The Issue Whether the Petitioner correctly answered questions 37, 44, 49, 83, and 206 of the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998.
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 Department of Health is the state agency responsible for licensing and regulating physician assistants. Sections 455.574 and 458.347(7), Florida Statutes (1997). Mr. Molina sat for the Physician Assistant Examination administered on June 25 though 29, 1998. At the hearing, he disputed the Department's determination that the answers he gave to questions 37, 44, 49, 83, and 206 are incorrect. The questions that comprise the General Written Exam portion of the June 1998 Physician Assistant Examination were objective, multiple-choice questions. The questions were drawn from a bank of questions written by licensed physician assistants trained by a psychometrician employed by the Department. Prior to being included in the question bank, these questions were reviewed and field-tested to ensure that they were good, fair questions that adequately and reliably tested the applicant's ability to practice as a physician assistant with reasonable skill and safety. After the test questions for the June 1998 examination were selected from the question bank, the questions were reviewed before the examination and after the examination. The candidates taking the examination in June 1998 were directed in the instructions to the examination to choose the best answer from among four possible answers. This instruction was included in the examination booklet provided to each candidate, and the Department's normal procedure was to read the instructions aloud prior to the examination. According to the Department, the correct answer to question 37 is "C"; Mr. Molina chose answer "B." Although question 37 is, on its face, clear and unambiguous, the reference book relied upon by the Department to support its answer, although an authoritative source for physician assistants, does not, in fact, unambiguously support the Department's answer. Question 37 refers to the "entire anterior chest," and the answer to the question can be derived from the "Rule of Nines." The "Rule of Nines" is a standard rule used in the practice of medicine and is illustrated in an authoritative text entitled Current Medical Diagnosis and Treatment, which contains a chart showing the outline of the human body divided into sections, each representing approximately nine percent of the body's surface area. The chart shows, in pertinent part, the trunk of the human body divided into the "posterior" upper trunk and the "posterior" lower trunk, with a line drawn somewhat above the umbilicus to illustrate the division of the trunk into the upper and lower portions. The Department's expert testified, without explanation, that the "entire anterior chest" is composed of both the upper and the lower trunk. This conclusion cannot be drawn from the chart contained in the reference book relied upon by the Department, and Mr. Molina's answer to question 37 is as reasonable as the answer the Department considers correct. Accordingly, Mr. Molina should receive credit for his answer to question 37. According to the Department, the correct answer to question 44 is "D"; Mr. Molina chose answer "B." Question 44 asks for the "MOST likely diagnosis" based on the facts contained in the question. Question 44 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be derived from information included in the reference book entitled Ophthamology for the Primary Care Physician, which is considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 44 because the answer he gave is not the correct answer. 3/ According to the Department, the correct answer to question 49 is "A"; Mr. Molina chose answer "C." Question 49 asks for the "MOST likely" diagnosis based on the facts contained in the question. Question 49 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be found in volume 1 of Harrison's Principles of Internal Medicine, a reference book included in the list of recommended books sent to the candidates for the Physician Assistant Examination and considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 49 because the answer he gave is not the correct answer. According to the Department, the correct answer to question 83 is "D"; Mr. Molina chose answer "C." Question 83 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be found in volume 1 of Harrison's Principles of Internal Medicine, a reference book included in the list of recommended books sent to the candidates for the Physician Assistant Examination and considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 83 because the answer he gave is not the correct answer. According to the Department, the correct answer to question 206 is "C"; Mr. Molina chose answer "A." Question 206 asks for the "MOST common" presentation of a precancerous lesion. Question 206 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be found in volume 2 of Harrison's Principles of Internal Medicine, a reference book included in the list of recommended books sent to the candidates for the Physician Assistant Examination and considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 206 because the answer he gave is not the correct answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding that Nigel Molina is entitled to credit for his answer to question 37 of the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998; finding that Mr. Molina is not entitled to credit for his answers to questions 44, 49, 83, and 206 of the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998; and recalculating Mr. Molina's score on the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998. DONE AND ENTERED this 8th day of February, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2000.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, William J. Gozza, was employed by the Respondent, Department, as a collection specialist II in the Department's Tampa office. The Department of Revenue was and is the state agency responsible for the collection of money due the state in taxes, with a branch office located in Tampa, Florida. Based on facts not described at the hearing, Petitioner was given a five day suspension from duty during the period September 11-15, 1989, and was scheduled to return to work on September 18, 1989. Petitioner did not return to work on that date and the Department was notified he was unable to do so because of a serious injury which was reportedly caused by Department employees. On September 13, 1989, however, Mr. J. D. Burrows, the Department's District Administrator supervising the office where Petitioner worked, by certified mail, confirmed to Mr. Gozza the substance of a telephone call between the parties of that same date in which Mr. Gozza was advised to report to work at 8:00 AM on September 18, 1989. This telephone call had culminated in Mr. Gozza's indicating that he "may or may not" report to work on September 18, 1989. In the September 13 letter, Mr. Burrows clearly advised Mr. Gozza that if he was ill or injured, a telephone call to that effect on September 18, as well as a certified medical certificate from the attending physician, "stating that you are unable to perform your duties" would be required. As was stated, Mr. Gozza did not return to work on September 18. However, on September 15, 1989, his physician, Dr. Kadosa, submitted a "disability statement" indicating that Petitioner was under his care for injuries received on September 11, 1989, and that these injuries "resulted in disability" from September 15, 1989 through October 16, 1989. On October 13, 1989, Dr. Kadosa submitted a second "disability statement" which indicated that the disability dates were extended from October 16, 1989 through November 16, 1989. Neither of these two statements contained the comment that Mr. Gozza was " unable to perform [his] duties." At hearing, however, Mr. Burrows indicated that his understanding of the word "disabled" or "disability" was that the individual so described was unable to perform his duties. On November 13, 1989, Dr. Kadosa submitted a third statement addressed to "To whom it may concern", advising that Mr. Gozza could return to work under light duty conditions on December 1, 1989, and that he was to work between two and four days a week, four to five hours per day. This third statement was accepted by Mr. Burrows as a certified medical excuse, but he also considered it as authority for Mr. Gozza to begin work again on December 1, 1989. Consistent with that conclusion, on November 15, 1989, Mr. Burrows wrote to the Petitioner by certified mail, tracing Petitioner's medical history from September 13, 1989, and advising him that the September and October medical certificates submitted by Dr. Kadosa were considered "not appropriate medical certifications to support the necessity for [him] to be off work" and that the Department considered him to be on unauthorized leave without pay during that period. Mr. Burrows also advised Mr. Gozza that prior to being able to return to work, he must obtain an appropriate medical certification from the doctor indicating that the doctor had determined that it was medically necessary that he not be at work for the period of time he was off from work since Monday, September 18, 1989. Mr. Gozza did not receive Mr. Burrows' November 15, 1989 letter until November 28, 1989. On that day he had a telephone call with Mr. Burrows the nature of which, if not the substance, is in dispute. Both parties agree that the topic of discussion was Mr. Gozza's prior and continuing absence from work, and both parties agree that Mr. Gozza was advised by Mr. Burrows that he was to report to work on December 1, 1989. Whereas Mr. Gozza indicates Mr. Burrows told him that when he reported, he must have an appropriate medical certificate and that he was not to report without it, Burrows denies this contending that when he advised Gozza to bring a medical certificate, Gozza advised him he would not be able to do so until at least December 4, 1989. Mr. Burrows contends that at no time did he indicate to Mr. Gozza that he was not to come back to work without the certificate, and both he and Ms. Dean, Mr. Gozza's immediate supervisor, indicated that had Mr. Gozza come to work without the certificate, but on time and as directed, some accommodation would have been made to allow him to return to work and to submit the required medical certificate at a later date when he was able to see his physician. Considering the evidence as a whole, it is found to be highly unlikely that either Mr. Burrows or Ms. Dean, who also spoke with Mr. Gozza on several occasions regarding his absence, told him that he could not come back to work without the certificate. The unalterable fact is that Mr. Gozza did not report to work, with or without a certificate, on December 1, 1989, the day he was directed to return, nor did he report on December 4, 5, or 6, 1989, the subsequent Monday, Tuesday, and Wednesday. On December 4, 1989, after Mr. Gozza failed to report as directed on December 1, 1989, Mr. Burrows recommended to Department personnel officials in Tallahassee, that Mr. Gozza's position be considered abandoned on the basis that he failed to come to work for three days and failed to provide the required medical backup, complicated by his failure to call in to the agency to explain. Thereafter, on December 7, 1989, Mr. Fritchman, Department personnel officer, advised Mr. Gozza by letter that the Department considered him to have abandoned his position of employment as of the close of business on December 6, 1989. This letter traces the Petitioner's absence history from September 18, 1989 through the date of the letter, and outlines the efforts made by Department personnel to explain to Mr. Gozza what was required of him to justify or excuse his absences, in addition to the regulatory provisions under which the excuse requirements were provided and under which this termination action was taken. Mr. Burrows and Ms. Dean both admit that at no time did they attempt to contact Mr. Gozza's physician to secure the medical certificate needed. Both claim it was not their responsibility to do so but that of the employee, and that this responsibility was impressed upon Mr. Gozza, directly, on several occasions. A Department memorandum, dated May 24, 1989, dealing with approval of leave without pay, such as medical leave in excess of sick leave, specifically states at paragraph 7, that "the employee is responsible for obtaining appropriate medical certification when requesting leave without pay for medical reasons." Mr. Gozza pointed out that the memorandum was addressed to all supervisors and that he was not personally provided with a copy and, therefore, did not know of the agency policy. This is clearly an ingenuous argument. Both Mr. Burrows and Ms. Dean were quite clear in their statements that they had advised Mr. Gozza directly that it was his responsibility to get the proper medical certification. This position was supported by Mr. Fritchman, and none of the three could recall any case where in a situation such as here, wherein an employee needed certification for an absence due to a medical condition, that Department employees assumed the absentee's responsibility for procuring his medical certificate. It is so found. Mr. Gozza also repeatedly alleged that the current action was not based on valid factual grounds but was taken as retaliation against him for his prior report of discrimination and corruption within the Department. Mr. Gozza presented no evidence of what the discriminatory activity to which he referred was or the nature of the corruption to which he alluded. However, both Mr. Fritchman and Mr. Burrows admitted that such a complaint was filed and was forwarded to Department officials in Tallahassee. Further, the evidence tends to suggest that as a result of "complaints" and "grievances" filed, including that of the Petitioner, Mr. Fritchman, along with others on an inspection team, came to Tampa to look into these allegations. No evidence was presented as to what the result of this investigation was and what corrective or other action, if any, was taken. The allegation of retaliation, which was unequivocally denied by Mr. Burrows, Ms. Dean, and Mr. Fritchman, is not supported by any evidence, and it cannot be found that this personnel action is based on anything other than Mr. Gozza's unexcused failure to come to work on December 1, 4, 5, and 6, 1989. Findings of Fact cannot be based on allegation alone. Evidence to support the allegations is required if they are to result in a positive finding. Here, there is no more than an allegation without supporting evidence.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a final Order be entered finding that Petitioner, William Gozza, abandoned his position with the Department of Administration and resigned from the Career Service when, on December 1, and 4-6, 1989, without authority, he absented himself from his work place for three consecutive days. RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6th day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0403 The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed findings of Fact Submitted by the parties to this case. BY THE PETITIONER: None submitted. BY THE RESPONDENT: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. Accepted and incorporated herein. & 9. Accepted and incorporated herein. Ultimate fact accepted and incorporated. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. First sentence accepted and incorporated herein. Balance is no more than comment on the sufficiency of the evidence. Accepted and incorporated herein. Accepted and second sentence is incorporated herein. Not a Finding of Fact but more a statement of the pertinent regulatory provisions. COPIES FURNISHED: William J. Gozza 1777 Rosewall Drive Land O'Lakes, Florida 34639 Gene T. Sellers, Esquire 204 Carlton Building Post Office Box 6668 Tallahassee, Florida 32314-6668 Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 William D. Moore General Counsel Department of Revenue 203 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact Petitioner applied for certification as a physician assistant by application dated June 29, 1991. Under the statutory scheme regulating physician assistants, in certain circumstances, the Board of Medicine may grant temporary certification to applicants for licensure. The temporary certification is good only until the applicant receives notice of the applicant's scores received on the first available examination. At its meeting of October 30 through November 1, 1992, the Board approved Petitioner for temporary certification contingent upon his completion of specified requirements prior to such temporary certification and his completion of 25 hours of continuing medical education after issuance of such certification. Petitioner completed the specified requirements for issuance of the temporary certification and was issued a temporary certificate. Petitioner was so notified by letter dated October 4, 1993. Petitioner was first notified of the need to pay a required fee for the licensure examination by letter dated February 27, 1993. That letter set forth that the fee must be paid by March 31, 1993. Petitioner did not pay the fee by that deadline. On June 8, 1993, Petitioner was notified that the deadline for payment of the required examination fee had been moved to June 25, 1993. The extension had been given because the Board was still involved with processing applications for this special licensure program. Petitioner did not pay the fee by that deadline. On October 11, 1993, Petitioner was sent another letter notifying him that the deadline had been extended once again. This time the deadline was set for November 15, 1993. The notice sent to Petitioner specified three times that the required examination fee must be received in the office of the Board by November 15, 1993. It specifically informed Petitioner that a postmark of November 15, 1993, would not be sufficient. Furthermore, the notice informed Petitioner that if he failed to submit the required examination fee in a timely fashion, he would not be eligible to take the licensure examination. Although Petitioner testified that he was confused with regard to when the required fee could be sent, it was established that he could read the letter and that he understood that his failure to timely pay the examination fee would result in his not being permitted to take the licensure examination. Petitioner did not have the money for the required examination fee until November 14, 1993. Petitioner mailed the examination fee from Miami to the Board office in Tallahassee by certified United States mail on November 15, 1993. Although Petitioner testified that he believed the fee would be delivered the same day or the next day, Petitioner did not use any type of special delivery to provide same day or next day delivery at the Board's office. The fee submitted by Petitioner in the form of three Travelers Express Company checks was received in the Board's office on December 22, 1993. Petitioner did not submit the required examination fee in a timely manner for any of the three deadlines set by the Board. With the exception of one case involving an applicant with a heart condition, the Board has uniformly denied any request for the late payment of the required examination fee. If he does not take and pass the first available licensure examination, Petitioner will not be able to receive his permanent certification as a physician assistant. The licensure examination for persons in Petitioner's category has not yet been given by the Board. Therefore, none of the applicants for certification as physician assistants through this special licensure program have yet been tested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner is not eligible to take the physician assistant examination and that Petitioner's temporary certification is null and void. DONE and ENTERED this 9th day of February, at Tallahassee, Florida. LINDA M. RIGOT 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 9th day of February, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-4, 7-9, and 13 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being irrelevant. Petitioner's proposed finding of fact numbered 6 has been rejected as being subordinate. Petitioner's proposed findings of fact numbered 10-12 have been rejected as being not supported by any evidence. Respondent's proposed findings of fact numbered 1-17 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 18 has been rejected as not constituting a finding of fact. COPIES FURNISHED: Allen R. Grossman, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Alexander J. Alfano, Esquire 45 Southwest 9th Avenue Miami, Florida 33130 Dr. Marm Harris, Executive Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether respondent's license to practice medicine should be disciplined on grounds that: (1) he engaged in gross or repeated malpractice or failed to practice medicine with the required level of care, skill, and treatment, and (2) he is unable to practice medicine with the requisite skill and safety by reason of illness or as a result of a mental or physical condition.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: Respondent is an 80-year-old physician licensed to practice medicine in Florida. He has been a general practitioner in the Miami area for over 40 years; during that time, he has earned the respect and esteem of the medical community. During the 1940s, he helped establish the first cancer clinic in Dade County; he is recognized as one of the community's early medical pioneers. He has never before been the subject of a disciplinary action for professional misconduct. (Testimony of Bishop, Boughton; R-2.) I. The Claresta Halloran Abortion On July 3, 1980, Ms. Claresta Halloran, age 35, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was "sometime in April." (P-3.) Respondent palpated her, examined her by use of a sounding instrument, and dilated her uterus. After determining that she was approximately 12 weeks pregnant, respondent attempted to abort the fetus by suction and curettage. Fearing that he had perforated Ms. Halloran's uterus, respondent had her transported to North Miami General Hospital for an exploratory laparotomy. Results of the exploratory surgery were negative; there was no evidence of perforation of the uterus or injury to the bowel. (Testimony of Boughton; P-3.) William Wickman, M.D., performed the exploratory surgery on Ms. Halloran at the hospital. His bimanual examination revealed an enlarged uterus, "the size of approximately [a] 12 week pregnancy." (Testimony of Boughton; P-3.) Two days after the surgery, Ms. Halloran passed a macerated fetus which, after pathological examination, was estimated to be of 17 weeks' gestation. Her convalescence from surgery was otherwise uneventful and she was discharged from the hospital the next day, July 6, 1980. (Testimony of Boughton; P-3.) Absent specialized training, abortions "from below," that is, by dilating the cervix and removing the contents of the uterus, should not be performed on pregnancies which have progressed beyond 12-weeks. This is because, after 12 weeks, the fetus's bones have developed calcium and sharp, razor-like edges which can perforate the uterus and endanger the health and safety of the patient. (Testimony of Rudolph.) Respondent has not received specialized training which would enable him to safely use the "from below" method on pregnancies beyond 12 weeks. However, his examination of Ms. Halloran led him to believe she had been pregnant for 12 weeks. In reaching that conclusion, he did not rely solely on the date of the patient's last menstrual period. His palpation and examination of the patient's uterus confirmed that the pregnancy was approximately 12 weeks. Dr. Wickman's subsequent examination of the patient at the hospital confirmed that the patient's uterus indicated an approximate 12-week pregnancy. (Testimony of Rudolph, Boughton; P-3.) There are other more advanced methods, such as sonography, which enable one to more accurately determine the gestational age of a fetus. However, the evidence does not support a finding that respondent's failure to use such methods constitutes malpractice or a failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (Testimony of Rudolph.) Respondent admits that he erred in his diagnosis of the stage of Ms. Halloran's pregnancy. However, his diagnosis was not shown to have been unjustified or unreasonable in light of the facts known to him at the time. Both the date of the patient's last menstrual period and manual examination of the uterus supported a determination that the pregnancy was approximately 12 weeks. The "from below" abortion procedure which respondent utilized is only unacceptable for use on pregnancies in excess of 12 weeks. In short, respondent's treatment of the patient was consistent with his diagnosis. While the diagnosis was in error -- the fetus was of 17 weeks' gestation, not 12 weeks -- other physicians, under similar circumstances, would likely have made the same error. (Testimony of Boughton; P-3.) II. The Wilhemina Evans Abortion On August 5, 1980, Ms. Wilhemina Evans, age 18, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was at the end of April. He palpated her, placed a sounding instrument, and dilated her uterus. After concluding that she was at least 13 weeks pregnant; 2/ he attempted to abort the fetus "from below" by use of placental forceps and a curette. He thought the abortion had been successful and permitted the patient to, return home. (Testimony of Rudolph, Boughton; P-4.) The next day, the patient went to Jackson Memorial Hospital complaining of abdominal pain. Several minutes after arriving at the emergency room, she passed a 750-gram male still-born fetus. Subsequent pathological examination indicated that the fetus was of 24 weeks' gestation. (P-4.) Respondent failed, in several respects, to provide Ms. Evans with treatment which is recognized by a reasonably prudent similar physician as acceptable under similar circumstances. Without special training, the "from below" method of aborting the fetus should not have been used on a woman beyond 12 weeks pregnant. 3/ Moreover, if respondent was uncertain of the gestational age of the fetus, he should not have attempted to abort the fetus "from below" in an office setting. Despite the patient's obesity, respondent should have been able to determine the advanced gestational stage of the fetus. Finally, a reasonably prudent similar physician would have realized that the attempted abortion had been unsuccessful and would not have permitted the patient to immediately return home. Thus, it is concluded that respondent's treatment of Ms. Evans was inconsistent with acceptable medical practice. 4/ (Testimony of Rudolph.) III. Treatment of Skin Lesions of Bernice Riordan Since 1951, Bernice Riordan, age 68, has been a patient of respondent's. Over the years, he treated her for various ailments, including basal cell carcinomas and squamous cell carcinomas on her face and neck. He used different techniques to treat the carcinomas; electrocoagulation in 1955; electrodesiccation and silver nitrate in 1961, 1962, 1972, and 1976; bichloracetic acid in 1976; and 5-Fluorouracil in 1978. In April, 1961, respondent referred Ms. Riordan to a dermatologist for specialized treatment. In 1969, he referred her to Jackson Memorial Hospital for radiation therapy because of multiple lesions on her face. She was a difficult and eccentric patient; she continually resisted his efforts to refer her to specialists for treatment of her increasingly serious carcinomas. Finally, in 1980, he referred her to two specialists -- a plastic surgeon and another dermatologist. By 1980, the cancer of the skin on her face had destroyed the entire nose and perioral skin. (Testimony of Boughton; P-2.) The Department presented, by deposition, the testimony of Dr. Richard C. Childers, a dermatologist who had reviewed the patient records of Ms. Riordan. He graduated from medical school in 1969 and was licensed to practice medicine in Florida in 1971. Since 1974, he has engaged in the private practice of dermatology in Gainesville, Florida, with a clinical appointment at Shands Teaching Hospital. It was Dr. Childers' opinion that respondent should have referred Ms. Riordan, no later than 1959, to a specialist for treatment of recurring skin lesions. Dr. Childers also opined that respondent, on numerous occasions over the years, had used ineffective or inappropriate treatment techniques on Ms. Riordan's lesions. (P-2.) Dr. Childers' testimony is rejected as inadequate to establish that respondent failed to provide treatment to Ms. Riordan which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Dr. Childers is a specialist in dermatology, not a general practitioner. He practices in Gainesville, not Miami. When respondent applied many of the complained of treatment techniques to Ms. Riordan, Dr. Childers had not yet begun medical school. It would be patently unfair to measure treatment for carcinomas furnished by a general practitioner in 1961 by a specialist's with the standard of care applicable to general practitioners in the Miami area during the period in question. to establish an appropriate standard of care applicable to respondent's treatment of Ms. Riordan. (Testimony of Boughton; P-2.) IV. Respondent's Ability to Practice Medicine with Reasonable Safety to His Patients On April 27 and 30, 1981, a mental status examination was given psychiatrist's opinion, respondent's appearance, behavior, and overall thinking was intact; there was no evidence of psychosis. However, respondent's response was somewhat impaired. Dr. Bishop concluded that respondent suffers from of Bishop.) Respondent recognizes that his advanced age affects his ability to However, he believes that he is able to operate an office practice with reasonable skill and safety and without endangering his patients. He is willing his work. The practice of medicine is his avocation as well as his profession; it is the habit and pleasure of his life. (Testimony of Boughton.) interfere with his ability to practice medicine with reasonable skill and safety to his patients. The ability to remember facts is essential to a physician's patient's illness. (Testimony of Bishop.) However, the evidence is insufficient to demonstrate that respondent's his livelihood. The evidence on the extent which his impairment will affect his ability to practice is problematic. He is willing to submit to the supervision supervision of another physician, it is likely that he will be able to practice medicine with reasonable skill and safety to his patients. (Testimony of
Recommendation Based on the foregoing, it is That respondent's license to practice medicine be suspended until respondent submits to the Board an acceptable proposal which ensures that his the Board approves the proposal, respondent should be placed on a probationary status and his practice restricted to exclude the performance of surgery and DONE AND RECOMMENDED this 20th day of November, 1981, 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 20th day of November, 1981.
Findings Of Fact The Respondent, Adolph B. Cone, at all times pertinent to these proceedings, held a medical doctor's license issued by the Petitioner, valid in the State of Florida. The Petitioner is a regulatory agency charged with the licensing, regulation and disciplining of those persons licensed to practice medicine in the State of Florida. The Respondent, at all time material hereto, has been engaged in the general practice of medicine at Jacksonville Beach, Florida. The Respondent has resided in Jacksonville Beach, Florida, since 1939, and has been licensed to practice medicine in the State of Florida for 43 years. He is 69 years of age, divorced and the father of 4 children, the oldest of whom is 22 years of age and attending the University of Florida Medical School, and the youngest of whom is gravely ill with cancer (hemangiocytoma). The Respondent continues to maintain his medical practice and contributes substantially to the support of his children. On or about January 21, 1971, a Final Order was entered by the Board of Medical Examiners suspending the Respondents license to practice medicine until such time as he could demonstrate his competency to resume active practice. In connection with that disciplinary proceeding, Joseph Virzi, M.D. first encountered Dr. Cone as a psychiatric patient in November of 1970, when the Respondent was an inpatient at Memorial Hospital in Jacksonville, Florida. By Final Order dated July 31, 1972, the Board of Medical Examiners reinstated Dr. Cone's license on a 5 year probationary status, with one of the stipulated conditions being that he continue medical treatment under the direction of Dr. Virzi. Dr. Virzi at first treated Dr. Cone as a psychiatric patient in November of 1970, when he was at Memorial Hospital in Jacksonville due to depression, and overuse of alcohol. An additional proceeding was instituted against the doctor which culminated in a Final Order of the Board on January 31, 1973, placing his license on a 5 year probationary status, with the condition that the first 12 months of that term of the licensee would be limited to supervised practice of medicine under the personal supervision of a physician and that he continue medical treatment under Dr. Virzi's direction. The allegations in the Administrative Complaint, culminating in that Final Order of January 31, 1973, involved the Respondent's alleged abuse of alcohol which allegations were upheld and found to be true in that Final Order. Dr. Virzi continued his treatment of the Respondent as a patient and saw the patient for the last time in April of 1973. At the time Dr. Virzi discharged him, he felt that the Respondent had a characterological disorder, wherein he had difficulty accepting how he affects other people and difficulty in operating under stress with a tendency to become hostile and argumentative. Dr. Virzi found, however, that his depression at that time had been successively treated and he had undergone a complete recovery from his depression. Dr. Virzi felt that Dr. Cone had a problem with alcohol from 1970 to 1973. Dr. Virzi testified that in his opinion Dr. Cone suffers from alcoholism which is a chronic and recurrent disorder, but Dr. Virzi had not seen Dr. Cone since 1973, and could not testify regarding his more recent drinking habits and thus was unable to testify as to whether Dr. Cone has been impaired in his ability to safely and competently practice medicine due the abuse of alcohol or drugs. Similarly, although Dr. Virzi testified that Dr. Cone had a characterological disorder, his testimony was nonspecific in describing it as manifested by a suspicious nature, difficulty in personal relationships with others and a denial of any problem with alcohol. Dr. Virzi's testimony does not, within reasonable medical probability, relate any characterological disorder believed to exist in 1973 with any current impairment and with Dr. Cone's ability to safely and competently practice medicine. Subsequent to his treatment of the Respondent in 1973, Dr. Virzi, in 1973, opined that the Respondent was capable of resuming the practice of medicine at that time. It was Dr. Virzi's opinion in testifying in this proceeding, that if the Respondent does not drink or take drugs that would impair his mind, he would be able to practice medicine with reasonable skill and safety. Dr. Virzi corroborated the testimony of Dr. Cone himself, establishing that Dr. Cone has suffered from hypoglycemia, which, according to Dr. Virzi, is a rather mild impairment, but if combined with alcohol would produce more severe temporary symptoms of mental impairment, such as decreased judgment and temporary impairment of memory. The injestion of alcohol during a hypoglycemic state tends to aggravate the overt symptoms caused by the alcohol's effect on the body according to Dr. Virzi. Dr. Virzi, however, was unable to testify that Dr. Cone had taken any alcohol either in or out of the course of his practice of medicine since he last saw him in 1973. He could only speculate that had he had such information regarding more recent use of alcohol it would be consistent with his 1973 diagnosis and prognosis. Such speculation cannot serve as the basis of a finding of fact that the Respondent has abused alcohol, within times pertinent to this Administrative Complaint. The only other witness testifying regarding the issue of the Respondent's alleged abuse of alcohol was Marcelle P. Alford-Nolan. She was employed as a medical assistant in Dr. Cone's office from March, 1978, through March 1979. Ms. Nolan testified that she observed Dr. Cone intoxicated in his office on several occasions. She had, however, never observed him drinking an alcoholic beverage, but merely felt that he was under the influence of alcohol to one degree or another by observing his speech pattern, unsteady gait and general demeanor. It is established in the record, however, that during this time he was also suffering from hypoglycemic reactions which produce similar symptoms involving unsteady gait, slurred speech and sometimes impaired memory or judgment. This witness did testify she saw the Respondent in possession of alcoholic beverages in a bottle during 1977 or 1978 (she could not specifically recall when), she never observed the Respondent actually consume any alcoholic beverages on the premises of his office or at any other location however. In short, there is insufficient proof to establish that the Respondent has consumed alcohol or used any controlled substances since 1973, aside from his own testimony that he took an occasional beer or wine and there is an absence of proof that the use of alcohol or controlled substances has had any effect on his practice of medicine. The Respondent's unrefuted testimony is that his hypoglycemia is under control at the present time and he has not had a reaction in approximately the last 6 months prior to the hearing. On February 28, 1981, Drew Rose Warrener, an undercover law enforcement officer for the Duval County Sheriff's Office, made an appointment to visit Dr. Cone in his office at 4:00 p.m. that day. She appeared at Dr. Cone's office shortly prior to that time, using the name Joanne Wells. Dr. Cone was not at his office when she arrived and while she waited for him to arrive she filled out a patient information and patient history card. The patient history form included questions about her family, family illnesses or conditions as well as any illness or medical condition which she suffers or had suffered from in the past. When Mr. Cone arrived they proceeded into his medical office and she explained to Dr. Cone that she was having trouble with fatigue and staying awake in her job, that she was a dancer at a lounge and she wanted "something" (a medication) to help her dance better and stay awake. She informed the doctor that she actually had no health problems requiring treatment. Dr. Cone at first told her that he could not prescribe something for that reason, but in response to her entreaties he called a local pharmacy and inquired of the pharmacist regarding what drugs he could legally prescribe Ms. Warrener for "fatigue," questioning the pharmacist regarding which drugs were on, a "prohibited list." After consulting with the pharmacist, Dr. Cone ultimately determined that he could prescribe Ritalin and reluctantly prescribed her 15 Ritalin tablets on a non-refillable basis. Prior to prescribing the drug, he questioned her in some detail regarding her physical or medical condition and observed her appearance, her manner of speaking and her general condition, although he did not actually perform a physical examination before making the prescription. He did, as mentioned early, take a written and verbal patient history from Ms. Warrener prior to prescribing the Ritalin. Prior to departing his office, Ms. Warrener and the Respondent entered into a discussion concerning her living arrangements with the Respondent informing her that he had a vacant apartment for rent which she might wish to look at. Accordingly, he invited her across the street from his office to his apartment house to look at the vacant apartment, with the view that she might wish to rent it. Ms. Warrener declined at that time, but promised to return a short time later. She then proceeded to a nearby pharmacy to fill the Ritalin prescription. She filled the prescription at the pharmacy and then returned to Dr. Cone's medical office and was informed by his employee that he had returned home and she was directed to his apartment-house across the street. She was invited into the apartment by Dr. Cone and he proceeded to show her around the apartment, suggesting that she might be interested in living there. During the course of the conversation, Dr. Cone asked her certain questions concerning her life-style, occupation and living arrangements and suggested at one point in the conversation that she move into his apartment with him. She did not answer his question to that effect directly, but responded that she was really interested at that time in obtaining some Preludin tablets. Dr. Cone repeatedly advised her against taking such drugs, warning her that it was not healthy to do so. He ultimately went, or made a pretext of going, to his bathroom and looking through his supply of medications, informing her that he had no Preludin. After approximately 30 minutes she informed him that she had to report to her job and so she left. At the point of leaving his apartment he informed her that he might be able to obtain some Preludin for her if she came back later that night. On that same evening, at approximately 10:00 p.m., Ms. Warrener returned to Dr. Cone's apartment pursuant to his earlier invitation. As she was entering the door of his apartment he peered down the front of her blouse at her breasts which he commented upon in an admiring way. He showed her a bedroom which he offered to let her use and engaged in a conversation with her regarding her personal life, discussing to some extent her sex life, her supposed occupation as a dancer in a night club and her present living arrangements, as making a renewed offer to have her come live with him in his apartment. Dr. Cone never offered to give her drugs in return for sexual favors, but sexual ideas and inferences were expressed in his statements to her a number of times and her general response was that what she was really interested in was obtaining drugs, particularly Preludin. During the course of this visit, Dr. Cone showed her 4 pills which he described as Preludin and gave her 2 of them, although she requested all 4. These pills proved to be aspirin. During the course of this conversation, Dr. Cone repeatedly remonstrated with her concerning her ill-advised wish to obtain and take drugs. He informed her that he would give her the 2 Preludin (aspirin), but would give her no more. He finally relented to the extent of writing her a prescription for 24 Valium tablets. After receiving this prescription she left his apartment on the pretext that she had to return to her place of employment as a dancer. Dr. Cone conducted no physical or medical examination prior to prescribing the 24 Valium tablets and asked for and received no payment for this visit or prescription. Ms. Warrener was suffering no illness or condition for which Valium was medically indicated at the time. Dr. S. J. Alford testifying on behalf of the Petitioner and qualified as a expert medical witness, established that Ritalin and Valium are scheduled controlled substances pursuant to Chapter 893, Florida Statutes. Valium is a short term drug used for nervousness, anxiety and a muscle relaxer. It is a depressant type of drug which can produce sleep. It should not be used in conjunction with Ritalin. A medical examination should be performed prior to prescribing Valium which should consist of a full medical history as well as a physical examination, including examination of a patient's blood pressure, heart and lungs in order to detect any contraindications associated with the prescription, which can be dangerous for patients with certain physical conditions. Although Dr. Cone took a medical history of Drew Warrener that day, and visually examined her, listened intently to her conversation in order to check her emotional status, and observed her skin color, her conversation, tone of voice and general manner of talking, he failed to actually do an examination of blood pressure, heart or lungs which Dr. Alford established to be required by good medical practice prior to prescribing Valium.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED: That Dr. Adolph Cone be found guilty of a violation of Section 458.331(1)(q), Florida Statutes, and that his license as a medical doctor be suspended for one (1) year, but with that suspension held in abeyance and a one (1) year probationary term imposed in its stead provided the Respondent successfully completes, under close supervision of the board, a comprehensive continuing medical education course of the board's designation designed to further and sufficiently enlighten him on the appropriate prescribing, dispensing, administering, mixing and preparing of legend drugs, including controlled substances as a prerequisite to his reinstatement. DONE and ENTERED this 29th day of November, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, 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 29th day of November, 1982. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lacy Mahon, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. FOSH CASE NO. 81-1653 CASE NO. 8530 ADOLPH B. CONE, M.D., License No. 2225, 15 South First Street, Jacksonville, Florida 32250, Respondent. /
