The Issue Whether the license of Respondent Judith M. H. Bandlow Gioia, R.N. #26105- 2 should be suspended or revoked, or whether Respondent should be put on probation or otherwise disciplined.
Findings Of Fact During the period of time from March 1, 1978 through March 13, 1978, while employed as a Registered Nurse at Wuesthoff Memorial Hospital, Cocoa, Florida, Respondent converted to her own use on numerous occasions, a controlled narcotic drug, to wit: Demerol (meperidine) and injected herself with said narcotic on a daily basis. Respondent altered the narcotic control record in order to hide the taking of said drugs noted in the foregoing paragraph and, in some instances, failed to chart the narcotic on the patient's medication sheet or nurses notes. On or about March 13, 1978, on being confronted with the facts stated in the foregoing paragraphs 2 and 3 by the Director of Nurses, Nelda C. Mitchell, R.N., Respondent admitted her guilt and at that time gave Ms. Mitchell four ampules of Demerol 100 mg. which she had in her uniform pocket. Respondent was thereupon discharged from her position on March 13, 1978. The Petitioner, State Board of Nursing, filed an administrative complaint against Respondent on March 27, 1978 charging Respondent with unprofessional conduct and with engaging in the possession of controlled substances contrary to Chapter 464 Florida Statutes. Respondent was notified that unless she requested an administrative hearing the Board would either place the license of Respondent on probation or suspend or revoke her license as a Registered Nurse. Petitioner requested an administrative hearing. Respondent at the hearing admitted allegations one to four (4) of the administrative complaint and conceded such conduct was in violation of Section 464.21(1)(b) and 464.21(1)(d) The Respondent through her attorney, and personally, testified that she requested the hearing, not to refute the allegations of the complaint but to mitigate the action pending by the State Board of Nursing. A deposition entered into evidence by Respondent, without objection from the Petitioner, was taken on behalf of the Respondent. The witness was Cynthia H. Clowes, the therapist of Respondent when she was admitted to the Palm Beach Institute on March 16, 1978. Ms. Clowes stated that if the Respondent were to undergo therapy by a person qualified in giving therapy in addiction that at the end of two years, more or less, Respondent would be ready to be exposed to access to drugs. She did not recommend that Respondent be exposed to drugs at the time of the deposition on August 7, 1978. Ms. Clowes recommended that Respondent regularly attend Alcoholics Anonymous meetings. It was Ms. Clowes' opinion that Respondent Gioia had the capability to resume her duties as a nurse on a part-time, but not a full-time basis. The parties agreed that Michelle E. Vollard, Out-patient Therapist Substance Abuse Services, Brevard County Mental Health Center, Inc. would submit a statement to the Hearing Officer subsequent to the hearing. The letter was received December 1, 1978 in the office of the Hearing Officer and was signed by Michelle Vollard, Out-patient Therapist Substance Abuse Services and Rene S. Turla, M.D., Team Psychiatrist. The statement recommends that Ms. Gioia continue individual counselling for a period of at least a year and recommended that her access to narcotic drugs be limited, if not totally eliminated, while she is undergoing therapy. It was recommended that the Respondent attend an alcoholic orientation (education group), and an ongoing alcohol group. The Hearing Officer further finds: Subsequent to her discharge from Wuesthoff Memorial Hospital Respondent voluntarily placed herself in the Palm Beach Institute for a period of six weeks. The purpose was to seek treatment for an apparent addiction to Demerol and to alcoholic substances. After leaving the Palm Beach Institute as an impatient she returned on several occasions to consult with her therapist as an outpatient. She has attended meetings of Alcoholics Anonymous in Brevard County and has sought aid of the Brevard County Mental Health Center. Respondent is at present under stress and may take narcotic drugs without a prescrip- tion, and may also drink alcoholic beverages to excess. She should continue treatment to control alcohol consumption. Respondent should have no access to drugs prescribed for patients.
Recommendation Suspend the license of Respondent for a period of no less than two years. DONE and ENTERED this 18th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard A. Gescheidt, Esquire Amdur Building - Suite 2-D 40 Southeast First Avenue Boca Raton, Florida 33432 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. Investigation & Licensing Coordinator State Board of Nursing 6501 Arlington Expressway Building B. Jacksonville, Florida 32211
Findings Of Fact Based on the evidence presented at hearing, the following facts are determined: At all times material to the charges, Ronald Wayne Diamond and Susan Joyce Saiia owned and operated a partnership trading as Susan's Las Olas Seafood Market at 1404 E. Las Olas Boulevard, Fort Lauderdale, Florida ("the licensed premises") On the licensed premises, they sold alcoholic beverages under the authority of alcoholic beverage license No. 16-3029, Series 2-APS. On January 17 or 18, 1982,and on January 19, 1982, Broward County Sheriff's Department Detective Fernandez entered the licensed premises in an undercover capacity and negotiated with Respondent Ronald Diamond for the sale and delivery of cocaine and cannabis. Respondent Susan Saiia was present and aware of these negotiations, although she did not actively participate in them. On one of these occasions, she warned Respondent Diamond to be careful, that she had seen someone in the back alley who looked like he was wearing a recording device. On January 20, 1982, Respondent Diamond was arrested on charges of unlawful trafficking in cocaine and possessing cannabis in violation of Sections 893.135(1)(b) and 893.13(1)(e), Florida Statutes. He was taken to the licensed premises where a search warrant was executed and two ounces of marijuana were found in an office file cabinet. (Petitioner's Exhibit No. 2) On May 6, 1982, the Circuit Court of the Seventeenth Judicial Circuit, adjudging Respondent Diamond guilty of these felonies, sentenced him to fifteen years in prison and fined him $250,000 for trafficking in cocaine. He was sentenced to an additional five years for the possession of cannabis. (Petitioner's Exhibit No. 3)
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondents' alcoholic beverage license No. 16-3029, Series 2-APS, be revoked for multiple violations of the Beverage Law. DONE and ORDERED this 12th day of July, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983. COPIES FURNISHED: John A. Hoggs, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 Maurice Graham, Esquire Suite 2 2161 E. Commercial Blvd. Ft. Lauderdale, Florida 33308 Howard M. Rasmussen Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, Florida 32301 Gary R. Rutledge Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Findings Of Fact Respondent is now and at all relevant times has been a licensed registered nurse in Florida under license number 1074052. She is currently on active status. Her latest license renewal expires on March 31, 1989. Respondent was hired in April, 1986, as a charge nurse at John Knox Village Medical Center in Tampa. John Knox Village Medical Center is a long- term care facility divided into two wings. The wing to which Respondent was assigned houses between 24 and 32 patients requiring skilled nursing care. For the first three weeks on the job, Respondent performed her duties quite well. She learned the names of all of the long-term patients. She was a good manager and motivator of her employees. She was not absent from work. After about three weeks on the job, Respondent began to exhibit minor lapses of memory. Her hands began shaking. Her face became puffy and pale. She often became withdrawn and subject to mood swings. Occasionally, she could not be located for short periods of time by her nurse's aides, who required her supervision. A coworker smelled what was clearly alcohol on Respondent's breath one evening while Respondent was on duty. Shortly thereafter, on or about May 21, 1987, Respondent admitted to the Director of Nursing, Cary Boylan, that Respondent was an alcoholic. Respondent agreed, at Ms. Boylan's urging, to enter an alcohol treatment program sponsored by Alcohol Community Treatment Services, Inc. ("ACTS"). Respondent had been working at John Knox Village Medical Center for about six weeks at the time of her departure to enter the ACTS Program. Respondent underwent extensive residential treatment in the ACTS program from June 9, 1986 through July 7, 1986. She received counseling seven days a week. On July 14, 1986, Respondent successfully completed the intensive phase of the ACTS program and returned to work. She was rehired on that date, but was no longer the charge nurse. For the first few weeks after her return, Respondent was compliant, exhibited no signs of alcohol consumption, and generally performed her duties quite well. Respondent subsequently began a pattern of absenteeism starting at the end of August, 1986. At first, Respondent would notify her supervisors in advance of her absence. By September, it was "no call, no show." At one point, she missed six working days during a two-week period. About ten absences were unexplained. Others were accompanied by a doctor's excuse. By this time, the hand tremors had returned. Respondent's failure to show up for work or even alert her supervisor in advance of her absence left the floor short-handed. Other nurses were suddenly required to work overtime or report to work early. Sometimes a temporary nurse had to be called in. Respondent evaded Ms. Boylan's attempts to discuss Respondent's behavior. Generally, she avoided Ms. Boylan's telephone calls. When Ms. Boylan terminated Respondent from employment, Respondent's face had the pale and puffy look that it had prior to her entering the ACTS program. There were no charting or care problems with Respondent while she was employed at John Knox Village Medical Center. Ms. Barbara Burhop, a nurse responsible for the orientation of new employees at John Knox Village Medical Center, testified affirmatively to this fact. Also, Respondent was preoccupied at the time with the hospitalization of her father who was suffering from an illness that later claimed his life on November 14, 1986. However, Ms. Boylan and Rosemary Myers, a licensed practical nurse who worked with Respondent at John Knox Village Medical Center, both opined that Respondent could not practice nursing safely while at John Knox Village Medical Center, before and after the ACTS treatment, due to alcohol use. After leaving John Knox Village Medical Center, Respondent worked for six or seven months for a temporary nurse pool. On November 2, 1987, Respondent was hired to work as a staff curse at Centro Espanol Memorial Hospital in Tampa. She was assigned to the med-surg unit, but was first required to undertake two weeks of orientation and employee training. Respondent never completed the orientation training program. On the first day, she fell asleep while another nurse was training Respondent in a one- on-one session. Other times, Respondent appeared to be nodding off while on duty; often, she appeared to be trying hard to stay awake. Other nurses detected the odor of alcohol on Respondent's breath. Respondent frequently left her nurse's station for short periods of time for no apparent reason and during which she could not be found. There was no competent evidence of any charting or care problems during Respondent's short term of employment at Centro Espanol Memorial Hospital. In one instance, Respondent failed to release an in-going catheter, but Respondent's unrebutted testimony was that she told the nurse who followed her on the next shift about the unreleased catheter. Her chart entries were difficult to read, but "made sense" and were not illegible in the strict sense of the word. However, Ms. Gloria Carper, who is Assistant Director of Nursing at Centro Espanol Memorial Hospital, opined that Respondent was impaired due to alcoholism. Respondent admits that she is an alcoholic and has been for 2 1/2 to 3 years. She admits that she does not abstain from alcohol consumption. She testified that she did not drink while on duty. On days that she felt that she could not adequately care for a patient, Respondent stated that she would not report to work. She has attended various alcoholic treatment groups, including Alcoholics Anonymous, but has not successfully completed her recent treatment programs. On February 19, 1987, the Impaired Nurses Program ("INP") found Respondent noncompliant in her treatment program. On March 17, 1987, her noncompliance necessitated an extension of her INP two-year monitoring to February 4, 1989. Respondent was again found noncompliant by INP by letter dated May 11, 1987. Respondent was dismissed for noncompliance from Petitioner's Intervention Project by letter dated May 22, 1987. By letter dated June 25, 1987, Respondent was also unfavorably terminated from the post- residential, out-patient counseling phase of the ACTS program. Her ACTS counselor noted Respondent's sporadic attendance, closed attitude, and insistence upon her alcohol and drug-free status, which insistence was belied upon her uncooperative behavior. Although there is no direct, clear and convincing evidence of alcohol intoxication or even consumption while on duty, the evidence is clear and convincing that Respondent consumed alcohol during the terms of her employment at John Knox Village Medical Center and Centro Espanol Memorial Hospital. The most reasonable inference is that she consumed alcohol excessively the night before work. As a result, Respondent was either so tired and sick the next morning that she was unable to work or, if not quite so tired and sick, she would report to work and doze off.
Findings Of Fact Victor Ingargiola is the sole shareholder, director and officer of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East (Petitioner), a Florida corporation. The State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, is the Respondent. Both Mr. Victor Ingargiola and his wife, Mrs. Barbara Ingargiola, entered the Division's double random selection drawing for eligibility to apply for a new quota alcoholic beverage license. Mr. Ingargiola was selected in the drawing, and Mrs. Ingargiola was not. After receiving notice of his selection in the drawing, Mr. Ingargiola formed the Petitioner and applied for licensure on or about November 1, 1984. In his application, Mr. Ingargiola did not identify his wife as a person having an interest in Petitioner or its business, either directly or indirectly. The application also represented that Petitioner had a right to occupancy of the premises to be licensed at 4513 Causeway Boulevard, Tampa, Florida. Petitioner's application carries with it an application fee of $6,750. Mr. Ingargiola obtained a portion of the funds necessary to pay the application fee from funds held jointly by him and his wife and by loans to him and his wife secured by property jointly held by him and his wife. Virtually all money and property of the Ingargiolas is held in their joint names. Both Mr. and Mrs. Ingargiola conferred with the Division's Investigator Miller concerning the application. Miller initially requested that Mrs. Ingargiola be finger printed as a person having an interest in the license to be issued. Mrs. Ingargiola understood that she was not permitted to have an interest since she herself had entered the double random selection drawing. She therefore declined to be fingerprinted or to be made to appear on the application as a party having an interest in the license to be issued. Investigator Miller also discussed with the Ingargiolas the question of Mrs. Ingargiola's involvement and the financing of Petitioner. Investigator Miller led the Ingargiolas to believe that the only possible legal financing arrangement would be for Mrs. Ingargiola to give the funds to her husband outright. He led them to believe that this could be done by affidavit, and Mrs. Ingargiola signed and filed an affidavit which Investigator Miller approved as to form. The affidavit listed the financing in question and stated: "I swear that the following funds obtained are to be used by Victor A. Ingargiola and I will have no interest or control over these funds." Barbara Ingargiola also testified at final hearing that she claims no interest whatsoever in Petitioner, any license to be issued to it, or the funds she gave outright to her husband to finance Petitioner. Essentially, Mrs. Ingargiola gave her half of the joint funds and proceeds of joint loans used by Victor Ingargiola to finance Petitioner's application fee. If necessary, she was prepared to do the same with the proceeds from the sale of joint real property or loans secured by the Ingargiolas' joint real property. However, no mention was made or consideration given to Mrs. Ingargiola's liability for her husband's share of the joint borrowing in addition to hers. Mrs. Ingargiola did have an interest in the successful operation of Petitioner so as to enable her husband to pay at least half, if not all, of the joint borrowing used in part to finance Petitioner. On or about October 12, 1984, Mr. Ingargiola obtained a written lease to the premises to be licensed. However, the lease does not contain a commencement date. At the time the application was filed, the premises were occupied by another tenant, and, as of December 20, 1984, this tenant had a legal right to occupy the premises and had not been notified of the pending liquor license application or the lease. In addition, the purported lease contains a provision requiring Petitioner to secure its duties and obligations under the lease by depositing with the landlord the sum of $60,000 in cash or irrevocable letter of credit. There was no evidence that Petitioner had complied with or could comply with this requirement of the lease. Although Mr. Ingargiola testified to his understanding of his right to occupancy of the premises under the lease upon granting of Petitioner's application and issuance of the license, there was no testimony from the landlord on the ambiguities surrounding the lease and the rights of the tenant in possession. As a result, the evidence as a whole was insufficient to prove Petitioner's right to occupancy of the premises to be licensed.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, deny the application of Petitioner, I & H Enterprises, Inc., d/b/a Basin Street East, for a quota alcoholic beverage license RECOMMENDED this 17th day of March, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 17th day of March, 1986. COPIES FURNISHED: Joseph L. Diaz, Esquire 2522 W. Kennedy Blvd. Tampa, FL 33609 Thomas A. Klein, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301-1927 Howard M. Rasmussen, Director Division of Alcoholic Beverages and Tobacco Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301 Richard B. Burroughs, Jr., Secretary Department of Business Regulation 725 S. Bronough Street Tallahassee, FL 32301
The Issue The amended Administrative complaint, forwarded to the Division of Administrative Hearings on January 20, 1987, alleges that Respondent is unable to practice medicine with reasonable skill and safety to patients by reason of alcohol and substance abuse; that Respondent attempted to treat patients while under the influence of alcohol, constituting gross or repeated malpractice or failure to practice medicine with the level of care recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances; and that Respondent failed to fulfill a statutory or legal obligation placed upon a licensed physician. After lengthy discovery and negotiations and Respondent's submittal to an inpatient mental and physical examination, the parties filed a stipulation substantially limiting the issue to the conditions under which Respondent should be allowed to return to the practice of medicine and appropriate monitoring once he returns to practice. At the final hearing, DPR presented the testimony of two witnesses: Lynn Hankes, M. D., qualified as expert in addictionology without objection, treated Dr. Pigg for alcoholism in 1985 and examined him as an inpatient in January, 1988. Robert A. Goetz, M. D., qualified without objection as an expert in the field of impaired physicians, has been the director of Florida's Physicians' Recovery Network since February 1988, and has known Dr. Pigg since shortly after that time. Respondent's sole witness was Milton R. Burglass, M.D., qualified without objection as an expert in psychiatry and in addiction treatment. Dr. Burglass reviewed Dr. Pigg's records and files and interviewed him on April 7, 1988, in anticipation of this hearing. After the hearing the transcript was filed and both parties submitted proposed recommended orders. Specific rulings on the proposed findings of fact are found in the attached appendix.
Findings Of Fact William Larry Pigg is, and has been at all time material, a licensed physician in the State of Florida, having been issued license number ME 0040625. The parties in their prehearing stipulation filed on February 15, 1988, agree to the following: Peitioner, the Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Since at least the summer of 1984, Respondent has had a problem with alcohol abuse. On or about June 13, 1985, Respondent entered the Impaired Physician's Program. Respondent completed an alcohol treatment program in Miami, Florida. Thereafter, Respondent also completed an extended program in Mississippi. On or about December 17, 1985, Respondent was granted staff privileges at Holmes Regional Medical Center in Melbourne, Florida. In order to obtain staff privileges, Respondent signed a statement agreeing to do the following: to abide by the Aftercare Con- tract of the Mississippi State Medical Association Impaired Physician's Program; and to submit to blood alcohol levels [sic] at any time at the request of any physician on the staff of Holmes Regional Medical Center. In or about April 1986, Respondent began to abuse alcohol again. On or about April 12, 1986, Respondent was attempting to perform a right hip reduction on a patient at Holmes Regional Medical Center. The patient in question was legally intoxicated and a large muscular man. Respondent, in attempting to relax the patient, ordered a large dose of narcotics, including Demerol and Nubain, as well as Phenergan and Valium. On or about the evening of April 12, 1986 or the morning of April 13, 1986, Respondent left the emergency room, took a Phenergan tablet and went home. Phenergan is the brand name for prometnazine Hydrochloride. Phenergan can cause drowsiness or impair the mental and/or physical abilities of the individual taking the drug. Later on the same evening, the Emergency Department Physician, Dr. Wagner, spoke with Dr. Pigg by telephone in reference to two patients with fractures that required orthopedic intervention. Respondent agreed to come and resume care for the patients. However, Respondent never came to the medical center and could not be located by police. On or about April 16, 1986, Respondent's wife contacted the Melbourne Police Department because her husband had come home intoxicated. On or about June 7, 1986, Respondent was arrested for driving while under the influence of alcohol and reckless driving. On or about June 30, 1986, the Director of the Florida Medical Foundation Committee on Impaired Physicians, Roger A. Goetz, M.D., advised the Petitioner, by letter, that Respondent was not progressing satisfactorily with the program and had not complied with all aspects of his aftercare contract. Respondent is and has been at all times alleged in the above stipulated facts, unable to practice medicine with reasonable skill and safety to patients by reason of alcohol abuse. No evidence was presented as to substance abuse, other than alcohol. Nor was there evidence that Dr. Pigg suffers from a mental condition. Although his records reflect some prior diagnosis of a passive/aggressive personality disorder, the prevailing thought in the addictionology community is that psychiatric diagnoses are invalid until an individual has been sober long enough to assure that the problem is not solely the alcohol's effect on the individual. There is no evidence that Dr. Pigg has had this requisite period of sobriety since 1984, and particularly the time that he was examined by Dr. Burglass, the only psychiatrist to testify in this proceeding. Of the experts who testified, Dr. Hankes is most familiar with Dr. Pigg, having been his primary treating physician in the past, and having examined him recently over several days as an inpatient. Dr. Hankes found that Dr. Pigg progressed from the mid stage of alcoholism to the early late stage of this disease between 1985 and 1988. In addition to Dr. Hankes' program at South Miami Hospital, Dr. Pigg has undergone primary treatment at a series of facilities in Georgia, Mississippi and Florida, all of which have an excellent reputation. At this point, in Dr. Hankes' opinion, he is a treatment failure. He has, at various times in his treatment experience also undergone detoxification at a Myers Act facility, attempted Antabuse therapy, and tried and rejected Alcoholics Anonymous. In spite of the past failures, the experts concurred that Dr. Pigg, like other alcoholics, is capable of recovery and that once recovered, Dr. Pigg would be capable of practicing medicine safely. All concurred that the recovery must be verified prior to Dr. Pigg's return to practice, and that thereafter the recovery must be monitored for an unforeseeable period of time. Dr. Hankes' advice, based on his concern as Dr. Pigg's treatment provider and primary therapist, is a six-part program: that addiction therapy continue on an outpatient basis, at least weekly, by a certified alcohol or addiction professional; that Dr. Pigg engage in psychotherapy with a qualified psychiatrist knowledgeable about addictive disease, the frequency to be determined by the psychiatrist; that a primary internist or family general practitioner monitor his physical well-being, especially his liver dysfunction; that Dr. Pigg participate in Alcoholics Anonymous, with a lay individual sponsor, as well as engage in International Doctors in Alcoholics Anonymous with a recovering physician sponsor; that Dr. Pigg be assigned a monitoring physician, knowledgeable in addictive disease, who has the authority to require random, unannounced surprise testing of blood or urine and that personal contact be made every two weeks and telephone contact in the alternate weeks; that the treating and monitoring individuals report on a quarterly basis to Dr. Roger Goetz, the Recovery Network director and that at the end of a two-year period Dr. Pigg be examined again by Dr. Hankes who would make his recommendation to Dr. Goetz. Dr. Pigg would also have the right to go to another AMA approved treatment provider for a second opinion. Dr. Hankes distinguishes between the state of being "dry" or free from alcohol use for a period, and recovery from alcoholism which requires a personal transformation with some undefined indicators. Dr. Hankes is convinced that the latter state is essential for real recovery and that Alcoholics Anonymous is the most effective, though not exclusive, route to that state. Although Dr. Hankes recommends a two year period during which Dr. Pigg would not be permitted to practice, he concedes that recovery could be effective in less time and that he would readily endorse his return to practice if the recovery were completed sooner. He describes Dr. Pigg as a "very competent physician", a "very bright guy", a "multi-talented individual, who flies airplanes and does wonderful things in his life." None can predict the time required for recovery, but each of the three experts recommends a period of one to two years of verified sobriety prior to the return to practice. Dr. Burglass recommends neither Alcoholics Anonymous participation nor the multi-part program outlined by Dr. Hankes. Since Alcoholics Anonymous and the other treatment/recovery models have been unsuccessful, Dr. Burglass suggests that Dr. Pigg be allowed to devise his own method of achieving recovery; he emphasizes that the goal, and not the route to that goal, is the concern here. He recommends that sobriety be verified for a period of one year and thereafter Dr. Pigg be allowed to return to practice with monitoring for approximately three years. The evidence, weighed and considered as a whole, fails to establish that an absolute two-year suspension from medical practice is necessary or that involvement in Alcoholics Anonymous is essential.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That William Larry Pigg, M.D. be suspended from the practice of medicine for an indefinite period, provided that he be given an opportunity to appear before the Board at twelve month intervals to demonstrate that he can resume the competent practice of medicine with reasonable skill and safety to patients. That demonstration should include, as a minimum: a ) That he has totally abstained from the use of alcohol for a period of twelve months, as evidenced by frequent unannounced random collection of blood samples by an agent designated by the Board. That he has been under the continuous care and supervision of a physician qualified to provide addiction therapy and that, if recommended by that individual after a necessary period of sobriety, he has also undergone a psychiatric evaluation to determine the existence of mental disease or disorder. If detected, the disease or disorder must be treated. That he has been evaluated successfully participated in Alcoholics Anonymous or other similar peer support group program. Successful participation means frequent regular attendance at meetings and the association with a qualified sponsor from the program. That he has been evaluated and recommended for return to practice by Dr. Hankes or other treatment professional designated by the Board. However, if the recommendation is negative, Dr. Pigg should be permitted to obtain a second opinion independent of the Board's designated evaluator, from an individual other than that described in b), above, who is also qualified in the field of addictionology. The length and type of monitoring necessary once Dr. Pigg returns to practice should be determined at that time, based on recommendations of the professionals responsible for assisting in his recovery. DONE and RECOMMENDED this 4th day of August, 1988, in Tallahassee, Florida. MARY CLARK 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 4th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0225 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings Adopted in paragraph 2. Adopted in paragraph 1. 3-13. Adopted in paragraph 2, incorporating the parties pre-hearing stipulation. 14. Adopted in paragraph 7. Respondent's Proposed Findings 1-4. Incorporated in Issues and Background statement. 5. Adopted in paragraph 2, incorporating the parties' prehearing stipulation. 6-8. Included in Background Statement. 9-12. Rejected as unnecessary restatement of the witnesses' testimony. Adopted in substance in paragraph 3. Included in Background Statement. 15-16. Adopted in substance in paragraph 4. Adopted in paragraph 6. Adopted in paragraph 9. 19-20. Adopted in paragraph 7. Adopted in paragraph 8. Adopted in paragraph 9. 23-24. Incorporated in substance in the Background statement. 25-28. Adopted in substance in paragraph 11, otherwise rejected as cumulative and unnecessary. 29. Adopted by implication in paragraph 12. 30-31. Rejected as cumulative and unnecessary. Adopted in paragraph 12. Rejected as a conclusion of law. Rejected as contrary to the evidence. Abstinence alone is insufficient. Adopted in substance in paragraphs 3, 11, and 12. Rejected as unnecessary. COPIES FURNISHED: John Namey, Esquire 22 East Pine Street Orlando, Florida 32801 Deborah J. Miller, Esquire One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Findings regarding general matters The Respondent, Ernest Scott, d/b/a Sonny's Stardust Lounge and Restaurant, is the holder of a special alcoholic beverage license for premises located at 5181 N.W. 9th Avenue, Fort Lauderdale, Broward County, Florida. His current license number is 16-00368SRX. The type of license held by the Respondent is a special license authorized by Chapter 61-579, Laws of Florida. The Respondent purchased the licensed premises as a going business in 1983. At that time the business had a similar license, which license was transferred to the Respondent when the Respondent purchased the business. Findings regarding sales to minors On December 15, 1989, Respondent's employee, Lillian C. Pender, unlawfully sold an alcoholic beverage to a person under the age of twenty-one years. The beverage sold was a 12-ounce can of Budweiser beer. The minor to whom the sale was made was Jerry Wieczorek, age 16, date of birth April 11, 1973. 2/ On January 12, 1990, the Respondent, Ernest Scott, unlawfully sold an alcoholic beverage to a person under the age of twenty-one years. The beverage sold was a 12-ounce can of Budweiser beer. The minor to whom the sale was made was Seth Ross, age 18, date of birth August 22, 1971. At the time of the alcoholic beverage sale on January 12, 1990, Seth Ross was engaged as an under age "Investigative Aide." His primary function in that capacity was to attempt, under the watchful eyes of the Division's Investigators, to purchase alcoholic beverages from various premises licensed to sell alcoholic beverages. When his efforts were successful, the Division Investigators would arrest the person who sold the alcoholic beverage to the Investigative Aide and would issue a notice to the licensee. All Investigative Aides, including Seth Ross, were instructed not to make any false statements about their age, not to use any false identification documents, and to answer truthfully any questions regarding their age that might be asked by the person from whom they were attempting to buy alcoholic beverages. Shortly after 8:00 p.m. on the evening of January 12, 1990, Seth Roth entered the licensed premises and walked up to the bar. The Respondent, Ernest Scott, was on duty behind the bar. Ross asked the Respondent for a Budweiser and in response the Respondent asked Ross for identification. Ross handed the Respondent a valid Florida driver license that contained Ross' correct date of birth, namely August 22, 1971. The Respondent looked at the driver license and then said to Ross, "This makes you twenty." Ross replied, "No, it makes me eighteen." The Respondent said something to the effect that that was "good enough," and sold a Budweiser beer to Ross. Ross paid for the beer and then walked over to where two Division Investigators were sitting and delivered the beer to them. 3/ Findings regarding seating accommodations The furniture inventory at the time of Respondent's purchase of the licensed premises included the following: 49 four seat tables, 5 two seat tables, and 206 chairs. Except as specifically noted in the findings which follow, that original inventory of furniture has been continuously located on the licensed premises. Since the purchase of the licensed premises the Respondent has added some furniture to the licensed premises, including at least 5 small chairs and one large table. On December 18, 1989, Investigator R. W. Dees went to the licensed premises, contacted the Respondent, and conducted an inspection of the licensed premises. On the basis of the inspection, Investigator Dees concluded that the licensed premises were not being maintained in compliance with Chapter 61-579, Laws of Florida, and he issued a notice to that effect to the Respondent. 4/ The notice constituted a warning to the Respondent, as well as specific instructions regarding what the Respondent was required to do to be in compliance with the requirements of Chapter 61-579, Laws of Florida. At the time of the inspection on December 18, 1989, the Division's policy with regard to first offenses regarding the accommodations required by special acts like Chapter 61-578, Laws of Florida, was to issue a warning and to allow the licensee ten days within which to take the necessary corrective action. On the basis of the record in this case it cannot be said with certainty how many patrons could be served full course meals with the accommodations on the licensed premises at the time of the inspection on December 18, 1989. 5/ However, by the next day the Respondent had taken steps to remedy any deficiencies in that regard, and on December 19, 1989, there were sufficient tables and chairs on the licensed premises to serve at least two hundred patrons at tables. On January 12, 1990, Investigators Krauss and Dees conducted another inspection of the Respondent's licensed premises. At the time of the inspection on January 12, 1990, there were a sufficient number of tables and chairs on the licensed premises for service of at least two hundred patrons. 6/
Recommendation For all of the foregoing reasons, it is recommended that the Division of Alcoholic Beverages and Tobacco enter a final order in this case to the following effect: Concluding that there has been no violation of Chapter 61-579, Laws of Florida, and dismissing the charges set forth in the second and fourth paragraphs of the Notice To Show Cause; Concluding that the Respondent did violate Section 562.11, Florida Statutes, by reason of the sale, by the Respondent's employee, of an alcoholic beverage to a minor, as charged in the first paragraph of the Notice To Show Cause; Concluding that the Respondent did violate Section 562.11, Florida Statutes, by reason of the sale, by the Respondent, of an alcoholic beverage to a minor, as charged in the third paragraph of the Notice To Show Cause; and Imposing a penalty consisting of a fine in the amount of five hundred dollars ($500.00) for the violation described in subparagraph (b) of this recommendation and an additional fine in the amount of five hundred dollars ($500.00) for the violation described in subparagraph (c) of this recommendation. RECOMMENDED at Tallahassee, Leon County, Florida, this 24th day of September, 1990. MICHAEL M. PARRISH, 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 24th day of September, 1990.
The Issue Whether respondent's alcoholic beverage license should be revoked for violating a stipulation stated on the record in a prior license revocation proceeding.
Findings Of Fact Respondent holds alcoholic beverage license no. 16-2337, Series 2-APS and owns and operates Hammer's Package Store, the licensed premises, at 3231-A West Broward Boulevard, Ft. Lauderdale, Florida. In 1981, DABT filed two administrative actions to revoke respondent's alcoholic beverage license pursuant to Section 561.29, Florida Statutes. The charges were, apparently, disputed and a hearing officer requested, since the cases were forwarded to the Division of Administrative Hearings for assignment of a hearing officer. Thereafter, on April 18, 1981, Hearing Officer Robert T. Benton, II, conducted a Section 120.57(1) hearing on the charges. At hearing, both parties were represented by counsel: DABT by James N. Watson, Jr., a staff attorney for the Department of Business Regulation; respondent by Ray Russell, whose address was 200 S. E. 6th Street, Ft. Lauderdale, Florida 33301. At the outset, counsel for both parties advised Hearing Officer Benton that they had reached "an agreement" (P-1, p. 3), thus obviating the need for a hearing on the charges. Counsel then recited, on the record, the terms of their settlement agreement: respondent was given 90-days in which its corporate entity could be sold, with the period beginning to run from March 19, 1981--the next day--and ending on June 16, 1981; when the corporate entity was sold or the 90-day period expired, whichever occurred first, respondent was to surrender its alcoholic beverage license to DABT for cancellation; respondent waived its right to an evidentiary hearing on the charges and to appeal any matters covered by the agreement; and, from the time the corporate entity was sold or the 90-day period for sale expired, no corporate officers, directors, or shareholders of respondent would again engage in the alcoholic beverage business, make any application for a beverage license, apply for transfer of a beverage license, or hold an interest in any business involved in the sale or distribution of alcoholic beverages. (DABT Ex. 1, p. 5-8). Without objection from respondent's counsel, DABT's counsel described the consent order (or settlement agreement) as "in the nature of a final administrative action and [respondent] acknowledges that its failure to abide by such would subject him to the provisions of Florida Statutes 120.69 (P-1, p. 6). Although this settlement agreement was effective and began to operate immediately (the 90-day period for sale commenced the next day) DABT's counsel contemplated that a written and signed consent order embracing the terms of the settlement agreement would be subsequently issued. Although such follow-up action was intended, it never occurred. DABT never issued a written order, consent or otherwise, embracing the terms of the settlement agreement. Hearing Officer Benton and, at least one party, thereafter relied on the settlement agreement. The hearing officer closed both Division of Administrative Hearings files, and DABT no longer prosecuted respondent under the pending charges. Since June 16, 1981, the expiration of the 90-day period provided in the agreement, respondent has continued to operate its licensed alcoholic beverage premises, has failed to sell its corporate entity, and has failed to surrender its alcoholic beverage license. Respondent has presented no evidence justifying or excusing its failure to surrender its alcoholic beverage license to DABT for cancellation on or before June 16, 1981. Neither does it seek to withdraw from or set aside the settlement agreement.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's alcoholic beverage license be revoked. DONE and ENTERED this 26th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1983.
Findings Of Fact Respondent Lois Davis, who does business under the name of The Cotton Club, holds License No. 60-00245, a Series 2-COP license issued by petitioner authorizing her to sell beer and wine for consumption on the licensed premises, which are located at 233 Southwest Fifth Street, Belle Glade, Florida. At one time Ms. Davis held License No. 60-576 which authorized sale of hard liquor as well as wine and beer for consumption on the premises of The Cotton Club. On January 25, 1980, as a result of foreclosure proceedings against respondent's landlords, an order was entered directing that "all right, title and interest to Alcoholic Beverage License 60-576" be conveyed to Mr. and Mrs. Robert Daniel. Robert Daniel, et ux. v. Gilbert Adams, et al. v. Lois Davis, No. 78-4667 CA (L) 01 G (Fla. 17th Cir.). At the time respondent applied for her current license, shortly before the previous license expired, she asked that the latter be extended so that she could sell off her stock of hard or spirituous liquors. Petitioner's Lieutenant Little explained that the matter was before a court but agreed to approach the judge. In September of 1980, L. Dell Grieve, a six-year veteran of the Belle Glade Police Department, visited The Cotton Club, saw liquor in a storeroom, and told the bartender that it should be removed. The bartender protested that it was all right to store the liquor while something was being worked out about the license, or words to that effect. Beverage Officers Ramey and Rabie accompanied Officer Grieve on November 15, 1980, on a visit to The Cotton Club, where they found Andre Lavince Moore, respondent's son, tending bar. In the storeroom, they found numerous bottles of spirituous liquors which they confiscated. Petitioner's Exhibit No. Wine and beer were stored in a separate place in the same storeroom. At no time after she lost License No. 60-576 did respondent or her agents or employees sell any alcoholic beverages other than wine or beer at The Cotton Club, or have any intention of doing so without petitioner's permission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint. DONE AND ENTERED this 14th day of May, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1981. COPIES FURNISHED: Daniel C. Brown, Esquire Lt. J. E. Little 725 South Bronough Street Post Office Drawer 2750 Tallahassee, Florida 32301 West Palm Beach, FL 33402 Lois Davis The Cotton Club 233 Southwest Fifth Street Belle Glade, Florida
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Agency for Health Care Administration is the state agency charged with the responsibility for investigating complaints filed against health care professionals. The Board of Medicine ("Board") is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction. At all times relevant to this proceeding, the respondent was licensed to practice medicine in Florida and holds the license numbered ME 0008667. From 1973 until his retirement in the summer of 1993, the respondent was a staff radiologist at Good Samaritan Hospital in West Palm Beach, Florida. He was a founding member of the group of radiologists now known as Palm Beach Imaging Associates. In December 1990, the respondent was going through a divorce, drinking three to four drinks each evening during the week and more on the weekends, dating several women, and generally "living hard." He was concerned about his lifestyle and intended to spend the month of February 1991, at a spa, resting and getting himself back to his normal condition. Instead, on December 17, 1990, he checked into South Miami Hospital for a five-day evaluation at the urging of Drs. Walter H. Forman and Donald W. Goodwin, his partners in Palm Beach Imaging Associates. Although they had been concerned about the respondent's health and his consumption of alcohol for years, Drs. Forman and Goodwin had been afraid to confront him about it previously. Upon his admission to South Miami Hospital, the respondent's blood pressure was taken and he was sent to the laboratory for a lab work-up and x- rays. He was then given a large dose of librium, which he continued to receive regularly until December 19. On December 19, the respondent was discharged from South Miami Hospital against medical advice because he was dissatisfied with his treatment and with the evaluation procedure. The respondent was diagnosed at South Miami Hospital as suffering from chronic alcoholism. When he left South Miami Hospital, the respondent drove himself to West Palm Beach. He was still heavily drugged and drove off the road twice. When he arrived in West Palm Beach, he learned from his estranged wife that Drs. Forman and Goodman had called and advised her that the respondent needed treatment for alcoholism and that he would lose his medical license if he failed to get it. Dr. Goodman was contacted by the hospital when the respondent was discharged, and the Physician's Recovery Network ("PRN") 2/ was also notified by South Miami Hospital of the respondent's discharge. This was the PRN's first involvement with the respondent. Upon being told that his medical license could be in jeopardy, the respondent immediately made arrangements to be admitted to the Talbott Recovery Systems ("Talbott"), a chemical dependency evaluation and treatment center in Atlanta, Georgia. He was admitted to Anchor Hospital, a part of the Talbott system, on December 20, remaining there for twenty-eight days before being transferred on January 17 to the Talbott Recovery Center. At the Talbott Recovery Center, the respondent lived in an apartment with several other patients and attended counseling sessions several times a day. The treatment was patterned after the twelve-step Alcoholics Anonymous Program. In January 1991, the respondent wrote a letter to three of his partners, Drs. Forman, Goodwin, and Wimbush, as part of the first step in his treatment. In the letter, he admitted that he needed to quit drinking but that he was too addicted to do it by himself, and he acknowledged that he could get himself and the radiology group into trouble if he didn't get his drinking under control. He described the treatment program as "totalitarian" but stated that he knew it would really help him. The respondent completed the twelve steps of the treatment program and was discharged from Talbott on April 13, 1991. Before his discharge, Talbott required the respondent to sign a five-year monitoring contract with Florida's PRN. He signed this contract on April 9, 1991. The terms of the contract required the respondent to attend weekly chemical dependency follow-up group meetings for two years, to submit to random urine and blood testing for two years, and to notify the PRN whenever he was going out of town. The contract also gave the PRN the power to order the respondent to be reevaluated if the PRN received any negative information about the respondent's behavior. After a two-week vacation, the respondent returned to West Palm Beach and, in late April or early May 1991, resumed the active practice of medicine. He rejoined his group, Palm Beach Imaging Associates, and worked as a staff radiologist at Good Samaritan Hospital. The respondent did not begin attending the follow-up meetings required by the PRN contract for several weeks after his return to practice, when he was notified that he must attend the meetings to be in compliance with the contract. The meetings were held at 6:00 p.m. in Stuart, Florida, about an hour's drive from Good Samaritan Hospital. The PRN expected attendance at all fifty-two meetings per year, and a participant who missed a meeting was required to have a good excuse for doing so. In a letter dated June 15, 1993, Gordon S. Bohl, President of Recovery Associates, Inc., wrote to the PRN affirming that the respondent had successfully completed his participation in the follow-up group meetings. As required by the PRN monitoring contract, the respondent submitted to random blood and urine testing for two years following his release from Talbott. He had approximately fifty blood tests and approximately twenty urine tests over the two-year period. He would usually receive a telephone call in the morning telling him to report to the office of a local physician in the afternoon. He never tested positive for alcohol. 3/ From early May 1991 until the end of May 1993, the respondent worked at the diagnostic center run by Palm Beach Imaging Associates in the professional office building adjacent to the Good Samaritan Hospital. The center was a very busy place, and the respondent spent more time working there than any of his partners. He handled the business of the center alone during the mornings, and, in the afternoons, all the partners shared in the responsibility. For approximately one year after his return from Talbott, the respondent did an excellent job. He routinely handled a very large workload, and the quality of his work was outstanding. However, beginning in the summer of 1992 and continuing into the fall, Dr. Goodwin and Dr. Forman noticed that his work habits were deteriorating and his personality changing. He still worked well in the mornings, but he began to take longer lunch hours and would run errands in the afternoons which took longer than seemed reasonable. Although the quality of his work was good, Dr. Forman noticed that the respondent's behavior was reverting back to what it had been prior to his treatment at Talbott. In November 1992, word came to Dr. Forman, and from him to Dr. Goodwin, that a technician had told another Palm Beach Imaging Associates partner, Donald Russell, that a patient had remarked that she smelled alcohol on the respondent's breath as he gave her an injection. Neither Dr. Forman nor Dr. Goodwin learned the name of the patient, and they did not attempt to verify the accuracy of the information conveyed to Dr. Russell by the technician. As a result of this report, as well as the changes they had observed in the respondent's work habits and personality, Drs. Forman and Goodwin decided to confront the respondent regarding their perception that he had resumed drinking and that his drinking might have an adverse effect on his work. In December 1992, Dr. Forman prepared a letter in which he set out the partner's concerns and offered the respondent three career choices: He could retire immediately from the group, undergo evaluation and treatment for his drinking, or work part-time in the diagnostic center for six months at a reduced salary and then retire. When the partners delivered this letter and confronted the respondent, he was furious and refused to accept any of the three alternatives. He told his partners that he was drinking, that he intended to continue drinking, that he was not an alcoholic, and that he would not cause the partners any trouble. In the face of the respondent's angry denials, the partners took no further action at the time, and the respondent continued to work full-time in the diagnostic center. Dr. Forman smelled alcohol on the respondent's breath several times between December 1992 and May 1993 and talked to him about it. The respondent denied any problem, but he continued to take long lunches and to be absent from work for long periods during the afternoons. In May 1993, the partners were told that, on three occasions, the respondent had asked a technologist to perform a procedure that, pursuant to the policies of the Palm Beach Imaging Associates, was to be performed by a radiologist. The partners met again in May 1993 to discuss their ongoing concerns regarding the respondent's behavior. They asked Dr. Goodwin to contact the PRN and ask for guidance in handling the problem. Dr. Goodwin telephoned the PRN and eventually spoke with Dr. Roger A. Goetz, a Florida-licensed physician who is the Director of the Physician's Resource Network/The Impaired Practitioner's Program of Florida, which includes the PRN. During their long professional association with the respondent, Dr. Forman and Dr. Goodwin never observed him in an impaired condition while at work, and they never heard any complaints that the respondent had been observed in an impaired condition while acting in his professional capacity. Dr. Forman and Dr. Goodwin never had reason to criticize the quality of the respondent's work, which they felt was consistently good and sometimes outstanding, and they never heard any complaints from other physicians or from patients regarding the quality of his work. Even so, Dr. Goodwin told Dr. Goetz that, although the partners had no evidence that the respondent had ever been intoxicated on the job or that the respondent had ever made a mistake in his work as a result of the use of alcohol, they were concerned about his behavior. Dr. Goodwin identified the bases for this concern as the respondent's previous history of alcohol abuse and the change in his work habits and behavior; he included the information that a patient had reported smelling alcohol on the respondent's breath. The partners followed up Dr. Goodwin's telephone call with a letter to Dr. Goetz dated May 26, 1993. They also notified the respondent that they had made a report to the PRN. The respondent ceased practicing medicine at the end of May 1993. On the basis of the information received from the respondent's partners, Dr. Goetz requested in a letter dated June 3, 1993, that the respondent present himself for an in-depth evaluation at one of the several PRN- approved facilities listed in the letter. The respondent found these facilities unacceptable because they were affiliated with the PRN, and he proposed three other facilities. Dr. Goetz agreed that the respondent could be evaluated at one of these, but he refused to agree to the respondent's suggestion that the evaluation be conducted without the examining physician having access to his medical history or, alternatively, that the medical history be provided only after the submission of the evaluation report. As a result, the respondent refused to undergo the requested evaluation. In September 1993, the respondent received an order from the Agency compelling him to submit to both a physical and a mental examination. The Agency chose the doctors and told the respondent when to appear for the appointments. On September 9, the respondent was seen at approximately 10:00 a.m. by Dr. Rohit Dandiya, a Florida-licensed physician board-certified in internal medicine. Dr. Dandiya performed a physical examination at the request of the Agency for the purpose of determining whether the respondent could practice medicine with reasonable skill and safety. Tests were run for several blood chemistries, including liver function, and, with the respondent's consent, for alcohol. The blood test results showed that two liver functions were abnormal. In Dr. Dandiya's opinion, the abnormalities could be related to injuries to the liver from the use of alcohol, but they could also be related to injuries to the liver from numerous other sources. The blood test results showed an alcohol level of twenty- seven milligrams per decaliter, which Dr. Dandiya considered very unusual given that the blood was drawn between 10:00 a.m. and 11:00 a.m. In Dr. Dandiya's opinion, this result indicated that the respondent had consumed alcohol within two or three hours before the blood was drawn. Dr. Dandiya did not receive any information regarding the respondent's medical history from the Agency. The information contained in the report was obtained solely from the respondent, who told Dr. Dandiya that he did not have any problems related to the use of alcohol; that he consumed four to six drinks per day, two to three before going home in the evening and two to three with dinner; that his consumption of alcohol had been at this level for the past twenty years; and that he had been treated at Talbott from January to April 13, 1991, for chemical dependency. Based on the results of the physical examination and on the history provided by the respondent, it is Dr. Dandiya's opinion that the respondent suffers from the disease of alcoholism. Although Dr. Dandiya included in his report to the Agency his opinion that the respondent's ability to practice medicine was questionable, he refused to state an opinion as to whether the respondent can currently practice medicine with reasonable skill and safety, explaining that he had examined the respondent fifteen months previously and had no knowledge of the respondent's current condition. On September 10, 1993, the respondent was seen by Dr. Neville S. Marks, a Florida-licensed psychiatrist with considerable experience in the diagnosis and treatment of alcohol dependency. Dr. Marks conducted the examination of the respondent at the Agency's request and received from the Agency the respondent's records from South Miami Hospital, Anchor Hospital, and the Talbott Recovery Center. Dr. Marks reviewed these records and performed a psychiatric examination in which he took a full history from the respondent, conducted a mental status examination, and performed two psychological tests. At the respondent's request and expense, Dr. Marks interviewed him a second time. The psychological tests administered were the 16PF Test Profile and the Minnesota Multiphasic Personality Inventory. The results of both of these tests were in the normal range, although the results suggested that the respondent was dependent and had a need for social approval. Dr. Marks concluded that the respondent had no significant pathology. In the history the respondent gave Dr. Marks, he stated that his father and two relatives on his mother's side were alcoholics and that his daughter had been treated for chemical dependency. He confirmed that, at the time he went into South Miami Hospital, he routinely consumed four to six drinks per day and six to twelve beers on Saturdays and Sundays. He described himself as very sharp and feeling very good for about a year after his release from the Talbott treatment program. He admitted that he likes to drink and that he had been drinking vodka and soda the night before the examination. He stated that he did not experience any effects from the use of alcohol, and he denied that he was an alcoholic. Dr. Marks observed the respondent's physical appearance and demeanor during the interviews, and he telephoned the respondent's partner, Dr. Goodwin, for additional information about the respondent, a normal procedure in evaluations of this type. Dr. Goodwin told Dr. Marks that the respondent had never been impaired on the job but that he had missed certain procedures, could be gruff over the telephone, and shown poor judgment at times. Based upon this information, Dr. Marks is of the opinion that, within a reasonable degree of medical certainty, the respondent suffers from chemical dependency of the alcohol type and that, until he obtains treatment and is motivated to stop using alcohol, the potential exists for him to practice medicine below the acceptable standard. In forming this opinion, Dr. Marks considered it significant that, even though his license to practice medicine was at stake, the respondent stated that he had consumed alcohol the night before his examination, that he had been drinking for many years, and that he wanted to continue to drink. As Director of the PRN, Dr. Goetz provides consulting services to the Agency with respect to impaired physicians, pursuant to the PRN's contract with the Agency. In his capacity as consultant to the Agency, Dr. Goetz, by letter dated September 30, 1995, notified the Agency that the respondent was not in compliance with his PRN monitoring contract and that, in his professional opinion, the respondent posed a serious danger to the public health, safety, and welfare. In making this assessment, Dr. Goetz considered the respondent's medical records, including oral reports from the Agency regarding the results of the examinations performed by Dr. Dandiya and Dr. Marks; the respondent's progress through the follow-up group meetings and the PRN monitoring process as reported by the treatment providers; and the behavioral and attitudinal changes and complaints reported by the respondent's partners. The respondent's medical license was suspended on October 5, 1993. Two letters were written to the respondent by Dr. John J. Purcell, a psychiatrist practicing at the Harvard Medical School, setting out his observations and opinions regarding the respondent's condition. In a letter dated November 23, 1991, Dr. Purcell reported that, based on three one-hour meetings with the respondent, it was his personal opinion that the respondent was merely a heavy social drinker, not an alcoholic. In a letter dated December 4, 1993, Dr. Purcell reported on his November 11, 1993, meeting with the respondent. He expressed his conclusions that the respondent's consumption of alcohol was less than that of a social drinker, that the respondent was being treated unfairly, and that there was no reason the respondent should be prevented from working. On December 20, 1993, the respondent was seen for a three-day evaluation by the staff of the Meninger Foundation in Topeka, Kansas, a well- respected chemical dependency evaluation and treatment facility. In the examination report, dated December 23, 1993, Roy W. Meninger, M.D., a psychiatrist, stated that the examining staff could find no basis for a diagnosis of alcohol abuse at the time of the examination, although they could neither affirm nor negate the earlier diagnoses at South Miami Hospital and Talbott. Likewise, the staff found no basis for concluding that the respondent was not competent to practice medicine or posed a public hazard. On August 19, 1994, the respondent was admitted to St. Mary's Hospital by Dr. William Donovan, with an admission diagnosis of gastroenteritis or hepatitis. Dr. Jeffrey S. Wenger, a gastroenterologist, was asked by Dr. Donovan to consult with regard to the condition of the respondent's liver. When he first examined the respondent, Dr. Wenger had no chronic history and was aware only of the acute history reported by Dr. Donovan that the respondent presented with acute intoxication and that he needed to undergo detoxification. Dr. Wenger's diagnosis on consultation was that the respondent suffered from acute hepatitis, likely alcohol related, and he ordered serologies which eliminated other causes of the liver disease. The respondent was discharged on August 29, 1994, to the Hanley-Hazelton Center for rehabilitation; he was released after four days. When Dr. Wenger spoke with the respondent on August 19, 1994, shortly after his admission, he admitted drinking about three glasses of vodka and soda per day, although the respondent claimed that the amount had decreased over the previous few months. Given his acute intoxication on admission, Dr. Wenger ordered that seventy-five milligrams of librium be administered to the respondent three times per day to prevent delerium tremens; this dosage was decreased incrementally during the respondent's hospitalization. Dr. Wenger has no opinion as to whether the respondent suffers from the disease of alcoholism or whether he is presently capable of practicing medicine with reasonable skill and safety. He is of the opinion that, during his hospitalization at St. Mary's, the respondent was not capable of practicing medicine with reasonable skill and safety. The respondent denies that he is an alcoholic and believes that all of his troubles originated with an incorrect "non-diagnosis" of chronic alcoholism made by a physician's assistant at South Miami Hospital in December 1990. During the summer and fall of 1990, he was having marital problems and was 'living life pretty hard.' Although he was drinking two to four drinks per day, he felt that he did not have a problem with alcohol but that he was just not getting enough rest. The respondent went into the Talbott Recovery System only because Drs. Forman and Goodwin threatened him with the loss of his license to practice medicine. He claims that he was not evaluated when he was in Anchor Hospital, and he believes that the staff at Anchor and Talbott merely accepted the incorrect diagnosis of chronic alcoholism made at South Miami Hospital and forced him to participate in a four-month inpatient treatment program on this basis alone. He felt he never belonged in the Talbott treatment program, so he lied and made things up in order to progress through the program's twelve steps. Specifically, the respondent claims that the January 1991 letter to his partners was written under duress, that his first draft was rejected because he didn't adequately admit his alcoholism, and that the letter he actually sent was essentially dictated to him. He would not have agreed to sign the PRN monitoring contract if it were not a condition of his release from Talbott. The respondent denies each allegation made by his partners in the confrontation of December 1992: He never took -longer than thirty minutes for lunch; he did not ever leave the diagnostic center unattended or for long periods of time; it was impossible for anyone to have smelled alcohol on his breath because at the time he was drinking no more than one or two beers on Saturday after playing golf. He was furious at the accusations and believes that his partners were trying to force him to retire because they knew he would never again submit to the humiliation and degradation of treatment. From December 1992 until May 1993, when his partners contacted the PRN, he settled back into his old pattern of having two drinks with his friends each evening after work. The respondent disputed the validity of the examination performed by Dr. Dandiya. According to the respondent, Dr. Dandiya did a very cursory, five- minute physical examination and took no past medical history whatsoever. The only conversation the respondent claimed he had with Dr. Dandiya was to tell him why he was there and to request that he draw blood to test for alcohol. The respondent testified that Dr. Dandiya drew the blood as requested but that he used an alcohol swab when he did so, thus contaminating the blood and ensuring a positive test result. Dr. Marks likewise did an inadequate psychiatric examination, according to the respondent. The respondent testified that Dr. Marks already had his notes prepared when the respondent arrived, having taken them from the records of his previous hospital admissions and of his time at Talbott. The respondent claims that Dr. Marks spent only fifteen minutes asking him about the things written in his notes; the remaining forty-five minutes of the first visit were spent in the secretary's office taking psychological tests. The respondent told Dr. Marks he thought he had not been evaluated at all and arranged for a second visit. The respondent described the second visit as much like the first, and he insisted that, in the only discussion he and Dr. Marks had, he told Dr. Marks he drank nothing more than an occasional beer. The respondent admits he was extremely ill when he was admitted to St. Mary's Hospital in August 1994. He concedes that he was drinking at that time but that he really wasn't keeping track of how much he was drinking. He did not think, however, that he was drinking enough to cause hepatitis. The respondent testified that, since his release from the Hanley-Hazelton Center, his alcohol consumption has been "almost" nonexistent. He is aware that he cannot drink without becoming seriously ill. The respondent has never been reported by a physician or other health care professional or by a patient as impaired on the job as a result of the use of alcohol or otherwise. None of the physicians for whom he has done work have complained that his work was of less than acceptable quality. Because the respondent has not practiced medicine since May 1993, except for a period of about one week in late September 1993, there is no current evidence regarding his ability to practice with reasonable skill and safety. Alcoholism is a disease characterized by the use of alcohol in an amount excessive for a particular person. This excessive use of alcohol can impair a person's ability to work; it can cause physical damage such as liver damage and brain damage manifested as loss of concentration and memory lapses; and it can adversely affect social and interpersonal relationships. The consumption of alcohol need not be compulsive; a person can decide that drinking will be part of his or her life and then continue drinking as a matter of choice even though it is clear that there are adverse effects and deterioration in the ability to function on a day-to-day basis. After a period of time, the consumption of alcohol becomes a pattern, and the person becomes dependent on drinking, both physically and psychologically. One of the classic symptoms of alcoholism is denial, denial of adverse effects on one's life as a result of continued drinking and denial that it would be physically and emotionally healthier to quit drinking. Alcoholism is a chronic, relapsing condition which, if left untreated, will get progressively worse. Alcoholism can only be treated and controlled. It cannot be cured. The testimony of the respondent, summarized above in paragraphs 41 through 47, is not credible to prove that he is not an alcoholic and that his ability to practice medicine with reasonable skill and safety has never been, is not now, and never will be, affected by his use of alcohol. The respondent accused all of the health care professionals who have diagnosed him as an alcoholic of incompetence, malpractice, and lying; he offered excuses for behavior which his partners considered questionable and denied every allegation they raised in December 1992; he blamed his troubles on conspiracies mounted against him because of greed - the greed of his partners to split his $600,000 annual salary among themselves and the greed of Dr. Goetz and those running state- approved treatment programs to enrich themselves at the expense of professionals like himself, who have been deliberately misdiagnosed as alcoholic. The respondent did not admit to a single fault and even explained away his deteriorated condition in December 1990 as the result of the lack of sufficient rest. Rather than support his assertion that, in spite of his drinking, he is not an alcoholic, this testimony merely confirms the extent of his denial of all signs and symptoms of the adverse effects of his consumption of alcohol. The respondent has shown a consistent pattern of drinking which, since December 1990, has been broken only by the one-year period following his discharge from Talbott in April 1991. He was diagnosed in August 1994 with alcohol-related hepatitis after being admitted to St. Mary's Hospital acutely intoxicated, yet he still drinks alcohol. The letters of Dr. John J. Purcell are not credible evidence to prove that the respondent is not an alcoholic and that his ability to practice medicine with reasonable skill and safety is not affected by his use of alcohol. At best, this hearsay evidence merely supplements the respondent's self-serving testimony that he is nothing more than a social drinker and that he is being treated unfairly. Nor is the Meninger report sufficient to prove that the respondent is not an alcoholic and that his ability to practice medicine with reasonable skill and safety is not affected by his use of alcohol under the standards recognized by the State of Florida. The staff was equivocal about whether the respondent is an alcoholic, concluding only that there was no present evidence of alcohol abuse. The staff's opinion that the respondent was competent to practice medicine was based on the assessment of his condition in December 1993. The evidence is clear and convincing that the respondent suffers from the disease of alcoholism. Even though there have been no complaints regarding the quality of his work and no indication that he has been impaired or intoxicated on the job, the respondent has shown extremely poor judgment regarding his consumption of alcohol in personal life. The evidence is clear and convincing that the respondent is an impaired physician and cannot practice medicine with reasonable skill and safety unless he abstains completely from the consumption of alcohol. This can be assured only if the respondent successfully completes an approved treatment program and keeps his alcoholism in remission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that James P. Bowman, M.D., is unable to practice medicine with reasonable skill and safety to patients by reason of the use of alcohol and Suspending his medical license until he appears before the Board and demonstrates that he is able to resume the practice of medicine with reasonable skill and safety; Requiring that this demonstration be supported, at a minimum, by satisfactory mental and physical evaluations performed by experts approved by the Board and by evidence of successful completion of an approved alcohol rehabilitation program; Placing Dr. Bowman on probation for five (5) years subject to terms and conditions set by the Board to ensure his continued ability to practice medicine with reasonable and safety, if or when the terms of the suspension are satisfied; Imposing an administrative fine of $3,000.00. DONE AND ENTERED this 28th day of August 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 28th day of August 1995.
