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.
The Issue Whether disciplinary action should be taken against Respondent's license to practice medicine based on the administrative complaint in this case, which charges, in general, that he obtained his license through fraudulent misrepresentations and is unable to practice medicine safely because of illness or use of drugs he prescribed for himself illegally under the names of fictitious patients?
Findings Of Fact The Parties Petitioner, the Board of Medicine, created by Chapter 458, Florida Statutes, (the "Medical Practice Act,") is the regulatory authority charged with regulating the practice of medicine in the State of Florida. The Board is within the Agency for Health Care Administration, Section 20.42, Florida Statutes, which, in turn, is within the Department of Business and Professional Regulation. Id. In particular, as is pertinent to this case, the Board has the power to impose disciplinary penalties on a licensee when it finds guilt of any of the grounds set forth in subsection (1) of Section 458.331, Florida Statutes, the "grounds for disciplinary action" section of the Medical Practice Act. Respondent, John Mark Pennington, M.D., is currently a licensee of the Board of Medicine. He has been continuously licensed as a physician in Florida since March 11, 1994. Currently residing in Terra Ceia, Florida, Respondent has a specialty in anesthesiology. He does not, however, presently practice in his specialty. He practices, instead, as a physician in a walk-in medical clinic where he is closely monitored and his access to drugs and medication is completely restricted. The reason for not presently practicing as an anesthesiologist and being closely monitored at the walk-in clinic is the same: an addiction to narcotics. In recovery from the disease of chemical dependency at the time of hearing, and as long as he remains in recovery, Dr. Pennington is not presently impaired as the result of his addiction. Respondent's Checkered Past History of Drug Use Dr. Pennington's use and abuse of drugs spans many years. His illegal drug use began when he was a teenager in high school. In addition to drinking, he was using marijuana, cocaine and other drugs. He continued in college to use drugs, including amphetamines. In 1981, Dr. Pennington graduated from pharmacy school and began work as a pharmacist licensed by the State of Georgia in the City of Savannah. During his employment, he would take from the pharmacy, without the benefit of a medical prescription and without authorization from the pharmacy, certain drugs for his personal use. These included opiate derivatives, Hydrocordone, for example, which are classified as narcotics, as well as amphetamines and amphetamine-like medications such as Ritalin. Sometime in 1981, shortly after he began using narcotics, Dr. Pennington became addicted to them. Dr. Pennington managed to conceal his narcotic addiction from his closest associates, including his former wife, who was employed as a fellow pharmacist with him at the pharmacy in Savannah. In 1985, following an inventory at the pharmacy that indicated a discrepancy in narcotics, Dr. Pennington admitted his drug usage. He went directly into treatment at Willingway Hospital in Statesboro, Georgia where he remained for six weeks until his release. As the result of the discovery and Dr. Pennington's admission, disciplinary proceedings were brought against Dr. Pennington by the Georgia State Board of Pharmacy. The Georgia Administrative Hearing At the hearing during those proceedings, Dr. Pennington acknowledged his addiction. He testified that he knew that he would have to deal with addiction the rest of his life. But, he further testified, thanks to being in recovery as a result of the program at Willingway and a continuing program of treatment, that he was then drug-free and committed to remaining so. Moreover, he testified, that he felt there was no pressure too great to cause him to return to illicit use of drugs. In his view, no pressure was too great because he was committed to the ongoing drug treatment program in which he was then involved. He found the program to be an effective method for dealing with the addiction, a method he had not even known existed prior to his entry into the Willingway program. With regard to the effect the addiction and his behavior had on his life and others, Dr. Pennington testified: There is no way I can really express the guilt I feel and the remorse I feel for what I have done. I just want to do my best, and whatever the Board wants I will follow any direction they want me to go into. I embarrassed my profession by doing this. I almost lost my life, and my family, and my job and everything else. Regardless of what decision is made, I am going to go in the right direction to get my life back to the way it's supposed to be. Petitioner's Ex. No. 4, pgs. 46 - 47. At this same hearing on the Georgia disciplinary proceeding, Dr. Pennington called as witnesses on his behalf his then current employer, Mr. Rupert Heller, and his then wife, Kim Pennington. Mr. Heller testified that he had allowed Dr. Pennington to return to work at his pharmacy as a pharmacist. But the return was subject to certain conditions. The conditions included weekly random urinalyses, direct supervision by other pharmacists, no access to medications and lie-detector tests when requested. Mr. Heller also testified that Dr. Pennington was a competent, conscientious pharmacist who always performed well the duties of his employment. Kim Pennington testified that she had been unaware that Dr. Pennington had used drugs prior to the revelation of early 1985. She also testified about her involvement in Dr. Pennington's treatment program at Willingway, including spending five days at the facility to integrate her into his care and attendance at family counseling sessions. Persuaded by the testimony of Dr. Pennington, his employer and his wife, Kim, and recommendations by the Attorney for the Board, the hearing officer wrote the following in his Initial Decision: The State produced evidence through testimony and the Respondent produced evidence through testimony of witnesses that the Respondent made a mistake in his life and is coping with that mistake in an attempt to overcome his use of drugs and drug abuse. The Respondent moved on his own volition with the help of others to search out and take advantage of programs that would rehabilitate him with respect to overcoming ... drug abuse ... . The Hearing Officer was persuaded to consider any recommendations which were made by the Attorney for the Board in these matters due to the goodwill effort on behalf of the Respondent as well as the assistance and guidance that has been given to the Respondent b[y] said Respondent's present employer.... Exhibit No. 6 attached to Petitioner's Ex. No. 2. Georgia Discipline Following the hearing in Georgia and the initial decision of the hearing officer, the Georgia Board imposed a suspension of Dr. Pennington's license to practice pharmacy for six months, just as the hearing officer had initially decided. But further, again following the lead of the hearing officer's initial decision, the Board suspended enforcement of the suspension for two years during which Dr. Pennington was to be on probation with conditions. Among other conditions of the probation, Dr. Pennington was required to submit to random urinalyses and to attend professional aftercare treatment and counseling. The probationary period was set from December 1985 until December 1987. Medical School After being on probation for a period of eight months, Dr. Pennington, in August of 1986, entered a medical school in the Caribbean on the island nation of Grenada. Dr. Pennington requested the Board of Pharmacy that the conditions of probation be lifted while he was in medical school because of the difficulty in complying with them in Grenada. The request was granted. After his second year of medical school in Grenada, Dr. Pennington transferred to the Medical College of Georgia in Augusta, Georgia. While in medical school in Georgia, Dr. Pennington began working part-time as a pharmacist again. Dr. Pennington did not resume compliance with the conditions of probation imposed by the order of the Georgia Board of Pharmacy. As to its role in overseeing Dr. Pennington, the Georgia Board apparently simply lost track of his case. In any event, the Georgia Board did not follow up to ensure that Dr. Pennington had completed his probation successfully. Resumption of Drug Use During his third year of medical school, while working as a pharmacist again, Dr. Pennington began drinking. Before long, he was taking drugs from the pharmacy at which he was working for his own personal use, again without authorization from the pharmacy or a prescription. Following graduation from medical school, Dr. Pennington undertook his residency at the Ochsner Clinic in New Orleans. His drug use continued. But instead of taking drugs from a pharmacy inventory, Dr. Pennington opted for a method not subject to pharmacy inventories. He wrote prescriptions for them in the names of other persons. Access to More Powerful Narcotics as an Anesthesiologist Respondent began his residency in internal medicine but switched to anesthesiology. The switch was not helpful to Dr. Pennington in terms of controlling his addiction. Now, different drugs, often more powerful, were readily available to him. Among them was Sufenta. To narcotic addicts subject to monitoring who want to resume narcotic use, Sufenta is a drug of choice because it is difficult to detect in bodily fluids. Listed as a controlled substance under Schedule II, Section 893.03(2), Florida Statutes, Sufenta is used primarily for analgesia in surgery. In addition to eliminating physical pain, it produces feelings of well-being and stops emotional pain. It has an effect similar to hydrocodone but it is shorter-acting and much more potent. In fact, Sufenta is the most potent opiate used in medicine today. Dr. Pennington began using Sufenta while a resident in anesthesiology either by injecting it or by inhaling it nasally. His use of this extremely powerful narcotic continued throughout the first half of this decade. Application for Florida Licensure as an M.D. In July of 1993, Dr. Pennington's fiance, Rachel, (now his wife,) assisted him in filling out his application for licensure by the Board of Medicine. Just as Dr. Pennington's previous spouse and other family members had been unaware of his narcotic addiction while a pharmacist prior to entering medical school, Rachel Pennington, too, was unaware that Dr. Pennington was using narcotics. Moreover, she did not know of his past history of drug use or his discipline in Georgia. Rachel Pennington typed the application for Dr. Pennington. Questions 4, 9 and 10 on the application were these: Have you ever been notified to appear before any licensing agency for a hearing on a complaint of any nature, including, but not limited to, a charge or violation of the medical practice act, unprofessional or unethical conduct? Are you now or have you ever been addicted to or excessively used alcohol, narcotics, barbiturates, or any other medication? Have you ever voluntarily or otherwise been a patient in a hospital, institution, clinic or medical facility for the treatment of mental/ emotional illness, drug, addiction/abuse, or excessive use of alcohol? Although the correct answer to each of the three questions in Dr. Pennington's case is "yes," the answers he gave on the application to each were "no." Dr. Pennington reviewed and signed the application. At this moment of opportunity to reveal the truth to his fiancee, Dr. Pennington chose to continue to conceal his addiction and past history of both drug use and discipline. The falsified application was submitted to the Board of Medicine in November of 1993. During the hearing in this case, Dr. Pennington was asked on cross examination about his awareness that the application contained misrepresentations: Q You were aware at the time you filled out your licensure application that the answers to those three questions were incorrect, weren't you? A ... I don't think it is adequate to answer the question saying that because of my denial of the disease that I didn't know the question was wrong. I definitely, at some level, knew the question was wrong. Q ... You knew that you had been disciplined before?. A Yes. Q And you knew that you had been in a treatment facility before. A Yes. Q ... Did you consider that you were in a treatment facility because you were excessively using drugs? * * * A Well, I guess to answer that ... I have to say yes, at some level I definitely did. I was not willing to admit that but to answer your question I have to say yes. (Tr. 201). Practice in Florida and Continued Drug Use Dr. Pennington was licensed by the Board of Medicine on March 11, 1994. He continues to hold that license, license number ME 0065888. In June of 1994, Dr. Pennington completed his residency. Shortly thereafter, he moved to Florida to begin practice as an anesthesiologist. He continued to use narcotics. In order to stave off withdrawal symptoms, the onset of which can occur within several hours of using a powerful opiate like Sufenta, Dr. Pennington was forced to use narcotics throughout the day, including while at work. Moreover, he was unable from time-to-time to avoid the side effects of withdrawal, which included chills and diarrhea. To control those symptoms, he used drugs such as Lomotil. Lomotil, like Sufenta and the other opiates Dr. Pennington has used, requires a prescription. Self-prescribing and Fictitious Patients In order to obtain some of these drugs, Dr. Pennington wrote out prescriptions for Bob Pennington (his father), Rachel Pennington (his wife), and Kim Patrick (his ex-spouse), none of whom were patients of his. For example, between November, 1994, and February, 1995, he wrote or called in at least fourteen prescriptions for Hycodan, Lomotil and Tussionex, in the names of the three fictitious patients. In reality, the prescriptions were for himself. The Self-prescribed Medications Hycodan contains hydrocodone bitartrate, and is a Schedule III controlled substance under Section 893.03(3), Florida Statutes. It is used for cough-relief. The maximum recommended daily dose is 30 milliliters, or six tablets, which consists of thirty milligrams of hydrocodone. Tussionex contains hydrocodone polistirex, and is a Schedule III controlled substance under Section 893.03(3), Florida Statutes. It is used for cough relief and upper respiratory symptoms associated with allergies or colds. The maximum recommended daily dose is ten milliliters consisting of twenty milligrams of hydrocodone. Hydrocodone is a semisynthetic narcotic antitussive and analgesic with multiple actions qualitatively similar to those of codeine. It is a narcotic with potential, of course, for abuse. It has the potential for abuse because it is an opiate derivative, one that, attached to the morphine or opiate receptor in the brain, produces effects of somnolence and euphoria, as well as suppressing other nerve impulses. Hydrocodone causes one to feel good about oneself, blurs time relationships, and changes a person's perceptions. It can cause lack of attention or cause one to be easily distracted, traits that pose extreme danger to patients under the care of an anesthesiologist. Once a certain level of tolerance is reached with hydrocodone, it causes twitching, nervousness, diarrhea, flushing, chills, goosepimples, and other classic symptoms of narcotics withdrawal. Lomotil contains diphenoxylate hydrochloride, and is a Schedule V controlled substance under Section 893.03(5), Florida Statutes. It is used in the management of diarrhea, a common symptom of narcotics withdrawal. It is also used to control other symptoms of withdrawal such as pain and twitching. The maximum recommended daily dose of Lomotil is eight tablets a day or twenty milligrams. At high doses, it is addictive, causing codeine-like effects. Between November, 1994, and March, 1995, Dr. Pennington was taking approximately 15-20 hydrocodone tablets, that is, 75- 100 milligrams, per day, and 30 to 50 Lomotil tablets or 75 to 125 milligrams per day. These levels of consumption are three to five times the recommended maximum daily dosage. Dr. Pennington was self-administering these substances for several purposes: satisfying his addiction, fending of withdrawal symptoms and controlling withdrawal symptoms he could not avoid. Caught Again On March 24, 1995, Dr. Pennington was questioned by an official of the Drug Enforcement Agency (DEA) and a Pinellas County Sheriff's Office detective regarding the fourteen prescriptions for fictitious patients written in late 1994 and early 1995. The interview took place immediately after Dr. Pennington had completed administering anesthesia during an operative procedure on a patient. Dr. Pennington admitted writing the fraudulent prescriptions. Furthermore, he provided the officers with a syringe containing approximately one cubic centimeter of Sufenta. Dr. Pennington admitted that he had used Sufenta about two hours earlier before administering anesthesia to the patient. Talbott-Marsh On March 25, 1995, the day after the DEA discovered Dr. Pennington was illegally using narcotics, he was admitted to the Talbott-Marsh Recovery System in Georgia, having been referred because of his chemical dependency by the Physicians Recovery Network. An inpatient chemical dependency treatment facility, Talbott-Marsh is specifically designed to meet the treatment needs of chemically addicted health care professionals, especially physicians. Five months after admission, on August 25, 1995, Dr. Pennington was discharged from Talbott-Marsh. He had completed the program successfully. Once again, just as upon successful completion of the program at Willingway, Dr. Pennington was in recovery from the disease of chemical dependency. Addiction: the Disease of Chemical Dependency The Disease and its Stages Chemical dependency or addiction is a chronic illness. An identifiable disease recognized by the medical profession, it is not the result of voluntary behavior. Rather, it is the result of a biogenetic defect, one with which the addicted person is born. Together with introduction into the person's system of a sufficient amount of a mood altering substance, this defect produces addiction. Initially, the disease manifests itself in abuse of the drug. In this early stage, addiction has not yet occurred. As use recurs, however, at some point the person crosses the threshold of addiction. After addiction, the individual becomes more and more preoccupied with obtaining the drug, primarily to avoid withdrawal symptoms when the addiction is not satisfied. The more preoccupied the individual becomes with obtaining the drug, the more avoidance there is of external responsibilities: those related to family, work and self. The disease is characterized by the continued use of the drug in the face of ongoing adversity as the result of the avoidance of external responsibilities. Left untreated, the disease leads to serious consequences: institutionalization due to a number of factors which may include brain damage or uncontrollability, disability, and, in extreme cases, death. Crossing the Wall As the disease progresses, eventually it takes control of not only the individual's use of the drugs but all of the individual's thinking as well. This point is referred by practitioners of addictionology as "crossing the wall." When the addict crosses the wall, the disease is in control. It is not uncommon for an addict who crosses the wall to conceal the drug use from everyone including spouse, other family members, friends, and employers. It is common for an addict who has crossed the wall to lie about drug use and minimize the extent of its effects on the addict's life. The acts of denying, concealing, and lying about drug use are common manifestations of the disease of chemical dependency. They fall into a continuum of symptoms of the disease ranging from denial, which relates to the negative consequences the use is having on the addict, to lying. Physicians as Addicts It is common for physicians addicted to drugs to steal them, divert them, write prescriptions for their own use or engage in other deceptive means of obtaining drugs. The manner used by physicians to obtain drugs is often dependent upon the physician's specialty. Nonetheless, self- prescribing medications is found in almost all of the cases of addicted physicians. Consuming massive quantities of drugs is not unusual for the addicted physician, often, in part, because of ready access to drugs. It is, moreover, a sign of tolerance of the drugs. Even in cases of great consumption, and despite the characteristics of narcotics and opiates, when physicians develop tolerance, they remain able to function well while under the influence of the substance. It is common, therefore, for drug usage to go undetected for long periods of time. Furthermore, with regard to opiates and narcotics, it is often difficult to determine whether a person is using them. There tends to be much less muscular coordination, slurred speech and recent memory deficits as would be observed of persons under the influence of other drugs. An individual addicted to and under the influence of opiates, even a physician practicing in a specialty as demanding as anesthesiology, can appear to be functioning as well as a person not under the influence of drugs. This is the case, in part, because a person addicted to opiates can develop tolerance rapidly. The more powerful the opiate, the sooner tolerance may be developed, as in the case of Sufenta. A physician under the influence of Sufenta can take a massive dose and appear to be basically normal to the untrained eye. Dr. Pennington's Stage of Addiction at the Time of Application Prior to the fall of 1993, that is, the time when Dr. Pennington made out and submitted his application to the Board of Medicine, he exhibited all the symptoms of a person who has crossed the wall. He had concealed his drug use, which at that time had become quite advanced, from his fiancee, his family, friends, and colleagues. He was taking massive quantities of narcotic opiates, yet, to the untrained eye, he was not exhibiting symptoms of a person under the influence. At the time of application, Dr. Pennington was well- thought of by his colleagues in the residency program in Louisiana. He was highly recommended for licensure to the Board of Medicine by the instructors of his residency training program. Treatment, Care and Aftercare Treatment is an important phase of the recovery process. Those suffering chemical dependency generally do well in treatment because of the controlled and structured nature of the treatment environment. The environment is safe. The patient is surrounded by others with similar problems. There is a lot of support both from those suffering the disease as well as from professionals. A successful treatment program must insist that the patient be rigorously honest in order to attain full recovery. Rigorous Honesty Because lying is an integral part of the disease of chemical dependency, a program of recovery demands rigorous honesty. In an effective recovery program, such as the one Dr. Pennington participated in at Talbott-Marsh, the physician is required to face the consequences of addiction and participate in psychotherapy when needed. During the treatment phase, the physician is required to go through identification with the family, have a fourth and fifth step of identifying the history of past defects and telling them to another human being. The Physician Recovery Network The Physician Recovery Network is the program used by the Board of Medicine to monitor physicians impaired by addiction in the State of Florida under Section 455.261, Florida Statutes. The Physician Recovery Network ("PRN,") assists the physician in developing and maintaining a manner of living which demands rigorous honesty. PRN does this by requiring the physician to enter into an Advocacy Contract, a five year contract that can be extended if necessary. The Advocacy Contract is designed to serve as a deterrent, promote honesty, to verify through face-to-face conferences and monthly and weekly meetings and periodic urine screens, that a physician is progressing or improving and is not endangering the public or him or herself. Physicians are required to identify the consequences of their drug use and admit their powerlessness over their ability to stop using drugs. Rigorous honesty is demanded by PRN from its participants because it is absolutely required in order to break denial and to prevent rationalization and denial from returning to the behavioral patterns of the addicted physician. PRN educates physicians about the negative behavioral patterns of their disease and monitors the physicians for the return of erratic behavior or evidence of returning denial or evidence of lying. PRN educates physicians about their own indicators for relapse so that they avoid positions likely to produce relapse and so that they will not be unconsciously driven to resume drug use to relieve personal discomfort. PRN monitors its physician participants through local group facilitators. Monitors are assigned because of geographic proximity that will allow immediate access in order to provide counseling. Initially, the PRN monitor undertakes a direct physical evaluation of the physician and becomes familiarized with the physician's specific problems to allow early identification of developing problems that would endanger the public or the physician. In addition, the monitor maintains close contact with PRN. Reports to PRN are made at least weekly providing information about general progress, insight, attentiveness, responsiveness to urine screens, participation in group sessions, openness of the physician, assessment of honesty, and assessment of coping skills. The contact between the monitor and PRN is so comprehensive that it can be characterized as an ongoing dialogue about all aspects of the physician related to management of the addiction and the medical-legal implications for the physician's practice and protection of the public. The monitor is also charged with providing the participating physician with support. If a physician fails to comply with PRN instructions or relapses, the monitor immediately reports it to PRN so that the physician can be submitted to treatment. If necessary to protect the public in such a case, PRN does not hesitate to report the matter to the Agency for Health Care Administration for entry of an emergency order suspending the license. While some number below 20 percent of physicians who enter PRN require more than one treatment to become firmly committed to recovery, 97 percent of the physicians who enter PRN practice without difficulty after five years. The ninety-seven percent success rate PRN has experienced with addicted physicians is significantly higher than the success after treatment of the general population of sufferers of chemical dependency in returning to lives committed to recovery and free of the problems of addiction. Aftercare Aftercare, the stage of recovery which follows treatment and the diseased physician's entry into recovery, is an essential phase of the recovery process, every bit as important, if not more so, than the initial program of treatment. It must consist of close monitoring with repetitive follow-up. This is provided by PRN. As an aftercare program more highly developed than the aftercare received by Dr. Pennington from Willingway in the previous decade, in part, due to advances in the study of addictionology, PRN provides the type of aftercare that supports recovery as fully as possible in light of the status of addictionology today. For example, the syndrome of "protracted withdrawal from opiates," was not even known to exist at the time Dr. Pennington participated in the Willingway program. The syndrome is the result of the body shutting off its own, natural, manufacture of endorphins and other "internal opiates," necessary to a sense of well-being while taking narcotic opiates and introducing into the body exogenous opiates. As a result, it takes the body several years, a period longer than the initial treatment phase, to begin producing its own internal opiates. In the meantime, the opiate addict will continue to suffer withdrawal symptoms, hence the term "protracted" withdrawal. Unlike the care after the Willingway program, the PRN aftercare program provides treatment for protracted withdrawal. Dr. Pennington's Experience with PRN and Adherence to the Advocacy Contract At least through the time of hearing, Dr. Pennington has maintained a strict adherence to his PRN contract. He has fully complied with monitoring by PRN. He has shown a significant commitment to his program of recovery since entering into the advocacy contract. Since late summer, 1995, PRN has considered Dr. Pennington to be safe to practice under the terms of his advocacy contract with continued monitoring. In making that determination, PRN has considered all of the Respondent's past addictive behavior including the length of his addiction, his ability to function normally while under the influence of opiates and other drugs, lying about drug use, concealing it from family, friends, work colleagues, even the Board, stealing drugs, and self-prescribing. Moreover, PRN has considered his prior discipline by the Georgia Board of Pharmacy, the treatment at Willingway and the failed aftercare in his first effort at recovery. Most importantly, PRN has considered the potential danger Dr. Pennington poses to patients and the public. Because of restrictions imposed upon him by both Talbott-Marsh and PRN, Dr. Pennington is not practicing as an anesthesiologist. He cannot resume that practice until his treatment professionals and PRN agree that it is safe for him to do so. Dr. Pennington is not permitted access to controlled substances. He must utilize triplicate prescriptions, one for the patient, one in the chart, and the other for monitoring. Since leaving Talbott-Marsh, Dr. Pennington has successfully met these requirements imposed for his aftercare from the moment he left Talbott-Marsh: Monitor and addictionologist: Dr. Roger Goetz and a local monitor, Jim Noyes, Ph. D. Primary physician of Marte Kautzler, D.O. Not to return to anesthesiology for at least one year following treatment. Return to Talbott-Marsh for reassessment. Work 40 hours per week maximum. Utilize triplicate prescription pads in his practice. Reside with wife, Rachel, and attend couples therapy as directed by Dr. Noyes. Attend Caduceus and AA, 90 meetings in 90 days, followed by attending at a frequency of four to seven times per week. See Joint Exhibit 1. Board Action Had it Been Aware of the Truth at the Time the Application Was Filed Had the Board been aware at the time Dr. Pennington filed his application that the answers to questions 4, 9 and 10 were inaccurate, Dr. Pennington would have had to appear before the Board's Credential Committee. The Committee would have required a personal appearance of Dr. Pennington and a PRN evaluation. Based on the evaluation and Dr. Pennington's explanation for the inaccuracies in the application, the Committee would have recommended either denial of licensure or issuance of the license. Dr. Pennington is in full compliance with his PRN contract and has demonstrated a strong commitment to his program of recovery and the requirements of PRN. It is likely, based on an analysis of similar cases, that if Dr. Pennington were to apply for a license today, with full disclosure, and under the current circumstances of his good standing in the PRN program, that the Board would grant him a license with conditions. Dr. Pennington's Practice Today Today, Dr. Pennington is employed as a practicing physician at a private walk-in clinic. In addition to the practice of requiring his prescriptions in triplicate, his access to controlled substances is completely restricted and the restriction is closely monitored. The nurses at the clinic maintain the keys which allow access to the drugs. An inventory is conducted in the morning when the facility opens and is matched every day with an inventory done in the evening when the facility closes. A urinalysis to check for recent drug use was performed when Dr. Pennington was hired and random urinalyses are done of all employees, including the owner, from time to time without warning. Dr. Pennington, at the time of hearing, had been subject to two urinalyses. Dr. Pennington is observed at the facility for behaviors that would indicate relapse. At the time of hearing, he had not exhibited any such behaviors. His knowledge of medicine was described by his employer as good. Moreover, Dr. Pennington has shown good clinical judgment in the cases he has encountered as well as excellent skills in dealing with his patients. The Impact of Discipline on Dr. Pennington It would be counter-therapeutic to Dr. Pennington to remove him from the practice of medicine while he is in recovery. In fact, one of the main reasons for the extremely high success rate of PRN's work with physicians suffering from the disease of chemical dependency when compared to the general population of those with the disease, is that the physician is working and his or her license is always at stake. Protection of the Public The department, in an attempt to protect the public, is seeking discipline of Dr. Pennington. Yet, the Board, by not taking emergency action against his license, has conceded that he is not impaired at the moment and so long as he is in recovery. Moreover, by allowing his practice pending this proceeding and not taking emergency action against his license, the Board has determined Dr. Pennington's practice as a physician in a walk-in clinic does not pose an imminent danger to public health safety and welfare.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Dr. Pennington's license to practice medicine be suspended for five years; That the suspension be stayed and that he be placed on probation immediately for at least five years with probation to be extended, if necessary at the end of the five years; That appropriate conditions of the suspension be imposed by the Board to include, at a minimum: No practice of anesthesiology during the period of probation; No access to controlled substances, drugs or medicines requiring a prescription during the period of probation; and, Participation in the Physician's Recovery Network for the entire period of probation. DONE AND ENTERED this 22nd day of November, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 22nd day of November, 1996. COPIES FURNISHED: Monica Felder, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399 Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy 201 East Kennedy Blvd., Suite 1950 Tampa, Florida 33602 Dr. Marm Harris Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 Maurice Hedge, M.D., is licensed by the Board of Medical Examiners of the State of Florida as a medical doctor and was so licensed at all times relevant hereto. Mrs. Renate Hall was a patient of Respondent from late 1977 until early 1979 during which time she saw him approximately bi-monthly. During this period Mrs. Hall, who was born in Germany and came to America as the wife of a U.S. serviceman, was widowed, out of work, and in poor financial circumstances. Respondent was very gallant, often kissed Mrs. Hall's hand and stroked her arm or hair when she came to his office. Several times he offered to take her to dinner, which offer she did not accept. He did not bill her for the visits. Her last visit to Respondent's office was to have her son's flu virus treated. After examining Mrs. Hall's son, Respondent came out of the examining room and told Mrs. Hall to come into his office while he wrote a prescription. He closed the door to the office, came close to Mrs. Hall, grabbed her breasts and made moaning and groaning sounds. She pushed him away and departed the office, very upset; never to return. No evidence was presented that Respondent is or was in any way mentally impaired. During the period 6-29-79 through 4-17-80 Respondent called in 12 prescriptions to Walgreen's Drug Store, Cocoa, for Class IV controlled substances, Fastin, Talwin, Valium and Premarin for patient Mabel DeVoe (Exhibit 6). A lady known at Walgreen's as Mabel DeVoe picked up these prescriptions. Mabel DeVoe and Geneveive Hodge, the wife of Respondent, are the one and the same person. Exhibit 20 is a list of prescriptions written by Respondent for his wife for controlled substances, primarily Fastin and Talwin, during the first nine months of 1980. These prescriptions were filled at Campbell's Pharmacy, Rockledge, Florida. In the affidavit of Mabel DeVoe (Exhibit 7) she states that she works for Dr. and Mrs. Hodge, and picked up prescriptions made out to Mabel DeVoe and turned the drugs over to Mrs. Hodge. The fact that Respondent was writing prescriptions for Fastin and Talwin for Geneveive Hodge at the same time he was calling in prescriptions for Fastin to be issued to Mabel DeVoe, either a fictitious person or an alias for Mrs. Hodge, shows an intent to deceive by Respondent while participating in this charade. During an audit of Respondent's controlled substances record by the Federal Drug Administration inspectors some two thousand tablets of controlled substances dispensed by Respondent were unaccounted for. Respondent stated to the inspector that most of these unaccounted-for drugs had been dispensed by him rather than administered. When advised of the shortages Respondent made no effort to show that these drugs had been administered, by providing the patients' records to whom he may have administered the drugs. In view of Respondent's admission that these drugs had been dispensed by him, his argument at the hearing that these missing drugs may have been administered and the inspector would have so found had he reviewed all of Respondent's patient records, is without merit. Linda Lomax has been known in police circles in Cocoa and the vicinity for the past ten years or longer as a drug abuser. At various times until late 1980 she was addicted to Demerol. She was successful many times in going to the emergency rooms of hospitals complaining of back pain, earache, and other problems and getting prescriptions for Demerol and other controlled substances. She has a criminal record for assault with a deadly weapon and forgery of prescriptions. In July 1980 Ms. Lomax was apprehended by the police in Rockledge on the basis of a warrant issued in Melbourne for the offense of using forged prescriptions. She was accosted in a drug store while attempting to get drugs on a forged prescription. When the policeman identified himself as such she immediately asked to leave the drug store to "talk". Without ever being placed under arrest by the police, without promises of leniency, of police dropping of charges or other inducement Ms. Lomax asked if the police were interested in learning who committed recent drug related robberies and when the policeman said "Yes" proceeded to tell him about prior unsolved robberies in the area and of a forthcoming planned robbery. The information given by Ms. Lomax proved reliable. She also knew the drug abusers who were getting drugs from which doctor and agreed to assist in getting evidence against these doctors. Ms. Lomax subsequently was introduced to John Spanogle, an investigator for Petitioner, and agreed to assist in getting evidence against Respondent. She had gone to Respondent's office in mid-June 1980 and had obtained Demerol without a physical examination and without a medical reason for having the drug. She had received information from other drug abusers that she could get Demerol from Respondent. When Respondent asked her during the June visit who sent her to him she told him Karen Schaffer and Karen Pritchard. After giving her a prescription for Demerol, Respondent told her to come back. On this visit she stole some blank prescription pads from Respondent's office. Ms. Lomax's next visit to Respondent was in mid-July 1980 and on this visit she presented him with a prescription for 50 Demerol she had forged on one of the blanks she had stolen and told him the pharmacist would not fill it. Respondent tore up that prescription and issued her a valid one for 50 Demerol. During these visits Respondent kissed Ms. Lomax and called her "Baby". When Ms. Lomax told Spanogle the substance of her visit to Respondent he asked if she would return with a "bugging" device on her person, to which she agreed. On July 30, 1980, Ms. Lomax visited Respondent's office carrying a radio transmitter in her purse which was monitored and recorded by Spanogle and the police. At this visit Ms. Lomax told Respondent's nurse that she had an earache. When she met Respondent in the examining room he greeted her with a kiss on the mouth. She told him she didn't have an earache but wanted something for sleep. He asked if Valium would be okay. She said "Yes". When he asked if she wanted 24 or 30 she replied "30". After the greeting kiss Respondent unzipped the front of her dress and played with her breasts. She showed him bruises on her leg and he lifted her dress and remarked that she had sexy underwear and good-looking legs. Her testimony of the events that transpired on this July 30 visit is corroborated by the transcript of the tape of the conversation between Respondent and Ms. Lomax (Exhibit 13). Respondent again agreed to take care of the prescription she had forged from the stolen prescription pad. She made an appointment to return 5 August and left with the prescription. At a prearranged meeting place she turned over prescriptions for 30 Valium, 5 mg. and 24 Dalwane, 30 mg. (Exhibit 8) to Spanogle. On 5 August 1980 Ms. Lomax again visited Respondent's office carrying a "bugging" device. During this visit she was kissed several times by Respondent. They discussed his sexual exploits, or rumors thereof, with other patients. Respondent unzipped his pants to expose his penis and asked Ms. Lomax to look at it and touch it, and he kissed and fondled her breasts. No other physical examination was performed. Ms. Lomax told Respondent she wanted something to help her sleep. While in the office Respondent gave her a Valium injection and upon her departure he gave her prescriptions for 60 Librium, 10 mg. and 24 Nodular, 300 mg. These prescriptions were delivered to law enforcement officers by Ms. Lomax and were admitted into evidence as Exhibit 9. On 12 August 1980 Ms. Lomax made a final visit to Respondent's office again carrying a "bugging" device through which their conversation could be monitored and recorded. During this visit Respondent again fondled and kissed Ms. Lomax's breasts, unzipped his pants and requested oral sex from Ms. Lomax, which she declined. She complained that some of the drugs he gave her last time were ineffective and that she wanted something stronger. Also, she wanted something to keep her awake for the night job she was going to start and sleeping pills so she could sleep during the daytime. She stated she preferred Valium over Librium. When she left the office she had prescriptions for 50 Talwin, 50 mg.; 50 Valium, 5 mg.; 30 Ionamin, 30 mg.; and 50 Dalmane, 30 mg., which she delivered to law enforcement officers (Exhibit 10). On none of these visits was she billed by Respondent for medical services.
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent, Esmildo E. Machado, was a licensed physician in the State of Florida having been issued license number ME-0028831. Respondent came to the United States from Cuba in approximately April of 1974. Respondent was and is a fervent anti-communist. Prior to coming to the United States, Respondent was imprisoned in Cuba from 1969 through 1974 for aiding anti-communists who were attempting to overthrow the government of Cuba. Respondent has been a licensed physician in Florida since 1976 and has been practicing out of an office located at 456 Southwest 8th Street in Miami, Florida, since that time. No evidence was presented of any prior disciplinary action taken by Petitioner against Respondent. In March of 1992, the Federal Drug Enforcement Agency ("DEA") initiated a criminal investigation into the prescribing practices of Respondent. The investigation was apparently initiated after a confidential informant (the "Confidential Informant" or the "Patient") told DEA that he could obtain drugs through Respondent. The DEA enlisted the Confidential Informant to try to buy drugs and prescriptions from the Respondent. The Confidential Informant was not otherwise employed during the time period in question. He was paid by DEA based in part upon the quantities and strength of the drugs and prescriptions obtained. On or about April 13, 1992, the Confidential Informant telephoned the Respondent's office and set up an appointment to meet with the Respondent that afternoon. The Confidential Informant had been a patient of the Respondent's several years earlier. In addition, the Confidential Informant's father had been treated by the Respondent in the recent past. As discussed in more detail below, Respondent claims that he thought the Confidential Informant came to see him to complain about Respondent's treatment of the Confidential Informant's father. Respondent contends that the Confidential Informant had visited his office approximately one week before the April 13 visit and, during the earlier meeting, the Confidential Informant told Respondent that he needed drugs for the "Nicaraguan anti-communists." Respondent claims that he felt compelled to help. The Confidential Informant denies any such conversation took place. Respondent's purported desire to help the Nicaraguan anti-communists does not relieve him of the obligation to practice medicine in accordance with community standards and the laws of Florida. In any event, Respondent's contention is not credible. As discussed in more detail below, the Confidential Informant recorded his April 13 visit to Respondent's office and also recorded several subsequent visits. None of the transcripts of the recorded conversations between Respondent and the Confidential Informant reflect that either the Confidential Informant or Respondent ever made any mention of "Nicaraguan anti- communists." Respondent also contends that he was intimidated by the Confidential Informant and alleged hints made by him of a possible malpractice lawsuit over Respondent's treatment of the Confidential Informant's father. The transcripts of the initial meetings between Respondent and the Confidential Informant reflect that Respondent was very solicitous regarding the Confidential Informant's father. However, there is no persuasive evidence that the Confidential Informant said or did anything to foster Respondent's concern about a possible malpractice action. Any subjective fears on Respondent's part were not reasonably based and provide no defense to the charges that he violated Chapter 458, Florida Statutes. The more persuasive evidence in this case did not support Respondent's contention that he was coerced or tricked into selling the Patient prescriptions and drugs during any of the meetings. Moreover, Respondent's claim that he was "entrapped" to dispense drugs and prescriptions to the Confidential Informant was not persuasive. Before the April 13 meeting, the Patient met with DEA Investigator Robert Yakubec and another DEA agent a few blocks from Respondent's office. Investigator Yakubec instructed the Patient on the law of entrapment and the DEA procedures for making a controlled buy. The Patient and his car were both searched, after which the Patient was given two hundred dollars to purchase prescriptions or drugs. The Patient was also given a recorder to record his conversation with the Respondent. Investigator Yakubec and another DEA agent followed the Patient to the Respondent's office. They maintained surveillance outside Respondent's office until the Patient exited. They then followed him to a prearranged meeting place where he was again searched. DEA regulations mandate the procedures described in paragraph 9. The evidence established that these procedures were followed for each and every purchase attempt described in this Recommended Order. During the April 13, 1992 meeting, Respondent provided the Patient with ten (10) Hydrocodone Bitartrate 7.5 mg. tablets (Vicodin), one prescription for forty (40) Acetaminophen with Codeine 30 mg. tablets (Tylenol III) in the name of "Roberto Gomez," and one prescription for thirty (30) Vicodin 5 mg. tablets in the name of "Juan Quinones." Vicodin is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Hydrocodone, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Tylenol III is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Codeine, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Respondent failed to take a medical history or conduct a physical examination of the Patient during the April 13 visit or during any subsequent visits by the Confidential Informant. The Confidential Informant was in Respondent's office for approximately twenty (20) minutes on April 13. He paid Respondent's secretary ten dollars ($10) for the office visit. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed by the DEA agents, who searched him and his car. The Confidential Informant returned one hundred and ninety dollars ($190) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 16, 1992, the Patient returned to Respondent's office. Before the visit, the search and preparatory procedures described in paragraph 9 were performed by Investigator Yakubec and the Patient was given one hundred dollars ($100) to make a purchase. During the April 16 visit, Respondent asked the Patient about the money Respondent made on the prescriptions from the last visit. Respondent suggested he could help the Patient by giving him Vicodin and they could split the earnings from the drugs. Respondent did not comply with the Patient's request for a prescription for Demerol. During the April 16 visit, Respondent gave the Patient one prescription for forty (40) Tylenol III 30 mg. tablets in the name of "Edna Pavon." He also gave the Patient eight (8) Toradol tablets and a prescription for forty (40) more Toradol. The Confidential Informant paid Respondent sixty dollars ($60) for these items. Toradol is a legend drug pursuant to Section 465.003(7), Florida Statutes. The Patient was in Respondent's office for approximately ten minutes on April 16. The Patient proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned forty dollars ($40) to Investigator Yakubec along with the prescriptions and Toradol provided by the Respondent. The Confidential Informant's next visit to Respondent's office was on April 21, 1992. Prior to the visit, the Patient met with Investigator Yakubec and was given two hundred and fifty dollars ($250) to make a purchase. The standard search and preparatory procedures were performed by Investigator Yakubec. The Patient had to wait for more than an hour to see the Respondent on the April 21. Respondent contends that on this and other occasions he deliberately made the Patient wait in the hope that the Patient would get discouraged and leave. After considering all of the evidence, it is concluded that Respondent did very little to discourage the Confidential Informant's efforts to obtain drugs and prescriptions. While Respondent resisted some efforts by the Confidential Informant to obtain stronger drugs, this resistance appears to have been predicated on concerns that those drugs were more closely monitored. When the Patient finally got in to see the doctor on April 21, Respondent gave the Patient one hundred and sixteen (116) Vicodin 5 mg. tablets, one prescription for sixty (60) Tylenol III 30 mg. tablets in the name of "Georgio Rojas," and one prescription for sixty (60) Darvocet 100 mg. tablets in the name of "Celia Garcia." The Patient paid Respondent one hundred thirty dollars ($130) for these items. Darvocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Propoxyphene Napsylate, a Schedule IV controlled substance as defined in Section 893.03(4), Florida Statutes. After leaving Respondent's office on April 21, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and twenty dollars ($120) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 24, 1992, the Patient again presented at Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec before the visit, and the Patient was given two hundred dollars ($200) with which to make a purchase. During the April 24 visit, the Patient told Respondent he wanted a prescription for "Xanax" and a prescription for "Tranzene" for a "Cuban friend." Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets, one prescription for sixty (60) Xanax 25 mg. tablets in the name of "[illegible]", one prescription for thirty (30) Tranxene 3.75 mg. tablets in the name of "[illegible] Martinez," one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "Georgio Rojas", and one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "[illegible]." The Patient paid the Respondent one hundred thirty dollars ($130) for the drugs and prescriptions. Xanax is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Tranxene is a legend drug pursuant to by Section 465.003(7), Florida Statutes and contains Clorazepate Dipotassium, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately twenty-three (23) minutes on April 24. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned seventy dollars ($70) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 29, 1992, the Patient returned to Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec prior to the visit. The Patient was given one hundred and seventy dollars ($170) with which to make a purchase. During the April 29 visit, the Patient asked Respondent for a prescription for Tylox. Respondent directed the Patient to wait in the office while he obtained some Vicodin. After waiting less than one hour, Respondent gave the Patient ninety (90) Tylenol III 30 mg. tablets, one hundred (100) Vicodin 5 mg. tablets, and one prescription for thirty (30) Halcion 25 mg. tablets in the name of "Carlos Quinones" and a prescription for sixty (60) Tylox in the name of "Belen Portela". The Patient paid Respondent a total of one hundred fifty dollars ($150) for these items. Tylox is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance as defined in Section 893.03(2), Florida Statutes. Halcion is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Triazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately fifty (50) minutes on April 29. Upon leaving, he proceeded directly to a prearranged meeting place where he was debriefed and searched. He returned twenty dollars ($20) to Investigator Yakubec along with the Tylenol, Vicodin and prescriptions. On May 4, 1992, the Patient again presented at Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 4 visit, Respondent gave the Patient two hundred (200) Vicodin 7.5 mg. tablets and one prescription for thirty (30) Tylox tablets in the name of "Luis Moran." The Patient paid Respondent two hundred dollars ($200) for these items. The Patient was in Respondent's office for approximately twenty (20) minutes on May 4. Upon leaving, he proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned fifty dollars ($50) to Investigator Yakubec along with the prescription and Vicodin provided by the Respondent. On May 6, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 6, 1992 visit, the Patient asked Respondent to try to obtain some steroids, in particular Deca Durabdin, for some of his friends. Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets and three hundred (300) Vicodin 5 mg. tablets in return for which the Patient paid Respondent two hundred fifty dollars ($250). The Patient promised to pay Respondent an additional fifty dollars ($50) on his next visit. The Patient was in Respondent's office for approximately twenty (20) minutes on May 6. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. The Patient's next visit to Respondent's office was on May 15, 1992. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given three hundred fifty dollars ($350). Fifty dollars ($50) was to pay for the drugs obtained during the previous visit. The Patient entered Respondent's office at approximately 1:00 p.m. on May 15 and remained inside for approximately fifteen (15) minutes. Petitioner paid Respondent the fifty dollars ($50) due from the previous visit. Respondent told the Patient he was trying to determine if he could obtain any steroids. Respondent and the Patient also discussed other drugs, including Dilaudid, Percodan and Percocet, and they discussed problems with obtaining such drugs from various pharmacies in the area. Respondent did not agree to provide any of these stronger drugs to the Confidental Informant at this time. Respondent told the Patient to return at 2:00 p.m. to pick up some Vicodin. The Patient returned to Respondent's office at approximately 1:45 p.m. on May 15 at which time Respondent gave the Patient two hundred and ninety seven (297) Vicodin 5 mg. tablets in return for which the Patient paid the Respondent two hundred fifty dollars ($250). The Patient left Respondent's office at approximately 2:02 p.m. and proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. On May 20, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 20 visit, the Patient and Respondent discussed how prescriptions could be presented at various pharmacies so as to minimize suspicion. Respondent gave the Patient one prescription for forty (40) Percocet #40 tablets in the name of "Daysi Lopez"; one prescription for forty (40) Percocet #40 tablets in the name of "Centuedis Nundez"; one prescription for forty (40) Percocet #40 tablets in the name of "Anzetia Perez"; and one prescription for 2 vials/2cc of Deca Durabolin in the name of "Miguel Castro." The Patient paid the Respondent one hundred twenty dollars ($120) for the prescriptions. Deca Durabolin is a legend drug pursuant to Section 465.003(7), Florida Statutes. Percocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance listed in Section 893.03, Florida Statutes. The Patient was in Respondent's office for approximately one (1) hour and ten (10) minutes on May 20 and proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and thirty dollars ($130) to Investigator Yakubec along with the prescriptions provided by the Respondent. On June 10, 1992, the Patient again returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given one hundred and fifty dollars ($150) with which to make a purchase. During the June 10 visit, Respondent gave the Patient one prescription for "6 amps" of Deca Durabolin in the name of "Manny Lorenzana;" one prescription for Percocet #60 in the name of "Hypolita Herrera;" one prescription for Percocet #40 in the name of "Marina Quintana;" and one prescription for Percocet #40 where the name was illegible. The Patient paid the Respondent $140 for the prescriptions. The Patient was in Respondent's office for approximately forty-five minutes on June 10. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned ten dollars ($10) to Investigator Yakubec along with the prescriptions provided by the Respondent. As noted above, Respondent never performed a physical examination of the Patient and never took a physical history from him. The evidence established that, prior to prescribing legend drugs to a patient, a physician should perform a physical examination to arrive at a legitimate medical reason to prescribe the drugs. Prescribing controlled substances for no legitimate medical reason is below the standard of care recognized by a reasonably prudent physician. A physician is required to keep accurate written medical records of his treatment of patients. These records should include a record of all drugs prescribed or dispensed to a patient and the reasons why the drugs were dispensed or prescribed. The reasons should be supported by the results of physical examinations and/or the patient's history. Respondent failed to document adequate medical histories and physical examinations in the Patient's medical records to justify his numerous prescriptions for legend drugs, including controlled substances. Accordingly, it is concluded that Respondent failed to keep written medical records justifying the course of treatment of the Patient It is also concluded that Respondent dispensed Tylox and Percocet, Schedule II substances, outside the course of his professional practice and without a legitimate medical reason. Schedule II controlled substances have a high potential for abuse. They have a currently accepted but severely restricted medical use in treatment in the United States. Abuse of a Schedule II substance may lead to severe psychological or physical dependence. 57 The evidence also established that Respondent dispensed Vicodin and Tylenol III, both Schedule III controlled substances, outside the course of his professional medical practice and without a legitimate medical reason. Abuse of a Schedule III substance can lead to moderate or low physical dependence or high psychological dependence. In addition, Respondent dispensed the following Schedule IV substances outside the course of his professional medical practice and without a legitimate medical reason: Darvocet, Xanax, Tranxene, and Halcion. Abuse of a Schedule IV substance may lead to limited physical or psychological dependence. Respondent also inappropriately prescribed and dispensed the legend drugs Toradol and Deca Durabolin to the Patient outside the course of the physician's professional practice. On several occasions between April 13, 1992, and June 10, 1992, Respondent gave prescriptions to the Confidential Informant which included a patient name other than the Confidential Informant. These actions by Respondent are below the acceptable standard of care for a reasonably prudent similar physician. There is no indication that Respondent ever attempted to contact the police about perceived threats or coercion by the Patient. There is also no evidence that Respondent ever alerted any authorities to the Patient's admissions that he intended to resell the drugs. In fact, the evidence indicates that Respondent was a willing, albeit sometimes cautious participant in the Confidential Informant's apparent drug trafficking scheme. His deliberate decision to use the name of other patients on some of the prescriptions indicates that he was well aware of what he was doing and was trying to cover his tracks. Respondent presented testimony from several members of the community who stated that Respondent is a respected and valued member of the community and has provided needed medical services to the community. Notwithstanding the allegations in this case, they have expressed confidence in his medical judgment and want to see him continue his practice in the community. Respondent was apparently involved in the final stages of a hotly contested divorce during the period when the incidents alleged in this case took place. He suggests that the stress from his divorce may have impaired his judgment in handling what he claims were high pressure tactics from the Confidential Informant. While the Confidential Informant instigated the sales and continuously sought more and stronger drugs, the more persuasive evidence did not, however, support Respondent's claim of high pressure tactics from the Confidential Informant. The stress Respondent was feeling from his divorce can be considered in mitigation, but it does not provide an excuse for Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Sections 458.331(1)(t), (q) and (m) as alleged in the Administrative Complaint. As a penalty for the violations, Respondent's license to practice medicine should be suspended for five (5) years followed by a three-year term of probation during which time Respondent's prescribing practices should be closely monitored. In addition, an administrative fine in the amount of ten thousand dollars ($10,000) should be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of November 1994. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Findings of Fact 9 and 15. Adopted in substance in Finding of Fact 7. Adopted in pertinent part in Finding of Fact 8. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Rejected as unnecessary. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 22. Adopted in substance in Findings of Fact 21 and 24. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 25. Adopted in pertinent part in Finding of Fact 29. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 29. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 27. Adopted in substance in Finding of Fact 28. Adopted in substance in Finding of Fact 30. Adopted in substance in Finding of Fact 30. Adopted in pertinent part in Finding of Fact 34. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 34. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 33. Adopted in substance in Finding of Fact 35. Adopted in substance in Finding of Fact 35. Rejected as unnecessary. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 37. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 32. Adopted in substance in Finding of Fact 38. Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. [NOTE: 59. is blank on original document filed with DOAH.] Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. Adopted in substance in Finding of Fact 39. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 42. Adopted in substance in Finding of Fact 43. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 44. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 45. Adopted in substance in Finding of Fact 45. Adopted in pertinent part in Finding of Fact 49. Adopted in pertinent part in Findings of Fact 7, 8 and 56. Adopted in pertinent part in Finding of Fact 46, except the prescriptions were for Percocet instead of Tylox. Adopted in substance in Finding of Fact 49. Adopted in substance in Finding of Fact 46. Adopted in substance in Finding of Fact 47. Adopted in substance in Finding of Fact 50. Adopted in substance in Finding of Fact 50. Adopted in pertinent part in Finding of Fact 52. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 51. Adopted in substance in Finding of Fact 52. Adopted in substance in Finding of Fact 51. Adopted in substance in Findings of Fact 14 and 53. Adopted in substance in Findings of Fact 14 and 53. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as argumentative. The subject matter is addressed in Finding of Fact 53. Rejected as argumentative. The subject matter is addressed in Finding of Fact 54. Adopted in pertinent part in Findings of Fact 14, 53 and 55. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 58. Adopted in substance in Finding of Fact 57 and addressed in the Conclusions of Law. Adopted in substance in Finding of Fact 59. Subordinate to Finding of Fact 7. Rejected as vague and unnecessary. Adopted in substance in Finding of Fact 60. Rejected as argumentative and unnecessary. Subordinate to Findings of Fact 7 and 8. Rejected as vague and unnecessary. Rejected as unnecessary. Respondent's proposed findings of fact Rejected as unnecessary. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Rejected as unnecessary. Adopted in substance in Finding of Fact 4. Rejected as vague and unnecessary. Subordinate to Finding of Fact 2. Adopted in substance in Finding of Fact 2. Rejected as unnecessary. The subject matter is addressed in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in substance in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in pertinent part in Findings of Fact 9. Subordinate to Finding of Fact 5. Rejected as vague and argumentative. Rejected as argumentative and unnecessary. Some of these issues are addressed in Findings of Fact 5 and 9. Adopted in pertinent part in Findings of Fact 5. Rejected as vague and unnecessary. Rejected as vague and unnecessary. Adopted in pertinent part in Findings of Fact 5. Rejected as unnecessary. Addressed in the preliminary statement. Rejected as irrelevant. As set forth in the Preliminary Statement, the Confidential Informant authenticated the transcripts. Rejected as irrelevant. The clear and convincing evidence established that the Confidential Informant paid Respondent for the drugs and prescriptions he obtained. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as vague and unnecessary. Rejected as unnecessary. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Adopted in substance in Finding of Fact 15. Rejected as unnecessary. Rejected as unnecessary and irrelevant. Subordinate to Finding of Fact 8. Rejected as contrary to the weight of the evidence. Subordinate to Finding of Fact 62. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Francesca Plendl, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Harold D. Lewis, General Counsel Agency for Health Care Administration 325 John Knox Road Tallahassee, Florida 32303 Gary Robert Fine, Esquire 633 Southeast Third Avenue #4R Fort Lauderdale, Florida 33301
