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 At all pertinent times, respondent Manuel P. Villaflor, M.D., held a Florida license as a physician, No. ME 0020072. Since the 1970's, he has engaged in the general practice of medicine in Daytona Beach. A former president of the Volusia County Medical Society testified that Dr. Villaflor was "a very capable general practitioner" (T. 465) and that he at one time had charge of the special clinics for indigent patients at Halifax Hospital. UNTIMELY DEATH K. D., a white male, was pronounced dead at 3:59 P.M. on October 19, 1985, a few days shy of his 34th birthday. The autopsy disclosed superficial abrasions, acute blunt trauma to K. D.'s face, scalp and right hand, and acute, diffuse subdural hemorrhage. A paper bag full of prescription medicine containers accompanied the body to the autopsy. Apparently because the labels indicated that Dr. Villaflor had written pain killing prescriptions for K. D., the medical examiner's office notified DPR. Some four months later, analysis of samples of K. D.'s blood and urine revealed that codeine, oxycodone, amitriptyline, also known as Elavil, nortriptyline, also known as Pamelor, and chlordiazepoxide, also known as Librium, had been present in the corpse in quantities "beyond the reference range for therapeutic use." Botting deposition, p. 6. The pathologist amended his initial conclusion that head injuries resulting from "multi-focal blunt trauma," id., p. 7, had caused K. D.'s death, by adding "multiple drug intoxication," id., as another cause of death. As far as the record shows, Dr. Villaflor never prescribed Elavil, Pamelor, Librium or their chemical equivalents for K. D. An osteopath whom K. D. saw toward the end of his life prescribed at least two of these medications, as well as medicine containing oxycodone. CONTROLLED SUBSTANCES UNCONTROLLED On November 15, 1985, Diane Rabideau, an investigator for DPR, called on Dr. Villaflor at his office. He was polite and cooperative. Ms. Rabideau had some difficulty understanding him; he is not a native English speaker, and he had recently suffered a stroke. But she understood well enough Dr. Villaflor's assertions that he did not believe K. D. to have been addicted to any drugs, and that he had not over-prescribed any medicine. Ms. Rabideau inspected the controlled substances kept in Dr. Villaflor's office. She found Tenuate Dospan, Restoril, Darvocet, Valium, Tylenol No. 4, Fiorinal No. 3, Xanax, Vicodin, Tylenol with codeine elixir, Dalmane, Anexsia, Centrax, "Tussend Ex. 1/2 oz.," Limbitrol, Equagesic, Phrenilin with codeine, Novahistine, Naldecon, Ativan, Nucofed, and "P.V. Tussin." When she saw them, they were not under lock and key. No inventory records reflected what was on hand and what had been dispensed. The parties stipulated that Dr. Villaflor "failed to maintain records of the[se] schedule controlled substances ... as required by Section 893.07, Florida Statutes"; and that he "failed to keep the[se] drugs ... under lock and key as required by 21 C.F.R. Section 1301.72." When Ms. Rabideau pointed out these omissions, Dr. Villaflor and his wife, who works with him in the office, said they would comply in the future. Mrs. Villaflor said she had not known of these requirements. A subsequent inspection by a DPR investigation found Dr. Villaflor in full compliance with reporting requirements governing controlled substances. K. D.'s PAIN On July 8, 1981, Dr. Villaflor saw K. D., apparently for the first time, at the Halifax Hospital Medical Center emergency room, and admitted him to the hospital. K. D. had sustained an electrical shock when he struck a high voltage power line with an aluminum ladder, as he was hurrying for shelter from a sudden rain. He lost consciousness "surrounded by a bluish flame." Petitioner's Exhibit No. 12. The electricity burned his feet and made his lower legs tender, as well. Discharged from the hospital, he visited Dr. Villaflor's office on July 15, 1981. In these proceedings, DPR does not question Dr. Villaflor's prescription of Percocet, a combination of Tylenol and oxycodone, for pain on that visit. As a teenager, K. D. had broken his collar bone in falls from motorcycles on two separate occasions. One accident involved a ride over a waterfall. When he was 21 years old, he "was smashed between a construction vehicle and a bulldozer," Petitioner's Exhibit No. 12, suffering "a severe crushing injury to his chest." Some ten years later he "still ha[d] very mobile ribs secondary to this injury," and persistent pain in his back and legs. In November of 1981, Dr. Kolin, a psychiatrist in Orlando, admitted K. D. to Orlando Regional Medical Center. A myelogram "revealed a mild L5 radicular lesion on the left, consistent with chronic myofascial pain and left L5 radiculitis." Petitioner's Exhibit No. 11. During this hospital stay, K. D.'s "narcotic medications were tapered and discontinued." Id. Dr. Villaflor sent copies of his records to Dr. Kolin, to whom Dr. Gillespie in Nashua, New Hampshire, had referred K. D. Apparently Dr. Villaflor never asked and Dr. Kolin never volunteered to forward Dr. Kolin's records to Dr. Villaflor. Gary G. Parsons, a vocation rehabilitation counselor, met K. D. on February 8, 1982. After K. D. made a perfect score on an aptitude test, a state agency subsidized his vocational training at the American Computer Institute. When K. D.'s training there concluded on January 4, 1983, Mr. Parsons tried to assist him in obtaining employment, but eventually concluded that K. D. could not hold a job because "his pain, and his limitation was greater than" (T. 283) Mr. Parsons had originally realized. K. D.'s pain or his physical condition "was primary in his conversation almost every time" (T. 283- 4) he and Mr. Parsons spoke. Even after the vocational rehabilitation file was closed on June 26, 1984, he came by Mr. Parsons' office twice. Both times K. D. seemed depressed to Mr. Parsons, who had recommended he go for counseling to the Human Resources Center, a community mental health center. Mr. Parsons saw K. D. for the last time on March 22, 1985. At least as early as August of 1984, K. D. mentioned suicide to Mr. Parsons as a possibility. In March of 1985, K. D. began weekly counselling sessions with Dr. Rafael Parlade, a clinical psychologist at the Human Resources Center. In these sessions "the two issues ... were his suicidal ideation combination with the depression, and the departure of his live-in girlfriend." (T. 273) He "still had a lot of pain." (T. 274) Dr. Parlade hoped K. D. would "increase his activities," (T. 276) so that with ... activity in his life more, he would focus away from his pain. Because for a period of time that was all he was living with. (T. 276) Dr. Parlade viewed decreasing the amount of pain medication as a secondary goal (T. 275), a result he hoped would flow from K. D.'s being less preoccupied with the pain he experienced continually. PAIN REMEDIES On January 31, 1983, K. D. visited Dr. Villaflor's office. Dr. Villaflor's notes for that day mentioned K. D.'s "Electrocution High Voltage in 7/81" and reflect a prescription for 50 tablets of Talwin. K. D.'s blood pressure, 120 over 70, is noted, and reference is made to a TENS unit, or transcutaneous nerve stimulator. Somebody at the Orlando pain clinic K. D. had visited had recommended one of these electrical devices to K. D., but it had proved ineffective against his pain. At one time or other, K. D. resorted to acupuncture and resumed wearing a corset of the kind originally prescribed for the back pain he experienced in the wake of the cascading motorcycle accident. Dr. Villaflor's office notes of April 15, 1983, record "Back Pain," a second prescription for 50 tablets of Talwin and another prescription for Xanax. On Nay 11, 1983, Dr. Villaflor's records again note K. D.'s "Back Pain" and indicate prescriptions for Xanax and Percocet. Nothing suggests Dr. Villaflor knew that Talwin had been dispensed to K. D. five days earlier, when K. D. appeared at his office on May 26, 1983. Essentially illegible, Dr. Villaflor's office notes for May 26, 1983, reflect prescriptions for Percocet and Xanax tablets, with which K. D. obtained 30 quarter milligram Xanax tablets on June 6, 1983, and 35 Percocet tablets on June 8, 1983. Xanax, a tranquilizer, is taken three or four times daily. Since Percocet in the quantity prescribed may be taken every four to six hours, it was "very much within reason" (T. 239) for Dr. Villaflor to prescribe more on June 9, 1983. When this prescription was filled on June 22, 1983, K. D. received 45 tablets. On July 7, 1983, Dr. Villaflor saw K. D. at his office for the first time in almost a month, and prescribed 35 more tablets of Percocet, also known as oxycodone with acetaminophen. The same day K. D. had the prescription filled, obtaining 35 tablets. Some three weeks later, on July 29, 1983, Dr. Villaflor again prescribed and K. D. again obtained 35 Percocet tablets. On the same day two other prescriptions Dr. Villaflor wrote for K. D. were filled, one for Atarax, an antihistamine sometimes prescribed in lieu of a tranquilizer, and one for Tylenol with codeine. This 35-tablet Tylenol prescription was refilled on September 7, 1983. With more and less potent pain medications, K. D. could take one or the other, as appropriate, depending upon the intensity of the pain. Since no other prescription for pain killing medication was written or filled until October 4, 1983, these prescriptions were, according to one of the Department's witnesses, "[w]ithin reason." (T. 243) On the October 4 visit, Dr. Villaflor noted "Back Pain from Electrocution" and recorded K. D.'s blood pressure as 138 over 70 or 80, before prescribing 45 Percocet tablets. That day, K. D. obtained the Percocet. He returned to Dr. Villaflor's office on October 13, 1983, complaining not only of back pain, but also of nausea and vomiting. Dr. Villaflor prescribed an additional 30 Percocet tablets. On October 15, 1983, K. D. acquired 50 tablets of the antihistamine Dr. Villaflor had been prescribing for him, "hydroxizine pam." On November 3, 1983, he obtained 60 Percocet tablets and 50 Tylenol No. 3 tablets. On November 12, 1983, the antihistamine prescription was refilled as was, on November 16, the Tylenol No. 3 prescription. Perhaps Dr. Villaflor wrote the antihistamine prescription two days before it was first filled. The off ice notes are difficult to decipher. He wrote the Percocet and Tylenol prescriptions when he saw K. D. on November 3, 1983, at which time he recorded his blood pressure (132 over 70) and noted "back injury." On December 2, 1983, Dr. Villaflor's office notes reflect a visit and prescriptions for Tylenol No. 3, Percocet and the antihistamine. With respect to prescriptions filled on and after November 3, 1983, but before December 2, 1983, DPR's witness testified that the amount of medication was "a little high, but it's still, you know, again, acceptable for a person in pain." (T. 246) On December 2, 1983, K. D. obtained 60 Percocet tablets and 50 Tylenol No. 3 tablets, the latter by virtue of a prescription that was refilled on December 14, 1983. On January 3, 1984, K. D. returned to Dr. Villaflor's office where he obtained prescriptions for Percocet and Tylenol No. 3. In March, Dr. Villaflor began prescribing a tranquilizer, Dalmane, instead of the antihistamine, but the new year progressed much as the old year had, in terms of Dr. Villaflor's prescriptions and documentation, and, apparently, of K. D.'s pain, as well, until early August. PHARMACIST CONCERNED On August 3, 1984, Dr. Villaflor prescribed for K. D., 200 "Sk- Oxycodone w/Apap" tablets, 200 Tylenol No. 4 tablets and 180 Dalmane capsules. K. D. had asked for them to take along to New England, where he travelled for an extended visit with his parents and others. This represented more than a two months' supply, and the prescriptions inspired a pharmacist, Paul Douglas, to telephone Dr. Villaflor's office before filling them. Mr. Douglas had called once before in the spring of the year, when he noticed that a total of 100 Tylenol (acetaminophen with codeine) No. 3 tablets and 60 tablets of Percocet (or the generic equivalent) had been dispensed to K. D. for use over a 24-day (April 2 to April 26, 1984) period. The pharmacist was concerned on that occasion because K. D. would have needed only 144, not 160, tablets during that period, if he had been taking no more than one every four hours. After his last telephone call to Dr. Villaflor's office, the pharmacist talked to K. D., telling him he would "not fill these medications again ... until the prescribed number of days." (T. 222). At no time, however, as far as the evidence showed, did the pharmacist actually decline to fill any prescription when presented. Back in Daytona Beach, K. D. presented himself at Dr. Villaflor's office on November 5, 1984, and received prescriptions for 45 tablets of Percocet, 55 tablets of Tylenol No. 3 and a quantity of Dalmane. All three prescriptions were filled the same day, and the prescription for Tylenol No. 3 was refilled on November 19, 1984. On December 5, 1984, K. D. appeared a second time after his return from up north, and Dr. Villaflor again prescribed all three drugs, this time specifying 50 tablets of Percocet and 50 tablets of Tylenol No. 3. K. D. caused these prescriptions to be filled the day he got them. The office motes for both these visits mention only electrical shock by way of explanation for the prescriptions. DOCTOR FALLS ILL On December 19, 1984, Dr. Villaflor had a massive cerebrovascular accident. He experienced "a dense hemorrhagic infarction ... sort of between the parietal and frontal temporal regions" (T. 64) of the brain. "Most people with intracranial bleeding, like Dr. Villaflor had, die." (T. 47) At least one of the physicians who attended Dr. Villaflor did not think he would survive the hospital stay. Paralyzed on his right side and unable to communicate, Dr. Villaflor did survive, and began speech and physical therapy. While Dr. Villaflor was indisposed on account of the stroke, Dr. Wagid F. Guirgis filled in for him. At no time did Dr. Guirgis and Dr. Villaflor discuss K. D. or his treatment. The day Dr. Guirgis began, K. D. came in complaining of severe pain in his lower back and legs. Dr. Guirgis prescribed Dalmane, 50 Percocet tablets and 50 Tylenol No. 3 tablets, the latter prescription being twice refillable. He suggested to K. D. that he see an orthopedist or a neurologist, and, on January 21, 1985, refused K. D.'s request to prescribe more Percocet. Later the same day K. D. went to Dr. M. H. Ledbetter's office. This osteopath prescribed 30 Percocet tablets to be taken twice daily, as well as Elavil and Tranxene. On February 4, 1985, Dr. Ledbetter prescribed the same medicines. On February 28, 1985, Dr. Ledbetter prescribed Elavil, Librium and 50 tablets of Percocet. On March 22, 1985, he prescribed the same things. On April 19, 1985, K. D. again visited Dr. Ledbetter. The same day he purchased Librium and 60 Percocet tablets at Walgreen's. Dr. Ledbetter prescribed Librium, Elavil and 60 tablets of Percocet, to be taken twice daily, when he saw K. D. on May 16, 1985. DR. VILLAFLOR RETURNS By now, Dr. Villaflor has very likely recovered from his stroke about as much as he ever will. He exercises regularly at the YMCA and has been attending medical education seminars in Orlando. (T. 76 ) Formerly right- handed, he still has a significant expressive speech disorder, walks with a cane, and has to do without the use of his right hand. His left side, however, was never affected. Dr. Klanke, the cardiologist and internist who treated Dr. Villaflor in the emergency room and for the three weeks he stayed in the hospital after his stroke, still sees him twice a year, principally as part of an effort to keep his blood pressure down. Although Dr. Klanke did not foresee his being able to, at the time of his discharge from the hospital, Dr. Villaflor returned to medical practice in May of 1985. K. D. appeared at Dr. Villaflor's office on May 21, 1985, five days after he had last seen Dr. Ledbetter. Dr. Villaflor prescribed 60 Percocet and 50 Tylenol No, 3 tablets for K. D., along with Dalmane and a vitamin (B12) injection. K. D. weighed 142 pounds that day and his blood pressure was also noted. The office notes report "same complaints." On June 18, 1985, Dr. Villaflor prescribed 60 Percocet tablets, the same number he prescribed on K. D.'s next visit, on July 17, 1985 , when K. D. limped "on left foot." In July, Dr. Villaflor also prescribed Dalmane and 50 Tylenol No. 3 tablets. On both visits K. D.'s weight (142 then 138) and blood pressure (122 then 120 over 80) were noted. On August 19, 1985, K. D.'s weight had fallen to 132 pounds but his blood pressure remained 120 over 80. Sixty Percocet tablets - one every four hours - were prescribed, as were 50 Tylenol No. 3 tablets. The diagnosis indicated in Dr. Villaflor's office notes was "electrocution." On September 16, 1985, Dr. Villaflor again prescribed Dalmane, Tylenol and 60 Percocet tablets. On October 17, 1985, K. D. limped to his last visit to Dr. Villaflor's office. His face bruised, K. D. complained that both feet were swollen, and reported that he had lost his balance and fallen down four stairs and over a concrete wall. For the last time, Dr. Villaflor prescribed Tylenol No. 3 and Percocet for K. D., 30 and 60 tablets respectively. Unbeknownst to Dr. Villaflor, K. D. had continued to visit Dr. Ledbetter, himself apparently unaware of Dr. Villaflor's renewed involvement with K. D. On June 7, July 5, July 26, August 27, September 16 and October 10, 1985, Dr. Ledbetter prescribed Librium, Elavil and Percocet. Dr. Ledbetter's office notes also reflect K. D.'s fall. REQUIRED PRACTICE Although each is "a moderate type of analgesic," (T. 324), both codeine and oxycodone are "narcotic derivatives ... [and] addictive in nature." Id. Dalmane "can be" (T. 221) "potentially addictive." Id. Because of his depression, K. D. "was not a good candidate" to entrust with several hundred pills at once. A physician who suspects addiction should limit prescriptions to "around ten to fifteen" (T. 326) tablets and "start checking with other pharmacies to make sure if a patient is getting drugs from any other source ... " Id. He should perform "very close and repeated physical exams" (T. 327) and be alert for "overdose side effects," id., such as dizziness, slurred speech, or staggering. The evidence here fell short of a clear and convincing showing that Dr. Villaflor was remiss in failing to suspect addiction, however. Dr. Ledbetter, who had similar, albeit similarly incomplete, information apparently did not suspect. The evidence did not prove the existence of side effects from the drugs Dr. Villaflor prescribed. Although, on his last visit to Dr. Villaflor's office, K. D. reported dizziness, the cause is unknown. On the other hand, his office records do not suggest that Dr. Villaflor took any steps to determine the cause of K. D.'s dizziness or of his swollen feet. Dr. Villaflor's treatment of K. D. fell below acceptable levels, if he failed to refer K. D. for periodic reevaluations of the underlying orthopedic or neurological problem, which his records suggest he did not do. His treatment was also inadequate for failure periodically to "get the medicine .. out of the system ... for a limited time" (T. 337) in an effort to learn what side effects, if any, the drugs he prescribed caused, either singly or in combination. This is so, even though the effort might have been frustrated, if K. D. had acquired the same medicines from other sources. Keeping complete medical records is important not only as a mnemonic aid for the treating physician, but also to make the patient's history available to other physicians who may succeed or assist the recordkeeper. A physician who has examined charts Dr. Villaflor kept before his stroke as well as charts he has kept since testified "that his charts, since the stroke, were in better order than they had been before he had his stroke." (T. 469). Since his stroke, his wife has assisted with the charts. Since Dr. Villaflor resumed office hours, he works no more than three hours a day. He has given up the hospital practice entirely. If he feels he is unable to treat a patient adequately he refers the patient to a specialist or, sometimes, to another family practitioner. On two or three occasions he has referred patients to Dr. Klanke, and in each case the referral has been appropriate. With respect to one of these patients, Dr. Klanke testified, "[H]e called up and told me the man had congestive heart failure and that's exactly what the man had." (T. 55). ONEHANDEDNESS Ordinarily, doctors use both hands in performing certain tasks often necessary in routine examinations. Use of a conventional sphygmomanometer requires one hand for the cuff and another for the stethoscope. "Percussion" involves placing one hand on the patient and tapping it with the other, listening carefully while, and, to some extent, feeling with the hand being tapped. Doctors usually use both hands for breast examinations. Performing pelvic examinations with only one hand "would be very difficult," (T. 82) as would be "adequate detail muscle strength testings," id., which, however, general practitioners do not do, as a rule. In case of a knee sprain, an examination to determine the range of motion is better performed with two hands. But a one-handed physician could examine the knee "and feel yes, the person is tender over the ligaments, or the joint is swollen. And in that situation he may turn around and say, `I would suggest that you see an orthopedic surgeon for treatment." (T. 86). Although the lack of the use of one hand would disqualify a physician from performing vascular surgery, for example, a general practitioner with good judgment and competent assistance can manage well enough in an office setting, with the use of only one hand. A one-handed physician can accomplish percussion with the help of an assistant who taps his hand. An assistant can support the patient's breast while a one-handed examiner palpates. Sphygmomanometers that can be operated with one hand are available. INTELLECTUAL REQUIREMENTS A physician must be able to learn if he and his patients are to have the benefit of advances in general medical knowledge, and the full benefits of the physician's own experience. Although would-be physicians are not required to attain a particular score on an I.Q. test, acquiring a medical education and passing licensing examinations require some intellectual ability. A physician "probably" (T.49) needs to be able to perform simple arithmetic. In some instances, appropriate dosages depend on the patient's weight and must be calculated; multiplication is required. Memory is essential in terms of the ability to retain medical knowledge. Although desirable, memory of a patient's history is less important, assuming adequate records are kept. Deductive reasoning is necessary in moving from a perception of symptoms to diagnosis and treatment. Pertinent questions must be formulated and communicated. Patients' answers must be understood. If patients cannot supply the answers, laboratory tests may be appropriate. It is the physician's job to make this judgment. PSYCHOLOGICAL EVALUATIONS Born in Manila on March 2, 1928, Dr. Villaflor began speaking English at an early age. The Wechsler Adult Intelligence Scale-Revised, I.Q. test, administered after his stroke, put his full scale I.Q. at 82. The examiner concluded that "his general fund of information is severely impaired," partly on the basis of these questions and answers: When asked where the sun rose, Dr. Villaflor, after a long pause, stated, "in the West." When asked how many weeks in a year, Dr. Villaflor stated, "56." When asked how many days in a year, Dr. Villaflor stated, "369." When asked how many senators in the United States Senate, he responded, "200." Petitioner's Exhibit No. 8. There was some indication that Dr. Villaflor had suffered a loss of medical knowledge, too. Asked to name the lobes of the brain, he named the frontal, parietal and occipital lobes, but omitted the temporal lobe. When a psychiatrist asked him to identify the symbols for microgram and milligram, "he was not forthcoming, he did not do this for me at that time." (T. 452). On the other hand, Dr. Villaflor answered appropriately in response to informal questioning by Dr. Derbenwick, Dr. Villaflor's treating neurologist, "with regard to common dosages of medications that would be used in, for example, treating infections." (T. 68) Another neurologist, Jacob Green, reported: Specific studies show that he could tell me it was the 26th of February, 1987, and he said "Gasville" several times instead of Jacksonville for location. He took 7 from 100, and got 93. Asked to take 5 from that and got 87 initially, then corrected it to 88. When asked which dose of Codeine would be appropriate, 1/2 gr., 1 gr. or 3 gr., he told me that the 1/2 gr. was the only appropriate dose. I asked him about Dilantin and he said he would give three a day at 100 mg. I asked about the dose of Digoxin and he says .1 and later corrected it to .25 (both these doses are correct). I gave him several hypothetical instances, such as a 50 year old male coming in with nausea and vomiting for a day and having some arm pain and some chest pain. He immediately picked up that this could be a heart attack and stated the patient should be hospitalized for further observation, which is certainly correct. DPR retained Dr. Green to evaluate Dr. Villaflor's mental status in the wake of the stroke. When Dr. Graham, the clinical psychologist, saw Dr. Villaflor, he had difficulty in naming objects; he slurred and mispronounced words. His ability to communicate verbally was and presumably is significantly impaired. (He did not testify at hearing.) Dr. Villaflor could not pronounce rhinorocerous [sic] or Massachusetts [sic] - Episcopal correctly. Houwever [sic], he could pronounce difficult medically related words ... Petitioner's Exhibit No. 8, p. 15. He could not recite the days of the week in chronological order, although he could recite them in reverse chronological order. When the clinical psychologist showed him a quarter and asked him what it was, Dr. Villaflor said, "nickel, coin, 25. He never could say "'quarter'" Petitioner's Exhibit No. 8, p. 14. Dr. Villaflor told Dr. Graham that his mathematical ability was the same after his stroke as before, and this may be so. The psychologist reported, however: He was unable to subtract 85 from 27 [sic] giving the answer 48. He was unable to multiple [sic] 3 times 17 correctly giving the answer of 44. Petitioner's Exhibit No. 8, p. 10. Dr. Miller testified that, when he asked Dr. Villaflor to multiply two times 48, Dr. Villaflor answered 56. On the other hand, Dr. Derbenwick, the neurologist, reported that Dr. Villaflor "was a little bit slow on complex calculations, [but] performed simple calculations without too much trouble." (T. 68) Altogether the evidence showed that Dr. Villaflor is not good at arithmetic, but did clearly establish to what extent his stroke was responsible. It was clear that the stroke, or some other impairment of the central nervous system, has affected Dr. Villaflor's intellectual functioning in many particulars, however. "All areas of the central nervous system are dysfunctioning." (T. 134) He was unable to repeat five digits in the order they were spoken. He was unable to repeat three digits backwards. His "short term auditory memory" is such "that his ability to remember factual information reported to him is severely impaired." Petitioner's Exhibit No. 8, p. 9. His visual memory is also impaired. (T. 145). Any score above 50 on th[e Category Booklet T]est is indicative [of] central nervous system impairment." Id p. 10. Dr. Villaflor scored 114 on this test, designed to measure "current learning skills, abstract concept formation, and mental efficiency." Id. Except for three scales - "Reading Polysyllabic Words," "Concept Recognition," and "Reading Simple Material" - Dr. Villaflor's scores on the Luria-Nebraska tests indicated central nervous system impairment. "Any interference between memory tests results in his inability to recall material on the first test." Id p. 16. "He is unable to recall more than two or three discrete units of information on a consistent basis." Id., p. 19. Dr. Villaflor visited Ernest Carl Miller, a psychiatrist, twice at DPR's behest. While he viewed Dr. Villaflor as "obviously an intelligent man" (T. 451), he reported problems with arithmetic; and noted Dr. Villaflor's "tendency to be somewhat concrete; that is verbally." Id. Dr. Miller concluded that Dr. Villaflor "would be better not engaged in the active practice of medicine." (T. 455). As Dr. Miller sees it [A]part from any discrepancy in knowledge, medical knowledge, which he may have as a product of his massive stroke, there may be stresses imposed on him by practice, which is adversely affecting his blood pressure and his physiology. (T. 455). Dr. Miller also reported that Dr. Villaflor did not, in the case of hypothetical cases they discussed, suggest a liver enzyme study to confirm a diagnosis of cirrhosis of the liver; and, in another instance, said that chest pain might indicate mitral valve prolapse. SURVIVING PATIENTS CONTENT Dr. Villaflor's stroke does not seem to have diminished his popularity with his patients. Some of them, like Vivian Patterson, do not believe the stroke has affected his mental ability. Georgetta T. Rogers, a nurse who suffers from high blood pressure and gout is impressed with Dr. Villaflor's thoroughness. She finds him easier to understand since the stroke than he was before. Frank Runfola, who views Dr. Villaflor as "a throwback to the old time doctor" (T. 428), testified that the physical examinations Dr. Villaflor has performed on him have been no less thorough since the stroke than they were before. Marilyn McCann, a patient for some ten years, has noticed no difference in the way Dr. Villaflor practices medicine since the stroke, except as far as his using his right arm. She testified that he still looks up whatever medications he's going to give me, he looks up whatever he has to do, and checks it out thoroughly to make sure what examination I have to have in the office. If I have any complaints, he does check them very thoroughly, he makes sure. (T. 433) John Peterson, Dr. Villaflor's patient for 15 years, has not "seen too much difference in [Dr. Villaflor's] alertness" (T. 445) since the stroke. On at least one occasion since Dr. Villaflor's stroke, David Smith took his father-in-law to the doctor's office. While Dr. Villaflor was checking the patient's blood pressure, he looked up at Mr. Peterson and said "Is your throat sore?"; and I said, "No sir." He said, "Let me see"; so I opened up my mouth and he looked in there and he said, "Your throat[']s, all red," he said, "It's infected"; he said, "and that's what's causing your eye infection." I had an eye infection ... He prescribed some medicine for me, and two days later the eye infection was cleared up and my throat wasn't red. (T. 485-6) On another occasion, after the stroke, Mr. Smith complained to Dr. Villaflor of dizziness. Dr. Villaflor diagnosed an ear infection and prescribed medicine. The dizziness abated. Like her husband, Sharon Smith believes Dr. Villaflor seems unchanged intellectually by the stroke. Liliosa Bohenzky, who suffers from hypertension and rheumatoid arthritis, believes the examinations Dr. Villaflor performs twice or four times a year on her back, neck, arms and shoulders, have been as thorough since the doctor's stroke as they were before. Rene Stenius, who has been a patient of Dr. Villaflor's for 12 years, "was very pleased when he did come back to work, even in a somewhat diminished capacity." One day in January of last year, Ms. Stenius stopped by Dr. Villaflor's office, although she had no appointment and had not indicated beforehand that she was coming. She had not seen Dr. Villaflor for three or four months. Nobody was in the waiting room until she arrived. When she was taken into an examining room, her chart accompanied her. Before he examined the chart, Dr. Villaflor inquired, "`Are you still taking a half a pill every six days?'" (T. 517) This was a reference to medicine for her hypothyroid condition that he had in fact prescribed some months back for her to take at the rate of a half pill every six days. It was on this same visit that Dr. Villaflor prescribed Tranxene for Ms. Stenius. Since the stroke he dictates prescriptions to his wife, then signs with his left hand. "Most physicians have the nurses fill out the prescriptions, if you really want to know the truth." (T. 51) When she wrote 375, he said, "`No, no, point'" and he was hitting the ... decimal point, and he was saying, `point, decimal,' `telling her where the decimal should be." (T. 519) Once the decimal point had been supplied, he signed Ms. Stenius' prescription for 3.75 milligram doses of Tranxene. Mrs. Villaflor, trained as a nurse but not licensed in Florida, began assisting her husband when he resumed practicing after his stroke. He asks the patient what his complaint is and she writes down the complaint. In measuring patients' blood pressure, she attends to "the cuff and he would read it," (T. 507) and tell her the reading, which she would write down. After he checked a patient's lungs, he might say, "`[C]lear, very good,'" id., which Mrs. Villaflor would write down. Mrs. Villaflor assists in examinations. For example, Ms. Stenius reported that she "helped with the insertion of the tool for the pap test, but Dr. Villaflor actually took the culture for the examination." (T. 515). When Dr. Villaflor examined patients' breasts, the patients themselves generally assisted. Under his direction, Mrs. Villaflor draws medicines from vials, swabs skin with alcohol and sometimes holds the skin while Dr. Villaflor administers intramuscular, intradermal and subcutaneous injections. A SAMPLE OF TWO DPR's own experts, Dr. Miller, the psychiatrist, and Dr. Green, a neurologist, agreed with a number of Dr. Villaflor's witnesses that the most appropriate means for determining whether Dr. Villaflor could practice reasonably skillful medicine reasonably safely would be to monitor his practice -- Dr. Green suggested monitoring for a week -- and to have physicians review the ... actual office records to check the appropriateness and quality of care. Dr. Green's letter to Mr. Coats dated February 14, 1986. Despite their consultant's advice, over a year before the final hearing took place, to do so, DPR never monitored Dr. Villaflor's practice nor caused any review of his charts to be undertaken. A family practitioner and an internist, both of whom practice in Daytona Beach, did monitor Dr. Villaflor briefly one afternoon, at Dr. Villaflor's lawyer's request. They observed him interview and examine two patients. He "would ask the patients questions which appeared to be adequate, as far as their complaints were concerned." (T. 470) If a patient could not understand him, his wife "interpreted." Dr. Villaflor examined each patient's "head, the heart, the lungs, their abdomen, their extremities." (T. 473). In the opinion of one of the doctors who monitored Dr. Villaflor's examination and treatment of these two patients, Dr. Villaflor's medical judgment "was quite adequate for the complaints they had and for the findings of his physical examination." (T. 470) At least one of the doctors examined an unspecified number of Dr. Villaflor's charts that afternoon and found them to be "quite adequate." The other monitor did not testify. SKILL AND SAFETY Dr. Villaflor has indicated and the evidence showed that he referred patients he felt he could not treat adequately himself. But there is a question how well he succeeds in identifying such patients. To some extent people can be counted on to recognize a medical emergency on their own and to seek out an emergency room, of which there are a number in the Daytona Beach area. A cardiologist testified he sees only about two seriously ill patients a year in his office. (T. 59) Nor are all medical problems difficult to diagnose. "Anybody in medicine can be right ninety-five percent of the time." (T. 55) But symptoms as familiar as fever and headache can be manifestations of the most serious disorders. A physician in private practice cannot prevent seriously ill people from presenting themselves in his office. Jacob Green, the neurologist DPR retained, testified that Dr. Villaflor is unable to practice medicine with reasonable skill and safety. Green deposition, p. 11. He was the only witness who so testified. When DPR sought to adduce the clinical psychologist's opinion as to Dr. Villaflor's ability to practice medicine safely and skillfully, objection was sustained on grounds that, Dr. Graham not being a medical practitioner, his opinion was not competent. Dr. Green posed a hypothetical case to Dr. Villaflor, when he saw him on February 26, 1987: [A] 60 year old male ... with a history of a fever of 101 degrees, achiness all over and a headache for two days. Dr. Villaflor said such a patient's blood pressure should be checked, and that he would prescribe "Tylenol for migraine." But fever does not necessarily accompany migraine headaches, and might, in conjunction with a persistent headache, be a symptom of encephalitis or meningitis. Green Deposition, p. 8. The record does not show how, frequently encephalitis or meningitis occurs either in the general population or among feverish 60-year old men with two-day- old headaches. Dr. Klanke, the cardiologist to whom Dr. Villaflor has referred two or three patients since resuming his practice, testified he had not noticed "any change [as a result of the stroke] in [Dr. Villaflor's] medical perception, or judgement, [sic] in dealing with the patients" he referred to Dr. Klanke. Dr. Derbenwick, like Dr. Miller, offered no opinion on how skillfully or safely (to others) Dr. Villaflor is able to practice medicine. Dr. Carratt, the only witness who had examined Dr. Villaflor's charts and watched him practice, albeit briefly, since he had suffered his stroke, testified that Dr. Villaflor could practice "reasonable medicine" as "long as he realizes his limitations." (T. 471.)
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, respondent Herbert F. Johnson was licensed as a medical doctor in the State of Florida, and practiced in Tampa, Florida. The majority of his practice has been in the field of radiation therapy, oncology and the treatment of cancer patients. In approximately June of 1980, respondent began a general practice in Tampa and continued there until the latter part of March, 1981, when he moved his practice to Bryson City, North Carolina. On February 26, 1981, Leonard F. Torres, a thirty-one year old man who listed his occupation as an airline technician (radio) with Eastern Airlines, visited respondent's office with complaints of back pains. The respondent's medical records do not reflect that Torres was given a physical examination or that any diagnostic studies were undertaken by respondent to confirm Torres' complaints of back pain. Between February 26, 1931, and March 24, 1981, respondent prescribed 320 tablets of Dilaudid, 4 mg. strength, for Mr. Torres. The medical records indicate that one 4 mg. Dilaudid prescription for 100 tablets was given because Torres was going to be out of the country for 4 to 6 weeks, that another was renewed for 100 tablets because Torres was departing for a period of 4 to 6 months and that another 100 tablet prescription was renewed because Torres did not have the prior prescription filled within the 48 hours allowed for Dilaudid. The medical records prepared by respondent for patient Torres do not justify the prescription of 320 tablets of 4 mg. strength Dilaudid. Proper medical practice requires a physician to attempt to find the systemic origin of a complaint of back pain. This may include the use of x- rays, a myelogram, or referral to an orthopedic surgeon. A physician can not properly treat a patient without knowing what is wrong with the patient. Patient Patti Hendrix first visited respondent's office on February 11, 1981, complaining of headaches and vomiting. The respondent's medical records reflect that respondent examined her eyes, her throat and took her blood pressure. Along with other medications, respondent prescribed 30 tablets of 4 mg. strength Dilaudid for Miss Hendrix on this first visit. She appeared at respondent's office again on February 15, 20, 27 and March 4, 9, 13 and 25, 1981, and each time respondent prescribed an additional 30 tablets of Dilaudid, 4 mg. strength. The respondent's medical records reflect no further physical examination or diagnostic studies for patient Hendrix's complaints of headaches. On one occasion when she received a prescription for Dilaudid, March 13th, respondent's records note that Miss Hendrix was "totally free of headaches for the last two days." Her other complaints included sinus infection and cold sores or blisters. It is acceptable medical practice to prescribe Dilaudid for headaches only in acute situations after the trial of other medications. A patient suffering acute head pain should be referred to a neurologist. Danny Springer, age 31, first visited respondent's office on February 27, 1981, complaining of pain in his foot following an earlier surgery. The pain was of an arthritic type. Respondent did order blood tests on this patient, but no radiological or other diagnostic tests were performed. Mr. Springer was prescribed 30 tablets of Dilaudid, 4 mg. strength, on the first visit. The respondent's Medication List for Mr. Springer indicates that 50 tablets of Dilaudid were prescribed on March 2, 100 on March 4 and another 100 on March 10, 1981; for a total of 280 tablets in less than two weeks. Respondent's medical records indicate that Springer was given 100 tablets on March 4 because he was leaving the state for 3 to 5 weeks, and was given another 100 tablets on March 10 because he "lost his medication." The respondent's Medication List for patient Robert A. Korynas, 21 years of age, indicates that he received four Dilaudid prescriptions from respondent for 100 tablets each, 4 mg. strength, between February 18 and March 23, 1981. This patient complained of back pain on his first visit of February 17, 1981. Respondent found muscle tightness in the patient's back and the medical records reflect that the only physical examination performed was an elevation of the patient's legs. On that first visit, Emperin No. 3 was prescribed. On the following day, February 18, without further notation in the medical records, the patient was prescribed Dilaudid, 4 mg. x 100. Respondent's medical records note that on a March 12th visit, "he is getting the back pain under control." Another 100 tablet prescription for Dilaudid was given the patient. On March 20, 1981, respondent noted that the patient "experienced definite improvement with the use of Robaxin and DMSO," but lost his prescription for Dilaudid. A new prescription was given. The medical records reflect that three days later, on March 23, the patient stated that his prescription was lost last week and "a new prescription was given today for Dilaudid x 100." There is no indication in the medical records of patient Korynas that any diagnostic studies, such as x-rays, were undertaken to define the origin or extent of the patient's alleged back pain. Patient Charles Goodwin, a 36-year-old truck driver, first visited respondent's office on February 13, 1981, with complaints of pain in his left leg near the site of a steel rod placed there after a fracture. The patient stated that he had been using Dilaudid for control of his pain. The only notation in the respondent's medical records indicating treatment afforded this patient on the first visit were a blood pressure reading of 218/140, and notes that old surgical scars were present on the patient's ankle and that there was no localized tenderness or redness to suggest infection. The patient was given a prescription for 50 tablets of Dilaudid 4 mg. strength, on this first visit. On subsequent visits, the patient's blood pressure was checked and blood lab tests were performed on February 27, 1981. The respondent's medical records reflect that Dilaudid, 4 mg. strength, was prescribed for Goodwin in doses of 100 tablets each, on the following dates: February 18 and 26, and March 6, 13, 20 and 26, 1981. The patient received a total of 650 tablets of Dilaudid in a period of six weeks, in spite of respondent's notations in the medical records that the patient was advised to take aspirin or bufferin for pain "rather than depending exclusively on Dilaudid" (March 6), that "he is requiring a lot of Dilaudid" (March 13) and "I've advised him at this time to decrease the Dilaudid to one every four hours and after 3 days to start increasing the interval between medications" (March 20). Between February 4, 1981 and March 26, 1981, patient Norman Clyde Snyder, a 35-year-old construction worker, received from the respondent prescriptions for 570 tablets of 4 mg. Dilaudid. This patient had sustained back injuries in the past and complained of pain. Respondent diagnosed a herniated disc after a physical examination. His prescriptions for Dilaudid from respondent were received on the first visit of February 4 (20 tablets), and again on February 9 (100 tablets), February 13 (100), February 27 (100), February 28 (100), March 9 (30), March 16 (30), March 17 (30), March 23 (30) and March 26 (30). The respondent's notations in the patient's medical records indicate that, on February 13, the patient was going to Oregon for "possible 2 to 4 months," that on March 5, the patient was advised by respondent "to start tapering down on the Dilaudid since he is taking too much at the present time," that on March 9, the patient lost his medication in an automobile accident, that on March 16, respondent advised him "to start tapering rapidly on his medication and stretch out to 8 hours between doses," and that on March 17, the patient's medication was taken out of his jacket at the pool hall." Phyllis Myers, 37 years old, received from the respondent eight prescriptions for Dilaudid, 4 mg. strength, between February 6 and March 26, 1981, for a total of 600 tablets. She complained of having a history of urinary tract infections with attendant back pain. On her first visit on February 6, 50 Dilaudid tablets were prescribed. The Medication List reflects that another 100 were prescribed on February 11, though the medical records do not reflect that respondent saw her on that date. The respondent's records for this patient indicate that on February 21, the patient advised respondent that she would be in Miami for the next three weeks. She received a prescription for 100 tablets of Dilaudid. On February 27, the patient came in and received another prescription for Dilaudid, 100 tablets. Again, she was to be in Miami for a week and a half. On March 3, the records state that Myers came in and had been robbed of her money and medications in Miami. Again, another prescription for 100 tablets was given, though this is not reflected on the Medication List. Prescriptions for 50 tablets of Dilaudid were given on March 16 and 17, the medical records reflecting that "husband beat pt. and stole medicine." A urinalysis and lab report was obtained by respondent for this patient on March 5, some one month after her first visit and after 350 tablets of Dilaudid had already been prescribed for her. Dale J. Schepman, a 31-year-old long-distance truck driver, first visited respondent on February 24, 1981, with back pain complaints. Respondent performed a physical examination and found muscle tenderness and tightness and a small inguinal hernia, acute pharyngitis and early tonsilitis. Respondent prescribed 50 tablets of Dilaudid, 4 mg. strength, on this initial visit. The respondent's records reflect that the patient was given additional prescriptions for Dilaudid on February 27 (50 tablets), March 10 (50), March 19 (50) and March 26 (100), for a total of 300 tablets in a one month period. No x-rays or other diagnostic studies were undertaken on this patient by respondent. Belinda Hagan, a 25-year-old employed by Eastern Airlines, first visited respondent's office on March 9, 1981, complaining of severe headaches and stating that she had used Dilaudid in the past. Respondent's impression was that she had acute frontal sinusitis. Among other medications, respondent prescribed 20 tablets of Dilaudid, 4 mg. strength, on this first visit. The respondent's medical records reflect that the patient returned to his office on March 24, stating that she had been raped on March 18, and was unable to sleep since that episode. She requested Dilaudid to allow her to sleep and relax, and respondent again prescribed 20 tablets. On the following day, March 25, the patient again came into respondent's office, stating that she "lost her medication in the parking lot yesterday." Respondent prescribed another 20 tablets of Dilaudid for her. Between February 6, 1951 and March 26, 1981, Edward E. Cohran received from the respondent prescriptions for 430 tablets of Dilaudid, 4 mg. strength. This patient, a 44-year-old truck driver, complained of severe back pain, had a herniated disc and was significantly overweight. Respondent did have his medical records from a recent hospitalization. The medical records reflect that on one occasion, respondent was told that the pharmacist would not honor the prescription because it was not timely presented for filling, and that on another occasion, the patient reported that he lost his prescription. Harry Allen Rockwell, a 41-year-old long-distance truck driver, first visited respondent on February 26, 1981, with pain in his right flank, tenderness in the right side of the abdomen and a history of renal stones. The medical records do not reflect that any laboratory or other diagnostic tests were performed by respondent on that first visit, or any time thereafter. One hundred tablets of Dilaudid, 4 mg. strength, were prescribed by respondent. Some seven days later, patient Rockwell was again prescribed 100 tablets of Dilaudid. While the medical record for March 5th reflects that he was given refills because he "lost all his medication on his last trip out of town," the Medication List indicates that the Dilaudid was "replace[d]" on March 6th. Patient Ken Williams, a 31-year-old construction worker, was prescribed 30 tablets of Dilaudid by respondent on his first visit on February 5 and an additional 230 tablets on the following seven visits between February 10 and March 16, 1981. This patient suffered back pain following a 1978 automobile accident, according to respondent's medical records. Other than the performance of manipulation by the respondent, the medical records do not indicate that other diagnostic testing was performed on this patient. Jackie A. Knecht, 33 years old, first visited respondent's office on February 19, 1981, with complaints of back pains resulting from an injury two years ago. After an examination, respondent found some muscle spasms and evidence of a curvature within the spine. On this first occasion, respondent prescribed 100 tablets of Dilaudid, 4 mg., for the patient. On March 4, 1981, patient Knecht again visited respondent and his notes reflect that the use of DMSO and Norflex "gives her complete relief. With these results, the patient is planning to taper off her dependence and need for Dilaudid. I've advised her to take 1/2 tablet, rather than a whole tablet as needed." A prescription for 100 tablets of Dilaudid, 4 mg., was given the patient on March 4th. A similar prescription was given her on March 9th because the patient told respondent that her purse and medication were lost at the beach. Neither x-rays nor other diagnostic studies were undertaken for this patient. Eighteen-year-old Susan Burns received five prescriptions for Dilaudid from the respondent between February 26 and March 18, 1981, for a total of 170 tablets, 4 mg. strength. This patient came in with complaints of pain in the right flank which respondent diagnosed as chronic urinary tract infection. On the first visit, she indicated that Dilaudid gave her pain relief and she was prescribed 30 tablets. A urinalysis was not performed until the second visit on March 5, with the result not available until March 7. She was prescribed an additional 30 tablets on March 5, and the Medication List indicates that 30 tablets were prescribed on March 6 as a "replace T for 3/5/81." On March 13, 30 more Dilaudid tablets were prescribed and respondent noted that he would see her again in ten days. Five days later, on March 18, patient Burns visited respondent again. The respondent's medical records note that Burns planned to go to New York for a couple of weeks and that she had noticed further improvement in her symptomatology. A prescription for Dilaudid, 50 tablets, was given her on this occasion. Respondent's notes state "will not see her again." Dilaudid is a strong, addictive narcotic utilized in some instances to relieve acute pain. It is seven to eight times more potent that morphine and is similar in effect to heroin. Its usage is justified in situations of acute, almost debilitating pain and for terminal illnesses. In those instances, the maximum and safe dosage of Dilaudid, 4 mg. strength, for outpatients is one tablet every six hours. It is best to start a patient on the weakest of analgesics and if Dilaudid is used, the recommended dosage is 2 mg. strength. Because of its highly addictive quality and extreme potency, Dilaudid should be a medication of last choice for the control of pain. It does not cure a condition; it only relieves acute pain. In a noninstitutional setting, it is not good medical practice to prescribe more than 20 to 30 narcotic tablets at one time. The use of strong narcotics is not the proper manner to treat chronic pain. Patients develop a tolerance to the drug and this requires increased dosages, thus resulting in physical and psychological dependence. Addictive drugs should be avoided with chronic conditions. There are common ploys utilized by "patients" who are abusing or trafficking in narcotics and a physician should be, aware of such signals. These include a request by the "patient" for a specific narcotic, an alleged history of being unable to tolerate other milder drugs and excuses of losing a prescription or having the medication stolen. A radiation therapist who has treated cancer patients should know about pain and proper medications and procedures for controlling and alleviating pain. Respondent has been active in an alcohol detoxification and rehabilitation program in Tampa, a service for which he received the "Service to Mankind" award by the Sertoma Club of Tampa. During the years 1972 through 1974, respondent was also actively involved in drug awareness Programs in Tampa. Respondent did not feel that any of the fourteen patients referred to above manifested symptoms of drug addiction on their first visit. He admits that he would not today have any of the fourteen as patients after the second visit. He further admits that the medical records for these fourteen patients do not justify the prescriptions given for Dilaudid and that the quantities prescribed were so great and so frequent as to be inappropriate. The respondent's stated reason for continuing to see these fourteen patients and continuing to prescribe Dilaudid for them is that he was asked to do so by Detective Gates with the narcotic division of the Tampa Police Department. Respondent testified that he had discussions with Detective Gates over a four to five week period in late February and early March, 1981, that several patients were discussed, that Gates never asked respondent who his other patients were but that Gates did tell him to keep treating and issuing prescriptions to "all his patients." The undersigned does not find this testimony to be credible. Detective Gates first met respondent on March 25, 1981, in respondent's office. While there is conflicting evidence regarding the subject matter of the discussion between respondent and Detective Gates, it is concluded that respondent was not instructed to continue to issue Dilaudid prescriptions to all his patients. Even if he were so instructed, it would not be good medical practice to follow such instructions. Respondent closed his office and his medical practice in Tampa on March 26, 1981. He moved to Bryson City, North Carolina and opened an office for medical practice there on April 1, 1981. Respondent knew as early as the first weekend of February, 1981, that he would be closing his Tampa office and moving to North Carolina.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(1)(q) and (t), Florida Statutes, and that his license to practice medicine in the State of Florida be revoked. Respectfully submitted and entered this 10th day of November, 1982. DIANE D. TREMOR, 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 10th day of November, 1982. COPIES FURNISHED: Grover C. Freeman, Esquire Freeman & Lopez Suite 410 4600 West Cypress Avenue Tampa, Florida 33607 Howard L. Garrett, Esquire Garrett & Garrett Suite 202 518 Tampa Street Tampa, Florida 33602 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues to be resolved are whether Respondent, Robert B. Dehgan, M.D. (Dr. Dehgan or Respondent), committed sexual misconduct in violation of sections 456.072(1)(v) and 458.331(1)(j), Florida Statutes (2014), with respect to patients A.S., S.M., and C.T.; and if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and upon the entire record of this proceeding, the following factual findings are made: Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent was a licensed medical doctor within the State of Florida, having been issued license number ME16903. Respondent’s address of record is 220 Paseo Terraza, No. 307, St. Augustine, Florida 32095. Respondent originally practiced as an orthopedic surgeon. However, Respondent experienced some professional difficulties in the mid-80s that resulted in his seeking and completing retraining in the area of physical medicine and rehabilitation.1/ He is board certified in physical medicine and rehabilitation. At the time of the allegations giving rise to this case, Respondent was practicing pain management with a practice entitled “Jacksonville Multispecialty Group, LLC” (JMG), and held the necessary certification from the United States Drug Enforcement Agency to prescribe Suboxone and Subutex. Suboxone is a brand name for buprenorphine, a synthetic opioid, which is a controlled substance and is generally used to treat opioid addiction. Subutex is also a brand name for buprenorphine. Unlike Suboxone, Subutex does not contain naloxone, an additive used in Suboxone to prevent overdosing. Subutex is prescribed for pregnant patients and those patients who cannot tolerate Suboxone. The office policy for pain management patients at JMG, consistent with most similar health care providers, was to obtain a urine sample for a 12-panel test at each visit. The purpose of the drug testing was to insure that pain management patients were abiding by the contract that they sign, and taking only the medicine prescribed to them. If a patient is compliant, the test results should show the existence of the drugs prescribed in his or her system, and none others. If a patient is not compliant, it is a basis for dismissing the patient from the physician’s practice. The urine sample given at each visit is used for a test performed in the office, and tests for 12 drug classes. The results from the 12-panel test are presumptive only. If any results are positive that should not be, the sample is sent to a laboratory that does complex testing for confirmation. The confirming laboratory then performs a liquid chromatography mass spectrometry (LCMS). The LCMS is a very specific test that provides confirmation for drug use and drug classes, and rules out the possibility of false positives that may occur with a point-of-care test. According to Dr. Bruce Goldberger, M.D., a professor and the director of toxicology at the University of Florida College of Medicine, LCMS is the more accurate test and is considered the gold standard in drug testing. Dr. Goldberger’s testimony is credited. Patient S.M. Patient S.M. received medical care from Respondent from March 12, 2014, through August 27, 2014. S.M. saw Dr. Dehgan or an Advanced Registered Nurse Practitioner (ARNP) under his supervision approximately every four weeks during this time period. At the time of her initial presentation to JMG, S.M. was 44 years old. S.M. had been prescribed opiates in response to a badly sprained ankle and some dental surgery, and as a consequence, became addicted to them. She testified candidly and credibly at hearing that as a result of her addiction, she sought both prescription and illegal street drugs, including heroin, methadone, oxycodone, and hydrocodone. S.M. was frightened by her behavior, and sought treatment in order to get clean and to be a better role model for her daughter. Respondent treated S.M. with Subutex,2/ and she responded well to the treatment and has managed to refrain from using opiates and other illegal drugs. She had no complaints regarding Respondent’s treatment plan for her and felt she benefited significantly from his treatment plan. When a patient would come to the office at JMG for a follow-up visit while on Suboxone or Subutex treatment, the patient would fill out a therapy progress report. The therapy progress report asked the patient a series of questions, such as “please describe any life changes, triggers, or stressors that have occurred since your last visit,” “list your ideas and plan to cope with these life changes, triggers, or stressors,” and “what is your next short-term goal?” S.M. routinely completed these therapy progress reports and recorded in the early reports how much better she was feeling, and that she was not experiencing any cravings. Dr. Dehgan ordinarily reviewed the therapy progress report at the time of a patient’s visit if it was available. S.M. saw Dr. Dehgan approximately every four weeks. The first three visits were routine and uneventful. However, at her visit on May 30, 2014, S.M. remarked on her therapy progress report that she was anxious because her daughter was getting ready to leave for Canada for the summer, and she had been fighting with her ex-husband regarding finances. She talked to Dr. Dehgan about her anxiety, and mentioned that she had taken a second job working on the weekends at the beaches in St. Augustine and the Palm Coast area. Dr. Dehgan told her that he lived on the beach and asked if he could give her his cell phone number, and maybe he could take her to lunch. S.M. said okay, because she did not know what else to do. He handed her a slip of paper with the phone number on it, and she put it in her purse. When she stood up to leave, Respondent hugged her and attempted to kiss her, ultimately kissing the side of her face near her ear because she turned her head away from him. The door of the examination room was closed, and there was no attendant or ancillary personnel in the room at the time Dr. Dehgan hugged and attempted to kiss S.M. S.M. was shocked by Dr. Dehgan’s actions, as nothing like this had ever happened to her before. She left the office without saying anything to anyone about it, and confided only to the one person outside of JMG who knew that she was taking Subutex. Despite the incident described above, S.M. returned to JMG for her next scheduled appointment with Dr. Dehgan, because she could not find another provider who could prescribe Subutex and who would take her health insurance. Most providers that she could find would only take cash, and she could not afford to pay for treatment without using her insurance. S.M.’s next scheduled appointment was June 27, 2014. Initially, Respondent did not mention or acknowledge his actions at the May 30 appointment, and S.M. was relieved. At the end of the appointment, however, Respondent remarked, “hey, I gave you my phone number. You didn’t call me.” S.M. made up an excuse that she had lost the phone number. As he left, Respondent hugged her again. S.M. interpreted Respondent’s actions as romantic in nature. As she stated, she did not know if Respondent wanted to have sex with her, “but I know when someone is asking me on a date.” S.M. also saw Respondent on August 1, 2014, and August 27, 2014. On August 27, 2014, there was a female staff member in the room for her appointment. Respondent had been presented with and signed an acknowledgment form on August 22, 2014, just five days before, which stated: I understand the office policy that a female member of our staff must be present during my female patient’s office visits. I understand that I will not conduct the office visit without ensuring that a member of our staff is present. Andrea Pratt, vice president of operations for JMG, testified that the acknowledgement form was put in place to protect both the doctor and the patient, and was put in place after receiving a complaint from another patient. Only Dr. Dehgan was required to sign an acknowledgement form. Dr. Dehgan’s testimony in his deposition that he requested the change in policy because he was being propositioned by female patients is rejected as not being credible, and Ms. Pratt’s testimony regarding the reason for the policy is accepted. On September 15, 2014, Respondent was terminated from his employment with JMG. While Respondent contends that it was for having ten unsigned patient charts, the termination letter indicates that he was terminated without cause. As a result of his dismissal from JMG, at her next scheduled appointment, S.M. saw Dr. Hernan Chang, M.D. When she checked in for the appointment, she asked if Dr. Dehgan was no longer there because he kisses his patients. S.M. continued to be treated at JMG and seen by Dr. Chang, until she received a letter from the practice in 2015 indicating that Dr. Chang would no longer be seeing patients at that location. Respondent testified that he has no recollection of S.M. He attempted to impeach S.M.’s credibility on the basis of a positive urine drug screen result received from a point-of-care test at JMG. S.M.’s 12-panel test for her appointment on September 25, 2014, was negative for opiates. However, the confirmatory LCMS was positive for morphine, with a value of 85, compared to a reference range of less than 50 nanograms per milliliter. S.M. denied taking morphine or any other opiates after starting Subutex. S.M.’s drug results were reviewed by Dr. Goldberger, who testified that a concentration of 85 nanograms per milliliter of morphine can be attributed to ingestion of morphine, ingestion of codeine, or ingestion of poppy seeds. These possible attributions also are listed on the report itself. He opined that it would be difficult to attribute the exact source of morphine resulting in this test result for S.M. His testimony is persuasive, and is credited. S.M. did not know any other patients who treated with Dr. Dehgan, and does not know any of the patients who were witnesses in this case. Her testimony was consistent and persuasive: she was candid about the scope of her drug dependence, including her resort to illegal drugs. Her explanation as to why she continued to see Dr. Dehgan after the May 30 incident is believable, considering her desire to remain off illicit drugs and opiates, and the continued references to financial difficulties in her therapy reports. Indeed, the note for her second visit indicates that a stressor for her was the difficulty getting her medications approved by her insurer. It is understandable that she would be reluctant to change physicians if she could not find one that would take her insurance. Moreover, even assuming that S.M. was noncompliant leading up to her visit on September 25, 2014, and the evidence does not support such a finding, any noncompliance would not necessarily lead to a conclusion that she was not telling the truth regarding her encounters with Respondent. Patient A.S. Patient A.S. initially presented to Dr. Dehgan for treatment of opiate dependence when Dr. Dehgan worked at Orthopedic Associates, prior to his employment at JMG. When she first presented for treatment at JMG, A.S. was 50 years old. She had a lengthy history of multiple abdominal surgeries dating back to her mid-twenties, including bowel resections, multiple hernia repairs, a tubal ligation, hysterectomy, endometriosis treatment, tubal pregnancy, and appendectomy. As a result of her lengthy use of legitimately- prescribed opioid medications, A.S. became dependent on them. A.S. began treating with Dr. Dehgan at JMG beginning June 10, 2013, and continued treatment at JMG until September 16, 2014, receiving Suboxone for her opioid addiction. Like S.M., A.S. was satisfied with Respondent’s treatment plan. She had no complaints about Dr. Dehgan until the summer of 2014. During that summer, there were three separate incidents where A.S. contends that Respondent touched her inappropriately. While A.S. did not recall the exact dates of these incidents, she was consistent in her testimony of what happened and in her belief that these incidents occurred on three different, consecutive appointments with Dr. Dehgan leading up to the Respondent’s termination from JMG.3/ At A.S.’s first appointment at JMG, she filled out a patient questionnaire that asked a variety of questions related to past medical history, current complaint, and medications taken. The questionnaire included a diagram, showing the front and back of a person’s body, on which a patient was directed to identify areas and types of pain. A.S. identified pain both in the abdominal area, and the corresponding area on her lower back. She described the pain for both areas as being sharp and aching. She did not indicate that she had any pain radiating down either leg. Respondent made no assessment regarding back pain in his notes, but prescribed Suboxone for her chronic pain and recommended follow-up in two months. At all subsequent visits but one, A.S. continued to complete some sort of questionnaire or a therapy progress report. For the visits on August 13, 2013, and September 13, 2013, there is no mention of back pain by either Respondent or A.S. There does not appear to be a questionnaire for the appointment on November 22, 2013, but Respondent’s notes for this visit mention low back pain for the first time.4/ Respondent’s records for the November 22 appointment identify constant low back pain under the “History of Present Illness” category. The note states in part: 50-year-old female is seen in the office today for followup evaluation and management of chronic opioid dependency. She takes Suboxone 8 mg twice daily. She is not taking any other medications and maintaining well on Suboxone twice daily There [sic] has been no interval change in the location, quality, increasing/decreasing factors, associated signs and symptoms as previously described. Lumbar Spine/Lower Back: Low back pain bilaterally, lumbar, that is constant, Nature: aching, Aggravated by: any physical activity, Aggravated by: bending, Severity: moderate to severe. Previous trials offered little or short durations of relief. Some relief from medications. Low back pain midline, paraspinal, Nature: aching, Nature: shooting, lumbar, that is constant, aggravated with movement, walking, lifting the legs. Radiates down the leg with associated numbness that is has [sic] severity: moderate to severe. Despite this lengthy note describing what appears to be a new complaint, Respondent’s notes for the back under the “General Examination” section of the patient record is exactly the same as it was for the previous visit and contains no positive findings: BACK: Cervical, thoracic and lumbar spines, full range of motion, no kyphosis, no scoliosis, spine nontender to palpation, No muscle spasms noted, no paraspinal muscle tenderness nor trigger points identified. Respondent did not sign this patient record: it reflects an electronic signature of January 6, 2015, well after his departure, and the sign-off status is listed as “pending.” A.S.’s next appointment at JMG was December 20, 2013. Her questionnaire for the visit indicated that she was depressed, had a stomach ache, and that it was not a good time of year for her. She was simply seeking to get through things and hope the next year was better. There is no mention of back pain. Respondent’s notes, however, under “History of Present Illness” are identical to the November 22 visit with respect to back pain. The physical examination is also identical, with no real findings related to her back. This patient note also is listed as “pending,” and is electronically signed in January 2015, after Respondent’s departure. Similarly, A.S.’s notes on her questionnaire for her January 17, 2014, visit mention depression, loneliness, and an asthma flare-up, but make no mention of back pain. Respondent’s notes, which are electronically signed well after his termination, reference low back pain, but make the same negative findings with respect to his examination. A.S.’s notes for the visit on February 19, 2014, mention problems with her car as a stressor, but again mention nothing about back pain or abdominal pain. Respondent’s notes reference ongoing abdominal pain, but make no mention of back pain in the “History of Present Illness.” References to the back under “General Examination” are the same negative findings listed for prior visits, yet lumbago and sciatica are listed as diagnoses under “Assessments.” The same can be said for Respondent’s notes for the visit on March 21, 2014, for which A.S.’s questionnaire makes no mention of back pain. It was during this visit that the first incident of what A.S. alleged was inappropriate behavior by Respondent most likely occurred. A.S. had been telling Dr. Dehgan about how she was feeling, and A.S. testified that as she was getting ready to leave the examining room, Respondent said, “I think you need a hug,” and reached over and hugged her. The embrace lasted about 30 seconds and made her feel strange. A.S. testified that the hug was initiated by Dr. Dehgan at a time when the door to the examining room was closed and there was no one else in the room. She was astonished because no doctor had ever done that to her before. She continued to see him, however, because she thought this first incident was a “fluke” and finding a pain management physician was difficult. At A.S.’s visit on April 18, 2014, she wrote that she was very depressed and was experiencing chronic pain with respect to her abdomen and lower back, and that her allergies had been terrible. Respondent’s notes, which he signed on April 28, 2014, indicate that she complained of persistent abdominal pain, hernia, and low back pain radiating to her buttocks. Under his “General Examination” for this visit, Respondent noted that her abdomen was soft and tender to the touch; that there was “presence of hernia and right lower side.” With respect to her back, he notes for the first time that there is tenderness on the lumbar paraspinals, sacrum, and buttocks; that there is forward flexion, associated with moderate pain; that A.S. “stands and toes and heels with some discomfort”; and that her “[s]traight leg rising is mildly positive.” Respondent lists lumbago and sciatica among her diagnoses, with lumbago as the primary diagnosis. A.S. testified that she talked to Respondent about her fear that she had another hernia that might need repair, and he offered to check it for her. She consented to his doing so. He did not ask her to take her clothes off, and the examining room door was closed, with no one else in the room. During his purported examination related to her hernia, Respondent did not examine the four quadrants of her abdomen. He simply touched her abdomen and reached up and squeezed A.S.’s right breast with one hand. A.S. has suffered from hernias and has been examined in connection with hernia repairs since her early thirties. She had seen two prior physicians for this condition before seeing Respondent. No other doctor had ever touched her breast in the examination of her hernia. Dr. Jonathan Waldbaum, M.D., testified as an expert on behalf of the Department. Dr. Waldbaum testified that a breast examination should never be part of an abdominal examination, and while it was possible for there to be incidental touching of a patient’s breast, depending on the location of the hernia and the physique of the patient, any such contact would be limited to the back of the physician’s hand coming into contact with the breast. Even Respondent testified that there would be no reason for him to touch A.S.’s breast. A.S. testified that she backed away from Respondent, but did not say anything to him. A.S.’s next appointment at JMG was June 19, 2014, at which time she saw an ARNP, Ashley Schinner. While her questionnaire does not mention back pain, the patient record notes back pain and abdominal pain related to her hernia in the “History of Present Illness” section, but no positive findings regarding her back under the “General Examination.” Lumbago and sciatica remain under the “Assessments” section. A.S. saw Dr. Dehgan at her next appointment, July 17, 2014. A.S. continued to see Dr. Dehgan because she needed the medication he prescribed. Again, her questionnaire mentions some mild depression, but not back pain. Respondent’s notes, on the other hand, indicate under “History of Present Illness” that she complains of low back pain radiating to the hips, lower limbs, feet and ankles. It also notes abdominal pain, and references the history of 13 abdominal surgeries. With respect to his examination, Respondent notes tenderness and lumbar paraspinals, sacroiliac and buttocks, that her range of motion of the lumbar spine is associated with pain, and that her “[s]traight leg raising is positive on both sides.” Respondent’s notes continue to list lumbago as her primary complaint, as well as listing sciatica and chronic pain syndrome along with her opioid dependence. A.S. testified that at the July 17 visit, she told Dr. Dehgan that her back was hurting, not because of a problem originating with her back, but because the pain in her abdomen caused her to hunch over and to be unable to stand up straight. A.S. testified that Respondent felt her back and ran his hand down her buttock on the right side, not in the manner one would expect as part of a physical examination, but more like a caress. When asked to specify what part of her body he touched, A.S. testified that he went “low,” low enough for it to be inappropriate in that it was nowhere near her back, and Respondent used only one hand. A.S. testified that she had never had another doctor examine her back before, but did not believe this examination to be appropriate. She told her sister that she would never go into Respondent’s office alone again. Assuming that the incident occurred in July 2014, she did, however, return for one more visit where Dr. Dehgan was present. It is unclear whether her sister went with her for this visit, but the medical records by Respondent are consistent with those for the prior visit. A.S.’s final visit occurred September 16, 2014, after Dr. Dehgan’s termination from the practice. At that time, she was accompanied by her sister and saw Dr. Chang as opposed to Dr. Dehgan. When she was told that Dr. Dehgan had been let go, she asked whether his termination was due to sexual harassment. A.S. is no longer going to JMG. She also is no longer a Suboxone patient, and has resumed taking opiates because her pain is too intense to do without it. While she reported needing additional surgery, she has been advised that she must stop smoking before surgery can be performed. She continues to suffer from depression, and will no longer see a male doctor because of trust issues created by Respondent’s actions. Following her treatment with Respondent, A.S. experienced further depression leading to a suicide attempt and involuntary hospitalization, which was, in part, attributable to the events described in this proceeding. Respondent testified that he has no recollection of A.S., yet also testified that he remembers A.S. asking that he examine her for a hernia, and that she had a long scar from her sternum to her pubis.5/ He attempted to discredit A.S.’s testimony by demonstrating the differences between her recollection of the visits and what is written in Respondent’s notes. Specifically, A.S. was adamant that she only complained about back pain on one occasion, at her July 2014 visit. Respondent’s notes, however, indicate multiple claims of back pain. A.S.’s handwritten questionnaire clearly reference back pain on at least three occasions. They do not, however, include any reference to pain radiating down her legs or into her feet. Even the diagram on which A.S. marked the areas of pain in her back for her initial visit indicated that the pain was more at the hip level than her buttocks. In each instance where A.S. did reference back pain in her questionnaires, the reference is in connection with abdominal pain. Clearly, the pain caused by her adhesions and recurrent hernia was her primary complaint. In her view, any back pain was ancillary to the abdominal pain that she had lived with for years. It also appears that many of the notes in Respondent’s medical records appear to be canned, or part of a template. Andrea Pratt testified that the electronic medical records system JMG used included templates that physicians could use, but were not required to be used. While Respondent denied using the templates, given the grammar (or lack thereof) and identical nature of some of the entries, use of the templates would explain some of the medical entries. Further, while several of the visits contain diagnoses of lumbago and sciatica, the record is clear that the primary purpose for A.S.’s treatment with Respondent always remained her treatment for opioid dependence. Respondent also attempted to impeach A.S.’s testimony because of her drug use,6/ and a positive drug test at her August 13, 2014, appointment, which reflected a positive result for oxycodone. However, the toxicology confirmation report from Essential Testing indicated a negative result for opiates. Dr. Goldberger testified credibly that A.S. did not have oxycodone in her system on August 13, 2014, and his testimony is accepted. Finally, Respondent attempted to explain the July visit by stating that the touching A.S. contended was inappropriate was actually part of a physical examination related to her back pain. However, A.S.’s description of Respondent’s actions does not remotely match the description by any doctor who testified of what constitutes an appropriate examination for back pain. Dr. Waldbaum testified that a good examination of the low back would start with seeing how the patient walks and observing the patient standing up. A physician would look at the patient’s posture, check for scoliosis or curvature of the spine, and would check the patient’s range of motion. The physician would perform a neurologic examination to check for things like strength in the patient’s legs and reflexes. He or she would then palpate the back, including palpating down the middle, along the bones of the spine, the paraspinal muscles, and the hips. The physician would evaluate the structures going below the belt line in the back, the muscles in the gluteal area. He or she would push gently to palpate the area. Respondent proffered the testimony of Drs. Risch and Cordera on the same issue. While their testimony was not considered because neither doctor had been noticed as an expert in this proceeding, their testimony was similar to Dr. Waldbaum’s with respect to a proper examination. Had their testimony been considered, it would only serve to reinforce the testimony of Dr. Waldbaum. What A.S. credibly described was not an examination of her back consistent with this testimony. The more persuasive and compelling testimony establishes that on three separate occasions, Respondent touched A.S. inappropriately by hugging her, by squeezing her breast, and by caressing her buttocks. Hugging a patient is not within the scope of the professional practice of medicine. Squeezing a female patient’s breast outside the context of a breast examination is likewise not within the scope of the professional practice of medicine. Caressing a patient’s buttocks is not part of an examination of a patient’s back for pain, and is not within the scope of the professional practice of medicine. Patient C.T. Patient C.T. saw Respondent on one occasion. She went to JMG and Dr. Dehgan for pain management related to her history of avascular necrosis, a condition in which the bone marrow in the joints deteriorates, causing pain. C.T. suffers with pain primarily in the hips, knees, shoulders, and ankles. When she presented to Dr. Dehgan, she was 46 years old. During C.T.’s visit, Respondent examined her back. While it was reasonable for Respondent to examine her back given her physical condition, he lifted her shirt to check her spine without letting her know that he was going to do so, which caught her by surprise. What is more troubling is that at the end of the appointment, a medical assistant came in and left some paperwork on Respondent’s desk, and then left the room. Respondent and C.T. were standing face to face. When she went to leave, he bent down, placed his hand at the small of her back, and kissed her in her ear, with his tongue going into her right ear. C.T. was stunned, and did not know what to do, so she patted him on the back. No one else was in the room, and the door was closed. Her focus at this point was to leave as quickly as possible, so she took her appointment card and exited the room. At the front desk, she told whoever could hear her that she would not be returning, and went to her car to call her adoptive mother. She called the office to speak to a supervisor, but none was available. C.T. did not know any of the other patients who testified in this proceeding. She filed a complaint with the Department of Health because she believes that what Respondent did was wrong. She interpreted his actions as sexual and is no longer trustful of male physicians. C.T.’s testimony was clear, consistent, direct, and compelling. Respondent tried to undermine her credibility by dredging up a variety of painful episodes in her distant past, and emphasizing her mental health diagnoses. In his Proposed Recommended Order, he states: What C.T. did not tell Dr. Dehgan is interesting. She did not tell Dr. Dehgan that she had been raped. She did not tell him that six days prior to seeing him she was treated at Flagler Hospital in St. Augustine, for vertigo, right shoulder and right arm pain, subsequent to a slip and fall accident occurring August 3, 2014. She did not tell Dr. Dehgan that she has post traumatic stress disorder. She did not tell Dr. Dehgan that she had Attention Deficit Hyperactivity Disorder. She did not tell Dr. Dehgan that she had asthma. She did not tell Dr. Dehgan that she had anxiety, anxiety with panic attacks, and depression. She did not tell Dr. Dehgan that she was, and that she had been, a patient for many years under the care of psychiatrist Dr. Emmanuel Martinez. She did not tell Dr. Dehgan that she lost 75 pounds in a period of 18 months. She did not tell Dr. Dehgan that on numerous occasions, she had tried to commit suicide. First, with respect to some of the history Respondent claims that C.T. omitted, there is not necessarily a question on the patient history form that she completed that would have required the information to be provided. The form was focused on the reason a patient presented to JMG, and, for the most part, included questions regarding prior treatment that a patient has received for the pain that caused him or her to seek treatment for pain management. It did not, for example, ask about prior hospitalizations in general, but rather, only asked about prior surgeries. Second, Respondent’s statements about C.T.’s purported non-disclosures in many respects are false. Consultation with a psychiatrist or psychologist related to the pain was disclosed on page 4 of the patient form, at Joint Exhibit 3, page 16. Asthma was checked on the same form at page 5, as was C.T.’s disclosure of anorexia, now recovered. At page 7 of the same form, C.T. disclosed that she has received treatment for depression and anxiety, provided Dr. Emmanuel Martinez’s name and telephone number, and further indicated that she saw him every two months. The form made no inquiry regarding suicide attempts, and had no question for which an answer disclosing them would be responsive. Respondent seemed to think that anyone with a history of mental illness is automatically a suspect witness who cannot be believed. There is no support for such a contention in this record. C.T.’s mental health history from ten years prior to this incident simply has no relevance to her testimony in this case. C.T.’s only memory difficulties at hearing were listing which medications she had taken over the years, as she did not have her medication list with her. Her reluctance to discuss issues related to her mental health, especially issues related to events over ten years old, did not impugn her credibility as a witness. Her memory of the events giving rise to this case was clear and credible, and is accepted. It is never within the scope of professional practice for a physician to place his tongue in the ear of a patient. Respondent presented the testimony of three individuals with whom he has worked who all testified concerning his character and his general demeanor with patients. Thomas Pulzone worked at Orthopedic Associates of St. Augustine, and knew Dr. Dehgan through his association with that practice prior to working with JMG. Mr. Pulzone thinks highly of Respondent. However, he never directly observed Respondent conduct an examination of any patient, and his contact with Respondent since Respondent left Orthopedic Associates has been limited to a few telephone calls. Dr. Edward Risch is an orthopedic surgeon from whom Respondent rented office space for approximately ten years. Dr. Risch has not worked with Respondent since 2010 and never directly observed Respondent’s examination of female patients. Dr. Diana Cordero worked with Dr. Dehgan for approximately six months of the time he was at JMG, and shares space at his current practice location. Her work with Respondent at JMG was limited, and she never saw him examine a patient. There is no evidence that she, like Respondent’s other witnesses, was present when any of the events giving rise to this case took place. Respondent tried to impeach the testimony of each patient based on inconsistencies between her recollection of her treatment by Dr. Dehgan and what was contained in his medical records for each of them. It was never established that any of the patients had reviewed her medical records. More importantly, it was never established that what was written in those records was an accurate statement of the care and treatment actually given. For example, Respondent testified that he would perform a comprehensive examination for a first visit, but not for follow-up visits. The medical records seem to indicate a comprehensive visit was performed every time, and all three patients did not recall much of an examination at all. Respondent testified that he would not generally perform a Babinski test (a test of a patient’s reflexes by scratching the bottom of his or her foot) for a follow-up Suboxone appointment, yet this test was routinely referenced as completed in Respondent’s medical records. Given the marked disparities between all three patients’ memories of their appointments and the contents of the medical records, as well as the internal inconsistencies noted in A.S.’s records, Respondent’s medical records appear to be less than reliable. Accordingly, they do not provide a basis for discounting the testimony of the three patients whose testimony was clear, consistent, and compelling.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding that Respondent violated sections 456.072(1)(v) and 458.331(1)(j), as alleged in the Amended Administrative Complaint. It is further recommended that the Board issue a letter of reprimand against Respondent’s license; suspend his license for a period of three years, followed by five years of probation; impose a permanent restriction that Respondent may not examine or treat female patients without a licensed health care provider in attendance; require completion of a medical ethics course prior to reinstatement of his license; and impose an administrative fine of $30,000. DONE AND ENTERED this 31st day of August, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 31st day of August, 2016.
Findings Of Fact Respondent, Herbert R. Slavin, M.D. (Dr. Slavin), is and has been at all times material hereto, a licensed physician, having been issued license number ME 0036889 by Petitioner, Agency for Health Care Administration, Board of Medicine, (Board). Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 458 and 455, Florida Statutes. Dilaudid is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains hydromorphone a Schedule II controlled substance listed in Chapter 893, Florida Statutes. A substance in Schedule II has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Schedule II is the second most potent category and the first category for which there is any viable medical purpose. The purpose of Dilaudid is to provide pain relief in the appropriate medical situation. The Physician's Desk Reference recommends that the usual oral dosage for Dilaudid is two milligrams every four to six hours as necessary. For more severe pain the recommendation is four milligrams or more every four to six hours. According to the Physician's Desk Reference the dosage should be individually adjusted according to severity of pain, patient response and patient size. PATIENT #1 On September 26, 1990, Patient #1, a 27 year old female, sustained injuries to her back in a motor vehicle accident. On October 22, 1990, Patient #1 underwent a MRI scan of her cervical spine which indicated moderate disc herniation extending slightly asymmetrically to the left side at the C6-7 level and which also indicated a moderate diffuse disc herniation at the C5-6 level with associated osteophytes off the adjacent vertebral end plates. On March 12, 1991, Patient #1 saw Dr. Slavin for the first time. She was complaining of low back pain secondary to the motor vehicle accident. She advised Dr. Slavin that she was taking physical therapy three times per week. Dr. Slavin performed a limited physical examination, noted that the patient's old records should be obtained, and prescribed four milligrams of Dilaudid to be taken orally every four hours. The prescription was for 180 units. On March 26, 1991, Patient #1 returned to see Dr. Slavin, stating that she had chest congestion, a cough, and some numbness in the back of the right leg. She indicated that her prescription for Dilaudid had been stolen along with her purse on March 13, 1991. Dr. Slavin diagnosed bronchitis, gave her a prescription for an antibiotic, and gave her a prescription for Dilaudid to replace the one that was stolen. On April 11, 1991, Patient #1 visited Dr. Slavin for the purpose of getting the prescription for Dilaudid refilled. Dr. Slavin did not prescribe a refill because it was too soon since he had given the prescription. Patient #1 signed an acknowledgment dated April 11, 1991 that she was not a Dilaudid addict, that she was taking Dilaudid to control pain caused by a herniated disc, which was originally diagnosed in September, 1990, that she had tried other medications and found Dilaudid to control the pain with the least side effects, that she understood that Dilaudid was an addictive substance, and that she understood that it was unlawful for the drug to be transferred to or be used by anyone other than the person named on the prescription. On April 25, 1991, Patient #1 again came to Dr. Slavin for a refill on the prescription for Dilaudid. Dr. Slavin prescribed a refill for the same dosage. He noted in the progress notes that he was planning to obtain the patient's old records. Based on the patient's file, Dr. Slavin did receive a report from Dr. Lichstrahl, an orthopedic specialist who had seen Patient #1 in October, 1990 and who had diagnosed the herniated disc. Patient #1's file also contained a report dated March 25, 1991, from Dr. Paul Ginsberg, a specialist in neurology. On May 20, 1991, Patient #1 came back to see Dr. Slavin for a prescription to refill the Dilaudid. Dr. Slavin did prescribe a refill at the same dosage. On June 24, 1991, Patient #1 returned to Dr. Slavin for a refill of the Dilaudid. In his progress notes, Dr. Slavin noted that there was a decreased range of motion in all directions for her neck. He prescribed a refill at the same dosage for the Dilaudid and also prescribed Feldene. Dr. Slavin's office received information from an anonymous source that Patient #1 was receiving Dilaudid from other doctors. This information was verified. Dr. Slavin's office notified Patient #1 that he would no longer prescribe narcotic medication to her. PATIENT #2 On April 10, 1991, Patient #2, a 47 year old male, came to Dr. Slavin with a history of laminectomy and two herniated discs from accidents that occurred several years prior to the visit. Patient #2 indicated that he had been taking Dilaudid for the last six months, which allowed him to work with the pain. Patient #2 was waiting to have surgery until his health insurance became effective. Medical records furnished by the patient indicated that in 1988 Dr. Kernish had diagnosed a peripheral iliac bulge at L5-S1 and L-4-5 with a probable left posterolateral herniation at L5-S1 causing marked foraminal encroachment. Dr. Slavin noted in the progress notes that on the patient's initial visit, the patient was in distress secondary to back pain. Dr. Slavin prescribed four milligrams of Dilaudid to be taken orally every four hours, the same dosage which the patient had been taking. The prescription was for 180 units. Patient #2 signed an acknowledgment dated April 10, 1991, that he was not a Dilaudid addict, that he was currently taking Dilaudid for the control of pain related to herniated discs which were diagnosed in 1988, that he had tried other medications but found that Dilaudid controlled his pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or be used by anyone other than the person named on the prescription. On May 20, 1991, Patient #2 came to Dr. Slavin for a prescription to refill the Dilaudid. The progress notes indicated that the patient was scheduled for surgery in July. Again Dr. Slavin noted that Patient #2 was in distress secondary to back pain. Dr. Slavin prescribed a refill of Dilaudid at the same dosage. On June 25, 1991, Patient #2 again came to Dr. Slavin for a refill of Dilaudid. Again Dr. Slavin noted that the patient was contemplating surgery when his insurance became effective and that the patient was in distress secondary to back pain. Dr. Slavin prescribed 40 units of four milligrams of Dilaudid to be taken orally every four hours. The medication sheet in the patient's file indicates that Dr. Slavin prescribed 40 units at the same dosage on July 3 and 10, 1991. By memorandum dated July 3, 1991, Dr. Rosenberg advised Dr. Slavin that the radiographic views of Patient #2's spine indicated discogenic disease L4-L5, L5-S1. PATIENT #3 On April 24, 1991, Patient #3, a 64 year old female visited Dr. Slavin, complaining of shortness of breath, lower back pain, chest pain, and headaches. Her medical history indicated peripheral vascular disease, anemia, arthritis, liver dysfuntion, and left ventricular hypertrophy. In 1990, another doctor had prescribed four milligrams of Dilaudid as needed as well as other medications. Dr. Slavin scheduled the patient for blood tests , x-rays, and other tests. Dr. Slavin prescribed, among other medications, 120 units of four milligrams of Dilaudid. On April 24, 1991, Patient #3 signed an acknowledgment that she was not an Dilaudid addict, was currently taking Dilaudid for control of back pain secondary to a fall in 1982, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred or used by anyone other than the person named on the prescription. Patient #3 was recalled to Dr. Slavin's office on May 1, 1991 for further testing because of anemia. No prescriptions were given and the patient was scheduled for an office visit in one week. Patient #3 was seen again on May 9, 1991. No prescriptions were given. A bone survey was planned and the patient was to return after the tests. On May 22, 1991, Patient #3 returned for a refill of medications and to get the results of the bone survey. The bone survey had not been returned so an office visit was scheduled for a week later to review the bone survey. Dr. Slavin prescribed 120 units of four milligrams of Dilaudid. Patient #3 returned on June 4, 1991 for the follow up on the bone survey. Dr. Slavin planned to refer her to Dr. Kalman, an oncologist. No medications were prescribed. On June 24, 1991, Patient #3 returned for a refill of medication. The progress notes do not reflect whether Dr. Slavin prescribed any refills. The patient had not made an appointment with Dr. Kalman and she was reminded that it was important to do so. Dr. Slavin noted on the progress notes that the x-rays showed a disc narrowing at L4-5. The impression of the radiologist was degenerative disc disease at L4-L5. Dr. Slavin ordered a CT scan of the lumbar spine. By letter dated July 1, 1991, Dr. Robbins advised the CT scan indicated that Patient #3 had a slight narrowing at the L4-L5 intervertebral disc space, but there was no definite evidence of herniated disc or spinal stenosis. On July 19, 1991, Patient #3 returned to Dr. Slavin for a follow up visit. She was to see Dr. Kalman and return to Dr. Slavin in one month. The progress notes do not indicate whether any medications were prescribed. By letter dated July 31, 1991, Dr. Kalman advised Dr. Slavin that he had examined Patient #3. He indicated that results of some of the tests were still pending. By letter dated August 6, 1991, Dr. Kalman advised Dr. Slavin of the test results. Dr. Kalman suspected that Patient #3 had anemia of chronic disease secondary to rheumatoid arthritis. He further stated: "The markedly elevated rheumatoid factor titer as well as the markedly elevated sedimentation rate suggest extremely active disease and likely accounts for the patient's back pains." Dr. Kalman indicated the patient had not returned for a follow up visit. By letter dated August 16, 1991, Dr. Kalman advised Dr. Slavin that the patient had cancelled a number of follow up visits. Dr. Kalman had advised her by telephone that she may have an active case of rheumatoid arthritis and that she should return to Dr. Slavin. On August 20, 1991, Patient #3 made an office visit for follow up of medical problems and a refill of the pain medication. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and some vitamins. The patient was to return in one month. On September 24, 1991, Patient #3 returned for a follow up visit, refill of her pain medication, and due to pain in her left eye. Dr. Slavin prescribed Dilaudid at the same dosage and some drops for her eyes. She was to return in one month. On October 25, 1991, Patient #3 returned for a follow up visit. Dr. Slavin prescribed the same dosage of Dilaudid as on the previous visit. She was to return in one month. On November 25, 1991, Patient #3 came to Dr. Slavin for a follow up visit. He prescribed the same dosage of Dilaudid. She was scheduled for a visit in one month. On December 12, 1991, Patient #3 visited Dr. Slavin to get a refill of Dilaudid, stating that she had dropped the last thirty pills down the sink. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and 100 units of 40 milligrams of Lasix. PATIENT #4 On March 4, 1991, Patient #4, a 44 year old male, saw Dr. Slavin and complained of chest congestion, sores on the scalp, and pain in the left hand in the area where he had previously suffered severe burn and traumatic amputation of the left fifth finger. Dr. Slavin noted that the lungs were clear to auscultation with good breath sounds bilaterally. Dr. Slavin diagnosed bronchitis, impetigo, and phantom pain. He prescribed augmentin. On March 26, 1991, Patient #4 returned for a refill of pain medication and because he was still experiencing chest congestion. Dr. Slavin diagnosed chronic pain syndrome and bronchitis. He prescribed 180 units of four milligrams of Dilaudid and erthromycin, an antibiotic. On April 24, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication and because he had sores on his scalp associated with broken hair shafts. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Lotrisone cream. On April 24, 1991, Patient #4 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of pain in his left hand caused by an injury in 1976, had tried other medications but found that Dilaudid was the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 30, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On July 2, 1991, Dr. Slavin saw Patient #4 for a refill of the pain medication. Dr. Slavin diagnosed chronic pain syndrome, ulnar neuropathy and hypertension. He prescribed 90 units of Dilaudid and Hytrin. The patient was to return in two weeks to have his blood pressure rechecked. On July 30, 1991, Patient #4 returned for a refill of his pain medication. His blood pressure was lower than the previous visit. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On September 3, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams and noted that the patient was trying to diminish his dosage frequency. On November 26, 1991, Patient #4 returned for a refill of Dilaudid and complained of an infected wound on his left elbow. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid, Lotrisone Cream, and Duricef. On December 24, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. PATIENT #5 On April 5, 1991, Patient #5, a 28 year old male saw Dr. Slavin for pain in his lower to middle back which recently had been exacerbated by a fall off a curb while he was in his wheelchair. Patient #5 has been a paraplegic since 1989 as a result of a gunshot wound. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Cipro. Dr. Slavin noted on the problem list that Patient # 5 had chronic urinary infections. It could not be determined from the records whether Patient #5 had an urinary infection when he initially presented himself to Dr. Slavin. Cipro and Bactrim are drugs which are used to treat urinary infections. Patient #5 returned to see Dr. Slavin on April 23, 1991. He was complaining of having dark red blood from his rectum on one occasion, pain in the lower part of his abdomen, and not having a bowel movement in the last two days. Dr. Slavin advised the patient to have an enema and to take a laxative. The doctor also prescribed 180 units of 4 milligrams of Dilaudid, Cipro, Bactrim, and Valium. Under normal circumstances a physician would at least examine the rectal area and check the patient's stool. Dr. Slavin did neither. Patient #5 signed an acknowledgment dated April 23, 1991, stating that he was not a Dilaudid addict, that he was currently taking Dilaudid for back pain, that he had tried other medications and found that Dilaudid controlled the pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 14, 1991, Patient #5 again saw Dr. Slavin. The patient indicated that he would be out of town for six weeks and needed to have the pain medication refilled. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. The medical records contain no mention of the previous blood in the rectum. The matter, thus, remained medically unresolved as to what the issues were, whether they were addressed, and what the follow-up was, if any. PATIENT #6 On May 1, 1991, Patient #6, a 40 year old male, saw Dr. Slavin and complained of back pain secondary to an injury in 1981 which caused spinal stenosis with neurogenic claudication pain. The patient had presented to Dr. Slavin a letter dated November 16, 1987 from the Department of Labor and Employment Security, advising Patient #6 that he had been adjudicated as permanently and totally disabled; a neurologic report dated July 28, 1982; and a radiology consultation report dated August 5, 1987. Dr. Slavin noted on the patient's progress notes that myelogram indicated a defect at the L3-4 disc level. He also noted that the patient had a surgical scar over the LS spine. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid, and Robaxin. On May 1, 1991, Patient #6 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of back pain caused by spinal stenosis sustained in a work related injury in 1981 when he fell 18 feet in a sitting position, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. Dr. Slavin again saw Patient #6 on June 3, 1991, and prescribed 120 units of 4 milligrams of Dilaudid for chronic low back pain. The doctor noted that he planned to repeat the MRI of the LS spine. On July 3, 1991, Patient #6 returned for a refill of his medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid and Robaxin. On July 22, 1991, Dr. Slavin again saw Patient #6 for a refill of the pain medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid. Dr. Slavin saw Patient #6 on August 20, 1991 for a refill of the pain medication. The doctor noted in the progress notes that the patient had extensive hypertrophic and degenerative bone and disc disease at virtually all levels of the LS spine. He prescribed 120 units of 4 milligrams of Dilaudid. On September 19, October 23, November 22, and December 20, 1991, Patient #6 visited Dr. Slavin for a refill of his pain medication. On each occasion, Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, and 24 of the Administrative Complaint, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records to justify the course of treatment for Patient #1 and Patient #5, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances in the treatment of Patient #5, imposing an Administrative fine of $1,000 for each violation (total of $3,000), placing Herbert R. Slavin, M.D. on probation for one year during which time the records of Dr. Slavin shall be monitored by a monitoring physician approved by the Board of Medicine, and requiring that Herbert R. Slavin, M.D. be required to attend Category I continuing education course in Risk Management and Medical Records. DONE AND ENTERED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3931 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted in substance. Paragraphs 5-6: Rejected as unnecessary. Paragraph 7: Accepted in substance. Paragraphs 8-11: Rejected as unnecessary. Paragraphs 12-14: Accepted in substance. Paragraph 15: Rejected that there was no orthopedic examination; the medical records do not indicate whether there was one or not. Rejected that the neurological examination was questionable. The remainder of the paragraph is accepted in substance. Paragraphs 16-17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraphs 19-20: Rejected as not supported by clear and convincing evidence. Paragraphs 21-23: Accepted in substance. Paragraph 24: The second sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance. Paragraph 25: Accepted in substance. Paragraph 26: Accepted that Slavin continued to prescribe Dilaudid. Rejected as unnecessary the remainder of the paragraph. The radiographic views of the patient's spine indicated discogenic disc disease. Paragraphs 27-30: Rejected as not established by clear and convincing evidence. Paragraph 31: Accepted in substance. Paragraph 32: Rejected as not supported by the record that he performed a sparse medical history. The remainder of the paragraph is accepted in substance. Paragraphs 33-34: Accepted in substance. Paragraphs 35-38: Rejected as not established by clear and convincing evidence. Paragraph 40: Accepted in substance. Paragraph 41: The last sentence is accepted in substance. The first sentence is rejected as subordinate to the facts actually found. Paragraph 42: The first sentence is accepted in substance. The last sentence is rejected as subordinate to the facts actually found. Paragraph 43: Accepted in substance. Paragraphs 44-45: Rejected as subordinate to the facts actually found. Paragraph 46: Accepted in substance. Paragraphs 47-50: Rejected as not supported by clear and convincing evidence. Paragraphs 51-52: Accepted in substance. Paragraph 53: Rejected as not supported by the medical records except as to the orthopedic examination for which there is no mention in the medical records. Paragraph 54: Accepted to the extent that the medical records do not clearly establish that the patient was suffering from an urinary infection, although it was listed on the problem list. Cipro can be used to treat an urinary infection. Paragraph 55: Accepted in substance. Paragraph 56: See response to paragraph 54. Paragraphs 57-59: Accepted in substance. Paragraphs 60-61: Rejected as not supported by clear and convincing evidence. Paragraphs 62-63: Accepted in substance except as to the date 1882, which should be 1982. Paragraph 64: The first sentence is accepted except as to height which is subordinate to the facts actually found. The second sentence reference to temperature is accepted. The remainder of the second sentence is rejected as not supported by the record, the record indicates that Dr. Slavin also considered a more recent myleogram which confirmed the problems at L3-L4 disc levels. The last sentence is rejected as subordinate to the facts actually found. Paragraph 65-69: Rejected as not supported by clear and convincing evidence. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraphs 2-10: These paragraphs relate to the motion to stay, which is ruled on in a separate order. Paragraph 11: Accepted that Dr. Gillett was tendered and excepted as an expert in the field of internal medicine. Rejected that the doctor was provisionally accepted. Paragraph 12: Rejected as subordinate to the facts actually found. Paragraphs 13-17: Accepted in substance. Paragraph 18: The first sentence is accepted in substance. The second sentence is accepted to the extent that some physicians limit their practice to chronic pain management but rejected to the extent that it is subordinate to the facts found since there was not competent evidence presented that Dr. Slavin holds himself out to be a specialist in chronic pain management. Dr. Gillet assumed that to be so but had no evidence as to that fact. Dr. Brady thought that Dr. Slavin was a family practice physician. Paragraph 19: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. Paragraph 20: Accepted in substance. Paragraph 21: Accepted in substance as it relates to all but Patient #s 1 and 5. Rejected as to Patient #s 1 and 5 as not supported by the evidence. Paragraph 22: The first and last parts of the first sentence are accepted in substance. The middle part of the first sentence is rejected as not supported by the record. Paragraphs 23-24: Rejected as subordinate to the facts actually found. Paragraph 25: Accepted in substance as it relates to all patients except #s 1 and 5. Rejected as not supported by the evidence as it relates to Patient #s 1 and 5. Paragraphs 26 and 27: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Albert Peacock, Esquire Agency For Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Charles L. Curtis 1177 Southeast Third Avenue Fort Lauderdale, Florida 33316 Andrea L. Wolfson, Esquire Suite 314 4491 South State Road 7 David, Florida 33314 Arthur C. Wallberg Assistant Attorney General Office of the Attorney General PL-01 The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
