The Issue This case involves the issue of whether the Respondent's license as a doctor of veterinary medicine should be disciplined for improperly prescribing Dilaudid, a controlled substance. At the formal hearing, the Petitioner called as witnesses Robert M. McGuire, Edward Duncan, and Mary Lee Page. Respondent testified on his own behalf. Petitioner had marked for identification five exhibits of which Exhibits 1, 2, and 5 were admitted. Exhibit 4 was not admitted into the record. Petitioner's Exhibit 3 was a composite of records received by a DPR investigator from the Respondent. Petitioner's Exhibit 3 is admitted and Respondent's objection on the grounds that the records were illegally seized is overruled. Also admitted into evidence was the prehearing stipulation and the Respondent's response to request for admissions as Joint Exhibit 1 and Joint Exhibit 2, respectively. Counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact are consistent with the findings herein, the proposed findings were adopted. To the extent that those proposed findings are inconsistent with the findings made herein, they were considered by the Hearing Officer and rejected as being not supported by the evidence or not necessary to a resolution of this cause.
Findings Of Fact The Respondent is licensed to practice veterinary medicine in the State of Florida and holds License No. 0001405. The Respondent graduated from veterinary school in 1968 and has been a licensed veterinarian practicing in Florida for 13 years. Sometime prior to August 5, 1982, Ken Williams, a blacksmith who had done work for the Respondent, asked the Respondent to write a prescription for Dilaudid for his old and sick dog. Ken Williams stated the Dilaudid was for pain his dog was suffering. The Respondent, without having seen or examined the dog, wrote a prescription for 100 Dilaudid tablets, four milligrams each. (See Petitioner's Exhibit 5(a)). The prescription was given to Ken Williams and was filled by Robert M. McGuire, a licensed pharmacist in Ruskin, Florida. On September 3, 1982, the Respondent, after examining Ken Williams' dog, Satan, wrote a prescription for 100 Dilaudid tablets, four milligrams each, and gave the prescription to Ken Williams. The dog, Satan, was a young, healthy dog which was clearly not in pain. This was the same dog for which Ken Williams had requested the Dilaudid prescribed by the Respondent on August 5, 1982. The second prescription was also filled by Robert M. McGuire. After he wrote the second prescription, the Respondent researched Dilaudid in the Physicians Desk Reference. Prior to this research, he knew very little about Dilaudid as a drug. The Respondent concluded at that time that Williams was not using the Dilaudid for an animal, but was probably using it himself. The Respondent wrote prescriptions on October 6, 1982, October 28, 1982, and November 22, 1982. (See Petitioner's Exhibits 5(a) 5(d) and 5(e)). Each of these prescriptions was for 100 tablets of Dilaudid, four milligrams each. Each of these prescriptions was given to Ken Williams by the Respondent and was filled by Robert M. McGuire. The five prescriptions described in Paragraphs 3 through 6 above were not noted or recorded in the Respondent's records for his client Ken Williams. The prescriptions were not for animals examined by the Respondent and determined to be in need of Dilaudid but were prescribed for Ken Williams. Prior to August, 1982, Ken Williams had been convicted of possession of Dilaudid in violation of Florida Statute 893.13. (See Petitioner's Exhibit 6.) The Respondent had no knowledge of Ken Williams' drug conviction when he wrote the prescriptions described above. The Respondent received no compensation for writing the five prescriptions. Even after concluding the Dilaudid tablets were not being used by Ken Williams for an animal, the Respondent wrote the prescriptions on October 6, October 28, and November 22, 1982, because he feared Ken Williams would report him. Respondent was made aware by Ken Williams that Mr. Williams was using the Dilaudid himself for pain. The active ingredient in Dilaudid is Hydromorphone, a controlled substance listed in Schedule II of Florida Statute 893.13. The Respondent has been a practicing veterinarian for 15 years with 13 of those years having been in Florida. He has no previous charges or complaints against his license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Board of Veterinary Medicine requiring the Respondent to pay an administrative fine of $750.00. DONE and ENTERED this 12th day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, 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 August, 1983. COPIES FURNISHED: James H. Gillis, Esquire Mr. Fred Roche Department of Professional Secretary Regulation Department of Professional Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Robert A. Young, Esquire Ms. Jane Raker Wilkins, Moorman & Young Executive Director Post Office Box 428 Board of Veterinary Medicine Bartow, Florida 33830 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues contained herein, Respondent, Lois E. Anderson Bailey, was a licensed practical nurse in the State of Florida under license number 12519-1. During the period between July, 1982 and January, 1983, and for an unknown period both before and after that time, Dr. Allan R. Varraux was a pulmonary specialist who, as a part of his practice, performed bronchoscopies at ORMC. As a routine part of this practice, Dr. Varraux utilized a cocaine solution to spray the back of the throat of his patients as an anesthetic prior to inserting the bronchoscope. Cocaine is also used as an anesthetic after the bronchoscope is inserted because it lasts between one-half an hour to forty-five minutes as opposed to xylocaine which lasts only fifteen minutes or so. Dr. Varraux also prefers to use cocaine over xylocaine because the latter often causes spasms in the patient. During this period, Dr. Varraux knew the Respondent, who was nursing supervisor of the Endoscopy section at the time, and discussed with her the controls for the use of cocaine for this purpose because cocaine is a controlled substance. At no time did Dr. Varraux ever discuss with Respondent the potential for the substitution of xylocaine for cocaine in this procedure nor did he ever approve its substitution. On or about January 18, 1983, Dr. Varraux wrote a letter to Mr. Holton, Director of the hospital pharmacy, asking for a survey of cocaine use at ORMC. He did this because of a survey done at another hospital at which he also practiced with which he was familiar to be sure that the amount of cocaine he was using was reasonable. The audit revealed that at the time in issue here, no cocaine was dispensed by the pharmacy for the Endoscopy section. Dr. Varraux considered this odd because he was ordering cocaine solution for the bronchoscopies he was performing and as a result, some cocaine should have been issued. He subsequently found out that xylocaine was being substituted for cocaine. He had not authorized the substitution and was greatly concerned because of the potentially serious impact the substitution might have on a patient if the patient were allergic to xylocaine and the physician did not know that the substitution had been made. In his opinion, it is not good medical practice to substitute xylocaine for cocaine without the doctor's orders and without informing the physician of the change. In practice, the cocaine is injected with a syringe into the apparatus being utilized during the bronchoscopy. At that point, the order for the use of cocaine is a verbal order which is, thereafter recorded in the nurse's notes and in the doctor's dictated report concerning the procedure. Since there is no standard procedure for this operation, Dr. Varraux established, in discussions with the Respondent, his general procedures which in all cases included the use of cocaine as an anesthetic. Respondent actually assisted in very few of Dr. Varraux procedures. Eighty-five percent of his procedures were done with Ken Rosenau assisting and Mary Ann Hinds assisted in others. However, Respondent was the supervisor of the endoscopy section and if there was a problem, Dr. Varraux would go to her first. Lynn W. Capraun, an instructor of respiratory therapy at Valencia Community College, and an advisor in that area to ORMC, was asked by Mr. Rogers to audit the endoscopy section records for bronchoscopies performed from July, 1982 through January, 1983. His audit was limited to only those on a list of procedures given him by Mr. Rogers and he is not aware of what percentage of the total bronchoscopy load this list consisted of. However, as a part of this audit, he reviewed for each specific case the doctor's clinical resume' and the nurse's notes to see what the doctor called for and what was in fact done. Based on his audit, it appeared that during the period in question, more than 203 ml of cocaine had been ordered by physicians but there was no supporting documentation in the nurse's notes to indicate that the cocaine had been administered even though there was documentation for the use of other drugs. Here, it should be noted that Mr. Capraun is also the partner of Mr. Rogers in a private respiratory therapy business. The records of the pharmacy at ORMC revealed that the last issue of cocaine too the endoscopy section prior to the audit was made in July, 1982. Prior to that time, as far back as 1981, records indicated that the pharmacy had issued 60 ml of cocaine solution every three or four weeks. All issues are reflected as such issues are logged and the name of the individual to whom the drug is issued, who must be licensed, is retained. In addition, pharmacy records reflected no issue of any controlled drug, not only cocaine, to the endoscopy section between late October, 1982 and January 3, 1983. After Respondent was suspended on January 19, 1983, Mr. Holton examined the drug sheets kept in the endoscopy section and the drugs kept on the floor. He found three bottles of cocaine solution, one of which contained 60 ml and the other two contained 40 ml. Analysis of the contents of one bottle reflected the solution at 3.9 percent cocaine which is acceptable. The other two bottles, however, were at a lower strength - one at .5 percent and the other at 1.4 percent cocaine. Though there were three bottles of solution, only two records to support these bottles were found. One was dated May 21, 1982 and the other, June 23, 1982. Cocaine is issued by the pharmacy only upon the presentment of a proof of use sheet which reflects the fact that the previous issue has been used up and it is the practice of the pharmacy, according to Mr. Holton, not to issue new supplies of a controlled substance without a proof of use sheet to show the use of the previous issue. The records of the hospital reflect that the Endoscopy section is a small user of any controlled drug. From the above, an inference can be drawn that cocaine was improperly removed from the Endoscopy section. However, from review of the evidence as a whole, not only that already discussed but that to be discussed as well, it is impossible to determine for certain that there was a loss and if so, who was responsible for it. It certainly cannot be said with any degree of certainty that the Respondent either took it or knew who did. When Mr. Rogers received the letter from Dr. Varraux regarding the use of cocaine in the Endoscopy section of his department, he went to look for the Respondent to discuss the problem with her. He found that she had gone for the day and so he discussed the situation with Mrs. Williams, one of Respondent's assistants, who advised that Respondent had, at times, asked her to substitute xylocaine for cocaine. The following day, he looked into the situation further and after talking with his supervisor, called in Respondent and showed her Dr. Varraux's letter. He says Respondent first indicated she was aware of the situation - then changed her position. She again changed her position, indicating that she was aware of only one incident and that she had discussed with the employees of the section the illegality of the practice advising them not to do it. Mr. Rogers was told by his employers that he could suspend the Respondent if he felt it to be necessary. As a part of his inquiry, he discussed the matter with Mr. Holton and other employees of the department whom he asked to make statements regarding the alleged substitution. His requests were for specifics of the incidents - if they knew of the practice, who had asked them to do it, and things of that nature. When he got the employees' statements back, he reviewed them and took them to the personnel office for advice. Thereafter, he notified Respondent by mail of her termination. Mary Ann Hinds worked at the Endoscopy section as an LPN during the period July, 1982 through September, 1983 assisting physicians, including Dr. Varraux, in bronchoscopy procedures. She contends that at some time during October or November, 1982, Respondent called her into the office and advised that cocaine would no longer be used in bronchoscopy procedures and xylocaine would be substituted. She says she was told to chart the initial 4 percent xylocaine solution but not the 10 percent xylocaine solution she would give to the doctor without telling him of the substitution even though the doctor might ask for cocaine. She says that Ms. Bailey told her this would be done because during a prior procedure when the assistant used xylocaine instead of cocaine, Dr. Varraux did not know the difference and Bailey concluded that they would use the xylocaine instead of cocaine thereafter. Ms. Hinds did not question this because Respondent was the head of the department. Ms. Bailey was, in her opinion, difficult to talk to and as a result of these instructions, she followed this new procedure from the time of the instruction on through January, 1983. During this period, she saw Mr. Rosenau and Mr. Hooper also do the same thing. Although Ms. Hinds was quite definite in her testimony regarding the conversation with Ms. Bailey, she is significantly less sure of her testimony regarding control of drugs on the ward. For example, she cannot recall ever signing any proof of use forms. She contends that the LPNs and technicians did not sign off on the drug book. They would tell the Respondent what was used and she made the entries. When cocaine was to be used, she got it from a bottle in the Respondent's office. Helen Williams also worked under Respondent in the endoscopy section until January, 1983 assisting doctors with bronchoscopy procedures. When she first came to work in this section, she did not know that cocaine was being used. She recalls that in a conversation shortly after she came to work, Respondent told her they were using 4 percent xylocaine solution in place of a cocaine solution because they had done it one time with Dr. Varraux and he did not notice and as a result, they continued to follow this procedure. However, Ms. Williams, though she subsequently heard from Rosenau that substitutions were being made, never saw it done nor did she ever substitute. Though she says she advised Respondent she didn't think this substitution was a good idea, Respondent is supposed to have replied that this is the way it was done. Ms. Williams accepted Ms. Bailey's word when told that there was no cocaine on the unit and that cocaine was not being used even though the drug book at the time showed 27 cc of cocaine solution unused and on the unit. She discussed this with Ms. Bailey and concluded that if her supervisor knew about it, that was sufficient, and she did not report this to anyone else. She also did not report her knowledge of the substitutions being made to anyone else because she did not feel it was her place to do so since Respondent was the section head and knew about it. Ted Hooper, also an endoscopy technician, did bronchoscopies with Dr. Varraux for several years and toward the end, substituted xylocaine for cocaine in these procedures without telling the doctor what he was doing. He had seen Rosenau substitute xylocaine while he was watching procedures to learn how to do them before becoming a technician. When he asked Bailey about this, he says, she responded that it was done, for one reason, because it was cheaper for the patient. She also told him it was all right to do this as it had already been taken care of. She did not tell him, outright, to make the substitution but because she had said it was taken care of, he thought it was permissible. However, he also contends that he observed cocaine being used by Hinds and others in Dr. Varraux' cases after he became a technician in July, 1982. James E. Hardy, in October, 1982, employed as a transporter in the Endoscopy section of ORMC, also assisted in bronchoscopies, working at times with Dr. Varraux and he was aware of the practice of substituting xylocaine for cocaine in these procedures. When he first went to work in the section, he says, he was asked to substitute by Respondent who told him it was being done because it was cheaper for the patient but refused to do so. To his knowledge, however, he does not recall seeing the substitution actually performed. On one bronchoscopy he recalls, which he set up, cocaine was used which he got from Respondent. Mr. Rosenau testified at the March, 1985 hearing. He clearly indicated that xylocaine was substituted for cocaine in the procedures performed by Dr. Varraux and the cocaine they had on hand was rarely taken from the drug locker. He absolutely denies that during all the period of time he was working with Respondent, he ever discussed with her or admitted to her that he had substituted xylocaine for cocaine nor did Respondent ever tell him to do this. In fact, he cannot recall how this practice got started. Here it should be noted that Rosenau, Hardy, and Hooper were all friends of Mr. Rogers and at least Rosenau and Hardy owed their employment at the time to him. Respondent was recognized by Dr. Bone as partially responsible for the growth of the Endoscopy section at ORMC. He recalls her as being an exceptional nurse: reliable, dependable, and proficient - a perfectionist who did an excellent job. He had complete confidence in her ability and in her honesty and integrity. If he asked her to do something, she did it more reliably than others. Because of her perfectionist nature, however, she may have alienated people and turned them away, but he never had any doubts about her nor did he ever have any reports from other doctors that she did not do her job well. He worked with her until she left the hospital. She was a "take charge" person but never exceeded her authority or deviated from prescribed procedures or doctors' orders. This opinion of Respondent is shared by Christina Stephens who worked under Respondent for a period of time. She found the Respondent to be stern, regimented as to order of procedures, and very organized, but she never saw any irregularities by the Respondent in carrying out doctor's orders. As to Mr. Rosenau, however, of whom she also had some knowledge, she found him to be somewhat unprofessional in his patient care and actions and brought this to the attention of the supervisor by written report on several occasions. This was, however, several years prior to the time in issue here and she has not worked with him since 1976 nor does she have any knowledge of his performance since that time. Respondent began work at ORMC after she was a student in the respiratory therapy program there at the request of Mr. Rogers. She started as a pulmonary rehabilitation technician part time. At that time, there were only two employees in the section. When, after a few months, the supervisor left, Respondent took over. Over a period of time, new procedures were introduced including gastroenterology and Respondent was trained in them as she went. She began doing more of the latter than pulmonary rehabilitation even though she remained head of that section. She was then asked to help set up an Endoscopy section and started doing those procedures as well. Rosenau was working on the floor in the respiratory therapy section and was having trouble with his supervisor. As a result he wanted to come to work in the Endoscopy section and Respondent arranged a transfer for him even though he had little experience in endoscopy and none in gastroenterology. When she first started working with gastroenterology, the patient and his medication were brought into the section. When the procedure was finished, the unused medication was sent back with the patient. As the section got bigger however, and more procedures were accomplished, this practice began to hold things up. The physicians requested that medications be kept in the section for their use. Respondent resisted this because she did not feel there were sufficient safeguards available to maintain proper control. Nonetheless, the physicians pushed for it but the change did not happen until Dr. Varraux became insistent that the medications be kept there. He worked through Rogers and Holton to get a narcotics box installed on the section. When this was done Mr. Holton gave two sets of keys to the box to Mr. Rogers who immediately turned one set over to the Respondent and gave one set to Rosenau. When Dr. Varraux decided to use cocaine for anesthesia he discussed it with Rogers and Holton since Respondent did not have the authority to request it. As a result, the pharmacy began dispensing 60 ml bottles of cocaine solution for use in bronchoscopies with a control sheet accompanying it to be kept in the locked portion of the bronchoscopy cart. Again, Respondent and Rosenau both had access to this cart. In fact, Rosenau had access to every key that Respondent had except the one to her desk. According to the Respondent, she had difficulty with Rosenau regarding drugs on several occasions when he would draw narcotics into syringes, a procedure he was neither trained nor authorized to do. In the Spring of 1982, bronchoscopies were done by nurses who would give valium but cocaine was administered by Rosenau only. However, when cocaine was used, Respondent would sign off on the sheets along with others whose names appeared on the form as administers of the drug. In mid-1982 bronchoscopies were transferred to the respiratory therapy section, by then headed by Rosenau, but this did not seem to work out and after a short period, the procedure was returned back to the endoscopy section, with Rosenau still doing them under the overall supervision of Respondent. Respondent contends that she did not train people to do the bronchoscopy procedures. Rosenau had been doing this for months before all of this took place. Ms. Hinds came to work in late July, 1982, and Respondent had no control over bronchoscopies at that point as they were in Rosenau's section. As to Hardy, she characterized him as an errand boy who was never trained to do bronchoscopies and with whom she never discussed them. She did, however, have a discussion with Rosenau on one occasion about cocaine. She relates that on this particular instance, Rosenau advised her in confidence that he had substituted Xylocaine for cocaine by mistake on a bronchoscopy performed by Dr. Varraux and wanted to get it off his chest. He assured her that if she would give him another chance, he would never let it happen again. Here, even though Rosenau had a previous disciplinary record which she had discussed with Rogers, she decided to take no action because she felt it would be fruitless. Rogers had taken no corrective action against Rosenau in the past and she had no reason to believe he would do so now. Rosenau, as was seen above, denies this conversation but no doubt it did occur. Respondent does not know why she was terminated and was shocked by the action. Rogers had mentioned something about cocaine and had given her an opportunity to resign but she refused. She claims to know nothing about the dilution of the cocaine solution. She claims to know nothing of the substitutions of xylocaine for cocaine other than that reported to her by Rosenau. She categorically denies ever telling Hinds, Williams, or anyone else to substitute xylocaine for cocaine. Counsel for Respondent spent considerable time attempting to establish that the charges against her are the result of a plot by Rogers, Rosenau and others at the hospital to remove her from her position. At best, the evidence shows a lack of control within the respiratory therapy section. There does appear to be a decided relationship between Mr. Rogers and Mr. Rosenau but Respondent has failed to establish that this relationship manifested itself in a plan to bring about her unjustified separation. The evidence establishes that xylocaine was substituted for cocaine and there is some substantial evidence to indicate the Respondent had some knowledge or information indicating that this was being done. There is no credible evidence, however, to establish that Respondent herself substituted xylocaine for cocaine or instructed or directed anyone else to do so. At worst hers is a sin of omission rather than commission.
Findings Of Fact Hilda T. Clark, Respondent, is a registered nurse who holds license no. 21750-2. Evidence adduced during the course of the hearing reveals that during 1961, while Respondent was employed as a private duty nurse at Mount Sinai Hospital in Miami, she withdrew a narcotic drug, to wit: Dilaudid, for her patient, Mrs. Fanny Goldblum on approximately thirty occasions, which she administered to herself instead of the patient. Based on an Information for violation of the Florida Uniform Narcotic Drug Act (Chapter 398.19, F.S.) which was filed on March 15, 1961, the Respondent pled guilty and was placed on probation for a term of seven years on March 31, 1961. Thereafter, on January 12, 1977, the Respondent, while employed as a private duty registered nurse at the University of Miami Hospital and Clinic, converted to her own use a narcotic drug, to wit: Demerol. When confronted with this fact, the Respondent admitted to the Head Nurse, M. Francis, R.N., that she had injected herself with the Demerol and that she was addicted to narcotics for many years. The Respondent does not contest the above allegations and in fact admits that she engaged in the conduct that is alleged in the administrative complaint filed herein. However, she urges that the suspension of her license is unwarranted in these circumstances inasmuch as she was undergoing tremendous pressure based on her mother and spouse's poor health. Additionally, she related an incident wherein she was undergoing tremendous pain and was placed on the medication, Demerol for the relief of pain due to severe herpes zoster infection. Evidence and testimony introduced during the course of the hearing reveal that herpes zoster infection causes severe pain and that to control such pain, her physician, Edward E. Goldman, M.D., prescribed oral Tolwen, Demerol and Dilaudid suppositories. There also was evidence introduced during the course of the hearing which indicated that the Respondent is not now suffering from any drug related problems or addiction and that her professional abilities are beyond question. Respecting the most recent incident which occurred on January 12, 1977, evidence reveals that the Respondent was indeed laboring under a great deal of stress and mental pressures which, in her words, forced her to resort to the unlawful withdrawal and injection of the narcotic drug, Demerol. There was no evidence introduced that the Respondent engaged in any unlawful act during the period between the incident which occurred in 1961 and the January, 1977 incident. Nor was there any further evidence of any drug addiction problem by Respondent subsequent to the January, 1977 incident. The unlawful use of and procurement of drugs by nursing professionals is a serious act which should not be condoned without sanction by the Board of Nursing. It goes without saying that such acts and/or conduct constitutes a departure from the minimal standards of acceptable and prevailing nursing practice and in fact constitutes unprofessional conduct. See Chapter 464.21(b), Florida Statutes. Based on evidence received during the course of the hearing, there is substantial and competent evidence from which a finding can be made that the Respondent engaged in conduct violative of the above chapter i.e., Subsection 464.21(b), Florida Statutes. However, there was no evidence introduced on which a finding can be made that the Respondent is guilty of conduct violative of Chapter 464.21(c) and (d), as alleged. Although two instances of unlawful useage of narcotic drugs was alleged which the Respondent admits, in view of the length of time between the two occurrences, the undersigned concludes that the record fails to establish that the Respondent is habitually addicted to the use of controlled substances as provided in Chapter 464.21(c), Florida Statutes. I shall therefore recommend that the remaining two allegations be dismissed. Respecting the finding that the Respondent engaged in unprofessional conduct within the meaning of Chapter 464.21(b), Florida Statutes, I shall bear in mind and give consideration to the lengthy and creditable service that she has given to the nursing profession, a profession in which she desires to continue to practice. Based thereon and the favorable testimonials received into evidence, I shall recommend that the Respondent be placed on probation for a period of two years.
Recommendation Based on the foregoing findings of fact and conclusions of law I hereby recommend that the Respondent be placed on probation for a term of two years. In all other respects, I hereby recommend that the complaint allegations be dismissed. RECOMMENDED this 12th day of September, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32202 George A. Kokus, Esquire Cohen and Kokus 500 Roberts Building 28 West Flagler Street Miami, Florida 33130 =================================================================
The Issue In addition to the issue of whether the Respondent committed the acts alleged, the administrative complaint alleges on its face that the Respondent was not licensed to practice medicine in the State of Florida until July 13, 1982. Most of the administrative complaint relates to alleged violations by the Respondent prior to the date of his licensure. A primary issue is the Petitioner's jurisdiction over the Respondent to prosecute for acts committed prior to his licensure. A major factual issue in this case are the dates upon which the doctor's conduct allegedly took place.
Findings Of Fact The Respondent was licensed as a medical doctor on July 13, 1982, in the State of Florida. Prior to that date the Respondent was not licensed to practice medicine in this or any other state. Prior to his licensure he was participating in a medical internship program in Pensacola, Florida. He was permitted to practice and prescribe medicine as an intern in and within the limits of this program. (Re: Count I through Count IV) The Respondent presented prescriptions for Eskatrol and Dexedrine on two different occasions to two different pharmacies. These prescriptions listed the Respondent as the person for whom the prescriptions were filled and signed by the Respondent. Neither prescription was accepted by the pharmacists and neither prescription was introduced into evidence. Eskatrol and Dexedrine are amphetamine compounds and are Schedule II controlled substances. The Respondent's ex-wife placed the Respondent's use of amphetamines in February of 1981. See Transcript page 95 line 19 through page 96 line 1. One of the pharmacists to whom the prescription was presented by the Respondent was Ann Cole Wilson, the Respondent's former sister-in-law and sister of his ex-wife. Wilson's testimony concerning the date of the alleged occurrence testifies as follows: Q. Can you tell me what occurred on that occasion, and tell me approximately when this occurred? A. Like I say, it's hard to remember. It was sometime during the summer months. Q. The summer of what year? A. Oh, gosh. Right now it's been, let's see, `82 or `83. Q. The summer of `82? A. I would say `82 yeah. The other pharmacist who testified regarding the Respondent's presentation of prescriptions for amphetamines was Elizabeth S. Grimsley. Grimsley testified regarding the alleged events as follows: Q. How did you come to meet him? A. He brought in a prescription one night for, two prescriptions, rather, written for him by himself for Eskatrol and Dexedrine, amphetamine prescriptions. Q. These prescriptions were written for the use of Dr. Taylor and they were written by Dr. Taylor? A. Yes, sir. Q. Do you remember approximately when this occurred? A. No, sir; roughly a year and a half or two years ago, I suppose. The latter witness is very vague about the date, and the former witness has an interest in these proceedings by virtue of her relationship with the Respondent's former wife. The relationship by Respondent and his former wife is characterized by hostility and continuing litigation arising out of their divorce and concerning child custody. It is concluded that the Petitioner failed to prove the acts occurred after the date of the Respondent's licensure. (Counts V, VI) The Respondent ordered legend and other drugs from pharmaceutical companies using the name of Michael Archer, M.D. and Archer's DEA registration number. Archer did not approve the order or give the Respondent permission to use his DEA registration in order to obtain these drugs. Respondent's actions took place in 1981 and 1982 prior to the date of the Respondent's licensure by the Florida Board. See the depositions of Farrell, Schied & Perez. (Count VII) Between the dates of March 3, 1982, and June 30, 1982, the Respondent submitted drug orders for and received thirty Crescormon No. 4 iu- vials from Pharmacia Corporated, 800 Centennial Avenue, Piscataway, New Jersey 08854. These events occurred prior to the Respondent's licensure by the Petitioner. See deposition of Schied, Exhibit 3. Respondent ordered amino acids from Varitex Corporation, a Michigan company. These materials which are not legend drugs were ordered and received by the Respondent prior to the date of his licensure by the Petitioner. See deposition of Myers, Exhibit 4. Respondent ordered various drugs from Generix Drug Corp., 1900 W. Commercial Blvd., Ft. Lauderdale, Florida, in the same manner. All these transactions occurred before the Respondent was licensed. See the deposition of Perez, Exhibit 5. (Count VIII) The Respondent sold or provided Darrell R. Black substances represented by the Respondent and thought to be by Black a drug with the trade name Dianabol. Dianabol is a steroid and a legend drug. This transaction was not a part of Dr. Taylor's practice under the Pensacola Education Program, the internship in which Dr. Taylor was participating. This transaction occurred in 1981, prior to Dr. Taylor's licensure by the Board. See Transcript page 38. The Respondent sold or provided to Shaun Francis Farrell drugs represented by the Respondent and thought to be by Farrell testosterone and Deca-Durabolin. This transaction was not part of the Respondent's internship in the Pensacola Educational Program. These transactions occurred in 1981, prior to Respondent's licensure by the Board. See Transcript page 46. (Count IX) The Respondent presented prescriptions for and received various metabolic steroids during 1981. However, all of these were presented prior to the date of the Respondent's licensure by the Board. See Transcript, pages 15, 16, 20, 21, 22, 31, 32, 33. One prescription for Trisorlan was presented by the Respondent for himself on October 20, 1982. Trisorlan is a legend drug, however it is not a controlled substance. Trisorlan is a drug affecting the pigmentation of skin. Transcript page 24. No evidence was received concerning the propriety of Dr. Taylor prescribing this medication for himself. (Count XI) No evidence was received that the Respondent held himself out as being licensed to practice medicine. Black and Ferrell did not see Respondent as a doctor. Respondent saw Cayton at the hospital and was authorized to treat patients within the scope of his internship. Most of the witnesses stated that they knew that the Respondent was a doctor, that he was "practicing" at Sacred Heart Hospital. The Respondent holds a degree as an M.D. and was practicing at Sacred Heart as an intern. Further to the extent that the Respondent may have held himself out as a physician contrary to Section 458.327, he did so prior to the date of his licensure and acquisition of jurisdiction by the Board.
Recommendation Having found no evidence to support the jurisdiction of the Board over the Respondent on the allegations of Count X, the Hearing Officer recommends that the Board take no action against the Respondent and the administrative complaint against the Respondent be dismissed. DONE and ORDERED this 4th day of February, 1985, in Tallahassee, Florida. STEPHEN F. DEAN 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 4th day of February, 1985. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Dorothy Faircloth, Executive Department of Professional Director Regulation Department of Professional 130 North Monroe Street Regulation Tallahassee, Florida 32301 Board of Medical Examiners 130 North Monroe Street William Taylor, M.D. Tallahassee, Florida 32301 5271 Myrtlewood Sarasota, Florida 33580 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
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.
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
