Findings Of Fact On June 5, 1985, the Department filed an administrative complaint against the Petitioner. That complaint alleged Petitioner had violated seven subsections of Section 458.331, Florida Statutes. The matter was not referred to the Division of Administrative Hearings for formal proceedings until July 10, 1987. The record does not explain the time delay which elapsed between the time of filing the administrative complaint and the time the matter was referred for hearing. On September 7, 1988, a formal hearing was conducted in connection with the matter. On November 16, 1988, a recommended order was entered which recommended the dismissal of all counts of the complaint. The basis for the recommendation was the Department's failure to prove by clear and convincing evidence the facts constituting the alleged violations. A ruling on a preliminary motion had determined that the Department was not entitled to compel the licensee to testify or provide evidence against himself. On February 18, 1989, the Board of Medicine (Board) entered a Final Order, DOAH Case No. 87-2896, which approved and adopted the recommended order, both as to the findings of fact and conclusions of law. The Board rejected all exceptions which had been filed by the Department. Petitioner is a "prevailing small business party" and is entitled to seek attorneys fees pursuant to Section 57.111, Florida Statutes. Petitioner has not sought fees on another basis. Petitioner filed his petition for fees within 60 days of becoming a prevailing party and has, therefore, timely asserted his claim for fees. The attorney fees and costs which Petitioner seeks are reasonable for the fees and costs incurred for all preparations in these proceedings (prehearing stipulation). The amount claimed to be due Petitioner exceeds $15,000. There are no special circumstances which would make the award of attorney's fees and costs unjust (prehearing stipulation). The administrative complaint which is the subject of this case was filed following a probable cause panel meeting which occurred on May 23, 1985. Present at that meeting were panel members Bass and Feinstein. Information presented to the members included an investigative report. Both members acknowledged that they had thoroughly reviewed the materials related to the allegations against Petitioner. After reviewing the materials, the probable cause panel recommended the filing of the administrative complaint. Included with the investigative report were the following documents: a uniform complaint form, dated October 8, 1984, based upon a letter, dated October 2, 1984, received from the Food and Drug Administration; a copy of a letter dated October 23, 1984, addressed to Petitioner from the investigator informing Petitioner of the pending investigation; a copy of a letter from an attorney on behalf of Petitioner (which letter referenced the Fountain of Life Medical Centers and suggested Petitioner had valid patient/doctor relationships with persons being treated); another letter from the attorney for Petitioner referring to procaine and identifying Petitioner as the staff physician for the clinic under investigation; and an affidavit from an investigator who had attempted to make an appointment to see a doctor at the clinic. The information noted in the investigative report contained alleged admissions made by Petitioner to the investigator. The purported admissions connected Petitioner to the Fountain of Life Medical Centers and the dispensing of the substance, procaine. The investigative file did not contain information as to whether procaine is a legend drug, the identity of any person who had allegedly received the substance from the Petitioner, copies of any medical records related to the dispensing of the substance, or any confirmation that the dispensing of the substance in the manner alleged, if true, would fall below the prevailing standard of practice observed by the medical community. The investigation conducted in this case was inadequate to fully clarify the factual issues prior to the probable cause hearing. The materials submitted to the probable cause panel did, however, create a reasonable basis for the panel's determination for reasons hereinafter discussed in the Conclusion of Law. Counsel for the Department was not present at the probable cause meeting during the discussion of the Petitioner's case. Legal opinions regarding the sufficiency of the factual materials or admissibility of the evidence related to the claims were not sought by the panel nor rendered unsolicited by the counsel for the Board (who was present).
The Issue Whether Petitioner's medical license should be reinstated.
Findings Of Fact Stipulated Facts By Final Order issued in Case No. 92-011898, filed February 16, 1995, Respondent adopted a consent agreement. The Administrative Complaint in the case charged Petitioner with violations of Subsections 458.331(m)(q) and (t), Florida Statutes. The Final Order placed Petitioner on probation for a period of 3 years under the indirect supervision of another licensed physician, and imposed reporting requirements and review of medical records. The Final Order also required Petitioner to pay a fine of $5,000, to be paid in installments; complete five hours of continuing medical education in risk management and 10 hours of continuing medical education (hereinafter "CME") in pain management prior to February 16, 1996; complete a medical records course offered by the Florida Medical Association (hereinafter "FMA course") and a course on prescription drugs offered by the University of South Florida (hereinafter "USF course") during the first year of probation. Finally, Petitioner was restricted concerning the prescription of Schedule II controlled substances. By correspondence dated February 17, 1995, Petitioner was notified that his first appearance before Respondent's Probation Committee (the Committee) was scheduled for March 16, 1995. Petitioner was reminded that he could not practice medicine until his supervising physician (hereinafter "monitor") was approved. By separate correspondence dated February 17, 1995, Petitioner was provided with brochures for the USF and FMA courses. Petitioner was advised that the USF course fills up quickly. On March 10, 1995, Pauline Gray, M.D., notified the Agency for Health Care Administration (AHCA) that she would serve as Petitioner's monitor. On March 16, 1995, the Committee met. Petitioner advised the Committee that Dr. Gray was ill and unable to attend the meeting, although her appearance was a condition of the Final Order. Petitioner acknowledged that he had been practicing medicine, although his monitor had not been approved; Petitioner further acknowledged receipt of the February 17, 1995 correspondence advising him he could not practice without an approved monitor. Petitioner was advised by the Committee to cease practicing until a monitor was approved. On March 29, 1995, Dr. Gray advised the Department that while she had been ill, she had not stopped practicing, and continued to be willing to serve as Petitioner's monitor. On March 31, 1995, the Department advised Petitioner that his first installment payment on his fine was delinquent. On April 3, 1995, Petitioner advised an AHCA investigator that he did not recall being told to cease practicing, and acknowledged that he had continued to practice after the Committee meeting. Petitioner suggested that his need for a hearing aid could cause confusion. On April 6, 1995, the Department acknowledged receipt of Petitioner's sample prescription form for Schedule II controlled substances, and was again reminded that he could not practice medicine until his monitor was approved. On April 10, 1995, the Department by correspondence again advised Petitioner to cease practice until his monitor was approved; at the request of Respondent, Petitioner was asked to submit an explanatory letter from Dr. Gray concerning her illness and her ability to monitor Petitioner. At the May 18, 1995 meeting of the Committee, Dr. Jeffrey Brooks was approved as Petitioner's monitor. On May 30, 1995, the Board issued its order clarifying the terms of Petitioner's probation, advising that monitor reports were to be made on a quarterly basis. On March 14, 1996, Petitioner was granted an extension of time to complete his CME requirements. On March 20, 1996, Petitioner was provided with sources for the required CME. On March 22 and April 1, 1996, the Department requested immediate submission of three delinquent reports from Petitioner. On April 16, 1996, a Final Order in Case No. 95-13102 was entered. The Administrative Complaint charged that Petitioner practiced medicine without a monitor in violation of the previous Final Order. In this Final Order, Petitioner was placed on six months' suspension, with the suspension stay conditioned on his compliance with the Final Order issued in Case No 92-01898. The Final Order also imposed an additional fine of $1,000.00, due on June 16, 1996, and required Petitioner to successfully complete a laws and rules examination by October 16, 1996. On April 24, 1996, Respondent issued an Order granting Petitioner's request for modification of the terms of the Final Order in Case No. 92-10898. Petitioner was granted an extension of time until October 23, 1996, to complete the risk management and pain management CMEs required, and an extension until December 1, 1996, to complete the USF course. By correspondence dated April 29, 1996, the Department confirmed for Petitioner the new due dates for the CME and USF drug course. On May 10, 1996, the Department requested delinquent reports from Petitioner. On May 16, 1996, Petitioner submitted probationer reports due November 15, 1995, February 15, 1996 and May 15, 1996. Petitioner completed the laws and rules examination on September 19, 1996. As of October 9, 1996, Petitioner had not yet made arrangements to complete the CME and the FMA and USF courses, due October 23, 1996 and December 1, 1996, respectively. In February 1997, Petitioner was notified his November 15, 1996 probationer report was delinquent, and he explained he forgot the report. On March 20, 1997, Petitioner appeared before the Committee and was granted an extension of one year to complete his delinquent CME and the FMA and USF courses. On April 29, 1997, Petitioner was provided brochures for the FMA records and USF drug courses and advised to register immediately. On September 18, 1997, the committee temporarily approved Dr. Stephen Spore to act as Petitioner's new monitor. He was approved on November 13, 1997. On December 6, 1997, Petitioner completed the FMA course. On April 7, 1998, the Department filed a Uniform Complaint with AHCA regarding Petitioner's failure to pay his fine and failure to complete CME. On May 27, 1999, Petitioner completed six hours of CME in risk management. On October 20, 2000, Respondent entered an Order lifting the stay of the suspension imposed in Case No. 95-13102. Petitioner completed the required CME in pain management on October 26, 2000 (1 hour), October 28-29 (9 hours), and November 9-10, 2000 (2 hours). On December 9, 2000, a risk management survey of Petitioner's practice was conducted. On December 19, 2000, Respondent entered a Final Order adopting a consent agreement in Case No. 98-11086.1 Petitioner's license was suspended until the CME in Respondent's prior orders was completed and the risk management review was completed. In addition, Respondent imposed a fine of $2,000.00 and costs in the amount of $696.00, due December 19, 2001. At the time of the March 30 through April 1, 2001 meeting of the Respondent, Petitioner had met all of the requirements for reinstatement specified in the previous Final Orders. Findings of Fact Based on the Evidence of the Record Crystal Griffin was the compliance officer for the Board of Medicine during the period 1992-1998. As compliance officer, Ms. Griffin was responsible for monitoring compliance with disciplinary orders issued by the Board. Ms. Griffin was the compliance officer for Petitioner's probation from the entry of the first Final Order until she resigned in 1998. Upon receiving a disciplinary order, Ms. Griffin sent to the physician an information package which included the due date of every requirement of the Final Order and information explaining how to comply with each requirement. The information package also included brochures for the USF prescribing drug course and the FMA medical records-keeping course. The USF course is given once a year. The FMA course takes four months to complete. Thomas Sweat is a medical malpractice investigator for the Agency for Health Care Administration. In his position, he acts as a probation officer when a medical professional is placed on probation. Mr. Sweat acted in that capacity with regard to Petitioner's probation. Acting as probation officer, Mr. Sweat periodically would interview Petitioner, Petitioner's monitor, and the compliance officer, Ms. Griffin. Mr. Sweat interviewed Petitioner on numerous occasions during which he counseled Petitioner regarding his problems in complying with the terms of his probation. On May 9, 1996, Mr. Sweat interviewed Petitioner at his office. Mr. Sweat advised Petitioner of delinquent probationer reports. Although he had been on probation for over a year, Petitioner stated he was confused about what to include in his reports. Mr. Sweat advised Petitioner to contact Ms. Griffin in that regard. During the May 9, 1996 interview Petitioner admitted he had not made arrangements to complete his required CME and the USF and FMA courses. Even though Ms. Griffin had provided Petitioner the necessary information, he stated that he did not know where to arrange for the courses. On February 4, 1997, Mr. Sweat attempted to interview Petitioner at his office. Upon arrival he found the office closed and vacant with no signs advertising Petitioner's new location. When Petitioner was located, he was admonished that he had violated his terms of probation by relocating his office without notifying the Board. Petitioner had moved his office the previous August. Petitioner stated to Mr. Sweat that it never occurred to him to notify anyone. It is apparent from the testimony presented at hearing that Petitioner either did not understand or did not recall his obligations under various orders issued by the Board. Because of the problems Petitioner had with understanding his obligations of the previous orders of the Board, concerns were raised at the March 30 through April 1, 2001, Board meeting about Petitioner's cognitive thinking and ability to practice medicine safely. The Board voted to deny Petitioner's request for reinstatement and to require him to undergo an evaluation by the CARES program at the University of Florida (UFCARES). The May 3, 2001 Order entered by the Board denying Petitioner's petition for reinstatement and requiring an evaluation by the UFCARES program prior to reinstatement was based on the ground that the Board had concerns regarding Petitioner's ability to safely practice medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Health, Board of Medicine, enter a Final Order denying Petitioner's application for reinstatement until such time that he undergoes the UFCARES program. DONE AND ENTERED this 8th day of October, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 2001.
The Issue The issue in this case is whether the Board of Nursing should discipline the Respondent, Mary Ann Welch, n/k/a Mary Ann Childs Fontana, for allegedly violating probation, as charged in the Administrative Complaint, DPR Case No. 90-010360.
Findings Of Fact The Respondent, Mary Ann Welch, n/k/a Mary Ann Childs Fontana, has been a Florida licensed practical nurse since May 25, 1981. She holds license number PN 0616271. On March 27, 1990, the Board of Nursing entered a Final Order in the proceeding entitled Department of Professional Regulation v. Mary A. Welch, Case No. 89-001392, which extended by one year (to and including May 24, 1990) the period of probation which the Respondent already was serving under a Board Order of Reinstatement entered on May 24, 1988. Among the conditions of probation was the condition that the Respondent "shall not consume, or otherwise self medicate with any controlled substances or legend drugs unless prescribed by a duly licensed practitioner." The Respondent also was required to "submit to random blood and/or urine tests at times and places to be arranged by the Department." The evidence did not reveal the nature of the Administrative Complaint in Case No. 89-001392. On May 24, 1990, the last day of the Respondent's probation, the Respondent was required to submit to the Department a urine sample for testing by the SmithKline Beecham Laboratory in Tampa, Florida. Testing indicated the presence of benzodiazepine, a legend drug, or its metabolites, in the Respondent's urine sample. The Respondent had no prescription for any benzodiazepine. The Department did not notify the Respondent that she had tested positive for benzodiazepine until August 14, 1990. When notified of the results of the test, the Respondent denied having taken any drug containing any benzodiazepine. She admitted only to having taken over-the-counter sinus medications. But, according to the evidence, over-the-counter sinus medications would not test positive for benzodiazepines or their metabolites. Despite the Respondent's denial, it is found that the Respondent did consume or otherwise self-medicate with a controlled substance or legend drug not prescribed by a duly licensed practitioner, in violation of the conditions of probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Nursing enter a final order suspending the license of the Respondent, Mary Ann Welch, n/k/a Mary Ann Childs Fontana, for 90 days. RECOMMENDED this 27th day of June, 1991, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 27th day of June, 1991. COPIES FURNISHED: Tracey S. Hartman, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mary Ann Childs Fontana 2965 Meadow Oak Drive South Clearwater, Florida 34621 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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
The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what penalty should be imposed?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent has been licensed to practice medicine in the State of Florida since September 4, 1970. Respondent was formerly licensed to practice medicine in the State of New York. By order issued July 3, 1987, by the New York Commissioner of Education, Respondent's New York license was revoked on the ground that he had been convicted of committing an act constituting a crime under the law of another jurisdiction, which, if committed in New York State, would have constituted a crime under New York State Law, in that: On or about January 18, 1984, in the Superior Court of California, County of Los Angeles, in the People of the State of California v. Jose Minaya (No. A344 720), aff'd No. B005332 (Ct. of Appeals, 2nd App. Dist., Oct. 1985), the Respondent, following a jury trial, was convicted of one count of grand theft and six counts of filing false Medi-Cal claims. Upon his conviction, Respondent was sentenced to four years imprisonment, was fined $10,000 for each of the six counts of filing false Medi-Cal claims, and restitution to the State of California was imposed in the sum of $14,866.80. The convictions which resulted in the revocation of Respondent's New York license were more specifically described as follows in the California appellate court opinion referenced in the Education Commissioner's July 3, 1987, order: [Respondent], specializing in ophthalmology, was charged and convicted primarily of filing falsified Medi-Cal treatment authorization requests (hereinafter referred to as TARs) in order to obtain permission to perform elective cataract surgeries on Medi-Cal beneficiaries. The People of California proved that the cataract surgeries were not medically justified and that the TARs were falsified by the appellant himself or at his direction, so that he could obtain payment from the state by false pretenses. * * * Count VIII, grand theft, was proven by the People as larceny by false pretense for the accumulation of all monies received from the surgeries performed on the Medi-Cal recipients named in the false claims counts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license to practice medicine in the State of Florida based upon the revocation of his New York license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of November, 1989. 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 29th of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2120 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case: Rejected because it is more in the nature of a conclusion of law than a finding of fact. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected because it is more in the nature of a conclusion of law than a finding of fact. COPIES FURNISHED: David G. Pius, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jose Minaya, M.D. 536 North 19th Street Montebello, California 90640 Jose Minaya, N.D. c/o Carlos Lorente 1018 Cyrus Lane Arcadia, California 91006 Jose Minaya, N.D. c/o P.A. Boyens Parole Agent II 9500 Norwalk Boulevard Santa Fe Springs, California 90670 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code.
Findings Of Fact Dr. Fenichel is a Florida licensed dentist having been issued license number DN-0008157. Dr. Fenichel maintains a professional dental practice in the State of Florida having a principal business address of 7544 Lake Worth Road in Lake Worth, Florida 33467. Dr. Fenichel maintains his primary residence within the State of Florida. Dr. Fenichel employs no more than twenty-five full-time employees and has never employed more than twenty-five full-time employees. Dr. Fenichel has a net worth of less than two million dollars, including both personal and business investments and has not had a net worth of more than two million dollars since the time the underlying action was initiated against his license to practice dentistry. Sometime in the late summer or early fall of 1989, F.P., 1/ a former patient of Dr. Fenichel, (hereinafter referred to as the "Patient") filed a written complaint regarding the care and treatment she had received from Dr. Fenichel. During the fall of 1988, Dr. Fenichel provided dental care to the Patient which included prophylaxis, an extraction, the recapping of crowns on teeth #'s 21, 22, 27 and 28 and a removable denture for teeth #'s 29, 30, 31 and 18, 19 and 20. DPR began an investigation of the Patient's complaint assigning it DPR Case Number 89-08779, notified Dr. Fenichel on or about September 27, 1989 of the complaint, conducted interviews with the Patient and Dr. Fenichel, obtained a written response, the Patient's records and x-rays from Dr. Fenichel, and obtained information and x-rays from a subsequent treating dentist in New Jersey, Dr. Lucca. The Probable Cause Panel of the Board of Dentistry met on at least three separate occasions pursuant to Section 455. 255, Florida Statues, to review DPR's investigative report and recommendations concerning the case. On March 15, 1990, the Probable Cause Panel met to consider the DPR investigative report and the recommendation from DPR of a finding of probable cause of a violation with a letter of guidance issued to Dr. Fenichel in connection with his treatment of F.P. The March 15, 1990 Probable Cause Panel made a determination that there was probable cause of a violation and, after discussion, directed DPR to file an Administrative Complaint against Dr. Fenichel's license to practice dentistry. The investigative report presented by the Department to the March 15, 1990 Probable Cause Panel included, among other things, summaries of interviews with Dr. Fenichel and with the complaining Patient, the Patient's written complaint, the written response of Dr. Fenichel, Dr. Fenichel's treatment/billing records and x-rays, a letter from Dr. Lucca, the subsequent treating dentist from New Jersey, outlining his clinical findings, x-rays and pictures apparently taken by Dr. Lucca and records of payments made by the Patient to Dr. Fenichel and to Dr. Lucca. Dr. Fenichel's billing records, his interview as reported by the Departmental investigator, his written response, and his treatment records all indicate that, from at least December 22, 1988 through February 23, 1989, the Patient was complaining about the work done by Dr. Fenichel, that Dr. Fenichel made several adjustments to the dentistry at no charge, and that the Patient's complaints were reflected in the observations and notes made by Dr. Lucca in March of 1989. In an entry dated January 17, 1989, Dr. Fenichel documented in his treatment records that the "patient maintains that partial is 'not right' she can't chew and is swallowing 'chunks'...". Dr. Fenichel also noted during this visit that he realigned the partial and adjusted the bite. During a February 23, 1989 visit, Dr. Fenichel noted that he again adjusted the partial. Dr. Lucca's records reflect that the Patient went to New Jersey on or about March 9, 1989 at which time he conducted an evaluation of her. Dr. Lucca had been the Patient's dentist when she was living in New Jersey. The Patient claims that this trip to New Jersey was necessitated by the pain she was experiencing from the work performed by Dr. Fenichel. Dr. Lucca advised the Patient of his clinical findings following the March 9, 1989 visit in a letter dated March 22, 1989 as follows: Porcelain to metal crowns on teeth #21, 22 and 27, 28 are ill-fitting, especially on facial margins. These are causing some gingival inflammation at present and may initiate caries at these margins in the future. The semi-precision removable partial denture framework fits well, but there is no occlusion of the posterior teeth on this partial denture. (posterior teeth do not meet.) Since you are uncomfortable and are complaining on the inability to chew, plus the above factors, I would suggest having the lower case redone. In addition to his clinical findings, Dr. Lucca advised the Patient that other dentists nearer to where she lived "...would certainly be able to help you so that you would not have to travel up here and have to stay several months." After seeing Dr. Lucca on March 9, 1992, the Patient was sent to another New Jersey dentist, Dr. Berger, who did a root canal on March 13 and 14, 1992. Dr. Fenichel's billing records reflect that the patient returned to his office on or about March 31, 1989, following her visit and evaluation with the New Jersey dentist and before the work was "redone." In her written complaint, the Patient alleged that during the March 31 visit she advised Dr. Fenichel of the New Jersey dentist's clinical findings. She claims that she requested Dr. Fenichel to pay for her treatment by Dr. Lucca, but Dr. Fenichel only offered to refund her money for the work performed by him. Ultimately, the Patient had Dr. Lucca redo the work done by Dr. Fenichel. It appears that Dr. Lucca also did some additional work on the Patient. Dr. Fenichel noted in his written response to the Patient's complaint that he had offered to refund her money for the work performed even though, in his opinion, there was nothing wrong with his work. No evidence was presented as to whether Dr. Fenichel ever refunded any money to the Patient. It is clear that the findings of the subsequent treating New Jersey dentist and the persistent complaints by the Patient were key factors in the Probable Cause Panel's decision to direct DPR to file an Administrative Complaint against Dr. Fenichel. At the March 5, 1990 Probable Cause meeting, the Panel and the DPR prosecuting attorney recognized that the credibility of the witnesses would be very important in order to establish at formal hearing that Dr. Fenichel was in violation of the rules and regulations of the Board of Dentistry. There was also a recognition that the work had been redone by Dr. Lucca and that it might be difficult and perhaps impossible to get an evaluation of Dr. Fenichel's work from a qualified expert who did not have a financial interest in the case. Following the March 15, 1990 Probable Cause Panel Meeting, DPR retained an expert, Dr. Rupert Q. Bliss, to evaluate the Departmental investigative report. Dr. Bliss noted several potential pitfalls to successful prosecution of Dr. Fenichel. Dr. Bliss expressed concern that no independent evaluation of Dr. Fenichel's work was possible since the work had been redone by Dr. Lucca. He suggested that complete records from Dr. Lucca and Dr. Berger would be necessary in order to successfully prosecute the case. Even though Dr. Bliss' editorial comments pointed out some of the potential problems to successfully prosecuting the case, he also noted some of the evidence that indicated Dr. Fenichel's work may not have met minimum standards. Dr. Bliss noted that Dr. Fenichel's patient records contained in the investigative report were inadequate and below minimum standards when measured against generally prevailing peer performance because there was no patient health history, no patient dental history, no tooth charting, no periodontal charting, and no treatment plan. In addition, Dr. Fenichel's treatment records were "very brief". Dr. Bliss reviewed two periapical x-rays of the Patient taken on or about March 13, 1989 and prior to the work performed by Dr. Lucca. Dr. Bliss was uncertain as to the origin of these x-rays. Dr. Bliss noted that the periapical x-rays dated March 13, 1989 showed two substandard crowned teeth with one tooth appearing "...to have the labial-gingival margin standing away from the tooth..." and the other appearing "...to have the distal interproximal crown margin short of the prepared tooth margin thus exposing a significant amount of cut tooth structure to the oral environment..." Dr. Bliss noted that these x- rays could establish a violation of the minimum standards for the practice of dentistry as measured against generally prevailing peer performance. The same x-rays and photos reviewed by Dr. Bliss were provided by the Department to the Probable Cause Panel for its March 15, 1990 meeting at a second meeting on September 14, 1990. In addition to Dr. Bliss' report and the investigative report discussed above, the September 14, 1990 Probable Cause Panel had before it for consideration yearly progress reports from the Patient's periodontist, Dr. Feldman, the billing record and x-rays from Dr. Berger, the New Jersey endodontist who performed the root canal on the Patient prior to Dr. Lucca redoing Dr. Fenichel's work, and copies of photographs from the Patient representing the physical condition of the dentistry prior to the work having been redone. The September 14, 1990 Probable Cause Panel met to consider the Department's renewed recommendation for a finding of probable cause and the issuance of a letter of guidance to Dr. Fenichel in connection with his treatment of F.P. After discussion and consideration, the September 14, 1990 Probable Cause Panel made a determination that probable cause of a violation did exist and again directed DPR to file an Administrative Complaint against Dr. Fenichel's license. At the September 14, 1990 Probable Cause meeting, the Panel and the Department's prosecuting attorney noted the crucial nature of credibility issues regarding the subsequent treating dentist and the Patient before making a determination that probable cause did exist to believe that Dr. Fenichel had violated Section 466.028(1)(y), Florida Statutes. As a result of the September 14, 1990 Probable Cause Panel decision, an Administrative Complaint was filed on or about October 19, 1990 for DPR Case Number 89-08779 initiating action against Dr. Fenichel's license to practice dentistry. Dr. Fenichel's treatment and billing records contained within the investigative report reflect the dates of treatment and the services provided to the complaining Patient as alleged in paragraphs numbered three and four of the Administrative Complaint. Paragraph five subparagraph (c) of the Administrative Complaint alleged that Dr. Fenichel's records regarding the complaining Patient were inadequate and below minimum standards for the profession. This allegation was based on Dr. Bliss' review of Dr. Fenichel's records regarding the Patient that were in the DPR investigative report. Subsequent to the filing of the Administrative Complaint, Dr. Fenichel's attorney took the deposition of Dr. Bliss. At the deposition, Dr. Fenichel's attorney provided Dr. Bliss with additional records from Dr. Fenichel's patient file. These documents prompted Dr. Bliss to partially retreat from his previous opinion that Dr. Fenichel's records regarding the Patient were inadequate. Subparagraphs (a) and (b) of paragraph five of the Administrative Complaint charged Dr. Fenichel with incompetence and/or negligence in his treatment of the Patient. These charges were based on the March 22, 1989 letter to the Patient by Dr. Lucca outlining his clinical findings, Dr. Fenichel's treatment records reflecting the problems the Patient was experiencing and Dr. Fenichel's repeated attempts at adjusting the dentistry, the Patient's x-rays, the photographs provided by the subsequent treating New Jersey dentists and/or the Patient, the Patient's written complaint, and Dr. Bliss' report. Petitioner disputed the factual allegations contained within the Administrative Complaint and a request for formal administrative hearing was filed with DOAH on or about November 5, 1990. The case was assigned DOAH Case Number 90-07729. On November 8, 1991, the Probable Cause Panel met to reconsider the case against Dr. Fenichel. The membership of the Panel had changed since Dr. Fenichel's case had last been considered. The DPR attorney indicated to the Panel that the Department did not believe that it could prevail at final hearing against Dr. Fenichel because no independent evaluation of his work could be obtained. The Department recommended a finding of probable cause with a letter of guidance issued to Dr. Fenichel. It is unclear what, if any efforts were made to contact the subsequent treating New Jersey dentist. During his presentation to the Probable Cause Panel on November 8, 1991, the DPR prosecuting attorney indicated that he had tried to contact Dr. Lucca and found him to be uncooperative. After a brief discussion, the November 8, 1991 Probable Cause Panel accepted the Department's recommendation, determined that probable cause of a violation did exist and directed the Department to close the case with a letter of guidance issued to Dr. Fenichel. A Notice of Voluntary Dismissal for DPR Case Number 89-08779, DOAH Case Number 90-07729, was filed by DPR with DOAH on November 20, 1991. The undersigned Hearing Officer entered an Order closing the DOAH file in the underlying proceeding on November 21, 1992. On November 25, 1991 Dr. Fenichel, through his attorney, received a copy of DPR's Notice of Voluntary Dismissal dated November 20, 1991. A Closing Order in DPR Case Number 89-08779 was entered by the Probable Cause Panel on or about December 16, 1991, finding that there was probable cause of a violation, but closing the case with a letter of guidance issued to Dr. Fenichel. Sometime after December 16, 1991, Dr. Fenichel, through his attorney, received a copy of the closing order issued by the Probable Cause Panel of the Board of Dentistry on December 16, 1991. The Closing Order noted: "The Department's expert consultant was unable to make a determination as to the standard of care rendered by the subject to F.P." Dr. Fenichel's Petition for Attorney's Fees and Costs was filed on January 24, 1992. The parties have stipulated that the hourly rate charged by Dr. Fenichel's counsel in the underlying case was reasonable.
Findings Of Fact Respondent, Eduardo Mejia, M.D., was a licensed physician from September 1, 1966, through December 1982. His license was not renewed from January, 1982 through December, 1985. Subsequently he received a reprimand from the Board of Medicine for failure to timely renew his license. His license was renewed and he is presently on an active license status, having been issued license number ME 0012387. T.B., the patient in this case, has been treated by Respondent since at least 1975 through the present date for essential hypertension, recurring headaches, and stress. Respondent prescribed Percodan to patient T.B. on a continuous basis from 1975 to the present date. During one period of two months in 1985, Respondent prescribed a total of 500 Percodan pills for the patient, reflecting a daily dosage of approximately 10 pills. During the period from November of 1983 until August of 1986, Respondent prescribed over 8,000 Percodan pills for the patient. Recently Respondent has begun to prescribe reduced daily doses of Percodan in conjunction with other pain killing drugs. Percodan is the brand name for Oxycodene, a Schedule II controlled substance. It is a synthetic form of morphine and comes from the opiate family of drugs which also includes heroin, morphine and codeine. Percodan is highly addictive and has a high potential for dependency. Typically used to treat acute pain of the type associated with broken bones or postoperative recovery, Percodan is normally prescribed for a limited, short period of time and its use carefully monitored by a physician. Percodan is not usually prescribed for an extended period of time due to the potential for patient addiction and dependence. The prescription of Percodan by Respondent in the quantities and duration proven in this case is generally appropriate only for the treatment of a terminal patient. The proof establishes that Percodan is not a drug indicated for use in the treatment of stress or anxiety. Further, the quantities of this drug, as prescribed by Respondent for patient T.B. for such a long period of time, is inappropriate, excessive and not justifiable by a prudent physician. Reynold Montague Stein, M.D., is a physician licensed in California, Florida and New York. Stein is an expert in chemical dependency or addictionology. He reviewed Respondent's medical records relating to treatment of the patient T.B. His review confirms that Respondent prescribed Percodan, a narcotic and schedule II drug, for T.B.'s chronic headaches, hypertension and job stress without making a diagnosis of the cause of the patient's health problems. Dr. Stein's testimony is corroborated by the testimony of Dr. Matthew Cohen, a family practice physician, and further establishes that Respondent's use of Percodan in the treatment of patient T.B.'s headaches constitutes a failure to practice medicine at that level of care, skill and treatment recognized as reasonably prudent by a similar physician in Florida. Respondent's medical records do not justiiy Respondent's course of treatment of patient T.B. The cause of the patient's continuing headaches is not addressed, nor do the records reflect that Respondent cautioned the patient with regard to continued use of large quantities of Percodan. Respondent did testify that his prescription of Percodan was a good faith effort to relieve the patient's headaches; however, he failed to offer any credible proof that such prescribing was in the best interests of the patient. Expert witnesses who testified on behalf of Respondent were not familiar with Respondent's records for patient T.B. One of Respondent's experts, Dr. Daniel Jacome, a neurologist who examined patient T.B., testified that he would not have prescribed Percodan for over 10 years to the patient and would have taken a different treatment approach.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of violation of counts one, two and three of the administrative complaint and that such final order further impose an administrative penalty of $1500; place Respondent's license on probation for a period of two years upon terms and conditions to be determined by the Department of Professional Regulation, Board of Medicine; and prohibit Respondent from prescribing Schedule II controlled substances during such term of probation or for such longer period as may be determined by the Board. DONE AND ENTERED this 29th day of December, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS 1.-13. Addressed and adopted by reference. RESPONDENT'S PROPOSED FINDINGS 1. Rejected, conclusion of law. 2.-4. Adopted by reference. 5.-6. Rejected, unsupported by the evidence. Rejected as cumulative. Adopted by reference. Rejected, not relevant. Adopted by reference. 11.-13. Unnecessary to conclusion. Adopted by reference. Addressed. Adopted by reference. Unnecessary to conclusion. Not supported by the weight of the evidence. Rejected as substantial competent evidence regarding treatment rendered by Respondent. Not credited. Count four of the administrative complaint, having been dealt with by the Board of Medicine, is not ruled upon in this order. Not supported by the weight of the evidence. 23.-24. Unnecessary to conclusion reached. COPIES FURNISHED: Thomas W. Stahl, Esquire 817 North Gadsden Street Tallahassee, Florida 32303-6313 Carl Di Bernardo, Esquire 8603 South Dixie Highway Suite 210 Commercial Bank of Kendall Miami, Florida 33141 Bruce D. Lamb, Esquire General Counsel Department of Professidnal Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times relevant hereto, Eric A. Baum was a licensed physician in the State of Florida having been issued License No. ME 0027880. He is board certified as a psychiatrist and board eligible in internal medicine (Exhibit 3). Respondent has never established an active practice in Florida, although in the latter part of 1985 he maintained an office at his residence and later, for approximately 2 months, in a downtown office building in Sarasota. Between August 19, 1985 and December 30, 1985, Respondent prescribed Bentyl, Ritalin, Fiorinal, Cylert, Urecholine and Laradopa to "Terri Leigh", generally in quantities of 100 for Ritalin (10 mg.) and Fiorinal (Tab). During this period, 1250 10 mg. of Ritalin and 1550 tabs of Fiorinal were prescribed (Exhibit 14). Terri Leigh is an alias used by Respondent for his wife, Terri Baum (Exhibit 7). Ritalin is a Class II controlled substance, Fiorinal is a Class III controlled substance and Cylert is a Class IV controlled substance. During part of this time until delivery on October 21, 1985, Terri Baum was pregnant. Medical records prepared by Respondent for Terri Baum would indicate the medication was prescribed for headaches and depression. Both Ritalin and Fiorinal are contraindicated during pregnancy. Between July 30, 1985 and December 30, 1985, Respondent wrote prescriptions for "Pam Leigh" for 200 Fiorinal, 600 Cylert (37.5 mg.) and 500 Ritalin (10 mg.), (Exhibit 10). Pam Leigh is an alias for Respondent's then 16 year old daughter, Pam Baum. Respondent contends that Pam is hyperkinetic and suffered from migraine headaches, and the medication was prescribed for those diagnoses. However, Pam denies ever taking any drugs or having any illness requiring such medication. Mark Baum, Pam's twin brother, denies that Pam is or was hyperkinetic or that he ever saw her take any medication. This latter evidence is deemed to be more credible than Respondent's testimony (Exhibit 3). The quantity of controlled substances prescribed for Terri and Pam by Respondent during the periods above-noted are greater than should be prescribed for the symptoms noted and were inappropriate. On April 15, 1987, Respondent pleaded nolo contendere to the offense of obtaining drugs by fraud in the Circuit Court of Sarasota County, Florida, adjudication of guilt was withheld, and he was placed on probation for one year with certain terms (Exhibit 11). At the time Respondent's residence (and office) were searched by police pursuant to a search warrant seeking patient's records for Terri and Pam Baum, those records could not be found, and Respondent denied knowledge of their whereabouts. The records (Exhibits 6 and 7) were subsequently produced by Respondent. It is likely that Respondent prepared Exhibits 6 and 7 subsequent to the arrest of Terri Baum shortly before the search was conducted. Subsequent to the arrest, Terri Baum and Pam Baum on February 26, 1986 had an appointment with Dr. Sayers Brenner, M.D., a psychiatrist, at which Terri requested Ritalin, Cylert and Fiorinal for herself and Ritalin and Cylert for Pam. Dr. Brenner, at the time unaware of Terri's arrest, prescribed a 10-day supply of these drugs and told Terri that he would not continue to supply drugs to her and that he did not treat adolescent patients. Although an appointment was made for a subsequent visit in two weeks, neither Terri nor Pam returned. Although no charges were made in this regard, evidence was presented in Exhibit 8 that Respondent wrote prescriptions for himself for Lasix, Lanoxin and Urecholine. No evidence was submitted from which a determination can be made that Respondent has a drug dependency problem, although the evidence is clear that if Respondent does not have a drug dependency problem, his wife does, and that prescriptions were written by Respondent to several fictitious persons to support this dependency.
