The Issue The matters to be determined in this case concern an administrative complaint which has been filed against Monroe Monford a/k/a Monroe Monford, Jr. seeking to take disciplinary action based upon the allegation that the Respondent, by the entry of a plea of guilty to a violation of Section 893.13(1)(e) Florida Statutes, possession of cocaine, has thereby violated Sections 455.227(1)(c) and 465.016(1)(f), Florida Statutes.
Findings Of Fact Respondent, Monroe Monford also known as Monroe Monford, Jr. is a pharmacist licensed under the laws of the State of Florida, License No. 0009494 whose address is 3822 Elbert Avenue, Jacksonville, Florida 32208. In June of 1982 an investigation was conducted by the Duval County Sheriff's office, Duval County, Florida leading to the arrest of the Respondent. The arrest occurred at 5929 Ramona Boulevard in the Days Inn Motel. A monitor had been placed in the room where a suspected drug transaction was to occur and it was determined that the Respondent was involved in that transaction to the extent of conducting a test to ascertain if the substance being purchased was actually cocaine. It was later determined to be cocaine. Another individual who was in the room with Monroe Monford, one Eddie Lee Tuff, went to a car to obtain money that was being paid for cocaine. Subsequent to that time law enforcement officials entered the room which was under surveillance and found Monroe Monford on the bed counting the money in question. Monford was arrested for a violation of Section 893.135, Florida Statutes, trafficking in a controlled substance, namely cocaine. In response to charges which were brought against Respondent in the Circuit Court of Duval County, Florida, Case No. 82- 5383CFS, Respondent entered a plea of guilty to the sale of cocaine and received a period of probation of five years, assessment of court costs in the amount of $12,153 and as a special condition of probation, was prohibited from practicing pharmacy in Florida or any other state while serving the probationary term. The offense to which he plead guilty was a violation of Section 893.13, Florida Statutes. Respondent was not adjudged guilty of the violation of law to which he plead, imposition of the sentence having been withheld pending the satisfactory completion of the probationary period. The date of the court disposition of the case was October 15, 1982.
The Issue The issue in this proceeding was whether Respondent violated Subsections 458.331(1)(g) and (t), Florida Statutes, between June 26, 1980 and September 16, 1983, by prescribing 4,100 Percocet to a single patient, failing to attempt other modalities of pain treatment for that patient and failing to refer the patient to a consulting physician.
Findings Of Fact At all times relevant, Robert G. Gilbert, M.D., Respondent, was licensed as a physician with license number ME0005030 from the Florida Board of Medical Examiners. He has been continually licensed since 1952. (Petitioner's Exhibit #3, T-13, 18) Neither the Department nor any hospitals have ever taken any action against his license. (T-13) Dr. Gilbert admitted at the hearing that he prescribed 4,100 pills of Percodan to his patient, George Watson, for the period of time in question. (T-9) He also stated that he prescribed for Mr. Watson 100 Percocet a month for the last five years that he treated him. (T-20-21) These admissions are consistent with Petitioner's evidence consisting of medical records and original prescription forms retrieved from the pharmacies. (Petitioner's Exhibits #1, 2 and 4) Percodan and Percocet both contain oxycodone; Percodan includes aspirin, and Percocet includes acetaminophen. (T-31) Both Dr. Gilbert and Petitioner's expert, Dr. John Handwerker referred to the PDR (Physicians' Desk Reference) regarding the drugs. The warning in that widely-accepted medical reference is: "May be habit forming"; the indications are "For the relief of moderate to moderately severe pain"; and, * * * Dosage should be adjusted according to the severity of the pain and the response of the patient. It may occasionally be necessary to exceed the usual dosage recommended below in cases of more severe pain or in those patients who have become tolerant to the analgesic effect of narcotics. The usual dosage is one tablet every six hours for pain. PDR, 1984 Edition, p. 928. The Oxycodone content in these drugs places them in the Schedule II, severely restricted medical category. (T-31), See Subsection 893.03(2)(a), Florida Statutes. Dr. Gilbert did not admit that the drugs were the only mode of treatment for this patient. Rather, he and other physicians treating Mr. Watson used ultrasound, heat, cold, massage, transcutaneous neural stimulation ("TNS") and muscle relaxants. (T-9-10) The patient was 6'2" and weighed 210 lbs. He was injured on his job as a City of Miami police officer and for a lengthy period, from 1974 until 1985, Dr. Gilbert was his authorized worker's compensation physician. At no time while Mr. Watson was under Dr. Gilbert's care did he ask for an increase in dosage or exhibit any unusual behavior. The treatment, other than drugs, was utilized from 1974 until about 1977 regularly and then intermittently, as needed, until February 1985. (T-10, 12) The records of George Watson obtained by the D.P.R. from Dr. Gilbert's office, consist primarily of cards reflecting various visits of the patient, correspondence regarding the workers' compensation claim and workers' compensation billing and report forms. The records are replete with references to physiotherapy, often several times a month and, for several months in 1977, on a daily basis. George Watson continually complained of pain. (Petitioner's Exhibit #1) Also included in the records is a three-page report on the patient, dated July 30, 1977, from Ledford Gregory, M.D., an orthopedic surgeon. The report reflects the patient's complaints of severe pain and Dr. Gregory's recommendation to the patient regarding surgery: I am however impressed by the degree of pain he is having and I believe that he is a candidate for surgical therapy. Before a decision would be made in this regard however, he should have an electromyelogram of the lower extremity, a CAT scan of the lumbar spine and a myelogram. We could then decide whether a Gill procedure and decompression would be sufficient or whether there would have to be added a posteriolateral fusion procedure. I have discussed this with the patient. I have explained to him that the odds are fairly good that the operation would give him considerable relief but that there is a chance that his condition would remain unchanged, and there is a slight chance that he might be worse. He will have to make the decision himself as to whether he desires the surgical intervention or not. (Petitioner's Exhibit #1, p. 171). Dr. John Handwerker was qualified as an expert witness for Petitioner. He heard Dr. Gilbert's testimony and reviewed the medical records, including the prescriptions for George Watson. (T-30,31) In his opinion the prescriptions for Percocet/Percodan were inappropriate and excessive as there were other treatment modalities that could have been tried before risking addiction. In his opinion, the TNS unit should have been utilized continually, rather than just in the office, and Dr. Gilbert's records were inadequate to justify the continuing use of the drugs for his patient's pain. (T-32, 33, 38).
Recommendation For the foregoing reasons, it is, therefore, RECOMMENDED: That the Administrative Complaint against Respondent, Robert G. Gilbert, M.D., be dismissed in its entirety. DONE and RECOMMENDED this 23rd day of May, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Cecilia Bradley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert G. Gilbert, M.D. 2617 Cardena Street Coral Gables, Florida 33134 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Paragraph 1. Adopted in Paragraph 2. Rejected as unnecessary. Rejected as unnecessary. 5-7. Rejected as unnecessary. While the veracity of the witness is not in question, the testimony of the Respondent under oath and substantiated by the medical records introduced as Petitioner's exhibit #1 is more competent evidence that other modalities were tried. Without the actual questions asked by the investigator, it is not possible to determine the context or meaning of the seemingly inconsistent prior statements of Respondent during the investigator's interview. Adopted in part in Paragraph 3, the transcript reference does not support the finding proposed in this paragraph. Adopted in Paragraph 6, except as to the characterization of the testimony as "uncontroverted", this is specifically rejected. Adopted in general in Paragraph 6. Rejected as cumulative and unnecessary. Rejected as inconsistent with the evidence. Adopted in general in Paragraph 6. Adopted in general in paragraph 6. But see Conclusions of Law #4 regarding violations which are not included in the complaint. Adopted in paragraph 2. Rejected as cumulative. Rejected as cumulative. Rejected as unnecessary. This conclusion by the expert is rejected as discussed in the Conclusions of Law. 23-25. Rejected as unnecessary. 26. Rejected as irrelevant in this proceeding. Incapacity is not charged in the complaint before me. See Conclusion of Law #4.
The Issue The issue is whether the Respondent has failed to maintain good moral character.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards Training Commission as a correctional officer on March 21, 1985, and issued Certificate No. 04-85-599-01. At the time of the events which form the basis for the Administrative Complaint, the Respondent was employed as a correctional officer at the Marion Correctional Institution, a correctional facility of the State Department of Corrections. Marion County Sheriff's Deputies, David F. Faircloth, Jr. and Art King, are veteran law enforcement officers who have received training in the detection and recognition of controlled substances, to include marijuana. Both officers have made numerous arrests for the possession of a controlled substance which they suspected was marijuana and which, upon being tested, proved to be marijuana On June 9, 1990, while on regular patrol in Marion County, Florida, Deputy David F. Faircloth, Jr. was directed to investigate an anonymous report of a male and female who had been observed fighting in a white Camaro automobile parked on U.S. Highway 27. While in that vicinity in response to that request, Officer Faircloth responded to a complaint of a disturbance at 1261 N.W. 56th Court, Ocala, Florida. When Deputy Faircloth arrived on the scene, he noticed a white, two-door Camaro. Deputy Faircloth determined upon investigation that the Respondent and Linda Altman, who lived at the address, had engaged in an altercation involving their respective vehicles which were both damaged and parked in the front yard. Both the Respondent and Ms. Altman had been drinking and both were upset. Deputy King was dispatched as a backup and arrived at the Altman residence. Upon his arrival, Deputy King was briefed by Deputy Faircloth, who advised him that both the Respondent and Ms. Altman had been drinking, both were angry with one another, both had engaged in some altercation involving their vehicles which had caused damage to both vehicles, and both were correctional officers. Pursuant to their standard operating procedure, the deputies separated and interviewed separately the Respondent and Ms. Altman. Deputy King talked to the Respondent and Deputy Faircloth talked to Ms. Altman. Deputies Faircloth and King determined that the white Camaro parked at the location belonged to the Respondent. Deputy King stated that he intended to permit the Respondent to leave the scene; however, he was concerned that the Respondent, being a corrections officer, might have a weapon in his vehicle and return to cause more trouble. This testimony is logically inconsistent because if the Respondent had a gun and was released, he could retrieve the gun and return. However, it was on this basis Deputy King asked the Respondent if he could search his vehicle. The Respondent consented to the search of his vehicle by Deputy King. Officer King began his search of the vehicle in the front driver's seat. As Deputy King was leaning into the vehicle, conducting his search, the Respondent leaned over his back into the rear of the automobile and removed a shaving kit from the back seat. The Respondent's unanticipated action startled deputy King, who turned and inquired of the Respondent what he was doing. The Respondent, through words and gestures, indicated to Deputy King that he did not want him to search the shaving kit. The Respondent told Deputy King that there were no guns in the kit; but when Deputy King persisted in being permitted to search the kit, the Respondent indicated that he would open the kit and show Deputy King its contents. When the Respondent unzipped and opened the kit, Deputy King observed at the top of the kit a plastic bag containing dried vegetable matter which Deputy King thought to be marijuana. Deputy King seized as contraband the contents of the plastic bag, and upon administration of a field test for controlled substances, he determined that the substance was marijuana. Deputy King arrested the Respondent, and conducted a search of the Respondent's vehicle where he found a portion of a partially-smoked marijuana cigarette and a device which appeared to be some type of smoking device. The bag of marijuana which Deputy King seized from the Respondent's shaving kit was sent to the Florida Department of Law Enforcement crime laboratory for analysis. The crime laboratory concluded that the plastic bag contained 4.7 grams of cannabis or marijuana. One cannot determine from the report whether the burnt cigarette was tested and determined to be marijuana. Although Deputy King filed charges against the Respondent, the charges were later dismissed by the prosecutor for reasons unknown to Deputies King and Faircloth.
The Issue The issue in the case is whether Petitioner's application for licensure should be approved.
Findings Of Fact On July 12, 2004, Petitioner filed an application for licensure as a Resident Life including Variable Annuity and Health Insurance Agent with Respondent. Included among the questions on the application was the following: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Petitioner answered "no" in response to the question. The application requires the applicant to consent to the following statement: Under penalties of perjury, I declare that I have read the foregoing application for license and that the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of the Florida Insurance and Administrative Codes and may result in denial of my application and/or the revocation of my insurance license(s). By affixing his electronic signature to the application, Petitioner affirmed that the information set forth therein was true. The evidence establishes that on April 7, 1978, Petitioner was sentenced to the Nassau County Correctional Center for a term of one year after entering a guilty plea to a felony count of Attempted Grand Larceny (Grand Jury Indictment No. 46323, June 24, 1977, Nassau County, New York.) Petitioner entered the Correctional Center to begin serving his sentence on December 15, 1978, and was released on February 28, 1979. Petitioner did not disclose the 1978 conviction on the application for licensure as an insurance agent. After completing a criminal history check, Respondent issued two deficiency letters, dated July 26, 2004, and August 5, 2004, seeking additional information related to Petitioner's background. In response to the deficiency letters, Petitioner submitted additional information and a letter. In the letter and in his testimony at the hearing, Petitioner stated that he misinterpreted the question, and believed that because he was incarcerated for less than one year, the 1978 conviction was responsive to the question. He stated that he did not intend to mislead or deceive Respondent. Respondent issued a Notice of Denial on August 25, 2004. The grounds for the denial was Petitioner's failure to disclose the 1978 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order denying the application for licensure filed by Anthony A. Sagnelli and imposing a waiting period to expire on August 26, 2005. DONE AND ENTERED this 28th day of February, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2005.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against a medical doctor on the basis of alleged violations of paragraphs (m), (q), and (t) of Section 458.331(1), Florida Statutes. The violations charged relate to allegations that the Respondent improperly prescribed legend drugs, including controlled substances, and that he failed to keep certain records.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, a licensed physician, having been issued license number ME 0026758 by the State of Florida. During 1988 and 1990 the Respondent wrote five prescriptions for a person named V. L. R. The prescriptions were dated 7/9/88, 8/23/88, 9/27/88 11/18/88, and 2/12/90. As of October 22, 1990, the Respondent did not have any medical records in his possession regarding V. L. R. The Respondent has never had any medical records regarding V. L. R. The prescriptions the Respondent gave to V. R. L. included a prescription for 100 tablets of Eskalith CR, 450 milligrams each. Eskalith is a brand name for Lithium. The prescriptions the Respondent gave to V. L. R. also included a prescription for 500 tablets of Lithobid, 300 milligrams each, which is another brand name for Lithium. Before prescribing Lithium, a physician should establish the existence of a mood disorder as a diagnostic basis for the prescription. The diagnosis should be reflected in medical records. When prescribing Lithium, a physician should also monitor the concentration of the drug in the system of the person to whom the drug is prescribed, because the therapeutic level of Lithium is very close to the toxic level of Lithium. If the concentration is too low, the drug is not effective. If the concentration is too high, there can be toxic effects including vomiting, diarrhea, unsteady gait, and the possibility of falling. The prescriptions the Respondent gave to V. R. L. included a prescription for 30 tablets of Ativan, 100 milligrams each. Ativan is a controlled substance which is habit forming. It is a tranquilizer. A physician should not prescribe Ativan without a diagnosis of a sleeping problem or anxiety. The diagnosis should be documented in the medical records of the person to whom the prescription is given. The name of the drug, the dosage, and the times the drug should be taken should all be included in the medical records. The prescriptions the Respondent gave to V. R. L. included a prescription for 100 tablets of Tegretol, 100 milligrams each. Tegretol is an anti-seizure medication that is also used as a mood stabilizer in people who have a major mood disorder. When prescribing Tegretol, a physician should also monitor the concentration of the drug in the system of the person to whom the drug is prescribed, because the drug has the potential for adverse side effects, including inhibition of blood cell production and the production of platelets leading to the risk of infection or bleeding. A physician should not prescribe Tegretol unless a diagnosis of a mood disorder has been made. The diagnosis should be reflected in medical records. A physician should not prescribe Tegretol and Lithobid to the same person unless there have been some difficulties in the treatment of the person and a need for simultaneous prescription of both drugs has been established by the physician. The name of the drug, the dosage, and the times the drug should be taken should all be included in the medical records. The prescriptions the Respondent gave to V. R. L. included a prescription for 100 tablets of Anafranil, 25 milligrams each. Anafranil is a drug prescribed to treat obsessive/compulsive disorder with or without depression. A physician should not prescribe Anafranil without a diagnosis of an obsessive/compulsive disorder. The diagnosis should be documented in the medical records of the person to whom the prescription is given. Any symptoms of depression should also be noted in the medical records. The name of the drug, the dosage, and the times the drug should be taken should all be included in the medical records. When prescribing Anafranil, the physician should monitor the effect of the drug by observation of the person to whom the prescription is given. Such observations should be noted in the medical records. The prescriptions the Respondent gave to V. R. L. included a prescription for 10 tablets of Endep, 25 milligrams each. Endep is a commercial name for amitriptyline, which is an antidepressant. It is used to treat depression. A physician should not prescribe Endep unless a diagnosis of depression has been made. The diagnosis should be included in the medical records. The name of the drug, the dosage, and the times the drug should be taken should all be included in the medical records. The prescriptions the Respondent gave to V. R. L. included a prescription for 15 tablets of Halcion, 25 milligrams each. Halcion is a controlled substance that is used to treat sleeping disorders. A physician should not prescribe Halcion unless a diagnosis of a sleeping disorder has been made and the need for the drug is established. When prescribing Halcion, the physician should monitor the effect of the drug by means of observations of and discussions with the person to whom the prescription was given. The diagnosis of sleeping disorder and the observations and discussions should all be noted in the medical records. The name of the drug, the dosage, and the times the drug should be taken should also all be included in the medical records. The Respondent prescribed quantities of medication that represented a potential danger to V. L. R. The Respondent prescribed excessive or inappropriate quantities of drugs to V. L. R. The Respondent, by providing the prescriptions described above to V. L. R., prescribed legend drugs, including controlled substances, outside the scope of his professional practice.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect: Dismissing the charges alleged in Counts One and Two of the Amended Administrative Complaint; Finding the Respondent guilty of a violation of Section 458.331(1)(q), Florida Statutes, as alleged in Count Three of the Amended Administrative Complaint; and Imposing an administrative penalty comprised of (i) an administrative fine in the amount of one thousand dollars ($1,000.00), (ii) a requirement that the Respondent attend one or more continuing education courses on the subject of legal and ethical issues associated with the prescription of controlled substances, and (iii) a public reprimand of the Respondent for the violation described above. DONE AND ENTERED this 28th day of June, 1994, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Adminsitrative Hearings this 28thday of June, 1994. APPENDIX The following are the specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1 and 2: Accepted. Paragraph 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance. Paragraph 5: Rejected as not supported by clear and convincing evidence. (It is clear that the Respondent did not make any records of any such examinations or tests, but it is not clearly established that he did not perform the examinations or tests.) Paragraph 6: Rejected as subordinate and unnecessary details. Paragraph 7: Accepted in part and rejected in part. It is clear that the Respondent failed to keep medical records regarding V. L. R.; it is not clear that he "treated" her or that she was a patient. Paragraphs 8 through 36: Accepted. Paragraphs 37 and 38: Rejected for several reasons, including the following: These two paragraphs are to some extent arguments, rather than proposed findings of fact. The opinions described in these two paragraphs are both based on an assumption that was not proved; the assumption that V. L. R. was a patient who was being treated. There is no clear and convincing evidence that V. L. R. was the Respondent's patient. Paragraph 39: Rejected as an invalid and incorrect opinion. The issuance of a prescription does not always constitute treatment of the person for whom the prescription is written. (A classic example of when prescription writing does not constitute treatment is when a prescription is written for a drug to be used for recreational purposes, rather than for a legitimate medical purpose.) Paragraph 40: Rejected as not supported by clear and convincing evidence. (It is clear that the Respondent did not make any records of any history, psychiatric evaluation, or diagnosis of V. L. R., but it is not clearly established that he did not do those things.) Paragraph 41: Accepted. Paragraph 42: Rejected for several reasons. First, the facts proposed in this paragraph were not established by clear and convincing evidence. (McKenzie's testimony about who wrote the notes was hearsay that would not meet one of the recognized hearsay exceptions; Norwich's testimony about who wrote the notes was limited to an unquantifiable "probably.") Paragraph 43: Rejected for several reasons. First the evidence is insufficient to establish what kind of relationship the Respondent had with V. L. R. Second, there is no clear and convincing evidence of a sexual relationship between the Respondent and V. L. R. Third, there is no clear and convincing evidence that V. L. was a patient of the Respondent. Fourth, any findings about a sexual relationship would be irrelevant because there is no allegation in the Amended Administrative Complaint regarding any sexual relationship. Paragraph 44: Rejected because this opinion is based on at least one fact that was not proved at the formal hearing. Paragraph 45: Accepted. Paragraph 46: First three lines and first word of fourth line are accepted. The reference to the sexual relationship is rejected as not charged and as not proved by clear and convincing evidence. Paragraph 47: Rejected because this opinion is based on at least one fact that was not proved at the formal hearing. Findings submitted by Respondent: Paragraph 1: Accepted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary procedural details. Paragraphs 4 and 5: Rejected as not supported by persuasive competent substantial evidence. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as subordinate and unnecessary details. Paragraphs 8 through 10: Accepted in substance, with some subordinate and unnecessary details omitted. Paragraph 11: Rejected as incorrect dates; the correct dates are 1988 to 1990. Paragraph 12: Accepted in substance. Paragraph 13: Rejected as irrelevant. COPIES FURNISHED: Francesca Plendl, Esquire Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Harold M. Braxton, Esquire, and Tania Therese Wong, Esquire Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156 Jack McRay, General Counsel General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Marm Harris Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Should Respondent's license to practice podiatric medicine be disciplined for failure to keep required written medical records, for prescribing or dispensing legend drugs other than in the course of his professional podiatric practice, for failing to practice as a reasonably prudent podiatric physician, and for practicing beyond the scope of his license?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of podiatric medicine pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 461, Florida Statutes. Dr. McNally has been licensed without interruption to practice podiatry in the State of Florida since October 22, 1996. He has not been the subject of disciplinary action by the Board of Podiatry. Dr. McNally was licensed as a podiatrist in the State of Florida by the Agency for Health Care Administration (AHCA) in October 1996. He was born on June 19, 1969. Ms. Sara Helen Lowe, a pharmacist, is an inspector for AHCA. She conducted a survey of pharmacies in the vicinity of Destin and Ft. Walton area and discovered that Respondent had written multiple prescriptions for legend drugs which were in the name of Patient B.R. She also determined from her survey that Respondent had prescribed the legend drug Phentermine for six of his patients. A legend drug is a drug for which a prescription is required and includes Schedule II controlled substances under Chapter 893, Florida Statutes. A Schedule II controlled substance is a pharmaceutical which has medical uses and also has a potential for being abused. Mrs. B.R. is the wife of Patient B.R. She was aware that her husband received numerous prescriptions from Dr. McNally for multiple drugs including oxycodone and methadone in 1998 and 1999. Mrs. B.R. was aware that her husband had an open wound on his foot for several years. She was also aware that he suffered chronic and severe pain from this condition. Mrs. B.R. was concerned about the amount of drugs being consumed by Patient B.R. and discussed this matter with Dr. McNally. During this conversation, Dr. McNally told her that, "B.R. was in chronic pain, and that the amount of medication that B.R. took was basically B.R.'s problem." Mrs. B.R. was angry with regard to the amount and type of drugs which were prescribed by Dr. McNally. However, she thought that during this time his foot wound was improving. Mrs. B.R. was aware that Dr. McNally brought drugs to patient B.R.'s hospital room when patient B.R. was hospitalized in November of 1998. Mrs. B.R. was aware that her husband was hospitalized on an emergency basis for an overdose of Tegrital, a drug designed to combat seizures. This drug was not prescribed by Dr. McNally. It was prescribed by another doctor. The pain that patient B.R. suffered caused a hardship in Mrs. B.R.'s home but she preferred that he take the pain medication rather than see him suffer. Patient B.R. lives in Destin with his wife. He is receiving disability payments due to a hip replacement, a knee replacement, and an ulcer on his right foot. In an effort to relieve the pain in B.R.'s foot Respondent prescribed Oxycodone, Endodan, Endocet, Methadone, Roxicet, Roxiprin, Percocet, Oxycontin, Morphine Sulfate Er, MS Contin, Oramorph SR, and Roxicodone. All of these are forms of oxycodone, methadone, or morphine, alone, or in combinations with acetaminophen. Dr. McNally prescribed approximately 8,705 units of oxycodone, 250 units of methadone, and 510 units of morphine for patient B.R. during the eighteen-month period he treated him. These drugs were prescribed to him subsequent to his first visit to Dr. McNally in 1997. All of the foregoing drugs are Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Patient B.R. obtained prescriptions during office visits and by telephoning Dr. McNally. When B.R. called Dr. McNally the doctor would ask him what drugs he wished to have and B.R. would tell him. Dr. McNally would then provide the prescription to a pharmacy telephonically. On at least one occasion the prescription was left inside the screen door of Dr. McNally's dwelling for Patient B.R. to pick up. Office visits were on some occasions made at the offices of Dr. Haire from which Dr. McNally occasionally practiced. During office visits Dr. McNally would sometimes take B.R.'s temperature. He checked B.R.'s vital signs approximately every six months. Patient B.R. got prescriptions from Dr. McNally when Dr. McNally was on an extended trip to Europe in early 1998 or 1999. While Patient B.R. was a patient in the local hospital, Dr. McNally brought him drugs because the pain medication provided by the hospital was inadequate. Dr. McNally brought the drugs to his hospital room four or five times. He bought these drugs with patient B.R.'s credit cards. Patient B.R. was in the hospital November 9 through 17, 1998. Dr. McNally submitted insurance claims for patient B.R. for a portion of the time he was treating patient B.R. but eventually stopped. Patient B.R. stopped seeing Dr. McNally. Subsequently, a therapist, Sherry Levitis, recommended that patient B.R. attend a pain management center in New Orleans. As a result of his attendence there he experienced a decrease in needle-like pains. The pain management succeeded in getting B.R. to gradually reduce the amount of pain-killing drugs that he was ingesting. Patient B.R. never received any drug rehabilitation. The pain management clinic taught him that he could get by without the aid of drugs. Patient B.R. went to different pharmacies to have his prescriptions filled because he thought they would question the amount if he received too many drugs from the same business. He was advised by Dr. McNally to avoid making frequent visits to the same pharmacy. Patient B.R. never shared the drugs he obtained with others. The use of these drugs changed patient B.R.'s personality and caused domestic difficulties. He became dependent on the drugs. Buying the drugs was a financial strain. At the time of the hearing patient B.R. still was suffering from the ulcer on his right foot. Though he has had surgery on the ulcer three times, it has not healed. Patient B.R. believes his emergency trip to the hospital was the result of his taking Tegrital which is an anti- seizure medicine. He believes he should have coordinated the taking of this medicine with Dr. McNally and that his failure to do so was the cause of the medical event which resulted in emergency hospitalization. The medical doctor who prescribed the Tegrital never asked him if he was taking other medications. Numerous efforts were made by Dr. McNally to address patient B.R.'s foot condition and the resultant pain, including surgery, orthotics, and pain management efforts. The drugs prescribed by Dr. McNally enabled patient B.R. to get off of his couch and live a more normal life. Patient B.R. had better results in addressing his pain and treating his ulcer with Dr. McNally than with any other doctor. At the insistence of Petitioner, Dr. McNally supplied to Petitioner what he claimed to be patient records in the case of B.R. Petitioner believed these records to be phony. Dr. McNally prescribed Phentermine to patients and asserted that he believed it would enhance circulation in the lower extremities. Dr. McNally has been out of the country often and has prescribed drugs for patients in the United States while he was physically located in Italy. Dr. McNally prescribed drugs for patient B.R. while in Europe. He provided patient B.R. with numerous prescriptions for limited amounts because he did not want him to have too many drugs in his possession at once. Dr. McNally, at the time of the hearing, was not accepting new patients but was continuing to treat some old ones. He no longer carries malpractice insurance. Dr. McNally claimed that the medical records in the case of patient B.R., records which he supplied to ACHA at ACHA's request, were prepared by him either at the time of patient B.R.'s visits, a few days after a visit, or several days after a visit. Dr. McNally used the word "analgesic" when preparing records on patient B.R. He did not enter the actual names of the drugs. "Analgesic" could encompass all drugs which relieve pain. Dr. McNally turned to pharmaceuticals in B.R.'s case because he had tried all available alternative treatments without success. Dr. McNally prescribed drugs for the benefit of patient B.R. in the belief that he was doing what was best for his patient. Barry C. Blass, D.P.M., testified. He is an expert in the field of podiatry. Dr. Blass reviewed the evidence with regard to Dr. McNally and his treatment of patient B.R. and with regard to Dr. McNally's prescriptions of Phentermine for six patients. The pain-relieving drugs prescribed by Dr. McNally for B.R. were far in excess of an amount which would be appropriate. The amounts of legend drugs prescribed were about double that permitted by the instructions contained on the container. Dr. Blass reviewed 229 pages of office notes addressing the treatment of patient B.R. which purported to encompass the period January 2, 1998 through September 29, 1999. Almost all of the notes were identical with the exception of the dates. For the notes to be legitimate, patient B.R. would have had to visit Dr. McNally every day during October 1998 and almost everyday on several other months. It is a deficiency for a physician to fail to note on office notes that a patient has been prescribed legend drugs. The standard of care requires a physician to sign office notes. Respondent did not sign his notes. Additionally, the office notes were inconsistent with the hospital records of B.R., in that they indicated treatment in Dr. McNally's office when in fact B.R. was on those dates resident in a hospital. The office notes provided by the Respondent were manufactured, are not authentic, were not prepared at or near a time of an actual office visit, if there was an office visit, and are not, therefore, actual medical records addressing the treatment of patient B.R. It is inappropriate for a physician to bring drugs into a hospital for the use of a hospitalized patient. Phentermine is a diet drug which has no podiatric uses and therefore should not be prescribed by a podiatrist. Phentermine is usually prescribed as a remedy for exogenous obesity. Thomas L. Hicks, M.D., is an expert in the field of medicine. His testimony was provided by deposition. Dr. Hicks reviewed the medical records supplied by Dr. McNally, and provided expert opinions based on that review. It is inappropriate for a podiatrist to prescribe Phentermine. Respondent's prescriptions for Phentermine were unsafe and in excess of the customary dosages recommended by the manufacturer. By writing these prescriptions, Dr. McNally practiced outside of the scope of his license. The amount of Schedule II drugs prescribed for patient B.R. was inappropriate, dangerous, and not justified by the medical records. Dr. McNally wrote the prescriptions for patient B.R. at very frequent intervals which, while peculiar, did not violate the Practice Act. Usually when writing prescriptions for chronic pain a physician prescribes for a longer period of time. Richard D.Roth, D.P.M., testified. He is an expert in the field of podiatric medicine. Dr. Roth reviewed the medical records supplied by Dr. McNally. The prescribing of Phentermine by Dr. McNally was outside of the scope of his license and was potentially dangerous. Dr. McNally's treatment notes were inadequate in that, for example, they do not describe the exact location, size, or depth of an ulcer, among other things. Neither do they describe the types of analgesics prescribed even though massive doses of narcotic analgesics were prescribed. Dr. McNally's records in the case of patient B.R. are grotesquely incomplete. Most of the notes provided by Dr. McNally were canned notes generated by a computer.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Podiatric Medicine enter a final order finding that the Respondent, George C. P. McNally, failed to keep required medical records during the period January 2, 1998 through September 29, 1999, in violation of Section 461.013(1)(l), Florida Statutes; that the Respondent prescribed legend drugs other than in the course of his professional podiatric practice during the period January 1988 through August 1999, in violation of Section 461.013(1)(o), Florida Statutes; that Respondent failed to practice as a reasonably prudent podiatric physician during the period January 2, 1998 through September 29, 1999, in violation of Section 461.013(1)(s), Florida Statutes; and that Respondent practiced beyond the scope of his license during the period January 1988 through August 1999, in violation of Section 461.013(1)(u), Florida Statutes. It is recommended that Respondent's license to practice podiatric medicine be suspended for a period of six months, that he pay a $2,000 fine, and that he pay for the cost of the investigation and prosecution. The cost of investigation and prosecution shall be assessed at the time the matter is presented to the Board of Podiatric medicine. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2000. COPIES FURNISHED: Wings S. Benton, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 George C. P. McNally Post Office Box 5585 Destin, Florida 32540 Joe Baker, Jr., Executive Director Board of Podiatric Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether Petitioner should be exempt from disqualification from employment pursuant to Section 435.07(3), Florida Statutes (1997). (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner seeks an exemption for employment in a position for which a security background check is required pursuant to Chapter 435. Petitioner seeks employment in a position caring for the developmentally disabled. Petitioner was charged with battery in 1991, 1992, 1994 and 1996. The four arrests involve three separate victims. Petitioner was found guilty of the 1991 charge, and he pled nolo contendere to the 1992 charge. Both convictions disqualify Petitioner from employment as a caregiver for the developmentally disabled. In 1991, Petitioner was charged with aggravated battery and found guilty. The court placed Petitioner on community control under the supervision of his mother. Petitioner's mother also placed Petitioner in counseling. The circumstances surrounding the 1991 incident involved a domestic dispute between Petitioner and Tina Tolbert, his girlfriend. Petitioner threw a brick at Ms. Tolbert. The brick struck Ms. Tolbert's head. Although Ms. Tolbert took herself to the hospital for treatment, the extent of any injury was not established at the hearing. In 1992, Petitioner was charged with battery and entered a plea of nolo contendere. Adjudication of guilt was withheld. The court placed Petitioner on six months supervised probation and imposed a fine of $110. Petitioner was prohibited from any "violent contact" with the victim. The circumstances surrounding the 1992 incident involved a domestic dispute with Ms. Tolbert. The specific facts of the case were not established at the hearing. In 1994, Petitioner was charged with domestic battery, but the charge was dismissed. The circumstances surrounding the 1994 criminal incident involved a domestic dispute between Petitioner and Olivia Royal, his girlfriend. An altercation occurred when Petitioner allegedly struck Ms. Royal's son on the hand. Ms. Royal objected to Petitioner hitting her son. Petitioner was charged in 1996 with domestic battery. However, the charge was dismissed. Petitioner has worked with children and the developmentally disabled since 1994. Most of the jobs lasted only a few months due to Petitioner's domestic disputes and resulting criminal background. Petitioner has been rehabilitated within the meaning of Section 435.07(3). Petitioner has benefited from counseling and has had no criminal conviction for six years. The counseling lasted for more than a year, involved weekly visits, and addressed anger management attributed to Petitioner's feelings about being adopted. Petitioner is an active member of his church. Sufficient time has elapsed since Petitioner's last conviction in 1992. The charges against Petitioner in 1994 and 1996 were dismissed and did not result in convictions. The nature of the harm to the victims in the 1991 and 1992 convictions was not serious. There is no evidence that Petitioner caused serious harm when he threw a brick at his girlfriend seven years ago when Petitioner was a juvenile. Petitioner's employment history since his last conviction in 1992 has been without incident. Petitioner first worked with the developmentally disabled in 1994. He worked at the Orlando Group Home, a group home for developmentally disabled adults. He worked there for a period of six months. In May, 1995, Petitioner worked at the Shelter Community Residence. He worked there for almost a year. He left his employment there in June 1996. In June 1996, Petitioner was employed at Lakeside Alternatives until September 2, 1996. Petitioner had an automobile accident in September that prevented him from working until June 1997. From July 1997 until April 1998, Petitioner worked at the Seminole County Mental Health Center. During that time, Petitioner also worked part-time at Shelter Community Services. Every time a criminal background check was done by an employer, Petitioner would be disqualified, and the facility would dismiss him. Petitioner's history of domestic disputes has had no adverse impact on Petitioner's employment as a caregiver under Chapter 415.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's request for exemption. DONE AND ENTERED this 5th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1998. COPIES FURNISHED: John S. Slye General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Carmen Sierra, Esquire Department of Children and Family Services 400 West Robinson Street Suite S-1106 Orlando, Florida 32801 Chandler Stephens, pro se Post Office Box 620632 Oviedo, Florida 32765
The Issue Whether Respondent has grounds to deny Petitioners' application for adoption.
Findings Of Fact Mr. and Mrs. Day applied to adopt four minor children born to Mrs. Day's biological daughter. Mr. and Mrs. Day enrolled in and completed Respondent's training program for prospective adoptive parents generally referred to as MAPP, which is an acronym for Model Approach to Partnerships in Parenting. Prior to enrolling in MAPP, Mr. and Mrs. Day knew that they were probably not eligible to adopt because of their backgrounds. Mrs. Day had five children before she attained the age of 20, including the mother of the children she seeks to adopt in this proceeding. The State of Delaware terminated Mrs. Day's parental rights to those children by a proceeding brought in that state, and placed Mrs. Day's children for adoption. After that adoption failed, there was an attempted reunification between Mrs. Day and her five children. That attempted reunification failed. In 1992 a verified abuse report identified Mrs. Day as the perpetrator of abuse against one of the children she now seeks to adopt. As reflected by the abuse report, Mrs. Day's intoxication caused her to neglect the child who was in her care. Mrs. Day has a long criminal history, which includes arrests for drug possession, theft, and assault. Mrs. Day has a long history of alcohol and drug abuse. She claims to have rehabilitated herself in 1994 through Alcoholics Anonymous and through her religion. Mrs. Day has been hospitalized on at least three occasions in a mental hospital for suicide attempts and self- mutilation. Mrs. Day quit taking prescribed psychotropic medication and is not presently under the care of any mental health professional. Mrs. Day refused repeated requests to provide a current psychological evaluation from a qualified mental health professional. Without such evaluation, Mrs. Day's current psychological status cannot be determined. Mr. Day's criminal history includes two felony convictions for aggravated assault in 1986. Following his conviction, he was placed on probation, which he subsequently violated. Mr. Day joined the U.S. Air Force after he graduated from high school in the 1970s, where he served for six years. Mr. Day threatened to blow up an airplane while he was in the Air Force. Although Mr. Day asserts that he has an honorable discharge from the Air Force, he has not provided Respondent with proof thereof after having been requested to do so. While in the Air Force, Mr. Day began to abuse alcohol and drugs. That abuse continued until 1995. Mr. Day asserts that he has been sober since undergoing a residential treatment program between February 17, 1995, and May 26, 1995. Mr. Day also asserts that he has been rehabilitated through his religion. Mr. Day does not know any of the children he seeks to adopt. Mr. Day had no meaningful relationship with his two biological children, who are now adults. Mrs. Day has not maintained a relationship with her five children or with the four grandchildren she now seeks to adopt. The children Petitioners seek to adopt have never lived with the Petitioners. In a dependency proceeding brought by the State of Florida, the parental rights of Mrs. Day’s daughter for the four children were terminated. Mr. and Mrs. Day did not know about that dependency proceeding until after it was over. Consequently, they did not participate in the dependency proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying the subject application to adopt. DONE AND ENTERED this 6th day of June, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2002. COPIES FURNISHED: Arthur Lee Day Sheila D. Day 2736 Dewey Street Hollywood, Florida 33020 Colleen Donahue, Esquire Department of Children and Family Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Kathleen A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard, Room 202 Tallahassee, Florida 32399-0700
