The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 10th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since 1962, a physician licensed to practice medicine in the State of Florida, holding license number ME 0010545. He is also licensed to practice medicine in the States of New Jersey and New York. From 1948 to 1952, Respondent attended the Chicago Medical School, from which he graduated with a M.D. degree. From 1952 to 1953, he had a rotating internship in a Newark, New Jersey hospital. After receiving his license to practice medicine in the State of New Jersey, Respondent started a general medical practice there. He closed his practice in 1955 to begin training in his current primary specialty, psychiatry. He received such training from 1955 to 1960. He trained at Essex County Hospital in Cedar Grove, New Jersey, the New Jersey State Diagnostic Center in Menlo Park, New Jersey, the Veterans Administration Hospital in Lyons, New Jersey, Mount Sinai Hospital in New York, New York, and the Neuropsychiatric Institute in Princeton, New Jersey. From 1960 to 1971, Respondent had his own psychiatric practice in Woodcliff, New Jersey. During the earlier portions of this period he also authored the following three articles which were published in the American Journal of Psychiatry: "Improving Insulin Therapy in Schizophrenia with Neostigmine" (May, 1961); "Improving Insulin Therapy with Calcium Gluconate" (February, 1962); and "Resistant Psychosis Treated Successfully by Indoklon" (February, 1962). In 1971, Respondent moved his psychiatric practice to Florida, specifically 9145 Northwest 27th Avenue in Miami. He practiced psychiatry at this location in Miami until the early 1980's. In addition to his private practice, in 1972, Respondent was the Director of the Methadone and Alcohol Unit at Reed Memorial Hospital in Miami. In October of 1973 and May of 1975, respectively, two articles that Respondent had written, "Rapid Treatment of Opiate Addiction" and "The Post- Opiate Syndrome," were published in the Florida Journal of Medicine. Furthermore, from 1982 to 1984, he taught a "Fundamentals of Medical Science" course at Florida International University's Bay Vista Campus in North Miami, Florida. From July of 1983 to April of 1984, Respondent was a staff psychiatrist at the Broward County Crisis Center in Pembroke Pines, Florida. Since leaving the staff of the Broward County Crisis Center in April of 1984, Respondent has been practicing psychiatry and, to a lesser extent, family medicine at his office located at 17122 West Dixie Highway in North Miami Beach, Florida. In addition to his private practice, since approximately 1991, Respondent has taught psychiatry courses at Nova Southeastern University in Miami. Although he teaches and practices psychiatry, he is not board certified in this specialty. Respondent's Care and Treatment of Patient C.R. Overview From on or about October 2, 1984, to on or about July 8, 1985, (hereinafter referred to as the "treatment period") Respondent provided medical care and treatment to patient C.R., a 35-year old overweight female with suicidal thoughts. C.R. initially presented to Respondent with complaints of melancholia, irritability, nervousness and inability to control her weight. She explained that in the recent past her boyfriend had shot himself to death in her presence, her mother had passed away, and she had to put two of her cats to sleep, which events had led her to attempt to commit suicide by cutting her wrists. She further informed Respondent that she expected to die and join her dead boyfriend in the near future. Respondent diagnosed C.R. as having agitated depression with neurotic, not psychotic, features. He also concluded that she was suffering from obesity. Depression is a disorder with a predominant complaint of melancholia and depressed affect. A patient with agitated depression has features of melancholia, superimposed with anger and irritability. Agitated depression is more difficult to treat clinically than simple depression. During subsequent visits C.R. also complained of diarrhea, headaches, coughing spells, and pain associated with a fissure in her anal canal. Although C.R. made certain comments to Respondent during the treatment period indicating that she used cocaine and consumed excessive amounts of alcohol, Respondent reasonably believed, based upon the totality of circumstances, including other statements C.R. made to him and her appearance, demeanor and conduct during her visits to his office, that C.R.'s claims of cocaine and excessive alcohol use were "attention-getting" fabrications and that she did not have an addictive or abusive personality or a history of drug or alcohol abuse 12/ and he treated her accordingly. In doing so, Respondent did not act in a manner that was inconsistent with what a reasonably prudent psychiatrist at the time would have done under similar circumstances. In the medical records that he maintained on C.R., Respondent noted that C.R. had made claims of cocaine and excessive alcohol use, but he did not indicate that he disbelieved these claims. C.R.'s condition gradually improved during the treatment period. She lost weight, maintained a neater and cleaner appearance and became more outgoing. Overall Drug Regimen During the treatment period, Respondent prescribed the following legend drugs for C.R.: Plegine, which contains Phendimetrazine, a Schedule III controlled substance; Didrex, a Schedule III controlled substance; Sinequan; Elavil; Valium, which contains Diazepam, a Schedule IV controlled substance; Librium, which contains Chlordiazepoxide, a Schedule IV controlled substance; Xanax, which contains Alprazolam, a Schedule IV controlled substance; Inderal; Ativan, which contains Lorazepam, a Schedule IV controlled substance; Placidyl, which contains Ethchlovynol, a Schedule IV controlled substance; Hycodaphen, which contains Hydrocodone, a Schedule III controlled substance; Darvocet, which contains Propoxyphene, a Schedule IV controlled substance; Percocet, which contains Oxycodone, a Schedule II controlled substance; Percodan, which also contains Oxycodone; Sudafed; Gantrisin; Paregoric; and Xylocaine (in ointment form). Respondent also administered the legend drug Lasix to C.R. In addition, he administered to C.R. the following legend drugs as adjuncts to psychotherapy: Ketamine Hydrochloride (hereinafter referred to simply as "Ketamine"), which is sold under the brand name of Ketalar; Brevital, a barbiturate containing Methohexital, a Schedule IV controlled substance; and, on a single occasion, Seconal, another barbiturate, which contains Secobarbital, a Schedule II controlled substance. He further administered to C.R. Brevital and the legend drugs Atropine and Anectine in conjunction with non-convulsive electric current therapy. That Respondent prescribed or administered the legend drugs specified in the preceding four paragraphs is reflected in the medical records that Respondent maintained on C.R. Respondent further indicated in these medical records the amounts of these drugs that were prescribed and administered. Respondent's polypharmacy approach to treat the symptom clusters with which C.R. presented (and which were noted in the medical records that Respondent maintained on C.R.) was not inappropriate and did not produce any significant, unwanted drug interactions. Furthermore, Respondent did not prescribe or administer any drugs to C.R. 13/ in excessive amounts and he carefully monitored C.R.'s use of the drugs that he prescribed for her during her frequent office visits. Antidepressant Drug Therapy In the ordinary case, where time is not of the essence, a tricyclic antidepressant, such as Sinequan or Elavil, which Respondent prescribed for C.R. on her second visit on October 9, 1984, is the medication of choice in attempting to combat depression. Sympathomimetic amines, such as Plegine and Didrex, are also used in treating depression. 14/ (In addition to helping fight depression, these amphetamine-like 15/ "mood elevators" also function as anorexic agents.) Unlike tricyclic antidepressants, which produce no immediate effect, sympathomimetic amines are very rapid acting. Therefore, if a patient suffering from depression is suicidal and in the throes of a life threatening crisis, as was C.R. when she presented to Respondent, treatment with sympathomimetic amines is warranted because of the quick relief it provides. Because of C.R.'s desperate situation, Respondent prescribed both Plegine and Didrex to treat her depression. That these sympathomimetic amines might also help C.R. lose weight was, in Respondent's mind, an added bonus, but it was not the primary reason that he prescribed them. Neither Plegine nor Didrex should be prescribed for an individual who has an addictive or abusive personality or a history of drug or alcohol abuse. Respondent, however, as noted above, reasonably believed that, in the case of C.R., he was not dealing with someone who had drug or alcohol problems. While there were occasions that Respondent prescribed both Plegine and Didrex for C.R. on the same date, he never prescribed them for concomitant use. When he gave C.R., during the same visit, prescriptions for both Plegine and Didrex, he specifically instructed her to use them, not at the same time, but rather sequentially, for minimum periods of a week each. That he gave these instructions, however, is not reflected in the medical records he maintained on C.R. It is an acceptable practice to alternate the use of Plegine and Didrex in such a manner to determine which produces the best results for the patient. Respondent found that Plegine was more effective than Didrex in combatting C.R.'s depression. He therefore stopped prescribing Didrex for C.R. The last time he prescribed Didrex for her was November 27, 1984. He continued to prescribe Plegine until June 18, 1985. Antianxiety Drug Therapy To reduce the anxiety that C.R. was experiencing, Respondent appropriately prescribed the benzodiazepines Valium and Xanax and other antianxiety agents and sedatives, including Inderal, which he prescribed after C.R. reported having a "panic attack," and Placidyl, a strong hypnotic sedative or sleeping pill. These antianxiety agents were prescribed for concomitant use with antidepressant medication. Such concomitant use is appropriate where the patient is both depressed and anxious, as was C.R. in the instant case. Drug-Assisted Psychotherapy On approximately 40 separate occasions, from November 10, 1984, to June 11, 1985, Respondent administered Ketamine to C.R. intravenously prior to a psychotherapy session in order to reduce her resistance to psychotherapy. 16/ Ketamine is a commonly used, 17/ relatively safe, 18/ FDA-approved 19/ anesthetic that is structurally similar to PCP. 20/ It is a legend drug. Unlike traditional anesthetics, which are general central nervous system depressants, Ketamine depresses some parts of the brain and stimulates others. In sufficient dosage, it provides anesthesia quickly. Its anesthetic effect lasts a relatively short period of time (approximately ten minutes) and there is generally rapid recovery, although postoperatively, some patients may hallucinate. While Ketamine remains in the bloodstream for approximately 24 hours, a patient who has received an anesthetic dose of Ketamine 21/ and suffered no complications, as a general rule, may be released two hours after having been anesthesized, provided instructions are given that the patient is not to operate a motor vehicle or other dangerous machinery or to make any major decisions immediately upon the patient's release. Aside from hallucinations, other possible side-effects from the use of Ketamine, according to the Physician's Desk Reference (hereinafter referred to as the "PDR"), include delirium, confusion, amnesia, tonic and clonic movements sometimes resembling seizures, anorexia, nausea and vomiting. Furthermore, because it tends to raise blood pressure, it should be used with caution where the patient is hypertensive. 22/ There is no evidence in the anesthesia literature that even the repeated use of Ketamine causes psychosis in normal patients. The impact that Ketamine has on the psyche induces an abreactive or dissociative effect in the patient and results in the patient becoming more verbal and expressive. Furthermore, like all anesthetics, Ketamine can be used as a tranquillizer to allay anxiety if administered in a dosage and manner that does not achieve an anesthetic outcome. 23/ Because of these features, there is reason to believe that Ketamine may help as an adjunct to psychotherapy. There are a number of authoritative, scientific articles, some dating as far back as the 1940's, which support such a view. Among them is a 1973 article, "The Use of Ketamine in Psychiatry," written by E. Khorramzadeh and A.O. Lofty (Respondent's Exhibit 11) and a 1979 article, "Ketamine-Facilitated Induced Anxiety Therapy and Its Effect upon Clients' Reactions to Stressful Situations," written by A.A. Sappington, G. Corssen, A.T. Becker and M. Tavakoli (Respondent's Exhibit 10). Respondent reviewed these two articles before deciding to use Ketamine as an adjunct to C.R.'s psychotherapy. Notwithstanding the foregoing, Ketamine-assisted psychotherapy is not now, nor was it at any time material to the instant case, recognized as a standard or conventional treatment in the mainstream psychiatric community. It is not even mentioned in either the PDR or the American Psychiatric Association's four volume work on the treatment of psychiatric disorders. Furthermore, the FDA-approved labeling and package insert for Ketamine make no mention of the drug having any use in the practice of psychiatry. It is not necessarily inappropriate, however, for a physician to use a drug that has been approved as safe by the FDA for a purpose other than that which is indicated on the FDA-approved label and package insert. Before he used Ketamine in his treatment of C.R. as an adjunct to psychotherapy, Respondent discussed the matter with C.R. and obtained her full, informed written consent. Such consent was given in a handwritten statement that C.R. signed on November 6, 1984. The statement, which Respondent retained as part of his medical records on C.R., read as follows: Permit to Dr. Royce I, [C.R.], have been suffering from painful depression and nervousness. I have learned that Pentothal and Amytal (AMYTAL) Interviews, also known as TRUTH SERUM, have helped persons with symptoms such as mine. Dr. Royce who has been using Amytal interviews since 1957, has also had experience with the same technique using ketamine, a much safer drug than Amytal or Pentothal. The effect of ketamine (also known as KETALAR), wears off in less than 15 to 20 minutes. Therefore, a patient is able to leave the doctor's office hours sooner than would be possible with Amytal. Ketamine is also safer because it does not depress the cough or gag reflexes or respiration, as Amytal and Pentothal do. Because of these facts, I am now writing this statement with Dr. Royce's help to give permission to IRVING D. ROYCE, M.D. to treat me with psycho- therapy including intra-venous injections of ketamine. I expect that the ketamine will help me to feel less depressed and less agitated, at least for the 10 to 15 minutes during which time it will have an effect on me. If I am less distracted by my physical nervousness and my depression, I will at least be able to participate better in therapy with Dr. Royce. Also Dr. Royce has discussed with me studies involving persons who have shown improvement during psychotherapy using ketamine at the start of the therapy sessions. Since Dr. Royce will be using lower doses than described in the Physicians Desk Reference ("P.D.R.") to help control my physical agitation I do not expect that these added psychiatric benefits will positively occur. However, if my psychotherapy should happen to show some benefit because of the ketamine, then I shall be grateful for that. In my mind there is a narrow line dividing whether or not I can expect to evolate (EVOLATE) in time to be with David Clark in Heaven for New Year's Eve. I doubt that my fate can be changed. I already have some first-hand knowledge of the value and safety of ketamine because I used it quite a few times to clip the claws of my cats. Dr.Royce and I have discussed alternate treatments for overcoming my expectation to be dead before the end of this year. He favors electroshock treatments in a hospital but I don't want to go through those seizures. We also discussed more frequent office visits and/or a higher dose of drugs for me, but I'd rather not change our pattern of having Dr. Royce evaluate my medications from one week to the next. We discuss how I feel each time and Dr. Royce adjusts the dose or changes medicines accordingly. I have told Dr. Royce that I expect to patch things up with David Clark as soon as I can get to him. I have to evolate (EVOLATE) as soon as possible to be with him before he returns to this life as some- body else. After his reincarnation (REINCARNATION), I may not be able to recognize who he really is. With or without any medication such as ketamine, I'm running out of time. The discussion of KETALAR in the P.D.R. says, "Ketalar has been studied in over 12,000 operative and diagnostic procedures, involving over 10,000 patients from 105 separate studies." Also, "Ketalar has a wide margin of safety." I feel confident now that Ketalar is a safe medication for me. In addition, Dr. Royce demonstrated to me how his Oxygen Resuscitator works in case he has to use it on me by breathing through it himself. Even when he held his breath, I could hear the machine cycling on and off, doing the breathing for him. Finally for thoroughness Dr. Royce and I made the following notes by referring to the P.D.R.: I will not become pregnant during the time when I am being treated. I will not take anything by mouth after midnight of the day before each Ketalar treatment. I will always bring some adult with me when I come here for the Ketalar treatments. I will take Valium 5 mg orally 45 minutes before the Ketalar instead of the 2 mg to 5mg intra- venously described in the P.D.R. The valium is to help prevent "an EMERGENCE REACTION." I understand this reaction to be a period of emotional excitement which can occur in some instances when higher doses of Ketalar are used such as during surgery and where the prophylactic dose of Valium or some other sedative is not given to the patient before Ketalar. 24/ The initial does of Ketalar will be "from 0.5 mg to 2.0 mg per pound.["] Therefore at my present weight of 167 lbs., no more than 334 mg will be used. After the Ketalar Therapy, I will wait one hour in the office discussing whatever seems to be important to me with Dr. Royce's assistants (Mrs. Royce and/or their daughter Jacki.) After the one-hour period, I will be examined by Dr. Royce who will dismiss me if he sees that I have recovered completely from the Ketalar Treatment. I will not drive an automobile or operate electrical or hazardous machinery for at least 24 hours after each Ketalar treatment. I will report to Dr. Royce anything unusual which occurs to me in the interval between Ketalar Treatments, such as fever, rash, nausea, infection, or unusual thoughts, dreams, or daydreams. No guarantee of results has been given to me by Dr. Royce, Mrs. Royce or Jacki. The Ketamine-assisted psychotherapy sessions began on C.R.'s next visit, which was on November 10, 1984. On that same date, she signed another handwritten statement in which she acknowledged that she was borrowing copies of nine different "scientific" articles dealing with or related to Ketamine use and agreed to return these borrowed materials to Respondent after she had "had time to read them." At no time during the treatment period did Respondent administer Ketamine in a dosage or manner that was calculated to, or did in fact, anesthesize C.R. or subject her to undue risk or harm. On only two occasions, toward the end of the treatment period, did he administer more than 100 milligrams of Ketamine during a session: the April 26, 1985, session, when he administered 112.5 milligrams; and the June 6, 1985, session when he administered 125 milligrams. 25/ On each and every occasion, Respondent administered the Ketamine slowly over a period of time to avoid anesthesizing C.R. There was no reason for Respondent to believe that the interaction between the Ketamine and any of the other drugs he had administered to C.R. or prescribed for her would result in any adverse consequences. At no time did Respondent teach C.R. how to self-administer Ketamine, nor did he ever approve or sanction such self-administration. Following each Ketamine-assisted psychotherapy session, which generally lasted at least an hour, C.R. remained in Respondent's office, in the company of Respondent's wife and/or his daughter Jacqueline, for a minimum of another hour to an hour and a half. C.R. was not permitted to leave until it was determined that it was safe for her to do so. The last Ketamine-assisted psychotherapy session was on June 11, 1985. Respondent stopped using Ketamine as an adjunct to psychotherapy because he reasonably believed that, in light of the progress C.R. had made, she no longer needed to rely on the drug's abreactive or dissociative effect in order to engage in effective psychotherapy. Instead of Ketamine, he used Brevital for C.R.'s last seven drug- assisted psychotherapy sessions. The final drug-assisted psychotherapy session was held on July 9, 1985, which was the last time Respondent saw C.R. Electric Current Therapy Electroconvulsive therapy is an accepted treatment for serious depression involving the delivery, to electrodes placed on the patient's skull, of a measured amount of electric current (on the average 350 millilamps) sufficient to produce a seizure or convulsion. Ordinarily, the patient is premedicated with an anesthetic and medication to modify the convulsion and its impact. Respondent recommended that C.R. be hospitalized and receive in- hospital electroconvulsive therapy. C.R.'s reaction to the recommendation was a "very negative" one. She did agree, however, to undergo non-convulsive electric current therapy, which is helpful in treating anxiety and in facilitating effective psychotherapy. She gave her consent in two signed, handwritten statements, one dated November 13, 1984, and the other dated January 31, 1985. C.R.'s November 13, 1984, statement read as follows: Permit for a Series of Electric-shock Treatments This is to give permission to Irving D. Royce, M.D. and to members of his office staff to administer a series of Electric Shock Treatments to me to treat my mental illness. These treatments will be given to me in addition to the Psychotherapy and medica- tions prescribed for me. The treatment procedure will include having electrodes placed on my head. Then an electric current will flow through the electrodes. There will be no pain or danger of a convulsion because of the very low amount of amperes that will flow. Medications which may be used during the series of electric treatments may include Atropine, Anectine, Brevital or Pentothal, and/or oxygen. I understand that these treatments are frequently effective (especially in regard to anxiety and/or depression) because they theoretically modify the chemical reactions within the brain. Other possible therapies have been discussed with me by Dr. Royce, including anti-depressant medication, psychotherapy, behavior modification, and convulsive electro-shock treatments (plus combination of these techniques.) However, I prefer at this time to start a series of the electro-shock treatment described in the second paragraph above, anywhere from five to twelve in number to comprise the series. I also understand that these treatments are not effective 100 percent of the time. Dr. Royce has also warned me that there have been side-effects reported in the literature but that patients he has known have not had any persistent complaints. Adverse reactions which have been reported included excitement and sedation. The injections may also cause local irritation of the skin. I am not pregnant and shall wait until the treat- ments are completed before considering becoming pregnant, although pregnancy is not in my plans at this time or in the near-future. Also, I agree to wait in Dr. Royce's office for at least an hour after each treatment, until he advises me that I may safely allow a responsible person to drive me home. I have been advised not to drive an automobile, not to operate any machinery, and to stay at home for the remainder of the day after each treatment. The actions and possible side-effects of each medication listed above has been described to me by Dr. Royce. In addition, I have been advised of the antidepressant and other actions of TOFRANIL, ELAVIL, MARPLAN, NARDIL, PARNATE, AMPHETAMINE, PLEGINE, AND DIDREX. No guarantees have been given to me as to the results which may be achieved by this course of treatment. C.R.'s January 31, 1985, statement read as follows: Permission for Electro-shock Treatment I, [C.R.], hereby give permission to Irving D. Royce, M.D., and his assistants to give me a series of electro-shock treatments, using Anectine, Brevital, Pentothal, and/or Atropine and any related medication. I have occasional back pain from a previous injury. Respondent retained C.R.'s November 13, 1984, and January 31, 1985, statements as part of his medical records on C.R. On seven different occasions, from January 31, 1985, to March 15, 1985, Respondent administered non-convulsive electric current therapy to C.R. using a Reiter Electrostimulator (Model CW47). Before doing so he did not consult with any other physician. In administering non-convulsive electric current therapy to C.R. without consulting with and obtaining the agreement of another physician, Respondent did not act in a manner that was inconsistent with what a reasonably prudent psychiatrist at the time would have done under similar circumstances. Given C.R.'s symptomatology, such therapy was not inappropriate. Rather, it was indicated. Some time after leaving Respondent's office following the fifth non- convulsive therapy session on February 22, 1985, C.R. returned to the office for a second visit, during which she received Ketamine-assisted psychotherapy. Following the sixth non-convulsive electric therapy session on March 8, 1985, C.R. appeared to be disturbed about something and delayed leaving Respondent's office. To help reduce her anxiety, Respondent decided to have a Ketamine- assisted psychotherapy session with her before she left the office that day. These were the only occasions that Respondent administered both non-convulsive electric current therapy and Ketamine to C.R. on the same date. 26/ In doing so on these two occasions, Respondent did not act in a manner that was inconsistent with what a reasonably prudent psychiatrist at the time would have done under similar circumstances. The Reiter Electrostimulator that Respondent used to administer electric current therapy had three different settings, only one of which, Setting 3, was designed to generate a current sufficient to produce a seizure or convulsion. Respondent never used Setting 3 in treating C.R. He only used Settings 1 and 2, which produced non-convulsive stimulation. Although it was always Respondent's intention to comply with C.R.'s wishes and administer non-convulsive, not convulsive, electric current therapy, Respondent took the prudent precautionary measure before each electric current therapy session of premedicating C.R. with Brevital, Atropine and Anectine in the highly unlikely event that there was a mishap resulting in C.R. suffering a seizure or convulsion during a session. Such a mishap never occurred. At no time during any electric current therapy session did C.R. have a seizure or convulsion. Furthermore, she suffered no adverse reaction of any kind to the therapy. Nonetheless, the non-convulsive electric current therapy was discontinued because Respondent felt that, in light of the improvement C.R. had made, his time with her would be better spent pursuing other treatment alternatives. Although the electric current therapy administered to C.R. was at all times non-convulsive in nature, Respondent did not so indicate in the medical records that he maintained on C.R. In these records, Respondent used the abbreviation "ECT" to refer to the non-convulsive electric current therapy he was administering to C.R. "ECT" was then, as it is now, understood by most practitioners to refer to electrconvulsive therapy, although it has also been used by some practitioners to indicate electric current therapy of any type. Therefore, at best, Respondent's medical records convey that Respondent administered some form of electric current therapy in treating C.R., but leave the reader to speculate whether the therapy was convulsive or non-convulsive in nature. 27/ At worst, they inaccurately suggest that Respondent administered electroconvulsive therapy to C.R. C.R.'s Rectal Fissure Respondent never treated C.R.'s rectal fissure. Rather, he insisted that she be treated by a specialist. He provided her with medication for the pain she was experiencing as a result of the fissure only after she had made an appointment to see a specialist. In providing C.R. with such pain medication, Respondent was not practicing outside the scope of his competence or expertise. In January and February of 1985, David Ornstein, M.D., an internist and gatroenterologist, provided C.R. with treatment for her rectal fissure. Following such treatment, Dr. Ornstein instructed C.R. to follow-up with her psychiatrist for psychiatric care. C.R.'s Death On July 11, 1985, C.R. was found dead on the floor in the kitchen of her apartment. She was sitting with her legs crossed and her upper body bent forward. Her head was almost touching the floor. Next to her, lying on the floor, was a telephone receiver. A search by police of the apartment and its contents revealed, among other things: hypodermic needles; syringes; two empty vodka bottles; a large number of empty, partially filled, and filled, labelled 28/ and unlabelled medication vials and containers; 29/ and labelled audio cassette tapes. 30/ An autopsy was conducted on C.R.'s body by the Dade County Medical Examiner's Office. The autopsy revealed the presence of neither alcohol, cocaine or Ketamine in C.R.'s bloodstream. Phenobarbital 31/ and Placidyl, however, were detected. The amount of the former, but not the latter, was in the fatal range. Other drugs, such as Valium, were determined to be present, but merely in insignificant trace amounts. C.R.'s lungs were congested. Such congestion is common in drug- related deaths. Small linear marks, which appeared to be needle track scars, were discovered on C.R.'s left arm. 32/ After the autopsy was performed, the Dade County Medical Examiner's Office determined that C.R.'s death was accidental, that the immediate cause of her death was acute "polydrug [to wit: Phenobarbital and Placidyl 33/ ] intoxication," and that "positional asphyxia" was a secondary contributing factor. There was no evidence that C.R.'s death was the result of chronic substance abuse.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of former subsection (1)(n) of Section 458.331, Florida Statutes, noted above, disciplining him for having committed these violations by issuing him a reprimand, and dismissing the remaining charges against him. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of January, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1995.
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
The Issue Whether Respondent violated Subsection 456.072(1)(aa), Florida Statutes (2003),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of medicine pursuant to Chapters 20, 456, and 458, Florida Statutes. Dr. Weiner, is and was at all times material to this proceeding, a licensed physician in the State of Florida, having been issued license number ME76902. He has been practicing medicine for 23 years and has not previously been the subject of a disciplinary proceeding. Dr. Weiner is board-certified in anesthesiology. S.M. has been a patient of Dr. Weiner since 1999. S.M. sought treatment from Dr. Weiner for his lower back pain that he suffered as a result of a golf cart injury. Over the course of his care under Dr. Weiner up until the date of the incident, S.M. received numerous treatments for his back pain, including radiofrequency ablation and epidural steroids. Radiofrequency ablation uses a specific frequency of radio waves to help put specific pain nerves that go to the joints of the spine to sleep for a period of time. In this procedure a steroid is deposited inside the epidural space outside the spine. The procedure can help to treat back pain as well as pain extending down the legs of the patient. On January 29, 2005, S.M. presented to Dr. Weiner with complaints of lower back pain. After examining S.M., Dr. Weiner recommended that S.M. undergo a radiofrequency ablation procedure. Dr. Weiner ordered the radiofrequency ablation procedure and instructed his office to coordinate with the Center for Digestive Health and Pain Management (Center), to have the procedure scheduled. The Center, which is a separate facility from Dr. Weiner's office, scheduled S.M.'s treatment for February 19, 2004. The Center scheduled S.M. for a Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, rather than the radiofrequency ablation procedure. A Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, involves placing a needle down near the tailbone. A catheter is inserted through the needle into the space around the spine. A steroid medication is injected through the catheter. The purpose of the procedure is to decrease irritation and inflammation of the nerves as well as the discs. S.M. could have derived some benefit from the Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach. Patient charts at the Center are separate from the patient charts at Dr. Weiner's office. The Center's charts are made up by the Center staff and consist of forms for the specific procedure, a template of the procedure for the specific procedure, the nursing notes, billing sheets, and other administrative paperwork. When the Center erroneously scheduled S.M. for a Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, the Center prepared paperwork necessary for the provision of that technique, including consent forms. On February 19, 2004, S.M. went to the Center with the belief that he was going to receive the radiofrequency ablation procedure. During this visit, S.M. was in a lot of pain and was eager to receive treatment for his back. Upon arrival to the Center, S.M. signed a consent form that referenced a Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach procedure. The nurse then confirmed with S.M., the technician, and Dr. Weiner that S.M. understood this procedure. Dr. Weiner also explained the Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, to S.M before administering the treatment and also told S.M. that this was the first time he had undergone this procedure while under Dr. Weiner's care. Subsequent to signing the consent form, S.M. got undressed and was hooked up to an IV. He was then moved to another bed, and Dr. Weiner started to perform the Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, on S.M. Dr. Weiner administered a local anesthesia and began to insert the tip of a needle into S.M.'s back. After partially inserting the needle in S.M.'s back, Dr. Weiner stopped the procedure and reviewed S.M.'s chart. He requested that S.M.'s chart that was in Dr. Weiner's office be brought to the Center. The chart revealed that the Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, was not the procedure that was originally ordered at S.M.'s appointment on January 29, 2004. Once he realized the discrepancy, Dr. Weiner apologized to S.M. and explained that he began to do the wrong procedure. S.M. was then taken to the recovery room, and Dr. Weiner ordered the radiofrequency ablation procedure for a later date. S.M. did not receive the complete Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, procedure on February 19, 2005. In or about March 2004, S.M. returned to the Center and had the radiofrequency ablation procedure completed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that James P. Weiner, M.D., violated Subsection 456.072(1)(aa), Florida Statutes; issuing a reprimand; imposing a $1,000 fine; requiring 25 hours of community service; and requiring five hours of risk management education. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2006.
The Issue (1) Whether Respondent, Thomas Oakley Miller, L. M. T., used his massage therapist-patient relationship to induce or attempt to induce Patients J. G., K. L. or J. F. to engage, or to engage or attempt to engage, Patients J. G., K. L. or J. F. in sexual activity outside the scope of practice or the scope of generally accepted examination or treatment of Patients J. G., K. L. or J. F. thereby violating Subsection 480.046(1)(o), Florida Statutes, by violating Section 480.0485, Florida Statutes, and Florida Administrative Code Rules 64B7-26.010(1), (2), and (3); (2) Whether the alleged sexual activity or attempts at sexual activity with Patients J. G., K. L. or J. F. occurred in Respondent's massage establishment, thereby violating Subsection 480.406(1)(o), Florida Statutes,1 by violating Florida Administrative Code Rules 64B7-26.010(1), (2), and (3); and (3) Whether Respondent engaged in gross or repeated malpractice or failed to practice massage with that level of care, skill, and treatment which is recognized by a reasonably prudent massage therapist as being acceptable under similar conditions and circumstances when providing massage therapy to Patients J. G., K. L. or J. F., thereby violating Subsection 480.046(1)(h), Florida Statutes.
Findings Of Fact Based on stipulations, official recognitions, and oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of massage therapy. Respondent is a Florida-licensed massage therapist. His license is numbered MA 0029801. He is subject to the regulatory and disciplinary jurisdiction of Petitioner. At all times material, Respondent owned and operated Calm Palm Massage Therapy, a licensed massage establishment. Calm Palm Message Therapy holds license number MM 0010166. Respondent in his capacity as owner-operator of Calm Palm Massage Therapy is subject to the regulatory and disciplinary jurisdiction of Petitioner. Petitioner's Administrative Complaint contains allegations related to complaints filed with Petitioner by four patients of Respondent: J. G., K. L., B. G. and J. F. No evidence was presented relating to the complaints of Patient B. G. As a result, the issues of fact to be litigated are based on alleged violations predicated on complaints made by three patients: J. G., K. L. and J. F. Patient K. L. Patient K. L. is a licensed massage therapist with extensive professional experience. Patient K. L. had three massage therapy sessions with Respondent during the months of October and November 2000. During the third massage therapy session, while Patient K. L. was in a relaxed, sleepy state, and not paying particular attention to what Respondent was doing, Respondent began kissing Patient K. L. on her upper inner thigh and pubic hair. When Patient K. L. became aware that Respondent was kissing her upper inner thigh and pubic hair, she objected and the activity ceased. Respondent's kissing Patient K. L.'s upper inner thigh and pubic area was likely to cause erotic arousal. Furthermore, this conduct by Respondent constitutes sexual activity and is outside the scope of the practice of massage or massage therapy. Respondent acknowledged that his hand was in Patient K. L.'s pubic hair. He attributes this "accidental" touching to the fact that Patient K. L. was particularly flexible and capable of being stretched beyond normal limits allowing his hand to slip past the junction of her leg and groin. Respondent telephoned Patient K. L. the following day and apologized for kissing her in the pubic area. He made a written apology, dated November 20, 2000, which acknowledged being "carried away" and "inappropriate" touching. Patient J. G. Patient J. G. is a 51-year-old, licensed massage therapist. She has been licensed since 1999. She first became acquainted with Respondent while she attended massage therapy school. As a part of her practical massage therapy education, she and Respondent gave each other massages while she was in school. From February through April 2000, Patient J. G. availed herself of Respondent's professional massage therapy services. During two sessions, in April 2000, Respondent caused his lips to touch Patient J. G.'s lips, touched other parts of her face with his lips, and kissed her on the forehead. On the occasion of the second massage and more overt kissing of her face and lips, Patient J. G. objected and complained that the massage "was not right." She further commented to Respondent that, "we just learned in school about ethics and morality and what you have done, you are over the line. This is not right. This doesn't feel right." Subsequent to this final massage, Respondent sent Patient J. G. a $30 refund and a note. The note contains references to "sexuality" and "sexual issues," and Respondent indicates that, "I intend no offense to women," but the note is not incriminatory. Patient J. G. testified that she did not believe that Respondent's brushing and kissing of her face and lips during the referenced massages was intended to seduce her or induce her to engage in sexual activity. Patient J. F. While Patient J. F. was a student at the Florida Academy of Massage Therapy, she sought Respondent's assistance as a tutor preparing Patient J. F. for her massage examinations. In September 2000, Patient J. F. was giving Respondent a full body massage as a part of her tutorial experience. During the massage, Respondent began moaning and groaning. This made Patient J. F. feel uncomfortable. Later in the massage, Respondent fell asleep. When Respondent's massage was concluded, Patient J. F. mentioned that her shoulder was bothering her. Respondent attempted to massage Patient J. F.'s shoulder while both were standing. Patient J. F. asked Respondent not to massage her shoulder; however, Respondent continued to massage her shoulder pinning her against a wall and trapping her against the wall with his lower torso. Because of Respondent's superior size and strength, Patient J. F. was unable to escape. She repeatedly asked Respondent not to massage her shoulder. He finally stopped when she said that she had to call her sister. Patient J. F. believed that Respondent was attempting to engage her in sexual activity. The massages which took place in 2000 with Patients K. L., J. G., and J. F. occurred in Respondent's massage establishment known as Calm Palm Massage Therapy. The deposition testimony of Jennifer Mason and her opinions contained therein are accepted as "expert" testimony as contemplated by Section 90.702, Florida Statutes. It is never appropriate for a massage therapist to massage, kiss or touch a patient's genital areas. It is never appropriate for a massage therapist to kiss any part of a patient's body.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Massage Therapy, enter a final order finding that Respondent violated Subsection 480.046(1)(o), Florida Statutes, by violating Section 480.0485, Florida Statutes; Subsection 480.046(1)(h), Florida Statutes; and Florida Administrative Code Rules 64B7-26.101(1), (2), and (3) and that his license be revoked. DONE AND ENTERED this 18th day of November, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 18th day of November, 2003.
Findings Of Fact Respondent is Paula Kay Spears. She is a licensed registered nurse and holds license number 1435502. At all times pertinent to these proceedings, Respondent was employed as a registered nurse at Lakeland Regional Medical Center in Lakeland, Florida. Caren Hicks worked as a unit coordinator in the cardiovascular surgery unit of the hospital where Respondent was also employed as a registered nurse. Hicks and Respondent worked together for approximately five years. In April of 1988, Hicks witnessed Respondent using for the first time what Hicks believed to be a drug commonly called "crank". Hicks also used the substance on that occasion. Hicks purchased the substance from Respondent on only one later occasion; although she and Respondent engaged in joint use of the substance on several subsequent occasions. They ingested the substance by "snorting" it through the nose. Hicks provided crank on some occasions for the joint use of herself and Respondent. The two used the drug while on duty in the cardiovascular unit to which they were assigned. The last occasion of their joint usage of the drug was September 11, 1988. When she nasally inhaled the drug, Hicks observedthat her pulse rate and energy level increased. While she experienced fatigue when the effects of the drug wore off, Hicks never experienced any sense of confusion. She compared the effects of the substance to that of a drug commonly called "speed". Tommy Smith is the head nurse for the cardiovascular unit where Respondent and Hicks were employed in September of 1988. He confronted Respondent with the accusation that she and Hicks had used crank while on duty. Respondent denied the charge. Smith offered Respondent continued employment in her position, provided she submit to drug screening and rehabilitative treatment for drug abuse. Respondent rejected the offer. Subsequently, Respondent's employment with the hospital was terminated. Later, Smith made the same offer to Hicks. Hicks accepted the offer, attended a drug rehabilitation program and is still employed at the hospital. Expert testimony of Martin Zfaz, M.D., establishes that crank is a form of methamphetamine, a central nervous system stimulant which is regulated in accordance with Chapter 893, Florida Statutes, as a controlled substance and a schedule II drug. Crank, over a period of time, can cause confusion in the user's mental acuity. Depression follows use of the drug when its effects wear off. Usage can lead to dependence, with the possibility of resultant acute psychosis. Poor, impaired or confused judgement in the user can result. The substance is highly addictive, with limited medical use. Medical uses for crank include treatment for narcolepsy and hyper- activity in children. The substance is also prescribed as a balance to phenobarbital medication of epileptic patients. Although it depresses appetite, its usage for this purpose has decreased. Use of crank would have a negative effect on a medical nurse's judgement and performance.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Board of Nursing finding Respondent in violation of Section 464.018(1)(i) and Section 464.018(1)(h), Florida Statutes. IT IS FURTHER RECOMMENDED that such Final Order suspend Respondent's license pending Respondent's completion of a drug dependency evaluation and provision by her of a report of that evaluation to the Board and demonstration to the Board that she is capable of safely practicing the profession of nursing. IT IS FURTHER RECOMMENDED that such Final Order place Respondent's license on probationary status for a period of three years upon satisfaction of the foregoing requirements for termination of license suspension with specific conditions of such probation to include periodic drug dependency reevaluations and reports as may be determined by the Board and payment of an administrative fine of $500. DONE AND ENTERED this 3rd day of November, 1989, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-2. Accepted. 3. Weight of the evidence demonstrates that Respondent ingested the drug by "snorting" it. Finding rejected. 4.-14. Accepted 15. Rejected. Not consistent with the weight of the evidence. 16.-17. Rejected, unnecessary to result reached. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Michael A. Mon), Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Paula Kay Spears 1240 Sarasota Avenue Lakeland, FL 33805 Kenneth Easley, Esq. General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Judie Ritter Executive Director Board of Nursing Department of Professional Regulation 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32201
The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged by statute with regulating the practice of osteopathic medicine in the State of Florida pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes. The Respondent is and at all times material to this case was a licensed physician in the State of Florida, license #OS 0004352, last known address identified as 1232 S.W. 8th Place, Cape Coral, Florida 33991. From 1985 until 1992, the Respondent had a private general medical practice in Fort Myers. In 1991, the Respondent began to exhibit signs of emotional instability. In April 1991, the Department of Professional Regulation (DPR) received a report that the Respondent was attempting to locate injectible Demerol allegedly for his own use. This information was forwarded to the Physician's Recovery Network (PRN), but remained unverified. The PRN is a program operated by the health care professions to assist practitioners impaired by mental illness, physical or mental disability or chemical dependence. Demerol is a Schedule II Controlled Substance pursuant to Chapter 893, Florida Statutes. On July 8, 1991, the DPR again received a report that the Respondent was writing inappropriate prescriptions for patients and obtaining the medication for personal use. This information was again forwarded to the Physician's Recovery Network (PRN), but remained unverified. The PRN contacted the Respondent about the allegation. The Respondent denied the report. In 1992, the Respondent began to exhibit profuse sweating, involuntary muscle jerks, and inattentiveness to his work. Some patients expressed concern to office staff about the Respondent's condition. In 1992, a DPR investigator visited pharmacies in the Fort Myers area. She learned that the Respondent had been contacting area pharmacies in an attempt to locate injectible Demerol. She further learned that the Respondent would arrive at a pharmacy with a Demerol prescription made out to a patient and which he would obtain supposedly on the patient's behalf. She collected a number of such prescriptions which had been filled by pharmacies. Many of the prescriptions were made out for patients at Meadowbrook Manor, a nursing home at which the Respondent had patients. A review of the patient records indicated that none of the patients had been prescribed Demerol. On March 27, 1992, an member of his office staff contacted the Respondent by telephone and determined him to be incoherent. She went to the Respondent's house to ascertain his condition. After gaining entry to the home, she found a number of Demerol bottles in an open dresser drawer, at least one of which was empty. She also discovered syringes in the drawer. The Respondent's eye was blackened. Blood was visible about the bathroom in the house. The staff member determined that although the Respondent had fallen during the night, he was reluctant to seek medical attention. Several hours after the staff member had arrived at the Respondent's house, he was incoherent. She called for an ambulance. The Respondent was subsequently transported to the hospital. Examination of the Respondent clearly indicated that he had suffered a head injury. While in the hospital, the Respondent was examined by a board certified psychiatrist. According to the psychiatrist, the Respondent exhibited substantially impaired memory, was very guarded with his communication and, notwithstanding the injury, indicated his intent to leave the hospital quickly. He was unable to recall the current month and date. He denied prior consumption of alcohol despite lab tests to the contrary. He also denied having previously been chemically dependent, although he had been involved in the intervention of said problem in 1981. The psychiatrist diagnosed the Respondent as having residual organic brain syndrome as a result of his chemical intake. Based on the diagnosis, the psychiatrist recommended that the Respondent begin an inpatient drug rehabilitation program. The psychiatrist also referred the Respondent's impairment to the DPR. In March of 1992, the DPR alerted the PRN about the Respondent's condition. The PRN assigned a local representative to encourage the Respondent to seek treatment. On March 31, 1992, the Respondent entered a treatment program at Palmview Hospital. While in the program, he admitted to having self-injected Demerol. The Respondent was resistant to treatment while at Palmview Hospital. Although he acknowledged having previously received inpatient treatment at another facility, he alternately admitted and denied abusing Demerol. On April 10, 1992, the Respondent discharged himself from Palmview Hospital. The discharge was against the advise of the treating physician at Palmview. At the time of the discharge, PRN representatives discussed the matter with the Respondent. The Respondent stated that he was leaving the inpatient treatment program and was going to being outpatient treatment from the Palmview facility. The treating physician at Palmview told the PRN that the Respondent required three to four weeks of inpatient treatment. It was the opinion of the treating physician that the Respondent was not capable of safely providing medical care to patients at that time. Based on the Palmview information, the PRN instructed the Respondent that he must complete inpatient treatment and that he could not practice medicine until it was decided that he could do so safely. In April 13-16, 1992, the Respondent obtained a second opinion from another physician affiliated with the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach, Florida, where he was examined by a board certified addictionologist. According to the Mount Sinai addictionologist, the Respondent is addicted to Demerol and requires treatment. Based on the Mount Sinai information, the PRN instructed the Respondent not to practice and to seek immediate treatment for his addiction. On April 22, 1992, the Respondent reentered Palmview Hospital. Upon reentry, the Respondent denied using Demerol, but eventually acknowledged using the drug and being chemically dependent. It was determined during the second Palmview admission, that the Respondent was in need of approximately four months in a long term inpatient care treatment facility. On May 22, 1992, the Respondent was admitted to the Talbott-Marsh recovery program. He was diagnosed as having a personality disorder with antisocial, paranoid and narcissistic traits, and to being opiate dependent, On August 3, 1992, the Respondent left the Talbott-Marsh center without completing the program. The records and reports of the Respondent's condition were reviewed by Dr. Roger Goetz, M.D., the director of the PRN. Dr. Goetz, who also has personal knowledge of the Respondent's condition, is certified by the American Association of Addiction Medicine and has extensive experience as a medical doctor and in treating impaired physicians. Dr. Goetz asserted that the Respondent is suffering from a dangerous condition, that he is mentally ill and that he poses a threat to himself and to the public. Dr. Goetz opined that the Respondent is unable to practice medicine with reasonable skill and safety to patients and that his continued practice constitutes an immediate and serious danger to the public health, safety and welfare.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a Final Order determining that Benjamin D. Goldberg, D.O., has violated Section 459.015(1)(w), Florida Statutes, and revoking his license (#OS 0004352) to practice as a physician in the State of Florida. DONE and RECOMMENDED this 13th day of August, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1553 The Respondent did not file a proposed recommended order. To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 22, 37. Rejected, unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Francesca Plendl, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Benjamin Goldberg, D.O. 1232 South West 8th Place Cape Coral, Florida 33991
