The Issue The issues presented for consideration on this occasion concern an administrative complaint brought by the State of Florida, Department of Professional Regulation, against the Respondent. In particular, it is alleged that on the named dates, January 7 and 8, 1983, Respondent failed to check vital signs for patients in the intensive care unit who were receiving her care. Additionally, it is alleged that Respondent abandoned patients in her care by leaving her assigned floor for long periods of time without notifying her supervisor. These actions purportedly are acts of unprofessional conduct which depart from or fail to conform to minimal standards of acceptable nursing practice per Section 464.018(1)(f), Florida Statutes, and violate Section 464.018(1)(j) , Florida Statutes, by violating Board of Nursing Rule 210- 10.05(2)(d) and (2)(e) 1., Florida Administrative Code, through inaccuracies in record keeping or falsification of patient records or charts.
Findings Of Fact Respondent is a licensed practical nurse, having been issued license No. 0524551 by the Board of Nursing in the State of Florida. At all times relevant to these proceedings, Respondent was employed as a nurse at Ormond Beach Hospital, Ormond Beach, Florida. Beginning at 11:00 p.m. on January 7, 1983, and continuing until January 8, 1983, at 7:00 a.m., Respondent was working in the intensive care unit of Ormond Beach Hospital. During that time, she was primarily responsible for the care of the Patients Eleanor Prentzel and Evelyn Burkman. On that duty shift, at 12:00 midnight and 6:00 a.m., Respondent checked the vital signs of the two patients. In addition, other assessments were made during that duty cycle related to the patients. The recordation of the vital signs and statement of assessments may be found in the 24 hour nurse's notes pertaining to the two patients. These entries are part of Petitioner's exhibits 2 and 3 admitted into evidence which are patient records related to the patients in question for Burkman and Prentzel respectively. During the duty shift, between 1:30 a.m. and 5:00 a.m., Respondent was gone from her duty station for an unacceptable amount of time. While absent, Ms. Burkman, who was a cardiac patient, complained of chest pains and had to be attended by Margaret S. Vogini, R.N., who was working in the ICU on this shift. Vogini had the patient do deep breathing and listened to her lungs and heart, checked her blood pressure and watched the cardiac monitor. The patient was experiencing pain on deep inspiration, which led Vogini to believe that the problem was with the patient's lungs and not related to cardiac difficulty. Respondent worked the duty shift beginning 11:00 p.m., January 8, 1983, and concluding 7:00 a.m., January 9, 1983. Again, she attended patients in the intensive care unit. One of those patients was Prentzel. The patient Burkman was assigned to Vogini on this duty shift. Again there were unacceptably longer periods of time when Respondent was out of the intensive care unit. During that duty shift, an unnamed patient became comatose and suffered cardiac arrest; requiring cardiopulmonary resuscitation. At that time, Respondent was not in the intensive care unit and had to be summoned back to the unit to assist other nurses that were working that shift. On this same shift, at 12:00 midnight, Respondent failed to take the temperature of the patient Prentzel. This should have been done in keeping with physician's orders either 30 minutes before or 30 minutes after midnight. Respondent indicated that the reason for not taking the temperature was because she did not want to wake the patient up. This was an inappropriate decision about a patient in the intensive care unit. Respondent also failed to record the blood pressure reading which she took related to the patient Prentzel at 12:00 midnight on this shift. Again, this was an inappropriate judgement about a patient in the intensive care unit. During the two evenings in question, Respondent was suffering from a bladder infection and reported this problem to Virginia Hilbert, R.N., nurse supervisor of the Respondent. This medical problem required frequent trips to the bathroom on the part of Respondent. On occasion, it was necessary for the Respondent to leave the intensive care unit to accomplish her purposes. At most, those trips would have taken four minutes and did not satisfactorily account for the length of time in which the Respondent was not caring for her patients on the two duty shifts at issue. Because of her conduct on the evenings in question, Respondent was called before the hospital administration for counseling. In the course of this session, Respondent admitted that she did not always take respiration of patients in her charge. She made this comment during the course of a discussion of the events of the two duty shifts in question. Nonetheless, the record does not establish with reasonable certainty that her comments pertained to those patients Burkman and Prentzel who were in her care on January 7-8 and 8-9, 1983. The circumstances described in discussing the absence of Respondent on the two duty shifts in question, leads to the conclusion that the Respondent was absent from her duty station without properly notifying another nurse or supervisor working in the unit. That absence without proper notification, as established through testimony of Nurse Vogini, was a departure from acceptable nursing practice in that it was below the minimal standards of acceptable and prevailing nursing practice in Florida. Charlotte Brooks, R.N., Assistant Administrator at Ormond Beach Hospital and Director of Nursing, set forth the importance of taking vital signs as next described. By taking vital signs, the nurse discovers the patient's reaction to illness, stress, and drugs. In the intensive care unit, the results of these checks demonstrate the need to either start or stop medication and measure the patient's response to the disease process. The taking of vital signs can detect shock and various other kinds of problems that the patient may experience. Generally, temperature and respiration checks help to track the patient's progress. Finally, these notations of vital signs made by the nurses assist subsequent shift nurses in treating the patients, to include initiation or institution of doctor's orders based upon reported vital signs.
The Issue Whether disciplinary action should be taken against Respondent’s license to practice as a medical doctor based on allegations that he violated sections 458.331(1)(t), (m), and (q), Florida Statutes (2008-2010), as alleged in Petitioner’s Amended Administrative Complaint.
Findings Of Fact The following Findings of Fact are based on the testimony presented at the final hearing, exhibits accepted into evidence, admitted facts set forth in the pre-hearing stipulation, and matters officially recognized. The Parties and the Origin of This Litigation The Department is the state agency charged with regulating the practice of medicine pursuant to chapter 456, Florida Statutes (2006-2017). At all times relevant to the instant case, Dr. McKenzie was a Florida-licensed physician having been issued license ME 93485. Dr. McKenzie is also licensed to practice medicine in Alabama. Dr. McKenzie is board-certified in internal medicine with sub-specialties in pulmonary disease and sleep medicine. Dr. McKenzie earned his medical degree at the University of South Alabama (“USA”) in May of 2000. Over the next three years, Dr. McKenzie completed an internship and a residency in Internal Medicine at USA. By June of 2005, Dr. McKenzie had left USA after completing a fellowship in “Pulmonary & Sleep Medicine, Critical Care.” Dr. Victor Ortega has a medical practice in Panama City, Florida, known as Pulmonary Associates, and Dr. McKenzie began working for Dr. Ortega on approximately July 1, 2005. Dr. McKenzie had no ownership interest in Pulmonary Associates. He was an employee of Dr. Ortega. Therefore, Dr. Ortega owned the medical records for the patients Dr. McKenzie treated at Pulmonary Associates. Dr. McKenzie worked at Pulmonary Associates until July of 2006, and the separation was acrimonious. Dr. McKenzie elected to leave Pulmonary Associates after learning that the compensation system instituted by Dr. Ortega unfairly enriched him at the expense of his associates.1/ Dr. McKenzie began practicing at Bay Clinic, Inc. (“Bay Clinic”), in Panama City in July 2006, and continued there through May 2009. At Bay Clinic, Dr. McKenzie shared office space and administrative expenses with Dr. Jesus Ramirez. Dr. McKenzie had no ownership interest in Bay Clinic. The record is unclear as to whether Dr. McKenzie had an employment contract with Bay Clinic. In May of 2009, Dr. McKenzie opened his own practice at The Lung and Sleep Center in Panama City. Dr. McKenzie owns The Lung and Sleep Center, and he owns the medical records for the patients he treats there. In addition to his practice at The Lung and Sleep Center, Dr. McKenzie is a staff physician at Bay Medical Center, Select Specialty Hospital, and Health South in Panama City. Since August of 2015, Dr. McKenzie has been a clinical instructor for the nurse practitioner program at USA. Because Dr. McKenzie has been practicing in close proximity to Pulmonary Associates, Dr. Ortega sued Dr. McKenzie in 2011 in order to enforce a non-compete agreement.2/ During the course of that litigation, Dr. Ortega’s attorney asked Dr. McKenzie during a deposition whether he had ever treated a current or former employee with narcotic medications at Pulmonary Associates. Because Dr. McKenzie had rendered such treatment to K.D., he responded affirmatively. On January 28, 2011, Dr. Ortega wrote the following letter to the Board of Medicine: A deposition with Dr. McKenzie took place and is enclosed. Dr. McKenzie acknowledged under sworn statement that he had prescribed controlled substances for employees at Pulmonary Associates of Bay County. That person, of course, was [K.D.]. Dr. McKenzie’s attorney opposed any further questioning alleging privacy violations, etc. Since [K.D.] was our employee and he was under contract and under the privacy and umbrella of our corporation, that record keeping was by contract to be kept under our protection. As I understand it, this is a criminal occurrence and violation of the prescription of controlled substances. I am forwarding all this to the law enforcement agency and to the state with the hope that you will proceed accordingly with prosecution and stop this practice as soon as possible. I recognize that the problem of illegal use, abuse, and prescription of controlled substances is a significant issue throughout the United States. This represents one more way in which drugs are being diverted from their legal and appropriate use. To this day I am certain that this illegal prescription practice continues with different individuals. The rapid check of prescriptions at the local pharmacies for controlled substances, particularly Lortab, Dilaudid, etc., by this physician will reveal a number of individuals which I am sure will not have corresponding medical record entries to justify the use of pain control medication by appropriate evaluation, diagnosis, and treatments as required by law. (emphasis added). Dr. Ortega ultimately identified A.W., R.W., and K.D. to the Department as patients who received inappropriate prescriptions from Dr. McKenzie. However, the Department and the Florida Department of Law Enforcement’s (“FDLE”) investigation began due to a confidential informant observing Dr. McKenzie disposing of pill bottles at a car wash. FDLE investigated the matter, but limited resources led to FDLE referring the case to the Department for administrative action. The Department’s allegations pertaining to A.W., R.W., and K.D. will be separately addressed below. Was Dr. McKenzie’s Treatment of A.W. Below the Standard of Care? A.W. has been a Florida-licensed nurse since April of 2007 and has worked at Bay Medical Center since 2005. She was in nursing school when her employment at Bay Medical Center began. A.W. and Dr. McKenzie were co-workers at Bay Medical Center. While Dr. McKenzie was married and A.W. was engaged, they began a romantic relationship in 2005 that continued until 2006 or 2007. When A.W. learned that Dr. McKenzie’s wife was pregnant, their relationship ended, and A.W. did not have any meaningful communication with Dr. McKenzie for the next year. Even though she was already treating with a general medicine practitioner who she considered to be her primary care physician, A.W. began treating with Dr. McKenzie in approximately April of 2009 because she was experiencing “really severe headaches,” anxiety, and abdominal pain. Dr. McKenzie prescribed Lortab, the brand name for an opioid pain medication consisting of acetaminophen and hydrocodone. Under section 893.03(3), Florida Statutes (2008-2017), hydrocodone, in the dosages found in Lortab, is a Schedule III controlled substance. From April of 2009 through October of 2010, Dr. McKenzie prescribed 90 Lortab pills a month to A.W. A.W. was to take one pill every six hours as needed for pain. When A.W. began treating with Dr. McKenzie, they resumed having a personal relationship. While A.W. describes their relationship at that time as being friendly rather than romantic, A.W. and Dr. McKenzie were having sex while Dr. McKenzie was writing prescriptions for her. A.W.’s first documented treatment with Dr. McKenzie at The Lung and Sleep Center occurred on July 22, 2009, and she presented with several issues. For instance, A.W. was experiencing anxiety, and Dr. McKenzie noted on the medical record that A.W. needed to see a psychiatrist. A.W. was also experiencing pain from multiple sources. Migraines were one source of pain, and Dr. McKenzie recommended continuing with Lortab and discussed obtaining a neurology consult. A.W. also had abdominal pain, and Dr. McKenzie discussed obtaining a colonoscopy and consulting with a gastroenterologist. In addition to migraines and abdominal pain, A.W. was experiencing pain from pleurisy. Pleurisy is inflammation of the lining of the lungs, and its symptoms include chest and back pain. It is characterized by a sharp pain that worsens with deep breaths. Pleurisy is treated with nonsteroidal anti-inflammatory drugs (“NSAIDs”) such as Motrin, Aleve, and ibuprofen. If NSAIDs have no effect, then, narcotics can be used. A.W.’s next documented treatment at The Lung and Sleep Center occurred on December 9, 2009. Dr. McKenzie noted in the medical record associated with that office visit that A.W. had gastroesophageal reflux disease, i.e., GERD. In order to treat that condition, Dr. McKenzie prescribed over-the-counter Prilosec and advised A.W. to avoid NSAIDs because they can aggravate heartburn. If a patient cannot take NSAIDs, then Lortab is a reasonable alternative. By the time of her next documented office visit at The Lung and Sleep Center on July 22, 2009, A.W. was still suffering from anxiety, abdominal pain, and pleurisy. A.W. had neglected to obtain any of the consultations recommended by Dr. McKenzie. Dr. McKenzie testified that it can be difficult to get patients to obtain consultations: So a lot of times, it’s hard to get people to be compliant. Nobody wants to go and have scopes in both ends, but especially when something flares up and goes away, because every time you see – it’s like taking your car to the mechanic, when you take it to the mechanic, it quits knocking. So a lot of these people come in, well, it’s not that bad. And they they go home and it will be bad. So a lot of times it’s hard to get them to be compliant with these. Because the [esophagogastroduodenoscopy] and the colonoscopy, I don’t know if anybody has had one, but they can be unpleasant, at best. Because A.W. is a nurse, Dr. McKenzie assumed that she would eventually obtain the consultations: [O]ne thing about A.W. is she’s a nurse. And so you kind of put more weight, because a normal patient, when they say, well, I’m going to call psychiatry, or I’m going to get this down or this done, you know, then you may push them a little harder. But if you have a medical professional, when they tell you that, well, I’ll call this and I’ll do that, you kind of put more weight to that. And so, you know, she did – you know, and she was told, and she said, well, I’ll call psychiatry. And then she would call – was going to call GI and she was going to call neurology. And she eventually did, of course. When asked about prescribing narcotics for a year to a patient who was not obtaining the recommended consultations, Dr. McKenzie testified as follows: So you give people the benefit of the doubt. And her symptoms would come and go. And then she said – like I said, she kept saying, well, I’m going to go see this person, see this person. She worked nights. She had a lot of compounding issues that would make it harder for her to follow up and be compliant. Dr. McKenzie did not have an office visit with A.W. every time that he wrote a prescription for her. The next documented visit by A.W. to The Lung and Sleep Center occurred on December 9, 2009. The medical record notes that A.W. continued to have stomach pain. As a result, she was to continue avoiding NSAIDs, and she was supposed to consult with a gastroenterologist. A.W. was still suffering from pleurisy, anxiety, and migraines. A.W.’s next documented treatment at The Lung and Sleep Center occurred on May 5, 2010. A.W. still had not obtained the consultations mentioned above, and Dr. McKenzie recognized that doing so would be difficult because A.W. was working nights. A.W.’s last documented treatment at The Lung and Sleep Center occurred on October 11, 2010. She still had not obtained the consultations previously recommended by Dr. McKenzie. Dr. McKenzie notified A.W. during this office visit that he would not prescribe any more pain medication until she obtained the psychiatry, neurology, and gastroenterology consultations they had discussed. A.W. then treated with Dr. Mariusz J. Klin, a gastroenterologist, on November 24, 2010. Dr. Klin performed an endoscopy on A.W. and discovered that she was suffering from “severe gastritis from NSAIDs and a 2 centimeter hernia.” Dr. McKenzie testified that severe gastritis is painful. A lot of people call the ambulance, you know, they get all kinds of heart workup and all kinds of pulmonary workup and they did a lot of workup because of the severe pain. And it’s episodic. You can have episodes where you won’t have any issues and then you’ll have flare-ups and have issues. Dr. McKenzie testified that a hiatal hernia can be painful: It can be. A lot of times your – what causes a hiatal hernia is your stomach and your esophagus are above the diaphragm. And your esophagus fits into your diaphragm like a lock and key. And so if your esophagus is in the right place, it helps close off the stomach so the acid can’t come out. Well, when you have a hernia, it pulls the lock and key in the wrong direction to be optimal, so now the stomach acid can leak out and cause more of a problem. Dr. Francisco Calimano, the Department’s expert witness, reviewed A.W.’s medical records and provided expert testimony on the Department’s behalf. Dr. Calimano is licensed to practice medicine in Florida and is board-certified in internal medicine, pulmonary medicine, and critical care medicine. Dr. Calimano testified that the amount of Lortab prescribed to A.W. by Dr. McKenzie was “excessive.” However, Dr. Calimano’s objection was directed more toward the length of time that Dr. McKenzie prescribed 90 Lortab pills a month, rather than the monthly amount of Lortab prescribed. Specifically, Dr. Calimano testified that he would do no more than a two to three month Lortab prescription for a patient with migraines, anxiety, and abdominal pain: In my opinion, you know, in my professional opinion, you know, at least in the scope of practice that I have, which I am not a pain specialist, I wouldn’t go for this length of time prescribing this amount of narcotics. I will feel uncomfortable doing that. So I think that I would refer to the pain management specialist. I would have been, you know, up to the point I said, you know, usually what I tell my patients is I give you a prescription, because you are having acute pain. I might give a second prescription if the pain is not resolved or so with the understanding that he needs to get that addressed. Before I give him that second prescription, I tell him I no longer will prescribe you these medications. And so before she runs out of that prescription, she knows in advance that it’s a no, the answer is no. That she needs to get some help, professional help. Because I think if not I would be doing a disfavor. Dr. David Hart Goldstein provided expert testimony on Dr. McKenzie’s behalf. Dr. Goldstein is licensed to practice medicine in Florida, and he practices internal, pulmonary, and hospital medicine at Sarasota Memorial Hospital. In addition, Dr. Goldstein currently works as an Assistant Clinical Professor of Internal, Pulmonary, and Hospitalist Medicine at Florida State University’s School of Medicine. Dr. Goldstein rendered a different opinion regarding Dr. McKenzie’s treatment of A.W. and the Lortab prescriptions: Q: Does anything appear remarkable to you in terms of the dosage? A: The dosages are on the high side. But when a patient has severe pain sometimes you need a higher dose. It seems that Dr. McKenzie was managing this patient for a long period of time. There was no pain specialist involved at that time. Q: From your review of the record, did it appear that patient A.W. had significant gastric distress? A: Yes. In fact, it appears from the record and the note by Dr. Klin that she tried other methods to relieve the pain. The reasons I say that is his diagnosis was severe gastritis related to the use of NSAIDs. Meaning that she tried using things like Advil. So that caused the issue. So NSAIDs would be prohibited. And this would be consistent with a person who has, according to the record, significant headaches, abdominal pain, which was [caused] by gastritis and pleurisy. Q: So from your review of the records, particularly Dr. Klin’s clinical records, would it be appropriate if NSAIDs were not effective to step up to a Lortab prescription? A: If that was the only way the patient’s pain could be managed, yes. * * * Q: So taking all of these records together, did you see anything clinically inappropriate as to either the medical care or the prescribing that Dr. McKenzie offered to patient A.W. during this timeframe? A: The only thing is as I mentioned – I think I mentioned it in my deposition also. There are a lot of prescriptions for Lortab. The medical record documents that she has a lot of pain. I think there might have been better documentation of the fact that this was failing or this was working. So I am not that impressed with the documentation, but the record is consistent with symptoms that can be treated and are often treated with narcotics such as Percocet or Lortab. Q: Dr. Goldstein, did you see anything that appeared to you to be a practice beneath the standard of care? A: Just as I mentioned, I don’t think the records were great, but I don’t believe that’s a deviation of the standard of care. I just think that’s poor recordkeeping. As for the length of time that Dr. McKenzie prescribed Lortab to A.W., Dr. Goldstein testified that, “I would not prescribe it for a year unless I was comfortable that this patient had made attempts to see a neurologist and had migraines and was not abusing this medication.” Because A.W.’s gastric issues prevented her from taking NSAIDs, Dr. Goldstein opined that it was appropriate to treat A.W.’s headache pain, abdominal pain, and pleurisy with Lortab. With regard to the fact that Dr. McKenzie wrote prescriptions for A.W. without a corresponding office visit, Dr. Calimano acknowledged that “you don’t absolutely need a face-to-face contact with the patient if you have established a diagnosis and you are sure of what you are treating and so on.” Nevertheless, Dr. Calimano objected to Dr. McKenzie not doing more to treat the sources of A.W.’s pain, and the Department takes Dr. McKenzie to task because A.W.’s medical records do not set forth a treatment plan, objectives, etc. However, A.W. was a difficult patient because she did not obtain the consultations requested by Dr. McKenzie until he threatened to discharge her as a patient. Such consultations would be an essential prerequisite to formulating an effective treatment plan for A.W. If A.W. had obtained those consultations when she had been directed to do so, then her illnesses might have resolved much sooner. While Dr. McKenzie probably should have threatened to discharge A.W. sooner, he believed that A.W., as a medical professional, would eventually obtain the consultations, and he recognized that A.W.’s night shift work made it difficult for her to obtain those consultations. In sum, even Dr. Goldstein acknowledged that Dr. McKenzie’s recordkeeping for A.W. could have been better. However, the evidence does not clearly and convincingly demonstrate that Dr. McKenzie’s treatment of A.W., under these particular circumstances, fell below the standard of care.3/ Did Dr. McKenzie Falsify A.W.’s Medical Records and Use Her to Illegally Obtain Lortab? Contrary to the medical records described above, A.W. asserts that she has never sought treatment at The Lung and Sleep Center. While she acknowledges visiting The Lung and Sleep Center, she asserts that she was only there as a friend of Dr. McKenzie and to assist her father with obtaining treatment.4/ A.W. testified that Dr. McKenzie never determined the cause of her headaches, her anxiety, or her abdominal pain. A.W. testified that Dr. McKenzie never performed a physical exam on her or discussed a treatment plan with her. A.W. also denies that she received any treatment from Dr. McKenzie at Bay Clinic, but she acknowledges visiting him there as a friend. As noted above, A.W.’s Lortab prescriptions enabled her to obtain 90 Lortab pills a month. As a result, she could take one pill every six hours. A.W. testified that she could not tolerate taking that amount of Lortab. The medicine made her drowsy and upset her stomach. A.W. also testified that she never had to take four Lortab pills in a single day in order to control her pain. After the first month of her treatment with Dr. McKenzie, A.W. testified that she continued to fill the Lortab prescriptions but gave a large majority of the pills to Dr. McKenzie. A.W. testified that she kept a few pills for those times when she would experience severe headaches or abdominal pain, and one pill a day was enough to keep her pain under control. As for why she gave large portions of her Lortab prescriptions to Dr. McKenzie, A.W. testified that she did so “[b]ecause he was my friend, and he had told me he was going through a lot, and he was embarrassed to go see a physician in town. He asked me if he wrote me a script could I give him some back or give it back to him.” During the time in question, Dr. McKenzie was experiencing marital difficulties and opening his own practice. A.W. testified that she would fill the Lortab prescriptions at a CVS Pharmacy in Panama City and then meet Dr. McKenzie in a parking lot so that she could give him the medication. A.W. and Dr. McKenzie’s personal relationship ended again in 2011 when A.W. became pregnant. At some point in 2011, A.W. was contacted by investigators from the Department and the Drug Enforcement Agency. A.W. then alerted Dr. McKenzie to the aforementioned agencies’ investigation. A.W. testified that she assisted Dr. McKenzie with fabricating medical records demonstrating that she had treated at The Lung and Sleep Center and that the Lortab prescriptions were medically necessary. She testified that she did so because Dr. McKenzie was her friend and she wanted the investigation to “go away.” Moreover, A.W. testified that she was worried that she could be charged with impaired nursing. When asked why she fabricated medical records, A.W. testified as follows: Because he was my friend and I didn’t want him to get in trouble for all of this, and I wanted it to be done with. I was worried about being a nurse and being a part of this. And I had been – the whole impaired nursing thing had been brought up, and I figured if I did this everything would just go away. A.W. learned of the Administrative Complaint when Dr. McKenzie showed it to her during a 2014 visit to his apartment. A.W. visited Dr. McKenzie’s apartment “quite a few times” and their last sexual encounter probably occurred in 2015. Despite testifying that she and Dr. McKenzie had been friends, A.W. testified against Dr. McKenzie at the final hearing and claimed that she was doing so because she felt it was the right thing to do and did not “want this over [her] head anymore.” Medical records from Dr. Klin and a Dr. Elzawahry memorialize treatment rendered to A.W. in October and November of 2010. However, those records, which were in the possession of The Lung and Sleep Center, bear a facsimile timestamp of March 1, 2011, and March 2, 2011. Those dates are four months after A.W.’s treatment dates. Also, the facsimile timestamps are seven days after the Department served Dr. McKenzie with a subpoena for A.W.’s medical records. While concerning, the facsimile timestamps do not conclusively demonstrate that Dr. McKenzie fabricated the records pertaining to A.W.’s treatment at The Lung and Sleep Center. While the undersigned has doubts about Dr. McKenzie’s credibility, there are reasons to question A.W.’s credibility. A.W. and Dr. McKenzie had a complicated relationship, and Dr. McKenzie is currently seeing another nurse employed at Bay Medical Center. The undersigned cannot ignore the possibility that A.W. and Dr. McKenzie’s prior relationship did not end on good terms. As noted above, Dr. Ortega brought A.W., R.W., and K.D. to the Department’s attention. The January 28, 2011, letter from Dr. Ortega to the Board of Medicine is suspicious because Dr. Ortega confidently states (without stating the basis for his assertions) that there are other patients who have received illegal prescriptions from Dr. McKenzie. Given the January 28, 2011, letter and the acrimony between them, one of Dr. McKenzie’s defenses to the Amended Administrative Complaint is that Dr. Ortega persuaded or coerced A.W., R.W., and K.D. to provide false testimony against him. It is possible that Dr. Ortega could be in a position to exercise some sort of leverage over A.W. due to the fact that Dr. Ortega works as a pulmonary doctor at Bay Medical Center and A.W. is a pulmonary nurse. During the hearing, A.W. acknowledged that she is taking 14 medications such as Latuda for psychosis; Ativan for anxiety; Prozac for depression; Nuvigil for Attention Deficit Disorder (“ADD”) and narcolepsy; Adderall for ADD; Fioricet for migraines; Metoprobol for hypertension; Lamictal for bipolar disorder; Carafate to coat her stomach; Prilosec for indigestion, gastric reflux, and gastritis; and Rispedal, a mood stabilizer associated with bipolar disorder. The fact that A.W. is currently receiving treatment for psychosis and bipolar disorder does not cause the undersigned to discredit her testimony. However, the undersigned cannot ignore the fact that there was no testimony as to what extent (if any) the aforementioned conditions affected her during the time period relevant to the instant case. In sum, there is evidence indicating that Dr. McKenzie used A.W. to obtain Lortab. Nevertheless, the evidence taken as a whole does not clearly and convincingly demonstrate that Dr. McKenzie prescribed Lortab to A.W. outside the course of his professional practice. Was Dr. McKenzie’s Treatment of R.W. Below the Standard of Care? R.W. was a Florida-licensed respiratory therapist from approximately 2000 to 2012. R.W. met Dr. McKenzie sometime between 2005 and 2006 when both of them were employed at Gulf Coast Medical Center. Dr. McKenzie and R.W. often worked together. While R.W. considered Dr. McKenzie to be a friend, they did not spend time together outside the hospital. Since his first marriage ended in 1993, R.W. had been taking Ativan in order to alleviate anxiety resulting from his divorce. Ativan is the brand name for Lorazepam and is prescribed for anxiety. According to section 893.03(4), Lorazepam is a Schedule IV controlled substance. Approximately one year after meeting Dr. McKenzie, R.W. inquired about becoming Dr. McKenzie’s patient. R.W. had become heavily dependent on Ativan and admits that he was engaging in “doctor shopping” in order to obtain more Ativan prescriptions. Other doctors had declined to treat R.W. because they believed he was taking too much Ativan: Q: So my question was about Dr. McKenzie and how did you begin treating as a patient with Dr. McKenzie. A: I was taking large amounts of Ativan. After that many years, you build up a tolerance to it. I [did] what was called doctor shopping. I had asked a couple of other physicians if they would follow me for my Ativan. Because generally I am healthy. And I had become dependent on it and was taking pretty large amounts of it and approached him about that, if he would prescribe it for me. Q: Did the other physicians you had asked to follow you begin following you and providing you with Ativan? A: No. Q: Why not? A: They said I was taking an incredibly large dose of it. They didn’t think I should be on that much. Q: Did they offer to take you as a patient and prescribe you alternatives? A: No. Q: They wouldn’t follow you altogether? A: They wouldn’t follow me altogether. They wanted to know who had been prescribing me that much. I guess it was because I wasn’t getting the answer I was wanting, I just didn’t pursue it any further. Q: So what did you do to get it after that? A: I approached Dr. McKenzie. Q: Was Dr. McKenzie aware that any other practitioners wouldn’t give it to you? A: I don’t know. I don’t believe I made that – I don’t know. Q: Do you recall how you approached Dr. McKenzie about the Ativan? A: Yeah. We were at the hospital. I approached him. I said, look, I am on Ativan. Explained the reason I was on it. I am on large doses of it. I need someone to follow me for this, is that something you could do. The first documented treatment occurred on November 2, 2007, when R.W. presented at Bay Clinic. A patient intake form indicates that R.W. placed notations on the form indicating that he was suffering from “anxiety/stress” and “problems with sleep.” A follow-up note dated November 20, 2007, lists Ativan as R.W.’s current medication and states that he will continue with Ativan. The note records the following: The patient follows up today. He is complaining of chest pain. He states that he has had chest pain in the center of his chest which radiated into both arms for about 15 minutes. He has had no further episodes of this. The patient had a normal stress test last year. We will try to obtain the results. The patient does have a smoking history. Today we did an EKG which showed no significant abnormalities. The patient states that he has been under a lot of stress. He continues to take his Ativan. The patient is an avid kick boxer[5/] and exercises often. Lab work was obtained. The patient knows to seek immediate medical attention for any worsening of his condition. The next documented treatment occurred on August 29, 2008, at Bay Clinic. The medical record reports the following: The patient follows up today. States that he has had no further chest pain. The patient does have significant anxiety. The patient has been on Ativan for several years. Risks, benefits, and alternatives [to] Ativan were explained to patient and patient voiced understanding. The patient does not want to decrease the Ativan. Does not want to change the Ativan. The patient denies suicidal or homicidal ideation. The patient jogs several miles each day. The patient exercises. The patient is a respiratory therapist, and I have contact with [the] patient every day. The patient is compliant with his medications. Does use it at the same pharmacy. The patient is under a narcotic contract here. If the patient violates his contract[6/], the patient knows that he will be discharged immediately. The patient knows to seek immediate medical attention for any worsening condition. The medical record notes that Dr. McKenzie will continue R.W. on Ativan. On January 24, 2009, R.W. was injured in an automobile accident. Another vehicle traveling 40 mph rammed into the back of R.W.’s Corvette. According to R.W., the other vehicle was traveling [f]ast enough to knock me from a red light. I was at a red light. I was in a Corvette. Fast enough to fold the tail end of my Corvette under and knock me across the intersection to the railroad tracks. Pretty hard. When asked if the accident was “significant,” R.W. responded by testifying that his car had been “totaled.” On February 9, 2009, R.W. received a prescription from Bay Clinic for Lortab, but no refills were authorized. On April 3, 2009, R.W. received a second prescription from Bay Clinic for Lortab. Again, no refills were authorized. The next documented treatment occurred at Bay Clinic on May 1, 2009. R.W. presented with anxiety and some depression. Dr. McKenzie discussed R.W. treating with a psychiatrist and prescribing Luvox, an antidepressant. This record notes that R.W. was still experiencing pain from the motor vehicle accident and that Dr. McKenzie “will try NSAIDs.” The next documented treatment occurred on July 23, 2009. With regard to R.W.’s anxiety, Dr. McKenzie wanted R.W. to see a psychiatrist, but R.W. refused. Dr. McKenzie noted in the medical record that he was going to begin decreasing R.W.’s Ativan dosage and replacing it with a short-acting benzodiazepine. Dr. McKenzie explained that he wanted to wean R.W. off of Ativan because: He had been on Ativan, as he testified, for 25 years before I met him. And the goal was to try to get him off the Ativan. And so, we were going to change him from a long- acting benzodiazepine Ativan to a short- acting one, Xanax. And so what you try to do is wean his Ativan down and then wean him to the short-acting, and it’s easier for people to get off the short-acting. But, somebody that’s been on benzodiazepines or like Ativan for 25 years, it does the same thing to your brain that alcohol does. And so abruptly withdrawing benzodiazepines can put people in DT’s, delirium tremens and with a 25 percent mortality, being that one in four people could die if you just took somebody off those medications. Given R.W.’s 25-year use of Ativan, slowly weaning R.W. from Ativan and to a less harmful anxiety drug was certainly a reasonable goal. The medical record indicates that R.W. was still experiencing back pain from the motor vehicle accident and had “failed NSAIDs.” The record notes that Dr. McKenzie and R.W. discussed obtaining x-rays. At that time, Dr. McKenzie began prescribing at least 90 Lortab pills per month to R.W. The next documented treatment occurred on November 20, 2009. R.W. was continuing to take Lortab for chronic back pain, and Dr. McKenzie was still in the process of weaning R.W. from Ativan. This record notes that R.W. refused a psychiatric consult. In February of 2010, Dr. McKenzie increased the Lortab prescription from 90 to 120 pills a month. The next documented treatment occurred on March 10, 2010. R.W. was still experiencing chronic back pain and anxiety. Dr. McKenzie noted that R.W. needed an MRI and consultations with an orthopedist and a pain management specialist. There is a notation in the record indicating that R.W. needed x-rays. However, R.W. reported that he needed to “check his funds” before obtaining the x-rays. In addition, there is a notation that Dr. McKenzie “will stop Lortab soon.” The next documented treatment occurred on August 12, 2010. R.W. was still experiencing chronic back pain, and Dr. McKenzie wanted R.W. to consult with an orthopedist and a pain management specialist. R.W. was aware that Dr. McKenzie wanted MRIs taken. R.W. was still experiencing anxiety, but the medical record notes that Dr. McKenzie was only going to prescribe one more refill of his medication. Dr. McKenzie noted on the record that R.W. stated, “I will get you. This is bullshit.” R.W. testified that his faith has enabled him to stop taking any medication other than BC headache powder. There is no dispute that Dr. McKenzie did not require an office visit from R.W. each time he wrote a prescription. With regard to whether that practice was appropriate, Dr. McKenzie testified as follows: Ideally we did but, like I said, sometimes patients would come in and pick up a prescription. And it’s kind of the rule that they have one each time but, like I said, that’s sometimes rules can’t be ideal. I mean, if you know the patient, and you know what the issues are, I don’t think there was any law or statute that said they need to be seen every single time. With regard to whether Dr. McKenzie’s treatment of R.W. fell below the standard of care, Dr. Calimano explained that a physician should begin treating a patient complaining of back pain by taking the patient’s history and performing a physical exam. The physical exam would be followed by imaging studies such as an MRI. If there is nothing pressuring the patient’s spine, then treatment options include physical therapy and NSAIDs. If the patient’s pain is very severe, then the physician could prescribe narcotics for a short period of time. If the patient’s condition does not improve, then the physician would refer the patient to the appropriate specialists, such as ones dealing with the spine and pain management. With regard to R.W.’s anxiety, Dr. Calimano stated that he would have attempted to refer R.W. to a psychiatrist. Dr. Calimano was of the opinion that Dr. McKenzie’s medical records do not justify the amount of Lortab and Ativan prescribed to R.W. However, his testimony did not sufficiently address the notations regarding R.W.’s pain from the violent motor vehicle accident. His opinion appeared to focus on the notations regarding chest pain. With regard to the Xanax and Lortab Dr. McKenzie prescribed to R.W. between November 20, 2009, and August 12, 2010, Dr. Goldstein testified as follows: Q: Anything about the dosing or the frequency for the Xanax prescriptions that looks remarkable to you? A: Xanax, one milligram. You know, it can be given up to four milligrams a day. So one milligram [four times a day] is on the higher end, but it’s not above the prescribing recommendations. Lortab is being given continuously. Patient has continuous pain. And it’s documented that the doctor wanted to send this patient to a pain specialist, to an ortho doctor and to rehab. So there is a lot of documented pain medicine there. Again, the only thing I mention is there might have been better documentation as to why he needed to continue it. But there is nothing remarkable about the dosages. Q: So, Dr. Goldstein, based upon all the medical records that we’ve been through regarding R.W. and the medication administration record on page 39, could you offer an opinion to the Court as to whether or not you perceive that Dr. McKenzie’s treatment or prescribing of R.W. during the time period at issue to be beneath the acceptable standard of care? A: The fact that the patient was referred to a psychiatrist. The fact that Xanax was given and it was documented on that last note we mentioned, that the patient was not suicidal, which is important if you are prescribing that. The fact that the patient was referred to an orthopedic doctor, a rehab doctor and a pain specialist, I believe it was within the standard of care. I don’t think the documentation is great, but I can’t see anything that says this is beneath the standard of care. The Department takes Dr. McKenzie to task for not doing more to address R.W.’s anxiety, such as recommending behavior modifications and/or psychotherapy. The Department also takes issue with Dr. McKenzie’s not doing more to treat R.W.’s chronic back pain. However, the medical records indicate that Dr. McKenzie attempted several times to have R.W. treat with a psychiatrist, but R.W. refused. It appears from the medical records that R.W. was not compliant with Dr. McKenzie’s request for x-rays. Dr. McKenzie did not offer a reason why he maintained R.W. as a patient when R.W. would not obtain the recommended consultations and tests. But, Dr. McKenzie noted during his testimony regarding A.W. that he gives more leeway to medical professionals when it comes to obtaining recommended consultations. Given R.W.’s refusal to pursue the recommended consultations and tests, it probably would have been appropriate for Dr. McKenzie to have ended the prescriptions much sooner. Nevertheless, the greater weight of the evidence demonstrates that R.W. was a difficult patient who was resistant to obtaining the consultations desired by Dr. McKenzie. If he had been more compliant in obtaining those consultations, then Dr. McKenzie may have been more successful in treating R.W.’s anxiety and chronic pain. In sum, the evidence does not clearly and convincingly demonstrate that Dr. McKenzie’s treatment of R.W. fell below the standard of care given the circumstances associated with R.W. Did Dr. McKenzie Falsify R.W.’s Medical Records and Use Him to Illegally Obtain Lortab? R.W. testified that any pain from his motor vehicle accident only lasted two days, and he denies experiencing any chronic/long-term pain following the accident. R.W. testified that Dr. McKenzie prescribed Lortab and asked him to transfer the medicine to him. R.W. testified that he returned pain medication to Dr. McKenzie on a monthly basis over the course of approximately one year. The transactions would occur at the hospital or in parking lots at a Wal-Mart or a service station. R.W. testified that he would typically give 90 to 100 pills to Dr. McKenzie and retain 10 to 20 for his own use. R.W. denies being addicted to Lortab but acknowledges that he was a recreational user and that he “abused” Lortab and Percocet. As for why Dr. McKenzie engaged in this practice, R.W. testified that: As in my deposition, Dr. McKenzie had a corneal abrasion. And I understand, maybe I don’t understand, that physicians, I guess, it’s looked down upon if they are taking medications. So he had a corneal abrasion and asked if I would get him a prescription filled for the pain for his corneal abrasion. When asked why he agreed to divert drugs to Dr. McKenzie, R.W. stated that, “I don’t have a good answer for that. Stupidity I would assume.” As for why he stopped diverting drugs to Dr. McKenzie, R.W. stated that, “Again, when it stopped, my life, it was falling apart. It was a mess.” When asked why he stopped treating with Dr. McKenzie, R.W. testified as follows. A: I don’t even recall. My life was blowing up there. It was a total mess there near the end of my tenure with Gulf Coast. I mean, it was a train wreck. Q: What does that mean? A: I was taking a lot of Ativan. I was taking Lortab. I was drinking heavily. It was a wreck. Q: So the question is why did you stop treating with Dr. McKenzie? A: I left employ – you know, I don’t recall other than we just parted ways and I went my way and that is that. I don’t recall. Q: Did Dr. McKenzie ever have any discussion with you about terminating you as a patient of his? A: He may have. I don’t recall. I am not going to say he didn’t. The Department argues that Dr. McKenzie fabricated the medical records discussed in the previous section because R.W. claims that he only received treatment from Dr. McKenzie at The Lung and Sleep Center on two occasions. Moreover, R.W. claims that he never received treatment from Dr. McKenzie at Bay Clinic.7/ As for why he testified against Dr. McKenzie, R.W. stated the following: A: Well, first of all, I was subpoenaed here. You answer a subpoena. This has been going on for many, many years. Too many for me. I don’t want to be here today. And that is just a fact. Several years ago, I think it was during a – I don’t think, I know. During a fit of anger, withdrawals, all the above, I contacted your department and asked that this be investigated. And I believe the lady’s name was [] Ms. McBride, [and she] came to my residence in Mexico Beach and said that she was going to follow- up and I never heard back. When I heard from you, I was floored that it had taken that long. I figured, well, maybe my – it was a – maybe my suspicions were unfounded when I didn’t hear anything back from her. Q: What do you mean maybe your suspicions were unfounded? A: Maybe I was [the] one off. He was – maybe he was helping me out. Maybe we were helping each other out. I don’t really know. All I know is that I had brought it to your office’s attention a long time ago and nothing was ever done about it. Q: Did anyone ever offer you anything for your testimony today? A: No. Other than the $8.42 check I got from the State for gas I believe. It was delivered to me with my subpoena. Q: Are you referring to [the] witness fee? A: Yes. That I tore up. As was the case with A.W., Dr. McKenzie argues that Dr. Ortega somehow influenced or coerced R.W. into falsely testifying that Dr. McKenzie received Lortab from R.W. Dr. McKenzie testified that Dr. Ortega supervised R.W. at Bay Clinic when R.W. was employed as a respiratory therapist. Therefore, if R.W. held a grudge against Dr. McKenzie for cutting off his Ativan supply as indicated in the August 12, 2010, medical record, it is certainly possible that Dr. Ortega could have learned of that circumstance and sought to take advantage of it. As noted above, the undersigned has doubts about Dr. McKenzie’s credibility. However, R.W.’s statements about engaging in “doctor shopping” for years in order to obtain Ativan, abusing Lortab, and being a “train wreck” when he stopped treating with Dr. McKenzie cast substantial doubt on R.W.’s credibility. Indeed, it appears that R.W.’s difficulties may be the reason why he is no longer a respiratory therapist. Moreover, given R.W.’s own description of the severity of his car accident, it is surprising that he would testify that he experienced little or no pain afterwards. That is especially true given the fact that his car was struck from behind and totaled. Finally, given R.W.’s longstanding dependency on Ativan, R.W. certainly had a motive for filing a false report with the Department after Dr. McKenzie cut off his Ativan supply. In sum, the evidence taken as a whole does not clearly and convincingly demonstrate that Dr. McKenzie prescribed Lortab to R.W. outside the course of his professional practice. Was Dr. McKenzie’s Treatment of K.D. Below the Standard of Care? K.D. began working at Pulmonary Associates in 2007 and was employed there at the same time that Dr. McKenzie worked there. K.D. considered Dr. McKenzie to be her primary care physician, and she treated with him from some point in 2006 at least until August of 2009. K.D. treated with Dr. McKenzie at Gulf Coast Medical Center, Bay Medical Center, Pulmonary Associates, and Bay Clinic. However, K.D. usually treated with Dr. McKenzie at Gulf Coast Medical Center. As her primary care physician, Dr. McKenzie was typically K.D.’s attending physician when she was admitted to either Bay Medical Center or Gulf Coast Medical Center. K.D. primary health problem was intractable pain originating from her hips and one of her knees. K.D.’s knee pain resulted from two knee surgeries and appears to have been aggravated by a car accident. During the course of her treatment with Dr. McKenzie, K.D. was often admitted into hospitals for treatment of her pain. A medical record from Bay Medical Center dated January 22, 2008, describes K.D.’s general condition during the treatment with Dr. McKenzie: This patient is a 37-year-old female who has had long standing problems with chronic pain, particularly involving the right lower extremity. Her history is extensive in that she has been previously diagnosed with torn meniscus in the right knee. She has undergone 2 previous orthoscopic procedures. Also, she has been treated for chronic pes anserinus bursitis. She has had a plethora of complaints over recent years including chronic pain syndrome, migraine headaches, asthma, fibromyalgia, anxiety, depression, and recurrent pain in the right knee and occasionally in the right hip. She was in a motor vehicle accident about a year or so ago, which resulted in no significant abnormalities on workup, but aggravated her chronic pain. She also had a fall and an MRI of the right hip was carried out at the end of 2006, and a partial tear of the gluteus medius was noted. All of her MRIs of the knee demonstrate minimal degenerative change, and previous meniscal pathology. * * * She has been diagnosed previously with chronic pain syndrome and has been utilizing up to 12 mg a day of oral Dilaudid for quite a few months. This is on the basis of chronic migraine headaches and fibromyalgia. From January 2007 through July 22, 2009, Dr. McKenzie prescribed Lortab and Dilaudid on a monthly basis for K.D.’s pain. Dilaudid is a brand name for hydromorphone. Dilaudid is an opioid pain medication that is four times stronger than Lortab. Under section 893.03(2), hydromorphone is a Schedule II controlled substance. For several months in 2008, K.D. was receiving a 120-pill supply of Lortab intended to last 15 days and a 120-pill supply of Dilaudid intended to last 10 days. He also prescribed Xanax for anxiety and Ambien for sleep. The Department takes issue with Dr. McKenzie prescribing two short-acting narcotics, Lortab and Dilaudid, to K.D. between January 2007 and July 22, 2009, without medical records supporting those prescriptions. According to the Department, there is no justified medical purpose for prescribing Lortab and Dilaudid together. Dr. Calimano testified as follows: I’m a pulmonologist, so anything that depress[es] or repress[es] your respiratory drive is always a concern with me. Plus they are all habit forming, so I will be concerned. Going back to the use of narcotics, sometimes you can use a combination of narcotics. But when you are using narcotics on a chronic basis for, like, terminally ill patients and so on, the combination will be you do a long-term or long acting narcotic. You know, there are some preparations, Morphine, and so on and so forth that will last 12 hours. And then you use preparations for breakthrough pain, like short acting ones and so on. But if you have two narcotics that are both, like, will give you the hit quickly, but will disappear three or four hours later, I am not sure, you know, what the advantage would be. In contrast, Dr. Goldstein testified that prescribing two short-acting narcotics is appropriate in order to treat “breakthrough pain:” Q: Is Dilaudid a short acting narcotic? A: Yes. It’s considered an immediate release with a half life of two to three hours. Q: Is Lortab a short acting narcotic? A: Yes. Two to three hours. The answer is yes. Q: In your practice, have you ever prescribed a combination of both Lortab and Dilaudid? A: Yes. But never to be used, as I said in my deposition, at the exact same time. You could use one and another for breakthrough. In other words, you wouldn’t say to the patient take a Dilaudid and a Lortab at the same time for pain. You would say take a Dilaudid on the scheduled basis. And then you may use Lortab for breakthrough. Lortab is not as strong as Dilaudid. And it would be better to use Lortab for breakthrough than Dilaudid for breakthrough. Q: Why would you prescribe a patient two short acting narcotics as opposed to one long acting narcotic such as Fentanyl or Morphine with a short acting narcotic for breakthrough pain? A: Yes. As a matter of fact, the recommendations for pain control, and you can check it [is] up-to-date, are to reserve the long acting pain medications like Oxycontin and Fentanyl for people who have severe chronic pain like cancer. And that should not be the first thing. That should be the last thing you should do. In other words, we try to get away with short acting and try to stay away from the long acting ones. In other words, the long acting one is progression. That’s something you go to next, not before. If the long acting pain medications, for patients, for example, who have cancer and are on hospice, those are the ones we give Fentanyl patches to or Oxycontin. And that’s currently what a lot of the pain management doctors are doing with severe pain. The short acting ones are not as effective. Dr. McKenzie explained why he prescribed two short- acting narcotics as follows: Well, I mean, that your – the goal for the patient is to get them off narcotics. And just like Dr. Goldstein testified that, you know, once you put people on long-acting narcotics, they’re kind of stuck there. And so, you know, what you – cancer patients and terminally ill patients, you put them on long-acting, you know, morphine, long-acting Oxycontin and then for the breakthrough pain, you add a short-acting [narcotic]. Well, that’s not the goal with [K.D.]. The goal is to get her off these medications. And so the medications that I had her on were two short-acting and, yes, you have to use caution with two short acting medications but, again, the goal was to get her off the medication, not advance her to a higher level where she’s – it’s a lot harder to get her off. Once you get somebody on a long-acting narcotic, pain medications to wean them off and that’s the perpetual state that she was in, trying to get her off the narcotics, not keep going up. The Department also takes issue with the lack of medical records supporting the prescriptions written between February 26, 2008, and July 22, 2009. According to the Department, Dr. McKenzie should have had a treatment plan with objectives to assess the success of K.D.’s treatment. In addition, the Department asserts that Dr. McKenzie should have documented recommendations for referrals to other physicians. For the vast majority of the time between February 26, 2008, and July 22, 2009, Dr. McKenzie’s non- hospital practice was based at Bay Clinic, and Dr. McKenzie testified that K.D. had office visits with him in 2008 at Bay Clinic. Therefore, it is possible that Dr. McKenzie treated K.D. at Bay Clinic between February 26, 2008, and July 22, 2009, and that the lack of medical records is attributable to him retaining no ownership over the corresponding records. The Department has presented no persuasive evidence conclusively establishing that Dr. McKenzie owned or should have owned the medical records associated with the patients he treated at Bay Clinic. While K.D. testified that she only visited Bay Clinic on two occasions, Christen Tubbs, a former medical assistant at Bay Clinic, testified that K.D. visited Bay Clinic frequently and that there were many medical records pertaining to K.D. at Bay Clinic.8/ For reasons discussed in detail below, Ms. Tubbs’ testimony on this point was more credible than K.D.’s. As a result, medical records pertaining to K.D.’s treatment at Bay Clinic were created but unavailable for the final hearing. Without those medical records, it is impossible to evaluate whether Dr. McKenzie practiced below the standard of care with regard to not having a treatment plan with objectives to assess the success of K.D.’s treatment. The lack of medical records makes it extremely difficult to evaluate whether Dr. McKenzie practiced below the standard of care by prescribing Lortab and Dilaudid to K.D. in the quantities at issue. The Department presented no sufficiently persuasive evidence demonstrating that the quantities of Lortab and Dilaudid prescribed to K.D. were per se below the standard of care given the circumstances associated with K.D.’s treatment.9/ In sum, the Department has not presented clear and convincing evidence that Dr. McKenzie’s treatment of K.D. fell below the standard of care. Did Dr. McKenzie Use K.D. to Illegally Obtain Lortab? Rather than ingesting the Lortab prescribed for her, K.D. testified that she would fill the Lortab prescriptions and give the pills to Dr. McKenzie in a mall parking lot or her home. According to K.D., Dr. McKenzie would usually give her $40 to $100 for the Lortab. K.D. testified that she would not have taken Lortab because she is allergic to it. K.D. explained that she had her tonsils removed at 16 and was given hydrocodone, an ingredient in Lortab. The hydrocodone caused her to have an itchy, swollen throat. Medical records from Bay Medical Center and Gulf Coast Medical Center note that K.D. was allergic to Lortab. Dr. McKenzie pointed out that he authored a July 16, 2007, medical record, which stated K.D. was allergic to Lortab. However, that same record notes that K.D. “states it makes her nose itch, but has no significant abnormal affect.” Dr. McKenzie testified as follows: And so that, as far as I’m concerned, that she was not, you know, she was not allergic to Lortab. Plus, she had over 80 different independent medical exams because she had been in the hospital 20, 30 different times where she didn’t tell physicians, at that time, or nurses, that she was allergic to Lortab. So that’s not on there. So she would pick and choose who she would tell she was allergic to Lortab and who she wasn’t. And you would say, well, is that a red flag, well, I didn’t know that. And so I don’t go back and look. She was my patient. She told me she wasn’t allergic to Lortab. That’s what I document. And so I would prescribe Lortab for her. Even in the hospital, they did a – and it’s in the records, we can find the Bates number, they got tired of her saying Lortab or not, and there’s a whole section where they went through and viewed every single allergy she had, and they deemed her not to be allergic to Lortab. So, I don’t see how her telling one physician that she’s allergic to Lortab and one physician that she’s not, that that’s – that’s a red flag or that’s anything that I would even notice if I was to go back and look at these medical records. There are aspects of K.D.’s testimony that cause the undersigned to consider Dr. McKenzie’s testimony to be more credible. Rather than testifying during the final hearing, K.D. was deposed on August 9, 2017, at the Gadsden Correctional Facility where she was serving a 36-month sentence for recruiting patients to obtain prescriptions by fraud. K.D. agreed that the aforementioned offense was a “felony conviction.” K.D.’s own testimony suggested that she had a motive to provide false testimony against Dr. McKenzie. Specifically, K.D. testified that she became addicted to pain medication and asserts Dr. McKenzie knew of her addiction. K.D. stated that pain medication “destroyed” her life and was the reason why she was in prison. While K.D. did not directly state that she blamed Dr. McKenzie for her difficulties, one could easily infer from her testimony that she holds a grudge against him. As is the case with A.W. and R.W., there is a connection between K.D. and Dr. Ortega. K.D. testified that she was forced to resign from Pulmonary Associates because she was suspected of embezzlement. Dr. Ortega brought charges against her, but those charges were dismissed after K.D.’s father paid restitution. While K.D. denies that Dr. Ortega offered to drop the charges against her if she gave testimony against Dr. McKenzie, this circumstance must be taken into account when evaluating K.D.’s credibility. The Department has failed to present clear and convincing evidence that Dr. McKenzie prescribed Lortab to K.D. outside the course of his professional practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 1st day of May, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2018.
The Issue Whether disciplinary action should be taken against Respondent's license to practice medicine based on allegations that Respondent violated the provisions of Subsections 458.331(1)(m) and (t), Florida Statutes, arising from his treatment and care of Patient R.E., as alleged in the Administrative Complaint in this proceeding.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0057927. Respondent practices primary care and internal medicine. He is board-certified in internal medicine, and has never had disciplinary action taken against his license. Patient R.E., a male who was 78 years old in January 2001, had a history of diabetes, hypertension, heavy smoking, high blood pressure, and circulatory problems. Respondent had first treated Patient R.E. on August 28, 2000, while covering for the physician with whom Respondent shared a practice. Patient R.E. had been a patient of the practice for several years. In August or September 2000, Respondent purchased the other physician's portion of the practice. The other physician remained as an employee of the practice until January 2001, when Respondent assumed the total care of Patient R.E. On January 16, 2001, Patient R.E. presented to Respondent with a complaint of redness and swelling in the right ankle that made walking difficult. Patient R.E. did not have a regularly scheduled office visit, but Respondent "squeezed him in" after Patient R.E. telephoned Respondent's office complaining of a great deal of pain. On January 16, 2001, the complete patient chart from the previous physician was available to Respondent and became part of Respondent's office chart for Patient R.E. Patient R.E.'s chart contained a "problem list" reflecting diagnoses made throughout his treatment at that office. A problem list assists the physician in tracking on- going problems with a patient. Patient R.E.'s problem list included a diagnosis of "PVD," or peripheral vascular disease. Peripheral vascular disease describes reduced blood flow to the extremities. It can be caused by a narrowing of large blood vessels, and exacerbated by diabetes-related small vessel disease. Prior to Respondent's involvement with his treatment, Patient R.E. had been evaluated for peripheral vascular disease, and was referred to a vascular specialist who recommended revascularization by way of bypass surgery. However, Patient R.E. declined the referral and elected to undergo chelation therapy instead. Mainstream physicians do not consider chelation an effective therapy for peripheral vascular disease, though Patient R.E. believed that it relieved his symptoms. After the November 11, 1999, physical exam, Patient R.E. was seen by the previous physician for three-month follow- ups on February 24, 2000, and June 5, 2000, with no particular complaints. As noted above, Respondent first saw Patient R.E. on August 28, 2000. This visit was for shortness of breath, diagnosed as bronchitis and treated with antibiotics and inhalants. Patient R.E. returned to see the previous physician on September 11, 2000, with chest congestion and coughing. This was his last office visit prior to January 16, 2001. The office visit of January 16, 2001, was a complaint- driven visit, meaning that Respondent's exam addressed Patient R.E.'s specific complaint. Such an exam is appropriate where the physician has a chart with a record of a complete history and physical exam. Respondent checked Patient R.E.'s blood pressure and listened to his heart and lungs, which were clear. Respondent then examined Patient R.E.'s right ankle, finding erythema (redness) and tenderness to palpation. Respondent did not perform an examination to address peripheral vascular disease, because he did not consider peripheral vascular disease as the presenting problem and was already aware that peripheral vascular disease was present in this patient. Respondent recorded a diagnosis of "? gout vs. cellulitis." Gout is an inflammation of the joints caused by deposition of uric acid crystals in the joint fluid. Cellulitis is a term given to an infection of the tissue, typically skin and underlying soft tissue. Gout and cellulitis are symptomatically similar conditions, in that both typically present with pain, stiffness, swelling, and redness of the affected area. Respondent prescribed Levaquin, an antibiotic, and Indocin, a medication for gout with some pain-relieving properties. Respondent told Patient R.E. to follow up in ten days, and gave Patient R.E. a quantity of medication for ten days' duration. Respondent's office chart did not clearly indicate instructions for the frequency or duration of the Levaquin prescription. The chart indicated that the Indocin was to be taken three times per day, but did not indicate a duration for taking the medication. On January 17, 2001, Patient R.E. telephoned Respondent's office to request a walker. On January 18, 2001, Respondent ordered a walker through a home health care provider and had it delivered to the patient's home. Respondent heard nothing from Patient R.E. on January 19, 2001. On Saturday, January 20, 2001, Respondent's office was closed. That evening, he received a telephone call from Patient R.E.'s wife, who told him that her husband was in a lot of pain. Respondent told the wife that Patient R.E. had not been on the prescribed medications long enough to cure his condition, and that if his pain became worse she should take him to the hospital emergency room. Shortly after 8:00 p.m., on January 20, 2001, Patient R.E. presented at the emergency room of Oak Hill Hospital complaining of pain and tenderness in his right ankle. There was an intact red blister over the ankle. The emergency room physician performed an examination, ordered blood tests, and confirmed the diagnosis of cellulitis. Patient R.E. was given injections of insulin and of Rocephin, an antibiotic. The emergency room physician instructed Patient R.E. to continue taking the Levaquin, and to stop taking the Indocin for the suspected gout. Respondent consulted with the emergency room physician by telephone. At Respondent's suggestion, the emergency room physician also prescribed Flagyl, another antibiotic, to ensure coverage against all potential anaerobes or aerobes that could cause cellulitis. The emergency room physician told Patient R.E. to follow up with Respondent on Monday, January 22, 2001. The emergency department of Oak Hill Hospital provided Patient R.E. with written discharge instructions for his cellulitis, including the following information: With antibiotic treatment, the size of the red area will gradually shrink in size until the skin returns to normal. This will take 7-10 days. The red area should never increase in size once the antibiotic medicine has been started. FOLLOW UP with your doctor or this facility as directed. If you were not given a specific follow-up appointment, look at the infected area in two days for the warning signs listed below. RETURN PROMPTLY or contact your doctor if any of the following occur: Increasing area of redness Increasing swelling, or pain Appearance of pus or drainage Fever over 100.5 orally Patient R.E.'s wife telephoned Respondent's office on Tuesday, January 23, 2001, to schedule a follow-up visit. The office visit was scheduled for January 26, 2001. On the scheduled date, Respondent examined Patient R.E. and found that his ankle had worsened and begun to develop necrosis. Respondent referred Patient R.E. to Dr. Malik Piduru, a vascular surgeon, for debridement, instructed him to continue taking the prescribed antibiotics, and to soak his foot in soapy water, which would help to debride the necrotic tissue in the interim. On February 1, 2001, Dr. Piduru examined Patient R.E. and noted a blue-black discoloration on the right lateral aspect of the lower right leg. The physical examination notes stated: "On the right lateral aspect of the leg approximately 6 x 4 cm necrotic, gangrenous patch of skin which appeared to be very fluctuant indicating underlying either abscess or hematoma of necrosis. The foot itself does not appear to be acutely ischemic and appears to be pink and viable." Dr. Piduru recommended hospitalization, excision of the necrotic area, and evaluation for further peripheral vascular disease correction. He also discussed the option of amputation if the leg did not heal. The surgeon noted that Patient R.E. understood the options presented to him, and the risks involved, but that Patient R.E. preferred to pursue another course of chelation therapy rather than undergo the recommended bypass surgery to correct the PVD. On February 5, 2001, Patient R.E. was admitted to the hospital for debridement of the right ankle. While in the hospital, Patient R.E. underwent an angiogram that revealed multiple occlusions of the blood vessels of the right leg. Dr. Piduru recommended bypass surgery, though he estimated the chances of success at around 30 percent. After discussion of all the options, Patient R.E. elected to have his right lower leg amputated. Dr. Piduru agreed that this was a reasonable decision in light of all the known factors. Patient R.E.'s right leg was amputated below the knee on February 12, 2001. In March 2001, Patient R.E. suffered an infection of the stump requiring additional hospitalization for debridement. His health continued to decline due to his multiple medical problems, including pain and peripheral vascular disease. On April 14, 2001, Patient R.E. was again admitted to Oak Hill Hospital with cellulitis of the left foot and the right stump. He declined any invasive procedures to restore circulation to his left leg. Patient R.E. was discharged to a hospice on April 20 and died on April 23, 2001. Dr. Patrick Hennessey, Petitioner's expert, testified that he reviewed all of the pertinent medical records concerning the treatment and care provided by Respondent to Patient R.E. and that based upon his review of these records and based upon his education, training, and experience, it was his opinion to within a reasonable degree of medical probability that Respondent deviated from the accepted standard of care in his treatment and care of Patient R.E., which constituted a violation of Subsection 458.331(1)(t), Florida Statutes. Dr. Hennessey also testified that in his opinion, Respondent violated Subsection 458.331(1)(m), Florida Statutes, in that he failed to compile appropriate medical records reflecting the treatment and care provided to Patient R.E. Dr. Hennessey's opinion as to the standard of care was based on several criticisms of the examination conducted on January 16, 2001. First, Dr. Hennessey opined that Respondent should have scheduled a follow-up appointment within three days to evaluate Patient R.E.'s clinical response to the prescribed medicines. The quick follow-up was indicated because of Patient R.E.'s advanced age, and because Patient R.E.'s diabetes and peripheral vascular disease could cause the cellulitis to progress rapidly. Dr. Hennessey also noted that peripheral vascular disease can reduce the effectiveness of antibiotics, further indication of the need for a prompt follow-up examination. Dr. Hennessey also believed that a three-day follow-up was necessary to definitively rule out the differential diagnosis of gout, if Respondent seriously believed gout was a possibility. Dr. Hennessey testified that Indocin should have provided relief from gout within three days, and that Levaquin should have stopped any increase in swelling, pain, or size of the affected area if Patient R.E. was suffering from cellulitis. In Dr. Hennessey's opinion, a three-day follow-up appointment would have allowed Respondent to determine whether Patient R.E. was obtaining relief and, if not, to try a different antibiotic regime or pursue other avenues of treatment. Dr. Hennessey also believed that Respondent should have tested Patient R.E.'s blood sugar level on January 16, 2001. Dr. Hennessey testified that diabetes has an impact on a person's ability to fight infection, and that the right antibiotic would be inadequate if the patient had uncontrolled diabetes. Thus, Respondent should have assessed Patient R.E.'s current and recent diabetic controls. Finally, Dr. Hennessey criticized Respondent for failing to give Patient R.E. adequate instructions for monitoring his own progress after the January 16, 2001, appointment. Dr. Hennessey testified that the instructions that the Oak Hill Hospital emergency room provided to Patient R.E. on January 20, 2001, set forth in full above, were precisely the kind of instructions Respondent should have given to Patient R.E. on January 16, 2001. Dr. Hennessey could not say whether the amputation of Patient R.E.'s right leg was inevitable, though he conceded it was likely to occur within a year or two even if his preferred course of treatment had been followed. He concluded that, on January 16, 2001, the correct alternative was to undertake an "aggressive evaluation" and to make the case to Patient R.E. that he should undergo surgical re-vascularization immediately, while the skin was still intact. Dr. Hennessey's "best guess" was that this course could have given Patient R.E. "probably fifty percent or better likelihood" of avoiding amputation, though he also conceded that "there's a lot of unknowns in there." Dr. Hennessey concluded that the time lost between January 16 and February 1, when Patient R.E. was seen by Dr. Piduru, the vascular surgeon, made a successful outcome much less likely. Respondent's expert, Dr. Kent Corral, testified that he reviewed all of the pertinent medical records concerning the treatment and care provided by Respondent to Patient R.E. and that based upon his review of these records and based upon his education, training, and experience, it was his opinion to within a reasonable degree of medical probability that Respondent did not deviate from the accepted standard of care in his treatment and care of Patient R.E. Dr. Corral also testified that in his opinion, Respondent did not violate Subsection 458.331(1)(m), Florida Statutes, by failing to compile appropriate medical records reflecting the treatment and care provided to Patient R.E. Dr. Corral testified that Respondent's examination of Patient R.E. was within the standard of care. The examination was complaint-driven, directed at the immediate presenting problem, a common and acceptable method employed by nearly all physicians in office practice. Dr. Corral testified that gout versus cellulitis is a very common differential diagnosis, especially in a patient with diabetes. Because there was inflammation of the ankle, peripheral vascular disease would fall very low on the list of possible diagnoses. Had Patient R.E. presented with a cold, necrotic foot, then peripheral vascular disease would have been more likely to be the presenting problem. Respondent knew that Patient R.E. had peripheral vascular disease, and it was apparent from the presenting symptoms that peripheral vascular disease was not the acute problem on January 16, 2001. Dr. Corral agreed that setting a three-day follow-up appointment would have met the standard of care. However, Dr. Corral disagreed that it was necessary to do so. He believed that Respondent reasonably elected not to schedule a three-day follow-up, but to follow up in ten days. Based on the information available on January 16, 2001, it was not unreasonable for Respondent to test the ten-day course of the prescribed antibiotics before scheduling a follow-up appointment. Dr. Corral testified that no laboratory tests were necessary to arrive at the differential diagnosis of gout versus cellulitis. He agreed that there was "potentially" some benefit to be derived from testing Patient R.E.'s blood sugar, but did not agree that Respondent's failure to do so amounted to practice below the standard of care. When Patient R.E.'s blood sugar level was checked in the emergency room on January 20, 2001, it was only slightly elevated. Dr. Corral also disagreed that Respondent failed to meet the standard of care in not giving Patient R.E. instructions on monitoring his own progress. Dr. Corral concluded that instructions would have made no difference. In his opinion, the antibiotic therapy was the only essential treatment to pursue on January 16, 2001. Dr. Corral believed that anything beyond the antibiotics would amount to "a hope and a prayer." In summary, Dr. Corral found the examination adequate and the diagnosis correct. He believed that the criticism of Respondent was due entirely to the poor outcome for Patient R.E., and that the poor outcome was not caused by anything Respondent did or did not do on January 16, 2001. In his own defense, Respondent testified that, prior to the January 16, 2001, appointment, he knew he was dealing with a very difficult patient who had a history of declining surgical intervention to resolve his circulatory problems. Respondent testified that his "first and foremost belief" was that Patient R.E. had cellulitis, and that the only other option, given the presenting symptoms, was an acute attack of gout. The potential for gout led him to prescribe Indocin as well as the antibiotics, because the Indocin would control the pain. Respondent noted that the emergency room physician confirmed his diagnosis of cellulitis on January 20, 2001. Respondent did not chart peripheral vascular disease on January 16, 2001, because that was not the presenting problem. Further, Respondent testified that Patient R.E.'s cellulitis was not necessarily related to peripheral vascular disease. Patient R.E. had several other problems, such as his heavy smoking and his diabetes, that could have generated cellulitis independently of peripheral vascular disease. Respondent disagreed with Dr. Hennessey's suggestion that "aggressive evaluation" and immediate surgery might have saved Patient R.E.'s foot, because it would not be prudent to undertake surgery until the cellulitis infection was cleaned up. Immediate surgery would have the potential of infecting the bypass grafts. On January 16, 2001, Patient R.E.'s foot was not gangrenous, and Respondent believed it essential to give Patient R.E. a reasonable trial of antibiotic therapy before sending him for surgical evaluation. Respondent's opinion on this issue was supported by Dr. Malik Piduru, the vascular surgeon who performed the amputation on Patient R.E.'s right leg. Dr. Piduru testified that in a patient with peripheral vascular disease and a diagnosis of cellulitis with no acute gangrenous changes or acute pain, the standard of care is to treat the infection first, then perform the re-vascularization. The weight of the evidence does not support an ultimate finding that Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient R.E. Dr. Hennessey's conclusion that a more "aggressive evaluation" might have improved the chances of saving Patient R.E.'s leg rests on the assumption that Patient R.E. would have agreed to the proposed surgery had it been recommended on January 16, 2001. Patient R.E. rejected bypass surgery on his left leg before he became Respondent's patient, rejected it again in February 2001, and rejected it a third time in April 2001 when his right leg was threatened by cellulitis. There is little reason to assume that his decision would have been different on January 16, 2001. In view of all the evidence, the expert testimony of Dr. Corral was at least as persuasive as that of Dr. Hennessey in regard to the standard of care and Respondent's actions in this matter. Dr. Hennessey believed that the standard of care required a more aggressive approach to Patient R.E.'s presentation from the outset. Dr. Corral agreed that Dr. Hennessey's approach to the case would have met the standard of care, but also concluded that Respondent's approach was unexceptionable. Further, Dr. Hennessey could state with no degree of confidence that his own approach would have changed the ultimate outcome for Patient R.E. Dr. Hennessey opined that Respondent should have taken a blood sugar level and have given Patient R.E. detailed instructions for self-monitoring similar to those he later received at Oak Hill Hospital. Dr. Corral agreed that a blood sugar level might have been helpful, but was not necessary to meet the standard of care given the presentation and differential diagnosis. Dr. Corral believed that the failure to provide instructions was de minimus at most. Given the facts presented, Dr. Corral's opinion on these issues was at least as persuasive as Dr. Hennessey's. The evidence did not support a finding that Respondent took lightly Patient R.E.'s condition, or failed to consider any of the many variables created by Patient R.E.'s complicated history in arriving at a therapeutic approach. Respondent correctly diagnosed Patient R.E.'s cellulitis, and reasonably decided to attempt a course of antibiotic treatment to heal the infection before pursuing surgical options. The evidence presented at the hearing failed to establish that Patient R.E.'s poor outcome could be fairly attributed to Respondent's treatment of Patient R.E. on January 16, 2001. The main evidence submitted in support of the contention that Respondent failed to keep adequate medical records was directly related to the standard of care claim. Dr. Hennessey conceded that Respondent's medical record was minimally sufficient to justify the treatment provided. His chief criticism of Respondent's records for the January 16, 2001, appointment focused on the lack of documentation to explain actions that Respondent did not take, i.e., set a three- day follow-up appointment, order laboratory tests, and provide detailed instructions to Patient R.E. Because it has been found that the standard of care did not require Respondent to take these actions, his medical records cannot be faulted for failure to explain why he did not take them. However, Dr. Hennessey rightly criticized the lack of examination detail noted in the records of the January 16, 2001, examination. It was established at the hearing that Respondent charted by exception, meaning that he noted only positive findings rather than every unremarkable detail of the examination. Dr. Hennessey noted that, while this method of charting is acceptable practice, it was not acceptable that Respondent provided no description of the size or location of the erythema or the extent of the swelling of the ankle. Such detail would be essential to a subsequent treating physician in determining whether Patient R.E.'s condition had worsened. Further, Respondent did not note the frequency or duration of the Levaquin prescription, or the duration of the Indocin prescription, though Respondent credibly testified that he gave Patient R.E. oral instructions as to both medications. Again, a subsequent treating physician would need to know the details of Patient R.E.'s current medications before undertaking treatment. Finally, Respondent's notes were in several places illegible. Petitioner did establish that Respondent's records failed to document the office notes in a completely legible manner. The detail in Respondent's records was sufficient to justify the course of treatment on January 16, 2001, but their illegibility and lack of detail made them of limited use to anyone other than Respondent in assessing Patient R.E. for subsequent treatment. Patient R.E. was not exposed to potential injury because Respondent was consistently available to consult with the other treating physicians, but this fact does not cure Respondent's failure to keep adequate, legible records.
Recommendation Based on all the evidence of record, it is RECOMMENDED that the Board of Medicine enter a final order holding that the evidence is not clear and convincing that Respondent has violated Subsections 458.331(1)(t), Florida Statutes, in his treatment of Patient R.E., and that the evidence is clear and convincing that Respondent has violated Section 458.331(1)(m), Florida Statutes, in his failure to keep appropriate written medical records regarding his treatment of Patient R.E. and that Respondent be reprimanded for that violation. DONE AND ENTERED this 17th day of July, 2003, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 17th day of July, 2003. COPIES FURNISHED: Bruce A. Campbell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher J. Schulte, Esquire Burton, Schulte, Weekley, Hoeler & Beytin, P.A. 100 South Ashley Drive, Suite 600 Tampa, Florida 33602 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The basic issue in this proceeding is whether Petitioner's application for certification as a respiratory therapy technician should be granted. More specifically, the issue is whether Jack Mallan, Jr., submitted false information on, or in support of his application and, if so, whether that is sufficient basis to deny his application. Despite confusion throughout the proceeding, the basis for Mr. Mallan's termination from employment at Florida Hospital was also at issue. This matter is addressed in more detail below.
Findings Of Fact Jack Mallan, Jr., submitted his application for certification as a respiratory therapy technician through endorsement in September 1985. His application stated that he was employed as a graduate therapist at Florida Hospital in Orlando, Florida, from 1980-1984. His response checked the answer "no", to question #6 on the form, "Have you ever been terminated, disciplined, or allowed to resign from an employment setting where you were employed to deliver respiratory care services?" [Petitioner's exhibit #4, Application]. Sometime later, apparently in the course of the Board of Medical Examiners' routine investigation, it was disclosed by Florida Hospital that Jack Mallan was terminated in November 1986, for misconduct and falsification of patient records and that, prior to the termination, he had been "written up" several times regarding problems he had with patients. [Petitioner's exhibit #4, letter dated July 30, 1986]. Mallan was informed that he must make a personal appearance before the Advisory Council on respiratory care and he did appear on October 1, 1986. [Petitioner's exhibit #4, letters dated September 10, 1986, and September 24, 1986; Petitioner's exhibit #5]. At his appearance, Mallan denied having falsified patients records and claimed that the basis for the termination was "a travesty". He conceded that he erred in his answer on the application and, at one point in the proceeding, apologized for writing the wrong answer and said that he was embarrassed and was hoping it wouldn't be discovered. The Council voted to deny his application. [Petitioner's exhibit #5]. The order from the Council, dated January 5, 1987, states the following as grounds for denial: The applicant submitted false information on, or in support of, his application for licensure. See Section 468.365(1)(a), (d), and (f), Florida Statutes; Section 468.354(5), Florida Statutes; and Rule 21M-37.02(2), Florida Administrative Code. At the final hearing in this proceeding, Mr. Mallan continued to deny that he ever falsified patient's records. [Tr. 14]. In support of this, he presented the testimony of Catherine "Kitty" Arnold, the charge nurse on the floor where Jack Mallan worked in 1983. While she heard that he was fired, she denied hearing complaints from any patients about Mr. Mallan. She also told Mallan's supervisor, Jim Richardson, before the termination, that she had not heard any complaints. [Tr. 52]. In support of his professional qualifications and fitness to practice, Mr. Mallan presented an employee performance review from Winter Park Hospital dated February 13, 1986. For every factor on the rating form, he was rated "very good", the highest rating, by his supervisor, Avery Smith. Mr. Smith also appeared before the Advisory Council on Mallan's behalf. Mallan was employed as a therapist at Winter Park Hospital from February 1985, until October 1986, when the council voted to deny his certificate. He was granted leave from his employer in order to pursue remedies to obtain the certificate. [Petitioner's exhibits #3, #5, and #6; Tr. 21-22]. In response to his attorney's question, "... why did you not go into detail about why you left the employ of Florida Hospital?", Mallan explained that he felt the "alleged termination at Florida Hospital" was unjust and untrue, that he did not want to spread lies about himself and was afraid for his future career. [Tr. 25]. On cross-examination, he refused to admit that he was "terminated" from employment by Florida Hospital, but later conceded that he did not leave the employment voluntarily and was accused of wrongdoing. [Tr. 31, 32]. His responses continued to be evasive and vague, as characterized by the following exchange: Q [By Ms. Lannon] Were you ever disciplined at Florida Hospital prior to this occasion while you were employed there to deliver respiratory care services? A Yes. Q Isn't it true that in fact in August of that very same year, you were disciplined for allegedly falsifying patient records? MR. SIWICA: I'd like a continuing objection to the relevancy. THE HEARING OFFICER: Noted for the record but you may answer the question. THE WITNESS: I have a choice to answer yes or no? THE HEARING OFFICER: You'll be allowed to explain the answer but go ahead and answer the question. THE WITNESS: could you repeat it again, please? BY MS. LANNON: Q Isn't it true that in August of the same year, the year that you were terminated, you were disci- plined based on an accusation or an allegation that you had falsified a patient's records? A I don't recall. Q Weren't you in fact suspended for two days in August of that year? A What year was that, please? Q 1983. A I can't recall. Q Were you ever suspended from your job at Florida Hospital? A I took sick days. Q Were you ever suspended from your job at Florida Hospital? MR. SIWICA: I think he's answered that. THE HEARING OFFICER: Wait. No, he hasn't. MR. SIWICA: I'm sorry. THE WITNESS: There was an incident. They told me to stay home. I can't remember when it was. BY MS. LANNON: Q Well, that wasn't ever. Were you ever suspended? I wasn't asking you to remember when it was with that question. A I don't know if it was suspended. I was asked to stay home from my shift and I don't known how many -- it was maybe one day, I think. Q Maybe one day. You don't recall? A No. Q Were you paid for that day? A I don't remember that either. [Tr. 35-37]. His personnel record reflects a two-day suspension in August 1983 for charting treatment that the patient denied having received, and for rudeness to a patient. [Respondent's exhibit #1, Memo dated August 30, 1983, Discussion reports dated August 22, 1983, and August 20, 1983.] Irv Hamilton was associate director of personnel at Florida Hospital in 1983. In a meeting with Jack Mallen he discussed the basis for termination. Mallen was observed sitting at the nurses' station when he was supposed to be coaching a patient in therapy and recording vital signs. After investigating, his supervisor, Jim Richardson, concluded that the record of treatment made by Mallan was falsified. Hamilton also reviewed and briefly investigated Jim Richardson's recommendation for termination. While the nurses and patient denied talking with Richardson about the November incident, Hamilton affirmed the recommendation for termination. He felt that Mallan had contacted the witnesses after their initial statements to Richardson. He also concluded, based on Mallan's alleged admissions that he was in the nurses' station rather than in the patient's room for part of the therapy, that it would have been impossible for the treatment to have been properly administered. [Petitioner's exhibit #2; Tr. 59, 60, 73, 75, 81]. Hamilton confirmed from his own recollection that Mallan was suspended in August 1983 for falsification of patient records. [Tr. 62]. Jim Richardson insisted that the nurse and patient had changed their story, that the nurse had indicated to him on the date of the incident that she heard of a patient's complaint. Further, when he approached the patient, she first said she didn't want to get anyone in trouble, but then said that the therapist who gave her treatment that night simply gave her the apparatus with medicine, left the room and returned after she finished the treatment to pick it up. [Tr. 98-101] Mr. Richardson personally observed Mallan in the nurses' station but did not confront him at the time, nor was Richardson close enough to see exactly what Mallan was doing. [Tr. 104, 106-108]. Circumstantial evidence and hearsay in this proceeding is insufficient to establish conclusively that Mr. Mallan falsified records in November 1983. He clearly, knowingly and deliberately falsified his application for certification. Even after appearing before the Council and hearing the concern about the need to be forthright, he remained very defensive and evasive throughout the final hearing. He feigned ignorance of the details of an incident in August 1983, when that incident was referenced on a special performance evaluation dated October 16, 1983. That evaluation, completed by his supervisor, Jim Richardson, rated him well above average and commended him for excellent effort in improvement. Notably, the first page of that evaluation was submitted and received as Petitioner's exhibit #1. The first page contains the rating factors and very positive levels of achievement selected by the supervisor as applicable. The second and subsequent pages are found in the personnel file, Respondent's exhibit #1. Those pages include a signature page with reference to an attached sheet. The typewritten attachments include general comments which reference past problems, including the August incident, and the commendation for improvement. Jack Mallan obtained an Associates Degree in respiratory therapy from Valencia Community College in 1981. He received a "respiratory care technicians" certification from the National Board of Respiratory Care on March 16, 1985. [Tr. 9]. His qualifications as to training and experience are not in question in this proceeding.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a final order be entered DENYING Petitioner's application for certification as a respiratory therapy technician. DONE AND ORDERED this 17th day of August, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0618 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner 1. Adopted in paragraph #12. 2-3. Rejected as immaterial. 4. Incorporated in the finding in paragraph #10. 5-6. Incorporated in the findings in paragraphs #9 and #10. Adopted in paragraph #5. Adopted in paragraph #9. Rejected as immaterial. Adopted in substance in paragraph #6. Adopted in paragraph #1. Adopted in paragraph #7. Respondent 1-2. Adopted in substance in paragraph #1. Adopted in paragraphs #3 and #4. Adopted in paragraphs #2 and #4. Adopted in substance in paragraph #10. Rejected as unsupported by competent evidence. 7-8. Adopted in part in paragraph #9, otherwise rejected as immaterial. Adopted in paragraph #7. Rejected as unnecessary, except the last sentence, which is adopted in paragraph #4. Adopted in part in paragraph #11. While the Florida Hospital witnesses were credible and adequately explained the basis for termination, their testimony was insufficient to establish conclusively that the falsification occurred. COPIES FURNISHED: Richard P. Siwica, Esquire EGAN, LEV & SIWICA 918 Lucerne Terrace Orlando, Florida 32806 M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Dong Hack Koo, M.D., is a licensed physician in the State of Florida, having been issued license number ME 0027494. Koo was so licensed at all times material to the Amended Administrative Complaint. At all times material to this cause, Koo maintained an office at 121 East 8th Street, Jacksonville, Florida, 32206. On July 10, 1985, Diane Rabideau, an Investigator for the Department of Professional Regulation, inspected Koo's offices and found them to be unclean, with evidence of roach eggs present under a sink. Rabideau also found a rectal speculum and two vaginal speculums lying on a sink. Koo told Rabideau that the rectal speculum and the two vaginal speculums had been used. No evidence was presented to indicate how long the speculums had been on the sink. If such instruments are not cleaned quickly and properly following use, there is a high chance of spreading infection to the next patient to use the instrument. Such instruments should be placed in a cleansing solution and scrubbed, then wrapped and sterilized. It is the community practice to clean such instruments as soon as possible after use. According to Dr. Rosin, any physician who performs abortions in an unclean office with instruments lying around that have not been properly cleaned, has practiced below the community standard of care. However, no evidence was presented to show that Koo performed abortions under such circumstances. Koo does perform first trimester abortions in his office. It was not disputed that abortions are a medical and surgical procedure which can be dangerous. Emergency situations can arise during abortions and these emergencies require the presence of emergency equipment such as suction and the ability to start an intravenous medication. Koo does maintain suction equipment and intravenous solutions in his office. However, when possible he immediately transfers emergency patients to another facility. Koo does perform abortions in his office without the presence of an assistant to aid in emergency situations. According to Dr. Rosin, the standard of care in the community requires that an assistant be present during an abortion to assist the physician should an emergency situation arise. Additionally, according to Dr. Rosin, a physician who performs abortions without emergency equipment or without an assistant has failed to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. When Rabideau visited Koo's office on July 10, 1985, she obtained a sampling of drugs kept by Koo for dispensing to patients. The sampling revealed that a majority of the drugs had expired. However, no evidence was presented that this is a violation of Florida Statutes. Rabideau also found that Koo maintained a number of Schedule III, IV, and V, controlled substances in his office which he dispensed to patients. In dispensing these controlled substances, Koo used the instructions for use which are printed on the packaging. He also, at times, taped a small piece of paper to the packaging with his telephone number and the name of the patient. Koo did not completely label these controlled substances, which he dispensed, with his name and address, the date of delivery, directions for use, the name of the patient, and a warning concerning the transfer of the substance. Koo maintains no inventory of the scheduled controlled substances which are kept in his offices and dispensed to his patients. On August 6, 1985, Diane Rabideau again visited Koo's office. While Rabideau waited, a female patient by the name of Mary Green was seen by Koo and left with a prescription. Rabideau then asked Respondent to present the medical records on the patient, Mary Green. Koo was unable to present any medical records for the patient which he had just seen and to whom he had just dispensed medication. Koo's office procedure regarding patient medical records is to record histories and examination results on the patient medical records during the patient's visit. These medical records are kept in individual folders under the name of each patient. When a patient presents for treatment, the medical records for that patient are pulled and given to the doctor. After each visit, the patient's medical records are refiled. On or about March 16, 1986, pursuant to a subpoena from the Department of Professional Regulation, Koo provided the original medical records on ten (10) abortion patients. These original medical records were examined by John F. McCarthy, a questioned documents expert for the Florida Department of Law Enforcement. McCarthy's examination by electrostatic detection apparatus revealed that numerous indentations on the records superimposed with information from other records. For example, Exhibit 6 contained indentations from the writing on the face of Exhibit 10. Further, McCarthy found indentations on Exhibit 6 resulting from the writing on Exhibit 8. Thus, Exhibit 8 was on top of Exhibit 6 when it was prepared. Exhibit 8, however, is dated July 24, 1985, and Exhibit 6 is dated May 29, 1985. McCarthy's expert opinion is that at the time the various documents were prepared, they were on top of each other. It is therefore found that Exhibits 1-10, the original medical records on the ten named abortion patients, were not prepared at the time Koo saw the patients, but were instead all prepared at the same time, in response to the subpoena. It therefore must be found that the records were fabricated by Koo in response to the Department's subpoena. Prior to performing an abortion, a physician needs to verify whether the patient has Rh positive or negative blood type. The physician cannot rely on patients' representations that the Rh factor is positive or negative, but most obtain independent verification. This is because patients know that if they have Rh negative blood, they must receive a shot which is expensive. Koo relied on the patients' statements in ascertaining the Rh factor and did not obtain independent verification. In Dr. Rosin's expert opinion, the failure of a physician to obtain independent verification of the Rh factor poses a potential for harm to the patient and such failure is a failure to practice medicine with that level of care, skill, and treatment that is recognized in the medical community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Medicine enter a Final Order finding Dong Hack Koo, M.D., GUILTY of violating Counts Two, Three, Four, Five, and Six of the Amended Administrative Complaint, and therein SUSPEND his license to practice medicine for a period of six (6) months during which he be required to successfully complete continuing education courses in maintaining, controlling, dispensing, labeling, and inventorying controlled substance, and in maintaining adequate patient records to justify the course of treatment. DONE AND ENTERED this 26th day of August, 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1066 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 are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding of Fact which so adopts the proposed finding of fact: 1 (1) ; 2 (2); 3 (3); 4 (4); 5 (4); 6 (4); 7 (4); 8 (5); 9 (6); 10 (6); 11 (9); 12 (7); 13 (8); 14 (9); 15 (10); 16 (11); 17 (11); 18 (12); 19 (13); 20 (13); 21 (15); 22 (14); 23 (14); 24 (16); 25 (16); 26 (16); 27 (16); 28 (17); 29 (18); and 30 (19) That portion of proposed finding of fact 12 which concludes that Respondent does not maintain emergency equipment in his office is rejected as unsupported by the competent substantial evidence. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dong Hack Koo, M.D. 121 East 8th Street, Suite 7 Jacksonville, Florida 32206 Dorothy Faircloth, Executive DIRECTOR Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Robb E. Ross was a licensed physician engaged in the practice of family medicine as a sole practitioner. He was licensed to practice medicine in the State of Florida in 1966 and holds license number 12433. He was board certified in family practice in 1970. Respondent also holds a license as a pharmacist. Respondent treated patient N.B. from September of 1970 through October of 1986. She initially presented as a new patient moving into the area, aged 61, for maintenance of her general physical medical care, primarily relating to her mild depression that she had for years following a mastectomy. While believing that patient N.B. had previously been under the care of a psychiatrist or psychologist, respondent never requested her prior medical records. Patient N.B. informed the respondent that she had been taking Biphetamine, a steroid amphetamine that is no longer produced, for the past ten years. Respondent continued patient N.B. in that treatment modality for over ten years, as well as treating her for other complaints. At some point, he did attempt to titrate her from Biphetamine, but she did not function as well with a substitute drug. When the drug Biphetamine was phased out of the market in either 1980 or 1982, respondent prescribed Dexedrine to patient N.B. and continued to do so approximately every six months. Respondent maintained her on Dexedrine due to her mild depression and the fact that she had been on amphetamines for many, many years. He was reluctant to take her off Dexedrine for fear that she could become overtly depressed. Since she did well with Dexedrine, respondent maintained her on that regiment due to the adverse side effects of other compounds utilized to control depression. The respondent's medical records for patient N.B. contain virtually no patient history or background information. For each patient visit, there is a brief notation which includes N.B.'s temperature, blood pressure and weight and also a reason for the visit. The reason noted on the records are either "check- up" or a brief statement of the patient's complaint on that particular day. The medication prescribed is noted, though very difficult to read. While the symptom or patient complaint is often noted, the patient records contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from N.B.'s medical records the reason that Dexedrine was prescribed for this patient. While N.B. complained of tiredness, she did not suffer from narcolepsy. Patient G.B. was under respondent's care from August of 1979 through May of 1985. He initially presented, at age 56, with problems relating to emphysema, lung collapse, exhaustion, impotency and aches and pains. Respondent prescribed various medications for him, including Nitroglycerin for chest pains. Respondent felt that due to his age and his complaints, patient G.B. had some type of arteriosclerosis. Patient G.B. frequently complained of being weak, exhausted and having no endurance or energy. For this reason, respondent prescribed Dexedrine for him on March 30, 1984. Other medications to increase his energy were tried before this and after this time. Nothing appeared to give him any relief. After determining that patient G.B. "liked his medicine too much," respondent terminated his treatment of him. The respondent's medical records for patient G.B. are brief and difficult to decipher. Again, the patient's temperature, blood pressure and weight are recorded for each visit, and there is a brief statement of the patient's complaint. There is no statement indicating a medical diagnosis or a treatment plan. The medications prescribed at each visit are written on the records, but are difficult to read. D.M. was a patient under respondent's care from December of 1976 until his death, at age 84, in March of 1986. He initially presented with stomach problems and subsequently had a host of other medical problems, surgeries and hospitalizations throughout the years. This patient was given so many different medications for his various physical problems that respondent did not always write each of them down on his records after each office visit. It appears from respondent's medical records that he first started patient D.M. on Dexedrine in January of 1984. At that time, D.M.'s chief complaint was "dizziness, falling, no pep." Respondent maintained D.M. on Dexedrine or an amphetamine type of compound from that period until his death, primarily because of his weakness, dizziness, falling down and low blood pressure. Other specialists were consulted regarding D.M.'s fainting and falling episodes, caused by postural hypotension, and were unable to remedy the problem. Respondent was of the opinion that the administration of Dexedrine enabled patient D.M. to function more properly and that it worked better than anything else. Patient D.M. expired in March of 1986. Respondent listed the cause of death as "cardiac arrest." The respondent's medical records on patient D.M. are typical of those previously described for patients N.B. and G.B. The office visit notes list patient complaints or symptoms and no medical diagnosis or comprehensive assessments. There are indications in the record that D.M. complained of chest pains in 1983, 1984 and 1985. The medications prescribed indicate the presence of cardiac disease. Respondent's record-keeping with regard to patients N.B., G.B. and D.M. are below an acceptable standard of care. They fail to include an adequate patient history and initial assessment of the patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the patient's background. The respondent's only notation of treatment is a listing, and a partial listing in the case of D.M., of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken. Dextroamphedimine sulfate, also known as Dexedrine, is a sympathomimetic amine drug and is designated as a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Commonly, it is referred to as "speed" or an "upper." It is addictive and highly abusive. While individual patients react differently to Dexedrine, its consumption can cause psychosis, marked elevations of blood pressure and marked rhythmic disturbances. As such, its use is contraindicated in patients with coronary disease. In addition, because Dexedrine is an "upper" and makes a patient "feel good," it can mask a true physical condition and prevent the patient from being treated for the physical ailment he is experiencing. A patient should not be relieved of pain without first knowing what is causing the pain. In Florida, Dexedrine may only be prescribed, administered or dispensed to treat specifically enumerated diseases, conditions or symptoms. Section 458.331(1)(cc), Florida Statutes. Neither respondent's medical records nor his testimony indicate that patients N.B., G.B. and/or D.M. suffered from the conditions, symptoms or diseases which warranted the statutorily approved and limited use of Dexedrine. Respondent was not aware that there were statutory limitations for the use of Dexedrine. He is aware of the possible dangers of amphetamines and he prescribes Dexedrine as a treatment of last resort when he believes it will help the patient. Respondent further testified that his medical record-keeping is adequate to enable him, as a sole practitioner, to treat his patients, though he admits that his medical records could be improved.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(I), subparagraphs (cc),(q),(t) and (n), Florida Statutes, and that the following penalties be imposed: an administrative fine in the total amount of $2,000.00, and probation for a period of twelve (12) months, with the following conditions: (a) that respondent complete continuing medical education courses or seminars in the areas of medical record-keeping and the dangers and authorized use of compounds designated as Schedule II controlled substances, and (b) that respondent submit to the Board on a monthly basis the medical records of those patients for whom a Schedule II controlled substance is prescribed or administered during the probationary period. Respectfully submitted and entered this 2nd day of September, 1987, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3483 The proposed findings of fact submitted by counsel for the parties have been carefully considered. To the extent that the proposed factual findings are not included in this Recommended Order, they are rejected for the following reasons: Petitioner: The 48 proposed findings of fact submitted by the petitioner consist of summaries or recitations of the testimony of the witnesses presented by the petitioner in this proceeding. While the summaries and/or recitations constitute an accurate representation of the testimony received by those witnesses at the hearing, and are thus accepted, they do not constitute proper factual findings by themselves. Instead, they (along with the testimony presented by the respondent) form the basis for the findings of fact in this Recommended Order. Respondent: Page 4, Paragraph 1 The reference to 30 years is rejected as contrary to the evidence. COPIES FURNISHED: David E Bryant, Esquire Alpert, Josey, Grilli, Paris and Bryant 100 South Ashley Drive Suite 2000 Tampa, Florida 33602 David J. Wollinka, Esquire P. O. Box 3649 Holiday, Florida 33590 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
The Issue At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes. The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.
Findings Of Fact Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice. Patient Fleming Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions. Patient Kipp Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.
