The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed, against his license to practice medicine in the State of Florida.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed to practice medicine in the State of Florida, having been issued license number ME 0003174. Respondent, who was first licensed to practice medicine in the State of Florida in 1946, retired in 1984 and his license was soon thereafter placed on an inactive status. Respondent is registered with the Drug Enforcement Agency, DEA # AP 0114087, authorizing Respondent to issue controlled substances in Coral Gables, Florida. In June 1987, Respondent resided in or near Franklin, North Carolina. Respondent is not licensed to practice medicine in the State of North Carolina, and he is not authorized to issue controlled substances in the State of North Carolina. On or about June 8, 1987, Respondent authorized Kenneth Leon Murphy, a pharmacist who at that time worked at the Revco Pharmacy in Franklin, North Carolina, to fill a prescription for acetaminophen with codeine and to dispense the same to Respondent. Codeine is a controlled substance as defined by the provisions of Chapter 893, Florida Statutes. This prescription was filled on June 8, 1987, by the Revco Pharmacy in Franklin, North Carolina and picked up by Respondent that same day. On June 11, 1987, Respondent wrote a prescription for chloral0 hydrate to be dispensed to himself. Respondent listed his Drug Enforcement Agency number on the prescription. Respondent had the prescription filled by Mr. Murphy at the Revco Pharmacy in Franklin, North Carolina where he personally picked up the prescription. Chloral hydrate is a controlled substance as defined by the provisions of Chapter 893, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a final order which finds that Respondent violated the provisions of Section 458.331(1)(q),(r), and (v), Florida Statutes, which reprimands Respondent for these violations, and which places Respondent's licensure on probation for a period of one year. It is recommended that no administrative fine be imposed in consideration of the mitigating factors presented by this case. DONE AND ENTERED this 22nd day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 3670 The proposed finding contained in paragraph ten of the Petitioner's proposed recommended order that Respondent's license is delinquent is rejected as being unsubstantiated by the evidence. The remaining proposed findings of fact submitted on behalf of Petitioner are adopted in material part by the Recommended Order. COPIES FURNISHED: Andrea Bateman, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William S. Piper, Sr., M.D. 1019 Malaga Avenue Coral Gables, Florida 33134 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth B. Basley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Jimmy Franklin Pinion, L.P.N., holds License No. 42845-1, as a Licensed Practical Nurse. Respondent was employed as a private duty nurse caring for Elsie B. Allen, a ninety-three-year-old woman, during the period April, 1978, through September 11, 1978, when he was dismissed for alleged physical abuse of Mrs. Allen and for alleged possession of controlled substances, to-wit: Valium and marijuana, on or about August 15, 1978. The Complaint alleges that on or about September 9, 1978, Respondent slapped Mrs. Allen twice on her forehead, resulting in bruises to the forehead. Concluding the Complaint alleges that the Respondent is guilty of unprofessional conduct in violation of Florida Statutes Subsections 464.21(1)(b) and (d). Anna Marie Snyder, an L.P.N. in Florida since approximately 1971, testified and expressed her familiarity with the Respondent since his employment with Mrs. Allen. Snyder testified that Mrs. Allen employed three round the clock nurses, one of whom was the Respondent, Jimmy Franklin Pinion. Ms. Snyder testified that she occasionally stayed at Mrs. Allen's home and that while so doing, she used a back bedroom which the Respondent also used occasionally. She testified that a problem arose with respect to a suspicion that some brownies had been placed in the refrigerator which were laced with marijuana. According to Ms. Snyder, the Respondent made the brownies and brought them to Mrs. Allen's home. Ms. Snyder also testified that she discovered marijuana in the back bedroom and that she brought the matter of the marijuana-laced brownies to the attention of Mrs. Allen's two nephews. According to Ms. Snyder, Respondent stressed the fact that Mrs. Allen had to be taken care of "firmly." On cross- examination, Ms. Snyder testified that the Respondent admitted that the brownies which were in a bag in the back bedroom belonged to him and that Respondent admitted that he had struck Mrs. Allen with a cane. Ms. Snyder's testimony is that bags of marijuana were found in a closed used by the Respondent, wherein crocheting and other personal items belonging to Respondent were located. She testified that vials of other drugs were confiscated by Mrs. Allen's attorney on or about September 11, 1978. Lorraine Clark Ruskin, an L.P.N. licensed for more than twenty-eight years, was also employed by Mrs. Allen as a private duty nurse. Ms. Ruskin testified that on August 15, 1978, she, along with Ms. Snyder, visited Respondent's rear bedroom where Respondent showed her marijuana in the rear bedroom. Approximately April 28, 1978, Ms. Ruskin had some photos taken which were introduced into evidence over the objections of Respondent's counsel. (Petitioner's Exhibits 1 through 5.) According to Ms. Ruskin, Respondent and a friend of his allegedly hit Mrs. Allen on her forehead, causing bruises, on or about September 9, 1978. Attorneys Carl Hiassen and G. Ware Cornell, Jr., visited the Allen's home on the morning of September 11, 1978, and dismissed the Respondent from Mrs. Allen's employ for alleged patient abuse and possession of drugs. Ms. Ruskin testified that she took Mrs. Allen to a psychiatrist who diagnosed Mrs. Allen as being incompetent to handle her own affairs due to an organic brain syndrome caused by generalized arterioscleriotic cardiovascular disease. (Respondent's Exhibit 2.) She testified that Mrs. Allen had a history of falling and that the subject incident, which gave rise to the bruises, occurred approximately September 10, 1978. She testified that the Respondent was terminated on September 11, 1978, when bruises were found on Mrs. Allen's forehead. G. Ware Cornell, Jr., an associate of Attorney Carl Hiassen, visited Mrs. Allen's home on September 11, 1978, for the purpose of terminating the Respondent. The reasons given for the termination were "unsatisfactory performance and suggestion of drug possession." Attorney Cornell testified that he visited the back bedroom where the Respondent stayed while at Mrs. Allen's home and discovered what appeared to be Valium, marijuana and other drugs. Attorney Cornell testified that when the Respondent was terminated, he was told to return all keys to the Allen's home that were in his possession. Carl A. Hiassen, Esquire, has been representing Mrs. Allen since World War II and visited the Allen's residence on September 11, 1978, for the express purpose of preparing a termination notice for the Respondent. He testified that he discovered drugs in a bedroom which he was told was being occupied by the Respondent. He testified that he made a list of the substances which he considered to be drugs and gave it to Mrs. Markowitz, Petitioner's representative in the Fort Lauderdale area. Attorney Hiassen testified that he retained custody of the drugs until approximately January of 1979, at which time there were given to Mrs. Markowitz. Mrs. Markowitz later turned the substances over to the Broward County Sheriff's office for chemical analysis. According to Mrs. Markowitz, the substances were analyzed by John T. Pennie, a forensic chemist for the Broward County Sheriff's office Crime Laboratory. Neither the substances nor the person performing the analysis appeared at the hearing to testify with respect to the identify of the substances. Respondent appeared at the hearing and testified that he had a prescription for Valium and, to the best of his recollection, he only had one or two tablets remaining from a prescription which he had filled sometime ago. Respondent denied having in his possession marijuana or any other controlled substance prescribed by Chapter 893, Florida Statutes. Respondent testified that Mrs. Allen had a problem signing blank checks for a Mrs. Carr who had taken approximately $40,000 from Mrs. Allen. Additionally, Respondent testified that Mrs. Allen never called him by his name. He testified that he contacted Mr. Hiassen's office to report the fact that Mrs. Allen was signing blank checks and the funds were diverted for the purposes for which they were intended by Mrs. Allen. Mrs. Allen did not testify at the hearing allegedly due to her physical condition.
Conclusions Due to the hearsay nature of the identity of the substances analyzed by the Crime Laboratory, the undersigned is unable to conclude that the Respondent had possession of drugs or other prescribed substances in violation of Chapter 893, Florida Statutes, as alleged. Among other things, there were problems with the chain of custody from the Allen's residence to the Crime Laboratory and the fact that at least one other nurse shared the same room in which it is alleged that the Respondent allegedly stored Valium and marijuana. Finally, the Respondent emphatically denied that he struck Mrs. Allen and the only testimony to refute this denial was heresay and thus falls within the proscriptions of Section 120.58, Florida Statutes. In view thereof, I shall recommend that the Administrative Complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine B. Johnson, R.N. Department of Professional Regulation Board of Nursing Suite 504, Richard P. Daniel State Office Building 111 East Coast Line Drive Jacksonville, Florida 32202 Julius Finegold, Esq. 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Roger D. Haagenson, Esq. Suite 601, Cumberland Building 800 East Broward Boulevard Fort Lauderdale, Florida 33301
Findings Of Fact Maurice Hedge, M.D., is licensed by the Board of Medical Examiners of the State of Florida as a medical doctor and was so licensed at all times relevant hereto. Mrs. Renate Hall was a patient of Respondent from late 1977 until early 1979 during which time she saw him approximately bi-monthly. During this period Mrs. Hall, who was born in Germany and came to America as the wife of a U.S. serviceman, was widowed, out of work, and in poor financial circumstances. Respondent was very gallant, often kissed Mrs. Hall's hand and stroked her arm or hair when she came to his office. Several times he offered to take her to dinner, which offer she did not accept. He did not bill her for the visits. Her last visit to Respondent's office was to have her son's flu virus treated. After examining Mrs. Hall's son, Respondent came out of the examining room and told Mrs. Hall to come into his office while he wrote a prescription. He closed the door to the office, came close to Mrs. Hall, grabbed her breasts and made moaning and groaning sounds. She pushed him away and departed the office, very upset; never to return. No evidence was presented that Respondent is or was in any way mentally impaired. During the period 6-29-79 through 4-17-80 Respondent called in 12 prescriptions to Walgreen's Drug Store, Cocoa, for Class IV controlled substances, Fastin, Talwin, Valium and Premarin for patient Mabel DeVoe (Exhibit 6). A lady known at Walgreen's as Mabel DeVoe picked up these prescriptions. Mabel DeVoe and Geneveive Hodge, the wife of Respondent, are the one and the same person. Exhibit 20 is a list of prescriptions written by Respondent for his wife for controlled substances, primarily Fastin and Talwin, during the first nine months of 1980. These prescriptions were filled at Campbell's Pharmacy, Rockledge, Florida. In the affidavit of Mabel DeVoe (Exhibit 7) she states that she works for Dr. and Mrs. Hodge, and picked up prescriptions made out to Mabel DeVoe and turned the drugs over to Mrs. Hodge. The fact that Respondent was writing prescriptions for Fastin and Talwin for Geneveive Hodge at the same time he was calling in prescriptions for Fastin to be issued to Mabel DeVoe, either a fictitious person or an alias for Mrs. Hodge, shows an intent to deceive by Respondent while participating in this charade. During an audit of Respondent's controlled substances record by the Federal Drug Administration inspectors some two thousand tablets of controlled substances dispensed by Respondent were unaccounted for. Respondent stated to the inspector that most of these unaccounted-for drugs had been dispensed by him rather than administered. When advised of the shortages Respondent made no effort to show that these drugs had been administered, by providing the patients' records to whom he may have administered the drugs. In view of Respondent's admission that these drugs had been dispensed by him, his argument at the hearing that these missing drugs may have been administered and the inspector would have so found had he reviewed all of Respondent's patient records, is without merit. Linda Lomax has been known in police circles in Cocoa and the vicinity for the past ten years or longer as a drug abuser. At various times until late 1980 she was addicted to Demerol. She was successful many times in going to the emergency rooms of hospitals complaining of back pain, earache, and other problems and getting prescriptions for Demerol and other controlled substances. She has a criminal record for assault with a deadly weapon and forgery of prescriptions. In July 1980 Ms. Lomax was apprehended by the police in Rockledge on the basis of a warrant issued in Melbourne for the offense of using forged prescriptions. She was accosted in a drug store while attempting to get drugs on a forged prescription. When the policeman identified himself as such she immediately asked to leave the drug store to "talk". Without ever being placed under arrest by the police, without promises of leniency, of police dropping of charges or other inducement Ms. Lomax asked if the police were interested in learning who committed recent drug related robberies and when the policeman said "Yes" proceeded to tell him about prior unsolved robberies in the area and of a forthcoming planned robbery. The information given by Ms. Lomax proved reliable. She also knew the drug abusers who were getting drugs from which doctor and agreed to assist in getting evidence against these doctors. Ms. Lomax subsequently was introduced to John Spanogle, an investigator for Petitioner, and agreed to assist in getting evidence against Respondent. She had gone to Respondent's office in mid-June 1980 and had obtained Demerol without a physical examination and without a medical reason for having the drug. She had received information from other drug abusers that she could get Demerol from Respondent. When Respondent asked her during the June visit who sent her to him she told him Karen Schaffer and Karen Pritchard. After giving her a prescription for Demerol, Respondent told her to come back. On this visit she stole some blank prescription pads from Respondent's office. Ms. Lomax's next visit to Respondent was in mid-July 1980 and on this visit she presented him with a prescription for 50 Demerol she had forged on one of the blanks she had stolen and told him the pharmacist would not fill it. Respondent tore up that prescription and issued her a valid one for 50 Demerol. During these visits Respondent kissed Ms. Lomax and called her "Baby". When Ms. Lomax told Spanogle the substance of her visit to Respondent he asked if she would return with a "bugging" device on her person, to which she agreed. On July 30, 1980, Ms. Lomax visited Respondent's office carrying a radio transmitter in her purse which was monitored and recorded by Spanogle and the police. At this visit Ms. Lomax told Respondent's nurse that she had an earache. When she met Respondent in the examining room he greeted her with a kiss on the mouth. She told him she didn't have an earache but wanted something for sleep. He asked if Valium would be okay. She said "Yes". When he asked if she wanted 24 or 30 she replied "30". After the greeting kiss Respondent unzipped the front of her dress and played with her breasts. She showed him bruises on her leg and he lifted her dress and remarked that she had sexy underwear and good-looking legs. Her testimony of the events that transpired on this July 30 visit is corroborated by the transcript of the tape of the conversation between Respondent and Ms. Lomax (Exhibit 13). Respondent again agreed to take care of the prescription she had forged from the stolen prescription pad. She made an appointment to return 5 August and left with the prescription. At a prearranged meeting place she turned over prescriptions for 30 Valium, 5 mg. and 24 Dalwane, 30 mg. (Exhibit 8) to Spanogle. On 5 August 1980 Ms. Lomax again visited Respondent's office carrying a "bugging" device. During this visit she was kissed several times by Respondent. They discussed his sexual exploits, or rumors thereof, with other patients. Respondent unzipped his pants to expose his penis and asked Ms. Lomax to look at it and touch it, and he kissed and fondled her breasts. No other physical examination was performed. Ms. Lomax told Respondent she wanted something to help her sleep. While in the office Respondent gave her a Valium injection and upon her departure he gave her prescriptions for 60 Librium, 10 mg. and 24 Nodular, 300 mg. These prescriptions were delivered to law enforcement officers by Ms. Lomax and were admitted into evidence as Exhibit 9. On 12 August 1980 Ms. Lomax made a final visit to Respondent's office again carrying a "bugging" device through which their conversation could be monitored and recorded. During this visit Respondent again fondled and kissed Ms. Lomax's breasts, unzipped his pants and requested oral sex from Ms. Lomax, which she declined. She complained that some of the drugs he gave her last time were ineffective and that she wanted something stronger. Also, she wanted something to keep her awake for the night job she was going to start and sleeping pills so she could sleep during the daytime. She stated she preferred Valium over Librium. When she left the office she had prescriptions for 50 Talwin, 50 mg.; 50 Valium, 5 mg.; 30 Ionamin, 30 mg.; and 50 Dalmane, 30 mg., which she delivered to law enforcement officers (Exhibit 10). On none of these visits was she billed by Respondent for medical services.
Findings Of Fact At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: - I, Antonio J. Maniglia, M. D., F.A.C.S., of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether Respondent committed the violations described in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been since October 4, 1979, a licensed pharmacist in the State of Florida. He holds license number PS 0017661. In October of 1987, based upon Respondent's having the year before "pled guilty [in criminal court] to one count of grand theft and one count of possession of diazepam," the Board of Pharmacy suspended Respondent's license for a period of one year and placed him on probation for a period of three years, commencing upon the conclusion of his suspension. On February 4, 1991, February 11, 1991, February 19, 1991, March 6, 1991, and April 18, 1993, in exchange for cash, Respondent sold to Melvin Owens, who was serving as a confidential informant for the Drug Enforcement Administration, 3/ various quantities of drugs, to wit: quazepam, under the brand name of Doral (February 4, February 19, and March 6), triazolam, under the brand name of Halcion (February 4, February 11, February 19, March 6, and April 18), alprazolam, under the band name of Xanax (February 11, February 19, March 6, and April 18), and diethylpropion hydrochloride, under the brand name of Tenuate Dospan (March 6), without first being presented with a prescription for these drugs. All five transactions took place in Palm Beach County, Florida. Although Respondent was employed as a pharmacist at a Phar-Mor Discount Pharmacy (hereinafter referred to as "Phar-Mor") located in Palm Beach County at the time of these transactions, in selling these controlled substances to Owens, Respondent was not acting in the usual course of his professional practice as a Phar-Mor pharmacist. Respondent did not have a permit authorizing him to act as a drug wholesaler at the time of these transactions. On April 24, 1991, Respondent was indicted in federal court on five counts of unlawful distribution of controlled substances for his role in the above-described transactions. Subsequently, the Department issued a three-count Administrative Complaint charging Respondent with wrongdoing in connection with these transactions. Respondent pled guilty to the federal criminal charges pursuant to a plea agreement. Thereafter, Respondent was adjudicated guilty and sentenced to 60 days confinement, followed by two years of supervised release, on each count of the federal indictment, with the sentences to run concurrently.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations alleged in Counts I, II, and III of the Administrative Complaint and disciplining him for having committed these violations by revoking his license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993.
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be imposed against the licensure of Douglas R. Shanklin, M.D., the Respondent, for allegedly falsely testifying that he had not been issued a "Letter of Guidance", in violation of Section 458.331(1)(k), Florida Statutes.
Findings Of Fact At all times material hereto, the Respondent was a physician licensed in the State of Florida. He holds license number ME0009372. The Petitioner is an agency of the State of Florida charged with regulating the licensure status and related practice standards of physicians in Florida, including making investigations and bringing Administrative Complaints against those physicians, in their licensure status, believed to be departing from those practice standards. On January 8, 1993, the Respondent testified as a defense witness, by deposition, in a medical malpractice case. The case style was Faircloth v. Coastal Empire Pathology Services, P.C., et al. The trial occurred in Savannah, Georgia. During his deposition, the Respondent was asked three times, by opposing counsel, if he had ever been issued a Letter of Guidance by any state licensing agency. The Respondent stated three times that, indeed, he had not. In fact, on May 15, 1984, a Probable Cause Panel of the Board of Medical Examiners in Florida considered a complaint against the Respondent. The Probable Cause Panel made a determination that while probable cause existed to believe that the Respondent had violated the provisions of the Medical Practice Act, the complaint should be dismissed with a Letter of Guidance. The Board stated in its Order that: Probable cause exists to believe that subject has violated the provisions of the Medical Practice Act. In light of the circumstances presented, however, this case should be and the same is hereby dismissed with a letter of guidance to subject. Thereafter, an undated letter was sent to and received by the Respondent. See Petitioner's Exhibit 2 in evidence. The Closing Order was never mailed to, nor received, by the Respondent. The Respondent was unaware of the Closing Order until March of 1993, when the investigation in this case was commenced and at which time he was first supplied a copy of that Closing Order of the Board's Probable Cause Panel. The Petitioner's Exhibit 2 in evidence, the undated letter, is not entitled or otherwise delineated as a "Letter of Guidance" and at no place in the letter is the word "guide" or "guidance" used. Consequently, at the time the Respondent received the letter, which is Exhibit 2, he did not understand or perceive it to be a Letter of Guidance but, rather, understood it to be a letter of closing indicating that he had prevailed in the complaint case. On January 8, 1993, when the Respondent testified at the deposition referenced above, he did not have in mind, nor did he remember, the undated letter. On January 8, 1993, when he testified at that deposition that he had not been issued the Letter of Guidance, he believed he was answering those questions truthfully. He did not know or understand that he had been issued a Letter of Guidance. On January 8, 1993, when he testified at the deposition, he did not testify falsely, because he had not been given the Closing Order at the time that the undated letter (Exhibit 2) was received. He thus did not understand that undated letter to be a Letter of Guidance from the then Department of Professional Regulation. He was never served a copy of the actual Closing Order which might have explained the situation to him. Consequently, he had a genuine, good-faith belief that he had not been issued a Letter of Guidance. Because his belief was genuine and he had no specific intent to tell a false story in those particulars, he made no false or fraudulent representation and committed no deception in conjunction with his answers to those questions at his deposition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence or record, the candor and credibility of the witnesses, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty of violating Section 458.331(1)(k), Florida Statutes, and that the Complaint be dismissed in its entirely. DONE AND ENTERED this 3rd day of May, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5903 Petitioner's Proposed Findings of Fact 1-3. Accepted. 4-6. Rejected, as not entirely in accord with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Steven Rothenburg, Senior Attorney Agency for Health Care Administration 9125 Bay Plaza Boulevard Suite 210 Tampa, FL 33619 Larry G. Turner, Esquire Post Office Box 508 Gainesville, FL 32602 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
Findings Of Fact The Respondent, Deborah Sanchez Nelson, L.P.N., admits that on or about February 23, 1978, on the sixth floor of Palmetto General Hospital, Hialeah, Florida, several ampules of a controlled drug, to wit: Demerol (Meperedine) Injectable, were discovered to have been tampered with in that the fluid levels were not uniform as is true of untampered ampules. The Respondent was assigned to medications on the sixth floor of said hospital and was questioned concerning the incident and admitted to having taken said narcotic. A search of the Respondent's purse by an officer of the Hialeah Police Department revealed a vial labeled as water, containing approximately 12 cc of clear liquid, which upon being chemically analyzed proved to be Meperedine. Deborah Sanchez Nelson had worked at Palmetto General Hospital from February 10, 1978, until the incidents described above on February 23, 1978. Nelson has voluntarily not worked as a licensed practical nurse since that date and is currently employed at J. C. Penny's as a salesperson. Freda Drees, Director of Nursing at Palmetto General Hospital, first met Nelson upon her employment on February 10, 1978. Drees observed Nelson during the hospital's orientation program and later after she assumed her duties with the hospital. Drees described Nelson as a good nurse. Mitchell M. Ross, Director of Pharmacy, Palmetto General Hospital, testified that he had known Nelson for approximately four years, having first met her while employed as a pharmacist at Parkway General Hospital. Nelson was employed at Parkway General Hospital serving on the night shift. Ross had occasion to observe Nelson and stated that she was very good with patients. Ross stated that there had never been any trouble with Nelson at Parkway General Hospital involving drugs and that because of his position with the hospital he would have been aware of any discrepancies or violations. Dorothy Ware, State Probation Officer, Department of Corrections, testified that she had known Nelson since July, 1978, when Nelson was assigned to her as a probationer. Nelson had been placed on probation by the Broward County Court as a result of her conviction for leaving the scene of an accident which occurred on approximately February 28, 1978. Ware stated that Nelson admitted her drug involvement to her during their initial interview and sought assistance from Ware in dealing with her drug problem. Nelson was referred by Ware to a drug rehabilitation program and immediately contacted this program. However, testing by the program revealed that Nelson was not using drugs, and she was not placed in the program. Ware stated that Nelson was very responsible, had met all obligations of her probation to include paying the cost of her probation as directed by the court. Ware stated that Nelson was very remorseful about her drug involvement and having taken drugs from the hospital. Ware recommended that no action be taken that would deny Nelson her right to practice practical nursing. Deborah Sanchez Nelson testified on her own behalf and admitted she had been involved with drugs for eight months. She stated that her involvement arose when she became personally involved with an individual who was involved with drugs and started using drugs herself. The drug of use was Demerol, which her friend was supplying. She stated that she had not admitted to herself that she was addicted and needed drugs until the incident at Palmetto General Hospital. At that time she had broken off her relationship with the person with whom she was involved and who was supplying her with the drug, Demerol. Nelson stated that the accident which had led to her conviction for leaving the scene of an accident had occurred because she was distraught over her theft of drugs from the hospital, the termination from her job, and the realization that she was addicted to drugs. After the accident, Nelson was admitted by a psychiatrist to the hospital for treatment. Nelson stated her involvement with drugs was over and that she had a better self-image of herself. Her testimony concerning her no longer being involved with drugs was confirmed by Ware's testimony that the study done of Nelson by the drug referral service revealed that Nelson was not using drugs. Nelson stated that she missed nursing, desired to continue practicing nursing, and would submit to any conditions established by the Board if permitted to continue in nursing.
Recommendation The admissions of the Respondent clearly establish that she violated the provisions of law cited above. The testimony in mitigation establishes that the Respondent was, prior to her involvement with drugs, a fine nurse who was good with patients. The Respondent's involvement with drugs arose out of a personal involvement with an individual who was also involved with drugs and supplied the Respondent with Demerol, which was the drug of abuse. The Respondent testified that she had not admitted to herself her addiction until her supply of Demerol was cut off, when her personal relationship with the individual supplying her was terminated. Nelson has sought professional treatment for her personal and drug problems, overcoming her drug addiction and apparently the personal problems which gave rise to it. She has voluntarily not practiced nursing for approximately one year. The Director of Nursing for Palmetto General Hospital and the Director of the Pharmacy at Palmetto General Hospital both voluntarily testified in her behalf. Her probation officer voluntarily appeared and confirmed that Nelson was no longer involved in drugs, was deeply remorseful over her involvement with drugs and stealing drugs from the hospital, and had responsibly met all of the terms of her probation for conviction of an unrelated offense. Her probation officer specifically recommended that no action be taken to deny Nelson the opportunity to practice nursing. Nelson testified and exhibited remorse and concern over her actions, freely admitted her addiction, and stated that she had overcome her drug problem and personal problems and turned her life around. She stated that she missed nursing and desired to return to nursing. The use of drugs by a nurse is one of the most serious violations of Chapter 464 because of the access available to medical personnel and because they must be mentally and physically capable of attending patients whose lives and well-being are entrusted to them. If possible, the theft of drugs from patients, or the adulteration of drugs for patients' use, is more serious because it affects the strength of the drugs administered and subjects the patient receiving them to pain and suffering. However, addiction is a powerful thing, and it overcomes the natural inclinations and professional training one has received. Unquestionably, those guilty of such violations should be appropriately disciplined. Generally, in a case involving patients' drugs a suspension of no less than two years would be recommended. However, in this instance the Respondent voluntarily removed herself from nursing nearly one year ago, which should be considered in determining the final penalty. Also, her own efforts and success in overcoming her personal problems and addiction must be considered. Based on the foregoing Findings of Fact Conclusions of Law and Facts in Mitigation, the Hearing Officer would recommend that the Board suspend the license of the Respondent for 24 months, give credit to the Respondent for the 12 months she has voluntarily not practiced, and suspend the last six months of the remaining 12 months, permitting the Respondent to return to practice under conditions established by the Board in order that the Board may maintain closer supervision over the Respondent during her initial return to practice. DONE and ORDERED this 27th day of February, 1979, in Tallahassee, Leon County, 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 Jacksonville, Florida 32202 Geraldine B. Johnson State Board of Nursing 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211 Deborah Sanchez Nelson 19414 NW 30th Court Miami, Florida 33162 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Deborah Sanchez Nelson As a Registered Nurse Case No. 78-2056 19414 N. W. 30th Court License Number 32957-1 Miami, Florida 33162 /
Findings Of Fact Respondent was originally licensed to practice medicine in Florida on August 15, 1956. Respondent's license was placed on inactive status on December 13, 1979, and currently remains on inactive status. Respondent's last known address is 6201 Riverdale Road, Riverdale, Maryland 20801 (Petitioner's Exhibit No. 1). On May 6, 1983 Respondent, by Indictment No. 18312601, was indicted for six counts of Medicaid fraud, three counts of false pretenses and one count of theft in the Circuit Court for Baltimore City, Maryland (Petitioner's Exhibit No. 2). On March 12, 1984, after Respondent's bench trial, the Circuit Court for Baltimore City ordered a judgment of conviction as to the six counts of Medicaid fraud. Respondent was acquitted of the other four counts of the indictment (Petitioner's Exhibit No. 2, P. 39 of the memorandum opinion). Respondent's conviction resulted from the inclusion of nonallowable costs in applications for Medicaid funds submitted by Magnolia Gardens Nursing Home while Respondent was the administrator and a 50 percent owner of the nursing home. The trial court specifically found that Respondent knew that nonreimbursable costs for construction done to Respondent's personal residences and medical office building were included in applications for Medicaid payments (Petitioner's Exhibit No. 2, p. 39 of memorandum opinion). Use of Medicaid funds for improvements to a private physician's office is a violation of Maryland state law which clearly relates to the practice of medicine. As a result of Respondent's conviction for Medicaid fraud, he was sentenced to concurrent five-year terms of imprisonment on each of the six counts. All but 18 months of the sentence was suspended. Respondent was placed on 18 months of work release and 18 months of community service after work release at the rate of 20 hours per week. Respondent was also fined $60,000 and ordered to pay $50,000 restitution. Additionally, Respondent was placed on two years of unsupervised probation (See docket entry of April 23, 1984, Petitioner's Exhibit No. 2). On April 30, 1984 Respondent appealed his conviction to the Court of Special Appeals of Maryland (See docket entry of April 30, 1984, Petitioner's Exhibit No. 2). On November 6, 1985 the Maryland Court of Special Appeals rendered its opinion in William R. Greco v. State of Maryland, Case No. 171 (Petitioner's Exhibit No. 2). Respondent's conviction was affirmed in all aspects and Respondent's sentence was affirmed as to the order to make restitution which was vacated (See Mandate of the Court of Special Appeals of Maryland, dated December 6, 1985, Petitioner's Exhibit No. 2). On October 3, 1986, the Court of Appeals of Maryland affirmed the decision of the Court of Special Appeals. Greco v. State, 307 Md. 470, 515 A.2d 220 (1986). On December 4, 1984 Respondent was suspended from participation in the federal Medicare and Medicaid programs for a period of ten years (Petitioner's Exhibit No. 3).
Recommendation It is recommended that Respondent's license to practice medicine be revoked. DONE and ORDERED this 30 day of December, 1986 in Tallahassee, Florida. SHARYN L. SMITH 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 30th day of December, 1986. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William W. Cahill, Jr., Esquire WEINBERG and GREEN 100 South Charles Street Baltimore, Maryland 21201 Dr. William R. Greco 6201 Riverdale Road Riverdale, Maryland 20737 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
