxiolytic (anti-anxiety drug) and muscle relaxant. The abuse of Diazepam can lead to physical or psychological dependence. Vicodin contains Hydrocodone bitartrate, a Schedule III controlled substance. Hydrocodone is a narcotic analgesic indicated for the relief of moderate to severe pain on a short-term basis. Vicodin is a highly addictive medication. Xanax contains alprazolam, a Schedule IV controlled substance. Alprazolam is a benzodiazepine anxiolytic, and the abuse of alprazolam can lead to physical and psychological dependence. Xanax is indicated for the short-term relief of symptoms of anxiety and is highly addictive. On January 20, 1999, Patient L.D., a 27-year-old female, presented to Respondent at his Family Practice clinic located at 5054 Crawfordville Road, Tallahassee, Florida (Family Practice clinic), with complaints of chronic migraine headaches. Patient L.D. informed Respondent that a neurologist had previously treated her for the headaches through prescription of Lortab 10 mg, 120 tablets per month, and Demerol 100 mg, four injectable per month. Respondent took a minimal history and physical and did not obtain an adequate history regarding Patient L.D.’s substance abuse and her prior experience with narcotic analgesics. Respondent failed to perform a complete neurologic evaluation of Patient L.D. He should have, but did not look in her eyes to see if there was any indication that she may have had swelling in the brain. Also, Respondent should have examined her heart and lungs in regard to possible neurological problems. On January 20, 1999, Respondent prescribed for Patient L.D. Lortab 10 mg, 120 tablets and Demerol 100 mg injectable, without sufficient medical justification. Respondent continued to prescribe these medications through February 1999. On March 8, 1999, Respondent admonished Patient L.D. for obtaining prescriptions from her neurologist, in addition to the prescriptions that she was obtaining from Respondent, but continued Patient L.D. on Lortab and Demerol. On March 11, 1999, Patient L.D. presented to Respondent with multiple symptoms of narcotic withdrawal. Respondent began prescribing Methadone 5 mg, to be taken four at a time, four times a day (80 mg/day) for the migraine headaches. In general, methadone is not an appropriate drug to use for migraine headaches. Methadone is primarily used for cancer patients or drug-addicted patients. Methadone patients have to be monitored carefully and there must be an abundance of documentation detailing: evidence of opioid toxicity; functional status, both physical and psychosocial; and evidence of aberrant behavior, such as escalating the dose or frequent “loss” of prescriptions. Respondent’s medical records do not contain this type of documentation on Patient L.D. Respondent continued to prescribe Methadone in the same amounts from March 11, 1999, through August 2001. Respondent prescribed an excessive and inappropriate amount of Methadone to this patient. In addition, while prescribing the Methadone, Respondent continued prescribing Demerol to Patient L.D. This prescribing practice was inappropriate. Respondent was not monitoring Patient L.D. on a regular basis or attempting to wean her off of Methadone. Respondent prescribed medications in an inappropriate and excessive manner to Patient L.D. Respondent failed to practice medicine within an acceptable standard of care for Patient L.D. in regard to his prescribing practice, his failure to obtain an adequate history and physical, his failure to obtain appropriate tests, and obtain appropriate referrals. Respondent failed to keep medical records that adequately documented the course and scope of treatment for Patient L.D. in regard to his prescription practice, the history and physicals for the patient, as well as the decision to not refer this patient out to the appropriate specialists in pain management and addiction therapy. On May 6, 1999, Patient V.Y., a 30-year-old female presented to Respondent at his Family Practice clinic complaining of abdominal pain and exhibiting hepatomegalia (enlarged liver) secondary to Hepatitis C. Hepatitis C is a chronic disease which rarely causes pain. Patients with Hepatitis C are at-risk for primarily liver cancer, and certainly an enlarged liver that is painful should alert one to the possibility of cancer or other conditions. Without any further history or examination, Respondent prescribed Dilaudid 2 mg, two times a day. On November 17, 1999, Patient V.Y. presented to Respondent with the continued pain. Without further history and only documenting “same” for the diagnosis, Respondent increased Patient V.Y.’s prescription to Dilaudid 4 mg, two times a day, quantity 20. On November 24, 1999, Patient V.Y. presented to Respondent with the continued pain. Without further history and only documenting “same” for the diagnosis, Respondent prescribed Dilaudid 4 mg, two times a day, quantity 20. On December 1, 1999, Patient V.Y. presented to Respondent with continued complaints of pain. Without further history and only documenting “same” for the diagnosis, Respondent prescribed Dilaudid 4 mg, two times a day, quantity 20. Respondent also noted “pending f/u with We Care.” We Care is a clinic in Tallahassee that assists with examinations and tests. On December 8, 1999, Patient V.Y. presented to Respondent with the continued pain. Without further history or examination, Respondent prescribed the normal dosage of Dilaudid and, in addition, prescribed Valium 10 mg, two times a day. The only added note was “stressed out job divorce holidays.” The record also notes that there was no follow-up contact with We Care. On January 5, 2000, Patient V.Y. presented to Respondent again for treatment. Respondent’s notes indicated that We Care rejected the patient without any explanation concerning the rejection. Respondent prescribed Dilaudid 4 mg, quantity 20. On June 23, 2000, Respondent noted in his record that the patient could not cope with a reduction in drugs. Respondent then increased the amount of drugs he prescribed for Patient V.Y., prescribing Dilaudid and Valium with increases in Dilaudid until July 2001. On May 1, 2001, Patient V.Y. was admitted to the Emergency Room of Tallahassee Memorial Hospital (TMH) with an overdose of Dilaudid and Valium. The following notes are contained in TMH’s medical records: ". . .suggest d/c dilaudid for pain control of hepatitis – not indicated and cleared by liver" "She should NOT be on chronic narcotics for hepatitis pain control" "Dilaudid is not indicated for HepC/Cirrhosis especially since it is cleared by the liver." Respondent should have never prescribed Dilaudid and Valium to Patient V.Y. Both Dilaudid and Valium are detoxified through the liver. If the liver is having problems, as was evident with this patient, it was contraindicated to prescribe these drugs to her because her liver was damaged. Respondent did not appropriately treat the Hepatitis C for Patient V.Y. Although Respondent had previously referred Patient V.Y. for a gastroenterology study and for an ultrasound due to her enlarged, painful liver, he did not follow up on this referral or test and simply continued to prescribe the same medication for this patient. During the treatment and care of Respondent for Patient V.Y., Respondent was having a sexual relationship with her. Respondent prescribed medications inappropriately and excessively to Patient V.Y. Respondent did not practice medicine within the acceptable standard of care for Patient V.Y. by his manner of prescribing medication, his incomplete physicals and histories, as well as his inappropriate sexual relationship with the patient. Respondent failed to keep appropriate medical records for Patient V.Y. and failed to adequately document the course and scope of treatment in regard to the prescription practice, his treatment of the Hepatitis C and liver problems, his decision not to seek appropriate referrals, as well as his failure to follow up or order appropriate tests. On May 3, 1999, Patient S.W., a 39-year-old female with a history of a mechanical soft tissue injury of the cervical and lumbar spine with a nine percent permanent impairment rating, presented to Respondent at his Family Practice clinic with back, neck, and head pain. Without rendering a complete history or physical examination, Respondent prescribed Dilaudid 4 mg, quantity 10, along with other medications. On June 1, 1999, Patient S.W. presented to Respondent with the same findings again and Respondent, without rendering a complete history or physical examination, prescribed Lortab 5/500 mg, quantity 15. On December 11, 2000, Patient S.W. presented to Respondent with the same findings. Respondent prescribed Dilaudid and Xanax. Respondent’s notes indicated that the patient did not get the Magnetic Resonance Imaging test (MRI) that he had recommended because her car broke down. On May 3, 2001, Patient S.W. finally presented for an MRI of her back and neck. This test revealed a bulging disc at L5-S1 and one at C6-7. However, these are common findings and were not the source of her pain. Patient S.W. continued to see Respondent until August 2001. During this period of time, Respondent continued to prescribe Dilaudid and Lortab, and began prescribing, along with other medications: Xanax .5 mg with a gradual increase to 1 mg., Lorcet Plus, Percocet 10/650 mg, and Oxycontin 40 mg. Patient S.W. was clinically stable during the treatment and care of Respondent; however, medications were adjusted and changed and increased without adequate explanation. The medications prescribed by Respondent to Patient S.W. were excessive amounts of narcotics for a condition that did not require that much pain medication. Respondent never rendered a complete history or physical examination and did not perform sufficient testing and appropriate referrals on this patient. Respondent should have referred Patient S.W. to a physical therapist and/or pain management center rather than trying to take care of her himself. During the treatment and care of Respondent for Patient S.W., Respondent was having a sexual relationship with her, which Respondent has admitted to in the prehearing stipulation. This relationship was inappropriate and Respondent fell below the applicable standard of care by engaging in this sexual relationship. Respondent prescribed medications inappropriately and excessively to Patient S.W. Respondent did not practice medicine within the acceptable standard of care for Patient S.W. by his manner of prescribing medication, his incomplete physicals and histories as well as his inappropriate sexual relationship with the patient. Respondent failed to keep appropriate medical records for Patient S.W. adequately documenting the course and scope of treatment in regard to his prescription practice, the history and physicals for the patient, as well as the decision to not refer this patient out to the appropriate specialists. On June 10, 1999, Patient J.M., 37-year-old male, presented to Respondent at his Family Practice clinic for a burn on his forearm. Respondent appropriately treated this condition. There is an unsigned note in Respondent’s records dated June 30, 1999, about this patient running a “scam.” The scam apparently involved the patient attempting to get narcotic medications at every clinic in town. Patient J.M. approached the Leon County Sheriff's Office (LCSO) with a tip about Respondent prescribing narcotics without adequate justification. On January 20, 2000, Patient J.M., now an undercover informant with LCSO, presented to Respondent at his Family Practice clinic with a history of a narcotic addition. Without any counseling or a referral, Respondent prescribed Vicodin, quantity 20. On January 26, 2000, Patient J.M. presented to Respondent with the same findings as before. Respondent proceeded to prescribe Vicodin, quantity 20, without any counseling or a referral and despite the prior note dated June 30, 1999. On February 3, 2000, Patient J.M. presented to Respondent with the same findings as before. Respondent proceeded to prescribe Vicodin, quantity 20, without any counseling or a referral and despite the note in his file dated June 30, 1999. On February 19, 2001, Patient J.M. presented to Respondent with a tooth abscess. Respondent treated the problem and prescribed Vicodin for pain. Although Respondent did not violate the standard of care on this visit, the prescribing of Vicodin to a known drug addict was unwise. Respondent did not do a complete history, physical examination, or seek proper testing or consultation of Patient J.M. before prescribing Vicodin. Respondent should have referred Patient J.M. to an addiction specialist. The medical records do not justify prescribing Vicodin to a patient who was already addicted to it. Respondent prescribed medications inappropriately and excessively to Patient J.M. Respondent did not practice medicine within the acceptable standard of care for Patient J.M. by his manner of prescribing medication, his incomplete physicals and histories for each of the visits detailed above except the June 10, 1999, and February 19, 2001 visits. Respondent failed to keep appropriate medical records for Patient J.M. and failed to adequately document and justify the course and scope of treatment accorded to this patient. On February 5, 2000, Officer Butler/Patient L.P., a 31-year-old female and undercover officer with LCSO, completed a brief history and physical form for Respondent. She was there as part of her official duties. On February 24, 2000, Officer Butler/Patient L.P. presented to Respondent at his Family Practice clinic with a history of an addiction to pain pills. There was no nurse present during Respondent's examination of this patient. The extent of the physical examination of Officer Butler/Patient L.P. was that Respondent took a light and made an “S” shape across her face. He lifted her shirt and listened to her heart then took the palm of his hand and rubbed it across her breast, and then checked her abdomen. Respondent then proceeded to kiss this patient. Without further examination or medical history, Respondent noted “Drug dependence” in Officer Butler/Patient L.P.’s medical record and prescribed Vicodin ES, one tablet, three times a day for one week for the patient. On March 9, 2000, Officer Butler/Patient L.P. presented to Respondent for additional Vicodin pills. At this visit, Respondent again checked Officer Butler/Patient L.P.’s heart and lungs and told her to lift her shirt. When she did not lift it high enough, he lifted it higher himself. Officer Butler/Patient L.P. indicated to Respondent that she had received 21 Vicodin off the street the past week. There was no nurse present during this examination. Respondent kissed Officer Butler/Patient L.P. and silently mouthed to Officer Butler/Patient L.P. if she wanted to make love. She did not respond to this message. Respondent then, without a complete history and physical examination, and only indicating “Same” in the patient's medical record, prescribed Vicodin ES, quantity 19. Again, on March 23, 2000, Officer Butler/Patient L.P. presented to Respondent for additional Vicodin pills. She indicated to Respondent that she had received 20 Vicodin off the street during the past week. There was no nurse present during this examination. Respondent inquired about meeting Officer Butler/Patient L.P. outside of the clinic on a personal basis. Again, without a complete history and physical examination, and only indicating “Same” in Officer Butler/Patient L.P.’s medical record, Respondent prescribed Vicodin ES, quantity 20, during this visit. During the time Officer Butler/Patient L.P. was under the treatment and care of Respondent, there was never a referral to a pain management specialist or drug addiction or rehab clinic. Notably, Officer Butler/Patient L.P. presented to Respondent with no alleged chronic pain, only her written statement that she was a drug addict. As a result, Respondent launched into his own self-prescribed treatment plan to reduce Officer Butler/Patient L.P. from her dependency, a task which should be performed under the jurisdiction of a licensed treatment center. Respondent’s medical records for Officer Butler/Patient L.P. included a very limited history and physical, no blood work completed, no prior records, an incomplete history regarding why she was addicted or what brought her to the point of addiction, and no explanation as to why she was drug-dependent. There was no legitimate purpose or justification for prescribing Vicodin to Officer Butler/Patient L.P. Respondent made sexual advances towards Officer Butler/Patient L.P. He inappropriately touched and kissed her. Also, Respondent suggested to Officer Butler/Patient L.P. that they have sex. Respondent has admitted to having a sexual relationship with Officer Butler/Patient L.P. in the prehearing stipulation form. Respondent prescribed medications inappropriately and excessively to Officer Butler/Patient L.P., and did not practice medicine within the acceptable standard of care. This is exemplified in regard to Officer Butler/Patient L.P. by Respondent's manner of prescribing medication, his incomplete physicals and histories, as well as his inappropriate sexual relationship with the patient. Respondent failed to keep medical records that adequately documented the course and scope of treatment for Officer Butler/Patient L.P. This is exemplified by Respondent's prescription practice, the history and physicals for this patient, as well as the decision to not refer this patient out to the appropriate specialists (pain management and addiction specialists). On January 3, 2002, Respondent presented to a Physician Recovery Network (PRN) evaluator as a self-referral. This evaluator was Barbara Stein, M.D. The PRN is the impaired practitioners program for the Board of Medicine, pursuant to Section 456.076, Florida Statutes. PRN is an independent program that monitors the evaluation, care and treatment of impaired healthcare professionals. PRN oversees random drug screens and provides for the exchange of information between the treatment providers, PRN, and the Department for the protection of the public. Raymond M. Pomm, M.D., a Board-certified psychiatrist and addictionologist, is the medical director of the PRN. Dr. Pomm is charged with responsibility for the oversight of the program and documentation of compliance and noncompliance with PRN monitoring contracts. During the evaluation with Dr. Stein, Respondent admitted his inappropriate relationships with Patients V.Y. and S.W. Respondent was advised that a doctor-patient relationship was not being formed and that any conclusions or results from the evaluation would be sent to the PRN. Respondent underwent various tests, including, but not limited to, the Minnesota Multiphasic Personality Inventory-2 and the Millon Clinical Multiaxial Inventory-III tests. Respondent was defensive and did not provide full disclosure of his situation on these tests. The Diagnostic Statistical Manual, Fourth Edition (DSM- IV) is the guidebook that all mental health professionals refer to when they are applying clinical information to criteria, diagnostic criteria, and rendering diagnoses. Utilizing the DSM- IV, Dr. Stein opined that Respondent had antisocial and narcissistic personality traits and could not practice with skill and safety to patients at this time. Dr. Stein opined that, although Respondent does not perceive that he has a problem, Respondent should seek treatment. The treatment should be in an inpatient professional boundary violation program. Then, Respondent should seek outpatient weekly-to-biweekly cognitive behavioral therapy geared towards sexual offenders, professional boundary violators and personality disordered individuals with a licensed PRN-approved provider for at least two years. He should also receive a series of courses on professional boundaries and be re-assessed one year after treatment is initiated to determine whether he is safe to practice medicine. Dr. Stein opined that a PRN contract was premature because Respondent has no conception whatsoever that he has a problem. Following this evaluation by Dr. Stein, Respondent was seen during the period March 13, 2002, to April 5, 2002, by Thomas Hauth, M.D. Dr. Hauth’s final diagnosis for Respondent establishes that there were no diagnoses under any of the Axes, which register psychiatric or psychological problems. Dr Hauth opined that Respondent could return to practice under appropriate treatment. Respondent has seen Mr. Andrew Miller, a licensed social clinical worker, during the period April 10, 2002, through the date of the final hearing. Respondent has been receiving supportive treatment, as opposed to remedial treatment. The PRN is not aware of Respondent’s treatment with Mr. Miller. In addition, Respondent did not comply with any of the other recommendations made by Dr. Stein. Although Respondent sought help from Mr. Miller, he did not contact the PRN to seek approval of this therapy. In fact, after the initial evaluation by Dr. Stein and supplying the report from Dr. Hauth, Respondent had no other dealings with the PRN. Dr. Pomm's testimony also establishes a diagnostic concern regarding Respondent. If there were no diagnoses on Axis I or II, then there is no psychiatric condition and, in the case of Respondent, one is dealing strictly with a predatory sexual violator. Dr. Pomm's testimony further establishes that such an individual should be dealt with in a legal sense without involvement from a psychiatric point of view. Respondent can not practice medicine with skill and safety at this time. Further, he is not an appropriate candidate for the PRN program because of his diagnoses, or lack thereof, and his lack of insight and motivation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the Recommended Range of Penalty under Rule 64B8-8.001(2), Florida Administrative Code, and Aggravating and Mitigating Circumstances under Rule 64B8-8.001(3), Florida Administrative Code, it is RECOMMENDED that the Board enter a final order finding Respondent guilty of the charges set forth in the Administrative Complaint and revoking Respondent’s license. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of March, 2003. COPIES FURNISHED: Steven R. Andrews, Esquire Andrews & Walker, P.A. 822 North Monroe Street Tallahassee, Florida 32303-6141 John E. Terrel, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue to be resolved in this proceeding is whether the Board's disciplinary policy on violation of its drug-free workplace policy is an invalid unpromulgated rule.
Findings Of Fact The Respondent, Patricia Gadson, age 51, was employed as a department secretary by Petitioner, the Escambia County School Board. She worked for the School Board of Escambia County from April 12, 1968, through January 27, 1998.1 She was employed by the Board for twenty-nine years and nine months. Throughout this period of time, Ms. Gadson worked as a school or administrative secretary at various locations throughout the school system. Prior to 1994, Ms. Gadson was a successful employee who received good evaluations of her work. However, sometime prior to January, 1994, several departments were consolidated as a result of downsizing. Ms. Gadson was assigned as the sole administrative secretary for six departments working for four different supervisors. Ms. Gadson found her new job very stressful. The stress resulted in her missing work frequently due to illness and medical treatment. After being examined by her own and the School Board's psychiatrists, Ms. Gadson was diagnosed with depression and took a six-week leave of absence to recuperate. She was not involved with drugs at this time. However, sometime in 1996, approximately two years before her discharge in 1998, Ms. Gadson was introduced to crack cocaine by her sister. She did not refuse the drug and eventually became addicted. She used the drug with full knowledge of the Board's drug-free workplace policy and its policy of zero tolerance for such use. As a result of her addiction, Ms. Gadson's life spiraled downward. She had increased absences from work and deteriorating job performance. In fact, her supervisors had already decided to terminate her for her poor performance. However, her supervisors recognized that she was exhibiting the symptoms of someone suffering from substance abuse and instructed her to take a drug test on November 3, 1997. Ms. Gadson fully cooperated in taking the test. On the way home, Ms. Gadson volunteered to Dr. Larry Reed, one of her supervisors, that the test would be positive. The test came back positive for crack cocaine since Ms. Gadson had last smoked crack on November 2, 1997, the day before her drug test. As a result she was terminated on January 27, 1998, retroactive to December 5, 1997, for violation of the School Board's drug-free workplace policy and for having tested positive for an illegal drug. Ms. Gadson has not smoked crack since November 2, 1997. With the assistance of Dr. Reed, her supervisor, Ms. Gadson was admitted to an out-patient rehabilitation program at the Pavilion Chemical Dependency Hospitalization Program on November 12, 1997. She was discharged from that program on November 26, 1997. She continued the recommended program of treatment in the Aftercare Program until approximately February 1998. She stopped attending the aftercare program in order to care for her grandmother who is an invalid. Ms. Gadson is willing to voluntarily undergo regular drug testing in order to demonstrate her continued abstinence should she be reinstated. The School Board maintains and strictly follows a "zero tolerance" policy for use of illegal drugs. When an employee or student is found to have used illegal drugs, they are automatically terminated or expelled after exhaustion of any due process procedures available irrespective of any mitigating factors. The discipline which would be imposed on an employee for violation of the Board's drug policy was set forth in a memo from the superintendent. The memo was given to all employees, including Ms. Gadson. Additionally, the drug policy was made part of an employee's contract. This policy was applied to Ms. Gadson in this case. The School Board has not adopted the disciplinary part of the drug policy as a rule pursuant to Section 120.54, Florida Statutes (1997). However, the Board has adopted a disciplinary rule and has incorporated that rule in the contract it has with the union. The zero tolerance policy is generally applicable to all employees and, as stated in the School Board's answer, it implements the School Board's drug-free workplace policy, authorized under Chapter 440, Florida Statutes, and School Board Rule 6Gx17-2-62. Indeed, the very intent of the zero tolerance rule is to announce to all concerned that the sole penalty for illegal drug use is termination. Illegal drug use in a school setting is a serious misconduct. Such behavior in this instance, the Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Escambia County Civil Service Board and the collective bargaining agreement for Escambia County. Therefore the School Board's zero tolerance drug use policy is already implemented by Board rule. The rule adequately defines the discipline imposed for employee misconduct and need not define specific instances which warrant termination of any other type of discipline. Respondent's use of cocaine violated the Board's policy and her employment contract. The District has consistently terminated employees found in possession of or using controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed with one exception related to arbitration. Violation of the Board's drug-free workplace program constitutes cause for termination. Additionally, even without the Board's zero tolerance policy, the use of crack cocaine over an extended period of time by a school employee which causes the employee's performance to fall below acceptable levels constitutes cause for termination. Therefore, superintendent's recommendation for termination of Respondent should be upheld.
