Findings Of Fact At all times relevant hereto, Eric A. Baum was a licensed physician in the State of Florida having been issued License No. ME 0027880. He is board certified as a psychiatrist and board eligible in internal medicine (Exhibit 3). Respondent has never established an active practice in Florida, although in the latter part of 1985 he maintained an office at his residence and later, for approximately 2 months, in a downtown office building in Sarasota. Between August 19, 1985 and December 30, 1985, Respondent prescribed Bentyl, Ritalin, Fiorinal, Cylert, Urecholine and Laradopa to "Terri Leigh", generally in quantities of 100 for Ritalin (10 mg.) and Fiorinal (Tab). During this period, 1250 10 mg. of Ritalin and 1550 tabs of Fiorinal were prescribed (Exhibit 14). Terri Leigh is an alias used by Respondent for his wife, Terri Baum (Exhibit 7). Ritalin is a Class II controlled substance, Fiorinal is a Class III controlled substance and Cylert is a Class IV controlled substance. During part of this time until delivery on October 21, 1985, Terri Baum was pregnant. Medical records prepared by Respondent for Terri Baum would indicate the medication was prescribed for headaches and depression. Both Ritalin and Fiorinal are contraindicated during pregnancy. Between July 30, 1985 and December 30, 1985, Respondent wrote prescriptions for "Pam Leigh" for 200 Fiorinal, 600 Cylert (37.5 mg.) and 500 Ritalin (10 mg.), (Exhibit 10). Pam Leigh is an alias for Respondent's then 16 year old daughter, Pam Baum. Respondent contends that Pam is hyperkinetic and suffered from migraine headaches, and the medication was prescribed for those diagnoses. However, Pam denies ever taking any drugs or having any illness requiring such medication. Mark Baum, Pam's twin brother, denies that Pam is or was hyperkinetic or that he ever saw her take any medication. This latter evidence is deemed to be more credible than Respondent's testimony (Exhibit 3). The quantity of controlled substances prescribed for Terri and Pam by Respondent during the periods above-noted are greater than should be prescribed for the symptoms noted and were inappropriate. On April 15, 1987, Respondent pleaded nolo contendere to the offense of obtaining drugs by fraud in the Circuit Court of Sarasota County, Florida, adjudication of guilt was withheld, and he was placed on probation for one year with certain terms (Exhibit 11). At the time Respondent's residence (and office) were searched by police pursuant to a search warrant seeking patient's records for Terri and Pam Baum, those records could not be found, and Respondent denied knowledge of their whereabouts. The records (Exhibits 6 and 7) were subsequently produced by Respondent. It is likely that Respondent prepared Exhibits 6 and 7 subsequent to the arrest of Terri Baum shortly before the search was conducted. Subsequent to the arrest, Terri Baum and Pam Baum on February 26, 1986 had an appointment with Dr. Sayers Brenner, M.D., a psychiatrist, at which Terri requested Ritalin, Cylert and Fiorinal for herself and Ritalin and Cylert for Pam. Dr. Brenner, at the time unaware of Terri's arrest, prescribed a 10-day supply of these drugs and told Terri that he would not continue to supply drugs to her and that he did not treat adolescent patients. Although an appointment was made for a subsequent visit in two weeks, neither Terri nor Pam returned. Although no charges were made in this regard, evidence was presented in Exhibit 8 that Respondent wrote prescriptions for himself for Lasix, Lanoxin and Urecholine. No evidence was submitted from which a determination can be made that Respondent has a drug dependency problem, although the evidence is clear that if Respondent does not have a drug dependency problem, his wife does, and that prescriptions were written by Respondent to several fictitious persons to support this dependency.
Findings Of Fact The parties stipulated that Monroe C. Schiffman is a pharmacist licensed by the Florida Board of Pharmacy. They further stipulated that Sharon Drugs, d/b/a Mercy Professional Building pharmacy is located at 3661 south Miami Avenue, Miami, Florida and that Sharon Drugs owns and operates Mercy Professional Building Pharmacy. The parties also stipulated that Monroe C. Schiffman was a corporate officer and share holder in Sharon Drugs, Inc., a Florida corporation, from February 1, 1975 until the dates of the audits in question and that Monroe C. Schiffman was a corporate officer and stockholder in Monroe Pharmacy, Inc. from March, 1974, until the audits in question. An inspection and audit of Sharon Drugs, Inc. d/b/a Mercy Professional Building Pharmacy, was begun on April 23, 1976 and lasted for several days. The audited period was from March 17, 1975 until April 26, 1976, during which dates Monroe C. Schiffman was the registered pharmacist for the operation of Sharon Drugs, Inc. The procedures for the audits were to assume a zero stockage as of March 17, 1975 and to account for the drugs received after that date. The drugs audited were controlled drugs as defined by Chapter 893, Florida Statutes. These drugs were chosen for audit because complete records of their order, receipt and dispensing must be kept pursuant to Chapter 893, Florida Statutes. Exhibit 1, a summary of the audit of Sharon Drugs, Inc., was identified by the Board's agent, Vernon K. Bell, as the summary of the discrepancies in controlled drugs revealed by the audit which he conducted. The audit conducted by Vernon K. Bell revealed a shortage of controlled drugs for which no records had been kept of 296,481 total units or pills. The drugs audited were Desoxyn (methamphetamine hydrochloride), Tuinal (sodium amobarbital and sodium secobarbital), Biphetamine (d- and dl-Amphetamine), Dilaudid (hydromorphone), Nembutal (sodium pentobarbital), Seconal (sodium secobarbital), Quaalude (methaqualone), Eskatrol Spansule (dextroamphetamine sulfate and prochlorperazine) , and Dexedrine (dextroamphetamine sulfate). Monroe C. Schiffman, while the registered pharmacist at Mercy Professional Building Pharmacy, did not keep the record required to be kept by law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the license and registration of Monroe Charles Schiffman be revoked. DONE and ENTERED this 5th day of January, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 Gerald Kogan, Esquire Suite 500 Security Trust Building 700 Brickell Avenue Miami, Florida 33131 H. F. Bevis, Executive Secretary State Board of Pharmacy 252 East Sixth Avenue Box 3355 Tallahassee, Florida 32303
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent, Esmildo E. Machado, was a licensed physician in the State of Florida having been issued license number ME-0028831. Respondent came to the United States from Cuba in approximately April of 1974. Respondent was and is a fervent anti-communist. Prior to coming to the United States, Respondent was imprisoned in Cuba from 1969 through 1974 for aiding anti-communists who were attempting to overthrow the government of Cuba. Respondent has been a licensed physician in Florida since 1976 and has been practicing out of an office located at 456 Southwest 8th Street in Miami, Florida, since that time. No evidence was presented of any prior disciplinary action taken by Petitioner against Respondent. In March of 1992, the Federal Drug Enforcement Agency ("DEA") initiated a criminal investigation into the prescribing practices of Respondent. The investigation was apparently initiated after a confidential informant (the "Confidential Informant" or the "Patient") told DEA that he could obtain drugs through Respondent. The DEA enlisted the Confidential Informant to try to buy drugs and prescriptions from the Respondent. The Confidential Informant was not otherwise employed during the time period in question. He was paid by DEA based in part upon the quantities and strength of the drugs and prescriptions obtained. On or about April 13, 1992, the Confidential Informant telephoned the Respondent's office and set up an appointment to meet with the Respondent that afternoon. The Confidential Informant had been a patient of the Respondent's several years earlier. In addition, the Confidential Informant's father had been treated by the Respondent in the recent past. As discussed in more detail below, Respondent claims that he thought the Confidential Informant came to see him to complain about Respondent's treatment of the Confidential Informant's father. Respondent contends that the Confidential Informant had visited his office approximately one week before the April 13 visit and, during the earlier meeting, the Confidential Informant told Respondent that he needed drugs for the "Nicaraguan anti-communists." Respondent claims that he felt compelled to help. The Confidential Informant denies any such conversation took place. Respondent's purported desire to help the Nicaraguan anti-communists does not relieve him of the obligation to practice medicine in accordance with community standards and the laws of Florida. In any event, Respondent's contention is not credible. As discussed in more detail below, the Confidential Informant recorded his April 13 visit to Respondent's office and also recorded several subsequent visits. None of the transcripts of the recorded conversations between Respondent and the Confidential Informant reflect that either the Confidential Informant or Respondent ever made any mention of "Nicaraguan anti- communists." Respondent also contends that he was intimidated by the Confidential Informant and alleged hints made by him of a possible malpractice lawsuit over Respondent's treatment of the Confidential Informant's father. The transcripts of the initial meetings between Respondent and the Confidential Informant reflect that Respondent was very solicitous regarding the Confidential Informant's father. However, there is no persuasive evidence that the Confidential Informant said or did anything to foster Respondent's concern about a possible malpractice action. Any subjective fears on Respondent's part were not reasonably based and provide no defense to the charges that he violated Chapter 458, Florida Statutes. The more persuasive evidence in this case did not support Respondent's contention that he was coerced or tricked into selling the Patient prescriptions and drugs during any of the meetings. Moreover, Respondent's claim that he was "entrapped" to dispense drugs and prescriptions to the Confidential Informant was not persuasive. Before the April 13 meeting, the Patient met with DEA Investigator Robert Yakubec and another DEA agent a few blocks from Respondent's office. Investigator Yakubec instructed the Patient on the law of entrapment and the DEA procedures for making a controlled buy. The Patient and his car were both searched, after which the Patient was given two hundred dollars to purchase prescriptions or drugs. The Patient was also given a recorder to record his conversation with the Respondent. Investigator Yakubec and another DEA agent followed the Patient to the Respondent's office. They maintained surveillance outside Respondent's office until the Patient exited. They then followed him to a prearranged meeting place where he was again searched. DEA regulations mandate the procedures described in paragraph 9. The evidence established that these procedures were followed for each and every purchase attempt described in this Recommended Order. During the April 13, 1992 meeting, Respondent provided the Patient with ten (10) Hydrocodone Bitartrate 7.5 mg. tablets (Vicodin), one prescription for forty (40) Acetaminophen with Codeine 30 mg. tablets (Tylenol III) in the name of "Roberto Gomez," and one prescription for thirty (30) Vicodin 5 mg. tablets in the name of "Juan Quinones." Vicodin is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Hydrocodone, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Tylenol III is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Codeine, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Respondent failed to take a medical history or conduct a physical examination of the Patient during the April 13 visit or during any subsequent visits by the Confidential Informant. The Confidential Informant was in Respondent's office for approximately twenty (20) minutes on April 13. He paid Respondent's secretary ten dollars ($10) for the office visit. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed by the DEA agents, who searched him and his car. The Confidential Informant returned one hundred and ninety dollars ($190) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 16, 1992, the Patient returned to Respondent's office. Before the visit, the search and preparatory procedures described in paragraph 9 were performed by Investigator Yakubec and the Patient was given one hundred dollars ($100) to make a purchase. During the April 16 visit, Respondent asked the Patient about the money Respondent made on the prescriptions from the last visit. Respondent suggested he could help the Patient by giving him Vicodin and they could split the earnings from the drugs. Respondent did not comply with the Patient's request for a prescription for Demerol. During the April 16 visit, Respondent gave the Patient one prescription for forty (40) Tylenol III 30 mg. tablets in the name of "Edna Pavon." He also gave the Patient eight (8) Toradol tablets and a prescription for forty (40) more Toradol. The Confidential Informant paid Respondent sixty dollars ($60) for these items. Toradol is a legend drug pursuant to Section 465.003(7), Florida Statutes. The Patient was in Respondent's office for approximately ten minutes on April 16. The Patient proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned forty dollars ($40) to Investigator Yakubec along with the prescriptions and Toradol provided by the Respondent. The Confidential Informant's next visit to Respondent's office was on April 21, 1992. Prior to the visit, the Patient met with Investigator Yakubec and was given two hundred and fifty dollars ($250) to make a purchase. The standard search and preparatory procedures were performed by Investigator Yakubec. The Patient had to wait for more than an hour to see the Respondent on the April 21. Respondent contends that on this and other occasions he deliberately made the Patient wait in the hope that the Patient would get discouraged and leave. After considering all of the evidence, it is concluded that Respondent did very little to discourage the Confidential Informant's efforts to obtain drugs and prescriptions. While Respondent resisted some efforts by the Confidential Informant to obtain stronger drugs, this resistance appears to have been predicated on concerns that those drugs were more closely monitored. When the Patient finally got in to see the doctor on April 21, Respondent gave the Patient one hundred and sixteen (116) Vicodin 5 mg. tablets, one prescription for sixty (60) Tylenol III 30 mg. tablets in the name of "Georgio Rojas," and one prescription for sixty (60) Darvocet 100 mg. tablets in the name of "Celia Garcia." The Patient paid Respondent one hundred thirty dollars ($130) for these items. Darvocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Propoxyphene Napsylate, a Schedule IV controlled substance as defined in Section 893.03(4), Florida Statutes. After leaving Respondent's office on April 21, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and twenty dollars ($120) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 24, 1992, the Patient again presented at Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec before the visit, and the Patient was given two hundred dollars ($200) with which to make a purchase. During the April 24 visit, the Patient told Respondent he wanted a prescription for "Xanax" and a prescription for "Tranzene" for a "Cuban friend." Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets, one prescription for sixty (60) Xanax 25 mg. tablets in the name of "[illegible]", one prescription for thirty (30) Tranxene 3.75 mg. tablets in the name of "[illegible] Martinez," one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "Georgio Rojas", and one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "[illegible]." The Patient paid the Respondent one hundred thirty dollars ($130) for the drugs and prescriptions. Xanax is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Tranxene is a legend drug pursuant to by Section 465.003(7), Florida Statutes and contains Clorazepate Dipotassium, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately twenty-three (23) minutes on April 24. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned seventy dollars ($70) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 29, 1992, the Patient returned to Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec prior to the visit. The Patient was given one hundred and seventy dollars ($170) with which to make a purchase. During the April 29 visit, the Patient asked Respondent for a prescription for Tylox. Respondent directed the Patient to wait in the office while he obtained some Vicodin. After waiting less than one hour, Respondent gave the Patient ninety (90) Tylenol III 30 mg. tablets, one hundred (100) Vicodin 5 mg. tablets, and one prescription for thirty (30) Halcion 25 mg. tablets in the name of "Carlos Quinones" and a prescription for sixty (60) Tylox in the name of "Belen Portela". The Patient paid Respondent a total of one hundred fifty dollars ($150) for these items. Tylox is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance as defined in Section 893.03(2), Florida Statutes. Halcion is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Triazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately fifty (50) minutes on April 29. Upon leaving, he proceeded directly to a prearranged meeting place where he was debriefed and searched. He returned twenty dollars ($20) to Investigator Yakubec along with the Tylenol, Vicodin and prescriptions. On May 4, 1992, the Patient again presented at Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 4 visit, Respondent gave the Patient two hundred (200) Vicodin 7.5 mg. tablets and one prescription for thirty (30) Tylox tablets in the name of "Luis Moran." The Patient paid Respondent two hundred dollars ($200) for these items. The Patient was in Respondent's office for approximately twenty (20) minutes on May 4. Upon leaving, he proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned fifty dollars ($50) to Investigator Yakubec along with the prescription and Vicodin provided by the Respondent. On May 6, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 6, 1992 visit, the Patient asked Respondent to try to obtain some steroids, in particular Deca Durabdin, for some of his friends. Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets and three hundred (300) Vicodin 5 mg. tablets in return for which the Patient paid Respondent two hundred fifty dollars ($250). The Patient promised to pay Respondent an additional fifty dollars ($50) on his next visit. The Patient was in Respondent's office for approximately twenty (20) minutes on May 6. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. The Patient's next visit to Respondent's office was on May 15, 1992. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given three hundred fifty dollars ($350). Fifty dollars ($50) was to pay for the drugs obtained during the previous visit. The Patient entered Respondent's office at approximately 1:00 p.m. on May 15 and remained inside for approximately fifteen (15) minutes. Petitioner paid Respondent the fifty dollars ($50) due from the previous visit. Respondent told the Patient he was trying to determine if he could obtain any steroids. Respondent and the Patient also discussed other drugs, including Dilaudid, Percodan and Percocet, and they discussed problems with obtaining such drugs from various pharmacies in the area. Respondent did not agree to provide any of these stronger drugs to the Confidental Informant at this time. Respondent told the Patient to return at 2:00 p.m. to pick up some Vicodin. The Patient returned to Respondent's office at approximately 1:45 p.m. on May 15 at which time Respondent gave the Patient two hundred and ninety seven (297) Vicodin 5 mg. tablets in return for which the Patient paid the Respondent two hundred fifty dollars ($250). The Patient left Respondent's office at approximately 2:02 p.m. and proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. On May 20, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 20 visit, the Patient and Respondent discussed how prescriptions could be presented at various pharmacies so as to minimize suspicion. Respondent gave the Patient one prescription for forty (40) Percocet #40 tablets in the name of "Daysi Lopez"; one prescription for forty (40) Percocet #40 tablets in the name of "Centuedis Nundez"; one prescription for forty (40) Percocet #40 tablets in the name of "Anzetia Perez"; and one prescription for 2 vials/2cc of Deca Durabolin in the name of "Miguel Castro." The Patient paid the Respondent one hundred twenty dollars ($120) for the prescriptions. Deca Durabolin is a legend drug pursuant to Section 465.003(7), Florida Statutes. Percocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance listed in Section 893.03, Florida Statutes. The Patient was in Respondent's office for approximately one (1) hour and ten (10) minutes on May 20 and proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and thirty dollars ($130) to Investigator Yakubec along with the prescriptions provided by the Respondent. On June 10, 1992, the Patient again returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given one hundred and fifty dollars ($150) with which to make a purchase. During the June 10 visit, Respondent gave the Patient one prescription for "6 amps" of Deca Durabolin in the name of "Manny Lorenzana;" one prescription for Percocet #60 in the name of "Hypolita Herrera;" one prescription for Percocet #40 in the name of "Marina Quintana;" and one prescription for Percocet #40 where the name was illegible. The Patient paid the Respondent $140 for the prescriptions. The Patient was in Respondent's office for approximately forty-five minutes on June 10. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned ten dollars ($10) to Investigator Yakubec along with the prescriptions provided by the Respondent. As noted above, Respondent never performed a physical examination of the Patient and never took a physical history from him. The evidence established that, prior to prescribing legend drugs to a patient, a physician should perform a physical examination to arrive at a legitimate medical reason to prescribe the drugs. Prescribing controlled substances for no legitimate medical reason is below the standard of care recognized by a reasonably prudent physician. A physician is required to keep accurate written medical records of his treatment of patients. These records should include a record of all drugs prescribed or dispensed to a patient and the reasons why the drugs were dispensed or prescribed. The reasons should be supported by the results of physical examinations and/or the patient's history. Respondent failed to document adequate medical histories and physical examinations in the Patient's medical records to justify his numerous prescriptions for legend drugs, including controlled substances. Accordingly, it is concluded that Respondent failed to keep written medical records justifying the course of treatment of the Patient It is also concluded that Respondent dispensed Tylox and Percocet, Schedule II substances, outside the course of his professional practice and without a legitimate medical reason. Schedule II controlled substances have a high potential for abuse. They have a currently accepted but severely restricted medical use in treatment in the United States. Abuse of a Schedule II substance may lead to severe psychological or physical dependence. 57 The evidence also established that Respondent dispensed Vicodin and Tylenol III, both Schedule III controlled substances, outside the course of his professional medical practice and without a legitimate medical reason. Abuse of a Schedule III substance can lead to moderate or low physical dependence or high psychological dependence. In addition, Respondent dispensed the following Schedule IV substances outside the course of his professional medical practice and without a legitimate medical reason: Darvocet, Xanax, Tranxene, and Halcion. Abuse of a Schedule IV substance may lead to limited physical or psychological dependence. Respondent also inappropriately prescribed and dispensed the legend drugs Toradol and Deca Durabolin to the Patient outside the course of the physician's professional practice. On several occasions between April 13, 1992, and June 10, 1992, Respondent gave prescriptions to the Confidential Informant which included a patient name other than the Confidential Informant. These actions by Respondent are below the acceptable standard of care for a reasonably prudent similar physician. There is no indication that Respondent ever attempted to contact the police about perceived threats or coercion by the Patient. There is also no evidence that Respondent ever alerted any authorities to the Patient's admissions that he intended to resell the drugs. In fact, the evidence indicates that Respondent was a willing, albeit sometimes cautious participant in the Confidential Informant's apparent drug trafficking scheme. His deliberate decision to use the name of other patients on some of the prescriptions indicates that he was well aware of what he was doing and was trying to cover his tracks. Respondent presented testimony from several members of the community who stated that Respondent is a respected and valued member of the community and has provided needed medical services to the community. Notwithstanding the allegations in this case, they have expressed confidence in his medical judgment and want to see him continue his practice in the community. Respondent was apparently involved in the final stages of a hotly contested divorce during the period when the incidents alleged in this case took place. He suggests that the stress from his divorce may have impaired his judgment in handling what he claims were high pressure tactics from the Confidential Informant. While the Confidential Informant instigated the sales and continuously sought more and stronger drugs, the more persuasive evidence did not, however, support Respondent's claim of high pressure tactics from the Confidential Informant. The stress Respondent was feeling from his divorce can be considered in mitigation, but it does not provide an excuse for Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Sections 458.331(1)(t), (q) and (m) as alleged in the Administrative Complaint. As a penalty for the violations, Respondent's license to practice medicine should be suspended for five (5) years followed by a three-year term of probation during which time Respondent's prescribing practices should be closely monitored. In addition, an administrative fine in the amount of ten thousand dollars ($10,000) should be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of November 1994. J. STEPHEN MENTON 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 18th day of November 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Findings of Fact 9 and 15. Adopted in substance in Finding of Fact 7. Adopted in pertinent part in Finding of Fact 8. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Rejected as unnecessary. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 22. Adopted in substance in Findings of Fact 21 and 24. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 25. Adopted in pertinent part in Finding of Fact 29. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 29. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 27. Adopted in substance in Finding of Fact 28. Adopted in substance in Finding of Fact 30. Adopted in substance in Finding of Fact 30. Adopted in pertinent part in Finding of Fact 34. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 34. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 33. Adopted in substance in Finding of Fact 35. Adopted in substance in Finding of Fact 35. Rejected as unnecessary. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 37. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 32. Adopted in substance in Finding of Fact 38. Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. [NOTE: 59. is blank on original document filed with DOAH.] Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. Adopted in substance in Finding of Fact 39. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 42. Adopted in substance in Finding of Fact 43. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 44. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 45. Adopted in substance in Finding of Fact 45. Adopted in pertinent part in Finding of Fact 49. Adopted in pertinent part in Findings of Fact 7, 8 and 56. Adopted in pertinent part in Finding of Fact 46, except the prescriptions were for Percocet instead of Tylox. Adopted in substance in Finding of Fact 49. Adopted in substance in Finding of Fact 46. Adopted in substance in Finding of Fact 47. Adopted in substance in Finding of Fact 50. Adopted in substance in Finding of Fact 50. Adopted in pertinent part in Finding of Fact 52. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 51. Adopted in substance in Finding of Fact 52. Adopted in substance in Finding of Fact 51. Adopted in substance in Findings of Fact 14 and 53. Adopted in substance in Findings of Fact 14 and 53. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as argumentative. The subject matter is addressed in Finding of Fact 53. Rejected as argumentative. The subject matter is addressed in Finding of Fact 54. Adopted in pertinent part in Findings of Fact 14, 53 and 55. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 58. Adopted in substance in Finding of Fact 57 and addressed in the Conclusions of Law. Adopted in substance in Finding of Fact 59. Subordinate to Finding of Fact 7. Rejected as vague and unnecessary. Adopted in substance in Finding of Fact 60. Rejected as argumentative and unnecessary. Subordinate to Findings of Fact 7 and 8. Rejected as vague and unnecessary. Rejected as unnecessary. Respondent's proposed findings of fact Rejected as unnecessary. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Rejected as unnecessary. Adopted in substance in Finding of Fact 4. Rejected as vague and unnecessary. Subordinate to Finding of Fact 2. Adopted in substance in Finding of Fact 2. Rejected as unnecessary. The subject matter is addressed in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in substance in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in pertinent part in Findings of Fact 9. Subordinate to Finding of Fact 5. Rejected as vague and argumentative. Rejected as argumentative and unnecessary. Some of these issues are addressed in Findings of Fact 5 and 9. Adopted in pertinent part in Findings of Fact 5. Rejected as vague and unnecessary. Rejected as vague and unnecessary. Adopted in pertinent part in Findings of Fact 5. Rejected as unnecessary. Addressed in the preliminary statement. Rejected as irrelevant. As set forth in the Preliminary Statement, the Confidential Informant authenticated the transcripts. Rejected as irrelevant. The clear and convincing evidence established that the Confidential Informant paid Respondent for the drugs and prescriptions he obtained. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as vague and unnecessary. Rejected as unnecessary. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Adopted in substance in Finding of Fact 15. Rejected as unnecessary. Rejected as unnecessary and irrelevant. Subordinate to Finding of Fact 8. Rejected as contrary to the weight of the evidence. Subordinate to Finding of Fact 62. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Francesca Plendl, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Harold D. Lewis, General Counsel Agency for Health Care Administration 325 John Knox Road Tallahassee, Florida 32303 Gary Robert Fine, Esquire 633 Southeast Third Avenue #4R Fort Lauderdale, Florida 33301
Findings Of Fact Respondent John E. Nichols is licensed by Petitioner and was in the private practice of dentistry in Marianna, Florida from 1975 to December, 1978. He attended undergraduate school at the University of Florida and, while there, saw a psychiatrist on several occasions for treatment of depression. He graduated from dental school at Western Reserve University in 1968 and thereafter served two years as a dentist in the United States Air Force in Okinawa. During this period, he visited an Air Force psychiatrist on a regular basis for treatment of depression, and upon discharge received a Veterans Administration service connected disability rating with diagnosis of anxiety reaction. In 1971, while employed as a private practitioner in Miami, Florida, he consulted and received treatment from a psychiatrist there for the complaint of depression. In 1972, he went to Marianna where he worked for three years in a boy's school prior to entry into private practice there. He had episodes of depression during his employment at the school and sought treatment at a guidance clinic in Marianna. In 1975 or 1976, Respondent sought treatment at the Oshner Clinic in New Orleans and psychiatrists there were of the opinion that his depression might be organic in nature. He has been under the treatment of Dr. John F. Mason, Jr., a psychiatrist in Panama City, Florida, since January, 1977 until the present date. (Testimony of Respondent, Mason (Deposition)) Respondent experienced difficulties with his marriage after going into private practice in Marianna, which led to a divorce in December, 1977. However, Respondent appealed the divorce decree and the matter was not finally settled until the latter part of 1978. He closed his office for approximately a six-month period prior to May, 1978. this time, Respondent was taking drugs prescribed by his psychiatrist which consisted of Valium and Parnate to treat his diagnosed conditions of schizophrenia and depression. Additionally, he was drinking alcoholic beverages to excess during this period due to difficulties in sleeping at night. (Testimony of Respondent, Mason) During the period May through December, 1978, there were a number of times when Respondent's employees cancelled appointments of patients due to his inability to perform dental services. A primary cause for such inability was Respondent's drinking alcoholic beverages the previous night with resulting intoxication. On such occasions, he would awaken in the morning feeling very depressed and unsure of himself. He would either notify his staff to cancel appointments or come to the office prepared to keep appointments, but be advised by his employees that he was in no condition to perform dental work. In such instances, he normally would not see patients. Sometimes he solicited employees' opinions as to his ability to work and other times they would volunteer such information to him. He appeared to be intoxicated at these times with a puffy face, lack of equilibrium, slurred speech, and red eyes. On one occasion, an employee smelled alcohol on his breath. Once he was observed by an employee coming to the office in the morning and staggering past a patient who was in the waiting room. Respondent had about forty child patients who were provided dental services through the auspices of the Department of Health and Rehabilitative Services. In 1978, he cancelled twelve appointments with HRS patients, ten of which were due to his mental or physical condition. These cancellations were normally made on the day of the appointment and thus caused inconvenience to HRS social workers who transported the children to and from their appointments. Although Respondent did not perform dental work on patients at times when he was intoxicated, he was observed by an employee on one occasion treating a patient when he "wasn't at himself" and didn't have "a straight chain of thought." (Testimony of Respondent, Adkins, Daffin, Welch, DeVane, Sellers, Respondent's Exhibits 1-2. (Respondent's Exhibit 2 was erroneously received in evidence at the hearing as Respondent's Exhibit 1. It has therefore been renumbered.)) In August, 1978, Respondent was at his home and received a call one evening from a male who stated that his female friend had a bad toothache. Respondent told him to bring her to his house and, when they arrived, he examined the girl, Sherry Ratner, and found her to have large decay in a tooth. Respondent suggested that he write a prescription for Demerol to alleviate the pain and that she make an appointment with his office on the next working day. The girl told him that she did not want anything that strong, but mentioned that she had previously taken Dilaudid which had been adequate for dental pain in the past. Respondent was unfamiliar with the drug, but determined through a reference work that it was an acceptable medication for pain relief. Respondent therefore gave her a prescription and the couple indicated that she would come into Respondent's office the next day. The couple came into Respondent's office on two subsequent occasions to obtain another prescription for Dilaudid and went into Respondent's back office without having a previous appointment or filling out a medical history statement. Later, a pharmacist called one of Respondent's employees and stated that he didn't carry the medication in as strong a dosage as shown on the prescription. Then queried by his employees concerning the matter, Respondent told them that the girl was coming in for an appointment the next day and they told him that she did not have an appointment. Respondent then said that she was on a drug rehabilitation program and that he wrote the prescription to keep her from obtaining the drug on the streets. Respondent testified that after he discovered that the girl was in a drug rehabilitative program in Kentucky, he felt that there was a problem in prescribing medication for her because she might have been using the drugs to "get high," and that he was further concerned that she had not made an appointment for dental care. (Testimony of Respondent, Adkins, Daffin, Cliff, Petitioner's Exhibit 3) On November 30, 1978, Respondent obtained thirty 100 mg Seconal tablets from a pharmacy by means of writing a prescription in the name of Shelta Jean Pacock, who was one of his patients in Marianna. On December 4, 1978, Respondent took over twenty of the tablets in a suicide attempt for which he was hospitalized for several weeks. Respondent testified that the suicide attempt was made because of his depressive state. He further testified that he wrote the Seconal prescription in someone else's name because he had been told by a local pharmacist that he could not prescribe drugs for himself. (Testimony of Respondent, Peacock, Petitioner's Exhibit 1) After release from hospitalization, Respondent closed his dental office and referred records of patients upon request to other dentists in the vicinity. He remarried in January, 1979, and, except for one instance in January or February, 1979, has not indulged in alcoholic beverages this year. His medication was changed by his psychiatrist and he is presently taking varying amounts of Elavil, Cogentin, Haldol and Antabuse. Respondent testified that he believes he does not presently have the self-confidence necessary to practice either by himself or with another dentist. He is of the opinion that after a few months he could resume practice, but would prefer to associate with another dentist who could help him at times when he felt insecure as a result of his illness. He is further of the opinion that the problems that he has experienced in the past psychologically can be eliminated by proper treatment and medication which will enhance his self-confidence. (Testimony of Respondent, M. Nichols.) Respondent's psychiatrist, Dr. John F. Mason, testified that throughout 1977-78, Respondent was at times very depressed and potentially suicidal, somewhat paranoid, and on occasion used alcohol to excess. He believes that Respondent's divorce was the precipitating cause for the depressive condition. Dr. Mason saw Respondent on "crisis consultation" a number of times and hospitalized him during acute episodes when he was suicidal until the period had passed. Since his suicide attempt in December, 1978, Respondent has been hospitalized only once, which occurred after he received a letter from Petitioner concerning licensing proceedings. He thereafter started drinking to excess and voluntarily hospitalized himself for treatment. At the present time, he is doing very well and his stable and supportive relationship with his present wife assists in providing strong elements of support to improve his prognosis to "reasonably good" for the future. Dr. Mason believes that Respondent should avoid the pressure of private practice which plays a part in his condition, by employment as a dentist in an institutional setting which would have a structured program. He diagnoses Respondent's condition as schizophrenia with depression as a complication of the basic elements. His condition is maintained on anti-psychotic drugs such as Stelazine, Haldol and Nalvane, and antidepressant drugs, including Elavil. He has not been psychotic while under treatment by Dr. Mason. Dr. Mason testified that Respondent's prior use of alcohol complicated the treatment of the depression, but he does not characterize him as an alcoholic because his use of alcohol was secondary to his psychiatric illness. At times during 1977-78, Respondent's medication was not properly balanced, causing some tremor of his hands and side effects as to concentration and memory. However, a puffy face, slurred speech, and bloodshot eyes are side effects of alcoholic beverages. (Testimony of Mason (Stipulated Admission of Deposition)) Several years ago, Respondent obtained counseling services concerning his alcohol problem with a fellow church member who was a former alcoholic and had worked in counseling programs. Several of Respondent's former patients and employees attested at the hearing to their belief that Respondent is a capable and considerate dentist. Respondent's wife testified that his present medication agrees with his system and that he has shown a tremendous improvement in his condition since December, 1978, and that he has gained more self- confidence during the past few months. (Testimony of Adkins, Daffin, Welch, Cheesborough, Gause, Conner, Wester, M. Nichols)
Recommendation That the Petitioner suspend Respondent's license to practice dentistry pursuant to the authority contained in Section 466.24(1) and (3)(a), Florida Statutes, under the conditions stated in paragraph 6 of the foregoing Conclusions of Law. DONE and ENTERED this 6th day of July, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Armando Garcia and Joseph Boyd, Esquires 131 North Gadsden Street Post Office Box 1501 Tallahassee, Florida 32302 Dean Bunch, Esquire Ervin, Varn, Jacobs, Odom and Kitchen Post Office Box 1170 Tallahassee, Florida 32302 Florida State Board of Dentistry 2009 Apalachee Parkway Tallahassee, Florida 32301
Findings Of Fact Background. Petitioner, George T. Lloyd, Jr., has been employed by the State of Florida, Department of Revenue, for over 14 years, and was, at all times material hereto, a participant in the State of Florida Employees Group Health Self Insurance Plan (Plan), with family coverage. On March 25, 1986, petitioner's son, George T. Lloyd, III (George), then 17 years of age and an eligible dependent under the Plan, was admitted through the emergency room to Broward General Medical Center (Hospital), Fort Lauderdale, Florida. George was placed in the Hospital's Intensive Care Unit, and remained there until his recovery and transfer to the Hospital's psychiatric floor on April 4, 1986. Upon admission, George was comatose and diagnosed as having suffered a severe barbiturate drug overdose. Blood tests performed at the time demonstrated a serum barbiturate level of 145.6 UG (milligrams per milliliter) and a serum Dilantin level of 23.3 UG. At such levels, or even one-half such levels, George would have died of respiratory depression absent medical intervention. On or about August 9, 1986, Blue Cross and Blue Shield of Florida, Inc., the State's administrator of the Plan, notified petitioner that the Hospital's statement for services and supplies rendered during the course of his son's admission of March 25, 1986 to April 4, 1986, totalling $17,402.95, was ineligible for payment based upon the Plan's exclusion of benefits for intentional self-inflicted injuries, to wit: attempted suicide. Pertinent to this case, the Plan provides: VII. EXCLUSIONS The following exclusions shall apply under the Plan: * * * E. Any services and supplies received due to the following circumstances: * * * 2. Resulting from an intentional self- inflicted injury. Over the course of the next two years petitioner's claim for such expenses was reevaluated by the Plan administrator, as well as respondent, Department of Administration (Department). At the conclusion of that review, the Plan administrator concluded that the documentation available to it demonstrated that such expenses were incurred as a consequence of George's attempt to take his own life and were therefore excluded from coverage. By letter of August 19, 1988, the Department notified petitioner that his claim for benefits arising from his son's hospital admission of March 25, 1986 to April 4, 1986, was denied because such expenses resulted from his son's attempt at suicide. Petitioner filed a timely protest of the Department's decision, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. An Intentional Self-Inflicted Injury? Petitioner's son has a history of alcohol and drug (marijuana and cocaine) abuse and emotional problems accompanied by periods of depression that predate the incident in question by a number of years. His mother and father (petitioner) were divorced in 1971 when George was approximately three years of age. Thereafter, George resided in Florida with his mother until his fifth birthday, at which time he was sent out-of-state to reside with his father. George resided with his father until he was eleven years old, and then returned to live with his mother in Florida. In the summer of 1984, George was abusing alcohol and drugs, and experiencing difficulties in school. At that time, his mother again sent George to live with his father in the apparent hope that he could assist George in addressing these problems. The petitioner secured group counseling for George in an attempt to assist him. George continued, however, to use alcohol and drugs, and within four months, dropped out of school and ran away. Approximately four or five months later, George reappeared and returned to Fort Lauderdale to live with his mother and stepfather. Following his return, George did little of a constructive nature, and what jobs he was able to secure as a tenth grade dropout were menial in nature and of a minimal wage. Variously he worked as a bag boy, mowed lawns, and washed cars. On March 25, 1986, George was unemployed, and had just concluded an argument with his stepfather concerning his unemployment and failure to follow any constructive pursuit. Depressed at his circumstances, George ingested phenobarbital and Dilantin, drugs that had been prescribed for his stepfather, with the intention of taking his own life. But for the medical intervention previously discussed, George's attempt would have proven successful. At the time he ingested the drugs, George was not under the influence of alcohol or any other drug, and was of sufficient age and maturity to appreciate the consequences of his actions. Both the nature of the drugs he took and the vast quantity he ingested indicate an intentional attempt to take his own life rather than an accidental overdose during "recreational" use. Here, the drugs he took were not "recreational" drugs, they produce no "high," and the dosage, as heretofore noted, was massive. Considering these factors, George's admission that he attempted suicide, and the totality of the circumstances, compels the conclusion that he did consciously attempt to take his own life, and that what depression he suffered did not deprive him of the ability to appreciate the consequences of his actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing, with prejudice, the petition for administrative review. DONE and ENTERED this 16th day of May 1989, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 16th day of May, 1989.
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.
