The Issue Whether Petitioner's medical license should be reinstated.
Findings Of Fact Stipulated Facts By Final Order issued in Case No. 92-011898, filed February 16, 1995, Respondent adopted a consent agreement. The Administrative Complaint in the case charged Petitioner with violations of Subsections 458.331(m)(q) and (t), Florida Statutes. The Final Order placed Petitioner on probation for a period of 3 years under the indirect supervision of another licensed physician, and imposed reporting requirements and review of medical records. The Final Order also required Petitioner to pay a fine of $5,000, to be paid in installments; complete five hours of continuing medical education in risk management and 10 hours of continuing medical education (hereinafter "CME") in pain management prior to February 16, 1996; complete a medical records course offered by the Florida Medical Association (hereinafter "FMA course") and a course on prescription drugs offered by the University of South Florida (hereinafter "USF course") during the first year of probation. Finally, Petitioner was restricted concerning the prescription of Schedule II controlled substances. By correspondence dated February 17, 1995, Petitioner was notified that his first appearance before Respondent's Probation Committee (the Committee) was scheduled for March 16, 1995. Petitioner was reminded that he could not practice medicine until his supervising physician (hereinafter "monitor") was approved. By separate correspondence dated February 17, 1995, Petitioner was provided with brochures for the USF and FMA courses. Petitioner was advised that the USF course fills up quickly. On March 10, 1995, Pauline Gray, M.D., notified the Agency for Health Care Administration (AHCA) that she would serve as Petitioner's monitor. On March 16, 1995, the Committee met. Petitioner advised the Committee that Dr. Gray was ill and unable to attend the meeting, although her appearance was a condition of the Final Order. Petitioner acknowledged that he had been practicing medicine, although his monitor had not been approved; Petitioner further acknowledged receipt of the February 17, 1995 correspondence advising him he could not practice without an approved monitor. Petitioner was advised by the Committee to cease practicing until a monitor was approved. On March 29, 1995, Dr. Gray advised the Department that while she had been ill, she had not stopped practicing, and continued to be willing to serve as Petitioner's monitor. On March 31, 1995, the Department advised Petitioner that his first installment payment on his fine was delinquent. On April 3, 1995, Petitioner advised an AHCA investigator that he did not recall being told to cease practicing, and acknowledged that he had continued to practice after the Committee meeting. Petitioner suggested that his need for a hearing aid could cause confusion. On April 6, 1995, the Department acknowledged receipt of Petitioner's sample prescription form for Schedule II controlled substances, and was again reminded that he could not practice medicine until his monitor was approved. On April 10, 1995, the Department by correspondence again advised Petitioner to cease practice until his monitor was approved; at the request of Respondent, Petitioner was asked to submit an explanatory letter from Dr. Gray concerning her illness and her ability to monitor Petitioner. At the May 18, 1995 meeting of the Committee, Dr. Jeffrey Brooks was approved as Petitioner's monitor. On May 30, 1995, the Board issued its order clarifying the terms of Petitioner's probation, advising that monitor reports were to be made on a quarterly basis. On March 14, 1996, Petitioner was granted an extension of time to complete his CME requirements. On March 20, 1996, Petitioner was provided with sources for the required CME. On March 22 and April 1, 1996, the Department requested immediate submission of three delinquent reports from Petitioner. On April 16, 1996, a Final Order in Case No. 95-13102 was entered. The Administrative Complaint charged that Petitioner practiced medicine without a monitor in violation of the previous Final Order. In this Final Order, Petitioner was placed on six months' suspension, with the suspension stay conditioned on his compliance with the Final Order issued in Case No 92-01898. The Final Order also imposed an additional fine of $1,000.00, due on June 16, 1996, and required Petitioner to successfully complete a laws and rules examination by October 16, 1996. On April 24, 1996, Respondent issued an Order granting Petitioner's request for modification of the terms of the Final Order in Case No. 92-10898. Petitioner was granted an extension of time until October 23, 1996, to complete the risk management and pain management CMEs required, and an extension until December 1, 1996, to complete the USF course. By correspondence dated April 29, 1996, the Department confirmed for Petitioner the new due dates for the CME and USF drug course. On May 10, 1996, the Department requested delinquent reports from Petitioner. On May 16, 1996, Petitioner submitted probationer reports due November 15, 1995, February 15, 1996 and May 15, 1996. Petitioner completed the laws and rules examination on September 19, 1996. As of October 9, 1996, Petitioner had not yet made arrangements to complete the CME and the FMA and USF courses, due October 23, 1996 and December 1, 1996, respectively. In February 1997, Petitioner was notified his November 15, 1996 probationer report was delinquent, and he explained he forgot the report. On March 20, 1997, Petitioner appeared before the Committee and was granted an extension of one year to complete his delinquent CME and the FMA and USF courses. On April 29, 1997, Petitioner was provided brochures for the FMA records and USF drug courses and advised to register immediately. On September 18, 1997, the committee temporarily approved Dr. Stephen Spore to act as Petitioner's new monitor. He was approved on November 13, 1997. On December 6, 1997, Petitioner completed the FMA course. On April 7, 1998, the Department filed a Uniform Complaint with AHCA regarding Petitioner's failure to pay his fine and failure to complete CME. On May 27, 1999, Petitioner completed six hours of CME in risk management. On October 20, 2000, Respondent entered an Order lifting the stay of the suspension imposed in Case No. 95-13102. Petitioner completed the required CME in pain management on October 26, 2000 (1 hour), October 28-29 (9 hours), and November 9-10, 2000 (2 hours). On December 9, 2000, a risk management survey of Petitioner's practice was conducted. On December 19, 2000, Respondent entered a Final Order adopting a consent agreement in Case No. 98-11086.1 Petitioner's license was suspended until the CME in Respondent's prior orders was completed and the risk management review was completed. In addition, Respondent imposed a fine of $2,000.00 and costs in the amount of $696.00, due December 19, 2001. At the time of the March 30 through April 1, 2001 meeting of the Respondent, Petitioner had met all of the requirements for reinstatement specified in the previous Final Orders. Findings of Fact Based on the Evidence of the Record Crystal Griffin was the compliance officer for the Board of Medicine during the period 1992-1998. As compliance officer, Ms. Griffin was responsible for monitoring compliance with disciplinary orders issued by the Board. Ms. Griffin was the compliance officer for Petitioner's probation from the entry of the first Final Order until she resigned in 1998. Upon receiving a disciplinary order, Ms. Griffin sent to the physician an information package which included the due date of every requirement of the Final Order and information explaining how to comply with each requirement. The information package also included brochures for the USF prescribing drug course and the FMA medical records-keeping course. The USF course is given once a year. The FMA course takes four months to complete. Thomas Sweat is a medical malpractice investigator for the Agency for Health Care Administration. In his position, he acts as a probation officer when a medical professional is placed on probation. Mr. Sweat acted in that capacity with regard to Petitioner's probation. Acting as probation officer, Mr. Sweat periodically would interview Petitioner, Petitioner's monitor, and the compliance officer, Ms. Griffin. Mr. Sweat interviewed Petitioner on numerous occasions during which he counseled Petitioner regarding his problems in complying with the terms of his probation. On May 9, 1996, Mr. Sweat interviewed Petitioner at his office. Mr. Sweat advised Petitioner of delinquent probationer reports. Although he had been on probation for over a year, Petitioner stated he was confused about what to include in his reports. Mr. Sweat advised Petitioner to contact Ms. Griffin in that regard. During the May 9, 1996 interview Petitioner admitted he had not made arrangements to complete his required CME and the USF and FMA courses. Even though Ms. Griffin had provided Petitioner the necessary information, he stated that he did not know where to arrange for the courses. On February 4, 1997, Mr. Sweat attempted to interview Petitioner at his office. Upon arrival he found the office closed and vacant with no signs advertising Petitioner's new location. When Petitioner was located, he was admonished that he had violated his terms of probation by relocating his office without notifying the Board. Petitioner had moved his office the previous August. Petitioner stated to Mr. Sweat that it never occurred to him to notify anyone. It is apparent from the testimony presented at hearing that Petitioner either did not understand or did not recall his obligations under various orders issued by the Board. Because of the problems Petitioner had with understanding his obligations of the previous orders of the Board, concerns were raised at the March 30 through April 1, 2001, Board meeting about Petitioner's cognitive thinking and ability to practice medicine safely. The Board voted to deny Petitioner's request for reinstatement and to require him to undergo an evaluation by the CARES program at the University of Florida (UFCARES). The May 3, 2001 Order entered by the Board denying Petitioner's petition for reinstatement and requiring an evaluation by the UFCARES program prior to reinstatement was based on the ground that the Board had concerns regarding Petitioner's ability to safely practice medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Health, Board of Medicine, enter a Final Order denying Petitioner's application for reinstatement until such time that he undergoes the UFCARES program. DONE AND ENTERED this 8th day of October, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 8th day of October, 2001.
Findings Of Fact Thomas Lietch, Respondent, is a licensed pharmacist, having been issued license number 0007613 and was so licensed at all times material hereto. On April 11, 1983, Respondent pleaded guilty in the Circuit Court in and for Pinellas County of the offenses of possession of Dextropropoxyphene and possession of a controlled substance outside its proper container. Adjudication of guilt was withheld by the court and Respondent was placed on five years probation. Following the arrest of Respondent on or about January 21, 1983 and before his trial, Petitioner investigated the incident in which Respondent had been arrested for having two Darvon tablets in his pants pocket outside the container in which they were or should have been dispensed. When questioned by the investigator regarding the origin of the Darvon Respondent replied one time that he obtained them on prescription from his doctor and on another occasion replied that he may have obtained them from the pharmacy where he works. The doctor who Lietch stated had prescribed the Darvon was contacted and reported that he may have prescribed Darvon for Respondent when he treated Respondent some time ago; but, if he did, the prescription was written no later than September 1979, more than two years before Respondent's arrest. When this evidence was presented to the Board of Pharmacy the board failed to find probable cause that the Florida Pharmacy Act, Chapter 465, Florida Statutes, was violated. Following Respondent's trial in the Circuit Court the offense here alleged was charged. Respondent presented three witnesses, one of whom owns the pharmacy where Respondent has worked for more than one year. He has had no problem with Respondent's work and considers him a good employee and a competent pharmacist. Another witness is a licensed pharmacist in Florida who opined that possession of two Darvon tablets out of the container in which they were dispensed does not affect the person's ability to practice pharmacy; however if a pharmacist had unauthorized possession of a controlled substance outside the pharmacy that would constitute a violation of the Pharmacy Act. Respondent's third witness was his probation officer who testified that Respondent has fully complied with the terms of his probation and has exceeded the number of hours of community work required by the conditions of probation.
The Issue These two consolidated cases are both license discipline cases in which the Petitioner seeks to take disciplinary action against an individual pharmacist and a community pharmacy for various statutory violations which are alleged in separate Administrative Complaints. At the hearing the Respondents admitted some of the allegations of the Administrative Complaints. Thereafter both the Petitioner and the Respondents presented testimony and exhibits. At the conclusion of the hearing, the parties decided not to order a transcript of the hearing. The parties were allowed until November 25, 1987, within which to file their proposed recommended orders. Both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by the parties are contained in the Appendix which is attached to and incorpor- ated into this recommended order.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. Findings based on stipulations and admissions Respondent Gus Goldstein is, and has been at all times material hereto, a pharmacist in the State of Florida, having been issued license number PS 0005354. Respondent's last known address is 110 East Adams Street, Jacksonville, Florida 32202. Respondent Gus Goldstein is and has been at all times material hereto, designated as the prescription department manager of Center Pharmacy, a community pharmacy in the State of Florida, having been issued permit number PH 0002430 and located at 110 East Adams Street, Jacksonville, Florida 32202. On or about December 23, 1986, a pharmacy medication audit was conducted at Center Pharmacy for the period between approximately June 1, 1986, and December 23, 1986. That audit revealed that the Respondents' records for the period of June 1, 1986, through December 23, 1986, failed to account for the following: Description Bought Dispensed Unaccounted For Tylenol #3 w/codeine 4200 2102 2098 Tylenol #4 w/codeine 5000 2600 2400 Fiorinal #3 1900 1810 90 Valium 5mg. 900 380 520 (Diazepam 5mg.) Valium 10mg. 2200 1600 600 (Diazepam 10mg.) Tylenol #3 with Codeine and APAP with Codeine 30mg are "medicinal drugs" as defined in Section 465.003(7), Florida Statutes, which contain codeine, a controlled substance, in such quantity that they are included in Schedule III of Chapter 893, Florida Statutes. Tylenol #4 with Codeine and APAP with Codeine 60mg are "medicinal drugs" as defined in Section 465.003(7), Florida Statutes, which contain codeine, a controlled substance, in such quantity that they are included in Schedule III of Chapter 893, Florida Statutes. Fiorinal #3 with Codeine is a "medicinal drug" as defined in Section 465.003(7), Florida Statutes, which contains codeine, a controlled substance, in such quantity as to be included in Schedule III of Chapter 893, Florida Statutes. Valium is a brand name of a "medicinal drug" as defined in Section 465.003(7), Florida Statutes, which contains diazepam, a controlled substance, which is listed in Schedule IV of Chapter 893, Florida Statutes. Tylenol #3 with Codeine is a brand name of a "medicinal drug" as defined in Section 465.003(7), Florida Statutes, which contains a sufficient quantity of codeine, a controlled substance, to be listed in Schedule III of Chapter 893, Florida Statutes. Respondent Center Pharmacy is, and has been at all times material hereto, the permittee of Center Pharmacy, a community pharmacy, located in the State of Florida at 110 East Adams Street, Jacksonville, Florida 32202, having been issued permit number PH 0002430. Respondent Center Pharmacy has, and had at all times material hereto, Gus Goldstein, a pharmacist in the State of Florida having been issued license number PS 0005354, designated as its prescription department manager. Respondent Center Pharmacy is, and has been at all times material hereto, registered with the United States Drug Enforcement Administration. Respondent has been issued certificate of Registration Number AC 5050719. Findings based on the evidence adduced at the hearing On or about October 27, 1986, Respondent Gus Goldstein created a record which purported to be a telephone prescription (#116-450) for F.W. for Tylenol #3 with Codeine, purportedly prescribed by Dr. Samuel J. Alford, M.D. The prescription (#116-450) for F.W. for Tylenol #3 with Codeine was not authorized by Dr. Samuel J. Alford, M.D. Respondent Gus Goldstein dispensed Tylenol #3 with Codeine to F.W. without first being furnished with a prescription. Respondent Gus Goldstein knew that the purported telephone prescription (#116-450) for F.W. was a false record. During the process of dispensing drugs, normally there will be small errors in the counting of the drugs. These small errors will result in shortages in the drug inventory which cannot be accounted for. If proper record-keeping and dispensing practices are followed, the shortages resulting from these small errors normally will be in the range of from 1 percent to 2 percent of drugs dispensed; certainly no more than 3 percent of drugs dispensed. Shortages greater than 3 percent of drugs dispensed are indicative of a failure to follow proper record- keeping and dispensing practices.
Recommendation Based on all of the foregoing, I recommend that the Board of Pharmacy enter a final order in these consolidated cases to the following effect: Finding the Respondent Gus Goldstein guilty of the violations charged in Counts One, Two, and Three of the Administrative Complaint in Case Number 87-3151; Dismissing the violation charged against Gus Goldstein in Count Four of the Administrative Complaint in Case Number 87- 3151; Imposing an administrative fine against Gus Goldstein in the amount of five hundred dollars ($500.00) for each of the violations of which he is found guilty; i.e., administrative fines totaling fifteen hundred dollars ($1,500.00); Revoking Gus Goldstein's license to practice pharmacy; Finding the Respondent Center Pharmacy guilty of the violation charged in the Administrative Complaint in Case Number 87-3913; Imposing an administrative fine against Respondent Center Pharmacy in the amount of five hundred dollars ($500.00); and Revoking the permit of Center Pharmacy. DONE AND ENTERED this 9th day of December, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 9th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-3151 AND 87-3913 The following are my specific rulings on all of the findings of fact proposed by the parties. In the rulings which follow I have rejected much of what both parties offered as proposed findings of fact due to the form of the proposals. The most frequent defect in the form is the commencement of a statement with the words "So-and-so testified," followed by a summary of the testimony. Testimony is, of course, one of the raw materials from which findings of fact are made, but (with the exception of perjury trials) summarization or quotation of testimony is hardly ever an appropriate finding of fact. Rather than summarize or quote the testimony, the parties should refine from the testimony the essential material and relevant facts and submit that refined product as their proposed findings. Findings proposed by Petitioner: Paragraph 1: Accepted. Paragraph 2: Rejected for the following reasons: First, it is a summary of testimony, rather than proposed findings of fact; second, parts of it are inconsistent with the greater weight of the evidence; and, third, most of it consists of subordinate, irrelevant, or unnecessary details. First unnumbered paragraph following Par. 2: Rejected for the first and third reasons noted immediately above. Second unnumbered paragraph following Par. 2: Rejected as a commentary on the evidence rather than a proposed finding of fact. Further, the portion following the comma is inconsistent with the greater weight of the evidence. Paragraph 3: Rejected for the same reasons as rejection of Paragraph 2. Unnumbered paragraph following Par. 3: Rejected for the following reasons: First it is a summary of the testimony, rather than proposed findings of fact, and, second, most of it consists of subordinate, irrelevant, or unnecessary details. Paragraph 4: Rejected as constituting a summary of testimony rather than proposed findings of fact. Last unnumbered paragraph: Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Findings proposed by Respondents: Paragraph 1: Accepted. Paragraph 2: Covered in part by stipulated facts. Most of the remainder rejected as subordinate or unnecessary details or as not supported by competent substantial evidence. First unnumbered paragraph following Par. 2: First three sentences rejected as summary of testimony rather than proposed findings of fact. Second and third sentences also rejected as not being supported by persuasive competent substantial evidence. The remainder of this paragraph is rejected as consisting of subordinate, irrelevant, or unnecessary details. Second unnumbered paragraph following Par 2: Rejected as constituting a summary of testimony rather than proposed findings of fact and because it constitutes subordinate, irrelevant, or unnecessary details. Paragraph 3: Rejected as irrelevant and as not supported by competent substantial evidence. First unnumbered paragraph following Par. 3: Rejected as constituting argument or legal conclusions rather than proposed findings of fact. Second unnumbered paragraph following Par. 3: Rejected as constituting argument or legal conclusions rather than proposed findings of fact. Further, portions of the arguments and conclusions are based on inferences which are not warranted by the evidence. Paragraph 4: Rejected as summary of testimony rather than proposed findings of fact and as constituting subordinate and unnecessary details. First unnumbered paragraph following Par. 4: Rejected for the same reasons as rejection of Paragraph 4. Second unnumbered paragraph following Par. 4: First sentence rejected as constituting argument rather than proposed findings of fact. Second sentence accepted in substance. Last sentence accepted. COPIES FURNISHED: Mr. Rod Presnell Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Dept. of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael A. Atter, Esquire 333-1 East Monroe Street Jacksonville, Florida 32202
Findings Of Fact The Respondent is, and was in 1987, a licensed physician in the State of Florida, having been issued license number ME 0010823. The Respondent has been continuously registered with the Drug Enforcement Agency since 1971, having been issued DEA number AS4805668. Rugby Laboratories, Inc., of New York is a distributor of pharmaceutical and medical supplies. On March 23, 1987, Rugby Laboratories, Inc., shipped to the Respondent 500 0.15 gm. tablets of Doriden and 300 30 mg. capsules of Ionamin. On July 21, 1987, Rugby Laboratories, Inc., shipped to the Respondent 200 500 mg. capsules of Placidyl. On September 4, 1987, Rugby Laboratories, Inc., shipped to the Respondent 200 15 mg. capsules of Dalmane. Doriden is a trade name for tablets containing the controlled substance glutethimide, a Schedule III drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. Ionamin is a trade name for a capsule containing the controlled substance phentermine, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts to stimulate the central nervous system and elevate blood pressure. Placidyl is a trade name for a capsule containing the controlled substance ethclorvynol, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. Dalmane is a trade name for a capsule containing the controlled substance flurazepam, a Schedule IV drug listed in Chapter 893, Florida Statutes, which acts as an oral hypnotic. The drugs described above were ordered by the Respondent for use by himself and his girl friend. The drugs described above were received by the Respondent and at least some of those drugs were used by the Respondent and his girl friend. 1/ The Respondent does not have any medical records for himself or for his girl friend. 2/ The Respondent was unable to produce any such records when the Department of Professional Regulation requested such records some time after March of 1990.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect: Dismissing Counts One and Four of the Amended Administrative Complaint; Concluding that the Respondent has violated subsections (q) and (r) of Section 458.331(1), Florida Statutes (1987), as charged in Counts Two and Three of the Amended Administrative Complaint; and Imposing an administrative penalty comprised of (i) an administrative fine in the amount of one thousand dollars ($1,000.00), (ii) a requirement that the Respondent attend one or more continuing education courses on the subject of legal and ethical issues associated with the prescription of controlled substances, and (iii) a public reprimand of the Respondent for the violations described above. DONE AND ENTERED this 20th day of January, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 20th day of January, 1993.
