The Issue Whether the Petitioner is entitled to a medical license in the State of Florida by examination?
Findings Of Fact The Petitioner is a graduate of a foreign medical school. She graduated from the University of Ceylon, Colombo, Sri Lanka. The Petitioner was licensed in Sri Lanka on March 8, 1976. From March 8, 1976, through May, 1979, the Petitioner was employed as a physician at a government hospital located in Galle, Sri Lanka. From May, 1979, until January 24, 1981, the Petitioner was employed as a physician at a government hospital located in Colombo, Sri Lanka. While employed at the government hospitals in Galle and Colombo, Sri Lanka, the Petitioner earned 21 days of vacation time and 24 days of "casual" leave a year. Upon the termination of her employment at the government hospital in Colombo, Sri Lanka, the Petitioner was paid for 21 days of her accrued vacation and casual leave. If the 21 days for which the Petitioner was paid for upon her departure from the government hospital at Colombo, Sri Lanka are counted as time during which the Petitioner worked as a licensed physician, the Petitioner's employment during this period of time would run from March 8, 1976, to February 14, 1981. This is a total of 4 years and 343 days. If the 21 days are not counted, the Petitioner's employment would run from March 8, 1976, to January 24, 1981. This is a total of 4 years and 322 days. On January 24, 1981, the Petitioner traveled from Sri Lanka to the United Kingdom to be with her husband. Therefore, the Petitioner did not practice medicine as a physician after January 23, 1981. The Petitioner remained in the United Kingdom from January 24, 1981, to July 11, 1982. The Petitioner was issued a Certificate of Limited Registration as a Medical Practitioner by the General Medical Council in the United Kingdom which authorized her to practice medicine. The Certificate limited the Petitioner's "employment" as a physician to the following: Any supervised employment in hospitals within the National Health Service excluding employment in casualty or in accident and emergency departments except to give a second opinion with a view to management or to assist a casualty officer in treatment or to administer anesthetics. The Certificate also provided the following "period of limited registration": 9 Oct. 981 to 8 Oct. 1982. In substance the Petitioner's practice as a physician in the United Kingdom was limited only as to where she could work (National Health Service hospitals) and the period during which she could practice (9 Oct. 1981 to 8 Oct. 1982). The requirement that her employment be supervised was consistent with the manner in which all physicians in the hospitals of the National Health Service are treated; "consultants" supervise all other physicians. The exclusion of the Petitioner's employment in casualty or in accident and emergency departments was included on the certificate only because the Petitioner did not choose to pay an additional 15 Pounds Sterling. While in the United Kingdom, the Petitioner worked as a physician from October 1, 1981 until July 10, 1982, a total of 283 days. On July 11, 1982, the Petitioner returned to Sri Lanka to visit with her son and her family before joining her husband in the United States. The Petitioner remained in Sri Lanka from approximately July 11, 1982, until October 30, 1982. In August of 1982 the Petitioner took over the practice of Dr. S. H. M. Kaleel, on 7 intermittent days. Dr. Kaleel's practice consisted of a general-family practice. Dr. Kaleel was in the United Kingdom from September 1, 1982, to October 7, 1982. This was a period of 37 days. During this period the Petitioner operated Dr. Kaleel's office for him. On October 30, 1982, the Petitioner left Sri Lanka to join her husband in the United States. She arrived in New York, New York, on October 31, 1982. The Petitioner and her husband initially lived in Athens, Georgia, where her husband attended the University of Georgia. The Petitioner and her husband subsequently moved to Gainesville, Florida. The Petitioner still resides in Gainesville. The Petitioner has more than 5 years of licensed practice if her employment with the government hospitals in Sri Lanka (March 8, 1976 to February 14, 1981), her employment in the United Kingdom (October 1, 1981 to July 10, 1982), and her employment by Dr. Kaleel (7 days in August, 1982, and from September 1, 1982 to October 7, 1982) are counted. If the period from January 24, 1981 to February 14, 1981, and the Petitioner's employment in the United Kingdom are not counted, the Petitioner still has more than 5 years of licensed practice. If the period from January 24, 1981 to February 14, 1981, the Petitioner's employment in the United Kingdom and her employment by Dr. Kaleel are not counted the Petitioner has less than 5 years of licensed practice. The Petitioner filed an Application for licensure by examination which was received by the Respondent on February 13, 1985 (hereinafter referred to as the "First Application"). In the First Application the Petitioner listed her current address as Gainesville, Florida. On the second page of the First Application, when requested to list "all places of residence since initiation of medical training," the Petitioner failed to list her residence in Athens, Georgia or Gainesville, Florida. The Petitioner also did not indicate that she had been in Sri Lanka from July 11, 1982, until October 30, 1982. Finally, the Petitioner indicated that she had resided in Sri Lanka until February, 1981. In completing this portion of the First Application the Petitioner did not list her residences. Instead, the Petitioner listed places of employment. Her failure to list all of her residences was caused by sloppiness and carelessness. The Petitioner was also requested to list her places of employment on the First Application. In doing so, the Petitioner indicated that she had been employed in Sri Lanka until February of 1981. This was consistent with the position she has taken in this proceeding. The Petitioner also failed to list her employment in Sri Lanka after leaving the United Kingdom in July of 1982. She failed to list this employment because she forgot about this period of employment. The Petitioner also filed a Professional Biodata dated February 9, 1985. Again she indicated that she worked in Sri Lanka until February, 1981, that she left for the United Kingdom in February, 1981, and failed to indicate that she had worked in Sri Lanka during 1982. Two routine certifications of personal knowledge of the Petitioner's practice were filed with the Respondent by a Dr. Yogasakaran and a Dr. de Lanerllore. By letter dated August 23, 1985, the Respondent informed the Petitioner that the affidavits submitted by Drs. Yogasakaran and de Lanerllore contain erroneous information about her Sri Lanka practice. The affidavits refer to her practice being from February 15, 1976 through February 14, 1981. The letter states that the Petitioner had stated in her letter to the Board that she was in the United Kingdom from February through October, 1981. The letter further advises that the practice in the United Kingdom is unacceptable toward the 5 years of licensed practice, because it was under a limited license. In a letter dated October 2, 1985, the Petitioner informed the Respondent for the first time that she had worked as a physician from September 1, 1982 to October 7, 1982, at Dr. Kaleel's clinic. She enclosed affidavits from Drs. Devacaanthan and Yogasarkara indicating that she had practiced as a physician from March 8, 1976, to February 14, 1981 and from September 1, 1982 to October 7, 19.82. She also enclosed a letter from Dr. Kaleel indicating that she had practiced from September 1, 1982 to October 7, 1982. In September, 1986, the Petitioner filed a second application for licensure by examination (hereinafter referred to as the "Second Application") pursuant to Section 458.311, Florida Statutes (1985), seeking a license based upon taking the FLEX examination and completing 5 years of licensed practice. In the Second Application the Petitioner again listed her current residence as Gainesville, Florida. She left off her residence in Athens, Georgia, and Gainesville on the second page of the Second Application, however, and again indicated that she had resided in Sri Lanka until February, 1981. Again the Petitioner listed her places of employment instead of her residence on the Second Application. Her failure to properly list her residences was caused by her sloppiness and carelessness. The Petitioner also listed her places of employment on the Second Application. Although the Petitioner had informed the Respondent about her employment in Sri Lanka during 1982, the Petitioner again failed to list this employment. By Order filed June 19, 1987, the Respondent denied the Petitioner's Second Application. The Petitioner incorrectly answered the question, "[h]ave you ever had to discontinue practice for any reason for a period of one month or longer," on the First and Second Applications. She did so because she was sloppy and careless in completing these Applications. Since at least 1978 the Respondent has interpreted Section 458.311(1)(c), Florida Statutes, to exclude practice by a physician pursuant to a limited or restricted license issued by a foreign jurisdiction for purposes of determining whether a physician has 5 years of licensed practice. Therefore, the Respondent did not accept the period during which the Petitioner practiced in the United Kingdom. The position of the Respondent set out in Finding of Fact 34 has not been adopted as a rule. It has been consistently applied by the Respondent. The Respondent has taken this position because it believes that it is unable to determine what actual restrictions apply to a limited or restricted license issued by a foreign jurisdiction. The evidence in this proceeding proved, however, that the actual restrictions which apply to a limited or restricted license can be determined and are a matter of proof. The Petitioner's testimony concerning the affidavits submitted by various physicians in support of the Petitioner's applications was not credible. The Petitioner testified that the dates of employment included by physicians who submitted affidavits were not provided to those physicians by the Petitioner and that she did not know where they got the dates. This testimony defies logic. Only one of those physicians, Dr. Kaleel, had any personal knowledge of the exact dates that the Petitioner engaged in the licensed practice of medicine. One of the physicians, Dr. Yogasakaran filed one affidavit with dates consistent with those supplied by the Petitioner. When the Respondent questioned those dates, Dr. Yogasakaran submitted a second affidavit with the new dates supplied by the Petitioner. The Petitioner's testimony on other matters was credible and her position that she has completed 5 years of licensed practice was substantiated by other credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued GRANTING the Petitioner's application for licensure by examination. DONE and ENTERED this 3rd day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 3rd day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3004 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-9 These proposed findings of fact were stipulated to by the parties. They are hereby accepted. 10 3, 4 and 21. The first sentence is accepted in paragraph 5. The rest of these proposed findings of fact are rejected as irrelevant. 5-8. The Petitioner did not resign from her employment effective February 14, 1981. Although the last sentence is true, it is not relevant to these proceedings. 13 8, 9, 14 and 16-18. 14 18. 15 These proposed findings of fact are summaries of testimony. See 34. The Respondent's Proposed Findings of Fact 1 1 and 22. 2 29. 3 24 and 31. 4 21 and 24. 5 25. 6-7 28. 8-16 and 18 These proposed findings of fact are generally correct. They have been taken into account in weighing all of the evidence in this case. See 26-28. 17 2-4 and 8. 19 9-10 and 13. 20 34. See 34 and 35. Irrelevant. 23 10. 24 1. 25-26 Not supported by the weight of the evidence. 27-28 33. COPIES FURNISHED: Paul Watson Lambert, Esquire Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302 Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth, Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent's license to practice nursing should be disciplined on the grounds that by reason of her use of drugs and alcohol, she is unable to practice nursing with reasonable skill and safety.
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: Respondent, Ms. Fischi, a 26-year-old practical nurse, holds License No. 0517521 issued by the Department. Prior to July 29, 1980, she worked as a practical nurse at the Plantation General Hospital, Plantation, Florida. (Testimony of Fischi, Markowitz) On July 29, 1980, she was admitted to the emergency room of Cypress Community Hospital, Pompano Beach, Florida, in a comatose state from a drug and alcohol overdose; she had drunk a pint of vodka and injected herself with a drug known as Talwin. (Testimony of Fischi, Markowitz; P-3) This was the latest incident in a two to three year history of drug and alcohol abuse. She was an alcoholic who began to experiment with drugs which she obtained at Plantation General Hospital. In February, 1980, she was hospitalized for a drug overdose. She had been in and out of drug and alcoholic rehabilitation programs and a participant in Alcoholics Anonymous for over a year. Her abuse of drugs and alcohol rendered her unable to practice nursing with reasonable skill and safety. (P-3) On August 2, 1980, Ms. Fischi was discharged from Cypress Community Hospital with the recommendation that she participate in the Alcoholics Anonymous program. Subsequently, she was admitted to the Coral Ridge Psychiatric Hospital where she continued to receive treatment. When visited by a Department investigator, she candidly admitted to her alcohol and drug abuse but refused to surrender her nursing license stating that she "loved nursing too much." She premised to again participate in Alcoholics Anonymous and vowed to overcome her drug abuse problems. (Testimony of Fischi, Markowitz) She has striven to fulfill her promise. From November 18, 1980, to February 23, 1881, she received rehabilitative treatment as a resident of Bethesda Manor, a halfway home for recovering alcoholics operated by the Catholic Archdiocese of Miami. The Director of Bethesda Manor writes that "During her stay . . . Debbie worked diligently on her treatment tasks, [and] made significant forward movement in implementing behavioral and attitude changes . . . Debbie has maintained ongoing contact with the Bethesda staff and appears to be progressing very satisfactorily in her current modality." (R-2) Since leaving Bethesda, Ms. Fischi has participated in a residential Metro-Dade County alcoholic treatment program at the New Opportunity Home, 777 N.W. 30th Street, Miami. This is a 3/4 way house which offers individual and group therapy. Its counselors write that: "Ms. Fischi attends all therapeutic functions. [She] . . . presently is working on her alcohol and drug addictions and presently seems to be making good progress for herself. I feel her prognosis for recovery is good." (R-1) Ms. Fischi plans to remain at New Opportunity Home for another few months--until approximately August 21, 1981. She believes that by the end of that period, she will be able to fully resume the competent practice of nursing. In the meantime, she plans to continue working at a community blood bank. (Testimony of Fischi) Since July 29, 1980, she has refrained from all use of drugs and alcohol. Given the courage and determination of this woman, it is likely that she can succeed in her struggle to return to the nursing profession. The Department recommends that her license be suspended with provision for reinstatement after four months upon submittal of a health care professional's statement that she is capable of resuming the competent practice of nursing. Ms. Fischi is agreeable to the imposition of this penalty. (Testimony of Fischi, Stipulation of Department and Counsel)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Board of Nursing enter a final order finding Respondent guilty of violating Section 464.018(i)(h), Florida Statutes, and suspending her nursing license with specific provision for reinstatement as described above. DONE and RECOMMENDED this 1st day of May, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 1st day of May, 1981.
The Issue The issue is whether Billy H. Davis, on two occasions, sold to undercover detectives of the Miami Police Department the medicinal drug Ampicillin without prescriptions in contravention of Section 465.015(2)(c), Florida Statutes (1985), and is therefore subject to discipline pursuant to Section 465.016(1)(e), Florida Statutes (1985)?
Findings Of Fact Respondent, Billy H. Davis ("Mr. Davis"), at all times relevant herein, has been licensed as a pharmacist in the State of Florida, and has been issued license number 0010622. During the period at issue here, Mr. Davis was prescription manager for Service Drugs, Inc. located at 1304 N.W. 3rd Avenue, Miami, Florida 33136 (Exhibits 1 and 2). On March 27, 1985 Detective Carolyn Clarke of the Miami Police Department purchased thirteen red and gray capsules from Mr. Davis for $8.00 (T. 50, 54). She did not present a prescription during the transaction or represent that she had authorization from a physician to obtain any drugs for which a prescription is required (Tr. 52-3). In March of 1985 Officer Jesse J. Williams purchased twelve red and green capsules from Mr. Davis for $8.00 (Tr. 58- 61). He did not present a prescription or indicate that he had authorization from a physician to receive prescription medication during the transaction (Tr. 60). Upon analysis at the Metro Dade Police Department Crime Laboratory, the capsules purchased by Detectives Clarke and Williams proved to be Ampicillin (Tr. 63-77, Department Exhibits 7 and 8). Ampicillin is a prescription or medicinal drug in the United States (Tr. 96). Mr. Davis has sold or dispensed drugs as defined in Section 465.003(7), Florida Statutes (1985) without first being furnished with a prescription. When the drugs were sold, Mr. Davis had been told by the purchasers that they needed medication either for gonorrhea (Tr. 50) or for an unspecified venereal disease (Tr. 59). Oral antibiotics are not the appropriate treatment for drug-resistant strains of gonorrhea, such as penicillinase- producing neisseria gonorrhea ("PPNG") (Tr. 87). There has recently been a large outbreak of PPNG in Florida, and specifically Dade County and Miami (Tr. 89), with a large portion of the disease occurring in the black community in the Liberty City and Overtown areas (Tr. 90). Self-administration of antibiotics has played a role in the propagation of PPNG, because when there is a drug-resistant strain of venereal disease in a community and patients take antibiotics not appropriate to treat their condition, patients believe that they are getting better when they are still infectious (Tr. 93-94). This may cause those patients, if women, to develop pelvic inflammatory disease which can lead to infertility and occasionally users can develop an infection of the heart valves known as bacterial endocarditis (Tr. 94-95). It is not possible for patients to tell from symptoms or by mere physical examination whether they have been- infected with a drug-resistant strain of PPNG: a patient must have a culture done by a physician to make this determination (Tr. 96).
Recommendation Based on the foregoing, it is recommended that a final order be entered finding Mr. Davis guilty of violating Sections 465.015(2)(c) and 465.016(1)(e), Florida Statutes (1985). In view of the well-intentioned nature of Mr. Davis' actions, the apparent absence of any profit motive, but keeping in mind the potential public health hazard involved in dispensing of medicinal drugs for the relief of venereal disease without prescription, it is recommended that pursuant to Section 465.016(2)(b), Florida Statutes, his license to practice pharmacy be suspended for a period of thirty days; pursuant to Section 465.016(2)(c), Florida Statutes, that he be fined a total of $250.00; and pursuant to Section 465.016(2)(e), Florida Statutes, within one year he be required to attend continuing education courses pertaining or relating to the appropriate use of medicinal drugs in the treatment of venereal disease. DONE AND ORDERED this 17th day of June 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., 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 17th day of June 1986. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Billy H. Davis 1304 N.W. Third Avenue Miami, Florida 33136 Mr. Rod Presnell Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. 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 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Alexander G. Toth graduated from medical school in 1943 and migrated to Miami in 1948. He took his three-year residency in general surgery at the V. A. Hospital in Miami starting in 1951 and thereafter practiced general surgery until 1976 when he had a serious accident. This accident plus additional health problems caused him to give up surgery and he has practiced family medicine since 1976. His office hours have been limited from 9 until 12 each week day since 1976. Approximately 10 patients per day were seen by Respondent during the period involved in these charges. At all times here relevant Respondent was licensed by Petitioner as a physician. Richard Hatcher was a patient of Respondent in 1975 at which time he complained of headaches and low back pain. Respondent prescribed Percodan, Doriden, Dilaudid and Placidyl during a one-year period Hatcher was a regular patient. At this time Hatcher had a suit pending to recover damages for injuries received in an automobile collision. Hatcher did not see Respondent with any regularity again until 1978. Respondent's patient records of Hatcher (Exhibit 5) show he treated Hatcher on 11-20-78 on complaint of can't sleep, low back pain and spasm of lower back, by prescribing 100 Valium and 100 Percodan. Exhibit 6, which is a copy of prescriptions written by Respondent for Hatcher, shows the following prescriptions were written for Hatcher on dates indicated: 6/2/78 - 30 Valium 10 mg; 8/8/78 - 50 Seconal and 30 Fastin 30 mg; 10/11/78 60 Tuinal 3 grs, 60 Fastin 30 mg, 50 Valium 10 mg and 100 Percodan; and 11/20/78 - Valium 10 mg, 30 Fastin 30 mg and 100 Percodan. Exhibit 5 shows in 1975 Hatcher was 6 feet and 180 pounds. The entry dated 12/18/78 opposite Fastin is (Wt 205). During the period 12/18/78 to 2/27/79 Respondent prescribed for Hatcher on numerous prescriptions the following: 300 Percodan, 250 Valium, 230 Tuinal 3 gr, 60 Fastin, 60 Demerol 100 mg, one 30 cc vial Demerol 100 mg per cc, and 30 syringes (Exhibit 6) . Exhibit 5 contains an entry dated 3/2/79 "(Wants Demerol) Refused - refer to JMH", and a final entry (3-19) Deceased." Hatcher voiced the same or similar complaints of pain on each visit to Respondent. Richard Hatcher was found dead in his apartment on or about 21 March 1979 some 24 to 36 hours after he died. Cause of death was acute intravenous narcotism. The syringe with which the fatal narcotic was injected was still in his arm when his body was found. Due to the rapid clearing of many drugs from the blood the autopsy failed to reveal which of the opiate drugs caused Hatcher's death. About one week later Mrs. Hatcher, the mother of Richard, received from her ex-husband and father of Richard a page from a notebook found in Richard's apartment after his death signed by Richard which indicates some concern by Hatcher that he might overdose on drugs given him by Dr. Toth, the Respondent (Exhibit 12). Richard Hatcher became seriously involved with drugs in 1967 when he was 21 years old. By 1975 his mother noted a personality change where he would quickly go from normal to extremely agitated. In the fall of 1978 Hatcher committed himself to Village South, a drug rehabilitation program in Dade County, for some 4 or 5 months. After release from Village South Hatcher continued to take drugs. To his mother's knowledge he overdosed several times before his death. Three times she found him unconscious on the floor of her apartment and on numerous other occasions he was "spaced out". Respondent testified that Hatcher showed no indication he had abused or misused the medications Respondent prescribed. If so, it is evident that Respondent did not closely observe Hatcher or do more than hear his litany of pain. On the other hand, Exhibit 5 shows that some 2-1/2 weeks before Hatcher's death Respondent refused to prescribe the Demerol wanted by Hatcher. Unless Respondent recognized the seriousness of Hatcher's addiction it is not conceivable that he would suddenly refuse drugs so freely prescribed in the past. Michael Kavney was a patient of Respondent from June 1979 until his death from an overdose of Placidyl on 14 or 15 January 1980. On June 11 1979 Kavney complained of pain in his shoulder and Respondent prescribed 50 Tylenol. Kavney was 6 feet tall, weighed 189 pounds, and told Respondent he wanted to lose weight. Respondent on June 11, 1979 also prescribed 50 Fastin. On 8-16-79 Respondent, at Kavney's request, called in a prescription for 50 Valium. On 9/7/79 he called in a prescription for 50 Tylenol. Both of these prescriptions resulted from a phone call to Respondent. On October 29, 1979 Kavney visited Respondent, told him the shoulder pain persists and he would like some more weight reducers. By this time Kavney's weight was down to 185 pounds from 189 four months earlier. Respondent prescribed 50 Tylenol, 50 Valium (Exhibit 4) and 30 Fastin (Exhibit 3). By script dated 11/21/79 Respondent prescribed 50 Fastin for Kavney and by script dated 11/26/79 he prescribed 50 Tylenol (Exhibit 4). No record of these is contained in Exhibit 3. By entry on Exhibit 3 dated December 17, 1979 Respondent recorded "pain left shoulder, using heat at home, can't take codeine, Percodan 50". The Tylenol, which had been prescribed on four previous occasions, contains 1 grain of codeine per tablet. On January 14, 1980 Kavney visited Respondent, told him of disturbed sleep patterns, that he had taken Placidyl on prior occasions with good results and Respondent prescribed 60 Placidyl (750). Kavney was found dead in his automobile with an empty bottle with Placidyl label on the floor. An autopsy done on January 15, 1980 shows Kavney died from an overdose of Placidyl. Terry McGarey grew up in Miami and played in bands with Kavney as early as high school days. He had also known Hatcher since 1963. McGarey first visited Respondent in 1970 with an arm injury. He next saw Respondent near the end of 1976 and he complained of headache and leg pains from an earlier motorcycle accident. McGarey received a prescription for Percodan. McGarey, who appeared as a witness, testified that he had visited Respondent every three or four weeks in 1976 complaining of headache and during these visits he also received Placidyl, Demerol, Parest and Valium. These visits continued in 1977 with the same frequency and results. Respondent's patient records for Terrance McGarey (Exhibit 1) commence 3/28/78. The first entry is not dated but states "cc severe headaches - nausea - at JMH March `78. Neuological dept. - treated for organic brain syndrome - at JMH 1976 migraine - no allergies - only relief Demerol. Rx demerol 100 mg #5 fiorinal tabs." Thereafter Exhibit 1 shows entries 7-31-78, 8-7-78, 8-28, 9-1, 9-6, 9-11, 9-27, 10-9, 10-20, 10-29, 10-31, 11-16, 11-22, 12-18, 12-22, 12-29, 1-3, 1-8, 3-21 and 4-19-79. Most of these entries resulted from office visits but some entries recorded prescriptions as a result of phone calls. During this period prescriptions were issued to McGarey for Percodan, Emperin, Doriden Parest, Tuinal, Demerol, Placidyl, Dalmane, Darvon, Seconal and Valium (Exhibit 2) On May 7, 1979 McGarey called the Cardella Pharmacy saying he was Dr. Toth, gave the correct DEA number and authorized the delivery of 18 Placidyl 50 mg to patient Jerry McGaret. The pharmacist called the doctor's office, which was closed, and then issued the drugs to McGarey. A subsequent try was unsuccessful when the pharmacist was told by Respondent's office that this man was no longer a patient of Respondent. Respondent testified that he treated McGarey for migraine headaches, insomnia, nervousness, and low back pain. He found no evidence of abnormal conditions in his examination of McGarey. Through mid-October Respondent had no indication McGarey was in a methadone program or addicted and the drugs were continued with each visit or phone call. On December 29 Respondent learned from McGarey that he had been admitted to JMH for seizures and the resident recommended Seconal. On this basis Respondent prescribed Seconal but did not learn the cause of the seizures. On January 8, 1979 McGarey's mother called Respondent to advise that her son was a drug abuser and had been on a methadone program for 18 months. Following this entry is the notation "No more Rx's - back to JMH". Respondent's next entry on Exhibit 1 is "Called records at JMH patient admitted 2-9-79 - overdosed - discharged 2-14 Signed out - mother took him home." Although Respondent testified it never entered his mind that McGarey might be a drug abuser he also testified that the symptoms of narcotic addiction are agitation, nervousness, slurred speech and poor equilibrium. On the witness stand McGarey exhibited traits of nervousness and agitation. He appeared hyperactive rather than calm and sedate. His movements were jerky rather than fluid and he did not give the impression of a normally relaxed person under tension because he was testifying. On 11 January 1980 Kirk Kratz, a 29-year-old male, visited Respondent's office as a patient. He had a cast on his right upper arm and stated it was fractured some two weeks earlier. Also he had received a gunshot wound in the abdomen before Christmas and a laparotomy had been performed. He complained of pain in the right arm. He was given a prescription for 100 Percodan for pain and 60 Tuinal 3 gr for sleep. Kratz returned 12 February with same complaints and was given prescriptions for 100 Percodan, 60 Tuinal and 30 Valium. On 2/29 Kraft appeared without the cast, told Respondent the police had broken the cast, held him in jail for 3 days and confiscated his medication. He was given prescriptions for 100 Percodan and 60 Tuinal. On 4/8/80 Kratz still complained of "pain in the shoulder and arm and can't sleep." Prescriptions for 100 Percodan, 60 Tuinal and 100 Valium were given him. Finally on 6/13, with complaint of pain in hand and shoulder, Kratz was given prescriptions for 100 Percodan and 30 Doriden (Exhibit 9). Hatcher and McGarey were drug addicts before and during the time they were being treated by Respondent. At one time or another both of them had been enrolled in the methadone program at Jackson Memorial Hospital and/or other withdrawal programs for addicts. In addition to getting drugs from Respondent, they were also obtaining drug prescriptions from other doctors. Also from the quantity of drugs prescribed for Kavney and Kratz it is evident that both of these individuals were also addicts. During the period between 1 January 1980 and 14 June 1980 Respondent, with an active practice of some 700 patients prescribed approximately 28,000 Percodan and 2,000 Percocet tablets to various patients. Exhibit 16 shows a breakdown of the 130 patients treated by Respondent during this period. While Exhibit 16 shows Kirk Kratz received 100 Percodan only on 2/29/80, Exhibit 8 indicates he received 500 Percodan between 1 January and 14 June 1980. Assuming all other entries on Exhibit 16 to be accurate, a spot check shows the following patients were given Percodan or Percocet during the period 1 January - 14 June in the following quantities: Steven Arnold - 300; Cathy Blauk - 450; Bill Davis - 500; Kirk Decker - 300; George Fernandez - 300; Sidney Ford - 600; Ron Jangie - 300; Jerome Johnson - 300; Patty La Fortuna - 310; Vincent La Fortuna - 200; William Leonard - 350; Mary Leslie - 300; Gus Melquezo - 400; Michael Pravioski - 225; Debbie Saey - 250; Robert Sandifer - 400; James Setters - 300; Alvin Terrell - 300; Mike Thill - 300; Mark Wolfson - 200; Joe Worth - 300; and Harvey Zemaster - 200. Exhibit 16 also shows that most of these prescriptions were written for quantities of 100. It also lists almost 18,000 Percodan issued to 130 patients during this period, or an average of 140 per patient. Percodan, Tuinal, Parest, Demerol and Seconal are Class II drugs. One hundred Percodan taken in a one-month period will cause addiction in the taker. After 48 hours taking Percodan every 4 to 6 hours the patient will have withdrawal symptoms. Although Placidyl, Valium, Doriden, Empirin and Dalmane are not Class II drugs, they are dangerous and therefore controlled. Fifteen Placidyls taken at one time can be fatal. Many of the drugs prescribed by Respondent, when taken in combination, create a synergistic effect which makes the combination greater than the sum of its parts. Similarly a synergistic effect is created when some of these drugs are taken in conjunction with alcohol. Fastin is used for weight control. Neither Hatcher nor Kavney at 6 feet and 180 - 185 pounds should have been a candidate for weight loss. Further, prescriptions for Fastin and Seconal (for sleep) at the same time are incompatible as one is an upper, the other a downer. Tuinal in combination with Valium will increase depression. When Fastin is added, a pharmacological jungle can result. Respondent acknowledged that he relied more on the statements of his patients than upon an examination to determine when to prescribe medications. If the patient said he hurt, Respondent would prescribe a pain killer. A two- week-old fracture properly set and in a cast should cause little pain. If pain persists two weeks after casting something is wrong that will not likely heal itself. Therefore, painkillers to mask the symptoms are contraindicated. Similarly, a persistent pain in the shoulder is likely to be caused by inflammation and an anti-flammatory agent is indicated. Neither Tylenol nor Percodan are anti-inflammatory agents. Dr. John V. Handwerker, M.D. was accepted as an expert in family practice medicine. After reviewing Respondent's records of Hatcher, Kavney, Kratz and McGarey he expressed the strong opinion that the complaints of the patients did not justify the narcotics prescribed; that much larger quantities of each drug were prescribed at one time than was medically indicated or prudent; that drugs were prescribed in dangerous combinations due to the synergistic effect if taken together, plus some of these drugs such as Fastin and Valium are mutually exclusive; that issuing a prescription to take these drugs "as needed" was improper and dangerous; and that narcotics were frequently prescribed for alleged ailments for which more effective non-narcotic drugs were available. This witness was particularly critical of the prescription for liquid Demerol, as this should be prescribed only when the patient can't take the drug orally. After reviewing Exhibit 7 Dr. Handwerker expressed the opinion that prescribing 28,000 Percodan tablets during a 5-1/2 month period could only be justified with a large practice limited to trauma patients and that the records and prescription schedules show a practice harmful to the public. This opinion was based partially on Dr. Handwerker's practice in which, during the same period, he saw 2,081 patients and wrote 73 prescriptions for 1,996 Percodan tablets. Exhibit 7 contains 291 prescriptions issued by Respondent during this period, and recovered by Petitioner's investigator from pharmacies in the vicinity of Respondent's office. These coupled with Respondent's patient records show some 28,000 Percodan and 2000 Percocet tablets were prescribed. Valium is the most commonly prescribed drug in the United States and one of the most abused drugs. If a patient is emotionally stable 60 Valium is too many to prescribe for a patient at one time. If a patient is emotionally disturbed there is even greater reason for not prescribing 60 Valium. Dr. Roderick Palmer, M.D., testified as an expert in clinical pharmacology. He opined that prescribing 100 Percodan for a patient at one time was not appropriate because if the pain results from a traumatic injury, such injury will normally cease being painful in 4 or 5 days, and 100 Percodan is enough to commit suicide or become addicted. Dr. Palmer described Percodan and Placidyl as widely abused drugs. Sixty Placidyl in one prescription is too many because of suicide potential. Further, if one Placidyl is taken every day for 60 days the patient would probably become addicted. Taking more than one Placidyl per day could impair coordination enough to result in an industrial or automobile accident or other injury. With respect to Exhibit 7, Dr. Palmer cited instructions for Percodan or Percocet that the physician should not prescribe enough to result in addiction (not more than 30) nor prescribe enough for patient to commit suicide. It is necessary for patients to return to the physician before the patient can become addicted to the drugs prescribed. In this way the doctor will not lose control over the patient which could result in the patient becoming addicted. With respect to the 28,000 Percodan prescribed in a 5-1/2 months period Dr. Palmer viewed that quantity as more than he would prescribe in a lifetime. Dr. Murray Sims, M.D., is a Board certified surgeon who testified on behalf of Respondent. He found the prescriptions issued to Hatcher, Kavney, McGarey and Kratz to be proper for the complaints of the patients. Sims has known Respondent for many years, and has worked, studied, and taken examinations with Respondent. Dr. Sims prescribes Percodan in quantities of 100 and even 200. He does not believe 100 Percodan taken in a 30-day period is addictive. He has one 93-year old patient to whom he mails prescriptions for 100 Percodan per month (40 to 60 days) because, as she told him, "It makes my day start off right." (Tr. Vol. II, p. 102). When asked if Percodan and Tuinal taken together would have a synergistic effect Dr. Sims said no (Tr. Vol. II, p. 67) but on p. 119 he testified "I guess it would, you get a relief of both, yes. Don't hold me too much about pharmacy." Dr. Sims practice is 99 percent devoted to surgery patients and if he has a patient with a non-surgical related disorder he usually refers the patient to another doctor. This witness's testimony regarding the various drugs prescribed by Respondent and the appropriateness thereof was not deemed as credible as was the testimony of Drs. Hardwerker and Palmer. This was so because the latter had more expertise in this area of medicine and demonstrated greater credibility on the witness stand.
Findings Of Fact At all times relevant hereto, William E.P. Shaw was licensed as a pharmacist in the State of Florida, having been issued license number 0008802. On January 21, 1986, Respondent, in the United States District Court for the Northern District of Georgia, pleaded guilty and was convicted of the offense of conspiracy to obtain drugs at a low purchase price under false and fraudulent pretenses and representations to various drug manufacturers that drugs were for use in Palms of Pasadena Hospital, St. Petersburg, Fla., which drugs were then diverted from said hospital use and resold at substantial profit, this being done by use of interstate Wire Communications and the U.S. Mail - all in violation of Section 1343, and 1341 and 2 - Title 18, and 371 - Title 18, U.S.C., as charged in the within indictment. (Exhibit 1). At the time of the alleged offense, Respondent was a staff pharmacist at Palms of Pasadena Hospital. Prior thereto he headed a company or group which managed several hospital pharmacies including that of Palms of Pasadena. His contract with Palms of Pasadena Hospital expired in 1984 and was not renewed. Drug manufacturers sell drugs to hospitals at a much lower price than they sell to wholesalers. Respondent set up an account on which the hospital comptroller had check writing authority, and as a pharmacist ordered specific drugs under the hospital's drug account number to be delivered to the hospital. Upon arrival at the hospital these drugs were immediately reshipped to a contact in Miami, who was a licensed drug wholesaler, or to a contact in Atlanta, who was not so licensed. To the hospital's price for the drugs, which was paid by the hospital's comptroller from the account established by Respondent, Respondent added ten percent. This sum was remitted to him by these two purchasers and the account from which the supplier was paid was reimbursed. Respondent testified that he was unaware that his scheme was in violation of the law; however, Respondent was aware that he was defrauding the drug companies and violating the hospital's agreement with these companies to dispense all drugs purchased only to hospital patients. Drugs so ordered and resold by Respondent were primarily prescription drugs slow-K and nitro patches. Following his conviction in the U.S. District Court Respondent was sentenced to three years imprisonment the execution of which was suspended and Respondent was placed on probation for three years, ordered to pay a fine of $7,500.00 and perform 400 hours of community service work (Exhibit 1). At the time of this hearing, Respondent had satisfied the sentence but for the unexpired probation. Respondent has been a licensed pharmacist since 1958 and, but for the federal charge and conviction, has enjoyed a good reputation in the field of pharmacy and in the community in which he lived.
The Issue The issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statute (2003); and, if so, what is the amount of attorney's fees and costs that are recoverable by Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at hearing and on the entire record of this proceeding, the following Findings of Fact are made. The Department, through its Bureau of Statewide Pharmaceutical Services (formerly the Bureau of Pharmacy Services), is and was at all times relevant to this proceeding, the state agency responsible for administering and enforcing the Florida Drug and Cosmetic Act, Chapter 499, Florida Statutes (1997), which includes the regulation of the manufacture, promotion, and distribution of prescription drugs. In late 1990, the Department began investigating the unlawful advertising, manufacture, and distribution of prescription drugs that are not approved in commerce by the United States Department of Health and Human Services, Food and Drug Administration (FDA), of an establishment located at 29949 State Road 54 West, Wesley Chapel, Florida. The establishment was the primary business address of several closely held corporations owned and operated by James T. Kimball, and his wife, Josephine Kimball. The Department initiated an Administrative Complaint in August 1993 (1993 Administrative Complaint), while in the middle of its investigation and after participating in a federal and state force of agencies that executed a search and seizure of the Kimballs' business establishment and their home located in Wesley Chapel, as well as other locations. The search and seizure took place on May 12, 1993, pursuant to federal warrants. The Kimballs' business establishment was located at 29949 State Road 54 West, in Wesley Chapel, Florida. The 1993 Administrative Complaint was issued to Discovery Experimental & Development, Inc. ("DEDI"), and related to that company's alleged sale of drugs that were not approved by the FDA. DEDI was located at 29949 State Road 54 West, Wesley Chapel, Florida. After the 1993 Administrative Complaint was filed, the Department continued to investigate the activities of DEDI. Deborah Orr (Agent Orr) began working for the Department as a drug agent in or about 1993 and was assigned to investigate the underlying case until the case culminated. During the investigation, Agent Orr and others in the Department reviewed documents and other evidence seized during the search of the business establishment and the home of the Kimballs that tied both Mr. Kimball and Mrs. Kimball to several corporations that appeared to be connected to the manufacture and sale of certain unapproved drugs. Among the documents seized, pursuant to the 1993 warrant, was Global Health's letterhead. During the investigation and prior to 1997, Agent Orr visited the Global Health office. Global Health had one of the smaller offices, about 8x8 or 9x9, at "HQ," 15310 Amberly Drive, Suite 250, Tampa Palms in Tampa, Florida. In the Global Health offices were pamphlets put out by Global Health called "Silver Solutions" that promoted the colloidal silver products of DEDI, and later ASTAK, Inc. (ASTAK), and made medicinal claims despite the Department's previous warnings to Mr. Kimball and Mrs. Kimball that this was unlawful. It appeared that Global Health distributed these pamphlets. Among the documents found and seized from the Kimballs' home, pursuant to the 1993 warrant and reviewed by Agent Orr, was the financial statement of "James and Josephine Kimball," dated April 14, 1992. According to that document, "James and Josephine Kimball" were 90-percent owners of DEDI, which "develops pharmaceuticals and chemicals for manufacturing" and had an assessed value of $1,000,000; "James and Josephine Kimball" were 90-percent owners of ASTAK, a company that "manufactures custom order vitamins"; James Kimball was a 100- percent owner of Discovery Experimental and Development, Mexico N.A. (DEDI of Mexico), a company that "manufacture[s] pharmaceuticals" and ships to 12 countries; and "James and Josephine Kimball" were 83-percent owners of Discovery Tour Wholesalers' Inc. (Tours), which owned the real property located at 29949 State Road 54 West, Wesley Chapel, Florida. The Department's investigation indicated that several companies controlled by the Kimballs had separate and distinct functions related to the unlawful drug enterprise. For example, it appeared that one company manufactured the unlawful drugs, another took and filled orders from customers for the unlawful drugs, and another put out promotional information and literature about the unlawful drugs. During the investigation, the Department determined that many of the companies controlled by Mr. and Mrs. Kimball and involved in unlawful drug distribution were located in the building owned by Tours and located at 29949 State Road 54 West, Wesley Chapel, Florida. Prior to issuance of the 1997 Administrative Complaint in the underlying proceeding, Agent Orr wrote a report of her findings based on her multi-year investigation and sent them to her supervisor, who forwarded the report to Jerry Hill, R.Ph., Bureau Chief, Statewide Pharmaceutical Services of the Department. Mr. Hill reviewed the report that was prepared by Agent Orr and information and evidence obtained during the investigation. He also talked to some of the Department agents and/or investigators who participated in the investigation at various times during the years the investigation was on-going. Based on his review of Agent Orr's report and related information and evidence, Mr. Hill believed there were several companies involved in promoting and/or advertising, manufacturing, and distributing prescription drugs that were not approved by the FDA. The specific unapproved drugs were selegiline citrate (deprenyl) and some silvicidal products, some of which had been found during inspections of the premises at 29949 State Road 54 West, Wesley Chapel, Florida. Although Mr. Hill believed that some of the companies were more involved in the operation than others, he believed that all of the principals had some involvement in the illegal activity. Based on the information Mr. Hill obtained prior to issuing the 1997 Administrative Complaint, he believed that Global Health had falsely advertised and made false claims about drugs containing silver that were manufactured by Respondents DEDI and ASTAK, non-prevailing parties in the underlying proceeding. In addition, Department drug agents had obtained samples of the unlawful silver drugs that appeared related to DEDI and ASTAK that made false claims on their labels, similar to the false and misleading advertisement of these drugs by Global Health. Mr. Hill believed that because of the common ownership of DEDI and ASTAK, the companies that he believed manufactured, labeled, and sold the unlawful silver drugs, and Global Health, the apparent advertising arm of DEDI and ASTAK, the advertisements of Global Health constituted "labeling" and, thus, false or misleading advertisement of prescription drugs in violation of Chapter 499, Florida Statutes (1997), specifically Section 499.0054, Florida Statutes (1997). Based on the information and evidence Mr. Hill had received, he believed that the corporations that were engaging in these activities involved two principal natural persons, Mr. and Mrs. Kimball. Mr. Hill believed that he had sufficient evidence to tie DEDI, DEDI of Mexico, ASTAK, TOURS, and Global Health together. For example, the information Mr. Hill reviewed indicated that, except for Global, these entities were at the same address, 29949 State Road 54 West, in Wesley Chapel, Florida, and also had common ownership. Mr. Hill was concerned that if the Department did not tie the companies together and prosecute all the entities that were involved in the operation, the illegal activity would continue through some other company, and the unapproved drugs would get into commerce. Mr. Hill believed that the situation described in paragraph 15 could happen based on another situation that occurred in or about 1991, when the Department initiated and settled an enforcement action against Discovery Distributing, Inc. (Discovery Distributing), located at 29949 State Road 54 West, in Wesley Chapel, Florida, and its president, Mr. Kimball. The enforcement action related to Discovery Distributing's promotion of an unlawful product called Kimballac. Pursuant to the settlement in that aforementioned action, Mr. Kimball agreed not to manufacture or sell drugs that had not been approved by FDA. Yet, Mr. Hill learned that soon after the settlement was signed, the unlawful activities resumed with the same type of products being sold to the citizens of Florida. After careful consideration of all the information and evidence provided to him by Department investigators, agents, and other Department officials familiar with and involved in the investigation, Mr. Hill concluded that Global Health had violated provisions of Chapter 499, Florida Statutes (1997), by making false and misleading advertisements about drugs that were not approved by FDA. Having made that determination on or about June 24, 1997, Mr. Hill issued the 1997 Administrative Complaint in the underlying proceeding, which was later assigned DOAH Case No. 97-3836. Pursuant to a Delegation of Authority dated February 19, 1997, Mr. Hill was authorized to initiate and pursue to conclusion any legal or administrative action authorized by Chapter 499, Florida Statutes (1997). In the underlying administrative proceeding, after taking and considering testimony and documentary evidence, the Administrative Law Judge issued a Recommended Order finding that the Department failed to establish by clear and convincing evidence that Global Health violated the provisions of Chapter 499, Florida Statutes (1997), as alleged by the Department. That Recommended Order was adopted in the Department's Final Order. At all times relevant to this proceeding, Global Health was a Florida corporation with its primary office in Florida and had less than 25 employees and a net worth of less than $2,000,000. Global Health was represented by Elliot Dunn, Esquire, in the pre-hearing phase of the underlying proceeding and the first day of the 23-day final hearing. Mr. Dunn withdrew from the case after Mr. Kimball "fired" him during the proceeding. Mr. Dunn, Esquire, did not testify at this proceeding and at no time records related to his representation of Global Health or any of the other Petitioners in the underlying proceeding were available for review, inspection, or consideration. Global Health never paid Mr. Dunn for the legal services that he provided. Moreover, there was never a contract between Global Health and Mr. Dunn that defined the terms and conditions of Mr. Dunn's legal representation on behalf of Global Health. Petitioner's expert witness opined that a reasonable hourly rate for attorneys representing each of the Petitioners, including Global Health, was $175 to $350. The expert did not form an opinion as to the total number of hours reasonably spent by Mr. Dunn representing Global Health in the underlying proceeding. Rather, the expert testified that he utilized Rules Regulating Florida Bar 4-1.5, which deals with the reasonableness of fees and concluded that based on the factors in that rule, reasonable attorney's fees incurred by Global Health in the defense of the underlying case is $12,000 to $17,000, assuming the lower rate of $175. In light of the findings and conclusions reached in this Final Order, no findings are made or necessary regarding issues related to the reasonableness of the attorney's fees, the quality of the evidence presented on that issue, or any other issues related to attorney's fees.
