The Issue What administrative sanction should be imposed on the participation of Robert J. Meek, D.O., (Respondent), in the Florida Medicaid program.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid program. At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid program and has had a Medicaid provider number that was issued pursuant to a Medicaid Provider Agreement with Petitioner. "Medicaid" is the medical assistance program authorized by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq., and regulations thereunder. Respondent holds a doctor of osteopathic medicine degree and was licensed to practice medicine in Florida, Virginia, and Ohio. Because of his criminal conviction, which will be discussed below, his license to practice medicine in Ohio has been revoked and the licenses issued by Virginia and Florida have been suspended. At the time of the formal hearing, Respondent was incarcerated in a federal prison and his license to practice medicine in Florida was suspended. Respondent’s testimony at the formal hearing was taken by telephone. Respondent first became licensed in Florida in 2005. After completing a residency in proctologic surgery, Respondent worked at Colorectal and GI Specialists of South Florida from July 2006 until February 2007. Respondent then worked at The Hemorrhoid Relief Center from April 2007 through June 2009. Respondent practiced proctology five days a week during those periods. In addition to his regular jobs, from the fall of 2007 through the summer of 2009, Respondent worked some weekends at Physicians Immediate Care. Prior to May 2009, Respondent had no background, experience, or training in pain management. Between the middle of May 2009 until the end of February 2010, Respondent worked between one and three days a week at Executive Pain Clinic in Palm Beach County, purportedly in the practice area of pain management. Respondent’s employment at Executive Pain Clinic led to the federal grand jury indictment, dated August 12, 2011, against Respondent and 30 other defendants for multiple charges. Succinctly stated, Executive Pain Clinic was a pill mill. Among the charges brought against Respondent were a count for conspiracy to unlawfully distribute and dispense and possess with intent to distribute a controlled substance in violation of the Controlled Substance Act and a count for conspiracy to commit money laundering. The federal grand jury indictment was related to Respondent’s practice of medicine at Executive Pain Clinic.2/ Of the 31 persons named in the indictment, 13 were licensed to practice medicine in Florida. Of those 13 doctors, 11, including Respondent, entered into a plea agreement to resolve the charges. By his plea agreement, Respondent pled guilty to conspiracy to commit money laundering in exchange for the United States agreeing to dismiss the other charges against him. As part of the plea agreement, Respondent agreed to testify on behalf of the United States in its prosecution of the two medical doctors who were charged by the indictment, but who refused to enter into a plea agreement to resolve the charges. As of the formal hearing, Respondent had so testified, thereby satisfying his obligation under the plea agreement. In addition to the plea agreement, Respondent entered into a "Stipulated Statement of Facts," (Petitioner's Exhibit 4) which contained the following, which are hereby adopted by the undersigned as findings of fact: Had this case proceeded to trial, the government would have presented evidence by way of witness testimony, Court authorized wire interceptions of coconspirators and documentary evidence. The evidence would establish that the defendant was a physician licensed to practice medicine in Florida and maintained a Drug Enforcement Administration registration number which enabled him to order and purchase Schedule II-V controlled substances. The evidence would establish that from in or about 2009 through in or about April 2010, the defendant conspired and agreed with coconspirators to receive monetary compensation from Executive Pain clinic [sic] and to deposit such monetary compensation into a financial institution. The monetary compensation was the proceeds of specific unlawful activity, that is, the illegal distribution of oxycodone pills, a Schedule II controlled substance. The defendant and conspirators [sic] participated in the operation of illegal "pill mills" wherein individuals seeking controlled substances paid for examinations by the defendant and coconspirator physicians based upon alleged complaints of pain. The defendant and coconspirator physicians illegally prescribed large quantities of oxycodone, 30 mg. pills and other controlled substances without a legitimate medical purpose and outside the usual course of professional practice. The defendant and coconspirator physicians prescribed controlled substances without reviewing prior medical records, referring individuals to medical specialists, or recommending alternative treatment modalities. The defendant and coconspirator physicians prescribed a predetermined "cocktail" of controlled substances which contained oxycodone 30 mg. and 15 mg. xanax and/or soma. No individualized or particularization of treatment of care was used, other than to vary the quantity of drugs prescribed in the "cocktail." The evidence established that the pain management clinics wherein the defendant and coconspirator physicians were employed were, in fact, facilities used for the illegal distribution of controlled substances. The defendant and coconspirators engaged in the above-described criminal conduct for a profit motive. The monetary compensation received by the defendant had a value of more than $10,000. During Respondent’s tenure at Executive Pain Clinic, approximately 628,200 dosage units of oxycodone were ordered under his name. Respondent was assigned a large safe at Executive Pain Clinic, in which the dosage units were deposited. Many of the prescriptions written at Executive Pain Clinic were filled on-site. Patients paid cash for the prescriptions filled at Executive Pain Clinic. Respondent was not paid by Medicaid for his work at Executive Pain Clinic. Executive Pain Clinic was not a Medicaid provider. Respondent saw an average of 40 patients per day at Executive Pain Clinic, spending as few as five minutes with some before prescribing pain medication. A very high percentage of those patients left with a prescription for a controlled substance. Respondent prescribed large quantities of oxycodone or other controlled substances in complete disregard to whether the patient was or was not a Medicaid recipient and without knowing whether Medicaid would pay for the prescription. Respondent was not qualified to practice pain management when he practiced at Executive Pain Clinic, and he practiced beyond the scope of his expertise. Respondent testified that in the month of August 2009, he began to question the legality of what he was doing at Executive Pain Clinic. Nevertheless, he did not leave that employment until the end of the following February. As a result of his plea, Respondent was sentenced to be incarcerated for a period of 66 months. As reflected by the plea agreement, that sentence may be adjusted following Respondent’s cooperation in testifying against two of his codefendants. On April 20, 2012, the Florida Department of Health (DOH) filed an Administrative Complaint before the Board of Osteopathic Medicine against Respondent alleging certain facts pertaining to his plea in the federal proceeding. DOH designated that Administrative Complaint as Case No. 2011-15165. The Administrative Complaint alleged that Respondent pled guilty to a crime that "relates to the practice of, or the ability to practice, osteopathic medicine." Respondent did not challenge the factual allegations of the Administrative Complaint. On March 5, 2013, the Board of Osteopathic Medicine entered a Final Order in Case No. 2011-15165. The Final Order found Respondent guilty of the alleged violations, reprimanded his license, administered a fine in the amount of $5,000, restricted his practice, and suspended his license for a period of six years. The Final Order found as a mitigating factor that Respondent had provided free medical services to the underserved community. The restriction on his practice, as set forth in the Final Order under the heading "Permanent Practice Restriction," is as follows: Respondent shall not own, operate, or work in a Pain Management Clinic as defined by Section 459.0137, Florida Statutes. Further, Respondent is permanently restricted from prescribing or dispensing any schedule II controlled substance as defined by Chapter 893, Florida Statutes. The suspension of his license, as set forth in the Final Order under the heading "Suspension," is as follows: Respondent’s license to practice osteopathic medicine in the State of Florida is hereby suspended for a period of six (6) years and until such time as he appears before the Board and can demonstrate that he is clinically safe to practice osteopathic medicine by: 1) submitting evaluations by either the University of Florida CARES program; the Center for Personalized Education for Physicians (CPEP) clinical assessment, or by other Board-approved equivalent, and comply with the prerequisite recommendations of the evaluation. The Board reserves jurisdiction to set terms and conditions, including probation, at the time of reinstatement; or 2) be accepted into and practice only in a residency program and appear before the Board after successful completion of the residency program. The Board reserves jurisdiction to set terms and conditions, including probation, at the time Respondent appears before the Board. Respondent worked part-time at East West Physicians in Broward County from June 2009 to October 2010. Although Respondent prescribed pain medication while employed at East West Physicians, there was no evidence that East West Physicians was a pill mill. Respondent worked at Palm Beach Wellness and Rejuvenation after federal authorities closed Executive Pain Clinic. Respondent testified, credibly, that he worked at Palm Beach Wellness and Rejuvenation for 22 days over a period of five and one-half months. Palm Beach Wellness and Rejuvenation was a pill mill. On September 20, 2011, prior to the Administrative Complaint involving the federal proceeding, DOH filed an Administrative Complaint before the Board of Osteopathic Medicine against Respondent alleging certain facts pertaining to his practice at Palm Beach Wellness and Rejuvenation. DOH designated that Administrative Complaint as Case No. 2011-02478. Respondent did not challenge the factual allegations of the Administrative Complaint. On March 14, 2012, the Board of Osteopathic Medicine entered a Final Order that contained the following under the heading "FINDINGS OF FACT": The allegations of fact set forth in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the findings of fact of the Board. There is competent, substantial evidence to support the Board’s findings and conclusions. The Final Order imposed against Respondent an administrative fine in the amount of $10,000.00; ordered him not to own, operate, or work in a pain management clinic; and suspended his license to practice for a period of one year. The Administrative Complaint in Case No. 2011-024783/ included the following factual allegations in paragraphs 5-76, which were incorporated in DOH's Final Order as findings of fact: At all times material to this Complaint, the Respondent was a dispensing practitioner. At all times material to this Complaint, the Respondent was practicing at Total Medical Express of Boca Raton, which was also known as Palm Beach Pain and Rejuvenation (clinic). The Respondent was practicing pain management while he was at the clinic. The Respondent prescribed controlled substances such as Ambien, Ativan, Flexeril, Lisinopril, oxycodone (also known as Roxicodone), Percocet, Valium and Xanax to his patients. Ambien is the brand name for zolpidem, which is prescribed to treat insomnia. According to Title 21, Section [sic] 1308.14, Code of Federal Regulations, zolpidem is a Schedule IV controlled substance. Zolpidem can cause dependence and is subject to abuse. Ativan is the brand name for lorazepam, which is a benzodiazepine, and is prescribed to treat anxiety. Lorazepam can decrease mental alertness and affect judgment. According to Section [sic] 893.03(4), Florida Statutes, lorazepam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use in treatment in the United States. Abuse of lorazepam may lead to limited physical or psychological dependence relative the substances in Schedule III. Flexeril is the brand name for cyclobenzaprine hydrochloride. Flexeril is prescribed as an adjunct to rest and physical therapy for relief of muscle spasms associated with acute, painful musculoskeletal conditions. Flexeril is not a scheduled drug. Lisinopril is the brand name for a drug of the same name. Lisinopril is prescribed to treat hypertension. Lisinopril is not a scheduled drug. Oxycodone is an opioid commonly prescribed to treat pain. According to Section [sic] 893.03(2), Florida Statutes, oxycodone is a Schedule II controlled substance that has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. Opiate, or opioid, drugs have similar actions as the drug opium and are typically prescribed to treat pain. Opioid drugs are synthetically manufactured, while opiate drugs are naturally occurring, but the terms opioid and opiate are often used interchangeably. Opioid drugs are addictive and subject to abuse. Percocet is the brand name for a drug that contains oxycodone and is prescribed to treat pain. According to Section [sic] 893.03(2), Florida Statutes, oxycodone is a Schedule II controlled substance that has a high potential for abuse and has a currently accepted but severely restricted use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. Roxicodone is the brand name for an immediate release formulation of oxycodone. Valium is the brand name for diazepam and is prescribed to treat anxiety. According to Section [sic] 893.03(4), Florida Statutes, diazepam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use in treatment in the United States. Abuse of diazepam may lead to limited physical or psychological dependence relative to the substances in Schedule III. Xanax is the brand name for alprazolam and is prescribed to treat anxiety. According to Section [sic] 893.03(4), Florida Statutes, alprazolam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use treatment in the United States. Abuse of alprazolam may lead to limited physical or psychological dependence relative to the substances in Schedule III. Facts Specific to Patient J.W. J.W. was a resident of Irvine, Kentucky. On or about February 24, 2010, J.W. presented to the clinic for the first time with complaints of lower back pain. On or about March 26, 2010, the Respondent saw J.W. and diagnosed him with lower back pain, lumbar spine stenosis, lumbar disk displacement, and chronic pain secondary to trauma. On or about March 26, 2010, the Respondent prescribed 180 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg, and 60 tablets of Xanax 1 mg to the patient. People who travel from out-of-state to Florida for pain management are associated with aberrant drug behavior, such as drug abuse or diversion, and are considered high risk patients. The Respondent did not evaluate the patient for drug abuse or drug diversion despite the fact that the patient was from Kentucky. The Respondent inappropriately prescribed multiple immediate release opioids to treat J.W. The Respondent placed J.W. at risk of a drug overdose by prescribing multiple release opioids in conjunction with a benzodiazepine. Facts Specific to Patient W.T. W.T. was a resident of Louisa, Kentucky. On or about January 25, 2010, W.T. presented to the clinic for the first time with complaints of lower back and left shoulder pain. On or about March 25, 2010, W.T. presented to the Respondent, who diagnosed the patient with lower back pain, lumbar disk displacement, chronic pain, and pain in the left shoulder. On or about March 25, 2010, the Respondent failed to perform an adequate physical examination of the patient, or the Respondent failed to document that he performed an adequate physical examination. On or about March 25, 2010, the Respondent failed to offer the patient pain management techniques other than stretching. On or about March 25, 2010, the Respondent prescribed 180 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg, and 60 tablets of Xanax 2 mg to the patient. The Respondent inappropriately prescribed multiple immediate release opioids to W.T. The Respondent put W.T. at risk of a drug overdose by prescribing multiple immediate release opioids in conjunction with a benzodiazepine. People who travel from out-of-state to Florida for pain management treatment are associated with aberrant drug behavior, such as drug abuse or diversion, and are considered high risk patients. The Respondent did not evaluate the patient for drug abuse or drug diversion despite the fact that the patient was from Kentucky. Facts Specific to Patient M.P M.P. was a resident of Hancock, Maine. On or about December 30, 2009, M.P. presented to the clinic for the first time with complaints of lower back pain. On or about December 30, 2009, the patient tested positive for tetrahydrocannabinols (THC). THC is the psychoactive ingredients in marijuana, or cannabis. According to Section [sic] 893.03(1), Florida Statutes, THC is a Schedule I controlled substance that has a high potential for abuse and has no currently accepted medical use in treatment in Florida. Its use under medical supervision does not meet accepted safety standards. THC is a central nervous system depressant. On or about March 26, 2010, M.P. presented to the Respondent, who diagnosed the patient with lumbar disk degeneration, chronic lower back pain, degenerative disk disease of the lumbar spine and lumbosacral root lesions. On or about March 26, 2010, the Respondent failed to perform a physical examination of the patient or the Respondent failed to document that he had performed a physical examination of the patient. On or about March 26, 2010, the Respondent prescribed 60 tablets of Valium 10 mg, 30 tablets of Lisinopril 20 mg, 30 tablets of Flexeril 10 mg, 180 tablets of Roxicodone 30 mg, and 60 tablets of Roxicodone 15 mg to the patient. The Respondent inappropriately prescribed multiple immediate release opioids to the patient. The Respondent put the patient at risk of an overdose by prescribing a benzodiazepine and opioids. The Respondent compounded the patient’s risk of an overdose by prescribing Flexeril in addition of a benzodiazepine and opioids. On or about March 26, 2010, the patient tested positive for THC again. The Respondent did not send the patient’s sample out to a laboratory for confirmation to verify that the patient had been positive for THC. The Respondent failed to address the patient’s use of illegal substances in the medical records. The Respondent put the patient at high risk for a drug overdose by prescribing 60 tablets of Valium 10 mg, 30 tablets of Lisinopril 20 mg, 30 tablets of Flexeril 10 mg, 180 tablets of Roxicodone 30 mg, and 60 tablets of Roxicodone 15 mg to the patient while the patient was taking THC. People who travel from out-of-state to Florida for pain management treatment are associated with aberrant drug behavior, such as drug abuse or diversion, and are considered high risk patients. The Respondent did not evaluate the patient for drug abuse or drug diversion despite the fact that the patient was from Maine. Facts Specific to Patient D.S.1 D.S.1 was a resident of Florida, and lived approximately 130 miles away from the clinic. D.S.1 first presented to the clinic on or about March 2, 2010, with a primary complaint of upper, middle and lower back pain and shoulder pain. On or about April 1, 2010, D.S.1 presented to the Respondent, who diagnosed the patient with cervical, thoracic and lumber disk degeneration, lumbar root lesions, chronic pain and muscle spasms. On or about April 1, 2010, the Respondent prescribed 30 tablets of Flexeril 10 mg, 180 tablets of Roxicodone 30 mg and 60 tablets of Roxicodone 15 mg to the patient. The Respondent inappropriately prescribed the patient two immediate release opioids. Facts Specific to Patient D.S.2 Patient D.S.2 was a resident of Middlesboro, Kentucky. On or about March 11, 2010, D.S.2 presented to the clinic for the first time with complaints of lower back pain. On or about April 8, 2010, D.S.2 presented to the Respondent, who diagnosed the patient with thoracic and lumbar disk displacement, chronic lower back pain, degenerative disk disease and lumbar and thoracic spinal stenosis. On or about April 8, 2010, the Respondent prescribed 30 tablets of Ativan 2 mg, 30 tablets of Ambien 10 mg, 180 tablets of Roxicodone 30 mg, and 90 tablets of Roxicodone 15 mg to the patient. The Respondent inappropriately prescribed the patient two immediate release opioids. The Respondent put the patient at risk of overdose by prescribing the patient a combination of Ambien, Ativan, and oxycodone. People who travel from out-of-state to Florida for pain management treatment are associated with aberrant drug behavior, such as drug abuse or diversion, and are considered high risk patients. The Respondent did not evaluate the patient for drug abuse or drug diversion despite the fact that the patient was from Kentucky. Facts Specific to Patient S.F. S.F. was a resident of Florida and lived approximately 24 miles from the clinic. On or about March 10, 2010, S.F. went to the clinic for the first time but his intake form does not indicate what his chief complaint was. On or about April 9, 2010, S.F. presented to the Respondent, who diagnosed the patient with chronic lower back pain, degenerative disk disease and lumbar spinal stenosis. On or about April 9, 2010, the Respondent prescribed 180 tablets of Roxicodone 30 mg and 60 tablets of Roxicodone 15 mg to the patient. On or about April 9, 2010, the Respondent wrote in the medical records that the patient drank a six pack of alcohol a day, five days a week and the patient was "drinking excessively." The Respondent prescribed high doses of opiates to S.F. despite the patient’s excessive use of alcohol. The Respondent put the patient at risk of an overdose by prescribing 180 tablets of Roxicodone 30 mg and 60 tablets of Roxicodone 15 mg when the patient was using alcohol excessively. The Respondent failed to counsel the patient about the dangers of using oxycodone with the levels of alcohol that the patient was imbibing or he failed to document that he counseled the patient. S.F.’s medical records include a magnetic resonance imaging (M.R.I.) study, dated March 20, 2010. S.F.’s M.R.I. indicated that he had an abdominal aortic aneurysm that would be adverse to hypertension. The Respondent failed to refer S.F. to an in-patient detoxification center despite the patient’s use of alcohol and abnormal M.R.I. If his license to practice osteopathic medicine is reinstated in Florida, Respondent intends to practice in South Florida in a practice area other than pain management. Section 409.913(17) contains the factors that Petitioner must consider in determining the length of time a Medicaid provider, such as Respondent, should be terminated from the Medicaid program. Mr. West considered those factors in reaching the conclusions that a termination lasting 20 years is the appropriate sanction to be imposed against Respondent. Petitioner considers the seriousness of the misconduct to be the strongest factor to be considered. Pill mills cause serious problems in the State of Florida, and have been the focus of both regulatory agencies and law enforcement agencies on the state and federal level for several years. Medicaid patients in South Florida are not underserved, and there will be little or no impact on access by recipients to Medicaid services if Respondent is terminated as a provider. The United States Department of Health and Human Services, through its Office of Inspector General, has suspended Respondent's participation in all federally funded health care programs for a period of eight years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order adopting the findings of fact and the conclusions of law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate Robert J. Meek, D.O., as a Florida Medicaid provider for a period of ten years. DONE AND ENTERED this 28th day of February, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 28th day of February, 2014.
Findings Of Fact Patient D.R., was born in 1958. She first presented to Respondent's group practice in 1987. D.R. had a history of a bleeding disorder and wanted one of Respondent's associates to follow her Coumadin treatment. The bleeding disorder was related to a rare condition, Klippel-Trenaunay Weber Syndrome, which is characterized by an abnormality of the bones and muscles in the extremities resulting in multiple deep vein thrombosis. An orthopedic physician in a separate practice followed her treatment for severe scoliosis. D.R. also suffered from secondary tension headaches and depression along with her multiple medical problems. She was in constant pain. D.R.'s husband was in the Navy. From the beginning, Respondent's associate worked with a psychologist in an attempt to get the Navy Family Service Center to accept D.R. as a client for family and marital counseling. In April, 1987, D.R. complained of tendonitis of the lower bicep region in the left arm. D.R.'s treating physician referred her to Respondent for consultation as to whether D.R. was suffering from a deep vein thrombosis. In May of 1987, D.R. was referred to a vascular surgeon. In September of 1987, a surgeon at the Naval base performed a hysterectomy on D.R. because her anticoagulant therapy resulted in dysfunctional uterine bleeding. In November of 1987 D.R. underwent orthopedic surgery to stablize her scoliosis. Depending on D.R.'s complaint on each office visit, Respondent's associates prescribed Xanax, Valium, Tylox, Demerol, Darvocet, Vistaril, Motrin, Persantin, Phenergan, Flexoril, Septra, and Coumadin. D.R. continued to receive services from the group practice until March, 1988, when she requested that Respondent serve as her primary attending physician. When Respondent began his care of D.R., she was already taking Vicodin two to three times per week, and Coumadin for hypercoagulaopathy. In April, 1988, D.R. complained of increasing pain in her back and head. She had increased her use of Vicodin with no relief. Respondent switched her medications to 5 mg of Methadone every twelve (12) hours for pain. D.R. also received office injections of Demerol and Phenergan for immediate relief of her pain. The Methadone seemed to work "very well" in relieving D.R.'s back pain. Respondent continued to prescribe this medication for the next several months. For a period of time in June of 1988, Respondent terminated D.R.'s use of Amitriptyline. Other physicians had prescribed this drug for D.R. for four years and she was showing some side affects. Respondent changed D.R.'s medication to another antidepressant, Prozac, and the depression subsided. Respondent prescribed several different medications, including Elavil, Motrin, Imipramine, Vistaril and Demerol, to relieve the patient's recurrent headache pain, through the summer of 1988. At one point, Respondent appropriately recognized the signs of dependency and refused to give D.R. a two month refill of Dolophine to take with her on an alleged two (2) month vacation. Toward the end of July, 1988, D.R. overdosed on Xanax and experienced hallucinatory feelings. In August, 1988, Respondent discussed the increased use of medications with D.R. and referred her to a psychologist for counseling. Respondent also informed D.R. that she needed to enter an inpatient setting such as Charter-by- the-Sea. He also changed the time that D.R. could receive any medications to every other week to control her intake. D.R. subsequently entered Charter-by-the-Sea for inpatient treatment. Upon her discharge, D.R. left Respondent's care to move to California. At the time she left, Respondent provided D.R. with a one (1) month supply of Demerol and Motrin for pain. D.R. was already taking opioids when Respondent agreed to be her physician. He immediately began a program of controlling her intake of pain medication. Although Respondent only treated D.R. for six (6) months, he made appropriate referrals to a psychologist and to an inpatient detoxification program. There was no need for Respondent to refer D.R. to an addictionologist until such time as she appeared intoxicated and hallucinating in July of 1988. At that point, Respondent properly hospitalized D.R., transferring her to the care of experts. There is no persuasive record evidence that a referral to a psychiatrist was appropriate for D.R. Respondent made the appropriate assessment, diagnosis, and referrals for D.R. Additional consultations or referrals were not required. Respondent's treatment of D.R. met the level of care and skill which is recognized as acceptable under similar conditions and circumstances. CHRONIC PAIN MANAGEMENT Respondent did not use narcotics to treat the above referenced patients in an unorthodox, illegal, non-indicated, substandard manner. Methadone is often used for detoxification purposes. However, it is also indicated for "relief of severe pain." Physicians may dispense Methadone from any licensed pharmacy for analgesic purposes. C.A., C.B. C.M., and D.R. were suffering from chronic severe pain when Respondent began treating them. Therefore, Methadone was an appropriate part of their treatment program. There is no persuasive evidence that Respondent used Methadone with his patients for detoxification purposes. Certain chronic pain patients respond satisfactorily to long-term opioid therapy, especially when no other treatment works for them. With the opioid treatment, these patients are able to function socially and participate in other modes of recommended treatment. Respondent's patients in this case fit this profile. They were in the one percent of the most difficult patients that one encounters. Additionally, these four patients represented only a fraction of a percent of Respondent's practice. There is no persuasive evidence that Respondent engaged in a pattern of improper chronic pain treatment. Some physicians prefer to routinely use a multi-disciplinary approach to chronic pain treatment regardless of the severity and complexity of their patients' medical problems. They refer their chronic pain patients to neurologists, psychiatrists, psychologists, and occupational and physical therapists for extensive, expensive long-term care. However, a considerable percentage of patients treated under the multi-disciplinary approach still require long-term opioid treatment because it is the only way to keep the patient sufficiently functional to participate in the multi-disciplinary treatment. All four of Respondent's patients improved for various periods of time while under Respondent's care. They were able to cope with serious episodes of pain and able to expand their function. Unfortunately, there was no cure for any of the conditions from which these four patients suffered. Family physicians can manage such patients expertly if they: (a) are well informed about the use of opioids for analgesic purposes; (b) know their patients' medical history; (c) determine that the benefits of the treatment outweigh the risks; (d) establish a therapeutic relationship with the patient; (d) develop a treatment plan, (e) prescribe the drugs in a prudent manner, and (f) monitor their patients closely. Respondent met these criteria for each of the four patients discussed above. Respondent accepted an provided comprehensive treatment for each of the four (4) patients for comprehensive treatment with the following understandings: (1) no other physician would prescribe opioids; (2) Respondent would determine the appropriate dosage; (3) the patient would keep appointments at regular intervals; and (4) the patient would seek consultations with other professionals when appropriate. Throughout the treatment periods, Respondent appropriately considered whether the drugs were relieving his patients' pain and whether their level of function was improving. Respondent's treatment plans were flexible enough to prevent damage if a patient became noncompliant. Without this flexibility, Respondent or the patient might have abruptly terminated the therapeutic relationship compounding the patient's problems. Respondent closely monitored each patient to ensure that the treatment plan did not create addiction. He took appropriate corrective measures when a patient: (a) began to spend excessive time and energy to obtain the drug; (b) became intoxicated frequently; (c) gave up important social, occupational and recreational activities because of drug use and not because of chronic pain; (d) continued to use a drug even though the patient knew it caused or exacerbated psychological or physical problems. In the 1980's, Respondent's referral and consultation resources were limited. Inpatient substance abuse programs were available but very expensive. The first outpatient addiction recovery programs focused on alcoholism. Pain treatment centers, mental health centers, and addictionologists became more available in the 1990's. Changes in insurance and state and federal pharmacological reporting requirements have also changed physicians' referral and consultation patterns in the last five years. In the 1980's, Respondent's peers knew he was interested in chronic pain management. Because he was willing to treat patients with complex medical problems who were sometimes non-compliant, other local physicians routinely referred their difficult patients to Respondent. Respondent's opioid prescriptions were all legal and within the allowable requirements relating to dosage and number prescribed. He controlled the amount of narcotics the patients received by writing prescriptions for low dosages and for short periods of time, sometimes even on a weekly rather than a monthly basis. The evidence indicates that all four patients experienced severe long-term pain. These patients were incurable and did not respond to standard pain therapy or treatment. Respondent's care, treatment and careful monitoring provided these patients with pain relief sufficient for them to function in society and carry on with their lives. Referral to or consultations with psychiatrists and addictionologists were not required. Respondent's care and skill in managing his patient's chronic pain met the professional standard of care of a family practitioner in the state of Florida.
Findings Of Fact Respondent, Herbert R. Slavin, M.D. (Dr. Slavin), is and has been at all times material hereto, a licensed physician, having been issued license number ME 0036889 by Petitioner, Agency for Health Care Administration, Board of Medicine, (Board). Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 458 and 455, Florida Statutes. Dilaudid is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains hydromorphone a Schedule II controlled substance listed in Chapter 893, Florida Statutes. A substance in Schedule II has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Schedule II is the second most potent category and the first category for which there is any viable medical purpose. The purpose of Dilaudid is to provide pain relief in the appropriate medical situation. The Physician's Desk Reference recommends that the usual oral dosage for Dilaudid is two milligrams every four to six hours as necessary. For more severe pain the recommendation is four milligrams or more every four to six hours. According to the Physician's Desk Reference the dosage should be individually adjusted according to severity of pain, patient response and patient size. PATIENT #1 On September 26, 1990, Patient #1, a 27 year old female, sustained injuries to her back in a motor vehicle accident. On October 22, 1990, Patient #1 underwent a MRI scan of her cervical spine which indicated moderate disc herniation extending slightly asymmetrically to the left side at the C6-7 level and which also indicated a moderate diffuse disc herniation at the C5-6 level with associated osteophytes off the adjacent vertebral end plates. On March 12, 1991, Patient #1 saw Dr. Slavin for the first time. She was complaining of low back pain secondary to the motor vehicle accident. She advised Dr. Slavin that she was taking physical therapy three times per week. Dr. Slavin performed a limited physical examination, noted that the patient's old records should be obtained, and prescribed four milligrams of Dilaudid to be taken orally every four hours. The prescription was for 180 units. On March 26, 1991, Patient #1 returned to see Dr. Slavin, stating that she had chest congestion, a cough, and some numbness in the back of the right leg. She indicated that her prescription for Dilaudid had been stolen along with her purse on March 13, 1991. Dr. Slavin diagnosed bronchitis, gave her a prescription for an antibiotic, and gave her a prescription for Dilaudid to replace the one that was stolen. On April 11, 1991, Patient #1 visited Dr. Slavin for the purpose of getting the prescription for Dilaudid refilled. Dr. Slavin did not prescribe a refill because it was too soon since he had given the prescription. Patient #1 signed an acknowledgment dated April 11, 1991 that she was not a Dilaudid addict, that she was taking Dilaudid to control pain caused by a herniated disc, which was originally diagnosed in September, 1990, that she had tried other medications and found Dilaudid to control the pain with the least side effects, that she understood that Dilaudid was an addictive substance, and that she understood that it was unlawful for the drug to be transferred to or be used by anyone other than the person named on the prescription. On April 25, 1991, Patient #1 again came to Dr. Slavin for a refill on the prescription for Dilaudid. Dr. Slavin prescribed a refill for the same dosage. He noted in the progress notes that he was planning to obtain the patient's old records. Based on the patient's file, Dr. Slavin did receive a report from Dr. Lichstrahl, an orthopedic specialist who had seen Patient #1 in October, 1990 and who had diagnosed the herniated disc. Patient #1's file also contained a report dated March 25, 1991, from Dr. Paul Ginsberg, a specialist in neurology. On May 20, 1991, Patient #1 came back to see Dr. Slavin for a prescription to refill the Dilaudid. Dr. Slavin did prescribe a refill at the same dosage. On June 24, 1991, Patient #1 returned to Dr. Slavin for a refill of the Dilaudid. In his progress notes, Dr. Slavin noted that there was a decreased range of motion in all directions for her neck. He prescribed a refill at the same dosage for the Dilaudid and also prescribed Feldene. Dr. Slavin's office received information from an anonymous source that Patient #1 was receiving Dilaudid from other doctors. This information was verified. Dr. Slavin's office notified Patient #1 that he would no longer prescribe narcotic medication to her. PATIENT #2 On April 10, 1991, Patient #2, a 47 year old male, came to Dr. Slavin with a history of laminectomy and two herniated discs from accidents that occurred several years prior to the visit. Patient #2 indicated that he had been taking Dilaudid for the last six months, which allowed him to work with the pain. Patient #2 was waiting to have surgery until his health insurance became effective. Medical records furnished by the patient indicated that in 1988 Dr. Kernish had diagnosed a peripheral iliac bulge at L5-S1 and L-4-5 with a probable left posterolateral herniation at L5-S1 causing marked foraminal encroachment. Dr. Slavin noted in the progress notes that on the patient's initial visit, the patient was in distress secondary to back pain. Dr. Slavin prescribed four milligrams of Dilaudid to be taken orally every four hours, the same dosage which the patient had been taking. The prescription was for 180 units. Patient #2 signed an acknowledgment dated April 10, 1991, that he was not a Dilaudid addict, that he was currently taking Dilaudid for the control of pain related to herniated discs which were diagnosed in 1988, that he had tried other medications but found that Dilaudid controlled his pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or be used by anyone other than the person named on the prescription. On May 20, 1991, Patient #2 came to Dr. Slavin for a prescription to refill the Dilaudid. The progress notes indicated that the patient was scheduled for surgery in July. Again Dr. Slavin noted that Patient #2 was in distress secondary to back pain. Dr. Slavin prescribed a refill of Dilaudid at the same dosage. On June 25, 1991, Patient #2 again came to Dr. Slavin for a refill of Dilaudid. Again Dr. Slavin noted that the patient was contemplating surgery when his insurance became effective and that the patient was in distress secondary to back pain. Dr. Slavin prescribed 40 units of four milligrams of Dilaudid to be taken orally every four hours. The medication sheet in the patient's file indicates that Dr. Slavin prescribed 40 units at the same dosage on July 3 and 10, 1991. By memorandum dated July 3, 1991, Dr. Rosenberg advised Dr. Slavin that the radiographic views of Patient #2's spine indicated discogenic disease L4-L5, L5-S1. PATIENT #3 On April 24, 1991, Patient #3, a 64 year old female visited Dr. Slavin, complaining of shortness of breath, lower back pain, chest pain, and headaches. Her medical history indicated peripheral vascular disease, anemia, arthritis, liver dysfuntion, and left ventricular hypertrophy. In 1990, another doctor had prescribed four milligrams of Dilaudid as needed as well as other medications. Dr. Slavin scheduled the patient for blood tests , x-rays, and other tests. Dr. Slavin prescribed, among other medications, 120 units of four milligrams of Dilaudid. On April 24, 1991, Patient #3 signed an acknowledgment that she was not an Dilaudid addict, was currently taking Dilaudid for control of back pain secondary to a fall in 1982, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred or used by anyone other than the person named on the prescription. Patient #3 was recalled to Dr. Slavin's office on May 1, 1991 for further testing because of anemia. No prescriptions were given and the patient was scheduled for an office visit in one week. Patient #3 was seen again on May 9, 1991. No prescriptions were given. A bone survey was planned and the patient was to return after the tests. On May 22, 1991, Patient #3 returned for a refill of medications and to get the results of the bone survey. The bone survey had not been returned so an office visit was scheduled for a week later to review the bone survey. Dr. Slavin prescribed 120 units of four milligrams of Dilaudid. Patient #3 returned on June 4, 1991 for the follow up on the bone survey. Dr. Slavin planned to refer her to Dr. Kalman, an oncologist. No medications were prescribed. On June 24, 1991, Patient #3 returned for a refill of medication. The progress notes do not reflect whether Dr. Slavin prescribed any refills. The patient had not made an appointment with Dr. Kalman and she was reminded that it was important to do so. Dr. Slavin noted on the progress notes that the x-rays showed a disc narrowing at L4-5. The impression of the radiologist was degenerative disc disease at L4-L5. Dr. Slavin ordered a CT scan of the lumbar spine. By letter dated July 1, 1991, Dr. Robbins advised the CT scan indicated that Patient #3 had a slight narrowing at the L4-L5 intervertebral disc space, but there was no definite evidence of herniated disc or spinal stenosis. On July 19, 1991, Patient #3 returned to Dr. Slavin for a follow up visit. She was to see Dr. Kalman and return to Dr. Slavin in one month. The progress notes do not indicate whether any medications were prescribed. By letter dated July 31, 1991, Dr. Kalman advised Dr. Slavin that he had examined Patient #3. He indicated that results of some of the tests were still pending. By letter dated August 6, 1991, Dr. Kalman advised Dr. Slavin of the test results. Dr. Kalman suspected that Patient #3 had anemia of chronic disease secondary to rheumatoid arthritis. He further stated: "The markedly elevated rheumatoid factor titer as well as the markedly elevated sedimentation rate suggest extremely active disease and likely accounts for the patient's back pains." Dr. Kalman indicated the patient had not returned for a follow up visit. By letter dated August 16, 1991, Dr. Kalman advised Dr. Slavin that the patient had cancelled a number of follow up visits. Dr. Kalman had advised her by telephone that she may have an active case of rheumatoid arthritis and that she should return to Dr. Slavin. On August 20, 1991, Patient #3 made an office visit for follow up of medical problems and a refill of the pain medication. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and some vitamins. The patient was to return in one month. On September 24, 1991, Patient #3 returned for a follow up visit, refill of her pain medication, and due to pain in her left eye. Dr. Slavin prescribed Dilaudid at the same dosage and some drops for her eyes. She was to return in one month. On October 25, 1991, Patient #3 returned for a follow up visit. Dr. Slavin prescribed the same dosage of Dilaudid as on the previous visit. She was to return in one month. On November 25, 1991, Patient #3 came to Dr. Slavin for a follow up visit. He prescribed the same dosage of Dilaudid. She was scheduled for a visit in one month. On December 12, 1991, Patient #3 visited Dr. Slavin to get a refill of Dilaudid, stating that she had dropped the last thirty pills down the sink. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and 100 units of 40 milligrams of Lasix. PATIENT #4 On March 4, 1991, Patient #4, a 44 year old male, saw Dr. Slavin and complained of chest congestion, sores on the scalp, and pain in the left hand in the area where he had previously suffered severe burn and traumatic amputation of the left fifth finger. Dr. Slavin noted that the lungs were clear to auscultation with good breath sounds bilaterally. Dr. Slavin diagnosed bronchitis, impetigo, and phantom pain. He prescribed augmentin. On March 26, 1991, Patient #4 returned for a refill of pain medication and because he was still experiencing chest congestion. Dr. Slavin diagnosed chronic pain syndrome and bronchitis. He prescribed 180 units of four milligrams of Dilaudid and erthromycin, an antibiotic. On April 24, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication and because he had sores on his scalp associated with broken hair shafts. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Lotrisone cream. On April 24, 1991, Patient #4 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of pain in his left hand caused by an injury in 1976, had tried other medications but found that Dilaudid was the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 30, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On July 2, 1991, Dr. Slavin saw Patient #4 for a refill of the pain medication. Dr. Slavin diagnosed chronic pain syndrome, ulnar neuropathy and hypertension. He prescribed 90 units of Dilaudid and Hytrin. The patient was to return in two weeks to have his blood pressure rechecked. On July 30, 1991, Patient #4 returned for a refill of his pain medication. His blood pressure was lower than the previous visit. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On September 3, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams and noted that the patient was trying to diminish his dosage frequency. On November 26, 1991, Patient #4 returned for a refill of Dilaudid and complained of an infected wound on his left elbow. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid, Lotrisone Cream, and Duricef. On December 24, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. PATIENT #5 On April 5, 1991, Patient #5, a 28 year old male saw Dr. Slavin for pain in his lower to middle back which recently had been exacerbated by a fall off a curb while he was in his wheelchair. Patient #5 has been a paraplegic since 1989 as a result of a gunshot wound. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Cipro. Dr. Slavin noted on the problem list that Patient # 5 had chronic urinary infections. It could not be determined from the records whether Patient #5 had an urinary infection when he initially presented himself to Dr. Slavin. Cipro and Bactrim are drugs which are used to treat urinary infections. Patient #5 returned to see Dr. Slavin on April 23, 1991. He was complaining of having dark red blood from his rectum on one occasion, pain in the lower part of his abdomen, and not having a bowel movement in the last two days. Dr. Slavin advised the patient to have an enema and to take a laxative. The doctor also prescribed 180 units of 4 milligrams of Dilaudid, Cipro, Bactrim, and Valium. Under normal circumstances a physician would at least examine the rectal area and check the patient's stool. Dr. Slavin did neither. Patient #5 signed an acknowledgment dated April 23, 1991, stating that he was not a Dilaudid addict, that he was currently taking Dilaudid for back pain, that he had tried other medications and found that Dilaudid controlled the pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 14, 1991, Patient #5 again saw Dr. Slavin. The patient indicated that he would be out of town for six weeks and needed to have the pain medication refilled. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. The medical records contain no mention of the previous blood in the rectum. The matter, thus, remained medically unresolved as to what the issues were, whether they were addressed, and what the follow-up was, if any. PATIENT #6 On May 1, 1991, Patient #6, a 40 year old male, saw Dr. Slavin and complained of back pain secondary to an injury in 1981 which caused spinal stenosis with neurogenic claudication pain. The patient had presented to Dr. Slavin a letter dated November 16, 1987 from the Department of Labor and Employment Security, advising Patient #6 that he had been adjudicated as permanently and totally disabled; a neurologic report dated July 28, 1982; and a radiology consultation report dated August 5, 1987. Dr. Slavin noted on the patient's progress notes that myelogram indicated a defect at the L3-4 disc level. He also noted that the patient had a surgical scar over the LS spine. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid, and Robaxin. On May 1, 1991, Patient #6 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of back pain caused by spinal stenosis sustained in a work related injury in 1981 when he fell 18 feet in a sitting position, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. Dr. Slavin again saw Patient #6 on June 3, 1991, and prescribed 120 units of 4 milligrams of Dilaudid for chronic low back pain. The doctor noted that he planned to repeat the MRI of the LS spine. On July 3, 1991, Patient #6 returned for a refill of his medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid and Robaxin. On July 22, 1991, Dr. Slavin again saw Patient #6 for a refill of the pain medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid. Dr. Slavin saw Patient #6 on August 20, 1991 for a refill of the pain medication. The doctor noted in the progress notes that the patient had extensive hypertrophic and degenerative bone and disc disease at virtually all levels of the LS spine. He prescribed 120 units of 4 milligrams of Dilaudid. On September 19, October 23, November 22, and December 20, 1991, Patient #6 visited Dr. Slavin for a refill of his pain medication. On each occasion, Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, and 24 of the Administrative Complaint, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records to justify the course of treatment for Patient #1 and Patient #5, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances in the treatment of Patient #5, imposing an Administrative fine of $1,000 for each violation (total of $3,000), placing Herbert R. Slavin, M.D. on probation for one year during which time the records of Dr. Slavin shall be monitored by a monitoring physician approved by the Board of Medicine, and requiring that Herbert R. Slavin, M.D. be required to attend Category I continuing education course in Risk Management and Medical Records. DONE AND ENTERED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3931 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted in substance. Paragraphs 5-6: Rejected as unnecessary. Paragraph 7: Accepted in substance. Paragraphs 8-11: Rejected as unnecessary. Paragraphs 12-14: Accepted in substance. Paragraph 15: Rejected that there was no orthopedic examination; the medical records do not indicate whether there was one or not. Rejected that the neurological examination was questionable. The remainder of the paragraph is accepted in substance. Paragraphs 16-17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraphs 19-20: Rejected as not supported by clear and convincing evidence. Paragraphs 21-23: Accepted in substance. Paragraph 24: The second sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance. Paragraph 25: Accepted in substance. Paragraph 26: Accepted that Slavin continued to prescribe Dilaudid. Rejected as unnecessary the remainder of the paragraph. The radiographic views of the patient's spine indicated discogenic disc disease. Paragraphs 27-30: Rejected as not established by clear and convincing evidence. Paragraph 31: Accepted in substance. Paragraph 32: Rejected as not supported by the record that he performed a sparse medical history. The remainder of the paragraph is accepted in substance. Paragraphs 33-34: Accepted in substance. Paragraphs 35-38: Rejected as not established by clear and convincing evidence. Paragraph 40: Accepted in substance. Paragraph 41: The last sentence is accepted in substance. The first sentence is rejected as subordinate to the facts actually found. Paragraph 42: The first sentence is accepted in substance. The last sentence is rejected as subordinate to the facts actually found. Paragraph 43: Accepted in substance. Paragraphs 44-45: Rejected as subordinate to the facts actually found. Paragraph 46: Accepted in substance. Paragraphs 47-50: Rejected as not supported by clear and convincing evidence. Paragraphs 51-52: Accepted in substance. Paragraph 53: Rejected as not supported by the medical records except as to the orthopedic examination for which there is no mention in the medical records. Paragraph 54: Accepted to the extent that the medical records do not clearly establish that the patient was suffering from an urinary infection, although it was listed on the problem list. Cipro can be used to treat an urinary infection. Paragraph 55: Accepted in substance. Paragraph 56: See response to paragraph 54. Paragraphs 57-59: Accepted in substance. Paragraphs 60-61: Rejected as not supported by clear and convincing evidence. Paragraphs 62-63: Accepted in substance except as to the date 1882, which should be 1982. Paragraph 64: The first sentence is accepted except as to height which is subordinate to the facts actually found. The second sentence reference to temperature is accepted. The remainder of the second sentence is rejected as not supported by the record, the record indicates that Dr. Slavin also considered a more recent myleogram which confirmed the problems at L3-L4 disc levels. The last sentence is rejected as subordinate to the facts actually found. Paragraph 65-69: Rejected as not supported by clear and convincing evidence. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraphs 2-10: These paragraphs relate to the motion to stay, which is ruled on in a separate order. Paragraph 11: Accepted that Dr. Gillett was tendered and excepted as an expert in the field of internal medicine. Rejected that the doctor was provisionally accepted. Paragraph 12: Rejected as subordinate to the facts actually found. Paragraphs 13-17: Accepted in substance. Paragraph 18: The first sentence is accepted in substance. The second sentence is accepted to the extent that some physicians limit their practice to chronic pain management but rejected to the extent that it is subordinate to the facts found since there was not competent evidence presented that Dr. Slavin holds himself out to be a specialist in chronic pain management. Dr. Gillet assumed that to be so but had no evidence as to that fact. Dr. Brady thought that Dr. Slavin was a family practice physician. Paragraph 19: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. Paragraph 20: Accepted in substance. Paragraph 21: Accepted in substance as it relates to all but Patient #s 1 and 5. Rejected as to Patient #s 1 and 5 as not supported by the evidence. Paragraph 22: The first and last parts of the first sentence are accepted in substance. The middle part of the first sentence is rejected as not supported by the record. Paragraphs 23-24: Rejected as subordinate to the facts actually found. Paragraph 25: Accepted in substance as it relates to all patients except #s 1 and 5. Rejected as not supported by the evidence as it relates to Patient #s 1 and 5. Paragraphs 26 and 27: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Albert Peacock, Esquire Agency For Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Charles L. Curtis 1177 Southeast Third Avenue Fort Lauderdale, Florida 33316 Andrea L. Wolfson, Esquire Suite 314 4491 South State Road 7 David, Florida 33314 Arthur C. Wallberg Assistant Attorney General Office of the Attorney General PL-01 The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Board of Medical Examiners enter a final order dismissing the charges against Dr. Santos on the merits and with prejudice. DONE and ENTERED this 30th day of March 1984, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of March 1984.
The Issue At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes. The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.
Findings Of Fact Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice. Patient Fleming Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions. Patient Kipp Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.
