The Issue Whether disciplinary action should be taken against Respondent’s license to practice as a medical doctor based on allegations that he violated sections 458.331(1)(t), (m), and (q), Florida Statutes (2008-2010), as alleged in Petitioner’s Amended Administrative Complaint.
Findings Of Fact The following Findings of Fact are based on the testimony presented at the final hearing, exhibits accepted into evidence, admitted facts set forth in the pre-hearing stipulation, and matters officially recognized. The Parties and the Origin of This Litigation The Department is the state agency charged with regulating the practice of medicine pursuant to chapter 456, Florida Statutes (2006-2017). At all times relevant to the instant case, Dr. McKenzie was a Florida-licensed physician having been issued license ME 93485. Dr. McKenzie is also licensed to practice medicine in Alabama. Dr. McKenzie is board-certified in internal medicine with sub-specialties in pulmonary disease and sleep medicine. Dr. McKenzie earned his medical degree at the University of South Alabama (“USA”) in May of 2000. Over the next three years, Dr. McKenzie completed an internship and a residency in Internal Medicine at USA. By June of 2005, Dr. McKenzie had left USA after completing a fellowship in “Pulmonary & Sleep Medicine, Critical Care.” Dr. Victor Ortega has a medical practice in Panama City, Florida, known as Pulmonary Associates, and Dr. McKenzie began working for Dr. Ortega on approximately July 1, 2005. Dr. McKenzie had no ownership interest in Pulmonary Associates. He was an employee of Dr. Ortega. Therefore, Dr. Ortega owned the medical records for the patients Dr. McKenzie treated at Pulmonary Associates. Dr. McKenzie worked at Pulmonary Associates until July of 2006, and the separation was acrimonious. Dr. McKenzie elected to leave Pulmonary Associates after learning that the compensation system instituted by Dr. Ortega unfairly enriched him at the expense of his associates.1/ Dr. McKenzie began practicing at Bay Clinic, Inc. (“Bay Clinic”), in Panama City in July 2006, and continued there through May 2009. At Bay Clinic, Dr. McKenzie shared office space and administrative expenses with Dr. Jesus Ramirez. Dr. McKenzie had no ownership interest in Bay Clinic. The record is unclear as to whether Dr. McKenzie had an employment contract with Bay Clinic. In May of 2009, Dr. McKenzie opened his own practice at The Lung and Sleep Center in Panama City. Dr. McKenzie owns The Lung and Sleep Center, and he owns the medical records for the patients he treats there. In addition to his practice at The Lung and Sleep Center, Dr. McKenzie is a staff physician at Bay Medical Center, Select Specialty Hospital, and Health South in Panama City. Since August of 2015, Dr. McKenzie has been a clinical instructor for the nurse practitioner program at USA. Because Dr. McKenzie has been practicing in close proximity to Pulmonary Associates, Dr. Ortega sued Dr. McKenzie in 2011 in order to enforce a non-compete agreement.2/ During the course of that litigation, Dr. Ortega’s attorney asked Dr. McKenzie during a deposition whether he had ever treated a current or former employee with narcotic medications at Pulmonary Associates. Because Dr. McKenzie had rendered such treatment to K.D., he responded affirmatively. On January 28, 2011, Dr. Ortega wrote the following letter to the Board of Medicine: A deposition with Dr. McKenzie took place and is enclosed. Dr. McKenzie acknowledged under sworn statement that he had prescribed controlled substances for employees at Pulmonary Associates of Bay County. That person, of course, was [K.D.]. Dr. McKenzie’s attorney opposed any further questioning alleging privacy violations, etc. Since [K.D.] was our employee and he was under contract and under the privacy and umbrella of our corporation, that record keeping was by contract to be kept under our protection. As I understand it, this is a criminal occurrence and violation of the prescription of controlled substances. I am forwarding all this to the law enforcement agency and to the state with the hope that you will proceed accordingly with prosecution and stop this practice as soon as possible. I recognize that the problem of illegal use, abuse, and prescription of controlled substances is a significant issue throughout the United States. This represents one more way in which drugs are being diverted from their legal and appropriate use. To this day I am certain that this illegal prescription practice continues with different individuals. The rapid check of prescriptions at the local pharmacies for controlled substances, particularly Lortab, Dilaudid, etc., by this physician will reveal a number of individuals which I am sure will not have corresponding medical record entries to justify the use of pain control medication by appropriate evaluation, diagnosis, and treatments as required by law. (emphasis added). Dr. Ortega ultimately identified A.W., R.W., and K.D. to the Department as patients who received inappropriate prescriptions from Dr. McKenzie. However, the Department and the Florida Department of Law Enforcement’s (“FDLE”) investigation began due to a confidential informant observing Dr. McKenzie disposing of pill bottles at a car wash. FDLE investigated the matter, but limited resources led to FDLE referring the case to the Department for administrative action. The Department’s allegations pertaining to A.W., R.W., and K.D. will be separately addressed below. Was Dr. McKenzie’s Treatment of A.W. Below the Standard of Care? A.W. has been a Florida-licensed nurse since April of 2007 and has worked at Bay Medical Center since 2005. She was in nursing school when her employment at Bay Medical Center began. A.W. and Dr. McKenzie were co-workers at Bay Medical Center. While Dr. McKenzie was married and A.W. was engaged, they began a romantic relationship in 2005 that continued until 2006 or 2007. When A.W. learned that Dr. McKenzie’s wife was pregnant, their relationship ended, and A.W. did not have any meaningful communication with Dr. McKenzie for the next year. Even though she was already treating with a general medicine practitioner who she considered to be her primary care physician, A.W. began treating with Dr. McKenzie in approximately April of 2009 because she was experiencing “really severe headaches,” anxiety, and abdominal pain. Dr. McKenzie prescribed Lortab, the brand name for an opioid pain medication consisting of acetaminophen and hydrocodone. Under section 893.03(3), Florida Statutes (2008-2017), hydrocodone, in the dosages found in Lortab, is a Schedule III controlled substance. From April of 2009 through October of 2010, Dr. McKenzie prescribed 90 Lortab pills a month to A.W. A.W. was to take one pill every six hours as needed for pain. When A.W. began treating with Dr. McKenzie, they resumed having a personal relationship. While A.W. describes their relationship at that time as being friendly rather than romantic, A.W. and Dr. McKenzie were having sex while Dr. McKenzie was writing prescriptions for her. A.W.’s first documented treatment with Dr. McKenzie at The Lung and Sleep Center occurred on July 22, 2009, and she presented with several issues. For instance, A.W. was experiencing anxiety, and Dr. McKenzie noted on the medical record that A.W. needed to see a psychiatrist. A.W. was also experiencing pain from multiple sources. Migraines were one source of pain, and Dr. McKenzie recommended continuing with Lortab and discussed obtaining a neurology consult. A.W. also had abdominal pain, and Dr. McKenzie discussed obtaining a colonoscopy and consulting with a gastroenterologist. In addition to migraines and abdominal pain, A.W. was experiencing pain from pleurisy. Pleurisy is inflammation of the lining of the lungs, and its symptoms include chest and back pain. It is characterized by a sharp pain that worsens with deep breaths. Pleurisy is treated with nonsteroidal anti-inflammatory drugs (“NSAIDs”) such as Motrin, Aleve, and ibuprofen. If NSAIDs have no effect, then, narcotics can be used. A.W.’s next documented treatment at The Lung and Sleep Center occurred on December 9, 2009. Dr. McKenzie noted in the medical record associated with that office visit that A.W. had gastroesophageal reflux disease, i.e., GERD. In order to treat that condition, Dr. McKenzie prescribed over-the-counter Prilosec and advised A.W. to avoid NSAIDs because they can aggravate heartburn. If a patient cannot take NSAIDs, then Lortab is a reasonable alternative. By the time of her next documented office visit at The Lung and Sleep Center on July 22, 2009, A.W. was still suffering from anxiety, abdominal pain, and pleurisy. A.W. had neglected to obtain any of the consultations recommended by Dr. McKenzie. Dr. McKenzie testified that it can be difficult to get patients to obtain consultations: So a lot of times, it’s hard to get people to be compliant. Nobody wants to go and have scopes in both ends, but especially when something flares up and goes away, because every time you see – it’s like taking your car to the mechanic, when you take it to the mechanic, it quits knocking. So a lot of these people come in, well, it’s not that bad. And they they go home and it will be bad. So a lot of times it’s hard to get them to be compliant with these. Because the [esophagogastroduodenoscopy] and the colonoscopy, I don’t know if anybody has had one, but they can be unpleasant, at best. Because A.W. is a nurse, Dr. McKenzie assumed that she would eventually obtain the consultations: [O]ne thing about A.W. is she’s a nurse. And so you kind of put more weight, because a normal patient, when they say, well, I’m going to call psychiatry, or I’m going to get this down or this done, you know, then you may push them a little harder. But if you have a medical professional, when they tell you that, well, I’ll call this and I’ll do that, you kind of put more weight to that. And so, you know, she did – you know, and she was told, and she said, well, I’ll call psychiatry. And then she would call – was going to call GI and she was going to call neurology. And she eventually did, of course. When asked about prescribing narcotics for a year to a patient who was not obtaining the recommended consultations, Dr. McKenzie testified as follows: So you give people the benefit of the doubt. And her symptoms would come and go. And then she said – like I said, she kept saying, well, I’m going to go see this person, see this person. She worked nights. She had a lot of compounding issues that would make it harder for her to follow up and be compliant. Dr. McKenzie did not have an office visit with A.W. every time that he wrote a prescription for her. The next documented visit by A.W. to The Lung and Sleep Center occurred on December 9, 2009. The medical record notes that A.W. continued to have stomach pain. As a result, she was to continue avoiding NSAIDs, and she was supposed to consult with a gastroenterologist. A.W. was still suffering from pleurisy, anxiety, and migraines. A.W.’s next documented treatment at The Lung and Sleep Center occurred on May 5, 2010. A.W. still had not obtained the consultations mentioned above, and Dr. McKenzie recognized that doing so would be difficult because A.W. was working nights. A.W.’s last documented treatment at The Lung and Sleep Center occurred on October 11, 2010. She still had not obtained the consultations previously recommended by Dr. McKenzie. Dr. McKenzie notified A.W. during this office visit that he would not prescribe any more pain medication until she obtained the psychiatry, neurology, and gastroenterology consultations they had discussed. A.W. then treated with Dr. Mariusz J. Klin, a gastroenterologist, on November 24, 2010. Dr. Klin performed an endoscopy on A.W. and discovered that she was suffering from “severe gastritis from NSAIDs and a 2 centimeter hernia.” Dr. McKenzie testified that severe gastritis is painful. A lot of people call the ambulance, you know, they get all kinds of heart workup and all kinds of pulmonary workup and they did a lot of workup because of the severe pain. And it’s episodic. You can have episodes where you won’t have any issues and then you’ll have flare-ups and have issues. Dr. McKenzie testified that a hiatal hernia can be painful: It can be. A lot of times your – what causes a hiatal hernia is your stomach and your esophagus are above the diaphragm. And your esophagus fits into your diaphragm like a lock and key. And so if your esophagus is in the right place, it helps close off the stomach so the acid can’t come out. Well, when you have a hernia, it pulls the lock and key in the wrong direction to be optimal, so now the stomach acid can leak out and cause more of a problem. Dr. Francisco Calimano, the Department’s expert witness, reviewed A.W.’s medical records and provided expert testimony on the Department’s behalf. Dr. Calimano is licensed to practice medicine in Florida and is board-certified in internal medicine, pulmonary medicine, and critical care medicine. Dr. Calimano testified that the amount of Lortab prescribed to A.W. by Dr. McKenzie was “excessive.” However, Dr. Calimano’s objection was directed more toward the length of time that Dr. McKenzie prescribed 90 Lortab pills a month, rather than the monthly amount of Lortab prescribed. Specifically, Dr. Calimano testified that he would do no more than a two to three month Lortab prescription for a patient with migraines, anxiety, and abdominal pain: In my opinion, you know, in my professional opinion, you know, at least in the scope of practice that I have, which I am not a pain specialist, I wouldn’t go for this length of time prescribing this amount of narcotics. I will feel uncomfortable doing that. So I think that I would refer to the pain management specialist. I would have been, you know, up to the point I said, you know, usually what I tell my patients is I give you a prescription, because you are having acute pain. I might give a second prescription if the pain is not resolved or so with the understanding that he needs to get that addressed. Before I give him that second prescription, I tell him I no longer will prescribe you these medications. And so before she runs out of that prescription, she knows in advance that it’s a no, the answer is no. That she needs to get some help, professional help. Because I think if not I would be doing a disfavor. Dr. David Hart Goldstein provided expert testimony on Dr. McKenzie’s behalf. Dr. Goldstein is licensed to practice medicine in Florida, and he practices internal, pulmonary, and hospital medicine at Sarasota Memorial Hospital. In addition, Dr. Goldstein currently works as an Assistant Clinical Professor of Internal, Pulmonary, and Hospitalist Medicine at Florida State University’s School of Medicine. Dr. Goldstein rendered a different opinion regarding Dr. McKenzie’s treatment of A.W. and the Lortab prescriptions: Q: Does anything appear remarkable to you in terms of the dosage? A: The dosages are on the high side. But when a patient has severe pain sometimes you need a higher dose. It seems that Dr. McKenzie was managing this patient for a long period of time. There was no pain specialist involved at that time. Q: From your review of the record, did it appear that patient A.W. had significant gastric distress? A: Yes. In fact, it appears from the record and the note by Dr. Klin that she tried other methods to relieve the pain. The reasons I say that is his diagnosis was severe gastritis related to the use of NSAIDs. Meaning that she tried using things like Advil. So that caused the issue. So NSAIDs would be prohibited. And this would be consistent with a person who has, according to the record, significant headaches, abdominal pain, which was [caused] by gastritis and pleurisy. Q: So from your review of the records, particularly Dr. Klin’s clinical records, would it be appropriate if NSAIDs were not effective to step up to a Lortab prescription? A: If that was the only way the patient’s pain could be managed, yes. * * * Q: So taking all of these records together, did you see anything clinically inappropriate as to either the medical care or the prescribing that Dr. McKenzie offered to patient A.W. during this timeframe? A: The only thing is as I mentioned – I think I mentioned it in my deposition also. There are a lot of prescriptions for Lortab. The medical record documents that she has a lot of pain. I think there might have been better documentation of the fact that this was failing or this was working. So I am not that impressed with the documentation, but the record is consistent with symptoms that can be treated and are often treated with narcotics such as Percocet or Lortab. Q: Dr. Goldstein, did you see anything that appeared to you to be a practice beneath the standard of care? A: Just as I mentioned, I don’t think the records were great, but I don’t believe that’s a deviation of the standard of care. I just think that’s poor recordkeeping. As for the length of time that Dr. McKenzie prescribed Lortab to A.W., Dr. Goldstein testified that, “I would not prescribe it for a year unless I was comfortable that this patient had made attempts to see a neurologist and had migraines and was not abusing this medication.” Because A.W.’s gastric issues prevented her from taking NSAIDs, Dr. Goldstein opined that it was appropriate to treat A.W.’s headache pain, abdominal pain, and pleurisy with Lortab. With regard to the fact that Dr. McKenzie wrote prescriptions for A.W. without a corresponding office visit, Dr. Calimano acknowledged that “you don’t absolutely need a face-to-face contact with the patient if you have established a diagnosis and you are sure of what you are treating and so on.” Nevertheless, Dr. Calimano objected to Dr. McKenzie not doing more to treat the sources of A.W.’s pain, and the Department takes Dr. McKenzie to task because A.W.’s medical records do not set forth a treatment plan, objectives, etc. However, A.W. was a difficult patient because she did not obtain the consultations requested by Dr. McKenzie until he threatened to discharge her as a patient. Such consultations would be an essential prerequisite to formulating an effective treatment plan for A.W. If A.W. had obtained those consultations when she had been directed to do so, then her illnesses might have resolved much sooner. While Dr. McKenzie probably should have threatened to discharge A.W. sooner, he believed that A.W., as a medical professional, would eventually obtain the consultations, and he recognized that A.W.’s night shift work made it difficult for her to obtain those consultations. In sum, even Dr. Goldstein acknowledged that Dr. McKenzie’s recordkeeping for A.W. could have been better. However, the evidence does not clearly and convincingly demonstrate that Dr. McKenzie’s treatment of A.W., under these particular circumstances, fell below the standard of care.3/ Did Dr. McKenzie Falsify A.W.’s Medical Records and Use Her to Illegally Obtain Lortab? Contrary to the medical records described above, A.W. asserts that she has never sought treatment at The Lung and Sleep Center. While she acknowledges visiting The Lung and Sleep Center, she asserts that she was only there as a friend of Dr. McKenzie and to assist her father with obtaining treatment.4/ A.W. testified that Dr. McKenzie never determined the cause of her headaches, her anxiety, or her abdominal pain. A.W. testified that Dr. McKenzie never performed a physical exam on her or discussed a treatment plan with her. A.W. also denies that she received any treatment from Dr. McKenzie at Bay Clinic, but she acknowledges visiting him there as a friend. As noted above, A.W.’s Lortab prescriptions enabled her to obtain 90 Lortab pills a month. As a result, she could take one pill every six hours. A.W. testified that she could not tolerate taking that amount of Lortab. The medicine made her drowsy and upset her stomach. A.W. also testified that she never had to take four Lortab pills in a single day in order to control her pain. After the first month of her treatment with Dr. McKenzie, A.W. testified that she continued to fill the Lortab prescriptions but gave a large majority of the pills to Dr. McKenzie. A.W. testified that she kept a few pills for those times when she would experience severe headaches or abdominal pain, and one pill a day was enough to keep her pain under control. As for why she gave large portions of her Lortab prescriptions to Dr. McKenzie, A.W. testified that she did so “[b]ecause he was my friend, and he had told me he was going through a lot, and he was embarrassed to go see a physician in town. He asked me if he wrote me a script could I give him some back or give it back to him.” During the time in question, Dr. McKenzie was experiencing marital difficulties and opening his own practice. A.W. testified that she would fill the Lortab prescriptions at a CVS Pharmacy in Panama City and then meet Dr. McKenzie in a parking lot so that she could give him the medication. A.W. and Dr. McKenzie’s personal relationship ended again in 2011 when A.W. became pregnant. At some point in 2011, A.W. was contacted by investigators from the Department and the Drug Enforcement Agency. A.W. then alerted Dr. McKenzie to the aforementioned agencies’ investigation. A.W. testified that she assisted Dr. McKenzie with fabricating medical records demonstrating that she had treated at The Lung and Sleep Center and that the Lortab prescriptions were medically necessary. She testified that she did so because Dr. McKenzie was her friend and she wanted the investigation to “go away.” Moreover, A.W. testified that she was worried that she could be charged with impaired nursing. When asked why she fabricated medical records, A.W. testified as follows: Because he was my friend and I didn’t want him to get in trouble for all of this, and I wanted it to be done with. I was worried about being a nurse and being a part of this. And I had been – the whole impaired nursing thing had been brought up, and I figured if I did this everything would just go away. A.W. learned of the Administrative Complaint when Dr. McKenzie showed it to her during a 2014 visit to his apartment. A.W. visited Dr. McKenzie’s apartment “quite a few times” and their last sexual encounter probably occurred in 2015. Despite testifying that she and Dr. McKenzie had been friends, A.W. testified against Dr. McKenzie at the final hearing and claimed that she was doing so because she felt it was the right thing to do and did not “want this over [her] head anymore.” Medical records from Dr. Klin and a Dr. Elzawahry memorialize treatment rendered to A.W. in October and November of 2010. However, those records, which were in the possession of The Lung and Sleep Center, bear a facsimile timestamp of March 1, 2011, and March 2, 2011. Those dates are four months after A.W.’s treatment dates. Also, the facsimile timestamps are seven days after the Department served Dr. McKenzie with a subpoena for A.W.’s medical records. While concerning, the facsimile timestamps do not conclusively demonstrate that Dr. McKenzie fabricated the records pertaining to A.W.’s treatment at The Lung and Sleep Center. While the undersigned has doubts about Dr. McKenzie’s credibility, there are reasons to question A.W.’s credibility. A.W. and Dr. McKenzie had a complicated relationship, and Dr. McKenzie is currently seeing another nurse employed at Bay Medical Center. The undersigned cannot ignore the possibility that A.W. and Dr. McKenzie’s prior relationship did not end on good terms. As noted above, Dr. Ortega brought A.W., R.W., and K.D. to the Department’s attention. The January 28, 2011, letter from Dr. Ortega to the Board of Medicine is suspicious because Dr. Ortega confidently states (without stating the basis for his assertions) that there are other patients who have received illegal prescriptions from Dr. McKenzie. Given the January 28, 2011, letter and the acrimony between them, one of Dr. McKenzie’s defenses to the Amended Administrative Complaint is that Dr. Ortega persuaded or coerced A.W., R.W., and K.D. to provide false testimony against him. It is possible that Dr. Ortega could be in a position to exercise some sort of leverage over A.W. due to the fact that Dr. Ortega works as a pulmonary doctor at Bay Medical Center and A.W. is a pulmonary nurse. During the hearing, A.W. acknowledged that she is taking 14 medications such as Latuda for psychosis; Ativan for anxiety; Prozac for depression; Nuvigil for Attention Deficit Disorder (“ADD”) and narcolepsy; Adderall for ADD; Fioricet for migraines; Metoprobol for hypertension; Lamictal for bipolar disorder; Carafate to coat her stomach; Prilosec for indigestion, gastric reflux, and gastritis; and Rispedal, a mood stabilizer associated with bipolar disorder. The fact that A.W. is currently receiving treatment for psychosis and bipolar disorder does not cause the undersigned to discredit her testimony. However, the undersigned cannot ignore the fact that there was no testimony as to what extent (if any) the aforementioned conditions affected her during the time period relevant to the instant case. In sum, there is evidence indicating that Dr. McKenzie used A.W. to obtain Lortab. Nevertheless, the evidence taken as a whole does not clearly and convincingly demonstrate that Dr. McKenzie prescribed Lortab to A.W. outside the course of his professional practice. Was Dr. McKenzie’s Treatment of R.W. Below the Standard of Care? R.W. was a Florida-licensed respiratory therapist from approximately 2000 to 2012. R.W. met Dr. McKenzie sometime between 2005 and 2006 when both of them were employed at Gulf Coast Medical Center. Dr. McKenzie and R.W. often worked together. While R.W. considered Dr. McKenzie to be a friend, they did not spend time together outside the hospital. Since his first marriage ended in 1993, R.W. had been taking Ativan in order to alleviate anxiety resulting from his divorce. Ativan is the brand name for Lorazepam and is prescribed for anxiety. According to section 893.03(4), Lorazepam is a Schedule IV controlled substance. Approximately one year after meeting Dr. McKenzie, R.W. inquired about becoming Dr. McKenzie’s patient. R.W. had become heavily dependent on Ativan and admits that he was engaging in “doctor shopping” in order to obtain more Ativan prescriptions. Other doctors had declined to treat R.W. because they believed he was taking too much Ativan: Q: So my question was about Dr. McKenzie and how did you begin treating as a patient with Dr. McKenzie. A: I was taking large amounts of Ativan. After that many years, you build up a tolerance to it. I [did] what was called doctor shopping. I had asked a couple of other physicians if they would follow me for my Ativan. Because generally I am healthy. And I had become dependent on it and was taking pretty large amounts of it and approached him about that, if he would prescribe it for me. Q: Did the other physicians you had asked to follow you begin following you and providing you with Ativan? A: No. Q: Why not? A: They said I was taking an incredibly large dose of it. They didn’t think I should be on that much. Q: Did they offer to take you as a patient and prescribe you alternatives? A: No. Q: They wouldn’t follow you altogether? A: They wouldn’t follow me altogether. They wanted to know who had been prescribing me that much. I guess it was because I wasn’t getting the answer I was wanting, I just didn’t pursue it any further. Q: So what did you do to get it after that? A: I approached Dr. McKenzie. Q: Was Dr. McKenzie aware that any other practitioners wouldn’t give it to you? A: I don’t know. I don’t believe I made that – I don’t know. Q: Do you recall how you approached Dr. McKenzie about the Ativan? A: Yeah. We were at the hospital. I approached him. I said, look, I am on Ativan. Explained the reason I was on it. I am on large doses of it. I need someone to follow me for this, is that something you could do. The first documented treatment occurred on November 2, 2007, when R.W. presented at Bay Clinic. A patient intake form indicates that R.W. placed notations on the form indicating that he was suffering from “anxiety/stress” and “problems with sleep.” A follow-up note dated November 20, 2007, lists Ativan as R.W.’s current medication and states that he will continue with Ativan. The note records the following: The patient follows up today. He is complaining of chest pain. He states that he has had chest pain in the center of his chest which radiated into both arms for about 15 minutes. He has had no further episodes of this. The patient had a normal stress test last year. We will try to obtain the results. The patient does have a smoking history. Today we did an EKG which showed no significant abnormalities. The patient states that he has been under a lot of stress. He continues to take his Ativan. The patient is an avid kick boxer[5/] and exercises often. Lab work was obtained. The patient knows to seek immediate medical attention for any worsening of his condition. The next documented treatment occurred on August 29, 2008, at Bay Clinic. The medical record reports the following: The patient follows up today. States that he has had no further chest pain. The patient does have significant anxiety. The patient has been on Ativan for several years. Risks, benefits, and alternatives [to] Ativan were explained to patient and patient voiced understanding. The patient does not want to decrease the Ativan. Does not want to change the Ativan. The patient denies suicidal or homicidal ideation. The patient jogs several miles each day. The patient exercises. The patient is a respiratory therapist, and I have contact with [the] patient every day. The patient is compliant with his medications. Does use it at the same pharmacy. The patient is under a narcotic contract here. If the patient violates his contract[6/], the patient knows that he will be discharged immediately. The patient knows to seek immediate medical attention for any worsening condition. The medical record notes that Dr. McKenzie will continue R.W. on Ativan. On January 24, 2009, R.W. was injured in an automobile accident. Another vehicle traveling 40 mph rammed into the back of R.W.’s Corvette. According to R.W., the other vehicle was traveling [f]ast enough to knock me from a red light. I was at a red light. I was in a Corvette. Fast enough to fold the tail end of my Corvette under and knock me across the intersection to the railroad tracks. Pretty hard. When asked if the accident was “significant,” R.W. responded by testifying that his car had been “totaled.” On February 9, 2009, R.W. received a prescription from Bay Clinic for Lortab, but no refills were authorized. On April 3, 2009, R.W. received a second prescription from Bay Clinic for Lortab. Again, no refills were authorized. The next documented treatment occurred at Bay Clinic on May 1, 2009. R.W. presented with anxiety and some depression. Dr. McKenzie discussed R.W. treating with a psychiatrist and prescribing Luvox, an antidepressant. This record notes that R.W. was still experiencing pain from the motor vehicle accident and that Dr. McKenzie “will try NSAIDs.” The next documented treatment occurred on July 23, 2009. With regard to R.W.’s anxiety, Dr. McKenzie wanted R.W. to see a psychiatrist, but R.W. refused. Dr. McKenzie noted in the medical record that he was going to begin decreasing R.W.’s Ativan dosage and replacing it with a short-acting benzodiazepine. Dr. McKenzie explained that he wanted to wean R.W. off of Ativan because: He had been on Ativan, as he testified, for 25 years before I met him. And the goal was to try to get him off the Ativan. And so, we were going to change him from a long- acting benzodiazepine Ativan to a short- acting one, Xanax. And so what you try to do is wean his Ativan down and then wean him to the short-acting, and it’s easier for people to get off the short-acting. But, somebody that’s been on benzodiazepines or like Ativan for 25 years, it does the same thing to your brain that alcohol does. And so abruptly withdrawing benzodiazepines can put people in DT’s, delirium tremens and with a 25 percent mortality, being that one in four people could die if you just took somebody off those medications. Given R.W.’s 25-year use of Ativan, slowly weaning R.W. from Ativan and to a less harmful anxiety drug was certainly a reasonable goal. The medical record indicates that R.W. was still experiencing back pain from the motor vehicle accident and had “failed NSAIDs.” The record notes that Dr. McKenzie and R.W. discussed obtaining x-rays. At that time, Dr. McKenzie began prescribing at least 90 Lortab pills per month to R.W. The next documented treatment occurred on November 20, 2009. R.W. was continuing to take Lortab for chronic back pain, and Dr. McKenzie was still in the process of weaning R.W. from Ativan. This record notes that R.W. refused a psychiatric consult. In February of 2010, Dr. McKenzie increased the Lortab prescription from 90 to 120 pills a month. The next documented treatment occurred on March 10, 2010. R.W. was still experiencing chronic back pain and anxiety. Dr. McKenzie noted that R.W. needed an MRI and consultations with an orthopedist and a pain management specialist. There is a notation in the record indicating that R.W. needed x-rays. However, R.W. reported that he needed to “check his funds” before obtaining the x-rays. In addition, there is a notation that Dr. McKenzie “will stop Lortab soon.” The next documented treatment occurred on August 12, 2010. R.W. was still experiencing chronic back pain, and Dr. McKenzie wanted R.W. to consult with an orthopedist and a pain management specialist. R.W. was aware that Dr. McKenzie wanted MRIs taken. R.W. was still experiencing anxiety, but the medical record notes that Dr. McKenzie was only going to prescribe one more refill of his medication. Dr. McKenzie noted on the record that R.W. stated, “I will get you. This is bullshit.” R.W. testified that his faith has enabled him to stop taking any medication other than BC headache powder. There is no dispute that Dr. McKenzie did not require an office visit from R.W. each time he wrote a prescription. With regard to whether that practice was appropriate, Dr. McKenzie testified as follows: Ideally we did but, like I said, sometimes patients would come in and pick up a prescription. And it’s kind of the rule that they have one each time but, like I said, that’s sometimes rules can’t be ideal. I mean, if you know the patient, and you know what the issues are, I don’t think there was any law or statute that said they need to be seen every single time. With regard to whether Dr. McKenzie’s treatment of R.W. fell below the standard of care, Dr. Calimano explained that a physician should begin treating a patient complaining of back pain by taking the patient’s history and performing a physical exam. The physical exam would be followed by imaging studies such as an MRI. If there is nothing pressuring the patient’s spine, then treatment options include physical therapy and NSAIDs. If the patient’s pain is very severe, then the physician could prescribe narcotics for a short period of time. If the patient’s condition does not improve, then the physician would refer the patient to the appropriate specialists, such as ones dealing with the spine and pain management. With regard to R.W.’s anxiety, Dr. Calimano stated that he would have attempted to refer R.W. to a psychiatrist. Dr. Calimano was of the opinion that Dr. McKenzie’s medical records do not justify the amount of Lortab and Ativan prescribed to R.W. However, his testimony did not sufficiently address the notations regarding R.W.’s pain from the violent motor vehicle accident. His opinion appeared to focus on the notations regarding chest pain. With regard to the Xanax and Lortab Dr. McKenzie prescribed to R.W. between November 20, 2009, and August 12, 2010, Dr. Goldstein testified as follows: Q: Anything about the dosing or the frequency for the Xanax prescriptions that looks remarkable to you? A: Xanax, one milligram. You know, it can be given up to four milligrams a day. So one milligram [four times a day] is on the higher end, but it’s not above the prescribing recommendations. Lortab is being given continuously. Patient has continuous pain. And it’s documented that the doctor wanted to send this patient to a pain specialist, to an ortho doctor and to rehab. So there is a lot of documented pain medicine there. Again, the only thing I mention is there might have been better documentation as to why he needed to continue it. But there is nothing remarkable about the dosages. Q: So, Dr. Goldstein, based upon all the medical records that we’ve been through regarding R.W. and the medication administration record on page 39, could you offer an opinion to the Court as to whether or not you perceive that Dr. McKenzie’s treatment or prescribing of R.W. during the time period at issue to be beneath the acceptable standard of care? A: The fact that the patient was referred to a psychiatrist. The fact that Xanax was given and it was documented on that last note we mentioned, that the patient was not suicidal, which is important if you are prescribing that. The fact that the patient was referred to an orthopedic doctor, a rehab doctor and a pain specialist, I believe it was within the standard of care. I don’t think the documentation is great, but I can’t see anything that says this is beneath the standard of care. The Department takes Dr. McKenzie to task for not doing more to address R.W.’s anxiety, such as recommending behavior modifications and/or psychotherapy. The Department also takes issue with Dr. McKenzie’s not doing more to treat R.W.’s chronic back pain. However, the medical records indicate that Dr. McKenzie attempted several times to have R.W. treat with a psychiatrist, but R.W. refused. It appears from the medical records that R.W. was not compliant with Dr. McKenzie’s request for x-rays. Dr. McKenzie did not offer a reason why he maintained R.W. as a patient when R.W. would not obtain the recommended consultations and tests. But, Dr. McKenzie noted during his testimony regarding A.W. that he gives more leeway to medical professionals when it comes to obtaining recommended consultations. Given R.W.’s refusal to pursue the recommended consultations and tests, it probably would have been appropriate for Dr. McKenzie to have ended the prescriptions much sooner. Nevertheless, the greater weight of the evidence demonstrates that R.W. was a difficult patient who was resistant to obtaining the consultations desired by Dr. McKenzie. If he had been more compliant in obtaining those consultations, then Dr. McKenzie may have been more successful in treating R.W.’s anxiety and chronic pain. In sum, the evidence does not clearly and convincingly demonstrate that Dr. McKenzie’s treatment of R.W. fell below the standard of care given the circumstances associated with R.W. Did Dr. McKenzie Falsify R.W.’s Medical Records and Use Him to Illegally Obtain Lortab? R.W. testified that any pain from his motor vehicle accident only lasted two days, and he denies experiencing any chronic/long-term pain following the accident. R.W. testified that Dr. McKenzie prescribed Lortab and asked him to transfer the medicine to him. R.W. testified that he returned pain medication to Dr. McKenzie on a monthly basis over the course of approximately one year. The transactions would occur at the hospital or in parking lots at a Wal-Mart or a service station. R.W. testified that he would typically give 90 to 100 pills to Dr. McKenzie and retain 10 to 20 for his own use. R.W. denies being addicted to Lortab but acknowledges that he was a recreational user and that he “abused” Lortab and Percocet. As for why Dr. McKenzie engaged in this practice, R.W. testified that: As in my deposition, Dr. McKenzie had a corneal abrasion. And I understand, maybe I don’t understand, that physicians, I guess, it’s looked down upon if they are taking medications. So he had a corneal abrasion and asked if I would get him a prescription filled for the pain for his corneal abrasion. When asked why he agreed to divert drugs to Dr. McKenzie, R.W. stated that, “I don’t have a good answer for that. Stupidity I would assume.” As for why he stopped diverting drugs to Dr. McKenzie, R.W. stated that, “Again, when it stopped, my life, it was falling apart. It was a mess.” When asked why he stopped treating with Dr. McKenzie, R.W. testified as follows. A: I don’t even recall. My life was blowing up there. It was a total mess there near the end of my tenure with Gulf Coast. I mean, it was a train wreck. Q: What does that mean? A: I was taking a lot of Ativan. I was taking Lortab. I was drinking heavily. It was a wreck. Q: So the question is why did you stop treating with Dr. McKenzie? A: I left employ – you know, I don’t recall other than we just parted ways and I went my way and that is that. I don’t recall. Q: Did Dr. McKenzie ever have any discussion with you about terminating you as a patient of his? A: He may have. I don’t recall. I am not going to say he didn’t. The Department argues that Dr. McKenzie fabricated the medical records discussed in the previous section because R.W. claims that he only received treatment from Dr. McKenzie at The Lung and Sleep Center on two occasions. Moreover, R.W. claims that he never received treatment from Dr. McKenzie at Bay Clinic.7/ As for why he testified against Dr. McKenzie, R.W. stated the following: A: Well, first of all, I was subpoenaed here. You answer a subpoena. This has been going on for many, many years. Too many for me. I don’t want to be here today. And that is just a fact. Several years ago, I think it was during a – I don’t think, I know. During a fit of anger, withdrawals, all the above, I contacted your department and asked that this be investigated. And I believe the lady’s name was [] Ms. McBride, [and she] came to my residence in Mexico Beach and said that she was going to follow- up and I never heard back. When I heard from you, I was floored that it had taken that long. I figured, well, maybe my – it was a – maybe my suspicions were unfounded when I didn’t hear anything back from her. Q: What do you mean maybe your suspicions were unfounded? A: Maybe I was [the] one off. He was – maybe he was helping me out. Maybe we were helping each other out. I don’t really know. All I know is that I had brought it to your office’s attention a long time ago and nothing was ever done about it. Q: Did anyone ever offer you anything for your testimony today? A: No. Other than the $8.42 check I got from the State for gas I believe. It was delivered to me with my subpoena. Q: Are you referring to [the] witness fee? A: Yes. That I tore up. As was the case with A.W., Dr. McKenzie argues that Dr. Ortega somehow influenced or coerced R.W. into falsely testifying that Dr. McKenzie received Lortab from R.W. Dr. McKenzie testified that Dr. Ortega supervised R.W. at Bay Clinic when R.W. was employed as a respiratory therapist. Therefore, if R.W. held a grudge against Dr. McKenzie for cutting off his Ativan supply as indicated in the August 12, 2010, medical record, it is certainly possible that Dr. Ortega could have learned of that circumstance and sought to take advantage of it. As noted above, the undersigned has doubts about Dr. McKenzie’s credibility. However, R.W.’s statements about engaging in “doctor shopping” for years in order to obtain Ativan, abusing Lortab, and being a “train wreck” when he stopped treating with Dr. McKenzie cast substantial doubt on R.W.’s credibility. Indeed, it appears that R.W.’s difficulties may be the reason why he is no longer a respiratory therapist. Moreover, given R.W.’s own description of the severity of his car accident, it is surprising that he would testify that he experienced little or no pain afterwards. That is especially true given the fact that his car was struck from behind and totaled. Finally, given R.W.’s longstanding dependency on Ativan, R.W. certainly had a motive for filing a false report with the Department after Dr. McKenzie cut off his Ativan supply. In sum, the evidence taken as a whole does not clearly and convincingly demonstrate that Dr. McKenzie prescribed Lortab to R.W. outside the course of his professional practice. Was Dr. McKenzie’s Treatment of K.D. Below the Standard of Care? K.D. began working at Pulmonary Associates in 2007 and was employed there at the same time that Dr. McKenzie worked there. K.D. considered Dr. McKenzie to be her primary care physician, and she treated with him from some point in 2006 at least until August of 2009. K.D. treated with Dr. McKenzie at Gulf Coast Medical Center, Bay Medical Center, Pulmonary Associates, and Bay Clinic. However, K.D. usually treated with Dr. McKenzie at Gulf Coast Medical Center. As her primary care physician, Dr. McKenzie was typically K.D.’s attending physician when she was admitted to either Bay Medical Center or Gulf Coast Medical Center. K.D. primary health problem was intractable pain originating from her hips and one of her knees. K.D.’s knee pain resulted from two knee surgeries and appears to have been aggravated by a car accident. During the course of her treatment with Dr. McKenzie, K.D. was often admitted into hospitals for treatment of her pain. A medical record from Bay Medical Center dated January 22, 2008, describes K.D.’s general condition during the treatment with Dr. McKenzie: This patient is a 37-year-old female who has had long standing problems with chronic pain, particularly involving the right lower extremity. Her history is extensive in that she has been previously diagnosed with torn meniscus in the right knee. She has undergone 2 previous orthoscopic procedures. Also, she has been treated for chronic pes anserinus bursitis. She has had a plethora of complaints over recent years including chronic pain syndrome, migraine headaches, asthma, fibromyalgia, anxiety, depression, and recurrent pain in the right knee and occasionally in the right hip. She was in a motor vehicle accident about a year or so ago, which resulted in no significant abnormalities on workup, but aggravated her chronic pain. She also had a fall and an MRI of the right hip was carried out at the end of 2006, and a partial tear of the gluteus medius was noted. All of her MRIs of the knee demonstrate minimal degenerative change, and previous meniscal pathology. * * * She has been diagnosed previously with chronic pain syndrome and has been utilizing up to 12 mg a day of oral Dilaudid for quite a few months. This is on the basis of chronic migraine headaches and fibromyalgia. From January 2007 through July 22, 2009, Dr. McKenzie prescribed Lortab and Dilaudid on a monthly basis for K.D.’s pain. Dilaudid is a brand name for hydromorphone. Dilaudid is an opioid pain medication that is four times stronger than Lortab. Under section 893.03(2), hydromorphone is a Schedule II controlled substance. For several months in 2008, K.D. was receiving a 120-pill supply of Lortab intended to last 15 days and a 120-pill supply of Dilaudid intended to last 10 days. He also prescribed Xanax for anxiety and Ambien for sleep. The Department takes issue with Dr. McKenzie prescribing two short-acting narcotics, Lortab and Dilaudid, to K.D. between January 2007 and July 22, 2009, without medical records supporting those prescriptions. According to the Department, there is no justified medical purpose for prescribing Lortab and Dilaudid together. Dr. Calimano testified as follows: I’m a pulmonologist, so anything that depress[es] or repress[es] your respiratory drive is always a concern with me. Plus they are all habit forming, so I will be concerned. Going back to the use of narcotics, sometimes you can use a combination of narcotics. But when you are using narcotics on a chronic basis for, like, terminally ill patients and so on, the combination will be you do a long-term or long acting narcotic. You know, there are some preparations, Morphine, and so on and so forth that will last 12 hours. And then you use preparations for breakthrough pain, like short acting ones and so on. But if you have two narcotics that are both, like, will give you the hit quickly, but will disappear three or four hours later, I am not sure, you know, what the advantage would be. In contrast, Dr. Goldstein testified that prescribing two short-acting narcotics is appropriate in order to treat “breakthrough pain:” Q: Is Dilaudid a short acting narcotic? A: Yes. It’s considered an immediate release with a half life of two to three hours. Q: Is Lortab a short acting narcotic? A: Yes. Two to three hours. The answer is yes. Q: In your practice, have you ever prescribed a combination of both Lortab and Dilaudid? A: Yes. But never to be used, as I said in my deposition, at the exact same time. You could use one and another for breakthrough. In other words, you wouldn’t say to the patient take a Dilaudid and a Lortab at the same time for pain. You would say take a Dilaudid on the scheduled basis. And then you may use Lortab for breakthrough. Lortab is not as strong as Dilaudid. And it would be better to use Lortab for breakthrough than Dilaudid for breakthrough. Q: Why would you prescribe a patient two short acting narcotics as opposed to one long acting narcotic such as Fentanyl or Morphine with a short acting narcotic for breakthrough pain? A: Yes. As a matter of fact, the recommendations for pain control, and you can check it [is] up-to-date, are to reserve the long acting pain medications like Oxycontin and Fentanyl for people who have severe chronic pain like cancer. And that should not be the first thing. That should be the last thing you should do. In other words, we try to get away with short acting and try to stay away from the long acting ones. In other words, the long acting one is progression. That’s something you go to next, not before. If the long acting pain medications, for patients, for example, who have cancer and are on hospice, those are the ones we give Fentanyl patches to or Oxycontin. And that’s currently what a lot of the pain management doctors are doing with severe pain. The short acting ones are not as effective. Dr. McKenzie explained why he prescribed two short- acting narcotics as follows: Well, I mean, that your – the goal for the patient is to get them off narcotics. And just like Dr. Goldstein testified that, you know, once you put people on long-acting narcotics, they’re kind of stuck there. And so, you know, what you – cancer patients and terminally ill patients, you put them on long-acting, you know, morphine, long-acting Oxycontin and then for the breakthrough pain, you add a short-acting [narcotic]. Well, that’s not the goal with [K.D.]. The goal is to get her off these medications. And so the medications that I had her on were two short-acting and, yes, you have to use caution with two short acting medications but, again, the goal was to get her off the medication, not advance her to a higher level where she’s – it’s a lot harder to get her off. Once you get somebody on a long-acting narcotic, pain medications to wean them off and that’s the perpetual state that she was in, trying to get her off the narcotics, not keep going up. The Department also takes issue with the lack of medical records supporting the prescriptions written between February 26, 2008, and July 22, 2009. According to the Department, Dr. McKenzie should have had a treatment plan with objectives to assess the success of K.D.’s treatment. In addition, the Department asserts that Dr. McKenzie should have documented recommendations for referrals to other physicians. For the vast majority of the time between February 26, 2008, and July 22, 2009, Dr. McKenzie’s non- hospital practice was based at Bay Clinic, and Dr. McKenzie testified that K.D. had office visits with him in 2008 at Bay Clinic. Therefore, it is possible that Dr. McKenzie treated K.D. at Bay Clinic between February 26, 2008, and July 22, 2009, and that the lack of medical records is attributable to him retaining no ownership over the corresponding records. The Department has presented no persuasive evidence conclusively establishing that Dr. McKenzie owned or should have owned the medical records associated with the patients he treated at Bay Clinic. While K.D. testified that she only visited Bay Clinic on two occasions, Christen Tubbs, a former medical assistant at Bay Clinic, testified that K.D. visited Bay Clinic frequently and that there were many medical records pertaining to K.D. at Bay Clinic.8/ For reasons discussed in detail below, Ms. Tubbs’ testimony on this point was more credible than K.D.’s. As a result, medical records pertaining to K.D.’s treatment at Bay Clinic were created but unavailable for the final hearing. Without those medical records, it is impossible to evaluate whether Dr. McKenzie practiced below the standard of care with regard to not having a treatment plan with objectives to assess the success of K.D.’s treatment. The lack of medical records makes it extremely difficult to evaluate whether Dr. McKenzie practiced below the standard of care by prescribing Lortab and Dilaudid to K.D. in the quantities at issue. The Department presented no sufficiently persuasive evidence demonstrating that the quantities of Lortab and Dilaudid prescribed to K.D. were per se below the standard of care given the circumstances associated with K.D.’s treatment.9/ In sum, the Department has not presented clear and convincing evidence that Dr. McKenzie’s treatment of K.D. fell below the standard of care. Did Dr. McKenzie Use K.D. to Illegally Obtain Lortab? Rather than ingesting the Lortab prescribed for her, K.D. testified that she would fill the Lortab prescriptions and give the pills to Dr. McKenzie in a mall parking lot or her home. According to K.D., Dr. McKenzie would usually give her $40 to $100 for the Lortab. K.D. testified that she would not have taken Lortab because she is allergic to it. K.D. explained that she had her tonsils removed at 16 and was given hydrocodone, an ingredient in Lortab. The hydrocodone caused her to have an itchy, swollen throat. Medical records from Bay Medical Center and Gulf Coast Medical Center note that K.D. was allergic to Lortab. Dr. McKenzie pointed out that he authored a July 16, 2007, medical record, which stated K.D. was allergic to Lortab. However, that same record notes that K.D. “states it makes her nose itch, but has no significant abnormal affect.” Dr. McKenzie testified as follows: And so that, as far as I’m concerned, that she was not, you know, she was not allergic to Lortab. Plus, she had over 80 different independent medical exams because she had been in the hospital 20, 30 different times where she didn’t tell physicians, at that time, or nurses, that she was allergic to Lortab. So that’s not on there. So she would pick and choose who she would tell she was allergic to Lortab and who she wasn’t. And you would say, well, is that a red flag, well, I didn’t know that. And so I don’t go back and look. She was my patient. She told me she wasn’t allergic to Lortab. That’s what I document. And so I would prescribe Lortab for her. Even in the hospital, they did a – and it’s in the records, we can find the Bates number, they got tired of her saying Lortab or not, and there’s a whole section where they went through and viewed every single allergy she had, and they deemed her not to be allergic to Lortab. So, I don’t see how her telling one physician that she’s allergic to Lortab and one physician that she’s not, that that’s – that’s a red flag or that’s anything that I would even notice if I was to go back and look at these medical records. There are aspects of K.D.’s testimony that cause the undersigned to consider Dr. McKenzie’s testimony to be more credible. Rather than testifying during the final hearing, K.D. was deposed on August 9, 2017, at the Gadsden Correctional Facility where she was serving a 36-month sentence for recruiting patients to obtain prescriptions by fraud. K.D. agreed that the aforementioned offense was a “felony conviction.” K.D.’s own testimony suggested that she had a motive to provide false testimony against Dr. McKenzie. Specifically, K.D. testified that she became addicted to pain medication and asserts Dr. McKenzie knew of her addiction. K.D. stated that pain medication “destroyed” her life and was the reason why she was in prison. While K.D. did not directly state that she blamed Dr. McKenzie for her difficulties, one could easily infer from her testimony that she holds a grudge against him. As is the case with A.W. and R.W., there is a connection between K.D. and Dr. Ortega. K.D. testified that she was forced to resign from Pulmonary Associates because she was suspected of embezzlement. Dr. Ortega brought charges against her, but those charges were dismissed after K.D.’s father paid restitution. While K.D. denies that Dr. Ortega offered to drop the charges against her if she gave testimony against Dr. McKenzie, this circumstance must be taken into account when evaluating K.D.’s credibility. The Department has failed to present clear and convincing evidence that Dr. McKenzie prescribed Lortab to K.D. outside the course of his professional practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 1st day of May, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2018.
The Issue Whether disciplinary action should be taken against Dr. Vizcarra's Florida license to practice medicine for violating Sections 458.33l(1)(m), (q) and/or (t), Florida Statutes, as alleged in the Administrative Complaint against Dr. Vizcarra?
Findings Of Fact The Petitioner is the state agency charged with the responsibility to prosecute administrative complaints against licensed physicians in the State of Florida. Eulogio Vizcarra, M.D., is, and has been at all times relevant to this proceeding, a licensed physician in the State of Florida. Dr. Vizcarra's license number is ME 0030012. On January 2, 1984, Dr. Vizcarra saw patient S.L. for the first time. S.L. was diagnosed by Dr. Vizcarra as suffering from tension headaches and hypertension. Dr. Vizcarra continued to see S.L. from January, 1984, until at least June 6, 1987. Throughout the period of time that Dr. Vizcarra treated S.L., including the period of June 14, 1986, through June 6, 1987, S.L. complained of, and was diagnosed as suffering from, numerous ailments, including hemorrhoids, nasal conjunction, lacerations, back pain, abdominal cramps, sore throat, diarrhea, gastrointestinal bleeding, laryngitis, chest pain, tooth ache, rhinitis, upper respiratory tract infection, viral syndrome, impotence and a ganglion cyst. During the time that Dr. Vizcarra treated S.L., including the period of June 14, 1986, through June 6, 1987, S.L. was seen by Dr. Vizcarra and other physicians on numerous occasions. The primary and most repeated diagnosis of S.L. by Dr. Vizcarra during the period of time that Dr. Vizcarra treated S.L. was migraine headaches and hypertension. In January of 1984, when S.L. first saw Dr. Vizcarra, S.L. was initially given Amitriptyline, a prophylactic drug, for his migraine headaches. The use of Amitriptyline, or other prophylactic drugs, was not continued by Dr. Vizcarra in his treatment of S.L., however. In April, 1984, Dr. Vizcarra referred S.L. to Dr. Kohler, a neurologist, for tests concerning S.L.'s migraine headaches. Dr. Vizcarra also referred S.L. to Dr. Loucshmann (phonetic) in April, 1984, for treatment of his migraine headaches and his hypertension. Neither physician continued to see S.L. after April, 1984. Dr. Vizcarra referred S.L. to other physicians: (1) Dr. Hernandez saw S.L. in May, 1986, for hemorrhoids; Dr. Baker, a cardiologist, saw S.L. in July, 1986, for chest pain; (3) Dr. Desai, a general surgeon, saw S.L. in August, 1986, for hemorrhoids and in June, 1987, for abdominal pain; and (4) Dr. Bonzon saw S.L. from January, 1987, through April, 1987, for the removal of a ganglion cyst. Dr. Vizcarra did not, however, refer S.L. to any other physician after April, 1984, for treatment of, or testing concerning, S.L.'s migraine headaches. During the period of time from June 14, 1986, through June 6, 1987, S.L. also was seen by various emergency room physicians, including Dr. Sklar, Dr. Amadio and Dr. Adams. All of these physicians listed Dr. Vizcarra as the "family physician" or as the "physician notified" on their record of S.L.'s visit. Finally, S.L. was seen in July and August, 1986, by Dr. Adom. Dr. Vizcarra's medical records concerning S.L. include information concerning S.L.'s treatment by the physicians listed in findings of fact 9-12. During the period of time from June 14, 1986, through June 6, 1987, Dr. Vizcarra prescribed over 60 injections of Talwin, Nubain and Stadol for S.L. S.L. also received injections of these drugs from some of the other physicians S.L. was seen by during this period of time. S.L. was also given approximately 25 to 30 prescriptions for Tylox and Darvocet, as well as other analgesic medications, during the period of time at issue in this proceeding. S.L. also received prescriptions for these drugs from some of the other physicians S.L. was seen by during this period of time. Talwin, Nubain, Stadol, Tylox and Darvocet (hereinafter referred to as the "Five Legend Drugs") are narcotic analgesic medications. They are all legend drugs and have the potential for addiction. Dr. Vizcarra indicated that he prescribed the Five Legend Drugs given to S.L. in order to relieve the pain that S.L. was suffering from. The rapid relief of pain with narcotic analgesics is acceptable only on an infrequent basis. Dr. Vizcarra's use of the Five Legend Drugs during the period of June 14, 1986, through June 6, 1987, was excessive. Dr. Vizcarra's use of the Five Legend Drugs during the period of June 14, 1986, through June 6, 1987, constituted an inappropriate use of legend drugs. Dr. Vizcarra failed to provide proof that he made an adequate medical assessment of S.L.'s condition or the possible consequences of S.L.'s exposure to the Five Legend Drugs prescribed for him by Dr. Vizcarra or the other physicians who treated S.L. from June 14, 1986, through June 6, 1987. The medical records maintained by Dr. Vizcarra fail to justify his treatment of S.L. during the period of June 14, 1986, through June 6, 1987. Dr. McCoy's testimony concerning whether Dr. Vizcarra's treatment of S.L. constituted a violation of Section 458.331(1)(t), Florida Statutes, was based upon Dr. McCoy's review of Dr. Vizcarra's medical records. Dr. Vizcarra provided further details concerning his treatment of S.L. during the hearing which were not included in his medical records. Dr. McCoy did not hear this testimony. Therefore, Dr. McCoy's opinions concerning whether Dr. Vizcarra's treatment of S.L. constituted a violation of Section 458.331(1)(t), Florida Statutes, did not take into account all of the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Eulogio Vizcarra, M.D., be found guilty of having violated Sections 458.331(1)(m) and (q), Florida Statutes. It is further RECOMMENDED that the portion of the Administrative Complaint against Dr. Vizcarra alleging that he violated Section 458.331(1)(t), Florida Statutes, be dismissed. It is further RECOMMENDED that Dr. Vizcarra be subjected to the following penalties: Payment of an administrative fine in the amount of $2,500.00; Placement on probation for a period of one year. Dr. Vizcarra should be placed under the indirect supervision of a Board of Medicine physician who should receive copies of all prescriptions for controlled substances written by Dr. Vizcarra during his probation. Quarterly reports should be made by the monitoring physician to the Board of Medicine's probation committee; and Attendance of twenty-one hours of Continuing Medical Education in courses concerning appropriate drug prescribing, in addition to Continuing Medical Education hours required for license renewal. DONE and ENTERED this 24th day of April, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1989. APPENDIX The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 2. 2 14, 16 and 18. 3 This summary of testimony supports findings of fact 15-18. 4-5 Argument and summary of positions. 6 19. COPIES FURNISHED: Joseph Harrison Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 John R. Weed, Esquire 605 South Jefferson Street Perry, Florida 32347 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth Easley General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent is a registered nurse who holds license number 65412-2, issued by the Florida State Board of Nursing. The Respondent stipulated at the final hearing that the facts set out in the first four paragraphs of the Administrative Complaint filed by the Florida State Board of Nursing were true. These allegations are as follows: On or about August 24, 1977, Respondent, admitted to Mr. William Draper, Assistant Director for Sarasota Memorial Hospital, Sarasota, Florida, that he had falsified hospital controlled drug records in the Emergency Room where he was employed as a registered nurse to cover up drug shortages. On or about August 24, 1977, after being advised of his Miranda rights by Detective J. L. Palmer of the Sarasota County Sheriff's Department, Respondent admitted to falsifying hospital controlled narcotic records to cover shortages of controlled narcotics The discrepancies in the hospital records with reference to controlled substances which were committed by the Respondent included, but are not limited to: Entering fictitious names on the morphine sulphate drug log and Demerol (Meperedine) drug log. Signing out for controlled narcotics on the drug log, but failing to make corresponding patient charge slips on the financial record. Signing out for controlled narcotics for patients for whom there were not physicians' orders for said narcotics for said patients, and failing to chart said narcotics on the patients' medical charts. Signing out for controlled narcotics for patients and failing to administer same or otherwise to account for their proper disposition. Based upon the above allegations, Respon- dent would be guilty of unprofessional conduct and in violation of Florida Statutes Section 464.21(1)(b) " Prior to the events described in Paragraph 1, the Respondent was employed at the Sarasota Memorial Hospital as the charge nurse in the emergency room. He supervised 13 other people including Lonnie Collins. The Respondent noticed that Collins had displayed wide, unpredictable mood swings, was sweaty and had a runny nose. The Respondent also noticed that certain controlled drugs were missing, or had been appropriated without entries being made in the log books. The missing drugs were narcotics, and could have produced Collins' symptoms. Respondent immediately suspected that Collins was responsible for taking the drugs. He chose to try to help Collins by covering up the missing drugs, rather than by reporting them to his superiors, to the police, and to the Florida State Board of Nursing. He provided fraudulent names in the log books in order to cover for the missing drugs. He did not receive or use any of the drugs himself, and he was motivated by a desire to save Collins and Collins' career. He did not take Collins off duty despite the danger. The Respondent did not realize that he was committing a crime, but he was prosecuted criminally, was convicted and placed on probation. He is now employed by the Sarasota Health Department as Clinics Manager. Other than these incidents, the Respondent's nursing career has been distinguished. Several physicians and nurses testified at the hearing as to the high quality of his work and his character. They were unanimously shocked about the incidents that gave rise to this proceeding, and expressed a common opinion that the Respondent may tend to bend over a little too far in trying to help other people. Falsely signing out for controlled drugs, and falsifying narcotic control logs are not things that show good professional character. It is apparent, however, that the Respondent was not motivated by personal gain, or by desire to obtain narcotic substances for his own use. His motivations were altruistic, albeit misguided. Except for these incidents, the Respondent has been an asset to his profession. It is apparent that the gravity of his mistake has been brought home to him. He has been prosecuted criminally and placed in jeopardy of permanently losing his ability to practice his profession. He has a keen awareness of the gravity of his errors and is not likely to repeat them. If the Respondent is permitted to continue practicing as a registered nurse, it is likely that he will henceforth be a valuable member of the profession.
The Issue Whether respondent's license to practice medicine should be disciplined on grounds that: (1) he engaged in gross or repeated malpractice or failed to practice medicine with the required level of care, skill, and treatment, and (2) he is unable to practice medicine with the requisite skill and safety by reason of illness or as a result of a mental or physical condition.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: Respondent is an 80-year-old physician licensed to practice medicine in Florida. He has been a general practitioner in the Miami area for over 40 years; during that time, he has earned the respect and esteem of the medical community. During the 1940s, he helped establish the first cancer clinic in Dade County; he is recognized as one of the community's early medical pioneers. He has never before been the subject of a disciplinary action for professional misconduct. (Testimony of Bishop, Boughton; R-2.) I. The Claresta Halloran Abortion On July 3, 1980, Ms. Claresta Halloran, age 35, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was "sometime in April." (P-3.) Respondent palpated her, examined her by use of a sounding instrument, and dilated her uterus. After determining that she was approximately 12 weeks pregnant, respondent attempted to abort the fetus by suction and curettage. Fearing that he had perforated Ms. Halloran's uterus, respondent had her transported to North Miami General Hospital for an exploratory laparotomy. Results of the exploratory surgery were negative; there was no evidence of perforation of the uterus or injury to the bowel. (Testimony of Boughton; P-3.) William Wickman, M.D., performed the exploratory surgery on Ms. Halloran at the hospital. His bimanual examination revealed an enlarged uterus, "the size of approximately [a] 12 week pregnancy." (Testimony of Boughton; P-3.) Two days after the surgery, Ms. Halloran passed a macerated fetus which, after pathological examination, was estimated to be of 17 weeks' gestation. Her convalescence from surgery was otherwise uneventful and she was discharged from the hospital the next day, July 6, 1980. (Testimony of Boughton; P-3.) Absent specialized training, abortions "from below," that is, by dilating the cervix and removing the contents of the uterus, should not be performed on pregnancies which have progressed beyond 12-weeks. This is because, after 12 weeks, the fetus's bones have developed calcium and sharp, razor-like edges which can perforate the uterus and endanger the health and safety of the patient. (Testimony of Rudolph.) Respondent has not received specialized training which would enable him to safely use the "from below" method on pregnancies beyond 12 weeks. However, his examination of Ms. Halloran led him to believe she had been pregnant for 12 weeks. In reaching that conclusion, he did not rely solely on the date of the patient's last menstrual period. His palpation and examination of the patient's uterus confirmed that the pregnancy was approximately 12 weeks. Dr. Wickman's subsequent examination of the patient at the hospital confirmed that the patient's uterus indicated an approximate 12-week pregnancy. (Testimony of Rudolph, Boughton; P-3.) There are other more advanced methods, such as sonography, which enable one to more accurately determine the gestational age of a fetus. However, the evidence does not support a finding that respondent's failure to use such methods constitutes malpractice or a failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (Testimony of Rudolph.) Respondent admits that he erred in his diagnosis of the stage of Ms. Halloran's pregnancy. However, his diagnosis was not shown to have been unjustified or unreasonable in light of the facts known to him at the time. Both the date of the patient's last menstrual period and manual examination of the uterus supported a determination that the pregnancy was approximately 12 weeks. The "from below" abortion procedure which respondent utilized is only unacceptable for use on pregnancies in excess of 12 weeks. In short, respondent's treatment of the patient was consistent with his diagnosis. While the diagnosis was in error -- the fetus was of 17 weeks' gestation, not 12 weeks -- other physicians, under similar circumstances, would likely have made the same error. (Testimony of Boughton; P-3.) II. The Wilhemina Evans Abortion On August 5, 1980, Ms. Wilhemina Evans, age 18, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was at the end of April. He palpated her, placed a sounding instrument, and dilated her uterus. After concluding that she was at least 13 weeks pregnant; 2/ he attempted to abort the fetus "from below" by use of placental forceps and a curette. He thought the abortion had been successful and permitted the patient to, return home. (Testimony of Rudolph, Boughton; P-4.) The next day, the patient went to Jackson Memorial Hospital complaining of abdominal pain. Several minutes after arriving at the emergency room, she passed a 750-gram male still-born fetus. Subsequent pathological examination indicated that the fetus was of 24 weeks' gestation. (P-4.) Respondent failed, in several respects, to provide Ms. Evans with treatment which is recognized by a reasonably prudent similar physician as acceptable under similar circumstances. Without special training, the "from below" method of aborting the fetus should not have been used on a woman beyond 12 weeks pregnant. 3/ Moreover, if respondent was uncertain of the gestational age of the fetus, he should not have attempted to abort the fetus "from below" in an office setting. Despite the patient's obesity, respondent should have been able to determine the advanced gestational stage of the fetus. Finally, a reasonably prudent similar physician would have realized that the attempted abortion had been unsuccessful and would not have permitted the patient to immediately return home. Thus, it is concluded that respondent's treatment of Ms. Evans was inconsistent with acceptable medical practice. 4/ (Testimony of Rudolph.) III. Treatment of Skin Lesions of Bernice Riordan Since 1951, Bernice Riordan, age 68, has been a patient of respondent's. Over the years, he treated her for various ailments, including basal cell carcinomas and squamous cell carcinomas on her face and neck. He used different techniques to treat the carcinomas; electrocoagulation in 1955; electrodesiccation and silver nitrate in 1961, 1962, 1972, and 1976; bichloracetic acid in 1976; and 5-Fluorouracil in 1978. In April, 1961, respondent referred Ms. Riordan to a dermatologist for specialized treatment. In 1969, he referred her to Jackson Memorial Hospital for radiation therapy because of multiple lesions on her face. She was a difficult and eccentric patient; she continually resisted his efforts to refer her to specialists for treatment of her increasingly serious carcinomas. Finally, in 1980, he referred her to two specialists -- a plastic surgeon and another dermatologist. By 1980, the cancer of the skin on her face had destroyed the entire nose and perioral skin. (Testimony of Boughton; P-2.) The Department presented, by deposition, the testimony of Dr. Richard C. Childers, a dermatologist who had reviewed the patient records of Ms. Riordan. He graduated from medical school in 1969 and was licensed to practice medicine in Florida in 1971. Since 1974, he has engaged in the private practice of dermatology in Gainesville, Florida, with a clinical appointment at Shands Teaching Hospital. It was Dr. Childers' opinion that respondent should have referred Ms. Riordan, no later than 1959, to a specialist for treatment of recurring skin lesions. Dr. Childers also opined that respondent, on numerous occasions over the years, had used ineffective or inappropriate treatment techniques on Ms. Riordan's lesions. (P-2.) Dr. Childers' testimony is rejected as inadequate to establish that respondent failed to provide treatment to Ms. Riordan which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Dr. Childers is a specialist in dermatology, not a general practitioner. He practices in Gainesville, not Miami. When respondent applied many of the complained of treatment techniques to Ms. Riordan, Dr. Childers had not yet begun medical school. It would be patently unfair to measure treatment for carcinomas furnished by a general practitioner in 1961 by a specialist's with the standard of care applicable to general practitioners in the Miami area during the period in question. to establish an appropriate standard of care applicable to respondent's treatment of Ms. Riordan. (Testimony of Boughton; P-2.) IV. Respondent's Ability to Practice Medicine with Reasonable Safety to His Patients On April 27 and 30, 1981, a mental status examination was given psychiatrist's opinion, respondent's appearance, behavior, and overall thinking was intact; there was no evidence of psychosis. However, respondent's response was somewhat impaired. Dr. Bishop concluded that respondent suffers from of Bishop.) Respondent recognizes that his advanced age affects his ability to However, he believes that he is able to operate an office practice with reasonable skill and safety and without endangering his patients. He is willing his work. The practice of medicine is his avocation as well as his profession; it is the habit and pleasure of his life. (Testimony of Boughton.) interfere with his ability to practice medicine with reasonable skill and safety to his patients. The ability to remember facts is essential to a physician's patient's illness. (Testimony of Bishop.) However, the evidence is insufficient to demonstrate that respondent's his livelihood. The evidence on the extent which his impairment will affect his ability to practice is problematic. He is willing to submit to the supervision supervision of another physician, it is likely that he will be able to practice medicine with reasonable skill and safety to his patients. (Testimony of
Recommendation Based on the foregoing, it is That respondent's license to practice medicine be suspended until respondent submits to the Board an acceptable proposal which ensures that his the Board approves the proposal, respondent should be placed on a probationary status and his practice restricted to exclude the performance of surgery and DONE AND RECOMMENDED this 20th day of November, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 20th day of November, 1981.
Findings Of Fact Petitioner Jose A. Torres was a licensed medical doctor, having been issued License No. ME0029982. By Administrative Complaint filed March 23, 1982, he was charged with 31~counts of violations of Chapter 458, Florida Statutes. Dr. Torres entered an admission as to seven counts of that Administrative Complaint and the other counts were dismissed prior to hearing. The matter came before the Board of Medical Examiners as an informal hearing and the Board voted to revoke Dr. Torres' license to practice medicine (P-3). The undersigned ruled at formal hearing, contrary to Petitioner's urging, that it is inappropriate to go behind the formal final order of revocation to vary the circumstances leading up to that revocation.9 At that time, by requesting an informal proceeding pursuant to Section 120.57(2), Torres admitted not simply to conclusions of law as to what statutory violation was found, but also to there being no disputed issues of material fact as alleged in the Administrative Complaint. Accordingly, the specific facts admitted by Torres related to the treatment of seven different patients and the prescription of controlled substances to each of those patients in the following amounts over the following time period: John Dodge 852 Dilaudid Less than 3 months Joann Diaz 425 Dilaudid Less than 2 months Robert Pendegar 427 Dilaudid Two and one half months Richard Pendegar 168 Dilaudid Less than 1 month Charles Penno 330 Dilaudid Less than 3 months Robin Simpson 174 Dilaudid Less than 6 months Graham Boylan 130 Dilaudid Less than 1 month In addition to admitting the facts relating to the number of pills prescribed over a specified period of time as to each individual patient, Torres admitted (See P-3-4) that each patient: Was a drug abuser, a fact that was or should have been known to Respondent [Dr. Torres]. Respondent did not prescribe above- prescribed controlled substance for a medically-justified purpose. Said prescriptions were inappropriate or excessive and inappropriate quantities.10 It was based upon those admissions of fact that the Board of Medical Examiners determined that Torres had violated Section 458.331(1)(q), Florida Statutes, for prescribing a controlled substance other than in the course of his professional practice in each of the seven counts and revoked his medical license. He has been without his license for approximately 29 months at this writing. It was stipulated, and is accordingly found, that Petitioner has never previously nor subsequently been charged with or been found in violation of any provision of the Medical Practices Act (Chapter 458, Florida Statutes) nor any rule of the Board of Medical Examiners, other than those which were committed in 1981 and which led to the revocation of Petitioner's license on June 15, 1983. It was stipulated, and is accordingly found, that Petitioner falls in the category of persons applying for and eligible for reinstatement pursuant to Board policy in effect prior to June 5, 1983. There are no statutes or written rules or policies of Respondent defining what is a "grave" violation nor what "grave" violation(s) would show "such a lack of judgment and lack of ability or willingness to conform to the law" so as to guide Petitioner in applying such criteria in the reinstatement process. Both Drs. Katims and Bass testified that each Board member's decision on what was or was not a "grave" offense was based upon their own subjective interpretation and criteria, and that for persons in the Petitioner's pre-June 5, 1983 category, the Board did not consider any particular formula nor any one factor but looked at the totality of the circumstances in arriving at conclusions concerning who should be reinstated and who should not be reinstated. Respondent had not, prior to the time Petitioner filed his Petition for Reinstatement, adopted any written reinstatement rules which covered persons in Petitioner's category of those applying for reinstatement. Rule 21M-20.03 Florida Administrative Code became effective on January 3, 1985. Any effect or lack of effect thereof is considered infra under "Conclusions of Law". Petitioner's Exhibit 6 seeks to establish incipient policy by a summary of prior actions taken by the Board of Medical Examiners. Of the seventeen cases listed in the summary, all but one involved charges of inappropriate and excessive prescriptions. Only three involved revoked licenses. One of those three with revoked license was Petitioner herein; one was Dr. Richard S. Flatt, one was Dr. Newell Griffith.ll All of the other cases documented in P-6 were ones in which the initial discipline imposed fell short of revocation,l2 and one of those was the acceptance of a voluntary relinquishment of licensure with leave to request reinstatement. In addition, documentation on which the summary was based was introduced as Composite P-17. A review of those materials reveals that procedurally, only five of the cases cited, in addition to the case of Petitioner Torres, were before the Board for informal proceedings. Five were stipulations accepted by the Board, none of which contained admissions as to the truth of the allegations of fact in the Administrative Complaint. Four were before the Board after formal hearings at which the case was fully tried and evidence of violations or defenses thereto was fully available. The remaining cases involved one voluntary relinquishment (Major) and one case (Flats) in which the documents relate to reinstatement and do not reveal the procedural posture of the underlying discipline. Of all of the informal hearings reflected in the documentation, only two of the Respondents failed to make an appearance, either in person or through counsel, to offer an explanation of their conduct or offer evidence in mitigation at the time the Board was imposing discipline: this Petitioner Torres and Dr. Newell Griffith. Petitioner Torres states that he did not appear at his April 9, 1983, hearing due to faulty advice concerning the date thereof given him by his former attorney. Dr. Newell Griffith's situation is discussed in greater detail, infra. In only one of the other cases (Seller) involving an informal hearing did the Administrative Complaint contain the specific allegations of fact that the patient was a known drug abuser and that the Respondent did not prescribe the controlled substance for a medically-justified purpose (Seller). In one other case (Waldheim) the allegations did include an allegation that the prescriptions were not for a medically-justified purpose, but there was no allegation therein with respect to the fact that the patient was a known drug abuser. Although both parties have argued a variety of similarities of the various aspects, issues, Respondents, etc. of the seventeen cases by which Petitioner has attempted to demonstrate incipient policy, the only ones specifically found relevant and material are those involving revocation: Torres, Flatt and Griffith.l3 The charges against Dr. Richard S. Flatt were couched in terms of bargaining with not-medically justified prescriptions for the sexual favors of a single female patient. Although Dr. Flatt's license was revoked, the initial revocation was stayed and the license was suspended for three years. A specific time limit was placed on the revocation (which probably is more correctly termed a suspension) with no further conditions for the stay imposed, but nonetheless it is found, for purposes of comparison re incipient policy, to be a revocation case. Dr. Flatt was without his license for 35 months. Thus, we come to the sole case which appears to be closely comparable, in any real sense, to the circumstances of Petitioner Torres: the case of Newell Jerome Griffith. Dr. Griffith was initially charged in 1981 with excessive and inappropriate prescribing of controlled substances to three patients, and was, at that time, given a disciplinary penalty of a revocation of the privilege to prescribe Schedule II controlled substances, with stay of such revocation, and a suspension of those privileges until after certain continuing medical education courses were completed, at which time the privileges would be reinstated on probation. Subsequently, Dr. Griffith was charged with prescribing Schedule II controlled substances to five patients while his privilege to do so was revoked. The final order in that cause indicates that Dr. Griffith did not attend the hearing on the charges, either in person or through counsel, that Dr. Griffith was found guilty after filing an Election of Rights admitting the facts, and that Dr. Griffith's license to practice medicine was revoked. When Dr. Griffith was asked by the Respondent in a second disciplinary action whether he knew at the time of the subsequent prescriptions that his license to do so was suspended and why under those circumstances he did so, Dr. Griffith replied: "I guessed I hoped it would not be picked up . . ." (P- 7, page 19). The final revocation was because Dr. Griffith prescribed 488 tablets of Schedule II drugs to five patients while his privileges to prescribe Schedule II drugs had been suspended. Respondent's proposals concede "that particular offense does appear to show an inability or unwillingness to conform to law," and it is so found. It is also found that the quantity and gravity of the drugs involved in Dr. Griffith's ultimate revocation case is less than those which led to Petitioner Torres' license revocation. When both the suspension and revocation cases are considered there is great similarity in quality and quantity of Griffith's prescriptions with those of Torres. In the revocation situation of Griffith however, there was no showing of prescription to drug abusers or prescription for a non-medically justifiable purpose and it involved fewer patients and pills than prescribed by Petitioner. Despite the fact that Dr. Griffith has violated the Medical Practices Act on two separate occasions (Petitioner having done so only once), and prescribed similar total quantities of controlled substances, including Dilaudid, and despite the fact that Dr. Griffith the second time around expressly engaged in conduct clearly showing "lack of judgment" and "his unwillingness to conform to the law", the Respondent has permitted Dr. Griffith to be reinstated and he is now practicing medicine. His license revocation was for a total of 24 months (P-6). Dr. Griffith's license was reinstated by the Board of Medical Examiners after repeated Petitions for Reinstatement had been denied and the appellate court had ordered the Board to articulate a basis for the denial and standards for Dr. Griffith to use in determining when the Petition for Reinstatement would be "mature" for presentation to the Board.14 After Petitioner Torres was charged with the specific violations of the Medical Practices Act involving improper prescription of controlled substances, he took and successfully completed a six and one- half hour Continuing Medical Education (CME) course involving the specific activities (prescription of controlled substances) for which his license was revoked. After successfully completing this Drug Law Seminar, Petitioner continued to take and complete continuing medical education courses including attendance at conferences and seminars and the reading of numerous medical periodicals and journals. These included three books or pamphlets concerning drug abuse, heroin, and other aspects of drug dependence. After the revocation of his license, the Petitioner and his wife jointly agreed that he would do everything he could to stay in touch with the medical profession so as to enhance the possibility of eventual reinstatement of his license. Both the Petitioner and his wife have continuously struggled at menial jobs to support their family of four children. Petitioner took a job providing audio visual materials at Hollywood Memorial Hospital for other doctors. Dr. Seidel, Director of Medical Education and In-House Chief of Staff for Hollywood Memorial Hospital, found the Petitioner to be an honest and hardworking person who completed all audio visual, chart review auditing, and quality assurance tasks assigned to him in an exemplary fashion. Petitioner viewed many of the continuing medical education programs and courses as part of this audio visual job. Petitioner urges that over 100 hours of CME have been completed, but Respondent argues these hours should be discounted because many hours were admittedly part of Petitioner's audio visual tasks. Based on the testimony and exhibits, it is impossible to separate which "hat" Petitioner was wearing for which topics or for how many hours, but it appears most logical that he was present in the room while at least 54 hours of Florida Medical Association-approved CME material was being presented by audio visual techniques. Without contrary evidence, one must assume Petitioner was at least as attentive as the Hollywood Memorial Hospital physicians required to attend these presentations by the hospital's quality assurance program. Certainly, hope of reinstatement of his license must have been an effective motivator for Petitioner. Even if there were some question concerning Petitioner's attention to these audio visual programs, which there is not, there remain 46 hours of CME accomplished by the Petitioner through other means. Most of the letters and petitions signed by physicians (P-1C) in support of Petitioner being permitted to practice medicine, though admitted into evidence by stipulation, are simply not probative of the basic issue of current safety to practice. Their probative value on this point is diminished on the same weight and credibility grounds as are most of the physicians' live and deposition testimony, or they fail because they are undated, stale, or at least confused about the fact that revocation has already occurred. By expert testimony, of Drs. Coopersmith, Shabanah, Di Giorgi, Piskur, Rand, and Bautista,l5 all testified that in their opinions, the Petitioner could now safely engage in the practice of medicine. Drs. Coopersmith, and Shabanah base their opinions upon Petitioner's CME hours and qualify the Petitioner's safety to practice in terms of being properly supervised or monitored. With the exception of Dr. Seidel and Dr. Bautista, most of the physicians who testified or gave affidavits in support of Petitioner Torres testified that he had practiced with reasonable skill and safety all along: this clearly was not so. These physicians' assertions show a lack of awareness of the full nature of Torres' practice before revocation, and, therefore, a lessened ability to judge whether Torres has changed in a manner sufficient to assure the Board and the public that he will practice with reasonable skill and safety within the confines of the requirements of the applicable Florida Statutes. Testimony by Drs. Coopersmith, Shabanah, Di Giorgi, Piskur and Rand specifically fall in this category of lessened weight and credibility. For the same reasons, the testimony of Mr. Tom Mulroney, a retirement village operator, and Mr. Lawrence Esteban, a paramedic/fireman, is equally lacking in weight and credibility. All written as well as oral evidence originating with Dr. Seidel has been weighed. Although Dr. Seidel apparently knew the entire prescribing history of Petitioner's medical career and of this case, he expressed the opinion that Petitioner's license should be reinstated and it is found that inherent in that opinion of Dr. Seidel is his belief that Petitioner can now safely practice medicine even though Dr. Seidel did not employ those "magic words." Dr. Seidel has known Petitioner for many years and his opinion in favor of reinstatement is particularly impressive in light of his almost daily observation of Petitioner since his license revocation and in light of Dr. Seidel's past knowledgeable observation and supervision of him as a house physician at Hollywood Memorial Hospital when Torres was first practicing there in 1977. The weight of Dr. Seidel's opinion is further amplified by Dr. Seidel's continuing service on peer review committees for this hospital. Dr. Bautista's knowledge of Petitioner's entire past prescribing went beyond just talking to Petitioner. Although she had agreed to oversee him if a probationary period were ordered with reinstatement, she also gave her unqualified professional opinion that Torres may now safely practice medicine. Since revocation, Petitioner has taken and passed both a physical and mental examination. Each examining physician concluded he could now safely engage in the practice of medicine. The description in psychiatrist James S. Weiner's report of the status of Petitioner's legal case before the Board and/or theDivision of Administrative Hearings and the apparent discrepancies between the facts as established by the initial final order of revocation by the Board and Petitioner's explanation to Dr. Weiner of what had occurred from Petitioner's point of view are as attributable to a non-lawyer's misunderstanding of the legal terms "suspension" and "revocation" and of the finality and legal consequences of the Board's 6/15/83 order as they are attributable to any alleged misrepresentation or lack of candor by Petitioner. Contrary to Respondent's urging in its proposals, Petitioner's credibility is not thereby diminished. While there were many patients who testified through affidavit or whose testimony was proffered without admission, as to how much they liked Petitioner and how much they wanted him back in practice, patients are not in a position either to judge Petitioner's ability to practice with reasonable skill and safety before revocation where, as here, they had no clear knowledge of his prescribing practices before revocation, and where, as here, they were not knowledgeable concerning his rehabilitation efforts, if any, since revocation. However, it is clear that despite newspaper publicity, Petitioner continues to enjoy a good reputation among many in the community. Petitioner's Plan of Re-Instatement was part of his Petition for Reinstatement affixed to his Petition for Administrative Hearing. It contains two (2) distinct Plans of Supervision during any probationary period Respondent might elect to set as a condition for Petitioner's re-instatement, including one plan where the practicing physician would supervise the Petitioner on a day-to-day basis and the other plan would include direct supervision within the confines of a publicly-owned and regulated medical facility with the parameters of that supervision to be set by the Respondent. As part of the first Plan of Supervision, an affidavit of a presently practicing physician in good standing with the Respondent, Videonia Bautista, M.D. was provided. She agreed, within her affidavit (and in live testimony recounted, supra) to supervise Petitioner on a day-to-day basis in her own office for as long as the Respondent felt such supervision was reasonably necessary. Petitioner also testified personally regarding his rehabilitation. Petitioner readily and candidly admitted that what he did in 1981 was wrong. The totality of his testimony and his general demeanor reveal that the acute embarrassment and subsequent financial and familial hardships and sacrifices that he and his family have endured since his downfall have instilled in him a valuable lesson which will constantly serve as a reminder to him of the standards of conduct required of one licensed in the medical profession. The Petitioner expressed remorse and regret for the actions he took in 1981. He apologized to his family, his peers and his patients. He expressed his frustration and disappointment in not being able to continue to serve his patients because of what he views as his past errors in judgment. Petitioner admitted to having a flaw in his character, that flaw being too trusting and too naive as to the subjective complaints of his former patients. Such a flaw of character is not inconsistent with the earlier disjunctive admission/finding that Torres "knew or should have known" (emphasis supplied) that he was prescribing to drug abusers. Torres explained that the experience he has endured has brought that flaw vividly to his attention and he has done everything within his power to reasonably ensure that the same problem never happens again. When the Petitioner was asked if he had learned anything from his experience, he testified: I have each and every time of the day pondered upon the mistake that I committed and the result that it has done to me and my family and my patients. That because of that, I will never do it again. Petitioner, a church-goer, and his wife and four children have suffered newspaper publicity, public humiliation, and a drastic reduction in their standard of living throughout this lengthy revocation period. Petitioner acknowledged and agreed to adhere to the Plan for Re-Instatement contained in the Exhibits to his Petition. He also agreed to abide by any reasonable requirements set by the Respondent to ensure that he would continue to safely engage in the practice of medicine and would not repeat the errors in judgment which led to the revocation of his license. The potential for Petitioner, if reinstated, to commit the same offense(s) is very dim.
Recommendation It is recommended that the Florida Board of Medical Examiners enter a final order reinstating Petitioner's license to practice. DONE and ORDERED this 24th day of October, 1985, in Tallahassee Florida. ELLA JANE P.DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675
The Issue At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes. The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.
Findings Of Fact Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice. Patient Fleming Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions. Patient Kipp Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.
Findings Of Fact Mark Hegedus, Respondent, is registered with the Florida State Board of Nursing and holds license No. 85729-2. He worked at the Sarasota Memorial Hospital (SMH) for approximately three years immediately preceding May 15, 1978. During the period between April 1, 1978 and May 15, 1978 Respondent was working on the cancer ward at SMH and was Charge Team Leader at the hospital. An audit conducted of the narcotics and barbiturates administration records at SMH for the period 1 April through 15 May 1978 disclosed that of 14 patients records selected who had been administered Demerol by Respondent, evidence of irregularity was discovered in 30 entries on 9 of the 14 patient medical records audited. These errors included signing out for 50 mg ampules of Demerol 11 times, for 75 mg ampules 11 times, and for 100 mg ampules 8 times in the narcotic record with no entry made on the Nurses Notes or on Medication and Treatment record. These errors involved patients Daryl C. Iverson, Edna Jurgenson, Clinton Jelmberg, John Lally, Genevieve Belt, Arleigh Updike, Michael Wujtowicz, Joan Slater, and Arda Miller. Hospital procedures and accepted nursing practice require the nurse administering narcotics to sign for the narcotic when it is removed from the narcotics locker and then make an entry in the Nurse Notes and patient Medication and Treatment record when the narcotic is administered to the patient. Medication and Treatment records are used by the doctors to see how frequently patients need narcotics prescribed on an as needed basis, whether the drugs prescribed have been administered, and by other medical personnel to ascertain when the patient last received and how much medication so as to preclude giving the patient an overdose. Respondent was discharged from his position at the hospital on 15 May 1978 because of the narcotics irregularities. At the time of his discharge, Respondent acknowledged that he had taken Demerol and had disposed of the ampules but that he did not use them himself or sell them. The audit disclosed a few errors in charting narcotics were committed by other nurses as well as Respondent. During the three years Respondent worked at SMH and, up until about 1 April 1978, he was a capable and competent registered nurse, well-liked by both patients and co-workers. He was promoted to First Team Leader after about one year at SMH and to Charge Team Leader approximately one year thereafter. These promotions were more rapid than the time required by the average nurse. All witnesses who had worked with Respondent spoke highly of his qualifications and dedication as a registered nurse.
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's license to practice medicine based upon the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent, Esmildo E. Machado, was a licensed physician in the State of Florida having been issued license number ME-0028831. Respondent came to the United States from Cuba in approximately April of 1974. Respondent was and is a fervent anti-communist. Prior to coming to the United States, Respondent was imprisoned in Cuba from 1969 through 1974 for aiding anti-communists who were attempting to overthrow the government of Cuba. Respondent has been a licensed physician in Florida since 1976 and has been practicing out of an office located at 456 Southwest 8th Street in Miami, Florida, since that time. No evidence was presented of any prior disciplinary action taken by Petitioner against Respondent. In March of 1992, the Federal Drug Enforcement Agency ("DEA") initiated a criminal investigation into the prescribing practices of Respondent. The investigation was apparently initiated after a confidential informant (the "Confidential Informant" or the "Patient") told DEA that he could obtain drugs through Respondent. The DEA enlisted the Confidential Informant to try to buy drugs and prescriptions from the Respondent. The Confidential Informant was not otherwise employed during the time period in question. He was paid by DEA based in part upon the quantities and strength of the drugs and prescriptions obtained. On or about April 13, 1992, the Confidential Informant telephoned the Respondent's office and set up an appointment to meet with the Respondent that afternoon. The Confidential Informant had been a patient of the Respondent's several years earlier. In addition, the Confidential Informant's father had been treated by the Respondent in the recent past. As discussed in more detail below, Respondent claims that he thought the Confidential Informant came to see him to complain about Respondent's treatment of the Confidential Informant's father. Respondent contends that the Confidential Informant had visited his office approximately one week before the April 13 visit and, during the earlier meeting, the Confidential Informant told Respondent that he needed drugs for the "Nicaraguan anti-communists." Respondent claims that he felt compelled to help. The Confidential Informant denies any such conversation took place. Respondent's purported desire to help the Nicaraguan anti-communists does not relieve him of the obligation to practice medicine in accordance with community standards and the laws of Florida. In any event, Respondent's contention is not credible. As discussed in more detail below, the Confidential Informant recorded his April 13 visit to Respondent's office and also recorded several subsequent visits. None of the transcripts of the recorded conversations between Respondent and the Confidential Informant reflect that either the Confidential Informant or Respondent ever made any mention of "Nicaraguan anti- communists." Respondent also contends that he was intimidated by the Confidential Informant and alleged hints made by him of a possible malpractice lawsuit over Respondent's treatment of the Confidential Informant's father. The transcripts of the initial meetings between Respondent and the Confidential Informant reflect that Respondent was very solicitous regarding the Confidential Informant's father. However, there is no persuasive evidence that the Confidential Informant said or did anything to foster Respondent's concern about a possible malpractice action. Any subjective fears on Respondent's part were not reasonably based and provide no defense to the charges that he violated Chapter 458, Florida Statutes. The more persuasive evidence in this case did not support Respondent's contention that he was coerced or tricked into selling the Patient prescriptions and drugs during any of the meetings. Moreover, Respondent's claim that he was "entrapped" to dispense drugs and prescriptions to the Confidential Informant was not persuasive. Before the April 13 meeting, the Patient met with DEA Investigator Robert Yakubec and another DEA agent a few blocks from Respondent's office. Investigator Yakubec instructed the Patient on the law of entrapment and the DEA procedures for making a controlled buy. The Patient and his car were both searched, after which the Patient was given two hundred dollars to purchase prescriptions or drugs. The Patient was also given a recorder to record his conversation with the Respondent. Investigator Yakubec and another DEA agent followed the Patient to the Respondent's office. They maintained surveillance outside Respondent's office until the Patient exited. They then followed him to a prearranged meeting place where he was again searched. DEA regulations mandate the procedures described in paragraph 9. The evidence established that these procedures were followed for each and every purchase attempt described in this Recommended Order. During the April 13, 1992 meeting, Respondent provided the Patient with ten (10) Hydrocodone Bitartrate 7.5 mg. tablets (Vicodin), one prescription for forty (40) Acetaminophen with Codeine 30 mg. tablets (Tylenol III) in the name of "Roberto Gomez," and one prescription for thirty (30) Vicodin 5 mg. tablets in the name of "Juan Quinones." Vicodin is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Hydrocodone, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Tylenol III is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Codeine, a Schedule III controlled substance as defined in Section 893.03(3), Florida Statutes. Respondent failed to take a medical history or conduct a physical examination of the Patient during the April 13 visit or during any subsequent visits by the Confidential Informant. The Confidential Informant was in Respondent's office for approximately twenty (20) minutes on April 13. He paid Respondent's secretary ten dollars ($10) for the office visit. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed by the DEA agents, who searched him and his car. The Confidential Informant returned one hundred and ninety dollars ($190) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 16, 1992, the Patient returned to Respondent's office. Before the visit, the search and preparatory procedures described in paragraph 9 were performed by Investigator Yakubec and the Patient was given one hundred dollars ($100) to make a purchase. During the April 16 visit, Respondent asked the Patient about the money Respondent made on the prescriptions from the last visit. Respondent suggested he could help the Patient by giving him Vicodin and they could split the earnings from the drugs. Respondent did not comply with the Patient's request for a prescription for Demerol. During the April 16 visit, Respondent gave the Patient one prescription for forty (40) Tylenol III 30 mg. tablets in the name of "Edna Pavon." He also gave the Patient eight (8) Toradol tablets and a prescription for forty (40) more Toradol. The Confidential Informant paid Respondent sixty dollars ($60) for these items. Toradol is a legend drug pursuant to Section 465.003(7), Florida Statutes. The Patient was in Respondent's office for approximately ten minutes on April 16. The Patient proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned forty dollars ($40) to Investigator Yakubec along with the prescriptions and Toradol provided by the Respondent. The Confidential Informant's next visit to Respondent's office was on April 21, 1992. Prior to the visit, the Patient met with Investigator Yakubec and was given two hundred and fifty dollars ($250) to make a purchase. The standard search and preparatory procedures were performed by Investigator Yakubec. The Patient had to wait for more than an hour to see the Respondent on the April 21. Respondent contends that on this and other occasions he deliberately made the Patient wait in the hope that the Patient would get discouraged and leave. After considering all of the evidence, it is concluded that Respondent did very little to discourage the Confidential Informant's efforts to obtain drugs and prescriptions. While Respondent resisted some efforts by the Confidential Informant to obtain stronger drugs, this resistance appears to have been predicated on concerns that those drugs were more closely monitored. When the Patient finally got in to see the doctor on April 21, Respondent gave the Patient one hundred and sixteen (116) Vicodin 5 mg. tablets, one prescription for sixty (60) Tylenol III 30 mg. tablets in the name of "Georgio Rojas," and one prescription for sixty (60) Darvocet 100 mg. tablets in the name of "Celia Garcia." The Patient paid Respondent one hundred thirty dollars ($130) for these items. Darvocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Propoxyphene Napsylate, a Schedule IV controlled substance as defined in Section 893.03(4), Florida Statutes. After leaving Respondent's office on April 21, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and twenty dollars ($120) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 24, 1992, the Patient again presented at Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec before the visit, and the Patient was given two hundred dollars ($200) with which to make a purchase. During the April 24 visit, the Patient told Respondent he wanted a prescription for "Xanax" and a prescription for "Tranzene" for a "Cuban friend." Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets, one prescription for sixty (60) Xanax 25 mg. tablets in the name of "[illegible]", one prescription for thirty (30) Tranxene 3.75 mg. tablets in the name of "[illegible] Martinez," one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "Georgio Rojas", and one prescription for sixty (60) Tylenol III 60 mg. tablets in the name of "[illegible]." The Patient paid the Respondent one hundred thirty dollars ($130) for the drugs and prescriptions. Xanax is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Tranxene is a legend drug pursuant to by Section 465.003(7), Florida Statutes and contains Clorazepate Dipotassium, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately twenty-three (23) minutes on April 24. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned seventy dollars ($70) to Investigator Yakubec along with the prescriptions and Vicodin provided by the Respondent. On April 29, 1992, the Patient returned to Respondent's office. The standard search and preparatory procedures were performed by Investigator Yakubec prior to the visit. The Patient was given one hundred and seventy dollars ($170) with which to make a purchase. During the April 29 visit, the Patient asked Respondent for a prescription for Tylox. Respondent directed the Patient to wait in the office while he obtained some Vicodin. After waiting less than one hour, Respondent gave the Patient ninety (90) Tylenol III 30 mg. tablets, one hundred (100) Vicodin 5 mg. tablets, and one prescription for thirty (30) Halcion 25 mg. tablets in the name of "Carlos Quinones" and a prescription for sixty (60) Tylox in the name of "Belen Portela". The Patient paid Respondent a total of one hundred fifty dollars ($150) for these items. Tylox is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance as defined in Section 893.03(2), Florida Statutes. Halcion is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Triazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. The Patient was in Respondent's office for approximately fifty (50) minutes on April 29. Upon leaving, he proceeded directly to a prearranged meeting place where he was debriefed and searched. He returned twenty dollars ($20) to Investigator Yakubec along with the Tylenol, Vicodin and prescriptions. On May 4, 1992, the Patient again presented at Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 4 visit, Respondent gave the Patient two hundred (200) Vicodin 7.5 mg. tablets and one prescription for thirty (30) Tylox tablets in the name of "Luis Moran." The Patient paid Respondent two hundred dollars ($200) for these items. The Patient was in Respondent's office for approximately twenty (20) minutes on May 4. Upon leaving, he proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned fifty dollars ($50) to Investigator Yakubec along with the prescription and Vicodin provided by the Respondent. On May 6, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 6, 1992 visit, the Patient asked Respondent to try to obtain some steroids, in particular Deca Durabdin, for some of his friends. Respondent gave the Patient one hundred and two (102) Vicodin 7.5 mg. tablets and three hundred (300) Vicodin 5 mg. tablets in return for which the Patient paid Respondent two hundred fifty dollars ($250). The Patient promised to pay Respondent an additional fifty dollars ($50) on his next visit. The Patient was in Respondent's office for approximately twenty (20) minutes on May 6. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. The Patient's next visit to Respondent's office was on May 15, 1992. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given three hundred fifty dollars ($350). Fifty dollars ($50) was to pay for the drugs obtained during the previous visit. The Patient entered Respondent's office at approximately 1:00 p.m. on May 15 and remained inside for approximately fifteen (15) minutes. Petitioner paid Respondent the fifty dollars ($50) due from the previous visit. Respondent told the Patient he was trying to determine if he could obtain any steroids. Respondent and the Patient also discussed other drugs, including Dilaudid, Percodan and Percocet, and they discussed problems with obtaining such drugs from various pharmacies in the area. Respondent did not agree to provide any of these stronger drugs to the Confidental Informant at this time. Respondent told the Patient to return at 2:00 p.m. to pick up some Vicodin. The Patient returned to Respondent's office at approximately 1:45 p.m. on May 15 at which time Respondent gave the Patient two hundred and ninety seven (297) Vicodin 5 mg. tablets in return for which the Patient paid the Respondent two hundred fifty dollars ($250). The Patient left Respondent's office at approximately 2:02 p.m. and proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient gave Investigator Yakubec the Vicodin provided by the Respondent. On May 20, 1992, the Patient returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given two hundred and fifty dollars ($250) with which to make a purchase. During the May 20 visit, the Patient and Respondent discussed how prescriptions could be presented at various pharmacies so as to minimize suspicion. Respondent gave the Patient one prescription for forty (40) Percocet #40 tablets in the name of "Daysi Lopez"; one prescription for forty (40) Percocet #40 tablets in the name of "Centuedis Nundez"; one prescription for forty (40) Percocet #40 tablets in the name of "Anzetia Perez"; and one prescription for 2 vials/2cc of Deca Durabolin in the name of "Miguel Castro." The Patient paid the Respondent one hundred twenty dollars ($120) for the prescriptions. Deca Durabolin is a legend drug pursuant to Section 465.003(7), Florida Statutes. Percocet is a legend drug pursuant to Section 465.003(7), Florida Statutes, and contains Oxycodone, a Schedule II controlled substance listed in Section 893.03, Florida Statutes. The Patient was in Respondent's office for approximately one (1) hour and ten (10) minutes on May 20 and proceeded directly from Respondent's office to a prearranged meeting place where he was debriefed and searched. The Patient returned one hundred and thirty dollars ($130) to Investigator Yakubec along with the prescriptions provided by the Respondent. On June 10, 1992, the Patient again returned to Respondent's office. Prior to the visit, the standard search and preparatory procedures were performed by Investigator Yakubec and the Patient was given one hundred and fifty dollars ($150) with which to make a purchase. During the June 10 visit, Respondent gave the Patient one prescription for "6 amps" of Deca Durabolin in the name of "Manny Lorenzana;" one prescription for Percocet #60 in the name of "Hypolita Herrera;" one prescription for Percocet #40 in the name of "Marina Quintana;" and one prescription for Percocet #40 where the name was illegible. The Patient paid the Respondent $140 for the prescriptions. The Patient was in Respondent's office for approximately forty-five minutes on June 10. Upon leaving, the Patient proceeded directly to a prearranged meeting place where he was debriefed and searched. The Patient returned ten dollars ($10) to Investigator Yakubec along with the prescriptions provided by the Respondent. As noted above, Respondent never performed a physical examination of the Patient and never took a physical history from him. The evidence established that, prior to prescribing legend drugs to a patient, a physician should perform a physical examination to arrive at a legitimate medical reason to prescribe the drugs. Prescribing controlled substances for no legitimate medical reason is below the standard of care recognized by a reasonably prudent physician. A physician is required to keep accurate written medical records of his treatment of patients. These records should include a record of all drugs prescribed or dispensed to a patient and the reasons why the drugs were dispensed or prescribed. The reasons should be supported by the results of physical examinations and/or the patient's history. Respondent failed to document adequate medical histories and physical examinations in the Patient's medical records to justify his numerous prescriptions for legend drugs, including controlled substances. Accordingly, it is concluded that Respondent failed to keep written medical records justifying the course of treatment of the Patient It is also concluded that Respondent dispensed Tylox and Percocet, Schedule II substances, outside the course of his professional practice and without a legitimate medical reason. Schedule II controlled substances have a high potential for abuse. They have a currently accepted but severely restricted medical use in treatment in the United States. Abuse of a Schedule II substance may lead to severe psychological or physical dependence. 57 The evidence also established that Respondent dispensed Vicodin and Tylenol III, both Schedule III controlled substances, outside the course of his professional medical practice and without a legitimate medical reason. Abuse of a Schedule III substance can lead to moderate or low physical dependence or high psychological dependence. In addition, Respondent dispensed the following Schedule IV substances outside the course of his professional medical practice and without a legitimate medical reason: Darvocet, Xanax, Tranxene, and Halcion. Abuse of a Schedule IV substance may lead to limited physical or psychological dependence. Respondent also inappropriately prescribed and dispensed the legend drugs Toradol and Deca Durabolin to the Patient outside the course of the physician's professional practice. On several occasions between April 13, 1992, and June 10, 1992, Respondent gave prescriptions to the Confidential Informant which included a patient name other than the Confidential Informant. These actions by Respondent are below the acceptable standard of care for a reasonably prudent similar physician. There is no indication that Respondent ever attempted to contact the police about perceived threats or coercion by the Patient. There is also no evidence that Respondent ever alerted any authorities to the Patient's admissions that he intended to resell the drugs. In fact, the evidence indicates that Respondent was a willing, albeit sometimes cautious participant in the Confidential Informant's apparent drug trafficking scheme. His deliberate decision to use the name of other patients on some of the prescriptions indicates that he was well aware of what he was doing and was trying to cover his tracks. Respondent presented testimony from several members of the community who stated that Respondent is a respected and valued member of the community and has provided needed medical services to the community. Notwithstanding the allegations in this case, they have expressed confidence in his medical judgment and want to see him continue his practice in the community. Respondent was apparently involved in the final stages of a hotly contested divorce during the period when the incidents alleged in this case took place. He suggests that the stress from his divorce may have impaired his judgment in handling what he claims were high pressure tactics from the Confidential Informant. While the Confidential Informant instigated the sales and continuously sought more and stronger drugs, the more persuasive evidence did not, however, support Respondent's claim of high pressure tactics from the Confidential Informant. The stress Respondent was feeling from his divorce can be considered in mitigation, but it does not provide an excuse for Respondent's actions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of violating Sections 458.331(1)(t), (q) and (m) as alleged in the Administrative Complaint. As a penalty for the violations, Respondent's license to practice medicine should be suspended for five (5) years followed by a three-year term of probation during which time Respondent's prescribing practices should be closely monitored. In addition, an administrative fine in the amount of ten thousand dollars ($10,000) should be imposed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of November 1994. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November 1994. APPENDIX TO RECOMMENDED ORDER Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 5. Adopted in substance in Finding of Fact 6. Adopted in substance in Finding of Fact 9. Adopted in substance in Finding of Fact 10. Adopted in substance in Findings of Fact 9 and 15. Adopted in substance in Finding of Fact 7. Adopted in pertinent part in Finding of Fact 8. Adopted in substance in Finding of Fact 11. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 15. Adopted in substance in Finding of Fact 12. Adopted in substance in Finding of Fact 13. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 16. Adopted in substance in Finding of Fact 20. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 17. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 19. Adopted in substance in Finding of Fact 20. Adopted in substance in Finding of Fact 18. Adopted in substance in Finding of Fact 21. Adopted in substance in Finding of Fact 23. Rejected as unnecessary. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 22. Adopted in substance in Findings of Fact 21 and 24. Adopted in substance in Finding of Fact 22. Adopted in substance in Finding of Fact 23. Adopted in substance in Finding of Fact 25. Adopted in substance in Finding of Fact 25. Adopted in pertinent part in Finding of Fact 29. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 29. Adopted in substance in Finding of Fact 26. Adopted in substance in Finding of Fact 27. Adopted in substance in Finding of Fact 28. Adopted in substance in Finding of Fact 30. Adopted in substance in Finding of Fact 30. Adopted in pertinent part in Finding of Fact 34. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 34. Adopted in substance in Finding of Fact 31. Adopted in substance in Finding of Fact 33. Adopted in substance in Finding of Fact 35. Adopted in substance in Finding of Fact 35. Rejected as unnecessary. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 37. Adopted in substance in Finding of Fact 36. Adopted in substance in Finding of Fact 32. Adopted in substance in Finding of Fact 38. Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. [NOTE: 59. is blank on original document filed with DOAH.] Adopted in substance in Finding of Fact 39. Adopted in pertinent part in Finding of Fact 40. Adopted in substance in Finding of Fact 39. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 41. Adopted in substance in Finding of Fact 42. Adopted in substance in Finding of Fact 43. Adopted in pertinent part in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 44. Adopted in substance in Finding of Fact 43. Adopted in substance in Finding of Fact 45. Adopted in substance in Finding of Fact 45. Adopted in pertinent part in Finding of Fact 49. Adopted in pertinent part in Findings of Fact 7, 8 and 56. Adopted in pertinent part in Finding of Fact 46, except the prescriptions were for Percocet instead of Tylox. Adopted in substance in Finding of Fact 49. Adopted in substance in Finding of Fact 46. Adopted in substance in Finding of Fact 47. Adopted in substance in Finding of Fact 50. Adopted in substance in Finding of Fact 50. Adopted in pertinent part in Finding of Fact 52. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Finding of Fact 51. Adopted in substance in Finding of Fact 52. Adopted in substance in Finding of Fact 51. Adopted in substance in Findings of Fact 14 and 53. Adopted in substance in Findings of Fact 14 and 53. Rejected as vague and unnecessary. Rejected as unnecessary. Rejected as argumentative. The subject matter is addressed in Finding of Fact 53. Rejected as argumentative. The subject matter is addressed in Finding of Fact 54. Adopted in pertinent part in Findings of Fact 14, 53 and 55. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 56. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 57. Adopted in substance in Finding of Fact 58. Adopted in substance in Finding of Fact 57 and addressed in the Conclusions of Law. Adopted in substance in Finding of Fact 59. Subordinate to Finding of Fact 7. Rejected as vague and unnecessary. Adopted in substance in Finding of Fact 60. Rejected as argumentative and unnecessary. Subordinate to Findings of Fact 7 and 8. Rejected as vague and unnecessary. Rejected as unnecessary. Respondent's proposed findings of fact Rejected as unnecessary. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Adopted in substance in Finding of Fact 4. Rejected as unnecessary. Adopted in substance in Finding of Fact 4. Rejected as vague and unnecessary. Subordinate to Finding of Fact 2. Adopted in substance in Finding of Fact 2. Rejected as unnecessary. The subject matter is addressed in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in substance in Finding of Fact 2. Adopted in pertinent part in Findings of Fact 2. Adopted in pertinent part in Findings of Fact 9. Subordinate to Finding of Fact 5. Rejected as vague and argumentative. Rejected as argumentative and unnecessary. Some of these issues are addressed in Findings of Fact 5 and 9. Adopted in pertinent part in Findings of Fact 5. Rejected as vague and unnecessary. Rejected as vague and unnecessary. Adopted in pertinent part in Findings of Fact 5. Rejected as unnecessary. Addressed in the preliminary statement. Rejected as irrelevant. As set forth in the Preliminary Statement, the Confidential Informant authenticated the transcripts. Rejected as irrelevant. The clear and convincing evidence established that the Confidential Informant paid Respondent for the drugs and prescriptions he obtained. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as irrelevant and argumentative. Rejected as vague and unnecessary. Rejected as unnecessary. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Subordinate to Finding of Fact 8. Adopted in substance in Finding of Fact 15. Rejected as unnecessary. Rejected as unnecessary and irrelevant. Subordinate to Finding of Fact 8. Rejected as contrary to the weight of the evidence. Subordinate to Finding of Fact 62. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Francesca Plendl, Senior Attorney Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Harold D. Lewis, General Counsel Agency for Health Care Administration 325 John Knox Road Tallahassee, Florida 32303 Gary Robert Fine, Esquire 633 Southeast Third Avenue #4R Fort Lauderdale, Florida 33301
The Issue The issues in this case relate to whether Respondent is guilty of charges that Petitioner has brought against him under Sections 458.331(1)(t), (q), and (m), Florida Statutes, based on allegations that in treating a young patient, Respondent failed to practice medicine with the requisite level of care; inappropriately prescribed excessive quantities of medications; and failed to keep medical records that justified his treatment decisions.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Dr. Heller is a Florida-licensed physician who holds license number ME 0036675. A family practitioner in the small, rural community of Okeechobee, Florida, Dr. Heller is board- certified by the American Board of Family Practice. Dr. Heller's Treatment of J.B. On Monday, August 31, 1998, a mother brought her son J.B., then age five, to Dr. Heller's office. This visit was the first of six to Dr. Heller that J.B. and his mother would make over the next six weeks; five of those visits would take place in the 17 days from August 31 to September 16, 1998. This case is about Dr. Heller's treatment of J.B. First Week In taking J.B.'s medical history on August 31, 1998, Dr. Heller learned that from before the age of two the boy had presented behavioral problems and been difficult to control. When he was three years old, J.B. had been treated at a psychiatric hospital. Now J.B. was having difficulty paying attention in school, experiencing mood swings, and becoming easily irritated; he had been violent at home, too. Dr. Heller discussed with J.B.'s mother the medications J.B. was currently taking, as well as the medications that J.B. had tried in the past, to determine whether those medications had been effective in controlling J.B.'s behavior. Dr. Heller learned that J.B. was currently taking ten milligrams of Adderall in the morning.1 He noted that although the Adderall was not particularly effective, J.B.'s behavior worsened when the Adderall wore off. Additionally, J.B.'s mother had stopped giving her son his afternoon dose of Adderall because the medicine apparently suppressed his appetite, and he would not eat when taking it. J.B.'s mother also informed Dr. Heller that J.B. had taken Risperdal in the past, and this drug had helped a great deal.2 She believed he had taken 0.5 milligrams of Risperdal twice a day. J.B. had never taken Prozac.3 During the visit, Dr. Heller talked with J.B. and observed his behavior. Pertinent parts of this discussion and evaluation are included in the doctor's notes. Dr. Heller recorded that J.B. was thin and extremely hyperactive. The child would not sit still for any length of time. J.B. also had difficulty speaking clearly, and his mother confirmed that he had speech and language delays. Dr. Heller wrote that J.B.'s reaction to any criticism was to want to hit someone. After interviewing J.B.'s mother and examining J.B., Dr. Heller diagnosed J.B. preliminarily with several behavioral and mental health problems, namely, attention-deficit hyperactivity disorder ("ADHD"), problems with violence, depression, rejection sensitivity, and possible dysthymia. He believed that J.B. might be bipolar and had concerns about the patient's low weight, which appeared to have been caused by Adderall. He thought that the boy might have some combination of hearing, speech, and language problems as well. To control J.B.'s violent behavior, Dr. Heller started J.B. on 0.5 milligrams of Risperdal, twice a day, the same dose his mother recalled he had taken previously. Although Risperdal is often used as an anti-psychotic agent, it is also helpful in controlling violent behavior. Dr. Heller continued J.B. on the same amount of Adderall that the boy was already taking, to improve his attention in class; prescribed Prozac for J.B., ten milligrams daily for five days to be followed by ten milligrams daily for five more days, to treat the child's depression and mood swings; and instructed J.B.'s mother to bring the boy back after eight days for another examination. On Wednesday, September 2, 1998, J.B. developed a mild dystonic reaction for which he was treated with Benadryl at a local hospital's emergency room and sent home. An unwanted but tolerable side effect of certain drugs, a dystonic reaction is an involuntary, potentially dangerous, sometimes painful contraction of the muscles, usually affecting the upper neck but occasionally striking other parts of the body. Risperdal most likely had caused J.B.'s reaction. Based on the symptoms commonly associated with dystonic reactions——not to mention that J.B. was taken to the emergency room——the event must have frightened the boy and his family. There is no evidence, however, that J.B. was either in pain or in danger from this distressing side effect. When Dr. Heller was informed that day of his patient's condition and emergency treatment therefor, he scheduled an office visit with the child for the next day. On September 3, 1998, J.B.'s mother brought J.B. to Dr. Heller's office as recommended to discuss the dystonic reaction. Despite Risperdal's side effect, the drug was working well, J.B.'s mother reported, and the patient "look[ed] much better" to Dr. Heller. He also noted that the "[c]hild like[d] taking Prozac, [which was] helping him a lot." Dr. Heller decided to continue the boy on these medicines plus the Adderall at the same dosages, and to add Cogentin, 0.5 milligrams twice a day, to control the dystonic reactions.4 Later that afternoon, J.B. returned to Dr. Heller's office complaining of weakness and nosebleeds. In response, Dr. Heller reduced J.B.'s morning dose of Risperdal to 0.25 milligrams and prescribed neosynephrine for the nose bleeds. Second Week Informed by telephone a few days later, on Sunday, September 6, 1998, that J.B.'s nosebleeds had re-occurred, Dr. Heller again advised using neosynephrine and applying pressure——neither of which had yet been tried. Dr. Heller saw J.B. in his office the following Wednesday, September 9, 1998. He observed that the child seemed better behaved and had shown some improvement on Risperdal. During this visit, J.B.'s mother suggested that her son try Ritalin instead of Adderall, telling Dr. Heller that J.B. had done better with Ritalin in the past. Acting on this information, Dr. Heller prescribed slow-release Ritalin, 20 milligrams twice a day, in the place of Adderall. Because J.B. had not suffered another dystonic reaction——evidently the Cogentin was doing its job——Dr. Heller continued J.B. on Cogentin at 0.5 milligrams, twice a day, and instructed the boy to resume taking the originally-prescribed amount of Risperdal: 0.5 milligrams twice a day. He also directed that J.B.'s Prozac be increased to 20 milligrams daily. Dr. Heller asked J.B.'s mother to bring him back to the office in two weeks. Third Week Five days later, on Monday, September 14, 1998, Dr. Heller saw J.B. again. His mother reported that J.B. was doing much better in school——apparently the Ritalin was helping——but he remained angry with and "hateful” to her at home. J.B. himself told Dr. Heller that his mother "irritate[d]” him. Armed with this data, Dr. Heller increased J.B.'s evening dose of Risperdal from 0.5 milligrams to 1.5 milligrams, continuing him on 0.5 milligrams of the drug in the morning. Dr. Heller also increased J.B.'s morning dose of Ritalin from 20 milligrams to 40 milligrams, while keeping the second dose constant at 20 milligrams. He continued J.B. on the same dosages of Prozac and Cogentin. Finally, Dr. Heller recommended family counseling and requested to see the boy again in two days. When Dr. Heller next examined J.B. on Wednesday, September 16, 1998, the patient's mother reported that J.B. was doing better in school on the higher morning dose of Ritalin but was still having problems at home. Dr. Heller observed that the boy was poorly behaved but under control. He decided to stay the course and continue J.B. on the present combination of medicines, at existing dosages, with instructions to return after one month. Fourth and Fifth Weeks J.B. was not brought to Dr. Heller's office during the weeks of September 20 and September 27, 1998. Sixth Week Dr. Heller saw J.B. again on Monday, October 5, 1998. At this time, J.B. was reportedly doing well in school but not at home, where, according to his mother, J.B. expressed "[l]ots of anger towards [his] father"——to the point that she feared the father's visit at Christmas. J.B. had stopped taking his evening dose of Risperdal. The boy was still having some nosebleeds, and he had a rapid heartbeat. His psychological and behavioral problems continued, although his violent behavior was under control. J.B.'s mother gave Dr. Heller a note from Mrs. Glenda McBride, J.B.'s teacher, in which Mrs. McBride had conveyed her concerns about J.B.'s failure to eat at school and his depressive behavior. To stimulate J.B.'s appetite, Dr. Heller prescribed Sinequan——which is an antidepressant that, as a side effect, can increase the user's appetite——at a dose of 25 milligrams, twice a day. He asked to see J.B. in three weeks. As it happened, however, the October 5, 1998, visit was J.B.'s last to Dr. Heller's office. Around that time, the Florida Department of Children and Families ("DCF") became involved, apparently at the instance of J.B.'s older brother, a prison inmate who had accused their mother of overmedicating the boy. The record is empty of substantial competent evidence concerning DCF's investigation, findings, or interventions, if any. What is clear, however, is that J.B.'s physician-patient relationship with Dr. Heller abruptly ended. At hearing, J.B.'s kindergarten teacher recounted an out-of-court statement by the boy's mother informing her that J.B. had been taken off all medications except Ritalin effective October 6, 1998. After that date, according to Mrs. McBride, the child improved visibly in the classroom, where she had the opportunity to observe him until the end of January 1999, when J.B. moved away. The trier accepts Mrs. McBride's testimony as far as it goes——which is not as far as the Department would take it. Specifically, neither Mrs. McBride's testimony nor any other evidence clearly and convincingly establishes that Dr. Heller's treatment of J.B. either failed, was deleterious, or would not have brought about an improvement in J.B.'s condition similar to that witnessed by Mrs. McBride if J.B. had remained in Dr. Heller's care beyond October 5, 1998. For one thing, Mrs. McBride's second-hand testimony regarding the purported change in J.B.'s mix of medicines as of October 6, 1998, is not, by itself, clear and convincing evidence of that fact; and, there was no persuasive direct evidence——e.g. the testimony of J.B.'s next treating physician——to corroborate her account or to explain what subsequent care and treatment, if any, were rendered. For another, there are any number of reasons unrelated to medical care that could have caused or contributed to J.B.'s improvement which are not excluded by or inconsistent with the evidence in the record.5 In sum, the trier expressly does not find, and affirmatively rejects any inference, that DCF "rescued" J.B. from Dr. Heller. The Charges In Count One of its Administrative Complaint, the Department accused Dr. Heller of failing to practice medicine with the requisite degree of care and skill, in violation of Section 458.331(1)(t), Florida Statutes, in four specific respects: (a) inappropriately prescribing excessive doses of medicine to J.B.; (b) failing to take a baseline electrocardiogram ("EKG”) for J.B.; (c) failing to consult a family therapist or counselor for J.B.; and (d) failing to note in J.B.'s medical records information regarding the mental status examination of J.B. or any observations of his behavior in the office. At hearing, however, the Department withdrew the allegation that Dr. Heller had negligently failed to order an EKG. Further, the Department's own expert testified that Dr. Heller's alleged failure to consult with a family therapist was not a breach of the standard of care; needless to say, Dr. Heller's experts agreed. Thus, the alleged negligent acts described in (a) and (d) above are the ones that remain in dispute.6 In Count Two, the Department charged Dr. Heller with prescribing legend drugs other than in the course of his professional practice, in violation of Section 458.331(1)(q), Florida Statutes, based on the following allegations: On or about August 31 and September 9, 1998, [Dr. Heller] ordered an automatic 10 mg. increase in Patient J.B.'s Prosac [sic] prescription without allowing an appropriate amount of time for the medicine to take effect On or about September 14, 1998, [Dr. Heller] increased Patient J.B.'s morning dose of Ritalin from 20 mg. to 40 mg. in one jump; From on or about August 31, 1998 to on or about September 14, 1998, [Dr. Heller] increased Patient J.B.'s dose of Risperdal to a total of 2 mg. a day despite the fact that Patient J.B. suffered an earlier dystonic reaction; On or about October 5, 1998, [Dr. Heller] prescribed Sinnequan [sic] to Patient J.B. in an effort to increase his appetite despite the fact that Patient J.B. was already suffering from the side effects of his other medications; From on or about August 31, 1998 to on or about October 8, 1998, [Dr. Heller] prescribed excessive doses of multiple medications without regard for the interactions and side effects of the high doses on Patient J.B. At hearing, the Department withdrew the allegation, set forth in (a) above, regarding the purportedly excessive increase in J.B.'s Prozac. The Department alleged in Count Three of its Administrative Complaint that Dr. Heller had violated Section 458.331(1)(m), Florida Statutes, by failing to keep medical records that justified the following alleged misconduct: (a) his prescribing of excessive doses and multiple medications to J.B.; (b) his failure to take a baseline EKG for J.B.; (c) his failure to consult a family therapist; and (d) his failure to note in J.B.'s medical records information regarding the mental status examination of J.B. or any observations of the patient's behavior in the office. For the reasons set forth in paragraph 23 above, the records dispute has boiled down to the alleged deficiencies described in the foregoing clauses (a) and (d). The Standard of Care At hearing, the Department agreed that the standard of care against which Dr. Heller's conduct must be measured is that level of care, skill, and treatment which is recognized by a reasonably prudent family practitioner as being acceptable under similar conditions and circumstances. The Department disavowed any intent to hold Dr. Heller to the standard of care governing psychiatrists. In its proposed recommended order, however, the Department has asserted that Dr. Heller provided psychiatric treatment to J.B., and that, consequently, a board-certified child psychiatrist should be considered a "similar health care provider.” This contention is somewhat, if not entirely, inconsistent with the stipulation at hearing regarding the applicable standard of care; at the very least, it muddies the water. The greater weight of the evidence shows that mental illnesses and behavioral problems such as J.B.'s are conditions that reasonably fall within the discipline of family practice, and that specialists such as Dr. Heller may appropriately diagnose and treat the mentally ill without thereby engaging in the specialized practice of psychiatry.7 As a matter of fact, therefore, the relevant standard of care in this case is that applicable to small-town family practitioners. The evidence regarding the appropriate standard of care is in conflict. The Department's expert, Dr. Morteza Nadjafi, is a board-certified child psychiatrist who practices in the large city of Orlando, Florida. Based primarily on the medical records that Dr. Heller prepared and without having discussed the case with Dr. Heller himself, Dr. Nadjafi found much to criticize in Dr. Heller's treatment of J.B. Broadly speaking, it is Dr. Nadjafi's opinion that, in caring for——and in documenting his treatment of——J.B., Dr. Heller repeatedly fell short of the minimal standard of care for any physician, irrespective of specialty. On the other hand, Dr. Heller's experts opined that Respondent treated J.B. with the requisite level of care expected of a reasonably prudent family practitioner. They were: Dr. Joseph Talley, author of a textbook entitled Family Practitioner's Guide to the Treatment of Depressive Illnesses that was favorably reviewed in the New England Journal of Medicine, a board-certified family practitioner who regularly treats mentally ill patients in the small North Carolina town where he works; and Dr. David Rooney, a board-certified psychiatrist who presently specializes in treating adults and geriatric patients, whose background includes a one-year, post- graduate internship in family practice that was followed by about a year's employment as a family practitioner in a rural community in Iowa. As the trier of fact and arbiter of credibility, the Administrative Law Judge must resolve the evidential conflict regarding the acceptable degree of care and Dr. Heller's failure or success in practicing with it. Accordingly, the trier has carefully considered the substance and foundations of the several experts' opinions as well as their respective demeanors, testimonial inconsistencies, and possible biases, ultimately determining the appropriate weight to be given each witness's testimony. On balance, all factors considered, the trier believes that Dr. Heller's witnesses painted a more accurate picture of the relevant standard of care.8 Of the three experts, Dr. Talley's testimony was the most persuasive because his specialty, community, and practice are the most similar to Dr. Heller's. Ultimate Factual Determinations In treating J.B., Dr. Heller did not fail to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. To the contrary, Dr. Heller's care and treatment of a difficult patient more likely than not exceeded the relevant standard of care and probably reflected above-average skill for a family practitioner in a small town where there is (according to the Department's expert) no local psychiatrist. The Department failed to adduce clear and convincing evidence that Dr. Heller prescribed drugs to J.B. inappropriately or in excessive or inappropriate quantities, either negligently in violation of the applicable standard of care or (it follows from the foregoing) in amounts that no reasonable physician could justify as medically appropriate. If the Department had proved the latter clearly and convincingly, then the trier would have been allowed to presume that the doctor had prescribed drugs outside the course of his medical practice in violation of Section 458.331(1)(q), Florida Statutes. As it is, however, the greater weight of the evidence shows that Dr. Heller prescribed drugs for J.B. in appropriate quantities, for medically justifiable purposes. Further, the evidence is overwhelming——indeed, is clear and convincing——that Dr. Heller's treatment of J.B. took place in the course of his professional practice. Dr. Heller's medical records pertaining to J.B. were legible; they properly identified the responsible physician (Dr. Heller) by name and professional title; and, as a preponderance of evidence demonstrates, they justified the course of treatment that Dr. Heller rendered to J.B. Dr. Heller not only exercised reasonable care under the circumstances in preparing these records, but also he obeyed the statutory directives regarding record-keeping set forth in Section 458.331(1)(m), Florida Statutes. The Department's evidence to the contrary is not clear and convincing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department having failed to prove the charges brought against Dr. Heller by clear and convincing evidence, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 12th day of June, 2001.
