Findings Of Fact Respondent is the state agency charged with regulating the practice of dentistry, pursuant to Sections 20.165, 20.42, and Chapters 455 and 466, Florida Statutes and was not a nominal party to the proceedings. Petitioner, John Allison Rowe, D.D.S., (hereinafter referred to as Petitioner Rowe), is a Florida licensed dentist having been issued license number DN-0009364. Petitioner Rowe, at all times material hereto, practiced through a professional service corporation with principal office in the State of Florida. Petitioner, Ralph E. Toombs, D.D.S., (hereinafter referred to as Petitioner Toombs), is a Florida licensed dentist having been issued license number DN-0007026. Petitioner Toombs, at all times material hereto, practiced through a professional service corporation, with principal office in the State of Florida. Petitioner Rowe and Petitioner Toombs each employed less than twenty- five (25) employees at the time this action was initiated. Petitioner Rowe and Petitioner Toombs each had a net worth, including both personal and business investments, of less than two million dollars. In or around 1988, and in or around 1989, Respondent received several complaints from insurance companies concerning Petitioner Rowe's treatment, services, and fees charged to patients through the Central Florida Dental Association and/or other entities. Each insurance company had obtained a review of the services, treatment, and fees charged to the patients and had included that information in their complaint to Respondent. As a result, Respondent began a series of investigations into the allegations against Petitioner Rowe, whose name had appeared as the treating or certifying dentist on all health insurance claim forms submitted on behalf of the patients. The insurance companies alleged that Petitioner Rowe's fees were excessive relative to the customary and usual fees charged for the services, that certain diagnostic tests had been provided to the patients although of questionable medical necessity and acceptance in the dental community, and that certain procedures had been performed in excess of the justified needs of the patient. During the course of the investigation, it became necessary for the Respondent to consult with the Probable Cause Panel on the Board of Dentistry on or about July 12, 1989, and on or about October 13, 1989, to obtain certain patient records without patient authorization. The Probable Cause Panel of July 12, 1989, was composed of members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer. Each of the panel members at the July 12, 1989, meeting indicated that they had received and reviewed the Department's investigative materials. The July 12, 1989, panel found-reasonable cause to believe that there was a question of the medical necessity for the treatment provided such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek the patient's records by subpoena. On or about October 13, 1989, the Respondent again consulted with panel members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer to determine if reasonable cause existed to obtain certain patient records as part of its investigation of Petitioner Rowe. Each of the panel members indicated at the October 13, 1989, meeting that he had received and reviewed the investigative materials presented by the Respondent. The October 13, 1989, panel found reasonable cause to believe that there was a question of medical necessity for the treatment provided to the patient such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek patients' records by subpoena. Following completion of its investigation, on or about April 10, 1991, Respondent initiated an action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the April 10, 1991, Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.W. DBPR Case No. 01-11379 Count II patient E.M. DBPR Case No. 89-02166 Count III patient J.T. DBPR Case No. 89-13187 Count IV patient M.Z. DBPR Case No. 89-02167 Count V patient M.R.V. DBPR Case No. 89-02372 Respondent alleged in the April 10, 1991 Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.W. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; and Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Patient E.M. (Count II) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient J.T. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.Z. (Count IV) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.R.V. (Count V) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. (Ex-A pgs. 1-18). The April 10, 1991 Administrative Complaint was filed at the direction of the November 2, 1990 Probable Cause Panel of the Board of Dentistry. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990 panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the meeting. After brief discussion and receipt of the advice of counsel, the Panel separately took up each investigative report but recommended that the Department consider consolidation of the charges into a single filed administrative complaint The Panel members felt very strongly about the charges as revealed by the investigative reports and consultant's opinions, and in accordance with Section 466.028(7), Florida Statutes, the panel recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek and expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about July 18, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, September 11, 1990, September 17, 1990, and September 18, 1990, Dr. Lilly issued individual detailed reports from review of the investigative materials noting several areas of concern with each patient's treatment and the billing associated with that treatment. As had the June 4, 1990, Probable Cause Panel, Dr. Lilly noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. The November 2, 1990, panel, composed of the same membership as the June 4, 1990, meeting, expressed similar concerns regarding Petitioner Rowe and an apparent lack of concern for treatment effectiveness. Panel member Robert Ferris, D.D.S. expressed praise for Dr. Lilly's reports noting that they were "excellent." The panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinion. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly found that in some cases diagnostic services had been billed twice on the same day although it was customary in the profession to perform the services in one session, that services had been billed which had not been provided to the patients, records were inadequate to justify those services provided, that treatment was provided without appropriate use of diagnostic information, orthotic devices were mischaracterized as surgical devices, fees greatly exceeded the usual and customary charges for certain services, questionable use of arthrogram studies was employed by Petitioner Rowe, certain other diagnostic studies conducted on the patients were of questionable medical necessity, and Petitioner Rowe had misdiagnosed a patient's condition. On or about July 24, 1991, Respondent initiated a second action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the July 24, 2991 Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.D. DBPR Case No. 01-11377 Count II patient R.M. DBPR Case No. 01-11378 Count III patient S.R. DBPR Case No. 01-12140 Respondent alleged in the July 24, 1991, Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.D. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; and Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Patient R.M. (Count II) Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry of dental hygiene. Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient S.R. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. The July 24, 1991, Administrative Complaint was filed at the direction of the April 10, 1991, Probable Cause Panel of the Board of Dentistry. The panel was composed of members Donald Cadle, D.M.D., William Robinson, D.D.S., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the April 10, 1991, panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the April 10, 1991, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the three investigative reports together and recommended that the Department file charges as a single filed administrative complaint. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the April 27, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about April 27, 1990, the department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about December 13, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about February 21, 1991, February 27, 1991, and February 28, 1991, Dr. Lilly issued individual detailed reports from review of the investigative materials again noting several areas of concern with each patient's treatment and the billing associated with that treatment. Dr. Lilly again noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. Dr. Lilly noted that, despite the verification of completeness of records executed by the records custodian and obtained during the investigation of the allegations against Petitioner Rowe, certain patient records and billing information were clearly missing from some patient files. Despite lack of detailed discussion about the Department's recommendations, the April 10, 1991, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly's findings from review of DBPR Case Numbers 01-11377, 01- 11378 and 01-12140 were not dissimilar from those found in reviewing other investigative reports concerning Petitioner. Respondent's investigation of the allegations against Petitioner Rowe was extensive and included information gathering and interviews with the patients, Petitioner Rowe, Frank Murray, D.D.S., and others. On or about December 20, 1990, Respondent initiated an action against Petitioner Toombs, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. The December 20, 1990, Administrative Complaint filed against Petitioner Toombs concerned allegations filed by patient J.T., who had also filed a similar complaint against Petitioner Rowe. Both Petitioner Rowe and Petitioner Toombs disclaimed any knowledge about the care and treatment J.T. had received from them. Petitioner Toombs claimed that Petitioner Rowe and Dr. Frank Murray were responsible for setting the fees charged for services. Petitioner Toombs claimed that he was aware excessive charges had been incurred by some patients who had seen Petitioner Rowe and that the dental practice was aware of the problem and had ignored the problem. Respondent's investigation of Petitioner Toombs was coordinated with its investigation of Petitioner Rowe. In the Administrative Complaint filed December 20, 1990, Respondent alleged that Petitioner Toombs committed the following violations: Patient J.T. Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient. The December 20, 1990, Administrative Complaint was filed at the direction of the November 2, 1990, Probable Cause Panel of the Board of Dentistry, which had also considered the investigative materials for Petitioner Rowe. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990, panel meeting, with the Department's recommendation that an administrative complaint be filed against Petitioner Toombs. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the November 2, 1990, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the investigative report and recommended that the Department file and administrative complaint against Petitioner Toombs. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek a suspension, probation, and fine in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative report to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The June 4, 1990, Probable Cause Panel expressed specific concerns about the billing practices and on the care provided to the patient, i.e., the immediate seeking of oral surgery prior to excluding the use of less invasive techniques. The Panel found that expert review as necessary. On or about July 18, 1990, Respondent forwarded the investigative report for Petitioner Toombs, as well as the reports for Petitioner Rowe, to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, Dr. Lilly issued his report from review of the investigative materials noting several areas of concern with patient J.T.'s treatment and the billing associated with treatment. Dr. Lilly noted that Petitioner Toombs seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and service. Despite lack of detailed discussion about the Department's recommendation for Petitioner Toombs, the November 2, 1990, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from the patient J.T., interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. Respondent's investigation of the allegations against Petitioner Toombs was extensive and included information gathering and interviews with the patient, Petitioner Rowe, Petitioner Toombs, subsequent providers, Frank Murray, D.D.S., and others. On or about July 24, 1991, Respondent amended the Administrative Complaint filed against Petitioner Toombs without substantially altering the alleged violations committed by Petitioner Toombs. In each case, Respondent was required by Section 455.225(4), Florida Statutes, to file the administrative complaints at the direction of the Probable Cause Panel for the Board of Dentistry and prosecute the administrative complaints against the Petitioners according to Chapter 120, Florida Statutes. Both Petitioner Rowe and Petitioner Toombs disputed the allegations of the administrative complaints and the cases were referred to the Division of Administrative Hearings for formal hearing. Petitioner Rowe, without objection from Respondent, sought consolidation of DOAH Case Number 91-03213, representing the charges of the April 10, 1991, Administrative Complaint against him, with DOAH Case Number 91- 6022, representing the charges of the July 24, 1991, Administrative Complaint against him. Petitioner Rowe's cases were consolidated into a single proceeding on or about October 2, 1991. On or about October 18, 1991, this Hearing Officer entered an Order to Show Cause why Petitioner Toombs' case should not be heard concurrently with Petitioner Rowe's consolidated cases. Respondent did not object to hearing the cases concurrently and an Order was issued on November 4, 1991, setting Petitioner Toombs case for hearing concurrently with Petitioner Rowe's consolidated cases. On or about November 4, 1991, Respondent with the full agreement and consent of Petitioners Rowe and Toombs, requested consolidation of the then existing two proceedings. On or about November 18, 1991, the proceedings against Petitioners Rowe and Toombs were consolidated into a single action by Order of this Hearing Officer. During discovery, Petitioner Rowe obtained the original patient records for the eight patients at issue in the consolidated proceeding from Dr. Murray and/or the Central Florida Dental Association. Counsel for Petitioner Rowe provided the Respondent with copies of the records he had obtained in discovery. Counsel for Petitioner Rowe found that approximately 426 pages of records were then contained in the files of Dr. Murray and/or the Central Florida Dental Association, which had not been previously provided to the Respondent despite certification that the records provided to Respondent were complete. The majority of the records obtained by Petitioner Rowe, subsequent to the original finding of probable causes, were records of billing information not previously contained in the patient records. Based on the additional records, Petitioner Rowe and the Respondent moved this Hearing Officer to permit Respondent to amend the administrative complaints against Petitioner Rowe, which request was granted by this Hearing Officer. On or about April 9, 1992, Respondent conferred with the Probable Cause Panel of the Board of Dentistry for the purpose of amending the administrative complaints against Petitioner Rowe. The April 9, 1992, Probable Cause Panel was composed of members William Robinson, D.D.S., Faustino Garcia, D.M.D., and Robert Hudson. Prior to presentation of the proposed amended administrative complaint to the April 9, 1992, Probable Cause Panel, Respondent obtained the assistance of Reda A. Abdel-Fattah, D.D.S. in evaluating the patient records and in the drafting of the amended complaint. Prior to the Panel's consideration of the investigative materials, the Respondent obtained from Petitioner Rowe approximately 426 additional pages from the patient records of the Central Florida Dental Association and/or Dr. Murray and received additional records and information through supplemental investigation. Before directing that an amended administrative complaint be filed against Petitioner Rowe, the panel members at the April 9, 1992, meeting indicated that he had received the investigative materials and reviewed the materials along with the Department's recommendation to amend the complaint. Following receipt of the material and after having the opportunity to inquire of counsel, the April 9, 1992, Probable Cause Panel directed that the proposed Amended Administrative Complaint be filed against Petitioner Rowe. The Amended Administrative Complaint was filed against Petitioner Rowe, at the direction of the April 9, 1992, Probable Cause Panel, on or about April 22, 1992, and alleged the following violations: Count I Section 466.028(1)(b), Florida Statutes by having had a license to practice dentistry acted against by the licensing authority of another state; and/or Section 466.028(1)(jj), Florida Statutes by having failed to report to the Board, in writing, within 30 days if action has been taken against one's license to practice dentistry in another state. Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1978) by making deceptive, untrue or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonable calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VIII patient S.R. DBPR No. 01-12140, DOAH 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count IX patient J.T. DBPR No. 89-13187, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count I of the Amended Administrative Complaint was based on records obtained from the Tennessee Board of Dentistry and had not been previously charged as a violation in this proceeding. Panel Member Donald Cadle, D.M.D., had originally requested in the meeting of April 27, 1990, that the Department included findings as to the Tennessee Board of Dentistry's discipline of Petitioner Rowe in its expert review as possible violation of Section 466.0268(1)(jj), Florida Statutes. Dr. Cadle withdrew his request, after discussion with Panel Member Robert Ferris, D.D.S., finding that the previous disciplinary action was too remote in time for the statute to be applicable in Petitioner Rowe's case. The Probable Cause Panel of April 9, 1992, revisited the issue of the Tennessee Board of Dentistry's discipline of Petitioner Rowe and found that it should be included in the current disciplinary proceeding as part of the amended complaint. The panel failed to recognize the effective date of Section 466.028(1)(jj), Florida Statutes. After considering the additional records provided by Petitioner Rowe and the records obtained in supplemental investigation, the Amended Administrative Complaint dropped the previous allegations that Petitioner Rowe had violated Section 466.028(1)(m), Florida Statutes by failing to keep adequate written records for each patient. The remaining allegations of the original administrative complaints filed against Petitioner Rowe were included in the Amended Administrative Complaint and the following additional allegations were made for each patient: Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry. Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Count VIII patient S.R. DBPR No. 01-12140, DOAH No. 91-6022 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Count IX patient J.T. DBPR No. 13187, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(jj), Florida Statutes was added as a disciplinary provision for the Board of Dentistry effective July 6, 1990, pursuant to Section 3, Chapter 90-341, Laws of Florida (1990). Section 466.028(1)(n), Florida Statutes was repealed effective April 8, 1992, pursuant to Section 6, Chapter 92-178 Laws of Florida (1992). A formal hearing was held on the charges of the Amended Administrative Complaints beginning on or about November 9, 1992, and ending on or about November 13, 1992. As sanction for his non-compliance with prehearing discovery, Petitioner Toombs was limited at the formal hearing to the cross-examination of witnesses and the ability to object to evidence but was not permitted to call witnesses or enter evidence on his behalf. At the formal hearing, the patient records were found to be inherently unreliable and untrustworthy as evidence, due to the inconsistencies found to then exist in the patient records. At the formal hearing, it was established that Frank Murray, D.D.S. had custody and control of the patient records and that he had full control over patient billing and the fees charged for the treatment or services rendered through the Central Florida Dental Association. At the time Petitioner Rowe provided treatment or services to the patients who were the subject of the administrative complaints and amended administrative complaints, Petitioner Rowe was an employee and a shareholder of the Central Florida Dental Association. At the time that Petitioner Rowe provided treatment or services to the patients at issue in the underlying disciplinary proceeding, Frank Murray, D.D.S. made all operational decisions affecting the clinic and its patients. Petitioner Toombs was an associate dentist working for the Central Florida Dental Association and was not a shareholder of the clinic. At the time these cases were investigated, Respondent permitted individuals from whom patient records were sought to copy those records and provide the records to Respondent with an executed verification of completeness of records. For each patient who was the subject of the Respondent's investigation, an employee of the Central Florida Dental Association copied the patient records and submitted the records to the Respondent's investigator with a verification of completeness of records. There was no reason for the investigator to question the accuracy of the executed verification of completeness of records and the patient records appeared generally consistent across patient files. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action finding that Petitioner Rowe had violated Section 466.028(1)(b), Florida Statutes. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action dismissing all charges against Petitioner Toombs and the remaining charges against Petitioner Rowe. At the time services were provided to the patients by Petitioners Rowe and Toombs, Section 466.018, Florida Statutes, required that there be a dentist of record identified in the patient record. Section 466.018, Florida Statutes (1987) provided that the dentist of record was presumed responsible for the patient's care and treatment unless otherwise noted in the record. The records maintained for each of the patients at issue in the underlying disciplinary proceeding revealed that either no dentist of record had been charted or that Petitioner Rowe was the treating dentist of record as indicated by the patient medical history form and the health insurance claim forms submitted on behalf of the patient. Absent the identification of the dentist of record in the chart, Section 466.018(2), Florida Statutes (1987) provided that the owner of the dental practice was the dentist of record for the patient, in this case, Frank Murray, D.D.S., Petitioner Rowe, and the other shareholders of the dental practice. Section 466.018(4), Florida Statutes provided that a dentist of record could be relieved of his/her responsibility to maintain dental records by transferring records to the owner dentist and maintaining a list of all records transferred. There was no evidence presented during the investigation of the underlying disciplinary proceeding or offered at formal hearing to demonstrate that either Petitioner Rowe or Petitioner Toombs had complied with Section 466.018(4), Florida Statutes in transferring patient records to Frank Murray, D.D.S. or the Central Florida Dental Association, i.e., a written statement signed by dentist of record, the owner of the practice, and two witnesses, that listed the date and the records transferred to either Frank Murray, D.D.S. or Central Florida Dental Association.
Recommendation Based on the foregoing, it is hereby, ORDERED: That Petitioners' requests for award of attorney's fees and costs are DENIED. DONE AND ORDERED this 23rd day of November, 1994, in Tallahassee, Leon County, Florida. MARK CLARK 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 23rd day of November, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioners, pursuant to Section 120.59(2), F.S. Adopted in Paragraph 1. & 3. Rejected as unnecessary. Adopted in part in Paragraph 64. The charges with regard to influence for financial gain were included in the amended complaint. & 6. Rejected as immaterial. The panel explained in an earlier meeting that its real concern was with the exercise of influence for financial gain. Rejected as contrary to the weight of evidence. Adopted in Paragraph 54. Rejected as argument that is not supported by the record or immaterial. Adopted in conclusions of law, as to section 57.111, but rejected-as immaterial as to section 120.59(6)(a), F.S. since the agency is not a "nonprevailing party". Adopted in conclusions of law. This finding is, however, disputed by Respondent. Adopted in Paragraphs 2 and 3. Adopted in Paragraph 4 14.-16. Rejected as contrary to the weight of evidence. 17.-19. Rejected as unnecessary, given the conclusion that the complaints were "substantially justified" at the time they were filed. COPIES FURNISHED: Mr. William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0765 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, Florida 32789 Jon M. Pellett, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner is entitled to an award of attorney’s fees and costs pursuant to Section 57.111, Florida Statutes (2007).1
Findings Of Fact On November 2, 2006, the Department filed with the Board of Medicine a one-count Administrative Complaint against Dr. Thompson, alleging that Dr. Thompson violated Subsection 458.331(1)(t), Florida Statutes (2003). The Administrative Complaint was based on a probable cause finding by the Probable Cause Panel of the Board of Medicine (Panel) on October 27, 2006. The Panel included two physicians. Prior to the meeting of the Panel on October 27, 2006, the members of the Panel received the following materials on the cases to be considered: “the complete case files, including any patient medical records, expert opinions, if any, any materials supplied by the licensee or their counsel” and a draft of the Administrative Complaint. The file on Dr. Thompson included the investigator’s file; the expert opinions of Thomas F. Blake, M.D., F.A.C.S.; Dr. Blake’s curriculum vitae; medical records for the treatment of T.C.; and letters from Bruce M. Stanley, Sr., counsel for Dr. Thompson, along with a draft of the Administrative Complaint. At the Panel meeting, the members indicated that they had received the materials with sufficient time to review and familiarize themselves with the materials. The Panel members did not find any problems with the materials such as missing pages or illegible copies. Additionally, the panel members indicated that they had no conflict of interest or prior knowledge of the cases before them that would make it inappropriate to deliberate and vote on the issues. In the case of Dr. Thompson, the Panel was supplied with expert opinions from Dr. Blake. Dr. Blake was a diplomat certified by the American Board of Obstetrics and Gynecology, a fellow of the American College of Surgeons, and a fellow of the American College of Obstetricians and Gynecologists. By letter dated December 20, 2004, Dr. Blake rendered the following opinion concerning the care provided by Dr. Thompson: Thompson, M.D. fell below the standard of care by abandoning a patient under general anesthesia and leaving the facility to attend to another patient. However, there were no complications or injury to either patient. The potential problem would be that he would unexpectedly be confronted with complications in the delivery. This could detain him for a prolonged period of time and place the patient under anesthesia in jeopardy of having to have the anesthesia discontinued and subjecting her to further risks. By letter dated December 29, 2004, the Department requested clarification on the issue of whether there were any identifiable deficiencies or problems with the medical records that were maintained by Dr. Thompson. Dr. Blake sent an addendum to his report dated January 11, 2005, in which he gave the following opinion: Medical records utilized in the treatment of the patient are complete and justify the treatment. There are no identifiable deficiencies or problems with the medical records maintained by the subject. At the Panel meeting, an attorney for the Department summarized the case against Dr. Thompson as follows: Patient T.C. presented to the surgery center for several gynecological procedures. While T.C. was under general anesthesia, the Respondent physically left the surgery center to attend to another patient in another building. Respondent delivered a baby of that other patient. T.C. was left under the care of a certified registered nurse anesthetist. After returning from delivering the child, Respondent finished the gynecological procedure. The Department is charging a violation of Section 458.331(1)(t), for violation of the applicable standards of care by leaving T.C. for several minutes in the middle of surgery and in between procedures while she was under a general anesthesia, by failing to notify the patient that Respondent had left and by failing to note in the medical record that Respondent had left the building. The Panel members discussed the case against Dr. Thompson during the meeting and voted on the case, finding there was probable cause to believe a violation had occurred. The findings of the Panel resulted in the issuance of the Administrative Complaint. The case was received by the Division of Administrative Hearings on February 8, 2007, for assignment to an Administrative Law Judge to conduct the final hearing. The Department retained another expert, Jose H. Cortes, M.D., F.A.C.O.G, to provide an opinion concerning Dr. Thompson’s actions relating to the treatment of T.C. By letter dated February 27, 2007, Dr. Cortes opined that Dr. Thompson fell below the standard-of-care while attending T.C. by leaving the operating room and going to another building to attend to another patient. Dr. Cortes was also of the opinion that Dr. Thompson did not adequately maintain the medical records for T.C. by the following actions: The departure from the normal course of surgery such as leaving the operating room was not documented by the attending physician, the outpatient establishment nursing staff, nor the anesthesia attending or nurse anesthetist. A signed consent form not available. * * * As the record documents the evaluation of 07/18/03 and 08/05/03 by the Physician Assistant describes the patient’s complaint and ultrasound study review respectively. The blood count presented from 07/18/03 shows a Hemoglobin of 13.6 gms and Hematocrit of 40.1 percent with normal indices, a pelvic ultrasound which documented fibroids of less than 2.1 cm in size each. With the above findings a conservative management strategy is usually employed initially and the patient is followed prior to recommending any surgical procedure unless declined by the patient. However, all of this has to be documented as recommended by the literature and agencies which review patient care and guidelines such as KePRO. On July 10, 2007, the Department filed a motion to amend the Administrative Complaint, which motion was granted by Order dated July 13, 2007. The Amended Administrative Complaint added a count alleging a violation of Subsection 458.331(1)(m), Florida Statutes (2003), alleging that Dr. Thompson: [F]ailed to keep legible medical records justifying the course of treatment by failing to document in T.C.’s medical records that he left the building during the procedures he performed on T.C. on or about September 11, 2003, and/or by failing to document any discussion with T.C. about alternative treatment options such as discontinuing oral contraceptives, a formal dilation and curettage, and/or the use of a Mirena IUD to address T.C.’s problems or concerns. The final hearing was held on July 27, 2007. A Recommended Order was entered on October 31, 2007, recommending that a final order be entered finding that Dr. Thompson did not violate Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2003), and dismissing the Amended Administrative Complaint. A Final Order was entered on December 18, 2007, adopting the findings of fact and conclusions of law of the Recommended Order and dismissing the Amended Administrative Complaint against Dr. Thompson. The parties have stipulated to the reasonableness of the fees and costs claimed by Dr. Thompson. Dr. Thompson has incurred $34,851.00 in attorney’s fees and costs. The parties have stipulated that Dr. Thompson is a prevailing small business party and that Respondent is not a nominal party to this action.
Findings Of Fact At all times relevant to the issues involved in this hearing, the Respondent was licensed as a registered nurse, having been licensed on September 1, 1967, by examination, with license number 41856-2. At all times pertinent to the issues involved in this hearing, Respondent was employed as a registered nurse at Gulf Coast Community Hospital (GCCH), Panama City, Florida. On August 4, 1983, Dr. David W. Scott, an orthopedic surgeon with practice privileges at GCCH, treated Arthur Collins in the emergency room of that hospital. After taking a history from the patient and examining him, he concluded that Mr. Collins was a drug addict who had the ability to manipulate physicians for the purpose of obtaining narcotics. As a part of his treatment of this individual, Dr. Scott prescribed 100 mg of Demerol four times a day which was obviously insufficient for Mr. Collins who had developed a drug tolerance. As a result, Dr. Scott added an additional drug, Vistoril, to augment the Demerol. Before leaving the hospital that night, and because Mr. Collins was obviously addicted to narcotics, Dr. Scott left an oral order with the nurse on duty at the nurses' station, subsequently identified as Ms. Habersham, not to increase the dosage prescribed for the patient, not to give additional narcotics, and not to call the on-call physician in the event Mr. Collins complained of pain. The reason for this last instruction concerning the physician was to prevent the on call physician, who might not know the patient's history and of his drug addiction, from prescribing additional narcotics. Ms. Habersham worked as a charge nurse on the day shift during this period and recalls patient Collins. When she was relieved by the Respondent at the end of her shift, she passed Dr. Scott's orders on to her. Consequently, it is clear that Respondent was aware of Dr. Scott's order not to increase Collins' dose and not to contact the on-duty physician in the event Collins asked for more medicine. Nonetheless, Respondent admits giving Mr. Collins an injection of 125 mg of Demerol even though the doctor's order called for a 100 mg dose. She justifies this on the basis that the patient had said he was in great pain and constantly kept coming to the nurses station begging for more medication. She observed him to be sweating and grabbing at his stomach. Based on her experience in the Army Nurse Corps and the Army Surgeon General's recommendation for a 125 mg dose of Demerol in situations such as this, and because she did not want to wake up Dr. Rohan, the on-call physician, she gave the additional dose on her own authority feeling she could get Dr. Rohan's approval later on. Dr. Rohan recalls only an incident in August of 1983 where he got a call from a nurse whose name he cannot remember for a "cover order" for a medication. As he recalls it, the nurse in question called to notify him that she had administered more of a drug than was called for in the doctor's order. It was his understanding, however, that the nurse had given too much by accident and was telling him about it after-the-fact, not in advance, to authorize a higher dose. It is clear from the above, therefore, that Respondent called Dr. Rohan after she had administered the higher dosage to Mr. Collins on her own authority. Respondent indicates, however, that Ms. Habersham had told her that if this particular patient needed more medication he was to get it and that the nurse should secure the authorization by phone. Respondent presented no evidence to support this, however, and though she contended she had a witness to this conversation, the witness was not presented. Respondent contends that she could change the amount of medication prescribed by the physician if it was necessary. She claims that nurse-practitioners can do this within the protocols set down by a physician. Respondent was not then nor is she now a nurse practitioner. During the month of February, 1984, Linda Marie Jones was unit coordinator for three units at GCCH, including Respondent's. Part of her job involved the monitoring of and investigation of drug discrepancies. During this time, Mr. Jones was conducting an audit of drug accountability in Respondent's unit. This audit, while not based on any suspicion of misconduct by any employee, resulted in a determination that one Nembutal tablet was missing from the unit. A check of the records reflected that this medicine had not been ordered for any patient on the unit that day. She then checked the patients' charts to see if a Demerol 100, a similar drug, had been used, and as a part of this procedure, she found that in the case of some patients, two different records dealing with a specific administration of medication did not agree. Her check of all records on the unit revealed that only the Respondent had any discrepancies. All other nurses' records were satisfactory. Her investigation included a comparison of the medication administration record (MAR) with the nurses notes on which the same administration was to be noted. In the course of her investigation, she checked six patient records, including those of patient Haire, patient Oakley, and patient Crosby. At the conclusion of her investigation, she prepared a summary of her findings which she presented to Ms. Flemister, the Director of Nursing. Ms. Flemister met with Respondent and showed her a copy of the report. At that point, Respondent denied having taken any of the medications and said that she could not figure out why the discrepancies existed. As to the Nembutal, which prompted the investigation initially, Respondent remembered cleaning out the narcotic box the first time, but did not identify a shortage at the time. As a result, the missing Nembutal was attributed to "wastage" and when that happens, the wastage must be recorded on the narcotics sheet. This Nembutal wastage was not recorded by Respondent or any other nurse. Ms. Jones admits, however, that there is no evidence to connect Respondent with the wastage of the Nembutal any more than any other nurse assigned to that floor. With regard to an administration of Morphine Sulfate to patient Haire at 9:00 P.M., on February 6, 1984, the narcotics control sheet fails to show that morphine sulfate was administered to this patient on that occasion. With regard to the 8:30 P.M. administration of Morphine Sulfate to patient Haire on February 5, 1984, the narcotics control sheet reflects that Respondent recorded the administration of this medicine but does not reflect the date in question. The entry made reflects the patient's room rather than the date. As a result, it is impossible to tell if the administration was done on February 4 or February 5. However, the Respondent did reflect this administration on the nurses' notes although in the wrong place. As to the issue of Respondent's signing out Morphine Sulfate for patient Haire at 7:00 A.M. on February 5, the evidence establishes that she did sign out both Morphine Sulfate 100 and Demerol 100 as alleged. The MAR reflects some entry but it is impossible to determine what the entry is or to what drug it refers and Respondent's nurse's notes for that date are silent. The medical records pertaining to patient Oakley for February 5, 1984, reflect that, as to the nurses' notes, the patient was given medication for pain but the notes fail to show what type of medication was administered. It could have been aspirin or tylenol and the note should have said what medicine was administered. This administration was not listed on either the narcotics control sheet or the MAR. If the substance given was not Demerol or Morphine Sulfate, it need not appear on the narcotics control sheet, but whatever it was, it should have been listed on the MAR and it was not. The records regarding patient Crosby reflect that on February 5, 1984, Respondent signed out 75 mg Demerol for the patient as alleged. The notes do not, however, reflect that she administered Demerol specifically. They reflect only that she administered some medication. As to the 9:30 P.M. dose of Demerol on February 5, 1984, Respondent did sign out Demerol at that time but the nurses' notes do not reflect what the substance administered was. Patient Haire's records reflect that on February 4, 1984, Respondent signed out Morphine Sulfate for the patient. The nurses' notes reflect that at 8:00 P.M. on that date, she administered a "pain medication" to the patient without defining what that medication was. The record does not indicate that Morphine Sulfate was administered. The narcotics control sheet for this period is not dated so it is impossible to determine whether Morphine Sulfate was listed on its document or not. However, the MAR reflects that Respondent administered Morphine Sulfate to this patient at 6:00 A.M. On February 4, 1984, Respondent signed out Demerol for patient Oakley and properly noted this on the narcotics control sheet but the nurses' notes fail to show that the substance was administered as required. Later on, at 8:30 P.M. the same day, Respondent again signed out Demerol for Patient Crosby listing on the narcotics control sheet the patient's room number but not the date. Other dates on the sheet lead to the conclusion that it was February 4, however Respondent thereafter failed to record the drug's administration on the nurses' notes. She also signed Demerol out for Patient Crosby at 7:30 P.M. on February 4 though the narcotics control sheet fails to reflect the date - only the room number. This administration is in the MAR at 8:30 P.M. rather than at 7:30 P.M. but is not in the nurses' notes at all. On February 3, 1984, Respondent recorded in her nurse's notes that she administered Demerol to patient Crosby at 8:00 P.M. The narcotics disposition record (narcotics control sheet) shows that she signed the medication out between 8:00 and 9:00 P.M., but it is impossible to tell with certainty the exact time. It is obvious that Respondent's handwriting is poor. This fact adds to the difficulties encountered from the way in which Respondent kept her records. In the opinion of Ms. Jones, who has been doing quality assurance checks for a number of years, Respondent's records are inaccurate, inconsistent, incomplete and totally insufficient for a nurse on the next shift to know what medications have been given and what must be done. In this area alone, Ms. Jones was of the opinion that Respondent's charts are below the minimum standards for nursing practice in the area and even though her own report was erroneous in some respects, there are still enough verified errors by the Respondent to support her opinion that Respondent's performance is less than acceptable. Respondent admits that some but not all of the charges against her are true. Though she may have mischarted her administration of drugs she never took the drugs herself. The patient always got the drug that he or she was supposed to get and her errors were errors only as to the recordation of time. They were administrative errors, not substantive errors. She contends that in February, 1984, because the floor on which she had been charge nurse since December, 1981 had been closed, she was forced into a staff nurse position. This was not a good situation and as a result of the closing of that floor, several nurses quit. This loss of nurses resulted in more patients per nurse to the point where Respondent felt that patient safety was in danger. She contends she tried to tell Ms. Jones about this but Ms. Jones would not see her. All of a sudden, she found herself called in front of Ms. Flemister and Ms. Jones and terminated based on the alleged inaccuracies in her records. Respondent contends she received no information about this other than that contained in Ms. Jones' summary and in that regard she says, Ms. Jones assured her that her summary was correct and in no way tried to explain the inaccuracy of the records. Respondent contends that she had frequently asked her supervisors for extra help but never got any. She contends she had as many as 18 patients to handle by herself and at the time involved in the records discrepancies here, she had 8 patients on the floor. She contends that the errors to which she admits were due to her hectic schedule. As a single parent, she was working, she says, between 60 to 80 hours per week on two jobs and had a sick child at home. Ms. Flemister, on the other hand, says that Respondent had plenty of help. At the time, Respondent was working the night shift from 7:00 P.M. to 7:00 A.M. The shift was staffed by 4 registered nurses, 2 licensed practical nurses, and a secretary, and in her opinion, this staff was well within the normal range of staff-patient ratio. Ms. Flemister contends that while Respondent was on duty, she had between 5 and 6 patients to take care of. She was the charge nurse for the shift and therefore had less patients than a regular floor nurse. She admits that Respondent did complain about being shorthanded, but these complaints were neither constant nor repeated and were never submitted through proper channels. Ms. Flemister contends that prior to this time Respondent had been counseled about her writing and documentation, but there has been no evidence of any discrepancies other than those involved in this case. There are certain procedures followed at GCCH and a part of Ms. Flemister's job is to oversee the standards of the hospital, the Board of Nursing, and the Joint Committee on Hospital Accreditation as they are applicable at this hospital. On the first day of duty, all new nurses are given an orientation which includes records management and how to use a medication cart. A medications test is given and a model cart is used in this training. On the cart, each patient has his or her own area. Narcotics and barbiturates are kept together. Medication administration records, including a page for every patient, are kept with the cart. Each administration of medication is supposed to be recorded and each use of narcotics is supposed to be listed on the narcotics sheet with the name of the patient, the date, the drug, and the nurse administering it. Medications are first called for in the doctor's orders and are checked by the secretary and the nurse who checks and signs it initially. The doctor's orders are then used to give medications. When a nurse gives a medication she checks the doctor's order against the medical records and then prepares the medicine, administers it, charts it and signs it off. The entry is recorded on the medical administration record and it and the charting register are both on the cart. The nurse goes back to the nurses' station to record the administration of the medicine in the nurses' notes which are kept in the patient record. This method of documentation is set out in the hospital policy and procedures which are given to all nurses. Accurate medication records are important so that nurses on subsequent shifts do not administer a drug too soon after the last dose was given and thereby create an overdose. Therefore, medications are logged in several different locations because state law requires it to promote agency oversight by the pharmacy and the Department of Nursing, and because the record is used at shift change to insure an accurate count of narcotics on hand on the medicine cart. Failure of employees to follow the hospital procedures results in the following sequence of events: reprimand; counseling; a written reprimand; and discharge; all depending, of course, on the seriousness of the offense. However, after the discussion with Ms. Flemister and Ms. Jones Respondent was terminated because of the discrepancies between the narcotic record and the poor and illegible documentation in the nurses' records and elsewhere. Respondent, on the other hand, claims that though she has been licensed in the State of Florida since 1967 and has worked at GCCH since 1981, there has never been any prior disciplinary action taken against her nor has she received any prior complaints about her method of charting or administration of drugs and she was doing it as she usually does in February, 1984. Notwithstanding her protestations of no prior disciplinary action, however, the records reveal that Respondent was given a two-day suspension for the incident involving the over administration of Demerol to Mr. Collins and advised that a repeat discrepancy would result in her discharge. It is important to note that as a part of the investigation into Respondent's alleged misconduct, she was requested to provide a urine sample for urinalysis. This routine drug screen revealed no use of controlled substances within the seven days prior to the test which was accomplished on February 20, 1984.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent Martin Kasner was licensed to practice medicine in the State of Florida having been issued license number ME0031141 on August 24, 1977. At all time pertinent to this proceeding, Respondent maintained an office at 1911 North Andrews Avenue, Wilton Manors, Florida 33311. There is no evidence that Petitioner has ever been the subject of prior disciplinary action by the Petitioner, Department of Professional Regulation, Board of Medicine ("the Board"). On June 7, 1988, Detective Robert Trawinski of the Broward County Sheriff's Office visited Respondent's office in an undercover capacity posing as a new patient identifying himself as Robert Conti. Detective Trawinski had never previously worked in an undercover capacity in a doctor's office. Prior to Detective Trawinski's June 7, 1988 visit to the Respondent's office, Detective Trawinski met with Sergeant Clukey of the narcotics division of the Broward County Sheriff's Office and Mel Waxman, an investigator for the Petitioner. Detective Trawinski was instructed to try to obtain a prescription for Valium from the Respondent without giving any valid medical purpose. Valium or Diazepam is a Schedule IV controlled substance that is not an analgesic, but is a potent tranquilizer and skeletal muscle relaxant which can have adverse effects on sensorium. It is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. Individual patients taking Valium can become dependent on the drug and withdrawal from addiction to the drug can lead to potentially life-threatening health problems. Detective Trawinski was not advised as to all of the potentially acceptable medical purposes for which Valium could be used. He understood his instructions to mean that he should not voice any complaint of pain. Prior to seeing the Respondent during this first visit, Detective Trawinski filled out a medical questionnaire in Respondent's office using the fictitious name Bob Conti. In filling out the questionnaire, Detective Trawinski did not state any specific medical complaints. The patient's blood pressure was taken by a nurse in the office and recorded at 150/84. That reading tends to confirm the patient's subsequent complaint of anxiety. During the June 7, 1988 visit, Detective Trawinski advised Respondent that he was having problems performing sexually and was experiencing some anxiety as a result of job and family problems. Detective Trawinski also advised the Respondent that he had previously obtained prescriptions for Valium from a doctor up north and the drug had helped calm him down. Detective Trawinski advised the Respondent that the Valium he had previously been taking relaxed him and alleviated many of the symptoms of which he was complaining. During this first visit, the Respondent took a limited medical history from the patient including questions regarding possible alternative sources of the patient's complaints such as diabetes and thyroid problems. The patient denied a history of any such possible alternative causes for his symptoms. During the first visit, the Respondent made preliminary overtures towards conducting a physical examination of the patient. However, the detective told the doctor he did not want a physical. Respondent advised the Petitioner that he should consider having a blood work-up, but the Respondent indicated that because the tests were so expensive, the patient could wait until he had the money. At the conclusion of the June 7, 1988 visit, the Respondent issued a prescription to Detective Trawinski for 30 ten milligram Valium tablets with the ability to refill the prescription three times. The patient was advised to take two Valium per day as needed and one at night as a sleeping pill. At the time of the first visit, Detective Trawinski did not know the therapeutic use for Valium and was not advised of the appropriate use for Valium by his superiors. In actuality, a prescription for Valium was not inappropriate for the patient given his high blood pressure, complaints of anxiety and minor sexual dysfunction which could have been related to anxiety. Detective Trawinski returned for a second visit to the Respondent's office seventeen days later on June 24, 1988 at which time the patient's blood pressure was recorded at 164/80 which could reflect anxiety on the part of the patient. During this second visit, the Respondent questioned the patient regarding his appetite and medical history. Detective Trawinski denied a history of thyroid trouble, hayfever, etc. The Respondent conducted a limited physical examination of the patient checking his lungs and his heart rate. During the June 24 visit, Detective Trawinski advised the doctor that, while he still had some anxious moments, the prescription for Valium was helping him. The Respondent asked the patient whether he had any Valium left. The patient responded that he did not have any and also advised the Respondent that he was taking the Valium as directed and was not sharing them with anyone else. At the conclusion of the second visit, the Respondent provided the patient with a prescription for 50 Valium tablets with two refills. While the medical records of Detective Trawinski's first and second visit are sketchy at best, the Valium prescriptions issued on these two occasions do not fall beneath the standard of a reasonably prudent physician under the circumstances. The third visit by Detective Trawinski to Respondent's office took place twelve days later on July 6, 1988. During that visit, the detective advised the Respondent that the reason the Valium were going so quickly was because he was sharing the prescription with his wife. Detective Trawinski attempted to obtain from Respondent a separate prescription for Valium for his wife. Detective Trawinski offered to pay Respondent the amount of an additional office visit if Respondent would issue a prescription in his wife's name. However, Respondent refused to accept the additional money or issue a prescription in the wife's name without seeing her. The Respondent stated that he would need to take a medical history and conduct a physical examination prior to prescribing anything for the patient's wife. The Respondent advised Detective Trawinski that his wife should not be taking prescription drugs without having seen a doctor and that, although the prescription seem to be working for him, it may not necessarily be good for his wife. The Respondent advised the patient that, while his wife could take a few of his Valium until she could make an appointment to see the doctor, an appointment should be made as soon as possible and that no one should take prescription medication without being seen by the doctor. Notwithstanding the cautionary statements to the patient regarding sharing the drug, at the conclusion of the third visit, Respondent increased the patient's prescription for Valium from 50 tablets to 100 tablets with 1 refill. In fact, Respondent originally made out the prescription for 50 tablets. However, after being advised that the patient was sharing the pills with his wife, the prescription was increased to 100 tablets. By increasing the prescription in this manner, the Respondent was excessively prescribing a controlled substance and fell below the standard of care expected in this community of a reasonably prudent similar physician under similar circumstances. On July 13, 1988, Detective Trawinski returned to Respondent's office with Deputy Somerall of the Broward Sheriff's Office posing as his wife, Jeanette Conti. Upon arriving at the doctor's office, Deputy Somerall was weighed and her blood pressure was taken. In addition, the doctor performed a limited physical examination including listening to her heart and lungs with a stethoscope. The Respondent took a limited medical history from Deputy Somerall and she stated that she was suffering from stress and that Valium seemed to relieve it. Deputy Somerall advised the Respondent that she had been taking some of the Valium prescribed for her purported husband. In response to questioning by the Respondent, Deputy Somerall stated that she took the Valium on an as needed basis and it did not cause her to be drowsy and seemed to relieve the stress and anxiety she sometimes experienced towards the end of the visit, the Respondent indicated he would issue a separate prescription for Valium for Deputy Somerall and stated that he did not want her taking pills from her husband without her seeing a doctor first. The Respondent issued a prescription in the name of Jeanette Conti for 30 ten milligram Valium tablets with two refills permitted. During the July 13, 1988 visit, the Respondent inquired of Detective Trawinski whether his prescriptions were holding out. After Detective Trawinski indicated that he needed additional prescriptions, the Respondent issued a new prescription in the name of Bob Conti for 100 ten milligram Valium tablets. No refills were indicated. During this fourth visit, Detective Trawinski told the Respondent that he had tried some Percodan and had enjoyed it. He indicated that the drug had helped him to perform sexually and requested the doctor to issue him a prescription for that drug. Percodan is a Schedule II Controlled Substance which is used to relieve moderate to severe pain. It is an opiate narcotic and can be addictive. At the conclusion of this fourth visit, the Respondent issued a prescription to Detective Trawinski for 30 Percodan tablets. The prescription did not provide for any refills. No valid medical reason was provided for the issuance of the Percodan prescription. While Respondent contends that the patient had previously complained of back pain and a prescription for Percodan was issued for that reason, no competent evidence was presented to establish that Detective Trawinski had ever made a serious complaint about back pain. Therefore, the Respondent fell below the standard of care expected of a reasonably prudent physician in this community by issuing the Percodan prescription. Likewise, the issuance of additional prescriptions for Valium in the name of Bob Conti was excessive when considered together with the previous prescriptions issued. Pharmacists in Broward County will sometimes contact a physician to advise him if a patient is attempting to refill a prescription sooner than it should be refilled. The Respondent was never contacted by any pharmacist or advised that his patients were attempting to refill their prescriptions sooner than they should and there is no indication that the Respondent was ever advised that all of the refills allowed under the prescriptions were obtained by the patient. Patients often overlook the ability to refill a prescription and return to the doctor for a new prescription. The Respondent specifically advised Detective Trawinski during one of the visits that he could get the prescriptions refilled without returning to see the doctor. This statement indicates that the Respondent assumed that the patient had not sought all the refills of the earlier prescriptions. While the Respondent might have assumed that the patient had not sought all the refills provided, the Respondent should have been more cautious about issuing so many prescriptions with refills permitted within such a short period of time. However, at no time was the Respondent informed or led to believe that the patient was selling the drugs to others. Although both patients were seen by the doctor and issued prescriptions during the July 13 visit, they were only charged Respondent's typical rate for a single visit, $30.00. On July 19, 1988, both Detective Trawinski and Deputy Somerall returned to the Respondent's office. During this visit, Deputy Somerall advised Respondent she had taken some of the Percodan prescribed for her purported husband and requested a prescription of her own. Deputy Somerall told the Respondent that she was using the drug as an aphrodisiac. Detective Trawinski advised the doctor that he was taking four Percodan per day because it made him feel good. Detective Trawinski advised Respondent that he did not have any Percodan remaining because he had used it during a party with another couple. The Respondent lectured both patients about the dangers of Percodan and told them that the drug was habit forming and should not be taken for recreational purposes. Respondent expressed surprise that the drug was serving as an aphrodisiac for the patients. While Respondent indicated he was reluctant to issue a new prescription for Percodan, he stated that the drug seemed to be providing some benefits to the patients and ultimately issued a prescription in the name of Bob Conti for an additional 30 Percodan tablets. Respondent would not issue a prescription for Percodan in the name of Jeanette Conti. Furthermore, when Detective Trawinski inquired about making an appointment for his brother-in-law to see the Respondent, the Respondent replied that if the intention was to obtain Percodan, he did not want to see the patient. However, he indicated he would be willing to see the brother-in-law if he was simply seeking a prescription for Valium. At no time did the Respondent adequately inform the patients regarding the synergistic effects of the use of Percodan and Valium nor did he adequately explain the risks associated with combining these drugs with alcohol or other substances. Moreover, Respondent failed to explore the possibility that the prescriptions he issued were increasing or exacerbating existing dependency by these Patients on the drugs involved. On July 25, 1988, Detective Trawinski returned to Respondent's office and requested that his prescriptions be renewed. The patient denied any medical complaints and there is no indication that any physical examination was conducted by Respondent. In response to Respondent's inquiries, Detective Trawinski indicated that he was following the Respondent's previous advice and use of the Percodan was "under control." At the conclusion of the July 25 visit, Respondent issued a prescription in the name of Bob Conti for 30 Percodan "for pain" and 50 Valium tablets. One refill was provided for the Valium prescription. No refills were indicated for the Percodan prescription. No valid medical reasons were provided for the prescriptions that were issued following the July 25 visit. There is no evidence indicating any pecuniary gain by the Respondent for writing any of the prescriptions in question. The only remuneration received by Respondent was his typical $30.00 office charge per visit. The written medical records which the Respondent maintained fail to adequately justify the course of treatment of the patients known to Respondent as Bob and Jeanette Conti (collectively referred to as the "Patients"). The records do not reflect repeated evaluation of the persistent symptoms or adequate evaluation and follow-up of the results of medication, either as to effectiveness or possible side effects such as dependency. Respondent's record-keeping with regard to the Patients falls below the acceptable standard. The records fail to include an adequate patient history and initial assessment of the Patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the Patient's background. In several instances, the Respondent's only notation of treatment is a listing of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken, especially with respect to the prescriptions for Percodan. The Respondent's medical records for patient Bob Conti contain a very limited patient history and general background information. For this patient's first two visits, there is a brief notation which includes the patient's blood pressure and weight. On the first three visits, there is a diagnosis of "chronic anxiety" without any further discussion. On the final three visits, only the medication prescribed is noted. The patient's records for these three last visits contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from Bob Conti's medical records the reason that Percodan was prescribed. The Respondent's medical records on the patient Jeanette Conti are similar to those previously described for patient Bob Conti. The office visit notes list no patient complaints or symptoms and no medical diagnosis or comprehensive assessments. While Respondent's counsel suggested that Respondent intended to supplement the medical records with additional information at a later date, no competent evidence was presented to support this claim. The Respondent was examined and tested by a psychiatric expert Dr. Klass. The results of the psychiatric examination indicate that the Respondent is not corrupt, but that he is corruptible, i.e., easily manipulated and overly compliant.
Recommendation Based on the forgoing 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 Respondent guilty of the violations alleged in Count One, Three and Four of the Administrative Complaint, dismisses Counts Two and Five, imposes an administrative fine in the amount $5000.00 and suspends Respondent's license for a period of two years followed by a three (3) year term of probation during which time Respondent's prescribing practices should be closely monitored. DONE and ORDERED this 3 day of May, 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 3 day of May, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 4-33. Subordinate to Findings of Fact 23, 24, 26, 29, 31 and 32. Rejected as constituting argument and a summary of testimony rather than a finding of fact. Rejected as constituting argument and a summary of testimony rather than a finding of fact. This subject matter is covered in Findings of Fact 34-37. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. The first sentence is adopted in substance in Findings of Fact 33. The second sentence is adopted in part in Finding of Fact 27. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Subordinate to Findings of Fact 34-37. Rejected as irrelevant. No evidence was presented to establish that the Respondent intended to further supplement the medical records. Rejected as not constituting a finding of fact. Subordinate to Findings of Fact 4-7 and 12. Rejected as a summary of testimony rather than a finding of fact. This subject area is covered in Findings of Fact 6-10. Subordinate to Findings of Fact 16. Rejected as a summary of testimony rather than a finding of fact. This subject area is addressed in Findings of Fact 27. Rejected as irrelevant and because it is merely a summary of testimony rather than a finding of fact. Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 27. Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 16. Subordinate to Findings of Fact 13-15. Subordinate to Findings of Fact 17 - 19. Rejected as constituting argument rather than a finding of fact. This subject area is addressed in Findings of Fact 19. Subordinate to Findings of Fact 20-23, 25, 26, and 28. Subordinate to Findings of Fact 29. Subordinate to Findings of Fact 30-33. Rejected as constituting argument and a summary of testimony rather than a finding of fact. Rejected as constituting argument. Rejected as constituting argument. Subordinate to Findings of Fact 38. 30. (SIC) Rejected as constituting argument. COPIES FURNISHED: Joseph Harrison, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 C. Craig Stella, Esquire Attorney at Law 200 S. Andrews Avenue Suite 300 Mercede City Center Fort Lauderdale, Florida 33301 Kenneth E. Easely General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of, Florida having been issued license No. 0033496. Respondent's address is 133 Darnell Avenue, Spring Hill, Florida 33626. Respondent rendered medical care and treatment to patient B.R. during the period July 11, 1985 to July 15, 1985 while she was a patient at the Oak Hill Community Hospital, Spring Hill, Florida for, among other things, acute transmural myocardial infarction. On or about July 15, 1985, patient B.R. died from acute myocardial infarction after resuscitative procedures were unsuccessful. Patient B.R. was brought to the emergency room at Oak Hill Community Hospital on July 11, 1985 by her husband after complaining of chest pains. Shortly after arrival she suffered a myocardial infarction and "coded." She was resuscitated and placed in the intensive care unit. As the medical services physician on call, Respondent was contacted and assumed the care of patient B.R., a 65 year old female. Respondent is Board-certified in internal medicine and is Board eligible in cardiology having completed a fellowship in cardiology at George Washington University in 1968. B.R. had formerly worked as a licensed practical nurse who suffered a back injury some years ago which resulted in back surgery three times. In 1978, some 10 years before her demise, B.R. suffered a heart attack. She also had a history of diabetes and recently had undergone a thyroidectomy. With this medical history she presented a complex case for care and treatment. With patient presenting the history and symptoms of B.R., a reasonably prudent physician would have ordered daily chest X-rays, had an echocardiagram taken, inserted a Swan-Ganz catheter and consulted with a cardiologist on the treatment of this patient. None of these were done by Respondent. While acknowledging those procedures above listed were clearly indicated, Respondent testified he suggested those procedures to B.R. but, while she was fully competent to understand his recommendation, B.R. refused to be further X-rayed, refused the echocardiagram because she thought it produced some type of nuclear radiation, and also specifically refused to have any tubes inserted in her veins which would result if the Swan-Ganz catheter was inserted. None of the patient's refusals to accept recommended procedures was charted in B.R.'s hospital records. Respondent testified that B.R. specifically directed him to not chart on her hospital record her refusal to undergo the test and procedures recommended by Respondent. Respondent further testified that following her refusal to undergo the test and procedures and under directions to him not to chart those refusals on the hospital chart, he put this history in his office notes. To corroborate thin testimony Respondent presented Exhibit 5, a copy of those office notes containing entries dated July 12, 13, 14, 15, and 23, August 13, September 26, December 13, 1985 and January 29, 1986, comprising 4 typewritten pages. While a patient has a absolute right to refuse treatment or procedures recommended by his/her physician, the patient does not have the right to direct the physician to prepare an incomplete record of his treatment and progress. The principal purpose of the chart is to record medical evidence of the patient's condition, treatment rendered and results obtained to provide a history from which another physician can, if necessary, adequately take over the care of the patient. The record also provides a history of the patient's response to treatment. Respondent's explanation that if he had expected to be away and another physician had to take over the care and treatment of B.R. he would have made the other physician aware of B.R.'s refusal to undergo the recommended procedures totally failed to satisfy the need for a complete record of the patient in one place. To prove the validity of the office notes as a "business record," Respondent testified that for the past 30 years he has maintained office notes in which he has placed information the patient didn't want in the hospital record. An expert witness in the field of questioned documents testified that each dated entry on Exhibit 5 was typed following a new insertion of the paper in the typewriter rather than all entries being typed at the same time or with the same insertion of the paper in the typewriter and this was consistent with what would be expected in normal office procedures. Respondent's office manager and secretary during the times reported on Exhibit 5 testified she was the one who normally transcribed Respondent's dictated notes, that Exhibit 5 was consistent with the normal office practice which would be to date the entries when they were typed, and, although she does not specifically recall typing each entry on Exhibit 5, they were probably all typed by her. Evidence questioning the validity of Respondent's testimony that the office notes were dictated contemporaneously with his treatment of B.R. and typed on the dates indicated included the testimony of the husband of B.R. that B.R. had a zest for life and it would be contrary to her nature to refuse certain procedures or consultations; the fact that on July 14, 1985 B.R. was intubated with the Respondent present; that there was no financial consideration involved as B.R. was adequately insured; the office manager and secretary of Respondent during the period the office notes are alleged to have been prepared is the daughter of Respondent; and the fact that at the peer review committee inquiry into the facts surrounding the death of B.R., Respondent never mentioned the existence of office notes although he was extensively questioned regarding his failure to maintain a more complete medical record in this case. From the foregoing it is found that B.R.'s refusal to submit to the procedures allegedly recommended by Respondent were not contemporaneously recorded in Respondent's office notes and Exhibit 5 was prepared after Respondent appeared before the hospital peer review committee if not also after the administrative complaint was filed in this case.
The Issue The issue is whether respondent's license as a medical doctor should be disciplined for the reasons stated in the administrative complaint, as amended.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Bernardo G. Bilang, was a licensed medical doctor having been issued license number 0026846 by petitioner, Department of Professional Regulation, Board of Medicine (DPR or Board). He has been licensed by the Board since July 19, 1976. Respondent presently practices medicine at 1201 South Highland Avenue, Suite 11, Clearwater, Florida. His specialty, if any, is not of record. Around 10:45 p.m. on February 2, 1986, N.K., a seventy-four year old female, was transported by ambulance to the emergency room of Morton F. Plant Hospital, Inc. (hospital) in Clearwater, Florida. When admitted, she complained of nausea, diarreah, dehydration, vomiting, fatigue and not feeling well. Also, she had experienced some pain in her back. With the exception of the back pain, which had begun more than a day earlier, all other symptoms had begun on February 2. Doctor Linda L. Shaffer was the emergency room physician on duty on the evening of February 2. Doctor Shaffer initially observed that the patient looked "acutely ill." She examined the patient and found her to be coherent and alert but very weak, as evidenced by her lack of grip strength In slurred speech, the patient answered questions very faintly and generally in one word answers. As might be expected, the patient was dehydrated. Her vital signs at 11:00 p.m. here as follows: rectal temperature - 104.6 degrees; blood pressure 152 over 96; respiration - 24; and pulse - 101. She also had tenderness across the middle of the back on both sides but did not have a stiff neck. After a preliminary physical examination and history were completed, and while the patient remained in the emergency room area for a few hours, Dr. Shaffer ordered a chest x-ray, electrocardiogram, complete blood count, electrolyte panel, chemical profile, two tests of kidney function, blood cultures, and urinalysis. The patient was then placed on a cardiac monitor, had a foley catheter inserted to obtain a urine speciman, and was given tylenol to reduce her temperature. Also, an IV was started. After finding the chest to be essentially clear and the abdominal examination negative, Dr. Shaffer diagnosed the patient as follows: "fever/dehydration - possible sepsis?" The latter diagnosis (sepsis) meant the patient may have had either a bacterial or viral infection in her blood stream affecting her entire system in a "generalized way." For a seventy-four year old patient, sepsis is a serious condition and can be life threatening if not promptly treated. The normal treatment for sepsis is antibiotics, fluids, medicines to elevate the blood pressure and reduce the temperature, and occasionally the use of steroids. It is noted, however, that a viral infection will not respond to antibiotics. If the use of antibiotics is indicated, they must be started immediately to kill the infection. After concluding her examination, Dr. Shaffer ruled out the threat of cardiac arrest and believed the patient, although "seriously ill," was not suffering from a terminal ailment. Nonetheless, she was concerned with the patient's low white blood cell count (3500) which was indicative of an infection, and one more likely of a viral nature. At the same time, she knew that influenza "was quite prevalent at the time" and might produce symptoms like those experienced by N.K. However, she stuck by her preliminary diagnosis of a possible bacterial infection. Respondent was on call the evening of February 2 for patients such as N.K. who were admitted to the hospital but had no personal physician. 1/ He was telephoned by Dr. Shaffer at 1:20 a.m. on February 3 concerning the patient's status. After being told the patient's symptoms, vital signs, available test results (which did not include the blood cultures, urine culture and chemistry profile) and Dr. Shaffer's preliminary diagnosis respondent requested Dr. Shaffer to admit N.K. to the hospital. He then gave telephonic orders to the nurse regarding N.K.'s future treatment. At that point, responsibility for the patient shifted to respondent. Respondent's first orders at 1:25 a.m. were (a) the patient be given nothing by mouth except medications (b) the IV be continued, (c) she be given atrophine and phenergaan intramuscularly if diarrhea occurred, (d) she be given compazine, if necessary, for nausea and vomiting, and (e) she continue to be given ten grains of tylenol every four hours for her fever. The patient was then transferred from a critical care room to a room where more stabilized patients are kept. According to a nurse on duty that evening, she did not consider N.K. to be a "problem" patient who required extra care or attention. It is noted here that the patient records reflect that respondent initially suspected that N.K. might have the flu, a fairly common ailment in the area at that time. At 1:40 a.m., the patient's vital signs were as follows: blood pressure 124 over 80; respiration rate - 24; and pulse - 92. There is no indication that her temperature was taken at that time but the records indicate that an hour earlier, it had droped to 103.1 degrees. At 2:25 a.m., the patient was moved from an emergency room bed to a semi-private room in the general ward. At 3:05 a.m., N.K.'s temperature was again checked and found to be 103.5 degrees. At 4:00 am., the patient's condition had begun to seriously deteriorate. She manifested signs of being "very lethargic," that is, it was difficult to awaken her, and she appeared to be weaker on her left side. According to Dr. Shaffer, such a localized weakness was indicative of "some process" involving the patient's brain and spinal cord. Also, N.K. still had a rectal temperature reading of 103.5 degrees. At 5:40 am., N.K.'s fingers and toes became cyanotic, that is, they turned blue in color, indicating a lack of circulation. Also, she was confused and her lethargy continued. By then, her respiration rate had increased to 32, almost twice the normal rate. Her blood pressure (138 over 70) began dropping which was a sign of sepsis shock, that is, the peripheral blood vessels were dilating causing the pressure to drop and circulation to be impaired. At 6:05 am., the head nurse, believing there to be an emergency situation, spoke with respondent by telephone. She relayed the previous findings from 5:40 a.m. and noted that the patient's temperature had risen to 104.7 degrees while her blood pressure had dropped to 126 over 70. The nurse did not recall whether she was able to reach respondent immediately or if it took a few minutes for him to return the call. In any event, respondent gave telephonic orders that mandol, a second generation antibiotic, be given to the patient intravenously every six hours, and she be given one gram of solu-cortef, a steroid medication, for shock. Also, he ordered an arterial blood gas analysis and that N.K. be given oxygen by nasal cannula when necessary. Although the telephonic orders were given at 6:05 a.m., the drugs had to be requested and obtained (after mixing) from the hospital pharmacy. In some cases, it takes several hours to receive a drug from the pharmacy, particularly during other than normal daytime hours. The steroid IV was eventually started at 6:30 a.m. but the mandol was never received and administered. When the patient's condition did not improve and actually continued to deteriorate, respondent was telephoned again by a nurse at 6:40 a.m. By then, the patient's entire skin had turned a bluish color indicating very poor circulation. After being briefed by the nurse, including the results of the just received blood gas report, but still without knowing the precise cause of N.K.'s ailment, Dr. Bilang issued a "CMO" order. This means "comfort measures only" and that no aggressive steps, such as resuscitative measures, be taken by hospital personnel to prolong the life of the patient. According to Dr. Shaffer, had resuscitative steps been taken at that time, the patient's chances for survival were around "twenty percent, maybe less." The patient expired at 7:13 a.m. The primary cause of death was listed as meningococcial meningitis, a bacterial infection having a 70% to 80% mortality rate, and a "quite uncommon" infection in a seventy-four year old patient. Laboratory results obtained several days after the patient's death revealed she had gram-negative sepsis. Doctor Bilang arrived at the hospital and pronounced the patient dead at 7:20 a.m. This was the first time respondent had seen and examined the patient. Respondent then dictated a history and physical examination which appear in the patient records. These reports were based on information previously provided by others. On February 21, 1986 respondent dictated a discharge summary which indicated a pre mortem physical finding. This report was also placed in the expired patient's records. Several months later, respondent prepared a second physical examination and history for the patient. This was dictated on July 31, 1986 and again was based on the notes of other persons. However, respondent made the following note at the beginning of the physical examination and history: "Disregard above notes. Patient expired prior to my seeing her in the ward." Two medical experts testified on behalf of the Board. They are Drs. Matthew M. Cohen and Laurence Neufeld, both board certified family practitioners in Tallahassee and Tampa, Florida, respectively. A Shreveport, Louisiana board certified internist, Dr. John M. Brady, presented expert testimony on behalf of respondent. In addition, Dr. Linda L. Shaffer, an experienced physician, testified from her perspective as an emergency room physician at the hospital in question. As might be expected, the experts reached differing conclusions regarding respondent's treatment of the patient. Pertinent findings based on the experts' relevant testimony are made below. There was a consensus among the experts that the emergency room doctor's role is to pass on to the admitting physician all the information the doctor has gathered from the examination and tests. It is then the responsibility of the admitting physician to ask the emergency room doctor appropriate questions concerning the patient, order vital signs to be taken at specified intervals, and give other directions to the monitoring staff (nurses) concerning steps to be taken in the event of changes in the patient's condition. The experts also concluded that the primary physician, in preparing a history and physical examination of the patient, should not rely on the emergency room doctor's notes and findings but should personally conduct his own physical and history in a more thorough manner. This is especially true when, as here, the emergency room physician is unable to conclusively establish the cause of the patient's illness. In Dr. Cohen's opinion, respondent should have suspected meningitis at the outset of N.K.'s admission. This was because of her lethargy, high fever and back pain, all being symptoms associated with that infection. Doctor Cohen also noted that respondent was cognizant of Dr. Shaffer's preliminary diagnosis of possible sepsis, knew that pneumonia and urinary tract infection were not the causes of the infection, and still had no idea what caused N.K.'s infection. Given these considerations, Dr. Cohen opined that respondent should have ordered further tests to confirm N.K.'s ailment, such as a lumbar puncture (spinal tap), an X-ray of her abdomen, a reexamination of the abdomen or a head scan. Doctor Cohen further suggested that after those tests were completed, it would have been prudent for respondent to "employ a sort of antibiotic recipe for dealing with a septic, elderly person." In other words, he should have used a group of intravenous antibiotics that would cover most of the possible causes for that type of infection. In addition to the foregoing omissions, Dr. Cohen was of the opinion that Dr. Bilang erred further when, after receiving advice from the nurse at 6:05 a.m. and 6:40 a.m. concerning the patient's rapid deterioration in health, he failed to institute aggressive antibiotic therapy and instead prescribed mandol, a drug Dr. Cohen felt was too little, too late. According to Dr. Cohen, respondent compounded his mistakes by issuing a CMO order when the patient did not have a terminal illness and without consulting the patient's family. By engaging in the foregoing conduct, the expert concluded that respondent did not conform with minimally acceptable medical standards in the community. Doctor Cohen next opined that it was inappropriate for respondent to prepare a history and physical after the patient's death and to base those items on information gathered by others. He labeled these matters "false and misleading" and a deviation from the standard expected of a doctor. Doctor Neufeld initially pointed out that respondent erred by failing to start a broad spectrum (third generation) antibiotic regimen when he assumed responsibility for the patient at 1:20 a.m. According to the witness, such a regimen was called for because respondent was aware of the patient's age, high fever, slurred speech, dehydrated condition, the very strong possibility of sepsis, and his own inability to promptly obtain blood cultures from the laboratory to aid in confirming or ruling out various ailments. Further, respondent had no concrete evidence that the patient was suffering from the flu, an illness he initially thought N.K. might have. Even if respondent was unsure if the infection was viral or bacterial, Dr. Neufeld pointed out that respondent nonetheless should have assumed the patient was septic and started an antibiotic regimen until the cultures were received from the laboratory or the fever subsided. Moreover, even if the patient had a viral infection, the antibiotics would not have harmed her. By respondent waiting until 6:05 a.m., and then ordering mandol rather than a stronger drug, Dr. Neufeld opined that respondent fell below the minimum standard of care for community physicians. Doctor Neufeld stated further that respondent deviated from the same standard of care by issuing a CMO order when the patient did not have a terminal illness. Doctor Neufeld echoed Dr. Cohen's sentiments that the prevailing community standards did not call for a CMO order unless the patient was afflicted with a terminal, irreversible illness and only after a physical examination had been performed by the physician. Doctor Neufeld found the physical examination documented by Dr. Bilang on pages 10 and 11 and the accompanying discharge summary on pages 13 and 14 of the patient records to misleading since both erroneously suggested a pre mortem physical finding. Also, Dr. Neufeld opined that the medical records did not justify the course of treatment to the patient. However, the basis for this opinion is not clearly delineated in the record. Doctor Neufeld conceded that though he would have gone to the hospital at 1:20 a.m. to examine the patient, respondent did not violate the standard of care by evaluating the needs of the patient by telephone. Even so, Dr. Neufeld maintained that respondent should have ordered antibiotics after his consultation with Dr. Shaffer. The expert differed in one respect with Dr. Cohen and agreed with respondent that the records, at least at 1:20 am., did not call for a spinal tap or head scan, and respondent's failure to perform those tests at that time was acceptable. Finally, although he acknowledged that an order for a third generation antibiotic regimen at 6:05 a.m. might not have been mixed and ready for patient use by the time the patient expired, Dr. Neufeld opined that respondent still had a duty to use all available measures to keep her alive until the drugs were received. According to Dr. Shaffer, she observed Dr. Bilang on a day to day basis and considered him a "caring, competent, practicing physician." However, she stated that respondent was sometimes too busy" and overextended" himself. As a consequence, she was "concerned" that he was taking care of too many patients at the same time. Although she did not consider herself qualified to render an opinion, she opined that respondent did not deviate from the minimally acceptable standards for Clearwater area physicians when he failed to initially order antibiotics for N.K. at 1:20 a.m. This was because, if a physician was unsure if a patient had a viral syndrome or a bacterial septic condition, he might wait "a little bit of time" to see what course of treatment was required. Further, the decision to order antibiotics is a "judgment call" by a doctor and depends in part on two "iffy" tests, a lumbar puncture and a gram stain of the blood smear. The latter test result was not available until several days after the patient expired. According to Dr. Brady, respondent's course of treatment and overall conduct, with one exception, fell within the minimal acceptable standards of care for physicians. The exception pertained to respondent's issuance of a CMO order. After reviewing the patient's records, Dr. Brady concluded that respondent could not have known the patient was suffering from a bacterial infection since nothing in the physical examination was suggestive of meningococcemia, the organism affecting the patient. Thus, he concluded that the patient's illness was probably not diagnosable until shortly before she died. This was because the patient did not have a stiff neck (nuchal rigidity), purplish skin rash, or signs of shock, which are the normal indications of meningitis, and because the infection is extremely rare and has an incidence rate of only one case per one hundred thousand persons in a given year. Even so, he conceded that if the disease occurs, its physical signs can manifest in a very short period of time and could have begun shortly after the patient was first examined by the emergency room physician around 11:00 p.m. Once respondent recognized the severity of the patient's ailment, and prescribed mandol at 6:05 a.m., Dr. Brady agreed that mandol would not have had any beneficial effect on the patient even if administered immediately after being ordered. Instead, the witness would have ordered a third generation antibiotic which is more effective in treating gram negative rods. While he characterized respondent's choice of mandol as "not the best thing to do", he nonetheless said "it was not an unreasonable thing to do" given the circumstances. The expert next agreed with the Board experts that a CMO order is appropriate only when the patient has a terminal illness and has requested that no life-sustaining measures be used. In this case, he agreed that the patient records did not justify this action. He added, however, that the patient would probably have expired no matter what resuscitative efforts were undertaken. Finally, while Dr. Brady did not think respondent was attempting to falsify his records by copying the notes of others in preparing the post-mortem physical and patient history, he noted that respondent should have indicated on his February 3, 1986 notes that he was copying the records of others. Having evaluated the testimony of the experts, the undersigned has resolved the conflicts in favor of the Board. Accordingly, it is found that respondent fell below the minimum standard of care by failing to initially recognize the patient's septic condition and prescribing a comprehensive antibiotic regimen, by failing to institute the same regimen at 6:05 a.m. after becoming aware of her critical condition, and by issuing a CMO order at 6:40 a.m. when the patient did not have a terminal illness. Further, respondent filed reports on February 3 and 21, 1986 which he knew or should have known were misleading and false, namely, a patient history, physical examination and discharge summary prepared post mortem which suggested that such reports were based on pre mortem findings by respondent. Finally, it is found that the records maintained by respondent were inadequate to justify the issuance of a CMO order since the patient did not have a terminal illness. By stipulation approved by Board order dated October 30, 1987, respondent was reprimanded by the Board, paid a $1,000 fine, was placed on monitored probation for a year, and agreed to take twenty hours of continuing medical education in the area of prescribing medicinal drugs. Official Board records indicate that respondent's license still remains on a probationary status presumably because of the pending proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the violations discussed in the Conclusions of Law portion of this Recommended Order, and that respondent's medical license be suspended for two years. DONE and RECOMMENDED this 11th day of July, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1989.
Findings Of Fact At all times pertinent to the issues herein, the Board of Medicine was the state agency responsible for the licensing of physicians and the regulation of the practice of medicine in this state. Respondent was licensed as a physician in Florida and holds license number ME 0017915. He practices medicine, specializing in psychiatry, in Clearwater, Florida. He is board certified in that specialty. On September 7, 1987, Patient #1, a 55 year old married female, whose husband had recently separated from many years in the armed service of the United States, came to see Respondent at his office, complaining of severe headaches, loneliness, depression, and a lowering of self esteem. She had been referred to him by physicians at the U.S. Coast Guard Station Dispensary. Respondent examined Patient #1 and found her to be of limited intelligence, considerably overweight, anxious, depressed and confused. She was ashamed of her new status in life as a result of her husband's inability to find work and was experiencing difficulties with him and her children. She was suffering from severe insomnia. Respondent's examination of Patient #1 was limited. He was satisfied with the medical work-up which had been conducted by his colleagues at the Dispensary. Because he was consulting psychiatrist for that facility, he knew all the physicians there and was familiar with the caliber of their work. Based on the medical information furnished him from the Dispensary and his own examination, he diagnosed Patient #1 as suffering a major depression and a psychogenic pain disorder manifested by headaches and insomnia. He developed a treatment plan for the patient which included a wide variety of psychotherapy interventions, the first of which was to effect relief of the symptoms. This included clarification of relationships, interpretation of dreams and fantasies, and allowed for catharsis. When Respondent found out that empathy and intervention alone would not work on this patient, and he had established a relationship with her, he started psychotropic medications including Elavil, the drug of choice for this type of condition in 1988. Elavil is a "superb" antidepressant. While the antidepressant factor is "cranking in", the medication also works as a sedative. For this reason, it is normally prescribed for administration at bedtime. Patient #1 responded to this course of treatment and she and the Respondent established a good and friendly working relationship, which he noted in his April 4, 1988 letter and treatment report to the Coast Guard and to CHAMPUS. In that treatment report, however, Respondent noted Patient #1 had a suicidal ideation. The term "suicidal ideation" does not import that the patient was, at that time, seriously considering suicide. Her mentioning suicide was but an overcompensation - more an alerting statement of depression and sadness with emptiness and angst. She never indicated to Respondent any thought of or plan to commit suicide. Patient #1 thrived for many months in Respondent's therapy. She complained often of her impoverished condition, however, and as a result, he wrote prescriptions for her in such a way that they could be filled at the Coast Guard dispensary without charge. This required writing prescriptions for more tablets of a drug at a lower strength which was stocked by the Dispensary. It was a surprise to him to learn, later on, that she was filling her prescriptions at Eckerds. Throughout the period he treated her, Dr. Fireman prescribed psychotropic drugs for Patient #1, which consisted primarily of amitriptyline, (Elavil), and butalbital, (Fiorinal), in varying strengths, and, at times, in compounds with other substances. As was noted previously, Elavil is an antidepressant with sedative effects. The recommended daily dose for a patient in an outpatient setting is indicated as 150 mg by the Physicians' Desk Reference, (PDR), which also recommends suicidal patients not be allowed unrestricted access to it because of the danger of intentional overdose. Other qualified psychiatrists who testified, including Dr. Spreyhe and Dr. El Yousef, indicate up to 300 or even 350 mg/day may be appropriate. As Dr. Spreyhe noted, it is not so much the daily dose on any given day which is pertinent but the aliquot over an extended period. In that regard, he notes, Dr. Fireman's prescriptions for both Elavil and Fiorinal were within recommended maximums and, therefore, within the appropriate standard of care. Fiorinal is a barbiturate anti-anxiety agent and muscle relaxant with habit forming potential. Fiorinal #3 contains codeine, a legend drug and narcotic. Generally, according to Dr. El Yousef, it should be dispensed for use at a rate of between 8 to 12 tablets per day over the short term, but over a 9 month period he would prescribe between 4 and 9 tablets per day. Pharmacy records indicate that over the period he treated patient #1, Respondent gave her numerous prescriptions for both Elavil and Fiorinal which, at first glance, appear to be excessive. For example, the records reflect that on December 29, 1987, Respondent wrote prescription number 390073 for 100 Elavil 25 mg tablets. Though the prescription clearly indicates no refills were authorized, and the back of the prescription form, where refills are noted by the pharmacist, fails to reflect any refills were authorized by the physician, the pharmacy records indicate two additional dispensings by the pharmacy for 100 tablets each on January 11 and April 20, 1988. There is no evidence to indicate how these additional fillings came about; who arranged for them, or who received them. On February 22, 1988, Respondent wrote prescription number 394289 to the patient for 12 Fiorinal #3 tablets. Again the prescription form authorizes no refills and the back of the prescription form indicates but one coordinated refill but the pharmacy records show the prescription was filled twice - once on April 6, 1988 and once on April 23, 1998. Only the latter is annotated. On March 3, 1988, Respondent wrote prescription number 397144 to the patient for 60 Fiorinal tablets. While the doctor's refill note reflects none were allowed, the computer printout sticker for the bottle reflects 2 refills were authorized. The back of the prescription form shows no refills annotated thereon as required, but the pharmacy's computer listing of all prescriptions indicates the prescription was refilled on May 28 and again on June 3, 1988. No further explanation is given. Prescription number 396378, written to the patient by Respondent on March 14, 1988 for 50 Fiorinal tablets, reflects no refills authorized by the physician nor does the reverse of the form bear any refill annotations. Nonetheless, the pharmacy records as shown on the computer printout indicates a refill on March 27 and April 6, 1988 with no explanation therefore. Before the last refill, however, Respondent wrote prescription number 397091 to the patient on March 29, 1988, for 21 Fiorinal #2, later approved for #3's. He also, on April 4, 1988, wrote prescription number 398853 for 35 Fiorinal tablets. Respondent claims he would not authorize a refill of a prior prescription for the same medication for which he is writing a new prescription, and, since neither of the refills of the earlier prescription properly reflect any physician authorization, it is so found. On May 2, 1988, Respondent wrote prescription 399717 for 50 Fiorinal tablets, and prescription 399718 for 100 Elavil 25 mg tablets. Both reflect Respondent's instruction that no refill be given, and neither form bears an annotation for authorized phone refills. Yet, the pharmacy's computer printout indicates that the prescription for Elavil was written on May 31, 1988 even though the bottle sticker shows it was filled on May 3, 1988. On August 1, 1988, Respondent wrote prescription 405572 for 100 Fiorinal and 475573 for 100 Elavil 100 mg tablets. Both were filled the next day but neither form bears any annotation of authorized refill, consistent with the physician's instructions. On August 16, 1988, Respondent prescribed another 100 Fiorinal by Prescription 406536. It was not refilled. On August 29, 1988, Respondent wrote prescription 407201 for 150 Elavil 50 mg tablets to patient #1, and number 407202 for 100 Fiorinal tablets. Both prescription forms clearly reflected no refills, but the back of the forms reflect refills were authorized. The Elavil prescription was refilled on September 10, 1988 by pharmacist Ivan Funkhouser who contends he refilled on the basis either of a call to or from the doctor's office. He cannot recall which. He also, at the same time, refilled the Fiorinal prescription under the same conditions. The Elavil prescription was filled again, this time for 225 tablets, on September 30, 1988, by pharmacist Robert Wivagg who also indicated phone refills made only on the basis of a call to or from the physician's office. In this case, however, he believes that because of the amounts involved, he would have spoken to the physician himself before filling the prescription. He cannot be sure of this, however, and Respondent denies having ever prescribed 225 Elavil tablets, regardless of strength, at one time. Mr. Lewis, the pharmacy expert, indicates that proper pharmacy practice would have allowed the pharmacist to issue fewer tablets than on the prescription but not more without express approval of the physician. The Fiorinal prescription, refilled on September 30, 1988, this time for 150 tablets, is not reflected on the prescription form though it is on the computer printout. Respondent denies that he ever called in prescriptions for Patient #1 because he never had to. She came to his office frequently enough that he was able to provide her with a new prescription for whatever medication she needed. Indeed, his medical office billing records reflect that in June, 1988 he saw her on June 6, 13, 20, and 27; in July, 1988 on July 5, 12, 19, and 26; and in August, 1988, on August 2, 9, 16, and 30. It would appear, therefore, that the refills of prescriptions reflected on the pharmacy computer printout either are in error or were arranged for under some unexplained process not involving Respondent. There appears to be no reason for him having had to authorize refills since he saw the patient so frequently, notwithstanding his comments to Ms. Sutton, during the investigation, that 90 percent of the refill calls are authorized by him personally, and only 10 percent through his secretary. There was no showing that the authorization comment Ms. Sutton recalls was related to this particular patient. Further, according to Ms. Maguire, Respondent's secretary, Respondent frequently refuses to grant refills, and, to her knowledge, he never gives refills to psychiatric patients. Since most, if not all Respondent's patients are psychiatric patients, this does not make sense. Respondent does not deny writing the two prescriptions on August 29, 1988. At that particular time patient #1 was planning a trip to New York to make peace with her dying mother. As a result, and since her headaches had gotten worse, as had her depression, he decided to increase her dosage of Elavil. This was a medical decision which is not in issue here. He admits that Elavil is a drug which is often used to commit suicide and that prescribed at even its lowest strength, a full prescription can be lethal. This became, therefore, an assessment problem wherein Respondent, the physician, had to evaluate the risk of the patient's depression against the benefits to be gained by the use of the drug. Respondent gave patient #1 enough Elavil to hold her through her visit up north. He had previously given her sixty 50 mg tablets to be taken 6 per day for a 300 mg dose at bedtime. He now told her not to use the 50 mg tablets any more and to destroy them. He believed she did. He then gave her a new prescription for one hundred and twenty 25 mg tablets for her trip. He unequivocally states that he never prescribes more than 300 mg/day of Elavil. He admits, however, that while she was on that dosage, he neither hospitalized her nor had blood work done on her. Respondent feels his original treatment plan and diagnosis were sufficient and his records pertaining to those factors were adequate. He uses checkoff forms because he believes they are the most open way of showing how he sees his patient and what he is doing for her. This same conclusion was reached by Dr. Spreyhe, another Board certified psychiatrist who is Clinical Professor of psychiatry at the University of South Florida Medical School, who has served as an expert witness for the Department in the past, and who continues to serve as a contract consultant for it and as a member of the Medical Advisory Committee of the Department. Examination of Respondent's medical records pertaining to Patient #1 indicates that the medical history and treatment plan are in the form of check sheets on which the physician makes no more than minimally worded entries. The Department's witness, Dr. Greener, an expert in the completeness of medical records, is of the opinion that Respondent's records should have reflected an initial detailed assessment of the patient's condition, including the reasons for her referral to him, a complete medical history, and a subsequent detailed mental status examination. This should be followed by a formulation of her problems and a treatment program. After the initial evaluation, according to Dr. Greener, the physician should make regular progress notes as to treatments, communications with others, phone calls received, prescriptions issued, and matters of that nature. This is done to memorialize the particulars for the patient and to keep a tally of which and how much of any drug is given to the patient. This would show over or under use as a possible flag as to how well the patient follows instructions or if the patient develops a use addiction problem. Based on Dr. Greener's review of Respondent's records for patient #1 and the prescription records relevant to her, he concluded those records were "totally inadequate." This conclusion is based on his opinion that the initial evaluation is cursory and without detail and there are few progress notes in the records. Those which are there are inadequate in detail and full of conclusions without the required supporting information such as drug side-effects, the patient's ability to follow instructions, follow-up, changes in dosages, and the like. He complains that Respondent's records do not really outline a plan of treatment designed specifically for that patient. For example, the forms used by Respondent are merely check-off forms even though, during the period, the patient was receiving continuing analgesic medications. From Respondent's records, it was impossible to determine how the patient was doing on the medications prescribed or whether additional medical evaluation was required. It is important to put this information in patient records to memorialize what is done and not just to keep the information in the treating physician's memory. Respondent denies that his initial evaluation and treatment plan, prepared by the use of form check sheets, is below standard. Dr. Spreyhe concluded the use of such check sheets is not inappropriate for the initial work-up of a patient and he opined that Respondent's forms, and the information thereon provide sufficient information for an independent understanding of the patient's situation and are within an appropriate standard of care. It is so found. However, the medical progress notes which make up the bulk of the remaining medical records are not so complete and, in Dr. Spreyhe's opinion are insufficient. Respondent concurs and admits this. It is so found. As to Respondent's prescribing practices, Dr. Greener is far more conservative than Respondent in prescribing Elavil. He starts with a low dose and gradually works up to a therapeutic level dosage depending upon the patient. He would start an average patient out at 25 mg/day and work up to a maintenance dose of 150 mg/day. Elavil is a dangerous drug and the doctor must closely monitor the patient for possible side effects and the direct effect it is having on the patient. It should never be ordered "prn", (as needed) when that designation relates to the amount to be taken. Based on Respondent's records for this patient, it would appear to Dr. Greener that the medication was being used improperly. There appears to have been no monitoring of the amount of the drug the patient was getting and it would appear that the patient was given the prerogative as to dose, which is not a good thing to do. In his opinion, a dose at 300 mg/day of Elavil is very and unnaturally high and he would not use so high a dose. He would do other tests first to see why the medication was not working at the lower dosage. As was seen before, however, other physicians of equal expertise disagree. Fiorinal is habit forming and, according to Dr. Greener, should be used only over the short term. If needed for a longer period, the patient should be reviewed to see why. The doctor must keep in mind the addictive properties of the drug. Here, Dr. Greener is of the opinion that Respondent prescribed excessive amounts of Fiorinal for patient #1. From January 27, 1988 through March 2, 1988, a period of 34 or 35 days, Respondent prescribed 302 tablets and Dr. Greener would be concerned that the patient was addicted. On March 21, 1988 Respondent prescribed another 50 tablets, and on March 27,1988, he prescribed 50 more followed by another 60 somewhat later and more after that. All of these were being prescribed for a patient whose records reflect she was doing "OK", and was "nicely stabilized". To Dr. Greener, this is just too much, especially for a patient who is obviously addicted and who appears to be taking the medication only to prevent withdrawal symptoms. By his prescription regimen, a patient would get no more than 10 tablets a day for no more than 4 to 5 days, and he would prescribe this drug for 9 months, as here, only with support for it in the patient records, including the opinions of other specialists to whom the patient would have been referred. While it is obvious Dr. Greener is more conservative in his approach to medication than is Respondent, the evidence does not clearly show Respondent's approach fell below standards. Dr. Spreyhe is of the opinion that the levels of Elavil and Fiorinal prescribed by Respondent for this patient were appropriate in both dosage and amounts. He has patients of his own who take such doses and he is not swayed by the PDR recommendations for dosage which, he believes, is too conservative. As for the Fiorinal, he would prescribe no more than 8 per day because there is some information that a patient may develop a tolerance for the substance. In any case, the drug is appropriate for the treatment of psychogenic headaches as were suffered by Respondent's patient here. Both W.L.P. and M.J.S. have been patients of Respondent. Both found him to be concerned and available. When patient #1 died, Ms. Sherman was in a therapy group with her. She did not appear to be suicidal and was looking forward to her proposed trip to New York. Patient #1 died on October 8, 1988. The report of the Hillsborough County Medical Examiner reflected her death as suicide from the combined effects of amitriptyline, (Elavil), butalbital, (Fiorinal), and salicylate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued herein, finding Respondent not guilty of all allegations except those relating to his failure to keep adequate medical records regarding Patient #1 as alleged in Count One, of which he is shown to be guilty, and imposing an administrative reprimand and a requirement for continuing medical education in the area of proper record keeping. RECOMMENDED this 31st day of August, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of August, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5048 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. Accepted as a restatement of witness testimony but not as a Finding of Fact. 8. Accepted as a restatement of witness testimony but not as a Finding of Fact. 9. & 10. Accepted that the medications were dispensed based on prescriptions written under the patient's name. 11. & 12. Accepted and incorporated herein. 13. & 14. Accepted as a restatement of witness testimony. - 18. Accepted and incorporated herein. Rejected as not a necessary conclusion to be drawn. Accepted. - 23. Accepted as restatements of witness testimony. Accepted and incorporated herein. - 26. Accepted and incorporated herein as pertaining to the dosage level of Elavil used and the balance accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted. & 32. Rejected as Findings of Fact, and found to be Conclusions of Law. FOR THE RESPONDENT: Accepted and incorporated herein. - 4. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. 13. & 14. Accepted. 15. & 16. Accepted and incorporated herein. 17. & 18. Accepted. 19. & 20. Accepted and incorporated herein. 21. Accepted. 22. This Proposed Finding of Fact is, in reality, a restatement of the evidence presented, in several subparagraphs, some of which are identified by letter and some of which are not. It is, however, accepted as an accurate restatement of the evidence admitted at hearing on this point, except where it becomes argument. 23. & 24. Accepted and incorporated herein. 25. First four sentences accepted and incorporated herein. Balance considered only as argument in support of the position taken. 26. Accepted and incorporated herein. 27. Accepted. 28. Rejected as a Conclusion of Law and not a Finding of Fact. 29. - 31. Accepted as basic findings. This does not go to their adequacy, however. 32. & 33. Rejected as contra to the weight of the evidence. & 35. Accepted as the substance of the witness' testimony. Accepted and incorporated herein. Accepted. Accepted. Rejected as a Conclusion of Law. COPIES FURNISHED: Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard Suite 210 Tampa, Florida 33619 Bruce D. Lamb, Esquire Christopher J. Schulte, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. Post Office Box 2378 Tampa, Florida 33601 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in these three consolidated cases are whether Respondent, Jerome F. Waters, M.D., committed the violations alleged in three Administrative Complaints filed by Petitioner, the Department of Health, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties Petitioner, the Department of Health (hereinafter referred to as “Petitioner” or “Department”), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Jerome F. Waters, M.D. (hereinafter referred to as “Respondent”) is, and has been at all times material to these consolidated cases, a physician licensed to practice medicine in Florida, having been issued license number ME 7236. Respondent graduated from New York University Medical school 48 years ago and did four years of a general surgical residency. He is not board-certified although he is board eligible in general surgery. Respondent had only one medical malpractice lawsuit against him and that was in 1964. The Administrative Complaints in these consolidated cases are the first license discipline cases against Respondent. Respondent has had a long and distinguished medical career. He has been in private practice in Miami, Florida, since 1961 and he has been at the same location for the last 23 years. He currently has a general medical practice, although he also still practices surgery. Twenty-five percent of his practice comprises Medicaid patients and 30 percent comprises Medicare patients. Respondent had about 125 AIDS patients at the time of the emergency restriction of his practice. Respondent became interested in treating patients with pain as a result of his surgical practice. Approximately twenty-five percent of his practice is devoted to pain management. Respondent's pain practice grew as a result of a few patients from Broward County in 1996 who recommended other "pain patients" to Respondent. Respondent admits that because of his “compassion for his patients” he was probably more indulgent than he should have been with his pain patients. Respondent acknowledges that his medical record documentation was poor. He concedes that he relied too much on his memory and had a tendency to write down only special negatives or positives in his findings. Respondent also often omitted information in his medical records that he thought might be stigmatizing or embarrassing to the patient. He tried to rely on his memory regarding such matters. Respondent often has been reluctant to refer his patients to consultants because of their economic constraints. Applicable rules The Board of Medicine has adopted rules that contain standards for the use of controlled substances for the treatment of pain. Those standards include Florida Administrative Code Rule 64B8-9.013(3), which read as follows at all times material to these consolidated cases: Guidelines. The Board has adopted the following guidelines when evaluating the use of controlled substances for pain control: Evaluation of the Patient. A complete medical history and physical examination must be conducted and documented in the medical record. The medical record should document the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse. The medical record also should document the presence of one or more recognized medical indications for the use of a controlled substance. Treatment Plan. The written treatment plan should state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and should indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician should adjust drug therapy to the individual medical needs of each patient. Other treatment modalities or a rehabilitation program may be necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment. Informed Consent and Agreement for Treatment. The physician should discuss the risks and benefits of the use of controlled substances with the patient, persons designated by the patient, or with the patient’s surrogate or guardian if the patient is incompetent. The patient should receive prescriptions from one physician and one pharmacy where possible. If the patient is determined to be at high risk for medication abuse or have a history of substance abuse, the physician may employ the use of a written agreement between physician and patient outlining patient responsibilities, including, but not limited to: Urine/serum medication levels screening when requested; Number and frequency of all prescription refills; and Reasons for which drug therapy may be discontinued (i.e., violation of agreement). Periodic Review. At reasonable intervals based on the individual circumstances of the patient, the physician should review the course of treatment and any new information about the etiology of the pain. Continuation or modification of therapy should depend on the physician’s evaluation of progress toward stated treatment objectives such as improvement in patient’s pain intensity and improved physical and/or psychosocial function, i.e., ability to work, need of health care resources, activities of daily living, and quality of social life. If treatment goals are not being achieved, despite medication adjustments, the physician should reevaluate the appropriateness of continued treatment. The physician should monitor patient compliance in medication usage and related treatment plans. Consultation. The physician should be willing to refer the patient as necessary for additional evaluation and treatment in order to achieve treatment objectives. Special attention should be given to those pain patients who are at risk for misusing their medications and those whose living arrangements pose a risk for medication misuse or diversion. The management of pain in patients with a history of substance abuse or with a comorbid psychiatric disorder may require extra care, monitoring, documentation, and consultation with or referral to an expert in the management of such patients. Medical Records. The physician is required to keep accurate and complete records to include, but not be limited to: The medical history and physical examination; Diagnostic, therapeutic, and laboratory results; Evaluations and consultations; Treatment objectives; Discussion of risks and benefits; Treatments; Medications (including date, type, dosage, and quantity prescribed); Instructions and agreements; and Periodic reviews. Records must remain current and be maintained in an accessible manner and readily available for review. Compliance with Controlled Substances Laws and Regulations. To prescribe, dispense, or administer controlled substances, the physician must be licensed in the state and comply with applicable federal and state regulations. Physicians are referred to the Physicians Manual: An Informational Outline of the Controlled Substances Act of 1970, published by the U.S. Drug Enforcement Agency, for specific rules governing controlled substances as well as applicable state regulations. Florida Administrative Code Rule 64B8-9.003, on the subject of the adequacy of medical records, read, in pertinent part, as follows at all times material to these consolidated cases: Medical records are maintained for the following purposes: To serve as a basis for planning patient care and for continuity in the evaluation of the patient’s condition and treatment. To furnish documentary evidence of the course of the patient’s medical evaluation, treatment, and change in condition. To document communication between the practitioner responsible for the patient and any other health care professional who contributes to the patient’s care. To assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient. A licensed physician shall maintain patient medical records in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken or why an apparently indicated course of treatment was not undertaken. The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. All entries made into the medical records shall be accurately dated and timed. Late entries are permitted, but must be clearly and accurately noted as late entries and dated and timed accurately when they are entered into the record. However, office records do not need to be timed, just dated. Relevant Drugs Methadone is a legend drug and is a Schedule II controlled substance listed in Chapter 893, Florida Statutes.1 Methadone is indicated for the relief of severe pain, for detoxification treatment in cases of narcotic addiction, and for the temporary maintenance treatment of narcotic addiction. Methadone can produce drug dependence of the morphine type. Psychological dependence, physical dependence, and tolerance may develop upon repeated administration of methadone. Xanax is a legend drug and it contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Alprazolam is a Benzodiazepine Anxiolytic, and the abuse of Alprazolam can lead to physical and psychological dependence. Xanax is indicated for the short-term relief of symptoms of anxiety. It produces additive CNS (Central Nervous System) depressant effects when co-administered with other CNS depressants. Oxycontin is a legend drug and it contains Oxycodone, a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Oxycodone is a narcotic analgesic indicated for the relief of moderate to moderately severe pain, and carries a high potential for abuse which may lead to severe physical and psychological dependence. Dilaudid is a legend drug and it contains Hydromorphone, a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Hydromorphone is a powerful narcotic analgesic indicated for the relief of moderate to severe pain, and carries a high potential for abuse and dependence. Abuse of hydromorphone may lead to severe physical and psychological dependence. Soma (Carisoprodol) is a legend drug and it is a muscle relaxant used as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with acute, painful musculoskeletal conditions. The effects of Carisoprodol and other drugs that depress the CNS may be additive, and Soma should be prescribed with caution to patients taking other CNS depressant medications, such as narcotics, benzodiazepine anxiolytics and tranquilizers, and barbiturates. Fiorinal with Codeine is a legend drug and it contains Codeine and Butalbital, both Schedule III controlled substances listed in Chapter 893, Florida Statutes. Codeine is a narcotic analgesic indicated for the relief of moderate to severe pain, and carries a significant potential for abuse and dependence. Butalbital is a barbiturate sedative which also carries a significant potential for abuse and dependence. Fiorinal with Codeine is indicated for the treatment of tension headaches. Keflex (Cephalexin) is a semi-synthetic cephalosporin antibiotic intended for oral administration. MS Contin is a legend drug and it contains Morphine Sulfate USP, a Schedule II controlled substance listed in Chapter 893, Florida Statutes, which is indicated for the relief of moderate to severe pain. Morphine has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Abuse of Morphine may lead to severe psychological or physical dependence. Restoril contains Temazepam, a schedule IV controlled substance indicated for the relief of insomnia. The abuse of Temazepam can lead to physical or psychological dependence. Vicodin is a legend drug and it contains Hydrocodone Bitartrate, a Schedule III controlled substance listed in Chapter 893, Florida Statutes. Hydrocodone is a narcotic analgesic indicated for the relief of moderate to severe pain, and is also used as an antitussive (cough suppressant). Hydrocodone carries a high potential for abuse and dependence. General facts about Respondent's medical records Respondent's medical records for each of the patients whose treatment forms the basis for the administrative complaints in these consolidated cases included an office cover sheet with a patient name. However, the individual records following the cover sheet contained no patient names. The patient's name should be on each page of medical records for that patient. Physicians are taught in medical school to use a variation of the S.O.A.P. method for creating medical records. S.O.A.P. is an acronym standing for Subjective, Objective, Assessment, and Plan. The basic elements of the S.O.A.P. method should be present in the records of each patient visit. In the medical records prepared by Respondent during the course of his treatment of the six patients at issue in these consolidated cases, more often than not some elements of the S.O.A.P. method were omitted. Many of Respondent's entries in these records are insufficient because they omit information required by the S.O.A.P. method. Admitted Facts regarding Patient S.T. (Case No. 2002-26343) On or about December 5, 2000, Patient S.T., a 46-year- old female, first presented to Respondent with complaints of back and neck pain, bronchitis, chronic hepatitis B, bipolar illness, lupus discoid and seizure disorder. According to Patient S.T.’s medical records, Patient S.T. had a history of being treated with controlled substances, including Dilaudid. Based on his impression that Patient S.T. was suffering from severe asthmatic bronchitis, seizures, and lupus and needed immediate care, Respondent directed Patient S.T. to the local emergency room, where she remained in the hospital until December 9, 2000. Various tests were performed on Patient S.T. including a complete blood count (CBC) and an electrocardiogram (EKG). On or about December 11, 2000, Patient S.T. presented to Respondent and Respondent prescribed Albuterol and a Nebulizer for her bronchitis. On or about January 15, 2001, Patient S.T. returned to Respondent’s’ office. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 90 Dilaudid, 4 mg 60 Xanax, 2 mg 180 Fiorinal #3 On or about February 13, 2001, Respondent saw Patient S.T. Patient S.T.’s records, for the February 13, 2001 visit, do not indicate the reason for the Keflex. During the course of that visit, Respondent prescribed Soma and Fiorinal #3 to Patient S.T. without documenting the presence of one or more recognized medical indications for the use of controlled substances, and without documenting a treatment plan for Patient S.T. On or about February 26, 2001, Patient S.T. presented to Respondent. On or about March 13, 2001, Patient S.T. visited Respondent and complained of urinary incontinence and heartburn. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 90 Soma, 350 mg Dilantin Fiorinal #3 90 Dilaudid, 4 mg On or about April 12, 2001, Respondent prescribed the following drugs to Patient S.T.: 90 Soma, 350 mg 60 Xanax, 2 mg 120 Fiorinal #3 120 Methadone, 10 mg On or about April 12, 2001, Respondent initially prescribed 90 Dilaudid, 4 mg, but then crossed this prescription out and substituted Methadone instead. On or about May 10, 2001, Patient S.T. returned to Respondent’ office. During the course of that visit Respondent prescribed the following drugs to Patient S.T.: 60 Soma, 350 mg 60 Xanax, 2 mg 100 Firoinal #3 120 Methadone, 10 mg On or about May 10, 2001, Respondent also prescribed Cipro and Prednisone, 10 mg, for an apparent skin condition affecting Patient S.T.’s legs. On or about June 7, 2001, Respondent saw Patient S.T. again. During this visit, Respondent noted that Patient S.T. suffered from edema (excess fluid in cells and tissues). Respondent failed to document any other physical examination of Patient S.T. during the course of the June 7, 2001, visit. On or about June 7, 2001, Respondent treated Patient S.T.’s edema. On or about June 7, 2001, Respondent failed to document any explanation or adequate medical justification for prescribing 60 Xanax, 2 mg, 100 Fiorinal #3 and 120 Methadone, 10 mg to Patient S.T. On or about July 6, 2001, Patient S.T. returned to Respondent at which time he prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Firoinal #3 150 Dilantin, 100 mg 120 Methadone, 10 mg On or about August 3, 2001, Patient S.T. returned to Respondent. Respondent's medical records regarding S.T.'s August 3, 2001, visit do not reflect that there was a discussion of risks and benefits of using controlled substances. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Fiorinal #3 180 Dilantin, 100 mg 120 Methadone 10 mg On or about September 12, 2001, Respondent prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Fiorinal #3 120 Methadone 10 mg On or about September 17, 2001, Patient S.T. presented to Respondent for a final time. During the September 17, 2001, visit, Patient S.T. complained of cellulitis (inflammation of tissue) to her abdomen. During the September 17, 2001 visit, Respondent treated Patient S.T.’s cellulitis with ointment and Tequin (an antibacterial agent). Additional Facts regarding Patient S.T. (Case No. 2002-26343) During her hospitalization, Patient S.T.'s treatment included Atrovent with Ventolin. Patient S.T. remained in the hospital until December 9, 2000, when she was discharged with directions to follow up with Respondent. Contained within the medical file for Respondent are copies of magnetic resonance imaging (MRIs) for the lumbar spine (dated January 17, 2000), the brain (dated January 12, 2000) and the neck (dated January 17, 2000). The MRI of the brain was normal but the MRIs of the neck and low back showed disc herniations, among other changes. An echocardiogram was also performed on January 12, 2000 that stated “if a significant valvular lesion is still being considered, correlation with a cardiac Doppler examination is recommended.” There is no medical record concerning Patient S.T.'s visit to Respondent's office on December 11, 2000. There is only a copy of the prescription written that day with some notes written on the bottom of the prescription. Respondent's record for the January 15, 2001, visit with Patient S.T. consists basically of a list of prescription drugs. There is no documented subjective complaint, objective result, assessment, or treatment plan. There are also no notes concerning the treatment in the hospital or concerning the test results from January 2000. On January 15, 2001, Respondent prescribed 90 Dilaudid 4 mg, 60 Xanax 2 mg, 180 Fiorinal #3, Dilantin, Soma and Phenergen to Patient S.T. Respondent failed to document why any of these medications were prescribed. On February 13, 2001, Patient S.T. presented to Respondent. Respondent noted that the patient was getting Keflex (an antibiotic) on her own. Respondent’s records do not indicate any inquiry concerning how she was obtaining Keflex on her own or the reason for the Keflex. On the February 13, 2001 visit, Respondent noted pharynx infected and no evidence of thrush. Respondent then prescribed Soma 350 (now three times per day), Cipro 500, an inhaler and Fiorinal #3 to Patient S.T. Presumably, the Cipro (an antibiotic) was prescribed for some infection, but there are no notes indicating this. On February 13, 2001, Respondent prescribed Soma, Cipro, and Fiorinal #3 to Patient S.T. without documenting an assessment or treatment plan for Patient S.T. Respondent prescribed Soma and Fiorinal #3 to Patient S.T. without documenting the presence of one or more recognized medical indications for the use of controlled substances. Respondent does not indicate why he increased the Soma. On February 13, 2001, Respondent noted that he wrote a prescription for Neurontin 400 but then put a note over that that says “hold.” There is no explanation in the record for this change in treatment nor is there a reason why the Neurontin was prescribed initially. On February 26, 2001, Patient S.T. presented to Respondent. Respondent noted that Patient S.T.’s Dilantin level was low, noted a recent seizure, and noted that there were extreme sores with two arrows pointing downward. Respondent then switched the patient to Tequinn (another antibiotic) without any explanation for the switch. There were no other subjective or objective complaints listed. Respondent failed to record an assessment or treatment plan other than to “do Dilantin level.” Respondent failed to document any medical reasons for doing a Dilantin level check if Respondent already knew the Dilantin level was low. On March 13, 2001, Respondent prescribed #90 Soma 350 mg, Dilantin, Paxil, Xanax 2.0 mg, 90 Dilaudid 4 mg, Fiorinal #3, Phenergen, a Nebulizer and Neurontin to Patient S.T. There are no explanations for the prescribing of these drugs. There is no assessment, other than of the skin condition, and no written plan concerning the prescriptions given. On March 13, 2001, Respondent also prescribed a trial of Lithium 450. There were no subjective or objective complaints concerning the reason Respondent prescribed this drug. There is no assessment or plan concerning the prescription of this drug. Lithium can be prescribed for psychiatric diagnoses but there are no notes indicating why Respondent is prescribing this drug. On April 12, 2001, Patient S.T. returned to Respondent. Respondent noted in Patient S.T.’s records that the DEA (Drug Enforcement Agency) “confiscated some of her meds” which were in a friend’s house. Respondent did not note any follow-up, plan, or inquiry concerning the note that the DEA confiscated Patient S.T.’s medications. Respondent noted that Patient S.T. should try to take the Lithium and that she needed a right ankle brace. There are no subjective or objective complaints in this note. There is also no assessment or plan, other than to try to take Lithium. The medical records for the visit on April 12, 2001, do not contain any explanation as to why Respondent prescribed any of the controlled substances he prescribed during that visit. It is clearly a “red flag” when a patient informs a doctor that the DEA has confiscated her medications. When this type of event occurs, it is inappropriate and egregious for the physician to prescribe controlled substances like the ones Respondent prescribed on April 12, 2001, without inquiry and investigation into the circumstances. On May 10, 2001, Patient S.T. returned to Respondent’s office. Respondent noted that Patient S.T. was non-diabetic. Respondent then prescribed Cipro and Prednisone 10 mg for the sores on the lower limbs. There is no explanation why Respondent switched the patient back to Cipro. There are no documented subjective or objective complaints concerning the legs other than that there were sores. There was no adequate assessment of the legs. The rest of Respondent’s medical record for May 10, 2001, is basically a list of prescriptions. There is no written explanation for the prescriptions, no assessment, and no plan concerning their use. On July 6, 2001, Patient S.T. returned to Respondent. Respondent listed Patient S.T.’s conditions on the side of his record. These conditions were: lupus, hepatitis, bronchitis, herpes simplex, proven non-diabetic, edema and seizure disorder. Respondent notes a plan to do a complete blood count (CBC) and Dilantin level. The rest of the record is a list of prescriptions. During the visit on July 6, 2001, Respondent prescribed controlled substances without documenting any medical complaints by the patient. There are no subjective or objective complaints. There is no assessment or plan concerning the drugs prescribed. Respondent prescribed controlled substances to Patient S.T. without documenting that he discussed the patient’s chronic pain with her (if she had any). Respondent's medical records for Patient S.T.'s visit on August 3, 2001, do not contain any subjective or objective complaints. Also there is no assessment or plan concerning the drugs prescribed that day. On September 12, 2001, Patient S.T. returned to Respondent. Respondent wrote in Patient S.T.’s record abbreviations for Glucosamine and Chondroitin. There is no other note other than a weight recorded for this visit. However, contained within Respondent’s medical file are copies of some of his prescriptions. These copies indicate that Respondent prescribed 60 Xanax 2 mg, 100 Fiorinal #3, Methadone 10 mg on this visit. On the prescription form itself, Respondent indicated that the Fiorinal was for headaches and the Methadone for pain. There are no notes at all in the medical record about these prescriptions or why they were prescribed. Further, Respondent’s medical records for September 12, 2001, fail to indicate why the Xanax was prescribed. The medical records do not contain any subjective or objective complaints. There is no assessment or plan. It is not sufficient to write instructions and the rationale for prescribing a drug on the prescription form only. A physician should document in the medical record the prescription, the dosing, and the reason why the drug is being prescribed. Respondent failed to do this on September 12, 2001. On September 20, 2001, Patient S.T. died. An autopsy was performed and the cause of death was determined to be acute polydrug toxicity (Fentanyl, Codeine, Methadone, Oxycodone, Butalbital, and Alprazolam or Xanax). Butalbital is a component of Fiorinal. The Miami-Dade County medical examiner’s report indicated that Patient S.T. had a history of drug abuse since aged 20. The toxicology report indicated that Patient S.T. had fatal doses of Fentanyl, Oxycodone and Codeine in her system. Respondent violated the statutory standard of care2 by failing to adequately address the etiology of Patient S.T.’s pain, by prescribing controlled substances without adequate medical justification, and by failing to set up a treatment plan concerning the prescribing of controlled substances. Respondent’s actions were particularly egregious following the DEA seizure of the patient’s medication. Respondent also violated the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control.3 Respondent failed to keep adequate medical records justifying the course of treatment by failing to document an appropriate plan concerning the controlled substances and by failing to document the justification for the controlled substances he prescribed. Respondent failed to keep adequate medical records documenting the source of any alleged pain and failed to document adequate progress notes. Respondent inappropriately prescribed controlled substances to Patient S.T. Respondent inappropriately increased the Soma without noting any reason or discussion concerning this increase. Respondent also inappropriately prescribed medications by discontinuing the Dilaudid and prescribing the Methadone without justification or explanation. Finally, Respondent inappropriately prescribed controlled substances to Patient S.T. after learning that the DEA had seized her medications.4 Admitted Facts regarding Patient C.C. (Case No. 2002-26342) On or about August 2, 2001, Patient C.C., a 45-year- old male, first presented to Respondent with a history of several injuries including a left and right hip replacement, a left ankle fusion, and a right ankle compound break. According to Patient C.C.’s medical records for this visit, Respondent verified the injuries reported by Patient C.C. by only examining the surgical scars on Patient C.C.’s body. At the conclusion of this visit, Respondent instructed Patient C.C. to return with copies of his X-rays and to undergo “blood work”. During the course of this visit, Respondent prescribed 90 Dilaudid, 4 mg, and 60 Oxycontin, 80 mg, to Patient C.C. On or about August 6, 2001, Respondent prescribed 15 Xanax, 2 mg, to Patient C.C. Patient C.C.’s medical records for the August 6, 2001, visit do not contain examination results or subjective or objective complaints. On or about August 23, 2001, Patient C.C. returned to Respondent’s office, whereupon, Respondent prescribed 90 Dilaudid, 4 mg, and 30 MS Contin, 100 mg, to Patient C.C. Patient C.C.’s records for the August 23, 2001, visit reflect that the only physical examination results recorded are weight and blood pressure. Patient C.C.’s records for the August 23, 2001, visit reflect that Patient C.C. did not provide Respondent with copies of his X-rays. Patient C.C.’s records for the August 23, 2001, visit also reflect that Patient C.C. did not provide Respondent with verification of completion of the “blood work” that Respondent requested during Patient C.C.’s visit of August 2, 2001. On or about September 19, 2001, Patient C.C. returned to Respondent’s office complaining of an upper respiratory infection. Respondent renewed Patient C.C.’s prescriptions for 90 Dilaudid, 4 mg, and 30 MS Contin, 100 mg. On or about September 20, 2001, Respondent prescribed 30 Xanax, 2 mg, to Patient C.C. by telephonic order. On September 26, 2001, Patient C.C. presented to Respondent. Patient C.C.’s medical records for the September 26, 2001, visit indicate that Patient C.C. complained of a gastrointestinal disorder. Patient C.C.’s medical records for the September 26, 2001 visit indicate that Respondent again noted: “must do lab work.” Patient C.C.’s medical records contain what appears to be an entry for September 29, 2001, which simply states “Restoril 30 — trial.” On or about October 11, 2001, Respondent prescribed 30 Vicodin ES by telephonic order for Patient C.C. Patient C.C.’s final visit to Respondent occurred on or about October 19, 2001. During the course of that visit, Patient C.C. complained of a contusion that resulted from a fall. Patient C.C.’s medical records for the October 19, 2001, visit fail to document which part of Patient C.C.’s body was contused. Patient C.C.’s records for the October 19, 2001, visit do not contain any documentation that Respondent performed a physical examination of Patient C.C. During the course of the October 19, 2001, visit, Respondent prescribed the following drugs to Patient C.C.: 90 Dilaudid, 4 mg 90 Soma, 350 mg 60 MS Contin, 100 mg Additional Facts regarding Patient C.C. (Case No. 2002-26342) In the medical record of the August 2, 2001, visit there are no notations as to when the injuries occurred or which injury was causing a complaint that day, if any. Respondent noted that the patient was disabled and on Medicare. On August 2, 2001, in addition to the Dilaudid and Oxycontin, Respondent also prescribed Fiorinal with Codeine and Tuinal (a short-acting barbiturate). Respondent’s medical records for Patient C.C.’s August 2, 2001, visit do not contain examination results or subjective or objective complaints. The record has no assessment of Patient C.C.’s hips or ankles. Respondent requested copies of the X-rays from the patient, presumably to confirm the prior injuries to the hips and ankles. There is no indication in the record that Respondent ever tried to obtain the X-rays himself. In the medical record for the August 23, 2001, visit, Respondent did not document any indication why he switched Patient C.C. from Oxycontin to MS Contin. The Dilaudid was prescribed apparently for “breakthrough pain.” However, there are no notes concerning the severity of any pain or the source of any pain. Respondent also noted on this visit that the patient had GERD (gastroesophogeal reflux disease) or irritable bowel syndrome. No subjective complaints or symptoms are recorded. He questioned whether it was due to diet and thought he might be a candidate for Librax (a medication used for irritable bowel disease). Respondent then gave Patient C.C. a sample of Prevacid (a medication that can treat GERD). In the medical record for the September 19, 2001, visit there are no notations concerning the patient's respiration or whether he was wheezing. No other symptoms are recorded. Respondent did not record any objective results, failed to record any assessment and did not record an adequate plan. Respondent gave the patient a Zithromax sample for the respiratory infection. Respondent then renewed Patient C.C.’s prescriptions for #90 Dilaudid 4 mg and #30 MS Contin 100 mg. There are no records indicating why these medications were prescribed. The medical record for Patient C.C. does not document why Respondent prescribed Xanax to the patient by telephone on September 20, 2001. The medical records for the October 11, 2001, visit contains no notations as to why Respondent prescribed Vicodin ES, nor are there any subjective or objective complaints noted. In the medical record for the October 19, 2001, visit, there is no chief complaint recorded, other than the contusion. There is no assessment and no plan other than prescribing narcotics. There are no indications in the record as to why prescriptions for Dilaudid, Soma, and MS Contin were written, or what chief complaint required these medications. On October 29, 2001, Patient C.C. died. The medical examiner’s report stated that the cause of death was acute morphine toxicity. The toxicology report indicated the following drugs were detected in Patient C.C.’s body: Alprazolam or Xanax, Benzodiazepines, Meprobamate, Corisoprodol or Soma and Morphine. The medical examiner's report also detailed a history of a motor vehicle accident at aged 17 (approximately 28 years before Respondent first saw the patient). The medical history indicated that Patient C.C. broke his legs during this accident and that the legs never healed properly. The medical examiner’s report also indicated a social history of drug abuse, both illegal and prescription, as well as prior suicidal attempts years ago by cutting his wrists. There were also the typical track or needle marks on the arms that would have been visible a month or longer before death. Respondent did not record the detailed medical history from the motor vehicle accident nor the past suicide attempts. Even if the patient was not candid with Respondent, an examination of Patient C.C.’s arms would have revealed the prior track or needle marks as well as the prior marks from the suicide attempts. However, Respondent’s records do not contain any such details. Respondent failed to practice medicine within the statutory standard of care by failing to adequately assess Patient C.C.’s pain, failing to create an adequate treatment plan and by failing to obtain prior medical records to review past drug use. Respondent also violated the statutory standard of care by inappropriately prescribing controlled substances without adequate medical justification and by refilling controlled substances without identifying a chief complaint, without performing a review of systems, without performing adequate physical exams and assessments, and without preparing adequate plans. Respondent also failed to meet the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent failed to keep adequate medical records that justify the course of treatment by failing to document a complete medical history as well as a history of Patient C.C.’s present complaint, and by failing to document adequate physical exams, adequate treatment plans and assessments of the etiology of Patient C.C.’s pain. Respondent also failed to keep medical records that justify the course of treatment by failing to document a discussion of risks and benefits of using controlled substances, and the medical justification for the continued treatment with controlled substances. Respondent inappropriately prescribed controlled substances to Patient C.C. Respondent continued to inappropriately prescribe controlled substances to this patient without a definitive diagnosis and without verifying the patient’s medical history and past drug use. Admitted Facts regarding Patient B.F. (Case No. 2002-26340) On or about October 15, 2001, Patient B.F., a 55-year- old female, presented to Respondent with complaints of lower back pain, polyneuropathy, bronchitis, a history of HIV (human immunodeficiency virus), AIDS (acquired immunodeficiency syndrome), heroin addiction, and hepatitis C. No other physical exam results are documented. During the course of this visit, Respondent prescribed the following drugs to Patient B.F.: 90 Oxycontin, 80 mg 60 Xanax, 2 mg On or about November 15, 2001, Patient B.F. returned to Respondent’s office. Patient B.F.’s medical records for the November 15, 2001, visit do not document that Respondent performed a review of systems. Patient B.F.’s medical records for the November 15, 2001, visit do not document that Respondent performed an adequate physical examination of Patient B.F. during this visit. Respondent then noted that “Pt to bring in all her HIV meds for renewal.” During the course of the November 15, 2001, visit, Respondent prescribed the following drugs to Patient B.F.: 90 Oxycontin, 80 mg 60 Xanax, 2 mg There is no documentation in Patient B.F.’s medical record for the December 17, 2001, visit that Respondent received the prior HIV medical records. There is no documentation in Patient B.F.’s medical record for the December 17, 2001, visit that Respondent addressed the nature or intensity of Patient B.F.’s pain. On or about January 14, 2002, Patient B.F. returned to Respondent with complaints of severe asthmatic bronchitis. Patient B.F.’s records for the January 14, 2002, visit reflect that Respondent treated Patient B.F.’s bronchitis with medication. Patient B.F.’s records for the January 14, 2002, visit reflect that Respondent renewed Patient B.F.’s prescription for 90 Oxycontin, 80 mg, and for 60 Xanax, 2 mg. Patient B.F.’s medical records of February 12, 2002, indicate that Respondent needs lab work at the next visit. On or about March 15, 2002, Patient B.F. returned to Respondent’s office. Patient B.F.’s medical records for the March 15, 2002, visit reflect that Patient B.F.’s pain was fluctuating and that her anxiety was high. On the March 15, 2002, visit Respondent briefly listened to Patient B.F.’s lungs and noted her blood pressure and pulse. On the March 15, 2002, visit, Respondent renewed Patient B.F.’s prescriptions for 90 Oxycontin, 80 mg, and for 60 Xanax, 2 mg. Additional Facts regarding Patient B.F. (Case No. 2002-26340) During the visit on October 15, 2001, Respondent documented a painful lumbar region. However, Respondent did not document results of other physical exams, including the level of pain for the lower back, the location of the polyneuropathy in the body, and the rate of respiration. Lab tests were ordered. There is no clear indication from the medical records of the first visit what Respondent’s treatment plan was for this patient. At Patient B.F.'s visit on November 15, 2001, Respondent wanted to see if the patient qualified for Neupogen. He also recommended Glucosomine and Chondroitin with water exercises. He also noted that the liver studies reflected hepatitis C. Respondent’s recommendation to try Neupogen is unexplained. Because Neupogen stimulates white blood cells and Patient B.F.’s white blood count was normal, there was no justification for Respondent’s consideration of Neupogen. Respondent’s medical record for his December 17, 2001, visit with Patient B.F. is very brief. He wrote a blood pressure reading and the word “pulse” but with no reading next to it. He also drew an arrow pointing up next to the words “bronchitis; smoking !!”. There are no subjective complaints documented, no assessment, and no treatment plan documented. During the December 17, 2001, visit, Respondent prescribed #60 Xanax 2.0 mg and #90 Oxycontin 80 mg for Patient B.F. Respondent failed to document a reason for prescribing these two controlled substances. There is also no documented plan concerning treatment for the notation about the increased bronchitis or smoking. Regarding the January 14, 2002, visit, there are no subjective complaints listed other than the one about severe asthmatic bronchitis. There is no documented physical exam or review of systems for this visit. The record does not contain any details of the patient’s respirations or diagnosis as to whether this was an acute bronchial attack or chronic bronchitis. In the medical records for the January 14, 2002, visit, Respondent noted that he had a discussion about Oxycontin with Patient B.F. However the record does not reflect why the drug was prescribed. On February 5, 2002, Patient B.F. returned to Respondent. Respondent’s note on this date is also brief. It contains a blood pressure, a pulse and a weight. Respondent also notes “GERD - ? to meds or anx.?” and gives the patient a sample of Prevacid for this problem. GERD means gastro- esophageal reflux disease. Respondent once again prescribed #90 Oxycontin 80 mg and #60 Xanax 2.0 mg. Respondent also prescribed some drugs for Patient B.F.’s HIV condition. However, there are no notes explaining why the Oxycontin and Xanax were prescribed. There is no assessment of the prior bronchial problems, the prior back problems, or any new complaints. On February 12, 2002, Patient B.F. returned to Respondent’s office. Respondent’s medical record indicated that Patient B.F. needs lab work at the next visit and contained a list of prescriptions. Respondent provides no indication why the various drugs were prescribed, no assessment of the patient, no subjective complaints detailed and no plan for treating the patient. Respondent saw Patient B.F. again on March 15, 2002. At that time he noted decreased breath signs, and at some later time he recorded the lab results. On the March 15, 2002 visit, Respondent also questioned the patient’s “compliance.” There was no explanation given as to what type of compliance issues were of concern to Respondent. Respondent then renewed Patient B.F.’s prescription for #90 Oxycontin 80 mg and #60 Xanax 20 mg. On March 25, 2002, Patient B.F. died. According to the initial Miami-Dade County Medical Examiner’s report, the cause of Patient B.F.’s death was accidental heroin and Xanax intoxication. The contributing causes were AIDS and Hepatitis C. A toxicology report was issued on October 1, 2004, by the Miami Dade County Medical Examiner’s office. This report was positive for Oxycodone, Methadone, Morphine, Codeine, and Alprazolam or Xanax. The Miami-Dade County Medical Examiner’s office issued an amended report on November 2, 2004, indicating that Patient B.F.’s cause of death was polydrug intoxication (Heroin, Oxycodone, Methadone, and Alprazolam or Xanax). The contributing causes were AIDS and Hepatitis C. The report added Oxycodone and Methadone as contributing to the death. Both the original and the amended Medical Examiner reports contain a social history indicating that Patient B.F. was a known IV drug abuser and had received treatment at a local Methadone clinic. None of Respondent’s medical records for Patient B.F. contain a past or current history of treatment at a Methadone clinic. The records also fail to identify whether Respondent inquired about any current drug abuse. Respondent should have inquired about, and should have documented, any Methadone treatment Patient B.F. was involved in before Respondent instituted his own treatment in order to prescribe narcotics properly. This patient was a complicated case and would have benefited from a multi-disciplinary team approach.5 In his treatment of Patient B.F., Respondent failed to practice medicine within the statutory standard of care by inappropriately prescribing controlled substances without adequate medical justification and by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent also violated the statutory standard of care by failing to sufficiently assess the bronchial asthmatic condition by noting the patient’s respiratory rate and degree of wheezing. Respondent failed to keep adequate medical records that justify the course of treatment by failing to document adequate physical exams, by failing to document an adequate review of systems, by failing to document a treatment plan, and by failing to document the respiratory rate and degree of wheezing related to B.F.’s bronchial asthmatic condition. Respondent failed to keep adequate medical records to justify the course of treatment by failing to document adequate justification for prescribing Oxycontin on the first visit and for continuing to prescribe Oxycontin and Xanax in a patient with a history of heroin abuse. Respondent inappropriately prescribed Oxycontin to Patient B.F. on the first visit and inappropriately prescribed Oxycontin and Xanax to her on subsequent visits without adequate medical justification. Many of Respondent’s medical records are merely a list of the drugs prescribed without any rationale or reason stated for the prescriptions. Respondent inappropriately prescribed controlled substances without documenting a physical exam, a review of systems, assessments, or any plans for the patient and without inquiring about the patient's Methadone clinic treatment. Admitted Facts regarding Patient D.P. (Case No. 2002-12858) On or about February 2, 2002, Patient D.P., a 25-year old male, presented to Respondent’s office with complaints of severe lower lumbar pain with radiation into both thighs, left greater than right. The medical record for this visit contains a brief family history, social history, and notation of no allergies in the medical records. The medical record for this visit has no adequate review of symptoms. Respondent documented that the patient is to furnish the X-rays of his lumbar spine, and pending this review, Respondent elected to hold off on ordering an MRI (magnetic resonance imaging). Blood work was deferred to the next visit. Further instructions included glucosamine and chondroitin and water exercises. During the course of the February 2, 2002, visit, Respondent prescribed the following drugs to Patient D.P.: 240 Methadone, 10 mg 120 Dilaudid, 4 mg 90 Xanax, 2 mg On or about March 1, 2002, Patient D.P. returned to Respondent with a complaint of an area of baldness in the upper right occipital area, secondary to striking his head. Patient D.P. also had complaints concerning his left great toe. Respondent again requested that Patient D.P. supply him with his lumbar X-rays. During the course of this visit, Respondent prescribed the following drugs to Patient D.P.: 60 Soma, 350 mg 90 Xanax, 2 mg 120 Dilaudid, 4 mg Respondent’s medical records indicate that on or about March 30, 2002, a Saturday, Patient D.P. appeared for an office visit. The medical records indicate that some type of final warning was given. The record indicates that on or about March 30, 2002, Respondent prescribed the following drugs to Patient D.P.: 60 Soma, 350 mg 90 Xanax, 2 mg 105 Dilaudid, 4 mg On the record of the March 30, 2002, visit, after the Dilaudid, Respondent wrote, “start to lower.” There is also an entry that Patient D.P. paid $75.00 for this visit. Respondent did not see Patient D.P. on the March 30, 2002, visit because the patient was late. Respondent sent Petitioner a letter on or about August 29, 2002, indicating that Respondent did not see Patient D.P. on the March 30, 2002, visit because the patient was late. Respondent’s secretary waited for the patient in order to give him the prescriptions written by Respondent. Additional Facts regarding Patient D.P. (Case No. 2002-12858) Patient D.P. presented to Respondent with a history of prescriptions for Methadone, Dilaudid, Xanax, and Oxycontin. Although Respondent wrote refill prescriptions for Methadone, Dilaudid, and Xanax, he did not write a refill prescription for Oxycontin. There is no explanation in the medical record for the Respondent's decision not to refill the Oxycontin. Respondent failed to document an explanation for continuing some of the pain medications and discontinuing the Oxycontin. It is not safe to discontinue Oxycontin abruptly. Respondent also failed to document the name of the physician who previously prescribed the above-described pain medications and failed to document any need to obtain the medical records from the prior physician. Patient D.P. presented to Respondent with several “red flags.” Among the “red flags” were: a young man with a list of previously used pain medications, no X-rays, and a request to refill the pain medications based on unverified back pain. The medical record for Patient D.P.'s visit on March 1, 2002, does not indicate what medical conditions the pain medications that were prescribed on that date were supposed to treat. Two body parts (the head and large toe) were identified with subjective complaints. An appropriate objective note was not made. The medications prescribed on March 1, 2002, were essentially the same as those prescribed during the February 2, 2002, visit but with no mention of back problems in the record of the March 1, 2002 visit. In a patient such as D.P., pain is a vital sign and should be documented. Pain is usually documented on a scale of one to ten. There is no record of pain for any of the three body parts (head, back or great toe). Soma was also prescribed on this visit. There is no documented justification for the prescription of Soma. On April 1, 2002, Patient D.P. died of a combined drug overdose (Methadone, Xanax, Alprazolam, Soma, Carisoprodol, and Meprobamate). A toxicology exam was done, with a follow-up confirming report. The report was positive for Xanax, Soma, Methadone, and the metabolites for Cocaine. The report showed fatal or lethal levels of Methadone and Xanax in Patient D.P.’s body. Respondent violated the statutory standard of care by prescribing controlled substances to Patient D.P. without even seeing or examining him. Respondent also violated the statutory standard of care by prescribing the controlled substances inappropriately without adequate justification. Respondent also violated the statutory standard of care by his inadequate physical exams, especially on the visits after February 2, 2002. Respondent’s medical records for this patient fail to justify the course of treatment for all of the visits. There is an inadequate history of any prior back problem or drug abuse problem. The records concerning any physical exam are inadequate. Respondent’s records for this patient fail to contain an adequate history documenting any prior diagnostic testing or diagnosis that would have been the basis for his previously prescribed drugs. The medical record of March 30, 2002, fails to accurately describe what actually happened that day. Further, the medical record for that date is written in such a way as to suggest that Respondent had seen and treated the patient on that date, when, in fact, Respondent did not see Patient D.P. on March 30, 2002. Respondent inappropriately prescribed Soma, Methadone, Xanax, and Dilaudid to Patient D.P. In addition, he inappropriately prescribed the Soma, Xanax, Methadone and Dilaudid when he left them with his secretary for Patient D.P. to pick up without examining Patient D.P. or discerning a need for these drugs. Respondent left the prescriptions "out of compassion" for D.P. In hindsight, Respondent admits that it was a mistake to do so. He had never done such before and has not done it since. During the course of his treatment of Patient D.P., Respondent failed to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Admitted Facts regarding Patient F.K. (Case No. 2002-26339) On or about January 31, 2002, Patient F.K., a 46- year-old male, first presented to Respondent with complaints of back pain, with pain radiating to both sides, insomnia, and depression. According to Patient F.K.’s medical records, Patient F.K., had a history of heroin addiction in the past. According to Patient F.K.’s medical records, Patient F.K. has a documented history of hepatitis 30 years ago, most likely from a needle. According to Patient F.K.’s medical records, Patient F.K.’s current medications included Methadone, 80 mg/day, Oxycontin, 80 mg qid (4 times daily), and Xanax, 2.0 mg, “3, 4, or 5”. On or about January 31, 2002, Respondent ordered lab work for Patient F.K. On or about January 31, 2002, Respondent noted in Patient F.K.’s medical records that the X-ray reports were “on the way.” On or about January 31, 2002, Respondent also recommended Glucosamine and Chondroitin for Patient F.K., both to be taken twice daily. During the course of the visit on January 31, 2002, Respondent prescribed the following drugs to Patient F.K.: 120 Xanax, qid 240 Methadone (8 pills/day) 180 Dilaudid (6 per day) On or about March 4, 2002, Patient F.K. returned to Respondent’s office. On or about March 4, 2002, Respondent noted that Patient F.K. was stabilizing. On or about March 4, 2002, Respondent noted that Patient F.K.’s X-ray reports were pending at the prison. On or about March 4, 2002, Respondent did not record an adequate examination or a range of system review for Patient F.K. On or about March 4, 2002, the lab data was reviewed and a notation that Patient F.K. was a non-diabetic was made. On or about March 4, 2002, Respondent recommended water exercises and Glucosamine/Chondroitin for Patient F.K. On or about March 4, 2002, Respondent failed to document in Patient F.K.’s medical record that he had performed a physical examination. On or about March 4, 2002, there is an entry in Patient F.K.’s medical record that states the pain is a combination of pathology and depression. On or about March 4, 2002, the Respondent failed to document in Patient F.K.’s medical records that he discussed the risks and benefits of the use of controlled substances with Patient F.K. During the course of the visit on March 4, 2002, Respondent prescribed the following drugs to Patient F.K.: 180 Dilaudid, 4 mg 240 Methadone 120 Xanax, 2 mg On or about April 1, 2002, it was noted that Patient F.K. was doing water exercises. On or about April 1, 2002, Respondent failed to document in his medical records a physical examination or review of Patient F.K.’s systems. During the course of the April 1, 2002 visit, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg, 2 q6h (every six hours) 180 Dilaudid, $ mg, 2 q8h (every eight hours) On or about April 1, 2002, there is also an entry in Patient F.K.’s medical records that a pharmacist called to discuss and confirm the medications prescribed. On or about April 29, 2002, Patient F.K. presented to Respondent’s office. On or about April 29, 2002, an entry in Patient F.K.’s medical record indicates that the patient will try to get his X-ray report that was done while in prison, apparently in early 2000. On or about April 29, 2002, Respondent did not document in Patient F.K.’s medical record that he performed a physical examination of Patient F.K. during this visit or that he identified the nature and intensity of Patient F.K.’s pain. During the course of the April 29, 2002, visit, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg 180 Dilaudid, 4 mg On or about May 25, 2002 (a Saturday), Patient F.K. returned to Respondent’s office. On or about May 25, 2002, Respondent noted that the patient was recently incarcerated and could not persist in his efforts to get the X-rays from prison. On or about May 25, 2002, there is no documented physical examination or review of systems in Patient F.K.’s medical records. On or about May 25, 2002, Respondent recommended that Patient F.K. continue water exercises with Glucosomine and Chrondroiton. During the course of the visit on May 25, 2002, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg 180 Dilaudid, 4 mg On or about May 25, 2002, Respondent ordered X-rays for Patient F.K.’s right knee and back ASAP. On or about May 26, 2002, Patient F.K. died. According to the Broward County Medical Examiner’s report, the cause of Patient F.K.’s death was acute bronchopneumonia due to combined drug toxicity (cocaine and methadone). Additional Facts regarding Patient F.K. (Case No. 2002-26339) In his medical records for the visit on January 31, 2002, Respondent indicates “severe low back syndrome,” but does not indicate how he reached this diagnosis. On April 1, 2002, Patient F.K. presented to Respondent’s office for polyarthritis. There is no other note concerning the polyarthritis such as its location, duration or severity. On April 1, 2002, Respondent also failed to document an assessment of any problems or a treatment plan, other than prescribing Xanax, Methadone, and Dilaudid. A telephone call from a pharmacist about prescriptions for narcotic drugs is often perceived as a “red flag.” This phone call, combined with the patient’s heroin history, should have alerted Respondent that Patient F.K. was a drug seeker or drug user with a history of abuse. Respondent's records for the April 29, 2002, visit do not indicate why Respondent prescribed Xanax, Methadone, and Dilaudid to Patient F.K. Patient F.K.’s history of incarceration is another “red flag” which should have been taken into account before prescribing controlled substances to this patient. Respondent's records for the May 25, 2002, visit do not indicate why Respondent prescribed Xanax, Methadone, and Dilaudid to Patient F.K. Prior to May 25, 2002, Respondent should have himself either obtained Patient F.K.'s X-rays from the prison or he should have ordered X-rays for the back and right knee sooner and before prescribing controlled substances over an extended period of time. At the time of his death, Patient F.K.’s level of Methadone recorded from the toxicology screen was in the toxic or lethal range. The level of Cocaine was at a low level. Patient F.K. would have benefited from a multi- disciplinary team approach. The multi-disciplinary approach could have dealt with his addiction problems, as well as his physical ailments.6 Respondent violated the statutory standard of care by failing to perform adequate physical exams, failing to identify or recommend a treatment plan, and by failing to adequately assess any pain the patient had. Respondent also violated the statutory standard of care by prescribing controlled substances to this patient without adequate medical justification, and prescribing controlled substances for pain before ordering or obtaining X-rays. Respondent also violated the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent failed to keep adequate medical records justifying the course and scope of treatment for Patient F.K. Respondent failed to adequately document justification for the controlled medications, failed to document adequate physical examinations, and failed to document an appropriate treatment plan for this patient. Respondent inappropriately prescribed controlled substances without adequate medical justification to Patient F.K. Admitted Facts regarding Patient A.C. (Case No. 2002-26341) On or about March 13, 2001, Patient A.C., a 43-year- old male, first presented to Respondent. The medical record for that visit notes that Respondent questioned a loss of Patient A.C.’s medications and that the patient is to return with X- rays. On or about March 19, 2001, Patient A.C. returned to Respondent’s office with his X-rays. On or about March 19, 2001, Respondent noted that the X-rays were indicative of significant advanced lumbar disc disease. On or about March 19, 2001, the recorded history also noted that Patient A.C. was involved in a motor vehicle accident on February 3, 2000. On or about March 19, 2001, Respondent noted a complaint of pain in the lumbar region radiating to both of Patient A.C.’s thighs, left greater than right. On or about March 19, 2001, Respondent ordered laboratory studies for Patient A.C. Respondent’s medical record of March 19, 2001, also contains a note that a pharmacy advised Respondent that Patient A.C. was “on Oxycontin 40 mg before.” Respondent notes in Patient A.C.’s record of March 19, 2001, the names of two doctors. On or about March 19, 2001, Respondent gave Patient A.C. samples of HCTZ (hydrochlorothiazide), an anti- hypertensive. On or about March 19, 2001, Respondent started Patient A.C. on Tevetan, an anti-hypertensive, 600 mg daily. During the course of the visit on March 19, 2001, Respondent also prescribed the following drugs to Patient A.C.: 60 Oxycontin, 80 mg Xanax, 2 mg, bid (twice daily) On or about March 21, 2001, Patient A.C. returned to Respondent’s office. On or about March 21, 2001, there are no notes in Patient A.C.’s medical records concerning a physical examination or review of systems. On or about March 21, 2001, there is also a note in Patient A.C.'s medical records about a pending evaluation with no details concerning the proposed evaluation. On or about March 21, 2001, Patient A.C.’s record also contains a note that his next appointment was April 4, 2001. On or about March 21, 2001, Respondent’s medical records also contain a dated entry of March 19, 2001, that lists Patient A.C.’s medications on this date as HCTZ 25 mg daily; Tevetan 600 mg daily; Norvasc 5 mg, 2 daily; Xanax 2 mg bid; and Oxycontin 80 mg bid. On or about March 21, 2001, Patient A.C.’s record does not reflect that the Respondent attempted to obtain Patient A.C.’s past medical records in order to verify Patient A.C.’s reported injuries and medical history. On or about March 21, 2001, Respondent did not document a treatment plan for Patient A.C. other than to order or request lab work. On or about April 1, 2001, Patient A.C. was transported to Broward General Hospital where he was pronounced dead at 9:06 a.m. The medical examiner ruled that the cause of Patient A.C.’s death was accidental Cocaine excited delirium and Oxycodone toxicity. The toxicology report indicated that the following drugs were detected in Patient A.C.'s body: Benzoylecgonine, Cocaine, Ecgonine, Methylester, and Oxycodone. Additional Facts regarding Patient A.C. (Case No. 2002-26341) Respondent also noted in the medical record for March 19, 2001, two doctors’ names (“Roonig” and”Washman”). Next to these names Respondent noted “ pt. given Oxycontin 160 #116 on 3/14” and under that “Oxycontin 40 + 20 Sig T.I.D. on 2/17.” There is no indication in the medical record that Respondent attempted to contact either of the doctors mentioned in his note or to obtain any of the medical records from either doctor. There are no notes about counseling the patient about the consequences of taking controlled substances. There is no indication in the medical records as to why Respondent prescribed Xanax and Oxycontin to this patient on March 19, 2001. Although the medical records for March 19, 2001, contain some subjective and objective results, there is no assessment or treatment plan for this patient. Respondent failed to document how he was managing the pain medication prescribed for this patient, particularly since the patient was obtaining Oxycontin from two other doctors. Respondent knew or should have known that Patient A.C. was a doctor shopper (an individual going to numerous doctors in order to obtain a number of controlled medications). Patient A.C. would have benefited from a multi-disciplinary team approach.7 Patient A.C. obviously had an addiction problem and that should have been apparent to Respondent. Respondent violated the statutory standard of care by failing to perform adequate physical exams, by failing to identify or recommend a treatment plan, and by failing to obtain past medical records. Respondent also violated the standard of care by prescribing controlled substances to this patient without adequate medical justification and by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control.8 Respondent failed to keep adequate medical records justifying the course and scope of treatment for Patient A.C. Respondent failed to adequately document justification for the controlled medications, failed to document adequate physical examinations, failed to document a complete history and failed to document an appropriate treatment plan for this patient. Respondent also failed to keep adequate progress notes. Respondent inappropriately prescribed controlled substances to Patient A.C. without adequate medical justification.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in these cases to the following effect: Adopting all of the foregoing findings of fact and conclusions of law; Dismissing the six counts in the Administrative Complaints alleging violations of Section 458.331(1)(q), Florida Statutes; Finding Respondent guilty of the six counts of violations of Section 458.331(1)(m), Florida Statutes, alleged in the Administrative Complaints; Finding Respondent guilty of the six counts of violations of Section 458.331(1)(t), Florida Statutes, alleged in the Administrative Complaints; and Imposing a penalty consisting of the revocation of Respondent's license to practice medicine in the State of Florida. DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2005.
The Issue Whether Respondent violated sections 458.331(1)(m), (q), and (t), Florida Statutes (2007-2011), and, if so, what discipline should be imposed.
Findings Of Fact The Parties DOH is the state agency charged with regulating the practice of licensed physicians pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. DOH is pursuing sanctions against Respondent based on her provision of medical care to patients A.M., C.B., and P.A. At all times relevant to this case, Respondent was licensed as a medical doctor within the State of Florida, having been issued license number ME 59800. Respondent is board certified by the American Board of Internal Medicine with a specialty in Infectious Disease. Respondent received her medical degree from Christian Medical College in India in 1984. Her medical career, according to her curriculum vitae, includes the following places of employment: 1996 Bay Area Primary Care 1997 American Family and Geriatrics 1998 Faculty appointment at University of South Florida – voluntary 2/99-11/99 Veteran’s Administration (Medical Officer on Duty) 1993-present Private Practice Respondent’s June 30, 2014, deposition testimony was that she is currently working as a medical provider at Fort Tryon Rehab and Nursing Home in New York, and prior to that she was working at a walk-in clinic in Queens, New York. Respondent testified that she currently resides in Pinellas Park, Florida. In 2008, Respondent’s Florida practice, Bay Area Infectious Disease (BAID), was located at 5840 Park Boulevard, Pinellas Park, Florida, and most recently at 1527 South Missouri Avenue, Clearwater, Florida. Each practice location is now closed. Respondent later testified that she had a practice located at 6251 Park Boulevard, Pinellas Park, Florida, which is also closed. Jamie Carrizosa, M.D. (Dr. Carrizosa) is a board- certified internal medicine and infectious disease physician who testified as an expert for DOH. Prior to his retirement in July 2011, Dr. Carrizosa had an active medical practice including hospital privileges. He is currently an Associate Professor of Medicine at the University of Central Florida, teaching first and second year students in the areas of microbiology and immunology. While in private practice, he treated patients with suspected skin infections, MRSA skin infections, candidiasis and other types of skin diseases. Issa Ephtimios, M.D. (Dr. Ephtimios) is a board- certified physician in internal medicine, infectious diseases and infection control who testified as an expert for Respondent. He is an attending physician at Sacred Heart Hospital, West Florida Hospital, Baptist Hospital, and Select Specialty Hospital in Pensacola, Florida. DOH Case No. 2009-13497 (DOAH Case No. 13-0595PL) On October 8, 2008, A.M. presented to Respondent with complaints of fatigue, headaches, and moodiness, according to a History and Physical Medi-Forms document. A BAID contract for services and an authorization for BAID to disclose protected health information (PHI) were executed on October 8. Within the records there was a diagram that contained pictures of a front and back body diagram and the handwritten words: “fatigue cold sweats fevers headaches.” Neither A.M.’s name nor the date appeared on the diagram, yet Respondent identified the diagram as belonging to A.M. and showing A.M.’s small lesions. On October 9, A.M. executed a Bay Area Infectious Disease and Infusion, PLC, “CONSENT FOR TREATMENT” form. Respondent’s progress notes are generally listed in the S.O.A.P. format.16/ The following appeared on one of A.M.’s October 9th Progress Notes: S: Complaint: MRSA,17/ headecha [sic], she like [sic] to talk W Dr. Pimple on but [sic] 3 rounds Zyvox, [illegible] c/o lethargic, gain wt, fatigue, headaches Pale, feets [sic] not Percocet –[illegible].” O: Exam: Ht 5.6” Wt 172 Age 16 M/F BMI T BP 118/64 P 65 R PO2 99_ Gluc A: General Appearance: WNL/18 HEENT: WNL Neck: WNL Chest: WNL Breast: WNL Heart: WNL Lungs: WNL Abdomen: WNL Genitalia: WNL Skin: WNL + multiple abcees [sic] Spine: WNL Extremities: WNL [All the “WNL” were typed capital letters.] DIAGNOSIS: Skin Abcess- Buttock, leg MRSA – Community Acquired P: PLAN: Vancomycin 1 gr daily [illegible] A second Progress Note for A.M., also dated October 9, contains the same information in the “S” and “O” portions, but at the “A” portion, it has no notations other than the pre-printed “WNL” at the “Skin” section, and it does not contain a “Diagnosis.” Respondent admitted that there were times when she would “complete records later on.” Respondent’s progress notes for A.M. from October 10 through October 16 were in a slightly different SOAP format. A.M.’s October 10 Progress Note reflects the following: S: Complaint: Vanco reaction O: Examination: BP P T R HT WT PO2 Glucose General Appearance; Awake alert,orientedx3 Head: Normocephalic atraurmatic EENT: PERLA, EOMI,Sclera-non-icteric, conjunctiva-pink Neck: Supple, no JVD. No Lymph nodes Heart: S1 S2 normal, murmurs Lungs: clear Abdomen: Soft, no masses, no tenderness, BS+, no hepatomegaly, no splenomegaly Left Lymph-inguinal: WNL Right Lymph-inguinal: WNL Extremities: No clubbing, cyanosis, edema Neurological: Motor-5/5, sensory-5/5, Deep tendon reflexes 2+ Cranial nerves Intact Skin: no rashes + circled Abscess Muskuloskeletal: WNL CLINICAL ASSESSMENT: MRSA, Skin Abcess CVIO PLAN: Zyvox A.M.’s progress notes between October 11 and 31, 2008, reflect various subjective complaints regarding her skin conditions. The physical examinations for each day do not contain consistent information regarding A.M.’s blood pressure, her height, weight, respirations, PO2, and glucose. On two days the “skin” section reflected “no rashes,” yet the clinical assessment reported “Skin Abces – improvely” [sic] or just “skin abcess.” On three progress notes (October 17, 18 and 20, 2008), there is a hand-written notation at the “Heart” section which indicates that A.M. might have a heart murmur, yet in the diagnosis section there is no mention of a heart issue or endocarditis.19/ All other progress notes regarding the “heart” contain the pre-printed “WNL.” A.M.’s IV/IM procedure notes beginning on October 10 and continuing through October 31, each reflect “heart murmur” in the diagnosis section along with “MRSA Skin abcess.” Respondent testified that she felt justified in using IV Vancomycin because A.M. was “doing the heart murmur.” However, Respondent’s initial plan included Vancomycin before any heart murmur was detected or assessed. Vancomycin is a prescription medication used to treat staphylococcal infections, and is usually utilized for more serious infections such as endocarditis. Zyvox is a prescription medication that comes in either an IV or oral form used to treat infections. Respondent claimed that there were missing medical records for A.M. However, with respect to patient A.M., Respondent claimed a progress note (part of the history and physical exam) from October 8 was the only medical record that was missing. Respondent then asserted that A.M. brought in her primary doctor’s referral which reflected A.M.’s treatment, including the medication prescribed; yet those medical records are not present. Respondent further testified that she “usually” puts prior treatment provider records in her patient’s file. Respondent maintained that she kept a lot of A.M.’s medical records on a computer that was bought in January 2001. However, that computer crashed in October 2011. A computer crash is plausible; however, the DOH subpoena was properly issued and served on Respondent on January 28, 2010, more than nine months before the alleged computer crash. Respondent then claimed that she “did not have access to that computer, which later crashed,” followed by her claim that “that practice was closed and when they came here, we only had the old, whatever, paper records.” Respondent’s position on these records was disingenuous at best. Respondent claimed that A.M. was seen and her medical records were at a different location (6251 Park Boulevard) than where the subpoena was served (5840 Park Boulevard).20/ Respondent then claimed the records that were moved from one facility to another facility could not be located. Respondent alluded to a potential police report regarding an alleged theft of medical records and other office items; however, nothing substantiated that, and Respondent’s testimony about possible criminal activity is not credible. Respondent admitted that some of A.M.’s medical records, specifically progress notes, were pre-printed, and that she wrote on some of the progress notes. In the progress notes dated October 10, 11, 13 through 18, 20 through 25, and 27 through 30, the handwriting appears to be the same, except for the change in each date. Further, Respondent confirmed A.M.’s 18 pages of progress notes of Vancomycin administration, yet distanced herself from them by saying “sometimes the charts were completed later on, so it’s possibility that it -- that it -- you know, it’s progress notes for the IV administration, but – um . . . the dates are written by nurses, so I don’t -- I don’t know.” Respondent’s inability or unwillingness to identify who may have written on A.M.’s progress notes and her avoidance in answering direct questions or claiming she did not recall the patient (and then discussing the patient) greatly diminished her credibility. Respondent claimed that there were “some verbal changes” she gave that were in a “set of nursing records,” which were not present. Any “changes” or directions given by Respondent should have been contained within her medical records for the care of A.M. Respondent maintained that her diagnosis of A.M. was based on Respondent’s total clinical picture of A.M., including A.M.’s “symptoms, her presentation, her lesions, her course -- she’d had repeated courses of oral antibiotics, and was getting recurrence.” Yet, Respondent also claimed A.M. “came in with these culture results from the primary, and that’s how the staff . . . it states MRSA, because it was already documented MRSA.” Standard of Care Respondent was required to practice medicine in her care of A.M. with “that level of care, skill, and treatment which is recognized in general law related to health care licensure.” Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of A.M. violated the standard of care for the following reasons. A reasonably prudent health care provider suspecting a patient has MRSA would observe the abrasion(s), culture the abrasion (MRSA), send the culture out for laboratory confirmation, prescribe oral antibiotics, and if the MRSA does not respond to the oral antibiotics, prescribe and administer IV antibiotics. Dr. Carrizosa noted that Respondent did not provide a description of A.M.’s abscesses, did not indicate that A.M.’s abscesses were drained, incised, cleaned or bandaged, or that Respondent provided any patient education to A.M. Although labs were ordered, there was no request for a bacterial culture or for an antimicrobial susceptibility test to be completed. Dr. Carrizosa expressed concern that young people can eliminate antibiotics within six to eight hours and there is a need for monitoring their medications to ensure they maintain a therapeutic level. Dr. Carrizosa opined that Respondent did not meet the standard of care in her treatment of A.M. The evidence clearly and convincingly establishes that Respondent violated the standard of care applicable to an infectious disease practitioner. Respondent presented the deposition testimony of Dr. Ephtimios. Dr. Ephtimios reviewed the same records as Dr. Carrizosa. Dr. Ephtimios admitted he had several lengthy conversations with Respondent during which time she provided additional information to Dr. Ephtimios that was not in A.M.’s written records regarding “the rationale for using the Vancomycin.” Respondent shared additional information with Dr. Ephtimios yet failed to recall or remember the patient during her own deposition testimony. Dr. Ephtimios’ opinion is not credible. Respondent’s deposition behavior lessens her credibility. Medical Records Medical records are maintained for a number of reasons. Primarily, medical records are necessary for the planning of patient care; for continuity of treatment; and to document the course of the patient’s medical evaluation, treatment, and progression through treatment. Further, medical records should document any communications between health care providers, and they serve as a basis for health care providers to be paid by either the patient or another party. See, rule 64B8-9.003. The medical records of A.M.’s contact with Respondent’s office between October 8, 2008, and October 31, 2008, do not meet Florida’s standards for medical records. A.M.’s records do not describe the abscesses, do not indicate if any of the abscesses were drained, incised, or cultured. Respondent failed to provide any assessment of a staph infection or provide any laboratory support for the use of the medication administered. Respondent did not document A.M.’s possible heart murmur, and failed to provide a diagnostic basis for endocarditis. Further portions of the medical record are illegible. There is no clear indication that Respondent provided A.M. with any education on her condition. Inappropriate Drug Therapy Respondent authorized the administration of Vancomycin and/or Zyvox to a 16-year-old female without adequately monitoring A.M.’s condition, or documenting the need for such use. Respondent’s failure to document the need for Vancomycin through appropriate or adequate testing was not in the best interest of A.M. DOH Case No. 2011-06111 (DOAH Case No. 14-0514PL) On February 28, 2011, patient C.B., a 42-year-old female, presented to Respondent with complaints of food allergy issues, and gastrointestinal problems, gas, bloating, and other stomach issues.21/ When she presented to Respondent in February 2011, C.B. did not have any concerns about candida or thrush.22/ Respondent prescribed a Medrol Pak (a steroid) and directed C.B. to have lab tests for the candida antibody and an immune system panel. One week later, C.B. again presented to Respondent. C.B. did not have any of the symptoms for a chronic yeast infection such as vaginal itching or thrush. Respondent advised C.B. that she had a chronic yeast infection and her immune system required treatment. However, Respondent did not prescribe any medication to C.B. at that time. On March 14, 2011, C.B. returned to Respondent’s office and received Immunoglobulin23/ via an intravenous (IV) line. On March 22, 24 and 25, 2011, C.B. received IV Ambisome.24/ Thereafter, C.B. developed a rash on her arm where the IV had been placed and a papule on her stomach. C.B. declined further IV treatments because she did not think the medication was working. On March 29, Respondent prescribed VFEND25/ to C.B. On March 30 and 31 and April 1, 2011, C.B. was a “no show” at Respondent’s office. Yet each of C.B.’s progress notes contained information regarding C.B.’s general appearance. Respondent testified that those progress notes are preprinted forms and would be adjusted upon a patient’s examination. On April 4, 2011, Respondent’s progress note for C.B. reflects “Discuss with patient in detail, patient complains of one papule, advised patient about candidiasis, GI tract not responding to azoles. Complains of diarrhea, abdominal symptoms, wants IV meds.” C.B.’s progress note dated April 5, 2011, reflects under the “S: COMPLAINT: No show - Refused to get PICC line out. Patient walked out yesterday. Patient was told to wait for dressing change. Patient states to receptionist she will come today.” Respondent elected to document on April 5, something that happened on April 4, despite the fact that the progress note for April 4 reflected a discussion with C.B. On April 11, 2011, C.B. presented a request for her medical records to Respondent’s staff. C.B. received copies of her medical records and provided them to DOH. Respondent testified as to C.B.’s 2011 presentation and Respondent’s course of treatment, including what medications were prescribed. Respondent confirmed that an undated “History and Physical” (H&P) for C.B. was C.B.’s “initial history and physical” created from a template. This H&P purports to reflect that C.B. was “discharged [from Respondent’s practice] for misbehavior . . . was in jail. . . [and] begging [for Respondent] to help her.” This H&P also contained Respondent’s physical examination of C.B., which was recorded on a “Progress Note” of the same date. Differences in the two records of the same date exist. C.B. testified that she has never been in jail and that she had not been discharged from Respondent’s practice. C.B. is found to be a credible witness. Respondent’s testimony is not credible. Respondent averred that she discussed C.B.’s vaginal itching with C.B. during the March 7, 2011, office visit, yet Respondent did not prescribe any medications for C.B. C.B.’s first IV immunoglobulin was administered on March 14, a week later. Respondent claims she discussed her care and treatment with C.B. on Wednesday, March 23, 2011. C.B. did not see Respondent on March 23, as C.B. went to Respondent’s office located on Park Boulevard in Pinellas Park and that location was closed. C.B. found out that Respondent was working at an address in Clearwater. C.B. did not have adequate time to get to that Clearwater location before it closed for the day. Thus, C.B. missed the appointment on that day. C.B.’s candid and succinct testimony is credible. Respondent testfied that certain medical records for C.B. were missing: anything that was documented electronic or anything -- any reports or any old records, old reports, it doesn’t contain anything. And she came in for the treatment of a disease that’s been existing since 2006, so a lot of workup that’s done in the prior years for -- which is the relevant basis of the treatment at this point is not there. Respondent was not clear which medical records were missing. C.B. had not been a patient of Respondent for approximately two years. Respondent’s reliance or purported reliance on C.B.’s “old records, old reports” without adequate confirmation of C.B.’s current health issues via appropriate work-ups, laboratory studies and tests falls below the reasonably prudent similar health care provider standard. Standard of Care Respondent was required to meet the same standard of care as outlined in paragraph 25 above. Dr. Carrizosa’s testimony was clear, concise, and credible. He did not appear to have any prejudice against Respondent as a person, but was concerned about how she was practicing medicine. Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of C.B. violated the standard of care for the following reasons. Respondent failed to practice in such a manner as to determine within a reasonable degree of medical certainty that C.B. had systemic candida as was diagnosed by Respondent. Further, the laboratory results were not positive for an antimicrobial sensitivity culture taken from C.B. Additionally, C.B.’s complete blood count (CBC) and the differential count, which included neutrophils and lymphocytes, were normal. The administration of Ambisome, the most expensive of all the drugs available, was not warranted as C.B. did not have systemic candidiasis. Further, the immunoglobulin treatment was inappropriate as there was no evidence that C.B. had an immune dysfunction. Medical Records Dr. Ephtimios also provided an opinion on behalf of Respondent. Dr. Ephtimios had a discussion with Respondent regarding the care and treatment provided to C.B. outside the medical records provided. Dr. Ephtimios admitted that he does not use a Medrol Pak in his practice; he does not feel comfortable practicing immunology (and would have referred C.B. out to an immunologist.) Dr. Ephtimios would not have ordered the laboratory tests that Respondent ordered; his understanding of what candidiasis means may differ from Respondent’s, and he speculated on what he thought Respondent “meant” in several instances. Dr. Ephtimios provided a somewhat exhaustive approach to the various forms of candidiasis; however, he qualified each approach. Each physician practices medicine using their own skill set and different methods of providing clinical assessments and treatment. However, Dr. Ephtimios provided various qualifiers to his opinion which rendered it less credible. The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. The medical record of C.B.’s contact with Respondent’s office during this time does not meet Florida’s standards for medical records. C.B.’s records do not reflect an appropriate evaluation, as they fail to analyze C.B.’s main complaints, they fail to analyze the previous evaluations of C.B., and her physical exams were incomplete. DOH Case No. 2011-17799 (DOAH Case No. 14-0515PL) According to Respondent, patient P.A., a 38-year-old female, was “an ongoing patient [of hers] for over ten years.” Respondent saw P.A. between February 2008 and December 2011. Respondent provided medical records to DOH regarding P.A. However, Respondent admitted she did not provide all P.A.’s medical records because “a lot of records were missing,” and Respondent knew “at one point when they were very old records in the 6251 office some of them were also shredded.” Respondent further claimed in response to additional questioning about her shredding statement, [B]ecause the statute says, you know, after three years, so I’m not sure if the -- because I know some of the records were shredded by one of the secretaries. * * * The one [statute] which says once a practice is closed retain records for three years. Respondent identified one of P.A.’s progress notes (dated January 26, 2011) as “our procedure note,” but when asked “What was going on here according to these notes,” Respondent answered: “It’s hard to say. It’s not my handwriting.” Respondent could read the handwriting, but had “no clue” who wrote the progress note. Further, Respondent was unable to state if P.A. was administered either the gentamicin 40 milligrams or the clindamycin 600 milligrams as listed on the progress note. Medical Records The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. In this instance, the testimony of Respondent clearly and convincingly proves Respondent violated section 458.331(1)(m) and rule 64B8-9.003. No evidence was presented that Respondent has been previously disciplined.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that Respondent, Neelam Uppal, M.D., violated section 458.331(1)(m), (q) and (t), Florida Statutes; suspending her license for six months followed by two years probation with terms and conditions to be set by the Board of Medicine; imposing an administrative fine of $10,000.00; requiring the successful completion of a course or courses to make, keep and maintain medical records; requiring a course in professional responsibility and ethics, and such other educational courses as the Board of Medicine may require; and assessing costs as provided by law. DONE AND ENTERED this 17th day of September, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September,2014.
