The Issue An administrative complaint dated June 20, 1997, alleges that Respondent, Dr. Jeri-Lin Furlow Burton, committed various violations of Chapter 458, Florida Statutes, the Medical Practice Act. The issues in this proceeding are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact Respondent Dr. Burton is and has been at all material times a licensed medical physician in the State of Florida, having been issued license number ME: 0042559. Dr. Burton is a general practitioner and has been a physician for 21 years. At all relevant times she was practicing in Melbourne, Brevard County, Florida. The Department of Health (agency) is the state agency now charged with regulating the practice of medicine in Florida. Patient J.M. In 1996 J.M. lived in Melbourne, Florida, in an apartment complex frequented by Dr. Burton. Dr. Burton's former husband and a friend, L.V., both lived at the complex and she visited, provided some medical care to them, and sometimes brought them groceries. J.M. knew Dr. Burton was a physician. On February 15, 1996, J.M. awakened feeling awful. At the urging of her boyfriend, J.T., and accompanied by J.T., J.M. visited Dr. Burton at her office. According to Dr. Burton's treatment sheet notes, J.M. presented with complaints of a sore throat and migraine headaches associated with nausea and vomiting. Dr. Burton performed a brief physical examination, but not a neurological examination. J.M.'s temperature and blood pressure are documented, but not her pulse, weight, or respiration. Dr. Burton recorded that J.M. had a history of migraine headaches for years and was sometimes sick in bed for days. Dr. Burton performed a streptococcus screen, which was negative. For a first visit there should have been a more complete history in the records of this patient. Moreover, any complaint of serious headache, and especially a migraine headache, should have prompted Dr. Burton to perform and record a neurological examination. Dr. Burton diagnosed J.M.'s immediate problem as an upper respiratory infection with pharyngitis. Dr. Burton prescribed Inderal to prevent migraine headaches and Bactrim D.S., an antibiotic. Dr. Burton also gave J.M. some samples of Imitrex, which relieves migraine headaches. These prescriptions were appropriate and were justified by the medical record of the February 15, 1996, visit. There were subsequent prescriptions, however, that were not justified by Dr. Burton's medical notes for her patient, J.M. On March 12, 1996, Dr. Burton prescribed 30 Percocet for J.M.'s headache. The office note merely recites the date and the complaint that the headache was not getting relief from the Imitrex which usually produced good results. The next office note is dated March 21, 1996, and states only that patient needs refill of medications for headaches. "Again 'sick' headaches in bed. Written RX Percocet(30)." (Petitioner's Exhibit No. 7) On April 19, 1996, Dr. Burton again prescribed a refill of 30 Percocet for J.M. The office note merely reflects this fact. On May 10, 1996, Dr. Burton noted that she gave J.M. samples of Imitrex, 25 milligrams, No. 9. On none of the occasions noted after the initial visit in February 1996 was any examination described. Dr. Burton explained at the hearing that these were occasions when she saw J.M. at the apartment complex, generally in the evenings. Imitrex is a non-narcotic medication that works on progestagen. It is effective in approximately 90 percent of cases. When J.M. complained that it did not work, Dr. Burton did not pursue that complaint further with a neurological examination and detailed history; instead she simply prescribed Percocet, an inappropriate narcotic. (Roxicet, reflected in the pharmacy records for J.M., is a generic substitute for Percocet.) Inexplicably on the final occasion noted in J.M.'s chart, Dr. Burton switched back to Imitrex. The records by Dr. Burton are thoroughly void of any explanation for her course of treatment of J.M.'s headaches. Patient D.W. According to Dr. Burton, D.W., born March 5, 1953, was a long-standing patient, having first seen Dr. Burton in 1990 when Dr. Burton was employed by a walk-in clinic. The records of those visits are not part of the record in this case. The walk- in clinic has closed. The documented chronology of Dr. Burton's treatment of D.W. commences with D.W.'s visit to Dr. Burton's new private practice office in October 1995. D.W. presented to Dr. Burton's office on October 17, 1995, with complaints of Crohn's Disease (an autoimmune disease that affects the intestinal tract and causes severe abdominal pain, inflammation, bleeding, and in some instances infection and perforation of the intestinal tract), headache, and weight loss. There is no documentation of physical examination or an objective finding other than D.W. was in no acute distress (NAD). Dr. Burton prescribed three vials of Stadol NS (nasal spray) with two refills and one hundred tablets of Fioricet. On November 1, 1995, Dr. Turse, a gastroenterologist, evaluated D.W. Dr. Turse reviewed prior records from a Dr. Klein, which dated back to April 1995, revealing an extensive work-up including a normal upper gastro-intestinal endoscopy, bisopsies that were negative, an unremarkable colonoscopy, a normal abdominal and pelvic ultrasound, and a negative sigmoidoscopy. Dr. Turse noted that Dr. Klein suspected that the patient's problem might be psychogenic. Dr. Turse performed two studies, an endoscopy study, and a gastric emptying study. In a report dated November 16, 1995, Dr. Turse indicated that the EGD with mucosal biopsy revealed minimal findings and that he wanted to rule out gastroparesis/gastric motility disorder. Dr. Turse followed up with a gastric emptying study, which was normal. These studies allowed Dr. Turse to rule out Crohn's disease and gastroparesis in this patient. In a letter dated December 4, 1995, Dr. Turse advised Dr. Burton that the EGD was unremarkable and the gastric emptying study was normal, and despite an extensive work-up, there was no explanation for patient D.W.'s chronic recurrent vomiting. This doctor then indicated that his main impression was gastric motility disorder. On November 6, 1995, D.W. presented to Dr. Burton complaining of headaches. The medical records do not reflect a physical examination or that any lab studies were performed. Dr. Burton's "diagnoses" were a headache, Crohn's Disease, and nausea and vomiting. She prescribed Stadol NS No. 20 (twenty), Lortab 7.5 No. 100 (one hundred) and Fioricet No. 500 (five hundred). From December 5, 1995, through December 19, 1996, D.W. presented to Dr. Burton's office multiple times with various complaints of headache, diarrhea, nausea, and vomiting. Dr. Burton continued to diagnose gastroparesis and Crohn's disease without additional testing or consultation. At this time, it is clear that Dr. Burton had Dr. Turse's letter of December 4, 1995. While it was not inappropriate for her to continue with the diagnosis of Crohn's disease or gastroparesis, a general practitioner receiving a patient with Crohn's disease or gastroparesis would perform a physical examination with a minimum of a rectal exam. A stool test should also have been done to determine if the patient was experiencing blood, parasites, or infection in the intestines. These tests were not done. On December 27, 1995, D.W. presented to Dr. Burton with complaints of a headache. She was tearful, upset, and plucking her hair. Dr. Burton diagnosed Obsessive-Compulsive Disorder and prescribed one hundred tablets of Anafranil 5mg, and Buprenex. On March 8, 1996, D.W. presented to Dr. Burton with gastrointestinal complaints. She reported a history of two episodes of anorexia and Dr. Burton's diagnosis reflects "r/o (rule out) anorexia." On July 12, 1996, Dr. Burton prescribed Wellbutrin to D.W. She had already prescribed Prozac to D.W. on June 27, 1996. Documentation of numerous office visits from October 17, 1995, through December 19, 1996, for D.W. do not contain a complete history and physical examination, or physical findings and assessment. Several of the records, such as the July 12, 1996, record, contain no physical findings whatsoever; others contain merely a temperature reading. Dr. Burton continued to indicate Crohn's disease and gastroparesis as the working diagnoses. She continued to prescribe narcotics like Lortab in high doses for this patient and Donnatrol, Lomotil, and Bentyl, all of which will slow down the motility of the digestive tract. D.W. had a motility problem with her digestive tract. To prescribe medications that slow down the digestive tract further is contra-indicated and can make the patient subject to a perforation of the colon or a systemic infection called septicemia which can be life-threatening. Dr. Burton prescribed significant amounts of Lortab and Fioricet, which contain acetaminophen. Large doses of acetaminophen can be toxic to the liver. She did not perform any liver tests on D.W. Dr. Burton prescribed Xanax, a tranqulizer and Wellbutrin, an anti-depressant, to D.W. in a short period of time. It is not appropriate to prescribe a tranquilizer with an antidepressant in a depressed patient. Dr. Burton also prescribed Prozac and Wellbutrin in the same month. Wellbutrin and Prozac can lower the seizure threshold in people and the former can increase the effect of the latter. It is inappropriate to prescribe these drugs together so close in time. Dr. Burton failed to practice medicine within the acceptable level of care in that she failed to perform an adequate or complete history, physical examination, and assessment of D.W. related to multiple complaints. Dr. Burton failed to perform a rectal exam or a stool test; in addition, she failed to perform a liver test. She also fell below the acceptable standard of care by prescribing medications that slow down the digestive tract and are contra-indicated for a patient with either Crohn's disease or gastric motility disorder. She fell below the standard of care by prescribing Stadol, a narcotic antagonist, with the amount of narcotics prescribed for this patient. Dr. Burton failed to keep written records justifying the course of treatment in that she failed to document a detailed history, physical examination, assessment of physical findings, and plan of treatment for D.W. She consistently prescribed controlled substances for Patient D.W. without performing a complete physical assessment to determine need and she prescribed medications that had the potential to exacerbate some of D.W.'s previous known conditions. Patient C.W. C.W., born March 9, 1955, was D.W.'s husband and also a long-term patient of Dr. Burton. The records of his visit commence with his visit to Dr. Burton's office on October 26, 1995, with complaints of backache and headaches. Dr. Burton's records note a history of three back surgeries, one with insertion of Harrington rods (rods surgically placed along the spine to correct curvature) and recent epidural block. Dr. Burton's office records of C.W. do not contain reports of the surgeries, CTs, or Magnetic Resonance Imaging. There is no documentation of a physical examination or findings other than blood pressure. Dr. Burton diagnosed C.W. with headache, back pain, and depression and prescribed multiple medications including but not limited to: two hundred tablets of Lortab 7.5mg, one hundred tablets of Zoloft, one hundred tablets of Xanax 2mg, six units of Stadol NS, fifty tablets of Imitrex 50mg, ten units of injectable Imitrex, and 100 M.S. Contin 30mg, a narcotic. Prior to his visit with Respondent, C.W. was treated by a Dr. Weiss from December 3, 1992, through October 1995. Dr. Weiss' records, the majority of which were not obtained by Dr. Burton until shortly before the final hearing in this case, did substantiate the prior back surgeries and problems. Dr. Weiss also prescribed Lortab, a narcotic analgesic, for this patient. However, Dr. Weiss indicated in his reports that he either dropped the dosage on the Lortabs or he cancelled the prescriptions completely. As an example, in his report of August 31, 1993, it is noted that patient tried again for Lortab No. 60 but Dr. Weiss said it was too soon. Contained in Dr. Weiss' reports is a report from Dr. Hynes. Dr. Hynes treated C.W. on June 28, 1994, and commented that Patient C.W. was on Lortabs for three years and that the patient recognized that there probably was an addiction problem. This doctor strongly recommended an inpatient pain program. Dr. Burton did not have this record from Dr. Hynes or Dr. Weiss' records, other than a note giving C.W. a disability rating, when Dr. Burton treated him. A reasonably prudent physician would not prescribe the amount of narcotics that Dr. Burton has done in this case without documentation establishing the patient's history. During the period of about October 26, 1995, through December 9, 1996, C.W. presented to Dr. Burton on approximately sixteen occasions with complaints of back pain. Dr. Burton diagnosed chronic back pain and "failed back syndrome" and continued to prescribed Lortabs and other narcotics during this time period. There is no documentation of referral for orthopedic or neurological consultation, and inadequate documentation of physical assessment or clinical evaluation for treatment. There is no documentation concerning a referral to a pain management program. In her note of November 6, 1995, Dr. Burton indicated that C.W. took five tablets of MS Contin at once with no relief. Dr. Burton had indicated in her October 26, 1995, report, less than 2 weeks earlier, that she had warned the patient to take only one a day. Based on this history, C.W. was non-compliant with medication and Dr. Burton should have realized there may be a problem. On April 1, 1996, C.W. presented to Dr. Burton with complaints of weight loss and increased sleeping. Respondent prescribed several medications including Wellbutrin. From October 26, 1995, through December 9, 1996, C.W. received the following medications, among others, prescribed by Dr. Burton in the following approximate amounts: Lortab 7.5 1100 tablets Lortab 10 500 tablets Xanax 2mg 30 tablets Ritalin 20mg 10 tablets Imitrex 50mg 100 tablets Fioricet 900 tablets Duragesic 100mg 5 patches Methadone 10mg 40 Despiramine 25mg 30 Stadol NS 60 Vials Dr. Burton failed to practice medicine within the acceptable level of care in that she failed to perform an adequate or complete history, physical examination, and assessment of C.W. related to complaints of chronic back pain. Dr. Burton failed to practice medicine within the acceptable level of care when she failed to refer C.W. for neurological consultation and physical or pain management therapy of any kind. She failed to practice medicine within the acceptable standard of care for C.W. by consistently prescribing controlled substances in excessive quantities that are addictive without documenting the risks and by not attempting to decrease the dosage or detoxify the patient. Dr. Burton failed to maintain medical records documenting a detailed history, complete physical examinations, and assessments of physical findings of C.W. She failed to obtain records of prior surgeries or diagnostic evaluations to supplement C.W.'s record. Dr. Burton's medical records do not justify the course and scope of treatment of this patient. Weighing the Evidence The testimony of Drs. Rafool and Stein on behalf of the agency was competent and credible. Both reviewed all of the medical records provided by Dr. Burton to the agency and pharmacy records obtained independently by the agency. They also received some law enforcement records which have been excluded from this proceeding as hearsay. Both experts relied appropriately and substantially on Dr. Burton's medical records, or lack thereof, in rendering their opinions of her violations. Both experts explained their conclusions with specific examples and discussions of various office visits of the patients at issue. It is difficult to assess the credibility of Dr. Burton's expert witness, Dr. Centrone, a neurosurgeon. Like the other experts, he reviewed Dr. Burton's records, but he also reviewed detailed statements provided to him by Dr. Burton, which were prepared in the course of this proceeding and not contemporaneously with the office notes. Dr. Centrone, without detailing any basis, concluded that Dr. Burton properly treated the patients at issue. The testimony of J.M. regarding finding prescription bottles, in her name and provided by Dr. Burton, among the abandoned possessions of her former live-in boyfriend was unspecific and confusing and an inadequate basis for finding that Dr. Burton illegally provided drugs to the boyfriend, J.T., through prescriptions written to J.M. Likewise, J.M. never plainly contradicted Dr. Burton's explanation of her encounters with J.M. subsequent to the one office visit in February 1996. J.M. insists that she never returned to Dr. Burton's office, but Dr. Burton's notes do not state that she did return. Instead, as Dr. Burton explained, the notes reflect more casual encounters at the apartment complex and Dr. Burton's prescriptions for continued migraine complaints. Although the agency failed to prove alleged fraud by Dr. Burton, it did prove that Dr. Burton failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. For each patient at issue Dr. Burton consistently responded with prescriptions of controlled substances in inappropriate amounts or combinations. Her testimony that the patients had intractable pain, that she often provided free medical treatment to poor or uninsured patients, and that she had many patients, "nuts", that had been "dumped by every doctor in town," is not a valid defense. Moreover, the explanations in Dr. Burton's written statements offered at hearing and in her testimony regarding her treatment do not obviate the serious deficiencies in her medical records for J.M., D.W., and C.W. Those records provide a sketchy statement of complaint, diagnosis (often no more then "headaches," "back pain," or "failed back syndrome"), and a listing of medications prescribed (sometimes as many as 6 for a single visit). Rarely is there any evidence of an examination or any written justification for prescriptions. The agency's evidence, primarily Dr. Burton's own records, clearly establishes that she failed to keep written medical records justifying the course of treatment of the patients at issue. In a Final Order dated June 10, 1995, in DOAH Case No. 93-3096, Dr. Burton was disciplined by the Board of Medicine for failure to maintain appropriate medical records. In a consent order entered in Case No. 96-02493, Dr. Burton agreed to a fine and other conditions, after she was charged with violating the Board's order in the prior case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the Board of Medicine enter its final order finding that Respondent violated Sections 458.331(1)(m),(q), and (t), Florida Statutes (1995), and imposing discipline of a 2-year suspension, $2,000 fine and 2-year probation under appropriate conditions to be established by the Board. DONE AND ENTERED this 17th day of June, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of June, 1999. COPIES FURNISHED: John E. Terrell, Senior Attorney Office of the General Counsel Department of Health Post Office Box 14229 Tallahassee, Florida 32317-4229 George Ollinger, Esquire 100 Rialto Place, Suite 700 Melbourne, Florida 32940 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A023 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue The issues in this case are whether the allegations of the Amended Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a licensed physician in the State of Florida, holding license number ME 81249. At all times material to this case, the Respondent was board-certified in family medicine. The Respondent held no board certification at the time of the administrative hearing, and, according to his response to the Petitioner's First Request for Admissions, the family medicine certification expired in July 2007. On February 8, 2006, the Respondent prescribed hydrocodone (10/325, generic Norco, 10mg.) to Patient M.R. through an internet service called ERMeds.com. On June 26, 2006, the Respondent prescribed hydrocodone (Hydro/APAP 10/325, generic Norco, 10/325) to Patient M.R. through the internet service called ERMeds.com. Hydrocodone is a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Hydrocodone/APAP is hydrocodone combined with acetaminophen, and the combined drug is a Schedule III controlled substance listed in Chapter 893, Florida Statutes. Both hydrocodone and hydrocodone/APAP have high potential for abuse and addiction. The prescriptions issued to Patient M.R. contained the Respondent's identification including address and DEA number on the prescription form, as well as the Respondent's electronic facsimile signature. The Respondent had no contact with Patient M.R. either before or after the prescription was issued to Patient M.R. The Respondent conducted no health evaluation of Patient M.R. The Respondent did not obtain or review any medical information related to Patient M.R. The Respondent testified during deposition that a physician's assistant for whom the Respondent was the supervising physician was responsible for gathering and reviewing medical information from the patient. According to the Respondent's response to the Petitioner's First Request for Admissions, the physician's assistant obtained patient history, including current medications and complaints, and the "information was available to Respondent at the time the prescriptions were authorized." According to the Respondent's response to the Petitioner's First Request for Admissions, a completed medical questionnaire was available for the Respondent's review. There is no evidence that the Respondent reviewed any information or questionnaire regarding the patient's medical history or complaint either before or at the time the prescriptions were authorized. The Respondent did not know and never met the physician's assistant and was unable to recall the last name of the physician's assistant. There is no evidence that the Respondent had any discussion with any physician's assistant related to Patient M.R. either before or at the time the prescriptions were authorized. At the hearing, the Petitioner presented the testimony of Bernd Wollschlaeger, M.D., a Florida-licensed physician holding board certification in family practice. Dr. Wollschlaeger testified that a physician must evaluate a patient, take a patient's medical history, review any available medical records, and document the findings and diagnosis in a contemporaneous record prior to issuing a prescription for hydrocodone to a patient. Based upon the Respondent's deposition testimony and the responses to the Petitioner's First Request for Admissions, it is clear that the Respondent failed to evaluate Patient M.R. in any respect prior to issuing the prescriptions for hydrocodone to the patient. The Respondent reviewed no medical history or records related to Patient M.R. The Respondent failed to diagnose any medical condition that would support prescribing hydrocodone to Patient M.R. The Respondent failed to document any medical information related to Patient M.R. in any written record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Gerard Romain, M.D., in violation of Subsections 458.331(1)(m), 458.331(1)(q), and 458.331(1)(t), Florida Statutes (2005), and imposing a penalty as follows: a reprimand; a three-year period of probation, the first year of which shall include a prohibition on issuing prescriptions for Schedule II and III controlled substances; an administrative fine of $20,000.00; and such additional continuing education and community service requirements as the Department of Health determines appropriate. DONE AND ENTERED this 23rd day of September, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 23rd day of September, 2008. COPIES FURNISHED: Elana J. Jones, Esquire Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Dale R. Sisco, Esquire Stacy Estes, Esquire Sisco-Law Post Office Box 3382 Tampa, Florida 33601-3382 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order dismissing the charge of violation of Section 458.331(1)(aa), finding Manuel M. Fajardo, M.D., guilty of violating Section 458.331(1)(g), (n), (t), and (w), Florida Statutes, and Section 893.07, Florida Statutes, and suspending Manuel M. Fajardo's license to practice medicine for a period of six (6) months to be followed by a probationary period of two (2) years during which Fajardo shall be permitted to practice medicine and dispense drugs only under the supervision of another licensed physician, who shall supervise Fajardo's record keeping and drug prescription and dispensing practices. DONE and ORDERED this 13th day of June, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Division of Administrative Hearings Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1986. COPIES FURNISHED: David Bryant, Esquire 1107 East Jackson Street Suite 104 Tampa, Florida 33602 Michael I. Schwartz; Esquire 119 North Monroe Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Department of Professional Regulation, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1. Proposed Finding of Fact 4 is adopted in substance as modified in Finding of Fact 13. Proposed Finding of Fact 5 is adopted in substance as modified in Findings of Fact 3-12. Proposed Findings of Fact 2, 3, 6-10, and 12-14 are rejected as being argumentative and conclusory. Proposed Finding of Fact 11 is rejected as unnecessary. Rulings on Proposed Findings of Fact of Respondent. Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1. Proposed Finding of Fact 6 is adopted in substance as modified in Finding of Fact 14, except that the last sentence is rejected as being argumentative and not supported by the competent; substantial and credible evidence. Proposed Findings of Fact 2 and 11 are rejected as unnecessary. Proposed Findings of Fact 3, 4, 5, 7-10 and 12-15 are rejected as not supported by the competent, substantial and credible evidence and as being subordinate to the facts found in the Recommended Order. Additionally, large portions of the proposed Findings of Fact are merely summaries of testimony and are not properly proposed findings.
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
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 paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
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 Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, 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 26th day of June, 2006.
Findings Of Fact The Respondent Albert Sneij is a licensed medical physician, having been issued license number ME 0034499. The current office address of the Respondent is 125 Fifth Street, Miami Beach, Florida. Dr. John V. Handwerker, a licensed physician was the Petitioner's sole witness. Dr. Handwerker, who has served as an Assistant Professor of Pharmacology at the University of Miami, was requested by the Department to examine the patient records obtained from the Respondent during the course of a Department investigation, evaluate whether the prescriptions contained in the patient records were appropriate or excessive and whether such prescriptions were adequately documented in the patients' clinical records. Dr. Handwerker evaluated the Department's investigative file and the Respondent's clinical records, involving eight patients: Charles Thomas Whitecup, John Marsden, Carole Rosen, Thomas T. Bellamy, John Barbosa, Rex Bridwell, Thomas Sestito and Margaret Lee Baker. Dr. Handwerker's testimony was based solely on his review of the records since none of the patients involved in this case were seen or examined by him. Charles Whitecup's records revealed that he suffered an injury four years prior to his being prescribed Dilaudid by the Respondent. The injury was a gunshot wound to his left leg on which an exploratory laparotomy was subsequently performed. At that time it was discovered that the gunshot had torn the femoral artery and inflicted substantial nerve plexus damage. Upon examination of Whitecup, the Respondent noted weakness and atrophy in the left extremity and numbness in the anterior portion of his leg. Additionally, Whitecup suffered from bursitis in the knee with pain in the knee and patellar ligament. The Respondent diagnosed chronic left leg pain due to femoral nerve plexus damage and asked Whitecup to bring his medical records to his next appointment which as scheduled in ten days. Based on this diagnosis, the Respondent prescribed 30 Dilaudid, 4 milligrams. Thereafter, Whitecup lost his original prescription and a replacement prescription was issued on April 7, 1982. This was the only prescription which was filled and the only prescription recorded in the Respondent's clinical records for this patient. The records of this patient, Petitioner's Exhibit 1(a) and the Respondent's examination justify and document prescribing the Dilaudid for this patient. Additionally, Whitecup specifically requested that the Respondent prescribe Dilaudid since this was the only medication which relieved his chronic pain. John Marsden was issued a single prescription by the Respondent for Dilaudid, 4 milligrams, on March 8, 1982. Although no clinical records exist to justify this prescription, the Respondent remembered Marsden as suffering from a long-standing chronic pain problem. During the time that the Marsden prescription was written, the Respondent was in the process of moving his office and the clinical records for this patient were probably lost during the move. The Respondent wrote two prescriptions for 20 and 25 Dilaudid, 4 milligrams, to Carol Rosen on February 9, 1982 and March 8, 1982, respectively. Both prescriptions were written when the Respondent was located in his old office and like Marsden, were probably among the records lost in the course of moving offices. The Respondent has no recollection of this particular patient. 2/ In response to the missing Marsden and Rosen records, the Respondent has instituted a new record keeping system and detailed records for all patients are now kept. The Respondent wrote six prescriptions for Thomas Bellamy between March and May of 1982, for 171 Dilaudid, 4 milligrams. Bellamy suffered from back and neck spasms for nine years prior to his initial examination by the Respondent. He was Bellamy had ever obtained for pain was when he was prescribed Dilaudid. During a follow-up examination, the Respondent noted that Bellamy's activities were limited and that his pain was primarily centered in the lower back in the area of L-5, S-1, with occasional radiation to the left leg. The Respondent wanted to take an x-ray but did not because Bellamy was unwilling to incur the cost. Although six prescriptions were written by the Respondent based on only two examinations of the patient, the clinical records for Bellamy, Petitioner's Exhibit 1(d), and the Respondent's examinations of the patient justify and document the prescribing of Dilaudid for this patient. The Respondent examined John Barbosa on May 5,1982, and diagnosed an injured disc between L4-5 during the week prior to the exam. This patient demonstrated spinal spasms during the exam with limited mobility. A single prescription of 36 tablets of Dilaudid, 4 milligrams, was written for the patient. This proscription was justified and documented by the clinical records, Petitioner's Exhibit 1(e) and the examination performed by the Respondent on the patient. In January, 1982, the Respondent first examined Rex Bridwell, a double knee amputee. Bridwell consulted the Respondent due to a vascular disease which caused grangrene and resulted in the amputations. Bridwell's legs had not healed and ulcerous lesions were visual at the amputation sites. Bridwell, who had been unsuccessfully treated for the previous six years, was understandably in a great deal of distress and pain as a result of his condition. The Respondent prescribed painkillers, antibiotics, vitamins and discussed with Bridwell alternative therapy including, prayer, hypnosis and meditation. Bridwell was subsequently examined by the Respondent on February 2, 1982 and March 4, 1982. The Respondent prescribed Tuinal on March 3, 1982, 30 tablets, 3 grams; and Dilaudid on March 23, 1982, 40 tablets, 4 milligrams and April 8, 1982, 24 tablets, 4 milligrams, for Bridwell. These drugs were prescribed for Bridwell's severe pain. Bridwell's clinical record, Petitioner's Exhibit 1(f), and the examinations performed by the Respondent demonstrate that these prescriptions were justified and documented. 3/ On January 26, 1982, the Respondent examined Thomas Sestito, a carpenter, who came to the Respondent complaining of severe back aches which resulted from his falling off a roof in 1979 and subsequently reinjuring his back. X-rays from Baptist Hospital confirmed that Sestito suffered a facture at L2. Sestito's pain was at L4 and LB and radiated into his right thigh. The Respondent diagnosed sciatica and prescribed a total of 70 Dilaudid, 4 milligrams, on January 27, 1982, March 7, 1982 and March 11, 1982 and 30 Tuinal, 200 milligrams, on February 10, 1982. 4/ The prescribing of Dilaudid in this case was justified and is documented by the patient's clinical record, Petitioner's Exhibit 1(g) and the Respondent's examination on January 26, 1982. Finally, the Administrative Complaint charges the Respondent with unlawfully prescribing Dilaudid on April 8, 9 and 14, 1982 to Lee Baker. The clinical record, Petitioner's Exhibit 1(h), indicates that two of these prescriptions were written to "Margaret Baker" and only the April 9, 1982, prescription was written to "Lee Baker." Although Margaret Baker's middle name is "Lee", insufficient testimony was introduced to establish that all three prescriptions were written for the same person. Additionally, the Petitioner did not attempt to amend the Administrative Complaint prior to hearing to conform the allegations contained in the Complaint to the evidence which was to be introduced at final hearing. Accordingly, only the prescription written on April 9, 1982, to Lee Baker is relevant to the allegations contained in Counts 29-32 of the Administrative Complaint. Due to the lack of certainty that "Margaret Lee Baker" and "Lee Baker" are the same person, it follows that the clinical record introduced at final hearing, Petitioner's Exhibit 1(h), might contain two sets of records or one set of incomplete records. Under such circumstances, the Petitioner has failed to prove through the introduction of the clinical record of Margaret Lee Baker, that the Respondent unjustifiably prescribed controlled drugs or kept inadequate records concerning Lee Baker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Board of Medical Examiners enter a Final Order finding the Respondent Sneij guilty of violating Counts 8 and 12 of the Administrative Complaint, not guilty of violating the remaining counts, and placing him on probation for three months subject to the condition that the Respondent demonstrate to the Board of Medical Examiners the adequacy of his present medical record keeping system prior to the end of this period. DONE and ORDERED this 29th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1983.
The Issue The issue for determination is whether Respondent, a licensed practical nurse, committed violations of Chapter 464, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against her license. The resolution of this issue rests upon a determination of whether Respondent failed to properly document the dispensing of certain medications topatients; whether she engaged in or attempted to engage in the possession of controlled substances as set forth in Chapter 893, Florida Statutes, for other than legitimate purposes; and whether such action by Respondent constitutes unprofessional conduct in the practice of nursing.
Findings Of Fact Respondent is Doris Brewer. She is a licensed practical nurse and holds license number PN 0537621. At all times pertinent to these proceedings, Respondent was employed at Memorial Hospital of Tampa, located in Tampa, Florida. Respondent's employment with Memorial Hospital of Tampa began in January of 1988 and continued until her termination on November 29, 1988. During her employment and prior to occurrence of the incidents which form the basis for charges set forth in the administrative complaint, Respondent was cited on two occasions by her superiors for deficient performance related to medical record keeping and dispersal of medications to patients. One of those incidents occurred on March 1, 1988, when Respondent failed to follow directions in the administration of medication and received a verbal warning. She was again disciplined on September 15, 1988, receiving a written warning for failure to properly document the administration of controlled substance medications to patients. On November 19, 1988, Respondent signed out a controlled substance, Tylenol #3, for patient B.N. at 3:45 a.m. and again at 5:00 a.m. The medical administration record documents only one dose of the medication was actually given to the patient at approximately 5:10 a.m. The patient's nursing chart or "notes"do not reflect that the pain medication was subsequently provided to the patient by Respondent. Respondent also signed out Tylenol #3 for patient R.B. at 1:45 a.m. and 5:00 a.m. on November 19, 1988. Respondent charted this medication dispersal on the medication administration record. Again, Respondent failed to document administration of the drugs to the patient in the patient's nursing chart or "notes." On November 27, 1988, Respondent signed out Vicodin, a controlled substance, for patient D.G. at approximately 12:00 a.m. and 4:00 a.m., but did not document this action in the medication administration record or in the patient's nursing notes. Respondent testified in mitigation of the charges in the administrative complaint that she was guilty of "poor documentation"; had appropriately administered the subject drugs in each instance; and had not diverted the drugs to the illicit personal use of herself or anyone else. Failure of a nurse to document or "chart" administration of medication to patients in the patient's chart or nurse's notes constitutes a violation of acceptable standards of prevailing nursing practice. By her own admission at the final hearing, Respondent committed this offense. Respondent's failure to properly document administration of the controlled substance medications in each of the three alleged instances constitutes inaccurate recording of patient records for which she was responsible during the period of time when she was on shift and administering medications to thepatients B.N., R.B., and D.G.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Board of Nursing finding Respondent guilty of unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes (1989) and Rule 210-10.005(1)(e)1., Florida Administrative Code. IT IS FURTHER RECOMMENDED that such Final Order place Respondent's license on probation for a period of two years upon reasonable terms and conditions to be established by the Board, including a condition that Respondent enroll in and successfully complete continuing education courses, as may be determined by the Board, in the subject area of proper documentation of administration of patient medications. DONE AND ENTERED this 15th day of June, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-17. Adopted in substance, though not verbatim. Rejected; hearsay. 19.-21. Adopted in substance, though not verbatim. 22. Rejected; hearsay. 23.-25. Adopted in substance. 26. Rejected; hearsay. 27.-29. Rejected; unnecessary. 30. Adopted by reference. 31.-33. Rejected as to patients claims; hearsay. 34.-35. Adopted in substance. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Tobi C. Pam, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Doris Brewer 319 Northwood Drive Lutz, FL 33549 Kenneth Easley, Esq. General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Judie Ritter Executive Director Board of Nursing Department of Professional Regulation 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32201
