The Issue The issue to be resolved in this proceeding concerns whether the Respondent is guilty of certain alleged violations of Section 458.331(1)(m), (q), and (t), Florida Statutes, concerning his treatment of one patient during 1984 and 1985 and, if so, what penalty is warranted.
Findings Of Fact The Respondent, Samir Najjar, M.D., is a licensed physician in the State of Florida, having been issued License No. ME0041782. He has been licensed as such at all times pertinent hereto. He received his medical degree from the University of Mexico in 1978. He performed an internship and residency in internal medicine at the Greater Baltimore Medical Center, completing that in 1981. He then completed a fellowship in pulmonary medicine at Wayne State University in Detroit, Michigan, in 1983. He is board certified in internal medicine and holds a Ph.D. in pharmacology and toxicology from Howard University in Washington, D.C. Pharmacology is a specialized field of study in drug pharmacology. It includes the study of chemistry, the effects and uses of drugs, including their toxicology, the origin and nature of drugs, and the pharmacodynamics of drugs. A pharmacologist also studies the effects of drug combinations and their effects on various illnesses and on the body generally. The patient involved in this proceeding is an adult male, who was born on March 4, 1950. He had a long history of reactive, obstructive airway disease, beginning at the age of 17 months to approximately 14 years of age. Between the ages of 14 and 30, the condition alleviated substantially so that he only had very occasional shortness of breath, which could be treated with bronchodilator inhalers. In April of 1980, however, the patient suffered an acute onset of shortness of breath, which condition worsened. He was treated by physicians with a course of Prednisone, an oral steroid medication, for some two to three weeks. This was prior to his being treated by the Respondent. The patient’s condition improved with the Prednisone therapy, but he experienced increasing shortness of breath one to two weeks after terminating that therapy. His shortness of breath become acute, resulting in a respiratory arrest and coma in May of 1980. The patient experienced a hypoxic seizure (lack of oxygen) and was hospitalized at St. Vincent’s Hospital in Jacksonville, Florida, for approximately seven days. Between April of 1980 and July of 1984, he was hospitalized 12 to 15 times for exacerbations of the asthma condition. During this time, he required intubation, or the placing of a breathing tube in the trachea, due to respiratory arrest on three or four occasions, the last one being in December of 1983. The patient has clearly been steroid dependent, with outpatient doses ranging from 5 milligrams four times per day of Prednisone to 35 milligrams twice per day of Medrol through September of 1984. Between July and September of 1984, the patient was receiving 35 milligrams twice per day of Medrol, also an oral steroid. The patient was primarily treated by Edward A. Mizrahi, M.D., between June of 1984 and June of 1985. Dr. Mizrahi is an allergist in Jacksonville, Florida. Prior to that time, he was treated by Irwin Schneider, M.D., a pulmonologist in Jacksonville, Florida. Upon initial presentation to Dr. Mizrahi, the doctor felt that the patient had severe steroid-dependent bronchial asthma with corticosteroid side effects. Patients who have life- threatening asthma are typically treated with anti-inflammatory medications, such as corticosteroids. Severe asthmatics can have life-threatening risks from their condition and will die, on many occasions, without the administration of steroid medications. Thus, such patients must take these medications to survive. Steroids have significant adverse side effects, including “cushinoid features”, development of cataracts and the development of osteoporosis. Despite such adverse side effects, the use of corticosteroids may be necessary in order to simply allow the patient to survive. The subject patient was in such a category. The patient suffered from many of the side effects from long-term steroid use. Dr. Mizrahi noted compression fractures of the spine, cataracts, peptic ulcer disease, and weight gain during his initial evaluation of the patient on June 11, 1984; and on October 10, 1984, noted cushinoid appearance or features. This was before the patient was ever seen or treated by the Respondent. On August 20, 1984, Dr. Mizrahi arranged for the patient to be evaluated at the National Asthma Center (Center) of the National Jewish Hospital and Research Center in Denver, Colorado. This is a specialty facility for the treatment of asthma and is commonly referred to as a “court of last resort”, where pulmonologists refer patients with difficult asthmatic conditions which have not as yet responded satisfactorily to treatment regimens. Between September 12, 1984 and September 16, 1984, the patient was evaluated and treated at the Center. The Center noted the patient’s long history of severe asthma and resultant steroid dependency. Upon initial evaluation, the physicians at the Center felt that the patient would probably require continuing steroid therapy, but they did attempt to reduce the steroid dosage. The attempt to reduce the steroid dosage in the patient was unsuccessful, and the Center ultimately had to increase the steroid dosage. The patient was discharged from the Center on an oral steroid medication, Medrol, 20 milligrams, alternating with 40 milligrams, four times per day. This is considered a high dose of steroid medication and was reluctantly arrived at and prescribed by the physicians at the Center after they made bona fide attempts to wean the patient from steroids to the extent possible. During his hospitalization, the physicians at the Center noted that the patient gave a “convincing history for ischemic heart disease”. They suggested an investigation to determine the presence of this condition. Upon the patient’s return to Jacksonville, Florida, he continued to be treated by Dr. Mizrahi and continued to receive oral steroid medication in high doses. Additionally, he was receiving Halcion, Adivan, Fiorinal, and Fastin. The Respondent first saw the patient on June 13, 1985 upon a referral from Dr. Samara, a urologist in Jacksonville, Florida, who had some contact with the patient. The Respondent took an extensive history from the patient, including a list of the current medications he was receiving from Dr. Mizrahi, which then included Medrol, 24 milligrams, four times per day, with a bolus of Medrol as needed of 60 milligrams four times per day for 48 hours, followed by 30 milligrams four times per day for two weeks. The patient was also receiving Halcion at 0.25 milligrams at bedtime and Adivan at 2 milligrams. The Respondent had the impression that the patient suffered from asthma and possibly from coronary artery disease. Due to the possibility of coronary artery disease, which had been raised during the admission at the Center, the Respondent hospitalized the patient from June 17, 1985 to June 22, 1985 at St. Vincent’s Medical Center in Jacksonville, Florida, to investigate the coronary situation. During this hospitalization, an extensive history and physical were performed, including a neurological examination of the patient. A cardiac workup was performed by consulting cardiologist, Joel Ferree, M.D. This included a cardiac catheterization performed by Dr. Ferree, which indicated that the patient had normal right ventricular function, no significant arteriosclerotic lesions, and no significant artery response to adrenergic agonist agents. The cardiac catheterization reported normal left ventricular function. The cardiac catheterization report ruled out any cardiomyopathy. During this hospitalization, the Respondent also ordered x-rays of the cervical and thoracic spine. The x-rays revealed “mild, old compression deformities of the eighth and ninth thoracic vertebral bodies, with no change since a previous examination on November 30, 1983”. This x-ray report was consistent with the previously- reported compression deformities, or compression fractures, which are the result of osteoporosis. Osteoporosis leaves the bones weak, with loss of trabeculation. The patient’s vertebra were already being crushed as of June of 1985, when the Respondent undertook his care. At the time of discharge from this hospitalization, the Respondent recorded that he would like to wean the patient off steroids over several months. The Respondent continued to treat the patient through April of 1989. During this period of time, the asthma was reasonably controlled with the use of steroid medications and bronchodilaters. Unlike the previous few years, the patient only required hospitalization for treatment of exacerbation of asthma symptoms on one occasion, on November 7, 1985. During this period of treatment, he never had a respiratory arrest and intubation was never required. The Respondent would wean the patient from the use of steroids during this period of treatment when the symptoms allowed. When the symptoms were exacerbated, he would provide prescriptions for corticosteroids so as to address the patient’s condition. The Respondent made numerous attempts to wean the patient off high-dose steroid medication, but the patient’s condition would not permit a cessation of it. The fact that the Respondent was unable to wean the patient from steroids is not surprising to physicians who treat such a condition. It is not a deviation from the accepted standard of care. The patient had a very significant case of asthma, which was life threatening, as demonstrated by the records of not only the Respondent, but the prior treating physicians. His asthma was so significant that he had to receive steroid medication, despite the significant side effects caused by such medication, in order to insure survival. During the course of treatment, the Respondent also treated the patient for cervical strain and low-back pain. His compression fractures were a source of great pain, justifying the prescription of narcotic analgesics. The Respondent’s treatment for these conditions included physical therapy, paralumbar trigger point injections, biofeedback, TENS Unit, ice packs, as well as drugs, including muscle relaxants and analgesics. The Respondent also referred the patient for examination by orthopedic physicians and neurologists. These efforts were appropriate and within the standard of care. The prescriptions for Flexeril, Fiorinal, Lortab and Tylox and other medications for the control of back pain and muscle spasms were appropriate and under the circumstances of this severely-distressed patient, were within the standard of care. The Respondent, on occasion, prescribed medications for control of insomnia, including Halcion. These same medications had previously been prescribed for the patient by Dr. Mizrahi for the same condition and were appropriate prescriptions. The corticosteroids and other medications used to control asthma can produce a side effect of insomnia. This manifestation must be treated for the benefit of the patient. The prescriptions for Halcion were appropriate and within the standard of care. An additional side effect of steroid medication is weight gain. The Respondent advised the patient regarding dietary control for his weight to alleviate such a problem. The patient, however, exhibited substantial weight gain. Therefore, the Respondent prescribed a limited amount of Fastin, an appetite suppressant. Physicians must use medications such as Fastin with caution on patients with significant hypertension. The patient’s blood pressure, however, was not significantly elevated; and his blood pressure was being monitored during his use of Fastin. The use of Fastin by this patient did not cause a significant increase in his blood pressure. Fastin is a sympathomimetic amine. It is not a true amphetamine. It is appropriately prescribed for weight control and this patient had exhibited an increase in weight, doubtless due to a side effect of the steroid medications. Increased weight in the patient was medically significant because he already had compression fractures of his vertebrae caused, no doubt, by osteoporosis, also attributable to side effects of steroid medications. Increased weight could exacerbate his skeletal problem and cause additional pain. Increased weight is also dangerous for patients with asthma, in any event, because it severely taxes the respiratory system and can make intubation, if necessary, more difficult. The Respondent’s prescriptions for Fastin were shown to be appropriate and within the standard of care, as demonstrated by the expert testimony of Dr. Miller and the other testimony in evidence offered by the Respondent. During treatment of the patient, the Respondent prescribed Adivan also. Adivan is a muscle relaxing drug, and it was shown to be appropriately within the standard of care for physicians confronted with a patient with the multiple problems exhibited by this one. Although there can be some concern about mood alteration under certain circumstances with the use of Adivan and perhaps to some extent with Halcion, the Respondent did perform mental status examinations and referred the patient for evaluation when indicated. During his treatment of the patient, there was never any symptom of suicidal ideation expressed by the patient. There was no reason demonstrated which would justify the referral of the patient to a psychiatrist at an earlier date in the subject situation. The testimony of Dr. Miller and the other experts adduced by the Respondent shows that under the peculiar circumstances of this patient, the use of Adivan, as well as Halcion, in conjunction with the other medications the patient was taking, was medically justified and within the appropriate standard of care. It has been demonstrated that the medical records maintained by the Respondent justify the course of treatment of the patient, as shown by testimony of record at pages 105 and 106 of the transcript of the proceedings and Respondent’s Exhibit 1 at pages 52-54. The Respondent practiced with that level of care, skill and treatment recognized as appropriate to meet the standard of care for similar physicians. Upon weighing the expert testimony adduced by the parties, it is determined that the expert testimony presented by the Respondent was more persuasive and creditable than that presented by the Petitioner. The Petitioner’s expert, Dr. Kreitzer, relied upon some flawed information in developing his expert opinions, including, but not limited to, his reliance upon compilations of prescription information which was not established as accurate in the course of this proceeding, being merely computer printouts from records of pharmacists. Those records do not, for instance, even show that the Respondent prescribed all of those medications represented thereon. Dr. Kreitzer’s opinion was also flawed because his belief was based, in part, on his understanding that the patient was suffering from cardiomyopathy, when that condition had already been ruled out by cardiac tests performed upon the Respondent’s order during the June of 1985 hospitalization. Dr. Kreitzer’s mistaken belief that Fastin is an amphetamine, which it is not, also detracts from the weight which can be ascribed to his opinion. Further, Dr. Groble, the other expert presented by the Petitioner, cannot be relied upon because in his testimony he admits that he cannot render an opinion that the Respondent departed from appropriate standards of care in his practice with regard to the subject patient in the instances alleged in the Administrative Complaint because he had not seen all of the Respondent’s pertinent medical records. Consequently, he could not render a definitive opinion, one way or the other. The Respondent’s expert witnesses, Dr. Miller and Dr. Sharpe, are accepted as more credible than the Petitioner’s expert testimony. Both Drs. Miller and Sharpe indicated that they had reviewed, in some depth, the medical records which the Respondent maintained concerning the patient and those records and the history pertaining to treatment rendered by other physicians and the Center. Their testimony revealed an in-depth study, reflection and consideration of the concededly large doses of multiple medications, some of which have significant side effects. They regrettably agree, that confronted with a complex, life-threatened patient, such as this, the Respondent could have done little else than follow the course of treatment and medication pattern and practice which he followed. While these experts and the Respondent, in the course of treatment, recognized the risks attendant to the engendering of dependency on the steroids and the use of the other medications, they acknowledged that under the circumstances there was little else that could be done in order to keep the patient stable, accord him some quality of life, and even to save his life. In summary, it has not been established that the Respondent failed to adequately keep written medical records which justify the course of treatment of the patient. It has not been established that the Respondent prescribed legend drugs, including controlled substances, other than in the course of his professional practice, nor has it been established that he prescribed legend drugs in excessive quantities and in excessive combinations or, otherwise, inappropriately in relation to generally-accepted medical practice. It has not been established that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Board of Medicine dismissing the Administrative Complaint in its entirety.DONE AND ENTERED this 5th day of February, 1997, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1997. COPIES FURNISHED: Albert Peacock, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Bruce D. Lamb, Esquire SHEAR, NEWMAN, ET AL. Post Office Box 2378 Tampa, Florida 33602 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of subsections (m), (q), and (t) of Section 458.331(1) Florida Statutes.
Findings Of Fact At all times material to this case, the Respondent, Anthony Glenn Rogers, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is ME 0062034. Dr. Rogers is a pain management specialist. Dr. Rogers is certified by the American Board of Anesthesia and the American Academy of Pain Management. On October 20, 1998, Patient N. A. presented to the Respondent with complaints of chronic back pain following two motor vehicle accidents and three back surgeries. At that time Patient N. A. was an adult female approximately 32 years of age. Immediately prior to her presentation to the Respondent she had been treated for a period of approximately five months by Dr. Robert E. Lentz who, at that time, also specialized in pain management in the same geographic community as the Respondent.2 In May of 1998, Dr. Lentz's initial treatment plan for the Patient N. A. was as follows: There is no surgical procedure indicated nor is there any blocks indicated for this patient at this time. Medications will be the patient's mainstay of therapy. Therefore at this time we will renew her prescriptions with the following changes we will try to reduce the amount of Dilaudid for breakthrough pain by increasing her MS Contin from 60 mg. q.d. to 60 mg. b.i.d and the Dilaudid remaining for breakthrough pain. The patient will phone in a few days to update her progress on the new medication regimen. When the Patient N. A. first presented to the Respondent, she was taking the following medications in an effort to relieve her chronic back pain: MS Contin, Dilaudid, Effexor, and Klonopin. Prior to her treatment by Dr. Lentz and by the Respondent, the Patient N. A. had been treated for many years by physicians in the state where she previously resided. That treatment had included three back surgeries and numerous other invasive procedures for the purpose of trying to relieve her chronic back pain. Some of those prior invasive procedures had produced life threatening consequences. None of the prior invasive procedures had produced any beneficial effects. By the time the Patient N. A. presented to the Respondent, she was strongly opposed to any further surgical or other invasive procedures. Her opposition was based on her prior experiences which indicated that such procedures could be risky, could be painful, and in the past had not provided her with any benefit. The Respondent's records of Patient N. A.'s first visit to his office indicate that he performed a physical examination of the patient, but the records do not document a complete physical examination. The documentation issue aside, the Respondent's initial physical examination of Patient N. A. was sufficient and appropriate under the circumstances. The history memorialized in the Respondent's records of his initial consultation with Patient N. A. was sufficient and appropriate. In the care and treatment of a patient who presents with the history, signs, and symptoms, presented by the Patient N. A. on her initial presentation, the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances requires that the initial physical examination of the patient include a neurological or reflex assessment and a range of motion examination. The Respondent's medical records of the initial presentation of the Patient N. A. do not include a notation that the Respondent conducted a neurological or reflex assessment or a range of motion examination on that occasion, even though the Respondent performed such assessments and examinations during the patient's initial visit. The Respondent initially diagnosed Patient N. A.'s condition as "chronic lower back pain, failed back syndrome." This was a sufficient diagnosis, especially in view of the patient's long history of treatment for the same condition.3 The Respondent's initial plan of treatment for Patient N. A. was to obtain the patient's old medical records, discuss epidural adhesionolysis, and to follow up in one week. He prescribed Oxycontin, 80 mg. (three tablets, three times a day) and Dilaudid, 4 mg., for breakthrough pain. During the course of the next eighteen months,4 the Patient N. A. continued to see the Respondent for care and treatment of her "chronic low back pain, failed back syndrome." During that period of time, she saw the Respondent an average of about twice a month. During that period of time the Respondent continued to prescribe Oxycontin and Dilaudid for her. He also prescribed other medicines from time to time in his efforts to relieve her chronic pain. At all times material to this case, the Patient N. A. was enrolled in a Humana HMO. The Respondent was not a participating provider with that HMO. The Respondent was not the "primary physician" for the Patient N. A. in her HMO plan. At the time the Patient N. A. first went to see the Respondent, she was experiencing some difficulties in her relationship with her HMO and for a period of several months she did not have a "primary physician." Shortly after he began the care and treatment of the Patient N. A., the Respondent felt that it would be beneficial to the care and treatment of the patient for her to have an MRI examination. Because the Patient N. A. did not have a "primary physician" at that time, the Respondent contacted the HMO in an effort to persuade them to authorize an MRI examination for the Patient N. A. The Respondent's efforts in this regard were unsuccessful because the HMO did not want to discuss any substantive issues with him since he was not one of their participating physicians. Eventually, the Respondent was able to have the Patient N. A. admitted to a hospital via the emergency room and during the course of that admission was able to arrange for the patient to receive an MRI examination. On January 22, 1999, the Respondent increased Patient N.A.'s prescription of Oxycontin, 80 mg., to four tablets, three times a day. The Respondent also continued to prescribe Dilaudid for the patient to take for breakthrough pain. The Respondent did not document a physical examination on that date. On April 13, 1999, the Respondent increased Patient N. A.'s prescription of Oxycontin, 80 mg., to five tablets, three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On June 11, 1999, the Respondent doubled Patient N. A.'s prescription of Oxycontin, 80 mg., from five tablets, three times a day, to ten tablets three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On June 28, 1999, the Respondent increased Patient N. A.'s prescription of Oxycontin, 80 mg., to eleven tablets, three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On August 2, 1999, the Respondent increased Patient N. A.'s prescription of Oxycontin, 80 mg., from eleven tablets, three times a day, to thirteen tablets, three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On September 2, 1999, Patient N. A. presented to the Respondent with complaints of continued pain and headaches. The Respondent increased her prescription of Oxycontin, 80 mg., from thirteen tablets, three times a day, to twenty tablets, three times a day, and he also gave her prescriptions for Oxyfast liquid and Fioricet for her headaches. The Respondent's medical records for that date did not document a physical examination on that date. Other dates on which the Respondent increased Patient N. A.'s prescriptions without adequately documenting a physical examination were November 23, 1998, and April 26, 1999. Also, on December 30, 1999, at which time the Patient N. A. presented with a complaint of a new injury to her lower back and left leg, the Respondent's medical records do not adequately document a physical examination on that date. The level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances requires, at a minimum, that under the circumstances described in paragraphs 12 through 18, above, the physician must conduct at least a focussed physical examination of the patient and must include in the patient's medical records a description of the types of physical examinations conducted and the results of such examinations. In order to achieve the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in the care and treatment of a patient such as the Patient N. A., the physician should conduct at least a focused physical examination of the patient before increasing the patient's pain medications. Such a physical examination should also be conducted where there is a significant change in the patient's condition. This type of focused physical examination could include such matters as observation of the patient, palpation, range of motion tests for the back and legs, reflex tests, strength tests, sensation tests, and observation of the patient's gait. The Respondent is still providing care and treatment for the Patient N. A. The patient seems to be satisfied with the care she is receiving from the Respondent and also seems to be very appreciative of the efforts the Respondent has made on her behalf. She is also appreciative of the fact that the Respondent has provided some of his services to her without seeking compensation for his services. In the course of his professional career, the Respondent has not had a patient who presented a case as complicated as that presented by the Patient N. A. Cases of this level of complexity are very rare; so rare that in an entire career of a physician specializing in pain management it is unlikely that the physician would see more than two or three such cases. During the course of his care and treatment of the Patient N. A., the Respondent discussed with her just about every procedure that was available to attempt to relieve her chronic back pain. The Patient N. A. was opposed to any form of invasive procedure and hoped to be able to achieve relief from her pain through the use of medicines. During the course of his care and treatment of the Patient A. N., the Respondent never felt there were any secondary gain issues or diversion issues. During the course of his care and treatment of the Patient N. A., the Respondent knew that she was also seeing a psychiatrist at the same time and that she was receiving prescriptions from the psychiatrist. On a number of occasions the Respondent and the Patient N. A. discussed her psychiatric care, and on one or two occasions the Respondent spoke directly to her treating psychiatrist. During the course of his care and treatment of the Patient N. A., the Respondent recommended that the patient be seen by an orthopedic surgeon. However, he could not refer her to an orthopedic surgeon because he was not a Humana HMO provider and the Humana HMO did not honor or recognize his referrals.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Count One of the Administrative Complaint for insufficient evidence to establish a violation of Section 458.331(1)(t), Florida Statutes; Concluding that the Respondent is guilty of having violated Section 458.331(1)(m), Florida Statutes, in some of the ways charged in Count Two of the Administrative Complaint; Dismissing Count Three of the Administrative Complaint for insufficient evidence to establish a violation of Section 458.331(1)(q), Florida Statutes; and, Imposing a penalty on the Respondent consisting of the following: (1) a requirement that the Respondent pay, within 180 days of the issuance of the final order in this case, an administrative fine in the amount of $1,000.00, and (2) a requirement that the Respondent complete, within 180 days of the issuance of the final order in this case, the FMA records- keeping course, or some similar course regarding the proper preparation of medical records. DONE AND ENTERED this 21st day of February, 2003, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 21st day of February, 2003.
The Issue This case concerns an administrative complaint brought by the State of Florida, Department of Professional Regulation, against Respondent, charging violations of provisions of Chapter 458, Florida Statutes. In particular, it relates to the treatment of the patient Sandra Gilhousen in the placement of an IUD and in the performance of an abortion. Respondent is also charged with misprescription of a controlled substance, Ionamin, for that patient. Respondent is also charged with misprescription of Ionamin, Demerol and Quaalude for the patient Betty Boling. Finally, Respondent is accused of misprescription of Demerol for the patient Margo Stewart. These allegations are more completely described in the conclusions of law.
Findings Of Fact William J. Lee, M.D., is a physician licensed to practice medicine in the State of Florida according to licensure by the State of Florida, Department of professional Regulation, Board of Medical Examiners, License No. ME012345. At all times relevant to this cause, he has held that license and has practiced general medicine and general surgery at Jacksonville Beach, Florida. Dr. Lee is a graduate of Emory University in 1958 and received an M.D. degree from Emory in 1964. His internship was done at the University of Florida, followed by residency and general surgery at the University of Florida from 1965-1968, which was completed at the Duval Medical Center in Jacksonville, Florida, in 1969. After appropriate service of the subject administrative complaint, Respondent made a timely request for formal hearing pursuant to Subsection 120.57(1), Florida Statutes. SANDRA GILHOUSEN On January 5, 1983, Sandra Gilhousen went to the office of Respondent in Jacksonville Beach, Florida, for purposes of the placement or insertion of an IUD. She filled out a patient history information form to the extent as reflected in a copy of that form found in Petitioner's composite Exhibit No. 5, admitted into evidence. That information included home address, employment status, occupation, phone number and age. No information was given or requested on the subject of her past medical history, other than Dr. Lee asking if she suffered any allergies. During the examination process and the subsequent placement of the IUD, the patient indicated that her menstrual cycle had concluded two or three days before, when in fact, she had missed a normal cycle and had suspicion of being pregnant. When the Respondent placed the IUD, there was some seepage of blood indicating to him that the menstrual cycle had just concluded as the patient had indicated. On the other hand, the uterus was enlarged which was consistent with pregnancy. The uterus was found to be mildly boggy upon the placement of the Intrauterine Device. It was the expectation of the patient that the placement of the IUD would cause her to abort the fetus. No pregnancy test was performed prior to the placement of the IUD and no laboratory work was done. These procedures were not performed, according to Lee, because he believed her when she said she had just concluded menses and she had a healthy appearance. Prior to the placement of the Intrauterine Device, Dr. Lee checked the patient's blood pressure, lungs, masses in the abdominal cavity and for pelvic irregularities. None of the results of these observations were recorded in her records with Dr. Lee. The notations in her record related to the visit simply indicates insertion of IUD and the cost of that service plus the cost of the device. At the conclusion of the procedure, Dr. Lee gave the patient a pamphlet related to the IUD and asked for her to make a return visit to make certain there were no complications. The patient Gilhousen and an acquaintance, Betty Boling, returned to Dr. Lee's office on January 7, 1983. The purpose of the visit was not the return visit contemplated by Dr. Lee related to the IUD. On this occasion, Gilhousen was provided a prescription for Ionamin, a medication which is a controlled substance used for weight control. Prior to being provided this prescription from Dr. Lee for 30 units in 30 milligram amounts, the blood pressure of the patient was taken. A copy of the prescription may be found as Petitioner's Exhibit No. 1, admitted into evidence. At that time, the patient weighed less than on the date of the final hearing in this cause. On the final hearing date, the patient was 5'5" tall and weighed 120 pounds. The patient Gilhousen had been weighed before the prescription was given but the weight is not recorded in her records held by Dr. Lee. No indication whatsoever is made of the prescription of the Ionamin or of any examination given prior to prescribing that substance. Dr. Lee did not do a full-scale examination, more than blood pressure and weight, when he prescribed the Ionamin, because in his mind he had observed the patient through an examination two days before when he placed the IUD. A pregnancy test was performed after January 5, 1983, not by Dr. Lee, and Gilhousen had her pregnancy confirmed. She then requested Dr. Lee to perform an abortion, with the understanding that the procedure would have to be done at the convenience of Dr. Lee, in that she did not wish to pay for that service immediately. Dr. Lee was made aware of the results of the pregnancy test prior to subsequently performing the requested abortion. He expected that he would be able to gain the assistance of Betty Boling when he performed that procedure. After a telephone conversation on the evening of January 14, 1983, Gilhousen went to Dr. Lee's office around 8:30 p.m. for the purpose of having the abortion done. As with the case with the IUD, no written consent was given to have the abortion done. Nonetheless, it was discussed with Dr. Lee and it was the desire of the patient Gilhousen to have the abortion. When Gilhousen arrived, the Respondent was smoking marijuana and asked her if she would be interested in marijuana, hashish or cocaine, which she declined. Dr. Lee was unattended by other staff at this time and throughout the abortion procedure. The patient was taken to a patient examining room and placed on an examining table where the abortion was done by D&C. The room had an operating light, necessary instruments to conclude the procedure, an electrocardiogram, suction devices, epinephrines, IV fluids and emergency drugs. No monitoring equipment was used during the procedure other than checking her blood pressure. Blood pressure had been checked prior to the procedure and Dr. Lee had listened to the patient's heart and lungs and a pelvic examination had been made. The procedure took approximately 40 minutes and the observation was made by Dr. Lee that the pregnancy was in the range of four to five weeks. No pregnancy test or laboratory work was done prior to the termination. Laboratory tests were not done because, according to Dr. Lee, this was Betty Boling's friend who didn't have any money. A pregnancy test was not done because Dr. Lee felt that this was an additional expense not necessary in that he believed the patient when she said that she had been informed of a positive pregnancy test. Missing information through laboratory work included Rh typing and a hemoglobin test. Related to the hemoglobin test, Dr. Lee observed that the patient's outward appearance was acceptable and that the mucous membranes had good color. Dr. Lee recognized the possibility of Rh factor problems in the sense of the mother being negative and the father positive as it might affect the next pregnancy of the patient pertaining to Rh incompatibilities. Again, the Rh testing was not done for financial reasons. Moreover, per Lee, the patient wanted the procedure done on that evening and the patient, as he understood it, did not wish to become pregnant in the future. Being unable to locate Betty Boling to assist, Dr. Lee decided to go forward with the procedure without an attendant being present. The patient was given Valium to calm her nerves and Dr. Lee utilized Stadol and Phenergan for sedation and as analgesic. Through this combination, the patient was placed in a sort of "twilight condition" on a plane which made her unconscious, but not a deep unconscious state. While giving her this medication, he asked her if she felt "sexually aroused." In Petitioner's Exhibit No. 5, the amounts and types of medication are recorded in the patient's chart and it is noted that the D&C was done and tolerated well. It is also noted that the patient was picked up by a friend and the charge of the procedure is given. Ergotamine was given to retract the uterus and minimize bleeding. No other information is recorded in the patient's chart. The patient's recovery from the medications in terms of regaining consciousness took longer than might be expected given the amount of medication. Notwithstanding the patient's slow recovery, Dr. Lee left the patient unattended later in the evening for reason that he felt that she was "ready to go home." After leaving the patient unattended, Respondent tried to gain the assistance of Betty Boling to take her home. Boling did not agree. When Dr. Lee returned to his office, which is also his place of residence, visitors came by and he consumed alcohol with those people. He then left a second time to make purchases at a store and when he returned, a Mr. Hobbs, who was a friend of Gilhousen, had arrived to pick the patient up. Hobbs observed Lee staggering and with slurred speech, indications of intoxication. Hobbs and Dr. Lee took Gilhousen to a car and she left with Hobbs. Gilhousen came back to Dr. Lee's office on January 15, 1983, to pick up her car and asked Dr. Lee if she needed to be prescribed any antibiotics for her post procedural circumstance. He told her that this would not be necessary at present and advised her to monitor her temperature. As reflected in Petitioner's composite Exhibit No. 5, Gilhousen was later seen at Memorial Hospital of Jacksonville related to her post abortion condition and was found to be acceptably recovering. It was noted on the basis of a pelvic sonogram that the abortion had been a success. Dr. Doris Newell Carson, M.D., a board-certified gynecologist and obstetrician, who practices in Jacksonville, Florida, was qualified as an expert and gave her medical opinion on the quality of the Respondent's performance in treating Ms. Gilhousen. Her testimony was premised upon an examination of the medical records of Dr. Lee pertaining to Sandra Gilhousen. Dr. Carson felt that in the insertion of an IUD, that Dr. Lee should have obtained the history of the patient's medical condition with particular emphasis on menstrual period and allergies because of the possibility of allergic reaction being brought about with the placement of the IUD. Physical examination was necessary to include heart, lungs, and abdomen and examination of the position of the uterus. In addition, it was necessary to take the blood pressure of the patient and to have laboratory work done related to hemoglobin, a gonorrhea culture and pap smear. Dr. Carson also felt that it was necessary to determine pregnancy by test, prior to the placement. All of these matters should be recorded in the patient records, per Dr. Carson. In addition, written permission should have been received prior to the placement of that IUD. Any physician who failed to do these things and document them, would have demonstrated less prudence than a reasonably prudent, similar physician. As established in prior facts found, Dr. Lee failed to record any of these matters and failed to obtain necessary medical history and to have necessary testing and laboratory work up envisioned by Dr. Carson. Her opinion as to what is needed for the placement of the IUD in the patient Gilhousen in order to achieve community standards in the place where Dr. Lee practiced is accepted. Based upon her opinion, Dr. Lee is found to have practiced medicine in the placement of that IUD with less care and skill than a reasonably prudent similar physician in his community would have been expected to give. Dr. Carson did not feel that Gilhousen, according to the patient's height and weight, needed Ionamin to control the patient's weight. Ionamin, a controlled substance, is a stimulatory drug which has addictive qualities, from Dr. Carson's understanding. The prescribing of the Ionamin on the information available to Lee was not the act of a prudent, similar physician who might be confronted with the same conditions and circumstances as Dr. Lee was when he prescribed Ionamin for Gilhousen, per Carson. Carson did not feel there was a medically justifiable reason for issuing the prescription of Ionamin. Moreover, Dr. Lee was deficient in the mind of Dr. Carson by not recording the issuance of the prescription in the patient's medical records. Dr. Carson's observations about Ionamin and the quality of Dr. Lee's performance in prescribing Ionamin to Gilhousen on January 7, 1983, are accepted. Dr. Carson was questioned on the matter of the abortion procedure which was performed on January 14, 1983. In giving her opinion, she was made aware of certain hypothetical facts related to the setting, time of day, nonavailability of a medical attendant, Dr. Lee's leaving the patient unattended, Respondent smoking marijuana and the offering of marijuana and other drugs to the patient, in addition to the matters set forth in the patient's record. In Dr. Carson's mind, a complete physical, including blood pressure, would be necessary prior to the termination; laboratory work, to include hemoglobin, to measure the amount of iron in the blood would be necessary; a CG culture and RH typing; and discussion with the patient as to allergies to medications would be necessary. In addition, a pregnancy test prior to termination would be indicated. The physician would also need a medical assistant in attendance and written permission would be necessary prior to the termination of the pregnancy. Dr. Carson would have used a D&E as opposed to D&C for termination of this early pregnancy and would not have used the form of anesthesia chosen by Dr. Lee. Her choice would have been a local block. Her testimony as to the choice of procedures and type of anesthesia does not lead to the conclusion that his choice of technique and anesthesia is below the level of care acceptable for a reasonably prudent, similar physician in the Jacksonville community. In Dr. Carson's opinion, it was inappropriate for Dr. Lee to smoke marijuana on the night of the abortion before conducting that procedure and to offer marijuana, hashish and cocaine to the patient. Dr. Carson felt that it was necessary to monitor blood pressure, and other vital signs related to pulse and respiration, the amount of flow from the site of the abortion and to give medication for pain as needed. Dr. Carson finds the act of leaving the patient unattended an unacceptable performance by Dr. Lee. Dr. Carson also believed that the patient's medical history, laboratory information and observations related to the physical examination should be recorded in the patient records and they were not. Per Dr. Carson, the failure to do those things she described related to the pregnancy termination would constitute substandard care to the patient, as would his use of marijuana and offering of illegal drugs to the patient. With the exception of Dr. Carson's opinions about the abortion technique, D&C, and type of anesthesia, her perception about appropriate care is accepted. By her description, this substandard care is tantamount to failure to provide care that a reasonably prudent, similar physician in a similar circumstance would have provided and Dr. Lee has not been sufficiently prudent in his treatment of Gilhousen on the date of the abortion, as shown in contrasting his performance as reported and Dr. Carson's idea of acceptable performance. BETTY BOLING Betty Boling requested assistance from Dr. Lee to control her weight. This request was made on January 7, 1983. Her blood pressure was checked and her weight taken. No other information was sought from the patient related to her history and no further examination was made of the patient as to her physical condition. Neither of these observations related to blood pressure and weight were recorded in her patient records, a copy of which may be found as Petitioner's composite No. 2, admitted into evidence. Boling was then prescribed 30 units, 30-milligram Ionamin by Dr. Lee. The record in this proceeding is left in the posture that the only basis of knowing the true circumstance of the patient Boling related to the need of weight reduction is her comment that she was overweight when she requested the provision of diet medication. This does not sufficiently justify the prescription of Ionamin and promotes the conclusion, based upon Dr. Carson's perception of the Gilhousen situation where Ionamin was prescribed, that there was no medical justification for prescribing Ionamin to Boling and that to do so was substandard care and not the care expected of a reasonably prudent, similar physician in dealing with the Boling case. (The prescription may be found in Petitioner's Exhibit No. 3.) On July 14, 1981, Dr. Lee prescribed for Betty Boling 30, 50-milligram Demerol units. On August 23, 1981, an additional 20, 50-milligram Demerol units were prescribed for Boling by Lee. On November 1, 1981, an additional 20, 50- milligram Demerol units were prescribed by Dr. Lee for Boling. On December 7 or 8, 1981, an additional 30, 50-milligram Demerol units were prescribed by Dr. Lee for the benefit of Boling. On December 7, 100, 300-milligram Quaaludes were prescribed for Boling by Dr. Lee. Finally, on February 19, 1982, 100 300- milligram units of Quaaludes were prescribed by Dr. Lee. The prescriptions of Demerol and Quaaludes may be found in Petitioner's composite Exhibit No. 3. Prescriptions indicate the basis for prescribing the Demerol was related to pain and the Quaaludes related to sleep. None of these prescriptions or the reason for the prescriptions are indicated in the patient records of Betty Boling, found as part of Petitioner's composite Exhibit No. 2, as a copy. Although Dr. Lee claimed to have conducted a physical examination on the patient before prescribing the Demerol and Quaaludes, that testimony is not believed. Moreover, Dr. Lee has no specific recollection of why he prescribed the Demarol for the patient as to the exact details. Dr. Lee had on occasion prescribed Demerol for migraine headaches for Boling. Dr. Lee indicated that other analgesic medication given for the migraine headaches had not been successful and that was why Demerol was used for the patient Boling. Dr. Lee's indication that he might not have entered the details of the prescription of Demerol and Quaaludes for Boling in her records on the occasions in question because of her concern that other persons who had access to her patient records not see those entries, is not tenable and is not accepted as fact. Especially in view of the fact that Boling does not have any recollection of such a request. Notwithstanding the risk to health in prescribing Quaaludes continually as recognized by Dr. Lee in his testimony at hearing, he prescribed Quaaludes in 100 units and in a further 100 units 70 days thereafter in the strongest dosage available. The methaqualone or Quaaludes were for purposes of assisting Boling in sleeping and the explanation given by Dr. Lee about the possibility of using more than one tablet per day within the 70 days in which the original 100 tablets had been prescribed is not accepted. Dr. Carson, after examining the Boling records, did not find any justification in the records for prescribing Demerol and Quaaludes, in the sense of a medical reason for such prescription. As Dr. Carson identified, Demerol is a narcotic analgesic, equivalent to morphine, with 60 milligrams of Demerol being comparable to 10 milligrams of morphine sulfate. Per Carson, Demerol is a drug highly susceptible to abuse, leading to addiction. For that reason, it is not appropriate for migraine headaches in that migraine headaches are repetitive in nature, thereby promoting greater chance of addiction. Demerol is a very potent respiratory depressant and can have allergic manifestations. Demerol and Quaaludes are Schedule II controlled substances. Quaaludes are a sedative which are used for inducing sleep and might be used for people suffering insomnia. Quaaludes have high potential for addiction and the substance became a street drug and has, since the time of this case, become illegal in the State of Florida. To use Demerol and Quaaludes together, according to Dr. Carson, would potentiate depression, thereby compounding effects of the drugs taken singularly. Dr. Lee's prescription of the Demerol and Quaaludes as described in the Boling circumstance, related herein, in the mind of Carson represented a failure of Lee to practice medicine with a level of care, skill and treatment recognized by reasonably prudent, similar physicians as being acceptable under similar conditions and circumstances and represented malpractice. It also was a prescription of controlled substance in bad faith not within the course of professional practice. These opinions by Dr. Carson, related to the Demerol and Quaaludes, and the practices of Dr. Lee in prescribing the substances for the patient Boling are accepted. MARGO STEWART No testimony was given related to the allegations found in Count Six pertaining to Margo Stewart and that count was abandoned by the prosecution.
