Findings Of Fact Ellen K. Clark is a registered nurse holding license number 0927962 issued by the Florida State Board of Nursing. Mrs. Clark was employed at Florida Hospital North, Orlando, Florida, in August and in September of 1977, in the Intensive Care Unit (ICU). During her employment, she had access to Meperedine (Demerol) used to medicate patients in the ICU. On September 28, 1977, Joann Johnson, Head Nurse of the ICU, discovered a shortage in the quantity of Demerol during a routine drug audit. She asked Clark to assist her in a recount, and at that time, Clark admitted to her that she was powerless to drugs and had taken and used Demerol from the ICU. Clark also admitted having been recently hospitalized for the treatment of Demerol abuse at Palm Beach Institute. Clark made similar admissions to the Board's investigative nurse. The chief pharmacist for Florida Hospital North, Arthur Lu, identified narcotic control forms for the drug Demerol which were received into evidence as Exhibit 1. Lu also stated that Demerol is the trade name for the drug Meperedine. Kathy Wahl, Assistant Director of Medical Records, identified the medical records for Jerome Kalish, a patient at Florida Hospital North. These records were received into evidence as Exhibits 2, 3 and 4. These records show that Clark withdrew many more doses of 50mg. and 75mg. Demerol injectable than were administered to Kalish. No wastage of these drugs was recorded as required. Dr. Kenneth Crofoot, a clinical psychologist who had treated Clark from October until December, 1977, testified concerning his treatment of Clark. Dr. Crofoot obtained his doctorate in guidance counseling from George Washington University and did a two year residency in the specialty in the Federal Mental Hospital in Washington, D.C. He worked in this field in a hospital environment until his retirement to Florida. Since his retirement, he has done volunteer counseling with the Seminole County mental health authorities and has served as a consultant to the state courts in Seminole County. He has been qualified and has testified as an expert witness in both the federal and state courts. Mrs. Clark was referred to Dr. Crofoot by the pastor of a Seventh Day Adventist Church, of which denomination Dr. Crofoot is also an ordained minister. Dr. Crofoot has had experience with the treatment of drug addicts and alcoholics in his career as a clinical psychologist. Mrs. Clark admitted to Crofoot that she was taking Demerol, and Crofoot assumed that she was addicted to the drug. Mrs. Clark sought Dr. Crofoot's help and treatment for her drug problem. Mrs. Clark met one hour per week for three months in therapy sessions with Dr. Crofoot. Dr. Crofoot diagnosed Mrs. Clark's problem as a serious lack of self identity and a lack of value system sufficient to permit her to cope with the stress of personal crises. This condition was brought to a critical stage by Mrs. Clark's concern over her husband's health, a recent move to the Orlando area where she had no friends, and the financial problems which arose from the move and her husband's illness. Dr. Crofoot was of the opinion that Mrs. Clark had received a good start in the treatment of her problems which were the cause of her abuse of Demerol while at Palm Beach Institute. Building on her earlier treatment, Dr. Crofoot expressed his professional opinion that Mrs. Clark developed a new sense of self identity and a value system sufficient to now enable her to cope with her personal problems without relying on drugs. Mrs. Clark has been employed since October by a physician specializing in Neurology for four hours a day, five days a week. Mrs. Clark advised the doctor of her problem with drugs when she sought employment with him, and at that time, an agreement was reached that she would have no responsibility for the administration of the drug Demerol. Mrs. Clark admitted that during her employment she had abused Demerol twice, a fact which she reported immediately to the doctor. The first instance of abuse occurred in October, shortly after commencing work with the doctor, and again in December of 1977. She has continued her employment with the physician and has not had any further episode of drug abuse.
Recommendation Because of the admissions of the Respondent, the only real issue presented in this case is the penalty to be assessed. This is made very difficult by the extreme candor of Mrs. Clark. At the proceeding, Mrs. Clark admitted all of the allegations against her except admitting she was using 125mg. of Demerol I.V. every four hours. She was very assertive and refused to admit this allegation of the complaint, which was subsequently determined to be an error. Mrs. Clark admitted to Mrs. Johnson her abuse of the drug Demerol prior to even a repeat audit of the drugs on hand in the ICU or the records were reviewed to determine who was responsible for the shortages. Mrs. Clark advised her current employer that she had a drug problem when she was initially interviewed. She also admitted with absolute candor at the hearing that she had abused Demerol at his office but had reported this to the doctor immediately. Such honesty substantiates Dr. Crofoot's observation that Mrs. Clark has developed a new and stronger value system. Mrs. Clark offered no excuse for her conduct and admitted her problem. She also admitted when she "fell off the wagon." Her only defense in mitigation of the charges against her was that she was seeking help for her problem and was making progress. From her testimony concerning her abuse of drugs in October and December, a question clearly exists of whether Mrs. Clark has conquered her problem. However, she has made progress and appears to be a good candidate for rehabilitation. As an ICU nurse, Clark must be a competent, experienced nurse and it would be worth the attempt to salvage her nursing career. Her abuse of drugs after her release from treatment at Palm Beach Institute and again after the termination of therapy with Dr. Crofoot indicates that she receives support from her therapy, and should not be abruptly released from therapy while practicing. Mrs. Clark has the apparent support of her husband, her employer, and others in the community in assisting her with her problem. This is a strong base upon which to build a program of probation which would provide reasonable safe guards to the public while permitting Mrs. Clark to overcome her problem without lose of her nursing credentials which would undoubtedly be a personal set back. Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board revoke Mrs. Clark's license but that the enforcement of the revocation be suspended on the condition that Mrs. Clark reenter therapy and that the therapist make regular reports to the Board on Mrs. Clark's progress, that Clark be required to appear personally before the Board on a regular basis to report on her progress, that her employer be advised by Mrs. Clark of her drug problem and the conditions of the Board's probation, that the employer be required to advise the Board that Mrs. Clark has disclosed her problem and be required to report any abuse of drugs by Mrs. Clark or any narcotic discrepancies in which she may be involved, that Mrs. Clark be required on her own to cease employment when it appears to her that she is faced with a personal crisis with which she feels unable to cope until the crisis or stress is resolved, that it be clearly understood that a reoccurrence of the abuse of any drug or unprofessional conduct by Mrs. Clark will result in her immediate revocation through imposition of the suspended revocation, and that this probation shall remain in effect until the Board is satisfied that Mrs. Clark is fully rehabilitated DONE and ORDERED this 24th day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Mrs. Ellen K. Clark 5338 Dawn Mar Street Orlando, Florida 32810 John H. Mogan, Esquire 2900 N. E. 33rd Avenue Ft. Lauderdale, Florida 33308
The Issue Whether Respondent's permit to operate a pharmacy should be suspended or revoked for alleged violations of Sections 465.22(1)(c), 465.18(1)(b), 465.18(2)(b) F.S., and Rule 21S-1.14 F.A.C. At the hearing, Petitioner withdrew Count-I of the Complaint. Respondent's Motion To Dismiss Counts II and III of the Complaint at the conclusion of Petitioner's case in chief was denied.
Findings Of Fact Respondent presently holds and did so hold at the time of the events alleged in the Complaint a permit to operate a pharmacy issued by Petitioner (Stipulation.) Prior to the events alleged in the Complaint, Petitioner's agent, Vernon K. Bell, an inspector, obtained an authentic prescription from another pharmacy that had not been picked up by a customer, for use in investigations of other pharmacies. The prescription was issued by Dr. George A. Fernandez, Miami, Florida, Number 012194, dated December 11, 1975, to Fela Rivias and was for twenty-one tablets of Erythrocin, 250 miligrams. Erythrocin is an antibiotic prescription drug used for various infections (Testimony of Bell, Petitioner's Exhibit 1.) On December 19, 1975, Bell visited Respondent's pharmacy and observed that the door to the prescription area was unlocked. On December 22, 1975, at approximately 3:30 P.M., Reynaldo Santiago, another agent of the Board of Pharmacy, entered Respondent's pharmacy with the prescription referred to in paragraph 2 above that had been given to him by Bell. Santiago gave it to the cashier to be filled. He observed her go to the prescription department, open a door, and place the prescription on a counter. He then observed Hildelisa Hernandez go to the prescription department and start filling the prescription. Thereafter, Ms. Hernandez, accompanied by Mr. Jose E. Valdez, came out of the prescription area and Hernandez gave a pill bottle to the cashier. The cashier in turn gave it to Santiago for the price of $3.95 or $4.00. The bottle contained 21 tablets and a label affixed thereon contained pertinent information as set forth in the prescription that Santiago had given to that cashier, including the name of the drug, doctor, prescription number and name of patient (Testimony of Santiago, Petitioner's Exhibit 2.) Santiago took the bottle of pills outside and then he and Bell re- entered the Pharmacy. Bell identified himself to Mr. Valdez and asked him who was his registered pharmacist and if he had a pharmacist on duty. Mr. Valdez stated that Hal Glass was his pharmacist, but that he had left the store at 2:00 P.M. Bell then asked Valdez if he had filled the prescription which Santiago had taken into the store and, after some hesitation, Bell asked Hernandez if she had filled it. She replied in the affirmative. She stated that she was not a licensed pharmacist in Florida, but had been a pharmacist in Cuba. Bell then wrote a violation and left the store. Neither he nor Santiago recalled seeing a sign indicating that the prescription department was closed on December 22 (Testimony of Bell, Santiago.) Jose E. Valdez testified that although he formerly had two pharmacists at his previous pharmacy, in August or September of 1975 he was forced to cut back to one part-time pharmacist because of the bad economic situation. He conceded that Ms. Hernandez was not a registered Florida pharmacist. He also stated that he was not aware of the rules requiring that the prescription department be locked when no pharmacist was present until this incident occurred and that, in fact, the door to the prescription area had not been locked although a sign indicating that the prescription department was closed had always been used. He further testified that on February 1, 1976, he hired a full-time pharmacist who is present at all times when the pharmacy is open and that the prescription department is now always locked when she is not present.
Recommendation That a civil penalty in the sum of $250.00 be imposed against Respondent in lieu of suspension or revocation of its permit, for violation of Section 465.18(1)(b), Florida Statutes, and Rule 21S-1.14, Florida Administrative Code DONE and ENTERED this 26th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Stanley Kaplan, Esquire 404 Biscayne Building Miami, Florida Seymour M. Litman, Esquire 10 Northwest 14 Avenue Miami, Florida 33125
Findings Of Fact The Petitioner is the Department of Professional Regulation, Board of Pharmacy. Petitioner seeks to suspend, revoke or take other disciplinary action against the Respondents. Respondent BGJM, Inc. (hereinafter "Save-on Drugs") holds Permit No. 7171 located at 4282 North State Road 7, Lauderdale Lakes, Florida. Save on Drugs has held said permit at all times material hereto. Respondent Robert E. Levy holds Pharmacy License No. 0017283 and has held said license at all times material hereto. Respondent Levy operated Save on Drugs as the sole proprietor and is the only pharmacist employed at the aforementioned store. Respondent Levy, while working at Save on Drugs, between the dates October 16, 1981 and April 2, 1982, dispensed approximately 139,000 Methaqualone tablets on 3,136 prescriptions. Respondent Levy ceased dispensing Methaqualone tablets approximately three (3) weeks prior to the institution of Petitioner's investigation of Respondent Levy's dispensing of controlled substances. The Respondent dispensed, over a three-month period, some 57,250 units of Methaqualone on behalf of one practitioner, a Dr. Lena. A specific breakdown of Dr. Lena's prescribing activity for part of the relevant period is as follows: DATE PHARMACY DRUG AMOUNT SCRIPT 12/14/81 Save-On Quaa-300 mg. 630 14 12/15 Save-On 720 16 12/16 Save-On 495 11 12/17 Save-On 765 17 12/18 Save-On 1,440 32 12/21 Save-On 945 21 12/22 Save-On 1 x 30 mg. 675 15 12/23 Save-On incl. 1,080 24 12/24 Save-On 1,215 27 12/28 Save-On 1,035 23 12/29 Save-On 1,305 29 12/30 Save-On 1,575 35 12/31 Save-On 1,305 29 Totals 13,185 293 The numerous prescriptions introduced into evidence by the Petitioner reflect circumstances where Respondent Levy failed to properly initial and date Schedule II prescriptions as they were filed. As example, Petitioner offered the following: prescription Nos. 48854, 48052, 50189, 48068, 48856, 48912 and 48905. Louis Fisher 2/ , an employee of the Department of Justice, Drug Enforcement Administration, since approximately November, 1971, has been involved with the regulation of controlled substances. Mr. Fisher works with doctors as well as pharmacists at the retail level. Mr. Fisher is a registered pharmacist and has been charged with drafting regulations for controlled substances. Without question, Methaqualone is a Schedule II drug and is a sedative and hypnotic agent. The drug has a high abuse potential. During the summer of 1982, Methaqualone was changed from Schedule II to a Schedule I controlled substance. After being provided with a hypothetical situation giving the number of prescriptions that Respondent Levy had filled during the time period involved, Mr. Fisher concluded that a pharmacist filling the number of prescriptions within the time period as is here involved by Respondent Levy was, in Mr. Fisher's opinion, unprofessional, excessive, outside the course of good professional practices, and not conduct amounting to professional practice in the patients' best interest. 3/ Dr. Lena was employed by Northeast Medical Services, a stress clinic. In this regard, the parties stipulated that all the prescriptions involved herein were written by a licensed medical doctor. Daniel O'Connell, an investigator with the Department of Professional Regulation, visited the Respondent's store during approximately October 1981, and performed a routine change of ownership inspection. At that time, Respondent Levy engaged in a conversation with investigator O'Connell at which time Respondent Levy was apprised of the problem with respect to dispensing Methaqualone in the south Florida area. Jim R. Golden, an investigator with the Department of Professional Regulation since approximately September 1981, visited Respondent Levy's store during April 1982, to perform a routine inspection to determine the amount of Schedule II drug prescriptions that Respondent was filling. Investigator Golden reviewed a large number of prescriptions that were filled by Respondent for Dr. Lena and inquired of Respondent the reason for dispensing such a large number of prescriptions for Methaqualone tablets. Respondent Levy replied that it was the "money end of it" and that he (Respondent) could fill six (6) Methaqualone prescriptions and do better with those prescriptions from a profit viewpoint than he could with the remainder of his other prescribing activities in the store for the remainder of any given day. Further, Respondent related that he hand to do extensive repairs to make the store operational. (Testimony of Investigator Golden)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent BGJM, Inc.'s Permit No.7171 be REVOKED. That Respondent Robert E. Levy's Pharmacy License No. 0017283 be placed on probation for a period of two (2) years. RECOMMENDED this 12th day of May, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 12th day of May, 1983.
The Issue The issues are whether Respondent failed to maintain an accurate medication record relating to narcotic medications in violation of Section 400.419(1)(b), Florida Statutes, and Rule 58A-5.0185(3)(b), Florida Administrative Code; and if so, what penalty should be imposed.
Findings Of Fact Petitioner has authority to license assisted living facilities (ALFs) and the duty to enforce all statutes and rules governing such facilities. Respondent is a licensed ALF with a total capacity for 35 residents. Respondent's License No. AL5888 is effective March 20, 2002, through March 19, 2004. On January 31, 2002, Petitioner completed a biennial survey of Respondent's facility. During the survey, Petitioner's staff observed Respondent's staff administering medication to six residents who needed medication assistance. Resident No. 6 received a narcotic medication, in tablet form, that she was supposed to take by mouth three times daily, as needed, for pain. The medication is addictive and may be obtained only by prescription. The prescription bottle at issue here indicated that it was filled on January 21, 2002, with 100 tablets. There is no other evidence regarding the number of tablets in the bottle when it arrived at Respondent's facility. Respondent did not count the tablets in the bottle upon receiving it from the pharmacy. Resident 6's MOR showed that she received the narcotic tablet three times daily, everyday, with no missed doses during the time period at issue here. According to the MOR, Resident 6 received a total of 32 doses of the medication beginning January 21, 2002, at 7:00 a.m. through January 31, 2002, at 12:25 p.m. However, the bottle contained only 54 tablets as of January 31, 2002, at 12.25 p.m. Respondent's staff could not explain or account for the 14 missing narcotic tablets. Under cover of a letter dated February 12, 2002, Petitioner advised Respondent that the biennial survey had identified a Class II deficiency relative to Resident 6's medication administration. The letter requested Respondent to file a plan of correction within ten days. Resident 6's narcotic medication was refilled on February 19, 2002, with 100 tablets. As of March 8, 2002, Resident 6 had 51 pills remaining in the new prescription bottle. On March 8, 2002, Petitioner's staff conducted a follow-up visit to Respondent's facility. The count of tablets in Resident 6's narcotic medication prescription bottle, when compared to the MOR, was correct at that time. Under cover of a letter dated March 15, 2002, Petitioner advised Respondent that the previously cited deficiency had been corrected.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2002. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Alvin L. Peters, Esquire 25 East Eighth Street Panama City, Florida 32401 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact At all times material hereto Respondent has been licensed as a pharmacist having been issued license number 0015784. Respondent's license was previously suspended for a period of five (5) years by Final Order of the Florida Board of Pharmacy on June 15, 1984 in Case Number 0036893. In that prior case Respondent admitted to self medicating herself with controlled substances in violation of Section 465.016(1)(d)2, Florida Statutes. Respondent's license is therefore currently under suspension and has been suspended since June 15, 1984. Respondent was hospitalized at Shands Teaching Hospital in June, 1984 by George W. Sypert, M.D., for back and chest pains resulting from an automobile accident in May, 1983. This was Respondent's second hospitalization for treatment resulting from the accident. While hospitalized Dr. Sypert performed surgery on Respondent who was also attended by J. Marc Simard, M.D., a resident at the time. It was Dr. Simard who prepared the discharge summary on Respondent on June 19, 1984 and also wrote a discharge prescription for 10 Percodan which were to be taken one every six hours for severe pain remaining from the surgery which Dr. Sypert had performed. Both Respondent and her husband, George W. Bowen, were under the belief that Respondent would be "adequately medicated" for pain after her operation and upon her discharge. Mr. Bowen was formerly a licensed pharmacist in Florida, but his license has been revoked due to violations involving controlled substances. Mr. Bowen was extremely frustrated and concerned about the pain his wife was suffering and did not feel that 10 Percodan would be sufficient for her discharge. The Percodan prescription was given to Mr. Bowen who admitted during his testimony that he altered the prescription by adding a zero so that the prescription was then for 100 Percodan. Respondent never saw the prescription before or after it was altered, and her husband did not tell her what he had done. Mr. Bowen took this action out of concern for his wife and the pain she was suffering, and he did not take any of the Percodan himself. He had attempted to contact Dr. Sypert to request an increase in the prescription when he saw that Dr. Simard had written it for only 10 Percodan, but he was unsuccessful. Mr. Bowen presented the altered prescription at Eckerd's Drugs on June 20, 1984 and Russell Blaser, a licensed pharmacist, filled the prescription with 100 Percodan, which was paid for by Mr. Bowen and given to Mr. Bowen. Respondent was with her husband when he filled the prescription, but was almost immobile, having just been discharged. Blaser called Dr. Simard after he had filled the prescription to advise Dr. Simard that, due to Respondent's previous drug dependency, he felt that any further prescriptions should be for a lesser amount. It was at this time that Dr. Simard said the prescription he had written was for only 10 Percodan, not 100. Respondent was arrested on or about June 22, 1984, for obtaining a controlled substance by fraud. Following the arrest she learned for the first time that her husband had altered the prescription, and she thereupon destroyed the remaining Percodan.
Recommendation Based upon the foregoing, it is recommended that the Board of Pharmacy issue a Final Order dismissing these charges against Respondent. DONE and ENTERED this 5th day of November, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 1985.' APPENDIX Adopted in Finding of Fact 1. Rejected in Findings of Fact 3 and 4. Adopted in Findings of Fact 2 and 6. Rejected in Findings of Fact 3, 4 and 7. Rejected as a conclusion of law which is not based on evidence in the record. COPIES FURNISHED: Rod Presnell, Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Deborah S. Bowen 1033 N.E. 8th Avenue Gainesville, Florida 32601 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues posed for decision herein are whether or not the Respondent, Michael Hornstein, registered pharmacist, individually and as owner/operator of Rolette Drugs, Inc., d/b/a Curtiss Pharmacy, has engaged in conduct which will be set forth hereinafter in detail which warrants disciplinary action by the Board of Pharmacy. 1/
Findings Of Fact Based upon my observation of the witness and his demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found. Michael Hornstein is a registered pharmacist and is the owner/operator (licensee) of Rolette Drugs, Inc., d/b/a Curtiss Pharmacy. Pursuant to a Complaint and Notice to Show Cause filed December 20, 1979, 2/ against Respondent, individually and as owner/operator of Curtiss Pharmacy, the subject administrative hearing was convened to consider allegations that the Respondent, as alleged in the Complaint and Notice to Show Cause, permitted the keeping of improper records, in that he failed to maintain current and accurate records of scheduled controlled substances during the period January 1 through November 30. Pursuant to information furnished by the Drug Enforcement Administration (DEA) in Miami, Florida, a drug accountability audit was performed at Curtiss Pharmacy covering the period January 1 through November 30. The subject audit covered the controlled drugs, Quaalude, Dilaudid, Biphetamine, Tuinal and Desoxyn. Vernon K. Bell, the investigative supervisor for Region V investigative services (Miami, Florida), conducted the drug accountability audit of Curtiss Pharmacy by conducting an on-site review and reconciliation of Respondent's scheduled drug purchases and prescription files respecting the subject drugs. Investigator Bell started the audit period with a beginning inventory for the subject drugs of zero, making no allowances for drugs the Respondent had on hand on January 1. Investigator Bell also allowed Respondent a credit for those scheduled drugs claimed to have been lost due to thefts and robberies. Respondent introduced records which revealed that as a result of robberies of the pharmacy on February 5 and September 26, approximately two hundred (200) Biphetamine capsules and three hundred (300) Quaalude tablets were taken. Examination of the drug accountability report reveals that during the audit period, from total purchases of approximately ten thousand six hundred (10,600) Quaalude 300 mg tablets, Respondent was short approximately eight thousand six hundred nine (8,609) tablets when the drug report was completed for the audit period on December 7 by Investigator Bell. For the scheduled drug, Dilaudid four mg tablets, of total purchases of one thousand four hundred (1,400) tablets, Respondent was short one thousand two hundred eighty (1,280) tablets as of the audit period ending November 30. Biphetamine 20 mg capsules were short approximately one thousand six hundred fourteen (1,614) tablets from total purchases of two thousand three hundred (2,300) tablets during the audit period. Allowing for adjustments, there is still an outstanding shortage of approximately one thousand three hundred fourteen (1,314) Biphetamine capsules. Of total purchases of two thousand (2,000) Tuinal three gram capsules, Respondent's records revealed a shortage of approximately one thousand eight hundred sixty-four (1,864) capsules. Finally, of seven hundred (700) Desoxyn 15 mg tablets, Respondent's records reflect a shortage of six hundred forty (640) tablets. (Petitioner's Exhibit 1 and testimony of Vernon K. Bell.) 3/ RESPONDENT'S DEFENSE Respondent introduced exhibits which substantiated that Respondent's pharmacy was robbed on at least two occasions and police incident reports were completed, as well as DEA controlled drug loss forms to substantiate Respondent's claimed loss for the subject drugs, Biphetamine and Quaalude. Allowances were made herein for the claimed losses. (Respondent's Composite Exhibits 1 through 5.) Thereafter, Respondent invoked the Fifth Amendment privilege based on the claimed pendency of other criminal litigation. Respondent also allowed that the instant administrative proceedings herein should have been abated based on the pending or imminent criminal proceedings involving the subject drug losses by DEA. Respondent requested leave to supplement the record at such time as immunity is granted or jeopardy is removed when the related criminal proceedings have been terminated. This request was considered and denied based on the undersigned's conclusion that the Petitioner is authorized and is in fact duty bound to proceed as the regulating agency charged with protecting the public. See Schwartz v. Florida Board of Pharmacy, 302 So.2d 423 (1DCA 1974), cert. denied, 314 So.2d 151 (,Fla. 1975). Finally, Respondent questioned the accuracy of the audit based on the adjustments made when the police incident and DEA 106 forms were presented. Respondent also claimed that there was a possibility that there should be an additional downward adjustment of approximately nine hundred (900) Quaalude tablets. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's license to practice pharmacy and permit to operate a pharmacy in this State be SUSPENDED FOR A PERIOD OF TWO (2) YEARS. RECOMMENDED this 16th day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact At all times relevant hereto, petitioner, Maurice C. Guest, held license number ME0005036 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. Said license authorized Guest to practice medicine and surgery in the State of Florida. He has held the license since August 13, 1952. Dr. Guest presently practices medicine at 825 West Linebaugh Avenue, Tampa, Florida. Dorothea Lankford was a patient of Respondent for almost ten years. Among other things, she had suffered from headaches and stomach pains during that period of time. For these ailments, Guest prescribed Nubain and Vistaril, which are used to relieve moderate pain and nausea. A detailed listing of the prescription dates, script, quantity and type of drug, and pharmacy dispensing the drugs is found in Petitioner's Exhibit 17 received into evidence. In 1979 and 1980, Lankford provided midwife services in the Lutz, Florida area. However, she held no licenses from the State to provide any type of medical care. Most of Lankford's clients were members of a local Jehovah's Witness Church. Although the services were to be provided without charge, at least one client paid Lankford a small fee. The prenatal care consisted of weekly meetings at Lankford's mobile home where Lankford discussed all aspects of having a home delivery. The clients were given physical examinations, breathing exercises, suggested diets, and were administered B-12 shots from time to time. On an unknown number of occasions, Lankford administered other drugs, including Nubain and Vistaril, to treat clients suspected of having miscarriages. No doctors were in attendance at these meetings or to supervise the administering of drugs. In May, 1980, Brenda Crall, one of Lankford's clients, visited Dr. Guest for a physical examination. The appointment had been prearranged, although it was not disclosed by whom. There was no discussion between Crall and Guest that Lankford was going to provide a home delivery for Crall, although Guest recommended she not have one. He also made clear that he would provide no care other than the physical examination given that day. In October, 1980, Kathleen Streeter, also a client of Lankford, visited the office of Dr. Guest to have a physical examination. Lankford was in the examination room when the examination was given. However, there was no discussion between them to indicate that Guest was providing oversight care to Lankford's clients to sanction the activities of Lankford. Although the clients were under the impression that medical records of each client had been prepared by Dr. Guest, and that either Guest or some other physician was overseeing the activities of Lankford, there was no competent testimony or documentation to support their belief. Neither was there any evidence to show that Lankford and Guest had entered into some type of agreement whereby she referred patients to Guest on a one-time basis to sanction her unlicensed activities or that Guest delegated professional responsibilities to Lankford. On April 23, 1980, Brenda Crall and Kathleen Montane, another of Lankford's clients, were attending a meeting at Lankford's home when two other women began experiencing premature labor pains. Lankford injected one with Nubain and Vistaril but had nothing to give the other. Crall, Montane and Lankford's son then went to Respondent's office to pick up a prescription for Lankford. They carried an empty vial of Vistaril so that Guest would know the type of drug needed. Guest gave them a new vial of Vistaril which he had in his office and wrote a prescription for Nubain in Lankford's name. The evidence is conflicting as to whether it was explained to Guest that the prescriptions were for two of Lankford's clients. The actual visit took no more than one or two minutes, and both women admitted they were quite excited and in a hurry at the time. They acknowledged that before Guest dispensed the drug and wrote a prescription he asked whether Lankford was suffering from a headache. Accordingly, it is found that Guest believed the drugs were to be used by Lankford, and not to be administered by Lankford to unknown third persons. Crall and Montane then filled the prescription for Nubain and gave both drugs to Lankford. Lankford later used the drugs to treat her client. Mary Ellen Odom was a patient of Dr. Guest between September, 1978 and October, 1980. Among her various ailments were an incarcerated incisional hernia, a previous head injury to the brain which caused recurring pain, hypertensive cardiovascular disease, arthritis and herpes of the vagina. Because Guest wished to alleviate the considerable pain caused by the various ailments, and to keep her in an ambulatory condition, he prescribed a number of drugs while treating her as a patient, including Talwin in an injectable form. An injectable form was used in lieu of a tablet since she had an intolerance to certain oral medications. However, Odom received the drug as an out- patient and was therefore able to inject herself. Between September 27, 1978 and November 21, 1980 Odom obtained approximately 168 prescriptions written or telephoned in by Guest to Boulevard Drugs, located at 227 East Davis Boulevard, Tampa, Florida. A detailed list of the dates, script, drug, quantity and quantity filled is found in Petitioner's Exhibit 16 received into evidence. The druggist at Boulevard Drugs became concerned with Odom's use of Talwin, particularly after Odom administered herself an injection at the drug counter. The druggist talked by telephone with Guest on a number of occasions and told him that he believed Odom was abusing the drug. On May 17, 1980, he made the following notation on the bottom of one of Odom's prescriptions: "Dr. aware of abuse". Despite these warnings Guest continued to give Odom prescriptions for injectable Talwin for at least six more months. He was also aware that Odom had been previously addicted to Demerol, a pain-killing narcotic drug. Dr. Guest "regrets" giving Odom the amount of drugs that he did, but did so because he believed the woman was in constant pain, and because he did not initially believe Talwin to be an addictive drug. He has subsequently changed his opinion on the addictive nature of Talwin based on literature that warns of the addictive characteristics of the drug. A physician-member of the Hillsborough County Utilization Review Committee examined the medical records of Odom, together with the amount of drugs prescribed, and concluded that the amount of injectable Talwin prescribed by Guest to Odom was "excessive", given her medical condition. He also concluded that while her ailments may have justified the use of Talwin in an oral form, there was no basis to prescribe Talwin in an injectable form, particularly on an outpatient basis. In reaching that conclusion, the physician was unaware of any impediment to Odom using Talwin in a tablet form. He acknowledged that Talwin tablets could cause nausea and vomiting while the injectable form does not, and that under certain circumstances the latter form might be preferable, although not in the magnitude prescribed by Guest. Based upon his review of the records, he concluded Guest did not practice medicine with the level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances acceptable, nor did he conform with generally prevailing standards of the medical community in his care and treatment of Odom. Respondent also treated Bernetha Cunningham as a patient for approximately twenty-two years. In 1976, Cunningham developed symptoms which were consistent with rheumatoid arthritis. After trying several medications which were unsuccessful, he began prescribing Talwin compound to ease her pain. He instructed her to take two tablets every four hours, or a total of twelve per day, which resulted in a daily dosage of 180 milligrams. At that time, he did not consider Talwin compound to be an addictive drug. He also prescribed Valium to relieve Cunningham's anxiety and to relax her muscles. Petitioner's Exhibit 15 received in evidence reflects that during the period between January 13, 1976, and February 5, 1979, Guest wrote prescriptions for 3,460 Valium tablets with authorization for 2500 tablets on refill, and 2,800 Talwin compound tablets with authorization for 2,200 tablets on refill. However, the last time he treated her as a patient was in December, 1977, at which time he advised her that he would not prescribe any more medicine. The evidence is conflicting as to whether Guest continued to telephone in prescriptions after that date, but it is found that Cunningham continued to refill her prescriptions in Dr. Guest's name after December, 1977, without his knowledge and consent. On February 1, 1979, Cunningham was examined by another Tampa physician (now deceased) whose specialty was psychiatry. In a deposition given prior to his death, he diagnosed her as having reactive depression and arthritis. He also concluded she displayed symptoms of being addicted to Talwin vis a vis Talwin compound, and that the drugs had been prescribed in dosages that would tend to addict the patient. In reaching these conclusions, the physician made no distinction between Talwin and Talwin compound, although the latter is a much less profound form of the drug. His examination was also conducted some fourteen months after Mrs. Cunningham had last been treated by Dr. Guest, and been given a prescription for drugs. In December, 1978, the Cunninghams filed a civil action against Respondent alleging that Respondent had been negligent in his treatment of Cunningham by prescribing an excessive level of central nervous system depressants. After being initially dismissed, the suit was refiled in April, 1979, and was ultimately settled out-of-court when Guest paid the Cunninghams $6,200. Guest represented himself in the initial stages of the suit, and only after a default summary final judgment as to the issue of liability was entered did he obtain counsel. Guest settled the case on advice of counsel since he had no malpractice insurance and would have incurred substantial legal fees had the case gone to trial on damages alone and then been appealed on the issues of liability and damages. A physician-member of the Hillsborough County Utilization Review Committee examined the medical records of Cunningham and concluded that Guest prescribed too great an amount of analgesics, sedatives and tranquilizers, and too little medication to counteract Cunningham's arthritic condition. He also concluded Guest failed to conform to generally prevailing standards of the medical community in his care and treatment of Cunningham, and failed to practice medicine with the level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. Talwin is a controlled substance under Chapter 893, Florida Statutes. It is prescribed for relief of moderate to severe pain and is commonly referred to as an analgesic. The drug comes in various forms, including tablet, injectable and compound form. The latter form contains the least amount of Talwin in terms of milligrams. Its addictive characteristics were not recognized until approximately 1978 when reference to this was made in the Physicians' Desk Reference (PDR). The PDR provides that the maximum daily dosage should not exceed 600 milligrams, although the tolerance level will differ from individual to individual. Valium is also currently classified as a controlled substance pursuant to Chapter 893, Florida Statutes. It is used primarily as a tranquilizer although it has some muscle relaxant qualities. If given in sufficient quantity over time, a user may become addicted to the drug. Respondent was subjected to disciplinary action by the Board of Medical Examiners in 1978. In that action he was placed on probation for three years. Among the conditions of probation was the following: The licensee shall, during this probation period, demonstrate the type of exemplary conduct expected and required of a duly licensed physician in this State. If the licensee fails to meet the moral and professional standards expected of a duly licensed physician, said probationary order will be vacated and the licensee will be subject to further disciplinary action by the Board. In 1981, the probationary period was extended until August, 1982, presumably because of the case at bar. Respondent did not intentionally violate the law. While he wrote or telephoned an unusually large number of prescriptions for Odom and Cunningham, he believed that both patients were experiencing pain, and that the drugs were needed to aid them. However, because the patients were poor, could afford only one Medicaid trip per month to his office, and could not drive, Dr. Guest attempted to authorize a sufficient number of refills between office visits. In this respect, he was lax in failing to control the actual number of drugs obtained by the patients. Nonetheless, there were no monetary rewards or motivation in writing the prescriptions. Dr. Guest was portrayed by character witnesses as a sincere and dedicated practitioner. He has practiced medicine in Tampa, Florida, for almost thirty years. Although he suffered a heart attack in early 1980, he continues to work long hours. He is not motivated by the financial rewards of practicing medicine, for he has frequently accepted patients requiring medical care but who were too poor to pay the bill. There was no evidence that Respondent has any drinking or drug problems.
Recommendation Based on the foregoing findings of fact, and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts XIV, XV, XVII, XIX, XX and XXII. All other counts should be dismissed. It is further RECOMMENDED that Respondent's probation be extended for an additional seven years during which time he not be allowed to write prescriptions for scheduled controlled substances without such supervision and approval as the Board may require. DONE and ENTERED this 23rd day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of June, 1982.
