The Issue The issues are whether Respondent violated Subsections 458.331(1)(m), 458.331(1)(q), 458.331(1)(t), and 458.331(1)(nn), Florida Statutes (2004),1 and Florida Administrative Code Rules 64B8-9.003 and 64B8-9.013(3), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all material times to this proceeding, Dr. Heshmati was a licensed medical doctor within the State of Florida, having been issued license number ME84360. Dr. Heshmati is board-certified in Family Practice. In 2004, there existed a related group of three walk-in clinics, which included the Melbourne Walk-In Clinic (Melbourne Clinic) located in Melbourne, Florida; the Cocoa Walk-In Clinic located in Cocoa, Florida; and the Palm Bay Walk-In Clinic located in Palm Bay, Florida. During July through December 2004, Dr. Heshmati was working part-time as a physician at two of the walk-in clinics: Melbourne Clinic and Palm Bay Walk-In Clinic. During this same time period, he was also working part-time as an emergency room doctor in emergency rooms in Osceola and Kissimmee, Florida. In 2004, the Melbourne Police Department began an undercover investigation of the three walk-in clinics concerning the prescribing of controlled substances to patients of the clinics. The investigation was led by John Pasko, who had considerable experience in investigating pharmaceutical diversion cases. Mr. Pasko enlisted the assistance of four persons who acted as undercover operatives in the investigation. The undercover operatives were S.K.S., D.C., R.D.M, and J.E.B. S.K.S. was a detective with the Saint Lucie County Sheriff's Office and used the alias of Aaron Joseph for the investigation. D.C. is a licensed pharmacist and a practicing attorney. She did not use an alias during the investigation. R.D.M. is employed by the Department of Health and investigates allegations against health care professionals. She used the alias Stephanie Vzatek for the investigation. J.E.B. is a medical malpractice investigator for the Department of Health. The alias he used for the investigation was Jerry Thompson. For purposes of this Recommended Order, the undercover operatives will be referred to by the aliases they used, with the exception of D.C. who will be referred to by her initials. Each of the undercover operatives met with Mr. Pasko prior to presenting themselves at the walk-in clinics. The operatives were told to go to the clinics, to make general complaints of pain, such as back pain or headaches, and to be as vague as possible about their symptoms. The operatives were to ask for controlled substances for the pain. None of the operatives was actually experiencing the symptoms of which they complained. Each operative was wired with an electronic communication device prior to visiting the clinics for the purpose of recording the conversations that took place during the visits. Each operative was given money to pay for the visits in cash. At the end of each visit, the operatives returned to the police station for a debriefing and gave sworn statements concerning what transpired during their visits. Some of the taped recordings of the visits were inaudible, but the operatives were not aware of the problems with the tapes prior to giving their sworn statements. The operatives gave the prescriptions they received and the receipts for payments of their visits to Mr. Pasko. The prescriptions were never filled. Aaron Joseph first visited the Melbourne Clinic on July 9, 2004. He told the person in the reception area that he had back pain and wanted to see a doctor. Mr. Joseph was given some forms to fill out, which he did. He returned the forms to the person in the reception. Mr. Joseph was taken to the back of the clinic where he was weighed. He was placed in a room, where a woman in scrubs took his blood pressure and pulse. She advised him that his blood pressure was a little high. She asked why he was at the clinic to which he replied that he was a window washer and had a bad back. He told the woman that he was taking cholesterol medication. He also stated that he had no known allergies. Mr. Joseph was taken to another room, where he was seen by Dr. Heshmati. He told Dr. Heshmati that he washed windows for a living which required him to sit in a Bosun's chair for long periods of time, resulting in lower back pain. He advised the doctor that he had been taking a dose of hydrocodone in the mornings and another dose after work for two years for the back pain. Mr. Joseph told the doctor that he was under the care of a doctor in Fort Pierce, but that he was in Melbourne on a temporary job. He told Dr. Heshmati that he had had an MRI done in Ft. Pierce and that as soon as his boss let him have some time off he would go to Fort Pierce, get the MRI, and bring it to Dr. Heshmati. Dr. Heshmati asked Mr. Joseph to stand up and bend over. Mr. Joseph bent over and said, "ugh" after he bent over a little. Mr. Joseph's grunt when he bent over was a sign to Dr. Heshmati that Mr. Joseph did have pain in his lower back. He sat back down on the examining table, and Dr. Heshmati listened to his chest with a stethoscope, tapped Mr. Joseph's knees with the stethoscope, and rubbed Mr. Joseph's back, legs, and heels. Dr. Heshmati's records for Mr. Joseph's visit on July 9, 2004, indicate that Dr. Heshmati did a review of Mr. Joseph's systems and that the review did not reveal any coughing, congestion, Rhinorrhea, sinus pain, sneezing, sore throat, ear ache, nausea, vomiting, diarrhea, abdominal pain, chest pain, headache, dizziness, weakness, or numbness. The records do not document that Dr. Heshmati listened to Mr. Joseph's chest, tapped Mr. Joseph's knees, or rubbed Mr. Joseph's back, legs, and heels. Dr. Heshmati claims that a form recording his examination is missing from Mr. Joseph's file; however, his testimony is not credible given that the records of patients D.C. and Ms. Vzatek contained similar forms as the one used for Mr. Joseph's first visit. Mr. Joseph's history, as recorded on July 9, 2004, shows that he was not a smoker and did drink alcohol occasionally. Dr. Heshmati advised Mr. Joseph that his blood pressure was a little high and that they needed to keep an eye on it. It is not unusual for a patient who is experiencing pain to have a slightly elevated blood pressure. He diagnosed Mr. Joseph as having chronic back pain. Dr. Heshmati wrote Mr. Joseph a prescription for 30 tablets of Lorcet, 10-650 milligrams. The generic name for Lorcet is hydrocodone, which is a controlled substance with a potential for abuse and physical or psychological dependence. Dr. Heshmati told Mr. Joseph to refrain from heavy lifting and to use ice packs on his back. Mr. Joseph was to return as needed. Mr. Joseph returned to the Melbourne Clinic on July 23, 2004, again complaining of lower back pain. He was weighed and his temperature, pulse rate, and blood pressure were taken. The woman taking his blood pressure advised him that it was still a little high. Dr. Heshmati examined the patient and asked him to bend over. Mr. Joseph complied with the request and expressed discomfort when he bent over a short distance. Dr. Heshmati touched Mr. Joseph's back. He noted that Mr. Joseph had good range of motion. Dr. Heshmati asked Mr. Joseph about bringing in the MRI. Again, Dr. Heshmati told Mr. Joseph that his blood pressure was elevated and that they needed to watch it. Dr. Heshmati discussed Mr. Joseph's window washing occupation with him, and Mr. Joseph explained how he used a Bosun's chair while washing the windows. High-rise window washers often experience back pain from sitting in a Bosun's chair each day and from the positions that they have to take while washing windows. While Mr. Joseph was at the Melbourne Clinic on July 23, 2004, he signed a contract stating that while he was under treatment by the Melbourne Clinic that he would not seek narcotic or any other type of pain medication anywhere else for his medical condition. Although Mr. Joseph signed the contract, stating that he had been informed of the side effects of the pain medication regarding physical addiction and psychological dependence, the only counseling that he had received from anyone at the clinic was that the medication could damage his liver. Dr. Heshmati prescribed 25 tablets of Lorcet for Mr. Joseph's back pain at the July 23, 2004, visit. Mr. Joseph returned to the Melbourne Clinic on August 12, 2004, again complaining of back pain. One of the staff at the clinic weighed him and took his temperature, pulse rate, and blood pressure. His blood pressure had improved since his last visit. Dr. Heshmati examined Mr. Joseph again on August 12, 2004. The doctor asked Mr. Joseph to bend over as he had done at the two previous visits, and Mr. Joseph reacted in the same manner, indicating that he had pain after bending a short distance. Dr. Heshmati asked Mr. Joseph to raise his legs about 14 inches off the ground, which Mr. Joseph did. Dr. Heshmati noted in the medical records that Mr. Joseph had good range of motion and a negative straight-leg test. The doctor wrote in his notes that Mr. Joseph would be in Melbourne for another month and that Mr. Joseph was waiting for his records from his doctor in Fort Pierce. Mr. Joseph indicated to Dr. Heshmati that he was frustrated because Dr. Heshmati had prescribed only 25 tablets of Lorcet at the previous visit. Dr. Heshmati wrote Mr. Joseph a prescription for 30 tablets of Lortab. On August 27, 2004, Mr. Joseph returned to see Dr. Heshmati again complaining of back pain. He was weighed, and his pulse rate and blood pressure were checked. Dr. Heshmati examined Mr. Joseph's back and noted that Mr. Joseph had no tenderness and a good range of motion. Mr. Joseph was required to sign an agreement during this visit, agreeing to have a ten-panel blood test done. Dr. Heshmati wrote a prescription for Mr. Joseph for 25 tablets of Lortab. He did not return to Dr. Heshmati's office for another visit. On each visit to the Melbourne Clinic, Mr. Joseph paid the receptionist $60 in cash prior to seeing Dr. Heshmati. He was given a receipt for each visit. On July 16, 2004, D.C. went to the Melbourne Clinic complaining of lower back pain and trouble sleeping. D.C. indicated that she had not injured her back, but had been having the pain off and on for two to three months with a fairly recent onset of pain. Staff at the clinic weighed her and recorded her temperature, pulse rate, and blood pressure. She gave her family medical history, indicating that her mother had heart disease, but denying a family history of cancer, diabetes, and hypercholesterolemia. Her social history showed that she did not smoke and drank alcohol socially. D.C. advised that she was allergic to sulfa and had no previous surgeries. On July 16, 2004, D.C. signed a patient contract, agreeing that while she was being treated at the Melbourne Clinic that she would not seek narcotic or any other type of pain medication anywhere else for her medical condition. The contract stated that she had been informed of the side effects of that type of medication regarding physical addiction and psychological dependence. She was asked by staff to sign the contract prior to her seeing Dr. Heshmati. Neither staff nor Dr. Heshmati counseled her during that visit on the side effects of the medications that she had been prescribed. Dr. Heshmati examined D.C., asking her to bend over and touch her toes, which she did with no difficulty and without expressing any pain. He asked her where her pain was located, and she pointed to her lower sacral back. She told Dr. Heshmati that she had seen a doctor in Palm Bay for pain in her back, but that she could not remember the name of the doctor. Dr. Heshmati checked the side of D.C.'s leg and asked her if she had any numbness. He also hit her knee with the end of the stethoscope. The doctor listened to D.C.'s heart and lungs. He told her that she had a heart murmur and that she needed to have someone look at the heart murmur. Dr. Heshmati inquired whether D.C. had had a MRI or an X-ray of her back, and she replied that she had not. Dr. Heshmati's notes indicate that he did a review of her systems and noted no coughing, congestion, Rhinorrhea, sinus pain, sneezing, sore throat, ear ache, nausea, vomiting, diarrhea, abdominal pain, chest pain, shortness of breath, headache, dizziness, weakness, or numbness. Based on his examination, Dr. Heshmati concluded that D.C. had an acute musculoskeletal event. She had indicated the pain was in her lower back. Her straight-leg test was negative, indicating no radiation of pain and no nerve impingement. Her range of motion was good, which eliminated a lot of conditions associated with the spine. D.C. told Dr. Heshmati that in the past Lortab and Xanax had worked for her. He wanted to prescribe another pain medication for her, but she told him that she wanted to stay with the Lortab. He prescribed 20 tablets of Lortab and 20 tablets of Flexeril, which is a non-narcotic muscle relaxer. D.C. told him that those drugs would not help her sleep and asked him for Xanax. He refused to prescribe the Xanax. He told her to do some back exercises, but did not tell her what specific back exercises she should do. Dr. Heshmati told her to return in two weeks if she was not better. D.C. returned to the Melbourne Clinic on July 30, 2004, complaining that her back still hurt and that she was having trouble sleeping. Staff at the clinic weighed her and recorded her temperature, blood pressure, and pulse rate. Dr. Heshmati saw D.C. and asked her whether she had done her exercises, to which she replied that she had not. He ran his hand along her spine, checked the sides of her legs, and pushed on her feet. He asked her to push towards him with her foot on his hand. D.C. asked him twice during the visit for a prescription of Xanax to help her sleep. She told him that the Flexeril did not help her. He was hesitant about prescribing the Xanax, indicating that he did not want to prescribe two narcotics, but he eventually prescribed 15 tablets of Xanax, along with 20 tablets of Lortab and 20 tablets of Naproxen, which is an anti-inflammatory medication. He told her to take the Naproxen during the day because it did not cause drowsiness. Dr. Heshmati also told her that the Xanax could be habit- forming. Dr. Heshmati wanted D.C. to have an X-ray, wrote a prescription for an X-ray of her lumbar sacral for chronic back pain, and recommended a couple of places where she could have the X-ray done. She asked him how many more times she come return for a visit without having the X-ray done, and he told her that he could not continue to prescribe pain medication for more than two months without her having an X-ray done. D.C. did not return to visit Dr. Heshmati after her July 30, 2004, visit. Stephanie Vzatek first presented at the Palm Bay Walk-In Clinic on December 1, 2004, complaining of a current lower back pain towards her right side. She stated that the back pain had been coming and going for about two years and that she did not know how she had hurt her back. Staff at the clinic took Ms. Vzatek's weight, pulse rate, and blood pressure. She advised staff that she had no allergies and that she was taking Lortab, Xanax, and Soma. Prior to seeing Dr. Heshmati, Ms. Vzatek was asked to sign a patient contract on December 1, 2004, in which she agreed that while she was being treated at the clinic that she would not seek narcotic or any other type of pain medication anywhere else for her medical condition. The contract, which she signed, also stated that she had been informed of the effects of those types of medication regarding physical addiction and psychological dependence; however, she was never counseled on the side effects of any pain medications that Dr. Heshmati prescribed for her. Dr. Heshmati asked Ms. Vzatek whether she had had a MRI or an X-ray done, to which she replied that she had not. He asked her if she had seen a doctor, and she told him that she had seen Dr. Ryan out of Orlando. Dr. Heshmati reached under Ms. Vzatek's jacket, felt of her back, and asked her if her back hurt. She told him that her back did hurt. He checked her reflexes by hitting around her knee with the stethoscope. Dr. Heshmati also checked her heart and lungs and recorded his findings as normal. Dr. Heshmati's notes indicate that he did a review of systems and noted that Ms. Vzatek had no abdominal pain, weakness, or numbness. Her straight-leg test was negative, and she had good range of motion. Ms. Vzatek told Dr. Heshmati that she was currently taking Soma to help her sleep and Lortab for her back pain and that occasionally she took Xanax. Dr. Heshmati asked Ms. Vzatek what strength of Lortab that she was taking, and she told him 10/500. He prescribed 15 Lortab tablets in that strength for her. He also prescribed 20 tablets of Naproxen, but did not prescribe Xanax or Soma. Dr. Heshmati told Ms. Vzatek that she needed to get a MRI or an X-ray, and that if she wanted to have refills of the prescriptions that she would have to have the tests done. He also advised her to get physical therapy. She told him that she did not have insurance and could not afford a MRI or physical therapy. Ms. Vzatek returned to Dr. Heshmati's office on December 29, 2004. She advised the staff that she had seen Dr. Heshmati before and that she wanted to get refills of her prescriptions. A staff person asked her whether she had brought any X-rays with her, and Ms. Vzatek replied that she had not because she could not afford to get them done. The staff person advised Ms. Vzatek that she could go to the Beach Walk-In Clinic and get a back X-ray for $50. The staff person also advised Ms. Vzatek that she could get only four refills unless she had blood tests done and that she would have to get a physical after her fifth visit. Ms. Vzatek was given a form to sign indicating that she agreed to get blood tests done starting with the next visit and that all tests were to be done over the next three months. When Ms. Vzatek saw Dr. Heshmati, she told him that she still hurt. He also asked whether she had X-rays made, and when she told him that she had not had the X-rays taken, he wrote a prescription for a lumbar sacral X-ray and referred her to the Beach Walk-In Clinic. Dr. Heshmati asked Ms. Vzatek what her occupation was, and she responded that she was a cocktail waitress and worked an eight-hour shift and occasionally a double shift. Dr. Heshmati asked Ms. Vzatek to bend over and asked her if her back hurt when she bent over. He asked her whether she had been using ice packs and doing lower back exercises. Neither he nor his staff demonstrated, instructed about, or provided literature on lower back exercises that she was to perform. Dr. Heshmati prescribed 30 tablets of Naproxen and 15 tablets of Lortab. Ms. Vzatek's paid $60 in cash up front for each of her visits and received a receipt. She did not return to see Dr. Heshmati after her December 29, 2004, visit. On December 2, 2004, Jerry Thompson presented at the Melbourne Clinic complaining of lower back pain. Prior to going to the Melbourne Clinic, he had been seen by Dr. Wang at the Cocoa Walk-In Clinic. The receptionist asked Mr. Thompson if this was his first visit to the Melbourne Clinic to which he replied that it was. A staff person weighed Mr. Thompson, took his blood pressure, and recorded his height. She asked him whether he had any allergies and took a social history. He told her that he had been having pain in his lower back for about six months and that he took Lortab and Xanax when he had pain. Dr. Heshmati asked Mr. Thompson whether he had seen another doctor for his back pain. Mr. Thompson told Dr. Heshmati that he had seen a doctor in Orlando, but that he did not remember his name. The evidence did not establish that Mr. Thompson told Dr. Heshmati or his staff that Mr. Thompson had seen Dr. Wang at the Cocoa Walk-In Clinic. Nothing in the medical records for Mr. Thompson's visit on December 2, 2004, indicate that he informed anyone at the Melbourne Clinic that he had been seen by Dr. Wang. Dr. Heshmati asked Mr. Thompson whether he had brought any medical records, X-rays, or MRI reports with him, and Mr. Thompson told him that he had not. Dr. Heshmati advised Mr. Thompson that he would have to get those. Mr. Thompson said that he had hurt his back when he tripped and fell. Dr. Heshmati listened to Mr. Thompson's chest and back with a stethoscope. The doctor told Mr. Thompson to bend over as far as he could. Mr. Thompson stood up and bent over and groaned when his outstretched fingers were about a foot-and-a-half from the ground. Dr. Heshmati had Mr. Thompson to get up on the examining table and lie on his back. Dr. Heshmati grabbed Mr. Thompson's ankles one at a time and raised them to approximately 40 or 50 degrees. Each time Mr. Thompson would groan. Dr. Heshmati then had Mr. Thompson sit on the side of the examining table and hang his feet over the side while Dr. Heshmati tapped his legs with a stethoscope. Dr. Heshmati noted that Mr. Thompson had tenderness in the mid-lower back and had a negative straight-leg test. Dr. Heshmati's notes indicate that he did a review of Mr. Thompson's systems and did not find any abdominal pain, weakness, or numbness. Dr. Heshmati asked what the doctor in Orlando had prescribed, and Mr. Thompson told him that he had been given Lortab and Xanax. Dr. Heshmati seemed concerned about the Xanax and told him there were other medications that he could take. The doctor told Mr. Thompson that Lortab could be habit forming and could lead to drowsiness. Mr. Thompson replied that he was not worried because he frequently took antihistamines, which did not make him drowsy. Dr. Heshmati would not prescribe both Lortab and Xanax. He did prescribe 30 tablets of Lortab and 30 tablets of Naproxen and told Mr. Thompson that he should have a MRI or at least an X-ray done before he returned for another visit. Mr. Thompson paid $60 in cash for his visit when he first came into the clinic. He was given a receipt for the payment. He did not return to see Dr. Heshmati. Normally, patients do not use walk-in clinics as their primary medical care provider. When a patient presents on an initial visit with musculoskeletal back pain, the physician, at a minimum, must perform a focused examination, which would include an examination on the lumbar spine, and a neurological examination, especially findings in the lower extremities. The physician would ask the patient if the patient had any gallbladder problems, any weakness in the legs, and any history of back pain. Acute back pain will typically resolve in six to eight weeks with conservative treatment. Conservative treatment would include prescribing small amounts of pain medication with follow-up visits from two-and-a-half to three weeks. Lortab, Lorcet, and Naproxen are acceptable medications for the treatment of back pain. It is common and appropriate for a physician in a walk-in clinic setting to prescribe small amounts of medication with quick follow-up visits. When a physician in a walk-in clinic setting prescribes a two-week supply of pain medication for a patient and intends to follow up with the patient in two weeks, the physician would be considered to have prescribed a small amount of medication.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Heshmati violated Subsections 458.331(1)(m), 458.331(1)(t), and 458.331(1)(nn), Florida Statutes, by failing to document his physical examination of Mr. Joseph on Mr. Joseph's initial visit; finding that Dr. Heshmati is not guilty of the other allegations set forth in the Amended Administrative Complaint; and suspending his license for one year and crediting him with the time that his license has been under emergency suspension. DONE AND ENTERED this 7th day of December, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th of December, 2006.
The Issue Whether Respondent, a licensed physician, committed the offenses set forth in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida charged with regulating the practice of medicine in the State. At all times pertinent to this proceeding, Respondent was licensed as a physician in the State of Florida and practiced in the specialty of ophthalmology. Respondent's license, number ME 0022716, expired while this matter was pending. On May 25, 1993, Petitioner filed an Administrative Complaint against Respondent who thereafter timely requested a formal hearing. The matter was referred to the Division of Administrative Hearings, and this proceeding followed. Shortly after filing the request for hearing Respondent's whereabouts became unknown to Petitioner. Despite diligent search and inquiry, Petitioner was unable to locate Respondent. Notices mailed by the Division of Administrative Hearings to his last known address were returned. Constructive notice of the hearing in this matter was given to Respondent by publication. In May 1991, Respondent worked at Lucy Optical Store in the Little Havana section of Miami, Florida. On May 13, 1991, Augustin Garcia, an investigator employed by Petitioner appeared at Lucy Optical Store in an undercover capacity. Mr. Garcia posed as a patient who complained that he was having difficulty seeing at night and that lights were causing him to have headaches. Mr. Garcia requested an eye examination. After discussing his complaints, Respondent led Mr. Garcia from the waiting room to an examining room. On May 13, 1991, Myriam Garcia Lacayo was working at Lucy Optical Store as Respondent's medical assistant. Ms. Lacayo is not licensed by the Petitioner in any capacity. While Respondent was present in the examining room, Ms. Lacayo performed a refraction test on Mr. Garcia's eyes. Upon completing the refraction test, Ms. Lacayo told Mr. Garcia that he did not need glasses and instructed Mr. Garcia to return within nine months to a year for a follow-up examination. Ms. Lacayo further advised Mr. Garcia that he should wear non- prescription eyeglasses with a light tint for night driving. Mr. Garcia was not told by anyone that he had not been given a complete eye examination. After the examination was completed, Mr. Garcia revealed his true identity and requested the medical records that had been taken, including a prescription that Mr. Garcia had seen Respondent write. Respondent became very upset upon learning Mr. Garcia's true identity and refused to give him the prescription. The manager of Lucy Optical Store gave Mr. Garcia the medical record, consisting of a one page document, that had been generated as a result of his visit. Respondent failed to administer to Mr. Garcia appropriate tests for glaucoma or for cataracts. The standard of care requires that a patient such as Mr. Garcia be evaluated for glaucoma and cataracts when the patient requests a complete eye examination. Failure to perform these tests may falsely reassure the patient that his eyes have been fully examined and found to be healthy. If these tests are not performed, the ophthalmologist should explain to the patient that he had only had a refraction test and not a complete eye examination. Respondent practiced below the standard of care in failing to test Mr. Garcia's eyes for glaucoma and cataracts. Respondent's medical records fail to document any reason why appropriate tests for glaucoma and cataracts were not performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of facts and conclusions of law contained herein. IT IS FURTHER RECOMMENDED that Petitioner assess an administrative fine in the amount of $5,000.00 against Respondent and require that Respondent demonstrate that he has the present ability to practice medicine with the requisite degree of skill and safety prior to the renewal of his license to practice medicine in the State of Florida. IT IS FURTHER RECOMMENDED that his licensure be placed on probation for a period of two years if it is renewed. DONE AND ENTERED this 3rd day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of January 1995.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: During times material hereto, and particularly from January 1, 1983 through December 31, 1985, Respondent, Eusebio Subias, M.D., was a licensed medical doctor in Florida, board certified in Psychiatry and an eligible Medicaid provider of psychiatric services pursuant to the Medicaid contract he is party to with DHRS dated October, 1982. (Petitioner's Exhibit 1). Medicaid regulations and guidelines require physicians to meet board certification in psychiatry before they may provide reimbursable psychiatric services to Medicaid eligible recipients. As part of his agreement to participate in the Medicaid Program, Respondent agreed to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance in the state plan. Respondent also agreed to abide by the provisions of pertinent Florida administrative rules, statutes, policies, procedures and directives in the manual of the Florida Medicaid Program. (Petitioner's Exhibit 2). During 1986, the Surveillance & Utilization Review System unit of the Medicaid Office indicated that the amount of Respondent's medicaid billing greatly exceeded that of his peers. Based on that indication, the Office of Program Integrity asked Respondent to provide them with copies of certain medical records for the year 1982. Respondent provided the Department with those records as requested. (Petitioner's Composite Exhibit 3). Those records were forwarded to the peer review committee for evaluation. The records were reviewed by both the local and state peer review committees. The 1982 records contained inadequate information for the peer review committee to document or otherwise justify the number of office visits per patient. The records did not contain reasons for treatment, reasons for frequency of visits or what specific services were rendered to patients. (Petitioner's Exhibits 16 and 17, Pages 3 and 4 and Composite Exhibit 3). On April 21, 1986, Petitioner notified Respondent that it determined that he overbilled Medicaid in the amount of $17,820.09 for the calendar year 1982. Respondent was then notified that a similar review would be conducted for the period January 1, 1983 through December 31, 1985. That review and the results thereof are the subject of this proceeding. The Department subsequently requested, and Respondent provided medical records for 85 specific recipients which were selected by means of the "Disproportionate Stratified Random Sampling" (DSRS). (Petitioner's Exhibit 7). Respondent's 1983-85 records contain substantially more details than the records he provided Petitioner during the 1982 review period. Petitioner had its medical consultant, Dr. Forsthoefel, review the 1983-85 records. He was a member of the peer committee which made the peer review determination in 1982 which was used as a guide for the degree of overutilization. Forsthoefel denied those office visits that he determined were not supported by documentation in the medical records and concluded that the visits were not medically necessary. As a result, Petitioner sent Respondent a letter advising that he had overbilled medicaid in the amount of $79,093.05 for the years 1983-1985. (Petitioner's Exhibits 9 and 13). By letter dated September 5, 1986, Respondent requested a meeting to discuss the Department's proposed action and such a meeting was granted on October 31, 1986 at 1:30 p.m. Dr. Forsthoefel, Dr. Conn, Petitioner's Chief Medical Consultant in 1982, Millie Martin, and Respondent attended the October 31 meeting. During the meeting, Respondent attempted to individually review each of the approximately 3200 medical records for patients he treated during the years 1983-85 such that he could explain and document the medical necessity of each of the patient's office visits. He also requested that Petitioner have the records reviewed by a psychiatrist. Neither Dr. Conn nor Dr. Forsthoefel are psychiatrists. Dr. Conn left soon after the meeting began. Dr. Forsthoefel, unable and unwilling to comply with Respondent's request that each medical record be individually reviewed, concluded that continuing the meeting would not be productive and left after approximately 2 hours. The Department again denied those visits which it had early concluded were not medically necessary based on the review by its medical consultants. By letter dated November 10, 1986, Petitioner again advised Respondent that the Department would seek a $79,093.05 overpayment for the years 1983-85 and advised him of his rights to a formal hearing. Drs. Mutter and Tumarkin were commissioned by Petitioner to review the medical records under scrutiny with each doctor reviewing one half of the records. Based on their review, Respondent was denied reimbursement for even more office visits based on their opinion that the records did not contain sufficient documentation or notations that would indicate continued office visits were medically necessary. (Petitioner's Exhibits 17a and 18). Dr. Tumarkin made his comments on Respondent's medical records in green ink. Those records which did not contain green marking were records numbered 3 and 27 resulting in the Department's overstating the overpayment claim by $125.01. Respondent introduced information regarding Medicaid's denial of claims which should have been billed to Medicare. During the period from May 1985 through December 31, 1985, certain denials fall within the 1983-85 review period and since the Department never paid such claims, the Department agreed at hearing to reduce its overpayment amount by $6,421.44. Also at hearing, Petitioner determined that it made an error in its computation of the figures stated in the November 10, 1986 letter and was now seeking $78,661.93 minus $6,421.44 for the amount claimed to be overbilled by Respondent as $72,240.49. Respondent, who is of hispanic origin, treats a substantial number of Spanish speaking patients. Respondent graduated from medical school in Cuba at the age of 22 and participated in a rotating internship at Mercy Hospital in Hampton, Ohio. He came to Florida in 1963 and was licensed in 1964. In April, 1963, Respondent was employed at Hollywood Memorial Hospital. Respondent was the third Spanish speaking doctor to practice in South Florida and was the first to be promoted to a chairmanship at Hollywood Memorial Hospital. Respondent was the first clinical director at Coral Reef's Hospital. He is a member of several medical societies and was involved in the development of several psychotic drugs, including Elavil. Respondent is board certified in psychiatry. Respondent has staff privileges at Hollywood Memorial Hospital and three other area hospital. He has practiced psychiatry for more than 25 years in the United State and is accomplished in the treatment of severe psychotic patients. Respondent was tendered and received as an expert in psychiatry. Southeastern Florida was inundated during the early 1980's with mentally ill refugees during the Mariel Boat Lift. That area has a uniquely high need for psychiatric services due to its characteristic as a metropolitan area with a large homeless population. The Marlowe Study which was commissioned by Petitioner to review the need for psychiatric services in Dade County during the period which coincided with the Respondent's 1983-1985 office practice here under review, concluded that insufficient resources were earmarked for the treatment of mentally ill residents of Dade County, Florida. Respondent prefers to treat severely psychotic patients on an outpatient basis. He has been very successful in utilizing this method of treatment and it has resulted in substantial public benefit in the form of substantial financial savings that would have otherwise been required to hospitalize such patients for treatment. Respondent is paid $35.01 for a 45 minute session for each Medicaid patient whereas the average cost for inpatient treatment at an area hospital is approximately $400.00 per day. Respondent modified his record keeping practice in 1982 so that his medical records for 1983-85 contained the minimum requirements for medical records necessary to support Medicaid billings as specified in Rule 10C- 7.030(1)(m) and 10C-7.062(1(n) Florida Administrative Code. All of the medical experts testified that Respondent's records for the period at issue here met the minimum requirements specified in the required regulations and DHRS's procedure manuals. Those requirements are: dates of services; patients name and date of birth; name and title of person performing the service, when it is someone other than the billing practitioner; chief complaint on each visit; pertinent medical history; pertinent findings on examinations; medications administered or prescribed; description of treatment when applicable; recommendations for additional treatments or consultations; and tests and results. Petitioner presented testimony through Ms. Martin to the effect that Respondent had admitted during his October 1986 meeting with the medicaid consultants that he had, from memory, gone back and recreated his medical records for 1983-85. Respondent denied this at hearing and credibly testified that based on the deficiencies found in the latter part of 1982 concerning his medical records, he commenced to prepare a complete medical record for each patient visit. Respondent's testimony in this regard is credited and none of the medical professionals, save Ms. Martin, presented any evidence which would call into question the accuracy of Respondent's records during the period 1983- Ms. Martin's testimony to the contrary is rejected. Dr. Forsthoefel candidly admitted that he is not qualified to render an opinion with respect to medical necessity and appropriateness of specialized psychiatric services. Respondent is the first psychiatrist reviewed by the Medicaid officials of Petitioner for over-utilization as Petitioner's officials were unaware of any other psychiatrist who had been reviewed prior to Respondent. The peer review process for determination of over-utilization and mis- utilization of Medicaid services is designed so that the physician being reviewed may discuss individual patient records and cases with the Committee, as well as the Medicaid consultants who later apply peer review findings, and such discussion will be considered in arriving at a final determination. (Peer Review SOP, April, 1987, Respondent's Exhibit 12). An integral part of peer review for the physician being reviewed is to be able to discuss individual cases with the reviewer prior to a final determination being made concerning medical necessity and appropriateness. Such interplay and explanations regarding certain aspects of a case can lead to a more detailed determination concerning an overpayment issue. Respondent's October 1986 review should have been a complete new review of individual records affording him an opportunity to discuss specific cases with the physician consultants, provide him an opportunity to substantiate certain treatments based upon his recollection and justify the treatment modality he utilized for the 85 patients which comprised the random sampling. 2/ Respondent was not permitted to meaningfully discuss those individual cases even though he requested an opportunity to do so. This is so despite Petitioner's consultant's admission that such a consultation would have aided them and perhaps changed their opinion with respect to medical necessity and appropriateness of specific treatments rendered by Respondent. (Testimony of Conn, Forsthoefel, Tumarkin and Whiddon). While some experts would treat severely psychotic patients on a less frequent basis than Respondent and hospitalize them sooner, Respondent's method of treatment is well accepted among qualified board certified psychiatrists. Dr. Tumarkin's different treatment philosophy wherein he favored inpatient treatment for severely psychotic patients while Respondent showed a preference for outpatient treatment, is in no way indicative of inappropriateness by Respondent's method of treatment since his method was proven to be successful. Additionally, one expert, Dr. Tumarkin would have allowed more visits as being medically necessary and appropriate had he been advised by Petitioner's representatives that he should apply the community standard for medical necessity and appropriateness of psychiatric services. A Medicaid provider of psychiatric services is required to provide services equivalent to that of their peers. Had Dr. Tumarkin consulted with Respondent, his opinion concerning medical necessity and appropriateness would have been affected and he would have requested such had he known that he was allowed to. This is especially so based on the fact that his treatment preference is more hospital oriented. It is thus concluded that Respondent was not given a fair opportunity to present circumstances relevant to the overpayment amount in question here, despite his request to do so. (Petitioner's Exhibit 14). A review of a Peer Comparison Analysis with Respondent's practice respecting the number of office procedures per patient performed by him in contrast to other medicaid psychiatrists, indicates that Respondent saw his patients, on average, less than the average for other psychiatrists in Dade, Monroe and Broward Counties between the years 1983-85. (Petitioner's Exhibit 22). Dr. Stillman is board certified in psychiatry and has been practicing for more than 30 years. He reviewed, as Respondent's expert witness, all of the 85 patient charts in question. Dr. Mutter rendered a specific report about the even numbered charts that he reviewed. His reports indicates, with respect to many charts, that he was unable to find specific documentation supporting the reasons and medical necessity for treatment. This testimony was sharply contradicted by that of both Dr. Stillman and Respondent who easily located specific record documentation which indicated the medical necessity and reasons for services provided to patients by Respondent. Examples of over-utilization from Dr. Mutter's report were inquired about and on each occasion, Respondent and Dr. Stillman were able to identify documents not referred to by Dr. Mutter that substantiated the medical need and reasons for treatment. Drs. Subias and Stillman's testimony was not contradicted by Petitioner. Without going through each patient's records, a review of the findings concerning several patients is illustrative and will be herein discussed. Patient number 85, S. T., Jr. 3/ was a schizophrenic, suffering from epilepsy with borderline intellectual functioning. He was a very psychotic patient who was, during his early years, treated in an institution. (Petitioner's Composite Exhibit 5). He was obese, apprehensive, disoriented, suffered from impaired insight and judgment, a depressed mood, flat affect and a constant feeling of rejection. Respondent commenced treating patient number 85 twice weekly as an outpatient and as his condition improved, he was seen once a week and office visits were reduced further as his condition continued to improve. Without this intense continuity of treatment, patient number 85 would have decompensated and would have required an extensive institutionalization. Respondent provided substantial documentation as to the need for each of S. T.'s visits. Patient number 83, C. C., was a schizophrenic who suffered from depression, was delusional with a flat affect, poor reality contact and went through extended periods of depression on a monthly basis. Respondent prescribed benadryl to counteract patient C. C.'s delusional symptoms and otherwise justified his method of treatments, frequency and reason for each visit. Respondent substantiated that it was medically necessary to treat patient C. C. on each occasion where treatment was provided. Respondent's medical records provided the documentation for treatment in each instance. Patient number 81, F. D., was a schizophrenic who suffered severe mental depression. His condition had deteriorated to the point whereby family therapy sessions had to be scheduled by Respondent. Respondent was able to keep F. D. out of the hospital, he remained with his family and his condition improved to the point where the frequency of visits were reduced. Respondent's records justified the medical necessity and reasons for the treatment he provided patient F. D. Respondent testified as to his method of treatment as to patients 88, 78, 77, 52, 56, 48, 46, 38, 40, 60, 68 and as to each of those patients, Respondent's records document that the patients treatment and visits were medically necessary and appropriate. Dr. Stillman demonstrated that on each occasion, there was substantial record documentation which supported the necessity for the treatment as provided by Respondent. Based upon the inconsistent evidence presented by Petitioner respecting its claim that Respondent failed to document the medical necessity for the treatment he provided to the patients during the years 1983-85 and the direct evidence presented by Respondent which established that all of the services rendered by him to Medicaid recipients were medically necessary and appropriate under the circumstances, it is concluded that Petitioner failed to establish by a preponderance of the evidence that any of the treatments here in dispute were unnecessary, inappropriate or were not otherwise documented by the medical records under review. Moreover, all of the experts agree that the treating psychiatrist is best able to determine the medical necessity and appropriateness of specific treatments to render to a patient as that psychiatrist has direct contact with, and is best able to fully apply his or her training and experience. Respondent amply demonstrated that the services here at issue were medically necessary, appropriate and was of clear benefit to the patient. Petitioner has failed to meet its burden of establishing any basis for an overpayment as claimed. 4/
Recommendation Based on the foregoing Findings of- Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Health and Rehabilitative Services enter a Final Order finding that there was no overpayment to Respondent during the years 1983- 85. Respondent is entitled to a refund of all monies held pursuant to the overpayment calculation by the Department in this cause together with 10% for annual interest pursuant to Rule 10C-7.060(12), Florida Administrative Code. DONE and ORDERED this 18th day of November, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1988.
Findings Of Fact Respondent is a licensed medical doctor, having been issued license number ME004427. Respondent maintains a general practice of medicine in Fort Lauderdale, Broward County, Florida. The parties have stipulated that the following are Schedule II Controlled Substances pursuant to Chapter 893, Florida Statutes: dilaudid; tuinal; percodan; dexedrine; quaalude; and seconal. COUNTS I - III (HILDA BULLARD) In early 1981, Anatole Mizell had been employed as a medical assistant in Respondent's office for approximately two years. In early 1981, she approached Respondent and explained to him that her mother, who was a resident of the Bahamas, had been diagnosed as having terminal cancer. Ms. Mizell explained to Respondent that physicians in the Bahamas had prescribed dilaudid to relieve her mother's pain, but that dilaudid was much more expensive in the Bahamas than in the United States. As a result, Ms. Mizell requested that Respondent write prescriptions for dilaudid in the United States which she could then have filled for use by her mother in the Bahamas. As a result of this conversation, Respondent, without ever having examined either Ms. Mizell's mother, Hilda Bullard, or any medical records concerning Hilda Bullard, began writing prescriptions for dilaudid in March of 1981. From March through October 1981, Respondent wrote prescriptions for Hilda Bullard totaling 1,072 two- milligram dilaudid tablets. According to the information furnished to Respondent by Ms. Mizell, her mother had had exploratory surgery in approximately 1977, at which time she was diagnosed as terminally ill. Ms. Mizell did not approach Respondent to write dilaudid prescriptions for her mother until early 1981. Having written dilaudid prescriptions for Ms. Bullard for March through October, 1981, Respondent began to suspect that perhaps he should examine Ms. Bullard in light of the fact that patients with illnesses of the severity described to him by Ms. Mizell seldom live for as long as Ms. Bullard apparently had. As a result, Ms. Bullard came to the United States and was first examined by Respondent on October 23, 1981. At that time, Respondent discovered that the patient had an enlarged abdominal mass, and sent her for blood samples and a liver scan. As a result of these procedures, Ms. Bullard was diagnosed as having cirrhosis of the liver, rather than terminal cancer. Respondent immediately discontinued prescribing dilaudid for Ms. Bullard. Although the record in this cause establishes that it is not uncommon, and oftentimes is appropriate, for physicians to prescribe a controlled substance for use by patients without first examining them, this procedure is justifiable only when the prescribing physician is prohibited by emergency conditions from personally examining the patient, or is so familiar with the patient's history that an examination might not be necessary. In this instance, Respondent wrote prescriptions for a controlled substance for use by Ms. Bullard for a period of six months without either having reviewed her medical records or personally examining her. There is no evidence, however, from which it could be concluded that Respondent did not act in a good faith effort to assist his employee's mother. Further, it is significant that, upon determining that the patient did not suffer from terminal cancer, Respondent immediately ceased prescribing dilaudid. COUNTS IV-VII (BILL CAUDILL) William Caudill has been a patient of Respondent's since approximately 1957. At the time of final hearing in this cause, Mr. Caudill was 59 years old. For as long as he can remember, Mr. Caudill has suffered from severe headaches of unknown etiology. His headaches are so severe, in fact, that Mr. Caudill has been unable to work, and is presently receiving Social Security disability benefits. Since he became a patient of Respondent, Mr. Caudill has been referred by Respondent to several specialists, including a neurologist, for procedures to determine the cause of his headaches. To date, the cause of Mr. Caudill's headaches remains undetermined, and he still suffers almost constant pain. In approximately 1978, Mr. Caudill ceased visiting Respondent, and instead was treated by a physician in Pompano Beach, Florida. Upon his return as a patient to Respondent in approximately July of 1980, Respondent was taking approximately 800 to 1,000 percodans per month for relief of pain associated with his headaches. The record in this cause is undisputed that percodan was moderately effective in assisting Mr. Caudill with headache pain, and that percodan is, in fact, an appropriate medication for that purpose. Upon his return as a patient, Mr. Caudill was advised by the Respondent that he was taking too many percodans, and that Respondent was instituting a procedure to decrease his habituation to that drug. In fact, during his treatment of Mr. Caudill from July, 1980, until the time of this hearing, Mr. Caudill had reduced his ingestion of percodan from in excess of 800 per month down to approximately 50 per month. During the period July, 1980, through December 1981, Respondent prescribed 2,959 two-milligram percodan tablets and 489 two-milligram tuinals to Mr. Caudill. This procedure of reducing the patient's dependence upon percodan by gradually reducing the dosage over an extended period of time is both medically justifiable and appropriate under the circumstances here present. However, Respondent's patient records on Mr. Caudill for the period July, 1980 through December, 1981, are virtually absent any information other than the identification of medication, and the date and amount of the prescription to justify Respondent's course of treatment for Mr. Caudill. Respondent was, of course, intimately familiar with Mr. Caudill's condition, having treated him since 1957. Respondent did, however, fail to keep records sufficient to justify his course of treatment, document the patient's progress or lack thereof, and any alternative treatment modalities considered or rejected. COUNTS VIII-XII (E. O. WALKER) At the final hearing in this cause, E. O. Walker was 72 years old, and had been a patient of Respondent's for approximately 20 years. Respondent ceased treating Mr. Walker when Mr. Walker moved to California in 1975. Respondent forwarded Mr. Walker's patient records to a physician in California, and did not retain copies of those records in his files. Mr. Walker returned as a patient to Respondent in 1980. At that time, Mr. Walker was suffering almost constant pain as a result of earlier heart surgery, disc disease in his lower back, and arthritis. In addition, Mr. Walker had difficulty sleeping, and was depressed as a result of a recent divorce. Because of the pain associated with the above-described ailments, Mr. Walker is totally disabled. For the period of September, 1980 through December, 1981 Respondent prescribed 650 percodans, 500 quaaludes, 500 dexedrines, and 400 seconals to assist Mr. Walker in coping with the pain, enabling him to sleep, and assisting him with his depression. The record in this cause establishes that, given Mr. Walker's history and his existing condition, the prescription of these controlled substances in two-milligram dosages over the period in question was reasonable, medically justifiable, and not excessive in quantity or dosage. There is no evidence to support a conclusion that Respondent's treatment of Mr. Walker from September, 1980 through December, 1991 in any way departed from medically acceptable levels of care. COUNT XII (SELF PRESERVATION) 10. On July 14, 1980, November 10, 1980, January 20, 1981, August 2, 1981 and December 18, 1981, Respondent prescribed demerol tablets and injectables in the name of "R. S. Faircloth" or "Robert S. Faircloth". These controlled substances were used by Respondent in the treatment of his patients. All such controlled substances received by Respondent as a result of these prescriptions were either administered to Respondent's patients or were accounted for by Respondent at the time of final hearing. Further, the prescription blanks used to obtain these controlled substances had the notation "Office Use" on their face
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Respondent's licensure and practice Respondent, Douglas N. Graham, is now, and was at all times material hereto, licensed as a chiropractic physician by the State of Florida, having been issued license number CH 0005483. At all times pertinent, Respondent operated two businesses associated with the practice of chiropractic. The first business, a typical chiropractic practice, was operated under the name Action Chiropractic, and was located in a small office building at 8095 Overseas Highway, Marathon, Florida. The second business, known as Club Hygiene, promoted a hygienic (nutritionally sound) lifestyle based on the consumption of uncooked fruit and vegetables, nuts and seeds. As part of the regime at Club Hygiene, fasting (to detoxify the body) was also promoted as an avenue to better health. Club Hygiene was located in Respondent's two-story home at 105 Bruce Court, Marathon, Florida. The ground floor, where the patients (or guests, as they were referred to at Club Hygiene) resided, consisted of three bedrooms, one bathroom, a small recreation room or area, and a porch for dining. Each bedroom contained two beds, allowing a maximum capacity of six guests. On the second level was Respondent's residence, which he shared with up to three "interns,"3 who cared for the guests. The instant case primarily involves concerns voiced by Petitioner regarding the care of two patients (K. E. and B. D.) at Club Hygiene in 1993. Regarding those concerns, Petitioner questioned whether Respondent's record keeping met minimum standards and whether Respondent's treatment met the prevailing standard of care. The K. E. affair On December 7, 1992, K. E. presented as a walk-in at Respondent's chiropractic clinic, Action Chiropractic, for a free consultation to address whether she could benefit from chiropractic care. At the time, K. E., a female, was 25 years of age (date of birth March 7, 1967), 5'6" tall, and weighed 105 pounds. On presentation, K. E. filled out a case history sheet which detailed her present and past symptoms, as follows: occasional dizziness and headache; occasional pain between shoulders; frequent constipation and difficult digestion, with occasional pain over stomach; occasional colds, ear noises, and sore throat; occasional skin eruptions (rash); occasional frequent urination; and, occasional cramps or backache and vaginal discharge, with frequent irregular menstrual cycle. History further revealed an injury to a "muscle in back" over 5 years previous. Personal habits reflected a light appetite, as well as light use of alcohol and drugs. Exercise and sleep habits were noted as moderate. When asked to describe her major complaints and symptoms, K. E. responded, "They said I had scoliosis when I was young. I'm curious if it still is there." The date symptoms were first noticed was stated to be "middle school." K. E.'s visit with Respondent lasted about twenty minutes, and included a brief spinal check, as well as a discussion regarding diet and nutrition. Respondent apparently told K. E. she would benefit from chiropractic care; however, neither the patient record nor the proof at hearing reveal the results of his examination, diagnosis, prognosis, or any treatment plan. Due to a lack of funds, K. E. declined further chiropractic care. At the time, or shortly thereafter, Respondent offered K. E. the opportunity to become an "intern" at Club Hygiene. The Internship Agreement entered into by Respondent and K. E. on January 18, 1993, provided as follows: The internship will last for a period of . . . 6 months . . . beginning on MONDAY, JANUARY 18TH , 1993 and ending on SUNDAY, JULY 18th , 1993. The company will provide the Intern with room, board, and the opportunity for hands- on, first-hand experience in the day-to-day operation of a hygienic retreat, supervision of fasting patients, and hygienic living. The Intern will provide the Company with their full-time efforts in the operation of the retreat in the manner determined by the company and in fitting with all reasonable rules and guidelines to be enforced by the company . . . . As an inducement to complete the internship, interns were apparently rewarded with a supervised fast at the end of their term. When K. E. joined the staff of Club Hygiene in January 1993, she was one of three interns who cared for the patients (guests). Also on staff, and working under Respondent's supervision, was Tim Trader (referred to as Dr. Trader in these proceedings), a unlicensed naturopathic physician.4 As an intern, K. E. changed the guests' linen, cleaned the guest bathroom, assisted with food preparation and, on a rotating basis with the other interns, dined with the guests. Each morning, K. E. also took the guests' blood pressure, and noted their vital signs. When K. E. began work at the club she was suffering health problems and, more particularly, stomach trouble (difficult digestion and pain) and constipation. To assist her, Respondent recommended various diets, and K. E., at Respondent's recommendation, moved from eating predominantly cooked foods to raw natural foods; however, her stomach troubles persisted, and by April 1993 her weight had dropped to about 92 pounds. In April 1993, on the advise of Dr. Trader and with the concurrence of Respondent, K. E. started a fast, water only, as a means to address her health problems. There is, however, no evidence that K. E. was physically examined prior to fasting, although at some point Respondent apparently suggested that "she had severe problems, including but not limited to, malabsorption syndrome, leaky gut syndrome, potential hiatal hernia and resultant malnutrition." Moreover, apart from the meager patient record of K. E.'s office visit in December 1992, there is no patient record or other documentation (evidencing patient history, symtomatology, examination, diagnosis, prognosis, and treatment) to justify the care (diet and fasting) offered K. E.5 K. E. fasted for two weeks and by the end of the fast her weight was approximately 87 pounds. During the fast, Respondent was frequently out-of-town; however, K. E. was supervised by Dr. Trader, who assured her vital signs were regularly taken.6 Following the fast, K. E.'s health continued to deteriorate, and her weight dropped to approximately 77 pounds. She became concerned and sought to consult with Frank Sabatino, D.C., another "hygienic physician." Ultimately K. E. was seen by Dr. Sabatino, and also a medical doctor; however, their findings are not of record. Moreover, there was no proof offered at hearing regarding the nature of K. E.'s disorder, whether (given the nature of the disorder) a fast was or was not appropriate, whether the fast caused or contributed to any injury, or what subsequent care (if any) K. E. required. As of the date of hearing, to a lay observer, her appearance evidenced good health. To address whether Respondent's treatment met the prevailing standard of care, Petitioner offered the opinions of two chiropractic physicians, Bruce I. Browne, D.C., and Robert S. Butler, Jr., D.C.7 It was Dr. Browne's opinion that the care Respondent offered K. E., including the supervision (albeit not personal) provided for her fasting, met the prevailing standard of care, but that Respondent failed to maintain patient records that justified the course of treatment. Dr. Butler agreed the patient records were inadequate, but was also of the opinion that Respondent's care failed to meet the prevailing standard of care because he authorized a fast without first performing a complete examination to resolve whether K. E.'s condition was appropriate for a fast, or stated otherwise, whether she was physically capable of withstanding the stress of a fast. Respondent admitted, at hearing, that he had not done any examination that would permit him to appropriately treat K. E. Given the proof, it must be concluded that Respondent failed to maintain patient records regarding K. E. that justified her course of treatment. It must also be concluded that by approving a fast without an adequate examination, Respondent's care of K. E. fell below the prevailing standard. The B. D. affair In or about early November 1993, B. D., a male, and resident of the State of Washington, telephoned Respondent to arrange a visit. At the time, according to Respondent, B. D. had been hospitalized for two or three weeks and "wanted out."8 Respondent agreed.9 B. D. arrived at Club Hygiene on November 7, 1993. At the time, he was 37 years of age (date of birth June 5, 1956), 5' 9 1/2" tall, weighted 115 pounds, and was in extremely poor health. He was also HIV positive, and had developed acquired immune deficiency syndrome (AIDS).10 On presentation, as reflected by his case history, B. D. expressed to Respondent the fear or thought that he was dying, and related the following major complaints and symptoms: anal infection, frequent diarrhea, weight loss, inability to assimilate food, fatigue, and loss of energy. At the time, B. D. had been fasting for 1 1/2 days. Examination confirmed the presence of an anal infection (thought to be fungal in origin) oozing clear fluid, and further noted, inter alia, an irritated nose and throat (slight redness), and that the upper cervical and lower lumbar were tender and fixated. Heart was noted to be clear and strong, and the lungs were noted to be clear in all four quadrants. The only recommendation reflected by the patient records relates to the observation concerning the upper cervical and lower lumbar, and reads as follows: "Daily light massage, muscle release, and gentle specific adjustments. P[atien]t concerned about overall health. Monitor closely." B. D. continued his fast (water only) until November 16, 1993 (when he consumed diluted apple and celery juice), and Respondent monitored his progress on a daily basis. (Petitioner's Exhibit 5). The progress notes reflect a weight loss from 115 pounds to 102 1/2 pounds during the course of the fast, but no untoward occurrence. B. D. apparently continued on a juice diet until November 23, 1993, when he was reintroduced to solid food. By that date, B. D.'s weight was noted to have dropped to 100 pounds. On November 24, 1993, B. D.'s blood pressure was noted as 88/62 and his pulse/respiration as 74/20. He was also noted to be fatigued and he rested all day. Between November 24, 1993, and November 28, 1993, the only entry appears to be for November 26, 1993, when B. D.'s blood pressure is noted to be 100/70s. By November 28, 1993, B. D.'s blood pressure was noted to have fallen to 66/50 and his pulse/respiration was noted as 80/20. No entry appears for blood pressure or pulse/respiration on November 29; however, there was an entry that B. D. was "experiencing problem breathing." A morning entry on November 30, 1993, noted "Ronci in all 4 Quads.-very slight. Breathing extremely labored." Blood pressure was noted as 62/42 and pulse/respiration as 80/28. Respondent's progress notes contain no entries for December 1, 1993. On December 2, 1993, the notes reflect "Breathing labored still." Pulse/respiration was recorded as 80/32; however, no blood pressure reading was noted. There are no entries for December 3, 1993. On December 4, 1993, blood pressure was recorded as 62/44 and pulse/respiration as 92/32. B. D. was noted to be very fatigued. No entries appear on December 5, 1993, and on December 6, 1993, at 5:00 p.m., B. D.'s blood pressure is noted as 62/52 and pulse/respiration as 100/weak. B. D. is again noted as very fatigued, and his weight is recorded as 95 1/4 pounds. No entries appear for December 7, 1993. At 11:08 p.m., December 7, 1993, Monroe County Emergency Services were summoned to Club Hygiene by a 911 telephone call, and they arrived at 11:15 p.m. The EMT's (emergency medical technician's) report reflects that for past medical history they were advised that B. D. was HIV positive, and for chief complaint they were advised "Breathing diff[iculty] - Family states onset 1 w[ee]k, getting progressively worse." At 11:20 p.m., blood pressure was noted as 109/53 and pulse/respiration was noted as 113/40. B. D. was transported to Fishermens Hospital and he was admitted through the emergency room at 11:36 p.m. B. D. remained at Fishermens Hospital until December 20, 1993, when he was transferred to Lower Florida Keys Health System for further studies and treatment. The discharge summary from Fishermens Hospital reveals his course as follows: This is 37 year old male who presents to the Emergency Room with dyspnea, weakness for the past several days, states he has been visiting from the state of Washington with his mother and became ill while in the area. His past medical history is negative for previous hospitalization accept (sic) for surgery for right inguinal hernia he states he was found to be HIV positive seven years ago but has been in good health until recently. Family history is negative for TB, diabetes, cancer, and cardiac disease, he has no known allergies, he is single, he has been a heavy abuser of alcohol in the past until four years ago. In the past he worked as an investment consultant with Japan, he does not smoke, he uses no drugs except an occasional marijuana. He states he knows no known risks for AIDS and does not know how he contacted it.11 Review of systems denies any illness prior to be the past few weeks, prior to this admission, he states he is confused regarding his past medical history and does'nt (sic) know how he became HIV positive. Physical examination revealed emaciated 37 year old male who is on a non rebreather oxygen mask. His skin is warm and dry, pupils are equal and regular and react normally to light in accomidation (sic). Teeth are negative. Tembranic membrane is normal. Neck is subtle there is no cervical adenopathy, thyroid is smooth without enlargement, he has rales in both lungs over the entire parietal with respirations of 36 per minute, no wheezing is heard, his pulse is 92, regular sinus rhythm, there are no murmurs. Abdomen is soft without masses. Heart tenderness, there was no peripheral edema. Penial pulses are present. He is alert, although he is slightly confused regarding his recent medical history. Reflexes were equal, there is no vocal motor weakness. * * * Chest x-ray at the time of admission showed pulmonary edema, possibly non-cardiac follow up chest x-ray showed evidence of diffuse infiltrates involving the right lung and also the left lower lobe consistent with pneumocystis carinii pneumonia with evidence of bilateral pulmonary edema. Follow up chest x-ray showed increased . . . desity in the right lung infiltrate and progression of infiltrates to the left mid and lower lung fields with air bronchograms and air alveolgrams Indicating alveolar infiltrates. EKG abnormal record to the extreme right axis deviation, poor R wave progression, sinus tachycardia. Patient was seen in consultation by Dr. Halterman in the event that his respiratory status required intubation, however he never did require this. * * * He was treated in ICU, he developed a pneumothorax, spontaneous pneumothorax and was seen by Dr. Mankowitz for insertion of a chest tube, because of failure to show improvement arrangements were made for transfer to Key West for further studies and treatment and possible Phentolamine, Phetamadine. His condition upon transfer is poor. Prognosis is poor. FINAL DIAGNOSIS: Respiratory failure, secondary to diffused alveolar infiltrates, probable pneumocystis carinii pneumonia. Spontaneous pneumothorax, adult immune deficiency syndrome. B. D. was admitted to Lower Florida Keys Health System, Key West, Florida, at 2:50 p.m., December 20, 1993. Thereafter, his condition deteriorated, and at 9:17 p.m., December 26, 1993, he was pronounced dead. The death summary notes an admitting and final diagnosis as follows: ADMITTING DIAGNOSIS: Pneumonia FINAL DIAGNOSIS: Pneumonia, HIV infection, respiratory failure, respiratory complications, emphysema, cachexia Cause of death, as stated on the Certificate of Death, was cardiopulmonary failure, as a consequence of pneumonia, due to acquired immune deficiency syndrome (AIDS). To address whether Respondent's care for B. D. met the prevailing standard of care, as well as whether his records conformed to the minimum requirements of law, Petitioner again called upon Doctors Browne and Butler. With regard to the adequacy of Respondent's patient records, Doctors Browne and Butler concur, and observe that with regard to B. D., the patient records failed to conform with the minimum requirements of law (they failed to include a diagnosis or a treatment plan) and, therefore, failed to justify the course of treatment. Given the record, the opinions of Doctors Browne and Butler regarding the inadequacy of Respondent's records, as they relate to B. D., are credited. With regard to whether Respondent's treatment met the prevailing standard of care, Doctors Browne and Butler offer somewhat differing opinions. Dr. Browne was of the opinion that Respondent's treatment met the prevailing standard until November 30, 1993, when B. D.'s breathing was noted to be extremely labored. At that time, according to Dr. Browne, prevailing practice required Respondent, as a chiropractor, to cease treating B. D. and to advise him to seek relief from another practitioner who possessed the requisite skill, knowledge, and facilities to treat his ailment properly. In Dr. Butler's opinion, Respondent should have called for a chest x-ray, and his failure to do so failed to meet the prevailing standard of care.12 Respondent explained his reaction to B. D.'s congestion and labored breathing, as follows: Q. What did you do, you noted he was congested? A. I suggested he go to a hospital. Q. And his response? A. He did not want to go to a hospital. He wanted to wait it out, and I said you can wait at my house. But if you go down hill, you have to go to a hospital. Q. Is that what happened? A. Yeah. He started to become ever so slightly synodic (sic), meaning that he was breathing but he wasn't getting lots. His fingertips were starting to turn blue. * * * Q. Did you discuss with him at this time a need to get additional care? A. I discussed it with him many times, because this was not, this was not in my league. It was not in my scope. It was not - I did not have access to the tools even if I knew how to treat a man at this point. Those are my concerns for Brian. And, finally, I said, Brian, look, you have to trust my judgment, you go to the hospital whether you want to or not. Q. Who called for the ambulance? A. I have no idea. * * * Q. Did you consider the need for an x-ray when you saw Brian's breathing become labored? A. No. Q. Did you make any suggestions to him at the time you noted his breathing had become labored? A. When it became labored? Q. Yes, sir. Not that I'm aware of saying anything to him. No. I don't believe so. (Transcript, pages 174, 175, and 177). Having considered the proof, Dr. Browne's opinion is accepted as most compelling and provides the most complete description of the breadth of Respondent's obligations, as well as the scope of his breach. On the other hand, Dr. Butler's opinion (that the circumstances required a referral for chest x-ray) has not been rejected; however, Respondent's failure to refer for x-ray (when he realized B. D.'s condition was beyond his knowledge or the methods of treatment available to him) is viewed as a failing subsumed within his breach of the prevailing standard which required that Respondent cease treating B. D. and refer him to another physician who possessed the requisite skill, knowledge, and facilities to treat his ailment properly.13
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds the Respondent committed the offenses alleged in Counts I through VI of the Administrative Complaint, and which imposes, as a penalty for such violations, a suspension of licensure for a term of one (1) year, followed by a two (2) year term of probation (subject to such terms as the Board may reasonably impose), and an administrative fine of $1,000. DONE AND ENTERED this 5th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1998.
The Issue Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(n), Florida Statutes [failure to keep written medical records justifying the course of treatment of patients as set out in Counts 1-4, 6-9, 11, and 13-14 of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(cc) 1, 2, and 3, Florida Statutes [prescription of an amphetamine drug for purposes other than specifically stated in those subsections as set out in Counts 5 (Preludin), 10 (Preludin), and 12 (Ritalin) of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 453.331(1)(t), Florida Statutes [by engaging in gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances as set out in Counts 1-15 inclusive, of the administrative complaint].
Findings Of Fact Respondent, Tariq Husam Abdullah, is a licensed medical physician, practicing under license number ME 0021526. He is also known as Henry Nichols. The two are one and the same and there is no dispute over identity. Respondent appears to have been a hard worker, rising from a "bed pan hustler" at the old Fort Walton Hospital to his current level of education, licensure, and community position. Previous to Florida licensure, Respondent received his medical degree from Meharry Medical College in Nashville, Tennessee, where he also did his internship in straight medicine. Thereafter, Respondent performed three years of anatomical and experimental pathology at Washington University School of Medicine in St. Louis, Missouri, and two years in clinical pathology at the National Institute of Health and the United States Public Health Service in Bethesda, Maryland. Respondent is not board-certified, but is currently board-eligible in both pathology and laboratory medicine. At all times material hereto, Respondent engaged in medical practice in Bay County, Florida. During much of the time in question, Respondent had no assisting staff. His usual fee for each office visit of each of the patients referred to in the fifteen count administrative complaint was approximately $15- 20 maximum. They are a small portion of the approximately 1,000 patients he treated between 1978 and 1982, and in most cases his fees for office visits were $10.00 apiece. Sometimes his fees were paid and sometimes they were not paid. Medicaid and Medicare reimbursed all or a portion of many fees. In the course of his practice Respondent treated the following patients: D.B.; T.B.; Tommy B.; J.C.; L.C.; T.G. a/k/a L.C.; David G.; Dan G.; C.R.; B.W.; and J.M. Petitioner's expert-witness medical doctors were Jabe Armistead Breland and Michael W. Cohen. Dr. Breland was present at the formal hearing and had the advantage of reviewing Respondent's exhibits as well as Petitioner's exhibits in the forming of his opinions. Dr. Breland has been a licensed medical doctor in the State of Florida since September 1950. Most of that time he has practiced in the panhandle of north Florida which includes Panama City, Bay County. His office is in Marianna, Florida. He is board- certified in family medicine, licensed by the federal government to prescribe controlled substances, and was stipulated as an expert in the field of medicine. Dr. Michael W. Cohen testified by means of a deposition taken prior to formal hearing and did not have the advantage of review of Respondent's exhibits admitted in evidence at the formal hearing. He is a family physician with an M.D. from the University of Miami School of Medicine (1975), a graduate of Tallahassee Memorial Hospital Regional Medical Center Family Practice Program, and has been a board-certified family physician for six and one-half years. His practice is limited to Tallahassee and he has testified on contract for Petitioner six times previous to this case. He is accepted by the undersigned as an expert medical witness, but because of the unavailability to Dr. Cohen of Respondent's exhibits which were admitted in evidence at the formal hearing held subsequent to his deposition and because some of the materials upon which Dr. Cohen's opinions were predicated were excluded from evidence at the formal hearing, the weight and credibility of his prior deposition testimony is significantly impaired through no fault of Dr. Cohen and without any unfavorable reflection upon him. Dr. Wilson, Respondent's expert medical doctor who testified by after-filed deposition knew nothing of Respondent's records and was unaware of the precise charges against him. In the absence of appropriate predicate as to medical opinion, his testimony has been accepted only as to facts of which he had personal knowledge and as to character. It is his opinion that Respondent is the kind of person who deserves not to have his license suspended or revoked. Dr. Wilson partly financed Respondent's education. The parties by Request for Admission have established that Preludin is an amphetamine; more accurately Preludin is phenmetrazine. Ritalin is methylphenidate. Dioxan is a methylamphetamine. At all times pertinent these were Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Percodan is also a Schedule II controlled substance. Valium is a Schedule IV controlled substance. Darvon Compound and Tylenol 4 are Schedule III controlled substances. Respondent frequently talked to police, Sheriff's deputies and pharmacists in an effort to avoid his patients becoming addicted to drugs. He never was made aware from any source of any drug addiction or any arrests of any patients concerned in this action. He testified that he performed a physical examination in every case and verified all prior medications in every case, but he also conceded not verifying prior medications with previous doctors or hospitals. It is specifically found that in many instances none of these precautions appear in his records as set out infra. D. B. (Counts I; XV) It is admitted (Requests for Admission) and found that between February 19, 1979, and April 23, 1983, Respondent prescribed at least the following quantities of controlled substances to his patient, D. B.: DATE DRUG STRENGTH QUANTITY 02/19/79 Percodan Approximate 04/30/79 Darvon Compound 03/23/82 Valium 05/13/82 Tylenol #4 06/03/82 Percodan Demi 40 06/16/82 " " 18 07/10/82 " " 07/17/82 " " 36 08/14/82 " " 18 08/28/82 Percodan 08/28/82 Valium 01/15/83 Percodan 03/26/83 " 03/26/83 Valium 04/23/83 Percodan Respondent's treatment of his patient, D.B. with controlled substances was predicated upon his diagnosis of "traumatic arthritis." His records reflect, "hurting ankle, leg, and back" as the chief complaint. In no instance of prescribing scheduled drugs for this patient did Respondent maintain a record of the strength (dosage) and on only a few occasions did he record the quantity prescribed. This particular inadequacy of record-keeping seems also to have applied to additional non- scheduled drugs prescribed by Respondent for this patient. Although Dr. Breland acknowledged that many doctors only record the word "refill," good medical practice dictates that Respondent should have recorded at least the quantity and dosage at the time of the initial prescription. Normal protocol would be to also record the method of taking the medication. On this analysis, in Dr. Breland's professional medical opinion, Respondent's medical records for his patient, D.B. (Composite P-1) were inadequate and did not justify the course of treatment upon the recorded chief complaint. Dr. Cohen concurs. Further record inadequacies as noted by Dr. Breland include failure of the records to indicate which bone was fractured in relating the patient's medical history, recording only blood pressure as a vital sign, and failure to state what condition was being treated on subsequent visits. Dr. Cohen recited the same inadequacies in forming his professional medical opinion that Respondent's records do not justify the treatment received. Dr. Cohen further opined that if the patient had traumatic arthritis, the treatment prescribed was wholly inadequate due to the absence of any recorded plans for therapy. Dr. Breland, on the other hand, felt that a Percodan prescription is consistent with good medical practice for a patient who complains of traumatic arthritis and that Valium, a benzodiazepine drug which is a calmative or tranquilizer, may also be properly used for traumatic arthritis but that Valium would be contraindicated if there were associated patient nervousness and anxiety. Dr. Breland's opinion is that it would not be medical malpractice to prescribe Valium upon the basis of Respondent's records nor would it be medical malpractice based upon the continued prescribing of Percodan unless the patient became addicted. Dr. Breland's experience is that 1-3 months on Percodan would cause individuals to run the risk of addiction but knows of doctors in the Panama City locale who have prescribed Percodan in excess of three months with addiction resulting in some patients and not in others. Respondent conceded that his records for this patient should show greater detail but according to his recollection independent of the medical records, he recalled that on the first visit, he had accepted D.B.'s representation that D.B. had had prior surgery on the left ankle because the pins could be seen through that swollen ankle. Respondent's independent recollection was that D.B. did not ask for Percodan. Respondent testified that he prescribed the Percodan because "after codeine I can't think of another drug with potential for comfort." His failure to record further detail he explained as his belief that writing down prescriptions was a sufficient reference back to the original first visit diagnosis. Respondent admittedly did not record, but expressed independent recollection of also accepting D.B.'s representation of previous unsuccessful medication with codeine from a Dr. Smith and of recommending acupuncture as an alternative pain therapy but admitted he also did not record this latter instruction. The medical records themselves confirm Respondent's testimony in the course of the hearing that Respondent prescribed the scheduled drugs in addition to a number of other medications such as Roboxin and anti-inflammatories which he did record and which Dr. Breland confirmed were appropriate as treatment for traumatic arthritis. A portion of Petitioner's Composite Exhibit 15, court certified records, show one "Donald Richard Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person was subsequently tried and found guilty of one count and entered a plea of guilty to the other. A Circuit Court Judgment was entered. The date of the commission of this person's offenses are close to the date of a prescription by Respondent to his patient "D.B." but there is absolutely nothing in the court documents to connect them to the D.B. treated by Respondent except a partial similarity of name. Nor does the similarity of name of a co-defendant, Tereza Ann Bozeman (see infra.) prove an inescapable link of "Donald Richard Bozeman" to Respondent's patient, "D.B." who was married to someone of partially similar name. Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, "D.B." for a non-medical or criminal purpose or that the patient was drug-addicted. Upon all the foregoing information taken together it is clear Respondent failed to keep written medical records justifying the course of treatment of his patient, D.B. This finding is made despite both of Petitioner's experts' testimony that there is no affirmative professional requirement that dosage and number of tablets be recorded anywhere except on a prescription. That concern is only a portion of the inadequacies of these records. However, in light of Dr. Breland's greater familiarity with all of Respondent's records and the standard of medical practice in the community, and the greater detail provided by his testimony and the explanations provided by Respondent at formal hearing, Dr. Breland's opinion that the course of treatment for this patient, isolated from all others, does not represent malpractice is accepted over Dr. Cohen's opinion that it does. T. B. (Counts II, XV) It is admitted (Requests for Admission) and found that between approximately May 1, 1982, and April 9, 1983, Respondent prescribed at least the following quantities of schedule- controlled substances to his patient, T.B.: DATE DRUG STRENGTH QUANTITY 05/01/82 Valium 05/01/82 Percodan Demi 07/10/82 " " " 30 08/14/82 " " " 08/14/82 " " " 18 08/14/82 Valium 09/11/82 Percodan 09/11/82 Valium 12/12/83 Percocet #5 Although in some respects, Drs. Breland and Cohen emphasized different faults or inadequacies of Respondent's records which they reviewed concerning T.B. (Composite P-2), both experts concur that the records do not justify the course of treatment of this patient. Dr. Cohen bases his opinion on his analysis that the history Respondent recorded for this patient was not sufficiently detailed. Specifically, the initial office visit record is flawed by only writing down patient's vital signs and recording no physical findings. Dr. Cohen stated it is unjustifiable to prescribe a narcotic analgesic on the first office visit and to continue to refill the prescription on subsequent visits without recording how the patient had done on those medications and further without recording physical examination, assessment of how the patient is responding to the medication, a plan outline for prophylactic care, and patient education. Further, both Drs. Breland and Cohen assert that although there is no affirmative professional requirement to record dosage and tablet numbers except on prescriptions, it is the custom of reasonably prudent similar physicians to record amount, dosage quantity of drugs prescribed, and method of taking drugs, and Respondent's records do not do so. Respondent's records for this patient also offend custom and usage of the profession in that they indicate several office visits for which there are no recorded findings or treatments whatsoever. Dr. Breland's opinion that the records do not justify the treatment and that they fall below the customary standard of care are based on his analysis thereof emphasizing that the records of the first office visit do not evidence a physical examination other than taking a blood pressure reading and weighing the patient. There is a brief history of migraine headaches for three months recorded and also recorded is a past diagnosis and treatment with codeine and talwin; the records note no previous surgery, no previous fracture, and no physical findings. Then, Cafergot PB #2, Valium #3 and Percodan-demi were prescribed by Respondent. The records should have specified whether or not previous treatment was successful and if it was successful, Respondent could have subsequently prescribed less addictive drugs. In Dr. Breland's opinion, it is "hard to justify" a Class II drug without trying some other modalities available. Respondent first saw this patient on May 1, 1982, for migraine headaches and prescribed Cafergot PB and Percodan-demi. He selected Percodan- demi because Percodan is habit-forming. In the course of the formal hearing, he testified, "I just didn't know another medication to go to after you pass codeine that would be effective with patients, other than giving them Demerol and the harder narcotic medications" and that when he first began seeing this patient he was less aware of the similar use of the less addictive drug, Inderal, than he is now. On the physical examination portion of his clinical notes, Respondent indicated that the patient had been using Codeine, Talwin, and "Dx" and "Rx". He then and thereafter (8/14/82 and 9/11/82) prescribed analgesics and vasoconstrictors (Cafergot PB and Ergotamine) together with the Valium because Valium, in his opinion, is often ineffective without more because of the significant emotional components of migraine headaches. Respondent also expressed his independent recollection of discussing with this patient the alternative treatment of acupuncture but admitted he did not record this instruction. Respondent's explanation is not sufficient justification for the repeated prescriptions of controlled substances in light of Dr. Breland's more knowledgeable and thorough explanation of the standards of record-keeping necessary to justify continued prescription of the particular controlled substances here at issue. Dr. Breland faults another of Respondent's prescriptions dated 12/4/82 of Cafergot PB#2 (a combination of drugs primarily containing an Ergotamine derivative and caffeine), Percocet, and Valium because Respondent's records do not show how many pills were prescribed nor do they give directions for taking them. For prescriptions on 1/8/83, 8/14/82, 9/11/82, and 2/12/83, Dr. Breland expressed as his chief concern that there was an absence of recorded physical findings, history, and blood pressure plus no recorded amount of dosage listed for most prescription drugs, but Dr. Breland also determined that prescribing Cafergot is consistent with Respondent's diagnosis of vascular headaches and his prescriptions for these dates is an appropriate lesser treatment to be tried before prescribing a Schedule II drug, and, further, that Respondent's records justify prescribing Cafergot. However, the opinion expressed in the prior sentence is not compelling in face of the records having no notations to show the effect, if any, of Cafergot or other drugs or to show why Respondent prescribed stronger medication. Dr. Breland also felt Respondent should have prescribed other less addictive drugs before going to the Schedule II-controlled substances as he did, and that if Respondent's findings were negative, he should have recorded them as negative rather than leaving the record blank, because without such records it cannot be determined if a physical examination was ever made and because in absence of recorded physical findings, no Schedule II drugs should have been prescribed. A portion of Petitioner's Composite 15, court-certified records show one "Tereza Ann Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person entered a plea of guilty to a lesser-included misdemeanor. The Circuit Court withheld adjudication and placed her on probation. The date of one of the offenses coincides with one of the dates of a prescription by Respondent to his patient, "T.B." but there is absolutely nothing in the Court documents to connect them to the "T.B." treated by Respondent, except a partial similarity of name. The court documents also charge "Donald Richard Bozeman" who has a similar name to that of another of Respondent's patients (see supra.) but the court documents do not indicate the charged individuals are married or provide any other link to Respondent's patient(s). Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, T.B., for a non-medical or criminal purpose or that the patient was drug-addicted. Tommy B. (Counts III, XV) It is admitted (Request for Admissions) and found that between approximately August 16, 1981, and February 19, 1983, Respondent prescribed at least the following quantities of schedule controlled substances to Tommy B.: DATE DRUG STRENGTH QUANTITY 08/15/81 Valium 08/15/81 Percodan 08/15/81 Dalmane 10/30/81 Tylox 12/05/81 " 12/05/81 Valium 12/06/82 Darvon compound 02/17/82 Percodan 30 04/01/82 " Demi 04/01/82 Percodan 30 05/29/82 Percodan Demi 06/21/82 Tylox 24 07/12/82 Percocet #5 30 02/19/83 Percocet 02/19/83 Valium In the course of the hearing, Respondent independently recalled that this patient presented on 8/15/81 and that Respondent himself personally recorded the notes for that date including a history, diagnosis of L-S syndrome, and treatment. On that date he observed scars on the patient's back from back surgeries which the patient related had been done at Southern Baptist Hospital in New Orleans. Respondent conceded that he failed to record the physical findings of scars and failed to record full details of the related surgeries so that at first glance it might appear to others, in this case Dr. Breland, that Respondent was only filling in a history of surgeries without making his own diagnosis. Respondent stated that he had relied on the Physician's Desk Reference, which he characterized as a "bible of the medical profession", and which recommends Percodan as a pain-killer. The treatise itself was not offered in evidence. Respondent also stated that the Percodan-based drugs he prescribed effectively relieved this patient's pain. There is no contrary evidence on this point of effectiveness but it still was not contemporaneously recorded by Respondent in the patient's record. Both Drs. Cohen and Breland opined that Respondent's records for Tommy B. did not justify the prescribing of these controlled substances, most specifically Percodan. These opinions have not been accepted for the following reasons. In the absence of any supporting evidence, Dr. Cohen's considerable testimony concerning his belief that this must have been a scam or scheme of Respondent to indirectly charge for a controlled substance prescription by requiring frequent office visits is rejected as conscientious but pure conjecture. Dr. Breland expressed concern that Percodan-demi was among the drugs prescribed by Respondent in the presence of a record notation within the physical findings which relates that "patient says he can't take Percodan". Respondent denied he made this notation, and related it is in someone else's handwriting and not true. Respondent's testimony on this score is corroborated by clear observation of the records. Most of Dr. Breland's other complaints concerning Respondent's record of this patient devolve to Dr. Breland's inability to read Respondent's handwriting and his original erroneous belief that the history and exam was chronologically incorrect and taken by someone other than Respondent. Dr. Breland's opinion that the records are deficient because the fracture of the back was not specifically recorded by Respondent's indicating whether there was an old fracture or current pain and by Respondent's not indicating whether there was thoracic or lumbar distress, and because there is no recitation of whether the fracture is pelvical or in any body of the vertebrae, and his objection to failure of Respondent to either record "no x- rays" if none or to record x-rays if there were some instead of leaving a blank space constitute technique over professional custom requirement of record- keeping. Dr. Breland also described the two month fluctuation down to Percodan- demi and then up to the stronger drug of Percocet from 4/1/82 to 2/19/83 as unjustified because no less addictive medicines had been tried and no degree of relief from less addictive drugs was attempted by Respondent, but Dr. Breland described the Percodan- based drugs and the Valium as medically acceptable where based on the degree of relief the patient had received. In such a situation Dr. Breland would use these drugs for pain treatment and consider them medically justified. Like Dr. Cohen, Dr. Breland also found unacceptable the failure of Respondent to record amounts and dosages in his office medical records, but on many occasions throughout their testimony, both of Petitioner's experts observed the requirement of listing amount and dosages is for prescriptions only and not for a doctor's office records. Upon the failure of adequate predicate for Dr. Cohen's conclusion of unjustified prescriptions, the absence of any admissible evidence of any addiction in this patient, and the only positive evidence of the effect of these prescriptions being Respondent's opinion that it was effective, the opinions of both Drs. Cohen and Breland that the medical records do not justify the course of treatment of Tommy B. are rejected. J. C. (COUNTS IV; XV) It is admitted (Requests for Admissions) and found that between January 4, 1982, and February 26, 1983, Respondent prescribed at least the following schedule-controlled substances to J.C.: DATE DRUG STRENGTH QUANTITY 01/04/82 Percodan 24 03/23/82 Tylox 30 04/17/82 Percodan 04/17/82 " " 05/01/82 Tylenol #4 30 05/01/82 Valium 30 05/04/82 Tylox 30 06/12/82 Valium 06/16/82 Tylox 36 07/17/82 " 30 08/14/82 " 30 10/03/82 " 30 10/30/82 Tylenol #4 11/13/82 Percodan 30 01/15/83 Percocet 01/15/83 Valium 28. J.C.'s chief complaint was migraine headaches, "nerves", and back trouble. Respondent prescribed Percodan for pain, Valium for "nerves", and Cafergot-pb for migraines. He diagnosed hypertensive heart disease, anxiety neurosis, migraine headaches, and lumbosacral syndrome. He only used Percodan four times over a year's period due to the severity of the symptoms brought on by the tug and strain on this 200-pound woman's back. Dr. Cohen ranks the relatively minimal fault of writing progress notes in two corners and across the top and side of a page in the same category as overprescribing. Dr. Cohen's concern over the absence of recorded physical findings for this patient was not confirmed by Dr. Breland (see infra.) and his concern because the number and dosage of Cafergot-pb (non-scheduled), Valium (scheduled) and Percodan (scheduled) were frequently not recorded by Respondent is less significant in light of Dr. Breland's testimony that the best custom and practice of the medical profession is to record these matters but such recordation is not required for office records but only for prescriptions. Dr. Cohen also faulted Respondent for prescribing symptomatically with no effort to educate the patient to prevent or "prophylax" against migraines or to prescribe common anti- inflammatory medications usually prescribed for migraines. Dr. Breland noted that Tylenol #4 is a controlled substance but made no specific objection to Respondent's prescription of it for this patient. Cafergot-pb is not a controlled substance and its prescription by Respondent was not faulted by Dr. Breland. All of Dr. Breland's testimony on this patient is couched in vague terms of "it is hard to justify" Respondent's prescription of Percodan and Percocet on just this work-up and Dr. Breland felt Respondent's prescription of Percodan on the first visit was not justified without obtaining a further medical history, but he would have approved eventual (not first visit) use of Percodan for this patient's migraine headaches if it were not for the presence of hypertensive heart disease or her neurosis. Although the records fail to state why Percodan-based drugs were used, Dr. Breland felt these drugs would have been appropriately prescribed for the lumbosacral syndrome. By comparison, J.C's recorded medical history is more extensive than that of most of the patient records involved in this action. The history taken by Respondent lists previous surgery of a hysterectomy, of a previous fracture to the left hip, and of a tonsillectomy. Also given is an elevated blood pressure of 160 over 100, height and weight, state of parity, and diagnoses. The date of her last period and of her hysterectomy are not given. Petitioner's two expert witnesses each would have made separate and different judgment calls on all prescriptions here related, except that each concurs that Respondent's initial prescription of Percodan on this patient's first visit was unjustified without a further recorded history; therefore, Dr. Breland's summation that the records justify overall treatment of this patient is accepted. L. C. (COUNTS V; VI; XV) It is admitted (Requests for Admission) and found that between approximately March 27, 1978, and April 23, 1983, Respondent prescribed at least the following quantities of schedule-controlled substances to L.C.: DATE DRUG STRENGTH QUANTITY 03/27/78 Darvon Compound 07/21/78 Darvon 07/21/78 Darvon Compound 07/21/78 Valium 10/23/79 Percodan 10/31/79 Preludin 11/17/80 Preludin 11/28/81 Darvon Compound 12/28/81 Percodan 24 01/14/82 " " 30 04/02/82 " " 36 06/08/82 " " 36 07/17/82 " " 36 08/28/82 " " 36 09/25/82 " " 24 09/25/82 Darvon Compound 12/03/82 Percodan 30 01/15/83 " " Dr. Cohen's opinion that there had been prescription of an amphetamine drug for an unjustified purpose and that the patient's records did not justify the Respondent's prescribed course of treatment is rejected as partially predicated upon inadmissible and unadmitted exhibits. The opinion of Dr. Breland is accepted that most of these prescriptions as only part of the course of treatment as a whole were acceptable. More particularly, Dr. Breland indicated there are other doctors similarly geographically situated who use Percodan similarly; there was a very adequate history taken, although the date appears out of order on the page; Respondent's early prescribing of Roboxin and Darvon (one of the less addictive controlled substances) would be a good treatment for osteoarthritis which was part of Respondent's diagnosis of this patient; there was not enough Percodan prescription here for Dr. Breland to say it was not justified in this patient's case. Dr. Breland was unsure when Preludin became a scheduled substance and so would not comment on that aspect of the case. This is an issue of law and is discussed under "Conclusions of Law." T. G. (COUNTS VII; XV) Between approximately July 23, 1978, and April 26, 1983, Respondent treated a patient by the name of T.G. During that period, the stipulated records reveal at least the following prescriptions, among others: DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 7/23/78 30 Percodan 7/23/78 Darvon Compound 9/21/78 Percodan 10/14/78 Percodan 10/14/78 Darvon Compound 11/21/78 24 Percodan 11/21/78 Darvon 12/6/78 30 Percodan 12/6/78 Darvon Compound 12/28/78 Percodan 12/28/78 Darvon 1/23/79 Qualudes 1/29/79 24 Percocet 1/19/82 24 Percocet 3/4/82 Valium 3/4/82 Percodan 4/29/82 Percocet 8/19/82 Percodan 8/19/82 Valium 10 mg 9/25/82 Valium 9/25/82 Percocet 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Percocet 10/14/82 40 Valium 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Valium 10/14/82 40 Percocet #5 10/14/82 40 Percocet 10/14/82 40 Valium Additionally, the Respondent occasionally prescribed Tetracycline and Actifed Syrup for colds, and the parties have stipulated these are not controlled substances. Although Dr. Breland tagged Respondent's use of Roboxin 750, Percodan 30, Darvon compound and Prednisone (a Cortisone- like anti-inflammatory) on the first visit as "borderline acceptable," it was his and Dr. Cohen's mutual opinions that in the absence of recorded physical findings, the Respondent's prescribing of controlled substances in these quantities and with this frequency to this patient was not justified by the records Respondent kept. Dr. Breland, in particular, found unacceptable the Respondent's diagnosis of lumbosacral syndrome without detailed physical findings or any x-ray diagnosis, and both experts took exception to the continued and repeated prescriptions of the addictive drugs, Valium and Percodan, in a case where Respondent's records repeatedly indicate a good response. Both further opined against Respondent's delayed attempt to diminish the use of these addictive drugs. The doctors' opinion that the records do not justify the prescriptions are accepted. DAVID G. (Counts VIII; XV) The stipulated records reveal at least the following controlled substances were prescribed by Respondent to his patient, David G., between December 17, 1981, and February 12, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 12/17/81 Ativan 12/30/81 Ativan 2/12/82 Valium 3/06/82 Seconal 3/11/82 Valium 4/08/82 Seconal 8/28/82 Seconal 8/28/82 Valium Respondent saw this patient 12 times in approximately 2 years and accepted David G.'s representation that he had been previously prescribed Ativan, a controlled substance of the same chemical family as Valium. Although Respondent claims he verified all prior medications, the verification here is not reflected in his record. The records themselves do not reflect for most occasions why this patient was being treated nor do they set forth an assessment of why Respondent switched from less to more addictive sedative hypnotics. Ativan is a tranquilizer on Schedule III. Seconal is a sedative on Schedule II. In an isolated response, Dr. Breland testified that if the Respondent's initial diagnosis of insomnia and anxiety neurosis had been arrived at after taking a proper history and after a proper physical examination which was not recorded, he would not find Respondent's use of these medications, including Seconal, improper, because there are doctors in the same geographical area who would also use Seconal. However, the ultimate opinion of both of Petitioner's experts is accepted that in the absence of a recorded initial physical examination and a recorded history beyond merely recording height and weight and an unverified former medical treatment, the course of this patient's treatment was not justified by the records kept. DAN G. (Counts IX; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, Dan G., Jr., between January 9, 1979, and April 22, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 01/09/79 Percodan 02/22/79 Talwin (50 mg) 11/18/81 Percodan 11/30/81 Percodan 01/02/82 Percodan 01/19/82 Percodan 02/05/82 Percodan 03/30/82 Percodan 04/12/82 Percodan 05/01/82 Percodan 05/01/82 Valium 05/18/82 24 Percodan 06/05/82 Valium 06/22/82 Percodan Demi 06/22/82 Darvon Compound 06/22/82 Valium 07/24/82 Percodan 07/24/82 Valium 08/28/82 Percodan Demi 08/28/82 Valium 09/25/82 Percodan 09/25/82 Valium 10/30/82 Valium 10/30/82 Percodan 12/03/82 Percodan 02/19/83 Percocet 03/26/83 Percodan 03/26/83 Valium 04/22/83 Tylox 04/22/83 Valium Respondent's records for this single patient sometimes specify "Jr." and sometimes do not. The initial record indicates a surgical incision along the lateral aspect of both femurs and pain on palpation of both hips, and records a history of total hip arthroplasty (two total hip replacements) in 1979 with the patient evidencing pain secondary to a post-operative procedure to correct aseptic necrosis of both femurs. At formal hearing, Respondent stated that this patient first presented in a wheel chair and returned frequently, due to chronic pain and was already on Demerol when first seen by Respondent. The chronic pain was not always repeatedly recorded in Respondent's records. Both of Petitioner's experts concede that prescriptions of Percodan would be consistent if that were all that were relieving the pain when the patient presented to Respondent, and Dr. Cohen opined that Percodan and Talwin were possibly consistent with aseptic necrosis of a femur. Respondent had admitted (R-1), a hospital summary of subsequent surgery (conversion of left total hip arthoplasty to girdlestone on 8/19/83) at the Veteran's Administration Hospital in Gainesville. This exhibit of subsequent surgery corroborates the previous 1979 history taken by Respondent which indicated that medications on discharge from the VA Hospital included Demerol 50 mg. po q 4h prn for pain. In light of no evidence of patient addiction and no evidence of poor response by this patient to Respondent's prescribing and treatment, the opinions of Dr. Breland and Dr. Cohen that Respondent's prescribing was excessive and necessarily addictive and therefore was unjustified are rejected, however the undersigned accepts their mutual opinions that the Respondent's records by themselves without the subsequent corroboration of the VA Hospital report do not justify the treatment Respondent administered to Dan G. Respondent admits R-1 was not relied on in treating this patient. C. R. (Counts X; XI; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, C.R., between July 3, 1978, and April 22, 1983: 2/ DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCES 07/03/78 Percodan 07/03/78 Percodan Compound 07/20/78 30 Percodan 08/14/78 30 Percodan 11/01/78 30 Percodan 12/05/79 Desoxyn 12/05/79 Percodan 01/02/79 Desoxyn 02/05/79 Percodan 02/12/79 18 Percodan 03/28/79 Percodan 04/16/79 Percodan 05/03/79 Percodan 05/17/79 Percodan 05/17/79 Darvon Compound 05/17/79 Percodan 05/17/79 Darvon Compound 06/14/79 6 Percodan 06/14/79 24 Desoxyn 09/18/79 Desoxyn 10/04/79 Percodan 11/10/79 Preludin 01/28/80 P 06/12/80 Preludin (75 mg.) 09/18/80 Preludin (75 mg.) 11/17/80 Percodan 01/27/81 Darvon Compound 04/27/81 Percodan 07/28/81 Percodan 08/31/81 24 Percodan 09/21/81 24 Percodan 12/16/81 Percodan 01/06/82 Percodan 01/29/82 Percodan 03/02/82 Percodan Demi 03/02/82 03/28/82 Percodan 04/20/82 Percodan 05/13/82 06/04/82 Percodan Demi 07/03/82 Percodan Demi 08/03/82 36 Percodan Demi 08/28/82 Percodan 08/28/82 Valium 12/20/82 24 Percocet 5 12/20/82 30 Valium (10mg) 01/15/83 6 Tylenol #6 01/22/83 Percodan Preludin and Desoxyn are amphetamine drugs. Desoxyn was legitimately prescribed for weight control in 1978. Respondent's prescription of both drugs was ostensibly to modify the amount of weight supported by the patient's leg bones. Dr. Breland is not sure whether both drugs were reclassified for control in 1979 or not but this is an issue of law resolved in "Conclusions of Law" supra. Despite Dr. Breland's testimony that if he did not have to base his opinion on the Respondent's inadequate recorded history and findings, he would term the prescribing of Percodan and Roboxin as recorded to be borderline acceptable, the undersigned accepts his and Dr. Cohen's mutual opinion that the frequent prescriptions of Percodan, Percodan- demi or Percocet (narcotic analgesics) for the Respondent's recorded diagnosis of arthritis and right leg pain resulting from previous right thigh surgery are unjustified by the records. Their respective opinions that this pattern of prescribing was excessive and unjustified in light of the potentially addictive nature of these drugs is also accepted. B. W. (Counts XII; XIII; IV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, B.W. between June 7, 1979, and January 29, 1983. 3/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/01/79 Valium 10/15/79 Tylenol #3 06/19/80 Tylenol #3 06/08/81 Ritalin (20mg) 08/11/81 Valium 08/15/81 Valium 09/15/81 Talwin 11/14/81 Talwin 12/07/81 24 Ritalin (20 mg) 12/20/81 Talwin 01/23/82 Talwin 02/12/82 Percodan Demi 02/27/82 Tylenol #4 03/04/82 Ritalin 03/18/82 Percodan Demi 04/02/82 30 Talwin 07/03/82 24 Ritalin 08/28/82 30 Ritalin 09/22/82 24 Percodan 10/14/82 Talwin (50mg) 12/21/82 24 Percodan 01/29/83 Tylox Ritalin is a sympathomimetric amine drug, which may only be properly prescribed in certain types of cases more specifically set out in the following "Conclusions of Law." Respondent's diagnosis, that this patient had chronic anxiety and back pain, is reflected in his written records. This is essentially the only recorded history on this patient. Respondent did not record a diagnosis of narcolepsy. Respondent did, however, introduce R-2, a consultation report to a Dr. Yankovich dated 1/5/82 from a Dr. Elzawahry which states the impression: "narcolepsy; low back syndrome. . . maintain on Ritalin 10 mg. po tid." Respondent testified that he had received similar information concerning the narcolepsy and psychiatric disturbance earlier than 1/5/82 first by telephone and then by written reports thereon from consulting neurologists, surgeons, and psychiatrists, and that through inadvertence this document was not turned over to Petitioner's investigator. However, Respondent did not explain why his files did not contain these other consultants' reports or why he did not write-up their contents or the dates they were received by him or why his prescriptions of 20 mg were so much greater than those recommended by Dr. Elzawahry. Dr. Breland felt that if Respondent were aware when he first prescribed Ritalin to this patient that the consultant had recommended it because of a good response, then Respondent's Ritalin prescriptions would be justified. It was also noted by Dr. Breland that Ritalin once was believed by the medical profession to be appropriately prescribed in the treatment of depression but that method had ceased and was statutorily proscribed by the time periods in question. Dr. Breland's expert opinion on prior belief of the medical profession is accepted. His conclusions of law invade the province of the hearing officer and are rejected in part and accepted in part as set out in the "Conclusions of Law." Dr. Breland did not feel under the circumstances that the Ritalin was contraindicated. Accordingly, Dr. Cohen's testimony that Ritalin is very dangerous if prescribed for chronic anxiety and depression is hereby discounted in that unlike Dr. Breland, he did not have the benefit of R-2 when testifying by earlier deposition. Dr. Cohen felt Valium was useful for chronic anxiety and that Tylenol #3 and Talwin were useful for pain but that there were excessive prescriptions of these drugs with few or no notations indicating any pain. In most instances all that is noted in Respondent's records on this patient is a prescription listed beside the date. Dr. Breland remarked that even the forms used by Respondent did not include a space for physical findings. J. M. (Counts XIV; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, J. M., between October 25, 1980, and March 9, 1982: 4/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/25/80 Percodan 01/05/81 Percodan 05/19/81 Emprin #4 06/03/81 Emprin #4 07/29/81 18 Percodan 09/25/81 12 Percodan 09/25/81 18 Tylenol #3 11/07/81 24 Tylox 11/21/81 Percodan 12/17/81 Percodan 01/02/82 Percodan 02/22/82 Percodan 03/09/82 Percodan The records of history and findings on this patient are reasonably complete and were faulted by Dr. Breland mostly because without appropriate dates one cannot tell if the history was taken on the initial visit as it should have been or later, and because the dates given are frequently out of order. In Dr. Breland's opinion, some of the modes of therapy utilized by Respondent were not of his choice but Dr. Breland only seriously objected to Respondent's continued and excessive use of Percodan as unsafe. Dr. Cohen's opinion was that the Respondent's conduct constituted mal- prescribing over malpractice. Dr. Breland's opinion was that Respondent's overall conduct with regard to these eleven patients constituted malpractice in that it was the failure to practice medicine with that level of care, skill and treatment of a reasonably prudent similar physician, under similar circumstances. Dr. Breland has had the benefit of reviewing all of Respondent's exhibits and he practices in the same geographical locale as Respondent. His opinion in this regard is accepted as to the overall pattern of practice with these eleven patients, despite his previous opinions that specific cases might not evidence malpractice.
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
The Issue The issue in this proceeding was whether Respondent violated Subsections 458.331(1)(g) and (t), Florida Statutes, between June 26, 1980 and September 16, 1983, by prescribing 4,100 Percocet to a single patient, failing to attempt other modalities of pain treatment for that patient and failing to refer the patient to a consulting physician.
Findings Of Fact At all times relevant, Robert G. Gilbert, M.D., Respondent, was licensed as a physician with license number ME0005030 from the Florida Board of Medical Examiners. He has been continually licensed since 1952. (Petitioner's Exhibit #3, T-13, 18) Neither the Department nor any hospitals have ever taken any action against his license. (T-13) Dr. Gilbert admitted at the hearing that he prescribed 4,100 pills of Percodan to his patient, George Watson, for the period of time in question. (T-9) He also stated that he prescribed for Mr. Watson 100 Percocet a month for the last five years that he treated him. (T-20-21) These admissions are consistent with Petitioner's evidence consisting of medical records and original prescription forms retrieved from the pharmacies. (Petitioner's Exhibits #1, 2 and 4) Percodan and Percocet both contain oxycodone; Percodan includes aspirin, and Percocet includes acetaminophen. (T-31) Both Dr. Gilbert and Petitioner's expert, Dr. John Handwerker referred to the PDR (Physicians' Desk Reference) regarding the drugs. The warning in that widely-accepted medical reference is: "May be habit forming"; the indications are "For the relief of moderate to moderately severe pain"; and, * * * Dosage should be adjusted according to the severity of the pain and the response of the patient. It may occasionally be necessary to exceed the usual dosage recommended below in cases of more severe pain or in those patients who have become tolerant to the analgesic effect of narcotics. The usual dosage is one tablet every six hours for pain. PDR, 1984 Edition, p. 928. The Oxycodone content in these drugs places them in the Schedule II, severely restricted medical category. (T-31), See Subsection 893.03(2)(a), Florida Statutes. Dr. Gilbert did not admit that the drugs were the only mode of treatment for this patient. Rather, he and other physicians treating Mr. Watson used ultrasound, heat, cold, massage, transcutaneous neural stimulation ("TNS") and muscle relaxants. (T-9-10) The patient was 6'2" and weighed 210 lbs. He was injured on his job as a City of Miami police officer and for a lengthy period, from 1974 until 1985, Dr. Gilbert was his authorized worker's compensation physician. At no time while Mr. Watson was under Dr. Gilbert's care did he ask for an increase in dosage or exhibit any unusual behavior. The treatment, other than drugs, was utilized from 1974 until about 1977 regularly and then intermittently, as needed, until February 1985. (T-10, 12) The records of George Watson obtained by the D.P.R. from Dr. Gilbert's office, consist primarily of cards reflecting various visits of the patient, correspondence regarding the workers' compensation claim and workers' compensation billing and report forms. The records are replete with references to physiotherapy, often several times a month and, for several months in 1977, on a daily basis. George Watson continually complained of pain. (Petitioner's Exhibit #1) Also included in the records is a three-page report on the patient, dated July 30, 1977, from Ledford Gregory, M.D., an orthopedic surgeon. The report reflects the patient's complaints of severe pain and Dr. Gregory's recommendation to the patient regarding surgery: I am however impressed by the degree of pain he is having and I believe that he is a candidate for surgical therapy. Before a decision would be made in this regard however, he should have an electromyelogram of the lower extremity, a CAT scan of the lumbar spine and a myelogram. We could then decide whether a Gill procedure and decompression would be sufficient or whether there would have to be added a posteriolateral fusion procedure. I have discussed this with the patient. I have explained to him that the odds are fairly good that the operation would give him considerable relief but that there is a chance that his condition would remain unchanged, and there is a slight chance that he might be worse. He will have to make the decision himself as to whether he desires the surgical intervention or not. (Petitioner's Exhibit #1, p. 171). Dr. John Handwerker was qualified as an expert witness for Petitioner. He heard Dr. Gilbert's testimony and reviewed the medical records, including the prescriptions for George Watson. (T-30,31) In his opinion the prescriptions for Percocet/Percodan were inappropriate and excessive as there were other treatment modalities that could have been tried before risking addiction. In his opinion, the TNS unit should have been utilized continually, rather than just in the office, and Dr. Gilbert's records were inadequate to justify the continuing use of the drugs for his patient's pain. (T-32, 33, 38).
Recommendation For the foregoing reasons, it is, therefore, RECOMMENDED: That the Administrative Complaint against Respondent, Robert G. Gilbert, M.D., be dismissed in its entirety. DONE and RECOMMENDED this 23rd day of May, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Cecilia Bradley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert G. Gilbert, M.D. 2617 Cardena Street Coral Gables, Florida 33134 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Paragraph 1. Adopted in Paragraph 2. Rejected as unnecessary. Rejected as unnecessary. 5-7. Rejected as unnecessary. While the veracity of the witness is not in question, the testimony of the Respondent under oath and substantiated by the medical records introduced as Petitioner's exhibit #1 is more competent evidence that other modalities were tried. Without the actual questions asked by the investigator, it is not possible to determine the context or meaning of the seemingly inconsistent prior statements of Respondent during the investigator's interview. Adopted in part in Paragraph 3, the transcript reference does not support the finding proposed in this paragraph. Adopted in Paragraph 6, except as to the characterization of the testimony as "uncontroverted", this is specifically rejected. Adopted in general in Paragraph 6. Rejected as cumulative and unnecessary. Rejected as inconsistent with the evidence. Adopted in general in Paragraph 6. Adopted in general in paragraph 6. But see Conclusions of Law #4 regarding violations which are not included in the complaint. Adopted in paragraph 2. Rejected as cumulative. Rejected as cumulative. Rejected as unnecessary. This conclusion by the expert is rejected as discussed in the Conclusions of Law. 23-25. Rejected as unnecessary. 26. Rejected as irrelevant in this proceeding. Incapacity is not charged in the complaint before me. See Conclusion of Law #4.
