Findings Of Fact Respondent is a medical doctor, licensed to practice in Florida, and holds license number ME 0009310, issued by Petitioner. Respondent specializes in family practice and has been board certified by the American Academy of Family Physicians since 1974. Percodan is the manufacturer's brand name for oxycodone, which is a Schedule II controlled substance pursuant to Chapter 893, F.S. 2/ It is a drug used for the relief of pain, a synthetic analgesic, and is both a physically and psychologically dependent producing drug. It can cause drowsiness, urinary retention, nausea, vomiting, and interacts unfavorably with other sedative drugs, and is considered a depressant. On December 30, 1966, Evelyn Milstead, a 30 year old woman, came to Respondent's office complaining of nausea and a rash in her mouth. Respondent conducted a physical examination, took her medical history and thereafter prescribed tigan for the nausea. Ms. Milstead became a regular patient of Respondent's and he continued treating her for various ailments over a period of years. During the course of Respondent's treatment, Milstead developed a chronic urinary tract infection and kidney condition in which she passed kidney stones. On occasion Milstead was treated by Dr. Gillespie, a specialist in the field of urology for her kidney condition. In 1978, Respondent also referred instead to the Ochsner Clinic for evaluation of her urinary tract and kidney problems. She was evaluated at Ochsner Clinic and received prescriptions for darvocet, a pain medication, and keflex, an antibiotic, and was told that she would continue to have a chronic kidney problem. Over the years, Milstead was hospitalized several times by Dr. Gillespie for treatment of her kidney condition. The testimony of Dr. William H. Nass and Dr. Robert P. Johnson established that Respondent's initial prescriptions of percodan to Milstead were appropriate. However, Respondent's percodan prescriptions to Milstead eventually became inappropriate. Specifically, the prescriptions for 2,668 percodan tablets between August, 1980 and November, 1982, were established as excessive. On July 30, 1977, Bruce White, a 25 year old male, came to Respondent for medical treatment for headaches and thereafter returned to Respondent for treatment of various medical problems. Mr. White's wife, Vicki White, and their children were also seen by Respondent as their family doctor. On May 18, 1981, White came to Respondent complaining of neck and back pain from an automobile accident in which he also fractured his left lower leg. Respondent noted that White had been seen by a neurologist and an orthopedic surgeon for his head and leg. In addition to other medication, Respondent prescribed percodan to White for pain. White had also developed arthritis in his left leg, as a result of the car accident and fracture, and on one occasion was hospitalized for swelling of his left leg. Respondent referred White to Dr. Tippett, a neurosurgeon, concerning his headaches and to Dr. Graybiel, a rheumatologist, concerning his arthritis. However, White continued to see Respondent as his medical doctor because his work schedule on an offshore oil rig would only permit Saturday appointments with his doctor and Respondent's offices are open on Saturday mornings. White also found it difficult to pay the fees charged by specialists. Between May 8, 1981 and September 30, 1982, Respondent prescribed 780 percodan tablets for Bruce White. The testimony of Dr. Nass and Dr. Johnson established that Respondent's initial prescriptions of percodan to White were appropriate. However, the percodan prescriptions to White became inappropriate over time due to their excessiveness. The seriousness of this lapse is underscored by Respondent's failure to try other pain alleviating measures and failure to investigate abuse possibilities. On October 18, 1979, Vicki White, the wife of Bruce White, a 23 year old woman, came to Respondent's office seeking treatment. She complained of migraine headaches and stated that her father was in the hospital with cancer. She also stated that she had seen Dr. Eyser, a neurosurgeon, for her headaches. Respondent prescribed wygesic for her pain. She subsequently returned to Respondent for treatment of various complaints including chronic migraine headaches, colds, and a dislocated right shoulder. Initially, Respondent prescribed norcet for relief of this pain, and on July 31, 1981, first prescribed percodan for her migraine headaches. Respondent prescribed percodan on other occasions in response to her complaints of pain from migraine headaches and back strain. Respondent considered referring her to a neurologist for the headaches but White stated that she could not afford to see a specialist. Respondent prescribed 590 percodan tablets for Vicki White between July 31, 1981 and September 22, 1982. Percodan is an appropriate and acceptable medicine for the relief of migraine headaches, and Respondent's initial prescription of percodan to Ms. White was appropriate. However, his prescriptions became excessive over time since percodan is not to be used for long term treatment of migraine headaches. On September 7, 1982, M. D. Medlen, an Escambia County Deputy Sheriff, went to Respondent's office as an undercover police officer, under the assumed name of Donna Slay. She had been asked by Robert Powers, a narcotics officer with the Escambia County Sheriff's Department and Charles Deckard, an investigator with the Department of Professional Regulation, to go to Respondent's office in an undercover capacity and attempt to obtain a prescription for percodan. Medlen/Slay first gave general information to the receptionist, including identification, in the name of Donna Slay, chief complaint of a backache, previous illnesses, drug allergies, address, social security number, and insurance information. Medlen/Slay was shown to an examination room where her blood pressure and weight were taken by the nurse and a urinalysis was performed. Respondent then came in and asked Medlen/Slay what her problem was. She informed him that she had been pushed into a wall during a fight, and had injured her back. Respondent checked her pulse, did a range of motion test, and checked the alleged injured area by palpation. Each time Respondent pressed on the alleged injured area, Medlen/Slay told him it hurt. Respondent did not visually inspect the alleged injured area but asked Medlan/Slay if there was a bruise and she said no. In order to get the percodan, Medlen/Slay told Respondent that she had injured her back one other time and a doctor in Louisiana had prescribed percodan for that injury. Respondent asked how long ago Medlen/Slay had taken the percodan and she said one year ago. Respondent discussed the dangers of drug addiction with Medlan/Slay and then prescribed 20 tablets of percodan for pain and 30 tablets of indocin to reduce inflammation. Upon leaving Respondent's office, Medlen/Slay did not fill the prescriptions but turned them over to Deckard. Percodan is an acceptable medicine for back and shoulder pain. However, Respondent should have considered the possibility of fracture, visually examined the area to ascertain the presence of a hematoma (blood clot) and listened to the patient's chest to determine the presence of lung injury. Respondent did not perform an appropriate examination prior to prescribing percodan, and the prescription was therefore inappropriate. Respondent used poor judgment in his excessive prescriptions of percodan to the patients discussed herein. However, there is no evidence that Respondent prescribed the percodan for personal financial gain or that any patient was injured by Respondent's prescribing practices. The testimony of the expert witness established that the records maintained on these patients were inadequate. Frequently, the only notation for a given visit was the prescription for percodan, with no evaluation of the patient's condition. Further, Respondent's patient records did not even list all the percodan prescriptions issued. Thus, these records essentially reflect partial inventories of prescriptions issued, and do not justify the course of prescribing, which is important to the safe practice of medicine.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a final order placing Respondent on probation for a period of five years, require that Respondent practice under the supervision of another physician to be named by Petitioner during the initial year of his probation and that Petitioner restrict Respondent's license against prescribing Schedule II controlled substances while he is under such supervision. 4/ DONE and ENTERED this 24th day of April, 1984 in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1984.
Findings Of Fact Respondent, Ricardo J. Sabates, is a medical doctor licensed by the State of Florida. He practices medicine at the Lauderdale Medical Center located in Fort Lauderdale, Florida. The administrative activities of the Lauderdale Medical Center, including its advertising, were and are managed by the Lauderdale Medical Center Management Corporation. All advertisements for the Center are prepared by its Administrator, Warren Schwartz, who also has responsibility for dealing with the press and disseminating information about the Center. The ads in Petitioner's Exhibit No. 5 were placed at the direction of Warren Schwartz. This proceeding was initiated by a letter from W. G. Stafford, Executive Vice President of the Broward County Medical Association, sent to the Department. Stafford's letter contained copies of newspaper advertisements. The ads read in pertinent part: REVOLUTIONARY NEW TREATMENT FOR ACNE ACUTE OR CHRONIC CONDITIONS RICHARD J. SABATES, M.D. Diplomate, American Academy of Medical Preventics FREE CONSULTATION HERPES IS A HORROR! PAIN, DISCOMFORT, ITCHING, BURNING, EMBARRASSMENT Newly developed treatment for rapid, effective, relief and control of symptoms and flare-ups RICHARD J. SABATES, M.D. Diplomate, American Academy of Medical Preventics FREE CONSULTATION Stafford's letter questioned, "What newly developed treatment?" and "What revolutionary new treatment?" and suggested that the advertisements were false, deceptive or misleading and thus violated Section 458.331(d), Florida Statutes. Stafford's letter bears a stamp showing it was received by the Department on July 22, 1981. In response to the letter, on or about July 27, 1981, the Department commenced an investigation of Sabates by the filing of a uniform complaint form. On October 27, 1981, the Department notified Sabates of the investigation. There was no evidence presented that any earlier contact with Sabates was either attempted or made. The Department informed Sabates of the investigation in a letter to Sabates' attorney requesting an interview with Sabates "regarding his advertisements for Acne, Herpes and the Revolutionary New Diet Plan." Accompanying the letter were copies of the three ads, each different from those included with Stafford's letter. These three additional ads state: REVOLUTIONARY NEW TREATMENT FOR ACNE ACUTE OR CHRONIC CONDITIONS RICHARD J. SABATES, M.D. Diplomate, American Academy of Medical Preventics HERPES HOTLINE PAIN, DISCOMFORT, ITCHING, BURNING, EMBARRASSMENT Newly developed treatment for rapid, effective, relief and control of symptoms and flare-ups RICHARD J SABATES, M.D. Diplomate, American Academy of Medical Preventics MEDICAL BREAKTHROUGH NO CALORIES Revolutionary New Diet Plan. Eat Many Fattening Foods...Absorb zero calories! The Answer To Permanent Loss! Call For Free Diet Plan Description R. J. SABATES, M.D. The "Diet Plan" advertisement makes no mention of Sabates' diplomate status or of the American Academy of Medical Preventics. The copies of the ads do not reveal the date of their publication. The Department's investigator did not discover what the "revolutionary acne treatment" was. The Department did not subpoena any of Sabates' patient records in connection with the treatments referred to in Stafford's letter. No patients complained about the treatments and the Department's investigator talked to neither Sabates nor any patient about the treatments. Consequently, there was no information relating to the substance of Stafford's accusations included in the Department's investigative report. There was, however, included in the investigative report a copy of Health Magazine, dated November 4, 1981. That magazine contains no advertisements for treatments for either herpes or acne and makes no mention of the "revolutionary new diet plan." It does carry a feature story about Sabates entitled "Preventive Medicine and Your Good Health." The story mentions Sabates' use in his practice of such treatment modalities as chelation therapy, DMSO and metabolic cancer therapy and the magazine carries a full-page advertisement inviting the public to a lecture by Sabates covering: Slowing the Aging Process Nutrition and Diet Chelation Therapy - A Non Surgical Treatment For Hardening of the Arteries DMSO Therapy - The Painkiller of the 80's Chiropractic - How It Can Help You Podiatry Health Hints, Tips on Keeping Medical Costs Down, Etc. After the investigation was underway, the Department decided to check Sabates' credentials, including his designation as a "Diplomate" of the American Academy of Medical Preventics. To do so, King asked Stafford, the original complainant, where he could contact the American Academy of Medical Preventics. Stafford provided King with information about the Academy, including information about chelation therapy. Acting on the information provided by Stafford, on November 13, 1981, King contacted Steve Baker, Administrator of the American Academy of Medical Preventics. Baker told King that Sabates was a Diplomate of the American Academy of Medical Preventics. On November 15, 1981, a letter from the Department was sent to the Academy seeking clarification of Sabates' "exact standing" with the Academy. In response, the Department received a letter, marked "Received, Fort Lauderdale Office - Dec 7 1981" from Dr. Ross Gordon, head of the Ethics Committee of the Academy on the letterhead of American Academy of Medical Preventics. That letter states in part, "Dr. Ricardo Sabates . . . is a member in good standing of this academy. He has taken all examinations needed for Diplomate status," but neither confirms nor denies Sabates' entitlement to hold himself out as a "Diplomate." Subsequently, King spoke with Dr. Gordon, who then advised King that Sabates was not a Diplomate of the "Board." Further, on November 19, 1981, Sabates' attorney advised the Department in writing that Sabates was a "diplomate with the American Academy of Medical Preventics." These conflicting reports concerning Sabates' diplomate status were part of the investigative report sent to the Probable Cause Panel of the Board of Medical Examiners. Accompanying the investigative report was a memorandum from legal counsel that states: The investigation has now (sic) revealed the "revolutionary new treatment for acne" or the "newly developed treatment for rapid, effective relief and control of symptoms and flare-ups" of herpes. It must be assumed that there are thousands of revolutionary treatments for each disease, and, as such insufficient probable cause exists that a violation of Chapter 458, F.S., has occurred in this advertisement. However, in light of the fact that the subject is not a "diplomate of the American Academy of Medical Preventics," sufficient cause exists to believe a violation of Section 458.331(1) (d), F.S. and Rule 21M-24, F.A.C. (Emphasis added.)(Petitioner's Exhibit 1) The Probable Cause Panel met on January 18, 1982, to consider the Sabates investigation. At the meeting, general comments were made about newspaper ads mentioning Sabates. The Chairman noted, "I guess the only thing we can get him on is fraud. He's using -- he's claiming he's a diplomate of a certain board and he's not." Another member noted, "That board if (sic) composed of at least one famous abhorrent physician, Dr. Halstead, who is, I think, a leading laetrile advocate." The same member suggested, "I think the investigation will reveal other things." (Petitioner's Exhibit 2) Sabates took an exam to qualify as a Diplomate in the American Academy of Medical Preventics in May, 1981. Shortly thereafter, Schwartz called the Academy and inquired whether Sabates had passed the written exam and was told that he had. Schwartz congratulated Sabates and then, without Sabates' specific prior approval, but with Sabates' eventual general knowledge, Schwartz instructed the newspapers running ads using Sabates' name to include the words, "Diplomate, American Academy of Medical Preventics." Soon after the first of the ads introduced into evidence, Petitioner's Exhibit 5 appeared, Sabates received a letter dated July 23, 1981, confirming that he had passed the written examination. At the time Sabates took and passed the written exam, the "Diplomate" designation was awarded by the American Academy of Medical Preventics. Subsequently, however, and prior to Sabates' learning from the Department that his use of that designation was being questioned, a separate organization was formed from among the members of the Academy. The physician members of the Academy automatically became members of this new organization, the American Board of Chelation Therapy. The Board separated from the Academy, which included lay members, in an attempt to be recognized as a specialty board by the American Medical Association. 1/ To further this same objective, additional requirements for diplomate status were added by the American Board of Chelation Therapy to those previously required by the Academy. Upon being advised that his status as a "Diplomate" was in question, Sabates called the Academy and was advised of the additional requirement for the oral exam that had been added after the groups had separated 2/ and instructed Schwartz to discontinue use of the word "Diplomate" in all future advertisements. 11.. In November 1981, Sabates successfully completed the Academy's examination. Sabates formally became a Diplomate of the American Board of Chelation Therapy in 1982. "Diplomate" status is no longer offered by the American Academy of Medical Preventics. During the time the ads ran, Sabates believed that he was a Diplomate of the American Academy of Medical Preventics. Significantly, the Department did not assert at final hearing that Sabates intended to falsely advertise that he was a Diplomate of the American Academy of Medical Preventics.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Board of Medical Examiners dismissing the Administrative Complaint filed against the Respondent Ricardo J. Sabates. DONE and ENTERED this 25th day of October, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 25th day of October, 1983.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent was licensed as a naturopath in Florida under license number NA0000530, issued by the State of Florida, and maintained an office for his practice at 7202 East Broadway, Tampa, Florida. The Petitioner, Board of Medicine, is the state agency charged with regulating the practice of naturopathy in Florida. Pursuant to an ongoing investigation, on September 24, 1987, Detective Robert S. DuBose, acting in an undercover capacity in the name of Robert Adams, went to the Respondent's office to try to buy a controlled drug. He was accompanied by several other police officers and Mr. Fierman-Rentas, a DEA agent, all of whom remained outside in a car across the street, attempting to record the transmission from the body brig Mr. DuBose was wearing. On entering the Respondent's office, Mr. DuBose introduced himself to the doctor and told him he had been cut off from his prior source of Valium pills formerly supplied by an unstated friend. When the Respondent asked DuBose why he wanted the Valium, DuBose replied that nothing was wrong with him but that the Valium just made him feel good. Dr. Helland took DuBose's temperature, blood pressure, and pulse rate, stating at the time that he had to have some support for the prescription but that he knew nothing was wrong with DuBose. As a matter of fact, at that time, DuBose was under the care of another physician for a stomach condition not treated by Valium, but did not advise Respondent of this. DuBose's actual condition had no bearing on his relationship with the Respondent. During their conversation, Respondent asked DuBose how long he had been taking Valium and DuBose replied that though he had been taking it for 6 months, he was not sick but just wanted it because of how it made him feel. Respondent indicated he knew DuBose had nothing wrong with him but he had to put something down in his records. As a result, DuBose laughingly stated he was nervous. After filling out a small card on which he wrote some of the information given him by DuBose, Respondent then wrote out a prescription for Robert Adams for 30 tablets of 10 mg Valium for which DuBose paid him $30.00. At no time did Respondent take a proper medical history from DuBose or ask him if he was under the care of another physician. Valium is the commercial brand name of Diazepam, a Schedule IV controlled substance. On October 1, 1987, DuBose returned to Respondent's office, again accompanied by the other officers who waited in cars across the street. DuBose asked for a refill of his prescription and after Respondent asked DuBose what his name was and looked at his patient card, he indicated that DuBose was three days early for a refill. Thirty pills, prescribed for use at the rate of three a day, would not be used up for 10 days. When Respondent pointed this out, DuBose indicated he had given some to his girlfriend. Dr. Helland responded that he didn't care what DuBose did with them, but that he should come for a refill only every 10 days. However, Respondent stated that since he had obviously not explained that fully on the prior visit, he would write another prescription for 30 Valium tablets which he did after giving DuBose a cursory examination. When DuBose asked if an exam would be necessary each visit, Respondent stated that it would. Respondent seemed concerned that DuBose not suffer any side effects from the Valium and counselled him to stop taking them. Nonetheless, he wrote out the prescription which he gave to DuBose upon payment of a $30.00 fee. Again, DuBose indicated no medical support for a prescription for Valium. DuBose went back to Respondent's office on October 27, 1987, this time in the company of Detective Sinclair, also under cover as Donald Simpson, a construction worker. Sinclair waited in the waiting room while DuBose saw Respondent who took his pulse and blood pressure and listened to his heart and lungs. When DuBose asked why they had to go through that each time, Respondent replied that he had to make sure DuBose was all right. After receiving his third prescription for 30 Valium tablets from the Respondent, DuBose asked him if he could see his friend. Respondent asked what was wrong with the friend and DuBose stated he didn't think anything was wrong. Respondent stated then that he'd have to have some reason to prescribe for Sinclair. DuBose then got Sinclair, introduced him to the doctor, and left them alone. Sinclair had a brief introductory conversation with the Respondent during which Respondent asked what he wanted. Sinclair indicated he wanted Percodan, a Schedule II drug, because it made him feel good. Respondent would not prescribe Percodan for Sinclair stating he needed something more to justify any prescription. Respondent asked if Sinclair were nervous or needed something to help him sleep, which Sinclair denied. Respondent then said he had to have some "damned" thing to justify a prescription. Sinclair continued to decline to say more than it made him feel better. Respondent ultimately indicated that Sinclair must be nervous and needed a tranquilizer and Sinclair finally agreed. Respondent then took some personal information from him, took his blood pressure, temperature, and pulse, and listened to his heart and lungs. He then wrote out a prescription for 30 Valium tablets, whereupon Sinclair paid him $30.00 and left. At no time did Respondent take any medical tests or ask if Sinclair was under the care of another physician. When DuBose again went to Respondent's office, on November 19, 1987, he had Detective Stanbro with him posing as his girlfriend. As previously done, Respondent took his blood pressure and did a cursory examination during which DuBose said he felt good. Respondent wrote out a prescription for 30 Valium and DuBose asked if the doctor would prescribe Percodan as well. Respondent refused to do so. DuBose then asked Respondent to see his "girlfriend", introduced her, and left after paying for his own visit and prescription. At no time did DuBose ever indicate to the Respondent he had any ailment. In fact, he always said he felt good. When Respondent indicated he needed some medical justification to prescribe Valium, DuBose told him to put down that he was nervous and could not sleep. Respondent never tried to find a legitimate cause for that condition but instead merely conducted a cursory examination. He never asked if DuBose was under the care of another physician or if he was taking any medication. The first visit lasted about 15 minutes and the others were shorter. It is clear, therefore, that the "examinations" conducted by the Respondent of DuBose and Sinclair were no more than shadow exercises to justify writing a prescription and had no basis in actual medical diagnosis or treatment. When Ms. Stanbro saw the Respondent on November 19, 1987, he immediately saw there was nothing wrong with her and refused to give her a prescription for anything other than aspirin. He denied her request for Percodan and Valium even though he did no examination of any sort. Stanbro was with the doctor for only about a minute and a half. When he turned her down for both drugs, she left. At all times in his relationship with Ms. Stanbro, Respondent acted in a professional manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a naturopathic physician in Florida be revoked. RECOMMENDED this 8th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1318 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. For the Petitioner: DPR 1 - 2. Accepted and incorporated in Findings of Fact 1. 3. Accepted and incorporated in Findings of Fact 6. 4 - 8. Accepted and incorporated in Findings of Fact 2-5. 9 -10. Accepted and incorporated in Findings of Fact 7. 11 - 19. Accepted and incorporated in Findings of Fact 8-9. For the Respondent: Dr. Helland 1 - 3. Accepted and incorporated in Findings of Fact 1. 4 - 5. Accepted. 6. Accepted and incorporated in Findings of Fact 6. 7. Accepted. 8 - 12. Accepted and incorporated in Findings of Fact 2-5. 13 - 16. Accepted and incorporated in Findings of Fact 7. 17 - 20. Accepted and incorporated in Findings of Fact 8-9. 21 - 23. Accepted and incorporated in Findings of Fact 10-11. 24. Accepted as a restatement of testimony and not a Finding of Fact. 25 - 26. Accepted and incorporated in Finding of Fact 9. Accepted as a restatement of testimony and not a Finding of Fact. Accepted and incorporated in Finding of Fact 12. Rejected as a comment in the evidence and not a Finding of Fact. COPIES FURNISHED: John R. Alexander, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John M. Fitzgibbons, Esquire Suite 1550 600 North Florida Avenue Tampa, Florida 33602-4505 Dorothy Faircloth, Executive Director DPR, Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether or not Petitioner may impose an administrative fine on Respondent DOS of Crystal River, ALF, LLC d/b/a Crystal Gem ALF (Crystal Gem) in the amount of $2,000.00 based upon two cited State Class II deficiencies pursuant to Section 429.19(2)(b), Florida Statutes (2007).
Findings Of Fact Petitioner AHCA is the state agency responsible for licensing and evaluating assisted living facilities (ALFs), pursuant to Sections 408.802(14) and 429.07, Florida Statutes. Respondent Crystal Gem is an ALF located in Crystal River, Florida. Resident No. One, hereafter referred to as “the resident,” resided in Respondent ALF from April 5, 2007, to April 10, 2007. The resident had fallen in her bedroom in the home she shared with her daughter, son-in-law, and grandson at approximately 2:00 a.m. on the morning of April 4, 2007. By all accounts, prior to this accident, the resident was active, orally communicative, capable of performing all activities of daily living (ADLs), and contributed to the household by doing familial household work. She had suffered a single episode of dementia in the past. She was known to drink large quantities of water but did not eat a lot at any one meal. She loved to eat and regularly ate between meals. After the fall, the resident had gotten back into bed by herself, but had been in a lot pain. Her family assisted her to walk out of the house to the family car. They took her to Citrus Memorial Hospital, where she walked, with assistance, into the emergency room. She was placed in a wheelchair and completed her own admission papers. Hospital records from April 4, 2007, indicate the resident was 84 years old; had a heart valve replacement; and had been fitted with a pacemaker. She weighed 91 pounds and was underweight. She was suffering from osteoporosis, arteriosclerosis, and chronic obstructive pulmonary disease (COPD). The hospital records noted abrasions and tenderness on her left back. X-rays were taken of her ribs. The preliminary report of the hospital’s diagnostic imaging department indicated non-displaced fractures to her left eighth and ninth ribs. The records do not indicate that any other x-rays were taken at that time. The resident’s right hip, where a fracture was later found (see Finding of Fact 56), was not x-rayed on April 4, 2007. The resident was sent home from the hospital with a prescription of the narcotic, Hydrocodone (a generic for Vicodin), for pain relief. The prescription was later filled. Exiting the emergency room on April 4, 2007, the resident walked, with assistance, back to the family car for transport home and walked into the family home the same way. The family had planned to leave on April 5, 2007, for an out-of-town family celebration. Due to the possibility that the resident’s ribs might break further and puncture her lungs, the hospital doctors had recommended that she not travel by car with her family. After consultation with the resident’s personal physician, weighing all options, a tour of the facility by the daughter, and upon good recommendations, the family elected, with the resident’s consent, to place the resident in Respondent’s ALF for respite care while they were out of town. By all accounts, the resident was in some discomfort, but functioned normally in the family home all of April 4, 2007, during which time she continued to do familial household chores, and on the morning of April 5, 2007, before departing for Respondent’s facility. On both days, she was not confused; was able to bathe herself; and had no diminished intake of either food or liquids. The resident’s daughter escorted her to Respondent facility on the morning of April 5, 2007. (Stipulated) The two women arrived at the facility about 10:00 a.m. on April 5, 2007, and during an extensive tour of the first floor (both inside and outside), the resident was able to ambulate and did not complain of pain. The facility’s Resident Assessment Data Collection Form, filled out upon her admission into the facility, stated the resident was ambulatory with one- person assist and full weight-bearing, with bruising and discomfort on the right side. It further noted that she needed assistance in transferring and in ambulating. The facility's Observation Log for that day described her as "extremely small and frail with poor balance and needs to be monitored closely during ambulation." The Observation Log is used by Respondent to record each resident's condition and activities as observed by staff. Upon the resident’s admission, Respondent facility was provided only with the resident’s April 4, 2007, hospital discharge instructions and hospital emergency department after- care instructions. These indicated “fall/rib fracture,” and did not specify which ribs were fractured. Nothing on them related to either hip. The hospital discharge instructions suggested the resident be checked by her own physician in two to three days and that she go to her doctor or the emergency room if pain or shortness of breath were getting worse, for persistent coughing, for fever or chills, or for abdominal pain, vomiting, severe weakness or fainting. They suggested she beware of falling again and report to her doctor if she experienced dizziness, severe weakness, inability to get up after a fall, abdominal pain, vomiting, diarrhea, passing black or bloody stools, headache, vision problems, or numbness or weakness in one arm or leg. It was anticipated by all concerned that the resident would only remain in Respondent’s facility for five days, and would only require personal observation as necessary, assistance with her ADLs, monitoring of her pain, and assistance taking her medications. However, the family had selected Respondent’s ALF, in part, because it was near a hospital in case the resident’s condition worsened or an emergency of some kind arose while they were out of town. In addition to the new prescription for Hydrocodone, the resident previously had been prescribed a number of medications unrelated to her fractured ribs. Among these were Lorazepam, Coumadin, Captopril, and Trazodone. Hydrocodone is a controlled substance, as is Lorazepam. The Lorazepam, an anti-anxiety drug like Activan, is a sedative. It had been prescribed to be taken twice a day, morning and evening. The Hydrocodone had been prescribed to be taken “eight hours prn,” or “every eight hours as needed.” Respondent is not a skilled nursing facility, so its personnel cannot legally administer prescription medications. Respondent’s written policy and procedures for facility personnel provide for them to assist residents with self-administration of drugs, including special procedures for assistance with controlled substances. Under these procedures, controlled substances remain under lock and key and are to be listed on a separate drug inventory sheet called a “Controlled Substance Countdown Record” (CSCR), and the actual pills are to be counted before and after each shift. Patty Clair, a Patient Care Advisor at Respondent’s facility, testified that she knew that facility personnel could “assist” a resident in taking his/her medications by bringing the medicine to the resident and placing that resident’s pills on the resident’s hand, but that the resident was responsible for actually moving the pill to his/her mouth. Respondent facility also maintains a Medication Observation Record (MOR), which must be updated immediately each time a resident takes any medication or refuses a medication. Petitioner Agency specifies by rule the information that the MOR must contain. At Respondent’s facility, the Coumadin was incorrectly charted to eliminate the Sunday, April 8, 2007, dosage, and the Hydrocodone was incorrectly transcribed on the MOR as “every eight hours,” instead of “eight hours prn.” Review of the resident's MOR reveals that there is no documentation that the following medications were taken or refused by the resident as prescribed on the respective dates: Coumadin, two tablets on Sunday, April 8, 2007. Captopril, one tablet on Thursday, April 5, 2007, and two tablets on Friday, April 6, 2007. Trazodone, two tablets on Thursday, April 5, 2007, and two tablets on Friday, April 6, 2007. (Stipulated) During the period April 5, through April 10, 2007, the CSCR for Hydrocodone indicates that five tablets were taken from the resident's supply of Hydrocodone, but the MOR only documents self-administration of three tablets. (Stipulated) During the period April 5, 2007, through April 10, 2007, the CSCR for Lorazepam indicates that nine tablets were taken from the resident's supply of Lorazepam. The MOR for that same period documents the self-administration of nine tablets, but does not document self-administration at 8:00 p.m. on April 8, 2007, or 8:00 a.m. on April 9, 2007. It does indicate self-administration on April 10, 2007, at 8:00 a.m. and 8:00 p.m. (Stipulated) Other than the Lorazepam, there is no documentation that the resident self-administered any other medication on the morning of April 10, 2007, which is the day she left the facility. (Stipulated) Patty Clair did not make any writing on the CSCR, even though her name appears on the CSCR for assisting the resident with Lorazepam, on April 6, 7, and 10. (Stipulated) At hearing, Ms. Clair acknowledged assisting the resident with self-administration of her Lorazepam on April 6, 7, and 9, 2007. Ms. Clair initialed the MOR showing that she had helped the resident take her Lorazepam on April 6, 7, and 9, 2007. However, Ms. Clair did not sign the CSCR for April 6, or 7, 2007, even though her name and initials appear on the CSCR for April 6, and her name appears on the CSCR for April 7, 2007. At no time did Ms. Clair give anyone permission to place her initials on the CSCR for the Lorazepam. Ms. Clair did not sign the CSCR for assisting the resident with her Lorazepam on April 10, 2007, at 8:00 a.m. because she did not even work at the facility on April 10, 2007. The resident was discharged from Respondent facility during the morning of April 10, 2007, between 8:30 a.m. and 9:00 a.m. (Stipulated) Because the resident left the facility between 8:30 a.m. and 9:00 a.m. on April 10, 2007, it would have been impossible for the resident to have self-administered the Lorazepam at 8:00 p.m. that day, as was indicated on the CSCR. Also, by that hour, she had been hospitalized. See, infra. Christine Erick, the facility’s resident care coordinator, testified that because the CSCR sheet was not consistent with the actual countdown of the medication, she went back to the MOR to find out who had assisted the resident with her medication, and finding it had been Patty Clair, signed Ms. Clair’s name on the CSCR, with her own initials. Her actions in this regard were contrary to the facility’s record- keeping procedure. Ms. Erick speculated that the dates apparently got “messed up” so that the resident had actually received her last Lorazepam at the facility on April 9, 2007, at 8:00 p.m. Mr. Booker, Agency surveyor and expert nurse, conceded that one explanation that fits with the number of missing Lorazepam tablets (nine), and the number of signed self-administrations of Lorazepam (nine), is that the resident got all her Lorazepam doses but the wrong dates went on the records. He further stated that because the two types of records did not match, no one can be sure what happened. With regard to the Lorazepam, he testified that there were no more missing doses than the doses which were indicated to have been given, and that the doses which were indicated to have been given to the resident to self- administer were in accordance with her prescription. According to Mr. Brooker, all that can be said, based on Respondent facility’s records for Hydrocodone is that something was not given but not that too much was given. The facility’s written record in no way indicated an overdose of Hydrocodone. It is Respondent facility’s protocol that if a resident falls, the incident must be documented and the facility administrator, the resident’s doctor (health care provider), and the resident’s family must be notified. A “follow-up” document is also required to be made out 24 hours later. Respondent’s protocol concerning any injury to a patient is similar, and if the fall/other injury is severe enough, the facility personnel must call 911 for medical aid and transport of the resident to a hospital. There is no reason for facility employees to fail to report a resident’s fall. This facility had all it needed to contact this resident's doctor. It was not established that the resident ever fell in Respondent’s facility. However, on the morning of Sunday, April 8, 2007, the resident was having difficulty walking. She was unsteady on her feet and complained of pain consistent with what the facility knew about her fractured ribs, that from her admission she had occasionally complained of discomfort or pain on her right side. (See Finding of Fact 13). She had decreased gait and balance and was brought to the facility’s dining room for breakfast in a wheelchair. These observations were recorded in the Observation Log by "C.E," Ms. Erick. On April 8, 2007, the resident ate only twenty-five per cent of her breakfast, but that was not unusual. There is no discernable pattern for her consumption of food while in the facility.3/ There is no evidence that the resident lost weight in Respondent’s facility. On April 8, 2007, Ms. Erick telephoned the resident’s daughter in Key West and notified her that her mother had suffered a change of ambulation and was having difficulty walking, with decreased gait and balance. Further content, duration, and sequence of the exchange during this telephone call are in dispute, particularly as to whether Ms. Erik told the daughter that the resident had right hip pain or informed her about the use of a wheelchair, and whether the daughter instructed the facility to take the resident to a hospital if necessary, but it is undisputed that ultimately, Ms. Erick suggested to the daughter, and the daughter agreed, that they give the pain medication, which the Observation Log states had been self-administered at breakfast-time, a chance to work and talk later in the day. The daughter did not request, and Ms. Erick did not offer, to put the resident on the phone at the time of this initial phone call so that the daughter could get the resident’s assessment of the situation. However, Ms. Erick and the daughter concur that the daughter called back that evening to inquire about her mother, and that during the daughter’s return phone call, Ms. Erick told the daughter that the resident had no current complaints of pain and the daughter said she would pick her mother up on Tuesday. On April 8, 2007, Ms. Erick initialed a single long comment in the Observation Log covering Findings of Fact 39 and 40. Following Ms. Erick's April 8, 2007, Observation Log entry, there is a later, April 8, 2007, entry in a different handwriting, signed by someone else. The entry includes that the resident complained of slight pain in the rib area and stated that she was a little stiff. It further states that the resident ate 75 per cent of her meal and received nourishment via a snack; that the daughter was told of pain; that the daughter stated she would be in “tomorrow” to pick up her mother, and that pain meds were again provided to the resident. Whether the person who signed this second notation for April 8, 2007, actually spoke with the daughter is unclear, because that writer did not testify, and both Ms. Erick and the daughter are clear that only two telephone conversations took place between them, but this later April 8, 2007, notation in the Observation Log does confirm that April 8, 2007, is the only day that the resident ingested two "pain" tablets of Hydrocodone. Based upon the evidence as a whole, including the candor, demeanor, and reasonableness of the respective testimony of Ms. Erick and the daughter, and particularly the contemporaneous Observation Log in its entirety, it is not credible that pain specifically in the right hip was complained- of by the resident on April 8. Also, the next day, April 9, 2007, the Observation Log shows a notation of no complaints of pain from the resident, only stiffness, and this notation is also signed by a staff member other than Ms. Erick. In summary, the Observation Log shows that "Hydrocodone prn for pain" is the pain medication, and that on April 5, one pain pill was given; on April 7, one pain pill was given; and on April 8, two pain pills were given. The CSCR shows two, and the MOR shows only one, Hydrocodone pill was given on April 8, 2007. Respondent did not contact the resident's health care provider during the period beginning when she entered the facility on April 5, 2007, and ending when she was discharged from the Crystal Gem facility on April 10, 2007. (Stipulated) Breakfast at the facility is served in the dining room at approximately 7:00 a.m. Residents are dressed before they go to the dining room, but the Observation Log for April 10, 2007, contains no entry concerning the resident's breakfast. On April 10, 2007, when the daughter arrived between 8:30 and 9:00 a.m., the resident was lying on her bed, fully clothed. Ms. Erick assisted the resident into a wheelchair, and the daughter took the resident to her car, later returning the wheelchair to the facility. The daughter was not assisted in this endeavor by any facility employee. The daughter testified that someone in the parking lot assisted her with getting the resident into her car. She described the resident as pale, weak, unresponsive, and confused during this period. Facility protocol calls for Ms. Erick to count out each of a resident’s medications with the family member who signs out the resident and to have the family member sign for the pills being returned. Although neither Ms. Erick nor the daughter has any memory of counting out the pills, there is a notation in the Observation Log by another staff person for that day, stating that medications were given to the daughter. Because of this contemporaneous notation, and because the daughter signed for the pills returned to her at the bottom of the CSCR, it is more likely than not that the pills were counted out by another staff member and the daughter, than that they were not counted out at all and were already bagged in the resident’s luggage, as testified-to by the daughter. This CSCR sign-out sheet shows that from April 5-10, 2007, five Hydrocodone tablets were used and nine Lorazepam tablets were used. (See Findings of Fact 25-26.) On April 10, 2007, during the 25-minute drive home from Respondent’s facility, the daughter was unable to converse with the resident, who was moaning and unresponsive. Upon arriving at the home, the daughter realized that she could not lift or carry the resident to the house. At approximately 11:00 a.m. April 10, 2007, the daughter appeared at the door of her next door neighbor’s home, asking for assistance. The neighbor is a registered nurse. The neighbor went with the daughter and found the resident sitting on the walkway between the car and the family home, several feet from the car. The resident was sleepy, difficult to move, and was unable to stand. The women moved the resident into her bedroom inside the house, using a rolling computer chair. The resident was put to bed. She was sleepy, but not comatose.4/ The daughter denied administering any medication to the resident that day. The nurse/neighbor stayed for about 30 minutes, comforting the daughter, and then left for work. She advised the daughter to wake the resident in about an hour, get her up and to the bathroom, and give her something to drink so as to prevent dehydration. At 1:49 p.m. on April 10, 2007, the daughter made a 911 call. A highly trained and skilled paramedic, who arrived by ambulance at 2:01 p.m., testified that the resident had no dehydration, had normal blood sugar, and indicated no pain, but her oxygen level was low. The resident was sleepy, but responsive to speech. The paramedic rated the resident as being 14 on the Glasgow coma scale, 15 being normal. Upon receiving information concerning the resident’s medications, it appeared to the paramedic that either Hydrocodone or Lorezepam was causing the resident to be over- sedated. The resident’s oxygen level began to drop en route to the hospital. Narcon is a drug used to counteract narcotics. Lorezapam does not respond to Narcon, but Hydrocodone does. The paramedic administered one Narcon “push,” without much result, at 2:29 p.m. A second Narcon “push” was administered at 2:37 p.m. At that point, the resident became alert and her "stats" went up. At no point did the paramedic ever conclude that the resident’s situation was “life threatening.” The resident was delivered to the hospital emergency room 40 minutes after leaving the family home. Hospital records for April 10, 2007, at 5:10 p.m., show the resident as "normotensive" (with normal blood pressure),5/ dehydrated, and with a right hip fracture. They further show that her blood had an abnormal level of Lorazepam by 510 nanograms per milliliter, a very low abnormality. The lab did not rate this Lorazepam level as "critical" or "high, but listed it only as "abnormal." Subsequent to surgery to correct the broken hip, the resident died at an unspecified date. On or about October 31-November 1, 2007, the daughter notified Petitioner Agency of suspicions she had concerning her mother’s care at Respondent facility April 5-10, 2007. The Agency sent Mr. Brooker to investigate. Mr. Brooker classified Respondent’s failure to notify the resident’s health care provider of her change of condition on April 8, 2007, as a Class II violation, because hospital records on April 10, 2007, showed a fractured hip. He classified the facility's record-keeping inaccuracies as a Class II violation, because Hydrocodone and Lorazepam were involved; because abnormal levels of Lorazepam were found in the resident’s blood on April 10, 2007; and because of the serious harm drugs such as Hydrocodone and Lorazepam can cause. His assessment is not contrary to the Agency’s charging pattern statewide.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent not guilty of a Class II deficiency under Count I of the Administrative Complaint and not guilty of a Class II deficiency under Count II of the Administrative Complaint. DONE AND ENTERED this 31st day of October, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 31st day of October, 2008.
The Issue The issues in this case are whether Respondent violated Subsections 456.072(1)(gg), 456.072(1)(y), and 460.413(1)(q), Florida Statutes (2005),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of chiropractic medicine pursuant to Chapters 20, 256 and 460, Florida Statutes. Dr. Guerriero is a licensed chiropractic physician with the State of Florida, having been issued license number CH 6373 on or about August 21, 1991. The Professional Resource Network (PRN) is the impaired practitioners program for the Board of Chiropractic Medicine pursuant to Section 456.076, Florida Statutes. PRN is an independent program that monitors the evaluation, care, and treatment of impaired healthcare professionals. PRN oversees random drug screens and provides for the exchange of information between treatment providers and the Department for the protection of the public. On or about October 26, 2005, Dr. Guerriero was admitted to the Center for Drug Free Living, Inc., for detoxification related to opiate and benzodiazepine use. On October 31, 2005, he self-reported to PRN that he was discontinuing the use of benzodiazepines and opiates prescribed by his doctor and that he had entered the Center for Drug Free Living, Inc., to be weaned from these prescription medications. PRN arranged for Dr. Guerriero to be evaluated by Chowallur Dev Chacko, M.D. (Dr. Chacko), who is a psychiatrist. The evaluation was made to determine whether Dr. Guerriero's addiction problems prevented him from practicing chiropractic medicine with reasonable skill and safety to patients. Dr. Chacko saw Dr. Guerriero on November 7, 2005. Dr. Guerriero admitted to continuing the use of prescription medications containing opioids and benzodiazepines after his recent detoxification. Dr. Chacko diagnosed Dr. Guerriero as having opioid and benzodiazepine dependence, as well as suffering from alcohol abuse. It was Dr. Chacko's opinion that Dr. Guerriero was not able to practice chiropractic medicine with reasonable skill and safety. He recommended that Dr. Guerriero receive inpatient substance abuse treatment. After PRN received the evaluation performed by Dr. Chacko, there were several unsuccessful attempts to contact Dr. Guerriero. However, Dr. Guerriero did talk with his case manager on December 16, 2005, to discuss options for treatment. Dr. Guerriero maintained that he could not afford the inpatient treatment. His case manager informed him that one option would be an intensive outpatient program with no less than nine hours a week of therapy. During the therapy, Dr. Guerriero would not be allowed to practice chiropractic medicine. After the treatment was completed, Dr. Guerriero would be required to be evaluated to determine if he could practice chiropractic medicine with reasonable skill and safety to patients. Dr. Guerriero did not provide PRN with any evidence that he had completed any treatment program. PRN received no further contact from Dr. Guerriero until May 2, 2006. Dr. Guerriero indicated that he wanted to get a second opinion. On July 31, 2006, Martha E. Brown, M.D. (Dr. Brown), who is board-certified in psychiatry and addiction psychiatry, saw Dr. Guerriero for an evaluation. During the evaluation, Dr. Guerriero indicated that he was taking Dalmante, which had been prescribed for him as a sleep-aid. He admitted to drinking from one-to-two glasses of wine three times a week. Dr. Guerriero was given a drug test during the evaluation, and he tested positive for alcohol, opioid, and benzodiazepine use. Dr. Brown's diagnosis of Dr. Guerriero was that he was alcohol dependent, opiate dependent, and sedative hypnotic dependent. It is Dr. Brown's opinion that Dr. Guerriero cannot practice chiropractic medicine with reasonable skill and safety. She recommended that he enter a detoxification program and then a residential long-term treatment program, that he see a pain management specialist to look at his pain issues, that he see a psychiatrist acceptable to PRN to help him with his sleep difficulties, that he abstain from all mood altering substances including alcohol, and that he be in PRN for long-term monitoring. Dr. Guerriero did not provide PRN with proof that he had completed an inpatient program. He did not execute a contract with PRN. PRN sent Dr. Guerriero contracts to sign, but the contracts were returned as unclaimed. The last contact that Dr. Guerriero had with PRN was on August 31, 2006. Jerome M. Gropper, D.D.S. (Dr. Gropper), is a clinical network coordinator at PRN. He is a practicing dentist and has a master's degree in counseling. Based on his review of the PRN file of Dr. Guerriero, he is of the opinion that Dr. Guerriero could not practice chiropractic medicine with reasonable skill and safety and that Dr. Guerriero will need long-term residential treatment before he could safely return to practice. Based on the opinions of Drs. Chacko, Brown, and Gropper, Dr. Guerriero cannot practice chiropractic medicine with reasonable skill and safety to his patients due to his dependence on drugs and alcohol. In order to be able to return to practice chiropractic medicine, Dr. Guerriero will need long- term residential treatment and will need to enter into a monitoring contract with PRN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Guerriero violated Subsections 456.072(1)(y), 456.072(1)(gg), and 460.413(1)(q), Florida Statutes; imposing a $1,000 administrative fine; and suspending his license until such time the following conditions are satisfied: Dr. Guerriero executes a PRN advocacy contract, Dr. Guerriero successfully completes a six-month period in which he complies with all of PRN's treatment recommendations, PRN appears before the Board and advocates for Dr. Guerriero's return to active practice during a Board meeting in which Dr. Guerriero is present, and (4) the Board determines that Dr. Guerriero is able to practice with reasonable skill and safety. DONE AND ENTERED this 7th day of May, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of May, 2007.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the state of Florida, having been issued license number ME 0044173. She practiced medicine in Key West, Florida, from 1985 through June 1993 when she closed her office as a result of a family problem and moved to West Virginia. She is licensed as a physician in West Virginia and currently practices medicine in that state. Respondent is Board-certified in internal medicine. In April 1993, Petitioner's pharmacy inspector responded to telephone calls from pharmacists in Key West concerning Respondent's prescribing practices by traveling to Key West and reviewing pharmacy records of Respondent's patients. One of Petitioner's investigators thereafter collected and compiled copies of computer printouts from six pharmacies listing prescriptions filled for seven of Respondent's patients. Respondent had worked at a clinic where she experienced approximately 15,000 patient visits per year. After determining that Respondent had prescribed what he considered to be an inordinate amount of controlled substances, Schedule II narcotics, the investigator wrote to Respondent advising her that an investigation had been commenced. In July, Respondent telephoned him and advised him that she had relocated to West Virginia. The investigator asked her for the medical records for the seven patients he questioned, and Respondent advised him that in conjunction with her closing her practice and relocating, she had given their medical records to approximately 500 of her patients so they could take them to other physicians and continue receiving their medical care, and those records not picked up by patients had been sent to a Dr. Garriques to be the custodian of those records. Of the seven medical records requested by the investigator, six of them had been given to the patients, and the seventh had been transferred to Dr. Garriques. Respondent admitted that she had not personally kept either the originals or copies of the medical records of her patients. The investigator subsequently telephoned Sun Belt Clinic where Respondent had worked and was told that Respondent's medical records were not there because she had given them to her patients. In December 1993, the investigator issued a subpoena to Sun Belt Clinic for Respondent's medical records and received nothing. Petitioner has made no further effort to obtain the medical records of the patients involved in this proceeding. Controlled substances are categorized by the Drug Enforcement Agency in five different schedules according to their potential for abuse. Schedule I substances are illegal. Schedule II substances, although considered highly addictive, can be prescribed by licensed physicians for medical purposes. Schedule II substances can be narcotic (opiates administered for pain) or non- narcotic. Schedule II narcotics include morphine (morphine sulfate), methadone (dolophine), dilaudid (hydromor-phone), and oxycodone (percodan and percoset). Dexedrine is also a Schedule II controlled substance. Although morphine is the most potent narcotic available in the United States, only approximately 10-20 percent of it is absorbed, when ingested. Methadone is available in government-run clinics for the treatment of heroin addiction. Methadone is also a bona fide treatment for pain. Pursuant to the statutes regulating the conduct of registered pharmacists in the state of Florida, pharmacists are not permitted to dispense methadone for addiction; rather, pharmacists can only dispense methadone as a pain medication. At least one doctor in Key West, other than Respondent, prescribes methadone for pain, and a local hospital there has begun using methadone to treat pain on an in- patient basis. L.P., one of Respondent's patients, is a narcoleptic. Narcoleptics need a stimulant, such as dexedrine or ritalin, to function normally. Before seeing Respondent, L.P. had been "worked up" at Stanford and was taking a maintenance dosage of dexedrine. Between September 11, 1992, and June 1, 1993, Respondent prescribed dexedrine, 15 mg., for L.P., the same dosage L.P. was on before and after being Respondent's patient. The amount and frequency of dexedrine prescribed by Respondent for L.P. is within the range recommended by the Physician's Desk Reference and was an appropriate treatment for L.P.'s narcolepsy. Persons suffering from chronic pain (as opposed to acute episodes of pain) for which there is no cure or treatment available that can alleviate the person's pain are said to suffer from "intractable pain." There are two types of patients who suffer from intractable pain. The first group are patients with terminal, irreversible illnesses, such as cancer patients. Physicians generally give those patients whatever narcotics they need to alleviate the pain during the end stage of their lives. The second group is composed of patients who suffer from non-terminal disease processes who have tried different specialists and treatments available without achieving relief from their chronic pain. Those persons are generally not treated in family practice settings but rather are referred to pain management centers or pain clinics, in locations where such are available, to have their pain alleviated by treatments such as receiving morphine implants or having doctors perform nerve blocks. Many physicians avoid caring for patients who require Schedule II controlled substances to alleviate their suffering. The United States Department of Health, Education and Welfare, through its Agency for Health Care Planning and Research, has established national guidelines for treatment of moderate to severe pain in cancer patients, using Schedule II narcotics. The guidelines are written as a starting dose for opiate-naive adults, i.e., adults who have never before taken opiates. The guidelines further indicate that adults who are not opiate-naive may need a stronger dose. Although none of Respondent's other five patients involved in this proceeding were cancer patients, they suffered from intractable pain. Respondent prescribed narcotics for them within the guidelines recommended to relieve intractable pain in cancer patients. The Agency for Health Care Planning and Research recommends for moderate to severe pain a starting dose of dilaudid of 6 milligrams every three to four hours with a maximum recommended dose of 24 milligrams a day. It recommends a starting dose for moderate to severe pain for methadone or dolophine of 20 milligrams every six to eight hours with a maximum of 80 milligrams a day. For morphine, Agency guidelines recommend a starting dose of 30 milligrams every three to four hours. As to those five patients discussed hereinafter, Respondent saw each of them two times a week when they came to her for their prescriptions. In that way, she was able to monitor them closely and write prescriptions for limited quantities of medication. Sometimes, she saw those patients more often since the pharmacies in Key West were not able to stock supplies of narcotics as easily as non-narcotic medications. If a patient brought a prescription for such narcotics to a pharmacy and the pharmacy had an insufficient quantity in stock to fill that prescription, the patient could go elsewhere or could take the quantity the pharmacy had in stock. Under that circumstance, the prescription for the full quantity would be cancelled, and the patient would return to Respondent to get an additional prescription in order to have the full dose prescribed by Respondent. Respondent treated J.P. for six years for migraine headaches on an indigent basis. J.P. could not afford a CAT scan, and there were no other resources in Key West available to him for further work-up at no cost. Respondent based her treatment plan on her best clinical judgment and a complete physical examination. She tried Midren and other anti-inflammatory medications first. She prescribed percoset for three or four years. She then tried dilaudid. She prescribed dilaudid, 2 mg. from March 19, 1992, through April 23, 1992. She then prescribed dilaudid, 4 mg., from April 30, 1992, through August 17, 1992. From September 3, 1992, through November 30, 1992, she prescribed dolophine, 10 mg. On December 4, 1992, she changed J.P.'s treatment, prescribing morphine, 30 mg., through January 29, 1993. Pharmacy records reflect other medications thereafter, with a prescription for 15 dilaudid, 4 mg., on March 24, 1993, followed by 8 morphine sulfate tablets, 30 mg., on May 21, 1993; 5 percoset tablets on May 31, 1993; 15 morphine sulfate tablets, 30 mg., on June 4, 1993; and 5 percodan tablets on June 7, 1993. Although J.P. filled Respondent's prescriptions at several pharmacies, for example using three different pharmacies during the month of January 1993, the total amount of medication prescribed by Respondent was within the federal Agency guidelines. Respondent's prescribing practices as to J.P. were appropriate and not excessive. Over the course of her treatment of J.P., Respondent observed him change from a "non-functional" person to a functional person who was able to hold a job as a chef when his pain was relieved. Respondent treated M.G. for AIDS-related cluster headaches, which are very intense. He was also grieving for his girlfriend who had died of AIDS. Respondent treated him with dilaudid, which made him pain-free most of the time, and, in addition, he learned relaxation techniques to help deal with his pain. Respondent maintained him on a dosage of dilaudid, 4 mg., from December 28, 1992, through early March 1993. The quantity of dilaudid prescribed by Respondent was within the federal Agency guidelines, and was appropriate and not excessive. While taking dilaudid, M.G. was able to work four days a week as a taxi dispatcher. Respondent treated C.D. for chronic severe pain resulting from connective tissue disease. C.D. also suffered from intermittent gland swelling. Respondent unsuccessfully tried numerous anti-inflammatory medications in treating C.D., and he was treated by a rheumatologist in Miami without benefit. Respondent placed him on a maintenance treatment plan of 100 mg. a day of morphine and kept him at that level. Pharmacy computer printouts reveal C.D.'s morphine treatment commencing in February of 1992 and continuing into mid-June 1993. His functioning improved so that he was able to obtain a job as a taxi driver and once again start playing his guitar in a band. The maintenance program Respondent instituted for C.D. was within the federal Agency guidelines and was appropriate. Respondent treated J.B. for six years for multiple orthopedic problems and back pain. J.B. was not opiate-naive. He had been severely abused as a child and started taking narcotics at the age of two when he suffered a broken arm and severe burns to his hand as a result of his father's behavior. Respondent wrote alternating prescriptions for methadone, dolophine, and morphine for J.B. from December of 1991 through mid-June 1993. He remained on the same dosage. When seen in the community, J.B. was clean, spoke coherently, walked in a straight line, and dressed appropriately for Key West. Although the mixture of prescriptions and the dosage amounts Respondent prescribed for J.B. were substantial, her prescribing practices for J.B. were within the federal Agency guidelines and were appropriate. Respondent treated P.P. from 1986 through 1993 for severe sinusitis. P.P. also developed severe low back pain (sciatica). Respondent took a back x- ray, administered physical therapy, and referred P.P. to a hypnotist. Respondent wrote on prescriptions which she gave to P.P. that her diagnosis was a herniated disc. Respondent started her on dilaudid, 2 mg., in February 1992 and continued that regimen through January 1993. She also prescribed percoset and valium, 5 mg., for the severe back pain and muscle spasm. She also prescribed an anti-inflammatory for the stomach upset resulting from the narcotic. Respondent's prescribing practices as to P.P. were within the federal Agency's guidelines and were appropriate. In her treatment and prescribing practices for L.P., J.P., M.G., C.D., J.B., and P.P., Respondent kept detailed records, in part due to her concern that she might become the subject of criticism by Petitioner. Such records were not, however, offered at hearing by either party. The prescribing of controlled substances to the patients involved in this proceeding was done in the course of Respondent's professional practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE and ENTERED this 1st day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 1st day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3 and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-21, 23, and 24 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's fifth unnumbered paragraph has been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth unnumbered paragraph has been rejected as being irrelevant to the issues involved herein. Respondent's first, second, third, sixth, and seventh paragraphs have been rejected as containing only argument. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Suite 210 9325 Bay Plaza Boulevard Tampa, Florida 33619 Katherine Anne Hoover, M.D. Route 2 Box 203 Lost Creek, West Virginia 26385 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace, Assistant Director Agency for Health Care Administration Suite 301 The Atrium 325 John Knox Road Tallahassee, Florida 32303
