The Issue Has Respondent, Charles E. Schutt, D.D.S., violated Sections 466.028(1)(m) and (p), Florida Statutes, as alleged in the Amended Administrative Complaint, Department of Health Case No. 92-02364?1
Findings Of Fact Respondent is licensed to practice dentistry in Florida. His license number is DN005795. On and off commencing December 30, 1985, and ending April 20, 1987, Respondent treated a patient known as J.G. She was subsequently known as J.W. She is now known as J.E.D. During the treatment Respondent prescribed the patient J.G. Mepergan Fortis 50 mg on numerous occasions. Mepergan Fortis is a Schedule II controlled substance. It is an opoiod analgesic. It contains 50 mg of Demerol. Demerol is a Schedule II controlled substance and is an opoiod analgesic. Mepergan Fortis also contains Phenergan 25 mg. In this combination the Phenergan potentiates the effect of the Demerol. Schedule II controlled substances present a high potential for abuse in relation to possible addiction. Respondent prescribed Mepergan Fortis in response to the patient's complaints and upon his clinical findings. The issue is raised whether the prescriptions were in excessive or inappropriate quantities, thus not in the best interest of the patient and not in the course of professional practice. On December 30, 1985, when Respondent first saw J.G., it was on an emergency basis. When the patient presented she complained that she had a "tooth ache." The tooth involved was No. 30. Respondent provided treatment through surgery known as an "apico" or "apicoectomy." On that date Respondent prescribed 30 Mepergan Fortis 50 mg and 15 Valium 10 mg. That series of prescriptions was repeated on January 2, 1986. Between the prescriptions given on December 30, 1985, and the repeat prescriptions on January 2, 1986, the patient's record reports that the patient had to take 2 to 3 pain medications at one time to get comfortable. The patient record indicates that C.E.S., taken to mean the Respondent, said that this was okay. The note in the patient's record concerning the amount of medication "to get comfortable" was entered December 31, 1985. On January 9, 1986, the patient J.G. received another prescription of Mepergan Fortis 50 mg from Respondent. This was a prescription for 20 tablets. An entry was made in the patient record that at the time the patient still had some swelling but the swelling should subside. On January 14, 1986, the record for patient J.G. indicates that the patient called and stated that she had some feeling in her lower lip area that was coming back and that she had pain and wanted pain medication. A note was made that C.E.S. (Respondent) would need to see the patient. A note reflects that there was still some swelling. A note was made that the patient should continue heat and antibiotics. A prescription was provided for 40 tablets V-Cillin K 500 mg. On January 14, 1986, another prescription was written by Respondent for Mepergan Fortis 50 mg, 20 tablets. On that date a note was made that the patient should call tomorrow to inform the office how she was doing. A note was made on that date that C.E.S. (Respondent) would like to see the patient in a week. The patient J.G. was seen on February 28, 1986. She was prescribed 30 tablets of Mepergan Fortis 50 mg on that date. On March 7, 1986, an entry was made in the patient record that J.G. was still hurting. A prescription for 25 tablets, Mepergan Fortis 50 mg was written on that date together with V-Cillin K 500 mg, 40 tablets. On March 14, 1986, the patient J.G. returned to Respondent for extraction of tooth No. 30. On that date the patient was prescribed 20 tablets of Mepergan Fortis 50 mg. On March 17, 1986, the patient received a prescription of 20 tablets of Mepergan Fortis 50 mg. On March 19, 1986, patient J.G. called Respondent's office stating that when she "breathed in" there was pain. The patient record notes that C.E.S. (Respondent) states that this sensation is not caused from the extraction of tooth No. 30. The patient was seen that day. C.E.S. (Respondent) checked the sensitivity of tooth No. 31. According to the patient's record the extraction site of tooth No. 30 was healing well. A prescription of 20 tablets of Mepergan Fortis, 50 mg was prescribed on that date. On March 27, 1986, the patient, J.G. complained that she was hurting and pointed to tooth No. 31. The patient said she was doing fine until the night before when she was eating. Upon examination C.E.S. (Respondent) explained that sometimes a tooth adjacent to the site of the extraction can be sensitive but usually quiets down. Further arrangements were made to address the patient's condition. Two 5 mg valium were prescribed for pre-op. On that date, a prescription was provided from Respondent to patient J.G. in the amount of 25 tablets of Mepergan Fortis 50 mg. The appointment that was to take place on March 28, 1986, for possible root canal therapy was rescheduled for April 16, 1986, upon the patient's request. On April 11, 1986, the patient called and said that she would be in Atlanta until April 21, 1986, and wanted pain medication. According to the patient record, C.E.S. (Respondent) declined to give the patient pain medication unless the patient was undergoing active and regular treatment. This was reported in the patient record as based upon "DPR Regulations." On November 5, 1986, the patient J.G. called Respondent's office. C.E.S. (Respondent) advised the patient that root canal therapy was necessary for tooth No. 18. According to the record, the patient agreed that she wanted to save that tooth. On that occasion, Respondent provided J.G. a prescription for 15 tablets of Mepergan Fortis and 40 tablets of Erythromycin, 250 mg. Some treatment was given to the patient for tooth No. 18 on that date with the expectation that the patient would be seen again in 10 days. On November 7, 1986, the patient called Respondent's office complaining that she still had some discomfort and requesting more pain medication for the weekend. According to the patient's record, C.E.S. (Respondent) "okayed" a prescription for 15 tablets of Mepergan Fortis. On November 11, 1986, according to the patient's record, the patient J.G. was still having pain in tooth No. 18 where the root canal had been done. C.E.S. (Respondent) opened the root canal, re-irrigated and devoted other attention to the problem. Respondent prescribed 15 tablets of Mepergan Fortis for pain on that occasion. On November 14, 1986, patient J.G. called Respondent's office from Miami complaining of pain and saying that she would fly back in the "p.m." According to the record, the patient reported that she had one pill left and was still having considerable pain. A note was made in the record that a prescription of Mepergan Fortis in the amount of 10 tablets would be left with a person named "Kay" at the Jiffy Store. In fact, that prescription was left at the Jiffy Store to be picked-up by the patient. On November 18, 1986, Respondent completed the root canal therapy on J.G.'s tooth No. 18. The patient's record notes that the patient was to return in three weeks for core build-up. On November 18, 1986, 15 tablets of Mepergan Fortis were prescribed for the patient. On November 19, 1986, the patient's record reflects that J.G. called reporting that she had a "terrible night" and was taking pain medication 2 or 3 at a time. The record reflects that the patient had some slight swelling. Twenty tablets of Mepergan Fortis were prescribed for the patient on that date. Forty-two Erythromycin tablets, 250 mg were also prescribed. According to the patient's record, on November 24, 1986, the patient called Respondent's office indicating that there was still some swelling, that she hurt a lot and it hurt to eat. She requested more pain medication. Respondent prescribed 28 tablets of Erythromycin 250 mg and 15 tablets of Mepergan Fortis 50 mg. On December 4, 1986, Respondent saw patient J.G. concerning tooth No. 18. On that date 15 tablets of Mepergan Fortis 50 mg were prescribed. According to the patient's record, on February 18, 1987, the patient was having "severe pain" in tooth No. 31. The tooth was marked for root canal therapy and therapy was provided on that date. On that date 20 tablets of Mepergan Fortis, 50 mg were prescribed with a prescription of 40 tablets of Erythromycin 250 mg. On March 2, 1987, in relation to tooth No. 31, there was an entry made in the patient's record that the patient was still hurting and that the tooth was sensitive to cold. C.E.S. (Respondent) made an adjustment on the tooth. On that date prescriptions of 20 tablets of Mepergan Fortis, 50 mg and 40 tablets of Erythromycin 250 mg were written. On March 5, 1987, tooth No. 31 was reopened for treatment based upon the patient's complaints of pain. The patient's record indicates that the patient was to return in about a week to decide how to proceed. On March 5, 1987, a prescription of 30 tablets of Mepergan Fortis was prescribed by Respondent. On March 9, 1987, the patient's record notes that the patient was still hurting in the area of tooth No. 31 and that C.E.S. (Respondent) had determined that an "apico" was to be done on the tooth. On March 9, 1987, thirty tablets of Mepergan Fortis were prescribed. On March 10, 1987, Respondent performed an apicoectomy on tooth No. 31. According to the patient's record, on March 11, 1987, the patient J.G. called Respondent's office and indicated that Demerol made her nauseated. Instead, J.G. requested Mepergan Fortis. Respondent prescribed 30 tablets of Mepergan Fortis, 50 mg on that date. On March 13, 1987, Respondent prescribed J.G. 20 tablets of Valium, 10 mg; 6 tablets of Phenergransupp, 50 mg; 40 tablets of Mepergan Fortis, 50 mg; and 40 tablets of Erythromycin. On March 16, 1987, patient J.G. presented to Respondent's office with a drain in her tooth that had been placed by another dentist on an emergency basis. According to the patient's record, C.E.S (Respondent) stated that he would leave the drain in until tomorrow. A note in the record on that date indicates that the patient preferred to have an antibiotic and pain medications through an I.V. given at her work. It was noted that her work was in a medical facility. The patient's record indicates that C.E.S. (Respondent) stated that this would be "fine." Demerol, 50 mg/ml was prescribed for the patient J.G. On March 17, 1987, Respondent removed the drain in J.G.'s tooth. The patient's record notes that the patient was receiving pain medication through I.M. and antibiotics through I.V. The medications were being administered by a nurse at the patient's place of employment. Respondent prescribed a 3 ml bottle of Demerol injectable, 50 mg/ml and 15 ampules of Phenergran, 50 mg/ml on that date. On March 19, 1987, the patient J.G. received 30 ml of Demerol, 50 mg/ml and 15 ampules of Phenergran, 50 mg/ml. The patient's record notes that there was some adema on that date and that the patient was reported to have taken three pain shots the day before of Demerol, 100 mg each time. On March 23, 1987, a note was made in the patient J.G.'s record concerning some compressibility experienced by the patient. Respondent prescribed 30 ml of Demerol, 50 mg/ml and 5 ampules of Phenergan, 50 mg/ml. On March 30, 1987, the patient record for J.G. indicates that the patient was still on antibiotics and was "spiking" a fever. Nonetheless, there is an entry that "the tooth does not hurt." On that date Respondent prescribed 20 tablets of Mepergan Fortis, 50 mg. On April 3, 1987, the patient called Respondent's office stating that she had an earache and wanted "something for swelling." The record notes that C.E.S. (Respondent) would give medication for pain but that nothing else is necessary. Respondent prescribed 40 tablets of Mepergan Fortis on that date. On April 8, 1987, the patient record for J.G. indicates that the patient had a little residual swelling and that the "pain level" was down quite a bit. Nonetheless, the record indicates that the patient still needed pain medication. On that date Respondent prescribed 40 tablets of Mepergan Fortis, 50mg. On April 13, 1987, the patient's record indicates that the patient J.G. called and stated that she would be in Miami for the remainder of the week and requested pain medication. On that date Respondent prescribed 20 tablets of Mepergan Fortis. On April 17, 1987, Respondent saw patient J.G. in his office. The patient was diagnosed with tendonitis, grade 4. Respondent prescribed 20 tablets of Mepergan Fortis 50mg, "1 cap of 4-6 hr prn for pain." On April 20, 1987, Respondent saw patient J.G. for TMJ treatment. On that date Respondent wrote a prescription for J.G. for 25 tablets of Mepergan Fortis. Thomas Eugene Shields, II, DDS, is licensed to practice dentistry in Florida. He reviewed the patient record for J.G. that has been described in relation to the prescription of Mepergan Fortis by Respondent. In Dr. Shields' opinion as a dentist, Respondent over-prescribed Mepergan Fortis. Dr. Shields considered Respondent's prescription of Mepergan Fortis to J.G. over time to be inappropriate. In Dr. Shields' opinion Respondent's prescribing of Mepergan Fortis to J.G. on some occasions was inappropriate as to the length of time prescribed and number of tablets prescribed. Dr. Shields referred to the frequency with which Mepergan Fortis was prescribed at times, given the closeness in time for writing the questioned prescriptions. He criticized the number of pills dispensed at a given time. In Dr. Shields' opinion there is a risk of addiction if Mepergan Fortis is over-prescribed. Given the amount and the frequency of the prescriptions of Mepergan Fortis by Respondent in this case, Dr. Shields' opinion is that any patient would suffer the risk of becoming addicted to the controlled substance. In his testimony Respondent explained that he prescribed Mepergan Fortis to J.G. because she kept complaining of pain. He commented that "some people just have a low tolerance for pain." Respondent testified that some people can take Mepergan Fortis every six hours and be comfortable while other people could take two every two hours and not be comfortable, given what their physical make-up may be. In commenting on the reason for these differences Respondent stated, "I have no idea." Given the nature of the procedures the patient was receiving Respondent had reason to believe her reports of pain. In particular, Respondent testified about the fact that a root canal can sometimes cause excruciating pain and that in doing an "apico," when you go into the bone to remove part of the root "that's pretty tough, too, a pretty tough procedure." In summarizing the reasons for prescribing the amount of prescription medications given to J.G. and whether it was inappropriate or excessive, Respondent expressed the opinion that the medications given to J.G. were necessary to alleviate the pain she had. Respondent stated that "she was a difficult patient. And we get them." Dentists other than Petitioner's principal expert, Dr. Shields, and Respondent testified concerning Respondent's practice prescribing Mepergan Fortis. Dr. Robert Romans, D.M.D. testified by deposition. He specializes in periodontics. In reviewing Respondent's record concerning the treatment of J.G., Dr. Romans referred to what he saw as "a pattern of rather strong medications in both amount and numbers." He had concerns about the quantities of those drugs being prescribed by Respondent. The drugs being referred to in his remarks were Valium, Mepergan, and Demerol. On the whole, based upon the excerpted testimony from his deposition that was introduced, Dr. Romans rendered no useful opinion concerning the alleged excessive or inappropriate quantities of Mepergan Fortis prescribed by Respondent in treating J.G. Dr. David D. Woods, an oral surgeon offered his testimony by deposition concerning Respondent's treatment of J.G. His testimony was based upon Respondent's treatment record that has been described. Dr. Woods referred to the amount of narcotics given to J.G. by Respondent as "a lot of narcotics given obviously, but it really -- it really depends on a patient." Dr. Woods testified that J.G. was probably a drug seeker and a manipulator. Having considered the excerpts in the deposition, Dr. Woods did not express an opinion concerning Respondent's prescription of Mepergan Fortis to the patient J.G. that can be relied upon. Dr. John D. Zongker practices in endodontics. He is licensed in Florida. He had the opportunity to review Respondent's treatment record for J.G. that has been described concerning prescribing Mepergan Fortis and Valium. In his deposition testimony Dr. Zongker referred to J.G., through "hind- sight," as a patient who has definitely had an abuse problem and who requested a lot of medication, that it was easy to be "hood- winked" by those kinds of patients, and that it was something for which the practitioner needed to be alert. Dr. Zongker refers to the amount of narcotics prescribed as a "little high" because of manipulation by the patient. In the deposition, in addressing whether the quantity of drugs prescribed by Respondent was high in the case of J.G., Dr. Zongker said that he felt that this was an easy trap to get into where the patient may have some legitimate pain and complaint. In which case, at some point a decision has to be made about whether the pain is real. But Dr. Zongker really arrives at no opinion in that deposition testimony concerning the prescribing by Respondent. In his testimony at hearing, Dr. Zongker indicated that he considered it appropriate for a dentist to continue use of pain medication such as Mepergan Fortis as long as the dentist felt that he was still dealing with the same pain and that the dentist believed that the patient was in pain. Dr. Zongker expressed the opinion the J.G. was a patient who required more than the normal amount of medication for the procedures she was undergoing. Dr. Zongker refers to the large dosage of Mepergan Fortis in the numbers of tablets and the fact that it had extended over several episodes of different types of treatment. He refers to the necessity at some point in time to make a decision whether a patient such as J.G. has a clinical need for the medication or a psychological need. What makes it more difficult to determine in this instance, under Dr. Zongker's analysis, is that there were a number of procedures over time making it "more hazy as to what that cut-off is" for determining whether the patient's need was clinical or psychological. Having considered all of the opinions by the experts, Dr. Shields' opinion that Respondent prescribed J.G. excessive and inappropriate quantities of Mepergan Fortis on certain occasions, when taking into consideration the amounts within the prescriptions and the frequency with which they were written, is accepted. As Petitioner's counsel conceded in that party's proposed recommended order, the proof was insufficient to show that Respondent failed to keep written dental records justifying the course of treatment of J.G. in relation to patient history, consent forms for procedures performed, treatment plans, phone call logs, duplicate copies of prescriptions or other items aside from the patient record. There was significant delay in bringing this action against Respondent. Consequently, the patient history, consent forms for treatment, treatment plans, phone call logs, and copies of prescriptions that had been maintained by Respondent were no longer available nor was it necessary for Respondent to have preserved them. The patient record constituted of patient contact entries and other data had been provided to Petitioner from another source. It is adequate to explain the circumstances concerning the prescribing of Mepergan Fortis.
Recommendation Upon consideration of the facts found and the Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered finding Respondent in violation of Section 466.028(1)(q), Florida Statutes, now Section 466.028(1)(p), Florida Statutes; imposing a 60-day suspension and a $3,000 administrative fine; and dismissing the allegations in the Amended Administrative Complaint that Respondent violated Section 466.028(1)(m) and (y), Florida Statutes. DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 28th day of July, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent Maureen Diane McFadden is a physician licensed to practice medicine in the State of Florida. In December of 1975, she began the practice of medicine in St. Petersburg, Florida, specializing in internal medicine and rheumatology. Prior to moving to Florida from Ohio, she developed severe migraine headaches beginning in 1970. These headaches were often accompanied by gastrointestinal disturbances, dizziness, ataxia (unsteady gait) and temporary difficulty with vision. Respondent consulted with several medical associates concerning her headaches, and various medications were employed to help alleviate the pain. To many of the drugs prescribed, respondent developed discomforting side-effects. Dr. T. George Bidder, M.D., who treated respondent for migraine headaches during the period of July, 1974, through June, 1975, noted that the drug Periactin provided respondent with significant prophylactic relief. Dr. Thelma Maragos has known respondent for approximately twenty years and was influential in encouraging respondent to move to Florida in December of 1975. Approximately three months thereafter, Dr. Maragos went to respondent's home and found her in an unconscious state. Maragos took respondent to her home for the night where she appeared confused and unsteady. On approximately five other occasions, respondent was in the Maragos home in an incoherent condition. Concerned for respondent's health and safety, Dr. Maragos asked respondent to submit to a blood test in December of 1970. Respondent agreed and the tests showed a positive result for dilantin and/or a barbituate. Dr. Maragos has observed respondent once in her office when respondent had slightly slurred speech and an unsteady gait. This occurred in February or March of 1977. Maragos described respondent as being brilliant, conscientious and an excellent physician, with a good rapport with patients. She has never heard complaints from a patient about the care they received from respondent. Mrs. Jane Roberts was employed by respondent as her receptionist from December of 1975 until May 1, 1977. She terminated this employment because respondent told her she was closing her office and moving away from Florida. Roberts also lives across the street from respondent and, on two or three occasions, has observed respondent in and around respondent's home when respondent was unsteady and had slurred speech. On one such occasion, respondent called Roberts on a Sunday and asked her to cancel her appointments for that day. Respondent did not maintain office hours on Sundays. In August of 1976, respondent told Roberts to send her home if she was not acting right. Roberts sent respondent home and cancelled the day's appointments on two occasions after August. Over the one and one-half year period that Roberts worked for respondent, patients were cancelled approximately five times. Ms. Roberts felt that respondent was medically competent, and respondent treated Ms. Roberts and her family. On August 8, 1976, a Sunday, respondent was involved in a minor traffic accident when the front of her car struck the rear of another car. When an accident investigator arrived on the scene, respondent was confused and could not coherently answer the investigator's questions. Respondent was taken to the hospital emergency room where she remained for about three hours. Dr. Maragos was called and she took respondent home for the evening. Maragos arranged for Dr. John Thompson, a neurologist, to see respondent the following day. Dr. Thompson had an office consultation with respondent on August 9, 1976, and reported that respondent had some amnesia after the accident and had a right sided headache and pain in the right shoulder and right ribs when she left the hospital. It was Dr. Thompson's impression that respondent was suffering a toxic reaction to the drug Periactin. Dilated pupils, confusion, slurred speech and unsteadiness can be side effects of Periactin. Thompson concluded that respondent does not tolerate medication well, and advised her to discontinue the Periactin. He also told respondent to depend upon her friend, apparently referring to Dr. Maragos, and take her friend's advice as to when she should not see patients. Dr. Thompson did not make a specific return appointment but advised respondent to call him if any particular neurological problems occurred. The Suspension Order required respondent to obtain an examination from a Board certified psychiatric physician and to insure that said physician submits a written report concerning respondent's ability to perform as a medical practitioner now and in the future, or any limitations upon this ability attributable to respondent's use or abuse of drugs. Walter E. Afield, M.D., performed such an evaluation and the report was received into evidence as part of Exhibit 1. Dr. Afield reviewed respondent's medical records, consulted with two of her treating physicians, administered to respondent eight hours of testing and spent three hours with respondent obtaining her history and performing a psychiatric evaluation. He also reviewed all the reports contained in Exhibit 1. Dr. Afield testified that the history given him by respondent was not inconsistent with the reports therein. There was no indication from his interviews or the testing that respondent was not being truthful with him. It was Dr. Afield's conclusion that from a medical, psychiatric standpoint, there was no reason why respondent could not successfully practice medicine now or in the future. He found no evidence of drug abuse or of an emotional problem. On the contrary, he found respondent to be a "very healthy woman in every respect." In his opinion, respondent had no psychiatric illness of any sort and no problem with drug abuse. Dr. Bidder, who treated respondent for approximately a year, from, July, 1974, to June, 1975, reported as follows: "The severity of her discomfort from the migraine and the sleep disturbance was such that I found it necessary to try a number of drugs in an attempt to get relief for her. She followed directions with these medications and I had no evidence whatsoever of any abuse or misuse. For example, with the Valium, an agent which is frequently abused, Dr. McFadden used it only in the manner that I prescribed. I never saw any evidence of physical dependence or other signs of drug addiction in this woman. With the amount of discomfort she had, I do not find unusual the need to try, and even to use, several types of drugs as a means of seeking relief. This does not constitute drug misuse in my opinion. . ." Charles A. deLeon, M.D., treated respondent in psychoanalysis from 1969 until January of 1974. He characterized her as "scholastically outstanding, clinically apt, empathic with her patients, intellectually honest, responsible and dependable." He noted that when respondent had severe headaches, she would cancel her remaining appointments because the severity of the pain was such that she could not effectively concentrate on the work at hand. Preferring not to risk an error or mistake she would reschedule her patients to a time when the headache abated and she could function effectively once again. I felt this was not only good judgement but responsible behavior. Noting that psychoanalytic work provided an opportunity for a microscopic examination of a patient's psychic structure, Dr. deLeon never felt that respondent was sociopathic, psychotic, borderline, perverse or addictive. He concluded that she was a "thoroughly competent, responsible and ethical practitioner."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the temporary order of suspension entered by petitioner on June 9, 1977, be dismissed. Respectfully submitted and entered this 23rd day of August, 1977, In Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: George S. Palmer, M.D. Executive Director G. Robert Schultz, Esquire Board of Medical Examiners Suite 202, Driftwood Building Oakland Building, Suite 220 500 First Avenue North 2009 Apalachee Parkway St. Petersburg, Florida 33701 Tallahassee, Florida 32301 Robert A. Pierce, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301
The Issue The issues in this case, as set forth in the Amended Administrative Complaints in each respective case, are as follows: DOH Case No. 2010-01128/DOAH Case No. 11-5692 Count One. Whether Respondent, Jacinta Irene Gillis, M.D. (hereinafter referred to herein as "Dr. Gillis"), violated sections 458.331(1)(nn) and 458.326, Florida Statutes (2008 and 2009), by: Failing to diagnose patient M.G. with intractable pain prior to prescribing a controlled substance under Schedules II-V, as provided in section 893.03, from on or about December 19, 2008 through December 30, 2009; By inappropriately or excessively prescribing potentially lethal, highly abused, controlled substances, to wit: oxycodone, oxycontin, Percocet, and Valium, to M.G. without justification during the same time period; By inappropriately or excessively prescribing controlled substances to M.G. prior to exploring other treatment modalities or rehabilitation; and By failing to order a urine drug screen on M.G. at any time during her course of treatment. Count Two. Whether Dr. Gillis failed to keep legible medical records justifying the course of treatment for M.G. in one or more of the following ways: By failing to document justification for inappropriately or excessively prescribing controlled substances during her course of treatment; and By failing to document justification for not ordering a urine drug screen during the course of treatment. Count Three. Whether Dr. Gillis failed to meet the required standard of care in regards to her treatment of M.G. in one or more of the following ways: By inappropriately or excessively prescribing controlled substances without justification; By failing to confirm whether M.G. presented to a psychiatrist or psychologist after the initial referral by Dr. Gillis; By failing to order a urine drug screening of M.G. during her course of treatment; and By inappropriately or excessively prescribing controlled substances prior to exploring other modalities or rehabilitation. Count Four. Whether Dr. Gillis prescribed controlled substances, other than in the course of her professional practice, by prescribing controlled substances inappropriately or excessively in one or more of the following ways: By inappropriately or excessively prescribing controlled substances prior to exploring other treatment modalities or rehabilitation for M.G.; By inappropriately or excessively prescribing controlled substances without ordering a urine drug screening for M.G.; and By inappropriately or excessively prescribing controlled substances to M.G. without justification. DOH Case No. 2008-20661/DOAH Case No. 11-5961 Count One. Whether Dr. Gillis violated section 458.331(1)(nn), Florida Statutes (2008),1/ and Florida Administrative Code Rule 64B8-9.013(3) in one or more of the following ways: By failing to perform or document performing a complete physical exam of R.S.; By failing to explore or document exploring other treatment modalities or rehabilitation for R.S.; By failing to obtain or document obtaining a complete medical history of R.S.; By failing to document the nature or intensity of R.S.'s pain; By failing to document the current or past treatments of R.S.'s pain; By failing to document information on the effect of pain on R.S.'s physical or psychological function; By failing to develop or document developing a treatment plan for R.S.; and By failing to determine or document determining if there were any underlying or coexisting diseases or conditions for R.S. Count Two. Whether Dr. Gillis violated sections 458.331(1)(nn) and 458.326 in one or more of the following ways: By failing to diagnose R.S. with intractable pain prior to prescribing controlled substances, i.e., Percocet; By prescribing 90 tablets of Percocet 10/325 to R.S. without justification; By prescribing Percocet to R.S. without exploring other treatment modalities or rehabilitation; and By inappropriately prescribing Percocet to R.S. after R.S. reported that he was not currently being treated for pain. Count Three. Whether Dr. Gillis failed to keep legible medical records justifying the course of treatment for R.S. in one or more of the following ways: By failing to document justification for prescribing Percocet to R.S.; By failing to document a complete physical examination of R.S. prior to prescribing Percocet; By failing to document a complete medical history of R.S. prior to prescribing a controlled substance; By failing to document a urine screen on R.S.; and By failing to document a diagnosis of intractable pain for R.S. Count Four. Whether Dr. Gillis violated sections 458.331(1)(nn) and 458.326 in one or more of the following ways: By failing to perform or document performing a complete physical examination of D.H. on either of two visits; By failing to obtain or document obtaining a complete medical history on D.H.; By failing to explore or document exploring other treatment modalities or rehabilitation for D.H.; By failing to document the nature or intensity of D.H.'s pain; By failing to document the current or past treatments of D.H.'s pain; By failing to document information on the effect of pain on D.H.'s physical or psychological function; By failing to develop or document a treatment plan for D.H.; and By failing to determine or document determining if there were any underlying or coexisting diseases or conditions for D.H. Count Five. Whether Dr. Gillis violated sections 458.331(1)(nn) and 458.326 in one or more of the following ways: By failing to diagnose D.H. with intractable pain prior to prescribing a controlled substance, i.e., oxycodone; By prescribing 120 tablets of 30 mg oxycodone without justification; By prescribing 120 tablets of 30 mg oxycodone prior to exploring other treatment modalities or rehabilitation for D.H.; and By prescribing oxycodone to D.H. after D.H. reported that he was not experiencing any pain. Count Six. Whether Dr. Gillis failed to keep legible medical records justifying the course of treatment for D.H. in one or more of the following ways: By failing to document justification for prescribing 120 tablets of 30 mg oxycodone; By failing to document a complete physical examination of D.H. prior to prescribing a controlled substance; By failing to document a complete medical history of D.H.; By failing to document urine drug screening of D.H. prior to prescribing a controlled substance; and By failing to document a diagnosis of intractable pain for D.H. prior to prescribing a controlled substance.
Findings Of Fact The Department is the state agency having responsibility for monitoring health care professionals, including medical doctors. Dr. Gillis is a medical doctor licensed in Florida, North Carolina, and Iowa. She is not board-certified in any area of medicine, but claims to be "eligible" for board-certification in the field of internal medicine. Dr. Gillis received her medical degree from Meharry Medical College in Nashville, Tennessee, in 1997. She completed her internal medicine residency in 2003. Her medical career includes the following places of employment: Medical director/staff physician at Tennessee prison for women: March-August 2003; Hospitalist at Hilton Head Regional Medical Center: August 2003-February 2004; Pain management "specialist" in Atlanta, Georgia: March-September 2004; Staff physician for Illinois Correctional Facilities: September 2004-January 2005; Pain specialist/physician in Rock Island, Illinois: March-September 2005; Hospitalist at Brommen Medical Center in Bloomington, Illinois: May-August 2005; Hospitalist at Horizon Medical Center in Dixon, Tennessee: September 2005-January 2006; Pain specialist for National Health Services Clinic in Nashville, Tennessee: June-August 2006; Hospitalist at Kedlic Medical Center in Richland, Washington: September 2006-January 2007; Hospitalist at Auburn Regional Medical Center in Auburn, Washington: January-June 2007; Hospitalist at Mercy Medical Center in Sioux City, Iowa: July-August 2007; Hospitalist at Albermarle Medical Center in Elizabeth City, North Carolina: September-December 2007; Hospitalist at National Medical Affiliates in Punta Gorda, Florida: January-July 2008; Pain management specialist at UR Medical Clinic in St. Petersburg, Florida: July-November, 2008; and Pain management specialist at Dollar Medical Clinic in St. Petersburg, Florida: January 2009-October 2010. The Department is pursuing sanctions against Dr. Gillis based on her provision of medical care to three patients: D.H., and M.G. Both D.H. and R.S. are pseudonyms used by Deputies Negersmith and Johnson, respectively, as part of an undercover investigation of the clinic where Dr. Gillis was working in 2008. Their initials are used throughout this order for continuity, because all of the patient records and other evidence used those initials, rather than patient names. M.G. was a bona fide patient of Dr. Gillis's while she was operating another clinic in 2009-2010. In 2008, Dr. Gillis worked at a clinic operated by UR Medical Group, Inc., located in Pinellas Park, Florida. The clinic (referred to herein as the "UR Clinic") was owned by Renee Demasso, a non-physician. Dr. Gillis was the only medical doctor on staff at the clinic when she worked there. Another employee at the clinic was Quinton Knight, a large African- American male, who served as the office receptionist. The clinic had a "recruiter" named Jason Norris.2/ A recruiter is a person hired by the clinic to find new patients for the clinic's medical staff, i.e., for Dr. Gillis. On August 4, 2008, Negersmith, posing as D.H., was escorted to the UR Clinic by Norris. Upon arrival, he was given a patient information sheet to fill out. Norris directed him to write "severe lower back pain" on the sheet as the purpose of the visit. D.H. filled out the sheet, providing the following information: His pseudonym, address and contact information; His gender, marital status, height and weight; A fake social security number and date of birth; A fake driver's license number; His supposed occupation, i.e., a lineman for a private employer; A purported ailment, i.e., "severe lower back pain, weakness in knees" as the purpose for his visit; No insurance information; Neck/back pain and headaches as his medical history; A signature and date. All of the information provided was, of course, false. That is, D.H. was a fictitious name for a person pretending to be a patient. After filling out the form, D.H. discussed with Norris the cost of seeing the doctor. Norris said it would be a $350 charge. After approximately 45 minutes, D.H. was escorted to another waiting area, a vestibule separate from the main waiting area. After a short wait of five to ten minutes, D.H. was shown into an examination room where he met Dr. Gillis. D.H. was told to weigh himself on a floor scale and told Dr. Gillis his weight, 264 pounds. She then took his blood pressure which was 140/80. Dr. Gillis told D.H. that he might want to take some medication to lower his blood pressure. Dr. Gillis inquired as to the history of his present illness. According to the History and Physical Form (referred to herein as the patient chart) filled out by Dr. Gillis as she talked with the patient, D.H. said he had no pain (zero on a one-to-ten scale). Dr. Gillis wrote that D.H. "has difficulty explaining what he is really feeling" and that D.H. said muscle relaxers do not work for him. D.H. then told Dr. Gillis that oxycodone helps him to relax. Dr. Gillis then had D.H. perform three simple tasks: walking a short distance on his toes, walking on his heels, and raising his arms above his head. D.H. walked as directed, but he could not raise his arms higher than shoulder height because he was concealing a firearm in his waistband and raising his arms any higher would have revealed the weapon.3/ So he raised his arms up to shoulder height and then lowered them. D.H. cannot remember whether Dr. Gillis asked him why he could not raise his arms higher. Her notations on the patient chart indicate only that D.H. has less strength in his right foot (leg) and less range of motion in his left arm. At the conclusion of the examination, Dr. Gillis listed "chronic back and neck problems, chronic pain symptoms, non-specific" as the assessment and treatment plan for D.H. The lower left corner of the patient chart has an indication saying "needs records." D.H. purposefully avoided using the word "pain" throughout his examination. The only mention of pain was on the intake sheet he filled out, where he checked a box entitled neck/back pain. D.H. told Dr. Gillis that oxycodone helped him relax. She did not inquire as to whether he was taking any other medications or suggest any other modalities or treatment with D.H. After the examination, D.H. went back to the front office where he received a prescription for 120 tablets of 30 mg oxycodone and for 90 tablets of 600 mg Motrin. He handed Norris $350 in cash, which Norris then gave to Knight. No receipt was provided for the payment. D.H. then went to a local pharmacy and had the prescription filled. Pursuant to prior arrangements, he gave 60 of the oxycodone tablets to Norris for sale on the street.4/ The remaining tablets were placed into locked storage. Norris did not know D.H. was a police officer, of course. On August 27, 2008 (23 days later), D.H. appeared at the UR Clinic again. This time he was accompanied by Deputy Johnson who was posing as patient R.S. The deputies arrived at the clinic and looked for Norris, who was usually hanging around the parking lot. However, Norris was not there, and the deputies could not reach him via telephone, so they decided to go into the clinic anyway and see if they could obtain additional drugs. When D.H. and R.S. came into the clinic without Norris accompanying them, Knight became very upset and agitated. D.H. told Knight that Norris had recently changed his cell phone number, and it was not possible to contact him right then. R.S. started to walk out of the office, but Knight called him back and asked him for $350 and a copy of his identification. Knight then gave R.S. a patient information sheet to fill out. D.H. was not asked to fill out any paperwork at that time. D.H. was then escorted to the examination room where he saw Dr. Gillis again. No tests or physical examination were conducted. The only thing Dr. Gillis asked D.H. was whether he had brought his medical records with him. D.H. told her he had not had time to get them from his prior doctor yet. Dr. Gillis instructed D.H. not to come back to the clinic without his medical records. At the foot of the chart, Dr. Gillis wrote "Dr. Rew, family doctor; 2 weeks records; brought in personally." The note was not explained by Dr. Gillis. The patient chart filled out by Dr. Gillis on the second visit was extremely abbreviated in content. Under chief complaint, Dr. Gillis wrote, "patient states treatment plan is working; no complaints." The chart contains his vital signs: pulse of 142/80 and weight of 268 pounds. The history of present illness section of the form says only that D.H has a zero out of ten level of pain with treatment. She noted that has "no changes from prior testing" and added a note to "refill meds." The assessment and treatment plan section says "chronic back and neck problem." According to D.H., he never mentioned any problem to Dr. Gillis. Dr. Gillis did not inquire as to whether D.H. was currently taking any medications, but wrote, "oxycodone #120" and "Motrin 600 #90" on the current medications section of the chart. There was no physical examination of any kind performed on this visit. D.H. then went out to the office and got his prescription for 120 tablets of 30 mg oxycodone. Dr. Gillis never asked him whether he had taken all of the prior prescription, nor did she discuss pain with him. As part of his cover, D.H. intentionally avoided the use of the word "pain" when talking to Dr. Gillis. Meanwhile, R.S. completed his patient information sheet, providing the following information: His pseudonym, address and contact information; His gender, marital status, height and weight; A fake social security number and date of birth; A fake driver's license number; His occupation (carpenter work) and employer (unemployed); Purpose of visit, which D.H. listed as "stiffness in both shoulders"; No auto accident involved and no insurance available; Medical history options of high blood pressure and neck/back pain were checked in the list of various diseases and conditions listed on the sheet; An allergy to Keflex; Referred to clinic by a friend. R.S. was then taken back to an examination room where he met Dr. Gillis. He, too, contrived not to mention the word pain in his conversations with Dr. Gillis. He simply said he had a stiff shoulder. Dr. Gillis took his vital signs and had R.S. do the same physical tests that D.H. had performed in his first visit. remembers Dr. Gillis listening to his chest with a stethoscope and then examining his shoulder. The patient chart filled out by Dr. Gillis during R.S.'s visit contained the following information: "Chief complaint--Self employed; carpentry; history of surgery on back, shoulder problems one year ago; surgery and thus pain; no history of pain management." She correctly noted that R.S. was not currently on any medications. Dr. Gillis's assessment and treatment plan for R.S. was listed on the chart as chronic shoulder pain. There is no explanation for that notation. At the bottom corner of the chart, Dr. Gillis wrote "MRI of neck/shoulder; Dr. Wood, Pinellas County Orthopedic." That notation was not explained further by Dr. Gillis. R.S. went back to the front office where he was handed a prescription for Percocet 10/325, even though he never asked for medication. The Percocet was at the maximum strength (10 mg) for oxycodone content for that medication. R.S. then left the office, identified photographs of Dr. Gillis and Knight for his superiors and had no further involvement with the investigation. The testimony of Negersmith and Johnson as to their undercover actions was credible. Each of them had a clear and unambiguous memory of the events and did not appear to have any prejudices or ill intent that might negatively affect their testimony. The truth and veracity of their statements is accepted. At some point in time after the August 27, 2008, visit, the PCSO decided they had enough evidence to prosecute the UR Clinic as a "pill mill." As part of that prosecution, Dr. Gillis was pulled over in a traffic stop one day as she was leaving the clinic. After detaining her and explaining the charges that were being filed, the deputies advised Dr. Gillis to retain all patient records for patients she had been treating at the clinic. Later, Dr. Gillis cooperated with the sheriff's office and provided sets of original patient records to them. Dr. Gillis thereafter left her employment with the UR clinic and opened her own clinic. Patient M.G. presented to Dr. Gillis at her new place of employment, Dollar Medical Clinic, on December 19, 2008. Dr. Gillis was the owner and operator of this new clinic. M.G. filled out a patient information sheet which garnered the following information about him: Name, address and contact information; Marital status (married), and emergency contact information; Height, weight, and date of birth; Purpose of visit, listed as "refill on meds, follow-up on surgery." Auto accident on November 17, 2007; Insurance company information; and Medical history of neck/back pain, headaches, and arthritis. M.G. was then examined by Dr. Gillis. She filled out a patient chart for him that listed a history of surgery and treatments for pain. The patient chart lists Dr. Spuza and Dr. Nucci as physicians from whom M.G. had received care in the past. The patient chart noted that M.G. needed to be referred to a psychiatrist or psychologist as soon as possible. There was also a note indicating that M.G.'s MRI needed to be confirmed. Then there was a note written by Dr. Gillis saying "[p]atient is not going to be patient." There was no explanation as to what that note meant. The assessment and plan of treatment was then listed as "pain dependent" (although the writing on the patient chart is not very clear, and no testimony was elicited from Dr. Gillis to confirm what was written) and that the patient was advised about decreasing his pain medications. M.G. complained of pain at an eight on the one to ten scale with "treatment with oxycodone times four," presumably meaning four times per day. Upon completion of her examination of M.G., Dr. Gillis wrote him a prescription for 240 tablets of 30 mg oxycodone, 120 tablets of 40 mg oxycontin, 30 tablets of 10 mg valium, and 60 tablets of 500 mg naprosyn. According to the prescription, M.G. was supposed to take one of the oxycodone tablets every three hours, 24 hours per day, i.e., eight times per day. That was in addition to the oxycontin, which was to be taken every six hours. According to Dr. Gerber, "no pain doctor in the country would write a prescription like that." It would also be almost impossible for a patient to take all of those medications as prescribed. Approximately one month later, on January 16, 2009, M.G. returned to Dr. Gillis for the first of several follow-up visits. The patient chart filled out by Dr. Gillis that day indicates the chief complaint by M.G. to be "pain, top of buttocks radiating down leg to foot on left side." M.G. said his pain level was an eight out of ten with his medications. Dr. Gillis wrote a note to refill the medications and that there were "no acute changes" to M.G.'s condition. This time, the assessment and treatment plan was abbreviated as "A/P." This was the beginning of very cursory notes in the patient charts for M.G. The notes on the chart became shorter and less detailed as time went on. The "A/P" was listed as chronic neck pain and dental issues. Dr. Gillis then wrote prescriptions for 240 more oxycodone tablets, 120 more oxycontin tablets, 30 valium and 30 amoxicillin tablets. There is no record in the chart as to why the amoxicillin was added to M.G.'s medication regimen. There is no justification for providing essentially the same regimen of treatment when the patient was complaining of pain at a level of eight out of ten. M.G. came back for another follow-up on February 13, 2009. At that visit, Dr. Gillis charted the chief complaint as "thorac lumbar surgery [indecipherable] months ago." Again M.G. complained of a level of pain at eight out of ten when using his medications. Dr. Gillis noted her intent to refill the medications and that there were no acute changes in M.G.'s condition. His "A/P" was listed as chronic back pain. A prescription for the same medications, same doses, and same amounts as the previous visit was issued. M.G. returned on March 12, 2009, for a follow-up visit. The chief complaint at that time was "patient has difficulty [indecipherable]." Under history of present illness, Dr. Gillis wrote that M.G. has no history of pain prior to surgery and that he gets no relief from valium or Soma. There is no prescription for Soma in the records, so M.G. must have been getting that drug from some other source. There is no indication Dr. Gillis inquired as to where he got the medication, whether he was on any other medications, or how often he was taking the medication. Dr. Gillis again wrote that there were no acute changes in M.G.'s condition although he did not present with the same chief complaint. The "A/P" appears to be chronic back pain, although the writing is not clear. Prescriptions for oxycodone and oxycontin were renewed as before, and a prescription for Ambien was added. The valium prescription was not refilled. No explanation for the change in the drug regimen was provided by Dr. Gillis. On April 4, 2009, M.G. returned for another visit. This time his chief complaint was that he ran out of medications and had a seizure. There is no indication that Dr. Gillis inquired as to the type of seizure or whether M.G. had received any treatment for it. There is no evidence as to when M.G. ran out of his medications or how many pills he had taken since the prior visit. M.G. still complained of pain at a level of eight out of ten with his treatment. There is no indication of his pain level after he ran out of his medications. The "A/P" was listed as chronic back pain. The prescriptions written by Dr. Gillis for this visit were the same as the previous visit. For his next visit, May 12, 2009, there is no chief complaint listed on the patient chart. Dr. Gillis again wrote that there was no acute change in the patient's condition, that M.G.'s pain level was 6.5 out of ten with his treatment, and that the prescriptions should be refilled. The same oxycodone and oxycontin prescriptions (240 and 120 tablets, respectively) were written, along with the Ambien prescription. M.G. visited Dr. Gillis again on June 12, 2009. The chief complaint for that visit was low back pain caused by tripping over a toy car at his home. M.G.'s pulse and weight were measured, and there was a note on the chart that M.G. had "CBP" (which is presumably chronic back pain) and a toothache. A notation at the bottom of the chart said "25$," but is not explained. Dr. Gillis prescribed the same regimen of 240 pills of oxycodone and 120 pills of oxycontin. In the current medications section of the chart, Dr. Gillis wrote "Meds." That notation was not explained. As in each of the previous visits, Dr. Gillis did not perform a urine screen to determine whether M.G. had been taking the medications or not. M.G. came back to see Dr. Gillis on July 6, 2009. The chart for that visit says the chief complaint by M.G. was a surgical procedure called percantaneous distectomy and that M.G. "had care since the procedure." There is also a note that indicates "5 procedures," but the note is not explained. M.G. reported his pain level as five out of ten, with medications, and ten out of ten, without. Dr. Gillis prescribed the same, oxycodone and oxycontin medications as in the previous visits. There is no explanation as to why the medication levels were the same, even though M.G. was reporting less pain than in prior visits and had undergone surgery during the interim. M.G.'s next visit to Dr. Gillis was on August 5, 2009. His chief complaint on that day is essentially unreadable, and Dr. Gerber could not decipher it at all. There is a mention of Xanax in the chart, but its purpose is not explained. M.G.'s pain level is listed as six out of ten, with medications, ten out of ten, without. That is close to the pain levels described in the prior visit. However, without some sort of physical or functional exam or a psychological assessment, it was impossible to determine whether M.G. was functioning, no matter what his pain level. Dr. Gillis refilled the oxycodone and oxycontin prescriptions and added a prescription for ten tablets of Percocet 1/650, a minimal and almost useless dose. The "A/P" listed chronic lower back pain and seizure activities, but there was no discussion as to what seizures occurred or when. On September 9, 2009, M.G. presented with a complaint of a stiff neck. The chart mentioned an MRI, but did not explain or elaborate on it. The assessment of the patient was listed as "Ch LBP" (presumably chronic lower back pain), but there was no explanation of the relationship between the assessment and the presenting problem. There was no documentation of care in treatment on the patient chart. Dr. Gillis refilled the oxycodone and oxycontin and also added a prescription for Mobic, an anti-inflammatory medication. M.G. came back to visit Dr. Gillis on October 7, 2009. The chief complaint said M.G. had good and bad days and that the last surgery did not have good results. His pain level was down to six out of ten, with medications, and ten out of ten, without. Chronic lower back pain continues to be the assessment and treatment plan notation. Nonetheless, he was prescribed the exact same levels of oxycodone and oxycontin as all of the other visits. On November 4, 2009, M.G. returned to see Dr. Gillis. A different patient chart form was utilized by Dr. Gillis at that visit. The form includes a question, "Hello, how are you doing?" to which M.G. responded, "Terrible." M.G. said the ongoing treatment was working, but that he was not sleeping better. His pain level on that day was back up to seven out of ten, with medications. In her notes, Dr. Gillis said to "refill with adjustment with valium." There is no explanation as to why valium would be added to M.G.'s medication regimen. M.G. then visited Dr. Gillis on December 2, 2009. In response to the question about how he was feeling, M.G. said he was "planning for surgery; not doing good." He said the treatment was working and he was sleeping better. The assessment update on the chart said chronic lower back pain with exacerbations. The exacerbations were not explained. M.G. was prescribed the same medications as the previous visit. M.G.'s thirteenth and last monthly visit to Dr. Gillis occurred on December 20, 2009. When asked how he felt, M.G. answered "Alright." He said the treatment was working, but that some of his medications had been stolen. He reported not having oxycodone for nine days and oxycontin for seven days (or, possibly, not having nine oxycodone tablets or seven oxycontin tablets, the record is not clear.) He also said he had taken his medications that very day, but there was no indication in the record as to which medications he was talking about. He said his lower back pain was at a level of seven to eight on that day. Dr. Gillis did not inquire about the inconsistent statements and refilled his prescriptions anyway. The patient records for M.G. do not discuss whether he was paying for the cost of the prescriptions out-of-pocket or whether insurance was covering some of the cost. The cost of the medications would have been approximately $600.00 per month. It is clear that M.G. presented as a complex patient and was obviously receiving medical care elsewhere at the same time he was being treated by Dr. Gillis. He was apparently receiving medications from other sources at the same time Dr. Gillis was treating him. Dr. Gillis was at least somewhat aware of M.G.'s other medical care, but she never did monitoring or screening of M.G. that would have given her insight into how her treatment plan was interacting with M.G.'s other treatment. And, once Dr. Gillis saw that her treatment was not alleviating M.G.'s pain, she should have referred him to a board-certified pain management specialist. Dr. Marc Gerber was accepted at final hearing as an expert witness for the Department. Dr. Gerber is a board- certified pain management specialist who currently treats patients with pain management issues. Dr. Gerber's testimony was clear, concise, and credible. He did not appear to have any prejudice against Dr. Gillis as a person, but was very concerned about how she was practicing medicine. His testimony forms the basis for the following findings of fact. Relying upon the patient charts and patient information sheets provided by Dr. Gillis, there does not appear to have been a diagnosis of intractable pain for M.G. Intractable pain is pain for which, in the generally accepted course of medical practice, the cause cannot be removed and otherwise treated. There does not appear to have been an appropriate and complete physical examination of M.G. performed by Dr. Gillis. The oxycodone and oxycontin prescriptions for M.G. over a 13-month period are excessive. Despite her initial note wherein she advised M.G. that his medication levels must be decreased, Dr. Gillis continued the same regimen of oxycodone and oxycontin throughout M.G.'s treatment. There is no indication the medications were working, as M.G. continued to complain about pain for the entire 13 months he was under Dr. Gillis' care. Other than adding other medications, Valium, Mobic, Percocet, and Ambien for very brief periods, there was no change to M.G.'s prescription regimen. The patient charts for the visits to Dr. Gillis do not contain any justification for why the medications were prescribed in those quantities. The amount of oxycodone and oxycontin prescribed was, in itself, excessive. According to the prescriptions, M.G. was supposed to take one oxycontin every six hours. Oxycontin is a time-release medication that should only be taken once every 12 hours at most. M.G. was prescribed eight tablets of 30 mg oxycodone per day, i.e., one every four hours or two every eight hours--in addition to the oxycontin. The totality of those medications could be lethal. There are no indications in the patient charts that Dr. Gillis was taking vital signs and doing a physical evaluation of M.G. at every visit. Nonetheless, she continued to prescribe the high dosages of potentially lethal medications. Most importantly, Dr. Gillis never had a urine drug screen done on M.G. Such a test would have revealed whether M.G. was actually taking the drugs he was prescribed. It would have provided a determination of the level of drugs or other substances in M.G.'s body and then how the drugs were affecting him. A urine drug screen done at the time of M.G.'s earliest visit would have established a baseline for measuring the effectiveness and utility of future prescriptions. For a patient such as M.G., with a history of surgeries, a need for psychiatric evaluation, and a propensity to take large amounts of drugs, a urine drug screen would have been an essential element of the periodic review required for all such patients. Dr. Gillis erroneously stated that she had rejected and R.S. as patients after their first and second visits, respectively. The evidence shows that both "patients" voluntarily stopped visiting the clinic after completing their undercover work. Neither of the patients was told by Dr. Gillis not to return (although D.H. was told not to come back without bringing his medical records). Dr. Gillis did not testify at final hearing and did not provide any credible rebuttal to the facts asserted by the Department's witnesses. Dr. Gillis did demonstrate an understanding of the practice of medicine through her questioning of the Department's medical expert, but her treatment of patients R.S., D.H. and M.G. was deficient. The Department did not specifically allege, nor was there any evidence to support that Dr. Gillis intentionally practiced medicine in an inappropriate manner. However, her treatment of the patients in question indicates serious shortcomings in her ability to effectively and appropriately manage pain for her patients. Furthermore, Dr. Gillis represented herself at final hearing and, without assistance of counsel, was not able to effectively present a strong defense to the Department's allegations. Although she was given ample opportunity to testify concerning her care and treatment of the patients at issue, she declined to do so. Although the Department's perception of Dr. Gillis' treatment of D.H., R.S. and M.G. was based on its expert's review of medical records only, Dr. Gillis's refusal to testify left Dr. Gerber's perception as the only reliable source of information.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health suspending the license of Respondent, Jacinta Irene Gillis, M.D., until such time as Dr. Gillis can demonstrate competency in the practice of medicine, especially as it relates to pain management, to the satisfaction of the Board of Medicine. It is further RECOMMENDED that the final order assess the cost of investigating and prosecuting this case and that payment of such costs be a condition precedent to ending the suspension of Dr. Gillis's license to practice. DONE AND ENTERED this 3rd day of February, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 3rd day of February, 2012.
Findings Of Fact Neha was born on May 15, 2012, at Broward General Medical Center, located in Fort Lauderdale, Florida. Neha weighed six pounds nine ounces at birth. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Neha on March 20, 2013, and reviewed her medical records. In an affidavit dated April 24, 2013, Dr. Duchowny opined as follows: Neha’s neurological examination is significant only for a mild degree of hypontia coupled with very slight motor development delay. In other regards, she seems to be developing quite well and I suspect that her language development will progress on schedule. There are no focal or lateralizing findings to suggest structural brain damage. A review of medical records reveals that Neha was born by stat cesarean section at Broward General Hospital due to fetal bradycardia. She was delivered with a full body nuchal cord and a true knot that was removed at birth. There was evidence of severe metabolic acidosis-arterial blood gases drawn 11 minutes after birth revealed a pH of 6.66, PC02 of 162, P02 of 11, and base excess of -32. These values were improved on a repeat series drawn at 12:27 PM. Thick meconium was suctioned below the vocal cords and Neha was diagnosed with meconium aspiration syndrome. Seizures occurred several after birth and were treated with phenobarbital and phenytoin. As previously stated by the family, Neha was immediately enrolled in a general hypothermia protocol. Of significance, a brain ultrasound exam obtained on May 15 at 6:46 PM, was normal and an MRI scan of the brain obtained on May 23 (DOL #8) was also within normal limits. Neha’s examination today does not reveal either a substantial mental or motor impairment, findings are consistent with the lack of significant MRI findings. I believe that the hypothermia protocol in all likelihood was neuro-protective and more likely than not, contributed to Neha’s positive outcome. Given Neha’s favorable outcome, I believe that she should not be considered for inclusion within the NICA program. As such, it is my opinion that Neha Kannikal is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of Neha Kannikal. A review of the file does not show any opinion contrary to Dr. Duchowny's opinion that Neha does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma is credited.
