Findings Of Fact Alexander G. Toth graduated from medical school in 1943 and migrated to Miami in 1948. He took his three-year residency in general surgery at the V. A. Hospital in Miami starting in 1951 and thereafter practiced general surgery until 1976 when he had a serious accident. This accident plus additional health problems caused him to give up surgery and he has practiced family medicine since 1976. His office hours have been limited from 9 until 12 each week day since 1976. Approximately 10 patients per day were seen by Respondent during the period involved in these charges. At all times here relevant Respondent was licensed by Petitioner as a physician. Richard Hatcher was a patient of Respondent in 1975 at which time he complained of headaches and low back pain. Respondent prescribed Percodan, Doriden, Dilaudid and Placidyl during a one-year period Hatcher was a regular patient. At this time Hatcher had a suit pending to recover damages for injuries received in an automobile collision. Hatcher did not see Respondent with any regularity again until 1978. Respondent's patient records of Hatcher (Exhibit 5) show he treated Hatcher on 11-20-78 on complaint of can't sleep, low back pain and spasm of lower back, by prescribing 100 Valium and 100 Percodan. Exhibit 6, which is a copy of prescriptions written by Respondent for Hatcher, shows the following prescriptions were written for Hatcher on dates indicated: 6/2/78 - 30 Valium 10 mg; 8/8/78 - 50 Seconal and 30 Fastin 30 mg; 10/11/78 60 Tuinal 3 grs, 60 Fastin 30 mg, 50 Valium 10 mg and 100 Percodan; and 11/20/78 - Valium 10 mg, 30 Fastin 30 mg and 100 Percodan. Exhibit 5 shows in 1975 Hatcher was 6 feet and 180 pounds. The entry dated 12/18/78 opposite Fastin is (Wt 205). During the period 12/18/78 to 2/27/79 Respondent prescribed for Hatcher on numerous prescriptions the following: 300 Percodan, 250 Valium, 230 Tuinal 3 gr, 60 Fastin, 60 Demerol 100 mg, one 30 cc vial Demerol 100 mg per cc, and 30 syringes (Exhibit 6) . Exhibit 5 contains an entry dated 3/2/79 "(Wants Demerol) Refused - refer to JMH", and a final entry (3-19) Deceased." Hatcher voiced the same or similar complaints of pain on each visit to Respondent. Richard Hatcher was found dead in his apartment on or about 21 March 1979 some 24 to 36 hours after he died. Cause of death was acute intravenous narcotism. The syringe with which the fatal narcotic was injected was still in his arm when his body was found. Due to the rapid clearing of many drugs from the blood the autopsy failed to reveal which of the opiate drugs caused Hatcher's death. About one week later Mrs. Hatcher, the mother of Richard, received from her ex-husband and father of Richard a page from a notebook found in Richard's apartment after his death signed by Richard which indicates some concern by Hatcher that he might overdose on drugs given him by Dr. Toth, the Respondent (Exhibit 12). Richard Hatcher became seriously involved with drugs in 1967 when he was 21 years old. By 1975 his mother noted a personality change where he would quickly go from normal to extremely agitated. In the fall of 1978 Hatcher committed himself to Village South, a drug rehabilitation program in Dade County, for some 4 or 5 months. After release from Village South Hatcher continued to take drugs. To his mother's knowledge he overdosed several times before his death. Three times she found him unconscious on the floor of her apartment and on numerous other occasions he was "spaced out". Respondent testified that Hatcher showed no indication he had abused or misused the medications Respondent prescribed. If so, it is evident that Respondent did not closely observe Hatcher or do more than hear his litany of pain. On the other hand, Exhibit 5 shows that some 2-1/2 weeks before Hatcher's death Respondent refused to prescribe the Demerol wanted by Hatcher. Unless Respondent recognized the seriousness of Hatcher's addiction it is not conceivable that he would suddenly refuse drugs so freely prescribed in the past. Michael Kavney was a patient of Respondent from June 1979 until his death from an overdose of Placidyl on 14 or 15 January 1980. On June 11 1979 Kavney complained of pain in his shoulder and Respondent prescribed 50 Tylenol. Kavney was 6 feet tall, weighed 189 pounds, and told Respondent he wanted to lose weight. Respondent on June 11, 1979 also prescribed 50 Fastin. On 8-16-79 Respondent, at Kavney's request, called in a prescription for 50 Valium. On 9/7/79 he called in a prescription for 50 Tylenol. Both of these prescriptions resulted from a phone call to Respondent. On October 29, 1979 Kavney visited Respondent, told him the shoulder pain persists and he would like some more weight reducers. By this time Kavney's weight was down to 185 pounds from 189 four months earlier. Respondent prescribed 50 Tylenol, 50 Valium (Exhibit 4) and 30 Fastin (Exhibit 3). By script dated 11/21/79 Respondent prescribed 50 Fastin for Kavney and by script dated 11/26/79 he prescribed 50 Tylenol (Exhibit 4). No record of these is contained in Exhibit 3. By entry on Exhibit 3 dated December 17, 1979 Respondent recorded "pain left shoulder, using heat at home, can't take codeine, Percodan 50". The Tylenol, which had been prescribed on four previous occasions, contains 1 grain of codeine per tablet. On January 14, 1980 Kavney visited Respondent, told him of disturbed sleep patterns, that he had taken Placidyl on prior occasions with good results and Respondent prescribed 60 Placidyl (750). Kavney was found dead in his automobile with an empty bottle with Placidyl label on the floor. An autopsy done on January 15, 1980 shows Kavney died from an overdose of Placidyl. Terry McGarey grew up in Miami and played in bands with Kavney as early as high school days. He had also known Hatcher since 1963. McGarey first visited Respondent in 1970 with an arm injury. He next saw Respondent near the end of 1976 and he complained of headache and leg pains from an earlier motorcycle accident. McGarey received a prescription for Percodan. McGarey, who appeared as a witness, testified that he had visited Respondent every three or four weeks in 1976 complaining of headache and during these visits he also received Placidyl, Demerol, Parest and Valium. These visits continued in 1977 with the same frequency and results. Respondent's patient records for Terrance McGarey (Exhibit 1) commence 3/28/78. The first entry is not dated but states "cc severe headaches - nausea - at JMH March `78. Neuological dept. - treated for organic brain syndrome - at JMH 1976 migraine - no allergies - only relief Demerol. Rx demerol 100 mg #5 fiorinal tabs." Thereafter Exhibit 1 shows entries 7-31-78, 8-7-78, 8-28, 9-1, 9-6, 9-11, 9-27, 10-9, 10-20, 10-29, 10-31, 11-16, 11-22, 12-18, 12-22, 12-29, 1-3, 1-8, 3-21 and 4-19-79. Most of these entries resulted from office visits but some entries recorded prescriptions as a result of phone calls. During this period prescriptions were issued to McGarey for Percodan, Emperin, Doriden Parest, Tuinal, Demerol, Placidyl, Dalmane, Darvon, Seconal and Valium (Exhibit 2) On May 7, 1979 McGarey called the Cardella Pharmacy saying he was Dr. Toth, gave the correct DEA number and authorized the delivery of 18 Placidyl 50 mg to patient Jerry McGaret. The pharmacist called the doctor's office, which was closed, and then issued the drugs to McGarey. A subsequent try was unsuccessful when the pharmacist was told by Respondent's office that this man was no longer a patient of Respondent. Respondent testified that he treated McGarey for migraine headaches, insomnia, nervousness, and low back pain. He found no evidence of abnormal conditions in his examination of McGarey. Through mid-October Respondent had no indication McGarey was in a methadone program or addicted and the drugs were continued with each visit or phone call. On December 29 Respondent learned from McGarey that he had been admitted to JMH for seizures and the resident recommended Seconal. On this basis Respondent prescribed Seconal but did not learn the cause of the seizures. On January 8, 1979 McGarey's mother called Respondent to advise that her son was a drug abuser and had been on a methadone program for 18 months. Following this entry is the notation "No more Rx's - back to JMH". Respondent's next entry on Exhibit 1 is "Called records at JMH patient admitted 2-9-79 - overdosed - discharged 2-14 Signed out - mother took him home." Although Respondent testified it never entered his mind that McGarey might be a drug abuser he also testified that the symptoms of narcotic addiction are agitation, nervousness, slurred speech and poor equilibrium. On the witness stand McGarey exhibited traits of nervousness and agitation. He appeared hyperactive rather than calm and sedate. His movements were jerky rather than fluid and he did not give the impression of a normally relaxed person under tension because he was testifying. On 11 January 1980 Kirk Kratz, a 29-year-old male, visited Respondent's office as a patient. He had a cast on his right upper arm and stated it was fractured some two weeks earlier. Also he had received a gunshot wound in the abdomen before Christmas and a laparotomy had been performed. He complained of pain in the right arm. He was given a prescription for 100 Percodan for pain and 60 Tuinal 3 gr for sleep. Kratz returned 12 February with same complaints and was given prescriptions for 100 Percodan, 60 Tuinal and 30 Valium. On 2/29 Kraft appeared without the cast, told Respondent the police had broken the cast, held him in jail for 3 days and confiscated his medication. He was given prescriptions for 100 Percodan and 60 Tuinal. On 4/8/80 Kratz still complained of "pain in the shoulder and arm and can't sleep." Prescriptions for 100 Percodan, 60 Tuinal and 100 Valium were given him. Finally on 6/13, with complaint of pain in hand and shoulder, Kratz was given prescriptions for 100 Percodan and 30 Doriden (Exhibit 9). Hatcher and McGarey were drug addicts before and during the time they were being treated by Respondent. At one time or another both of them had been enrolled in the methadone program at Jackson Memorial Hospital and/or other withdrawal programs for addicts. In addition to getting drugs from Respondent, they were also obtaining drug prescriptions from other doctors. Also from the quantity of drugs prescribed for Kavney and Kratz it is evident that both of these individuals were also addicts. During the period between 1 January 1980 and 14 June 1980 Respondent, with an active practice of some 700 patients prescribed approximately 28,000 Percodan and 2,000 Percocet tablets to various patients. Exhibit 16 shows a breakdown of the 130 patients treated by Respondent during this period. While Exhibit 16 shows Kirk Kratz received 100 Percodan only on 2/29/80, Exhibit 8 indicates he received 500 Percodan between 1 January and 14 June 1980. Assuming all other entries on Exhibit 16 to be accurate, a spot check shows the following patients were given Percodan or Percocet during the period 1 January - 14 June in the following quantities: Steven Arnold - 300; Cathy Blauk - 450; Bill Davis - 500; Kirk Decker - 300; George Fernandez - 300; Sidney Ford - 600; Ron Jangie - 300; Jerome Johnson - 300; Patty La Fortuna - 310; Vincent La Fortuna - 200; William Leonard - 350; Mary Leslie - 300; Gus Melquezo - 400; Michael Pravioski - 225; Debbie Saey - 250; Robert Sandifer - 400; James Setters - 300; Alvin Terrell - 300; Mike Thill - 300; Mark Wolfson - 200; Joe Worth - 300; and Harvey Zemaster - 200. Exhibit 16 also shows that most of these prescriptions were written for quantities of 100. It also lists almost 18,000 Percodan issued to 130 patients during this period, or an average of 140 per patient. Percodan, Tuinal, Parest, Demerol and Seconal are Class II drugs. One hundred Percodan taken in a one-month period will cause addiction in the taker. After 48 hours taking Percodan every 4 to 6 hours the patient will have withdrawal symptoms. Although Placidyl, Valium, Doriden, Empirin and Dalmane are not Class II drugs, they are dangerous and therefore controlled. Fifteen Placidyls taken at one time can be fatal. Many of the drugs prescribed by Respondent, when taken in combination, create a synergistic effect which makes the combination greater than the sum of its parts. Similarly a synergistic effect is created when some of these drugs are taken in conjunction with alcohol. Fastin is used for weight control. Neither Hatcher nor Kavney at 6 feet and 180 - 185 pounds should have been a candidate for weight loss. Further, prescriptions for Fastin and Seconal (for sleep) at the same time are incompatible as one is an upper, the other a downer. Tuinal in combination with Valium will increase depression. When Fastin is added, a pharmacological jungle can result. Respondent acknowledged that he relied more on the statements of his patients than upon an examination to determine when to prescribe medications. If the patient said he hurt, Respondent would prescribe a pain killer. A two- week-old fracture properly set and in a cast should cause little pain. If pain persists two weeks after casting something is wrong that will not likely heal itself. Therefore, painkillers to mask the symptoms are contraindicated. Similarly, a persistent pain in the shoulder is likely to be caused by inflammation and an anti-flammatory agent is indicated. Neither Tylenol nor Percodan are anti-inflammatory agents. Dr. John V. Handwerker, M.D. was accepted as an expert in family practice medicine. After reviewing Respondent's records of Hatcher, Kavney, Kratz and McGarey he expressed the strong opinion that the complaints of the patients did not justify the narcotics prescribed; that much larger quantities of each drug were prescribed at one time than was medically indicated or prudent; that drugs were prescribed in dangerous combinations due to the synergistic effect if taken together, plus some of these drugs such as Fastin and Valium are mutually exclusive; that issuing a prescription to take these drugs "as needed" was improper and dangerous; and that narcotics were frequently prescribed for alleged ailments for which more effective non-narcotic drugs were available. This witness was particularly critical of the prescription for liquid Demerol, as this should be prescribed only when the patient can't take the drug orally. After reviewing Exhibit 7 Dr. Handwerker expressed the opinion that prescribing 28,000 Percodan tablets during a 5-1/2 month period could only be justified with a large practice limited to trauma patients and that the records and prescription schedules show a practice harmful to the public. This opinion was based partially on Dr. Handwerker's practice in which, during the same period, he saw 2,081 patients and wrote 73 prescriptions for 1,996 Percodan tablets. Exhibit 7 contains 291 prescriptions issued by Respondent during this period, and recovered by Petitioner's investigator from pharmacies in the vicinity of Respondent's office. These coupled with Respondent's patient records show some 28,000 Percodan and 2000 Percocet tablets were prescribed. Valium is the most commonly prescribed drug in the United States and one of the most abused drugs. If a patient is emotionally stable 60 Valium is too many to prescribe for a patient at one time. If a patient is emotionally disturbed there is even greater reason for not prescribing 60 Valium. Dr. Roderick Palmer, M.D., testified as an expert in clinical pharmacology. He opined that prescribing 100 Percodan for a patient at one time was not appropriate because if the pain results from a traumatic injury, such injury will normally cease being painful in 4 or 5 days, and 100 Percodan is enough to commit suicide or become addicted. Dr. Palmer described Percodan and Placidyl as widely abused drugs. Sixty Placidyl in one prescription is too many because of suicide potential. Further, if one Placidyl is taken every day for 60 days the patient would probably become addicted. Taking more than one Placidyl per day could impair coordination enough to result in an industrial or automobile accident or other injury. With respect to Exhibit 7, Dr. Palmer cited instructions for Percodan or Percocet that the physician should not prescribe enough to result in addiction (not more than 30) nor prescribe enough for patient to commit suicide. It is necessary for patients to return to the physician before the patient can become addicted to the drugs prescribed. In this way the doctor will not lose control over the patient which could result in the patient becoming addicted. With respect to the 28,000 Percodan prescribed in a 5-1/2 months period Dr. Palmer viewed that quantity as more than he would prescribe in a lifetime. Dr. Murray Sims, M.D., is a Board certified surgeon who testified on behalf of Respondent. He found the prescriptions issued to Hatcher, Kavney, McGarey and Kratz to be proper for the complaints of the patients. Sims has known Respondent for many years, and has worked, studied, and taken examinations with Respondent. Dr. Sims prescribes Percodan in quantities of 100 and even 200. He does not believe 100 Percodan taken in a 30-day period is addictive. He has one 93-year old patient to whom he mails prescriptions for 100 Percodan per month (40 to 60 days) because, as she told him, "It makes my day start off right." (Tr. Vol. II, p. 102). When asked if Percodan and Tuinal taken together would have a synergistic effect Dr. Sims said no (Tr. Vol. II, p. 67) but on p. 119 he testified "I guess it would, you get a relief of both, yes. Don't hold me too much about pharmacy." Dr. Sims practice is 99 percent devoted to surgery patients and if he has a patient with a non-surgical related disorder he usually refers the patient to another doctor. This witness's testimony regarding the various drugs prescribed by Respondent and the appropriateness thereof was not deemed as credible as was the testimony of Drs. Hardwerker and Palmer. This was so because the latter had more expertise in this area of medicine and demonstrated greater credibility on the witness stand.
Findings Of Fact Respondent, Eduardo Mejia, M.D., was a licensed physician from September 1, 1966, through December 1982. His license was not renewed from January, 1982 through December, 1985. Subsequently he received a reprimand from the Board of Medicine for failure to timely renew his license. His license was renewed and he is presently on an active license status, having been issued license number ME 0012387. T.B., the patient in this case, has been treated by Respondent since at least 1975 through the present date for essential hypertension, recurring headaches, and stress. Respondent prescribed Percodan to patient T.B. on a continuous basis from 1975 to the present date. During one period of two months in 1985, Respondent prescribed a total of 500 Percodan pills for the patient, reflecting a daily dosage of approximately 10 pills. During the period from November of 1983 until August of 1986, Respondent prescribed over 8,000 Percodan pills for the patient. Recently Respondent has begun to prescribe reduced daily doses of Percodan in conjunction with other pain killing drugs. Percodan is the brand name for Oxycodene, a Schedule II controlled substance. It is a synthetic form of morphine and comes from the opiate family of drugs which also includes heroin, morphine and codeine. Percodan is highly addictive and has a high potential for dependency. Typically used to treat acute pain of the type associated with broken bones or postoperative recovery, Percodan is normally prescribed for a limited, short period of time and its use carefully monitored by a physician. Percodan is not usually prescribed for an extended period of time due to the potential for patient addiction and dependence. The prescription of Percodan by Respondent in the quantities and duration proven in this case is generally appropriate only for the treatment of a terminal patient. The proof establishes that Percodan is not a drug indicated for use in the treatment of stress or anxiety. Further, the quantities of this drug, as prescribed by Respondent for patient T.B. for such a long period of time, is inappropriate, excessive and not justifiable by a prudent physician. Reynold Montague Stein, M.D., is a physician licensed in California, Florida and New York. Stein is an expert in chemical dependency or addictionology. He reviewed Respondent's medical records relating to treatment of the patient T.B. His review confirms that Respondent prescribed Percodan, a narcotic and schedule II drug, for T.B.'s chronic headaches, hypertension and job stress without making a diagnosis of the cause of the patient's health problems. Dr. Stein's testimony is corroborated by the testimony of Dr. Matthew Cohen, a family practice physician, and further establishes that Respondent's use of Percodan in the treatment of patient T.B.'s headaches constitutes a failure to practice medicine at that level of care, skill and treatment recognized as reasonably prudent by a similar physician in Florida. Respondent's medical records do not justiiy Respondent's course of treatment of patient T.B. The cause of the patient's continuing headaches is not addressed, nor do the records reflect that Respondent cautioned the patient with regard to continued use of large quantities of Percodan. Respondent did testify that his prescription of Percodan was a good faith effort to relieve the patient's headaches; however, he failed to offer any credible proof that such prescribing was in the best interests of the patient. Expert witnesses who testified on behalf of Respondent were not familiar with Respondent's records for patient T.B. One of Respondent's experts, Dr. Daniel Jacome, a neurologist who examined patient T.B., testified that he would not have prescribed Percodan for over 10 years to the patient and would have taken a different treatment approach.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violation of counts one, two and three of the administrative complaint and that such final order further impose an administrative penalty of $1500; place Respondent's license on probation for a period of two years upon terms and conditions to be determined by the Department of Professional Regulation, Board of Medicine; and prohibit Respondent from prescribing Schedule II controlled substances during such term of probation or for such longer period as may be determined by the Board. DONE AND ENTERED this 29th day of December, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 29th day of January, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS 1.-13. Addressed and adopted by reference. RESPONDENT'S PROPOSED FINDINGS 1. Rejected, conclusion of law. 2.-4. Adopted by reference. 5.-6. Rejected, unsupported by the evidence. Rejected as cumulative. Adopted by reference. Rejected, not relevant. Adopted by reference. 11.-13. Unnecessary to conclusion. Adopted by reference. Addressed. Adopted by reference. Unnecessary to conclusion. Not supported by the weight of the evidence. Rejected as substantial competent evidence regarding treatment rendered by Respondent. Not credited. Count four of the administrative complaint, having been dealt with by the Board of Medicine, is not ruled upon in this order. Not supported by the weight of the evidence. 23.-24. Unnecessary to conclusion reached. COPIES FURNISHED: Thomas W. Stahl, Esquire 817 North Gadsden Street Tallahassee, Florida 32303-6313 Carl Di Bernardo, Esquire 8603 South Dixie Highway Suite 210 Commercial Bank of Kendall Miami, Florida 33141 Bruce D. Lamb, Esquire General Counsel Department of Professidnal Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged by statute with regulating the practice of osteopathic medicine in the State of Florida pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes. The Respondent is and at all times material to this case was a licensed physician in the State of Florida, license #OS 0004352, last known address identified as 1232 S.W. 8th Place, Cape Coral, Florida 33991. From 1985 until 1992, the Respondent had a private general medical practice in Fort Myers. In 1991, the Respondent began to exhibit signs of emotional instability. In April 1991, the Department of Professional Regulation (DPR) received a report that the Respondent was attempting to locate injectible Demerol allegedly for his own use. This information was forwarded to the Physician's Recovery Network (PRN), but remained unverified. The PRN is a program operated by the health care professions to assist practitioners impaired by mental illness, physical or mental disability or chemical dependence. Demerol is a Schedule II Controlled Substance pursuant to Chapter 893, Florida Statutes. On July 8, 1991, the DPR again received a report that the Respondent was writing inappropriate prescriptions for patients and obtaining the medication for personal use. This information was again forwarded to the Physician's Recovery Network (PRN), but remained unverified. The PRN contacted the Respondent about the allegation. The Respondent denied the report. In 1992, the Respondent began to exhibit profuse sweating, involuntary muscle jerks, and inattentiveness to his work. Some patients expressed concern to office staff about the Respondent's condition. In 1992, a DPR investigator visited pharmacies in the Fort Myers area. She learned that the Respondent had been contacting area pharmacies in an attempt to locate injectible Demerol. She further learned that the Respondent would arrive at a pharmacy with a Demerol prescription made out to a patient and which he would obtain supposedly on the patient's behalf. She collected a number of such prescriptions which had been filled by pharmacies. Many of the prescriptions were made out for patients at Meadowbrook Manor, a nursing home at which the Respondent had patients. A review of the patient records indicated that none of the patients had been prescribed Demerol. On March 27, 1992, an member of his office staff contacted the Respondent by telephone and determined him to be incoherent. She went to the Respondent's house to ascertain his condition. After gaining entry to the home, she found a number of Demerol bottles in an open dresser drawer, at least one of which was empty. She also discovered syringes in the drawer. The Respondent's eye was blackened. Blood was visible about the bathroom in the house. The staff member determined that although the Respondent had fallen during the night, he was reluctant to seek medical attention. Several hours after the staff member had arrived at the Respondent's house, he was incoherent. She called for an ambulance. The Respondent was subsequently transported to the hospital. Examination of the Respondent clearly indicated that he had suffered a head injury. While in the hospital, the Respondent was examined by a board certified psychiatrist. According to the psychiatrist, the Respondent exhibited substantially impaired memory, was very guarded with his communication and, notwithstanding the injury, indicated his intent to leave the hospital quickly. He was unable to recall the current month and date. He denied prior consumption of alcohol despite lab tests to the contrary. He also denied having previously been chemically dependent, although he had been involved in the intervention of said problem in 1981. The psychiatrist diagnosed the Respondent as having residual organic brain syndrome as a result of his chemical intake. Based on the diagnosis, the psychiatrist recommended that the Respondent begin an inpatient drug rehabilitation program. The psychiatrist also referred the Respondent's impairment to the DPR. In March of 1992, the DPR alerted the PRN about the Respondent's condition. The PRN assigned a local representative to encourage the Respondent to seek treatment. On March 31, 1992, the Respondent entered a treatment program at Palmview Hospital. While in the program, he admitted to having self-injected Demerol. The Respondent was resistant to treatment while at Palmview Hospital. Although he acknowledged having previously received inpatient treatment at another facility, he alternately admitted and denied abusing Demerol. On April 10, 1992, the Respondent discharged himself from Palmview Hospital. The discharge was against the advise of the treating physician at Palmview. At the time of the discharge, PRN representatives discussed the matter with the Respondent. The Respondent stated that he was leaving the inpatient treatment program and was going to being outpatient treatment from the Palmview facility. The treating physician at Palmview told the PRN that the Respondent required three to four weeks of inpatient treatment. It was the opinion of the treating physician that the Respondent was not capable of safely providing medical care to patients at that time. Based on the Palmview information, the PRN instructed the Respondent that he must complete inpatient treatment and that he could not practice medicine until it was decided that he could do so safely. In April 13-16, 1992, the Respondent obtained a second opinion from another physician affiliated with the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach, Florida, where he was examined by a board certified addictionologist. According to the Mount Sinai addictionologist, the Respondent is addicted to Demerol and requires treatment. Based on the Mount Sinai information, the PRN instructed the Respondent not to practice and to seek immediate treatment for his addiction. On April 22, 1992, the Respondent reentered Palmview Hospital. Upon reentry, the Respondent denied using Demerol, but eventually acknowledged using the drug and being chemically dependent. It was determined during the second Palmview admission, that the Respondent was in need of approximately four months in a long term inpatient care treatment facility. On May 22, 1992, the Respondent was admitted to the Talbott-Marsh recovery program. He was diagnosed as having a personality disorder with antisocial, paranoid and narcissistic traits, and to being opiate dependent, On August 3, 1992, the Respondent left the Talbott-Marsh center without completing the program. The records and reports of the Respondent's condition were reviewed by Dr. Roger Goetz, M.D., the director of the PRN. Dr. Goetz, who also has personal knowledge of the Respondent's condition, is certified by the American Association of Addiction Medicine and has extensive experience as a medical doctor and in treating impaired physicians. Dr. Goetz asserted that the Respondent is suffering from a dangerous condition, that he is mentally ill and that he poses a threat to himself and to the public. Dr. Goetz opined that the Respondent is unable to practice medicine with reasonable skill and safety to patients and that his continued practice constitutes an immediate and serious danger to the public health, safety and welfare.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a Final Order determining that Benjamin D. Goldberg, D.O., has violated Section 459.015(1)(w), Florida Statutes, and revoking his license (#OS 0004352) to practice as a physician in the State of Florida. DONE and RECOMMENDED this 13th day of August, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1553 The Respondent did not file a proposed recommended order. To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 22, 37. Rejected, unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Francesca Plendl, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Benjamin Goldberg, D.O. 1232 South West 8th Place Cape Coral, Florida 33991
Findings Of Fact At all times material hereto Respondent has been licensed as a pharmacist having been issued license number 0015784. Respondent's license was previously suspended for a period of five (5) years by Final Order of the Florida Board of Pharmacy on June 15, 1984 in Case Number 0036893. In that prior case Respondent admitted to self medicating herself with controlled substances in violation of Section 465.016(1)(d)2, Florida Statutes. Respondent's license is therefore currently under suspension and has been suspended since June 15, 1984. Respondent was hospitalized at Shands Teaching Hospital in June, 1984 by George W. Sypert, M.D., for back and chest pains resulting from an automobile accident in May, 1983. This was Respondent's second hospitalization for treatment resulting from the accident. While hospitalized Dr. Sypert performed surgery on Respondent who was also attended by J. Marc Simard, M.D., a resident at the time. It was Dr. Simard who prepared the discharge summary on Respondent on June 19, 1984 and also wrote a discharge prescription for 10 Percodan which were to be taken one every six hours for severe pain remaining from the surgery which Dr. Sypert had performed. Both Respondent and her husband, George W. Bowen, were under the belief that Respondent would be "adequately medicated" for pain after her operation and upon her discharge. Mr. Bowen was formerly a licensed pharmacist in Florida, but his license has been revoked due to violations involving controlled substances. Mr. Bowen was extremely frustrated and concerned about the pain his wife was suffering and did not feel that 10 Percodan would be sufficient for her discharge. The Percodan prescription was given to Mr. Bowen who admitted during his testimony that he altered the prescription by adding a zero so that the prescription was then for 100 Percodan. Respondent never saw the prescription before or after it was altered, and her husband did not tell her what he had done. Mr. Bowen took this action out of concern for his wife and the pain she was suffering, and he did not take any of the Percodan himself. He had attempted to contact Dr. Sypert to request an increase in the prescription when he saw that Dr. Simard had written it for only 10 Percodan, but he was unsuccessful. Mr. Bowen presented the altered prescription at Eckerd's Drugs on June 20, 1984 and Russell Blaser, a licensed pharmacist, filled the prescription with 100 Percodan, which was paid for by Mr. Bowen and given to Mr. Bowen. Respondent was with her husband when he filled the prescription, but was almost immobile, having just been discharged. Blaser called Dr. Simard after he had filled the prescription to advise Dr. Simard that, due to Respondent's previous drug dependency, he felt that any further prescriptions should be for a lesser amount. It was at this time that Dr. Simard said the prescription he had written was for only 10 Percodan, not 100. Respondent was arrested on or about June 22, 1984, for obtaining a controlled substance by fraud. Following the arrest she learned for the first time that her husband had altered the prescription, and she thereupon destroyed the remaining Percodan.
Recommendation Based upon the foregoing, it is recommended that the Board of Pharmacy issue a Final Order dismissing these charges against Respondent. DONE and ENTERED this 5th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, 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 5th day of November, 1985.' APPENDIX Adopted in Finding of Fact 1. Rejected in Findings of Fact 3 and 4. Adopted in Findings of Fact 2 and 6. Rejected in Findings of Fact 3, 4 and 7. Rejected as a conclusion of law which is not based on evidence in the record. COPIES FURNISHED: Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Deborah S. Bowen 1033 N.E. 8th Avenue Gainesville, Florida 32601 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Respondents have, at all times relevant to this proceeding, been registered with the Board of Nursing as Registered Nurses. The Respondent Rubin has, at all relevant times, been employed at Baptist Medical Center in Jacksonville, Florida as a clinical specialist in psychiatric nursing. He has fifteen years experience within that specialty. The Respondent Harper has at all material times been employed as the Assistant Administrator for Nursing at Baptist Medical Center. She has thirty years experience as a Registered Nurse, and twenty-two years experience as a nursing supervisor. On January 1, 1979, the Respondent Rubin received a telephone call from Dr. Jay W. Edelberg, the physician in charge of the emergency room at Baptist Medical Center. Dr. Edelberg related that he was scheduling a meeting for the next day with respect to a nurse on the emergency room staff. Dr. Edelberg told Rubin that he believed the nurse might be suffering from psychiatric difficulties and he wanted a person with experience in that area to be present at the meeting. The meeting began at 8:00 or 8:30 a.m. on January 2. Dr. Edelberg, the Respondent Rubin, and Mary Brown, Dr. Edelberg's secretary, were present. The focus of the meeting was potential drug abuse on the part of a nurse, Vicki Lynn Enos. After a discussion of approximately ten minutes relating to general conditions in the emergency room, Vicki Enos was brought into the meeting. She was confronted with Dr. Edelberg's suspicions respecting drug abuse. She vehemently denied any drug use on her part at all. Dr. Edelberg confronted her with a syringe that he stated he had found in her locker. Vicki Enos admitted taking the syringe, but she denied taking it home or using any drugs. The meeting ended without any definite action being taken against Vicki Enos. She had agreed to seek psychiatric attention. The Respondent Rubin believed that she was suffering from severe psychiatric problems and that she needed extensive care and treatment. The Respondent Rubin reported his participation in the meeting to his supervisor, the Respondent Harper. He related to Harper that the meeting involved a young nurse from another section of the hospital who had a psychiatric problem. He reported the meeting because it was outside of the normal scope of his responsibilities. He did not relay any information to Harper respecting drug abuse. Vicki Enos sought a meeting with the Respondent Harper, and an appointment was scheduled for January 4, 1979. Prior to the meeting, Dr. Edelberg had advised the Respondent Harper that he had been told by other personnel in the emergency room that they were concerned about strange behavior on the part of Vicki Enos. Dr. Edelberg told her that he did not know of any drug abuse on the part of Vicki Enos, and he did not tell her about his finding the syringe. the appointment on January 4, Vicki Enos told Harper about problems she was having with other personnel at the emergency room. Enos told Harper of rumors of drug abuse, but she denied any drug abuse on her part, and denied possession of any drugs. She did not tell the Respondent Harper of the syringe. The January 4 meeting was the only time that the Respondent Harper ever met Vicki Enos. Nurses in the emergency room were not supervised by Ms. Harper. Vicki Enos was supervised by Dr. Edelberg. On March 22, 1979, Barbara Enos, Vicki Enos' mother telephone the Respondent Harper at Harper's office. Ms. Harper was not in her office when the telephone call was placed, but she did return the call. When she returned the call a Ms. Barbara Enos and the Respondent Rubin were present in the office. Barbara Enos asked that the Respondent Harper stand as a reference for Vicki Enos. The Respondent Harper responded that she could do that since she was not Enos's supervisor. She explained Dr. Edelberg was Vicki Enos' supervisor and that he would have to provide any references. The Respondent Harper then let Respondent Rubin speak with Barbara Enos. The Respondent Rubin told Ms. Harper that he believed that Vicki Enos had a major psychiatric problem. He did not speak of any drug problem. The Respondent Rubin did not work directly with Vicki Enos. His only contact with her was in connection with the January 2 meeting and the March 22 telephone conversation with Barbara Enos. There was a very serious conflict in the testimony given by Vicki Enos and Barbara Enos, the testimony given Respondents, and the testimony given by Dr. Edelberg. The Findings of Fact in Paragraphs 2, 3, and 4 represent a resolution of the conflicting testimony. The testimony of the Enoses has been disregarded as not being creditable. Vicki Enos testified inter alia that she made a full confession of numerous instances of drug abuse at the January 2 meeting. This testimony was rebutted not only by the testimony of the Respondent Rubin, but also by the testimony of Dr. Edelberg, a witness with no interest in this proceeding. This instance of lack of candor on the part of the witness Vicki Enos demonstrates her willingness to testify falsely under oath, and has been taken into consideration in evaluating the totality of her testimony. The demeanor of Vicki Enos at the hearing has also been evaluated in rejecting her testimony. Furthermore, Enos testified that she had difficulties securing employment in Jacksonville subsequent to leaving the emergency room at Baptist Medical Center. It is clear that she considered the Respondents responsible for her failure to obtain other employment. The testimony of Vicki Enos' mother has been similarly rejected. The testimony of the Respondent Rubin and Dr. Edelberg, with respect to the January 2, 1979 conference with Vicki Enos, was not totally consistent. Dr. Edelberg admitted that his recollection was very unclear. He could not recall specifically whether he announced that he found a full syringe of morphine sulphate in Vicki Enos' purse which was in her locker, as he in fact did, or whether he merely said that he found a syringe in her locker. It is clear that the Respondent Rubin perceived that the syringe was not full and that it was found in her locker, not her purse. Dr. Edelberg testified that he was interested in protecting Vicki Enos from losing her nursing license and that accordingly he was vague at the January 2 meeting. That fact, together with his admitted inability to recall the facts of the meeting with definite clarity, explain the conflict between his testimony and that of the Respondent Rubin. Vicki Enos eventually confessed numerous instances of conversion of drugs to the Board of Nursing. A disciplinary proceeding was instituted against her, her license to practice nursing was suspended for one year, and the suspension was probated. The only evidence that the Respondent Rubin was aware of as to potential drug abuse on the part of Vicki Enos was his understanding that an empty syringe was found in her locker. The only evidence that the Respondent Harper was aware of was the statement from Dr. Edelberg that other personnel in the emergency room regarded Vicki Enos with suspicion.
Findings Of Fact Respondent Newell Jerome Griffith is a licensed physician and, at all times pertinent to this proceeding, was engaged in the practice of medicine at Winter Haven, Florida. (Testimony of Respondent) During the period 1979-1980, Respondent's investigator, Lawrence E. Dodd, Jr., conducted routine audits of pharmacies in the Winter Haven area. The purpose of his audits was to review prescriptions for controlled substances in order to determine if irregularities had taken place in the prescribing and dispensing of such substances by pharmacists and physicians. During the course of these audits, Dodd found that Respondent had issued a large number of prescriptions in preceding years for various controlled substances which fell into the category of Schedule II under Chapter 893, Florida Statutes. The prescriptions in questions were prescribed for and obtained by Gerald Cooney, Annette Groover, and Peggy Moore. (Testimony of Dodd, Petitioner's Exhibits 1- 9) The following facts relate to each of the above named individuals: Gerald Cooney Respondent has treated Gerald Cooney as a patient since approximately 1974. Medical records reflect that Respondent treated Cooney for a medullary sponge kidney or similar chronic urinary infection, and acute and chronic recurrent infection of the left knee area which originally had been caused by a bicycle injury and was aggravated by shrapnel wounds in the same area during wartime service in 1970. Since that time, he has had multiple problems with his left leg requiring hospitalizations and has had a chronic recurrent cellulitis. Be has never had full use of the extremity since that time and has had recurrent swelling and extreme pain requiring narcotics. To alleviate the pain, Respondent prescribed both oral and injectable Dilaudid. In 1977, Respondent referred Cooney to the University of Florida College of Medicine regarding his renal difficulty. On April 1, 1977, Respondent wrote the Chief, Division of Urology, at the College that Cooney continues to require, and receive oral Dilaudid in amounts greater than I am comfortable with, but see no alternative to prescribing." On April 7, 1977, the Division Chief wrote Respondent that he had been unable to find any reason for Cooney's protracted pain requiring narcotics. In July 1978, Cooney was admitted to the Veteran's Hospital in Tampa for urinary tract infection and underwent a cystoscopy. The patient was discharged with instructions to return to Respondent for treatment of his "narcotic dependency." Respondent's office notes on February 19, 1979, stated that Cooney had been taking from 14 to 24 Dilaudid tablets daily and was able to make a reduction in dosage for a day or two, but then exacerbation of all illnesses recurred. The medical records further reflect a letter written by Respondent on August 17, 1979, "To Concerned Treating Physician or Physicians" which stated that Respondent had been treating Cooney for Dilaudid abuse which had come about because of symptoms associated with his left knee and urinary problems. In September of 1978, Cooney was again admitted to a Veteran's Hospital for a urinary tract infection, sponge kidney, and Dilaudid addiction. The attending physician noted that since Cooney's dependency had not been treated by his private doctor in Winter Haven, after his last discharge, it was decided that it should be treated at that time by withdrawing Dilaudid. Cooney, however, disagreed and was discharged to be treated at a drug center in Orlando. He did not seek such treatment but obtained further prescriptions for Dilaudid from Respondent. During the period November 1976 to June 1979, Respondent prescribed over 12,500 tablets of Dilaudid 4 mg for Cooney. Additionally, Dilaudid was prescribed in injectable form in the amount of 2 mg./cc. 14 x 20 vials. Between July and December 1979, Respondent prescribed over 2500 tablets of Dilaudid 4 mg, and 24 tablets of Dilaudid 2 mg. Between December 1979 and January 1981, Respondent issued prescriptions to Cooney for almost 7500 tablets of Dilaudid 4 mg, and a prescription for 20 1 cc ampules of injectable Dilaudid. Dilaudid is a Schedule II controlled substance listed under Chapter 893, Florida Statutes. It is customarily used for pain and has addictive qualities. Respondent is of the opinion that there was no alternative to the treatment which he gave to Cooney. He recognized that the patient was addicted to Dilaudid and attempted to assist him with detoxification in 1976. At one time, Cooney was taking as many as 20 tablets per day and, although Respondent limited him to between 16 to 20 tablets per day, he acknowledged that this amount was excessive. Respondent had prescribed other drugs for the patient, but he had allergic reactions to them. (Testimony of Dodd, Deatsch, Respondent, Petitioner's Exhibits 5, 6, 9, Respondent's Exhibit 1) Annette Groover Annette Groover has been a patient of Respondent's for over 26 years and was once employed by him as a nurse's assistant and receptionist. During this period, Respondent treated her for severe migraine headaches and seizure disorder. During the course of treatment, Respondent referred the patient to neurologist for consultation at various times who placed her on anticonvulsive medication. Respondent had prescribed Talwin for the patient's headaches, but in 1970 he became aware that she had used the drug excessively and for feelings of depression at times rather than for headache relief. In September 1979, Respondent's office notes reflect that Groover had been using a Variety of medications including Talwin, and that she had revealed that if she did not take the drug "her legs start to tremble, nose starts running, and I get jittery." Respondent thereafter counseled the patient regarding drug habituation and she thereafter was successful in withdrawal from Talwin. He then placed her on a regime of injectable Demerol because other drugs did not provide headache relief. In 1977, a consulting neurologist examined the patient and characterized her headaches as a chronic problem which was most likely related to tension. Between November and June 1979, Respondent prescribed for the patient more than 1850 cc. of injectable Demerol, 50 mg./cc. In addition, 12 tablets of 50 mg. Demerol and 100 tablets of Dexedrin Sulphate, 5 mg., were prescribed. Between July 1980, and November 1980, Respondent prescribed 66 2 cc. vials of Demerol, 100 mg./cc. Although Respondent's patient records do not reflect that Respondent examined Mrs. Groover between October 7, 1977 and March 23, 1978, he issued 29 prescriptions for injectable Demerol to her during that period. Respondent maintained at the hearing that his treatment of Mrs. Groover was legitimate and that she has never shown any withdrawal symptoms during periods of several weeks when she has gone without the drug. Mrs. Groover's husband is a medical technician in the Naval Reserve and normally administers her Demerol injections. Although she has tried other drugs, most of them have conflicted with her seizure problem and Demerol does not affect her in that manner. Demerol is a Schedule II controlled substance under Chapter 893, Florida Statutes. It is a central nervous system depressant which relieves pain, but is addictive. (Testimony of Respondent, Groover, Dodd, Deatsch, Petitioner's Exhibits 1-2, 7) Mary E. (Peggy) Moore Mrs. Moore is a legal secretary who has been a patient of Respondent for over 20 years. Respondent has treated her primarily for diabetes and pancreatitis. Over a number of years, she was hospitalized several time after referrals by Respondent to gastroenterology specialists. Demerol was prescribed both by Respondent and specialists to control the pancreatitis attacks. Her medical records reflect that she has been subject to episodes of hypoglycemia-- insulin reaction, usually complicated by epigastric pain and vomiting. In December 1979, after Mrs. Moore had been admitted to the Winter Haven Hospital for insulin reaction, the gastroenterologist who treated her stated in his report that the patient takes an appropriate amount of properly monitored narcotics in the form of Demerol at intervals of one to three months when experiencing pain from pancreatitis. Respondent also prescribed Quaaludes for Mrs. Groover in order that she could sleep because she had been under extreme pressure and stress. She took two tablets at night off and on for two to three years. She needed Demerol in the past at particular times when she had pancreatitis attacks. In 1980, Respondent referred her to Emory University Diagnostic Clinic and it was discovered that diabetic neuropathy was causing pain rather than pancreatitis. She is not taking Demerol at the present time and no longer suffers from her former attacks. During the period when she took Demerol, her daughter who was a registered nurse administered the injections and later her husband performed this task. On one occasion in 1978, her Demerol supply was stolen when she was on a trip. During the period when she was using Demerol, her husband destroyed any that she did not use between attacks. Respondent testified at the hearing that Demerol did become a problem with her before she went to Emory University Clinic, but she has not used it since that time. Demerol is a Schedule II controlled substance under Chapter 893, Florida Statutes. Quaaludes are a sedative and also a Schedule II controlled substance which is suitable periodically for sleep, but the patient is subject to rapid tolerance of the drug. One-half tablet of 300 mg Quaalude is usually sufficient for infrequent users. Mrs. Moore terminated the use of Quaaludes in the summer of 1980. Respondent's medical records concerning Mrs. Moore reflect that he did not examine her during the period May 9, 1979 and October 1, 1979, but continued to issue prescriptions to her for Demerol and Quaalude. Between December 1976 to June 1979, Respondent prescribed for Mrs. Moore in excess of 1400 cc. of injectable Demerol, 50 mm./cc., and 1900 tablets of 300 mg. Qualudes. Between July 1979 through December 1979, he prescribed 400 tablets of Quaalude,300 mg., 277 cc. of Demerol 50 mg./cc., and 230 cc. of Demerol, 100 mg./cc. Between July and November 1980, Respondent prescribed 101 cc. of Demerol, 50 mg./cc., 46 cc of Demerol 100 mg./cc., and 172 cc. of Demerol, 75 mg./cc. (Testimony of Dodd, Deatsch, Respondent, Moore, Petitioner's Exhibits 3-4, 8, Respondent's Exhibit 2) In the opinion of physicians who are experts in the field of drug treatment and internal medicine who reviewed the medical records of Gerald Cooney, Annette Groover, and Peggy Moore, Respondent exercised poor judgment in prescribing known addictive medicine in excessive amounts for prolonged periods to those patients, without properly monitoring their course of treatment. They therefore are of the opinion that Respondent failed to treat those patients in conformity with recognized acceptable standards of medical practice. Specifically, they based their opinions in the case of Cooney upon the fact that Respondent was aware of the patient's addiction to Dilaudid, yet prescribed inordinate amounts of the drug over an extended period of time without taking definitive action to either cut off the patient's supply or to change the medication. A normal dose of Dilaudid would be from four to six 4 mg. tablets a day and never should exceed 12 or 14 during limited time periods for acute pain. Respondent's dosage of 16 to 20 tablets per day on a continuing basis resulted in perpetuation of the patient's addiction. As to Annette Groover's case, the expert testimony reflects the opinion that since the Respondent was aware of the patient's former dependency upon Talwin, he should have prescribed other addictive drugs, such as Demerol, in limited amounts and attempt to use non-addictive medication for the patient's migraine headaches, particularly where, as here, they result from periods of tension. They also are of the opinion that the use of Demerol by the patient reflects a pattern of abuse, but not necessarily addiction. Further, a patient with a history of drug abuse should not have been permitted to administer Demerol by injection at her home, but should have been required to have such treatment administered by a nurse or at a hospital emergency room. The basis of the expert opinion in the case of Peggy Moore is that Respondent prescribed excessive amounts of Demerol and Quaalude for the patient without adequate monitoring of the need for such drugs, and that he permitted home administration rather than at his office, or a hospital site in spite of his expressed concern over the possibility that the patient may have been abusing the use of such drugs. The above opinions are confirmed by the evidence and accepted as a basis for this finding of fact. Other opinions expressed by the expert witnesses during the course of their testimony are not considered to be supported by the evidence. (Testimony of Deatsch, Davenport) Dr. John Smythe, a Winter Haven physician who has known the Respondent for a period of 27 years, is of the opinion that although Respondent's treatment of the patients in question was perhaps "unorthodox," he was dealing with severe chronic patients and perhaps showed too much compassion in prescribing greater drug amounts than he (Smythe) might have prescribed under similar circumstances. Respondent's reputation in the Winter Haven medical community is that of an intelligent, sincere, and conscientious physician who does not hesitate to refer patients to specialists as necessary. (Testimony of Smythe) Dr. William T. Steele, a Winter Haven physician who has known Respondent since the latter has practiced in Winter Haven, is of the opinion that he is an outstanding physician with high moral character who conducts his practice as well as any physician in the community. (Testimony of Steele)
Recommendation That Petitioner suspend Respondent's privilege to prescribe Schedule II controlled substances as defined by Chapter 893, Florida Statutes, for a period of one year, but that the suspension be stayed and Respondent be placed on probation for a like period under appropriate terms and supervision established by the Board to protect the public against inappropriate prescribing of controlled substances. DONE and ENTERED this 13th day of March, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 13th day of March, 1981. COPIES FURNISHED: Deborah J. Miller, Esquire Assistant General Counsel Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Robert A. Pyle, Esquire Post Office Box 557 Lake Alfred, Florida 33850
The Issue The issue to be resolved in this proceeding concerns whether the Respondent is guilty of certain alleged violations of Section 458.331(1)(m), (q), and (t), Florida Statutes, concerning his treatment of one patient during 1984 and 1985 and, if so, what penalty is warranted.
Findings Of Fact The Respondent, Samir Najjar, M.D., is a licensed physician in the State of Florida, having been issued License No. ME0041782. He has been licensed as such at all times pertinent hereto. He received his medical degree from the University of Mexico in 1978. He performed an internship and residency in internal medicine at the Greater Baltimore Medical Center, completing that in 1981. He then completed a fellowship in pulmonary medicine at Wayne State University in Detroit, Michigan, in 1983. He is board certified in internal medicine and holds a Ph.D. in pharmacology and toxicology from Howard University in Washington, D.C. Pharmacology is a specialized field of study in drug pharmacology. It includes the study of chemistry, the effects and uses of drugs, including their toxicology, the origin and nature of drugs, and the pharmacodynamics of drugs. A pharmacologist also studies the effects of drug combinations and their effects on various illnesses and on the body generally. The patient involved in this proceeding is an adult male, who was born on March 4, 1950. He had a long history of reactive, obstructive airway disease, beginning at the age of 17 months to approximately 14 years of age. Between the ages of 14 and 30, the condition alleviated substantially so that he only had very occasional shortness of breath, which could be treated with bronchodilator inhalers. In April of 1980, however, the patient suffered an acute onset of shortness of breath, which condition worsened. He was treated by physicians with a course of Prednisone, an oral steroid medication, for some two to three weeks. This was prior to his being treated by the Respondent. The patient’s condition improved with the Prednisone therapy, but he experienced increasing shortness of breath one to two weeks after terminating that therapy. His shortness of breath become acute, resulting in a respiratory arrest and coma in May of 1980. The patient experienced a hypoxic seizure (lack of oxygen) and was hospitalized at St. Vincent’s Hospital in Jacksonville, Florida, for approximately seven days. Between April of 1980 and July of 1984, he was hospitalized 12 to 15 times for exacerbations of the asthma condition. During this time, he required intubation, or the placing of a breathing tube in the trachea, due to respiratory arrest on three or four occasions, the last one being in December of 1983. The patient has clearly been steroid dependent, with outpatient doses ranging from 5 milligrams four times per day of Prednisone to 35 milligrams twice per day of Medrol through September of 1984. Between July and September of 1984, the patient was receiving 35 milligrams twice per day of Medrol, also an oral steroid. The patient was primarily treated by Edward A. Mizrahi, M.D., between June of 1984 and June of 1985. Dr. Mizrahi is an allergist in Jacksonville, Florida. Prior to that time, he was treated by Irwin Schneider, M.D., a pulmonologist in Jacksonville, Florida. Upon initial presentation to Dr. Mizrahi, the doctor felt that the patient had severe steroid-dependent bronchial asthma with corticosteroid side effects. Patients who have life- threatening asthma are typically treated with anti-inflammatory medications, such as corticosteroids. Severe asthmatics can have life-threatening risks from their condition and will die, on many occasions, without the administration of steroid medications. Thus, such patients must take these medications to survive. Steroids have significant adverse side effects, including “cushinoid features”, development of cataracts and the development of osteoporosis. Despite such adverse side effects, the use of corticosteroids may be necessary in order to simply allow the patient to survive. The subject patient was in such a category. The patient suffered from many of the side effects from long-term steroid use. Dr. Mizrahi noted compression fractures of the spine, cataracts, peptic ulcer disease, and weight gain during his initial evaluation of the patient on June 11, 1984; and on October 10, 1984, noted cushinoid appearance or features. This was before the patient was ever seen or treated by the Respondent. On August 20, 1984, Dr. Mizrahi arranged for the patient to be evaluated at the National Asthma Center (Center) of the National Jewish Hospital and Research Center in Denver, Colorado. This is a specialty facility for the treatment of asthma and is commonly referred to as a “court of last resort”, where pulmonologists refer patients with difficult asthmatic conditions which have not as yet responded satisfactorily to treatment regimens. Between September 12, 1984 and September 16, 1984, the patient was evaluated and treated at the Center. The Center noted the patient’s long history of severe asthma and resultant steroid dependency. Upon initial evaluation, the physicians at the Center felt that the patient would probably require continuing steroid therapy, but they did attempt to reduce the steroid dosage. The attempt to reduce the steroid dosage in the patient was unsuccessful, and the Center ultimately had to increase the steroid dosage. The patient was discharged from the Center on an oral steroid medication, Medrol, 20 milligrams, alternating with 40 milligrams, four times per day. This is considered a high dose of steroid medication and was reluctantly arrived at and prescribed by the physicians at the Center after they made bona fide attempts to wean the patient from steroids to the extent possible. During his hospitalization, the physicians at the Center noted that the patient gave a “convincing history for ischemic heart disease”. They suggested an investigation to determine the presence of this condition. Upon the patient’s return to Jacksonville, Florida, he continued to be treated by Dr. Mizrahi and continued to receive oral steroid medication in high doses. Additionally, he was receiving Halcion, Adivan, Fiorinal, and Fastin. The Respondent first saw the patient on June 13, 1985 upon a referral from Dr. Samara, a urologist in Jacksonville, Florida, who had some contact with the patient. The Respondent took an extensive history from the patient, including a list of the current medications he was receiving from Dr. Mizrahi, which then included Medrol, 24 milligrams, four times per day, with a bolus of Medrol as needed of 60 milligrams four times per day for 48 hours, followed by 30 milligrams four times per day for two weeks. The patient was also receiving Halcion at 0.25 milligrams at bedtime and Adivan at 2 milligrams. The Respondent had the impression that the patient suffered from asthma and possibly from coronary artery disease. Due to the possibility of coronary artery disease, which had been raised during the admission at the Center, the Respondent hospitalized the patient from June 17, 1985 to June 22, 1985 at St. Vincent’s Medical Center in Jacksonville, Florida, to investigate the coronary situation. During this hospitalization, an extensive history and physical were performed, including a neurological examination of the patient. A cardiac workup was performed by consulting cardiologist, Joel Ferree, M.D. This included a cardiac catheterization performed by Dr. Ferree, which indicated that the patient had normal right ventricular function, no significant arteriosclerotic lesions, and no significant artery response to adrenergic agonist agents. The cardiac catheterization reported normal left ventricular function. The cardiac catheterization report ruled out any cardiomyopathy. During this hospitalization, the Respondent also ordered x-rays of the cervical and thoracic spine. The x-rays revealed “mild, old compression deformities of the eighth and ninth thoracic vertebral bodies, with no change since a previous examination on November 30, 1983”. This x-ray report was consistent with the previously- reported compression deformities, or compression fractures, which are the result of osteoporosis. Osteoporosis leaves the bones weak, with loss of trabeculation. The patient’s vertebra were already being crushed as of June of 1985, when the Respondent undertook his care. At the time of discharge from this hospitalization, the Respondent recorded that he would like to wean the patient off steroids over several months. The Respondent continued to treat the patient through April of 1989. During this period of time, the asthma was reasonably controlled with the use of steroid medications and bronchodilaters. Unlike the previous few years, the patient only required hospitalization for treatment of exacerbation of asthma symptoms on one occasion, on November 7, 1985. During this period of treatment, he never had a respiratory arrest and intubation was never required. The Respondent would wean the patient from the use of steroids during this period of treatment when the symptoms allowed. When the symptoms were exacerbated, he would provide prescriptions for corticosteroids so as to address the patient’s condition. The Respondent made numerous attempts to wean the patient off high-dose steroid medication, but the patient’s condition would not permit a cessation of it. The fact that the Respondent was unable to wean the patient from steroids is not surprising to physicians who treat such a condition. It is not a deviation from the accepted standard of care. The patient had a very significant case of asthma, which was life threatening, as demonstrated by the records of not only the Respondent, but the prior treating physicians. His asthma was so significant that he had to receive steroid medication, despite the significant side effects caused by such medication, in order to insure survival. During the course of treatment, the Respondent also treated the patient for cervical strain and low-back pain. His compression fractures were a source of great pain, justifying the prescription of narcotic analgesics. The Respondent’s treatment for these conditions included physical therapy, paralumbar trigger point injections, biofeedback, TENS Unit, ice packs, as well as drugs, including muscle relaxants and analgesics. The Respondent also referred the patient for examination by orthopedic physicians and neurologists. These efforts were appropriate and within the standard of care. The prescriptions for Flexeril, Fiorinal, Lortab and Tylox and other medications for the control of back pain and muscle spasms were appropriate and under the circumstances of this severely-distressed patient, were within the standard of care. The Respondent, on occasion, prescribed medications for control of insomnia, including Halcion. These same medications had previously been prescribed for the patient by Dr. Mizrahi for the same condition and were appropriate prescriptions. The corticosteroids and other medications used to control asthma can produce a side effect of insomnia. This manifestation must be treated for the benefit of the patient. The prescriptions for Halcion were appropriate and within the standard of care. An additional side effect of steroid medication is weight gain. The Respondent advised the patient regarding dietary control for his weight to alleviate such a problem. The patient, however, exhibited substantial weight gain. Therefore, the Respondent prescribed a limited amount of Fastin, an appetite suppressant. Physicians must use medications such as Fastin with caution on patients with significant hypertension. The patient’s blood pressure, however, was not significantly elevated; and his blood pressure was being monitored during his use of Fastin. The use of Fastin by this patient did not cause a significant increase in his blood pressure. Fastin is a sympathomimetic amine. It is not a true amphetamine. It is appropriately prescribed for weight control and this patient had exhibited an increase in weight, doubtless due to a side effect of the steroid medications. Increased weight in the patient was medically significant because he already had compression fractures of his vertebrae caused, no doubt, by osteoporosis, also attributable to side effects of steroid medications. Increased weight could exacerbate his skeletal problem and cause additional pain. Increased weight is also dangerous for patients with asthma, in any event, because it severely taxes the respiratory system and can make intubation, if necessary, more difficult. The Respondent’s prescriptions for Fastin were shown to be appropriate and within the standard of care, as demonstrated by the expert testimony of Dr. Miller and the other testimony in evidence offered by the Respondent. During treatment of the patient, the Respondent prescribed Adivan also. Adivan is a muscle relaxing drug, and it was shown to be appropriately within the standard of care for physicians confronted with a patient with the multiple problems exhibited by this one. Although there can be some concern about mood alteration under certain circumstances with the use of Adivan and perhaps to some extent with Halcion, the Respondent did perform mental status examinations and referred the patient for evaluation when indicated. During his treatment of the patient, there was never any symptom of suicidal ideation expressed by the patient. There was no reason demonstrated which would justify the referral of the patient to a psychiatrist at an earlier date in the subject situation. The testimony of Dr. Miller and the other experts adduced by the Respondent shows that under the peculiar circumstances of this patient, the use of Adivan, as well as Halcion, in conjunction with the other medications the patient was taking, was medically justified and within the appropriate standard of care. It has been demonstrated that the medical records maintained by the Respondent justify the course of treatment of the patient, as shown by testimony of record at pages 105 and 106 of the transcript of the proceedings and Respondent’s Exhibit 1 at pages 52-54. The Respondent practiced with that level of care, skill and treatment recognized as appropriate to meet the standard of care for similar physicians. Upon weighing the expert testimony adduced by the parties, it is determined that the expert testimony presented by the Respondent was more persuasive and creditable than that presented by the Petitioner. The Petitioner’s expert, Dr. Kreitzer, relied upon some flawed information in developing his expert opinions, including, but not limited to, his reliance upon compilations of prescription information which was not established as accurate in the course of this proceeding, being merely computer printouts from records of pharmacists. Those records do not, for instance, even show that the Respondent prescribed all of those medications represented thereon. Dr. Kreitzer’s opinion was also flawed because his belief was based, in part, on his understanding that the patient was suffering from cardiomyopathy, when that condition had already been ruled out by cardiac tests performed upon the Respondent’s order during the June of 1985 hospitalization. Dr. Kreitzer’s mistaken belief that Fastin is an amphetamine, which it is not, also detracts from the weight which can be ascribed to his opinion. Further, Dr. Groble, the other expert presented by the Petitioner, cannot be relied upon because in his testimony he admits that he cannot render an opinion that the Respondent departed from appropriate standards of care in his practice with regard to the subject patient in the instances alleged in the Administrative Complaint because he had not seen all of the Respondent’s pertinent medical records. Consequently, he could not render a definitive opinion, one way or the other. The Respondent’s expert witnesses, Dr. Miller and Dr. Sharpe, are accepted as more credible than the Petitioner’s expert testimony. Both Drs. Miller and Sharpe indicated that they had reviewed, in some depth, the medical records which the Respondent maintained concerning the patient and those records and the history pertaining to treatment rendered by other physicians and the Center. Their testimony revealed an in-depth study, reflection and consideration of the concededly large doses of multiple medications, some of which have significant side effects. They regrettably agree, that confronted with a complex, life-threatened patient, such as this, the Respondent could have done little else than follow the course of treatment and medication pattern and practice which he followed. While these experts and the Respondent, in the course of treatment, recognized the risks attendant to the engendering of dependency on the steroids and the use of the other medications, they acknowledged that under the circumstances there was little else that could be done in order to keep the patient stable, accord him some quality of life, and even to save his life. In summary, it has not been established that the Respondent failed to adequately keep written medical records which justify the course of treatment of the patient. It has not been established that the Respondent prescribed legend drugs, including controlled substances, other than in the course of his professional practice, nor has it been established that he prescribed legend drugs in excessive quantities and in excessive combinations or, otherwise, inappropriately in relation to generally-accepted medical practice. It has not been established that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Board of Medicine dismissing the Administrative Complaint in its entirety.DONE AND ENTERED this 5th day of February, 1997, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1997. COPIES FURNISHED: Albert Peacock, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Bruce D. Lamb, Esquire SHEAR, NEWMAN, ET AL. Post Office Box 2378 Tampa, Florida 33602 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
