Findings Of Fact Respondent is and has been at all times material hereto a licensed physician in the state of Florida, having been issued license number ME 0019670. Respondent is a board-certified obstetrician and gynecologist. On March 20, 1989, at approximately 1:04 a.m., Patient #1 (Derrick Prince) was presented to the emergency room at Weems Memorial Hospital in Apalachicola, Florida. Prince was a twenty-year-old male suffering from a stab wound to his left thigh that was inflicted by a butcher knife. Prince was actively bleeding and had lost a large amount of blood, as evidenced by the condition of his clothing, the amount of blood on the walls and floor of the hospital, and blood on his companions. Prince was placed on a table in the trauma room. When his blood-soaked pants were removed, blood spurted from the wound on his left thigh to a height of one to two and one-half inches. The emergency room R.N., Ms. Page, controlled the bleeding by direct pressure, first with her hand and then with a towel. Prince was semiconscious, muttering, "I can't breathe," and was randomly combative. Emergency room personnel had to forcibly restrain him on the table. Respondent, working as the emergency room physician, was summoned to the trauma room by the nurse. Hospital personnel attempted to establish Prince's blood pressure and pulse. Ms. Simpson, the L.P.N., could detect no blood pressure or pulse on Prince. Ms. Page, the R.N., could detect no blood pressure or pulse although she checked radial, cubital, and popliteal areas. Mrs. Estes, a paramedic who came in to help, could detect no pulse. Respondent was advised repeatedly that no blood pressure or pulse could be detected. Respondent instructed Ms. Simon to call respiratory and laboratory personnel and the Sheriff's Department, which she did. The laboratory director, Tracy Pierce, was called at his home in St. Joe Beach. When pressure was removed from the wound area, there was little blood on the towel and the wound was not bleeding. Respondent commented to the nurse that she did a good job stopping the bleeding. The nurse and paramedics attempted to begin intravenous infusion but were unable to establish any IV lines because all veins were concave (collapsed). The nurse and paramedic interpreted this peripheral vascular collapse as meaning there was no blood volume to keep the veins open. Respondent was advised that no IV could be started because the veins were concave. Respondent had ordered a suture tray. He explored the wound with his finger and commented that the wound went all the way to the bone. Respondent commented that the boy would be all right, that he wasn't hurt that bad. Respondent proceeded to treat Prince by suturing the wound in three layers. He stated he tied off some minor arterial branches during this suturing. After suturing the wound, Respondent again commented that the boy would be all right because he wasn't hurt that bad. After suturing the wound and noting no jugular access, Respondent began a cutdown in order to establish an intravenous line. Ms. Estes, the paramedic, suggested using MAST trousers to help venous pressure, and Respondent agreed. MAST trousers also can act as a tourniquet to control bleeding. The pants were applied and Prince's legs were elevated in an effort to establish a positive venous pressure. At 1:30 a.m., while Respondent was setting up for a cutdown, Prince had a seizure and respiratory arrest. He was intubated by Respondent. He vomited, was suctioned, and breathed by AMBU bag. Respondent then inquired, for the first time, about the availability of blood. He was told there was none in the hospital. Sufficient blood was available and could have been obtained from Gulf Pines South Hospital in St. Joe within 30 minutes had a request been made for Mr. Pierce to bring it with him. Mr. Pierce arrived during the cutdown procedure. Mr. Pierce was the laboratory director for both hospitals. An intravenous fluid line was finally established via the cutdown and some fluid begun. The Life-Flight helicopter was ordered at approximately 1:40 a.m. At approximately 1:55 a.m. Prince suffered a cardiac arrest. When Life-Flight arrived at 2:40 a.m., it was impossible to transport Prince in his moribund condition. Resuscitative efforts were employed until approximately 3:00 a.m., when Respondent pronounced Prince dead. An autopsy conducted by Dr. Thomas Wood, the Medical Examiner, on March 21, 1989, revealed that the stab wound to the left thigh was located six inches above the knee, was seven inches deep, passed by the bone, and completely severed both the femoral artery and vein. The autopsy also revealed 3 layers of sutures: the first closing the skin and two other layers within the subcutaneous fatty tissue, not more than three-fourths of an inch below the surface. There was no evidence of any arterial or venous repair. The cause of death of Derrick Prince was exsanguination from the severed femoral vessels. After an investigation was initiated, Respondent was interviewed by Investigator Reese. Respondent stated that peripheral pulses were obtained and the patient's pulse rate was 120 from admission until the time of his respiratory arrest. Respondent stated to Investigator Reese that two IVs were started but that the patient pulled them out. Statements of Ms. Page and Ms. Estes written immediately after the incident indicate that no IVs were started, not because the patient pulled them out, but because all veins were collapsed. Respondent stated to Investigator Reese that he had to leave the patient after suturing the wound to examine a family member across the hall. At no time did Respondent leave the emergency room. Respondent stated to Investigator Reese that there was no indication that the femoral vessels had been cut, as he had checked the wound and that is not the direction the femoral artery runs. Respondent believed the wound was not life-threatening, that after the bleeding was stopped and the wound sutured the patient was in pretty good shape and was going to be fine. Respondent was not aware the femoral vessels had been severed until informed at the circuit court hearing of June 6, 1989. Respondent reported in his medical record the patient "became shocky" at approximately 1:30 a.m., after the suturing. The massive blood loss, disorientation and combativeness, peripheral vascular collapse, and lack of vital signs all indicate Prince was in shock when admitted and Respondent did not recognize this fact. Respondent instead believed Prince to be a combative drunk and his course of treatment indicates this perception. The emergency room physician should prioritize his actions in such a way that the most critical factor is treated promptly and other, less dangerous factors are given lesser priority. The correct treatment of this patient would have been for Respondent to direct all efforts of the E.R. team toward immediately reestablishing Prince's blood volume, then blood replacement. The wound itself could have been easily controlled by pressure, tourniqueted by the MAST pants, or even left for later care. Rather than misdirecting his attention to suturing the wound, Respondent should have performed the cutdown or placed a CVP catheter to start IV fluids as soon as it was evident that the nurses could not start the IVs and Respondent should have ensured that blood was being obtained as soon as possible. Respondent's suturing of the wound was ineffective in any case, as only superficial layers were stitched, and the wound remained unexplored. Respondent did not practice with the acceptable level of care, skill and treatment of a reasonably prudent similar physician under similar conditions and circumstances in that Respondent did not correctly assess Prince's physical condition and therefore misdirected his attention to suturing the wound instead of establishing intravenous access for immediate fluid replacement. Respondent's entire written medical record consists of his "Emergency Room Note." Respondent has documented no detailed history or physical examination: there is no documentation of the amount of blood loss, of the spurting blood, of the initial assessment of the patient's shock, or of consideration that the massive bleeding could have been from the great vessels and life threatening; there is no record that Respondent ever felt for pulses or obtained a pulse, no record of any neurological assessment or vascular status of the left leg distal to the wound, no conjunctival color noted, and no justification for giving his attention to the wound rather than immediately attempting to replace the lost blood volume; there is no note of a request for blood, how it could be or why it was not obtained. In short, prior to the cardiac arrest, there are no medical records written by Respondent which justify the course of treatment he followed with Prince.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order and therein REVOKE the medical license of Elliott F. Monroe. DONE and ENTERED this 19th day of June, 1991, in Tallahassee, Florida. DIANE K. KIESLING 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 19th day of June, 1991. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-0377 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-13(1-9) and 14-53( 11-50). Proposed finding of fact 1 is unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Elliott Monroe Respondent's proposed findings of fact are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Mary B. Radkins, Senior Attorney Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Alfred O. Shuler Attorney at Law Post Office Box 850 Apalachicola, FL 32320 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether the standard of care for the practice of optometry required that patient, J.P., be dilated by Respondent at the January 1998 appointment. Whether the standard of care for the practice of optometry required Respondent to note in patient J.P.'s patient record the reason for not dilating J.P. at the January 1998 appointment.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of optometry in the State of Florida. At all times material to this case, Respondent has been licensed as a certified optometrist in the State of Florida, holding license number 1734. Respondent practices optometry in Chattahoochee, Florida. Respondent received his Doctor of Optometry degree from the University of Alabama in Birmingham in 1982. He is licensed to practice optometry in Georgia and Florida, and in the latter since June of 1982. Respondent has been a certified optometrist in Florida since 1984-1985. Respondent specializes in diseases of the retina which include, but are not limited to, diabetes and hypertension. Respondent is engaged in the private practice of optometry, but also practices hospital-based optometry as a physician- consultant with Florida State Hospital. He has lectured and published extensively in the area of optometry, including issues on public health and the importance of high blood pressure and diabetes. Respondent sits on the Council on Optometric Education which is an 11-member board that accredits all of the optometry schools and residency programs in the United States and Canada. As a certified optometrist, Respondent is competent to perform a dilated fundus examination. Respondent's examination and treatment of J.P. Respondent provided optometry services to patient, J.P., a registered nurse, for the first time on February 21, 1989. This was J.P.'s initial patient visit. Respondent performed a dilated fundus examination on J.P. which indicated his peripheral retina was completely normal. J.P. did not report any history of high blood pressure/hypertension at that time. On August 20, 1990, Respondent performed a full and general examination of J.P.'s eyes and all of the components of that examination were recorded in J.P.'s patient record. J.P. did not report any history of hypertension at that time. No dilation was performed nor was it required. In late 1994, J.P. was working as a nurse at Florida State Hospital when a patient slapped him on the face. J.P. suffered a corneal abrasion. On December 13, 1994, Respondent examined J.P. Respondent diagnosed J.P.'s problem as "mild iritis," and medical treatment was afforded. Respondent performed a thorough examination of J.P.'s retina, including the peripheral examination with dilation. All aspects of the retina were within normal limits. There was no sign of any hypertensive changes at that time, nor any sign of any trauma related to the incident. J.P.'s injury resolved satisfactorily, and, J.P. had no further trouble whatsoever. J.P. was told to return in one week for a follow-up visit, but he did not. J.P. has not had any trouble with his eyes after the December incident and after being treated by Respondent in December of 1994. J.P. has had borderline high blood pressure/hypertension since he was a teenager. He started taking daily medication in 1990. J.P. advised Respondent of his hypertension and the nature of his medication on a form when he visited in 1994. J.P.'s hypertension was well-controlled with medication at the time of J.P.'s December 1994 visit through his next examination in January 1998. He suffers no symptoms from his high blood pressure/hypertension. J.P. returned to Respondent in January 1998 to obtain a prescription for reading glasses. J.P.'s January 1998 visit with Respondent was not his initial presentation or visit. J.P was questioned about his hypertension and J.P. told Respondent it was in good control. J.P. had been seeing Dr. Richardson, a local physician. Dr. Richardson refers patients with ocular complications of systemic diseases to Respondent for examination. Dr. Richardson, who was familiar with J.P.'s health, did not express any concern to Respondent regarding J.P.'s hypertension. Because Respondent had not examined J.P. for over two (2) years, he performed a comprehensive examination and all of the minimal procedures for vision analysis including consideration of J.P.'s patient history and visual acuity's, which were done and recorded. He performed an external examination, with a slit lamp, which was done and recorded. Respondent also performed a pupillary examination, which was recorded as normal. Visual field and confrontation testing were done and recorded. He also graded the blood vessel status for any abnormalities. He recorded the cup-to-disk ratio having performed an internal examination by direct ophthalmoscopy. There were no recorded arteriosclerotic changes, and no hypertensive retinopathy. He graded the ratio between the arteries and the veins, which was normal at two-thirds. An extra ocular muscle balance assessment was done. Respondent, using a direct ophthalmoscope, was able to view the majority of the retina and assess the blood vessel status for any signs of retinopathy, at which point there was no sign of retinopathy, which was consistent with the patient's history of having controlled hypertension. Tonometry was performed and the results for a glaucoma check recorded. Refraction was performed and results with acuity recorded. J.P. had no physical limitation or medical condition, such as diabetes, which may have required this examination. J.P.'s blood pressure or hypertension was reported as being in good control, and the record does not reveal otherwise. While performing the vision analysis, Respondent had a good view of the retina because J.P. did not have cataracts or other media opacities in the lens or cornea or vitreous of the eye that could cause problems seeing the retina, which might require dilation. Respondent also weighed the risks of dilation. Respondent's explanations for not performing the dilated fundus examination and for not noting same in J.P.'s patient chart are reasonable. A treatment plan was devised for J.P. and J.P. was apprised of the findings of the examination. Respondent advised J.P. to return in one year. J.P. did not return. Respondent issued a prescription for glasses for J.P. J.P. never encountered any unresolved medical problems nor encountered any medical problems with his eyes that resulted from the lack of a dilated fundus examination on his eyes in January 1998. This examination was not medically indicated. Standard of Care for performing a dilated fundus examination and notation in the patient's record A dilated fundus examination is performed to enable the optometrist to examine the anterior part of the eye, -- in particular, the peripheral part of the retina -- and to assess the condition of the lens, looking for cataracts, for example. Eyedrops are placed in the eye to enlarge or dilate the pupil. This helps the optometrist to view a larger area of the retina in greater detail than can be done without dilation of the pupil. Florida Administrative Code Rule 64B13-3.007 provides for "minimum procedures for vision analysis" and specifically subsection (2)(f) provides: "An examination for vision analysis shall include the following minimum procedures, which shall be recorded on the patient's case record . . .[i]nternal examination (direct or indirect ophthalmoscopy recording cup disc ratio, blood vessel status and any abnormalities) " Florida Administrative Code Rule 64B13-3.007(4), not referenced in the Amended Administrative Complaint, provides: "Except as otherwise provided in this rule, the minimum procedures set forth in paragraph (2) above shall be performed prior to providing optometric care during a patient's initial presentation, and thereafter at such appropriate intervals as shall be determined by the optometrist's sound professional judgment. Provided, however, that each optometric patient shall receive a complete vision analysis prior to the provision of further optometric care if the last complete vision analysis was performed more than two years before." Florida Administrative Code Rule 64B13-3.010 provides the "standard of practice for licensed optometrists." Subsection(10)(a) provides: "To be in compliance with Rule 64B13-3.007(2)(f), certified optometrists shall perform a dilated fundus examination during the patient's initial presentation and thereafter whenever medically indicated. If in the certified optometrist's sound professional judgement, dilation should not or can not be performed because of the patient's age or physical limitations or conditions, the reason(s) shall be noted in the patient's medical record." There is no cited agency precedent interpreting subsection (10)(a). The Board's expert, Kenneth Lawson, O.D., is a certified optometrist licensed to practice optometry in the State of Florida. He has been a consultant for the Board of Optometry for approximately three (3) years and has reviewed twenty-five (25) to thirty-five (35) cases involving complaints filed against optometrists. According to Dr. Lawson, Florida Administrative Code Rule 64B13-3.010(10)(a) was enacted in 1995 because there had been an ambiguity with respect to the dilation standard of care. It is Dr. Lawson's opinion that this rule requires a certified optometrist to perform a dilated fundus examination on every initial patient and where medically indicated. He interprets the word "initial" to mean the first time the patient is seen by the optometrist and also when the patient has not been examined by an optometrist for a period of three (3) years. Dr. Lawson opines that every patient becomes an initial patient every three (3) years if not examined and dilated within the three-year period. He also believes dilation is required during every visit if there has been trauma to the eye or if the patient has had a history of ocular trauma or other factors such as hypertension, regardless of whether the hypertension is under good control during each visit. See Conclusion of Law 46. As a rule, however, Dr. Lawson dilates every patient over sixty-five (65) years old every year and all patients under sixty-five (65) every two years. These time periods can vary depending on the health of the patient. For example, Dr. Lawson stated that there is a low risk or probability that hypertension would lead to blindness or impairment of visual acuity if the hypertension is well-managed by medication and the patient is younger than sixty (60). Dr. Lawson conceded that the Board's rule does not require dilation every year, only every three years. Dr. Lawson also opines that there should be some documentation on the patient's chart indicating why dilation was not performed. Dr. Lawson relied on the Physician's Current Procedural Terminology (CPT) textbook, volume IV, to support his position that an "initial" patient is one who has not received any services from the physician within a three-year period. Dr. Lawson believes that the words "initial" and "medically indicated," appearing in subsection (10)(a), are referenced by the three-year period. He concludes that it is the standard of care for dilation to be performed every three (3) years. However, the CPT instructs physicians on how to bill for procedures and enables an optometrist to receive a higher rate of reimbursement rate for the visit; it is not a standard of care. The textbook or physician code book was not offered in evidence and is not a credible source. Dr. Lawson's explanation of the relevant standard of care is not persuasive. Walter Hathaway, O.D. and Adam Gordon, O.D., M.P.H. testified on behalf of Respondent as expert witnesses. Dr. Hathaway is a certified optometrist in the State of Florida and has practiced for thirty-four (34) years. He has served as an expert reviewer for the State of Florida, Board of Optometry, and has served as an expert witness twelve (12) times. Dr. Hathaway opined that a dilation is required during the patient's initial evaluation or presentation and when medically indicated; for example, when the patient has a history of diabetes, flashes, or floaters, which indicates retinal detachment. Dr. Hathaway opined that a dilated fundus examination is not required in all cases where a patient reports a history of hypertension if the hypertension is under control. Dr. Hathaway was asked to consider a hypothetical set of facts based upon the facts of record regarding J.P.'s health and Respondent's examinations of J.P. Based on his professional judgment, Dr. Hathaway concluded that Respondent was not required to perform a dilated fundus examination on J.P. during the course of his examination on January 6, 1998. Dr. Gordon is a licensed optometrist in the State of Alabama, has practiced for eighteen (18) years, and has been a Clinical Associate Professor at the University of Alabama- Birmingham School of Optometry for sixteen (16) years. He also examines patients in a private group practice. Formerly, he served as a faculty member at Johns Hopkins University Hospital in Baltimore, Maryland. Dr. Gordon was also asked to consider a hypothetical set of facts based upon the facts of record regarding J.P.'s health and Respondent's examinations of J.P. and stated, that in his professional judgment, a dilated fundus examination was not medically indicated for this patient on January 6, 1998. Likewise, Dr. Gordon stated that this examination is not required on all patients reporting a history of hypertension. Conversely, he would consider dilation if the patient reported his or her high blood pressure was out of control or if he or she stopped seeing a physician or had stopped taking medication for the condition, factors absent here. It was not medically indicated for Respondent to automatically give J.P. a dilated fundus examination in January 1998, because J.P.'s hypertension was under control at that time. J.P. testified that his hypertension had been controlled with medication through and including his January 1998 visit with Respondent. Further, J.P. had no problems with his eyes after his 1994 visit with Respondent. A dilation examination may have been required if J.P.'s hypertension had been uncontrolled or if J.P. exhibited some other medical problem such as diabetes, or if J.P. had stopped taking prescribed medication. These factors are not present here. The weight of the evidence supports only one finding: there was no medical indication which would have required Respondent to perform a dilated fundus examination on J.P. during his January 1998 examination. The weight of the evidence supports Respondent's exercise of professional judgement in not performing a dilated fundus examination on J.P. during the January 1998 visit. The weight of the evidence proves that the standard of care set forth in Florida Administrative Code Rule 64B13- 3.010(10)(a) for performing a dilated fundus examination does not require this examination automatically every three (3) years. Rather, dilation should be performed during the "initial presentation," and when "medically indicated" based on the certified optometrist's exercise of sound professional judgment in light of the patient's medical history and current health. Further, the weight of the evidence proves that the standard of care set forth in Subsection (10)(a) does not require a certified optometrist to note in a patient record the reason why a dilated fundus examination was not performed unless dilation was not performed based solely on the patient's age or physical limitations or conditions, all absent here. The latter criteria are the only ones stated in the rule, and the weight of the evidence does not prove that additional criteria should be considered.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Amended Administrative Complaint filed against Respondent be dismissed with prejudice. DONE AND ENTERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS 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 6th day of December, 2000.
The Issue Did the Respondent commit the violations alleged in the Amended Administrative Complaint dated March 2, 2001, and if so, what penalty should be imposed?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Board is the agency charged with regulating the practice of medicine in the State of Florida. Respondent, Carl W. Liebert, Jr., M. D. (Dr. Liebert) is and, at all times material hereto, has been licensed to practice medicine in the State of Florida, having been issued license number ME0047601. Respondent is Board-certified in surgery. On January 29, 1997, Respondent performed an abdominal aortic aneurysm repair and an aortobifemoral graft on E. T., a male patient, approximately 70 years of age. The site of the graft for the left femoral artery intruded partially upon the site of a previous graft of the femoral artery performed in 1986. This graft failed immediately after the procedure. Respondent sutured the graft at the left femoral artery partially into old scar tissue from the 1986-failed graft. After the surgery, on the Sunday before his release from the Naples Community Hospital (Hospital) on Thursday, February 6, 1997, E. T. suddenly and abruptly fell in his hospital room. Respondent was concerned about the possible damage this fall may have caused to the surgical repair. Although E. T. experienced pain in his left groin area, the location of one of the aortobifemoral grafts, while in the Hospital, there is no evidence that any harm resulted from the fall or that the pain was a result of the fall. After the surgery, during E. T.'s stay in the Naples Community Hospital (Hospital), there was lymphatic drainage, a pinkish colored fluid, from the incision in his left groin. While the lymphatic fluid may have been blood stained resulting in the pinkish color, the lymphatic drainage was not as described in the nurse's notes as being "a bloody discharge." On Thursday, February 6, 1997, E.T. was discharged from the Hospital. After E. T.'s discharge from the Hospital, his wife cared for him in their home in Naples, Florida. As expected by Dr. Liebert, the incision in E. T.'s left groin area continued to have lymphatic drainage after E. T.'s discharge from the Hospital. The incision in E. T.'s left groin area continued to drain a pinkish colored fluid. The lymphatic drainage from the incision in E. T.’s left groin continued over the weekend and on Monday, February 10, 1997, E. T.'s wife contacted Respondent's office to advise Respondent of the drainage and of the pain E. T. was experiencing. Although E. T.'s wife did not speak directly to Respondent, she assumed that the person to whom she spoke with over the telephone conveyed her message to Respondent. E. T.'s wife was given a prescription for Percocet for pain and told that Respondent would see E. T. in his office on Thursday, February 13, 1997. On Wednesday, February 12, 1997, while showering and cleansing the incision on his left groin, E. T. inadvertently disturbed the incision on his left groin, which caused the incision to drain profusely. After leaving the shower, E. T.'s wife assisted E. T. in drying-off his body and controlling the drainage from the incision. The wife stemmed the flow of the drainage with a towel and called the Collier County Emergency Medical Services (EMS) and Respondent's office. The wife explained to the person answering Respondent's telephone, the circumstances of the occurrence with E. T., and that she had called the Collier County EMS personnel. The wife also requested that Respondent come to the Hospital. On February 12, 1997, in response to E. T.'s wife's call, the Collier County EMS personnel responded to E. T.'s home at approximately 7:25 a.m., performed an initial treatment for the drainage from E.T.'s left groin and transported E. T. by ambulance to the Hospital. The EMS personnel noted that E. T. complained of bleeding and it was their initial impression that E. T. was bleeding from his femoral artery. However, the EMS personnel did not confirm that E. T. was bleeding from his left femoral artery. The EMS personnel also noted what they considered to be a large amount of thick, clotty blood, which they estimated to be approximately 1000 milliliters (ml's) or 1000 cubic centimeters (cc's), surrounding E. T. Based on the records of the EMS personnel and on E. T.'s description given to Dr. Mulert, E. T.'s wife's testimony that the incision spurted blood for approximately 3- 4 feet appears to be somewhat exaggerated. The EMS personnel, assuming that E. T. had recently loss blood, administered 300 cc of fluid intravenously to E. T. When the EMS personnel attempted to move E. T., the drainage from the incision started again, but was controlled with a trauma dressing and pressure applied by a sandbag. The EMS personnel presented E. T. at the Emergency Room (ER) of the Hospital at approximately 7:52 a.m. on February 12, 1997. The ER nurse noted that a pressure dressing along with a sandbag had been applied and that the drainage or bleeding was under control. The ER nurse drew blood from E. T. and noted in her record that it was for a "type and cross" in preparation for a blood transfusion should one become necessary. However, Dr. Robert Mulert, the ER physician who attended E. T. while in the ER, noted in his records that he had requested a "type and hold," a less elaborate procedure than a "type and cross," which requires checking the antibodies and making sure the blood in question is compatible blood. Based on his estimate of E. T.'s blood loss and E. T.'s vital signs and other health conditions, Dr. Mulert did not consider E. T. as a patient in need of a blood transfusion. Upon E. T.'s arrival at the Hospital, Dr. Mulert made a brief assessment of E. T.'s condition to confirm that there was no active bleeding and that the patient did not need emergent intervention. Although Dr. Mulert is not a vascular surgeon or even a general surgeon, he has one year of residency training in surgery and is a Board-certified emergency room physician who has been working as an emergency room physician for approximately 27 years. Dr. Mulert is qualified to examine patients such as E. T. and advise the primary treating physician of his findings. Dr. Liebert has worked with, and relied on, Dr. Mulert's expertise as an emergency room physician in treating many of his patients who are presented at the Hospital for emergency treatment for approximately 15 years. Dr. Mulert discussed E. T.'s condition by telephone with Dr. Liebert on two separate occasions during E. T.'s visit to the Hospital on February 12, 1997. The first occasion was shortly after E. T. was admitted to the Hospital ER. During this first occasion, Dr. Mulert advised Dr. Liebert that his patient, E. T. had been admitted to the Hospital with a reported acute hemorrhaging or bleeding of the incision in the area of his left groin and that E. T.'s wife was asking for Dr. Liebert. In some instances, the primary physician will assume treatment at this juncture. However, it is not unusual for the ER physician to continue treatment. The decision was for Dr. Mulert to continue treatment and to keep Dr. Liebert advised as to E. T.'s condition. There is nothing in the record to indicate Dr. Liebert's location on the morning of February 12, 1997; nor is there any evidence to indicate that Dr. Liebert was prevented from examining E. T. on the morning of February 12, 1997. Also, during this first discussion, Dr. Mulert advised Dr. Liebert, based on the information that he had gathered, that E. T.'s blood loss was approximately 500 cc's but that there was no active bleeding at that time. Dr. Mulert also advised Dr. Liebert that he intended to deal with the patient's problems by proceeding with his plan to assess E. T.'s blood count, to monitor E.T.'s vital signs, and to see if the patient met Dr. Mulert's criteria for stability: Can he get up? Can he walk? Can he talk? Does the patient make sense? Does the patient have discharge stability? Subsequent to this first discussion, Dr. Mulert made a more detailed examination of the wound to determine if the wound was infected, the depth of the wound, and the need to pack the wound with sterile dressing, etc. After reviewing the EMS personnel records, E. T.'s history, talking with E. T., and reviewing the results of his examination, Dr. Mulert's impression was that E. T. had a hematoma under a surgical wound; that the wound had come apart; and that the collection of blood (old blood) within the hematoma had expressed from that surgical wound. The blood within the hematoma is referred to as "old blood" in that it was no longer in the vascular system and was not being replenished with oxygen. While E. T.'s vital signs were low compared to his vital signs taken while in the Hospital on visits prior to February 12, 1997, they were not significantly lower and were within a normal range for a patient, such as E. T., who was on beta blockers. E. T.'s vital signs were inconsistent with an aggressive femoral graft leak. The hematocrit and hemoglobin values on February 12, 1997, were slightly lower than the hematocrit and hemoglobin values while in the hospital during his most recent visit in January 1997. However, based on the testimony of Dr. Liebert, which I find to be credible, that was to be expected since E. T. had been given a significant amount of auto-transfused blood during his surgery on January 29, 1997. Also, the lower values were consistent with a 500 cc or less blood loss by a patient that had just recently undergone surgery. During either the first or second conversation, Dr. Mulert advised Dr. Liebert that the surgical site had come apart. During his care of E. T., Dr. Mulert became aware that Dr. Liebert had performed an abdominal aortic aneurysm repair earlier in the year, and that the repair was under the nine-inch incision on E. T.’s left groin but did not know the exact location of the repair. If Dr. Liebert made a diagnosis, he did not convey such diagnosis to Dr. Mulert. Neither Dr. Liebert nor Dr. Mulert discussed or made a differential diagnosis. However, it was the testimony of both Dr. Mulert and Dr. Liebert, which I find to be credible, that based on the facts presented in respect to E. T. by Dr. Mulert, a differential diagnosis was unnecessary. A differential diagnosis is a mechanism physicians use to identify and evaluate possible alternative causes for observed symptoms. During the second telephone conversation, Dr. Mulert advised Dr. Liebert that the patient had been stable for approximately four hours, that his vital signs were within normal ranges, that his blood counts were basically unchanged, that there was no active bleeding and had not been any active bleeding for approximately four hours, that the patient was up and walking around the ER, that the patient was asymptomatic when vertical that the patient was not orthostatic when walking, that the patient wanted to go home, and that the incision in the left groin area needed to be repaired. There was no discussion between Dr. Mulert and Dr. Liebert concerning the admission of E. T. to the Hospital for the purpose of further examining the possibility of arterial bleeding. Ultrasound and computerized tomography (CT) were available to patients at the Hospital. While these tests don't always "rule out" internal bleeding or suture line disruptions, they can, in certain instances, "rule in" these conditions. Based on the facts in respect to E. T.'s condition presented by Dr. Mulert on February 12, 1997, particularly that they were dealing with an open wound, and Dr. Liebert's feelings as to the somewhat limited use of these tests in this type situation, there was no ultrasound or CT scan performed. Based on the facts in respect to E. T.'s condition as presented by Dr. Mulert on February 12, 1997, the failure of Dr. Liebert to utilize the ultrasound or CT scan to further examine E. T. in regard to arterial bleeding does not constitute the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances, notwithstanding the testimony of Michael J. Cohen, M.D. to the contrary. Subsequently, Dr. Mulert sewed up the incision which had come apart. Dr. Liebert did not personally examine E. T. at any time while he was in the ER to evaluate the cause of E. T.'s problem in relation to arterial bleeding, but relied on Dr. Mulert to provide him with facts surrounding E. T.'s condition based on Dr. Mulert's examination of E. T. and his assessment of E.T.'s problem. Based on the facts in respect to E. T.'s condition in relation to arterial bleeding as presented by Dr. Mulert on February 12, 1997, the failure of Dr. Liebert to personally examine E. T. prior to his discharge or to delay E. T.'s discharge so as to allow time for Dr. Liebert personally examine E. T. to determine for himself E. T.'s problem in relation to arterial bleeding does not constitute the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonable prudent similar physician as being acceptable under similar conditions and circumstances, notwithstanding the testimony of Michael J. Cohen, M.D. to the contrary. 38. E. T. was discharged from the Hospital at approximately 12:00 noon on February 12, 1997. After his discharge on February 12, 1997, E. T. had an uneventful afternoon and evening. After getting out of his bed on the morning of February 13, 1997, E. T. walked from his bedroom into the kitchen and as he stood in the kitchen the left groin incision erupted again, hemorrhaging blood onto the kitchen floor. The EMS personnel were called responded to the call around 5:30 a.m. Prior to the arrival of the EMS personnel the bleeding had stopped. The EMS personnel noticed a moderate blood loss. The EMS personnel dressed the left groin wound, administered fluids and transported E. T. to the Hospital where he was admitted to the ER at approximately 6:00 a.m. Although E. T. received blood and fluids, his condition deteriorated rapidly and E. T. expired at approximately 7:24 a.m. on February 13, 1997. No autopsy was performed. However, the cause of death was most likely myocardial infarction that resulted from a loss of blood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing the Amended Administrative Complaint dated March 2, 2001. DONE AND ENTERED this 1st day of August, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2001. COPIES FURNISHED: Robert C. Byerts, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Ralph L. Marchbank, Jr., Esquire Post Office Box 3979 Sarasota, Florida 34230 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact The parties stipulated to the factual findings set forth in paragraphs numbered 1-4, below. Stipulated Facts Respondent is Wassy Abdul Wallizada, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0028318. Respondent was charged by Administrative Complaint filed by the Department of Professional Regulation with violation of Chapter 458 and Chapter 499, Florida Statutes, and Rule Section 10D-0535(5), Florida Administrative Code. Valium is a legend drug and a controlled substance. It is inappropriate to administer a legend drug from a container which has an expiration date. Other Facts From February 22, 1988, through February 29, 1988, Lori Anne Deem worked for Respondent as a medical assistant. During the six days of her employment, Deem observed outdated medications kept in drawers, cupboards and the refrigerator located on Respondent's office premises. Deem discussed the matter with her husband. He telephoned Petitioner's representatives. As a result of that telephone call, Deem learned that she would need other witnesses or corroborating evidence before Petitioner could take action with regard to allegations of Respondent's unsanitary office conditions and use of outdated medications. Thereafter, Deem furtively took photographs of Respondent's business premises and made a list of outdated medications. Deem worked for Respondent for a total of six days before she was fired on February 29, 1988, for her lack of experience, inappropriate attitude, argumentative personality and poor work habits. During testimony at the final hearing, Deem was unable to recall whether she was fired or voluntarily terminated her working relationship with Respondent. At some point during her brief employment, Deem alleges she saw Respondent fill a syringe with injectable Valium from a vial bearing a clearly indicated previous expiration date, then replace the vial in a back office drawer. Deem further maintained that Respondent went into an examining room where a patient was located and later returned with an empty syringe, telling Deem that he (Respondent) had injected the patient with the Valium. Due to her demeanor while testifying about this incident; her inability to remember the expiration date on the vial of injectable Valium; her inability to remember the date or day the Valium was administered; her inability to recall a description of the patient beyond the patient's sex; conflicts in her testimony; and her admission of ill-feeling toward Respondent, Deem's testimony regarding the injection of Valium by Respondent from a vial bearing an expired date is not credited. Testimony of Respondent regarding the circumstances of the injection of Valium was candid, creditable and establishes that Respondent did give one injection of Valium to a patient suffering from a panic attack in one of his examination rooms between February 19, 1988 and March 1, 1988. Respondent left the examination room, went to his office and filled a syringe with Valium. He then returned to the examination room to administer the medication to the patient. Deem remained in the examination room with the patient during this time and did not observe Respondent fill the syringe in his office. The Valium administered by Respondent was not drawn from a vial bearing an expired date. Deem met with Petitioner's investigator, John Danson, on March 1, 1988, at her home. She signed a uniform complaint form alleging that Respondent's office had an unsanitary appearance and that Respondent was administering outdated, controlled medications to patients. On March 2, 1988, the information obtained by Danson from Deem was orally transmitted by telephone to Petitioner's complaint section. A complaint analyst employed by Petitioner reviewed the information and assigned a complaint number to the matter, indicating the complaint was legally sufficient. Around lunchtime on March 7, 1988, Danson, accompanied by Charles C. Coats III, Charles J. Sanchez, and Gregory Jones, went to Respondent's office premises. Coats was another investigator employed by Petitioner. Sanchez and Jones were drug inspectors employed by the Department of Health and Rehabilitative Services (DHRS). The visit to Respondent's office by Danson and Coats was in response to Deem's complaint. Sanchez and Jones accompanied the two Petitioner investigators at their invitation. Neither of the DHRS inspectors had received written complaints against Respondent. Neither Petitioner's investigators nor the DHRS inspectors possessed a search warrant or subpoena authorizing inspection or seizure of any items from Respondent or his office. Upon their arrival, Danson identified himself and informed Respondent of Deem's complaint allegations of unsanitary office conditions, possession of outdated drugs on the premises and the administering of those drugs to patients. All four men showed Respondent official identification consisting of a badge and an identification card in folding leather cases. Danson informed Respondent that they were there to conduct an inspection of Respondent's office premises and asked to see where the drugs were stored. Respondent was not informed of any right to refuse permission for an inspection or search of the premises. Respondent, although frightened, was very cooperative and allowed the inspection of his office premises, even showing the investigators the closet in his office where drugs were stored. The four investigators moved from room to room in Respondent's office premises. They opened drawers, closets and cabinets. Danson took a photograph of the closet in Respondent's office, with the door open showing the closet's drug contents. Danson also took photographs of the interior of a cabinet and a collection of drugs removed from a drawer by one of the other men. The following expired drugs were removed from the closet in Respondent's office: Drug Lotromin Lotion 1% Expiration Date 9/86 Gyne Lotromin 1% 5/86 Vancenase Inhaler 4/87 Procardia 10 mg. 1/87 Micronase 5 mg. 11/86 Lomotil 2.5 mg. 2/86 Inderide 80/25 5/86 Lasix 40 mg. 4/87 Tylenol #3 6/82 Minizide 6/85 Kenalog Cream 3/87 Ativan .5 mg 12/88 In Respondent's laboratory room, outdated drugs were found in cabinet drawers. An inventory of the contents of those drawers was made, revealing that the following drugs were also bagged and taken by the investigators: Drug Expiration date Valium 5 mg/ml 11/1/81 Diphtheria and Tetanus None listed Talwin Lactate 30 mg 10/84 IMMU - G 3/20/81 Norflex 1/83 Calcimar 2/87 Lidocaine Hydrochloride injectable 2% with Epinephrine 8/85 Pontocaine Hydrochloride 2% 6/86 Epinephrine injection 2/86 Dicyclomine Hydrochloride 10 mg / ml 1/87 Furosemide 20 mg/2 ml 8/85 Dimen Hydrinate injection 50 mg / ml 10/86 Adenocort Gel 40 units/ml 11/85 Nubain 10 mg 12/86 Ethyl Chloride 11/86 Lincocin injection 10/82 Nubain injection 3/80 Pontocaine Solution 3/78 B complex 100 11/82 Diphenhydramine HCL injection 10/86 Dexamethasone injection 4 mg / ml 11/86 NACL irrigation 3/1/80 Phenergan injection 50 mg / cc 6/80 In one of Respondent's examining rooms, expired drugs were found in the examining table drawer. Danson photographed the drugs. An inventory reveals the following drugs were bagged and taken: Drug Expiration Date Alupent Solution 5% 4/86 Neosporin Ophthalmic solution 8/81 Cortisporin Otic solution 5/81 Tympagesil solution 5/86 Epimycin 6/79 Epiform HC 10/82 Biozyme - C ointment 8/82 Epimycin A 1/81 Zovirax 5% 1/84 Ortega Otic M 11/87 Garmaycin Ophthalmic solution 9/81 Cortisporin Otic Suspension 2/88 Marcaine HCL .25% 1/82 Cerumex 3/87 Alupent Solution 4/86 Xylocaine 2% injection 4/86 Depo Medrol 40 mg. 8/84 Respondent was present and offered no objection to the inventory or the taking of the drugs from any of the locations. Among the expired drugs which were seized, Valium, Talwin Lactate and Tylenol III are controlled substances. Further, expired drugs found at all three locations were commingled with other undated drugs. Notably, while the Administrative Complaint contains allegations that Respondent administered an injection of Valium from a vial with an expiration date of 1980, no such vial of Valium was found in the search of Respondent's business premises. The searchers were unable to discern whether any of the drugs found in Respondent's premises had actually been used. Although there was no creditable direct evidence presented that Respondent ever utilized any of the outdated drugs, he stated to the investigators that he kept no receipts for any controlled substances and no record of administration of such substances beyond noting their usage in each individual patient's chart. Two-liter soft drink bottles were found in the cabinet underneath the sink in the laboratory and on the back porch of Respondent's office containing used syringes and blood samples. These findings are duly documented in photographs taken by the searchers. The bottles and contents were secured and taken as evidence. Physicians are required to keep a log of scheduled drugs, note when they are received and note when they are administered. However, the proof establishes that it is the custom in the Jacksonville area for physicians not to keep a separate log of controlled substances. The record of administered drugs is maintained in individual patient charts. A drug which has reached its expiration date is considered adulterated and should be quarantined from other products which do not carry expired dates and which may be dispensed or used. There is no time limit on how long expired drugs may be held in such a quarantine prior to destruction. The holding of such expired drugs by Respondent did not constitute a violation of the standard of care in the community as recognized by a reasonably prudent similar physician under similar conditions and circumstances. The holding of expired drugs by physicians in the area is not unusual.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint. DONE AND ENTERED this 29th day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 29th day of January, 1991.
Findings Of Fact James C. Loranger is a licensed medical doctor having been issued license No. ME0011235 and he was so licensed at all times here relevant. Since opening his office in Dunnellon, Respondent has primarily practiced Bariatrics, or weight reduction. He has generally treated these patients with thyroid pills, appetite depressants, diuretics, and amphetamines. Prior to commencing the weight reduction program for thee patterns, a physical examination was conducted. However, the thyroid medication was prescribed for patients having normal thyroid levels. The complaint against Respondent was made by a secretary who had worked for Respondent for several years. No complaint was ever made by a patient and no evidence was presented that any patient was contacted during the investigation which began in 1979. Following the initiation of the investigation, earlier charges were preferred against Respondent; Respondent was ordered by the Board of Examiners to proceed to Shands Hospital for a psychiatric evaluation, which he did; Respondent has reduced his DEA license to write prescriptions for Class 3, 4 and 5 drugs only; when told by the Board to stop prescribing amphetamines and thyroid pills, Respondent ceased doing so; and Respondent was represented by an attorney. Evidence regarding disposition of those stipulations was not presented. Respondent's psychiatric evaluation showed evidence of generalized cortical impairment (Exhibit 24). His physical appearance at the hearing is that of a man older than his 68 years with some locomotive impairment. Respondent occupies his office on a lease that expires in January, 1985, and he plans, if permitted, to continue his one day per week practice he now engages in until December, 1984, at which time he will voluntarily surrender his license and retire from any further medical practice. This admission was made by Respondent near the end of the hearing, at which time Petitioner's attorney appeared willing to accept such a stipulation from Respondent to settle this case. The parties were then directed by the Hearing Officer to present a stipulation in settlement of this case which would include a provision that Respondent continue his limited practice until December, 1984, at which time he would voluntarily surrender his license to the Board and cease any further practice of medicine. No such stipulation has been received; however, Respondent's willingness to surrender his license at the end of December, 1984, is contained in the transcript and is accepted by the Hearing Officer as a specific condition to the recommendation contained herein. The evidence was unrebutted that Respondent treated the 19 patients listed in the Administrative Complaint by prescribing substances not medically indicated by patient's symptoms, that this treatment was not in accordance with accepted medical practices, and that this treatment was not rendered in good faith.
The Issue The issues in this case, as set forth in the Amended Administrative Complaints in each respective case, are as follows: DOH Case No. 2010-01128/DOAH Case No. 11-5692 Count One. Whether Respondent, Jacinta Irene Gillis, M.D. (hereinafter referred to herein as "Dr. Gillis"), violated sections 458.331(1)(nn) and 458.326, Florida Statutes (2008 and 2009), by: Failing to diagnose patient M.G. with intractable pain prior to prescribing a controlled substance under Schedules II-V, as provided in section 893.03, from on or about December 19, 2008 through December 30, 2009; By inappropriately or excessively prescribing potentially lethal, highly abused, controlled substances, to wit: oxycodone, oxycontin, Percocet, and Valium, to M.G. without justification during the same time period; By inappropriately or excessively prescribing controlled substances to M.G. prior to exploring other treatment modalities or rehabilitation; and By failing to order a urine drug screen on M.G. at any time during her course of treatment. Count Two. Whether Dr. Gillis failed to keep legible medical records justifying the course of treatment for M.G. in one or more of the following ways: By failing to document justification for inappropriately or excessively prescribing controlled substances during her course of treatment; and By failing to document justification for not ordering a urine drug screen during the course of treatment. Count Three. Whether Dr. Gillis failed to meet the required standard of care in regards to her treatment of M.G. in one or more of the following ways: By inappropriately or excessively prescribing controlled substances without justification; By failing to confirm whether M.G. presented to a psychiatrist or psychologist after the initial referral by Dr. Gillis; By failing to order a urine drug screening of M.G. during her course of treatment; and By inappropriately or excessively prescribing controlled substances prior to exploring other modalities or rehabilitation. Count Four. Whether Dr. Gillis prescribed controlled substances, other than in the course of her professional practice, by prescribing controlled substances inappropriately or excessively in one or more of the following ways: By inappropriately or excessively prescribing controlled substances prior to exploring other treatment modalities or rehabilitation for M.G.; By inappropriately or excessively prescribing controlled substances without ordering a urine drug screening for M.G.; and By inappropriately or excessively prescribing controlled substances to M.G. without justification. DOH Case No. 2008-20661/DOAH Case No. 11-5961 Count One. Whether Dr. Gillis violated section 458.331(1)(nn), Florida Statutes (2008),1/ and Florida Administrative Code Rule 64B8-9.013(3) in one or more of the following ways: By failing to perform or document performing a complete physical exam of R.S.; By failing to explore or document exploring other treatment modalities or rehabilitation for R.S.; By failing to obtain or document obtaining a complete medical history of R.S.; By failing to document the nature or intensity of R.S.'s pain; By failing to document the current or past treatments of R.S.'s pain; By failing to document information on the effect of pain on R.S.'s physical or psychological function; By failing to develop or document developing a treatment plan for R.S.; and By failing to determine or document determining if there were any underlying or coexisting diseases or conditions for R.S. Count Two. Whether Dr. Gillis violated sections 458.331(1)(nn) and 458.326 in one or more of the following ways: By failing to diagnose R.S. with intractable pain prior to prescribing controlled substances, i.e., Percocet; By prescribing 90 tablets of Percocet 10/325 to R.S. without justification; By prescribing Percocet to R.S. without exploring other treatment modalities or rehabilitation; and By inappropriately prescribing Percocet to R.S. after R.S. reported that he was not currently being treated for pain. Count Three. Whether Dr. Gillis failed to keep legible medical records justifying the course of treatment for R.S. in one or more of the following ways: By failing to document justification for prescribing Percocet to R.S.; By failing to document a complete physical examination of R.S. prior to prescribing Percocet; By failing to document a complete medical history of R.S. prior to prescribing a controlled substance; By failing to document a urine screen on R.S.; and By failing to document a diagnosis of intractable pain for R.S. Count Four. Whether Dr. Gillis violated sections 458.331(1)(nn) and 458.326 in one or more of the following ways: By failing to perform or document performing a complete physical examination of D.H. on either of two visits; By failing to obtain or document obtaining a complete medical history on D.H.; By failing to explore or document exploring other treatment modalities or rehabilitation for D.H.; By failing to document the nature or intensity of D.H.'s pain; By failing to document the current or past treatments of D.H.'s pain; By failing to document information on the effect of pain on D.H.'s physical or psychological function; By failing to develop or document a treatment plan for D.H.; and By failing to determine or document determining if there were any underlying or coexisting diseases or conditions for D.H. Count Five. Whether Dr. Gillis violated sections 458.331(1)(nn) and 458.326 in one or more of the following ways: By failing to diagnose D.H. with intractable pain prior to prescribing a controlled substance, i.e., oxycodone; By prescribing 120 tablets of 30 mg oxycodone without justification; By prescribing 120 tablets of 30 mg oxycodone prior to exploring other treatment modalities or rehabilitation for D.H.; and By prescribing oxycodone to D.H. after D.H. reported that he was not experiencing any pain. Count Six. Whether Dr. Gillis failed to keep legible medical records justifying the course of treatment for D.H. in one or more of the following ways: By failing to document justification for prescribing 120 tablets of 30 mg oxycodone; By failing to document a complete physical examination of D.H. prior to prescribing a controlled substance; By failing to document a complete medical history of D.H.; By failing to document urine drug screening of D.H. prior to prescribing a controlled substance; and By failing to document a diagnosis of intractable pain for D.H. prior to prescribing a controlled substance.
Findings Of Fact The Department is the state agency having responsibility for monitoring health care professionals, including medical doctors. Dr. Gillis is a medical doctor licensed in Florida, North Carolina, and Iowa. She is not board-certified in any area of medicine, but claims to be "eligible" for board-certification in the field of internal medicine. Dr. Gillis received her medical degree from Meharry Medical College in Nashville, Tennessee, in 1997. She completed her internal medicine residency in 2003. Her medical career includes the following places of employment: Medical director/staff physician at Tennessee prison for women: March-August 2003; Hospitalist at Hilton Head Regional Medical Center: August 2003-February 2004; Pain management "specialist" in Atlanta, Georgia: March-September 2004; Staff physician for Illinois Correctional Facilities: September 2004-January 2005; Pain specialist/physician in Rock Island, Illinois: March-September 2005; Hospitalist at Brommen Medical Center in Bloomington, Illinois: May-August 2005; Hospitalist at Horizon Medical Center in Dixon, Tennessee: September 2005-January 2006; Pain specialist for National Health Services Clinic in Nashville, Tennessee: June-August 2006; Hospitalist at Kedlic Medical Center in Richland, Washington: September 2006-January 2007; Hospitalist at Auburn Regional Medical Center in Auburn, Washington: January-June 2007; Hospitalist at Mercy Medical Center in Sioux City, Iowa: July-August 2007; Hospitalist at Albermarle Medical Center in Elizabeth City, North Carolina: September-December 2007; Hospitalist at National Medical Affiliates in Punta Gorda, Florida: January-July 2008; Pain management specialist at UR Medical Clinic in St. Petersburg, Florida: July-November, 2008; and Pain management specialist at Dollar Medical Clinic in St. Petersburg, Florida: January 2009-October 2010. The Department is pursuing sanctions against Dr. Gillis based on her provision of medical care to three patients: D.H., and M.G. Both D.H. and R.S. are pseudonyms used by Deputies Negersmith and Johnson, respectively, as part of an undercover investigation of the clinic where Dr. Gillis was working in 2008. Their initials are used throughout this order for continuity, because all of the patient records and other evidence used those initials, rather than patient names. M.G. was a bona fide patient of Dr. Gillis's while she was operating another clinic in 2009-2010. In 2008, Dr. Gillis worked at a clinic operated by UR Medical Group, Inc., located in Pinellas Park, Florida. The clinic (referred to herein as the "UR Clinic") was owned by Renee Demasso, a non-physician. Dr. Gillis was the only medical doctor on staff at the clinic when she worked there. Another employee at the clinic was Quinton Knight, a large African- American male, who served as the office receptionist. The clinic had a "recruiter" named Jason Norris.2/ A recruiter is a person hired by the clinic to find new patients for the clinic's medical staff, i.e., for Dr. Gillis. On August 4, 2008, Negersmith, posing as D.H., was escorted to the UR Clinic by Norris. Upon arrival, he was given a patient information sheet to fill out. Norris directed him to write "severe lower back pain" on the sheet as the purpose of the visit. D.H. filled out the sheet, providing the following information: His pseudonym, address and contact information; His gender, marital status, height and weight; A fake social security number and date of birth; A fake driver's license number; His supposed occupation, i.e., a lineman for a private employer; A purported ailment, i.e., "severe lower back pain, weakness in knees" as the purpose for his visit; No insurance information; Neck/back pain and headaches as his medical history; A signature and date. All of the information provided was, of course, false. That is, D.H. was a fictitious name for a person pretending to be a patient. After filling out the form, D.H. discussed with Norris the cost of seeing the doctor. Norris said it would be a $350 charge. After approximately 45 minutes, D.H. was escorted to another waiting area, a vestibule separate from the main waiting area. After a short wait of five to ten minutes, D.H. was shown into an examination room where he met Dr. Gillis. D.H. was told to weigh himself on a floor scale and told Dr. Gillis his weight, 264 pounds. She then took his blood pressure which was 140/80. Dr. Gillis told D.H. that he might want to take some medication to lower his blood pressure. Dr. Gillis inquired as to the history of his present illness. According to the History and Physical Form (referred to herein as the patient chart) filled out by Dr. Gillis as she talked with the patient, D.H. said he had no pain (zero on a one-to-ten scale). Dr. Gillis wrote that D.H. "has difficulty explaining what he is really feeling" and that D.H. said muscle relaxers do not work for him. D.H. then told Dr. Gillis that oxycodone helps him to relax. Dr. Gillis then had D.H. perform three simple tasks: walking a short distance on his toes, walking on his heels, and raising his arms above his head. D.H. walked as directed, but he could not raise his arms higher than shoulder height because he was concealing a firearm in his waistband and raising his arms any higher would have revealed the weapon.3/ So he raised his arms up to shoulder height and then lowered them. D.H. cannot remember whether Dr. Gillis asked him why he could not raise his arms higher. Her notations on the patient chart indicate only that D.H. has less strength in his right foot (leg) and less range of motion in his left arm. At the conclusion of the examination, Dr. Gillis listed "chronic back and neck problems, chronic pain symptoms, non-specific" as the assessment and treatment plan for D.H. The lower left corner of the patient chart has an indication saying "needs records." D.H. purposefully avoided using the word "pain" throughout his examination. The only mention of pain was on the intake sheet he filled out, where he checked a box entitled neck/back pain. D.H. told Dr. Gillis that oxycodone helped him relax. She did not inquire as to whether he was taking any other medications or suggest any other modalities or treatment with D.H. After the examination, D.H. went back to the front office where he received a prescription for 120 tablets of 30 mg oxycodone and for 90 tablets of 600 mg Motrin. He handed Norris $350 in cash, which Norris then gave to Knight. No receipt was provided for the payment. D.H. then went to a local pharmacy and had the prescription filled. Pursuant to prior arrangements, he gave 60 of the oxycodone tablets to Norris for sale on the street.4/ The remaining tablets were placed into locked storage. Norris did not know D.H. was a police officer, of course. On August 27, 2008 (23 days later), D.H. appeared at the UR Clinic again. This time he was accompanied by Deputy Johnson who was posing as patient R.S. The deputies arrived at the clinic and looked for Norris, who was usually hanging around the parking lot. However, Norris was not there, and the deputies could not reach him via telephone, so they decided to go into the clinic anyway and see if they could obtain additional drugs. When D.H. and R.S. came into the clinic without Norris accompanying them, Knight became very upset and agitated. D.H. told Knight that Norris had recently changed his cell phone number, and it was not possible to contact him right then. R.S. started to walk out of the office, but Knight called him back and asked him for $350 and a copy of his identification. Knight then gave R.S. a patient information sheet to fill out. D.H. was not asked to fill out any paperwork at that time. D.H. was then escorted to the examination room where he saw Dr. Gillis again. No tests or physical examination were conducted. The only thing Dr. Gillis asked D.H. was whether he had brought his medical records with him. D.H. told her he had not had time to get them from his prior doctor yet. Dr. Gillis instructed D.H. not to come back to the clinic without his medical records. At the foot of the chart, Dr. Gillis wrote "Dr. Rew, family doctor; 2 weeks records; brought in personally." The note was not explained by Dr. Gillis. The patient chart filled out by Dr. Gillis on the second visit was extremely abbreviated in content. Under chief complaint, Dr. Gillis wrote, "patient states treatment plan is working; no complaints." The chart contains his vital signs: pulse of 142/80 and weight of 268 pounds. The history of present illness section of the form says only that D.H has a zero out of ten level of pain with treatment. She noted that has "no changes from prior testing" and added a note to "refill meds." The assessment and treatment plan section says "chronic back and neck problem." According to D.H., he never mentioned any problem to Dr. Gillis. Dr. Gillis did not inquire as to whether D.H. was currently taking any medications, but wrote, "oxycodone #120" and "Motrin 600 #90" on the current medications section of the chart. There was no physical examination of any kind performed on this visit. D.H. then went out to the office and got his prescription for 120 tablets of 30 mg oxycodone. Dr. Gillis never asked him whether he had taken all of the prior prescription, nor did she discuss pain with him. As part of his cover, D.H. intentionally avoided the use of the word "pain" when talking to Dr. Gillis. Meanwhile, R.S. completed his patient information sheet, providing the following information: His pseudonym, address and contact information; His gender, marital status, height and weight; A fake social security number and date of birth; A fake driver's license number; His occupation (carpenter work) and employer (unemployed); Purpose of visit, which D.H. listed as "stiffness in both shoulders"; No auto accident involved and no insurance available; Medical history options of high blood pressure and neck/back pain were checked in the list of various diseases and conditions listed on the sheet; An allergy to Keflex; Referred to clinic by a friend. R.S. was then taken back to an examination room where he met Dr. Gillis. He, too, contrived not to mention the word pain in his conversations with Dr. Gillis. He simply said he had a stiff shoulder. Dr. Gillis took his vital signs and had R.S. do the same physical tests that D.H. had performed in his first visit. remembers Dr. Gillis listening to his chest with a stethoscope and then examining his shoulder. The patient chart filled out by Dr. Gillis during R.S.'s visit contained the following information: "Chief complaint--Self employed; carpentry; history of surgery on back, shoulder problems one year ago; surgery and thus pain; no history of pain management." She correctly noted that R.S. was not currently on any medications. Dr. Gillis's assessment and treatment plan for R.S. was listed on the chart as chronic shoulder pain. There is no explanation for that notation. At the bottom corner of the chart, Dr. Gillis wrote "MRI of neck/shoulder; Dr. Wood, Pinellas County Orthopedic." That notation was not explained further by Dr. Gillis. R.S. went back to the front office where he was handed a prescription for Percocet 10/325, even though he never asked for medication. The Percocet was at the maximum strength (10 mg) for oxycodone content for that medication. R.S. then left the office, identified photographs of Dr. Gillis and Knight for his superiors and had no further involvement with the investigation. The testimony of Negersmith and Johnson as to their undercover actions was credible. Each of them had a clear and unambiguous memory of the events and did not appear to have any prejudices or ill intent that might negatively affect their testimony. The truth and veracity of their statements is accepted. At some point in time after the August 27, 2008, visit, the PCSO decided they had enough evidence to prosecute the UR Clinic as a "pill mill." As part of that prosecution, Dr. Gillis was pulled over in a traffic stop one day as she was leaving the clinic. After detaining her and explaining the charges that were being filed, the deputies advised Dr. Gillis to retain all patient records for patients she had been treating at the clinic. Later, Dr. Gillis cooperated with the sheriff's office and provided sets of original patient records to them. Dr. Gillis thereafter left her employment with the UR clinic and opened her own clinic. Patient M.G. presented to Dr. Gillis at her new place of employment, Dollar Medical Clinic, on December 19, 2008. Dr. Gillis was the owner and operator of this new clinic. M.G. filled out a patient information sheet which garnered the following information about him: Name, address and contact information; Marital status (married), and emergency contact information; Height, weight, and date of birth; Purpose of visit, listed as "refill on meds, follow-up on surgery." Auto accident on November 17, 2007; Insurance company information; and Medical history of neck/back pain, headaches, and arthritis. M.G. was then examined by Dr. Gillis. She filled out a patient chart for him that listed a history of surgery and treatments for pain. The patient chart lists Dr. Spuza and Dr. Nucci as physicians from whom M.G. had received care in the past. The patient chart noted that M.G. needed to be referred to a psychiatrist or psychologist as soon as possible. There was also a note indicating that M.G.'s MRI needed to be confirmed. Then there was a note written by Dr. Gillis saying "[p]atient is not going to be patient." There was no explanation as to what that note meant. The assessment and plan of treatment was then listed as "pain dependent" (although the writing on the patient chart is not very clear, and no testimony was elicited from Dr. Gillis to confirm what was written) and that the patient was advised about decreasing his pain medications. M.G. complained of pain at an eight on the one to ten scale with "treatment with oxycodone times four," presumably meaning four times per day. Upon completion of her examination of M.G., Dr. Gillis wrote him a prescription for 240 tablets of 30 mg oxycodone, 120 tablets of 40 mg oxycontin, 30 tablets of 10 mg valium, and 60 tablets of 500 mg naprosyn. According to the prescription, M.G. was supposed to take one of the oxycodone tablets every three hours, 24 hours per day, i.e., eight times per day. That was in addition to the oxycontin, which was to be taken every six hours. According to Dr. Gerber, "no pain doctor in the country would write a prescription like that." It would also be almost impossible for a patient to take all of those medications as prescribed. Approximately one month later, on January 16, 2009, M.G. returned to Dr. Gillis for the first of several follow-up visits. The patient chart filled out by Dr. Gillis that day indicates the chief complaint by M.G. to be "pain, top of buttocks radiating down leg to foot on left side." M.G. said his pain level was an eight out of ten with his medications. Dr. Gillis wrote a note to refill the medications and that there were "no acute changes" to M.G.'s condition. This time, the assessment and treatment plan was abbreviated as "A/P." This was the beginning of very cursory notes in the patient charts for M.G. The notes on the chart became shorter and less detailed as time went on. The "A/P" was listed as chronic neck pain and dental issues. Dr. Gillis then wrote prescriptions for 240 more oxycodone tablets, 120 more oxycontin tablets, 30 valium and 30 amoxicillin tablets. There is no record in the chart as to why the amoxicillin was added to M.G.'s medication regimen. There is no justification for providing essentially the same regimen of treatment when the patient was complaining of pain at a level of eight out of ten. M.G. came back for another follow-up on February 13, 2009. At that visit, Dr. Gillis charted the chief complaint as "thorac lumbar surgery [indecipherable] months ago." Again M.G. complained of a level of pain at eight out of ten when using his medications. Dr. Gillis noted her intent to refill the medications and that there were no acute changes in M.G.'s condition. His "A/P" was listed as chronic back pain. A prescription for the same medications, same doses, and same amounts as the previous visit was issued. M.G. returned on March 12, 2009, for a follow-up visit. The chief complaint at that time was "patient has difficulty [indecipherable]." Under history of present illness, Dr. Gillis wrote that M.G. has no history of pain prior to surgery and that he gets no relief from valium or Soma. There is no prescription for Soma in the records, so M.G. must have been getting that drug from some other source. There is no indication Dr. Gillis inquired as to where he got the medication, whether he was on any other medications, or how often he was taking the medication. Dr. Gillis again wrote that there were no acute changes in M.G.'s condition although he did not present with the same chief complaint. The "A/P" appears to be chronic back pain, although the writing is not clear. Prescriptions for oxycodone and oxycontin were renewed as before, and a prescription for Ambien was added. The valium prescription was not refilled. No explanation for the change in the drug regimen was provided by Dr. Gillis. On April 4, 2009, M.G. returned for another visit. This time his chief complaint was that he ran out of medications and had a seizure. There is no indication that Dr. Gillis inquired as to the type of seizure or whether M.G. had received any treatment for it. There is no evidence as to when M.G. ran out of his medications or how many pills he had taken since the prior visit. M.G. still complained of pain at a level of eight out of ten with his treatment. There is no indication of his pain level after he ran out of his medications. The "A/P" was listed as chronic back pain. The prescriptions written by Dr. Gillis for this visit were the same as the previous visit. For his next visit, May 12, 2009, there is no chief complaint listed on the patient chart. Dr. Gillis again wrote that there was no acute change in the patient's condition, that M.G.'s pain level was 6.5 out of ten with his treatment, and that the prescriptions should be refilled. The same oxycodone and oxycontin prescriptions (240 and 120 tablets, respectively) were written, along with the Ambien prescription. M.G. visited Dr. Gillis again on June 12, 2009. The chief complaint for that visit was low back pain caused by tripping over a toy car at his home. M.G.'s pulse and weight were measured, and there was a note on the chart that M.G. had "CBP" (which is presumably chronic back pain) and a toothache. A notation at the bottom of the chart said "25$," but is not explained. Dr. Gillis prescribed the same regimen of 240 pills of oxycodone and 120 pills of oxycontin. In the current medications section of the chart, Dr. Gillis wrote "Meds." That notation was not explained. As in each of the previous visits, Dr. Gillis did not perform a urine screen to determine whether M.G. had been taking the medications or not. M.G. came back to see Dr. Gillis on July 6, 2009. The chart for that visit says the chief complaint by M.G. was a surgical procedure called percantaneous distectomy and that M.G. "had care since the procedure." There is also a note that indicates "5 procedures," but the note is not explained. M.G. reported his pain level as five out of ten, with medications, and ten out of ten, without. Dr. Gillis prescribed the same, oxycodone and oxycontin medications as in the previous visits. There is no explanation as to why the medication levels were the same, even though M.G. was reporting less pain than in prior visits and had undergone surgery during the interim. M.G.'s next visit to Dr. Gillis was on August 5, 2009. His chief complaint on that day is essentially unreadable, and Dr. Gerber could not decipher it at all. There is a mention of Xanax in the chart, but its purpose is not explained. M.G.'s pain level is listed as six out of ten, with medications, ten out of ten, without. That is close to the pain levels described in the prior visit. However, without some sort of physical or functional exam or a psychological assessment, it was impossible to determine whether M.G. was functioning, no matter what his pain level. Dr. Gillis refilled the oxycodone and oxycontin prescriptions and added a prescription for ten tablets of Percocet 1/650, a minimal and almost useless dose. The "A/P" listed chronic lower back pain and seizure activities, but there was no discussion as to what seizures occurred or when. On September 9, 2009, M.G. presented with a complaint of a stiff neck. The chart mentioned an MRI, but did not explain or elaborate on it. The assessment of the patient was listed as "Ch LBP" (presumably chronic lower back pain), but there was no explanation of the relationship between the assessment and the presenting problem. There was no documentation of care in treatment on the patient chart. Dr. Gillis refilled the oxycodone and oxycontin and also added a prescription for Mobic, an anti-inflammatory medication. M.G. came back to visit Dr. Gillis on October 7, 2009. The chief complaint said M.G. had good and bad days and that the last surgery did not have good results. His pain level was down to six out of ten, with medications, and ten out of ten, without. Chronic lower back pain continues to be the assessment and treatment plan notation. Nonetheless, he was prescribed the exact same levels of oxycodone and oxycontin as all of the other visits. On November 4, 2009, M.G. returned to see Dr. Gillis. A different patient chart form was utilized by Dr. Gillis at that visit. The form includes a question, "Hello, how are you doing?" to which M.G. responded, "Terrible." M.G. said the ongoing treatment was working, but that he was not sleeping better. His pain level on that day was back up to seven out of ten, with medications. In her notes, Dr. Gillis said to "refill with adjustment with valium." There is no explanation as to why valium would be added to M.G.'s medication regimen. M.G. then visited Dr. Gillis on December 2, 2009. In response to the question about how he was feeling, M.G. said he was "planning for surgery; not doing good." He said the treatment was working and he was sleeping better. The assessment update on the chart said chronic lower back pain with exacerbations. The exacerbations were not explained. M.G. was prescribed the same medications as the previous visit. M.G.'s thirteenth and last monthly visit to Dr. Gillis occurred on December 20, 2009. When asked how he felt, M.G. answered "Alright." He said the treatment was working, but that some of his medications had been stolen. He reported not having oxycodone for nine days and oxycontin for seven days (or, possibly, not having nine oxycodone tablets or seven oxycontin tablets, the record is not clear.) He also said he had taken his medications that very day, but there was no indication in the record as to which medications he was talking about. He said his lower back pain was at a level of seven to eight on that day. Dr. Gillis did not inquire about the inconsistent statements and refilled his prescriptions anyway. The patient records for M.G. do not discuss whether he was paying for the cost of the prescriptions out-of-pocket or whether insurance was covering some of the cost. The cost of the medications would have been approximately $600.00 per month. It is clear that M.G. presented as a complex patient and was obviously receiving medical care elsewhere at the same time he was being treated by Dr. Gillis. He was apparently receiving medications from other sources at the same time Dr. Gillis was treating him. Dr. Gillis was at least somewhat aware of M.G.'s other medical care, but she never did monitoring or screening of M.G. that would have given her insight into how her treatment plan was interacting with M.G.'s other treatment. And, once Dr. Gillis saw that her treatment was not alleviating M.G.'s pain, she should have referred him to a board-certified pain management specialist. Dr. Marc Gerber was accepted at final hearing as an expert witness for the Department. Dr. Gerber is a board- certified pain management specialist who currently treats patients with pain management issues. Dr. Gerber's testimony was clear, concise, and credible. He did not appear to have any prejudice against Dr. Gillis as a person, but was very concerned about how she was practicing medicine. His testimony forms the basis for the following findings of fact. Relying upon the patient charts and patient information sheets provided by Dr. Gillis, there does not appear to have been a diagnosis of intractable pain for M.G. Intractable pain is pain for which, in the generally accepted course of medical practice, the cause cannot be removed and otherwise treated. There does not appear to have been an appropriate and complete physical examination of M.G. performed by Dr. Gillis. The oxycodone and oxycontin prescriptions for M.G. over a 13-month period are excessive. Despite her initial note wherein she advised M.G. that his medication levels must be decreased, Dr. Gillis continued the same regimen of oxycodone and oxycontin throughout M.G.'s treatment. There is no indication the medications were working, as M.G. continued to complain about pain for the entire 13 months he was under Dr. Gillis' care. Other than adding other medications, Valium, Mobic, Percocet, and Ambien for very brief periods, there was no change to M.G.'s prescription regimen. The patient charts for the visits to Dr. Gillis do not contain any justification for why the medications were prescribed in those quantities. The amount of oxycodone and oxycontin prescribed was, in itself, excessive. According to the prescriptions, M.G. was supposed to take one oxycontin every six hours. Oxycontin is a time-release medication that should only be taken once every 12 hours at most. M.G. was prescribed eight tablets of 30 mg oxycodone per day, i.e., one every four hours or two every eight hours--in addition to the oxycontin. The totality of those medications could be lethal. There are no indications in the patient charts that Dr. Gillis was taking vital signs and doing a physical evaluation of M.G. at every visit. Nonetheless, she continued to prescribe the high dosages of potentially lethal medications. Most importantly, Dr. Gillis never had a urine drug screen done on M.G. Such a test would have revealed whether M.G. was actually taking the drugs he was prescribed. It would have provided a determination of the level of drugs or other substances in M.G.'s body and then how the drugs were affecting him. A urine drug screen done at the time of M.G.'s earliest visit would have established a baseline for measuring the effectiveness and utility of future prescriptions. For a patient such as M.G., with a history of surgeries, a need for psychiatric evaluation, and a propensity to take large amounts of drugs, a urine drug screen would have been an essential element of the periodic review required for all such patients. Dr. Gillis erroneously stated that she had rejected and R.S. as patients after their first and second visits, respectively. The evidence shows that both "patients" voluntarily stopped visiting the clinic after completing their undercover work. Neither of the patients was told by Dr. Gillis not to return (although D.H. was told not to come back without bringing his medical records). Dr. Gillis did not testify at final hearing and did not provide any credible rebuttal to the facts asserted by the Department's witnesses. Dr. Gillis did demonstrate an understanding of the practice of medicine through her questioning of the Department's medical expert, but her treatment of patients R.S., D.H. and M.G. was deficient. The Department did not specifically allege, nor was there any evidence to support that Dr. Gillis intentionally practiced medicine in an inappropriate manner. However, her treatment of the patients in question indicates serious shortcomings in her ability to effectively and appropriately manage pain for her patients. Furthermore, Dr. Gillis represented herself at final hearing and, without assistance of counsel, was not able to effectively present a strong defense to the Department's allegations. Although she was given ample opportunity to testify concerning her care and treatment of the patients at issue, she declined to do so. Although the Department's perception of Dr. Gillis' treatment of D.H., R.S. and M.G. was based on its expert's review of medical records only, Dr. Gillis's refusal to testify left Dr. Gerber's perception as the only reliable source of information.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health suspending the license of Respondent, Jacinta Irene Gillis, M.D., until such time as Dr. Gillis can demonstrate competency in the practice of medicine, especially as it relates to pain management, to the satisfaction of the Board of Medicine. It is further RECOMMENDED that the final order assess the cost of investigating and prosecuting this case and that payment of such costs be a condition precedent to ending the suspension of Dr. Gillis's license to practice. DONE AND ENTERED this 3rd day of February, 2012, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 3rd day of February, 2012.
Findings Of Fact Respondent Herman Ginsberg is a registered pharmacist having been issued license number 0008019. At all times material hereto, Respondent was the managing pharmacist or the pharmacist on duty at Parkway Drugs (formerly Jaffe Drugs), located at 737 Northeast 167th Street, North Miami Beach, Florida. The pharmacy changed ownership on March 23, 1981, and Robert Strauss thereafter became managing pharmacist. On December 12, 1979, Dr. Arthur J. Schatz treated Geraldine Hauser Armstrong. In conjunction therewith, Dr. Schatz gave her a prescription for 30 Valium, 5 mg. tablets. Dr. Schatz authorized no refills on the prescription, and no refills were subsequently authorized by him. Further, no individual contacted his office to either verify the prescription or to request refills of that prescription. When the Valium prescription was located in the files of Parkway Drugs, it exhibited the notation "5X" by the word "REFILL" and further exhibited pricing information for the purchase of 100 Valium tablets. The "5X" indicates that five refills were authorized by the physician. Dr. Schatz did not place the notation indicating five refills on the prescription. Armstrong presented the Valium prescription to the Respondent on December 12, 1979, for the purpose of having the prescription filled. Respondent indicated that he could fill the subject prescription in the amount of 100 Valium tablets instead of the prescribed 30 if Armstrong so desired. She did. The Valium prescription written by Dr. Schatz was filled by Respondent in the amount of 100 Valium, 5 mg., originally and on five subsequent occasions. Prescription number 58350, located in the prescription files of Parkway Drugs, purports to be a telephoned prescription called in by Dr. Jack R. Cohen on December 17, 1980, for 150 Soma Compound for Geraldine Hauser Armstrong. Dr. Cohen did not prescribe, authorize or telephone in a prescription for 150 Soma Compound for Geraldine Hauser Armstrong on December 17, 1980. This prescription constituted the basis upon which the personnel of Parkway Drugs dispensed Soma Compound to Armstrong not only on December 17, 1980, but also on at least 12 other occasions between March 30, 1981, and September 12, 1981. Respondent personally dispensed Soma Compound to Armstrong as a result of this prescription on at least December 17, 1980, April 14, 1981, and May 11, 1981. On March 2, 1981, Dr. Leo A. Asher, Jr., pursuant to an office visit, prescribed for Armstrong on prescription forms bearing his name, address and phone number, 24 units of Darvon 65 and 20 units of Quinamm. After receipt of these prescriptions, Armstrong altered the amounts as indicated on the original prescriptions by changing the number of Darvon from 24 to 400 and by changing the number of Quinamm from 20 to 200. The alteration of the Darvon prescription, in particular, is blatantly obvious even to the untrained observer. Armstrong further altered these prescriptions by adding a notation that the same could be refilled as needed even though the physician had specifically stated on the prescriptions that there were to be no refills. After altering the prescriptions as indicated, Armstrong presented them to the Respondent who, without questioning Armstrong or calling the prescribing physician, honored the prescriptions in the altered amounts in spite of the conflicting instructions concerning the number of refills. A prescription for 400 Darvon 65 is excessive and inappropriate on its face. Respondent, however, filled this prescription at the same time that he filled the prescription for 200 Quinamm, a muscle relaxer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations in Counts I, II and III of the Administrative Complaint and revoking his license as a registered pharmacist. DONE and RECOMMENDED this 11th day of March, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 11th day of March, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Vincent J. Flynn, Esquire 1414 Coral Way Miami, Florida 33145 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hinton F. Bevis, Executive Director Board of Pharmacy 130 North Monroe Street Tallahassee, Florida 32301
