The Issue The issues are whether Respondent violated Sections 458.331(1)(m) and/or 458.331(1)(t), Florida Statutes (2005), and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine. Respondent is a licensed Florida physician. He practices medicine as a board-certified surgeon in Niceville, Florida. His medical license number is ME 82923. At all times relevant here, Mark Schroeder, M.D. shared office space with Respondent in Niceville, Florida. Dr. Schroeder is a primary care physician. He has been board- certified in internal medicine since 1989. At all times relevant here, Patrick J. Anastasio, D.O., was a practicing physician in Fort Walton Beach, Florida. Dr. Anastasio is dual board-certified in internal medicine and infectious disease. In November 2005, Patient A.R. was a 35-year-old female. Her primary care physician was Dr. Schroeder. As part of her medical history, Patient A.R. reported to Dr. Schroeder that she was allergic to Amoxil/Amoxcillian. On November 2, 2005, Patient A.R. had an appointment with Dr. Schroeder. Patient A.R. complained that she suffered from constant nausea and stomach discomfort associated with her meals. On November 4, 2005, Patient A.R. underwent a gallbladder ultrasound to rule out her gallbladder as the cause of her nausea. The ultrasound indicated that Patient A.R.’s gallbladder was normal. On or about November 29, 2005, Patient A.R. had a blood test. The test results showed a positive result for Helicobacter pylori (H. pylori), which is a bacterium that infects the stomach. H. pylori causes gastritis, ulcers, and possibly even gastric cancer in some people. Other people infected with H. pylori may never have these symptoms or problems. On December 6, 2005, Dr. Schroeder prescribed a 14-day regimen of antibiotics to treat Patient A.R.’s gastritis and H. pylori infection. Specifically, Dr. Schroeder prescribed Tetracycline, Flagyl, and Nexium (a proton pump inhibitor). Patient A.R. took the medicine as prescribed for two days. She then called Dr. Schroeder’s office, requesting an alternative treatment plan due to severe nausea and sleeplessness. Before providing Patient A.R. with an alternative treatment plan, Dr. Schroeder consulted with Dr. Anastasio. Dr. Schroeder explained that Patient A.R. was allergic to Amoxil and that she had not been able to tolerate the regimen of Tetracycline and Flagyl. After this consultation, Dr. Schroeder prescribed a 7-day regimen of the following: (a) the antibiotic Biaxin to substitute for the Tetracylcine; (b) Tigan to help with Patient A.R.’s nausea; and (c) Xanax to relieve Patient A.R.’s anxiety. On December 13, 2005, Patient A.R. had a follow-up office visit with Dr. Schroeder. Dr. Schroeder understood that Patient A.R. was doing better overall on the Biaxin-based treatment regimen. On December 21, 2005, Patient A.R. reported to Dr. Schroeder that she had almost finished her antibiotics but was still not feeling well. Patient A.R. also reported that she might have oral thrush and needed a prescription to treat it. On December 27, 2005, Dr. Schroeder prescribed Nexium for Patient A.R. Despite missing some days of work, Patient A.R. completed the treatment therapy consisting of Biaxin, Flagyl, and Nexium. On January 3, 2006, Patient A.R. had another follow-up office visit with Dr. Schroeder. Dr. Schroeder’s records indicate that Patient A.R. was doing well and that her gastritis had resolved. Dr. Schroeder prescribed continued use of Nexium. On or about January 23, 2006, Patient A.R. called Dr. Schroeder’s office to report problems with persistent nausea and to request a referral for a “scope of her stomach.” She made the request based on prior discussions with Dr. Schroeder as to the next option if the Biaxin-based treatment regimen was not successful. Dr. Schroeder referred Patient A.R. to Respondent for a possible esophagogastroduodenoscopy (EGD or upper endoscopy). On February 13, 2006, Patient A.R. presented to Respondent with complaints of epigastric and abdominal pain and nausea. Respondent’s record of the visit indicates that Patient A.R. had a history of H. pylori infection in a post-treatment status. The record also indicates that Patient A.R. was allergic to Amoxil. On February 22, 2006, Respondent performed an EGD on Patient A.R. After the procedure, Respondent diagnosed Patient A.R. with moderate to severe gastritis. A pathology report dated February 23, 2006, confirmed that Patient A.R. was suffering from a H. pylori stomach infection. On February 28, 2006, Patient A.R. had an office visit with Respondent to discuss the pathology results. During this visit, Respondent inquired about Patient A.R.’s reported and documented allergy to Amoxil. Patient A.R. told Respondent that when she was 15 years old and suffering from mononucleosis, her family physician prescribed Amoxil for her. Patient A.R. took Amoxil for about a week with no indication of a reaction or sensitivity. When she began the second bottle of the antibiotic, Patient A.R. developed a head- to-toe rash and swelling. The delayed onset rash did not present an anaphylactic or life-threatening reaction. The symptoms resolved after cessation of the drug with no need for further medical intervention. There is a known interaction between ingestion of amoxicillin and mononucleosis. The reaction manifests itself in a delayed development of a rash occurring on the patient’s trunk and extremities. Children who take amoxicillin while infected with mononucleosis experience this symptomatic interaction in a great percentage, almost 100 percent, of cases. Respondent discussed Patient A.R.’s previous history of allergy to Amoxil with Dr. Schroeder. Respondent’s record states as follows: . . . She has an allergy to penicillin and failed other non-penicillin based drug regimens for H. pylori treatment, specifically, [T]etracycline/Flagyl and Biaxin/Flagyl both prescribed by Dr. Mark Schroeder. . . . * * * I immediately discussed this case with Dr. Schroeder. Ms. [R.] and her husband should both be treated with antibiotics for Heliocobacter pylori infection concurrently. After careful review of her previous history with Dr. Schroeder, there is a possibility that she is not allergic to amoxicillin, as she developed a rash while she had a mononucleosis infection, which is a common side effect. Dr. Schroeder recommended a trial of amoxicillin/Biaxin as she has exhausted all other H. pylori treatments that are not penicillin based. She will take her amoxicillin judiciously, and if she does develop any side effects will stop it immediately and report this to either myself or Dr. Schroeder. Otherwise, she will follow up with me in six months for consideration for repeat upper endoscopy. Based on the determination that Patient A.R. possibly was not allergic to Amoxil, Respondent prescribed her a 14-day treatment regimen of Amoxicillin and Clarithromycin (Biaxin), along with Nexium. As Patient A.R. left Respondent’s office, Respondent told Patient A.R. to take the treatment, assuring her that she absolutely was not truly allergic to Amoxcil. Patient A.R. did not begin taking the Amoxil treatment regimen until March 25, 2006. She delayed starting the treatment because she knew the treatment would be “rough.” She was concerned that she would miss work and be unable to enjoy a visit from out-of-town family. Patient A.R. began the treatment on a Saturday to give her body “a couple of days to adjust to the medication.” Within three hours of taking the Amoxil, Patient A.F. experienced a tingling and stinging sensation in her left middle finger. Because she had been working in the yard, Patient A.R. believed that a bee might have stung her. She did not suspect an allergic reaction because she had not had a localized reaction to Amoxil when she was fifteen years old. On Sunday, March 26, 2006, Patient A.R. continued to take the Amoxil. Her finger continued to tingle, so she soaked it in a saltwater solution. On Monday, March 27, 2006, Patient A.R.’s finger looked terrible; it was red and purple in color and swollen to twice its normal size. As previously instructed by Respondent, Patient A.R. called his office and spoke with a nurse. The nurse suggested that Patient A.R. call an immediate care facility because Respondent was in the operating room that morning and had a “room full of patients” to see in the afternoon. On March 27, 2006, Patient A.R. ultimately saw a physician or a physician assistant at Gulf Coast Immediate Care. She was diagnosed with cellulites in the finger and prescribed a cream to put on it twice a day. Patient A.R. was advised to continue taking the Amoxil. On March 28, 2006, Patient A.R.’s finger continued to get worse, turning “purplish black” in color. Patient A.R. continued to take the Amoxil-based treatment regimen because she did not have a head-to-toe rash or swelling like she did when she took the drug as a teenager. On Wednesday, March 29, 2006, Patient A.R. woke up with a head-to-toe rash, swelling, and tightness in her chest. Realizing that she was suffering from an allergic reaction to the Amoxil, Patient A.R. went to the emergency room of the Fort Walton Beach Medical Center around 7:00 a.m. The emergency room physician noted his clinical impression of Patient A.R. to be an acute allergic reaction and cellulites in her third left finger. He immediately treated her intravenously with Benadryl, Pepcid, and Solumedrol. After the trip to the emergency room, Patient A.R. stopped taking the Amoxil. Patient A.R.’s rash and the problem with her finger subsequently resolved. On or about March 31, 2006, Patient A.R. saw Leo Chen, M.D., an orthopaedic surgeon. Dr. Chen examined Patient A.R.’s finger on a referral from Respondent. On or about April 3, 2006, Patient A.R. presented to Respondent for the last time. Regarding that visit, Respondent’s notes state as follows: Again I discussed this case with Dr. Schroeder while the patient was in my office, and a phone consultation was obtained with Dr. Patrick Anastasio of Infectious Disease. The patient did have an allergic reaction to amoxicillin, and this has now been confirmed. She developed an allergic reaction to amoxicillin approximately twenty years ago while she had mononucleosis, and this was thought to be a side effect due to the combination of mononucleosis and amoxicillin, however this apparently is not the case. She did seek appropriate treatment at the emergency room and was placed on appropriate drug therapy, and seems to be resolving quite well at this time. The patient will be sent for an infectious disease consultation with Dr. Patrick Anastasio, who will take on treating the patient’s Helicobacter pylori infection, which will need to be some form of unconventional treatment or desensitization to penicillin. . . . On or about May 4, 2006, Patient A.R. presented to Dr. Anastasio at Emerald Coast Infectious Diseases. Dr. Anastasio prescribed “quadruple therapy” including the antibiotics Biaxin and Flagyl for 14 days, along with Nexium and Bismuth Subsalicylate, commonly known as Pepto Bismol. Patient A.R. completed the treatment prescribed by Dr. Anastasio. An August 2006 stool sample confirmed that the treatment had eradicated the H. pylori stomach infection. Subjecting Patient A.R. to Amoxil in 2006 was a challenge to her reported allergy. Her allergic reaction was more serious than when she was a teenager because it involved a localized reaction in her finger. This time the challenge to the allergy did not lead to anaphylaxis and death.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent violated the statutes as charged, issuing a letter of concern, imposing a $10,000 fine, and requiring five hours of continuing medical education. DONE AND ENTERED this 5th day of July, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2007. COPIES FURNISHED: Matthew Casey, Esquire Department of Health 4052 Bald Cypress Way Bin C-65 Tallahassee, Florida 32399-3265 Thomas F. Gonzalez, Esquire Beggs and Lane Post Office 12950 Pensacola, Florida 32591-2950 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issues presented herein are whether or not Respondent's incense to practice medicine should be suspended, revoked or the licensee otherwise disciplined for alleged violation of Chapters 458 and 893, Florida Statutes, as set forth in the Administrative Complaint filed herein signed May 31, 1983.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, stipulations of the parties and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent is a medical doctor and has been issued license number ME 0017825. Respondent's last known address is 2361 N.W. 24 Terrace, Miami, Florida 33172. (Stipulation of the parties) Respondent has been licensed as a medical doctor in Florida since 1971. Respondent studied at Havana University School of Medicine and graduated in 1957. He practiced in Cuba from 1957 through 1966. During that period, he was engaged in a general practice and was also a psychiatrist at Clinica Dependiente. While at Clinica Dependiente, Respondent served as a medical director for the rehabilitation of minors and as medical director for Santa Clinica Psiquiatria. Respondent relocated from Cuba and came to Miami on or about February 15, 1967. Respondent sat for the Federation of State and Medical Boards of the United States during September of 1968, the standardized test for graduates of foreign medical schools. During 1968 and 1969, Respondent was engaged as a psychiatrist at Halifax District Hospital in Daytona Beach, Florida. During 1969, he served a rotating internship at Mount Sinai Hospital for one year. Thereafter, he served rotating internships at Doctors, Victoria, Parkway and one other hospital in the Dade County area until approximately 1974. During his tenure at Halifax Hospital, Respondent treated some parties who were drug addicts. Respondent admits to having treated the patients referred to in the Administrative Complaint filed herein. Additionally, pursuant to Petitioner's Request for Admissions filed herein, Respondent has admitted the allegations set forth in paragraphs 3, 10, 17, 24, 31, 38, 45, 52 and 59 of the Administrative Complaint, to wit: Between the dates of approximately January 5, 1981 and December 15, 1981, Respondent prescribed 360 Dilaudid 2/ (Hydromorphone), a controlled substance, pursuant to Chapter 893, Florida Statutes, for Patrick Golden. Between the dates of approximately March 26, 1981 and January 15, 1982, Respondent prescribed 1425 Dilaudid (Hydromorphone) for Ellen Henderson. Between the dates of approximately March 2, 1981 and November 11, 1982, Respondent prescribed 855 Dilaudid (Hydromorphone) for Ronald Chica. Between the dates of approximately May 12, 1981 and January 9, 1982, Respondent prescribed 132 Dilaudid (Hydromorphone) for James Brannigan. Between the dates of approximately February 19, 1981 and February 2, 1982, Respondent prescribed 965 Dilaudid (Hydromorphone) for Gilbert Fernandez. Between the dates of approximately November 21, 1981 and December 12, 1981, Respondent prescribed 180 Dilaudid (Hydromorphone) for Patsy Gamlin. Between the dates of approximately January 7, 1981 and January 14, 1982, Respondent prescribed 820 Dilaudid (Hydromorphone) for Rudolph Ferguson. Between the dates of approximately February 24, 1981 and February 15, 1982, Respondent prescribed 2220 Dilaudid (Hydromorphone) for Michael Salle. Between the dates of approximately February 24, 1981 and February 15, 1982, Respondent prescribed 2190 Dilaudid (Hydromorphone) for Ronald Weatherington. Dale K. Lindberg, M.D., was tendered and received as an expert in these proceedings in the area of Family Practice, Methadone and Drug Addiction. Dr. Lindberg has been instrumental in establishing a methadone detoxification program at Memorial Hospital in Hollywood, Florida. Methadone is the only legally recognized Schedule II controlled substance used in this country for the treatment of drug addiction. Private practitioners, pursuant to specific federal law, cannot legally administer methadone or any other Schedule II controlled substance for the treatment of drug addition. In order to qualify or be certified to treat drug addicts, application must be made simultaneously with the Federal Food and Drug Administration (to their Methadone Monitor Division), to the Federal Drug Enforcement Agency and to the Federal Department of Mental Health and Drug Abuse. Upon certification with these governmental departments, only then can a physician prescribe methadone to a drug addict to be ingested in oral form, once a day. (21 C.F.R. 291.505) Dr. Lindberg received and reviewed the nine (9) patients' records listed in the Administrative Complaint as well as the prescriptions written for those patients by Respondent. (Petitioner's Exhibit 2-19). Dr. Lindberg, after review, concluded that Respondent inappropriately and excessively prescribed Dilaudid to said patients. Dr. Lindberg opined that Respondent prescribed Dilaudid for those patients for "very little indication" and continued over long periods of time prescribing Dilaudid to those patients. He considered that Respondent was maintaining the patients on Dilaudid in violation of the law. (TR 148, 239). Dr. John Handwerker, M.D., testified as an expert herein on behalf of Petitioner. He has served as the first Chairman of the Department of Family Practice at the University of Florida Family and Community Medicine Programs. He is Chairman of the Family Practice Department of Mercy Hospital in Miami and is Assistant Professor of Pharmacology at the University of Miami. Dr. Handwerker is knowledgeable regarding generally prevailing and accepted standards of family practice in Dade County and was accepted, without challenge, as an expert in the field of Family Practice. Dr. Handwerker reviewed the nine (9) patients' records listed in the Administrative Complaint as well as the prescriptions written for each patient. Based upon Dr. Handwerker's review of those records and prescriptions, Respondent committed gross and repeated malpractice. This opinion stems from Respondent's "inappropriately and excessively prescribing Dilaudid to patient for chronic" while the Physicians Desk Reference clearly stated that Dilaudid should not be prescribed for patients with chronic pain. (Testimony of Dr. Handwerker) SPECIFIC PATIENTS A. Patrick Golden first visited Respondent's office on October 7, 1981. Golden complained of chronic pain arising from trauma suffered while he was involved in an industrial accident. His diagnosis was a compression of the fourth and fifth lumbar disk. He was treated for radiculitis. Respondent prescribed Dilaudid to relieve the pain that patient Golden was suffering from and based on the fact that Golden reportedly had been receiving Dilaudid from a former physician. Respondent conducted an examination of patient Golden and prescribed exercises for him. Respondent did not take x-rays although he states that he observed x-rays which had been taken by Golden's former physician. Respondent prescribed Dilaudid for Golden because it was the only drug which "killed the pain, unlike motrin and metrobromate." Nearing the end of Respondent's treatment of patient Golden, his wife began stealing Mr. Golden's drugs. Respondent referred her to a methadone program and obtained a notarized statement from Mrs. Golden to substantiate the fact that she was diverting drugs intended for her husband. Respondent observed that patient Golden was becoming addicted to Dilaudid nearing the end of his treatment although throughout the major portion of his treatment of patient Golden, he felt that while he was dependent on Dilaudid, he was not felt that while he was dependent on Dilaudid, he was not "addicted." Respondent tried to reduce the amount of Dilaudid that he was prescribing to patient Golden without success. Respondent believed that Dilaudid was medically necessary to treat patient Golden due to the suffering he was undergoing from the chronic pain. (Respondent's testimony and Petitioner's Exhibit 20). B. Ellen Henderson was treated by Respondent during the dates of approximately March, 1981 through January, 1982. Henderson suffered with her lumbar spine. Patient Henderson took motrin tablets since her preteen years. Patient Henderson has been treated at several methadone centers and is believed to have been taking approximately 25-40 Dilaudid four-milligram tablets per day. Upon Respondent's first treatment of patient Henderson, he advised her that she was "killing herself and that she needed to reduce that terrible dosage of Dilaudid." Patient Henderson was "treated for pain in the back and to reduce the amount of Dilaudid." In this regard, Respondent tried to reduce her intake of Dilaudid to approximately 8 Dilaudid four-milligram tablets per day. When Respondent stopped treating patient Henderson, he had reduced the amount of Dilaudid that he was prescribing for her to approximately 8 four- milligram tablets of Dilaudid per day. C. Respondent treated Ronald Chica from approximately March, 1981 through November, 1982. Chica was treated for spondylolysis--a degeneration of the vertebrae. Respondent prescribed Dilaudid for patient Chica because it relieved the pain. Respondent knew that patient Chica was addicted to the drug Dilaudid. D. James Brannigan was treated by Respondent from approximately May of 1981 through January of 1982. Respondent knew that Mr. Brannigan was dependent upon Dilaudid. Despite this knowledge, Respondent continued to prescribe Dilaudid for Mr. Brannigan in an effort to treat Brannigan's addiction with Dilaudid. Respondent was attempting to ease the withdrawal symptoms that patient Brannigan would suffer if he were immediately cut off from his supply of Dilaudid. E. Respondent treated patient Gilbert Fernandez during the dates of approximately February of 1981 through approximately February of 1982. During that period, Mr. Fernandez suffered from compression features of the ribs and the lumbar region. Mr. Fernandez had a physical and psychological dependence on the drug Dilaudid. Respondent treated patient Fernandez by prescribing Dilaudid tablets for him. Patient Fernandez had been treated at methadone centers in the past and presently was receiving methadone treatment while Respondent was treating him. Respondent prescribed Dilaudid to relieve the pain as well as to ease the withdrawal symptoms that patient Fernandez would undergo if he was immediately taken from the administration of Dilaudid. F. Between the dates of approximately February of 1981 through February of 1982, Respondent prescribed approximately 2,190 four-milligram Dilaudid tablets for patient Ronald Wetherington. Patient Wetherington was given approximately 60 tablets every 7 days. Patient Wetherington was addicted to the drug Dilaudid and Respondent ultimately referred him to a methadone center to deal with his withdrawal problems. G. During the period of February, 1981 through February, 1982, Respondent prescribed approximately 2,220 four-milligram Dilaudid tablets for patient Michael Sallee. Patient Sallee suffered from and was treated by Respondent for a compression fracture of the fifth lumbar. Mr. Sallee was a cabinetmaker and did considerable lifting in the performance of his work. Respondent knew that Mr. Sallee was dependent upon Dilaudid and continued to prescribe the narcotic during the term of his treatment. Respondent attempted to treat Mr. Sallee's addiction with Dilaudid. H. During the period of January of 1981 through January of 1982, Respondent treated patient Rudolph Ferguson and, during that period, prescribed approximately 820 four-milligram Dilaudid tablets for him. Patient Ferguson suffered from and was treated for back and rib problems from an auto accident. Respondent knew that patient Ferguson was dependent upon the drug Dilaudid and knew he was addicted to Dilaudid. Despite this knowledge, Respondent continued prescribing the drug Dilaudid to patient Ferguson to reduce the withdrawal symptoms and "to continue to treat the disease." Respondent referred patient Ferguson to a methadone clinic and, in fact, drove him to a nearby clinic for treatment. I. Respondent treated patient Patsy Gamlin during the period of November 21, 1981 through December 12, 1981. During that period, he prescribed 180 tablets or approximately 60 tablets every 10-14. Respondent administered a drug screen during December of 1981 and did not treat patient Gamlin after December. Dilaudid is a narcotic analgesic; its principal therapeutic effect is relief of pain. There is no intrinsic limit to the analgesic effect of Dilaudid; like morphine, adequate doses will relieve even the most severe pain. Clinically however, dosage limitations are imposed by the adverse effect, primarily respiratory, depression, nausea and vomiting which can result from high dosages. (Physicians Desk Reference, page 1038 [1984 Edition]) The Physicians Desk Reference has this to say about drug abuse and dependence: Dilaudid is a schedule II narcotic. Psychic dependence, physical dependence, and tolerance may develop upon repeated administration of narcotics; therefore dilaudid should be prescribed and administered with caution. However, psychic dependence is unlikely to develop when dilaudid is used for a short time for treatment of pain. Physical dependence, the condition in which continued administration of the drug is required to prevent the appearance of a withdrawal syndrome, usually assumes clinically significant proportions only after several weeks of continued narcotic use, although some mild degree of physical dependence may develop after a few days of narcotic therapy. Tolerance, in which increasingly large doses are required in order to produce the same degree of analgesia, is manifested initially by a shortened duration of analgesic effect, and subsequently by decreases in the intensity of analgesia. The rate of development of tolerance varies among patients. Prior to prescribing a drug such as Dilaudid, a physician should take a full history from a patient and perform a thorough physical examination. The history should include, inter alia, the patient's chief complaint, with questions from the physician to the patient involving areas of past problems with the nervous system, ears, eyes, lungs, chest, respiratory system, GI tract and urinary tract. The physical examination should involve all body systems, including blood pressure, examination of the head, neck, chest and back regions. If patient complains of low back pain, there should be a physical examination specifically involving the low back area before prescribing the scheduled controlled substance here at issue. The past history is important to determine the duration of the problem, any previous medical treatment, examinations or tests by other physicians regarding the lumbosacral or low back area. A physical examination should be performed designed to elicit indications of neurological evolvement, including straight-leg raise tests, impairment of sensation in the extremities tests and other neurological inquiries. Such a full history and a physical examination is prior to initiating a course of treatment involving treatment of chronic pain due to the existence of a wide assortment of other treatment modalities which might treat the root of the problem, rather than merely being pain symptoms. An examination of the Respondent's records and the prescribing patterns of Dilaudid for the patients involved indicates that Respondent simply made insufficient findings upon which to base the decision to prescribe the drug Dilaudid. By prescribing Dilaudid, without an adequate physical examination, or the gathering of detailed patient medical history, would constitute a failure to conform to the level of care, skill and treatment recognized by reasonably prudent similar physicians under these conditions and circumstances. By continuing to prescribe these drugs, without any involved discussion or consideration of the effect the previous course of treatment had had on the patient, other than simple inquiry by Respondent concerning, as example, how the patient was feeling, 3/ also constitutes inappropriate prescribing of scheduled controlled substances, and demonstrates a failure to conform to the generally accepted an prevailing standards of medical practice in the Dade County community. (Testimony of Dr. Handwerker) Respondent has never been subjected to disciplinary proceedings in the past. His past professional record reveals that he has a sincere concern for his patients. Throughout these investigative proceedings and the final hearing herein, the Respondent was candid, forthright and truthful. His prescribing of the controlled substance Dilaudid was based on his mistaken opinion that it was medically necessary to prescribe Dilaudid for his patients. Throughout these proceedings, it became clear that Respondent had not kept abreast of the proper course of treatment, detection and proper prescribing patterns for scheduled drugs for the patients be treated. To Respondent's credit, he has been studying the proper prescribing of controlled substances since the initiation of the investigation and the administrative proceedings involved herein. Respondent has never "faked" exams and every prescription that he wrote was based on an office visit and an exam, though a very cursory exam. Respondent did not receive any illegal profits from the sale of drugs nor did he divert, or attempt to divert, any drugs for illegal profit. His office fees, which range from $15 to $25 were not based on the amount of the drugs prescribed but, rather, on the patient's ability to pay. Respondent operates a small general practice with his wife serving as his receptionist. He personally completes all prescription forms with his wife/receptionist. Patients receiving treatment from Respondent are free to get their prescriptions filled at any pharmacy of their choice. Respondent was unaware and the evidence does not show that any of his patients had prior criminal records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, and the entire evidence of record, it is therefore recommended that a Final Order be entered imposing a written reprimand and one year's probation upon the Respondent Carlos de la Fe, and requiring that during the probationary, he enroll and complete, to the satisfaction of the Board of Medical Examiners, a continuing medical education course concerned with the appropriate indications for and prescription of scheduled controlled substances. 4/ RECOMMENDED this 24th day of October, 1984 in Tallahassee, Florida. JAMES E. BRADWELL 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 25th day of October, 1984.
The Issue Whether Respondent violated Sections 458.331(1)(g), (j), (m), (q), and (t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of medicine pursuant to Section 20.20 and Chapters 455 and 458, Florida Statutes. Respondent, Ronald L. Cohen, M.D. (Dr. Cohen), is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0024014. Dr. Cohen's last known address is 7800 West Oakland Park Boulevard, Suite 216, Fort Lauderdale, Florida. Dr. Cohen's area of practice is urology, and he is board certified. He has been practicing in Fort Lauderdale since 1976. During his years of practice, he has enjoyed an excellent professional reputation. Between on or about July 2, 1990, through on or about May 16, 1992, Dr. Cohen treated Patient R.G. for various complaints. On or about July 2, 1990, Patient R.G., a thirty-four year-old female with a history of chemical dependency from the age of twelve for which she first underwent treatment in or about 1986, presented to Dr. Cohen with voiding complaints including post void dysuria, frequency, urgency, and urgency incontinence. However, such information about chemical dependency was unknown to Dr. Cohen until a subsequent time. Patient R.G. did not reveal to Dr. Cohen either her history of chemical dependency or treatment of that dependency. Dr. Cohen performed a physical examination of Patient R.G. wherein Dr. Cohen dilated Patient R.G.'s uretha. Dr. Cohen noted that Patient R.G.'s urinalysis was entirely within normal limits. Dr. Cohen then diagnosed Patient R.G. with urethritis, urthrel stenosis, and trigonitis. Dr. Cohen prescribed Patient R.G. a three-day supply of Noroxin and pyridium to improve Patient R.G.'s symptoms. Noroxin is an antibacterial agent indicated for the treatment of adults with complicated urinary tract infections. Pyridium is an analgesic agent indicated for the symptomatic relief of pain, burning, urgency frequency and other discomfort arising from irritation of the lower urinary tract mucosa. Patient R.G.'s symptoms persisted. On or about July 13, 1990, Patient R.G. underwent a cystoscopy, urethal dilation, and hydraulic bladder distention by Dr. Cohen at Outpatient Surgical Services in order to rule out interstitial cystitis. Dr. Cohen's postoperative impressions were as follows: Interstitial cystitis (inflammatory lesion of the bladder) and urethral stenosis. On or about July 17, 1990, Patient R.G. presented to Dr. Cohen's office in severe pain secondary to the cystoscopy and bladder distention. At that time, Patient R.G. complained of feeling bloated suprapubically. Dr. Cohen instilled dimethyl sulfoxide to relieve Patient R.G.'s pain. Patient R.G.'s symptoms were subsequently temporarily resolved. On or about January 19, 1991, Patient R.G. next presented to Dr. Cohen with complaints of a recurrent episode of urinary frequency and burning on the previous day. Shortly thereafter, in early 1991, Dr. Cohen asked Patient R.G. to go to lunch. Dr. Cohen and Patient R.G. subsequently began a social relationship which included sexual intercourse. At the time that Dr. Cohen initiated the relationship with Patient R.G. he was aware of the prohibitions against such conduct, knew he had choices available to him, but declined to exercise professional self-discipline. Dr. Cohen did exercise influence as Patient R.G.'s physician for the purpose of engaging in sexual relations. Dr. Cohen has never had a sexual relationship with any other patient. On or about April 8, 1991, Dr. Cohen wrote a prescription for thirty units of Valium 10 mg. for Patient R.G. who had at that time complained to Dr. Cohen of anxiety due to marital difficulties. Valium is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains diazepam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Valium is indicated for the management of anxiety disorders or for the short-term relief of symptoms of anxiety. Dr. Cohen's medical records of Patient R.G.'s urologic condition do not include any reference to the Valium prescription and therefore the records fail to justify his prescription of Valium, a controlled substance indicated for the treatment of anxiety, to Patient R.G. On May 16, 1992, Dr. Cohen wrote a prescription for thirty units of Prozac 20 mg. Prozac is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains Fluoxetine Hydrochloride which is not a controlled substance. Prozac is indicated for the treatment of depression. Dr. Cohen's medical records of Patient R.G.'s urologic condition do not include any reference to the Prozac prescription and therefore the records fail to justify his prescription of Prozac. Dr. Cohen inappropriately prescribed Prozac, a legend drug indicated for the treatment of depression. Prozac, however, was not indicated in the treatment of Patient R.G.'s urologic condition, interstitial cystitis. Dr. Cohen admitted to having prescribed Prozac to Patient R.G. as a favor so that Patient R.G. did not have to see her psychologist for said prescription. Dr. Cohen admitted to having a sexual relationship with Patient R.G. Dr. Cohen, by virtue of his sexual relationship with Patient R.G. and his inappropriate prescribing of Prozac for Patient R. G., failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances. Dr. Cohen underwent an evaluation by Thomas J. Goldschmidt, M.D., a specialist in neurology and psychiatry, in conjunction with Richard Westberry, Ph.D., a licensed psychologist. Dr. Goldschmidt issued a report on their evaluation in which he stated: We see no evidence of any exploitative tendency regarding Dr. [Cohen] in his relationship with this patient. There is no evidence of any sexual addiction component. And we do not feel that his is behavior that is likely to reoccur or compromise his ability to practice urology. We see this as an isolated incident that Dr. [Cohen] approached in a very naive fashion and was primarily orchestrated by the dynamics of a sexually provocative, aggressive female who proposed a sexual act that was nonthreating (sic) to the patient while simultaneously providing ego gratification for longstanding, underlying emotional conflicts dealing with castration fears and anxiety. Dr. Cohen voluntarily entered into a contract with the Physician's Recovery Network to assist him in dealing with his despondency and depression. Dr. Cohen continues to see Dr. Westberry on a weekly basis for his despondency. Dr. Cohen has never had any disciplinary action taken against his license nor has he been dismissed from any position at a hospital at which he had staff privileges. Dr. Cohen has staff privileges at four hospitals. Dr. Cohen was Vice Chief of Staff at one of the hospitals until he voluntarily resigned that position when this case surfaced in order to avoid embarrassment to the hospital.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Dr. Cohen violated Sections 458.331(1)(g), (j), (m), (q) and (t) as set forth in Counts 1-5 in the Administrative Complaint, and imposing a $5,000 fine for the violations of Sections 458.331(1)(g) and (j), Florida Statutes and a $5,000 fine for violations of Sections 458.331(1)(m), (q), and (t), Florida Statues, for a total of $10,000, and placing Dr. Cohen on probation for two years under terms and conditions to be set by the Board of Medicine. DONE AND ENTERED this 15th day of March, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 15th day of March, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3274 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-9: Accepted. Paragraphs 10-11: Accepted in substance. Paragraphs 12-14: Accepted. Paragraph 15: Rejected as irrelevant because the administrative complaint did not state such a violationas it related to the valium but only as to the Prozac. The violation relating to valium was the record keeping. Paragraphs 16-19: Accepted. Paragraph 20: Accepted except as to the valium. The administrative compliant did not allege such a violationas it related to valium. Respondent's Proposed Findings of Fact. Paragraphs 1-2: Accepted. Paragraph 3: Accepted in substance. Paragraph 4: Accepted as to his professional reputation. The remainder is rejected as unnecessary. Paragraph 5: Rejected as subordinate to the facts found. Paragraph 6: The first sentence is accepted. The remainder is unnecessary. Paragraphs 7-13: Accepted. Paragraph 14: Rejected as subordinate to the facts found. Paragraph 15: Rejected as not supported by the greater weight of the evidence. Dr. Cohen is the party whoinitiated the social relationship with R.G. when heasked her out to lunch. He was physically attracted tothe patient and that is why he asked her out. Paragraph 16: Accepted. Paragraph 17: The first sentence is accepted. The last sentence is rejected as subordinate to the facts found because Dr. Cohen did prescribe medication forR.G. which had nothing to do with the complaints forwhich she was seeing Dr. Cohen. Paragraph 18: Rejected as subordinate to the facts found. See paragraph 17. Paragraphs 19-22: Rejected as subordinate to the facts found. Paragraph 23: The first and second sentences are rejected as subordinate to the facts found. The thirdsentence is accepted to the extent that he has enteredcounseling. Paragraphs 24: Accepted to the extent that he is in counseling and that such a relationship will not likelyoccur again. Paragraph 25: Accepted in substance. Paragraph 26: The first two sentences are accepted in substance. The remainder is rejected as unnecessary. Paragraph 27: Accepted in substance that such a relationship is unlikely to happen in the future. Rejected to the extent that it implies that R.G. gavefree, full informed consent to the sexual activity. Paragraphs 28-29: Accepted in substance. Paragraph 30: Rejected as subordinate to the facts found. Paragraphs 31-34: Accepted in substance. Paragraph 35: Rejected as unnecessary. Paragraphs 36-39: Accepted in substance. COPIES FURNISHED: Donald G. Korman, Esquire Korman, Schorr and Wagenheim The Dart Building 2101 North Andrews Avenue, Suite 400 Ft. Lauderdale, Florida 33311 Paul Watson Lambert, Esquire 2851 Remington Green Circle, Suite C Tallahassee, Florida 32308-3749 Albert Peacock, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-6506 Dr. Marm Harris Executive Director Agency For Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since 1977, a family practice physician licensed to practice medicine in the State of Florida. He holds license number ME 0030309. Respondent's Prior Disciplinary Record DPR Case No. 0053427 On or about April 24, 1986, the Department issued a three-count administrative complaint in DPR Case No. 0053427 alleging that, in connection with his care and treatment of patients J.L. and S.B., Respondent violated Section 458.331(1)(n) (now 458.331(1)(m)), Florida Statutes (inadequate recordkeeping), Section 458.331(1)(q), Florida Statutes (inappropriate prescribing, dispensing or administering), and Section 458.331(1)(t), Florida Statutes (substandard care). The Department and Respondent entered into a settlement stipulation. The stipulation provided that Respondent "neither admit[ted] nor denie[d]" the facts alleged in the administrative complaint. On or about December 16, 1988, the Board of Medicine (hereinafter referred to as the "Board") issued a final order approving and adopting the parties' settlement stipulation, with amendments to which there were no objection. Through the final order, the Board imposed the following disciplinary action upon Respondent: a reprimand; a $2,500.00 fine; and five years probation. DPR Case No. 90-01131 On or about July 19, 1990, the Department issued a two-count administrative complaint in DPR Case No. 90-01131 alleging that Respondent violated the terms and conditions of the probation imposed by the Board's December 16, 1988, final order in DPR Case No. 0053427 in that he failed to: "complete 30 hours of CME" during the first year of his probation; and "submit quarterly reports to the Board office." On or about May 6, 1991, the Board entered a default order (1) finding that Respondent committed the violations alleged in the administrative complaint, and (2) reprimanding him, fining him $2,000.00 and suspending his license "until such time as [he] appear[ed] before the Board and demonstrate[d] that he ha[d] brought himself into compliance with the Final Order of the Board filed on December 16, 1988." DPR Case Nos. 90-09231, 91-01228 and 90-15935 Administrative complaints were filed against Respondent in DPR Case Nos. 90-09231, 91-01228 and 90-15935. Thereafter, on or about June 2, 1992, the Department and Respondent entered into a settlement stipulation. The stipulation provided that Respondent "neither admit[ted] nor denie[d]" the facts alleged in the administrative complaints. On or about October 29, 1992, the Board issued a final order approving and adopting the parties' settlement stipulation, with additions. Through the final order, the Board imposed the following disciplinary action upon Respondent: a reprimand; a $3,000.00 fine; restriction of license (with respect to prescribing, dispensing and administering drugs); and five years probation. DPR Case No. 91-12504 On October 7, 1992, the Department issued an 11-count amended administrative complaint in DPR Case No. 91-12504 charging Respondent with: one violation of Section 458.331(1)(g), Florida Statutes (failing to perform a lawful obligation- Count 10); three violations of Section 458.331(1)(m), Florida Statutes (inadequate recordkeeping- Counts 3, 6 and 9); three violations of Section 458.331(1)(q), Florida Statutes (inappropriate prescribing, dispensing or administering- Counts 2, 5 and 8); three violations of Section 458.331(1)(t), Florida Statutes (substandard care- Counts 1, 4 and 7); and one violation of Section 458.331(1)(x), Florida Statutes (violating a lawful Board order- Count 11). Count 10 of the amended administrative complaint alleged that "Respondent failed to comply with a legal obligation placed upon a licensed physician in that he possessed, stored, and dispensed controlled substances without having a DEA registration." The remaining counts of the amended administrative complaint dealt with Respondent's care and treatment of three patients, specifically, L.A., R.A. and R.M. Respondent denied the allegations of wrongdoing and the case was referred to the Division. A Division Hearing Officer conducted a formal hearing and issued a recommended order. The Board issued its final order finding Respondent guilty of Counts 1 (in part), 4 (in part), 6 (in part), 7 (in part), 9 (in part), 10 and 11 (in part) and disciplining him for having committed these violations by fining him $3,000.00, suspending his license for 15 months, and placing him on probation for five years following the reinstatement of his license. Facts Relating to DOAH Case No. 93-5475 In its final order issued in DPR Case Nos. 90-09231, 91-01228 and 90- 15935, which became effective upon its filing on October 29, 1992, the Board mandated, among other things, as conditions of Respondent's probation, that he "not in the future violate Chapters 455, 458 and 893, Florida Statutes, or the rules promulgated pursuant thereto," and that he prescribe Schedule III-V controlled substances only in compliance with the restrictions set forth below: Respondent shall utilize sequentially numbered triplicate prescriptions. Respondent shall immediately provide one copy of each prescription to the monitor. Respondent shall provide one copy of each prescription to the Department's investi- gator within one month after issuing said prescription. Respondent prescribed by telephone order for patient B.P.: Tranxene (7.5 mg., #30) on or about March 1, 1993; and Fiorinal (#30) and Vicodin (#20) on March 11, 1993. None of these prescriptions was reduced to writing. Tranxene is a legend drug that contains the Schedule IV controlled substance chlorazepate. Fiorinal is a legend drug that contains the Schedule IV controlled substance butalbital. Vicodin is a legend drug that contains the Schedule III controlled substance hydrocodone bitartrate. On or about March 13, 1993, Respondent prescribed Valium (10 mg., #40, with one refill) for B.P. The prescription was reduced to writing, but not on a "sequentially numbered" prescription pad. Valium is a legend drug that contains the Schedule IV controlled substance diazepam. On or about March 22, 1993, Respondent again prescribed Vicodin (#10) for B.P. by telephone order without reducing the prescription to writing. On or about April 22, 1993, Respondent submitted to the Board what he indicated in an accompanying cover letter were "[c]opies of [p]rescriptions written by [him] from February 13th to March 13, 1992 [sic]." Among the prescriptions he submitted were: a prescription dated April 8, 1993, for Tylenol IV which did not contain Respondent's federal Drug Enforcement Administration (DEA) Certificate of Registration number; approximately 23 prescriptions for con- trolled substances that did not include the patient's address; and prescriptions for controlled substances that were out of sequential order. On or about May 11, 1993, Respondent submitted to the Board what he indicated in an accompanying cover letter were "[c]opies of [p]rescriptions written by [him] from April 10, 93-May 10, 1993." Among the prescriptions were: approximately four prescriptions for controlled substances which did not contain Respondent's federal DEA Certificate of Registration number; approximately 12 prescriptions for controlled substances that did not include the patient's address; and prescriptions for controlled substances that were out of sequential order. Facts Relating to DOAH Case No. 93-5531 On or about August 29, 1989, W.P., a twenty-one year old female, initially presented to Respondent complaining of a severe headache, cough, sore throat, running nose, swollen glands, fever of 101 to 102 degrees, and achiness throughout her body. These complaints were recorded in the medical records Respondent maintained on the patient. W.P. is a licensed practical nurse. She had worked for Respondent from approximately December of 1988, to June of 1989, but prior to August 29, 1989, she had never been a patient of his. During W.P.'s initial visit on August 29, 1989, Respondent conducted a brief history and physical examination of W.P. As his medical records reflect, Respondent's "clinical impressions," that is, what he "fe[lt were] . . . most probably the cause[s]" of W.P.'s pain and discomfort, were as follows: "1. viral syndrome;" "2. severe occipital/retro-orbital headaches;" and "3. ? early viral meningitis." Meningitis is an inflammation of the membrane of the brain or spinal cord. It may be viral or bacterial in nature. Bacterial meningitis is a life threatening illness that requires immediate attention and treatment. Under ordinary circumstances, such as those that existed in the instant case, it is not possible for a physician who suspects that a patient is suffering from viral meningitis to determine with any reasonable degree of certainty, based simply upon his clinical findings and observations, whether the suspected meningitis is viral or bacterial in nature. Therefore, a reasonably prudent physician who suspects that a patient may have viral meningitis should have the patient undergo a lumbar puncture (also referred to as a spinal tap) to confirm that the patient's illness is viral and not bacterial in nature, provided that a computerized axial tomography (CAT) scan of the patient's brain reveals that there is no contraindication to the patient undergoing such a procedure. At no time that W.P. was under his care did Respondent have her undergo a lumbar puncture, nor did he order or perform a CAT scan of her brain to see whether a lumbar puncture was contraindicated. Instead, during W.P.'s initial visit on August 29, 1989, Respondent ordered a complete blood count (CBC). He also gave W.P. an injection of 100 milligrams (mg.) of Demerol to treat her headache pain and an injection of 100 mg. of Vistaril to combat nausea. Demerol and Vistaril are legend drugs. Demerol contains the Schedule II controlled substance meperidrine. W.P. left Respondent's office reporting that she felt better. She returned a few hours later that same day, August 29, 1989, however, complaining of a pounding headache, nausea, chills, a sore neck and general discomfort. As his medical records reflect, Respondent's "clinical impressions" during this second visit on August 29, 1989, were as follows: "1. viral syndrome;" "2. meningeal irritation-> headache;" and "3. cervical lymphadenitis," which is an inflammation or swelling of the lymph nodes in the area of the neck. Respondent treated W.P. by again giving her injections of 100 mg. of Demerol and 100 mg. of Vistaril. The treatment provided W.P. with "good relief." The following day, August 30, 1989, W.P. made a third visit to Respondent's office. Although she was feeling a "little better" than she had the day before, she still had a sore throat and severe pain in the "back of [her] eyes and [at] the top of [her] head." As his medical records reflect, Respondent's "clinical impressions" during this third visit were as follows: "1. severe headaches;" "2. viral syndrome;" and "3. ? early meningitis (viral)." Respondent treated W.P. by giving her intramuscular injections of 20 mg. of Nubain and 100 mg. of Vistaril. Nubain is an injectable legend drug. It is a synthetic narcotic agonist-antagonist analgesic that, because of its potency, is indicated for the relief of moderate to severe pain. Vistaril potentiates the central nervous system effects of Nubain. Nubain has potential for abuse, but the potential is low. An emotionally unstable patient is more likely to become dependent on Nubain than a patient without emotional problems. A patient who has been using other narcotics may suffer withdrawal symptoms upon the administration of Nubain. One of possible adverse effects of Nubain is headache (3 percent incidence). For an adult weighing 70 kilograms (kg.): the usual recommended dose of Nubain is 10 mg. every three to six hours; the recommended maximum single dose of Nubain is 20 mg.; and the recommended maximum daily dose of Nubain is 160 mg. At all times material to DOAH Case No. 93-5531 W.P. weighed considerably less than 70 kg. (For instance, on August 30, 1989, she weighed approximately 54 kg.) 5/ In determining how much Nubain a patient should be given, the physician must take into consideration the severity of the pain the patient is experiencing, the size and physical condition of the patient, and other medications the patient may be taking which, like Vistaril, will potentiate the effects of the Nubain given the patient. The Nubain and Vistaril that Respondent administered to W.P. during her August 30, 1989, office visit provided W.P. with "good relief." The following day, August 31, 1989, W.P. returned to Respondent's office complaining of a sore throat and "pain in [the] back of [her] eyes and head" which made her unable to concentrate at work. As his medical records reflect, Respondent's "clinical impressions" during this fourth visit were as follows: "1. viral syndrome;" "2. meningitis;" and "3. severe headaches due to (1) and (2) above." Respondent treated W.P. by giving her injections of 100 mg. of Demerol and 100 mg. of Vistaril. The treatment provided W.P. with "good relief." The next day, September 1, 1989, W.P. paid a fifth visit to Respondent's office. She complained of a severe headache, nausea and anorexia and further reported that she had been vomiting. As his medical records reflect, Respondent's "clinical impressions" during this fifth visit were as follows: "1. viral syndrome;" "2. viral meningitis;" and "3. severe headache." Respondent treated W.P. by giving her injections of 100 mg. of Demerol and 100 mg. of Vistaril. The treatment provided W.P. with "good relief." Respondent next treated W.P. on October 23, 1989. From that date until approximately April 2, 1990, Respondent saw W.P. on approximately 32 or 33 occasions in his office. W.P. presented on these occasions complaining of painful headaches. It was Respondent's "clinical impression" that, given W.P.'s symptomatology and history, these headaches were, for the most part, migraines. Although he based his assessment, in part, upon W.P.'s "history of migraine headaches [and her] family history of migraine headaches," Respondent did not document in the medical records he maintained on W.P. that she had such a personal and family history. On each of these approximately 32 or 33 occasions that W.P. presented with painful headaches, Respondent treated W.P. by giving her intramuscular injections of 20 mg. of Nubain 6/ and 100 mg. of Vistaril. Given that W.P. weighed considerably less than 70 kg. and that Vistaril potentiates the central nervous system effects of Nubain, the 20 mg. doses of Nubain that Respondent consistently used to treat W.P. were too high, notwithstanding the pain of which W.P. complained. Respondent also gave W.P. approximately five vials, each containing ten cubic centimeters (cc.) of Nubain at a concentration of 20 mg. per milliliter (ml.), to take home with her. Although Respondent did not specifically indicate in the medical records he maintained on W.P. why he gave W.P. these vials of Nubain, his purpose was apparent: to allow W.P., a licensed practical nurse, to give herself Nubain injections at home when she felt she needed pain relief instead of having to come to Respondent's office to obtain such relief. Respondent was not the only family practice physician from whom W.P. was receiving medical treatment during the period of time that she was under Respondent's care. W.P. also was being treated by Richard Campbell, M.D., during this time frame. In March of 1990, Dr. Campbell referred W.P. to Joann Bauling, Ph.D., a Florida-licensed psychologist, to treat W.P.'s "emotional depression." During a counseling session held on or about March 20, 1990, W.P. told Dr. Bauling that for the past six months she had been self-injecting Nubain given to her by Respondent. According to W.P., she was "getting one bottle a day" from Respondent. W.P. further stated that she could "get as much Nubain as she ever wanted" from Respondent. 7/ Dr. Bauling believed that W.P. was addicted to Nubain. On or about April 10, 1990, Dr. Bauling sent to Respondent the following letter that both she and W.P. had signed: Dear Dr. Jowhal: I am working with Dr. Joanne Bauling to stop using the drug "Nubain." I would appreciate it if you would also help me by no longer prescribing this or any other addictive medication. If I should call you requesting this type of medication, I would ask that you refer me to an emergency room. In addition to sending the foregoing letter to Respondent, in early April of 1990, prior to sending the letter, Dr. Bauling telephoned Respondent and advised him that W.P. was addicted to Nubain. During the telephone conversation, Dr. Bauling requested that Respondent not give W.P. any more Nubain and Respondent indicated that he would comply with Dr. Bauling's request. He too was concerned that W.P. might be addicted to the drug. Nonetheless, on W.P.'s next (and last) visit to his office, on February 27, 1991, when W.P. presented complaining of a severe headache, Respondent, as he had done in the past, treated W.P. by giving her intramuscular injections of 20 mg. of Nubain and 100 mg. of Vistaril. Under the circumstances, it was inappropriate for him to treat W.P. with any Nubain, regardless of the dosage. Although W.P., following her initial visit to Respondent on August 29, 1989, returned to his office on numerous occasions complaining of headache pain, at no time that she was under Respondent's care did Respondent conduct or order: a complete neurological evaluation; a complete psychiatric evaluation; a CAT scan of the brain; a magnetic resonance imaging (MRI) of the brain; or an electroencephalogram (EEG). Neither did he seek a consultation with, or refer W.P. to, a specialist. Instead, Respondent continued to treat W.P. with intramuscular injections of 20 mg. doses of Nubain, along with Vistaril. Throughout the period that he treated W.P., Respondent's primary objective was to help W.P. find relief from the pain from which it appeared that she was suffering. Notwithstanding Respondent's good intentions, the care and treatment he provided her was, in certain respects, substandard. Specifically, in not doing the following while W.P. was his patient, Respondent failed to practice medicine with that level of care, skill and treatment that, in light of the surrounding circumstances, a reasonably prudent family practice physician would have recognized as being acceptable and appropriate at the time: considering, when he suspected that W.P. might have meningitis, that she undergo a lumbar puncture and ordering or performing a CAT scan of W.P.'s brain to see whether a lumbar puncture was contraindicated; conducting or ordering complete neurological and psychiatric evaluations of W.P.; and consulting with a specialist concerning W.P.'s recurring headaches.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1) of Section 458.331, Florida Statutes, noted above, dismissing the remaining allegations against him and disciplining him for the violations he committed by (1) suspending his license to practice medicine in the State of Florida for a period of five years, beginning after the end of the suspension his license is now under, (2) placing him on probation for the following five years, and (3) imposing an administrative fine in the amount of $10,000.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of February, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1995.
