Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the state of Florida, having been issued license number ME 0044173. She practiced medicine in Key West, Florida, from 1985 through June 1993 when she closed her office as a result of a family problem and moved to West Virginia. She is licensed as a physician in West Virginia and currently practices medicine in that state. Respondent is Board-certified in internal medicine. In April 1993, Petitioner's pharmacy inspector responded to telephone calls from pharmacists in Key West concerning Respondent's prescribing practices by traveling to Key West and reviewing pharmacy records of Respondent's patients. One of Petitioner's investigators thereafter collected and compiled copies of computer printouts from six pharmacies listing prescriptions filled for seven of Respondent's patients. Respondent had worked at a clinic where she experienced approximately 15,000 patient visits per year. After determining that Respondent had prescribed what he considered to be an inordinate amount of controlled substances, Schedule II narcotics, the investigator wrote to Respondent advising her that an investigation had been commenced. In July, Respondent telephoned him and advised him that she had relocated to West Virginia. The investigator asked her for the medical records for the seven patients he questioned, and Respondent advised him that in conjunction with her closing her practice and relocating, she had given their medical records to approximately 500 of her patients so they could take them to other physicians and continue receiving their medical care, and those records not picked up by patients had been sent to a Dr. Garriques to be the custodian of those records. Of the seven medical records requested by the investigator, six of them had been given to the patients, and the seventh had been transferred to Dr. Garriques. Respondent admitted that she had not personally kept either the originals or copies of the medical records of her patients. The investigator subsequently telephoned Sun Belt Clinic where Respondent had worked and was told that Respondent's medical records were not there because she had given them to her patients. In December 1993, the investigator issued a subpoena to Sun Belt Clinic for Respondent's medical records and received nothing. Petitioner has made no further effort to obtain the medical records of the patients involved in this proceeding. Controlled substances are categorized by the Drug Enforcement Agency in five different schedules according to their potential for abuse. Schedule I substances are illegal. Schedule II substances, although considered highly addictive, can be prescribed by licensed physicians for medical purposes. Schedule II substances can be narcotic (opiates administered for pain) or non- narcotic. Schedule II narcotics include morphine (morphine sulfate), methadone (dolophine), dilaudid (hydromor-phone), and oxycodone (percodan and percoset). Dexedrine is also a Schedule II controlled substance. Although morphine is the most potent narcotic available in the United States, only approximately 10-20 percent of it is absorbed, when ingested. Methadone is available in government-run clinics for the treatment of heroin addiction. Methadone is also a bona fide treatment for pain. Pursuant to the statutes regulating the conduct of registered pharmacists in the state of Florida, pharmacists are not permitted to dispense methadone for addiction; rather, pharmacists can only dispense methadone as a pain medication. At least one doctor in Key West, other than Respondent, prescribes methadone for pain, and a local hospital there has begun using methadone to treat pain on an in- patient basis. L.P., one of Respondent's patients, is a narcoleptic. Narcoleptics need a stimulant, such as dexedrine or ritalin, to function normally. Before seeing Respondent, L.P. had been "worked up" at Stanford and was taking a maintenance dosage of dexedrine. Between September 11, 1992, and June 1, 1993, Respondent prescribed dexedrine, 15 mg., for L.P., the same dosage L.P. was on before and after being Respondent's patient. The amount and frequency of dexedrine prescribed by Respondent for L.P. is within the range recommended by the Physician's Desk Reference and was an appropriate treatment for L.P.'s narcolepsy. Persons suffering from chronic pain (as opposed to acute episodes of pain) for which there is no cure or treatment available that can alleviate the person's pain are said to suffer from "intractable pain." There are two types of patients who suffer from intractable pain. The first group are patients with terminal, irreversible illnesses, such as cancer patients. Physicians generally give those patients whatever narcotics they need to alleviate the pain during the end stage of their lives. The second group is composed of patients who suffer from non-terminal disease processes who have tried different specialists and treatments available without achieving relief from their chronic pain. Those persons are generally not treated in family practice settings but rather are referred to pain management centers or pain clinics, in locations where such are available, to have their pain alleviated by treatments such as receiving morphine implants or having doctors perform nerve blocks. Many physicians avoid caring for patients who require Schedule II controlled substances to alleviate their suffering. The United States Department of Health, Education and Welfare, through its Agency for Health Care Planning and Research, has established national guidelines for treatment of moderate to severe pain in cancer patients, using Schedule II narcotics. The guidelines are written as a starting dose for opiate-naive adults, i.e., adults who have never before taken opiates. The guidelines further indicate that adults who are not opiate-naive may need a stronger dose. Although none of Respondent's other five patients involved in this proceeding were cancer patients, they suffered from intractable pain. Respondent prescribed narcotics for them within the guidelines recommended to relieve intractable pain in cancer patients. The Agency for Health Care Planning and Research recommends for moderate to severe pain a starting dose of dilaudid of 6 milligrams every three to four hours with a maximum recommended dose of 24 milligrams a day. It recommends a starting dose for moderate to severe pain for methadone or dolophine of 20 milligrams every six to eight hours with a maximum of 80 milligrams a day. For morphine, Agency guidelines recommend a starting dose of 30 milligrams every three to four hours. As to those five patients discussed hereinafter, Respondent saw each of them two times a week when they came to her for their prescriptions. In that way, she was able to monitor them closely and write prescriptions for limited quantities of medication. Sometimes, she saw those patients more often since the pharmacies in Key West were not able to stock supplies of narcotics as easily as non-narcotic medications. If a patient brought a prescription for such narcotics to a pharmacy and the pharmacy had an insufficient quantity in stock to fill that prescription, the patient could go elsewhere or could take the quantity the pharmacy had in stock. Under that circumstance, the prescription for the full quantity would be cancelled, and the patient would return to Respondent to get an additional prescription in order to have the full dose prescribed by Respondent. Respondent treated J.P. for six years for migraine headaches on an indigent basis. J.P. could not afford a CAT scan, and there were no other resources in Key West available to him for further work-up at no cost. Respondent based her treatment plan on her best clinical judgment and a complete physical examination. She tried Midren and other anti-inflammatory medications first. She prescribed percoset for three or four years. She then tried dilaudid. She prescribed dilaudid, 2 mg. from March 19, 1992, through April 23, 1992. She then prescribed dilaudid, 4 mg., from April 30, 1992, through August 17, 1992. From September 3, 1992, through November 30, 1992, she prescribed dolophine, 10 mg. On December 4, 1992, she changed J.P.'s treatment, prescribing morphine, 30 mg., through January 29, 1993. Pharmacy records reflect other medications thereafter, with a prescription for 15 dilaudid, 4 mg., on March 24, 1993, followed by 8 morphine sulfate tablets, 30 mg., on May 21, 1993; 5 percoset tablets on May 31, 1993; 15 morphine sulfate tablets, 30 mg., on June 4, 1993; and 5 percodan tablets on June 7, 1993. Although J.P. filled Respondent's prescriptions at several pharmacies, for example using three different pharmacies during the month of January 1993, the total amount of medication prescribed by Respondent was within the federal Agency guidelines. Respondent's prescribing practices as to J.P. were appropriate and not excessive. Over the course of her treatment of J.P., Respondent observed him change from a "non-functional" person to a functional person who was able to hold a job as a chef when his pain was relieved. Respondent treated M.G. for AIDS-related cluster headaches, which are very intense. He was also grieving for his girlfriend who had died of AIDS. Respondent treated him with dilaudid, which made him pain-free most of the time, and, in addition, he learned relaxation techniques to help deal with his pain. Respondent maintained him on a dosage of dilaudid, 4 mg., from December 28, 1992, through early March 1993. The quantity of dilaudid prescribed by Respondent was within the federal Agency guidelines, and was appropriate and not excessive. While taking dilaudid, M.G. was able to work four days a week as a taxi dispatcher. Respondent treated C.D. for chronic severe pain resulting from connective tissue disease. C.D. also suffered from intermittent gland swelling. Respondent unsuccessfully tried numerous anti-inflammatory medications in treating C.D., and he was treated by a rheumatologist in Miami without benefit. Respondent placed him on a maintenance treatment plan of 100 mg. a day of morphine and kept him at that level. Pharmacy computer printouts reveal C.D.'s morphine treatment commencing in February of 1992 and continuing into mid-June 1993. His functioning improved so that he was able to obtain a job as a taxi driver and once again start playing his guitar in a band. The maintenance program Respondent instituted for C.D. was within the federal Agency guidelines and was appropriate. Respondent treated J.B. for six years for multiple orthopedic problems and back pain. J.B. was not opiate-naive. He had been severely abused as a child and started taking narcotics at the age of two when he suffered a broken arm and severe burns to his hand as a result of his father's behavior. Respondent wrote alternating prescriptions for methadone, dolophine, and morphine for J.B. from December of 1991 through mid-June 1993. He remained on the same dosage. When seen in the community, J.B. was clean, spoke coherently, walked in a straight line, and dressed appropriately for Key West. Although the mixture of prescriptions and the dosage amounts Respondent prescribed for J.B. were substantial, her prescribing practices for J.B. were within the federal Agency guidelines and were appropriate. Respondent treated P.P. from 1986 through 1993 for severe sinusitis. P.P. also developed severe low back pain (sciatica). Respondent took a back x- ray, administered physical therapy, and referred P.P. to a hypnotist. Respondent wrote on prescriptions which she gave to P.P. that her diagnosis was a herniated disc. Respondent started her on dilaudid, 2 mg., in February 1992 and continued that regimen through January 1993. She also prescribed percoset and valium, 5 mg., for the severe back pain and muscle spasm. She also prescribed an anti-inflammatory for the stomach upset resulting from the narcotic. Respondent's prescribing practices as to P.P. were within the federal Agency's guidelines and were appropriate. In her treatment and prescribing practices for L.P., J.P., M.G., C.D., J.B., and P.P., Respondent kept detailed records, in part due to her concern that she might become the subject of criticism by Petitioner. Such records were not, however, offered at hearing by either party. The prescribing of controlled substances to the patients involved in this proceeding was done in the course of Respondent's professional practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE and ENTERED this 1st day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3 and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-21, 23, and 24 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's fifth unnumbered paragraph has been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth unnumbered paragraph has been rejected as being irrelevant to the issues involved herein. Respondent's first, second, third, sixth, and seventh paragraphs have been rejected as containing only argument. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Suite 210 9325 Bay Plaza Boulevard Tampa, Florida 33619 Katherine Anne Hoover, M.D. Route 2 Box 203 Lost Creek, West Virginia 26385 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace, Assistant Director Agency for Health Care Administration Suite 301 The Atrium 325 John Knox Road Tallahassee, Florida 32303
