The Issue Respondent is charged, pursuant to Count I with a violation of Section 459.015(1)(h) in that he allegedly failed to perform any statutory or legal obligation placed upon a licensed physician by his alleged violation of Section 459.0154 Florida Statutes, which statute sets forth requirements of physicians who treat with the substance dimethyl sulfoxide ("D.M.S.O."), pursuant to Count II, with a violation of Section 459.015(1)(o) in that he allegedly exercised influence on a patient in such a manner as to exploit the patient for financial gain, pursuant to Count III, with a violation of Section 459.015(1)(t) in that he allegedly committed gross or repeated malpractice or failed to practice medicine with that level of care; skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances, pursuant to Count IV, with a violation of Section 459.015(1)(u) in that he allegedly performed a procedure or prescribed a therapy which, by the prevailing standards of medical practice in the community would constitute experimentation on human subjects; pursuant to Count V, with a violation of Section 459.015(1)(n), in that he allegedly failed to keep written medical records justifying the course of treatment of a patient, including but not limited to patient histories, examination results and test results; and pursuant to Count VI, with a violation of Section 459.015(1)(1); in that he allegedly made deceptive untrue or fraudulent representations in the practice of osteopathic medicine or employed a trick or scheme in the practice of osteopathic medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment. Counts VII and VIII, were severed, to remain pending in the instant action until such time as Petitioner should file a voluntary dismissal thereof or a notice that same were ready for hearing. Petitioner had every opportunity to resolve this state of the pleadings and did not do so. PROCEDURAL AND EVIDENTIARY MATTERS At formal hearing, Respondent and Gregory D. Seeley, Esquire, were examined pursuant to Rules 22I-6.05 and 28-5.1055 F.A.C. and Gregory D. Seeley, an Ohio attorney, was determined to be a qualified representative of Respondent for purposes of this cause only. Respondent thereafter attempted to file a formal written answer, which request was denied pursuant to Rules 22I- 6.04 (5) and 25- 5.203 F.A.C. Petitioner presented the live testimony of Frank R. Laine, Lloyd D. Gladding, D.O., Jeffrey Erlich, M.D., William Pawley, Respondent Wilfred Mittlestadt, D.O., Mark Montgomery, Ph.D., and the deposition testimony of Wilbur Blechman, M.D. Petitioner offered 12 exhibits, all of which were admitted in evidence. Deposition of Dr. Blechman is Petitioner's Exhibit 4 and Petitioner's Requests for Admission with extensive Answers thereto are Petitioner's Composite Exhibit 1, within the twelve. A request of Petitioner for judicial notice was denied. Respondent testified on his own behalf. Respondent also was permitted to late-file the depositions of Garry Gordon, M.D., and Stanley Jacobs, M.D. Inasmuch as the transcripts of those depositions were timely filed, they are admitted in evidence as Respondent's Exhibits 4 and 5 respectively. Respondent offered 3 exhibits in evidence; all were excluded. Exhibits not admitted or at least proffered were not retained as part of the record. A number of requests for judicial notice by Respondent were also denied. In the course of formal hearing, Respondent also made several motions for mistrial and/or recusal of the undersigned due to admission in evidence of what Respondent characterized as "prejudicial material." None of these motions was meritorious and all were denied, but a discussion of these rulings is also incorporated within this recommended order. By agreement at hearing and without subsequent objection, copies of those matters actually judicially noticed by the undersigned were attached by the parties to their respective post-hearing proposals. The parties' pre-hearing stipulation (H.O. Exhibit 2 as interlineated) also included stipulations as to many facts and has been extensively utilized in preparation of this recommended order. At the close of Petitioner's case in chief Respondent moved to dismiss the pending charges as unproved. This motion was taken under advisement for resolution within this recommended order. The motion was renewed within Respondent's post-hearing proposals with written argument. The Motion to Dismiss within Respondent's post-hearing proposals also renews all previous motions to dismiss, incorporating by reference what may be read as previous arguments concerning procedural and pleading irregularities as to Counts VII and These issues are also disposed of within this recommended order. Transcript of formal hearing was provided by Petitioner, who filed its proposed findings of fact and conclusions of law beyond the 10 day limitation. Respondent's proposed findings of fact and conclusions of law were timely filed. The late-filing of Petitioner's proposals without objection by Respondent are deemed a waiver of the 30 days for entry of this recommended order pursuant to Rule 22I-6.31 F.A.C., but all proposals have been considered and Petitioner's proposed findings of fact and Respondent's proposed findings of fact are ruled on in the appendix hereto.
Findings Of Fact At all times material, Respondent was licensed as an osteopathic physician in the State of Florida having been issued license number 05 0001510. He has practiced approximately 40 years. On April 4, 1983 Frank R. Laine went to Bio-Equilibrium Testing located in Ft. Lauderdale, Florida. Laine complained of pain in his hands, feet, knees, and shoulders. On five different visits, Laine saw a Diane La Berge. At all times material hereto, Diane La Berge was not licensed to practice either medicine or osteopathic medicine in the State of Florida but held herself out as a homeopathic physician and Director of Bio-Equilibrium Testing. She conducted a series of "tests" and made "evaluations" regarding Laine's condition. Among the tests performed was a metal analysis based on a cutting of Laine's hair sent to Biochemical Concepts, a testing laboratory. Based on her evaluation of the results of the hair analysis for metal La Berge diagnosed Laine as suffering from "heavy or acute copper poisoning". As treatment therefore La Berge recommended chelation therapy, acupuncture, and numerous "supplements", presumably vitamins. Laine understood, based on his conversations with La Berge, that chelation therapy would "cure" his condition. Laine attempted, on a couple of occasions, to obtain chelation therapy from a physician recommended by La Berge; however, there was never anyone at that physician's office. Therefore, Laine went to Respondent's office after being referred by Dr. Harvey Frank, Laine's personal chiropractor. There is absolutely no proof of any connection or relationship of any kind between La Berge or Bio-Equilibrium Testing and Respondent. About two months prior to his seeking out Bio- Equilibrium, Laine, a boat captain, had sanded the hull of a boat coated with a copper-based paint. He performed this type of work approximately once a year, always outdoors with adequate ventilation. Laine informed Respondent that he had been scraping the hull of a copper boat and brought a copy of the hair analysis to their initial office consultation on May 16, 1983. Laine initially presented himself to Respondent seeking chelation therapy on May 16, 1983. He complained of constant pain in his hands, feet, knees, and shoulders. Respondent obtained a medical history based in part on responses to a Cornell Medical Index Health Questionnaire (CMI), a health questionnaire on Respondent's stationery, and another history form, which contained a description of symptoms, family history, and personal history. Some of these responses were filled in, not by Laine, but by his wife. Respondent also got a brief verbal history from Laine but did no extensive one-on-one questioning of Laine or verification of prior physicians and diagnoses listed by Laine and/or his wife. He did no questioning concerning all of the responses or even significant relevant responses. The significant relevant responses include a "yes" response to the question: "Are you crippled with severe rheumatism (arthritis)?" Laine's symptoms were consistent with a diagnosis of rheumatoid arthritis but Respondent only recorded "inflamed joints onset following scraping copper bottom of boat." There is no recorded physical examination of Laine by Respondent at this initial office visit or at any time thereafter. On May 16, 1983, Respondent diagnosed Laine as having "Copper poisoning as told by hair analysis," wrote this in his records, and administered intravenous chelation with 5cc. dimethyl sulfoxide (D.M.S.O.), intramuscular injections of zinc; and an intravenous injection of Phillpott's formula and sulfur cyl. Apparently, an oral dose of zinc was also prescribed. Respondent also obtained a urine specimen for analysis by tests which would be helpful in determining kidney function. Although there is clear evidence that Laine specifically requested chelation therapy of Respondent, there is no evidence that he ever requested administration of D.M.S.O. or any other substance specifically. Chelation therapy in general involves the use of certain chemicals called chelation agents to bind, immobilize, and in some instances to increase the excretion of a target molecule, in most cases heavy metals, so that the free amount in the blood is decreased more rapidly than the body would do absent the chelation therapy. Vitamin C and D.M.S.O. are not generally recognized as effective chelation agents. Both Vitamin C and D.M.S.O. have only weak binding properties. Phillpott's formula is an I.V. for allergies and a nutritional supplement containing Vitamin C and other vitamins and minerals. Among those testifying, only Dr. Gordon and Respondent, members of the American Academy of Medical Preventics, even recognized its name, absent a list of ingredients. Sulfur cyl is a salycilate useful in the treatment of inflamed joints and arthritis. D.M.S.O. is an organic solvent with the potential to dissolve the vascular system. At no time did Respondent obtain a written release from Laine, releasing Respondent from any liability for the administration of D.M.S.O. intravenously through chelation therapy. At a May 17, 1983 office visit, Respondent administered intravenous chelation with 5cc. D.M.S.O. and an intravenous injection of sulfur cyl to Laine. No further testing was done by Respondent on that day. On this date Laine indicated that he was subjectively feeling better. On May 19, 1983, Respondent administered intravenous chelation with D.M.S.O. and an intravenous injection of Phillpott's formula and sulfur cyl to Laine. D.M.S.O. was also prescribed topically for skin and shoulders as needed. Respondent also ordered copper levels to be obtained from blood and urine specimens. Laine provided a 24 hour urine specimen which Respondent had tested. The specimen analyzed at 74.8 micrograms per liter. The normal copper values for the laboratory in question were .00-60.00 micrograms per liter. The greater weight of the direct credible expert testimony is that Laine's test showed a mild elevation not diagnostically significant for acute copper poisoning, however some rheumatoid arthritis sufferers show elevated copper levels. Respondent received the results of this urine test on May 22, 1983. On May 23, 1983 Respondent administered chelation with D.M.S.O. and intravenous injection of sulfur cyl to Laine. D.M.S.O. 99.9 was prescribed topically for shoulders. No further testing was performed on that date. On May 24, 1983, Laine was administered intravenous chelation with D.M.S.O. and an intravenous injection of sulfur cyl by Respondent. A blood sample was drawn for testing. On May 25, 1983, Respondent administered an intravenous injection of sulfur cyl to Laine. At this visit, Respondent used a plethysmograph to study Laine's entire body. Plethysmography is used to measure pulse pressure, usually in the venous system, for determining impeded blood flow in the veins and was apparently done because of a response on Laine's medical history involving angina and prior myocardial infarctions and because of a protocol or teaching of the American Academy of Medical Preventics. The blood sample drawn on May 24, 1983 was tested. The tests performed included serum copper levels, a SMAC profile, and r.a. latex titer results. The results showed a serum copper level of 135 micrograms per deciliter (normal values 70-155) and an r.a. latex titer of 1/1280. The greater weight of the direct credible expert testimony is that these results are not indicative of significant copper poisoning but were one significant indicator of rheumatoid arthritis. The results were reported to Respondent on May 26, 1983. On May 26, 1983, Respondent administered intravenous chelation with D.M.S.O. with sulfur cyl and calcium disodium edetate (E.D.T.A.) added. Chelin was also prescribed, apparently orally. Blood urea nitrogen (BUN) levels were also obtained that day. E.D.T.A. is most often used in the treatment of mild to severe lead poisoning. Although E.D.T.A. will chelate other heavy metals, including copper, it is not the treatment of choice by the majority of medical and osteopathic physicians for treatment of either copper poisoning or rheumatoid arthritis. D- penicillamine is preferred over E.D.T.A. because it is more effective and because E.D.T.A. has significant side effects, including primarily kidney failure. E.D.T.A. also has a problem permeating cell membranes. On May 27, 1983, Respondent administered intravenous chelation with D.M.S.O. and sulfur cyl to Laine. In Respondent's discussions with Laine between May 16 and May 27, 1983, Respondent suggested that a reduction of Laine's copper level would improve his symptoms. Respondent did not fully inform Laine of any of the potential side effects of E.D.T.A. chelation therapy or intravenous D.M.S.O. Respondent told Laine that his treatment was not completely accepted in the general medical community but he believed in it and it would be acceptable. This falls far short of fully informing Laine as to alternative methods of treatment and their potential for cure of his condition. In total, Respondent billed Laine $1,350.00 for office visits, various tests, examinations, and treatments. At each visit, Respondent provided Laine with bills and health insurance claim forms. These do not reflect a diagnosis until May 26 and then only the single diagnosis of "toxic metal poisoning". The bills were never paid by Laine whose wife complained to the Department of Professional Regulation concerning Respondent's treatment of Laine when Laine's insurance declined to pay for Respondent's treatment of him. Despite Respondent's oral testimony to the contrary, the patient records do not reflect that Respondent diagnosed Laine as having rheumatoid arthritis or cardiovascular disease, they show only copper poisoning of various degrees as reflected in the above findings of fact. Respondent maintains that the many tests were necessary and conservative for the purpose of confirming or rejecting his initial diagnosis of copper poisoning, to determine the presence of rheumatoid arthritis, and to guard against potential kidney failure before E.D.T.A. chelation was attempted. Since Respondent never performed any "hands on" physical examination and did no one-on-one questioning of Laine concerning the medical history forms, the tests may appear excessive, particularly in light of the probability that E.D.T.A. was used on Laine before Respondent received the final test results, but the characterization of Dr. Blechman is accepted that the type and spectrum of tests including plethysmography actually ordered by Respondent do not demonstrate significant fault. Respondent's office staff regularly took readings of Laine's bloodpressure and pulsed and measured his height and weights but the patient records do not reflect any "hands on" physical examination by Respondent of Laine on any of the eight office visits. The greater weight of the expert testimony is that a minimal physical examination for a new patient with unverified complaints should entail a complete hands-on physical which palpates the head, eyes, ears, nose, throat, neck, chest, abdomen, and the extremities and joints, listening to the heart and lungs and examining the skin, plus a rectal examination. If only joint diseased arthritis, or rheumatoid arthritis were suspected or being investigated for treatment, a minimal physical examination should emphasize evaluating all joints (including peripheral joints) by palpation, determining the range of motion of affected joints, listening to the heart and lungs, taking blood pressure, and evaluating length and duration of symptoms. According to physicians board- certified or with a majority of their practices in rheumatology or internal medicine, it is particularly important in joint disease cases for the physician to feel the joint to determine which element thereof is swollen and to see if it is warm to the touch i.e. inflamed. Respondent admits his initial physical examination of Laine was merely observation of Laine's movements and his general ambulatory motion with his clothes on, examination of tophi in his ears, and listening to his heart and lungs. Respondent is vague about whether he observed Laine's hands. Respondent's type of initial physical examination, if it can be called that, and lack of follow-up examinations fall short of the level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as acceptable under similar conditions and circumstances. On May 27, 1983 Laine also went to see Jeffrey Erlich, M.D. He was in pain and getting no relief from Respondent. On that date Dr. Erlich took a history from Laine, performed a complete "hands on" physical examination, reviewed laboratory data provided him by Laine from Respondent and tentatively diagnosed Laine as having rheumatoid arthritis. Laine's condition was such that, at formal hearing, Dr. Erlich characterized Laine as "the second sickest rheumatoid arthritis patient" he had seen. Because of the severity of Laine's condition Dr. Erlich began Laine on oral predisone which is the conservative treatment of choice among the majority of medical physicians and osteopathic physicians for the treatment of rheumatoid arthritis. Laine was subsequently hospitalized for what may have been side effects of the predisone itself or aggravation of a pre-existing ulcer by the predisone. From this hospitalization, Respondent desires that the inference be drawn that Dr. Erlich was less close to prevailing standards of treatment than was Respondent because Erlich's prescription for predisone constituted an error of Erlich based on failed physical examination and history-taking, which error Respondent knowingly avoided by electing chelation therapy over the predisone treatment. Respondent's argument is not persuasive, and that leap of the imagination cannot be made upon the credible competent substantial evidence in the record. Faulty judgment calls of Dr. Erlich, even if any existed, are non-issues advanced by Respondent to draw attention from relevant and material issues. Further, while in the hospital, Laine was seen by a rheumatologist and a gastroenterologist who essentially confirmed Erlich's diagnosis of rheumatoid arthritis. Laine has since been administered several types of treatment for rheumatoid arthritis, including but not limited to D-Penicillamine, by both Erlich and the rheumatologist without much success, but Laine continues to tolerate predisone and to receive some pain relief therefrom. In light of the foregoing, it is found that Laine had rheumatoid arthritis which Respondent failed to diagnose principally because of Respondent's persistent reliance on the previous hair analysis and his failure to use "hands-on" physical examination contrary to the prevailing level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as acceptable under similar conditions and circumstances. Respondent's reliance on hair analysis performed by a non-physician was misplaced and did not conform to the practice of medicine with that level of care, skill and treatment which is recognized by a reasonably prudent osteopathic physician under similar facts and circumstances. Not only is the greater weight of all credible expert evidence that hair analysis has little or no clinical value in diagnosing elevated copper levels or anything else because hair analysis indicates not only endogenous (internal or ingested) but also exogenous (external) sources of copper, but Respondent's own testimony further reveals that he merely assumed that the hair sample had been properly taken from the nape of Laine's neck and properly washed prior to testing. In making this finding of fact, the undersigned has not overlooked the testimony of Respondent's expert, Dr. Garry Gordon, who considers hair analysis to be a valuable diagnostic tool when laboratories meet all protocols. However, even Dr. Gordon admits that hair analysis is only relied on by a "distinct clear cut minority" nationwide; it is not required by the American Academy of Preventics; and the particular hair analysis of Laine in this case would probably show his most recent exogenous exposure to the copper boat hull. Respondent is a member of the American Academy of Medical Preventics and considers himself a holistic practitioner and an expert in the use of chelation therapy for prevention and cure of disease. /1 He administers chelation therapy to an average of 32 persons per week for one ailment or another. The American Academy of Medical Preventics is a group with a nationwide membership of 500-1000; of whom perhaps 100 are certified physicians. A protocol of this group requires extensive testing to verify the presence of various diseases, commends the least invasive approaches to testing and treatment, and favors chelation therapy for a number of ailments as well as hair analysis as a testing device. According to Respondents the D.M.S.O. was administered for the purpose of aiding the cell permeability of the vitamin C and later to aid the cell permeability of the E.D.T.A., E.D.T.A. was administered one time for the purpose of treating rheumatoid arthritis; the Phillpott's formula (primarily vitamin C) was for chelation of copper allergies and improving nutrition; and sulfur cyl was for inflammed joints. This treatment conforms to the American Academy of Preventics' protocol. It is stipulated by the parties that Respondent did not use D.M.S.O. as a treatment or cure for copper poisoning or as a treatment or cure for rheumatoid arthritis. (Pre-Hearing Stipulation paragraphs 33 and 34; H.O. Exhibit 2). Expert testimony was permitted to be elicited from Lloyd D. Gladding, D.O., Jeffrey Erlich M.D., Mark Montgomery, Ph.D., Wilbur Blechman, M.D., Garry Gordon, M.D., and Stanley Jacobs, M.D. Respondent objected to any testimony by Petitioner's witnesses, Dr. Gladding, D.O. (the only Florida licensed osteopathic physician other than Respondent to testify), Jeffrey Erlich, M.D., Mark Montgomery, Ph.D. in toxicology and instructor of both medical and osteopathic physicians, and Wilbur Blechman, M.D. because they were not "similar health care providers" in that none were physicians specializing in holistic and preventive medicine upon grounds that only reasonably prudent similar physicians may properly evaluate Respondent's performance. Dr. Blechman's testimony by deposition was further objected to by Respondent upon the ground that a medical physician may not testify to the statutory standard required of a "reasonably prudent similar osteopathic physician as acceptable under similar conditions and circumstances" as specified in Section 459.015(1)(t) F.S. This position was not consistent with Respondent's relying heavily on the testimony of Dr. Jacob, also a medical physician (M.D.) or Dr. Gordon, trained as an osteopath but accredited through a merger of schools as an M.D. Upon authority of Wright v. Schulte 441 So.2d 660 (Fla. 2d DCA 1983) 2/ upon the definition of "physician" contained in Section 459.0514(1) embracing both medical physicians and osteopathic physicians, upon the statutory language contained in Section 459.015(1)(t), specifying "The board shall give great weight to the provisions of Section 768.45 when enforcing this paragraph," and upon each witness' specialized education, training, and experience as evident from the records the undersigned overruled Respondent's objections and qualified the witnesses as experts pursuant to their respective qualifications. This ruling is also in accord with the history of Chapter 21R F.A.C., of which judicial notice has been taken, and which shows holistic and preventive medicine has never been recognized as a sub-speciality by the Board of Osteopathic Medical Examiners. This evidentiary ruling is here reaffirmed and reiterated as clarification of the weight and credibility of the experts' opinions accepted, relied upon, or rejected in this recommended order. The Food and Drug Administration (F.D.A.) is the federal agency charged with the enforcement of the federal Food and Drug Acts which includes the regulation of the manufacture and distribution of drug products. As part of its regulatory powers, the F.D.A. approves or disapproves drugs for human consumption. It does not approve or disapprove uses or treatments of drugs. Once the drug has been approved as a prescriptive agent, physicians are not limited by the F.D.A. in their utilization of approved drugs to the specific indications set forth in the F.D.A. package inserts. D.M.S.O. has been approved for human consumption. The package insert for D.M.S.O. as reported in the Physician's Desk Reference (PDR), a standard reference used by practicing physicians, recognizes it as indicated for treatment of the condition of interstitial cystitis only, a condition Laine did not have. E.D.T.A. has also been approved by the F.D.A. for human consumption. Its package insert as reported in PDR recognizes it as indicated for treatment of the conditions of digitalis toxicity, hypercalcemia, lead, and other heavy metal toxicities. The undersigned has considered the testimony of all the experts qualified in this case subject to differing weight and credibility considerations of their education, training, and experience. The definition of "experimental treatment" as that type of treatment which has not been shown to be effective or safe under clinical studies conducted after F.D.A. approval of the drug involved is accepted. With some minor variation of choice of words, that is the definition advanced by Dr. Gladding, D.O., Dr. Blechman, M.D. and by toxicologist Mark Montgomery, even though clinical tests also precede F.D.A. approval. D.M.S.O. and E.D.T.A. in the quantities and treatments used by Respondent are experimental and not approved or recognized as acceptable for treatment of either copper poisoning or rheumatoid arthritis by a respectable minority of the medical profession. The opinions of the Florida physicians board certified or with a majority of their practices in rheumatology or internal medicine and of Mark Montgomery, who teaches both medical physicians and osteopathic physicians the physical and physiological operation of various drugs, are considered more credible on this issue than that of Dr. Gordon, drafter of the American Academy of Preventics' protocol using E.D.T.A. and D.M.S.O. together in chelation. Dr. Gordon admits that in many ways all D.M.S.O. and E.D.T.A. treatments are practiced only by members of the American Academy of Medical Preventics, which has not yet been recognized by the American Medical Association and which represents a minority of physicians nationwide. Even by the construction of the evidence most favorable to Respondent, that is, the testimony of Dr. Jacob, Respondent's expert in D.M.S.O., the small quantities of D.M.S.O. administered by Respondent in the course of eight treatments would not have been therepeutically effective in reducing the copper levels in Laine's body and would not have been therepeutically effective in treatment of rheumatoid arthritis. A stronger solution than that used by Respondent would have been necessary to have either a positive or negative effect upon Laine. Dr. Jacob does not use D.M.S.O. for chelation but when using it by intravenous injection requires a release be signed. Laine was not physically harmed by the treatments administered by Respondent. The most that can be said is that the Respondent's misdiagnosis and useless treatments delayed his obtaining appropriate treatment. There is no recognized cure for rheumatoid arthritis and it has been shown that any of the numerous treatments utilized for rheumatoid arthritis will work on some individuals while not working on others. The symptoms of rheumatoid arthritis may alleviate without any treatments or conversely may get progressively worse regardless of any treatment utilized or they may clear up for no apparent reason.
Recommendation That the Board of Osteopathic Medical Examiners enter a final order finding Respondent guilty of violations of Count I [sections 459.015(h) and 459.0154], Count III [Section 459.015(1)(t)], Count IV [Section 459.015(1)(u)], Count V [Section 459.015(1)(n)], and Count VI, (section 459.015(1)(1)], suspending Respondent's license for a total period of one year therefor, and dismissing Count II [Section 459.015(1)(o)] with prejudice and dismissing Counts VII and VIII without prejudice. DONE and ORDERED this 14th day of May, 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
The Issue The Petitioner, State of Florida, Department of Professional Regulation, Board of Osteopathic Medical Examiners, has brought an action by Administrative Complaint against the Respondent, George Warren Frison, Jr., D.O., charging that on January 4 and 31, 1978, and February 28, 1978, the Respondent issued prescriptions for a substance commonly known as Quaalude, otherwise known as Methaqualone, and prescriptions for a substance known as Biphetamine, a material, mixture, compound or preparation which contains Amphetamines; both types of prescriptions being controlled substances within the meaning of Chapter 893, Florida Statutes. The complaint further alleges that the prescriptions were delivered to a patient, George DeBella, also known as George J. Conlon, without good faith and not in the course of the Respondent's professional practice, and, therefore, unlawfully. See Section 893.03, Florida Statutes. Finally, the Administrative Complaint alleges that these acts on the part of the Respondent are prohibited by Sections 893.05 and 893.13, Florida Statutes, and are violative of Subsections 459.14(2)(m) and (n), Florida Statutes, in that the Respondent is guilty of unprofessional conduct and has violated the laws of the State of Florida.
Findings Of Fact This cause comes on for consideration based upon the Administrative Complaint filed by the State of Florida, Department of Professional Regulation, Board of Osteopathic Medical Examiners. The Respondent in this cause is George Warren Frison, Jr., D.O., who holds license No. 1169 under regulation by the Petitioner. Dr. Frison also held license No. 1169 at all times pertinent to the Administrative Complaint. The Administrative Complaint is a six-count document, the general nature of which has been outlined in the issues statement of this Administrative Complaint. The specific contentions of the Administrative Complaint will be addressed in the course of these findings of fact. The proof offered reveals that on January 4, 1978, an officer of the Daytona Beach Police Department, one George Joseph Conlon, went to the office of the Respondent in DeBarry, Florida. At the time of this visit, Officer Conlon was operating under the assumed name of George DeBella. The purpose of Officer Conlon's visit was to ascertain if the Respondent was issuing prescriptions for drugs, not as a part of Dr. Frison's professional practice, but merely to satiate the desires of the ostensible patient and to profit from the encounter by charging the patient for the office visit. When Conlon entered the doctor's office on January 4, 1978, he was initially seen by Dr. Frison's nurse, who took the patient's blood pressure end weighed him and had the patient complete a form medical history data sheet. Conlon was then ushered in to see the doctor and he proceeded to tell Dr. Frison that he was not a "doper" and was not there for the purpose of getting Dilaudids. He explained to Dr. Frison that he had two jobs and that he was taking small black capsules to keep him going, to which Dr. Frison replied as an interrogatory, "Biphetamines?". Conlon explained that he didn't know what the substance was but that he had been paying $3.00 apiece to buy them from dealers and that arrangement was stupid and could he get some from the Respondent. Dr. Frison asked if Conlon meant a prescription and Conlon replied in the affirmative, and Frison said that he could get a prescription. Conlon in turn asked if he needed to provide other information. Frison responded by asking Conlon, "How many do you take?" Conlon indicated that he took one in the morning and one around six o'clock p.m. There was further conversation in which Conlon explained that he worked in a nursery in the daylight working hours and as a bartender from 2:00 p.m. to 2:00 a.m. Conlon also made remarks to the effect that he, Conlon, was not a "freak" and that he was trying to be "straight" with the doctor. Dr. Frison inquired if the small black capsules were the only thing that Conlon took and Conlon, in answering the doctor, indicated he had taken several Quaaludes, which helped to put him to sleep at night and that his frequency of using the drug was three times a week, at most. In response to the comments about Quaaludes, Dr. Frison asked Conlon if he would like a prescription for a few Quaaludes, and Conlon agreed. Frison indicated that he would give him a prescription for the Quaaludes, but not in the quantity of the Biphetamines which he was prescribing. There was further conversation about where the patient lived and in answering the Respondent's question, Conlon acknowledged that he lived in Daytona Beach, Florida. The Respondent asked why he didn't ask for a prescription in Daytona Beach and Conlon said it was because someone had mentioned Dr. Frison. There was a final series of remarks about buying drugs from other sources and paying $3.00 and that terminated the conversation. The only other examination or discussion which the doctor had with Conlon on January 4, 1978, involved the doctor taking the pulse of Officer Conlon during their conference. After this meeting between Dr. Frison and Conlon, Dr. Frison prescribed sixty Biphetamines, which is a mixture which contains Amphetamines and is a controlled substance within the meaning of Chapter 893.03, Florida Statutes, specifically a Schedule II item. Dr. Frison also prescribed thirty Quaaludes, also known as Methaqualone, which is a controlled substance within the meaning of Section 893.03, Florida Statutes, and specifically a Schedule II item. A copy of the prescriptions may be found as the Petitioner's Composite Exhibit No. 1 admitted into evidence. Officer Conlon was carrying a concealed transmitter on his person when this visit and the following visits were made to the Respondent's office, and tapes were made of the office conversations which were recorded from Conlon's transmitter. A transcript of the intelligible parts of the conversations between Conlon and the Respondent and Conlon and the Respondent's nurse, that occurred on January 4, 1978, may be found as the Petitioner's Exhibit No. 2 admitted into evidence. On January 31, 1978, Conlon returned to the office of the Respondent in DeBary, Florida. Again, the nurse weighed Conlon and took his blood pressure. Dr. Frison saw the patient and asked how the patient had been progressing and inquired about the number of tablets the patient had taken. Conlon responded that he took two or three a day. Dr. Frison indicated that that number was too many. Dr. Frison also noted that it had only been twenty-seven days since the last visit. Dr. Frison then determined to issue new prescriptions, but to postdate prescriptions for Biphetamines and Quaaludes to February 3, 1978. In connection with this, he prescribed sixty Biphetamines and sixty Quaaludes. There was some discussion held about the nature of the Quaaludes and how the patient, Conlon, might become dependent on them, leading to potential addiction. Frison also indicated that addiction to Biphetamines is one of the worst addictions and that Conlon should cut down the use of them. There was a further inquiry by Dr. Frison about why the patient did not get the prescriptions in Daytona Beach, to which Conlon replied that he was nervous about that. Frison terminated the conversation by telling Conlon not to take too many of the tablets and agreeing to write the prescriptions. There was no further physical examination of the patient or other discussion of the patient's condition. A copy of the prescriptions dated February 3, 1978, may be found as the Petitioner's Composite Exhibit No. 3 admitted into evidence and a copy of the transcript of the conversation between Conlon and the Respondent to the extent the conversation was intelligible, may be found as the Petitioner's Exhibit No. 4 admitted into evidence. Conlon made another trip to Dr. Frison's DeBary, Florida, office on February 28, 1978. He again was weighed and had his blood pressure taken by the nurse. Conlon was seen by Dr. Frison, who checked his pulse and chest. In the course of the visit, the Respondent inquired about Conlon's health and about his job at the bar. Then Frison stated that he would give Conlon prescriptions for that date, but would not be able to give him prescriptions for Quaalude and Biphetamine in the future. He explained to Conlon the reason for termination of the practice was that he was having problems of an unspecified nature. There was some brief discussion about a skin infection which the Patient had and that ended the conversation between the Respondent and Conlon. (Frison did not treat the patient for the skin condition.) Frison prescribed sixty Biphetamines and sixty Quaaludes and copies of these prescriptions may be found as part of the Petitioner's Composite Exhibit No. 5 admitted into evidence. As before, the intelligible parts of the conversation, as transcribed, may be found in the copy of that transcribed conversation which is Petitioner's Exhibit No. 6 admitted into evidence. In view of the events which occurred on January 4 and 31, 1978, and February 28, 1978, involving George J. Conlon, the ostensible patient of the Respondent, the Petitioner has brought the Administrative Complaint. Counts I and II deal with the events of January 4, 1978, and the prescription for Quaalude, otherwise known as Methaqualone; and Biphetamine, a material, mixture, compound or preparation containing Amphetamines, Count I dealing with the Quaalude and Count II dealing with the Biphetamine. Counts III and IV deal with the events of January 31, 1978, and the prescription for Quaalude, otherwise known as Methaqualone; and Biphetamine, a material, mixture, compound or preparation containing Amphetamines, Count III dealing with the Quaalude and Count IV dealing with the Biphetamine. Finally, Counts V and VI deal with the events of February 28, 1978, and the prescription for Quaalude, otherwise known as Methaqualone; and Biphetamine, a material, mixture, compound or preparation containing Amphetamines, Count V dealing with the Quaalude and Count VI dealing with the Biphetamines. In each of the counts, the Respondent is accused of delivering drugs without good faith and not in the course of professional practice and thereby unlawfully distributing and dispensing a controlled substance described in Section 893.03, Florida Statutes. According to the allegations, the acts of the Respondent in those instances are prohibited by Sections 893.05 and 893.13, Florida Statutes, and such acts constitute a violation of Subsections 459.14 (2)(m) and (n), Florida Statutes, in showing that the Respondent is guilty of unprofessional conduct and has violated the laws of the State of Florida. The substantive provisions dealing with disciplinary action against the Respondent are found in Subsection 459.14(2)(m), Florida Statutes, and Subsection 459.14(2)(n), Florida Statutes. The former provision states: 459.14(2)(m) A finding of the board that the individual is guilty of immoral or unprofes- sional conduct. Unprofessional conduct shall include any departure from, or failure to conform to, the minimal standards of accept- able and prevailing osteopathic medical prac- tice, without regard to the injury of a patient, or the committing of any act contrary to hon- esty, whether the same is committed in the course of practice or not. The evidential facts shown indicate that the substance commonly known as Quaalude, otherwise known as Methaqualone, a controlled substance within the meaning of Chapter 893, Florida Statutes, and the substance known as Biphetamine, a material, mixture, compound or preparation which contains Amphetamines, a controlled substance within the meaning of Chapter 893, Florida Statutes; were not prescribed in good faith and in the course of the Respondent's professional practice, as required by Section 893.05, Florida Statutes, if the Respondent is to avoid the penalties of the provisions of Section 893.13, Florida Statutes. This lack of good faith constituted unprofessional conduct, in the sense that the Respondent was departing from and failing to conform to the minimal standards of acceptable and prevailing osteopathic medical practice, set out in Subsection 459.14(2)(m), Florida Statutes. In particular, the departure from and failure to conform to those minimal standards is evidenced by the Petitioner's act of prescribing the controlled substance for Conlon when there was no specific complaint of a physical problem. This finding is made in spite of the witnesses who testified in behalf of the Respondent, who claimed that you could prescribe medication for compassionate reasons, and notwithstanding the Respondent's false entry into the medical chart of the patient, Conlon, indicating that the patient was being treated for the condition of being overweight. The Respondent further violated the standards of his professional community by failing to take an adequate history of the patient's condition on the occasions the patient was seen; failing to make an adequate physical examination of the patient on the occasions when the patient was seen; and by not placing reasonable controls over the drugs that were prescribed for the patient, particularly in his failure to warn the patient not to drive or use heavy machinery while under the influence of the medications. The Physician's Desk Reference manual creates a necessity for these cautionary instructions referred to above, and the Respondent should have warned the patient of the medications' possible effects. The Respondent also violated medical practice by postdating the prescriptions which were issued on January 31, 1978. Finally, the Respondent violated the minimum standards of his profession by prescribing Quaaludes and Biphetamines in combination when these drugs are known to have an antagonistic effect in combination. These findings of violations pertain to each date that the patient was seen; January 4 and 31, 1978, and February 28, 1978, involving both the substances, Quaalude and Biphetamine. The other substantive grounds of a violation alleged by the Petitioner deal with Subsection 459.14(2)(n), Florida Statutes, which reads as follows: 459.14 (2)(n) Violation of any statute or law of this state or any other state or terri- tory of the United States or any foreign country, which statute or law relates to the practice of medicine. To establish this violation, it would be necessary for a court of competent jurisdiction to have found the Respondent guilty of a violation of Section 893.13, Florida Statutes. This determination cannot be made by an administrative tribunal and in view of the fact that no court of competent jurisdiction has found such a violation, the Petitioner's claim under Subsection 459.14(2)(n), Florida Statutes, has not been sustained.
Recommendation It is recommended that the Petitioner, State of Florida, Department of Professional Regulation, Board of Osteopathic Medical Examiners, suspend the Respondent, George Warren Frison, Jr., D.O., for a period of one (1) year for the violations established in Counts I and II; for one year for the violations established in Counts III and IV, to run concurrently with the penalty imposed for Counts I and II; and for one (1) year for the violations established in Counts V and VI, to run concurrently with the penalty imposed for Counts I and II. DONE AND ORDERED this 25th day of July, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Edward R. Kirkland, Esquire 126 East Jefferson Street Orlando, Florida 32801
The Issue The issue in this proceeding is whether the Respondent, Jules Jonas Dossick, D.O. violated statutes governing the practice of osteopathic medicine on the grounds alleged in the administrative complaint and if so, what disciplinary action is appropriate. Background and Procedural Matters This proceeding commenced when Petitioner filed its administrative complaint and Respondent timely requested a formal hearing. At the hearing Petitioner verbally amended its complaint by deleting all factual and legal allegations relating to sexual misconduct and violations of Section 459.015(1)(k) Florida Statutes. Petitioner presented evidence through three witnesses and four exhibits. Respondent testified on his own behalf and presented one exhibit. All exhibits were admitted without objection. Petitioner has submitted a proposed recommended order, which proposal has been considered and, in part, included in this order. A specific ruling on each proposed finding of fact is found in the appendix attached hereto. By pleadings dated May 23, 1986, Respondent has moved for a re- hearing and has objected to the Petitioner's proposed recommended order, both on the grounds that he has now retained counsel and should have the opportunity to have the case re-heard with the benefit of an attorney. Respondent had an attorney in an earlier part of this proceeding and discharged him by letter dated February 22, 1986. (see letter attached to motion to withdraw filed March 3, 1986). Approximately two months later the final hearing was held. Respondent had ample time to retain new counsel or ask for a continuance. He proceeded to hearing, aware of his rights and without protest. The record is void of any basis to consider such extraordinary relief.
Findings Of Fact Respondent, Dr. Dossick, is now and at all times relevant has been licensed as an osteopathic physician in Florida under license number OS 0000874. He practices at his clinic, North Miami Medical Center, located at 4805 East 4th Avenue in Hialeah, Florida. (T-10,11). The clinic is comprised of a reception room, a kitchen that is also used as an office, a bathroom near the reception area, a supply room, two examining rooms, and two additional rooms with a bathroom and shower at the rear of the clinic. Dr. Dossick lives at the clinic and keeps the additional rooms for his bedroom, for storage and for personal use. One of the additional rooms was used several years ago as a third examining room. (T-43, 44, 114-116). In January 1985, two investigators from the Department of Professional Regulation went to Respondent's Clinic for an inspection. They took pictures and spoke to Dr. Dossick. Three other individuals were at the clinic the day of the inspection: a man and woman in one examining room, and a woman in what the inspectors thought was an examining room, but was identified by Dr. Dossick as his personal use and storage room. (T-41, 49, 57, 64, 116). The investigators found the clinic in varying stages of filth and disarray. The reception room was old and worn, unclean, but with little sign of current use. The kitchen had dirty dishes and exposed garbage. The examining rooms were fairly neat but the medications on the countertops were old, dirty and, in some cases, expired. There was no garbage in the two examining rooms, but they did not appear clean. The third room, the former examining room (now used for storage and Dr. Dossick's personal living quarters) was a mess: clothing, mail and fast food containers were strewn about, cotton swabs were exposed and piled on a counter; syringes and medications were also exposed on the countertops. In this room the narcotics supply was stored in a locked cabinet. Two dogs were present in the clinic, one of which had patches of hair missing as if diseased. (T-46, 49, Petitioner's Exhibits #3 and #4) There was no evidence that patients had access to the kitchen, supply room or Dr. Dossick's bedroom. Patients occasionally go to the former examining room and wait there prior to seeing the doctor. Dr. Dossick keeps his own dog at the clinic and, even though he does not encourage them, his patients sometimes bring their animals to the clinic with them. Dr. Dossick admitted that he had trouble for a while keeping the place clean. The woman who worked for him injured her knee in a karate tournament and had surgery. While the admission of problems was candid, the excuse regarding the former cleaning worker was confused: the handwritten statement Dr. Dossick presented from Barbara O'Rourke suggested that her accident and subsequent surgery occurred in April and July 1 85, respectively; that is, several months after the DPR inspectors' visit. (T-64, 87-89, 105-106, 112-113). Linda Joyce Godfrey is a patient of Dr. Dossick. She is thirty-nine years old, was born with cerebral palsy, and around 1981 was diagnosed with multiple-sclerosis. She is crippled and walks unaided with considerable difficulty. She has undergone several operations and lengthy periods of hospitalization. She has been under the care of various physicians, including an orthopedist, several neurosurgeons, and another osteopathic physician. (T-66, 69) Ms. Godfrey began seeing Dr. Dossick after an extended hospitalization period. She picked him at random and asked for percodan, a controlled narcotic substance, generally prescribed for pain relief. He refused to give her the percodan and prescribed a non-narcotic medication instead. She continued seeing him and later he prescribed placidyl, percocet and percodan at various times to help her sleep and for the severe pain in her muscles and bones. He did not give her these medications until he obtained her hospital reports and talked with her regular physicians. (T-66,69,81) Ms. Godfrey admits that she was an addict. She claims that Dr. Dossick was initially unaware of this but later helped her get off the habit. On one occasion she went to his office in the state of apparent overdose. He called Hialeah Fire and Rescue and got her out of there. He told her not to come around anymore because he didn't go for drugs. She later went back and asked for help. The evidence is inconclusive as to whether Ms. Godfrey's episode was an overdose or a grand mal seizure. (T-69, 73-76, 80, 90-91). According to Ms. Godfrey, Dr. Dossick injected her with Demerol on only one occasion, around six weeks prior to the hearing, after her apartment was broken into and she was raped. (T-71, 72). The practice of osteopathic medicine encompasses all aspects of medicine commonly referred to as allopathic medicine, but also includes physiotherapy, manipulative therapy, nutrition: a holistic approach. (T-13,14). This characterization of the distinction between the professions is borne out in the statutory definitions of "practice of medicine" and "practice of osteopathic medicine": "Practice of osteopathic medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition, which practice is based in part upon educational standards and requirements which emphasize the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health. 1l. Except for the underlined verbiage the two definitions are the same. See Section 458.305(3) Florida Statutes, and Section 459.003(3) Florida Statutes. One of the rudiments of osteopathic medicine values the "laying of hands" as part of caring for a patient in a very kind and personal manner. Cleanliness of the person and the physical area surrounding the practitioner is essential to avoid transferring disease from one patient to another. (T-18,19) Animals should not be present in the clinic because of the potential for communicating disease to humans through fleas, flies or the animals. (T-18) Old, dirty drugs and syringes should be disposed of in such a manner as to avoid access and use. (T-19,20) The above standards were described in the competent, uncontroverted testimony of Petitioner's expert, Ralph Birzon, D.O. Those standards were violated by Dr. Dossick when he allowed dogs in the clinic, when he failed to properly dispose of old drugs and syringes, and when he failed to keep his clinic clean. Dr. Dossick does, however, treat his patients in a very kind and personal manner. Ms. Godfrey was called as Petitioner's witness. Her testimony was credible and touchingly candid, as also was Dr. Dossick's. Ms. Godfrey said Dr. Dossick helped her; he took pity on her; he is good to his patients and is a good man. She does not have the money to pay for his treatment or the prescriptions, so she sometimes files and answers the phone at the clinic. Dr. Dossick is the oldest physician in the area; he spends a lot of time with his patients and they depend on him. He regularly treats his patients without charge, or for a token fee. He also loans them money for prescriptions. He has treated some patients for 25-30 years. (T-81, 83, 93, 95-96, 103) Dr. Dossick has previously been suspended by the Board of Osteopathic Medical Examiners for six months because of allegations that he prescribed medication without performing an examination. He volunteered this fact. (T-97, 107-109) The violations occurred approximately ten years ago. See Board of Osteopathic Medical Examiners v Dossick DOAH #76-1814; Dossick v Florida State Board of Osteopathic Medical Examiners, 359 So. 2d 12 (Fla. 3rd DCA 1978). The clinic has been cleaned up since the investigators' visit and the dirty and outdated drugs have been discarded. (T- 88,104)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent Lawrence E. Urban has been an osteopathic physician for thirty years, and holds license number 0S 0001232 in the State of Florida. After an administrative hearing in another disciplinary proceeding, the Division of Administrative Hearings' Hearing Officer entered a Recommended Order on September 26, 1986, finding respondent guilty as charged and recommending that his license be suspended for one year and that he be placed on probation for three years. (DOAH Case No. 86-2112) On December 13, 1986, respondent appeared before the Board of Osteopathic Medical Examiners when they considered this Recommended Order. At that time, he was informed by the Board that his license would be suspended for a period of one year. In addition, an attorney for the Board informed the respondent that he must cease practicing at the time he was served with the final, written order. The Final Order of the Board, dated January 19, 1987, and filed on January 26, 1987, adopted the Recommended Order in toto, including the recommended penalty of suspension and a three year probationary period. The Final Order further set forth certain conditions during the four year period of suspension and probation, and advised respondent of his appellate rights. The written order also stated "This order takes effect upon filing." Respondent received a copy of the Final Order by certified mail in January of 1987. After receiving that Order, he continued to practice medicine in Florida until July 17, 1987. He continued to see patients, examine patients arid write prescriptions. Respondent testified that he believed and assumed that he would be served the Final Order by a process server and that, until he was served in that manner, he could continue to practice osteopathic medicine. Respondent admitted that he had received other orders and documents from the Board through the mail. Although petitioner himself did not desire to appeal the January 26, 1987, Final Order of the Board, a Notice of Appeal was filed on his behalf on February 20, 1987, by Dr. Woodley, the proprietor of Clearwater Community Clinic, because he wanted the respondent to continue practicing. On May 18, 1987, a Motion for Automatic Stay was filed in the appellate court, which motion was granted by an order filed on June 3, 1987. It is not clear from the record who filed the Motion for Stay, but respondent stated that he never consulted an attorney to determine if he had a stay. On June 29, 1987, a Notice of Dismissal of the appeal was filed, and on July 2, 1987, the District Court of Appeal, Second District, entered an Order of Dismissal. In addition to the Final Order from which the instant charges stem, respondent has been previously disciplined by the Board and has undergone periods of probation. In both of the prior disciplinary actions, respondent was found guilty of abetting an unlicensed person to practice osteopathic medicine. In the latter proceeding, he was also found guilty of violating a lawful order of the Board.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 459.015(1)(cc), Florida Statutes (1986 Supplement), that the previous one-year suspension and three-year probation imposed by the Final Order filed on January 26, 1987, (DOAH Case No. 86-2112) be extended for a period of six months, and that an administrative fine in the amount of $1,000.00 be imposed against the respondent. Respectfully submitted and entered this 29th day of October, 1987, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3126 The proposed factual findings submitted by counsel for the petitioner are accepted and included herein, with one exception. The first sentence of proposed finding of fact number 10 is rejected as contrary to the evidence. However, as noted in the Conclusions of Law, respondent's misunderstanding in this regard was unreasonable and unjustified. COPIES FURNISHED: Leslie Brookmeyer, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Lawrence E. Urban, D.O. Post Office Box 4672 Clearwater, Florida 33518 Rod Presnell, Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: At all times material hereto, Respondent was an osteopathic physician licensed by the State of Florida having been issued License Number OS 0016000. In August, 1984, one Jacob Kantor was a regular patient of both Respondent and Dr. Barry Goldberg, a chiropractor employed by Respondent. Kantor periodically came to the office for chiropractic therapy with Dr. Goldberg and for medical examination and treatment by Respondent. Kantor often showed up at Respondent's office without an appointment. On August 13, 1984, Jacob Kantor came to Respondent's medical office and discussed with Dr. Goldberg whether he could obtain reimbursement for a bill Kantor had paid to another chiropractor. Goldberg advised Kantor that, as an HMO patient, procedurally he should have first sought a referral to another chiropractor before obtaining services from a chiropractor, not affiliated with Respondent's practice, when he wished to be reimbursed by Respondent. Goldberg suggested that he talk with Respondent who perhaps would make an exception to the usual procedure in this instance. Kantor did not ask for medical treatment from Respondent on that visit although he did speak with Respondent about getting reimbursed for the fees he paid to an unaffiliated chiropractor. Respondent explained to Kantor that he was not entitled to reimbursement for chiropractic treatment received from chiropractors not associated with his office without his prior approval. Respondent then terminated the conversation with Kantor and proceeded to an examination room to treat a female patient. Kantor followed Respondent into the examination room and insisted upon continuing the conversation concerning the reimbursement. Respondent escorted Kantor out of the room and closed the door. Kantor persisted and re-entered the room, again interrupting Respondent's intended examination of the female patient and was, for a second time, escorted by Respondent out of the examining room. Debbie Lombardo, a medical assistant whose employment was terminated by Respondent five days after the alleged incident, recalled Kantor's repeated interruption of Respondent's attempt to examine the female patient. Respondent touched or pushed Kantor which resulted in his (Kantor) losing his balance and falling backwards inside the doorway of an adjoining room. Lombardo assisted Goldberg in picking up Kantor from the doorway that he fell into in losing his balance. Dr. Goldberg did not see what caused Kantor to lose his balance but he did observe Kantor back-pedalling out of an examination room, through the hallway, into an adjoining room and ultimately landing against the back wall of that room. Goldberg assisted Kantor in getting up from the floor. Lombardo was in another room assisting with a patient at that time. Kantor, who did not testify at the Final Hearing, alleged in his initial written complaints to the Petitioner that he did not fall but instead fell into the arms of Dr. Goldberg. To the contrary, both Goldberg and Lombardo denied that Goldberg prevented Kantor from falling after he lost his balance. In his statement to Investigator O'Connell during 1984, Kantor again stated that when he lost his balance, he was caught by Goldberg who prevented him from falling. Respondent denied pushing or otherwise attempting to strike or threaten Kantor. Archie Page, a former patient of Respondent, witnessed the incident in August, 1984. Page observed that Kantor appeared mad and taunted Respondent while Respondent was trying to restrain and calm him down. Page observed Goldberg coming out of his office, putting his arms around Kantor and taking him toward the waiting room following the incident, all in an effort to put him at ease. Page denied that Respondent pushed Kantor or that Kantor was ever on the floor. 1/ Resolution of the issue, concerning an alleged battery, although not charged in the complaint, requires a credibility choice between Respondent, his former patient Archie Page and Respondent's two previous employees, Debbie Lombardo and Barry Goldberg. The testimony of former patient Archie Page appears more credible as he has no personal interest in the outcome of the proceedings, his testimony was direct and he appeared most credible during the hearing. Three months after the subject incident, investigator O'Connell went to the offices of Respondent to investigate the incident and interviewed Respondent and Goldberg. During that interview, Goldberg, who was not under oath, stated that Jacob Kantor needed a lot of help as he had a bad psychological problem. Referring to the alleged incident of August 13, 1984, Goldberg stated that, "its possible that I may have seen (Kantor) that day but I don't recall it, and I'd certainly remember seeing him if I was supposed to have seen Dr. Shore strike him. Nothing of this sort ever took place to my knowledge." (T-page 121, lines 14 through page 122, line 17.) Goldberg testified under oath at a deposition in a related civil case that he did not have to lie to the DPR agent because the subject did not come up. Goldberg further testified at final hearing herein that he told the truth when questioned during the course of that deposition. Goldberg again testified under oath at the trial of the related civil case that he did not lie to the DPR agent and that he did not even discuss the incident with the agent. Goldberg, under oath at final hearing herein, again initially testified that he did not discuss the incident with the DPR agent. Finally, Goldberg claimed that he lied by means of withholding information from the DPR agent and that he did so because Respondent threatened to hurt him if he did not lie to DPR's agent. 2/ Respondent did not strike, threaten to, or attempt to strike Kantor at anytime on August 13, 1984. Kantor, as testified by all witnesses, was a demanding and overbearing patient who would show up at Respondent's office, without an appointment and would demand treatment whenever he showed up. Within one week after the subject incident, Kantor came back to Respondent's office seeking treatment for an abrasion and a cyst and wanted a referral to a proctologist. Respondent made the referral and had no further contact with Kantor. Such actions by Kantor is not indicative of a patient who was the subject of an assault and battery at the hands of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order dismissing the Administrative Complaint filed herein in its entirety. DONE and ORDERED this 28th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1988.
Findings Of Fact Respondent, Eugene W. Williams, II, is an osteopathic physician licensed in Florida, and was so licensed at all times relevant to this proceeding. His address is 4394 Palm Beach Boulevard, Fort Myers, Florida 33905. On June 21, 1979, Sue Riley presented herself to Respondent for treatment of a fractured left distal radius. Respondent ordered arm elevation and ice bag treatment to reduce the swelling. The next day, he set the arm in a cast and performed a closed reduction. The injured arm was initially x-rayed at the hospital emergency room on June 21, 1979, and was not x-rayed again until July 5, 1979, when Respondent noted that the fracture was not closed. He then referred the patient to an orthopedic specialist. The testimony of Petitioner's expert witness indicated that a second X ray should have been taken after casting rather than two weeks later to insure that the fracture was, in fact, closed. Without such an X ray, Respondent could not be certain that the fracture was closed initially or that it had not reopened. Respondent's testimony and that of two other experienced physicians established that it is not uncommon to omit the X ray immediately after casting. In their view, no X ray is needed for ten days to two weeks provided the fracture appears to have been closed and properly aligned. Respondent's testimony established that all indications were favorable following casting and that he did not believe an X ray was needed for ten days to two weeks.
Recommendation From the foregoing, it is RECOMMENDED that the Second Amended Administrative Complaint be dismissed. DONE and ENTERED THIS 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 1983. COPIES FURNISHED: James B. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 JulieAnn Ricco, Esquire 1655 Palm Beach Lakes Boulevard Suite 106, Forum III West Palm Beach, Florida 33401 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue An amended administrative complaint, dated July 31, 1989, alleges various violations of Chapter 459, F.S., by Respondent. Counts V, VI and VII, relating to Respondent's treatment of patient, R.C., were voluntarily dismissed by Petitioner at the commencement of the hearing. The following allegations are left at issue: That Respondent violated Section 459.015(1)(u), and (y), F.S., by prescribing Percodan and Ritalin, controlled substances, to his wife, G.I., inappropriately or in excessive quantities. That in the treatment of his wife, Respondent failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances, in violation of Section 459.015(1)(y), F.S. That Respondent violated Section 459.015(1)(p), F.S., by failing to keep medical records justifying the course of treatment of G.I.; and that of his mother, M.I., for whom he prescribed Demerol.
Findings Of Fact Respondent, Donald Iafornaro, D.O., is and has been at all times material to the allegations of the amended administrative complaint, a licensed physician in the State of Florida, with license number OS 0001794. Dr. Iafornaro has a limited osteopathic practice which he conducts from his home at 1802 North Lakemont, Winter Park, Florida. He has about fifty patients, and also treats his large family, including his wife, mother, eleven children and grandchildren. G.I. has been a patient of Dr. Iafornaro for approximately 25 years -- since 1973, as his wife, and prior to that, from 1964, along with the rest of her family in Cleveland, Ohio. Mrs. Iafornaro has had a demanding job caring for the Iafornaro children, her mother-in-law, the house and pets, and has recently been her husband's only staff in his practice. Between May 1985, and April 1987, her husband treated her for a variety of medical problems, including severe allergies, sleep apnea (a mechanical difficulty in breathing during deep sleep), depression, fatigue, a chronic fracture of the foot bone (a fracture which failed to heal), spinal stenosis, an unstable hip, ulcers, angina and various gynecological complaints Between May 1, 1985, and April 11, 1987, Dr. Iafornaro prescribed the following drugs, among others, to his wife: 2,720 tablets of Percodan 900 tablets of Ritalin Percodan is the product name for oxycodone hydrochloride, and Ritalin is the product name for methylphenidate hydrochloride. Both are Schedule II controlled substances and are legend drugs as defined in Section 465.003(7), F.S. With the concurrence of the parties, official recognition was taken of the Physician's Desk Reference (PDR) for the years 1984-1987. Petitioner also presented the testimony of two osteopathic physicians practicing in Dr. Iafornaro's community. The evidence from these authorities established that the prescriptions of Percodan and Ritalin for G.I. were inappropriate or in excessive quantities. Dr. Iafornaro felt that Ritalin was necessary to counteract the sedative effect of the antihistamines his wife had to take for her many allergies. He also prescribed the Ritalin for her depression. Ritalin is a mild central nervous system stimulant. It is indicated for attention deficit disorders (primarily in children) and narcolepsy. It should not be used for severe depression or for the prevention or treatment of normal fatigue. The PDR warns of drug dependence. Ritalin is also contraindicated in patients, such as G.I., who have exhibited anxiety, tension, depression and agitation. Ritalin may cause reactions such as skin rashes, a common complaint of this patient, but a problem which Dr. Iafornaro attributed to her multiple allergies. The Percodan was prescribed by Dr. Iafornaro for his wife's pain in her foot and for other pain in her low back and in her wrist. The PDR warns that Percodan may be habit forming. It contains aspirin, which can aggravate ulcers. It is indicated for relief of moderate to moderately severe pain; it is a depressant; it can cause apnea and respiratory depression in an overdose. Mrs. Iafornaro's statement that she used only about a half a tablet a day is inconsistent with the volume of the drugs prescribed for her over the relevant period. Dr. Iafornaro produced all of his medical records for G.I. for the relevant period. He claims they are incomplete because he also makes notes on odds and ends, writes on the back of a medical journal and keeps a lot of records in his head. (Iafornaro Deposition, p.15) The medical records produced by Dr. Iafornaro do not justify his course of treatment,for this patient, and particularly fail to explain the long-term volume of drugs that he was prescribing. Dr. Iafornaro claims that the probable cause panel previously reviewed his records and found them acceptable. The records were produced in response to charges that he had violated certain terms of an earlier disciplinary action. The issue was resolved with a "no probable cause" finding. That finding, in 1983, was for a different time period than the period at issue in this proceeding. Dr. Iafornaro provided records to the panel covering a limited period in 1983 when he was treating his wife for her foot fracture, a slip and fall accident and other acute conditions. The 1983 records, in contrast to those at issue here, describe the condition and his treatment. The later records provide copious listings of a variety of prescriptions, including the Percodan and Ritalin, with scant examination results, explanation of the condition being treated, or diagnoses of the complaints. Complete written medical records are an essential element of prudent osteopathic practice, particularly when, as here, the physician is treating his family and his objectivity may be questioned. Between January 5, 1987, and March 1, 1987, Dr. Iafornaro prescribed 200 50 mg Demerol tablets to his 84 year old mother, M.I. Demerol is a product name for meperidine hydrocloride, a Schedule II controlled substance, and a legend drug as defined in Section 465.003(7), F.S. The basis for the prescriptions was an episode of right upper quadrant pain felt to be of gallbladder origin. It is cheaper to purchase Demerol tablets by the 100. After M.I. took a few of the first prescription of 100, she lost the bottle and Dr. Iafornaro replaced it with another prescription. The medical records make no mention of the lost prescription, but they marginally justify the use of this drug for the limited period in issue and for the purpose intended. A previous disciplinary case involving allegations of Dr. Iafornaro's improper prescriptions and record-keeping practices was resolved with a stipulation for his one-year probation with conditions. The stipulation was approved by the Board of Osteopathic Medical Examiners in a Final Order entered on December 28, 1982. (DPR Cases #0010979, 0014467, and 0015303)
Recommendation Based on the foregoing, it is hereby, RECOMMENDED That the Department of Professional Regulation, Board of Osteopathic Medical Examiners enter a Final Order which finds Donald Iafornaro, D.O., guilty of having violated the provision of Subsection 459.015(i)(p), (u) and (y), F.S. and imposing the following penalties: Suspension of license for 90 days and until such time as he appears before the Board of Osteopathic Medical Examiners and establishes that he has taken and passed the examination conducted by the National Board of Examiners for Osteopathic Physicians and Surgeons or the Special Purpose Examination (SPEX) of the Federation of State Medical Boards, as designated by the Board of Osteopathic Medical Examiners in its final order; Upon reinstatement that his license be placed on probation for two years subject to such terms and conditions deemed appropriate by the Board, including, but not limited to, restriction of practice, direct or indirect supervision of practice or prescribing of controlled substances and required additional continuing education; That he be permanently restricted from prescribing controlled substances to family members, unless under direct supervision of another osteopathic physician; That a reprimand be imposed; That a fine of $2,000. be imposed. DONE AND RECOMMENDED this 23rd day of February, 1990, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5277 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Rejected as unnecessary. Adopted in paragraph 1. 3.-5. Adopted in paragraph 5. Adopted in paragraphs 6, 8 and 10. Some blood pressure monitoring is found in the records however. Adopted in paragraph 6. Adopted as a conclusion of law and in paragraph 6. Adopted in paragraph 12. Adopted in paragraph 15. Adopted in paragraph 16. Rejected as contrary to the weight of evidence. Adopted in substance in paragraph 19. Respondent's Proposed Findings Rejected as unnecessary. Adopted in paragraph l. Adopted in part in paragraphs 7-10, otherwise rejected as unnecessary. 4.-6. Rejected as contrary to the weight of evidence. 7.&8. Adopted in paragraphs 15, 17 and 18. 9. Rejected as immaterial. COPIES FURNISHED: Bruce D. Lamb, Esquire Dept. of Professional Regulation 730 S. Sterling Street Tampa, FL 33609 Sam Murrell, Jr., Esquire P.O. Box 1749 Orlando, FL 32802 Kenneth D. Easley, General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792 Rod Presnell Executive Director Osteopathic Medical Examiners Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, FL 32399-0792
