Findings Of Fact The Respondent, Dr. Irvine K. Furman, is a licensed medical doctor having been issued license no. ME0004572. The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 458, Florida Statutes which concern and embody standards by which physicians are licensed in the State of Florida and permitted to maintain licensure and medical practice in the State. The Respondent received his medical training in the early 1940's and then served in the military services of the United States during and after World War II. Thereafter he worked for a time as a medical examiner and then did a four year surgical residency in Columbia, South Carolina. He came to Florida in approximately 1950 and practiced medicine for a short time in Lake City. He then moved to Jacksonville and entered medical practice, continuing that practice until 1985. Most of his years as a physician have been in the field of general surgery, with about one-third of that practice for a 25 year period in the area of gynecological surgery. He has also practiced surgery extensively in the areas of aorta transplants and artificial joint replacements. He taught surgical residents for many years in area hospitals. During the course of his practice, since approximately 1950, he has always performed any surgery required by his family members and has otherwise treated members of his family, including his wife. Over the years of his practice, he has established an exemplary reputation as a physician and surgeon with his colleagues in the medical profession, even to the extent of being chosen to teach surgery. He was the recipient of numerous accolades from his colleagues upon his departure from active practice in 1985. Prior to the action sub judice, he has been the object of no complaint or proceeding, either formal or informal, by the Department of Professional Regulation, Board of Medical Examiners, or any predecessor agency, nor has any complaint been reported to such agency concerning any aspects of his practice. On approximately September, 1985, the Respondent suffered a heart attack and underwent related heart by-pass surgery. He still complains of shortness of breath on exertion and his doctor, Scott Baker, M.D., believes that the strain of active surgical practice would be too physically taxing for him at the present time, coupled with his other physical conditions involving allergies, asthma, and previous cancer surgery of the colon. The Respondent indicated that he agrees with the assessment and no longer feels that he can engage in active surgical practice. The Respondent has treated his wife, Lorena or Lori, Furman for many years for various ailments and conditions. In the mid 1950's, she suffered a toxemic pregnancy and, due to the complications associated with that condition, chose to have a therapeutic abortion. While that procedure was being performed, she lost a great deal of blood and the Respondent, (who was not performing the procedure, but was present at the time) due to, apparently, inexperience or uncertainty on the part of the physician in charge of the procedure, stepped in and "packed " her uterus to alleviate the abnormal blood loss. The next day, the uterine pack was mistakenly removed, without the knowledge of the Respondent, which resulted in more blood being lost. After a few additional days in the hospital, Mrs. Furman was discharged and went home. Following this incident, she developed health problems that the Respondent, who was treating her by that time, traced to the abnormal blood loss condition such that he diagnosed her resulting condition as "Sheehan's Syndrome." Sheehan's Syndrome is a specific disease that occurs secondary to hemorrhage associated with pregnancy. Excessive hemorrhage results in a drop of blood pressure sufficient to decrease profusion, or blood flow, to the anterior pituitary gland which results in the loss of certain essential bodily hormones. This situation occurs because an infarction or damage process to the anterior pituitary gland, due to loss of blood, causes the pituitary to cease functioning or to significantly decrease its functioning level. Thus, the hormones produced by the pituitary gland and the thyroid gland hormones, which are triggered by the action of the pituitary gland, become no longer available to the body. These hormones are not otherwise replaceable by the patient's body. The normal course of treatment for a true Sheehan's Syndrome condition is to replace the functions lost by the death of, or damage to, the pituitary gland. This treatment would include, but not necessarily be limited to, the provision of sex hormones, steroids, thyroid hormones, adrenaline hormones and, in conjunction with their replacement, the management of the potential side effects of the hormonal therapy. The physician managing a case of true Sheehan's Syndrome would, through the course of treatment, also typically compile voluminous lab work and related records reflecting investigation of steroid levels, serum cortisol levels, ATCH levels, and thyroid stimulating hormone levels. The Respondent's medical records regarding his wife's care do not reflect this type of treatment pattern. The records rather indicate that various studies were done by other practitioners, but do not reflect that any of them confirmed his diagnosis of Sheehan's Syndrome. The records largely consist of logging of medication and brief summaries regarding his wife's physical condition and changes in her physical condition. The Petitioner's expert witnesses, Doctors Wilson and Clark, examining the records of Respondent's treatment of his wife, noted the absence of any findings that she had ever suffered shock during the obstetric incident in question. Normally, blood loss would have to occur of a sufficient magnitude to produce the condition of shock in the patient in order for the requisite damage to the pituitary gland to occur so as to result in Sheehan's Syndrome; that is, an essentially total loss of function of the pituitary gland. The medical records in question do not demonstrate evidence of lost hormonal functions in the body which would normally be expected with a dead or severely damaged pituitary gland. The records do not reflect the "replacement therapy" which would be expected and required in order to replace the glandular functions lost. Thus, largely for these reasons, the Petitioner's experts concluded that the Respondent's diagnosis of Sheehan's Syndrome was incorrect. Both Doctors Wilson and Clark are family practitioners who have practiced in that area in Jacksonville for 17 years and five years respectively. Both are somewhat familiar with toxemic pregnancies and pituitary gland malfunction conditions. The treatment for Sheehan's Syndrome and pituitary gland malfunction is the essentially the same. In this connection however, although they opined that the diagnosis was incorrect, these witnesses have never actually diagnosed a case of Sheehan's Syndrome nor experienced treatment of a patient with that syndrome themselves. It is also noteworthy that neither of the witnesses had treated, diagnosed or even seen the Respondent's wife. Consequently, the evidence of record does not definitively establish whether the Respondent's wife actually suffered from Sheehan's Syndrome. Regardless of the accuracy of the diagnosis however, it has been established that the Respondent's treatment of his wife was below the level of care, skill and treatment recognized by reasonably prudent, similar physicians, as acceptable under similar conditions and circumstances, even if she were actually suffering from Sheehan's Syndrome. The generally recognized treatment for that condition involves total hormone replacement which was not shown to have been done in the instant situation. The Respondent did prescribe Premarin, which is a synthetic estrogen, commonly used for post-menopausal hormone replacement. The amount and frequency with which it was given, however indicates that it may have been given only for menopausal replacement rather than as a treatment related to Sheehan's Syndrome. Additionally, that condition is generally recognized to require long term use of steroids, which was not apparently a part of Mrs. Furman's medication plan. The Respondent prescribed thyroid medication which is appropriate with Sheehan's Syndrome since the pituitary gland has ceased functioning and is no longer able to stimulate the production of thyroxen by the thyroid gland. The thyroid medication, in limited amounts, was prescribed, however, without first securing a thyroid evaluation. Instead of total hormone replacement, much of the medication prescribed by the Respondent consists of controlled substances, particularly pain medications. Between January 21, 1985 and January 21, 1986, the Respondent prescribed the following medications in the following quantities: Substance Quantity Demerol 100 mg. 405 Ampules (1cc. size) Demorol 100 mg. 51 Ampules (20cc. size) Demerol 100 mg. 45 Ampules (2cc. size) Demerol 75 mg. 29 Ampules (1.5cc. size) Demerol 50 mg. 7 vials (30cc. size) Restoril 30 mg. 2,890 Dolophine 5 mg. 1,100 PBZ 50 mg. 30 Butizol 30 mg. 685 Tenormin 50 mg. 100 Fiornal 30 Demerol is a Schedule II controlled substance and is a narcotic pain reliever. Restoril is also a controlled substance used as a tranquilizer to induce sleep. Dolophine is also a controlled substance used as a sedative. PBZ is an antihistamine commonly used to treat allergic reactions when a sinus infection is present. Butisol is a controlled substance used as a sedative which has habit forming characteristics. It is sometimes used for control of headaches. Tenormin is a "betablocker." Its main purpose is to slow down the heart rate to a certain degree and it is used to treat hypertension, and to alleviate the adverse effects of coronary artery disease. Sometimes it is used to prevent migraine headaches. It is not a controlled substance. Fiornal is a controlled substance which is a combination of Butisol and aspirin. It has some analgesic action as well as anti-inflammatory benefits. The Demerol, Restoril, Dolophine, Butisol, and Fiornal prescribed by the Respondent are addictive substances. A physician should be aware of this fact and the Respondent clearly was. The Respondent however felt in his exercise of medical judgment that his wife's pain episodes were severe and frequent enough that he had to risk addiction in order to alleviate her suffering, which he felt both professionally and humanely bound to do. Consequently, he exercised a considered decision to risk addiction and then later to attempt to alleviate the addiction, in order to bring some measure of relief, from pain and inability to sleep, for his wife. Indeed, the Respondent on occasion withdrew all medication in decreasing dosage stages and was able to successfully alleviate her addiction. Thus, it cannot be determined that the Respondent prescribed the controlled addictive substances with any wilful or negligent disregard of the addictive consequences. Rather, in the exercise of his medical judgment, he felt it was more appropriate to relieve her suffering first and be concerned about curing any resulting dependency as a secondary goal, which he apparently was successfully able to accomplish. Indeed, his wife has been off all medications since September, 1986. There is no question that the Respondent's efforts at relieving his wife's discomfort by prescribing the controlled substances noted were well- intentioned. Some of those prescribed, and some of the amounts prescribed, were without adequate justification, however. There were insufficient attempts, through testing, reference to appropriate specialists and appropriate consultations with other physicians, to address the causes of his wife's apparent chronic pain. Indeed, Mrs. Furman at times exhibited symptoms which indicate adverse side effects caused by some of these medications, such as cramping, diarrhea, vomiting, and bloody stools. Few apparent attempts were made to evaluate the causes of these symptoms by testing or evaluation by appropriate specialists. The Respondent's approach to treatment of his wife's symptoms and any new symptoms, such as those named above, (which might involve side effects to medications) was often to prescribe additional medication, rather than seek outside consultation in evaluating the cause of the symptoms. In some instances, the amounts of medication, particularly pain relievers, exceeded that which was warranted for the situation at hand. While the medications given were of a type generally appropriate to the symptoms exhibited, in some instances the amounts appear excessive for the situation with which the Respondent was confronted. In many cases, they were not justified because of the Respondent's failure to seek appropriate evaluation of the cause of his wife's symptoms after they persisted for long periods of time in the face of continued administering of the named medications. The written medical records which the Respondent maintained, although voluminous, fail to adequately justify the course of treatment. They do not reflect repeated evaluation of the persistent symptoms; adequate evaluation and follow-up of the results of medication, either as to effectiveness or side effects; laboratory tests, to monitor the various hormonal levels or objective findings regarding her clinical condition. If anything, his records should have been more complete and adequate in treating his wife, so as to adequately justify his diagnosis and treatment, and to help him guard against the high potential for loss of objectivity risked by any physician treating his wife or a close member of his family. The Respondent's records simply do not adequately justify the course of treatment followed. The Respondent was examined by a psychiatric expert, Dr. Ernest Miller. His opinion, as well as that of Dr. Wilson, shows that the Respondent had lost his objectivity with regard to treating his wife's ailments. He developed a fixed idea that she suffered from Sheehan's Syndrome and rather doggedly pursued that idea to the exclusion of seeking or acting on other medical opinions or advice. He apparently convinced himself that he was the only physician who understood or was capable of understanding the peculiarities of his wife's condition and of treating her satisfactorily. The results of the psychiatric examination show that the Respondent had intact cognition and there were no signs to suggest any organic neurological deficits. He was found to be a very skillful physician and surgeon and generally well qualified to practice medicine, except for the finding that he was not capable of objectively treating his wife and had developed the above- mentioned fixation regarding his view of the proper course of treatment for her by himself alone. He also underwent a physical examination by a physician chosen by the Petitioner and was found to be well-developed and well-nourished with no acute distress, well oriented to time, place, person, and situation. His memory for current, recent, and remote events and his motor and sensory systems and strength appeared intact. He does not use alcohol, drugs, narcotics or other chemicals. There is not question that the Respondent has been very dedicated to his wife's care. It is clear from the evidence however, that he has lost objectivity regarding the handling of his wife's case and ailments and is not able to practice medicine with reasonable skill and safety toward her because of this emotional state. It has not been shown that he is impaired in any way in practicing with reasonable skill and safety toward other patients in his practice within his physical limitations. Some of the Respondent's treatment approaches for his wife were illogical, although well-intentioned. As example, he maintained his wife had an allergy to milk products and yet later had her on a diet which included a great deal of skim milk and eggs, as well as cheese. He maintained that she retained excess fluid as a result of salt intake, and tried to restrict her diet as to salt. At other times, however, he had her on a diet which included products containing significant amounts of salt. In short, the Respondent clearly wanted to care for his wife properly, yet he did not deign to consult other physicians about her case. He claimed to only use tests when he wanted to change something in her medication regimen, despite the factual, as opposed to merely interpretive, information that he could have obtained from appropriate laboratory evaluation, i.e. whether various glands were functioning properly; at what level they were functioning and what the various hormonal levels were. Indeed, in 1963, when an endocrinologist examined Mrs. Furman and found nothing unusual in terms of glandular function and hormonal levels, the Respondent ignored that information and continued "dietary therapy" and heavy administration of medicines. In summary, it has been demonstrated that the Respondent, through his loss of objectivity, due no doubt to his understandably strong attachment to his wife and concern for her condition, is not capable of practicing medicine with reasonable skill and safety toward her. His physical limitations preclude him from the safe practice of surgery. Indeed the Respondent admits that, due to his heart attack and resultant heart by-pass surgery, with continued shortness of breath upon exertion, that he can no longer undertake the strains of surgical practice. The evidence of record however, does not demonstrate that the Respondent is unable to safely engage in the general practice of medicine with regard to patients other than his wife, so long as he does not engage in surgical practice. It has not been shown that he does not have adequate medical judgment and skill regarding the types of medications and therapies which are appropriate for given conditions or ailments which he might encounter in the general practice of medicine. Because of his loss of objectivity as to his wife's condition, he prescribed medications of a type generally appropriate, although sometimes in excessive amounts, for the conditions he perceived his wife to be suffering. His evaluation techniques were not adequate or were entirely lacking as a basis for his diagnoses and opinions, however. Thus he did not have an adequate diagnostic predicate for prescribing the medications, in many instances.
Recommendation Accordingly, having considered the foregoing Findings of Fact, Conclusions of Law, the Evidence of Record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the Respondent's medical license be restricted so as to prohibit him from performing any surgery or maintaining a surgical practice of any type and from practicing medicine in connection with his wife or acting as her physician in any way, until such time as he is able to demonstrate to the Board of Medicine that he is mentally and physically capable of practicing medicine with regard to her with reasonable skill and safety. It is, further, RECOMMENDED that the Respondent, with regard to his continued general practice of medicine be required to forthwith comply with Section 458.331(1)(m), Florida Statutes, by maintaining at all times adequate, written medical records justifying the course of treatment for all patients, including, but not limited to, patient history, examination results, and test results. DONE and ORDERED this 30th day of November, 1987, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of November, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-510 Petitioner Department's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Accepted. Accepted. Accepted. Accepted, but subordinate to the Hearing Officer's findings on this subject matter. Accepted. Accepted. Respondent's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted. Rejected as subordinate to the Hearing Officer's findings on this subject matter. Accepted. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Rejected as subordinate to the Hearing Officer's findings regarding this subject matter. Accepted. Accepted in part, but subordinate to the Hearing Officer's findings regarding this subject matter. Accepted. Accepted. COPIES FURNISHED: Julie Gallagher, Esquire Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Charles J. Franson, Esquire Drew W. Prusiecki, Esquire Post Office Box 10840 Jacksonville, Florida 32247 Tom Gallagher, Secretary 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Respondent is now, and was at all times material hereto, a physician authorized to practice medicine in the State of Florida under license number ME 0013979. F.E. and her young daughter are former patients of Respondent. They visited Respondent's office on November 27, 1989, and again on December 14, 1989. The November 27, 1989, visit was uneventful. During her December 14, 1989, visit, F.E. complained that she had been experiencing pain on the right side of her body behind her knee and in the groin area. Respondent requested that F.E. lower her pantyhose and lie on her back on the examining table. F.E. complied with Respondent's request. Respondent proceeded to examine F.E. He tracked, by both visual inspection and palpation, the saphenous vein on the right side of F.E.'s body. The saphenous vein runs from near the knee to around the groin area, where it meets the femoral vein. F.E. still had on her panties. Respondent therefore had to lift up the leg of the panties in order to observe and feel the area around the upper terminus of her saphenous vein. F.E. tried to sit up when Respondent did this, but Respondent restrained her and told her that she needed to remain still inasmuch as the examination was not completed. Thereafter, Respondent had F.E. turn over on her stomach and, from this different vantage point, proceeded to again track F.E.'s right saphenous vein employing the same technique he had used previously. Following the completion of the examination, F.E. pulled up her panty hose and got off the examining table. She then engaged in conversation with Respondent, who was filling out her chart. Respondent diagnosed Respondent's condition as a mild form of phlebitis in her right saphenous vein. He told her to wrap her leg and to take two Advil tablets four times a day to reduce the inflammation in the vein. Following her exchange with Respondent, F.E. retrieved her daughter and left the office. Respondent's examination of F.E. on December 14, 1989, itself was in accordance with generally accepted medical standards. 1/ During the examination, however, when Respondent was inspecting the area around F.E.'s groin, he inappropriately remarked in Spanish to F.E., who is Spanish-speaking, that she was the prettiest woman in the world, or words to that effect. This made F.E. feel uncomfortable. She thought that Respondent wanted "some sort of romance." Respondent, though, said nothing else, nor did he engage in any conduct, during his encounter with F.E. that day to indicate that this was his intention. Sometime after F.E.'s visit to Respondent's office on December 14, 1989, the Department received a complaint concerning Respondent's behavior toward F.E. that day. The Department investigated the complaint. Following the completion of the investigation, it prepared and submitted to a probable cause panel of the Board of Medicine a written investigative report. The probable cause panel met on June 22, 1990, to consider whether there was probable cause to bring formal charges against Respondent. In attendance at the meeting were probable cause panel members Dr. Robert Katims, who chaired the meeting, and Dr. Marilyn Wells. Prior to their vote, Katims and Wells took part in discussion regarding the case. They both indicated during the discussion that they had reviewed the investigative materials with which they had been provided by the Department. Following the conclusion of the discussion, Katims and Wells both voted to find probable cause. Thereafter, an Administrative Complaint was issued against Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the instant Amended Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of December, 1991. 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 5th day of December, 1991.
Findings Of Fact The Respondent is a licensed physician in the state of Florida, and holds license number ME 0034710. Respondent's last known address is 1430 Mason Avenue, Daytona Beach, Florida, 32117-4551. At all times material to these proceedings, Respondent, who is both a neurologist and a psychiatrist, specialized in the diagnosis and treatment of headaches in his medical practice with Daytona Neurological Associates in Daytona Beach, Florida. At various times from approximately May 18, 1984, through December 23, 1988, Respondent rendered neurological care to Patient C.R., a female born on November 14, 1963. On May 18, 1984, when C.R. initially came to Respondent's office complaining of severe headaches, Respondent noted in his medical records that the patient had been on birth control pills for three years and had ceased taking them two months prior to this visit. C.R. was also a cigarette smoker. From approximately May 18, 1984, until September 12, 1986, C.R. was prescribed a variety of medications at various times by Respondent for the patient's headaches. The medications included Asendin, Phrenilin Forte, Norpramin, and Tylenol #3. Medrol, Prednisone, and Decadron are legend drugs as defined in Section 465.003, Florida Statutes, and contain both natural and synthetic adrenocortical steroids (glucocorticoids). On September l2, 1986, Respondent prescribed a Medrol Dosepak unit to C.R. A Medrol Dosepak is a corticosteroid specific package that is tapered over six days from the first dose down to the last dose and contains a total of 84 mg of methylprednisolone (105 mg Prednisone equivalent). The medication was concluded on or about September 17, 1986. On October 30, 1986, Respondent prescribed another Medrol Dosepak unit to C.R. The patient took the Medrol tablets beginning on this date, in decreasing dosages, starting at 24 mg and ending at 4 mg six days later, for a total of another 84 mg of methylprednisolone (105 mg Prednisone equivalent). Both prescriptions of Medrol (September 12, 1986 and October 30, 1986) were short courses and treatment was not inappropriate. On November 7, 1986, C.R. went to a hospital emergency room where she was prescribed Prednisone 40 mg for three days and 20 mg for four days and referred back to the Respondent for follow-up care. During this hospitalization, C.R. received approximately 200 mg of Prednisone. On November 14, 1986, Respondent saw C.R. in his office and indicated in his records that the patient seemed to be doing better on Prednisone and "[w]e will keep her on this medication and re-evaluate her in one month. She is to . . . decrease the Prednisone and come off this in about a week or two." On November 25, 1986, Respondent saw C.R. in his office. Respondent indicated in his records that he would keep C.R. on Prednisone l0 mg daily for "another week or so." From November 7, 1986 until November 30, 1986, C.R. received a total of 465 mg of Prednisone. Appropriateness of corticosteroid use varies with both amount and duration. The amount initiated in the Emergency Room on November 7, 1986, was not excessive, but Respondent's rationale for continuation of the drug, or whether the November 14, 1986 dosage was tapered or less than that previously prescribed for C.R. in the emergency room, is not documented in Respondent's patient records. On January 20, 1987, Respondent saw C.R. in his office and documented that he was going to give the patient another "short course" of Prednisone. Respondent saw C.R. again in his office on January 30, 1987, and documented further prescription of Prednisone. The documentation for the above two visits does not indicate the dosage details nor suggest what circumstances of the patient's condition justify again prescribing prednisone other than the remark dated January 20, 1987, that "[p]atient is having some headaches again." For the period of January 20, 1987 through February 9, 1987, C.R. was prescribed a total of 510 mg of Prednisone. Petitioner's Exhibit 5 is a calendar prepared by C.R. which allegedly documents the patient's receipts for prescriptions which she purchased upon Respondent's authorization. C.R. has no independent recollection of amounts or times when she took the medications. On the basis of information reflected on the calendar, Petitioner seeks to establish that Respondent prescribed corticosteroids for C.R. in excess of that otherwise established by the evidence in this case. In view of the lack of C.R.'s independent recollection of when she took the medications, the lack of corroborating original receipts, C.R.'s lack of detail recall concerning her treatment by Respondent, her inability to remember when she prepared the calendar other than in preparation for civil litigation against Respondent following her treatment, and lack of other direct evidence corroborating the document's veracity, the calendar standing alone is not credited for the purpose of establishing amounts and times of medication prescribed for C.R. by Respondent. C.R. had an office visit on March 18, 1988 but there is no reference to any Prednisone prescription in the medical record. A handwritten note for the date of April 6, 1988 in the Respondent's medical record states that the patient was "told to stay on Prednisone." Respondent conceded in testimony that he apparently failed to document prescribing 60 mg Prednisone in April of 1988. From April 27, 1988 through May 8, 1988, Respondent had C.R. admitted to Halifax Medical Center in Daytona Beach, Florida. During that period, she received 909 mg. Prednisone equivalent (Decadron). Respondent discharged the patient with a diagnosis of severe vascular migraine headaches under control with a combination of Mellaril and Procardia. At the time of the April, 1988 admission, C.R. was suffering from crescendo migraine with numbness, blurring, and an episode of loss of consciousness. As established by testimony of Thomas M. Zizic, M.D., Respondent's expert in avascular necrosis, corticosteroid use, and treatment of headache, patients with the symptoms displayed by C.R., when she was hospitalized in April of 1988, are at risk for transient ischemic attacks and strokes. As opined by Dr. Zizic, and corroborated by testimony of Victor B. Robert, M.D., the short course of less than two weeks of high dose steroids in the course of the April, 1988 hospitalization was not inappropriate. Zizic also opined that the other courses of steroids prescribed previously for C.R. were not inappropriate. As established by Zizic, steroid medications in the amounts and duration prescribed for C.R. are not causative of avascular or aseptic necrosis. Dosage amounts of these drugs have to be much greater and for longer periods of time to occasion such side effects. Even assuming C.R.'s calendar of medications and the resultant supposition that she ingested more steroid medication than is established by the credible evidence, Zizic opined that the likelihood that such medication amounts and duration resulted in C.R.'s development of aseptic necrosis is less than five percent. Zizic also testified that he would not have felt it necessary to warn C.R. of the potential for avascular or aseptic necrosis in view of the remoteness of such a possibility at dosages prescribed for her. Dr. Jacob Green, an expert witness presented by Respondent, is a neurologist who provided insight into the clinical management of the difficult headache patient, noting that there is no standard treatment for such patients, "[y]ou just have to use what works . . . Its a matter of trial and error in a lot of cases." Green also noted that once a patient is treated with corticosteroids, the dosages must be tapered gradually, not stopped suddenly. Green concluded C.R.`s dosages were decreased appropriately, that duration of Medrol and Prednisone prescribed for the patient was appropriate, and that use and duration of Decadron during C.R.`s hospitalization in April, 1988, was also appropriate. While Green acknowledged that avascular necrosis of the hips is a known complication of steroid use, he testified that in 1986 or 1987 he would not have felt that failure to warn a patient about the potential for such a remote side effect constituted a breach of the standard of care and would not have warned the patient. In Green's opinion, Respondent did not prescribe Medrol, Prednisone or Decadron contrary to the best interests of C.R. In 1989, C.R. was diagnosed with aseptic necrosis of the femoral head of both her hips and underwent surgery in 1989 and 1990 resulting in total hip replacements. She has undergone surgery for "a revision on the left side" and continues to have problems. While differing expert testimony presented in this proceeding fails to clearly and convincingly establish a causal connection between the steroid medications given to C.R. and her resultant physical problems, the common consensus of those experts is that avascular necrosis is a complication that can arise from the use of steroids, given sufficient dosages and duration of such medication. Although Respondent did not inform C.R. of the potential of avascular necrosis from corticosteroid dosing by the prescribed medications and did not at any time during the course of his treatment discuss with CR the potential for such harmful side effects, the evidence fails to establish that the patient should have been informed in 1986 regarding the remote potential for harmful side effects of such medications. However, Respondent's medical records on the patient C.R. were inadequate. The records did not serve as an effective basis for planning patient care and providing for continuity in the evaluation of the patient's condition and treatment. The records did not furnish documentary evidence of the course of the patient's medical evaluation, treatment, and change in condition. Detail of the records was not sufficient to clearly demonstrate why one course of treatment was undertaken in preference to another course and would not have communicated sufficient information for any other practitioner who would have assumed the patient's care.
Recommendation ACCORDINGLY, it is recommended that a final order be entered finding the Respondent guilty of count two of the Administrative Complaint, violation of Section 458.331(l)(m), Florida Statutes; requiring as a penalty that Respondent's license to practice as a physician in the State of Florida be placed on probation for a period of one year upon conditions prescribed by the Board of Medicine; and further requiring that Respondent pay a fine in the amount of $5,000. DONE and ENTERED this 26th day of February, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 26th day of February, 1996. APPENDIX CASE NO. 94-2116 In accordance with requirements of Section 120.59, Florida Statutes, the following constitute my rulings with regard to proposed findings of fact submitted by the parties. Respondent's Proposed Findings. 1.-2. Accepted. Rejected, unnecessary. Rejected, subordinate to HO findings. Accepted, but not verbatim. While the calendar was admitted, it may only be used to corroborate direct testimony. C.R. had no independent recollections which could be corroborated by the calendar. Respondent took issue with the calendar, consequently the calendar is not credited as a basis for fact finding with the exception of Dr. Zizic's opinion regarding dosage levels. Incorporated by reference. 7.-10. Rejected, subordinate to HO findings. 11. Accepted, not verbatim. 12.-15. Incorporated by reference. 16.-18. Accepted. 19.-22. Rejected, subordinate to HO findings. Petitioner's Proposed Findings. 1-4. Accepted. 5. Rejected, unnecessary. 6.-9. Accepted, not verbatim. 10. Accepted in part, remainder rejected as subordinate. 11.-12. Accepted. 13.-19. Rejected, subordinate to HO findings. 20.-22. Accepted. 23.-25. Rejected, subordinate to HO findings. COPIES FURNISHED: Albert Peacock, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Donna J. Torsney, Esquire Donald W. Weidner, P.A. 10161 Centurion Parkway North Suite 190 Jacksonville, Florida 32256 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Dr. Marm Harris, Executive Director Agency for Health Care Administration Division of Medical Quality Assurance 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact The parties Petitioner, Agency for Health Care Administration, Division of Quality Assurance, Board of Medicine, formerly Department of Business and Professional Regulation, Board of Medicine, is the state government licensing and regulatory agency charged with the responsibility and duty of regulating the practice of medicine pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. Chapter 93-129, Laws of Florida. Respondent, Muhammad S. Mustafa, M.D., is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0047360. Respondent was licensed by endorsement on October 7, 1985, but did not, ostensibly, actively engage in the practice of medicine in the State of Florida until September 14, 1988. 4/ Respondent's last known address, as of the date of hearing, was 8245 North Nebraska Avenue, Tampa, Florida 33604. Respondent received his medical degree from the Oklahoma University School of Medicine in 1970, performed an internship from 1970 to 1971 at the Altoona Hospital, Altoona, Pennsylvania, did a four-year residency in general surgery from 1971 to 1975 at The Cleveland Clinic, Cleveland, Ohio, and started practice as a sole practitioner in Cleveland, Ohio, in November 1975. Respondent's practice consisted of general surgery and family medicine, and he practiced in a predominately blue collar neighborhood until his license to practice medicine was revoked by the State Medical Board of Ohio, as discussed infra. While practicing in Cleveland, respondent had staff privileges at St. Vincent Charity Hospital, Luthern Medical Center, St. John's Hospital, and St. John's Westshore Medical Center, but by May 1988 had restricted his practice to Luthern Medical Center and St. John's Hospital. Respondent resigned his staff privileges at Luthern Medical Center and St. Johns in December 1989. The Ohio charges On May 11, 1988, the State Medical Board of Ohio, the licensing authority for medicine in the State of Ohio, notified respondent that it proposed to take disciplinary action against his certificate to practice medicine and surgery in Ohio. The gravamen of the Board's charges were as follows: That respondent's prescribing practices with regard to approximately 83 difference patients, as well as his overall prescribing as reflected by a listing entitled "Total Drug Amounts by Drug, Year and Month," constituted: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease," as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes," as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established," as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. That as to Patient 152 respondent did between March 27, 1984 and December 12, 1985, and again between November 13, 1986 and April 1, 1987, prescribe controlled substance stimulants when the patient either gained weight or failed to lose weight, contrary to the provisions of Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further charged that respondent's billing to Patient 152's insurance company for services rendered between March 27, 1984 and December 15, 1986, reflected a diagnosis of "hypertension, obesity, ingrown toenail, nerves, low back pain, and arthritis" when there was no indication in respondent's record that he had treated the patient for any condition other than obesity. Such conduct was alleged to constitute "publishing a false, fraudulent, deceptive or misleading statement," as that clause is used in Section 4731.22(B)(5), Ohio Revised Code, and the "obtaining of, or attempting to obtain money or anything of value by fraudulent misrepresentation in the course of practice," as that clause is defined in Section 4731.22(B)(8), Ohio Revised Code. That as to Patient 151 respondent did between February 21, 1979 and April 17, 1986, and again between November 13, 1986 and April 1, 1987, prescribe controlled substances and stimulants when the patient either gained weight or failed to lose weight, contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further alleged that on respondent's billing to Patient 151's insurance company for services rendered between January 10, 1984 and November 13, 1986, the diagnosis of "menopause; arthritis; glossitis; bronchitis; hypertension; nerves; and chest wall pain" were entered when the majority of services rendered by respondent were for "obesity," a diagnosis not listed, and his records contain no indication that she was being treated for hypertension, nerves or arthritis. Moreover, an EKG and "comprehensive office exam" performed on November 13, 1986 and billed under a diagnosis of "chest wall pain" were in fact performed as part of the physical required prior to starting the diet program. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent's reports and billing to two different attorneys with regard to Patient 140 (who had been involved in accidents in June and November 1985) reflected dates of service and patient complaints which were not reflected in the medical records. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent prescribed controlled substances for Patient 241 in 1979, 1982 and 1983 through 1985 contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, in that the patient had admitted to respondent in 1979 that he was addicted to Codeine and in 1985 that he was addicted to Percocet. Respondent was alleged to have first prescribed Percocet in 1983, upon the patient's complaint of back pain, without noting any physical exam or findings, and had continued prescribing it on a regular basis well into 1985. His prescribing of Codeine-based medications and Percocet continued after the patient's admission of addiction to those substances. Finally, citing 13 different patients as examples, the Board alleged that respondent routinely kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications prescribed or dispensed; prescribed controlled substances and dangerous drugs based upon patient requests for medications or patient complaints, often without utilizing appropriate testing or other methods for evaluating the validity or etiology of the complaints; and routinely prescribed controlled substance stimulants for weight loss over extended periods of time without regard to whether or not the patient demonstrated weight loss. Such conduct was alleged to violate Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. Moreover, respondent's acts or omissions with regard to certain prescriptions written on or after November 17, 1986, for patients 25, 34, 130, 166, 265, and 276, were alleged to constitute violations of Rules 4731-11-02 and/or 4731-11-04, Ohio Administrative Code, and therefore Section 4731.22(B)(20), Ohio Revised Code. The aforesaid notice of charges dated May 11, 1988, advised respondent of his right to request a hearing on the matter, his right to appear at such hearing in person or through his attorney, to present his position and argument, and to present evidence and examine witnesses appearing for or against him. Respondent timely requested such hearing, and was represented by counsel. The subject charges were heard before Wanita J. Sage, Esquire, Hearing Examiner for the State Medical Board of Ohio, on September 18, 1988. Thereafter, the Hearing Examiner rendered an extensive recommendation, which contained findings of fact, conclusions and an order. Such findings of fact sustained the charges filed against respondent, and are contained in petitioner's exhibit 2. The recommendation, which summarized the factual findings, concluded: The acts, conduct, and/or omissions of Muhammad S. Mustafa, M.D., as set forth in the above Findings of Fact, constitute: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease", as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes", as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and/or "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established", as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. The testimony and evidence presented in this Matter amply establish that Dr. Mustafa, in the routine course of his practice, prescribed controlled substances and dangerous drugs for patients for excessive periods of time, without establishing valid medical indication or diagnosis. He prescribed potentially addictive controlled substances, often in dangerous combinations, for patients for years without adequately evaluating their complaints or attempting alternative therapies. In the case of Patient 241, Dr. Mustafa admitted that he had prescribed Codeine for this patient for a period of over one month in 1979 as treatment for his admitted Codeine addiction. Several years later, Dr. Mustafa began prescribing Percocet upon this same patient's complaint of back pain, without any evidence of evaluation, and continued to do so over a two-year period. When Patient 241 then admitted that he was addicted to Percocet, Dr. Mustafa continued to prescribe it for three addi- tional months as treatment for his addiction. Such prescribing contravenes both federal and state laws, including each of those provisions listed above. Dr. Mustafa's claim that there was no adequate treatment program available in 1979 does not satisfactorily explain his prescribing for Patient 241's addiction in 1985. The patient records clearly demonstrate Dr. Mustafa's willingness to prescribe whatever patients requested, even when objective data indicated that there was no valid medical indication for such drugs and no medical basis for the patients' complaints. In the case of Patient 36, Dr. Mustafa liberally prescribed synthetic thyroid hormone at her request, despite the fact that he had obtained tests showing her thyroid levels to be normal. He provided this same patient with narcotic pain medications, even when her complaints of pain were apparently related to urinary tract infections, menstrual cramps, or other conditions which would not appear to justify the use of controlled substances. In the case of Patient 308, Dr. Mustafa prescribed combinations of controlled substances and dangerous drugs, including narcotic analgesics, tranquilizers, hypnotics, barbiturates, antipsychotics, tricyclic antidepressants, and stimulants, even though he was aware that her complaints generally [had] no physical cause, but rather stemmed from emotional problems. On one occasion, he actually telephoned in a prescription for Compazine for Patient 308 when she was in the hospital under the care of another physician for treatment of a drug overdose. Even though Dr. Mustafa was admittedly aware that she had been hospitalized on three occasions due to drug overdoses, he continued afterwards to prescribe dangerous combinations of drugs for her, including the substances on which she had overdosed. In the case of Patient 130, Dr. Mustafa regularly prescribed and administered large amounts of narcotic analgesics over an approximately four year period. Dr. Mustafa admitted that Patient 130 was chemically dependent on narcotics, but claimed they were necessary to control his back pain. Yet, the patient record clearly indicates that Dr. Mustafa made no effort to independently evaluate or diagnose, but rather relied solely upon this patient's representations as justi- fication for his inappropriate prescribing in response to this patient's requests for addictive drugs. Furthermore, the patient record indicates that Dr. Mustafa abruptly discontinued prescribing pain medications and tranquilizers for Patient 130 in early 1987. In general, the patient records demonstrate lack of independent evaluations by Dr. Mustafa of patients' complaints of pain, for treatment of which he prescribed large amounts of controlled medications for excessive periods of time. Such prescribing violates each of the above provisions of law. Further, the patient records of Patients 152, 151, 25, 26, 36, 218, 236 and 265 support the State's allegations that Dr. Mustafa routinely prescribed controlled substance stimulants for weight loss purposes over extended periods of time, whether or not a patient demonstrated weight loss. Dr. Mustafa admitted that it had been his standard practice to prescribe a controlled substance anorectic upon a diet patient's initial visit, without first attempting to achieve weight loss through other means, such as diet or nutritional counseling. In addition, Dr. Mustafa often prescribed Lasix, a diuretic, for weight control purposes. As indicated by the testimony of Dr. Junglas, there is no valid medical indication for the use of a diuretic for weight loss. Such pre- scribing of diet medications also violates each of the above provisions of law. Certainly, both the patient records and the testimony of Dr. Mustafa support the Board's allegations that Dr. Mustafa, in the routine course of his practice, kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications he prescribed or dispensed to his patients. Although Dr. Mustafa appeared to claim that he had done examinations or made physical findings which justified the medications he prescribed, he stated that he simply didn't have time to write down everything he knew about his patients. The patient records generally reflect only patient requests for refills of medications, non-specific patient complaints, and lists of drugs prescribed or administered by Dr. Mustafa. They are generally devoid of evidence of appropriate diagnostic testing; documentation as to the nature or severity of the patient's reported pain, illness, or injury; evidence of investigation of alter- native therapies; thorough histories, physical examinations, and diagnoses; in short, infor- mation necessary to assure that the patient receives appropriate treatment. Such records evidence Dr. Mustafa's violations of each of the above provisions of law. As indicated by the testimony of Dr. Donald Junglas, Dr. Mustafa's treatment with regard to each of the 17 patients whose records were reviewed at hearing violates each of the above provisions of law. Further, the prescriptions identified as State's Exhibits #6A through #6H and summarized by the "Prescription List by Patient Number" and the listing of "Total Drug Amounts by Drug, Year, and Month" (State's Exhibit #1) indicate that Dr. Mustafa's inappropriate, long-term prescribing of controlled substances was not confined to those 17 patients, but rather was common in his practice. Dr. Mustafa's prescribing of controlled substances for weight reduction for Patients 152 and 151 after November 17, 1986, constitutes "violating . . ., directly or indirectly, . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rule 4731-11-04, Ohio Adminis- trative Code, as in effect on and after November 17, 1986. Rule 4731-11-04(B) requires that a physician's use of controlled substances for purposes of weight reduction in the treatment of obesity be only as an adjunct in a regimen of weight reduction based on caloric restriction. It further requires the physician to determine, before instituting treatment with a controlled substance, that the patient has made a "substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification, and exercise, without the utilization of controlled substances, and that said treatment has been ineffective. Further, the physician must obtain a thorough history, perform a thorough physical examination, and rule out the existence of any recognized contradictions to the use of the controlled substance. Further, according to this rule, the physician may not initiate or must discontinue utilizing controlled substances immediately upon determin- ing that the patient has failed to lose weight while under treatment with a controlled substance over a period of 14 days, such determination to be made by weighing the patient at least every fourteenth day. Dr. Mustafa's prescribing of Schedule IV anorectics for Patients 152 and failed to meet these requirements. Patient testified that he had never tried dieting before seeing Dr. Mustafa. Dr. Mustafa's lecturing Patient 152 about snacking does not constitute the institution of a regimen of weight reduction based on caloric restriction. The documentation in the patient records, parti- cularly in the case of Patient 151, fails even to establish that these patients' overweight constituted obesity which might have justified the use of a controlled substance in the event that other treatment methods had been proven ineffective. Further, Dr. Mustafa failed to discontinue prescribing Schedule IV anorectics for Patients 152 and 151 when they failed to lose weight, as required by Rule 4731-11-04(B). In fact, although Dr. Mustafa admittedly become aware of this Rule in December, 1986, he prescribed Schedule IV anorectics for Patient 152 when he demonstrated weight gains on February 5, March 5, and April 1, 1987, and he prescribed Schedule IV anorectics for Patient 151 when she demonstrated failure to lose weight on January 9, February 5, and March 5, 1987. Pursuant to Rule 4731-11-04(C), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Further, Dr. Mustafa's prescribing for Patients 25, 34, 130, 166, 265, and 276, on and after November 17, 1986, constitutes "violating . . ., directly or indirectly . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rules 4731-11-02 and/ or 4731-11-04, Ohio Administrative Code, as in effect on and after November 17, 1986. With respect to patient 25, Dr. Mustafa violated Rule 4731-11-04(B) by prescribing the Schedule IV controlled substance Fasin 30 mg. for purposes of weight reduction on both December 19, 1986, and February 13, 1987, without: instituting a regimen of weight reduction based upon caloric restriction, first determining the ineffectiveness of other methods of weight reduction, or determining whether or not she failed to lose weight by weighing her at least every fourteenth day. Further, Dr. Mustafa violated Rule 4731-11-02(D) by telephoning in a prescription for 30 Tranxene 7.5 mg., a Schedule IV anxiolytic, for Patient 25 on April 2, 1987, without documenting any exam- ination, evaluation, diagnosis, or purpose for this controlled substance. On seven occasions from November 19, 1986, through April 29, 1987, Dr. Mustafa prescribed Vicodin, a Schedule III narcotic analgesic, for Patient 34 without documenting any examination, evaluation, diagnosis, or purpose for his use of this addictive controlled substance. In fact, four of these prescriptions were issued after Dr. Mustafa had discussed with Patient 34 the addictiveness of Vicodin and the need for him to take less of it. Such acts and omissions violate both paragraph (C) and (D) of Rule 4731-11-02. Dr. Mustafa's acts and omissions with regard to Patient 130 also constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Without documenting any examination, evaluation, diagnosis, or purpose other than the patient's requests for pain medication, Dr. Mustafa administered IM injections of Demorel 100 mg., a Schedule II narcotic analgesic, to Patient 130 on December 13, 1986, January 6, 1987, and April 7, 1987. In addition to the Demerol injection, he also prescribed 100 Tylenol #4, a Schedule III narcotic analgesic, for this patient on April 7, 1987, solely upon Patient 130's request for pain medications for vacation. Dr. Mustafa had previously notified this patient on January 12 that he would prescribe no more tranquilizers or pain medications for him. Dr. Mustafa admitted at hearing that this patient had been chemically dependent upon narcotics, though he claimed that he had needed them to control his pain. Upon Patient 166's request, without document- ing any examination, evaluation, diagnosis, or purpose, Dr. Mustafa prescribed for her 100 Vicodin, a Schedule III narcotic analgesic, on December 24, 1986, and 50 Vicodin on January 29 and again on April 23, 1987. Such acts violate Rule 4731-11-02(D). With respect to Patient 265, Dr. Mustafa initiated treatment with Adipex-P, a Schedule IV stimulant anorectic controlled substance, on December 9, 1986, without first determining the effectiveness of other methods of weight reduction, without instituting a regimen of weight reduction based on caloric restriction, and without obtaining a thorough history or performing a thorough physical examination to rule out the existence of any contradiction. Dr. Mustafa continued to prescribe Apidex-P through April 31, 1987, without weighing Patient 265 at least every fourteenth day and without immediately discontinuing such treatment when this patient showed a weight gain on February 10, 1987. Such acts and omissions violate Rule 4731-11-04(B). Furthermore, from December 9, 1986, through May 11, 1987, Dr. Mustafa prescribed Valium for her on three occasions, two of which prescriptions he telephoned in. On five occasions during this period, he prescribed Darvon Compound 65 for her, including one occasion when Patient 265 indicated that she had 30 tablets left from a previous prescription, two occasions where Dr. Mustafa provided her with postdated prescriptions, and one occasion where he telephoned in a prescription. At no time did Dr. Mustafa document any examination, evaluation, diagnosis, or purpose other than the patient's stated complaint, for his prescribing of these controlled substances. Such acts and omissions constitute violation of both paragraphs (C) and (D) of Rule 4731-11-02. In an approximately five month period from November 17, 1986, through April 28, 1987, Dr. Mustafa prescribed for or administered to Patient 276 a total of 519 dosage units of controlled substances, including: 25 Demerol 50 mg., a Schedule II narcotic analgesic; 2 IM injections of Demerol 50 mg.; 2 IM injections of Demerol 75 mg.; 60 Fiorinal, a Schedule III barbiturate analgesic; and 430 Darvocet N-100, a Schedule IV narcotic analgesic. Of these, 230 dosage units were prescribed by telephone. Throughout this period, Dr. Mustafa failed to document examination, evaluation, diagnosis, or purpose for this prescribing other than patient requests and complaints. On one occasion, he did note a physical finding of severe pain and tenderness in the back, radiating downward; however, no further evaluation was done and no diagnosis was indicated. On another occasion, Dr. Mustafa noted a diagnosis of severe migraine headache, but failed to state any information upon which that diagnosis was based. In view of the addictiveness and volume of the substances so prescribed, it is concluded that Dr. Mustafa's acts and omissions with regard to Patient 276 constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Pursuant to Rule 4731-11-04(C), Ohio Administ- rative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Pursuant to Rule 4731-11-02(F), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-02(C) and (D) also violate Sections 4731.22(B)(2) and (B)(6), Ohio Revised Code. Further, in view of the nature and/or amounts of the drugs prescribed and the circumstances with regard to such prescribing, Dr. Mustafa's acts and omissions with regard to Patients 130, 265, and 276 are found to constitute purposeful, knowing, or reckless violations of paragraph (C), and thus, pursuant to paragraph (F), also violate Section 4731.22(B)(3), Ohio Revised Code. Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of Fact #7 and #13, above, constitute: "Publishing a false, fraudulent, deceptive, or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Reviewed Code. Claim forms submitted by Dr. Mustafa or his office staff to insurers for reimbursement for Dr. Mustafa's services for both Patient 152 and Patient 151 reported diagnoses for which he had not treated those patients. The fact that diagnoses appeared on claim forms, but not in the patient records, cannot be attributed merely to Dr. Mustafa's poor documentation. Although Dr. Mustafa's patient records clearly indicate that the EKG's done in November, 1986, were part of physical examinations for initiation of diet programs, these EKG's were claimed under diagnoses of hypertension for Patient 152 and chest wall pain for Patient 151. In fact, the "Weight Reduction Program" form contained in Patient 152's file indicates that he had no history of hypertension or heart disease. It must be concluded that false diagnoses were reported for purposes of obtaining reimbursement from the insurer for performance of these routine tests. Although not included in the Board's allegations, it is noted that a similar billing was submitted on behalf of another patient reviewed in this Matter, Patient 25 (See Finding of Fact #19). Although Dr. Mustafa denied knowledge of or responsibility for these false billings, copies of the claims, many of which were signed by Dr. Mustafa, were made a part of the patients' records. Furthermore, contrary to Dr. Mustafa's contentions, he is responsible for the billing procedures of his office. It must be concluded that Dr. Mustafa knew or should have known of the fraudulent billings submitted on behalf of Patients 152 and 151. Further, Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of fact #15 and #16, above, constitute: "Publishing a false, fraudulent, deceptive or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Revised Code. Dr. Mustafa submitted billings and reports of Patient 140's attorneys, listing dates of service and fees not reflected in the patient record. In addition, he billed both attorneys for a January 28, 1986, office visit. Dr. Mustafa's attempts to explain these discrepancies are not convincing. The reports to the attorneys listed no specific treatments or medications for the dates reported; thus, they could not be adequate substitutes for clinical notes which Dr. Mustafa claimed to have recorded on separate cards. Further, Dr. Mustafa claimed that he had made clinical notes on cards, later discarded, because Patient 140 had come to his home, rather than to his office, for treatment; yet he had earlier testified that his office was in his home (Tr. at 41). Also, Dr. Mustafa's attempt to blame his receptionist for the double billing of the January 28, 1986, visit is not well taken. Dr. Mustafa signed the reports submitted to both attorneys and was responsible for their accuracy. It is evident that the billings submitted to Patient 140's attorneys for reimbursement for professional services fraudulently misrepresented the extent of and fees for Dr. Mustafa's services. Although not part of the Board's charges, it is further noted that the patient record for Patient 166 contains a billing submitted to an attorney which contains both dates of service and fees which are not reflected in the patient record (see Finding of fact #31). * * * * * The testimony and evidence in this Matter sub- stantially shows that Dr. Mustafa, in the routine course of his practice, engaged in inappropriate, indiscriminate prescribing of controlled substances and dangerous drugs. The patient records evidence his willingness to prescribe at the patient's request, without regard for medical indications or patient welfare. In at least one case, he admittedly prescribed narcotics to a known addict for an inappropriate period of time without referring him to an authorized treatment program. Both the State's exhibits and the testimony of its expert, Dr. Junglas, rob Dr. Mustafa's claim, that his prescribing was in accordance with acceptable community standards for the time, of credence. Dr. Mustafa admitted that he had ignored the warnings of drug manufacturers and FDA labeling with regard to his long-term prescribing of controlled substances, relying on information he claimed to have obtained from his colleagues. At best, Dr. Mustafa's prescribing practices reflect a willful ignorance of the properties and effects of drugs. Neither willful ignorance nor the lack of moral character demonstrated by Dr. Mustafa's fraudulent billings would seem to be remediable. PROPOSED ORDER It is hereby ORDERED that the certificate of Muhammad S. Mustafa, M.D., to practice medicine and surgery in the State of Ohio shall be and is hereby REVOKED. This Order shall become effective thirty (30) days from the date of mailing of notification of approval by the State Medical Board of Ohio, except that Dr. Mustafa shall immediately surrender his United States Drug Enforcement Administration certificate and shall not order, purchase, prescribe, dispense, administer, or possess any controlled substances, except for those prescribed for his personal use by another so authorized by law. Further, in the interim, Dr. Mustafa shall not undertake treatment of any individual not already under his care. Wanita J. Sage Attorney Hearing Examiner The Hearing Examiner's proposed findings of fact, conclusions and order were adopted by the State Medical Board of Ohio on December 6, 1989. Respondent appealed the Board's order through the courts and on May 4, 1992, the Ohio Supreme Court refused respondent's request that it take jurisdiction of the case. Consequently, the order of the State Medical Board of Ohio revoking respondent's license to practice medicine became effective June 15, 1992. Other matters At hearing, respondent offered the opinion of Adnan E. Mourany, M.D., Soundiah Selvaraj, M.D., and Marcello Mellino, M.D., by way of deposition (Respondent's exhibits 9-11), concerning respondent's reputation as a physician. Dr. Mourany is licensed to practice medicine in the State of Ohio, as well as Indiana, Minnesota and New York, and has practiced since 1986. He is Chairman of Surgery and Chief of Otolarynology at St. John's Westshore Hospital, and has known respondent professionally and personally since 1979. Dr. Selvaraj is licensed to practice medicine in the State of Ohio, and has practiced since 1974. he is Chief of Internal Medicine and Ambulatory Care at the Luthern Medical Center, and has known respondent professionally since 1976. Dr. Mellino is licensed to practice medicine in Ohio, and has practiced for 13 years. He is a cardiologist, and has known respondent professionally since 1978. It was the opinions of Doctors Mourany, Selvaraj and Mellino that respondent was an excellent surgeon who enjoyed a reputation as a good physician. 5/ At hearing, respondent also presented proof that during medical school he received an award from the Governor of Oklahoma for having performed volunteer work with charitable organizations, and that during his practice in Cleveland he received a ten-year service award from Luthern Medical Center and an award from the United States Senate recognizing his volunteer work for the Cleveland Foundation. Respondent also participated in two projects in Cleveland, one in 1983 and one in 1987, to treat patients without charge. All such activities predated the charges filed by the Ohio Board of Medicine. Since revocation of his Ohio license, respondent attended three courses of continuing medical education programs. The first, "Medical Malpractice and Risk Management--1993," was apparently completed in October 1993; the second, "AIDS and Florida Law--1993," was apparently completed in October 1993; and the third, "Surgical Education and Self-Assessment Program," was apparently completed in November 1993. Other than having attended such courses, respondent's activities since the revocation of his Ohio license do not appear of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license to practice medicine in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September 1994.
