The Issue The issue for consideration in this hearing is whether Respondent's license to practice osteopathic medicine in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Board of Osteopathic Medicine was the state agency in Florida responsible for the licensing of osteopathic physicians and for the regulation of the practice of osteopathic medicine in this state. By stipulation, the parties agreed that Respondent was, at all times material hereto, a licensed osteopathic physician in the State of Florida. On May 1, 1990, Patient #1, (R.C.) presented to the Respondent at his office in Orlando for treatment of obesity. At that time, the Respondent, who holds himself out as a specialist in and was determined to be an expert in the field of bariatric medicine, (weight control), had the weight, blood pressure and pulse rate of the patient taken, and other measurements made. At that time, the patient was 6'2" tall and weighed 196 pounds. His blood pressure was 124 over 76, and his pulse rate was 70. He had a waist measurement of 38 1/2" and a hip measurement of 40". As a part of the case history taken of the patient, it appeared that he had no significant matters to report except for the fact that he had periodic shortness of breath and members of his family had had both high blood pressure and heart trouble. There were no other contraindications to treatment. Respondent conducted an examination of the patient and determined that the patient had had liposuction in the stomach area and breasts approximately one year previously, and that he got little exercise, yet smoked 2 1/2 packs of cigarettes per day. He was a reformed alcoholic and felt he was in good general health. Respondent's evaluation of the patient at the time was that he appeared to look well. The medical records reflect the word, "CORPUL", which is an acronym for cardiac/pulmonary, and in connection therewith, Respondent noted that the patient's condition was "excellent." As a part of his initial work up, the Respondent drew blood from the patient which was forwarded to a laboratory for analysis, and he also did a cardiogram. Though the cardiogram appeared "grossly normal" there was some minor irregularity which the Respondent felt necessitated further evaluation. Therefore, the cardiogram was sent to a cardiologist, Dr. Arnold, for evaluation. The report of the cardiologist indicated that the cardiogram was essentially normal with a "PR" interval at the upper limit of normal. Before the report was returned by the cardiologist, Respondent prescribed certain medications for this patient. Because the patient had high sodium levels in his blood, the Respondent prescribed a diuretic. He also prescribed Thyroglobulin, a specialized form of thyroid medication to aid the patient's metabolism mildly and safely. In addition, he prescribed 30 mg of Obazine per day to be taken in the morning as an appetite supressant; potassium chloride for extra potassium; and Phentermine, another appetite supressant to be taken in the afternoon. For after supper medication, Respondent prescribed a medication for digestion and to increase bile flow, and a 1/2 gram of Phenobarbitol to relax the patient in order to reduce his habit of snacking, and provided a detoxifying agent for the liver. These were the only drugs prescribed at that time. Respondent also, however, instructed the patient that he must not have any further liposuction. In the opinion of Dr. Weiss, the Board's expert in the field of bariatric medicine, the use of the secretary to transcribe the Respondent's verbal comments regarding his patients into the record is not inappropriate. However, the use of the word, "CORPUL" followed by the word, "excellent" seems to fall somewhat below standard, in his opinion. In this case, an acceptable standard would be for the physician to put into the chart exactly the details of the evaluation, and the word, "excellent" does not say much. Notwithstanding the fact that records show the patient's pulse rate and blood pressure, they did not show that the Respondent palpated the patient's chest or listened to the heartbeat. Therefore, the use of the word, "excellent" in this case is below standard. Respondent's records also include the word, "dispense", followed by several medications which Respondent prescribed for the patient. There was no indication in the record why each of these medications was prescribed. Dr. Weiss concludes this is a deficiency in that the record does not show that the Respondent actually examined the patient before medicating him, even though Respondent indicated he had done so. In fact, the only comment as to the patient's general health is made by the secretary, not by a physician or a nurse. Further, though Respondent indicated at hearing that the patient suffered from emphysema, there is no indication anywhere in the notes that that condition existed. Dr. Weiss also noted that the Respondent prescribed medication for a thyroid condition but there appears, from the medical record kept by the Respondent, no reason to treat a thyroid condition. There is no indication that the patient demonstrated any of the clinical signs of hyperthyroidism. By the same token, a prescription for Phenobarbitol, to be taken in small quantities at the hour of sleep, is well within standards if proper indications for that use are noted. Here, according to Dr. Weiss, in Respondent's records there is no indication as to why the substance was dispensed. Respondent's testimony at hearing provides justification, and there is no challenge to the actual prescription, but the medical record is insufficient in that it fails to show the reason for the dispensing of any of the specific medications prescribed. The Respondent's next contact with his patient was by telephone on May 17, 1990 when the patient indicated that the blue Phenobarbitol tablet was making him feel like he was dying. According to the records, the patient was nervous, "hyped-up" and his chest was tight. The medical note entered by the secretary indicates that she had spoken with the Respondent about the patient and the Respondent said for the patient to take one-half capsule with food. If that worked, the patient could return to a full dose. According to Dr. Weiss, this is "far, far below the standard of care", especially when the patient was, as here, showing signs of cardiac problems in the sense of shortness of breath and tightness in the chest, A prudent physician, according to Dr. Weiss, would have stopped medication entirely, had the patient come to the office, or, if an emergency problem existed, told the patient to go to the hospital by ambulance. This is the case here, especially since the cardiogram report had not been received from the cardiologist. If the Respondent felt either inadequate to interpret the cardiogram or that the cardiogram showed some irregularity, he should not have recommended drugs to the patient, as he did here, which affected the heart. In that regard, Dr. Weiss opines, it is impossible to treat all patients within a standard template or protocol, as it appears Respondent did, since all patients are individuals. On May 14, 1990, the patient again telephoned Respondent's office requesting a list of all medications he was then taking. At that point, the patient indicated he was at a cardiologist's office, (Dr. Latif), and needed to know the name of the drugs he was taking. Respondent's secretary asked the patient if this were an emergency visit, and the patient indicated it was not. Because the patient would not volunteer any information or answer directly any of the questions of the secretary, she suggested that Respondent call him right back at the cardiologist's office and the patient agreed. However, before the Respondent could call back, the patient departed Dr. Latif's office, apparently having decided he could not afford the cardiologist's fee. The patient records reflect, in Respondent's handwriting, that the patient had told him he was at the cardiologist's because the cardiogram was borderline abnormal and he had been worrying about it since it was taken. Respondent's notes on this matter reflect he assured the patient that the cardiologist's report indicated there was no problem. The patient then indicated he felt fine and had gone to Dr. Latif only for a check up. Respondent contends he discussed with the patient his exercise regimen and advised him not to get overheated while on any of the medications he was taking. The entry relating to the May 29, 1990 visit reflects that the patient had lost approximately 10 pounds and his blood pressure was down but his pulse rate was up somewhat. The note indicates that the patient "feels fine and is happy with the Obazine" which Respondent had prescribed for him. By observation, Respondent noted that the patient "looks well" and again, the notation "CORPUL excellent" in Respondent's hand, along with a change of some of the medications administered, is listed in the record with no reason being shown for either the change or the continuation. This is below standard. According to Dr. Weiss, the details rather than the conclusion should be reflected in the records. The next appointment with the patient was on June 29, 1990 when the records reflect the patient had lost weight and his blood pressure remained good, but there was no indication of what his pulse rate was. The records reflect certain changes at the restaurant where the patient was working interfered with his sleep; that he was winning at the dog track and planned to go to Las Vegas; but that he was hungry after exercising in the evening and asked for a stronger pill to take in the morning with breakfast. The patient indicated that the Esidrix 50 mg made his heart race. In response, according to the records in the Respondent's handwriting, Respondent reduced the strength of the Esidrix dose from 50 mg to 25 mg and changed the Phenobarbitol from blue to yellow. According to Dr. Weiss, the secretary's notes contain certain information but not all that is necessary. Weiss noted that the patient requested a stronger appetite supressant even though it is noted that the lighter dose made his heart race. A more prudent physician, in Dr. Weiss' opinion, practicing at the level of standard of care, would have discontinued any medication which made the patient's heart race and would have done a cardiogram or at least would have checked the patient's pulse. Here the record fails to reflect that the pulse rate was taken. If a doctor is made aware of that condition, he should look into it, and there is no indication, from the medical records, that this was done. According to Weiss, this is grossly incorrect. In fact, there is no indication that Respondent even examined the patient before making any change in his medictions, and that, in itself, would be a deviation from standard. Respondent indicates that if he made any entry on a patient's record in his own hand, it was done as a result of an examination of the patient. In this case, however, if respondent did examine the patient, he made no reference in the notes as to why he did what he did nor did he make any record of his rationale or reasoning. This is below standard. When the patient was informed that Respondent would not be able to keep the appointment scheduled for July 17, 1990, he indicated he had changed his schedule and needed a change in the times of taking and the strengths of his medications. When the patient did come in his blood pressure was taken along with his weight but there was no indication he pulse rate was measured, and the medical records in the Respondent's handwriting reveal certain changes to medications which do not show either details of the change or the reason therefor. Again, appetite supressants were dispensed, as was a tension reducer, without any physical examination being reflected in the records. The patient was again seen in the office by Respondent on August 22, 1990, and the records for this visit reflect not only the weight but also the blood pressure reading and the pulse rate. Respondent contends that the entry relating to the pulse is in his handwriting and made as a result of an examination, as is the word "excellent" following the note, "CORPUL" in that entry. According to Dr. Weiss, the secretary noted in the record, and it so appears, that the patient was having problems with his bowels. Nonetheless, the records show no details of any examination as a result of this complaint, notwithstanding Respondent's assertion at hearing that whenever he makes an entry in the record he has examined the patient. On October 1, 1990, even after the patient missed his September 20, 1990 appointment, the Respondent authorized his staff to mail a one month supply of prescription medications to the patient. According to Dr. Weiss, this is not within standards, and the medical record does not show why the drugs were mailed, nor does it say which medications were dispatched this way. Weiss contends one can assume it was the same regimen as previously prescribed, but in his opinion, it is inappropriate to do this in a metropolitan area, and to do so is well below the standard of care. This is so especially in light of the previous racing heart beat, the arrythmia and the patient's physical complaints. From Respondent's comment in the record, "this time only", it would appear Respondent recognized the riskiness of his actions, so Weiss believes. On October 29, 1990, the patient again came to Respondent's office and his weight, blood pressure and pulse rate were taken. The secretary noted no problems and that the patient looked well. Respondent noted in his own hand that the cardiac pulmonary condition was excellent and also noted that the patient might be getting a new restaurant. According to Dr. Weiss, this is meaningless to anyone other than the person who wrote it since there is nothing in the record which indicates what the entry means. When the patient came to the office on November 26, 1990, his weight and blood pressure were taken but there is no indication his pulse rate was measured nor is there any entry on the form for that date in the Respondent's hand. According to Dr. Weiss, the prescription for Xanax, which appears to be in the handwriting of the secretary, showed no indication that the patient was examined or, if he was, any clinical findings or clinical reason for the prescription. Again, on December 26, 1990, the patient was weighed and his blood pressure taken, but no pulse entry was made. Again, there appears to be no entry in the Respondent's hand, including the CORPUL description, which is left blank. From this, it is assumed the Respondent did not see the patient. R.C. missed his scheduled appointment on January 21, 1991, and when he appeared at Respondent's office on February 11, 1991, his blood pressure and his weight were noted, but there was no indication the Respondent saw the patient. In fact, the secretary's note indicates the Respondent approved a one month medication pickup but there is no entry in Respondent's hand. From this it would appear the medications were dispensed without the patient having seen the doctor, and in the opinion of Dr. Weiss, this is incorrect practice and below standard. When the patient came in on April 19, 1991, he was seen by the Respondent; his weight, blood pressure and pulse were taken, and at least one of his medications was changed. On this date, Respondent prescribed a tranquilizer, Tranxene. Again, the record fails to indicate any reason for the prescription of a tranquilizer, especially in light of the fact that the note in the secretary's hand indicates that the patient was in a rush but was feeling good and looked well. The record of the May 15, 1991 visit shows that the patient was weighed and his blood pressure taken, but there is no indication of his pulse rate. The secretary noted that the patient was upset because of his girlfriend's diagnosis of breast cancer. In the Respondent's hand, a notation reflects a prescription for Tranxene again as a result of the patient's nervous condition. According to Weiss, this is the type of entry that should be made routinely, but there is no reference in the record to the patient's cardiac pulmonary status which had been routinely commented upon previously. The records also reflect that on July 21, 1991, without seeing the patient, Respondent prescribed a refill on the Tranxene, and called it in to the pharmacy. At this time, the patient had requested a 60 pill prescription with provision for a refill, but the medical note reflects the Respondent said "No." At hearing, Respondent claimed that his use of the word "no" is indicative of his recognition that the patient had a drug personality. This does not necessarily follow, but in any event, Respondent properly refused to give the patient more than a reasonable dose, and a prescription of 36 Tranxene, as given here, is not below standard. On June 1, 1992, there is an indication that the weight, blood pressure and pulse were taken, and it appears the patient had, over a year, gained approximately 25 pounds, though his blood pressure remained about the same. At this point, the note in the secretary's hand reflects that the patient was starting a new job, was feeling fine physically, and was coming off a three month hiatus between jobs. In the Respondent's hand, however, is a reference to Phenobarbitol white and another drug, CH, which is not identified. According to Dr. Weiss, this was two years since a cardiogram or blood profile had been taken, and to continue to prescribe drugs of this nature without any intervening testing of blood or heart evaluation falls below the appropriate standard of care. In fact, the record does not reflect at this visit that the Respondent evaluated the patient's cardiac condition because his description of the CORPUL status does not appear in the record. On July 7, 1992, according to the records, a telephone call to Respondent's office from the medical examiner of Volusia County indicated R.C. had died on June 17, 1992, and requesting the Respondent's medical records. The autopsy report, dated July 31, 1992, reflects that the cause of death was acute drug intoxication, and Respondent contends that this is justification for his refusal to give the patient all the various medications he wanted. A review of the post mortem toxicology relating to drugs found in the patient's urine and blood at the time of death indicates, however, that none of the drugs which were being prescribed by Respondent were found in the deceased's body on autopsy. Respondent is a longstanding practitioner of osteopathic medicine having been in practice since August, 1954. When R.C. first came to see him, on May 1, 1990, the patient's history was taken and recorded on the history form. The patient was 34 years old and claimed to be in fair health. It appears that the patient had moderate emphysema, and at that point and continuing thereafter, Respondent claims, he tried to get the patient to quit smoking. He did not, however, enter this fact in the patient's records. All other signs, however, were normal, except for the patient's blood which showed elevated levels of lipid concentration and low iron. In short, the patient's triglycerides were elevated and his thyroid levels were moderately low. The patient's cardiogram showed a small abnormality in the computer evaluation which Respondent sent to a cardiologist, Dr. Arnold, for interpretation. After the initial visit, and after giving the patient his standard dietary instructions and policies, the Respondent prescribed the medications previously described. According to Respondent, his normal practice was for the nurse to write down what the patient said while weight was taken and blood pressure measured. Respondent usually took the pulse rate. The term, "excellent", used in conjunction with the word "CORPUL" in the records related to heart function, not to the emphysema. Respondent admits that "perhaps" he should have entered the emphysema in the record. Respondent claims he entered all information regarding changes in prescriptions, yet a review of the records clearly shows this is not the case. Many of the entries in the records, which appear to be in the nurse's handwriting, including such things as the patient's reaction to pills on May 7, 1990, was based on Respondent's conversations with the patient which he thereafter recounted to the nurse to be placed into the records. It would appear, however, that there is some confusion whether the entries other than those placed therein by the Respondent, were by a nurse or by a secretary. This was not clarified by the evidence of record. Respondent admits that he does not keep the detailed records he would keep if he were practicing in a hospital situation. He is of the opinion that he is the only one to whom his records need make sense. Because in this case the patient was a friend of his, his need to make further and more detailed patient notes was even less that it would be ordinarily. He was aware of what he considered to be the patient's drug tendency and did not put it in the patient's record because he did not feel that he wanted to subject a friend to this type of record even though he recognized that medical records are, for the most part, confidential. On several occasions, Respondent admitted it was an omission to fail to place a pulse reading in the record or to fail to make certain comments, but he reiterated time and again, that in his opinion his notes did not have to reflect in any detail reasons or rationale for what he did. He consistently took the position that he knew what he did; that he was the only one who looked at the records; and to him, that was sufficient. On July 29, 1991, medications were dispensed after a telephone conversation with the Patient. Respondent claims this was because he had had an argument with the patient over the number of pills which could be furnished; 36 Tranxene tables as opposed to the 60 tablets requested. Respondent admits he authorized the prescription even though he did not see the patient at that time, and in fact did not see the patient again for almost a year. On June 1, 1992, when he again saw the patient, he refused to treat the patient further without another cardiogram and blood work. Nonetheless, Respondent admits, and the records reflect, that on that particular occasion, he allowed the patient to receive his normal prescription for medications, with some modifications, and he admits that all of these medications dispensed are not listed in the patient record. Respondent also admits he does not, and did not, in this case, dispense medications in a child-proof container, as is required by statute and rule. He claims this was because the patient requested they not be placed in a child-proof container, and introduced an entry on the back of the envelope containing the patient's medical records, bearing what purports to be the patient's signature, which so indicates. Respondent also claims that in a discussion with the chairman of the Board of Pharmacy, he determined that use of a crush-proof box in lieu of a child-proof container for these medications, which are, admittedly, controlled substances, was appropriate. Respondent feels that his care of this patient was within standards and that his prescriptions were dispensed with proper medical justification. He contends that R.C. was a hard patient to deal with, being both compulsive and anal retentive. In treating this patient, Respondent claims he used a modified Weintraub protocol, an accepted guideline for the prescription of appetite suppressants and believes he prescribed appropriate medications in appropriate quantities. Respondent also believes he adequately examined the patient before he prescribed any medications for him and contends he always saw the patient before he allowed him to have any more drugs. This has been shown not to be the case. Respondent agrees that a medical record should justify the course of treatment rendered to a patient. Everything should be justified but not, he claims, in as great a detail as in a hospital setting. Respondent is of the opinion that his records are such that a subsequent treating physician could take them and determine what clinical treatment was rendered to the individual without speaking with the Respondent. In addition to the daily narrative record, Respondent contends that the prescriptions are maintained in the records and should be examined in conjunction with the narrative record. If done, this would show what drugs were prescribed and in what amounts. However, it would not show why the prescription was issued initially, and this information is also not adequately laid out in the narrative records. Respondent claims he writes his chart for himself and not for others. Respondent recognizes he did not note any emphysema in his medical records. He also did not enter any instructions he gave to the patient to quit smoking in the medical records. He did not discuss in the records, or with the patient right away, that the patient should continue to exercise. He admits the records do not show that he reviewed Dr. Arnold's report on the cardiogram but only that he received it, and he admits that the records do not show the patient was retaining fluid in the stomach. In that regard, Respondent had recommended metahydrine, a diuretic, for the patient but he contends the record reflecting the patient had had liposuction also reflects that the patient was retaining fluid, and he believed this was sufficient recognition of that fact. This does not necessarily follow, however. Respondent admits that even a bariatric specialist could have had trouble determining from his records that fluid was in the stomach rather than elsewhere in the body. Respondent's treatment of this patient was evaluated by Dr. Wilmer L. Asher, a specialist in bariatric medicine practicing in Colorado for more than thirty years. In the course of his evaluation, Dr. Asher, who has known Respondent as a bariatric physician through the American Society of Bariatric Physicians for approximately twenty-five years, had the opportunity to evaluate Dr. Weiss' written report, the medical records in this case, the investigative report and Dr. Arnold's cardiographic report. Based on his evaluation of the entire file, Dr. Asher concluded that Respondent provided the patient with an adequate initial work-up, more than that usually done. The use of an electrocardiogram on an individual who had no apparent cardiovascular complaints at the time of work-up was above and beyond the norm. He also concluded that the Respondent's prescription, dispensing and administering legend drugs to this patient was neither inappropriate nor in excessive nor inappropriate quantities. Dr. Asher further concluded that on the basis of the Respondent's initial work-up, the diagnosis of obesity was appropriate and the plan of treatment Respondent developed was appropriate for this patient. He concludes that the medical records kept by the Respondent for this patient justified the course of treatment. There is no mention in the record of risk, but, in Dr. Asher's opinion, the medical management of an obese patient by a prudent bariatrician as Respondent, in Asher's opinion, involved a negligible amount of risk. Bariatricians do not ordinarily discuss risks associated with medical management of obesity. Therefore, he contends, Respondent's failure to do so was not below standard. Based on his thirty years of bariatric practice, Dr. Asher was able to find no evidence of Respondent's failure to meet applicable standards of care in his examinations, his diagnosis and his treatment of this patient. In that regard it should be noted that Dr. Asher admitted he was not specifically familiar with Florida standards but concluded they would, in all probability, be consistent with the medical standards in other states with which he is familiar. On October 29, 1992, the Department conducted an inspection of the Respondent's office because of his license as a dispensing physician. At that time, there were several discrepancies noted, one of which was that the Respondent's license to dispense drugs had expired. Respondent admits that this is the case, and that during the period from January, 1992 through October, 1992, he was not registered as a dispensing physician. He claims that he was under the impression that the renewal was automatic, and when he found it was not and his certificate had expired, he immediately sent in the required fee and the application for recertification, which was granted. It is so found. There were, however, other discrepancies discovered during the October 29, 1992 inspection, and these included a failure to properly label medications for dispensing; the sign indicating the availability of generic substitutes was not properly posted; all controlled substance refills were not properly initialed and dated; controlled substance prescriptions were not being properly maintained and purchase records for controlled substances were not maintained and readily recoverable. A follow-up inspection was conducted on July 13, 1994, and all previously identified discrepancies had been corrected. The inspection was considered to be satisfactory. At the hearing, Petitioner offered no evidence of any prior disciplinary action having been taken against the Respondent by the Board or any other regulatory body. Subsequent to the hearing, however, Petitioner moved the introduction of a record of a previous disciplinary action by the Board, the admission of which Respondent strongly resists. A review of the pleading reveals that the record in issue was missed in the agency's prior search of its records because it was filed under a misspelled name. Examination of the document itself does not indicate the alleged misconduct upon which it is predicated. All that can be discerned from a review of the matter objected to is that in 1987 Respondent entered into a stipulated settlement of another Administrative Complaint filed by the Board and that as a result thereof, Respondent was fined $2,000, reprimanded and placed on probation for two years under conditions dictated by the Board. Evidentiary acceptance of this prior action is granted over Respondent's objection with the understanding that it will not be considered on the disputed issue of the Respondent's guilt or innocence of the matters alleged in the instant Complaint but will be considered only if and after a finding of guilt of any of the misconduct alleged herein has been made, and then only as a matter in aggravation of punishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Edwin Gettins, D.O. be found guilty of violating Sections 459.015(1)(x)(o)&(g), Florida Statutes, (other than utilizing an improper method of dispensing, for which he should be found not guilty); that he be reprimanded and ordered to pay an administrative fine of $4,000; and that his license to practice osteopathic medicine in Florida be placed on probation for two years under such terms and conditions as may be prescribed by the Board of Osteopathic Medicine. RECOMMENDED this 9th day of November, 1995, 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 9th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1834 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. - 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. - 8. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. 15. - 25. Accepted and incorporated herein. & 27. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 32. Accepted. 33. & 34. Accepted but characterization of records as 35. - 37. "deficient" borders on being a Conclusion of Law. Accepted and incorporated herein. 38. Accepted. 39. Accepted. 40. Accepted. 41. First sentence accepted and incorporated herein. Second sentence accepted. 42. Accepted. 43. - 45. Accepted and incorporated herein. 46. Accepted. 47. Accepted. 48. - 50. Accepted and incorporated herein. 51. Accepted. 52. Accepted. 53. - 56. Accepted and incorporated herein. 57. Accepted. 58. Accepted. 59. - 62. Accepted and incorporated herein. 63. Accepted. 64. Accepted. - 69. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted. - 84. Accepted and incorporated herein. Accepted. - 92. Accepted and incorporated herein. Accepted. - 97. Accepted and incorporated herein. 98. Accepted. 99. Accepted and incorporated herein. 100. Accepted. 101. Accepted and incorporated herein. 102. Accepted. 103. - 107. Accepted and incorporated herein. 108. - 110. Accepted. 111. Accepted and incorporated herein. 112. - 115. Accepted. FOR THE RESPONDENT: Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not being an accurate statement of facts in all cases. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of the evidence. COPIES FURNISHED: Britt Thomas, Esquire Agency for health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Wilson Jerry Foster, Esquire Suite 101-A 1342 Timberlane Road Tallahassee, Florida 32321-1775 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 William H. Buckhalt Executive Director Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
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.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Zevart Manoyian, M.D. is a licensed physician in the State of Florida, having been issued License No. ME 0003347. Respondent is engaged in the practice of family medicine at 725 Opa Locke Boulevard, Opa Locke, Florida. The Respondent has practiced medicine for the past thirty-eight years. The Respondent treated patient Willie Dawson from October 1981 through May 1984. When interviewed by DPR Investigator Lichtenstein during the initial investigation of this case on October 2, 1986, the Respondent stated that she was treating Dawson for a broken jaw and depression. Based on information contained in hospital records and the Respondent's office records during the period which Dawson was treated by Respondent, the following medical history is disclosed: In 1980, Dawson was hospitalized because of a broken jaw; In 1982, the Respondent diagnosed Dawson as having narcolepsy and began prescribing Preludin. In 1984, Dawson was admitted to the Veteran's Administration Hospital and died due to an "intestinal obstruction." Between December 1983 and September 1984, the Respondent prescribed 180 doses of Preludin and 180 doses of Percodan to Dawson. Narcolepsy is a rare and unusual sleeping disorder and may be treated with Preludin, a Schedule II controlled drug. Percodan, a Schedule II controlled drug, may be prescribed for pain. Percodan could be an appropriate medication to prescribe for lingering pain associated with a previously broken jaw. The Respondent's medical records pertaining to Dawson contained no medical history, given by the patient, allergy history physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Physicians' Desk Reference (PDR) is accepted by physicians as an authoritative reference source of appropriate drug usage indications and contraindications, The PDR is made up of inserts provided by various drug companies and manufacturers and will indicate the limits and limitations of a particular drug. Although the POP is accepted by physicians as an authoritative reference source, physicians recognize that it is merely a guide and that the treating physician must determine the most appropriate and medically justifiable treatment for a given patient. According to the PDR, the appropriate recommended dosage for Percodan is four per day or one every six hours when medically indicated. However, a physician may increase this dosage if the patient has developed a tolerance to the analgesic effects of the drug or when there is severe pain. The appropriate recommended dosage for Preludin is one per day. The PDR advises that the recommended dosage for Preludin not be exceeded. The amounts of Preludin and Percodan given to Dawson were within the dosage and administration recommendations in the PDR. In addition, the choice of drug, and the amount prescribed, could have been indicated to a reasonably prudent physician based on Dawson's medical conditions. The Respondent treated patient Barbara Gaskill from September 1977 through December 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for lower back pain and obesity. Based on information contained in the Respondent's office records during the period which Gaskill was treated by Respondent, the following medical history is disclosed: In 1977, Gaskill hurt her back, suffered an arthritis attack and had a ruptured sciatica; In 1978, Gaskill was experiencing problems sleeping due to her back conditions; In 1980, Gaskill was involved in an automobile accident; In 1982, Gaskill suffered headaches; In March 1983, Gaskill had an infected tooth in her right jaw; In March 1984, Gaskill injured her back when she tripped and fell; In April 1984, Gaskill suffered from chronic pain in her lower back; Between December 9, 1983, and August 7, 1984, the Respondent prescribed 115 tablets of Tuinal and 102 tablets of Percodan to Gaskill. Tuinal is a Schedule II controlled drug used to help induce sleep. The recommended dosage in the PDR for Tuinal is one per day. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical problems such as those with which Gaskill suffered between December 9, 1983 and August 7, 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Gaskill were within the recommended limitations established for those drugs in the PDR. The Respondent's medical records pertaining to Gaskill contained no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Respondent treated Linda Godfrey from November 1980 through July 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for severe pain. The Respondent stated she knew that Godfrey was addicted to the medication but that she continued to prescribe the medication to alleviate the pain. Based on information contained in hospital records and the Respondent's office records during the period Godfrey was treated by Respondent, the following medical history is disclosed: In 1980, Godfrey was diagnosed as having congenital cerebral palsy and multiple sclerosis. On the same visit, the Respondent noticed that Godfrey had an abscess on her left buttock; In March of 1981, Godfrey was involved in an automobile accident; In August of 1981, Godfrey passed a kidney stone and went to the hospital; In August and September of 1983, Respondent noted that Godfrey was experiencing severe pain "all over"; In April of 1984 Godfrey had an infected ulcer; In June of 1984, Godfrey was admitted to the hospital by the Respondent. The Respondent noted that the patient had a drug addiction, which the patient denied. During Godfrey's hospital stay, the Respondent did not allow her to have visitors because Godfrey was overheard requesting a friend to bring drugs to her in the hospital. Godfrey admitted to snorting cocaine while in the hospital. On June 4, 1984, Godfrey was discharged to North Miami General Hospital in order to be cared for in the drug and detoxification unit. The diagnosis at that time was acute gastritis and drug dependence. On June 3, 1984, the Respondent noted that Godfrey was scheduled for a psychiatric consultation with another physician; In July of 1984, Godfrey was readmitted to the hospital because she fell down a flight of steps and injured her right knee and twisted her lower back. Between December 26, 1983, and July 8, 1984, the Respondent prescribed 10 doses of Percocet, 12 doses of Nembutal, and 377 doses of Perdocan to Godfrey. Percocet is a Schedule II controlled drug which is used in the treatment of pain. Percodan and Percocet are similar except that Percocet has a Tylenol base and Percodan has an aspirin derivative. The PDR's recommended dosages and limitations are the same for Percodan and Percocet. Nembutal is a short-acting or medium-acting barbiturate and is used to help induce sleep. The recommended dosage in the PDR for Nembutal is one per day. Percodan, Prococet and Nembutal, in the amounts prescribed, could be appropriate drugs with which to treat pain and associated sleeping problems arising from medical conditions such as those with which Godfrey suffered between December 26, 1983 and July 8, 1984. The dosages of Percodan, Prococet and Nembutal which Respondent prescribed to Godfrey were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to Godfrey contain no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Martha Guc from January of 1977 through September of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that she was treating Guc for severe back pain. Based on information contained in hospital records and the Respondent's office records during the period which Guc was treated by Respondent, the following medical history is disclosed: In January of 1979 Guc was involved in a serious automobile accident and also suffered from scoliosis. Guc was experiencing cramps in her spine and was unable to sleep as a result of her back pain; In the automobile accident of January 1979, Guc received extensive injuries, including multiple abrasions and lacerations, a broken arm and multiple contusions in her sternum and knee. Plastic surgery was required to repair the facial lacerations and her arm was placed in a cast. In December of 1979, Guc experienced pain in her back and left knee; In 1980, Guc continued to experience back pain; In 1983, Guc was involved in an automobile accident and her head hit the windshield; From March to June 1984, Guc continued to experience back pain; Between January 20, 1984, and August 27, 1984, the Respondent prescribed 580 doses of Percodan to Guc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems and conditions such as those with which Guc suffered between January 20, 1984 and August 27, 1984. The dosages of Percodan which Respondent prescribed to Guc were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Guc did not show any medical history, allergy history, physical examination or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Delores Jones from January of 1969 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Jones for back pain. The Respondent stated that she knew that Jones was addicted to narcotics but that the medication was required to relieve the symptoms of pain. Based on information contained in hospital records and the Respondent's office records during the periods which Jones was treated by Respondent, the following medical history is disclosed: In 1969, Jones experienced severe back pain; In 1970, Jones suffered from acute gastritis; In 1974, Jones again experienced severe back pain; In May of 1974, Jones was involved in an automobile accident and injured her back; Additionally, Jones suffered from a hernia, stenosis of the spine and a duodenal ulcer. Between December 1, 1983, and August 28, 1984, the Respondent prescribed 1200 doses of Percocet to Jones. The Respondent was aware that Jones was becoming addicted to narcotics and referred Jones to a Doctor Baldry in Coral Gables for treatment. The Respondent stated that she was not aware if Jones ever followed her referral. Percocet, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Jones suffered between December 1, 1983 and August 28, 1984. The dosages of Percocet which Respondent prescribed to Jones were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Jones did not show any medical history, allergy history, physical examinations or the result thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Cheryl LeBlanc from December of 1983 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that Ms. LeBlanc was being treated for pains in the left hip and bursitis. Based on information contained in hospital records and the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: In December of 1983, LeBlanc was diagnosed as having bursitis. Respondent noted that LeBlanc had pains in her left hip and down the posterior portion of her left leg; On January 6, 1984, the Respondent noted that LeBlanc had bursitis in the left hip; In July of 1984, Respondent noted that LeBlanc had a problem with a lymph node; In September of 1984, the Respondent noted that LeBlanc suffered from chronic pain; (f) Prior to being treated by the Respondent, LeBlanc was admitted to North Shore Medical Center in October of 1983 for treatment of infertility and irregular periods. In October of 1983, LeBlanc had a D&C and salpingogram. In November of 1983, she was readmitted to North Shore Medical Center for tubal reconstruction. Between December 13, 1983, and August 2, 1984, the Respondent prescribed 90 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems such as those with which LeBlanc suffered between December 13, 1983 and August 2, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established in the PDR. Respondent's medical records pertaining to LeBlanc did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Gerald LeBlanc, husband of Cheryl LeBlanc, from October of 1983 to October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that Mr. LeBlanc suffered from severe bursitis in the shoulder and upper back pain. Based on information contained in the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: On October 7, 1983, LeBlanc was treated for muscle spasms in his back; shoulder; On November 9, 1983, LeBlanc was treated for acute bursitis in his On December 6, 1983, Respondent noted that she intended to wait one month and if LeBlanc's shoulder was not better, she was going to have it x- rayed; On December 26, 1983, Respondent noted that LeBlanc's shoulder was still very sore and that he had difficulty working in the cold; On February 17, 1984, the Respondent noted that LeBlanc still had bursitis in his left shoulder; On March 16, 1984, the Respondent indicated that LeBlanc still had bursitis; On April 25, 1984, and September 17, 1984, Respondent noted that LeBlanc was still experiencing severe pain in his shoulder; On October 8, 1984, Respondent noted that LeBlanc refused Tylenol #3, because he stated that it made him sick and nauseous. Between December 1983 to July 9, 1984, the Respondent prescribed 405 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which LeBlanc suffered between December 1983 and July 9, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to LeBlanc did not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Betty Mitchell from November of 1981 to August of 1984. When questioned. By DPR Investigator Lichtenstein regarding this patient, Respondent stated that Mitchell suffered from chronic pain. The Respondent stated that Mitchell was drug dependent, but not addicted. Based on the information contained in the Respondent's office records during the period in which Mitchell was treated by Respondent, the following medical history is disclosed: In 1982, Mitchell was shot in her left buttock; On July 21, 1982, Respondent noted that the bullet was still lodged in Mitchell's buttock and that Mitchell had a drainage tube in her abdomen; pain; On September 7, 1982, Mitchell suffered from pelvis and mouth On January 14, 1983, the Respondent noted that Mitchell suffered from pain in the buttocks and back; On April 6, 1984, Respondent noted that Mitchell had pain in her back near her buttock area; On August 7, 1984, Respondent noted that Mitchell was still experiencing back pain; On April 18, 1983, Respondent noted that Mitchell was experiencing pain. Between December 23, 1983, and August 24, 1984, Respondent prescribed 180 doses of Percodan to Mitchell. Respondent was aware that Mitchell was becoming dependent on Percodan. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Mitchell suffered between December 23, 1983 and August 24, 1984. The dosages of Percodan which Respondent prescribed to Mitchell were within the recommended limitations established for that drug in the PDR. Respondent treated patient Rhona Molin from September of 1981 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Molin was being treated "for nervousness and being very high strung." Based on information contained in the Respondent's office records during the period which Molin was treated by Respondent, the following medical history is disclosed: In 1981, Molin suffered from colitis and stomach pain; In 1981, Respondent noted that Molin had bursitis in her right shoulder; In 1982, Molin suffered from right arm pain; On March 16, 1984, Respondent noted sporadic stomach pain; On June 1, 1984, Respondent noted that Molin was nervous and experiencing severe stomach pain; On August 28, 1984, Respondent diagnosed Molin as having colitis. Between December 21, 1983 and August 28, 1984, the Respondent prescribed 300 doses of Tuinal to Molin. Tuinal, in the amount prescribed, could be an appropriate drug with which to treat sleeping problems arising from the medical conditions with which Molin suffered between December 1983 and August 1984. The dosages of Tuinal which Respondent prescribed to Molin were within the recommended limitations established in the PDR. The Respondent's medical records pertaining to Molin do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient John Skilles from May of 1981 through October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Skilles was being treated for severe pain and bursitis in both shoulders. The Respondent further stated that Skilles was provided two prescriptions for fifty (50) doses of Percodan on the same date because he could not afford to have a prescription for one hundred (100) Percodan filled at one time. Based on information contained in hospital records and the Respondent's office records during the period in which Skilles was treated by Respondent, the following medical history is disclosed: Respondent noted on May 25, 1981, that Skilles was shot five or six times in an accident at Camp Pendelton while he was in the military. Respondent noted that his upper body was full of lead shot; On September 14, 1981, the Respondent noted that Skilles was experiencing pain in both shoulders; On December 7, 1981, the Respondent indicated that Skilles was still experiencing shoulder pain; On August 30, 1982, Respondent noted that Skilles was in an automobile accident and injured the left side of his chest; On October 1, 1982, Respondent noted that Skilles was still experiencing shoulder and chest pain; On June 3, 1983, the Respondent noted that Skilles had pain in both shoulders and was unable to work (Skilles was a painter); On September 6, 1983, the Respondent noted that Skilles was experiencing severe pain in his shoulder. On December 28, 1983, Respondent noted chest pain, and on February 17, 1984, and March 26, 1984, it was noted that Skilles was still experiencing chest pain; On June 13, 1984, the Respondent noted that Skilles had bursitis in both shoulders and was suffering from insomnia; On October 1, 1984, the Respondent noted that Skilles suffered from severe pain in the shoulder and chest. Between August 11, 1983, and September 1, 1984, the Respondent prescribed 90 doses of Tuinal and 600 doses of Percodan to Skilles. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Skilles suffered between August 1983 and September 1984. Respondent's medical records pertaining to Skilles do not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests or the results thereof, or x-rays. The Respondent treated patient June Sweeney between February of 1980 and August of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Sweeney for nervousness and insomnia. Based on information contained in Respondent's office records during the period in which Sweeney was treated by Respondent, the following medical history is disclosed: In 1980, Sweeney was having difficulty sleeping and was experiencing back pain; In 1982, Sweeney was involved in an automobile accident and experienced more back pain; In 1982, Sweeney experienced severe back pain. In August of 1984 Sweeney returned to Respondent's office complaining of pain and insomnia. On August 9, 1984, the Respondent prescribed 30 doses of Percodan and 30 doses of Tuinal to Sweeney. Percodan and Tuinal, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Sweeney suffered. The dosages and Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations as established for those drugs in the PDR. The Respondent's medical records pertaining to Sweeney did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Mike Sweeney from April of 1979 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Mr. Sweeney for "various things, including back pain and insomnia." Based on information contained in hospital records and the Respondent's office records during the period in which Sweeney was treated by the Respondent, the following medical history is disclosed: Prior to being seen by Respondent, Sweeney had surgery on his left buttock in 1978. On March 12, 1979, Sweeney fell and injured his back; In May of 1979, Sweeney was beaten up and his left eye was swollen; In 1980, the Respondent noted that Sweeney was still experiencing back pain; On May 11, 1981, the Respondent noted that Sweeney was still experiencing back pain and was experiencing difficulty sleeping as well; On August 4, 1981, Respondent again noted that Sweeney was still experiencing back pain; Between December 1983 and September 1984, Respondent prescribed 240 doses of Tuinal and 48 doses of Percodan to Mike Sweeney. On one occasion, the Respondent prescribed two thirty-dose prescriptions of Percodan to Sweeney on the same day. The Respondent stated that it was cheaper to prescribe multiple prescriptions of thirty doses than one prescription for sixty. Tuinal and Percodan, in the amounts prescribed could be appropriate drugs with which to treat pain and sleeping problems associated with medical conditions such as those with which Mike Sweeney suffered between December 1983 and September 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations established for those drugs in the PDR. The Respondent treated patient Ivan Weithorn from November of 1970 through September of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that she treated Weithorn for back and shoulder pain and insomnia. Based on information contained in the Respondent's office records during the period in which Weithorn was treated by Respondent, the following medical history is disclosed: In 1977, Respondent recorded that Weithorn had dental work done and a root Canal was done along with oral surgery; In 1978, Respondent noted that Weithorn had pain in his right elbow; In 1982, the Respondent noted that Weithorn fell and hit a table; In August 1983, the Respondent noted that Weithorn had an abscess on his left forearm and in December 1983 noted that he had an infected finger on his left hand; On February 3, 1984, Respondent noted that the patient had sustained a puncture wound in his upper lip. Between December 9, 1983, and August 27, 1984, the Respondent prescribed 360 doses of Tuinal and 600 doses of Percodan to Weithorn. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Weithorn suffered between December 1983 and August 1984. The dosages of Percodan which Respondent prescribed to Weithorn were within the recommended limitations established for that drug in the PDR. The dosages of Tunial which Respondent prescribed to Weithorn slightly exceeded the recommended dosage contained in the PDR. The FOR recommends one Tuinal per day. In this instance, 360 Tuinal were prescribed over a 300-day period. It may be appropriate for a physician in the exercise of his or her professional judgment, to slightly exceed the recommended dosage of a particular drug if the patient has developed a tolerance to the effects of the substance. Respondent's medical records pertaining to Weithorn do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, or x-rays. All of the Respondent's medical records were stored in a plastic shoe- box like container and were maintained on 3 X 5 index cards. The use of small file-type index cards for the maintenance of a physician's office medical records was prevalent about 20 to 25 years ago. Today, most physician's written medical records are maintained in standard size folders and include laboratory tests, examination results, hospital records, discharge summaries and letters from consulting physicians. Although Respondent sometimes indicated a diagnosis on an initial visit, she rarely noted the diagnosis, objective findings or subjective symptoms of the patients on return visits. On some occasions, a subjective complaint such as "pain" was the only symptom recorded. Extensively within the Respondent's medical records upon a return visit of a patient, nothing was recorded except a prescription, the number of doses and the office charge. Occasionally, a blood pressure or temperature reading was recorded by Respondent. Except for the prescription of pain and sleep-inducing medication, the Respondent's written medical records for the patients described herein failed to demonstrate or indicate the Respondent's overall treatment plan for the patients. In order to justify a course of medical treatment which includes the long term use of Schedule II controlled substances, good medical practice requires that a physician's written patient medical records contain subjective findings (i.e. complaint, onset, duration and severity), a patient history and objective, physical findings made by the physician and/or confirmed and disclosed through laboratory tests or x-rays. The medical records maintained by Respondent on the patients described herein contained only anecdotal information about the patients and contained only scant subjective and objective findings, contained no medical histories and no laboratory results or x-rays. The records maintained by Respondent during the periods when Schedule II controlled drugs were prescribed to the patients herein were inadequate and demonstrated a failure to provide medical care at the minimum level of skill and care required of a reasonably prudent physician under similar conditions. Episodic treatment or care is defined as treatment of symptoms or problems as they present themselves in a patient without any consideration of the root causes of the symptoms, the long term affects the problem may have on the patient, and no consideration of a viable treatment plan. Episodic treatment is considered very poor quality medical care and is a type of treatment which is below the standard of care which is recognized by reasonably prudent physicians as being acceptable. This type of treatment is especially unacceptable when provided to a patient on a long term basis. The patients described herein had medical conditions which could have caused moderate to moderately severe pain and/or sleep disorders. Moderate to moderately severe pain may be defined as pain that interferes with a person's ability to lead a normal life and to perform the daily activities of living which they would normally perform. Chronic pain patients present a difficult challenge to the treating physician because pain is not usually a directly measurable disability. Some patients require greater or lesser amounts of pain medication to relieve a similar amount of pain than do other patients. It may be appropriate and ethical for a physician to prescribe a Schedule II controlled drug to relieve a patient's pain even though the patient may have developed a tolerance to or dependence on the substance. In each instance described herein, the Respondent prescribed the medication in question in a good faith effort to either relieve pain or induce sleep in the patients that she was treating. There was no evidence that any of the drugs prescribed to the patients discussed herein were ever resold on the streets or used by anyone other than the patients for whom they were prescribed. Doctors Handwerker and Frazier testified on behalf of the Petitioner. Neither Dr. Handwerker nor Dr. Frazier examined any of the fifteen patients described herein nor had they reviewed or seen any of the patient hospital records. The Respondent has privileges at the North Shore Hospital in Miami and enjoys an excellent reputation among her fellow physicians as a person of good character and as a dedicated provider of medical treatment. In addition, the Respondent is known among her colleagues as a physician that devotes a substantial portion of her time treating indigent patients. The Respondent cooperated fully with DPR Investigator Lichtenstein during the initial investigation of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and a consideration of the aggravating and mitigating factors delineated in Rule 21M- 20.01, F.A.C. it is, RECOMMENDED that a Final Order be entered assessing a $2,000 administrative fine. It is further recommended that Respondent's license to practice medicine in the State of Florida be placed on probation for a period of three (3) years under the following terms and conditions: Respondent shall make semi-annual appearances before the board. Respondent shall not use, dispense, administer, or prescribe Schedule II controlled substances, except in a hospital setting. Respondent shall successfully complete fifty (50) hours annually of Category I Continuing Medical Education. The primary subject matter of each course taken must involve Pharmacology, General Medicine and/or Medical Record- Keeping. DONE and ORDERED this 17th day of December, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0995 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 2, 3 and 8. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as unnecessary. At the final hearing, the Petitioner was allowed to amend the Administrative Complaint to reflect that Mary Dukes received zero (0) doses of Percodan. Thus, any findings regarding the prescribing of Percodan to patient Mary Dukes is unnecessary. Adopted in Findings of Fact 11 and 13. Adopted in Findings of Fact 18 and 20. Rejected as subordinate. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 34. Adopted in Findings of Fact 32 and 35. Adopted in Findings of Fact 38 and 40. Adopted in Findings of Fact 43 and 45. Adopted in Findings of Fact 47 and 49. Adopted in Findings of Fact 53 and 55. At the final hearing the Petitioner was allowed to amend the complaint to reflect that zero (0) doses of Percodan were prescribed to patient James Sams. The Petitioner stated that it was determined by Investigator Lichtenstein after viewing the signature of the Respondent and those upon the prescriptions acquired from the various pharmacies that all prescriptions for patient Sams were forgeries. There- fore, Findings of Fact involving prescriptions to patient James Sams are unnecessary. Partially adopted in Findings of Fact 58 and 60. Matters not contained therein are rejected as unnecessary. Adopted in Findings of Fact 63 and 65. Adopted in Findings of Fact 69 and 71. Adopted in Findings of Fact 74 and 76. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 83. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Addressed in the Procedural Background section. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 84. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as subordinate and/or a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 83. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 85. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Adopted in Findings of Fact 85 and 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 82. Addressed in Procedural Background section. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Rejected as subordinate and unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/or subordinate. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Findings of Fact 68 and 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 79 and 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Findings of Fact 85 and 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 86. Rulings on Proposed Findings of Fact Submitted by the Respondent (The Respondent's Findings of Fact were un-numbered. For the purpose of this Appendix, each paragraph in the Findings of Fact submitted by the Respondent was assigned a number in chronological order beginning with Paragraph Number 1.) Adopted in Finding of Fact 1. Addressed in Conclusions of Law Section. Addressed in Procedural Background section. Partially adopted in Findings of Fact 9 and 87. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as argument end/or subordinate. Rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 2, 3, 4, 5, 6, 8, 9 and 10. Rejected as unnecessary. Adopted in substance in Findings of Fact 11, 12, 13, 14, 15 and 16. Adopted in substance in Findings of Fact 18, 19, 20, 21, 22, 23 and 24. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in substance in Findings of Fact 20, 21, 22, 23 and 24. Adopted in substance in Findings of Fact 26 and 27. Adopted in Finding of Fact 27. Adopted in substance in Findings of Fact 27, 28, 29 and 30. Adopted in substance in Findings of Fact 32 and 33. Adopted in substance in Findings of Fact 34, 35 and 36. Adopted in substance in Findings of Fact 38 and 39. Adopted in substance in Finding of Fact 39. Partially adopted in Findings of Fact 40 and 41. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 43 and 44. Adopted in substance in Finding of Fact 44. Partially adopted in Finding of Fact 46. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 47 and 48. Adopted in substance in Finding of Fact 48. Partially adopted in Findings of Fact 49, 51 and 52. Matters not contained therein are rejected as mis- leading. Adopted in substance in Findings of Fact 53 and 54. Partially adopted in Findings of Fact 55 and 56. Matters not contained therein are rejected as mis- leading. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in Findings of Fact 58 and 59. Adopted in substance in Finding of Fact 59. Adopted in substance in Findings of Fact 60 and 61. Adopted in substance in Findings of Fact 63 and 64. 36. Adopted in substance in Findings of Fact 65, 66 and 67. Adopted in substance in Findings of Fact 69 and 70. Adopted in substance in Findings of Fact 71, 72 and 73. Adopted in substance in Findings of Fact 74 and 75. Adopted in substance in Findings of Fact 76, 77 and 78. Rejected as a recitation of testimony and/or subordinate. Rejected as argument. Rejected as a recitation of testimony. Rejected as argument. Adopted in substance in Finding of Fact 88. Partially addressed in Procedural Background section. Matters not contained therein are rejected as recitation of testimony. Adopted in Finding of Fact 5. 48. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 16. Rejected as argument and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as unnecessary. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 88. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 89. Partially addressed in Procedural Background section. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 6 and 10. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 5. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 23. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Addressed in Procedural Background section. Rejected as subordinate. Partially adopted in Finding of Fact 87. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 87 and 88. Matters not contained therein are rejected as argument and/or a recitation of testimony. Rejected as argument. Partially adopted in Finding of Fact 81. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 90. Matters not contained therein are rejected as subordinate. COPIES FURNISHED: David F. Bryant, Esquire 1107 E. Jackson Street Suite 104 Tampa, Florida 33602 Michael I. Schwartz, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue This is a license discipline case in which the Petitioner, by means of a four-count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of his alleged violation of subsections (m), (q), (t), and (nn) of Section 458.331(1), Florida Statutes (2002).
Findings Of Fact The Respondent, Mark K. Sachs, M.D., is presently a physician licensed to practice medicine in the State of Florida, and he has been so licensed at all times material to this proceeding. His license number is ME 49598. His address of record is 11440 North Kendall Drive, Suite 206, Miami, Florida 33176. A legend drug is a drug for which a prescription is required. At all times material to this proceeding, Phentermine has been a legend drug which has been approved by the FDA for the treatment of obesity. It is not safe for a person to self- prescribe Phentermine. Phentermine works through the central nervous system as an appetite suppressant. Phentermine has numerous side effects including tachycardia, a fast heart rate; palpitations; diarrhea; altered sensorium; agitation; restlessness; sleep disorder; and/or tremors. Phentermine is contraindicated for patients who have high-blood pressure; patients with underlying cardiovascular diseases, including peripheral vascular disease; patients suffering from hyperthyroidism; and patients with glaucoma. Prior to prescribing Phentermine, a reasonably prudent physician would perform a routine physical examination of the patient. Such an examination would include at least the following: obtaining the patient’s height and weight; confirming the patient’s BMI (Body Mass Index); checking the patient’s blood pressure; looking into the patient's eyes; listening to the patient’s carotid arteries; palpating the patient’s thyroid; and osculating the patient’s heart for any abnormal heart sounds. A reasonably prudent physician would also include an examination of the patient's pulse, feet, and abdomen, as well as a basic neurological exam. When prescribing Phentermine, a reasonably prudent physician would also develop and document a treatment plan for the patient. Such a plan would include follow-up with the patient to monitor any possible side effects or any possible complications. At some time on or prior to August 7, 2002, Patient H.Y. filled out a web site order form and questionnaire. The medication ordered by Patient H. Y. was described on the order form as "Phentermine (yellow) 30mg - 90 caps." At the bottom of the order form there was a statement to the effect that Patient H.Y.'s credit card would be billed by Impact Health Care, Inc. The order form had a number of boxes in which the person placing the order was asked to provide personal information or provide "yes" or "no" answers. The information provided by Patient H.Y. included the following: (a) her email address, full name, and day time and evening telephone numbers; (b) details regarding the credit card to which the order would be billed, (c) a billing address, (d) a shipping address, and (e) answers to several questions in the section of the form described as "Medical Questionnaire." The information provided in the "Medical Questionnaire" portion of the form included: (a) her date of birth; (b) her sex; (c) a question regarding high blood pressure (response: no); (d) an agreement not to take any over-the-counter medicines without approval from her pharmacist (agreed); (e) an agreement to monitor her blood pressure at least once every 14 days and to stop taking the medication immediately if the blood pressure is over 140/90 (agreed); (f) agreement to not take the medication if the person was pregnant, breast feeding, or trying to get pregnant (agreed); (g) answers to questions involving any current medical conditions, all medication currently taken, all medications intending to be taken while on this program, all allergies, any surgeries, anything in patient’s medical history the patient deems relevant (all answered “none”); (h) patient’s height of 5 feet, 3 inches, and weight of 173 pounds; (i) the answer “yes” to a statement that the patient has read, understood, and agreed to the patient responsibility statement and the informed consent; and (j) the answer “no” to receiving two special offers. On or about August 7, 2002, the Respondent wrote a prescription to Patient H.Y. for a total of 90 capsules of Phentermine 30 mg.2 During the course of the investigation that led to the filing of the Administrative Complaint in this case, prior legal counsel for the Respondent provided the Department's investigator with more documents from the Respondent's medical records than the two documents identified as Joint Exhibits 2 and 3 in this case. The Department does not know one way or the other whether the documents it received from the Respondent's prior legal counsel comprise the entirety of the Respondent's medical record of his treatment of Patient H.Y.3
Recommendation Based on the foregoing, it is RECOMMENDED that a Final Order be issued in this dismissing all charges in all four counts of the Administrative Complaint by reason of the insufficiency of the evidence. DONE AND ENTERED this 3rd day of October, 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 3rd day of October, 2005.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of subsections (m), (q), and (t) of Section 458.331(1) Florida Statutes.
Findings Of Fact At all times material to this case, the Respondent, Anthony Glenn Rogers, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is ME 0062034. Dr. Rogers is a pain management specialist. Dr. Rogers is certified by the American Board of Anesthesia and the American Academy of Pain Management. On October 20, 1998, Patient N. A. presented to the Respondent with complaints of chronic back pain following two motor vehicle accidents and three back surgeries. At that time Patient N. A. was an adult female approximately 32 years of age. Immediately prior to her presentation to the Respondent she had been treated for a period of approximately five months by Dr. Robert E. Lentz who, at that time, also specialized in pain management in the same geographic community as the Respondent.2 In May of 1998, Dr. Lentz's initial treatment plan for the Patient N. A. was as follows: There is no surgical procedure indicated nor is there any blocks indicated for this patient at this time. Medications will be the patient's mainstay of therapy. Therefore at this time we will renew her prescriptions with the following changes we will try to reduce the amount of Dilaudid for breakthrough pain by increasing her MS Contin from 60 mg. q.d. to 60 mg. b.i.d and the Dilaudid remaining for breakthrough pain. The patient will phone in a few days to update her progress on the new medication regimen. When the Patient N. A. first presented to the Respondent, she was taking the following medications in an effort to relieve her chronic back pain: MS Contin, Dilaudid, Effexor, and Klonopin. Prior to her treatment by Dr. Lentz and by the Respondent, the Patient N. A. had been treated for many years by physicians in the state where she previously resided. That treatment had included three back surgeries and numerous other invasive procedures for the purpose of trying to relieve her chronic back pain. Some of those prior invasive procedures had produced life threatening consequences. None of the prior invasive procedures had produced any beneficial effects. By the time the Patient N. A. presented to the Respondent, she was strongly opposed to any further surgical or other invasive procedures. Her opposition was based on her prior experiences which indicated that such procedures could be risky, could be painful, and in the past had not provided her with any benefit. The Respondent's records of Patient N. A.'s first visit to his office indicate that he performed a physical examination of the patient, but the records do not document a complete physical examination. The documentation issue aside, the Respondent's initial physical examination of Patient N. A. was sufficient and appropriate under the circumstances. The history memorialized in the Respondent's records of his initial consultation with Patient N. A. was sufficient and appropriate. In the care and treatment of a patient who presents with the history, signs, and symptoms, presented by the Patient N. A. on her initial presentation, the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances requires that the initial physical examination of the patient include a neurological or reflex assessment and a range of motion examination. The Respondent's medical records of the initial presentation of the Patient N. A. do not include a notation that the Respondent conducted a neurological or reflex assessment or a range of motion examination on that occasion, even though the Respondent performed such assessments and examinations during the patient's initial visit. The Respondent initially diagnosed Patient N. A.'s condition as "chronic lower back pain, failed back syndrome." This was a sufficient diagnosis, especially in view of the patient's long history of treatment for the same condition.3 The Respondent's initial plan of treatment for Patient N. A. was to obtain the patient's old medical records, discuss epidural adhesionolysis, and to follow up in one week. He prescribed Oxycontin, 80 mg. (three tablets, three times a day) and Dilaudid, 4 mg., for breakthrough pain. During the course of the next eighteen months,4 the Patient N. A. continued to see the Respondent for care and treatment of her "chronic low back pain, failed back syndrome." During that period of time, she saw the Respondent an average of about twice a month. During that period of time the Respondent continued to prescribe Oxycontin and Dilaudid for her. He also prescribed other medicines from time to time in his efforts to relieve her chronic pain. At all times material to this case, the Patient N. A. was enrolled in a Humana HMO. The Respondent was not a participating provider with that HMO. The Respondent was not the "primary physician" for the Patient N. A. in her HMO plan. At the time the Patient N. A. first went to see the Respondent, she was experiencing some difficulties in her relationship with her HMO and for a period of several months she did not have a "primary physician." Shortly after he began the care and treatment of the Patient N. A., the Respondent felt that it would be beneficial to the care and treatment of the patient for her to have an MRI examination. Because the Patient N. A. did not have a "primary physician" at that time, the Respondent contacted the HMO in an effort to persuade them to authorize an MRI examination for the Patient N. A. The Respondent's efforts in this regard were unsuccessful because the HMO did not want to discuss any substantive issues with him since he was not one of their participating physicians. Eventually, the Respondent was able to have the Patient N. A. admitted to a hospital via the emergency room and during the course of that admission was able to arrange for the patient to receive an MRI examination. On January 22, 1999, the Respondent increased Patient N.A.'s prescription of Oxycontin, 80 mg., to four tablets, three times a day. The Respondent also continued to prescribe Dilaudid for the patient to take for breakthrough pain. The Respondent did not document a physical examination on that date. On April 13, 1999, the Respondent increased Patient N. A.'s prescription of Oxycontin, 80 mg., to five tablets, three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On June 11, 1999, the Respondent doubled Patient N. A.'s prescription of Oxycontin, 80 mg., from five tablets, three times a day, to ten tablets three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On June 28, 1999, the Respondent increased Patient N. A.'s prescription of Oxycontin, 80 mg., to eleven tablets, three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On August 2, 1999, the Respondent increased Patient N. A.'s prescription of Oxycontin, 80 mg., from eleven tablets, three times a day, to thirteen tablets, three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On September 2, 1999, Patient N. A. presented to the Respondent with complaints of continued pain and headaches. The Respondent increased her prescription of Oxycontin, 80 mg., from thirteen tablets, three times a day, to twenty tablets, three times a day, and he also gave her prescriptions for Oxyfast liquid and Fioricet for her headaches. The Respondent's medical records for that date did not document a physical examination on that date. Other dates on which the Respondent increased Patient N. A.'s prescriptions without adequately documenting a physical examination were November 23, 1998, and April 26, 1999. Also, on December 30, 1999, at which time the Patient N. A. presented with a complaint of a new injury to her lower back and left leg, the Respondent's medical records do not adequately document a physical examination on that date. The level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances requires, at a minimum, that under the circumstances described in paragraphs 12 through 18, above, the physician must conduct at least a focussed physical examination of the patient and must include in the patient's medical records a description of the types of physical examinations conducted and the results of such examinations. In order to achieve the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in the care and treatment of a patient such as the Patient N. A., the physician should conduct at least a focused physical examination of the patient before increasing the patient's pain medications. Such a physical examination should also be conducted where there is a significant change in the patient's condition. This type of focused physical examination could include such matters as observation of the patient, palpation, range of motion tests for the back and legs, reflex tests, strength tests, sensation tests, and observation of the patient's gait. The Respondent is still providing care and treatment for the Patient N. A. The patient seems to be satisfied with the care she is receiving from the Respondent and also seems to be very appreciative of the efforts the Respondent has made on her behalf. She is also appreciative of the fact that the Respondent has provided some of his services to her without seeking compensation for his services. In the course of his professional career, the Respondent has not had a patient who presented a case as complicated as that presented by the Patient N. A. Cases of this level of complexity are very rare; so rare that in an entire career of a physician specializing in pain management it is unlikely that the physician would see more than two or three such cases. During the course of his care and treatment of the Patient N. A., the Respondent discussed with her just about every procedure that was available to attempt to relieve her chronic back pain. The Patient N. A. was opposed to any form of invasive procedure and hoped to be able to achieve relief from her pain through the use of medicines. During the course of his care and treatment of the Patient A. N., the Respondent never felt there were any secondary gain issues or diversion issues. During the course of his care and treatment of the Patient N. A., the Respondent knew that she was also seeing a psychiatrist at the same time and that she was receiving prescriptions from the psychiatrist. On a number of occasions the Respondent and the Patient N. A. discussed her psychiatric care, and on one or two occasions the Respondent spoke directly to her treating psychiatrist. During the course of his care and treatment of the Patient N. A., the Respondent recommended that the patient be seen by an orthopedic surgeon. However, he could not refer her to an orthopedic surgeon because he was not a Humana HMO provider and the Humana HMO did not honor or recognize his referrals.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Count One of the Administrative Complaint for insufficient evidence to establish a violation of Section 458.331(1)(t), Florida Statutes; Concluding that the Respondent is guilty of having violated Section 458.331(1)(m), Florida Statutes, in some of the ways charged in Count Two of the Administrative Complaint; Dismissing Count Three of the Administrative Complaint for insufficient evidence to establish a violation of Section 458.331(1)(q), Florida Statutes; and, Imposing a penalty on the Respondent consisting of the following: (1) a requirement that the Respondent pay, within 180 days of the issuance of the final order in this case, an administrative fine in the amount of $1,000.00, and (2) a requirement that the Respondent complete, within 180 days of the issuance of the final order in this case, the FMA records- keeping course, or some similar course regarding the proper preparation of medical records. DONE AND ENTERED this 21st day of February, 2003, in Tallahassee, Leon County, Florida. 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 21st day of February, 2003.
Findings Of Fact Respondent is a licensed medical doctor, having been issued license number ME004427. Respondent maintains a general practice of medicine in Fort Lauderdale, Broward County, Florida. The parties have stipulated that the following are Schedule II Controlled Substances pursuant to Chapter 893, Florida Statutes: dilaudid; tuinal; percodan; dexedrine; quaalude; and seconal. COUNTS I - III (HILDA BULLARD) In early 1981, Anatole Mizell had been employed as a medical assistant in Respondent's office for approximately two years. In early 1981, she approached Respondent and explained to him that her mother, who was a resident of the Bahamas, had been diagnosed as having terminal cancer. Ms. Mizell explained to Respondent that physicians in the Bahamas had prescribed dilaudid to relieve her mother's pain, but that dilaudid was much more expensive in the Bahamas than in the United States. As a result, Ms. Mizell requested that Respondent write prescriptions for dilaudid in the United States which she could then have filled for use by her mother in the Bahamas. As a result of this conversation, Respondent, without ever having examined either Ms. Mizell's mother, Hilda Bullard, or any medical records concerning Hilda Bullard, began writing prescriptions for dilaudid in March of 1981. From March through October 1981, Respondent wrote prescriptions for Hilda Bullard totaling 1,072 two- milligram dilaudid tablets. According to the information furnished to Respondent by Ms. Mizell, her mother had had exploratory surgery in approximately 1977, at which time she was diagnosed as terminally ill. Ms. Mizell did not approach Respondent to write dilaudid prescriptions for her mother until early 1981. Having written dilaudid prescriptions for Ms. Bullard for March through October, 1981, Respondent began to suspect that perhaps he should examine Ms. Bullard in light of the fact that patients with illnesses of the severity described to him by Ms. Mizell seldom live for as long as Ms. Bullard apparently had. As a result, Ms. Bullard came to the United States and was first examined by Respondent on October 23, 1981. At that time, Respondent discovered that the patient had an enlarged abdominal mass, and sent her for blood samples and a liver scan. As a result of these procedures, Ms. Bullard was diagnosed as having cirrhosis of the liver, rather than terminal cancer. Respondent immediately discontinued prescribing dilaudid for Ms. Bullard. Although the record in this cause establishes that it is not uncommon, and oftentimes is appropriate, for physicians to prescribe a controlled substance for use by patients without first examining them, this procedure is justifiable only when the prescribing physician is prohibited by emergency conditions from personally examining the patient, or is so familiar with the patient's history that an examination might not be necessary. In this instance, Respondent wrote prescriptions for a controlled substance for use by Ms. Bullard for a period of six months without either having reviewed her medical records or personally examining her. There is no evidence, however, from which it could be concluded that Respondent did not act in a good faith effort to assist his employee's mother. Further, it is significant that, upon determining that the patient did not suffer from terminal cancer, Respondent immediately ceased prescribing dilaudid. COUNTS IV-VII (BILL CAUDILL) William Caudill has been a patient of Respondent's since approximately 1957. At the time of final hearing in this cause, Mr. Caudill was 59 years old. For as long as he can remember, Mr. Caudill has suffered from severe headaches of unknown etiology. His headaches are so severe, in fact, that Mr. Caudill has been unable to work, and is presently receiving Social Security disability benefits. Since he became a patient of Respondent, Mr. Caudill has been referred by Respondent to several specialists, including a neurologist, for procedures to determine the cause of his headaches. To date, the cause of Mr. Caudill's headaches remains undetermined, and he still suffers almost constant pain. In approximately 1978, Mr. Caudill ceased visiting Respondent, and instead was treated by a physician in Pompano Beach, Florida. Upon his return as a patient to Respondent in approximately July of 1980, Respondent was taking approximately 800 to 1,000 percodans per month for relief of pain associated with his headaches. The record in this cause is undisputed that percodan was moderately effective in assisting Mr. Caudill with headache pain, and that percodan is, in fact, an appropriate medication for that purpose. Upon his return as a patient, Mr. Caudill was advised by the Respondent that he was taking too many percodans, and that Respondent was instituting a procedure to decrease his habituation to that drug. In fact, during his treatment of Mr. Caudill from July, 1980, until the time of this hearing, Mr. Caudill had reduced his ingestion of percodan from in excess of 800 per month down to approximately 50 per month. During the period July, 1980, through December 1981, Respondent prescribed 2,959 two-milligram percodan tablets and 489 two-milligram tuinals to Mr. Caudill. This procedure of reducing the patient's dependence upon percodan by gradually reducing the dosage over an extended period of time is both medically justifiable and appropriate under the circumstances here present. However, Respondent's patient records on Mr. Caudill for the period July, 1980 through December, 1981, are virtually absent any information other than the identification of medication, and the date and amount of the prescription to justify Respondent's course of treatment for Mr. Caudill. Respondent was, of course, intimately familiar with Mr. Caudill's condition, having treated him since 1957. Respondent did, however, fail to keep records sufficient to justify his course of treatment, document the patient's progress or lack thereof, and any alternative treatment modalities considered or rejected. COUNTS VIII-XII (E. O. WALKER) At the final hearing in this cause, E. O. Walker was 72 years old, and had been a patient of Respondent's for approximately 20 years. Respondent ceased treating Mr. Walker when Mr. Walker moved to California in 1975. Respondent forwarded Mr. Walker's patient records to a physician in California, and did not retain copies of those records in his files. Mr. Walker returned as a patient to Respondent in 1980. At that time, Mr. Walker was suffering almost constant pain as a result of earlier heart surgery, disc disease in his lower back, and arthritis. In addition, Mr. Walker had difficulty sleeping, and was depressed as a result of a recent divorce. Because of the pain associated with the above-described ailments, Mr. Walker is totally disabled. For the period of September, 1980 through December, 1981 Respondent prescribed 650 percodans, 500 quaaludes, 500 dexedrines, and 400 seconals to assist Mr. Walker in coping with the pain, enabling him to sleep, and assisting him with his depression. The record in this cause establishes that, given Mr. Walker's history and his existing condition, the prescription of these controlled substances in two-milligram dosages over the period in question was reasonable, medically justifiable, and not excessive in quantity or dosage. There is no evidence to support a conclusion that Respondent's treatment of Mr. Walker from September, 1980 through December, 1991 in any way departed from medically acceptable levels of care. COUNT XII (SELF PRESERVATION) 10. On July 14, 1980, November 10, 1980, January 20, 1981, August 2, 1981 and December 18, 1981, Respondent prescribed demerol tablets and injectables in the name of "R. S. Faircloth" or "Robert S. Faircloth". These controlled substances were used by Respondent in the treatment of his patients. All such controlled substances received by Respondent as a result of these prescriptions were either administered to Respondent's patients or were accounted for by Respondent at the time of final hearing. Further, the prescription blanks used to obtain these controlled substances had the notation "Office Use" on their face
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 Respondent is a licensed medical doctor holding a license to practice medicine in the State of Florida issued by the Board of Medical Examiners, Department of Professional Regulation. The Petitioner is a governmental agency charged with enforcing the provisions of Chapter 458, Florida Statutes, and related rules which regulate the licensure standards and status pertaining to medical doctors in the State of Florida, and enforcing the practice standards for licensed medical doctors embodied in Chapter 458, Florida Statutes. Steven Jones has been employed as a detective in the Narcotics Department of the City of Miami Beach Police Department for approximately three and one-half years. He is a ten-year veteran of the law enforcement profession. In December 1982, an investigation was initiated to determine whether allegations of misprescribing scheduled controlled substances made by a confidential informant against Dr. Ramos, the Respondent, were true. On December 16, 1982, Detective Jones entered the medical offices of the Respondent and asked to see Dr. Ramos. The Respondent's receptionist asked him to fill out a patient information sheet. On this sheet or form he indicated his name was "Steven James." He was then taken to the Respondent's office and met the Respondent. He told the Respondent that he was a construction worker, had recently experienced turmoil in his domestic life, and also suffered from a lumbo-sacral sprain. The Respondent then asked him if he had back pain and, after asking him general questions about his health and whether he suffered from any major illnesses, took out his prescription pad and wrote prescriptions for three medications. Other than the general questions the doctor asked him about his health, no detailed medical history was taken from Mr. Jones and there was no physical examination performed by Dr. Ramos or anyone else, except that his weight and height were recorded. No blood pressure reading was taken. After Dr. Ramos asked Mr. Jones if he had a backache, to which Mr. Jones responded in the affirmative, Dr. Ramos stated that he would prescribe something for the backache and something for stress that caused the backache, and something to sleep at night. Although no blood pressure was taken, Dr. Ramos did ask the patient how his blood pressure was, and the patient answered that it was "fine." The doctor then prescribed 60 tablets of valium, 60 placidyl tablets and 40 darvocet tablets. The only medical history provided in writing to the doctor concerned the name, address and employment, medical insurance information and answers to questions on the form concerning allergies. Additionally, the patient noted that he had been taking "valium" or "valium." Upon receiving the prescriptions, Steven Jones paid Dr. Ramos $40 and left his office. Detective Jones again visited Dr. Ramos' office on February 2, 1983. Upon arriving at the office he was escorted into an examining room by the Respondent's assistant, who was also his wife. While Mr. Jones was seated in the examining room, an assistant placed a blood pressure tourniquet or cuff on the patient's arm, leaving it there four to five minutes, when she ultimately returned to the room and informed Steven Jones that the doctor was ready to see him. The blood pressure tourniquet or arm band was never actually inflated by the Respondent or assistant, and no blood pressure reading was ever taken on this visit. Upon going into the Respondent's office, Mr. Jones was asked by Dr. Ramos about how he was feeling and the "patient" requested stronger pain medication. The doctor refused to do this, saying in effect that the patient, Mr. Jones, would have to be admitted to a hospital before the Respondent could prescribe stronger pain medication. Again, on this office visit no social or medical history was taken, and no physical examination was conducted at all. The Respondent asked the patient if he wanted the same prescriptions he had obtained at his December visit, and the patient answered in the affirmative. There was no discussion between the patient and the Respondent or anyone else concerning the patient's condition or progress between the December visit and this February visit. There was no discussion concerning the need for future treatment. The Respondent simply, at that point, wrote the same prescriptions given at the December visit. The next visit by Detective Steven Jones, a/k/a Steven James, occurred on May 25, 1983, at the Respondent's medical offices. The same medical assistant recognized Jones immediately when he came into the office and asked him if he was there for the same reason, to which he replied in the affirmative. He was then escorted straight to Dr. Ramos' office, who asked him if he wanted the same medication again, to which he assented. There was no discussion at all about his condition and how it may have progressed since the February visit, nor was there any discussions about future prospects for treatment, what treatment if any, was being considered or what it was designed to accomplish. The Respondent simply wrote three prescriptions once again, for valium, placidyl and darvocet, Schedule IV controlled substances. Except for the first visit, there was never any discussion of back pain nor any discussion concerning symptoms of insomnia and nervousness in this patient. Onelia Padron testified for Respondent. She has known the Respondent for many years and has worked for him as a technician for approximately a year. She was working in his office in December 1982, as an x-ray technician and in the performance of blood tests, blood pressure readings and physical therapy. She remembered Detective Jones coming to the office in December 1982, and testified that she did not take a blood pressure reading at the December visit, but did so at the February visit. Her specific memory of taking the blood pressure reading in February was not clear, however. She remembers specifically that his blood pressure was normal at the February visit and testified that she was sure that Dr. Ramos wrote down the blood pressure of the patient in his medical chart for the February visit. The patient medical record of Detective Jones a/k/a James, however, does not reveal that a blood pressure reading was taken at the February visit. Although the witness claims to have taken a blood pressure reading on the patient on his February 1983 visit, the testimony of Detective Jones reveals that no blood pressure reading was taken; although the blood pressure cuff or tourniquet was applied to his arm, it was simply not used. This may account in part for Ms. Padron's mistaken memory of actually taking the blood pressure reading. Her memory may be less than accurate due to passage of time. The testimony of Detective Jones to the effect that no blood pressure reading was taken, when considered with the Respondent's own medical records which do not reveal a blood pressure reading being taken, renders the finding inescapable that no blood pressure reading was taken at the February, 1983 visit and that Ms. Padron, after the passage of over a year, has a less- than-specific, inaccurate memory about the occasion and thus her testimony with regard to this visit is not credible. Rita Ramos, the Respondent's wife, acts as the office receptionist who makes and maintains the medical records for the Respondent. She performs no medical duties, however, she is well acquainted with her husband's handwriting and, of course, her own handwriting, and established that the word "valium" on Petitioner's Exhibit 2 and the word "valium" on Petitioner's Exhibit 6 were not written by her or her husband. She maintains that she specifically remembers the patient (Detective Jones) coming to visit Dr. Ramos on December 16, 1982, and she specifically remembers the doctor conducting a full physical examination and writing at least four lines of notes in the patient's record. She did not take a blood pressure on this patient in either December or February, however, and could not give an adequate explanation of how she could perform all her administrative record-keeping and maintenance duties and still have time to continually watch through the open door of her husband's office to see the physicals performed on approximately 20 patients a day, including Jones, and especially then to be able to remember the details of that one specific patient's visit in December 1982, over a year prior to the hearing. Although this witness supposedly remembered the doctor "always" conducting physical examinations on the first visit by a patient, and specifically conducting a head, eyes and ears examination on the first visit of Detective Jones, given the inherent interest of the patient in this case, the fact that her memory must be suspect regarding a specific patient's visit on a specific date more than a year prior to the hearing, and her own testimony that no irregularity or memorable occurrence happened during the visit of that patient to stimulate her recall, her memory of that event must be deemed less than accurate and therefore her testimony concerning the physical examination cannot be found credible by this Hearing Officer. Dr. Ramos testified on his own behalf. He stated that his standard practice is to interview and examine each patient and that he was especially suspicious of the subject patient who came in wearing earrings and boots. He interpreted his abbreviated notes on the patient's chart to reveal that the patient was 5'8" tall and weighed 145 pounds, had a blood pressure of 120 over 80 and a pulse of 80, and a normal sinus rhythm with no heart murmur and no abnormal respiratory signs. The doctor additionally interpreted his handwritten notes containing his own abbreviations, to reveal that the patient's eyes were normal, neck supple, with normal ears, nose, throat and a fair complexion. Although the patient asked for a stronger medication on at least one of the visits, including quaaludes, the doctor refused, informing the patient that he could not legally prescribe such for him in Florida. The doctor also testified that he remembered that on the second visit in February 1983, Ms. Padron took the blood pressure of the patient. He contends that he did not record the blood pressure reading because it was the same as the first time, that is, the December 1982 visit. No blood pressure was taken or recorded at the December 1982 visit, however, and none is revealed in the doctor's record for that visit. Although the doctor testified that on the February visit he believed that the patient might be trying to trick him and might be an undercover law enforcement officer, he still prescribed the same controlled substance prescribed earlier, with no additional physical examination made nor physical findings recorded in the patient records. He repeated the same instructions as to use of those drugs and the reasons for taking those drugs, but did not record any physical findings related to that visit. By his own admission, he did not ask the patient what had occurred in his medical history between December and February and did not ask questions concerning the success of his previously prescribed course of treatment. If indeed, the Respondent believed that the patient could be an undercover law enforcement officer and thus attempting to trick the doctor into misprescribing drugs for him, one might think that the doctor would take pains to make a thorough physical examination and to thoroughly record his findings and conclusions in the medical records he maintained, instead of failing to document his physical findings and conclusions and continuing to prescribe those drugs over a period of months. Thus, the testimony of Dr. Ramos is not supportive of a finding that a thorough physical examination, including the taking of blood pressure readings at each patient visit and, (in view of the low back pain complaint) straight leg raise tests, tests for impairment of sensation in extremities and other parameter checks, was actually conducted on the patient. Dr. John Handwerker, M.D., testified as an expert witness for the Petitioner. He has served as first chairman of the Department of Family Practice at the University of Florida Family and Community Medicine programs. He is Chairman of the Family Practice Department of Mercy Hospital in Miami, and is assistant professor of pharmacology at the University of Miami. He is knowledgeable regarding generally prevailing and accepted standards of family practice in Dade County and was accepted, without challenge, as an expert in the field of family practice. The drug Darvocet and Darvocet N-100 is a Schedule IV controlled substance, according to the schedule established in Chapter 893, Florida Statutes. Darvocet is characterized by some habituating influence, together with some problems with withdrawal. Its use is contraindicated with tranquilizers, such as valium, which was also prescribed in conjunction with it by Respondent for the patient involved herein. Valium, which is known generically as diazepam, is also a Schedule IV controlled substance and is a sedative or anti-anxiety drug with a wide variety of potentially adverse drug interactions, including darvocet. It can be mildly addictive, has a depressant effect on the central nervous system and is also a muscle relaxant. Placidyl is a short-term drug used in sleep disorders. It is only indicated for use for a maximum of seven days. It is classed as an oral hypnotic, and is a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. Prior to prescribing any of these drugs, a physician should take a full history from a patient, and perform a thorough physical examination. The history should include the patient's chief complaint with questions from the physician to the patient involving areas of past problems with the nervous system, ears, eyes, lungs, chest, respiratory system, GI tract, and urinary tract. The physical examination should involve all body systems, including blood pressure, examination of the head, neck and chest and back regions. Further, if the patient requests these or other drugs specifically, a check should then be made for "track marks" and other evidence of prior drug abuse or usage. If the patient complains of low back pain, there should be a physical examination specifically involving the low back area before prescribing the scheduled controlled substances at issue. The past history is important to determine the duration of the problem, any previous medical treatment, examinations or tests by other physicians regarding the lumbosacral or low back area. A physical examination should be performed designed to elicit indications of neurological involvement, including straight leg raise tests, impairment of sensation tests in the extremities and other neurological inquiries. Such a full history and a physical examination is necessary prior to initiating a course of treatment involving treatment of chronic pain due to the existence of a wide assortment of other treatment modalities which might treat the root of the problem, rather than merely the pain symptoms. Dr. Handwerker, upon being questioned concerning the December 1982 visit of Detective Jones to the Respondent's office, posing as a 29-year-old construction worker complaining of lower back pain and insomnia, established that if a doctor performed no physical examination of such a patient, or only a cursory one, and took a history which in essence elicited only the complaint of injury (aside from the non-medical personal background information) that it would amount to inappropriate prescribing of the subject drugs if the patient was given these drugs in the manner prescribed to Detective Jones. The Respondent simply made insufficient findings upon which to base the decision to prescribe those drugs. Such prescribing without an adequate physical examination or the obtaining of detailed patient medical history would constitute a failure to conform to the level of care, skill and treatment recognized by reasonably prudent similar physicians under these conditions and circumstances. The continued prescribing of these drugs at the February and May visits of this patient, without any discussion or consideration of the effect the previous course of treatment had had on the patient, other than a simple question by the Respondent concerning how the patient was feeling, also constitutes inappropriate prescribing of scheduled controlled substances and demonstrates a failure to conform to the generally accepted and prevailing standards of medical practice in the Dade County community. It was similarly established that the medical records failed to justify the course of treatment afforded this patient. Especially regarding the lack of a physical examination at each visit, and the failure to elicit any further medical history on the latter two visits. Even if a full physical examination and history was conducted on the first visit in December 1982, which was not the case, there would still be required an interim update and recording of physical findings related to the patient's experience since the December visit. Notes should have been made in the patient records regarding how the medications were affecting the patient and his pain problem, including notes reflecting that a physical examination had been performed, involving all vital signs, which was not the case with this patient. Not only does the generally accepted and prevailing standard of medical practice in Dade County require that an initial, thorough physical examination including the blood pressure and pulse and the eliciting of a detailed medical history be performed, as well as update physical examinations at later visits to check the progress of the patient under the treatment program; the failure to note the findings in the patient records constitutes a failure to conform to generally accepted and prevailing standards of medical practice for the Dade County community. Dr. Alfred March testified as an expert witness for Respondent, but agreed that the same detailed medical history and examination described by Dr. Handwerker is required before the practitioner should prescribe scheduled controlled substances in the same manner as done by the Respondent. Dr. March was unable to ascertain from simply reviewing the medical records of the Respondent, the reason or justification for the prescribing of any of the drugs on the three dates in question, and established that the medical records of the doctor should always justify the course of treatment for a patient. Indeed, Dr. March established that if a patient came in complaining of a backache, then such would be inappropriate prescribing without the performance of x-rays of the affected area and a full neurological examination, neither of which was performed by the Respondent in this case. Dr. Ramos has never been subjected to disciplinary proceedings in the past, and his past professional record reveals that his medical practice has been characterized by sincere concern for his patients and the highest respect of his colleagues. The subject drugs involved are Schedule IV controlled substances, which are of the class of drugs characterized by the least serious ramifications for patients, if misused. It is to the doctor's credit that when the undercover detective, Mr. Jones, attempted to persuade him to prescribe more powerful medication such as quaaludes, the doctor vigorously protested such a course of treatment and refused to do so, citing his belief that indeed it was illegal to do so in Florida.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor
