The Issue The issues to be resolved are whether Respondent, Robert B. Dehgan, M.D. (Dr. Dehgan or Respondent), committed sexual misconduct in violation of sections 456.072(1)(v) and 458.331(1)(j), Florida Statutes (2014), with respect to patients A.S., S.M., and C.T.; and if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and upon the entire record of this proceeding, the following factual findings are made: Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent was a licensed medical doctor within the State of Florida, having been issued license number ME16903. Respondent’s address of record is 220 Paseo Terraza, No. 307, St. Augustine, Florida 32095. Respondent originally practiced as an orthopedic surgeon. However, Respondent experienced some professional difficulties in the mid-80s that resulted in his seeking and completing retraining in the area of physical medicine and rehabilitation.1/ He is board certified in physical medicine and rehabilitation. At the time of the allegations giving rise to this case, Respondent was practicing pain management with a practice entitled “Jacksonville Multispecialty Group, LLC” (JMG), and held the necessary certification from the United States Drug Enforcement Agency to prescribe Suboxone and Subutex. Suboxone is a brand name for buprenorphine, a synthetic opioid, which is a controlled substance and is generally used to treat opioid addiction. Subutex is also a brand name for buprenorphine. Unlike Suboxone, Subutex does not contain naloxone, an additive used in Suboxone to prevent overdosing. Subutex is prescribed for pregnant patients and those patients who cannot tolerate Suboxone. The office policy for pain management patients at JMG, consistent with most similar health care providers, was to obtain a urine sample for a 12-panel test at each visit. The purpose of the drug testing was to insure that pain management patients were abiding by the contract that they sign, and taking only the medicine prescribed to them. If a patient is compliant, the test results should show the existence of the drugs prescribed in his or her system, and none others. If a patient is not compliant, it is a basis for dismissing the patient from the physician’s practice. The urine sample given at each visit is used for a test performed in the office, and tests for 12 drug classes. The results from the 12-panel test are presumptive only. If any results are positive that should not be, the sample is sent to a laboratory that does complex testing for confirmation. The confirming laboratory then performs a liquid chromatography mass spectrometry (LCMS). The LCMS is a very specific test that provides confirmation for drug use and drug classes, and rules out the possibility of false positives that may occur with a point-of-care test. According to Dr. Bruce Goldberger, M.D., a professor and the director of toxicology at the University of Florida College of Medicine, LCMS is the more accurate test and is considered the gold standard in drug testing. Dr. Goldberger’s testimony is credited. Patient S.M. Patient S.M. received medical care from Respondent from March 12, 2014, through August 27, 2014. S.M. saw Dr. Dehgan or an Advanced Registered Nurse Practitioner (ARNP) under his supervision approximately every four weeks during this time period. At the time of her initial presentation to JMG, S.M. was 44 years old. S.M. had been prescribed opiates in response to a badly sprained ankle and some dental surgery, and as a consequence, became addicted to them. She testified candidly and credibly at hearing that as a result of her addiction, she sought both prescription and illegal street drugs, including heroin, methadone, oxycodone, and hydrocodone. S.M. was frightened by her behavior, and sought treatment in order to get clean and to be a better role model for her daughter. Respondent treated S.M. with Subutex,2/ and she responded well to the treatment and has managed to refrain from using opiates and other illegal drugs. She had no complaints regarding Respondent’s treatment plan for her and felt she benefited significantly from his treatment plan. When a patient would come to the office at JMG for a follow-up visit while on Suboxone or Subutex treatment, the patient would fill out a therapy progress report. The therapy progress report asked the patient a series of questions, such as “please describe any life changes, triggers, or stressors that have occurred since your last visit,” “list your ideas and plan to cope with these life changes, triggers, or stressors,” and “what is your next short-term goal?” S.M. routinely completed these therapy progress reports and recorded in the early reports how much better she was feeling, and that she was not experiencing any cravings. Dr. Dehgan ordinarily reviewed the therapy progress report at the time of a patient’s visit if it was available. S.M. saw Dr. Dehgan approximately every four weeks. The first three visits were routine and uneventful. However, at her visit on May 30, 2014, S.M. remarked on her therapy progress report that she was anxious because her daughter was getting ready to leave for Canada for the summer, and she had been fighting with her ex-husband regarding finances. She talked to Dr. Dehgan about her anxiety, and mentioned that she had taken a second job working on the weekends at the beaches in St. Augustine and the Palm Coast area. Dr. Dehgan told her that he lived on the beach and asked if he could give her his cell phone number, and maybe he could take her to lunch. S.M. said okay, because she did not know what else to do. He handed her a slip of paper with the phone number on it, and she put it in her purse. When she stood up to leave, Respondent hugged her and attempted to kiss her, ultimately kissing the side of her face near her ear because she turned her head away from him. The door of the examination room was closed, and there was no attendant or ancillary personnel in the room at the time Dr. Dehgan hugged and attempted to kiss S.M. S.M. was shocked by Dr. Dehgan’s actions, as nothing like this had ever happened to her before. She left the office without saying anything to anyone about it, and confided only to the one person outside of JMG who knew that she was taking Subutex. Despite the incident described above, S.M. returned to JMG for her next scheduled appointment with Dr. Dehgan, because she could not find another provider who could prescribe Subutex and who would take her health insurance. Most providers that she could find would only take cash, and she could not afford to pay for treatment without using her insurance. S.M.’s next scheduled appointment was June 27, 2014. Initially, Respondent did not mention or acknowledge his actions at the May 30 appointment, and S.M. was relieved. At the end of the appointment, however, Respondent remarked, “hey, I gave you my phone number. You didn’t call me.” S.M. made up an excuse that she had lost the phone number. As he left, Respondent hugged her again. S.M. interpreted Respondent’s actions as romantic in nature. As she stated, she did not know if Respondent wanted to have sex with her, “but I know when someone is asking me on a date.” S.M. also saw Respondent on August 1, 2014, and August 27, 2014. On August 27, 2014, there was a female staff member in the room for her appointment. Respondent had been presented with and signed an acknowledgment form on August 22, 2014, just five days before, which stated: I understand the office policy that a female member of our staff must be present during my female patient’s office visits. I understand that I will not conduct the office visit without ensuring that a member of our staff is present. Andrea Pratt, vice president of operations for JMG, testified that the acknowledgement form was put in place to protect both the doctor and the patient, and was put in place after receiving a complaint from another patient. Only Dr. Dehgan was required to sign an acknowledgement form. Dr. Dehgan’s testimony in his deposition that he requested the change in policy because he was being propositioned by female patients is rejected as not being credible, and Ms. Pratt’s testimony regarding the reason for the policy is accepted. On September 15, 2014, Respondent was terminated from his employment with JMG. While Respondent contends that it was for having ten unsigned patient charts, the termination letter indicates that he was terminated without cause. As a result of his dismissal from JMG, at her next scheduled appointment, S.M. saw Dr. Hernan Chang, M.D. When she checked in for the appointment, she asked if Dr. Dehgan was no longer there because he kisses his patients. S.M. continued to be treated at JMG and seen by Dr. Chang, until she received a letter from the practice in 2015 indicating that Dr. Chang would no longer be seeing patients at that location. Respondent testified that he has no recollection of S.M. He attempted to impeach S.M.’s credibility on the basis of a positive urine drug screen result received from a point-of-care test at JMG. S.M.’s 12-panel test for her appointment on September 25, 2014, was negative for opiates. However, the confirmatory LCMS was positive for morphine, with a value of 85, compared to a reference range of less than 50 nanograms per milliliter. S.M. denied taking morphine or any other opiates after starting Subutex. S.M.’s drug results were reviewed by Dr. Goldberger, who testified that a concentration of 85 nanograms per milliliter of morphine can be attributed to ingestion of morphine, ingestion of codeine, or ingestion of poppy seeds. These possible attributions also are listed on the report itself. He opined that it would be difficult to attribute the exact source of morphine resulting in this test result for S.M. His testimony is persuasive, and is credited. S.M. did not know any other patients who treated with Dr. Dehgan, and does not know any of the patients who were witnesses in this case. Her testimony was consistent and persuasive: she was candid about the scope of her drug dependence, including her resort to illegal drugs. Her explanation as to why she continued to see Dr. Dehgan after the May 30 incident is believable, considering her desire to remain off illicit drugs and opiates, and the continued references to financial difficulties in her therapy reports. Indeed, the note for her second visit indicates that a stressor for her was the difficulty getting her medications approved by her insurer. It is understandable that she would be reluctant to change physicians if she could not find one that would take her insurance. Moreover, even assuming that S.M. was noncompliant leading up to her visit on September 25, 2014, and the evidence does not support such a finding, any noncompliance would not necessarily lead to a conclusion that she was not telling the truth regarding her encounters with Respondent. Patient A.S. Patient A.S. initially presented to Dr. Dehgan for treatment of opiate dependence when Dr. Dehgan worked at Orthopedic Associates, prior to his employment at JMG. When she first presented for treatment at JMG, A.S. was 50 years old. She had a lengthy history of multiple abdominal surgeries dating back to her mid-twenties, including bowel resections, multiple hernia repairs, a tubal ligation, hysterectomy, endometriosis treatment, tubal pregnancy, and appendectomy. As a result of her lengthy use of legitimately- prescribed opioid medications, A.S. became dependent on them. A.S. began treating with Dr. Dehgan at JMG beginning June 10, 2013, and continued treatment at JMG until September 16, 2014, receiving Suboxone for her opioid addiction. Like S.M., A.S. was satisfied with Respondent’s treatment plan. She had no complaints about Dr. Dehgan until the summer of 2014. During that summer, there were three separate incidents where A.S. contends that Respondent touched her inappropriately. While A.S. did not recall the exact dates of these incidents, she was consistent in her testimony of what happened and in her belief that these incidents occurred on three different, consecutive appointments with Dr. Dehgan leading up to the Respondent’s termination from JMG.3/ At A.S.’s first appointment at JMG, she filled out a patient questionnaire that asked a variety of questions related to past medical history, current complaint, and medications taken. The questionnaire included a diagram, showing the front and back of a person’s body, on which a patient was directed to identify areas and types of pain. A.S. identified pain both in the abdominal area, and the corresponding area on her lower back. She described the pain for both areas as being sharp and aching. She did not indicate that she had any pain radiating down either leg. Respondent made no assessment regarding back pain in his notes, but prescribed Suboxone for her chronic pain and recommended follow-up in two months. At all subsequent visits but one, A.S. continued to complete some sort of questionnaire or a therapy progress report. For the visits on August 13, 2013, and September 13, 2013, there is no mention of back pain by either Respondent or A.S. There does not appear to be a questionnaire for the appointment on November 22, 2013, but Respondent’s notes for this visit mention low back pain for the first time.4/ Respondent’s records for the November 22 appointment identify constant low back pain under the “History of Present Illness” category. The note states in part: 50-year-old female is seen in the office today for followup evaluation and management of chronic opioid dependency. She takes Suboxone 8 mg twice daily. She is not taking any other medications and maintaining well on Suboxone twice daily There [sic] has been no interval change in the location, quality, increasing/decreasing factors, associated signs and symptoms as previously described. Lumbar Spine/Lower Back: Low back pain bilaterally, lumbar, that is constant, Nature: aching, Aggravated by: any physical activity, Aggravated by: bending, Severity: moderate to severe. Previous trials offered little or short durations of relief. Some relief from medications. Low back pain midline, paraspinal, Nature: aching, Nature: shooting, lumbar, that is constant, aggravated with movement, walking, lifting the legs. Radiates down the leg with associated numbness that is has [sic] severity: moderate to severe. Despite this lengthy note describing what appears to be a new complaint, Respondent’s notes for the back under the “General Examination” section of the patient record is exactly the same as it was for the previous visit and contains no positive findings: BACK: Cervical, thoracic and lumbar spines, full range of motion, no kyphosis, no scoliosis, spine nontender to palpation, No muscle spasms noted, no paraspinal muscle tenderness nor trigger points identified. Respondent did not sign this patient record: it reflects an electronic signature of January 6, 2015, well after his departure, and the sign-off status is listed as “pending.” A.S.’s next appointment at JMG was December 20, 2013. Her questionnaire for the visit indicated that she was depressed, had a stomach ache, and that it was not a good time of year for her. She was simply seeking to get through things and hope the next year was better. There is no mention of back pain. Respondent’s notes, however, under “History of Present Illness” are identical to the November 22 visit with respect to back pain. The physical examination is also identical, with no real findings related to her back. This patient note also is listed as “pending,” and is electronically signed in January 2015, after Respondent’s departure. Similarly, A.S.’s notes on her questionnaire for her January 17, 2014, visit mention depression, loneliness, and an asthma flare-up, but make no mention of back pain. Respondent’s notes, which are electronically signed well after his termination, reference low back pain, but make the same negative findings with respect to his examination. A.S.’s notes for the visit on February 19, 2014, mention problems with her car as a stressor, but again mention nothing about back pain or abdominal pain. Respondent’s notes reference ongoing abdominal pain, but make no mention of back pain in the “History of Present Illness.” References to the back under “General Examination” are the same negative findings listed for prior visits, yet lumbago and sciatica are listed as diagnoses under “Assessments.” The same can be said for Respondent’s notes for the visit on March 21, 2014, for which A.S.’s questionnaire makes no mention of back pain. It was during this visit that the first incident of what A.S. alleged was inappropriate behavior by Respondent most likely occurred. A.S. had been telling Dr. Dehgan about how she was feeling, and A.S. testified that as she was getting ready to leave the examining room, Respondent said, “I think you need a hug,” and reached over and hugged her. The embrace lasted about 30 seconds and made her feel strange. A.S. testified that the hug was initiated by Dr. Dehgan at a time when the door to the examining room was closed and there was no one else in the room. She was astonished because no doctor had ever done that to her before. She continued to see him, however, because she thought this first incident was a “fluke” and finding a pain management physician was difficult. At A.S.’s visit on April 18, 2014, she wrote that she was very depressed and was experiencing chronic pain with respect to her abdomen and lower back, and that her allergies had been terrible. Respondent’s notes, which he signed on April 28, 2014, indicate that she complained of persistent abdominal pain, hernia, and low back pain radiating to her buttocks. Under his “General Examination” for this visit, Respondent noted that her abdomen was soft and tender to the touch; that there was “presence of hernia and right lower side.” With respect to her back, he notes for the first time that there is tenderness on the lumbar paraspinals, sacrum, and buttocks; that there is forward flexion, associated with moderate pain; that A.S. “stands and toes and heels with some discomfort”; and that her “[s]traight leg rising is mildly positive.” Respondent lists lumbago and sciatica among her diagnoses, with lumbago as the primary diagnosis. A.S. testified that she talked to Respondent about her fear that she had another hernia that might need repair, and he offered to check it for her. She consented to his doing so. He did not ask her to take her clothes off, and the examining room door was closed, with no one else in the room. During his purported examination related to her hernia, Respondent did not examine the four quadrants of her abdomen. He simply touched her abdomen and reached up and squeezed A.S.’s right breast with one hand. A.S. has suffered from hernias and has been examined in connection with hernia repairs since her early thirties. She had seen two prior physicians for this condition before seeing Respondent. No other doctor had ever touched her breast in the examination of her hernia. Dr. Jonathan Waldbaum, M.D., testified as an expert on behalf of the Department. Dr. Waldbaum testified that a breast examination should never be part of an abdominal examination, and while it was possible for there to be incidental touching of a patient’s breast, depending on the location of the hernia and the physique of the patient, any such contact would be limited to the back of the physician’s hand coming into contact with the breast. Even Respondent testified that there would be no reason for him to touch A.S.’s breast. A.S. testified that she backed away from Respondent, but did not say anything to him. A.S.’s next appointment at JMG was June 19, 2014, at which time she saw an ARNP, Ashley Schinner. While her questionnaire does not mention back pain, the patient record notes back pain and abdominal pain related to her hernia in the “History of Present Illness” section, but no positive findings regarding her back under the “General Examination.” Lumbago and sciatica remain under the “Assessments” section. A.S. saw Dr. Dehgan at her next appointment, July 17, 2014. A.S. continued to see Dr. Dehgan because she needed the medication he prescribed. Again, her questionnaire mentions some mild depression, but not back pain. Respondent’s notes, on the other hand, indicate under “History of Present Illness” that she complains of low back pain radiating to the hips, lower limbs, feet and ankles. It also notes abdominal pain, and references the history of 13 abdominal surgeries. With respect to his examination, Respondent notes tenderness and lumbar paraspinals, sacroiliac and buttocks, that her range of motion of the lumbar spine is associated with pain, and that her “[s]traight leg raising is positive on both sides.” Respondent’s notes continue to list lumbago as her primary complaint, as well as listing sciatica and chronic pain syndrome along with her opioid dependence. A.S. testified that at the July 17 visit, she told Dr. Dehgan that her back was hurting, not because of a problem originating with her back, but because the pain in her abdomen caused her to hunch over and to be unable to stand up straight. A.S. testified that Respondent felt her back and ran his hand down her buttock on the right side, not in the manner one would expect as part of a physical examination, but more like a caress. When asked to specify what part of her body he touched, A.S. testified that he went “low,” low enough for it to be inappropriate in that it was nowhere near her back, and Respondent used only one hand. A.S. testified that she had never had another doctor examine her back before, but did not believe this examination to be appropriate. She told her sister that she would never go into Respondent’s office alone again. Assuming that the incident occurred in July 2014, she did, however, return for one more visit where Dr. Dehgan was present. It is unclear whether her sister went with her for this visit, but the medical records by Respondent are consistent with those for the prior visit. A.S.’s final visit occurred September 16, 2014, after Dr. Dehgan’s termination from the practice. At that time, she was accompanied by her sister and saw Dr. Chang as opposed to Dr. Dehgan. When she was told that Dr. Dehgan had been let go, she asked whether his termination was due to sexual harassment. A.S. is no longer going to JMG. She also is no longer a Suboxone patient, and has resumed taking opiates because her pain is too intense to do without it. While she reported needing additional surgery, she has been advised that she must stop smoking before surgery can be performed. She continues to suffer from depression, and will no longer see a male doctor because of trust issues created by Respondent’s actions. Following her treatment with Respondent, A.S. experienced further depression leading to a suicide attempt and involuntary hospitalization, which was, in part, attributable to the events described in this proceeding. Respondent testified that he has no recollection of A.S., yet also testified that he remembers A.S. asking that he examine her for a hernia, and that she had a long scar from her sternum to her pubis.5/ He attempted to discredit A.S.’s testimony by demonstrating the differences between her recollection of the visits and what is written in Respondent’s notes. Specifically, A.S. was adamant that she only complained about back pain on one occasion, at her July 2014 visit. Respondent’s notes, however, indicate multiple claims of back pain. A.S.’s handwritten questionnaire clearly reference back pain on at least three occasions. They do not, however, include any reference to pain radiating down her legs or into her feet. Even the diagram on which A.S. marked the areas of pain in her back for her initial visit indicated that the pain was more at the hip level than her buttocks. In each instance where A.S. did reference back pain in her questionnaires, the reference is in connection with abdominal pain. Clearly, the pain caused by her adhesions and recurrent hernia was her primary complaint. In her view, any back pain was ancillary to the abdominal pain that she had lived with for years. It also appears that many of the notes in Respondent’s medical records appear to be canned, or part of a template. Andrea Pratt testified that the electronic medical records system JMG used included templates that physicians could use, but were not required to be used. While Respondent denied using the templates, given the grammar (or lack thereof) and identical nature of some of the entries, use of the templates would explain some of the medical entries. Further, while several of the visits contain diagnoses of lumbago and sciatica, the record is clear that the primary purpose for A.S.’s treatment with Respondent always remained her treatment for opioid dependence. Respondent also attempted to impeach A.S.’s testimony because of her drug use,6/ and a positive drug test at her August 13, 2014, appointment, which reflected a positive result for oxycodone. However, the toxicology confirmation report from Essential Testing indicated a negative result for opiates. Dr. Goldberger testified credibly that A.S. did not have oxycodone in her system on August 13, 2014, and his testimony is accepted. Finally, Respondent attempted to explain the July visit by stating that the touching A.S. contended was inappropriate was actually part of a physical examination related to her back pain. However, A.S.’s description of Respondent’s actions does not remotely match the description by any doctor who testified of what constitutes an appropriate examination for back pain. Dr. Waldbaum testified that a good examination of the low back would start with seeing how the patient walks and observing the patient standing up. A physician would look at the patient’s posture, check for scoliosis or curvature of the spine, and would check the patient’s range of motion. The physician would perform a neurologic examination to check for things like strength in the patient’s legs and reflexes. He or she would then palpate the back, including palpating down the middle, along the bones of the spine, the paraspinal muscles, and the hips. The physician would evaluate the structures going below the belt line in the back, the muscles in the gluteal area. He or she would push gently to palpate the area. Respondent proffered the testimony of Drs. Risch and Cordera on the same issue. While their testimony was not considered because neither doctor had been noticed as an expert in this proceeding, their testimony was similar to Dr. Waldbaum’s with respect to a proper examination. Had their testimony been considered, it would only serve to reinforce the testimony of Dr. Waldbaum. What A.S. credibly described was not an examination of her back consistent with this testimony. The more persuasive and compelling testimony establishes that on three separate occasions, Respondent touched A.S. inappropriately by hugging her, by squeezing her breast, and by caressing her buttocks. Hugging a patient is not within the scope of the professional practice of medicine. Squeezing a female patient’s breast outside the context of a breast examination is likewise not within the scope of the professional practice of medicine. Caressing a patient’s buttocks is not part of an examination of a patient’s back for pain, and is not within the scope of the professional practice of medicine. Patient C.T. Patient C.T. saw Respondent on one occasion. She went to JMG and Dr. Dehgan for pain management related to her history of avascular necrosis, a condition in which the bone marrow in the joints deteriorates, causing pain. C.T. suffers with pain primarily in the hips, knees, shoulders, and ankles. When she presented to Dr. Dehgan, she was 46 years old. During C.T.’s visit, Respondent examined her back. While it was reasonable for Respondent to examine her back given her physical condition, he lifted her shirt to check her spine without letting her know that he was going to do so, which caught her by surprise. What is more troubling is that at the end of the appointment, a medical assistant came in and left some paperwork on Respondent’s desk, and then left the room. Respondent and C.T. were standing face to face. When she went to leave, he bent down, placed his hand at the small of her back, and kissed her in her ear, with his tongue going into her right ear. C.T. was stunned, and did not know what to do, so she patted him on the back. No one else was in the room, and the door was closed. Her focus at this point was to leave as quickly as possible, so she took her appointment card and exited the room. At the front desk, she told whoever could hear her that she would not be returning, and went to her car to call her adoptive mother. She called the office to speak to a supervisor, but none was available. C.T. did not know any of the other patients who testified in this proceeding. She filed a complaint with the Department of Health because she believes that what Respondent did was wrong. She interpreted his actions as sexual and is no longer trustful of male physicians. C.T.’s testimony was clear, consistent, direct, and compelling. Respondent tried to undermine her credibility by dredging up a variety of painful episodes in her distant past, and emphasizing her mental health diagnoses. In his Proposed Recommended Order, he states: What C.T. did not tell Dr. Dehgan is interesting. She did not tell Dr. Dehgan that she had been raped. She did not tell him that six days prior to seeing him she was treated at Flagler Hospital in St. Augustine, for vertigo, right shoulder and right arm pain, subsequent to a slip and fall accident occurring August 3, 2014. She did not tell Dr. Dehgan that she has post traumatic stress disorder. She did not tell Dr. Dehgan that she had Attention Deficit Hyperactivity Disorder. She did not tell Dr. Dehgan that she had asthma. She did not tell Dr. Dehgan that she had anxiety, anxiety with panic attacks, and depression. She did not tell Dr. Dehgan that she was, and that she had been, a patient for many years under the care of psychiatrist Dr. Emmanuel Martinez. She did not tell Dr. Dehgan that she lost 75 pounds in a period of 18 months. She did not tell Dr. Dehgan that on numerous occasions, she had tried to commit suicide. First, with respect to some of the history Respondent claims that C.T. omitted, there is not necessarily a question on the patient history form that she completed that would have required the information to be provided. The form was focused on the reason a patient presented to JMG, and, for the most part, included questions regarding prior treatment that a patient has received for the pain that caused him or her to seek treatment for pain management. It did not, for example, ask about prior hospitalizations in general, but rather, only asked about prior surgeries. Second, Respondent’s statements about C.T.’s purported non-disclosures in many respects are false. Consultation with a psychiatrist or psychologist related to the pain was disclosed on page 4 of the patient form, at Joint Exhibit 3, page 16. Asthma was checked on the same form at page 5, as was C.T.’s disclosure of anorexia, now recovered. At page 7 of the same form, C.T. disclosed that she has received treatment for depression and anxiety, provided Dr. Emmanuel Martinez’s name and telephone number, and further indicated that she saw him every two months. The form made no inquiry regarding suicide attempts, and had no question for which an answer disclosing them would be responsive. Respondent seemed to think that anyone with a history of mental illness is automatically a suspect witness who cannot be believed. There is no support for such a contention in this record. C.T.’s mental health history from ten years prior to this incident simply has no relevance to her testimony in this case. C.T.’s only memory difficulties at hearing were listing which medications she had taken over the years, as she did not have her medication list with her. Her reluctance to discuss issues related to her mental health, especially issues related to events over ten years old, did not impugn her credibility as a witness. Her memory of the events giving rise to this case was clear and credible, and is accepted. It is never within the scope of professional practice for a physician to place his tongue in the ear of a patient. Respondent presented the testimony of three individuals with whom he has worked who all testified concerning his character and his general demeanor with patients. Thomas Pulzone worked at Orthopedic Associates of St. Augustine, and knew Dr. Dehgan through his association with that practice prior to working with JMG. Mr. Pulzone thinks highly of Respondent. However, he never directly observed Respondent conduct an examination of any patient, and his contact with Respondent since Respondent left Orthopedic Associates has been limited to a few telephone calls. Dr. Edward Risch is an orthopedic surgeon from whom Respondent rented office space for approximately ten years. Dr. Risch has not worked with Respondent since 2010 and never directly observed Respondent’s examination of female patients. Dr. Diana Cordero worked with Dr. Dehgan for approximately six months of the time he was at JMG, and shares space at his current practice location. Her work with Respondent at JMG was limited, and she never saw him examine a patient. There is no evidence that she, like Respondent’s other witnesses, was present when any of the events giving rise to this case took place. Respondent tried to impeach the testimony of each patient based on inconsistencies between her recollection of her treatment by Dr. Dehgan and what was contained in his medical records for each of them. It was never established that any of the patients had reviewed her medical records. More importantly, it was never established that what was written in those records was an accurate statement of the care and treatment actually given. For example, Respondent testified that he would perform a comprehensive examination for a first visit, but not for follow-up visits. The medical records seem to indicate a comprehensive visit was performed every time, and all three patients did not recall much of an examination at all. Respondent testified that he would not generally perform a Babinski test (a test of a patient’s reflexes by scratching the bottom of his or her foot) for a follow-up Suboxone appointment, yet this test was routinely referenced as completed in Respondent’s medical records. Given the marked disparities between all three patients’ memories of their appointments and the contents of the medical records, as well as the internal inconsistencies noted in A.S.’s records, Respondent’s medical records appear to be less than reliable. Accordingly, they do not provide a basis for discounting the testimony of the three patients whose testimony was clear, consistent, and compelling.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding that Respondent violated sections 456.072(1)(v) and 458.331(1)(j), as alleged in the Amended Administrative Complaint. It is further recommended that the Board issue a letter of reprimand against Respondent’s license; suspend his license for a period of three years, followed by five years of probation; impose a permanent restriction that Respondent may not examine or treat female patients without a licensed health care provider in attendance; require completion of a medical ethics course prior to reinstatement of his license; and impose an administrative fine of $30,000. DONE AND ENTERED this 31st day of August, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 31st day of August, 2016.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Zevart Manoyian, M.D. is a licensed physician in the State of Florida, having been issued License No. ME 0003347. Respondent is engaged in the practice of family medicine at 725 Opa Locke Boulevard, Opa Locke, Florida. The Respondent has practiced medicine for the past thirty-eight years. The Respondent treated patient Willie Dawson from October 1981 through May 1984. When interviewed by DPR Investigator Lichtenstein during the initial investigation of this case on October 2, 1986, the Respondent stated that she was treating Dawson for a broken jaw and depression. Based on information contained in hospital records and the Respondent's office records during the period which Dawson was treated by Respondent, the following medical history is disclosed: In 1980, Dawson was hospitalized because of a broken jaw; In 1982, the Respondent diagnosed Dawson as having narcolepsy and began prescribing Preludin. In 1984, Dawson was admitted to the Veteran's Administration Hospital and died due to an "intestinal obstruction." Between December 1983 and September 1984, the Respondent prescribed 180 doses of Preludin and 180 doses of Percodan to Dawson. Narcolepsy is a rare and unusual sleeping disorder and may be treated with Preludin, a Schedule II controlled drug. Percodan, a Schedule II controlled drug, may be prescribed for pain. Percodan could be an appropriate medication to prescribe for lingering pain associated with a previously broken jaw. The Respondent's medical records pertaining to Dawson contained no medical history, given by the patient, allergy history physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Physicians' Desk Reference (PDR) is accepted by physicians as an authoritative reference source of appropriate drug usage indications and contraindications, The PDR is made up of inserts provided by various drug companies and manufacturers and will indicate the limits and limitations of a particular drug. Although the POP is accepted by physicians as an authoritative reference source, physicians recognize that it is merely a guide and that the treating physician must determine the most appropriate and medically justifiable treatment for a given patient. According to the PDR, the appropriate recommended dosage for Percodan is four per day or one every six hours when medically indicated. However, a physician may increase this dosage if the patient has developed a tolerance to the analgesic effects of the drug or when there is severe pain. The appropriate recommended dosage for Preludin is one per day. The PDR advises that the recommended dosage for Preludin not be exceeded. The amounts of Preludin and Percodan given to Dawson were within the dosage and administration recommendations in the PDR. In addition, the choice of drug, and the amount prescribed, could have been indicated to a reasonably prudent physician based on Dawson's medical conditions. The Respondent treated patient Barbara Gaskill from September 1977 through December 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for lower back pain and obesity. Based on information contained in the Respondent's office records during the period which Gaskill was treated by Respondent, the following medical history is disclosed: In 1977, Gaskill hurt her back, suffered an arthritis attack and had a ruptured sciatica; In 1978, Gaskill was experiencing problems sleeping due to her back conditions; In 1980, Gaskill was involved in an automobile accident; In 1982, Gaskill suffered headaches; In March 1983, Gaskill had an infected tooth in her right jaw; In March 1984, Gaskill injured her back when she tripped and fell; In April 1984, Gaskill suffered from chronic pain in her lower back; Between December 9, 1983, and August 7, 1984, the Respondent prescribed 115 tablets of Tuinal and 102 tablets of Percodan to Gaskill. Tuinal is a Schedule II controlled drug used to help induce sleep. The recommended dosage in the PDR for Tuinal is one per day. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical problems such as those with which Gaskill suffered between December 9, 1983 and August 7, 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Gaskill were within the recommended limitations established for those drugs in the PDR. The Respondent's medical records pertaining to Gaskill contained no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Respondent treated Linda Godfrey from November 1980 through July 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for severe pain. The Respondent stated she knew that Godfrey was addicted to the medication but that she continued to prescribe the medication to alleviate the pain. Based on information contained in hospital records and the Respondent's office records during the period Godfrey was treated by Respondent, the following medical history is disclosed: In 1980, Godfrey was diagnosed as having congenital cerebral palsy and multiple sclerosis. On the same visit, the Respondent noticed that Godfrey had an abscess on her left buttock; In March of 1981, Godfrey was involved in an automobile accident; In August of 1981, Godfrey passed a kidney stone and went to the hospital; In August and September of 1983, Respondent noted that Godfrey was experiencing severe pain "all over"; In April of 1984 Godfrey had an infected ulcer; In June of 1984, Godfrey was admitted to the hospital by the Respondent. The Respondent noted that the patient had a drug addiction, which the patient denied. During Godfrey's hospital stay, the Respondent did not allow her to have visitors because Godfrey was overheard requesting a friend to bring drugs to her in the hospital. Godfrey admitted to snorting cocaine while in the hospital. On June 4, 1984, Godfrey was discharged to North Miami General Hospital in order to be cared for in the drug and detoxification unit. The diagnosis at that time was acute gastritis and drug dependence. On June 3, 1984, the Respondent noted that Godfrey was scheduled for a psychiatric consultation with another physician; In July of 1984, Godfrey was readmitted to the hospital because she fell down a flight of steps and injured her right knee and twisted her lower back. Between December 26, 1983, and July 8, 1984, the Respondent prescribed 10 doses of Percocet, 12 doses of Nembutal, and 377 doses of Perdocan to Godfrey. Percocet is a Schedule II controlled drug which is used in the treatment of pain. Percodan and Percocet are similar except that Percocet has a Tylenol base and Percodan has an aspirin derivative. The PDR's recommended dosages and limitations are the same for Percodan and Percocet. Nembutal is a short-acting or medium-acting barbiturate and is used to help induce sleep. The recommended dosage in the PDR for Nembutal is one per day. Percodan, Prococet and Nembutal, in the amounts prescribed, could be appropriate drugs with which to treat pain and associated sleeping problems arising from medical conditions such as those with which Godfrey suffered between December 26, 1983 and July 8, 1984. The dosages of Percodan, Prococet and Nembutal which Respondent prescribed to Godfrey were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to Godfrey contain no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Martha Guc from January of 1977 through September of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that she was treating Guc for severe back pain. Based on information contained in hospital records and the Respondent's office records during the period which Guc was treated by Respondent, the following medical history is disclosed: In January of 1979 Guc was involved in a serious automobile accident and also suffered from scoliosis. Guc was experiencing cramps in her spine and was unable to sleep as a result of her back pain; In the automobile accident of January 1979, Guc received extensive injuries, including multiple abrasions and lacerations, a broken arm and multiple contusions in her sternum and knee. Plastic surgery was required to repair the facial lacerations and her arm was placed in a cast. In December of 1979, Guc experienced pain in her back and left knee; In 1980, Guc continued to experience back pain; In 1983, Guc was involved in an automobile accident and her head hit the windshield; From March to June 1984, Guc continued to experience back pain; Between January 20, 1984, and August 27, 1984, the Respondent prescribed 580 doses of Percodan to Guc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems and conditions such as those with which Guc suffered between January 20, 1984 and August 27, 1984. The dosages of Percodan which Respondent prescribed to Guc were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Guc did not show any medical history, allergy history, physical examination or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Delores Jones from January of 1969 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Jones for back pain. The Respondent stated that she knew that Jones was addicted to narcotics but that the medication was required to relieve the symptoms of pain. Based on information contained in hospital records and the Respondent's office records during the periods which Jones was treated by Respondent, the following medical history is disclosed: In 1969, Jones experienced severe back pain; In 1970, Jones suffered from acute gastritis; In 1974, Jones again experienced severe back pain; In May of 1974, Jones was involved in an automobile accident and injured her back; Additionally, Jones suffered from a hernia, stenosis of the spine and a duodenal ulcer. Between December 1, 1983, and August 28, 1984, the Respondent prescribed 1200 doses of Percocet to Jones. The Respondent was aware that Jones was becoming addicted to narcotics and referred Jones to a Doctor Baldry in Coral Gables for treatment. The Respondent stated that she was not aware if Jones ever followed her referral. Percocet, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Jones suffered between December 1, 1983 and August 28, 1984. The dosages of Percocet which Respondent prescribed to Jones were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Jones did not show any medical history, allergy history, physical examinations or the result thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Cheryl LeBlanc from December of 1983 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that Ms. LeBlanc was being treated for pains in the left hip and bursitis. Based on information contained in hospital records and the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: In December of 1983, LeBlanc was diagnosed as having bursitis. Respondent noted that LeBlanc had pains in her left hip and down the posterior portion of her left leg; On January 6, 1984, the Respondent noted that LeBlanc had bursitis in the left hip; In July of 1984, Respondent noted that LeBlanc had a problem with a lymph node; In September of 1984, the Respondent noted that LeBlanc suffered from chronic pain; (f) Prior to being treated by the Respondent, LeBlanc was admitted to North Shore Medical Center in October of 1983 for treatment of infertility and irregular periods. In October of 1983, LeBlanc had a D&C and salpingogram. In November of 1983, she was readmitted to North Shore Medical Center for tubal reconstruction. Between December 13, 1983, and August 2, 1984, the Respondent prescribed 90 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems such as those with which LeBlanc suffered between December 13, 1983 and August 2, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established in the PDR. Respondent's medical records pertaining to LeBlanc did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Gerald LeBlanc, husband of Cheryl LeBlanc, from October of 1983 to October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that Mr. LeBlanc suffered from severe bursitis in the shoulder and upper back pain. Based on information contained in the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: On October 7, 1983, LeBlanc was treated for muscle spasms in his back; shoulder; On November 9, 1983, LeBlanc was treated for acute bursitis in his On December 6, 1983, Respondent noted that she intended to wait one month and if LeBlanc's shoulder was not better, she was going to have it x- rayed; On December 26, 1983, Respondent noted that LeBlanc's shoulder was still very sore and that he had difficulty working in the cold; On February 17, 1984, the Respondent noted that LeBlanc still had bursitis in his left shoulder; On March 16, 1984, the Respondent indicated that LeBlanc still had bursitis; On April 25, 1984, and September 17, 1984, Respondent noted that LeBlanc was still experiencing severe pain in his shoulder; On October 8, 1984, Respondent noted that LeBlanc refused Tylenol #3, because he stated that it made him sick and nauseous. Between December 1983 to July 9, 1984, the Respondent prescribed 405 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which LeBlanc suffered between December 1983 and July 9, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to LeBlanc did not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Betty Mitchell from November of 1981 to August of 1984. When questioned. By DPR Investigator Lichtenstein regarding this patient, Respondent stated that Mitchell suffered from chronic pain. The Respondent stated that Mitchell was drug dependent, but not addicted. Based on the information contained in the Respondent's office records during the period in which Mitchell was treated by Respondent, the following medical history is disclosed: In 1982, Mitchell was shot in her left buttock; On July 21, 1982, Respondent noted that the bullet was still lodged in Mitchell's buttock and that Mitchell had a drainage tube in her abdomen; pain; On September 7, 1982, Mitchell suffered from pelvis and mouth On January 14, 1983, the Respondent noted that Mitchell suffered from pain in the buttocks and back; On April 6, 1984, Respondent noted that Mitchell had pain in her back near her buttock area; On August 7, 1984, Respondent noted that Mitchell was still experiencing back pain; On April 18, 1983, Respondent noted that Mitchell was experiencing pain. Between December 23, 1983, and August 24, 1984, Respondent prescribed 180 doses of Percodan to Mitchell. Respondent was aware that Mitchell was becoming dependent on Percodan. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Mitchell suffered between December 23, 1983 and August 24, 1984. The dosages of Percodan which Respondent prescribed to Mitchell were within the recommended limitations established for that drug in the PDR. Respondent treated patient Rhona Molin from September of 1981 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Molin was being treated "for nervousness and being very high strung." Based on information contained in the Respondent's office records during the period which Molin was treated by Respondent, the following medical history is disclosed: In 1981, Molin suffered from colitis and stomach pain; In 1981, Respondent noted that Molin had bursitis in her right shoulder; In 1982, Molin suffered from right arm pain; On March 16, 1984, Respondent noted sporadic stomach pain; On June 1, 1984, Respondent noted that Molin was nervous and experiencing severe stomach pain; On August 28, 1984, Respondent diagnosed Molin as having colitis. Between December 21, 1983 and August 28, 1984, the Respondent prescribed 300 doses of Tuinal to Molin. Tuinal, in the amount prescribed, could be an appropriate drug with which to treat sleeping problems arising from the medical conditions with which Molin suffered between December 1983 and August 1984. The dosages of Tuinal which Respondent prescribed to Molin were within the recommended limitations established in the PDR. The Respondent's medical records pertaining to Molin do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient John Skilles from May of 1981 through October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Skilles was being treated for severe pain and bursitis in both shoulders. The Respondent further stated that Skilles was provided two prescriptions for fifty (50) doses of Percodan on the same date because he could not afford to have a prescription for one hundred (100) Percodan filled at one time. Based on information contained in hospital records and the Respondent's office records during the period in which Skilles was treated by Respondent, the following medical history is disclosed: Respondent noted on May 25, 1981, that Skilles was shot five or six times in an accident at Camp Pendelton while he was in the military. Respondent noted that his upper body was full of lead shot; On September 14, 1981, the Respondent noted that Skilles was experiencing pain in both shoulders; On December 7, 1981, the Respondent indicated that Skilles was still experiencing shoulder pain; On August 30, 1982, Respondent noted that Skilles was in an automobile accident and injured the left side of his chest; On October 1, 1982, Respondent noted that Skilles was still experiencing shoulder and chest pain; On June 3, 1983, the Respondent noted that Skilles had pain in both shoulders and was unable to work (Skilles was a painter); On September 6, 1983, the Respondent noted that Skilles was experiencing severe pain in his shoulder. On December 28, 1983, Respondent noted chest pain, and on February 17, 1984, and March 26, 1984, it was noted that Skilles was still experiencing chest pain; On June 13, 1984, the Respondent noted that Skilles had bursitis in both shoulders and was suffering from insomnia; On October 1, 1984, the Respondent noted that Skilles suffered from severe pain in the shoulder and chest. Between August 11, 1983, and September 1, 1984, the Respondent prescribed 90 doses of Tuinal and 600 doses of Percodan to Skilles. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Skilles suffered between August 1983 and September 1984. Respondent's medical records pertaining to Skilles do not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests or the results thereof, or x-rays. The Respondent treated patient June Sweeney between February of 1980 and August of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Sweeney for nervousness and insomnia. Based on information contained in Respondent's office records during the period in which Sweeney was treated by Respondent, the following medical history is disclosed: In 1980, Sweeney was having difficulty sleeping and was experiencing back pain; In 1982, Sweeney was involved in an automobile accident and experienced more back pain; In 1982, Sweeney experienced severe back pain. In August of 1984 Sweeney returned to Respondent's office complaining of pain and insomnia. On August 9, 1984, the Respondent prescribed 30 doses of Percodan and 30 doses of Tuinal to Sweeney. Percodan and Tuinal, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Sweeney suffered. The dosages and Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations as established for those drugs in the PDR. The Respondent's medical records pertaining to Sweeney did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Mike Sweeney from April of 1979 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Mr. Sweeney for "various things, including back pain and insomnia." Based on information contained in hospital records and the Respondent's office records during the period in which Sweeney was treated by the Respondent, the following medical history is disclosed: Prior to being seen by Respondent, Sweeney had surgery on his left buttock in 1978. On March 12, 1979, Sweeney fell and injured his back; In May of 1979, Sweeney was beaten up and his left eye was swollen; In 1980, the Respondent noted that Sweeney was still experiencing back pain; On May 11, 1981, the Respondent noted that Sweeney was still experiencing back pain and was experiencing difficulty sleeping as well; On August 4, 1981, Respondent again noted that Sweeney was still experiencing back pain; Between December 1983 and September 1984, Respondent prescribed 240 doses of Tuinal and 48 doses of Percodan to Mike Sweeney. On one occasion, the Respondent prescribed two thirty-dose prescriptions of Percodan to Sweeney on the same day. The Respondent stated that it was cheaper to prescribe multiple prescriptions of thirty doses than one prescription for sixty. Tuinal and Percodan, in the amounts prescribed could be appropriate drugs with which to treat pain and sleeping problems associated with medical conditions such as those with which Mike Sweeney suffered between December 1983 and September 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations established for those drugs in the PDR. The Respondent treated patient Ivan Weithorn from November of 1970 through September of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that she treated Weithorn for back and shoulder pain and insomnia. Based on information contained in the Respondent's office records during the period in which Weithorn was treated by Respondent, the following medical history is disclosed: In 1977, Respondent recorded that Weithorn had dental work done and a root Canal was done along with oral surgery; In 1978, Respondent noted that Weithorn had pain in his right elbow; In 1982, the Respondent noted that Weithorn fell and hit a table; In August 1983, the Respondent noted that Weithorn had an abscess on his left forearm and in December 1983 noted that he had an infected finger on his left hand; On February 3, 1984, Respondent noted that the patient had sustained a puncture wound in his upper lip. Between December 9, 1983, and August 27, 1984, the Respondent prescribed 360 doses of Tuinal and 600 doses of Percodan to Weithorn. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Weithorn suffered between December 1983 and August 1984. The dosages of Percodan which Respondent prescribed to Weithorn were within the recommended limitations established for that drug in the PDR. The dosages of Tunial which Respondent prescribed to Weithorn slightly exceeded the recommended dosage contained in the PDR. The FOR recommends one Tuinal per day. In this instance, 360 Tuinal were prescribed over a 300-day period. It may be appropriate for a physician in the exercise of his or her professional judgment, to slightly exceed the recommended dosage of a particular drug if the patient has developed a tolerance to the effects of the substance. Respondent's medical records pertaining to Weithorn do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, or x-rays. All of the Respondent's medical records were stored in a plastic shoe- box like container and were maintained on 3 X 5 index cards. The use of small file-type index cards for the maintenance of a physician's office medical records was prevalent about 20 to 25 years ago. Today, most physician's written medical records are maintained in standard size folders and include laboratory tests, examination results, hospital records, discharge summaries and letters from consulting physicians. Although Respondent sometimes indicated a diagnosis on an initial visit, she rarely noted the diagnosis, objective findings or subjective symptoms of the patients on return visits. On some occasions, a subjective complaint such as "pain" was the only symptom recorded. Extensively within the Respondent's medical records upon a return visit of a patient, nothing was recorded except a prescription, the number of doses and the office charge. Occasionally, a blood pressure or temperature reading was recorded by Respondent. Except for the prescription of pain and sleep-inducing medication, the Respondent's written medical records for the patients described herein failed to demonstrate or indicate the Respondent's overall treatment plan for the patients. In order to justify a course of medical treatment which includes the long term use of Schedule II controlled substances, good medical practice requires that a physician's written patient medical records contain subjective findings (i.e. complaint, onset, duration and severity), a patient history and objective, physical findings made by the physician and/or confirmed and disclosed through laboratory tests or x-rays. The medical records maintained by Respondent on the patients described herein contained only anecdotal information about the patients and contained only scant subjective and objective findings, contained no medical histories and no laboratory results or x-rays. The records maintained by Respondent during the periods when Schedule II controlled drugs were prescribed to the patients herein were inadequate and demonstrated a failure to provide medical care at the minimum level of skill and care required of a reasonably prudent physician under similar conditions. Episodic treatment or care is defined as treatment of symptoms or problems as they present themselves in a patient without any consideration of the root causes of the symptoms, the long term affects the problem may have on the patient, and no consideration of a viable treatment plan. Episodic treatment is considered very poor quality medical care and is a type of treatment which is below the standard of care which is recognized by reasonably prudent physicians as being acceptable. This type of treatment is especially unacceptable when provided to a patient on a long term basis. The patients described herein had medical conditions which could have caused moderate to moderately severe pain and/or sleep disorders. Moderate to moderately severe pain may be defined as pain that interferes with a person's ability to lead a normal life and to perform the daily activities of living which they would normally perform. Chronic pain patients present a difficult challenge to the treating physician because pain is not usually a directly measurable disability. Some patients require greater or lesser amounts of pain medication to relieve a similar amount of pain than do other patients. It may be appropriate and ethical for a physician to prescribe a Schedule II controlled drug to relieve a patient's pain even though the patient may have developed a tolerance to or dependence on the substance. In each instance described herein, the Respondent prescribed the medication in question in a good faith effort to either relieve pain or induce sleep in the patients that she was treating. There was no evidence that any of the drugs prescribed to the patients discussed herein were ever resold on the streets or used by anyone other than the patients for whom they were prescribed. Doctors Handwerker and Frazier testified on behalf of the Petitioner. Neither Dr. Handwerker nor Dr. Frazier examined any of the fifteen patients described herein nor had they reviewed or seen any of the patient hospital records. The Respondent has privileges at the North Shore Hospital in Miami and enjoys an excellent reputation among her fellow physicians as a person of good character and as a dedicated provider of medical treatment. In addition, the Respondent is known among her colleagues as a physician that devotes a substantial portion of her time treating indigent patients. The Respondent cooperated fully with DPR Investigator Lichtenstein during the initial investigation of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and a consideration of the aggravating and mitigating factors delineated in Rule 21M- 20.01, F.A.C. it is, RECOMMENDED that a Final Order be entered assessing a $2,000 administrative fine. It is further recommended that Respondent's license to practice medicine in the State of Florida be placed on probation for a period of three (3) years under the following terms and conditions: Respondent shall make semi-annual appearances before the board. Respondent shall not use, dispense, administer, or prescribe Schedule II controlled substances, except in a hospital setting. Respondent shall successfully complete fifty (50) hours annually of Category I Continuing Medical Education. The primary subject matter of each course taken must involve Pharmacology, General Medicine and/or Medical Record- Keeping. DONE and ORDERED this 17th day of December, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0995 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 2, 3 and 8. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as unnecessary. At the final hearing, the Petitioner was allowed to amend the Administrative Complaint to reflect that Mary Dukes received zero (0) doses of Percodan. Thus, any findings regarding the prescribing of Percodan to patient Mary Dukes is unnecessary. Adopted in Findings of Fact 11 and 13. Adopted in Findings of Fact 18 and 20. Rejected as subordinate. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 34. Adopted in Findings of Fact 32 and 35. Adopted in Findings of Fact 38 and 40. Adopted in Findings of Fact 43 and 45. Adopted in Findings of Fact 47 and 49. Adopted in Findings of Fact 53 and 55. At the final hearing the Petitioner was allowed to amend the complaint to reflect that zero (0) doses of Percodan were prescribed to patient James Sams. The Petitioner stated that it was determined by Investigator Lichtenstein after viewing the signature of the Respondent and those upon the prescriptions acquired from the various pharmacies that all prescriptions for patient Sams were forgeries. There- fore, Findings of Fact involving prescriptions to patient James Sams are unnecessary. Partially adopted in Findings of Fact 58 and 60. Matters not contained therein are rejected as unnecessary. Adopted in Findings of Fact 63 and 65. Adopted in Findings of Fact 69 and 71. Adopted in Findings of Fact 74 and 76. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 83. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Addressed in the Procedural Background section. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 84. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as subordinate and/or a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 83. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 85. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Adopted in Findings of Fact 85 and 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 82. Addressed in Procedural Background section. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Rejected as subordinate and unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/or subordinate. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Findings of Fact 68 and 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 79 and 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Findings of Fact 85 and 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 86. Rulings on Proposed Findings of Fact Submitted by the Respondent (The Respondent's Findings of Fact were un-numbered. For the purpose of this Appendix, each paragraph in the Findings of Fact submitted by the Respondent was assigned a number in chronological order beginning with Paragraph Number 1.) Adopted in Finding of Fact 1. Addressed in Conclusions of Law Section. Addressed in Procedural Background section. Partially adopted in Findings of Fact 9 and 87. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as argument end/or subordinate. Rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 2, 3, 4, 5, 6, 8, 9 and 10. Rejected as unnecessary. Adopted in substance in Findings of Fact 11, 12, 13, 14, 15 and 16. Adopted in substance in Findings of Fact 18, 19, 20, 21, 22, 23 and 24. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in substance in Findings of Fact 20, 21, 22, 23 and 24. Adopted in substance in Findings of Fact 26 and 27. Adopted in Finding of Fact 27. Adopted in substance in Findings of Fact 27, 28, 29 and 30. Adopted in substance in Findings of Fact 32 and 33. Adopted in substance in Findings of Fact 34, 35 and 36. Adopted in substance in Findings of Fact 38 and 39. Adopted in substance in Finding of Fact 39. Partially adopted in Findings of Fact 40 and 41. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 43 and 44. Adopted in substance in Finding of Fact 44. Partially adopted in Finding of Fact 46. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 47 and 48. Adopted in substance in Finding of Fact 48. Partially adopted in Findings of Fact 49, 51 and 52. Matters not contained therein are rejected as mis- leading. Adopted in substance in Findings of Fact 53 and 54. Partially adopted in Findings of Fact 55 and 56. Matters not contained therein are rejected as mis- leading. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in Findings of Fact 58 and 59. Adopted in substance in Finding of Fact 59. Adopted in substance in Findings of Fact 60 and 61. Adopted in substance in Findings of Fact 63 and 64. 36. Adopted in substance in Findings of Fact 65, 66 and 67. Adopted in substance in Findings of Fact 69 and 70. Adopted in substance in Findings of Fact 71, 72 and 73. Adopted in substance in Findings of Fact 74 and 75. Adopted in substance in Findings of Fact 76, 77 and 78. Rejected as a recitation of testimony and/or subordinate. Rejected as argument. Rejected as a recitation of testimony. Rejected as argument. Adopted in substance in Finding of Fact 88. Partially addressed in Procedural Background section. Matters not contained therein are rejected as recitation of testimony. Adopted in Finding of Fact 5. 48. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 16. Rejected as argument and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as unnecessary. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 88. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 89. Partially addressed in Procedural Background section. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 6 and 10. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 5. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 23. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Addressed in Procedural Background section. Rejected as subordinate. Partially adopted in Finding of Fact 87. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 87 and 88. Matters not contained therein are rejected as argument and/or a recitation of testimony. Rejected as argument. Partially adopted in Finding of Fact 81. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 90. Matters not contained therein are rejected as subordinate. COPIES FURNISHED: David F. Bryant, Esquire 1107 E. Jackson Street Suite 104 Tampa, Florida 33602 Michael I. Schwartz, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
