The Issue The issue for determination at the formal hearing was whether disciplinary action should be taken against Respondent's medical license for the reasons stated in the Administrative Complaint, and what, if any, disciplinary action should be taken.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statues. 2/ Respondent has been a physician licensed to practice medicine in the State of Florida at all times material to this proceeding. Respondent's license number is ME 0009033. Respondent was the admitting physician for each of nine charity patients admitted in January, 1984, to Opa Locka Carol City Community Hospital, dba City Hospital ("City Hospital"). The nine charity patients admitted by Respondent have been identified by reference to their initials throughout this proceeding, including this Recommended Order, in an effort to preserve their anonymity. The nine charity- patients were: LT; RR; JS; WW; CH; RW; AS; CC; and MM Dr. Jeffrey Ehrlich is accepted as an expert in internal medicine. Dr. Ehrlich is not accepted as an expert in surgical procedures. Based upon Dr. Ehrlich's own testimony, one of the key differences between an internist and a family practitioner is that "an internist does not in the course of his practice ... perform surgical procedures." 3/ Dr. Jack Kamerman is accepted as an expert in family medicine and medical records review. Dr. Kamerman's expertise includes surgical procedures. Dr. Geoffrey Mann is accepted as an expert in pathology. Dr. Mann is not accepted as an expert in surgical procedures, including anesthesiology and the performance of excision biopsies. Based upon Dr. Mann's own testimony, his experience is based entirely in the field of pathology. 4/ Patient LT Respondent performed an excision biopsy on LT on or about January 10, 1984, for a lump detected in LT's left breast. 5/ After removal, the lump in LT's left breast was examined by the hospital's pathologist, Dr. Geoffrey Mann. Dr. Mann found that the lump contained cancerous tissue which he classified as intraductal carcinoma. The only factual allegations regarding patient LT were set forth in paragraphs 4-10 of the Complaint. Paragraphs 4-10 in relevant part provide that: Respondent failed to use mammography in diagnosing LT's condition prior to surgery; Respondent inappropriately resected a large overlying skin flap; Respondent failed to perform a frozen section biopsy; Respondent failed to submit a biopsy for estrogen receptor testing; and Respondent failed to adequately diagnose LT's condition, namely infiltrating ductal carcinoma. Prior to the excision biopsy, no mammography was performed in diagnosing LT's condition. During the excision biopsy, Respondent resected an overlying skin flap, did not perform a frozen section biopsy, and did not submit a biopsy for estrogen receptor testing. Following the excision biopsy, Respondent referred LT to a general surgeon who performed a modified radical mastectomy on or about January 31, 1984. An estrogen receptor test was performed on the tissue at that time. The uncontroverted evidence established that Respondent did not fail to keep written medical records for LT and did not improperly dispense a legend drug to LT within the meaning of Subsections 458.331(1)(m) and (q), Florida Statutes. One of Petitioner's expert witnesses, Dr. Stein, concluded that no malpractice was committed by Respondent with respect to LT. Petitioner's other expert witness, Dr. Ehrlich, found no other area in which Respondent allegedly committed malpractice with respect to LT except by failing to use mammography in diagnosing LT's condition. 6/ Respondent did not commit malpractice by failing to use mammography in diagnosing LT's condition. City Hospital had no equipment with which to perform mammography. LT was a charity patient. A mammography could only have been obtained at Dade County's public hospital, Jackson Memorial Hospital. The backlog of charity patients waiting for mammography diagnosis at Jackson Memorial Hospital would have caused a substantial delay in LT's treatment. Respondent properly concluded that it was unsafe to delay LT's treatment. Mammography was not indicated once a decision was made to perform an excision biopsy for a supposedly benign mass. The lump in LT's left breast was approximately 2 1/4 inches, by 1 inch, by 3/4 of an inch, and was "supposedly benign." 7/ Petitioner's expert, Dr. Ehrlich, concluded that lesions of the size found in LT are not preoperatively of high suspicion of malignancy. 8/ Prior to consulting Respondent, LT had been examined by another physician who had scheduled LT for an excision biopsy at Jackson Memorial Hospital without also scheduling the patient for a mastectomy. 9/ Mammography was not indicated for LT under the circumstances. An excision biopsy was an appropriate procedure for removal and examination by a pathologist of a presumptively benign mass in LT's left breast. An excision biopsy is a so-called "two-step" procedure. In the first step, the mass of tissue is surgically removed and examined by a pathologist. The patient is allowed to recover and no further surgery is performed at that point. In the event the mass is determined to be cancerous, more definitive surgery is subsequently performed in the form of a radical or modified mastectomy. The two-step procedure is preferred by pathologists because it permits a more definitive diagnosis of whether the excised mass is cancerous. The two-step procedure is used by surgeons more frequently today than when Respondent performed the two-step procedure on LT. When the mass in LT's left breast was determined by the pathologist to be cancerous, Respondent referred LT to a surgeon who performed a modified mastectomy. The pathologist found the tissue removed in the mastectomy to be clear of cancer as were all the lymph nodes submitted. LT was alive and doing well as of the date of the formal hearing. Respondent did not commit malpractice by failing to perform a frozen section biopsy on the mass in LT's left breast. The alternative to an excision biopsy involves a so-called one-step procedure in which a patient is scheduled for a frozen biopsy and mastectomy in one uninterrupted surgical procedure. The patient remains on the operating table while the frozen section is examined by the pathologist. If the frozen section is determined by the pathologist to be cancerous, a mastectomy is performed. A frozen section is not performed in an excision biopsy because the entire mass is removed, stained, and examined under a microscope by the pathologist. Respondent did not commit malpractice by failing to submit a biopsy of the mass in LT's left breast for estrogen receptor testing. Tissue samples are sent for estrogen testing in connection with a modified or radical mastectomy. Estrogen testing is done for the purpose of determining the nature and extent of follow up treatment that may be required after surgery. In LT's case, the surgeon who performed the modified mastectomy submitted tissue samples for estrogen testing. Respondent did not fail to adequately diagnose LT's condition. A diagnosis of LT's condition could be made by Respondent only after an excision biopsy and examination by a pathologist. Respondent did not commit malpractice resecting a skin flap on LT. Evidence that Respondent properly resected a skin flap on LT was uncontroverted by Petitioner. Respondent did not fail to keep written medical records for LT, did not improperly dispense a legend drug to LT, and did not commit malpractice in his care and treatment of LT within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes. Patient RR Respondent admitted RR to City Hospital for four days on or about January 24, 1984. RR was diagnosed as suffering from pneumonitis on the right lung with secondary asthmatic component, polycythemia secondary to dehydration, and chronic hydrocephaly. Respondent ordered two chest x-rays for RR, an ASO screen, a C-reactive protein test, a febrile agglutinin test, stools for culture ova and parasites, occult blood, and nose and throat cultures. RR was treated initially with Mefoxin and subsequently with Mandol intravenously. RR was also rehydrated with intravenous fluids. Upon discharge, Respondent prescribed liquid tetracycline, Alupent, and Valium. RR was discharged with a temperature of approximately 101.8 degrees. The only factual allegations regarding patient RR were set forth in paragraphs 11-18 of the Complaint. Paragraphs 11-18 in releyant part provide that: Respondent ordered inappropriate diagnostic tests during RR's hospitalization; Respondent's final diagnosis of right lower lobe aspiration pneumonia was not substantiated by chest x-ray and was not consistent with findings noted on physical examination; Respondent inappropriately discharged RR with a temperature of 101.8; Respondent inappropriately prescribed elixir of tetracycline and Valium for RR; and Respondent failed to keep written records justifying his treatment of RR. RR had been Respondent's patient since 1962. RR was a hydrocephalic with severe body deformities. He had no measurable intelligence quotient and could not talk or communicate in any manner. RR's spine was poorly developed. His heart was located in the right chest cavity rather than in the midline area of his chest. His lung placement prevented either visualizing RR's right lung through a chest x-ray or obtaining a sputum culture through tracheal entry into RR's right lung. RR's left lung appeared normal upon x-ray. RR also had a severe immune deficiency condition and had received numerous blood transfusions in connection with prior neurosurgery at Jackson Memorial Hospital. Today, RR would have been evaluated for acquired immune deficiency syndrome. The diagnostic tests ordered for RR were not excessive and were appropriate under the circumstances. In the absence of information that could have been obtained from a typical patient through patient communications, a chest x-ray, or a sputum culture, Respondent had to make a clinical diagnosis of RR's condition. Respondent's clinical diagnosis properly included diagnostic tests that were given to exclude other causes for RR's condition. Other causes for RR's condition were likely due to RR's extreme immune deficiency. An ASO screening was ordered to rule out streptococcal infection. A C- reactive protein test was ordered to rule out a viral component as the cause of RR's condition. A febrile agglutinin test, stools for culture ova and parasites, and occult blood were ordered to rule out intestinal infection as a possible cause for RR's condition. These tests are normally used to diagnose illness in a patient whose stool has turned to diarrhea. RR's stool was normally that exhibited by an infant because RR was on a liquid and baby food diet. Intestinal organisms that turn the stool of a normal patient to diarrhea could have been present in RR without producing any change in RR's stool. Nose and throat cultures were ordered to determine the presence of unusual bacteria which RR may have aspirated into his lung. Respondent believed that RR was suffering from aspiration pneumonia. Aspiration pneumonia is caused by swallowing or breathing an infectious substance into the lungs. The cultures revealed the presence of E-Coli and enteral bacteria not normally found in the nose and throat. The fact that Respondent's final diagnosis of right lower lobe aspiration pneumonia was not substantiated by chest x-ray does not constitute malpractice. RR's lung placement prevented a visualization of RR's right lung through a chest x-ray. The x-ray of RR's left lung was normal. The nose and throat cultures substantiated the presence of E-Coli and enteral bacteria in the nose and throat which is consistent with aspiration. Respondent ruled out streptococcal infection, viral components, and intestinal illness through other tests performed on RR. Respondent's final diagnosis of right lower lobe aspiration pneumonia was consistent with findings noted on physical examination. RR's discharge from City Hospital with a temperature of 101.8 was appropriate under the circumstances. Respondent was RR's primary care physician since 1962. RR had been treated by Respondent on several occasions at RR's home. RR was constantly fighting a low grade infection. RR's ana-cephalic condition prevented normal brain function. The chronic low grade infection and absence of normal brain function caused RR's base line temperature to run between 99.5 and 102 degrees. Respondent visited RR at RR's home on the evening of discharge. Respondent also ordered his physician assistant to visit RR the following morning and an associated physician to see RR the evening after RR's discharge. The prescription of elixir of tetracycline for RR upon discharge was appropriate under the circumstances. Tetracycline is a broad spectrum antibiotic. A broad spectrum antibiotic was appropriate for a clinical diagnosis made without the benefit of either a chest x-ray of the right lung or a sputum culture. The tetracycline was prescribed in liquid or syrup form so that it could be easily given by RR's mother who cared for RR 24 hours a day in her home. The prescription of Valium for RR upon discharge was appropriate under the circumstances. RR had been convulsive virtually his entire life. Valium was prescribed for RR's convulsive condition since RR was two months old. Valium is medically recognized as an anti-convulsant. If Respondent had not continued RR's Valium treatment, RR would have experienced convulsive episodes. 11/ The treatment of RR with Mefoxin and then Mandol was appropriate under the circumstances. Both Mefoxin and Mandol are appropriate broad spectrum antibiotics for treating aspiration pneumonia. However, the two medications are not chemically related. RR experienced a reaction to either a chemical substance or the chemical complex in Mefoxin. Mandol was an appropriate substitute. Respondent did not fail to keep written records justifying his treatment of RR. Dr. Kamerman concluded that the medical charts and records, including written patient history, progress notes, evaluations, treatment, and justification for treatment were adequate and within acceptable norms as practiced in 1984 and today. Respondent did not fail to keep written medical records for RR, did not improperly dispense a legend drug to RR, and did not commit malpractice in his care and treatment of RR within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes. Patient JS Patient JS was admitted to City Hospital on or about January 16, 1984, for drug overdose and ethanol intoxication. JS had consumed 10 sleeping pills and 8 beers prior to being admitted to City Hospital. At the time of her admission, JS was under the care of a psychiatrist at the Community Medical Center. No psychiatrists were on the house staff of City Hospital. Respondent did not notify JS's psychiatrist before discharging JS. 12/ However, Respondent did refer JS back to her psychiatrist upon discharge. The only factual allegation of culpability regarding patient JS was set forth in paragraph 19 of the Complaint. Paragraph 19 alleges that Respondent failed to notify JS's psychiatrist of JS's hospitalization. Respondent's failure to notify JS's psychiatrist of her hospitalization was not malpractice. Petitioner's experts disagreed on whether Respondent's failure to notify JS's psychiatrist was malpractice. Dr. Ehrlich concluded that Respondent's treatment of JS fell "far below community standards", in part, because of Respondent's failure to notify JS's expert. Dr. Stein, however, had no problem with Respondent's failure to notify JS's psychiatrist. Respondent's expert concluded that there was no malpractice committed by Respondent in his treatment of JS. 13/ JS had consulted her psychiatrist earlier on the same day that JS was admitted to City Hospital. JS obtained 10 Noctec capsules from her psychiatrist which JS subsequently took with 8 beers before she was admitted to City Hospital. JS met all of the criteria for discharge from City Hospital. She was alert, lucid, and anxious to return to work. She was instructed to see her psychiatrist when she was discharged. Respondent's failure to perform a second chest x-ray on JS and to prescribe antibiotics was not malpractice. Respondent's initial stethoscope examination of JS detected rales and bronchi (crackling sounds) in her lungs. A chest x-ray was ordered for JS, but the x-ray report was not returned until after JS was discharged. Other laboratory tests and clinical findings also gave no indication of lung infection. JS was not coughing and did not complain of shortness of breath. Her temperature, pulse, blood pressure, and respiration were within normal ranges except for the rales and bronchi. JS was discharged from City Hospital with instructions to return for a follow-up examination. The x-ray report was not returned until after JS was discharged from City Hospital. The x-ray report made no definitive finding, but indicated the presence of an infiltrate in the lower right lung most likely due to aspiration pneumonia. The x-ray report suggested clinical correlation for symptoms of pneumonia. Respondent reviewed the x-ray report, and telephoned JS to make sure she kept her appointment for her follow-up examination. At the follow-up examination, Respondent examined JS and found no clinical correlation for pneumonia. An additional x-ray and antibiotics for JS would have constituted over-utilization. Respondent did not fail to keep written medical records for JS, did not improperly dispense a legend drug to JS, and did not commit malpractice in his care and treatment of JS within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes. Patient WW WW was admitted to City Hospital on or about January 3, 1984, with hot and swollen knees. WW's right ankle was also swollen. He was unable to stand and fell backwards when he attempted to stand. WW had a history of gout, but gout typically does not show up as an acute inflammation in multiple joints that prevents a patient from standing. 14/ Respondent called in Dr. Edward Spievack for a consultation. Dr. Spievack found an effusion of WW's left knee, limited range of motion, and patellar-femoral compression syndrome. WW's right knee had no effusion, good range of motion, and mild patellar-femoral grating or arthritis. WW's left ankle had full range of motion and no fluctuation or tenderness in the deltoid ligament. Dr. Spievack initially recommended a splint for WW's left knee and bed rest. When WW's condition did not improve, Dr. Spievack recommended diagnostic arthroscopy of WW's left knee which was performed under local anesthetic on January 6, 1984. Based upon the diagnostic arthroscopy, Dr. Spievack found degenerative arthritis and a large erosion of the upper portion of WW's knee. WW's painful knee was not caused solely by gout. The only factual allegations of culpability regarding patient WW were set forth in paragraphs 21 and 22 of the Complaint. Paragraph 21 alleged that Respondent failed to institute appropriate management of WW's condition. Paragraph 22 alleged that Respondent cleared WW for arthroscopy despite an increase in WW's serum blood urea nitrogen ("BUN") from 28 to 59 and a poor state of hydration. WW was not in a poor state of hydration. WW's BUN level had risen from a normal of 28 to 59 prior to the diagnostic arthroscopy. However, BUN level is not the test used to determine whether a patient is in a poor state of hydration. BUN level measures a patient's kidney function. A patient's state of hydration is measured by electrolytes such as serum potassium and serum sodium. Dehydration may also be indicated by a complete blood count in which the water component is decreased and blood cells are hemoconcentrated. Urine analysis, hematocrit, total protein, and physical findings also measure a patient's state of hydration. The results of the tests performed on WW and the physical findings upon examination of WW did not indicate that WW was dehydrated prior to surgery. For the same reasons, it was not malpractice for Respondent to clear WW for diagnostic arthroscopy with a BUN level of 59. Respondent instituted appropriate management of WW's condition. Respondent treated WW for gout with appropriate medications and called in Dr. Spievack, an orthopedic surgeon, for a consultation. Dr. Spievack recommended diagnostic arthroscopy under local anesthetic. The condition of WW's knee was potentially more detrimental to WW's health than WW's elevated BUN, and the decision was made to proceed with the diagnostic arthroscopy. Petitioner's expert, Dr. Stein, concluded that diagnostic arthroscopy was appropriate for WW under the circumstances. Respondent did not improperly dispense a legend drug to WW. Respondent treated WW for gout with appropriate medications, including Dolobid, prednisone, and Zyloprim. 15/ Petitioner's expert, Dr. Ehrlich, concluded that WW received full treatment for his gout. Respondent did not fail to keep written medical records for WW, did not improperly dispense a legend drug to WW, and did not commit malpractice in his care and treatment of WW within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes. Patient CH Respondent admitted CH to City Hospital at 7:00 p.m. on or about January 24, 1984. Upon physical examination, Respondent found that CH was suffering from an ischiorectal abscess. An ischiorectal abscess is an inflammation in a compartment alongside the rectum which spreads deeper into the tissue rather than laterally. Since there is relatively little space for expansion of the inflamed tissue, pain secondary to an ischiorectal abscess can be severe. CH was in extreme pain. Respondent ordered a narcotic pain killer and sleeping pill to alleviate CH's pain, and scheduled CH for an incision and drainage ("I and D") the next day. CH's condition was not an emergency, and Respondent decided not to call the operating room staff back to the hospital that night. However, an untreated ischiorectal abscess can perforate back into the intestines causing a more serious problem. The following day, therefore, Respondent performed an I and D under general anesthesia. During the I and D, Respondent saucerized and marsupialized the abscess. 16/ The only factual allegations regarding CH were set forth in paragraphs 23-28 of the Complaint. Paragraphs 23-28 in relevant part provide that: Respondent failed to adequately perform an admission history and physical on CH; Respondent inappropriately performed an incision and drainage on CH using general anesthesia; and Respondent inappropriately or excessively prescribed a narcotic for CH upon discharge when Respondent knew or should have known that CH was addicted or dependent upon controlled substances. Respondent did not fail to adequately perform an admission history and physical on CH. The circulating nurse in the operating room wrote in her report that she observed vein tracks on one of CH's arms. The circulating nurse never told Respondent of her observation. Other hospital personnel drew blood from CH and did not note in the hospital record any observation of vein tracks. The anesthesiologist had occasion to observe CH during her admission and did not mention in the hospital records any observation of vein tracks. Respondent examined CH's arms during the physical examination and did not observe vein tracks on either of CH's arms. During her physical examination, CH was also asked if she had any drug problems and CH disclaimed any drug problem. Respondent did not inappropriately or excessively prescribe a narcotic for CH upon discharge when Respondent knew or should have known that CH was addicted or dependent upon controlled substances. Drs. Stein, Ehrlich, and Kamerman all concluded that Respondent properly prescribed Percodan-Demi at the time of CH's discharge from City Hospital. There was no reason for Respondent to refer back to the circulating nurse's report for a stable patient that was ready for discharge. Petitioner's expert, Dr. Stein, also concluded that failure to see the circulating nurse's note and the failure to observe vein tracks, if any, was not malpractice. The type and quantity of narcotic prescribed for CH upon discharge was appropriate. Respondent prescribed 40 tablets of Percodan-Demi for CH upon her discharge. A narcotic such as Percodan-Demi was indicated considering the severity of pain CH was experiencing postoperatively. Percodan-Demi is less addictive than any alternative narcotic that would have been indicated under the circumstances, including Dilaudid, morphine, or Demerol. Forty tablets of Percodan-Demi was not excessive. Petitioner's expert, Dr. Ehrlich, concluded that the number of tablets prescribed was only slightly more than was necessary and was a minor problem. Dr. Ehrlich also concluded that an addict may have required a stronger dose of Percodan-Demi than was prescribed in order to experience relief from postoperative pain. Respondent did not inappropriately use general anesthesia when he performed the I and D on CH. Dr. Kamerman concluded that performing the I and D while CH was anesthetized with general anesthesia was appropriate under the circumstances. Respondent did not fail to keep written medical records for CH, did not improperly dispense a legend drug to CH, and did not commit malpractice in his care and treatment of CH within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes. Patient RW Respondent admitted RW to the intensive care unit of City Hospital on or about January 4, 1984. Upon physical examination, Respondent found that RW was suffering from a stroke and high blood pressure of 230/110. Respondent ordered various diagnostic tests for RW including a skull x-ray, cervical spine x-ray, a chest x-ray, a brain scan, a bilateral carotid ultrasound, and an intravenous pyelogram. However, Respondent did not order a computerized axial tomographic scan ("CAT scan") for RW. While RW was hospitalized at City Hospital, Respondent treated RW with various drugs to control RW's hypertension. RW's blood pressure eventually dropped to 170/100, and RW was discharged on or about January 10, 1984. The only factual allegations regarding RW were set-forth in paragraphs 30-36 of the Complaint. Paragraphs 30-36 in relevant part provide that: Respondent ordered inappropriate and/or unnecessary diagnostic tests including an intravenous pyelogram and tomograms of the sella turcica; Respondent failed to order a CAT scan for RW; Respondent failed to provide physical therapy evaluation or physical therapy for RW's hemiparesis while RW was hospitalized and after she was discharged; and Respondent failed to adequately treat RW's hypertension and inappropriately discharged RW with a blood pressure of 170/100. Respondent did not order inappropriate or unnecessary diagnostic tests for RW. The uncontroverted evidence established that Respondent did not order tomograms of the sella turcica. The remaining diagnostic tests ordered for RW were appropriate under the circumstances and consistent with hospital policy for patients who have suffered a cerebrovascular accident ("CVA"). Petitioner's expert, Dr. Stein, concluded that all of the diagnostic tests ordered for RW, including the intravenous pyelogram, were appropriate under the circumstances. The fact that Respondent did not order a CAT scan for RW was appropriate under the circumstances. Equipment necessary to perform a CAT scan was not available at City Hospital. The primary purpose for performing a CAT scan on RW would have been to determine if RW was suffering from intracerebral hemorrhaging. However, there were no clinical findings consistent with intracerebral hemorrhaging. Since there clinical picture of intracerebral hemorrhaging or that RW's CVA was extending, it would not have been appropriate to transfer RW to an institution with the equipment necessary to perform a CAT scan on RW. Petitioner's expert, Dr. Stein, concluded that the failure to order a CAT scan was appropriate under the circumstances. The uncontroverted evidence established that Respondent ordered physical therapy for RW while she was hospitalized and upon discharge. Physical therapy was properly performed on RW by a physical therapist pursuant to Respondent's orders while RW was hospitalized. Upon discharge, Respondent ordered physical therapy through a home health care agency which was performed over the next six months. Respondent adequately treated RW for hypertension during RW's hospitalization at City Hospital. Respondent inadvertently made a written notation in the hospital discharge summary that RW had been diagnosed as having a left cerebrovascular accident ("LCVA") instead of a right cerebrovascular accident ("RCVA"). The inadvertent written notation in the discharge summary had no significance either clinically or in RW's treatment. Upon physical examination, Respondent properly recognized that RW had weakness and affliction to the left side of her body indicative of an RCVA. Notations other than the final diagnosis in the discharge summary evidenced a correct diagnosis and treatment by Respondent. 17/ Treatment of RW was specifically directed toward deficits of the left side of RW's body. Petitioner's expert, Dr. Stein, concluded that Respondent's treatment of RW was satisfactory. Respondent treated RW's hypertension with various drugs. RW was admitted with a blood pressure of 230/110, and discharged with a blood pressure of 170/110. The medications prescribed by Respondent were acceptable and did not in any way place RW in a clinical situation of deterioration. Petitioner's expert, Dr. Stein, concluded that Respondent's treatment of RW was satisfactory. The discharge of RW from City Hospital with a blood pressure of 170/100 was appropriate under the circumstances. RW was totally stabile upon discharge. Her clinical progress in getting her blood pressure down had been good. Appropriate medications were prescribed by Respondent for RW to take at home. Respondent followed up on RW's condition after discharge and arranged for follow up care from a home health care agency. RW's blood pressure met the discharge criteria f&r patients hospitalized under Medicaid/Medicare auspices. Petitioner's expert, Dr. Stein, concluded that RW's blood pressure was acceptable for discharge. Respondent did not fail to keep written medical records for RW, did not improperly dispense a legend drug to RW, and did not commit malpractice in his care and treatment of RW within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes. Patient AS Respondent admitted AS to City Hospital for two days on or about January 10, 1984. AS was suffering from chest pain, bronchitis, uncontrolled hypertension, and blood pressure of 245/130. Respondent's initial diagnosis of possible congestive heart failure was not confirmed by laboratory tests, an EKG, and chest x-ray. AS's chest pain decreased as her blood pressure decreased. Respondent attributed AS's chest pain to high blood pressure rather than cardiac problems, but made no final diagnosis of the cause of AS's chest pain. While AS was hospitalized at City Hospital, Respondent treated AS with various drugs to control AS's hypertension, including oral Inderide and Trinalin. AS's blood pressure eventually dropped to 160/80, and AS was discharged on or about January 12, 1984. The only factual allegations regarding AS were set forth in paragraphs 38-47 of the Complaint. Paragraphs 38-47 in relevant part provide that: Respondent inappropriately and/or excessively prescribed oral Inderide for AS which may significantly exacerbate congestive heart failure in patients predisposed to that condition; Respondent inappropriately and/or excessively prescribed Trinalin as an antihistamine/decongestant in the treatment of possible bronchitis when Trinalin is not indicated for treatment of bronchitis and may significantly exacerbate hypertension in patients with elevated blood pressure; and Respondent discharged AS without having made an adequate diagnosis to explain AS's chest pain. Respondent did not inappropriately or excessively prescribe oral Inderide for AS. Inderide was an acceptable drug for treating hypertension in AS. It was administered in a hospital setting where possible side effects could be monitored on a 24 hour basis. Petitioner's expert, Dr. Stein, concluded that there was no inappropriate prescription of drugs for AS. Respondent did not inappropriately or excessively prescribe Trinalin as a decongestant for AS. Trinalin was an acceptable drug for treating upper respiratory symptoms that may have complicated AS's bronchitis. Trinalin was prescribed by Respondent in addition to potassium iodide solution. The potassium iodide solution was the primary medication that Respondent properly prescribed to treat AS's bronchitis. Trinalin and its possible side effects did not in any way deter from, endanger, or worsen AS's condition. Petitioner's expert, Dr. Stein, concluded that there was no inappropriate prescription of drugs for AS. Dr. Stein further concluded that Respondent's control of AS's hypertension was phenomenal in view of the fact that AS's blood pressure dropped from 245/130 to 160/80 in two days The absence of a final diagnosis of the cause of AS's chest pain was not malpractice under the circumstances. Petitioner's expert, Dr. Stein, concluded that Respondent's record keeping was satisfactory with respect to AS. Respondent did not fail to keep written medical records for AS, did not improperly dispense a legend drug to AS, and did not commit malpractice in his care and treatment of AS within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes. Patient CC Patient CC was found at his home by the fire rescue squad on or about January 9, 1984. CC was in clinical shock with a blood pressure of 80/40 and was admitted to City Hospital. The fire rescue squad was unable to start an intravenous line due to CC's low blood pressure. Upon admission to City Hospital, Respondent started intravenous fluids at the rate of 40 cc's per hour. CC's skin was cool and dry. His hemoglobin and hematocrit were normal. CC was not dehydrated. The initial diagnosis noted by Respondent on the admission sheet and the final diagnosis upon CC's discharge on January 11, 1984, was a severe hypotensive episode secondary to medications. The only factual allegations regarding CC were set forth in paragraphs 49-52 of the Complaint. Paragraphs 49-52 in relevant part provide that: Respondent neglected to provide adequate fluid therapy to CC; Respondent failed to perform adequate diagnostic investigation to determine the etiology of CC's hypotensive episode; and Respondent failed to maintain hospital records containing an adequate explanation of the etiology for CC's admitting condition. Respondent did not neglect to provide adequate fluid therapy for CC. The intravenous line was started by Respondent to keep a vein open in order to administer appropriate medication on an emergency basis if necessary. CC was not dehydrated and did not need aggressive fluid therapy or aggressive re- balancing of electrolyte imbalance. CC's skin was cool and dry. His hemoglobin and hematocrit were normal. Petitioner's expert, Dr. Stein, concluded that Respondent's care of CC was within acceptable standards. Respondent did not fail to perform adequate diagnostic investigation to determine the etiology of CC's hypotensive episode. The etiology of CC's hypotensive episode secondary to an allergic medication response was extremely clear from the clinical presentation, vital signs, and a history of recent multiple medication from another physician. Petitioner's expert, Dr. Stein, concluded that Respondent's initial diagnosis was a fair and appropriate working diagnosis. Respondent did not fail to maintain hospital records containing an adequate explanation of the etiology for CC's admitting condition. Respondent did not fail to keep written medical records for CC, did not improperly dispense a legend drug to CC, and did not commit malpractice in his care and treatment of CC within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes. Patient MM Patient MM was admitted to City Hospital on or about January 10, 1984, suffering from a severe asthmatic condition known medically as status asthmaticus. MM was treated with aminophylline and theophylline, Tagamet, Tigan, Decadron, prednisone, and adrenocorticotropic hormone ("ACTH"). MM responded to Respondent's treatment, and upon discharge, Respondent prescribed Alupent for maintenance therapy for MM's asthmatic condition. The only factual allegations regarding MM were set forth in paragraphs 52-62 of the Complaint. Paragraphs 52-62 in relevant part provide that: Respondent inappropriately and/or excessively prescribed bronchodilators, including the simultaneous use of oral theophylline and intravenous aminophylline, causing MM to suffer ill effects such as abdominal pain and vomiting; Respondent inappropriately and/or excessively prescribed a combination of intramuscular Decadron, intramuscular ACTH, and oral prednisone; and Respondent failed to provide adequate maintenance therapy to treat NM's asthmatic condition. Respondent did not inappropriately and/or excessively prescribe bronchodilators, including the simultaneous use of oral theophylline and intravenous aminophylline, causing NM to suffer ill effects such as abdominal pain and vomiting. The separate dosage for the oral theophylline and intravenous aminophylline administered to MM was appropriate given the clinical severity of the case and MM's progress as indicated in the progress notes. Status asthmaticus is an acute pulmonary emergency which can last a period of hours or days depending on the aggressiveness with which treatment regimen is provided by the physician. The simultaneous use of aminophylline intravenously and theophylline orally in the treatment of MM was appropriate under the circumstances. Intravenous aminophylline was properly administered to treat the emergency nature of MM's condition. However, theophylline tablets were appropriate on an outpatient basis. MM's intravenous dosage of aminophylline was gradually tapered while the dosage of theophylline tablets was increased in a manner that maintains constant blood levels of medication. A constant blood level of medication is necessary to preclude another status asthmaticus emergency. Intravenous aminophylline can cause abdominal pains and vomiting when administered properly and in appropriate doses. The same is true of oral theophylline. Abdominal pain and vomiting are recognized side effects of either medication. Respondent properly prescribed Tagamet and Tigan in appropriate doses for MM's abdominal pain and vomiting. Respondent did not inappropriately or excessively prescribe a combination of intramuscular Decadron, intramuscular ACTH, and oral prednisone while treating MM intravenously with aminophylline. The treatment of patients in severe pulmonary situations, including status asthmaticus, by simultaneously administering the foregoing medications has been used throughout the world for the last 40 years. While this treatment is complicated because it requires the simultaneous management of medications, clinical improvement from such treatment is often quite rapid. Respondent began administering the prednisone to MM while simultaneously withdrawing the Decadron in accordance with standard practice. Respondent did not fail to provide adequate maintenance therapy to treat MM's asthmatic condition. Respondent properly prescribed Alupent for MM upon discharge. Alupent is probably the most prescribed medication for chronic status asthmaticus in a stable clinical home setting. The dosage prescribed for MM was appropriate for maintenance in a home setting. MM was instructed to see Respondent within 24 to 48 hours after discharge for a follow-up evaluation. Respondent did not fail to keep written medical records for MM, did not improperly dispense a legend drug to MM, and did not commit malpractice in his care and treatment of MM within the meaning of Subsections 458.331(1)(m), (q), and (t), Florida Statutes. All Nine Patients Considered As A whole Petitioner's expert, Dr. Stein, concluded that Respondent's record keeping, medication, and treatment of the nine patients at issue was within acceptable standards for each patient individually. However, Dr. Stein further concluded that Respondent's record keeping, medication, and treatment of all nine patients considered as a whole fell below acceptable standards. In effect, Dr. Stein concluded that the whole of Respondent's record keeping, medication, and treatment of all nine patients was less than the sum of its individual parts. 18/ Dr. Stein's conclusion is inherently improbable and not credible. Respondent did not fail to keep written medical records justifying his treatment of any one patient individually or for all nine patients considered as a whole. The medical charts and records, including written patient histories, progress notes, evaluations, treatment, and justifications for treatment were adequate and within acceptable norms as practiced in 1984 and today for all nine patients considered as a whole. Respondent did not dispense a legend drug other than in the course of Respondent's professional practice for any one patient individually or for all nine patients considered as a whole. Respondent did not commit malpractice in his care and treatment of any one patient individually or in his care and treatment of all nine patients considered as a whole. Respondent practiced medicine in his care and treatment of each patient and in his care and treatment of all nine patients considered as a whole with that level of skill, care, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation enter a Final Order finding the Respondent not guilty of the factual allegations in the Complaint and concluding that Respondent did not violate Subsections 458.331(1)(m), (q), or (t), Florida Statutes. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11th day of May, 1990. DANIEL MANRY 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 11th day of May, 1990.
Findings Of Fact On July 20, 1978, Mary I. Gallagher, the seven to three supervisor at Tampa General Hospital "was called up to 3 South in regard to Mrs. Seaton's actions." (T.6) There she found respondent with a patient. Respondent was confused and smelt of alcohol; her speech was garbled. Mrs. Gallagher did not believe respondent capable of performing her normal duties and sent her home. On August 4, 1977, respondent reported to work at Tampa General Hospital for the eleven to seven shift. As oncoming nurse, she took responsibility for the narcotics from the three to eleven nurse who had custody of the drugs. In doing this, she accepted a count of 25 ampules of morphine sulphate, even though the three to eleven nurse only had 24 ampules of this controlled substance. On September 23, 1977, "Mrs. Johnson, one of the three to eleven supervisors, notified [Joyce Millis, Assistant Director of Nursing at Tampa General] in writing that she had been called to 4 South by one of the staff nurses, Mrs. Sellers, who [reportedly] noticed the odor of alcohol on Mrs. Seaton's breath." (T.14) See petitioner's exhibit No. 2. On October 2, 1977, respondent administered Tuinal to a patient, but signed out for Nembutal rather than for Tuinal. This made the narcotic count incorrect. On October 3, 1977, respondent administered 500 milligrams of Aminophyline intravenously to a patient. A 500 milligram dose of Aminophyline is supposed to be administered slowly; it should take an hour or more. Respondent said she spent only 45 minutes administering the drug on that occasion. On October 27, 1977, according to a contemporaneous report of the incident, respondent told another nurse, Miss Findley, that a patient was "going to code," i.e., had suffered cardiac arrest, and that her blood pressure was 68/30. Miss Findley looked in on the patient, who did not appear to her to be in acute distress, and telephoned Dr. Hampton. When Dr. Hampton arrived, he found the patient's blood pressure to be 188/80. Later, Dr. Hampton telephoned; respondent answered the telephone and said to Miss Findley, "Dr. Hildehand is on the phone . . ." There was a patient named Hildehand on the floor at the time. See petitioner's exhibit No. 3. Physicians order that drugs be administered or that diagnostic tests be done on patients at Tampa General Hospital by specifying the procedure prescribed in writing in a particular place on the patients' charts. A nurse has the duty of examining each patient's chart and transcribing the physician's orders, if any, to a central index. After examining a chart for this purpose, the nurse signs the doctor's orders sheet, even if no orders have been given. In dispensing medications and otherwise carrying out physicians' orders, the nursing staff works from the central index, ordinarily without consulting patients' charts. A Dr. Tyner ordered that an antibiotic, Keflin, be administered to a patient at Tampa General. Although respondent signed off on the patient's chart, she failed to transcribe this order to the central index; as a result, the drug was not administered to the patient on respondent's shift, contrary to Dr. Tyner's order. On another occasion, a doctor ordered K-Lor for a patient but respondent entered K-Lyte on the central index. In anticipation of an operation, a physician prescribed Dalmane for a patient at Tampa General, and ordered that it be given at ten in the morning. Respondent administered this drug at ten the night before, spurning the patient's suggestion that she check the doctor's orders. On another occasion, respondent ordered a liver scan for a 96 year old patient in Tampa General with gastrointestinal bleeding. Curious, another nurse checked the patient's chart and found that no liver scan had been ordered. Still another time, respondent transcribed a physician's orders from a patient's chart to the central index and signed the patient's chart; but failed to transcribe an order for hemoglobin and hematocrit tests every twelve hours. In January of 1978, Ronald C. Baker, R.N., patient care coordinator at Centro Espanol Memorial Hospital, smelt alcohol on respondent's breath while she was on duty as a nurse in the emergency room. On February 13, 1978, respondent's supervisor, a Mrs. Phillips, observed respondent moving carefully and stiltedly, having trouble with her equilibrium. Mrs. Phillips smelt alcohol on respondent's breath and sent her home from El Centro, because she felt respondent was unable to perform her duties.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for two years. DONE and ENTERED this 20th day of April, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Mrs. Nancy A. Seaton 70 Davis Boulevard Apartment 12 Tampa, Florida 33606 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Nancy Ann Middendorf Seaton As a Registered Nurse 70 Davis Boulevard CASE NO. 78-2316 Apt. No. 12 LICENSE NUMBER 91995-2 Tampa, Florida 33614 /
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration, (“the Agency”) regarding certificate of need ("CON") application number 10158 filed by North Florida Regional Medical Center, Inc. (“NFRMC”). 1. NFRMC filed a CON application which sought the establishment of a 24-bed comprehensive medical rehabilitation unit within its hospital located in Alachua County, Florida, Service District 3. The Agency denied NFRMC’s CON application 10158. ; 1 Filed November 4, 2013 11:11 AM Division of Administrative Hearings 2. NFRMC filed a petition for formal hearing challenging the Agency’s denial of CON application number 10158. 3. Shands Teaching Hospital and Clinics, Inc. d/b/a Shands Rehab Hospital, filed a petition for formal hearing in support of the Agency’s denial of NFRMC’s CON application 10158. 4. NFERMC has since voluntarily dismissed its petition for formal hearing. 5. Based upon the voluntary dismissal, the Division of Administrative Hearings entered an Order Closing Files and Relinquishing Jurisdiction in the above styled matter. IT IS THEREFORE ORDERED: 6. The denial of NFRMC’s CON application 10158 is UPHELD. ORDERED in Tallahassee, Florida on this DD day of Octet. 2013. cbc Peele Elizabeth Dudek, Secretary Agency for Health Care Administration _NOTICE OF RIGHT TO JUDICIAL REVIEW A party who is adversely affected by this final order is entitled to judicial review. which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fee prescribed by law with the district court of appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this f "__ day of Nove~ hes _, 2013. Richard J. Shoop, Agency Cler| Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Stephen A. Ecenia, Esquire R. David Prescott, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, Florida 32302 Counsel for NFRMC (U.S. Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration {Electronic Mail), F. Philip Blank, Esquire Blank & Meehan, P.A. 204 South Monroe Strect Tallahassee, Florida 32301 Counsel for Shands Rehab Hospital (U.S. Mail) we
The Issue Whether HRS should license 23 comprehensive rehabilitation beds to TMRMC, at the same time reducing general acute care beds licensed at TMRMC by 23? Whether, prior to midnight June 30, 1983, TMRMC had 23 comprehensive rehabilitation beds in service?
Findings Of Fact There are "several buildings on the campus" (T. 21) at TMRMC, including the Extended Care Building on Hodges Drive which houses 53 hospital beds, and another building that houses 60 psychiatric hospital beds as well as 60 nursing home beds. Elsewhere there are an additional 598 hospital beds at TMRMC. TMRMC was licensed at 771 beds (including 60 nursing home beds) on February 3, 1983, when TMRMC's chief operating officer, J. Craig Honaman, wrote Mr. Konrad in HRS' Office of Health Planning and Development as follows: We would like to inform you of an alteration in our acute bed utilization and request your observations relating to the need for a Certificate of Need application to reassign the title of the bed function. Historically, Tallahassee Memorial Regional Medical Center has provided rehabilitative services to inpatients of an acute nature, as well as through a progressive care approach in a skilled facility.... Therefore, we intend to reassign the 53 beds currently utilized in the skilled nursing facility to a medical rehabilitation unit. The change would not affect our license bed capacity. Joint Exhibit No. 6. In reply, Mr. Porter wrote Mr. Honaman a letter dated February 17, 1983, stating: In that you have been providing rehabilitative services to inpatients on a continuous basis, and there will be no increase in licensed bed capacity, this reassignment of beds is not reviewable according to Chapter 10-5, Florida Administrative Cede, the Certificate of Need review process Petitioner's Exhibit No. 5. Effective June 8, 1983, Rule 10-5.11(24), Florida Administrative Code, set out a bed need methodology for comprehensive medical rehabilitation inpatient services. Effective July 1, 1983, Section 395.003(4), Florida Statutes, was amended to provide: The number of beds for the rehabilitation or psychiatric service category for which the department has adopted by rule a specialty-bed-need methodology under $381.494 shall be specified on the face of the hospital license. Before July 1, 1983, general acute care hospitals like TMRMC had been free to allocate beds among various specialty services on a day to day basis. Until September 1, 1984, HRS issued and renewed TMRMC's license authorizing it to operate a hospital without specifying the number of beds to be dedicated to specialty services. In the fall of 1983, TMRMC corresponded with Blue Cross, the medicare intermediary for Florida, requesting a distinct part provider number for rehabilitation services, and enclosing Mr. Porter's February 17, 1983, letter to Mr. Honaman. Blue Cross forwarded these materials to the Health Care Finance Administration (HCFA) in Atlanta, who then contacted HRS' Office of Licensure and Certification in Jacksonville for verification. The Office of Licensure and Certification advised HCFA that their records did not reflect rehabilitation beds licensed to TMRMC. EXPANDING SERVICES When Frances Elise Brown, now TMRMC's Technical Director of Rehabilitation, came to work at TMRMC in 1971, as a physical therapist, TMRMC did not offer speech therapy, occupational therapy or recreational therapy, and did not own what became the Extended Care Building. After TMRMC acquired the Extended Care Building, "there were some physical therapy services provided in that facility." (T. 107) Thereafter, the intensity of physical therapy services increased campus-wide, and in 1978 occupational therapy was "initiated both at Extended Care and in the hospital at the same time." Id. In 1980, TMRMC "initiated speech therapy, which again was delivered both in the hospital and Extended Care at the same time." (T. 107) In 1981, TMRMC acquired an existing outpatient facility that offered physical, occupational and speech therapy. TMRMC "provide[s] services indifferent areas, acute care, long-term, nursing home, home health, in/outpatient services." (T. 102) Recreational therapy and occupational therapy are also available at TMRMC; and TMRMC enjoys a good working relationship with Williams Orthotics a firm which fits braces and prostheses for patients who need them. Respiration therapy is available as are psychological counseling and the services of a social worker. Nursing services are available, although nobody specifically trained in rehabilitation nursing is on staff. A psychiatrist and an audiologist serve as consultants, but no physiatrist consults. No substantial changes in rehabilitation services being provided at Extended Care have occurred during the last three years or so, although it might have been during that period that a speech pathologist began spending more time (ten hours a week) at the Extended Care Building. (T. 119) Neither before or after Mr. Honaman's letter of February 3, 1983, announcing "an alteration in . . . acute [sick bed utilization," Joint Exhibit No. 6, and an "inten[t] to reassign the 53 [sic] beds," Joint Exhibit No. 6, did TMRMC "change anything about those beds." (T 69) For business reasons, TMRMC was waiting for a distinct part provider number for rehabilitation before proceeding. At one time the thought was to offer comprehensive rehabilitation services in a joint venture with Rehab Hospital Services Corporation, but negotiations collapsed in May of 1983. EXTENDED CARE The Extended Care Building has 23 beds "to the right . . . as one goes in" (T. 66) and 30 beds to the left, but there are no "delineated beds" (T. 116) reserved exclusively for patients in need of rehabilitation. The Extended Care Building houses medically stable patients who need skilled nursing services, whether or not they are suitable candidates for rehabilitation. Administratively distinct from TMRMC's acute care facility, the Extended Care Building as a whole has a part-time medical director and a distinct provider number, although TMRMC never received the provider number it sought for rehabilitation beds only. Patients admitted to the Extended Care Building from acute care facilities at TMRMC must first be discharged as acute care patients. They are admitted into the Extended Care Building "according to the screening criteria for extended care." (T. 116) There are no separate rehabilitation admission criteria. The average stay for patients in the Extended Care Building is approximately one month. On an application for hospital license, TMRMC listed the 53 beds in the Extended Care Building as extended care beds on June 22, 1977. On an application for hospital license dated September 7, 1977, TMRMC listed the 43 beds in the Extended Care Building under the category "SNF (D.P.)," meaning skilled nursing facility, distinct part. TMRMC reported the beds in this category through April 23, 1981, on its renewal applications for hospital licensure. On March 17, 1983, for the first time in a licensure application as far as the evidence shows, TMRMC listed the 53 beds in the Extended Care Building as "SNF/Rehab," meaning skilled nursing facility/rehabilitation. Joint Exhibit No. 1. INVENTORY TAKE A joint communication from the director of HRS' Office of Licensure and Certification and its deputy assistant secretary for health planning and development dated December 8, 1983, advised hospital administrators that HRS had "arrived at a count of the number of beds in each category for each hospital in Florida," went on to state: We are asking that each hospital review and verify or comment on these counts prior to final agency action. Petitioner's Exhibit No. 10. In response, TMRMC's Mr. Honaman wrote HRS' Jackie Jefferson on December 20, 1983, reporting "[v]arious errors." Petitioner's Exhibit No. 11. An attachment to Mr. Honaman's letter of December 20, 1983, reported 23 "Comprehensive Rehabilitation" beds at TMRMC. HRS caused notice to be published in the Florida Administrative Weekly on February 17, 1984, Vol. 10, No. 7 of its count of licensed beds in general hospitals by bed type by district, and reported no comprehensive rehabilitation beds at TMRMC. Petitioner's Exhibit No. 12. Mr. Honaman wrote Mr. Rond, administrator of HRS' Comprehensive Health Planning, stating that the "listing is incorrect, as previously reported to you . . . ." Petitioner's Exhibit No. After exchanging letters on the matter with John Adams, a licensure supervisor for HRS, Petitioner's Exhibit Nos. 15 and 16, TMRMC requested a formal administrative hearing. Petitioner's Exhibit No. 14. HRS memoranda written on July 26, 1984, reflected HRS' view that TMRMC had no comprehensive rehabilitation beds, Petitioner's Exhibit No. 8, and that recognition of such beds hinged on their being "CARF certified." Petitioner's Exhibit No. 9. CARF STANDARDS The Commission on Accreditation of Rehabilitation Facilities (CARF) publishes accreditation criteria and standards for facilities serving people with disabilities. The Extended Care Building meets the safety requirements for physical facilities laid down by CARF (T. 122) and most of the services that CARF requires be offered TMRMC does offer, but TMRMC's Ms. Brown conceded (outside the hearing) that comprehensive rehabilitation is not available at TMRMC. TMRMC's M. T. Mustian was also quoted at hearing as acknowledging that TMRMC does not have a comprehensive rehabilitation program within the meaning of Rule 10-5.11(24), Florida Administrative Code, which references the CARF standards. Implicit throughout the CARF standards is the concept of a distinct rehabilitation unit, and there are explicit references to, e.g., "staff organization under the chief executive." Petitioner's Exhibit No. 27, p. 11. "Designated staff should be assigned to the rehabilitation program. Id., p. 39. The standards require that a rehabilitation facility "have clearly written criteria for admission." Petitioner's Exhibit No. 27, p. 27. Beds should be placed in "a designated area which . . . is staffed . . . for the specific purpose of providing a rehabilitation program." Id., p. 39. With respect to medical staff, the standards provide that the "physician responsible for the person's rehabilitation program should possess training and/or experience in rehabilitation" and that the "physician should attend and participate actively in conferences concerning those served." Id., at 39. "Rehabilitation nursing" is to be furnished in addition to basic medical nursing. Id. No staff are assigned exclusively to the putative 23-bed unit, nor are records kept separately for rehabilitation beds. TMRMC does not employ a rehabilitation nurse anywhere. There is no medical director of the comprehensive rehabilitation program TMRMC claims to have. The admitting physician sets the course of treatment and decides about discharge. Admitting physicians do not ordinarily attend conferences scheduled with the other therapists. In comprehensive rehabilitation units, physical therapists or other specialists typically spend five hours or more daily with a single patient as opposed to the 30 to 45 minutes patients at TMRMC are likely to receive from any one therapist. There are no cancer or cardiac rehabilitation patients at TMRMC. The primary caseload consists of stroke victims, patients recovering from joint replacement surgery, "amputee[s and] a few close head injuries." (T. 103) Most patients are older than 45 or 50 and none are admitted under 16 years of age. TMRMC does not furnish vocational training or try to teach people with disabilities to drive automobiles. There is no formal "activities of daily living" program. PROPOSED FINDINGS CONSIDERED Both parties filed proposed recommended orders, and proposed findings of fact have been considered in preparation of the foregoing findings of fact. Proposed findings have been adopted, in substance unless unsupported by the weight of the evidence, immaterial, cumulative, or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That HRS deny TMRMC's request to reclassify 23 of its licensed beds as comprehensive rehabilitation beds, without prejudice to a subsequent application if TMRMC obtains a certificate of need. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1985. COPIES FURNISHED: Alfred W. Clark, Esquire Laramore & Clark, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 Lesley Mendelson, Esquire and John Carlson, Esquire Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 David Pingree, Secretary Department of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301
Findings Of Fact Respondent, Patricia Major, M.D., graduated from Harvard undergraduate school with honors; graduated with honors from New York University School of Medicine; served her internship at Yale New Haven Hospital, as well as completing a residency program and fellowship program in pulmonary diseases at Yale in 1974. She was certified in 1974 by the American Board of Internal Medicine. She was a teaching fellow at Yale during her pulmonary fellowship and had a faculty appointment thereafter at that same school. She was Assistant Director and Educational Coordinator at the Family Practices Residency Program for the University of Connecticut and from 1974 through 1976 had teaching appointments there. In 1976, she left New England and returned to Florida to practice internal medicine in Key West where she had grown up. During the period from 1976 to 1980, when she practiced medicine in Key West, she also worked with Emory University and the University of Miami as a clinician teaching medical students who were placed in Key West on rotating clerkships. She served as an emergency room physician at Florida Keys Memorial Hospital and was an admitting physician on the staff. In 1978 she was selected as one of five physicians to become the first civilians to go through the Navy's Diving Medical Officers Training Program and served as a civilian diving medical officer for the Navy in Key West. In 1980, the Board of Medical Examiners of the State of Florida brought charges against Respondent that resulted in a stipulation being entered into between Respondent and the Board that she would voluntarily cease practicing in Florida and relinquish her Florida license. The stipulation was signed in December, 1981, and her license was relinquished by Order of the Board in February, 1982. The charges that resulted in the initial suspension of Respondent's license and in the stipulation between the Respondent and the Board dealt with charges based on impairment due to drugs and alcohol. Respondent moved to Massachusetts where she practiced medicine under a temporary license and voluntarily participated in the Impaired Professionals Program for two years. From 1982 to 1984 she had twice-weekly urine screens under her contract between the assigned Massachusetts monitoring physician and herself. In no instance was there evidence of impairment or a positive urine screen during her Massachusetts stay. In 1984, Respondent returned to Florida and applied to the Board of Medical Examiners for permission to return to practice. On March 14, 1984, the Board of Medical Examiners entered an order reinstating Respondent's medical license for the State of Florida, placing her on probation for a period of three years and setting up a monitoring agreement under which Dr. John Buckner of the Island Clinic would serve as supervising physician for Respondent. From March, 1984, until April, 1986, Respondent worked at the Island Clinic with Dr. Buckner, seeing 15 to 25 patients a day. During that period of time, she only missed one working day, in September, 1985, when she was moving from one house to another and during the period of time immediately before and during her October, 1985 stay at South Miami Hospital. Respondent, and all of the witnesses who had personal knowledge of her contact with patients, denied that she ever treated or dealt with patients while under the influence of drugs or alcohol from 1984 until the current time. Iris Carleen Cervantes, who served as secretary to Dr. Buckner and is currently on the staff of Dr. Davidson, Respondent's current monitoring physician, has had the opportunity over two and one-half years to observe Respondent on a regular basis in her dealings with patients. She has been with Respondent socially as well. She has never seen Respondent drink alcoholic beverages. She uses Respondent as her personal physician and for all other members of her family. She is aware of the Respondent's regular visits to her psychiatrist, Dr. Jerrold Weinstock, and takes those into account in doing the scheduling for Dr. Major. She is similarly aware of Respondent's regular attendance at Alcoholics Anonymous meetings, has never heard Respondent disparage A.A.; and in fact, has a brother whom Respondent helped get into A.A. At no time has Cervantes ever seen any indication, even when Respondent has returned to the office late at night, of any use of drugs or alcohol. Linda Susan Park, a counselor at the Delphus Drug and Alcohol Treatment Center at Florida Keys Memorial Hospital for the last three and one-half years, knows Respondent both personally and professionally. She has never seen Respondent under the influence of any mood-altering chemicals. Although they go out socially together, she has never seen Respondent order an alcoholic beverage. When they are together, they talk program, i.e., A.A. steps. Parks has regularly seen Respondent at A.A. meetings, and they attend a number of the same groups including a Wednesday night women's group called The New Beginnings Group. Parks is aware of the interest Respondent has shown in drug and alcohol-impaired nurses at Keys Memorial and of her attendance at the impaired nurses Caducues meetings. Respondent has worked with the Delphus Program at Florida Keys Memorial Hospital referring a number of patients to the program. Park has seen the Respondent under extremely stressful situations, particularly in the past year; and has seen her act only appropriately. With the Board's approval, Respondent has also worked with indigent patients at the Health Care Center at Florida Keys Memorial Hospital since August, 1986. The Director of that program, Thomas C. Puroff, testified regarding her employment there. Respondent was originally hired on a temporary basis to cover for the primary care physician for three weeks. The Director's assessment of her initial period of employment at the Health Care Center is as follows: The staff was very, very pleased with her performance, and I was very pleased with her performance. The staff felt that they were learning a lot from her, that she was an exemplary doctor who explained why she was doing things with patients and it became a learning process for our nurse practitioners and nurses. Her interaction with the receptionist, administrative assistant was very high level, very positive, and the patients loved her. And both--well, later on when we did hire her on a one day per week basis to fill in when the regular doctor could not be there, a lot of patients would call and specifically request an appointment when she was going to be there. (Transcript, P. 199) The Health Care Center ultimately hired the Respondent for one to two days a week when the other physician was not there. She works the longest day of the stretch, which is a ten-hour day. The Director describes the job as a high stress one in which he has seen no difficulty in handling stress on Respondent's part. He has never seen any indication of impairment of faculties or inability to handle her job in any fashion on Respondent's part. When he hired Respondent, Puroff had full knowledge that she had problems with the Board of Medical Examiners, had been assigned a monitoring physician, had been brought in restraints to the emergency room at Florida Keys Memorial Hospital and had been committed under the Baker Act in September of 1985, that she was an alcoholic who attended A.A., and that she regularly visited a psychiatrist. None of these matters were kept secret from him. Karl Michael Davidson, M.D., who became Respondent's monitoring physician after Dr. Buckner abruptly left town in April, 1986, has similarly seen no sign of any kind of impairment during the time he has worked with her. He has never seen her indulge in any drugs or alcohol. He knows that she regularly sees her psychiatrist. He has received no complaints from anyone in the medical community, the patient community, or the general community of Key West with regard to Respondent since he has served in a monitoring capacity for her. Even Sally Parr who testified on behalf of the Petitioner denied that Respondent ever used alcohol when she was in a situation in any way connected with patients. Regarding the change of monitoring physicians in April, 1986, the testimony of Respondent and her witnesses was consistent and uncontradicted, with Petitioner presenting no facts other than those stipulated. The individual having the most knowledge regarding the circumstances under which Dr. Buckner left Key West, was his secretary, Iris Cervantes. She, like the other witnesses, was aware that he had gone to look at a number of schools and other medical positions. He would say he was going to leave, but he always came back. On April 6, 1986, Buckner's wife told Respondent the Island Clinic was being closed and Buckner was leaving. On April 7, the locks on the doors to the Island Clinic were changed. Cervantes was one of two people to have a new key; Respondent and the other doctors practicing with Dr. Buckner were not given keys. This left Respondent in a position where she could not write some pharmaceutical prescriptions, all appointments had to be cancelled, and there was no way to treat ongoing patients who were ill at the time. When the locksmiths changed the locks, Respondent contacted Buckner to ask if he knew what he was doing and if he were going to be gone permanently. He indicated that he had started working in California, but he did not know whether it would be permanent. He said that he had spoken with Dr. Davidson and asked him to act as a temporary supervising physician in addition to himself. Respondent spoke with Dr. Davidson who said that she was welcome to see patients at his office and that he would monitor until Buckner decided what he was doing. They spoke about immediately notifying the Board of the change in her office location. It was her impression that Dr. Davidson had actually notified the Board with a handwritten memo the first day she was there and that was how the investigator from the Department knew how to find her when the investigator came to see Respondent at Davidson's office on April 18, 1986. On that date Davidson also discussed with the investigator Buckner's abrupt departure which might be permanent. Respondent ultimately wrote the Board herself. That correspondence dated April 22, 1986, was received by the Department of Professional Regulation on April 28, 1986, the same day on which the Department received from Davidson his notification letter dated April 17, 1986. Four to six weeks after that letter, Dr. Davidson and Respondent were advised that the Board had received the information and would consider Dr. Davidson as her supervisor. On August 2, 1986 Davidson and Respondent appeared before the Board of Medical Examiners and received formal approval. The remaining allegations involve two separate incidents occurring during the week of September 16, 1985. At that time, and since January of that year, Respondent was living in the home of Sally Parr, an Assistant State Attorney for Monroe County. It was Parr's testimony that several months after Respondent moved in, Respondent began to drink wine on a regular basis sometimes to the point of intoxication. Parr is the sole person to testify to having seen Respondent drink alcoholic beverages. Other witnesses testified to Parr's own problems with alcohol. The emotional relationship between Parr and Respondent from March, 1985, until September, 1985, was "stormy" and "tremendously emotional." The two of them attended therapy with Dr. Jerrold Weinstock. On September 16-17, 1985, all of this emotionalism culminated in Parr calling the emergency number 911. During the evening of Monday, September 16, Parr's sister arrived in town. There were highly controverted scenes which both Parr and Respondent described. The two participants were clearly emotionally charged, angry, and upset. It was Parr's testimony that Respondent walked into the back bedroom and with a syringe in her hand with a pale yellow fluid in it, lifted her shirt and injected that material into her chest under her left breast Saying she was going to kill herself. According to Parr, Respondent said the fluid was 100 percent xylccaine and she would die in one minute. Parr then called 911, Respondent told her she was a fool to believe that, and Respondent left the house and drove away. Parr also confusedly describes a later scene that night with Respondent and another syringe and more light yellow fluid. Officer Cynthia Tingley responded to that call from Parr. The report was treated as one for an "attempted suicide". At no time did Ms. Parr tell the officer that Respondent was not in danger or that Respondent had told Parr that she was "a fool" to believe that this was a way to kill oneself. In the opinion of the investigating officer, Parr had an odor of alcoholic beverage on her breath. The officer had no personal knowledge that Respondent had administered the legend drug to herself. She did note an empty bottle of xylocaine in the room but no syringe was found. Later the officer was called to where another officer had stopped Respondent and had given her a citation for careless driving. Respondent was cooperative and did not seem to be having health problems, although she did appear to be under a lot of stress and appeared anxious. Neither officer made any attempt to detain Respondent after the stopping. Under Parr's version of this event, it ended with Respondent refusing to go to sleep in the back bedroom and only agreeing to go to sleep if she could sleep in Parr's room. That occurred and ended the evening. Respondent continued to live at the house, and on Thursday Parr and her sister left for a short vacation. Parr testified that she called from out-of-town to tell Respondent that she was not coming back to the house unless Respondent had moved out. Respondent agrees that Parr called and told her that but adds that Parr had promised to go on vacation with Respondent and told Respondent to arrange that vacation while Parr and her sister were gone. Respondent specifically denies that she made a suicide attempt or attempted to give the impression she was trying to commit suicide on September 16-17, 1985, or any other time. She denies that the events described by Parr occurred but agrees that it was a very confusing, emotional night. She denies that there was any further incident when she returned that night and only recalls them both being pretty tired and having gone to bed. Dr. Jerrold Weinstock, Respondent's treating psychiatrist and the individual to whom Parr and Respondent had gone for counselling, testified that the only description of the xylocaine/suicide incident he received came from Parr, not from Respondent. No information that Weinstock gained from his psychotherapy of Respondent indicated that Respondent's version of the event (or non-event) was incorrect. It is specifically found based upon the credibility of the witnesses that Respondent did not inject herself or attempt to inject herself with anything and specifically not with xylocaine. The second incident of that week occurred on Friday evening, September 20-21, 1985. This was the evening when Parr called Respondent and told her to move out of the house. Respondent describes that scene as follows. She [Parr] called. We had arranged that she would call at that time. I had seen my last patient about 5:30 or 5:45 and I was waiting at home for her call . . . She started screaming at me to get out of her home, that she did not want me there when she got back. I was stunned because I was making arrangements for vacation. I said, "What about the vacation?" She said, "I lied to get out." And I said, "Well, what will you do." "Call the police," she said. "I know people on the police force and I won't hesitate to use them." And then she hung up on me. (Transcript, P. 248) Respondent had taken steps during the day to arrange a trip to New York and Connecticut because Parr had never been to New York. An acquaintance came by while Respondent was still sitting stunned and asked her if she wanted to go to the Black Angus and have a drink. Respondent went with this individual to the Black Angus and had three very strong drinks there. She realized that she was feeling intoxicated after the third drink. She asked the woman, who was driving, to drop her off at Sally's house, but the woman wanted to go downtown to a few more bars. Respondent pleaded to be dropped off, and her companion became belligerent. Ultimately, the acquaintance assaulted Respondent tearing her shirt off, punching her in the face, hitting her about the head, grabbing her purse and pulling it away from her. During the scuffle, Respondent even lost her sandals. Petitioner has not controverted this account. Cervantes and Buckner both confirmed the bruises and scratches from the fight. Cervantes also described an incident a few days later whereby the same woman came into the Clinic, gave Cervantes some earrings she said she had taken out of Respondent's purse, and slashed the tires on Respondent's car on her way out. Respondent was left intoxicated, running, frightened, with no top on and three miles from Parr's house. She did not have her keys which had been in her purse and could not get into the clinic but felt she could get into Parr's house if she could get there. She felt intoxicated and becoming more so, uncertain whether it was the alcohol or being beaten that was affecting her. She was disoriented and embarrassed to be running down the street wearing only a pair of shorts. She crawled under a garage on the side of the road to sleep to clear her head to find a solution to her predicament. She was awakened by police officers but said nothing in response to questioning. Respondent was taken by the police to Florida Keys Memorial Hospital. When the police officers tried to transport Respondent, she became physically violent, kicking at the officers and attempting to kick out the windows of the patrol car. When she arrived at the hospital, she was physically restrained with arm and leg restraints. A drug analysis performed on Respondent at the hospital showed her blood alcohol level to be 0.235 percent. Respondent was next transported to Marc House in Marathon, Florida. She was involuntarily committed under the Baker Act for that one night. The next morning, Dr. Jesse Sewell, Director of Marc House, spoke with Respondent, determined there was absolutely no reason for Respondent to be there, and called Buckner to pick up Respondent and transport her back to Key West. Dr. Buckner did and took Respondent to Parr's house so she could move out her belongings. Respondent and Buckner discussed the episode at great length and she got in touch with Dr. Weinstock. Buckner and Respondent called her probation officer with the Department of Professional Regulation, a Diane Robie, who advised them to contact Dr. Roger Goetz, head of the Florida Impaired Physicians Program. Buckner called Goetz and described the incident that resulted in Respondent being committed overnight. He told Goetz that Respondent had moved out of the place where she had been living which seemed to have precipitated the disturbance; that she was in daily contact with her psychiatrist; that she had started attending A.A. meetings daily as recommended to someone who has had an episode of drinking; and that she would bring her support systems together. Goetz suggested going for evaluation at South Miami Hospital with Dr. Lynn Hankes. When Respondent was evaluated by Hankes, he recommended entry into South Miami's treatment program. Respondent went back to Key West and conferred with Buckner, Weinstock, and Goetz. Although Weinstock believed the inpatient program at South Miami would be therapeutically counterproductive, Respondent followed the recommendations of Goetz and Hankes and entered the treatment program on October 6, 1985. Buckner (whose deposition was taken prior to his departure from Key West in April, 1986) considers Respondent the best internal medicine doctor in Monroe County. Since he had noticed nothing wrong with Respondent through Friday afternoon, September 20, 1985, he was surprised by the telephone call from Dr. Sewell at Marc House on Saturday morning. When Buckner spoke with Weinstock that day, Weinstock explained that Respondent completely removes her emotional problems from her professional self. After the Friday/Saturday Marc House incident, Respondent finished her weekend move from Parr's house on Monday and came back to work on Tuesday. From Tuesday until she entered South Miami's treatment program, her performance as a practicing physician remained exemplary, analytical and calm. Respondent entered the program committed to making the program work and seeking insights into the nature of her disastrous interpersonal relationships as well as the episode that led to her admission to Marc House. Dr. Lynn Hankes testified that Respondent is a chronic alcoholic who will always be an impaired physician. He described in detail the South Miami Treatment Program beginning with the first phase of detox and assessment. He admitted that Respondent did not require detoxification and that she suffered no abstinence syndrome or withdrawal syndrome. She became immediately oriented to the program and began interacting with her counselor. However, Dr. Hankes believes that Respondent only intellectually admitted to the problem and that she was preoccupied with only interacting with the other medical professionals on the unit. He described at some length Respondent's "negative limit testing" and her preoccupation with the medical professionals on the unit. He regarded her as "sabotaging her own treatment". For example, Respondent did not initially tell program personnel that she sometimes had a glass of wine at dinner over the last several months or that she shared a marijuana cigarette on her way from Key West to admit herself into South Miami Hospital although she did disclose that information during her stay in the program. It is his opinion that there is a clear medical indication for extended treatment in a secondary facility for many reasons. Basically, in his opinion, it was a bottom line of an intellectual admission of the disease with only minimal acceptance. He administratively discharged Respondent from the program on October 31, 1985 just prior to her completing the program because she refused to accept his recommendation for extended care for an indefinite period of time. Dr. Hankes did not see Respondent after October 31, 1985 in any capacity. All of his testimony was based on information which he had prior to October 31, 1985. Dr. Hankes admitted that the only limit testing, rule breaking that Respondent had engaged in was that she spoke to other medical professionals, she spoke to male patients in their room while she stood at the door, and she walked a friend to the lobby of the hospital but did not leave the premises. He also observed isolation tendencies on her part. His dire predictions of doom have not proven accurate. In the subsequent year and a quarter Respondent has stayed sober and practiced medicine successfully with no further incident. It was Buckner's impression that the major reason Respondent was being required to go into the hospital for the inpatient treatment was because other impaired physicians in the Key West area had had to go through the program, and they were unhappy that she had somehow missed it. Buckner encouraged Respondent to enter the treatment program, even against the advice of her psychiatrist, so that the Board would be on her side after she "completed the drill." Buckner spoke with her counselor and therapist regularly during the time she was at South Miami Hospital and got indications that everything was progressing well and that she would be back to Key West to practice at the scheduled time. Buckner went to South Miami Hospital three weeks after Respondent's admission to meet with Dr. Hankes on a Saturday. Hankes did not show up for the appointment, but Buckner later reached him by phone. Hankes told Buckner that Respondent was progressing fine, although she still had some problems. Hankes said Respondent would be back in Key West practicing the next week and could have outpatient treatment with Dr. Weinstock. Buckner returned to Key West and told his staff to schedule Respondent for patients the next week when she would return. On Monday Respondent telephoned to tell him that Hankes had changed his mind, that they were not going to release her, and that she was going to have to sign herself out. No explanation has been offered as to why Hankes changed his mind between Saturday and Monday so radically from outpatient treatment with Respondent's treating psychiatrist to indefinite inpatient hospitalization. Buckner and Weinstock agreed the best treatment for Respondent was to get her back practicing medicine. Buckner contacted Cecilia Bradley, the attorney representing the Department and the Board, asking for direction. Bradley advised Buckner that he would have to personally decide whether Respondent was a threat to the community. He saw no such threat. Respondent returned to the Island Clinic and resumed her practice. Buckner saw her there on a daily basis, and her performance was, in his opinion, the same as before, "absolutely flawless." When Respondent did not accept Hankes' recommendation of indefinite long-term treatment in Mississippi, she became, in Dr. Goetz's opinion, in noncompliance with the Florida statute on impaired physicians. Dr. Goetz subsequently reported her to the Department of Professional Regulation for her failure to continue satisfactorily in the program. Goetz admitted that his role as Director of the program was one of an administrative officer, and he has offered no opinion as to whether Respondent is in fact impaired. Goetz has received no information that Respondent's impairment, if any, has in any way affected her practice or patient contact. All the information that Goetz relies on is information prior to Respondent's discharge from South Miami Hospital on October 31, 1985. It was Buckner's understanding, and that of Respondent, that she had not violated the Order of the Board in having an instance where she "slipped" with regard to drinking. Dr. Goetz agreed with that assessment a "slip" can be a part of a rehabilitation program. Linda Parks, Diane Robie, and Dr. Weinstock agree with that assessment. Respondent could not have financially afforded the Mississippi program. Despite the testimony of Hankes and Goetz that Respondent could have gone there for free, Goetz did not tell her that, Hankes did not know what the financial arrangement was, and the Director of that program whom Respondent personally contacted regarding the program did not mention such a possibility. Jerrold Weinstock has been Respondent's treating psychiatrist since 1984. His opinion is that there is no basis for the allegation that Respondent be considered an impaired physician incapable of rendering safe, quality, and competent services to her patients. In fact, Weinstock refers members of his own family to her. That opinion is shared by two independent psychiatrists, Stanley I. Holzberg, M.D., and Milton Burglass, M.D. Dr. Holzberg examined Respondent initially on behalf of the Florida Impaired Physicians Program in 1983; reexamined her at the request of the Department in February, 1984; and saw her for a third time at her own request in November, 1985, following Respondent's discharge from South Miami Hospital. On all of the occasions when he examined Respondent, Holzberg opined that she could practice medicine with skill and safety with the conditions that she have treatment and monitoring. Holzberg considers the treatment she is receiving from Weinstock, including the prescription of an antidepressant, as appropriate long-term treatment. He agrees with Weinstock and Buckner that long-term inpatient hospitalization would not be helpful to Respondent. Holzberg further agrees with Weinstock that Respondent's major illness is chronic depression, the affective disorder. Dr. Milton Burglass evaluated Respondent on March 25 and April 2, 1986, and reached the same conclusion. Burglass administered a full series of psychological tests to Respondent, including the Minnesota Multi-Phasic' Personality Inventory; the Beck Depression Inventory; the Cattell Use for Tension and Anxiety Survey Schedule; the Rotter Incomplete Sentences Blank; the Cattell Assertive Behavior Survey Schedule; the Cattell Thought Stopping Survey Schedule; and the Standardized Medical and Personal History Form. He spent, in addition, a total of five hours interviewing Respondent, and he went over all the records from other psychiatric and related medical evaluations that she had had from 1980 forward. Burglass found nothing to suggest that Respondent is incapable of practicing medicine with skill and safety. Burglass believes that people can, in fact, function normally and be able to perform professionally in their chosen profession after recovering from a chemical dependency, be it drug or alcohol. Burglass specifically opined that Respondent is not impaired.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered: Dismissing with prejudice the complaint filed against Respondent in DOAH Case NO. 86-0469; Finding Respondent guilty of the allegation contained in the Administrative Complaint filed in Case No. 86-2065 but taking no disciplinary action against her, and Allowing Respondent to continue to practice medicine under reasonable monitoring conditions until the period of her probation has been completed on March 15, 1987. DONE AND ORDERED this 5th day of March, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1987. APPENDIX TO RECOMMENDED ORDER DOAH Case Nos. 86- 0469 and 86-2065 Rulings are made as to each of Petitioner's proposed findings of fact as follows: 1-2. Adopted. 3. Rejected as irrelevant. 4-5. Adopted. 6-7. Rejected as not supported by the weight of the credible evidence. Rejected as being contrary to the weight of the credible evidence. Adopted. Rejected as not supported by the weight of the credible evidence. Adopted. Rejected as being a statement taken totally out of context. Adopted. Rejected as being contrary to the weight of the credible evidence. 15-17. Adopted. Rejected as not supported by the weight of the credible evidence. Adopted. Rejected as not supported by the weight of the credible evidence. First two sentences adopted; third sentence rejected as being contrary to the weight of the credible evidence. 22-23. Adopted. Rejected as being secondary. Adopted. First sentence rejected as being contrary to the weight of the credible evidence. Second sentence adopted. Rejected as being contrary to the weight of the credible evidence. 28-29. Adopted. 30-32. Rejected as not supported by any evidence. Rejected as being secondary. Rejected as being contrary. Rejected as being irrelevant. Rejected as being secondary. Adopted. Rejected as not supported by any evidence. Rejected as being irrelevant. 40-45. Adopted. Rejected as being irrelevant. Adopted. Rulings are made as to each of Respondent's proposed findings of fact as follows: 1-27. Adopted. 28. Rejected as being redundant. 29-32. Adopted. 33. Rejected as being redundant. 34-39. Adopted. 40-41. Rejected as being unnecessary. 42-43. Adopted. COPIES FURNISHED: Leslie Brookmeyer, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Elizabeth Du Fresne, Esquire 2950 S.W. 27th Avenue, Suite 10 Coconut Grove, Florida 33133 Nathan Eden, Esquire 417 Eaton Street Key West, Florida 33040 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Board of Medical Examiners 130 N. Monroe Street Tallahassee, Florida 32301
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated February 27, 1991, and, if so, whether his license to practice medicine in the State of Florida should be disciplined.
Findings Of Fact At all times pertinent to this proceeding, Respondent has been licensed to practice medicine in the State of Florida and has held license number ME 0048998. Prior to April 5, 1990, Respondent engaged in the private practice of medicine in Dade County, Florida, concentrating in the fields of general medicine and psychiatry. Prior to April 5, 1990, the Respondent contacted his wife (from whom he was separated) and informed her that he felt he was starting to develop a problem with Demerol. Respondent's wife contacted the Physicians Recovery Network (PRN), which is an organization designed to assist impaired physicians, and reported that she was concerned about Respondent's possible addiction to Demerol. On April 5, 1990, an intervention was made by the PRN. This intervention occurred by Roger A. Goetz, M.D., the Director of the PRN, presenting himself at Respondent's office and offering to Respondent the assistance of his organization. On April 5, 1990, Respondent accompanied Dr. Goetz to Mt. Sinai Medical Center, Chemical Dependency Unit, Miami, Florida. At Mt. Sinai, Respondent came under the care of John Eustace, M.D. Respondent was detoxified at Mount Sinai and an initial evaluation of his condition was made. Prior to his admission to Mount Sinai, Respondent had been practicing medicine although he was in an impaired condition and was incapable of practicing medicine with reasonable skill or safety. At Mount Sinai, Respondent was diagnosed as having an advanced chemical dependency to intravenous and intramuscular Demerol. Respondent admitted that he had become addicted to Demerol, and that he had been taking self-prescribed doses of Demerol intravenously. Respondent's initial usage of Demerol was for his self- prescribed treatment of his migraine headaches. The urine sample Respondent submitted at Mount Sinai on April 5, 1990, tested positive for meperidine and benzodiazepine. Meperidine is the generic name for Demerol. Benzodiazepine is a class of controlled drugs including valium. Respondent had, prior to his admission at Mount Sinai, self-prescribed and self-injected Demerol and valium. The progress staffing session signed by Dr. Eustace on April 11, 1990, reflects that Respondent was diagnosed at Mount Sinai as "... an advanced, parenteral Demerol addict, who was in need in (sic) structured, long-term treatment. The patient was recommended to Talbott Recovery Centers (sic) in Atlanta, Georgia." The recommendation to Talbott Recovery Center (Talbott) was made, in part, because of the severity of Respondent's addiction and the difficulty of the management of his case. Respondent voluntarily accepted Mount Sinai's recommendation that he be admitted to Talbott, and he was discharged from Mount Sinai and admitted to Talbott on April 12, 1990. Talbott Recovery Center is a highly structured, intensive treatment program geared for difficult management problems involving physicians. At Talbott, Respondent was diagnosed as having an opiate dependency and as having a narcissistic and antisocial components to his personality. Respondent did not interact well with the staff of Talbott and he tried to manipulate his medication and manage his treatment. Respondent was not considered by the Talbott staff to be truthful. It was recommended by the Talbott staff that Respondent be transferred to Parkside Recovery Center (Parkside) in Illinois because of his lack of progress at Talbott. Parkside is a treatment facility for impaired phyicians similar to Talbott. On May 4, 1990, Respondent was discharged from Talbott so he could return to Dade County, Florida, to make arrangements for treatment at Parkside. On May 9, 1990, Respondent entered treatment at Parkside. Upon his admission to Parkside, Respondent's urine sample tested positive for opiates, which is consistent with his ingestion of either Demerol or his ingestion of morphine. On May 25, 1990, Respondent submitted a urine sample which tested positive for benzodiazepine, which is consistent with his ingestion of valium or his ingestion of an antihistamine. Respondent contends that his urine sample tested positive for opiates because he had taken morphine for a migraine headache and that his urine tested positive for benzodiazepine because he had taken an over the counter antihistamine. 2/ At Parkside, Respondent was diagnosed as having an opiate dependency and a narcissistic personality disorder with antisocial features. Respondent did not successfully complete the Parkside program because he was considered to be deceptive with staff. Respondent was discharged from Parkside on July 27, 1990. The initial recommendation from Parkside for Respondent's future treatment was for a 20-month monitoring program to include peer support groups, AA sponsorship, monitoring groups, and random urinalysis testing; individual psychotherapy; supervision of his practice; and neurological treatment for migraine headaches. After his discharge from Parkside, Respondent returned to Talbott for reassessment prior to his return home. Following this reassessment, Dr. Daniel H. Angres, Executive Medical Director of Parkside, and Dr. G. Douglas Talbott, Medical Director of Talbott, submitted a recommendation to the PRN dated August 27, 1990, that stated, in pertinent part, as follows: Based on our review of Dr. Nestor Garcia's progress at Talbott Recovery Systems, Parkside Treatment Program, and findings following Dr. Garcia's discharge 3/ we would like to recommend that Dr. Garcia refrain from the practice of medicine for a period of one year. During this time, it is essential that Dr. Garcia focus his energies on his recovery. We would additionally suggest, that Dr. Garcia be involved in a rigorous monitoring program which includes drug screening, caduceus groups, and individual therapy. At the conclusion of one year, Dr. Garcia will be reassessed by our teams in order to determine his readiness to return to the practice of medicine. On August 3, 1990, Respondent signed an agreement, referred to as an Advocacy Contract with the Impaired Practitioner Program of Florida PRN by which Respondent agreed to the following for the five-year duration of the contract: I agree to participate in a random urine drug and or blood screen program ... within twenty-four hours of notification. I will release by waiver of confidentiality the written results of all such screens to the Physicians Recovery Network to validate my continuing progress in recovery. I agree to abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medications unless ordered by my primary physician, and when appropriate, in consultation with the Physicians Recovery Network. * * * 6. I agree to notify the Physicians Recovery Network of any changes in physical or mental health, address or employment. * * * 8. I agree to attend a self help group such as AA or NA 3 times per week. * * * I agree to attend a 12-step program of recovering professionals. I agree to notify the Physicians Recovery Network in the event of use of mood altering substances without a prescription from one of the physicians above. I agree to contact the office of the Physicians Recovery Network [monthly by letter]. I agree to provide appropriate release forms for urine screen results, treatment center records, therapist reports, and other written and verbal information required to comply and in compliance with the above requests. I agree to withdraw from practice for evaluation at the request of the Physicians Recovery Network if any problem develops. * * * 16. If I fail to comply with this contract it may result in my being reported to DPR through the Physicians Recovery Network. On August 3, 1990, Respondent submitted a urine sample which tested positive for barbiturates. Respondent explained that this test result was because he had taken Benadryl for a chlorine allergy. Respondent returned to the private practice of medicine after August 3, 1990. Following his execution of the Advocacy Contract with the PRN, Respondent entered a long-term outpatient rehabilitation and treatment program operated by Mount Sinai. Respondent broke the Advocacy Contract by leaving the Mount Sinai treatment program in the fall of 1990. Respondent did not believe that he was receiving any benefit from the treatment program. At the time of the formal hearing, Respondent was not enrolled in any type of rehabilitation or treatment program. On October 3, 1990, Dr. Roger Goetz recommended to Petitioner that the Respondent be suspended from the practice of medicine. 4/ On December 13, 1990, Petitioner ordered Respondent to submit to a mental examination by Neville S. Marks, M.D., and to a physical examination by William M. I. Schmidt, M.D. Respondent attended his scheduled appointments. As a result of his examination and evaluation of Respondent, Dr. Marks diagnosed Respondent as having a chemical dependency on Demerol and other medications by history and of antisocial personality disorder (Dr. Marks also referred to the latter diagnosis as being sociopathic personality traits). 5/ Dr. Marks was of the opinion that Respondent's "... chemical dependency could impair his ability to practice medicine with reasonable skill and safety, and that his sociopathic personality traits also could impair his ability to practice medicine with reasonable skill and safety." (Emphasis added.) Dr. Marks did not express his opinion that the chemical dependency or the sociopathic personality has, within a reasonable degree of medical certainty, impaired his ability to practice medicine with reasonable skill and safety. Dr. Marks was also of the opinion that Respondent should be in treatment and that the treatment program should include long-term chemical dependency treatment on an outpatient basis and long-term psychotherapy treatment. Dr. Schmidt was qualified and accepted as an expert witness in the fields of internal medicine and endocrinology. Dr. Schmidt was of the opinion that the Respondent was not being truthful to him during the course of the interview and that, based on his examination of the Respondent and of the Respondent's medical records, it would be inappropriate and dangerous for him to be practicing medicine. On February 11, 1991, the Secretary of the Department of Professional Regulation ordered an emergency suspension of Respondent's license to practice medicine. Respondent has not practiced medicine in the State of Florida since that suspension. Respondent was examined on March 13, 1991, by Dr. Charles Mutter. Dr. Mutter took a complete psychiatric history from Respondent, administered a Minnesota Multiphasic Personality Inventory Test to him, and reviewed his medical records. Dr. Mutter did not find any defect in Respondent's personality structure that would prohibit him from practicing medicine with reasonable skill and safety. Dr. Mutter was of the opinion that Respondent could practice medicine with reasonable degree of skill and safety. Because of his history of drug addiction and abuse, Dr. Mutter recommended that Respondent's practice be indirectly supervised, that he be required to submit to random drug screenings on 12-hour notice, and that he attend meetings for recovering physicians. Respondent testified that he had, as of the time of the formal hearing, been drug-free for nine months and that he had successfully practiced medicine until his license was suspended. This testimony was unrefuted largely because of Respondent's withdrawal from the PRN program. This self-serving testimony is insufficient to document Respondent's recovery from this severe addiction, which is a chronic, relapsing disease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent violated the provisions of Section 458.331(1)(s), Florida Statutes, which imposes an administrative fine in the amount of $250.00, which suspends his license to practice medicine for a period of one year, and which places his licensure on probation for a period of five years. It is further recommended that the terms of his probation incorporate those terms of the Advocacy Contract Respondent executed with the Physicians Recovery Network. It is further recommended that the suspension of Respondent's licensure to practice medicine be lifted once he has demonstrated to the satisfaction of the Board of Medicine that he has regained his ability to practice medicine with reasonable skill and safety to patients. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 21st day of June, 1991. CLAUDE B. ARRINGTON 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 21st day of June, 1991.
