Findings Of Fact Respondent, William van der Velden, was at all times material hereto a licensed pharmacist in the State of Florida, having been issued license number 0017023. During the month of October, 1985, while employed as a relief pharmacist at Lakeside Pharmacy, Pompano Beach, Florida, Respondent personally placed a flyer on the door of approximately 100 neighborhood residents which read as follows: We make house calls! I can cut your medical costs and save you hundreds to thousands of dollars each year! Now, you may not have to see your physician in order to be issued a prescription and then make a second stop at a pharmacy to have the prescription filled. According to a new Florida Law, I can issue you a prescription and fill that prescription in the nearby Lakeside Pharmacy. And if your [sic] can't get out of the house, I even make house calls. And I can bring you your medicine when I make my next visit. I am Dr. William van der Velden, Doctor of Pharmacy and Certified Consultant Pharmacist. I am an expert in the knowledge and usage of all Prescription Medicines, Patent Medicines, Vitamins and Nutrition. I can answer all of your medicine questions. Questions like: Are there any serious side effects to my medicines? What interactions should I watch out for? Are there newer or better medicines for my condition? Are there less expensive medicines that will work just as well for my condition? What about generics? How long should I expect to take this medicine? Get the most out of your prescriptions, vitamins and nutrition. Make sure they all work well together. By having your medication regimen tailor-made to individual requirements you will ... Gain better health Save money by taking only the medicines best suited for you. Don't buy inappropriate remedies in a supermarket. Some Patent Medicines may do more harm than good. First call me -- The Medicine Expert. I can either treat you or, if necessary, refer you to an equally well qualified physician. At Home Consultations allow me to look at the whole patient and then prescribe the best medicines for your condition. Call for an appointment today and start feeling healthier, wealthier and wiser about your medicines. I do make house calls! Call 782-0580 or 946-1717 The impetus for Respondent's action was, in his words: The store was not doing well in filling prescriptions, so the idea of prescribing was thought a means to possibly increase the volume of prescriptions . . . Respondent's efforts apparently engendered no interest except that of the Broward County Sheriff's Office, Organized Crime Division. On December 16, 1985, Detective Debra Slocum placed a telephone call to the number advertised on the flyer, 946-1717, 1/ and spoke with the Respondent at his residence. She informed Respondent that she had one of his flyers, that she was suffering from anxiety and insomnia because of a bad divorce, and requested an appointment. Respondent advised Detective Slocum that he worked through Lakeside Pharmacy and that she should call there to make an appointment with him or his associate, Bob Rideman. 2/ Later that day, Detective Slocum called the pharmacy and spoke with Mr. Rideman, who had been alerted by Respondent to expect her call. Following that conversation, Detective Slocum met Mr. Rideman at the pharmacy and, without benefit of a prescription, was given two tablets of Ergoloid. Ergoloid is a medicinal drug which requires a prescription to be dispensed. Respondent avers that his actions were authorized by Section 465.186, Florida Statutes, since they occurred subsequent to October 1, 1985. Respondent's assertion demonstrates an appalling lack of comprehension of the English language or a blatant fabrication. Section 465.186, Florida Statutes, effective October 1, 1985, provided: Pharmacist's order for medicinal drugs; dispensing procedure: development of formulary.- There is hereby created a committee composed of two members of the Board of Medical Examiners licensed under chapter 458 chosen by said board, one member of the Board of Osteopathic Medical Examiners licensed under chapter 459 chosen by said board, three members of the Board of Pharmacy licensed under this chapter and chosen by said board, and one additional person with a background in health care or pharmacology chosen by the committee. The committee shall establish a formulary of medicinal drugs which may be made available to the public upon the order of a pharmacist which is issued pursuant to a dispensing procedure established by the committee for each drug contained in such formulary. . . * * * The Board of Pharmacy, the Board of Medical Examiners, and the Board of Osteonathic Medical Examiners shall adopt by rule a formulary of medicinal drugs and dispensing procedures as established by the committee. A pharmacist may order and dispense a product from the formulary pursuant to the established dispensing procedure, as adopted by the boards, for each drug in conjunction with its inclusion in the formulary. Any drug product ordered by a pharmacist shall be selected and dispensed only by the pharmacist so ordering, and said order shall not be refilled, nor shall another medicinal drug be ordered for the same condition unless such act is consistent with dispensing procedures established by the committee. (Emphasis added) Not until May 1, 1986, was a formulary of medicinal drugs and dispensing procedures established. Rule 21S-18.001-18.004, Florida Administrative Code. Accordingly, pharmacists had no authority in 1985 to issue prescriptions, treat patients, or prescribe medicinal drugs, and Respondent could not have reasonably believed otherwise.
Findings Of Fact The Respondent, Peter Alagona, Jr., is licensed to practice medicine in the State of Florida. He is board-certified in internal medicine with a subspecialty in cardiology and has practiced cardiology since 1981. There is no evidence that the Respondent has been the subject of professional discipline except for this proceeding. In 1989, the Respondent became acquainted with V.P., who worked as a receptionist at a hospital where he had practice privileges. Their work relationship became friendly and, although the Respondent was married and had children, he and V.P. responded to each other's friendly manner by mutual flirtation. At first, their flirting was discrete but later became more open and romantic. The Respondent began to write V.P. notes and greeting cards and send her flowers. In approximately May, 1989, V.P. indicated her willingness to begin an intimate and sexual relationship. The Respondent did not hesitate to oblige her. There is no evidence that the Respondent used a doctor-patient relationship to induce V.P. to engage in sexual activity with him, as alleged. When the sexual relationship began, there was no doctor-patient relationship between them. During her tenure at work at the hospital, V.P. from time to time complained of a rapid heart beat, and one of the four cardiologists at the hospital would respond to her complaint. The Respondent was one of the several doctors who had occasion to respond. No treatment ever was required. V.P.'s heart beat would soon return to normal, and everyone would return to work. No true doctor-patient relationship was established, and neither the Respondent, the other doctors nor V.P. ever thought one had been established. The allegation that the Respondent essentially intentionally used drugs he prescribed for V.P. during the course of their affair to control her and prolong the sexual relationship with V.P. against her will hinges on the following reference in V.P.'s deposition transcript: Q. Just so that I'm clear, did Alagona ever tell you that if you did not have sex with him, he would not write prescriptions for you? A. Those aren't the words. He has made comments about, "Where are you going to get your prescriptions?" Q. When did he make those comments? A. I don't know. During the relationship, at the end of the relationship. Q. Give me some of the circumstances surrounding those comments. A. It was, I'm sure, during an argument or something. I don't know. In view of all the evidence, that allegation is rejected as not proven. It is factual that, in another poor judgment that flowed from the poor judgment in initiating and conducting the affair in the first place, the Respondent began to act as V.P.'s personal physician for limited purposes during the course of the affair. When she complained of migraine headaches, he prescribed pain medication such as Tylox, a Schedule II controlled substance containing oxycodone, and Inderal, a beta-blocker and a legend drug. For stress, he prescribed Valium, which contains diazepam, also a legend drug. Although the Respondent clearly was acting as the doctor in a doctor-patient relationship when he prescribed these drugs, he still did not view himself as acting in that role and did not keep a written record of the drugs or the course of treatment in connection with those prescriptions. The allegation that the Respondent failed to practice medicine in accordance with required standards of care by not ordering the patient to receive mental health counseling but instead inappropriately allowing the patient to remain on Tylox also depends in large part on the testimony of V.P. In view of all the evidence, V.P.'s testimony pertinent to this allegation is rejected. The evidence was that the Respondent repeatedly advised V.P. to seek counseling, albeit not for drug abuse. Until April, 1990, the Respondent was not aware that V.P. was abusing drugs. The Respondent's Tylox prescriptions were not excessive and would not, in and of themselves, have indicated to the Respondent that V.P. was abusing Tylox or inappropriately remaining on Tylox; nor did V.P. exhibit clear signs of drug abuse or addiction prior to April, 1990. However, V.P. apparently was obtaining Tylox and other legend drugs from other sources without the Respondent's knowledge. She was seeing other physicians for the purpose of obtaining prescriptions, and she also was forging the Respondent's and other doctors' names to prescriptions to obtain additional drugs illegally. (One of the doctors whose name she forged predeceased the date of the forged prescription.) In April, 1990, the Respondent was notified that V.P. had been hospitalized for a drug overdose. In response to the request for advice from the attending physician, the Respondent recommended a psychiatrist for counseling. However, V.P. did not cooperate. She attended only one counseling session and refused further counseling. After the overdose hospitalization, the Respondent did not prescribe any more Tylox. However, again without the Respondent's knowledge, V.P. continued to obtain Tylox and other drugs from her other sources. The Respondent's judgment continued to be distorted and poor as a result of his intense sexual and romantic relationship with V.P. He continued to urge V.P. to obtain counseling for several reasons but, again, not specifically for drug abuse. By mid-1990, V.P. had dissolved her marriage, and she began putting pressure on the Respondent to divorce his wife and marry her. She began acting erratically, and her judgment also was poor. During a week- long visit to her family's home during the summer of 1990, she contacted an old boy friend, married him, changed her mind, and began annulment proceedings. By late 1990, V.P. started dating another doctor, and the pressure on both V.P. and the Respondent increased. The Respondent was unable to decide what to do, and the stress got ever greater as V.P. threatened to end the affair with the Respondent. While probably genuinely concerned for V.P.'s welfare, the Respondent probably also believed that, if V.P. got counseling, she would "see the light" and decide not to end their affair. Finally, the Respondent himself felt the need for counseling due to the stress of the affair, and he probably believed that she felt the same stress. Eventually, in early 1991, V.P. followed through on her threat and made it known to the Respondent that she was dropping him and choosing the other doctor. For some time, the Respondent was devastated and continued to try to persuade V.P. to return to him. Meanwhile, V.P. remained less than resolute, holding out to the Respondent some hope that she would return to him if he divorced his wife. Finally, practically an emotional wreck and despairing of any other way to get over his affair with V.P., the Respondent checked himself into an out-of-town residential psychiatric program. He purposely did not tell V.P. where he was, but she found out and, on the day of his discharge, sent him flowers with a card saying that she would never let him go. Eventually, the affair ended, and V.P. married the other doctor soon after.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order: (1) finding the Respondent not guilty under Counts I and II but guilty under Count III; (2) placing him on probation for two years; (3) requiring him to take appropriate continuing medical education, if available, dealing with the physician-patient relationship and the prudence of avoiding the dual sexual/physician-patient relationship; and (4) imposing on him an administrative fine in the amount of $2,500. DONE and ENTERED this 7th day of May, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 7th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2467 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-5. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to second sentence of 5., although he cannot now remember when he prescribed Tylox, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately approximately when and what he last prescribed so as not to expose V.P. to a health risk. 6. Accepted and incorporated to the extent not subordinate or unnecessary. However, as to the last sentence, although he cannot now remember his prescriptions, the Respondent's testimony is accepted that, at the time, and for this extraordinary patient, he was able to bear in mind adequately when and what he last prescribed so as not to expose V.P. to a health risk. 7.-9. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that patients need to be kept under "surveillance." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. As to last sentence, rejected as not proven that all "drugs," in all doses, "control a patient's emotional state and level of pain." Accepted that some can, in certain doses, and otherwise accepted and incorporated to the extent not subordinate or unnecessary. Accepted that it is not the only indication; subordinate to facts contrary to those found, and unnecessary. 13.-16. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven that the Respondent "did not follow through with V.P.'s medical problems." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. First two sentences, rejected as not proven; third, accepted that she said it, but subordinate to facts contrary to those found. First sentence, rejected as not proven; rest, accepted that she said it, but subordinate to facts contrary to those found. Rejected as not proven that he reviewed all of the prescription and hospital records. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated. To the extent not conclusion of law, accepted and incorporated. First sentence, rejected as not proven; second, cumulative; third, in part cumulative and in part rejected as not proven (that he had no justification); fourth, accepted but subordinate to facts contrary to those found (he did some diagnostic testing); and last two rejected as not proven in that the evidence was that V.P. rejected the Respondent's repeated recommendations to her that she seek mental health counseling, but otherwise accepted and incorporated to the extent not subordinate or unnecessary. Last sentence, accepted but not necessary; rest, rejected as not proven. Respondent's Proposed Findings of Fact. 1.-22. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate. Conclusion of law. Accepted and incorporated. 26.-27. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. In large part, argument and conclusion of law; in part, accepted but largely subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence that it is "clear . . . that V.P. feels that Alagona left her." (Much of their behavior is difficult to explain, such as why V.P. would act as if she did not want to let Alagona go, while chosing Palay over Alagona.) Otherwise, accepted but largely subordinate and unnecessary. Accepted but largely subordinate and unnecessary. Last sentence of C), rejected as contrary to the greater weight of the evidence that it is "safe to infer that V.P. forged these prescriptions." (The evidence raises the question and possibility of forgery, especially in the absence of testimony on the subject from V.P. and Palay, but it is not "safe to infer.") Otherwise, accepted but largely subordinate and unnecessary. First four sentences, argument and subordinate. Rest, generally accepted and incorporated to the extent not subordinate or unnecessary. (However, while V.P. may have been "in the emotional driver's seat," it does not appear that she knew where she was going.) Accepted but subordinate and unnecessary. Last sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence in that the Respondent did not suggest psychiatric counseling. Otherwise, accepted but subordinate to facts found, and unnecessary. As to the third and fourth sentences, there was no evidence as to the nature of doctors' "orders." But, based on the evidence, the Respondent did not "order" counseling. He suggested or recommended it and offered to help her get it, and V.P. declined. If the Respondent had "ordered" counseling, the patient still may or may not have followed his "order." In either case, it would appear that the critical decision is what a physician does in the face of the patient's failure to comply. It would seem that the only thing a physician reasonably can do in this situation is stop prescribing and, if necessary, terminate the physician-patient relationship. As to the rest, accepted but subordinate to facts found, and unnecessary. 39.-42. Accepted but subordinate and unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. Accepted and incorporated. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Regional Office VI-Legal Division 9325 Bay Plaza, Suite 210 Tampa, Florida 33619 L. D. Murrell, Esquire 319 Clematis Street, Suite 400 West Palm Beach, Florida 33401-4618 Dr. Marm Harris Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, Esquire General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
