Findings Of Fact The Medicaid Program, as it existed at all times material to this cause, was a governmental health care program providing assistance to needy eligible persons in meeting the cost of medical care. In this program, HRS purchases medical care services directly from a medical care provider, such as petitioner in this case, and makes payments for these services directly to the medical care provider. At all times material hereto, Petitioner was a fully qualified health maintenance organization for purposes of providing Medicaid services. On June 4, 1976, patient Marie P. Harrison was admitted to Petitioner's facility. The patient was discharged on June 17, 1976, after having received treatment for acute stroke, Bell's palsy, and uncontrolled diabetes mellitis. Petitioner submitted a timely request for reimbursement on July 13, 1976, but Respondent denies having received that request. The evidence establishes that representatives of Petitioner followed up the request for reimbursement by making telephone inquiries regarding payment status on this account on February 22, 1977, April 14, 1977, and October 11, 1977. Respondent's only defense to reimbursement on this account was that the request for payment was not received within 90 days from date of discharge. The total amount requested for reimbursement on this account is $2,463.48. On May 6, 1976, patient D. E. Sanders was admitted to Petitioner's facility, and, on May 10, 1976, the patient was discharged after having received treatment for cellulitis, laceration and abrasion of the left foot. The total amount claimed for reimbursement on this account $547.44. At the final hearing, it was represented by counsel for Respondent that Respondent's basis for denying payment of this claim was a consultant's opinion that treatment administered was not medically justified on an in-patient basis. However, Respondent's medical consultant was not called as a witness at the final hearing, and there is no other evidence in the record to support Respondent's position in this regard. On March 12, 1976, patient Gayzatta Elliot was admitted to Petitioner's facility, and on May 16, 1976, the patient was discharged after having received treatment for influenza syndrome, pleurodynia, and iron-deficiency anemia. The total reimbursement claimed on this account is $547.44. Again, Respondent attempted to assert that this claim was rejected because it was not medically justified, but no evidence was offered at the final hearing to support this conclusion. On March 12, 1976, the patient, Gurley Kimble, was admitted to Petitioner's facility and, on March 16, 1976, the patient was discharged after having received treatment for influenza syndrome, acute viral gastritis with dehydration, and iron deficiency anemia. The total amount claimed as reimbursement for this account is $547.44. Respondent again attempted to claim at the final hearing that this claim was rejected because not medically justifiable, but no evidence was offered at the final hearing to support this conclusion. On August 30, 1976, the patient Virginia Jones, was admitted to Petitioner's facility and, on September 3, 1976, the patient was discharged after having received a tubal ligation. There is no evidence in the record from which a determination can be made of the amount Petitioner is claiming for reimbursement on this account. Respondent denied payment of the claim submitted for this patient on grounds that the service performed constituted elective surgery, and was, therefore, a non-covered procedure. The gist of the dispute on this account appears to have been that the treating physician had not submitted a certificate with the billing form indicating that hospitalization was necessary to perform the tubal ligation. However, the record is clear that on February 10, 1977, such a physician's certificate was prepared and later submitted by Petitioner to Respondent and that Respondent was in no way prejudiced by late submission of this certificate. In summary, there is no dispute on any of the accounts forming the subject matter of this proceeding that the medical procedures involved were necessary, that they were, in fact, performed, that Petitioner filed with Respondent the necessary requests for reimbursement, and that Respondent, without factual justification, denied reimbursement of the claims.
The Issue The basic issue in this proceeding is whether Petitioner's application for certification as a respiratory therapy technician should be granted. More specifically, the issue is whether Jack Mallan, Jr., submitted false information on, or in support of his application and, if so, whether that is sufficient basis to deny his application. Despite confusion throughout the proceeding, the basis for Mr. Mallan's termination from employment at Florida Hospital was also at issue. This matter is addressed in more detail below.
Findings Of Fact Jack Mallan, Jr., submitted his application for certification as a respiratory therapy technician through endorsement in September 1985. His application stated that he was employed as a graduate therapist at Florida Hospital in Orlando, Florida, from 1980-1984. His response checked the answer "no", to question #6 on the form, "Have you ever been terminated, disciplined, or allowed to resign from an employment setting where you were employed to deliver respiratory care services?" [Petitioner's exhibit #4, Application]. Sometime later, apparently in the course of the Board of Medical Examiners' routine investigation, it was disclosed by Florida Hospital that Jack Mallan was terminated in November 1986, for misconduct and falsification of patient records and that, prior to the termination, he had been "written up" several times regarding problems he had with patients. [Petitioner's exhibit #4, letter dated July 30, 1986]. Mallan was informed that he must make a personal appearance before the Advisory Council on respiratory care and he did appear on October 1, 1986. [Petitioner's exhibit #4, letters dated September 10, 1986, and September 24, 1986; Petitioner's exhibit #5]. At his appearance, Mallan denied having falsified patients records and claimed that the basis for the termination was "a travesty". He conceded that he erred in his answer on the application and, at one point in the proceeding, apologized for writing the wrong answer and said that he was embarrassed and was hoping it wouldn't be discovered. The Council voted to deny his application. [Petitioner's exhibit #5]. The order from the Council, dated January 5, 1987, states the following as grounds for denial: The applicant submitted false information on, or in support of, his application for licensure. See Section 468.365(1)(a), (d), and (f), Florida Statutes; Section 468.354(5), Florida Statutes; and Rule 21M-37.02(2), Florida Administrative Code. At the final hearing in this proceeding, Mr. Mallan continued to deny that he ever falsified patient's records. [Tr. 14]. In support of this, he presented the testimony of Catherine "Kitty" Arnold, the charge nurse on the floor where Jack Mallan worked in 1983. While she heard that he was fired, she denied hearing complaints from any patients about Mr. Mallan. She also told Mallan's supervisor, Jim Richardson, before the termination, that she had not heard any complaints. [Tr. 52]. In support of his professional qualifications and fitness to practice, Mr. Mallan presented an employee performance review from Winter Park Hospital dated February 13, 1986. For every factor on the rating form, he was rated "very good", the highest rating, by his supervisor, Avery Smith. Mr. Smith also appeared before the Advisory Council on Mallan's behalf. Mallan was employed as a therapist at Winter Park Hospital from February 1985, until October 1986, when the council voted to deny his certificate. He was granted leave from his employer in order to pursue remedies to obtain the certificate. [Petitioner's exhibits #3, #5, and #6; Tr. 21-22]. In response to his attorney's question, "... why did you not go into detail about why you left the employ of Florida Hospital?", Mallan explained that he felt the "alleged termination at Florida Hospital" was unjust and untrue, that he did not want to spread lies about himself and was afraid for his future career. [Tr. 25]. On cross-examination, he refused to admit that he was "terminated" from employment by Florida Hospital, but later conceded that he did not leave the employment voluntarily and was accused of wrongdoing. [Tr. 31, 32]. His responses continued to be evasive and vague, as characterized by the following exchange: Q [By Ms. Lannon] Were you ever disciplined at Florida Hospital prior to this occasion while you were employed there to deliver respiratory care services? A Yes. Q Isn't it true that in fact in August of that very same year, you were disciplined for allegedly falsifying patient records? MR. SIWICA: I'd like a continuing objection to the relevancy. THE HEARING OFFICER: Noted for the record but you may answer the question. THE WITNESS: I have a choice to answer yes or no? THE HEARING OFFICER: You'll be allowed to explain the answer but go ahead and answer the question. THE WITNESS: could you repeat it again, please? BY MS. LANNON: Q Isn't it true that in August of the same year, the year that you were terminated, you were disci- plined based on an accusation or an allegation that you had falsified a patient's records? A I don't recall. Q Weren't you in fact suspended for two days in August of that year? A What year was that, please? Q 1983. A I can't recall. Q Were you ever suspended from your job at Florida Hospital? A I took sick days. Q Were you ever suspended from your job at Florida Hospital? MR. SIWICA: I think he's answered that. THE HEARING OFFICER: Wait. No, he hasn't. MR. SIWICA: I'm sorry. THE WITNESS: There was an incident. They told me to stay home. I can't remember when it was. BY MS. LANNON: Q Well, that wasn't ever. Were you ever suspended? I wasn't asking you to remember when it was with that question. A I don't know if it was suspended. I was asked to stay home from my shift and I don't known how many -- it was maybe one day, I think. Q Maybe one day. You don't recall? A No. Q Were you paid for that day? A I don't remember that either. [Tr. 35-37]. His personnel record reflects a two-day suspension in August 1983 for charting treatment that the patient denied having received, and for rudeness to a patient. [Respondent's exhibit #1, Memo dated August 30, 1983, Discussion reports dated August 22, 1983, and August 20, 1983.] Irv Hamilton was associate director of personnel at Florida Hospital in 1983. In a meeting with Jack Mallen he discussed the basis for termination. Mallen was observed sitting at the nurses' station when he was supposed to be coaching a patient in therapy and recording vital signs. After investigating, his supervisor, Jim Richardson, concluded that the record of treatment made by Mallan was falsified. Hamilton also reviewed and briefly investigated Jim Richardson's recommendation for termination. While the nurses and patient denied talking with Richardson about the November incident, Hamilton affirmed the recommendation for termination. He felt that Mallan had contacted the witnesses after their initial statements to Richardson. He also concluded, based on Mallan's alleged admissions that he was in the nurses' station rather than in the patient's room for part of the therapy, that it would have been impossible for the treatment to have been properly administered. [Petitioner's exhibit #2; Tr. 59, 60, 73, 75, 81]. Hamilton confirmed from his own recollection that Mallan was suspended in August 1983 for falsification of patient records. [Tr. 62]. Jim Richardson insisted that the nurse and patient had changed their story, that the nurse had indicated to him on the date of the incident that she heard of a patient's complaint. Further, when he approached the patient, she first said she didn't want to get anyone in trouble, but then said that the therapist who gave her treatment that night simply gave her the apparatus with medicine, left the room and returned after she finished the treatment to pick it up. [Tr. 98-101] Mr. Richardson personally observed Mallan in the nurses' station but did not confront him at the time, nor was Richardson close enough to see exactly what Mallan was doing. [Tr. 104, 106-108]. Circumstantial evidence and hearsay in this proceeding is insufficient to establish conclusively that Mr. Mallan falsified records in November 1983. He clearly, knowingly and deliberately falsified his application for certification. Even after appearing before the Council and hearing the concern about the need to be forthright, he remained very defensive and evasive throughout the final hearing. He feigned ignorance of the details of an incident in August 1983, when that incident was referenced on a special performance evaluation dated October 16, 1983. That evaluation, completed by his supervisor, Jim Richardson, rated him well above average and commended him for excellent effort in improvement. Notably, the first page of that evaluation was submitted and received as Petitioner's exhibit #1. The first page contains the rating factors and very positive levels of achievement selected by the supervisor as applicable. The second and subsequent pages are found in the personnel file, Respondent's exhibit #1. Those pages include a signature page with reference to an attached sheet. The typewritten attachments include general comments which reference past problems, including the August incident, and the commendation for improvement. Jack Mallan obtained an Associates Degree in respiratory therapy from Valencia Community College in 1981. He received a "respiratory care technicians" certification from the National Board of Respiratory Care on March 16, 1985. [Tr. 9]. His qualifications as to training and experience are not in question in this proceeding.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a final order be entered DENYING Petitioner's application for certification as a respiratory therapy technician. DONE AND ORDERED this 17th day of August, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0618 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner 1. Adopted in paragraph #12. 2-3. Rejected as immaterial. 4. Incorporated in the finding in paragraph #10. 5-6. Incorporated in the findings in paragraphs #9 and #10. Adopted in paragraph #5. Adopted in paragraph #9. Rejected as immaterial. Adopted in substance in paragraph #6. Adopted in paragraph #1. Adopted in paragraph #7. Respondent 1-2. Adopted in substance in paragraph #1. Adopted in paragraphs #3 and #4. Adopted in paragraphs #2 and #4. Adopted in substance in paragraph #10. Rejected as unsupported by competent evidence. 7-8. Adopted in part in paragraph #9, otherwise rejected as immaterial. Adopted in paragraph #7. Rejected as unnecessary, except the last sentence, which is adopted in paragraph #4. Adopted in part in paragraph #11. While the Florida Hospital witnesses were credible and adequately explained the basis for termination, their testimony was insufficient to establish conclusively that the falsification occurred. COPIES FURNISHED: Richard P. Siwica, Esquire EGAN, LEV & SIWICA 918 Lucerne Terrace Orlando, Florida 32806 M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(n), Florida Statutes [failure to keep written medical records justifying the course of treatment of patients as set out in Counts 1-4, 6-9, 11, and 13-14 of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(cc) 1, 2, and 3, Florida Statutes [prescription of an amphetamine drug for purposes other than specifically stated in those subsections as set out in Counts 5 (Preludin), 10 (Preludin), and 12 (Ritalin) of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 453.331(1)(t), Florida Statutes [by engaging in gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances as set out in Counts 1-15 inclusive, of the administrative complaint].
Findings Of Fact Respondent, Tariq Husam Abdullah, is a licensed medical physician, practicing under license number ME 0021526. He is also known as Henry Nichols. The two are one and the same and there is no dispute over identity. Respondent appears to have been a hard worker, rising from a "bed pan hustler" at the old Fort Walton Hospital to his current level of education, licensure, and community position. Previous to Florida licensure, Respondent received his medical degree from Meharry Medical College in Nashville, Tennessee, where he also did his internship in straight medicine. Thereafter, Respondent performed three years of anatomical and experimental pathology at Washington University School of Medicine in St. Louis, Missouri, and two years in clinical pathology at the National Institute of Health and the United States Public Health Service in Bethesda, Maryland. Respondent is not board-certified, but is currently board-eligible in both pathology and laboratory medicine. At all times material hereto, Respondent engaged in medical practice in Bay County, Florida. During much of the time in question, Respondent had no assisting staff. His usual fee for each office visit of each of the patients referred to in the fifteen count administrative complaint was approximately $15- 20 maximum. They are a small portion of the approximately 1,000 patients he treated between 1978 and 1982, and in most cases his fees for office visits were $10.00 apiece. Sometimes his fees were paid and sometimes they were not paid. Medicaid and Medicare reimbursed all or a portion of many fees. In the course of his practice Respondent treated the following patients: D.B.; T.B.; Tommy B.; J.C.; L.C.; T.G. a/k/a L.C.; David G.; Dan G.; C.R.; B.W.; and J.M. Petitioner's expert-witness medical doctors were Jabe Armistead Breland and Michael W. Cohen. Dr. Breland was present at the formal hearing and had the advantage of reviewing Respondent's exhibits as well as Petitioner's exhibits in the forming of his opinions. Dr. Breland has been a licensed medical doctor in the State of Florida since September 1950. Most of that time he has practiced in the panhandle of north Florida which includes Panama City, Bay County. His office is in Marianna, Florida. He is board- certified in family medicine, licensed by the federal government to prescribe controlled substances, and was stipulated as an expert in the field of medicine. Dr. Michael W. Cohen testified by means of a deposition taken prior to formal hearing and did not have the advantage of review of Respondent's exhibits admitted in evidence at the formal hearing. He is a family physician with an M.D. from the University of Miami School of Medicine (1975), a graduate of Tallahassee Memorial Hospital Regional Medical Center Family Practice Program, and has been a board-certified family physician for six and one-half years. His practice is limited to Tallahassee and he has testified on contract for Petitioner six times previous to this case. He is accepted by the undersigned as an expert medical witness, but because of the unavailability to Dr. Cohen of Respondent's exhibits which were admitted in evidence at the formal hearing held subsequent to his deposition and because some of the materials upon which Dr. Cohen's opinions were predicated were excluded from evidence at the formal hearing, the weight and credibility of his prior deposition testimony is significantly impaired through no fault of Dr. Cohen and without any unfavorable reflection upon him. Dr. Wilson, Respondent's expert medical doctor who testified by after-filed deposition knew nothing of Respondent's records and was unaware of the precise charges against him. In the absence of appropriate predicate as to medical opinion, his testimony has been accepted only as to facts of which he had personal knowledge and as to character. It is his opinion that Respondent is the kind of person who deserves not to have his license suspended or revoked. Dr. Wilson partly financed Respondent's education. The parties by Request for Admission have established that Preludin is an amphetamine; more accurately Preludin is phenmetrazine. Ritalin is methylphenidate. Dioxan is a methylamphetamine. At all times pertinent these were Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Percodan is also a Schedule II controlled substance. Valium is a Schedule IV controlled substance. Darvon Compound and Tylenol 4 are Schedule III controlled substances. Respondent frequently talked to police, Sheriff's deputies and pharmacists in an effort to avoid his patients becoming addicted to drugs. He never was made aware from any source of any drug addiction or any arrests of any patients concerned in this action. He testified that he performed a physical examination in every case and verified all prior medications in every case, but he also conceded not verifying prior medications with previous doctors or hospitals. It is specifically found that in many instances none of these precautions appear in his records as set out infra. D. B. (Counts I; XV) It is admitted (Requests for Admission) and found that between February 19, 1979, and April 23, 1983, Respondent prescribed at least the following quantities of controlled substances to his patient, D. B.: DATE DRUG STRENGTH QUANTITY 02/19/79 Percodan Approximate 04/30/79 Darvon Compound 03/23/82 Valium 05/13/82 Tylenol #4 06/03/82 Percodan Demi 40 06/16/82 " " 18 07/10/82 " " 07/17/82 " " 36 08/14/82 " " 18 08/28/82 Percodan 08/28/82 Valium 01/15/83 Percodan 03/26/83 " 03/26/83 Valium 04/23/83 Percodan Respondent's treatment of his patient, D.B. with controlled substances was predicated upon his diagnosis of "traumatic arthritis." His records reflect, "hurting ankle, leg, and back" as the chief complaint. In no instance of prescribing scheduled drugs for this patient did Respondent maintain a record of the strength (dosage) and on only a few occasions did he record the quantity prescribed. This particular inadequacy of record-keeping seems also to have applied to additional non- scheduled drugs prescribed by Respondent for this patient. Although Dr. Breland acknowledged that many doctors only record the word "refill," good medical practice dictates that Respondent should have recorded at least the quantity and dosage at the time of the initial prescription. Normal protocol would be to also record the method of taking the medication. On this analysis, in Dr. Breland's professional medical opinion, Respondent's medical records for his patient, D.B. (Composite P-1) were inadequate and did not justify the course of treatment upon the recorded chief complaint. Dr. Cohen concurs. Further record inadequacies as noted by Dr. Breland include failure of the records to indicate which bone was fractured in relating the patient's medical history, recording only blood pressure as a vital sign, and failure to state what condition was being treated on subsequent visits. Dr. Cohen recited the same inadequacies in forming his professional medical opinion that Respondent's records do not justify the treatment received. Dr. Cohen further opined that if the patient had traumatic arthritis, the treatment prescribed was wholly inadequate due to the absence of any recorded plans for therapy. Dr. Breland, on the other hand, felt that a Percodan prescription is consistent with good medical practice for a patient who complains of traumatic arthritis and that Valium, a benzodiazepine drug which is a calmative or tranquilizer, may also be properly used for traumatic arthritis but that Valium would be contraindicated if there were associated patient nervousness and anxiety. Dr. Breland's opinion is that it would not be medical malpractice to prescribe Valium upon the basis of Respondent's records nor would it be medical malpractice based upon the continued prescribing of Percodan unless the patient became addicted. Dr. Breland's experience is that 1-3 months on Percodan would cause individuals to run the risk of addiction but knows of doctors in the Panama City locale who have prescribed Percodan in excess of three months with addiction resulting in some patients and not in others. Respondent conceded that his records for this patient should show greater detail but according to his recollection independent of the medical records, he recalled that on the first visit, he had accepted D.B.'s representation that D.B. had had prior surgery on the left ankle because the pins could be seen through that swollen ankle. Respondent's independent recollection was that D.B. did not ask for Percodan. Respondent testified that he prescribed the Percodan because "after codeine I can't think of another drug with potential for comfort." His failure to record further detail he explained as his belief that writing down prescriptions was a sufficient reference back to the original first visit diagnosis. Respondent admittedly did not record, but expressed independent recollection of also accepting D.B.'s representation of previous unsuccessful medication with codeine from a Dr. Smith and of recommending acupuncture as an alternative pain therapy but admitted he also did not record this latter instruction. The medical records themselves confirm Respondent's testimony in the course of the hearing that Respondent prescribed the scheduled drugs in addition to a number of other medications such as Roboxin and anti-inflammatories which he did record and which Dr. Breland confirmed were appropriate as treatment for traumatic arthritis. A portion of Petitioner's Composite Exhibit 15, court certified records, show one "Donald Richard Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person was subsequently tried and found guilty of one count and entered a plea of guilty to the other. A Circuit Court Judgment was entered. The date of the commission of this person's offenses are close to the date of a prescription by Respondent to his patient "D.B." but there is absolutely nothing in the court documents to connect them to the D.B. treated by Respondent except a partial similarity of name. Nor does the similarity of name of a co-defendant, Tereza Ann Bozeman (see infra.) prove an inescapable link of "Donald Richard Bozeman" to Respondent's patient, "D.B." who was married to someone of partially similar name. Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, "D.B." for a non-medical or criminal purpose or that the patient was drug-addicted. Upon all the foregoing information taken together it is clear Respondent failed to keep written medical records justifying the course of treatment of his patient, D.B. This finding is made despite both of Petitioner's experts' testimony that there is no affirmative professional requirement that dosage and number of tablets be recorded anywhere except on a prescription. That concern is only a portion of the inadequacies of these records. However, in light of Dr. Breland's greater familiarity with all of Respondent's records and the standard of medical practice in the community, and the greater detail provided by his testimony and the explanations provided by Respondent at formal hearing, Dr. Breland's opinion that the course of treatment for this patient, isolated from all others, does not represent malpractice is accepted over Dr. Cohen's opinion that it does. T. B. (Counts II, XV) It is admitted (Requests for Admission) and found that between approximately May 1, 1982, and April 9, 1983, Respondent prescribed at least the following quantities of schedule- controlled substances to his patient, T.B.: DATE DRUG STRENGTH QUANTITY 05/01/82 Valium 05/01/82 Percodan Demi 07/10/82 " " " 30 08/14/82 " " " 08/14/82 " " " 18 08/14/82 Valium 09/11/82 Percodan 09/11/82 Valium 12/12/83 Percocet #5 Although in some respects, Drs. Breland and Cohen emphasized different faults or inadequacies of Respondent's records which they reviewed concerning T.B. (Composite P-2), both experts concur that the records do not justify the course of treatment of this patient. Dr. Cohen bases his opinion on his analysis that the history Respondent recorded for this patient was not sufficiently detailed. Specifically, the initial office visit record is flawed by only writing down patient's vital signs and recording no physical findings. Dr. Cohen stated it is unjustifiable to prescribe a narcotic analgesic on the first office visit and to continue to refill the prescription on subsequent visits without recording how the patient had done on those medications and further without recording physical examination, assessment of how the patient is responding to the medication, a plan outline for prophylactic care, and patient education. Further, both Drs. Breland and Cohen assert that although there is no affirmative professional requirement to record dosage and tablet numbers except on prescriptions, it is the custom of reasonably prudent similar physicians to record amount, dosage quantity of drugs prescribed, and method of taking drugs, and Respondent's records do not do so. Respondent's records for this patient also offend custom and usage of the profession in that they indicate several office visits for which there are no recorded findings or treatments whatsoever. Dr. Breland's opinion that the records do not justify the treatment and that they fall below the customary standard of care are based on his analysis thereof emphasizing that the records of the first office visit do not evidence a physical examination other than taking a blood pressure reading and weighing the patient. There is a brief history of migraine headaches for three months recorded and also recorded is a past diagnosis and treatment with codeine and talwin; the records note no previous surgery, no previous fracture, and no physical findings. Then, Cafergot PB #2, Valium #3 and Percodan-demi were prescribed by Respondent. The records should have specified whether or not previous treatment was successful and if it was successful, Respondent could have subsequently prescribed less addictive drugs. In Dr. Breland's opinion, it is "hard to justify" a Class II drug without trying some other modalities available. Respondent first saw this patient on May 1, 1982, for migraine headaches and prescribed Cafergot PB and Percodan-demi. He selected Percodan- demi because Percodan is habit-forming. In the course of the formal hearing, he testified, "I just didn't know another medication to go to after you pass codeine that would be effective with patients, other than giving them Demerol and the harder narcotic medications" and that when he first began seeing this patient he was less aware of the similar use of the less addictive drug, Inderal, than he is now. On the physical examination portion of his clinical notes, Respondent indicated that the patient had been using Codeine, Talwin, and "Dx" and "Rx". He then and thereafter (8/14/82 and 9/11/82) prescribed analgesics and vasoconstrictors (Cafergot PB and Ergotamine) together with the Valium because Valium, in his opinion, is often ineffective without more because of the significant emotional components of migraine headaches. Respondent also expressed his independent recollection of discussing with this patient the alternative treatment of acupuncture but admitted he did not record this instruction. Respondent's explanation is not sufficient justification for the repeated prescriptions of controlled substances in light of Dr. Breland's more knowledgeable and thorough explanation of the standards of record-keeping necessary to justify continued prescription of the particular controlled substances here at issue. Dr. Breland faults another of Respondent's prescriptions dated 12/4/82 of Cafergot PB#2 (a combination of drugs primarily containing an Ergotamine derivative and caffeine), Percocet, and Valium because Respondent's records do not show how many pills were prescribed nor do they give directions for taking them. For prescriptions on 1/8/83, 8/14/82, 9/11/82, and 2/12/83, Dr. Breland expressed as his chief concern that there was an absence of recorded physical findings, history, and blood pressure plus no recorded amount of dosage listed for most prescription drugs, but Dr. Breland also determined that prescribing Cafergot is consistent with Respondent's diagnosis of vascular headaches and his prescriptions for these dates is an appropriate lesser treatment to be tried before prescribing a Schedule II drug, and, further, that Respondent's records justify prescribing Cafergot. However, the opinion expressed in the prior sentence is not compelling in face of the records having no notations to show the effect, if any, of Cafergot or other drugs or to show why Respondent prescribed stronger medication. Dr. Breland also felt Respondent should have prescribed other less addictive drugs before going to the Schedule II-controlled substances as he did, and that if Respondent's findings were negative, he should have recorded them as negative rather than leaving the record blank, because without such records it cannot be determined if a physical examination was ever made and because in absence of recorded physical findings, no Schedule II drugs should have been prescribed. A portion of Petitioner's Composite 15, court-certified records show one "Tereza Ann Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person entered a plea of guilty to a lesser-included misdemeanor. The Circuit Court withheld adjudication and placed her on probation. The date of one of the offenses coincides with one of the dates of a prescription by Respondent to his patient, "T.B." but there is absolutely nothing in the Court documents to connect them to the "T.B." treated by Respondent, except a partial similarity of name. The court documents also charge "Donald Richard Bozeman" who has a similar name to that of another of Respondent's patients (see supra.) but the court documents do not indicate the charged individuals are married or provide any other link to Respondent's patient(s). Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, T.B., for a non-medical or criminal purpose or that the patient was drug-addicted. Tommy B. (Counts III, XV) It is admitted (Request for Admissions) and found that between approximately August 16, 1981, and February 19, 1983, Respondent prescribed at least the following quantities of schedule controlled substances to Tommy B.: DATE DRUG STRENGTH QUANTITY 08/15/81 Valium 08/15/81 Percodan 08/15/81 Dalmane 10/30/81 Tylox 12/05/81 " 12/05/81 Valium 12/06/82 Darvon compound 02/17/82 Percodan 30 04/01/82 " Demi 04/01/82 Percodan 30 05/29/82 Percodan Demi 06/21/82 Tylox 24 07/12/82 Percocet #5 30 02/19/83 Percocet 02/19/83 Valium In the course of the hearing, Respondent independently recalled that this patient presented on 8/15/81 and that Respondent himself personally recorded the notes for that date including a history, diagnosis of L-S syndrome, and treatment. On that date he observed scars on the patient's back from back surgeries which the patient related had been done at Southern Baptist Hospital in New Orleans. Respondent conceded that he failed to record the physical findings of scars and failed to record full details of the related surgeries so that at first glance it might appear to others, in this case Dr. Breland, that Respondent was only filling in a history of surgeries without making his own diagnosis. Respondent stated that he had relied on the Physician's Desk Reference, which he characterized as a "bible of the medical profession", and which recommends Percodan as a pain-killer. The treatise itself was not offered in evidence. Respondent also stated that the Percodan-based drugs he prescribed effectively relieved this patient's pain. There is no contrary evidence on this point of effectiveness but it still was not contemporaneously recorded by Respondent in the patient's record. Both Drs. Cohen and Breland opined that Respondent's records for Tommy B. did not justify the prescribing of these controlled substances, most specifically Percodan. These opinions have not been accepted for the following reasons. In the absence of any supporting evidence, Dr. Cohen's considerable testimony concerning his belief that this must have been a scam or scheme of Respondent to indirectly charge for a controlled substance prescription by requiring frequent office visits is rejected as conscientious but pure conjecture. Dr. Breland expressed concern that Percodan-demi was among the drugs prescribed by Respondent in the presence of a record notation within the physical findings which relates that "patient says he can't take Percodan". Respondent denied he made this notation, and related it is in someone else's handwriting and not true. Respondent's testimony on this score is corroborated by clear observation of the records. Most of Dr. Breland's other complaints concerning Respondent's record of this patient devolve to Dr. Breland's inability to read Respondent's handwriting and his original erroneous belief that the history and exam was chronologically incorrect and taken by someone other than Respondent. Dr. Breland's opinion that the records are deficient because the fracture of the back was not specifically recorded by Respondent's indicating whether there was an old fracture or current pain and by Respondent's not indicating whether there was thoracic or lumbar distress, and because there is no recitation of whether the fracture is pelvical or in any body of the vertebrae, and his objection to failure of Respondent to either record "no x- rays" if none or to record x-rays if there were some instead of leaving a blank space constitute technique over professional custom requirement of record- keeping. Dr. Breland also described the two month fluctuation down to Percodan- demi and then up to the stronger drug of Percocet from 4/1/82 to 2/19/83 as unjustified because no less addictive medicines had been tried and no degree of relief from less addictive drugs was attempted by Respondent, but Dr. Breland described the Percodan- based drugs and the Valium as medically acceptable where based on the degree of relief the patient had received. In such a situation Dr. Breland would use these drugs for pain treatment and consider them medically justified. Like Dr. Cohen, Dr. Breland also found unacceptable the failure of Respondent to record amounts and dosages in his office medical records, but on many occasions throughout their testimony, both of Petitioner's experts observed the requirement of listing amount and dosages is for prescriptions only and not for a doctor's office records. Upon the failure of adequate predicate for Dr. Cohen's conclusion of unjustified prescriptions, the absence of any admissible evidence of any addiction in this patient, and the only positive evidence of the effect of these prescriptions being Respondent's opinion that it was effective, the opinions of both Drs. Cohen and Breland that the medical records do not justify the course of treatment of Tommy B. are rejected. J. C. (COUNTS IV; XV) It is admitted (Requests for Admissions) and found that between January 4, 1982, and February 26, 1983, Respondent prescribed at least the following schedule-controlled substances to J.C.: DATE DRUG STRENGTH QUANTITY 01/04/82 Percodan 24 03/23/82 Tylox 30 04/17/82 Percodan 04/17/82 " " 05/01/82 Tylenol #4 30 05/01/82 Valium 30 05/04/82 Tylox 30 06/12/82 Valium 06/16/82 Tylox 36 07/17/82 " 30 08/14/82 " 30 10/03/82 " 30 10/30/82 Tylenol #4 11/13/82 Percodan 30 01/15/83 Percocet 01/15/83 Valium 28. J.C.'s chief complaint was migraine headaches, "nerves", and back trouble. Respondent prescribed Percodan for pain, Valium for "nerves", and Cafergot-pb for migraines. He diagnosed hypertensive heart disease, anxiety neurosis, migraine headaches, and lumbosacral syndrome. He only used Percodan four times over a year's period due to the severity of the symptoms brought on by the tug and strain on this 200-pound woman's back. Dr. Cohen ranks the relatively minimal fault of writing progress notes in two corners and across the top and side of a page in the same category as overprescribing. Dr. Cohen's concern over the absence of recorded physical findings for this patient was not confirmed by Dr. Breland (see infra.) and his concern because the number and dosage of Cafergot-pb (non-scheduled), Valium (scheduled) and Percodan (scheduled) were frequently not recorded by Respondent is less significant in light of Dr. Breland's testimony that the best custom and practice of the medical profession is to record these matters but such recordation is not required for office records but only for prescriptions. Dr. Cohen also faulted Respondent for prescribing symptomatically with no effort to educate the patient to prevent or "prophylax" against migraines or to prescribe common anti- inflammatory medications usually prescribed for migraines. Dr. Breland noted that Tylenol #4 is a controlled substance but made no specific objection to Respondent's prescription of it for this patient. Cafergot-pb is not a controlled substance and its prescription by Respondent was not faulted by Dr. Breland. All of Dr. Breland's testimony on this patient is couched in vague terms of "it is hard to justify" Respondent's prescription of Percodan and Percocet on just this work-up and Dr. Breland felt Respondent's prescription of Percodan on the first visit was not justified without obtaining a further medical history, but he would have approved eventual (not first visit) use of Percodan for this patient's migraine headaches if it were not for the presence of hypertensive heart disease or her neurosis. Although the records fail to state why Percodan-based drugs were used, Dr. Breland felt these drugs would have been appropriately prescribed for the lumbosacral syndrome. By comparison, J.C's recorded medical history is more extensive than that of most of the patient records involved in this action. The history taken by Respondent lists previous surgery of a hysterectomy, of a previous fracture to the left hip, and of a tonsillectomy. Also given is an elevated blood pressure of 160 over 100, height and weight, state of parity, and diagnoses. The date of her last period and of her hysterectomy are not given. Petitioner's two expert witnesses each would have made separate and different judgment calls on all prescriptions here related, except that each concurs that Respondent's initial prescription of Percodan on this patient's first visit was unjustified without a further recorded history; therefore, Dr. Breland's summation that the records justify overall treatment of this patient is accepted. L. C. (COUNTS V; VI; XV) It is admitted (Requests for Admission) and found that between approximately March 27, 1978, and April 23, 1983, Respondent prescribed at least the following quantities of schedule-controlled substances to L.C.: DATE DRUG STRENGTH QUANTITY 03/27/78 Darvon Compound 07/21/78 Darvon 07/21/78 Darvon Compound 07/21/78 Valium 10/23/79 Percodan 10/31/79 Preludin 11/17/80 Preludin 11/28/81 Darvon Compound 12/28/81 Percodan 24 01/14/82 " " 30 04/02/82 " " 36 06/08/82 " " 36 07/17/82 " " 36 08/28/82 " " 36 09/25/82 " " 24 09/25/82 Darvon Compound 12/03/82 Percodan 30 01/15/83 " " Dr. Cohen's opinion that there had been prescription of an amphetamine drug for an unjustified purpose and that the patient's records did not justify the Respondent's prescribed course of treatment is rejected as partially predicated upon inadmissible and unadmitted exhibits. The opinion of Dr. Breland is accepted that most of these prescriptions as only part of the course of treatment as a whole were acceptable. More particularly, Dr. Breland indicated there are other doctors similarly geographically situated who use Percodan similarly; there was a very adequate history taken, although the date appears out of order on the page; Respondent's early prescribing of Roboxin and Darvon (one of the less addictive controlled substances) would be a good treatment for osteoarthritis which was part of Respondent's diagnosis of this patient; there was not enough Percodan prescription here for Dr. Breland to say it was not justified in this patient's case. Dr. Breland was unsure when Preludin became a scheduled substance and so would not comment on that aspect of the case. This is an issue of law and is discussed under "Conclusions of Law." T. G. (COUNTS VII; XV) Between approximately July 23, 1978, and April 26, 1983, Respondent treated a patient by the name of T.G. During that period, the stipulated records reveal at least the following prescriptions, among others: DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 7/23/78 30 Percodan 7/23/78 Darvon Compound 9/21/78 Percodan 10/14/78 Percodan 10/14/78 Darvon Compound 11/21/78 24 Percodan 11/21/78 Darvon 12/6/78 30 Percodan 12/6/78 Darvon Compound 12/28/78 Percodan 12/28/78 Darvon 1/23/79 Qualudes 1/29/79 24 Percocet 1/19/82 24 Percocet 3/4/82 Valium 3/4/82 Percodan 4/29/82 Percocet 8/19/82 Percodan 8/19/82 Valium 10 mg 9/25/82 Valium 9/25/82 Percocet 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Percocet 10/14/82 40 Valium 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Valium 10/14/82 40 Percocet #5 10/14/82 40 Percocet 10/14/82 40 Valium Additionally, the Respondent occasionally prescribed Tetracycline and Actifed Syrup for colds, and the parties have stipulated these are not controlled substances. Although Dr. Breland tagged Respondent's use of Roboxin 750, Percodan 30, Darvon compound and Prednisone (a Cortisone- like anti-inflammatory) on the first visit as "borderline acceptable," it was his and Dr. Cohen's mutual opinions that in the absence of recorded physical findings, the Respondent's prescribing of controlled substances in these quantities and with this frequency to this patient was not justified by the records Respondent kept. Dr. Breland, in particular, found unacceptable the Respondent's diagnosis of lumbosacral syndrome without detailed physical findings or any x-ray diagnosis, and both experts took exception to the continued and repeated prescriptions of the addictive drugs, Valium and Percodan, in a case where Respondent's records repeatedly indicate a good response. Both further opined against Respondent's delayed attempt to diminish the use of these addictive drugs. The doctors' opinion that the records do not justify the prescriptions are accepted. DAVID G. (Counts VIII; XV) The stipulated records reveal at least the following controlled substances were prescribed by Respondent to his patient, David G., between December 17, 1981, and February 12, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 12/17/81 Ativan 12/30/81 Ativan 2/12/82 Valium 3/06/82 Seconal 3/11/82 Valium 4/08/82 Seconal 8/28/82 Seconal 8/28/82 Valium Respondent saw this patient 12 times in approximately 2 years and accepted David G.'s representation that he had been previously prescribed Ativan, a controlled substance of the same chemical family as Valium. Although Respondent claims he verified all prior medications, the verification here is not reflected in his record. The records themselves do not reflect for most occasions why this patient was being treated nor do they set forth an assessment of why Respondent switched from less to more addictive sedative hypnotics. Ativan is a tranquilizer on Schedule III. Seconal is a sedative on Schedule II. In an isolated response, Dr. Breland testified that if the Respondent's initial diagnosis of insomnia and anxiety neurosis had been arrived at after taking a proper history and after a proper physical examination which was not recorded, he would not find Respondent's use of these medications, including Seconal, improper, because there are doctors in the same geographical area who would also use Seconal. However, the ultimate opinion of both of Petitioner's experts is accepted that in the absence of a recorded initial physical examination and a recorded history beyond merely recording height and weight and an unverified former medical treatment, the course of this patient's treatment was not justified by the records kept. DAN G. (Counts IX; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, Dan G., Jr., between January 9, 1979, and April 22, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 01/09/79 Percodan 02/22/79 Talwin (50 mg) 11/18/81 Percodan 11/30/81 Percodan 01/02/82 Percodan 01/19/82 Percodan 02/05/82 Percodan 03/30/82 Percodan 04/12/82 Percodan 05/01/82 Percodan 05/01/82 Valium 05/18/82 24 Percodan 06/05/82 Valium 06/22/82 Percodan Demi 06/22/82 Darvon Compound 06/22/82 Valium 07/24/82 Percodan 07/24/82 Valium 08/28/82 Percodan Demi 08/28/82 Valium 09/25/82 Percodan 09/25/82 Valium 10/30/82 Valium 10/30/82 Percodan 12/03/82 Percodan 02/19/83 Percocet 03/26/83 Percodan 03/26/83 Valium 04/22/83 Tylox 04/22/83 Valium Respondent's records for this single patient sometimes specify "Jr." and sometimes do not. The initial record indicates a surgical incision along the lateral aspect of both femurs and pain on palpation of both hips, and records a history of total hip arthroplasty (two total hip replacements) in 1979 with the patient evidencing pain secondary to a post-operative procedure to correct aseptic necrosis of both femurs. At formal hearing, Respondent stated that this patient first presented in a wheel chair and returned frequently, due to chronic pain and was already on Demerol when first seen by Respondent. The chronic pain was not always repeatedly recorded in Respondent's records. Both of Petitioner's experts concede that prescriptions of Percodan would be consistent if that were all that were relieving the pain when the patient presented to Respondent, and Dr. Cohen opined that Percodan and Talwin were possibly consistent with aseptic necrosis of a femur. Respondent had admitted (R-1), a hospital summary of subsequent surgery (conversion of left total hip arthoplasty to girdlestone on 8/19/83) at the Veteran's Administration Hospital in Gainesville. This exhibit of subsequent surgery corroborates the previous 1979 history taken by Respondent which indicated that medications on discharge from the VA Hospital included Demerol 50 mg. po q 4h prn for pain. In light of no evidence of patient addiction and no evidence of poor response by this patient to Respondent's prescribing and treatment, the opinions of Dr. Breland and Dr. Cohen that Respondent's prescribing was excessive and necessarily addictive and therefore was unjustified are rejected, however the undersigned accepts their mutual opinions that the Respondent's records by themselves without the subsequent corroboration of the VA Hospital report do not justify the treatment Respondent administered to Dan G. Respondent admits R-1 was not relied on in treating this patient. C. R. (Counts X; XI; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, C.R., between July 3, 1978, and April 22, 1983: 2/ DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCES 07/03/78 Percodan 07/03/78 Percodan Compound 07/20/78 30 Percodan 08/14/78 30 Percodan 11/01/78 30 Percodan 12/05/79 Desoxyn 12/05/79 Percodan 01/02/79 Desoxyn 02/05/79 Percodan 02/12/79 18 Percodan 03/28/79 Percodan 04/16/79 Percodan 05/03/79 Percodan 05/17/79 Percodan 05/17/79 Darvon Compound 05/17/79 Percodan 05/17/79 Darvon Compound 06/14/79 6 Percodan 06/14/79 24 Desoxyn 09/18/79 Desoxyn 10/04/79 Percodan 11/10/79 Preludin 01/28/80 P 06/12/80 Preludin (75 mg.) 09/18/80 Preludin (75 mg.) 11/17/80 Percodan 01/27/81 Darvon Compound 04/27/81 Percodan 07/28/81 Percodan 08/31/81 24 Percodan 09/21/81 24 Percodan 12/16/81 Percodan 01/06/82 Percodan 01/29/82 Percodan 03/02/82 Percodan Demi 03/02/82 03/28/82 Percodan 04/20/82 Percodan 05/13/82 06/04/82 Percodan Demi 07/03/82 Percodan Demi 08/03/82 36 Percodan Demi 08/28/82 Percodan 08/28/82 Valium 12/20/82 24 Percocet 5 12/20/82 30 Valium (10mg) 01/15/83 6 Tylenol #6 01/22/83 Percodan Preludin and Desoxyn are amphetamine drugs. Desoxyn was legitimately prescribed for weight control in 1978. Respondent's prescription of both drugs was ostensibly to modify the amount of weight supported by the patient's leg bones. Dr. Breland is not sure whether both drugs were reclassified for control in 1979 or not but this is an issue of law resolved in "Conclusions of Law" supra. Despite Dr. Breland's testimony that if he did not have to base his opinion on the Respondent's inadequate recorded history and findings, he would term the prescribing of Percodan and Roboxin as recorded to be borderline acceptable, the undersigned accepts his and Dr. Cohen's mutual opinion that the frequent prescriptions of Percodan, Percodan- demi or Percocet (narcotic analgesics) for the Respondent's recorded diagnosis of arthritis and right leg pain resulting from previous right thigh surgery are unjustified by the records. Their respective opinions that this pattern of prescribing was excessive and unjustified in light of the potentially addictive nature of these drugs is also accepted. B. W. (Counts XII; XIII; IV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, B.W. between June 7, 1979, and January 29, 1983. 3/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/01/79 Valium 10/15/79 Tylenol #3 06/19/80 Tylenol #3 06/08/81 Ritalin (20mg) 08/11/81 Valium 08/15/81 Valium 09/15/81 Talwin 11/14/81 Talwin 12/07/81 24 Ritalin (20 mg) 12/20/81 Talwin 01/23/82 Talwin 02/12/82 Percodan Demi 02/27/82 Tylenol #4 03/04/82 Ritalin 03/18/82 Percodan Demi 04/02/82 30 Talwin 07/03/82 24 Ritalin 08/28/82 30 Ritalin 09/22/82 24 Percodan 10/14/82 Talwin (50mg) 12/21/82 24 Percodan 01/29/83 Tylox Ritalin is a sympathomimetric amine drug, which may only be properly prescribed in certain types of cases more specifically set out in the following "Conclusions of Law." Respondent's diagnosis, that this patient had chronic anxiety and back pain, is reflected in his written records. This is essentially the only recorded history on this patient. Respondent did not record a diagnosis of narcolepsy. Respondent did, however, introduce R-2, a consultation report to a Dr. Yankovich dated 1/5/82 from a Dr. Elzawahry which states the impression: "narcolepsy; low back syndrome. . . maintain on Ritalin 10 mg. po tid." Respondent testified that he had received similar information concerning the narcolepsy and psychiatric disturbance earlier than 1/5/82 first by telephone and then by written reports thereon from consulting neurologists, surgeons, and psychiatrists, and that through inadvertence this document was not turned over to Petitioner's investigator. However, Respondent did not explain why his files did not contain these other consultants' reports or why he did not write-up their contents or the dates they were received by him or why his prescriptions of 20 mg were so much greater than those recommended by Dr. Elzawahry. Dr. Breland felt that if Respondent were aware when he first prescribed Ritalin to this patient that the consultant had recommended it because of a good response, then Respondent's Ritalin prescriptions would be justified. It was also noted by Dr. Breland that Ritalin once was believed by the medical profession to be appropriately prescribed in the treatment of depression but that method had ceased and was statutorily proscribed by the time periods in question. Dr. Breland's expert opinion on prior belief of the medical profession is accepted. His conclusions of law invade the province of the hearing officer and are rejected in part and accepted in part as set out in the "Conclusions of Law." Dr. Breland did not feel under the circumstances that the Ritalin was contraindicated. Accordingly, Dr. Cohen's testimony that Ritalin is very dangerous if prescribed for chronic anxiety and depression is hereby discounted in that unlike Dr. Breland, he did not have the benefit of R-2 when testifying by earlier deposition. Dr. Cohen felt Valium was useful for chronic anxiety and that Tylenol #3 and Talwin were useful for pain but that there were excessive prescriptions of these drugs with few or no notations indicating any pain. In most instances all that is noted in Respondent's records on this patient is a prescription listed beside the date. Dr. Breland remarked that even the forms used by Respondent did not include a space for physical findings. J. M. (Counts XIV; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, J. M., between October 25, 1980, and March 9, 1982: 4/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/25/80 Percodan 01/05/81 Percodan 05/19/81 Emprin #4 06/03/81 Emprin #4 07/29/81 18 Percodan 09/25/81 12 Percodan 09/25/81 18 Tylenol #3 11/07/81 24 Tylox 11/21/81 Percodan 12/17/81 Percodan 01/02/82 Percodan 02/22/82 Percodan 03/09/82 Percodan The records of history and findings on this patient are reasonably complete and were faulted by Dr. Breland mostly because without appropriate dates one cannot tell if the history was taken on the initial visit as it should have been or later, and because the dates given are frequently out of order. In Dr. Breland's opinion, some of the modes of therapy utilized by Respondent were not of his choice but Dr. Breland only seriously objected to Respondent's continued and excessive use of Percodan as unsafe. Dr. Cohen's opinion was that the Respondent's conduct constituted mal- prescribing over malpractice. Dr. Breland's opinion was that Respondent's overall conduct with regard to these eleven patients constituted malpractice in that it was the failure to practice medicine with that level of care, skill and treatment of a reasonably prudent similar physician, under similar circumstances. Dr. Breland has had the benefit of reviewing all of Respondent's exhibits and he practices in the same geographical locale as Respondent. His opinion in this regard is accepted as to the overall pattern of practice with these eleven patients, despite his previous opinions that specific cases might not evidence malpractice.
The Issue The issues for determination in this case are whether Respondent's license to practice osteopathic medicine should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint, specifically for: 1) Respondent's failure to meet the acceptable standard of care for osteopathic medicine in his treatment of Patients S.R., K.P., R.Y., V.E., C.K., and S.P.; and 2) Respondent's failure to keep adequate medical records for the named patients.
Findings Of Fact Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of osteopathic medicine under Chapters 455 and 459, Florida Statutes. Respondent, Vincent Sundry, D.O., is and at all material times was, a licensed osteopathic physician in Florida, having been issued license number OS 001383. Central to the standard of care issues in this case is Respondent’s use of vitamin B-12 injections. Respondent testified that it is his practice to give patients 2 cc injections of B-12 "to get rid of lethargy and malaise." Respondent testified that he does not use B-12 to treat medical conditions. Respondent believes that B-12 improves the flow of oxygen in the blood and provides a boost of energy. It is also Respondent’s practice to mix ½ cc of B-12 with other medications to ease the sting of injections. Respondent testified that he learned this technique from a supervising physician at his osteopathic college in the 1950’s. In those days, medications such as penicillin were delivered in a heavy, syrup-like suspension, and the needles were of a larger gauge than is now common. Respondent’s supervising osteopathic physician believed that thinning the medicine with B-12 resulted in a less painful shot. Respondent adopted the practice and has maintained it throughout his career. Petitioner’s expert witness, Dr. Taylor, testified that B-12 shots are indicated only for pernicious anemia or an inability to absorb B-12 naturally. He testified that the only way to test for anemia or a B-12 loss is to draw a complete blood count ("CBC") and test the values of the hemoglobin. Dr. Taylor testified that giving B-12 injections to patients can be misleading, suggesting that it will make them feel better or have more energy when in fact it has no more effect than a placebo. Dr. Taylor stated that under some circumstances a placebo may be useful, but only as a last resort when conventional medications have failed. Dr. Taylor was also concerned that use of B-12 for such imprecise complaints as "lethargy" or "malaise" could lead to a delay in the correct diagnosis and treatment of the patient’s condition. Dr. Taylor conceded that B-12 is harmless, and that he has never seen a toxic or allergic reaction to B-12. Petitioner’s other expert, Dr. Latus, agreed that the accepted conditions for B-12 injections are pernicious anemia or a B-12 deficiency proven by blood tests. Dr. Latus also agreed that he was aware of no contraindications for B-12, and that the amounts of B-12 administered by Respondent were appropriate and not dangerous. Dr. Latus testified that some patients respond to placebos, but had no opinion on whether administering placebos constituted malpractice by an osteopathic physician. Respondent’s expert witness, Dr. Diamandis, also served as Respondent’s monitor during the 1992-1997 probation imposed on Respondent by an earlier order of the Board of Osteopathic Medicine. Dr. Diamandis testified that he has given B-12 injections to patients at their request, when the patients believed it would help them and after he had examined them. Dr. Diamandis summarized his view of B-12 as follows: It’s a funny thing, you can’t draw lines on B-12 and limit B-12, the use. You also cannot draw any lines and say you’re treating something when you give B-12, because it’s only a treatment for pernicious anemia, and it might also be a treatment for something else these days. Who knows. We’ve been drinking wine for a long time. Now they say it’s good for platelets to thin the blood a little bit . . . So I don’t think you can draw the line and say you shouldn’t use B-12. You can draw a line that says it’s only good for this that we know of. But a lot of people feel good when they get the shots. Maybe someone can come along and tell you why they feel good. Maybe a psychiatrist could do it. Dr. Diamandis did not accept Respondent’s use of ½ cc of B-12 to take the sting out of an injection as a method he would use in his own practice. However, he also declined to opine that Respondent’s method would constitute a deviation from the standard of care. Dr. Latus could not recall having been taught this method in his osteopathic training. As to several of the patients discussed in detail below, Petitioner pursued a theory that Respondent was using B-12 to treat conditions such as contact dermatitis, viral sinusitis, and ear infections, because the B-12 injections coincided with Respondent’s efforts to address those conditions. As stated above, Respondent denied that he ever used B-12 to treat any medical condition other than complaints of "lethargy" and "malaise." Respondent’s testimony on this point is credited. Petitioner failed to demonstrate that Respondent’s unorthodox use of B-12 constitutes a deviation from the standard of care. Patient S.R. Patient S.R., a 26-year-old female, first visited Respondent’s office on February 3, 1994, complaining of headaches caused by stress and tension. On March 2, 1994, Respondent treated S.R. for two abscesses in the upper right leg. Respondent cleaned the area of the abscesses, did a xylocaine block, incised and drained the abscesses, and bandaged the area. He gave S.R. injections of 1 cc of dexamethasone, a corticosteroid; 1 cc of lincomycin, an antibiotic; and ½ cc of B-12. Respondent testified that these injections did not go into the muscle tissue, but were done surficially around the abscesses. Respondent prescribed tetracycline, an antibiotic, and Librax to ease "the stress and strain going on in her nerves." Dr. Taylor testified that the dexamethasone was contraindicated, because injections of cortisone or steroids given at the time of an infection tend to blunt the immune system and slow the healing process. Dr. Taylor found this especially significant because S.R.’s infection was so serious that it had to be incised and drained. Dr. Taylor also found problematic Respondent’s failure to schedule a follow-up visit a few days later to assess the healing process. Dr. Taylor testified that lincomycin has a side effect profile so bad that the Food and Drug Administration removed oral lincomycin off the market. He testified that in 1994 there were other injectable antibiotics with fewer potential side effects that could have been given to S.R. Dr. Taylor testified that Respondent’s progress notes for S.R. simply set out a diagnosis and plan of treatment, without recording the size and duration of the abscesses, or the patient’s temperature, vital signs, or blood pressure. Dr. Latus testified that dexamethasone is not normally given in the case of an abscess or infection because it would have no effect. He agreed with Dr. Taylor that dexamethasone is a steroid that blunts the natural immune system, and thus should not have been used to treat S.R.’s abscesses. He also agreed that Respondent’s records did not sufficiently explain the situation or the reasons for the course of treatment Respondent pursued. Dr. Diamandis testified that he would not criticize the use of dexamethasone or some other anti-inflammatory in certain situations involving infections. However, the situations he described involved relatively extreme situations such as a patient with her throat so swollen there is concern that breathing will become obstructed, or a patient who is running a fever in the range of 104 degrees. These situations are not analogous to Respondent’s use of dexamethasone to treat S.R. Respondent testified that he administered the dexamethasone to take down the inflammation of the abscesses, in conjunction with the lincomycin to take down the infection. The evidence establishes that Respondent did not meet the applicable standard of care by administering dexamethasone for the treatment of Patient S.R.’s abscesses, and by failing to monitor the patient’s progress after the initial treatment. Respondent’s other actions in treating S.R., though subject to differences of opinion, met the standard of care. The evidence establishes that Respondent’s medical records failed to justify the course and scope of treatment concerning the use of dexamethasone. Respondent’s records failed to record such basic information as the patient’s vital signs, and recorded no specific observations concerning the abscesses. Patient K.P. On February 1, 1994, Patient K.P., a 56-year-old female, first presented to Respondent with a severe gastric upset. Respondent diagnosed gastritis and esophagitis. On March 4, 1994, Patient K.P. again visited Respondent. No complaint is noted for K.P. in Respondent’s notes. The notes indicate that K.P.’s weight was 193 pounds, her blood pressure was 130/82, and her heart tones and lungs were normal. Respondent decided to place K.P. on a weight regimen. He placed K.P. on thyroids; Lasix, a diuretic; and human chorionic gondatropin (HCG), a hormone produced during pregnancy. During a subsequent visit for the weight regimen on April 5, 1994, Respondent also prescribed Zestoretic, an antihypertensive combined with a diuretic. Respondent noted K.P.’s weight at 192 pounds during this visit. On April 26, 1994, K.P. visited Respondent complaining of bouts of vertigo. Respondent noted that her blood pressure had dropped to 114/78, and her weight was 188 pounds. Respondent also noted that K.P. was leaving for Canada, and he continued all the prescribed medications in larger quantities. Dr. Taylor testified that the use of HCG for obesity is inappropriate, because HGC is no more effective than a placebo for weight loss. Respondent testified that the HCG was not prescribed for weight loss but to treat menopausal syndrome in K.P., to "quiet her nerves" and help her lose weight. Respondent denied ever using HCG for diet patients. However, Dr. Diamandis, the probation monitor, recalled that Respondent had used HCG is the past for weight loss. Dr. Taylor disagreed with the use of Lasix for weight loss. He testified that Lasix artificially induces dehydration, giving the false appearance of weight loss. When the medication is stopped, the volume of fluids returns. Dr. Taylor testified that thyroids could induce a hypometabolic state, and has an adverse effect on the patient’s thyroid gland itself by discouraging the natural production of thyroid hormone. The thyroid gland can begin to dysfunction or decrease the amount of thyroid hormone it would make. Dr. Taylor stated that giving a patient thyroid for a period of weeks or months could induce hypothyroidism. Dr. Taylor also questioned the use of Zestoretic, noting that nothing in Respondent’s records for K.P. indicates hypertension. Dr. Taylor pointed out that this prescription, coupled with Lasix, meant that K.P. was now taking two diuretics, which would result in low blood pressure and a lower level of potassium and other salts in the bloodstream. Dr. Taylor testified that he was not surprised that K.P.’s chief complaints on April 26, 1994 were bouts of vertigo and decreasing blood pressure, as these symptoms were to be expected with the medications Respondent prescribed. Dr. Taylor concluded that Respondent’s treatment constituted a major safety issue for K.P. Respondent continued the prescriptions for K.P. when she went to Canada, without taking any steps to monitor her condition. Respondent’s records indicated no monitoring of the patient’s electrolytes, no chronic medication list, no chronic problem list, and no discussion of diet for K.P., despite the fact that she was seeing Respondent for weight loss. The evidence establishes that Respondent did not meet the applicable standard of care by administering thyroid, Lasix, HCG, and Zestoretic for the treatment of Patient K.P.’s weight problem. The evidence establishes that Respondent’s medical records failed to justify the course and scope of treatment concerning the use of thyroid, Lasix, HCG, and Zestoretic. Patient R.Y. Respondent’s records indicate that Patient R.Y. visited Respondent 39 times over the period from early March 1993 through September 26, 1994. Twenty-one of those visits, from March 1993 through February 1994, involved persistent contact dermatitis, a skin rash resulting from exposure to a primary irritant or to a sensitizing antigen. Upon his initial diagnosis of contact dermatitis, Respondent gave R.Y. injections of dexamethasone and Vistaril, a tranquilizer, as well as B-12. Respondent also prescribed an oral antihistamine. On nine subsequent visits, Respondent gave B-12 injections to R.Y. Dr. Latus testified that nothing in the medical record or his experience indicated that B-12 injections were appropriate treatment for contact dermatitis. As found above, Respondent denied that he used B-12 as a treatment for any condition other than lethargy and malaise, and that denial was credited. Aside from the use of B-12, Dr. Latus found nothing inappropriate in Respondent’s treatment of R.Y. Dr. Taylor joined Dr. Latus’ objection to the B-12 injections, and also criticized Respondent for seeing the patient 21 times over an 11-month period for contact dermatitis. Dr. Taylor opined that such a large number of visits without resolving the problem should have caused Respondent to refer R.Y. to a dermatologist. Respondent testified that he tried to refer R.Y. to a dermatologist, but that he refused to go because of the expense. Respondent stated that R.Y.’s condition was responsive to the treatment he was giving, but that the condition was caused by R.Y.’s working with concrete and stucco, and that R.Y. refused to find another line of work. Respondent concluded that until R.Y. was willing to quit working with the materials that were causing his problem, a specialist could not achieve any better result than Respondent. The evidence failed to establish that Respondent did not meet the applicable standard of care as to his treatment of Patient R.Y.’s contact dermatitis. Respondent’s medical records, while lacking descriptive detail of the color and quality of the rash, adequately justify the course and scope of treatment of Patient R.Y. Patient V.E. On March 15, 1994, Patient V.E., a 38-year-old female, presented to Respondent with a complaint of pain in the lateral left foot. Respondent’s records attribute the pain to a cheap pair of shoes that V.E. had worn for four or five days. Respondent diagnosed a severe ligamentous sprain, and possible falling arch. Respondent gave V.E. a one cc injection of prednisone, a steroid, and eight 375 milligram tablets of Naprosyn, an anti-inflammatory. On March 31, 1994, V.E. returned to Respondent, again indicating pain in her left foot, in the third and fourth metatarsal area, accompanied by edema. Respondent injected the area with xylocaine, a pain killer, then with dexamethasone. He prescribed Lasix to reduce the swelling. The only item in the treatment of V.E. that either Dr. Taylor or Dr. Latus found to be objectionable was an unrecorded injection of ½ cc of B-12. Both doctors opined that B-12 is not indicated for a foot sprain. Respondent testified that the B-12 was not administered to remedy the foot sprain, but to ease the sting of the dexamethasone injection. Respondent testified that he did not chart the B-12 because it was not used to treat anything, and it was only 1/2 cc to thin out the medicine. Respondent did record the 1/2 cc of B-12 in the shot records he was required to submit to the Board of Osteopathic Medicine as part of his probation. Dr. Taylor opined that the failure to include the 1/2 cc B-12 injection in the patient record constituted improper documentation. However, Dr. Latus expressly declined to opine on the question whether the failure to include the B-12 injection constituted improper documentation. The evidence failed to establish that Respondent did not meet the applicable standard of care as to his treatment of Patient V.E.’s ligamentous sprain. Despite their failure to include the 1/2 cc injection of B-12, Respondent’s medical records adequately justify the course and scope of treatment of Patient V.E. Patient C.K. Patient C.K.’s first visit to Respondent was on September 10, 1982, when he completed a medical history questionnaire indicating he was diabetic and took a "diabetes pill." The visits at issue in this case occurred in 1993 and 1994, when C.K. was in his early eighties. On March 9, 1993, Respondent diagnosed C.K. with back spasms and a pelvic tilt. Respondent applied osteopathic manipulative therapy, gave an injection of dexamethasone and ½ cc of B-12, and prescribed an anti-inflammatory medication. On April 1, 1994, C.K. visited Respondent with a complaint of pain in his left hip over the sciatic notch. Respondent repeated the injection of dexamethasone and B-12, and gave C.K. a refill of the anti-inflammatory medication. On April 2, 1994, Respondent recorded that C.K.’s hip pain had curtailed most of his activities, and a "probable need for radiological evaluation." Respondent recorded that C.K. was responsive to the osteopathic manipulative therapy, which restored some ability to bend, stoop, and move without pain. Respondent’s records do not indicate follow-up regarding the radiological examination, and do not indicate that X-rays were ever taken of C.K. Patient C.K. testified that he used to go to Respondent for his neck and back, but that Respondent never treated his diabetes. He recalled the manipulative therapy, and recalled requesting and receiving a B-12 shot from Respondent. He could recall receiving no X-rays. C.K. testified that he now works-out at the gym five or six days a week and suffers no back problems, but would return to Respondent if he did. Dr. Latus concluded that, aside from the B-12 injection, Respondent provided satisfactory and adequate care to Patient C.K. Dr. Taylor expressed concern about the B-12 and, more significantly, about Respondent’s administering corticosteroids to a diabetic patient, particularly where there is no record of what medication C.K. was taking for his diabetes. Dr. Taylor testified that corticosteroids elevate blood glucose, and should be avoided for diabetic patients unless they are in severe pain or unless corticosteroids are mandated for the patient’s condition. Dr. Taylor also criticized the lack of follow-up on the probable need for radiological examination. The evidence establishes that Respondent did not meet the applicable standard of care by administering dexamethasone for the treatment of Patient C.K.’s hip pain, given that C.K. was a diabetic. Because C.K. appeared to respond positively to the osteopathic treatments, Respondent’s failure to refer C.K. to a radiologist was within the standard of care. The evidence establishes that Respondent’s medical records failed to justify the course and scope of treatment concerning the use of dexamethasone. The records do not indicate the type of diabetes medication that C.K. was taking, or even an acknowledgment by Respondent that he took C.K.’s diabetes into account before administering dexamethasone. Patient S.P. Patient S.P., a 61-year-old female, visited Respondent only once, on April 1, 1994. She complained of vertigo, lethargy and malaise. She also indicated that, two to three weeks previously, she had a severe ear infection that was never treated. Respondent characterized S.P. as displaying overall myalgia, aching in her joints, hardly able to move. Her throat was swollen and inflamed. Respondent manipulated her back for the aches and pains, and manipulated her sinuses. Respondent diagnosed S.P. as having viral sinusitis, though he took no cultures to definitively diagnose the viral origin. He gave S.P. an injection of dexamethasone with ½ cc of B-12, and prescribed a ten-day course of vibramycin, a tetracycline antibiotic. Respondent testified that S.P. was on her way home to Michigan, but felt too sick to fly. His goal was to make her feel well enough to get home, at which point she would visit her own physician. Dr. Latus testified that, except for the B-12, the treatment of Patient S.P. was appropriate. Dr. Taylor testified that, aside from the B-12, Respondent misprescribed antibiotics to treat what he had diagnosed as a viral illness. Viral illnesses are not treated with antibiotics. However, Respondent could not definitively diagnose whether the infection was viral or bacterial without taking cultures. Under the rushed circumstances, Respondent prudently prescribed an antibiotic. At worst, the antibiotic would be ineffective; if the sinusitis was in fact a bacterial infection, the antibiotic would have a salutary impact. The evidence failed to establish that Respondent did not meet the applicable standard of care as to his treatment of Patient S.P.’s symptoms. Respondent’s medical records adequately justify the course and scope of treatment of Patient S.P. Conclusion In summary, the weight of the expert testimony and other evidence establishes that Respondent did not practice with an acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances as to Patients S.R., K.P., and C.K. The weight of the expert testimony and other evidence establishes that Respondent did practice with an acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances as to Patients R.Y., V.E., and S.P.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Osteopathic Medicine enter a final order determining that Vincent Sundry has committed three violations of Section 459.015(1)(o), Florida Statutes, three violations of Section 459.015(1)(x), Florida Statutes, and revoking his license to practice osteopathic medicine in the State of Florida. DONE AND ENTERED this 14th day of April, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2000. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Practitioner Regulation-Legal A Post Office Box 14229 Tallahassee, Florida 32317-4229 Pamela A.M. Campbell, Esquire 535 Central Avenue, Suite 403 St. Petersburg, Florida 33701 Howard H. Whittington, Esquire 1100 Cleveland Street, Suite 900 Clearwater, Florida 33755 Bill Bukhalt, Executive Director Board of Osteopathic Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 William Large, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
Conclusions The attending nurse's actions and inactions fell below the standard of professional care applicable under the circumstances. The consequences of a below normal fetal heart rate are so critical that, even if the nurse was suspicious that the monitor was not working properly, her proper response should have been to take immediate steps to determine whether the fetus was in distress, to intervene with resuscitation measures if needed, and to alert a doctor. Her failure to take appropriate action was negligence and was the proximate cause of the injuries suffered by Janaria. South Broward Hospital District, doing business as Memorial Regional Hospital, is liable as the nurse's employer. There are many reasons for entering into a settlement agreement other than the perceived merits of the claim and, therefore, I am not precluded from reviewing the terms of the parties' settlement agreement in this matter and determining whether they are reasonable under the totality of the circumstances. In this case, the settlement amount is far less than the usual jury verdict for injuries of this nature. Had this case involved a private hospital, the settlement amount would probably have been much larger. Therefore, I believe it would be fair and reasonable for the Senate to pay an award of $550,000 (or 50 percent more than the agreed settlement amount). ATTORNEY’S FEES AND LOBBYIST’S FEES: In compliance with s. 768.28(8), F.S., the Claimants' attorneys will limit their fees to 25 percent of any amount awarded by the Legislature. However, Claimants’ attorneys did not acknowledge their awareness of the provision of the bill that limits attorney’s fees, lobbyist’s fees, and costs to 25 percent of the award. They propose a lobbyist's fee that would be an additional 6 percent of any award. OTHER ISSUES: The bill should be amended to correct the name of the defendant to South Broward Hospital District. Of the two annuity options presented by the Claimants' attorney, I believe the option that guarantees payment for 40 years is the better option. In addition, because Shakima Brown received nothing in the settlement, I believe the bill should specify that, in the event that Janaria dies before the trust fund is exhausted, the balance in the trust fund should go to Ms. Brown. The District stated that paying a claim in the amount of $300,000 would not impair its ability to provide normal services. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 38 (2008) be reported FAVORABLY, as amended. Respectfully submitted, cc: Senator Ted Deutch Representative Kelly Skidmore Faye Blanton, Secretary of the Senate Bram D. E. Canter Senate Special Master House Committee on Constitution and Civil Law Tony DePalma, House Special Master Counsel of Record
The Issue Whether Petitioner's licensure status should be reduced from standard to conditional.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. IHS operates a licensed nursing home at 4033 Beaver Lane, Port Charlotte, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On February 4 through 7, 2002, AHCA conducted an annual licensure and certification survey of IHS to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is a deficiency identified as Tag F322 (violation of 42 C.F.R. Section 483.25(g)(2), relating to a facility's duty to prevent aspiration pneumonia, diarrhea, vomiting, dehydration, metabolic abnormalities, and nasal-pharyngeal ulcers in residents who are fed via naso-gastric or gastrostomy tube). The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. A Class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. The deficiency alleged in the survey was cited at a federal scope and severity rating of G, meaning that the deficiency was isolated and caused actual harm that is not immediate jeopardy. Based on the alleged Class II deficiency in Tag F322, AHCA imposed a conditional license on IHS, effective February 7, 2002. The survey found one instance in which IHS allegedly failed to ensure appropriate treatment for a resident fed by a naso-gastric or gastrostomy tube. The surveyor's observation on Form 2567 concerned Resident No. 2: Based on observation, review of resident record and facility policy and procedure, and interview with the nutrition and administrative, and nursing staff, the facility failed to notify the Registered Dietician of a physician ordered consult requested secondary to elevated laboratory values and need for reassessment of resident's nutritional and fluid needs; failed to complete the physician ordered dietary consult; failed to review physician orders and review resident laboratory values when completing the January 2002 tube feeding review resulting in no reassessment of the resident's nutritional needs and no readjustment in the resident's tube feeding with the subsequent negative outcome of metabolic abnormalities and dehydration secondary to excessive protein intake for 1 (Resident No. 2) of 7 residents reviewed for tube feeding from a total sample of 22 active sampled residents. The findings include: Resident No. 2 was admitted to the facility on 09/07/01 with diagnoses including Type 2 Diabetes, Senile Dementia, Chronic Bronchitis, Aspiration Pneumonia and Depression. The resident had a gastronomy tube for feeding and was receiving nothing by mouth. Review of the resident hospital laboratory data dated 9/5/01, indicated that the resident was admitted to the facility with normal laboratory values except an elevated Glucose level of 195 (reference range 75-109 mg/dL). The resident's Blood Urea Nitrogen (BUN) was within normal limits at 12 mg/dL (reference range 5-25 mg/dL); Creatinine was within normal limits at 1.2 mg/dL (reference range 0.5-1.4 mg/dL); BUN/Creatinine Ratio was 10:1 within normal limits of 10:1. The resident's albumin level dated 9/1/01, indicated a moderate depletion of protein stores at 2.6 g/dL (reference range 3.4-5.0 g/dL). The resident had clear urine with a normal urine specific gravity of 1.010 (reference range 1.001-1.030). Review of the initial Nutritional Assessment completed on 09/10/01, revealed that the resident's estimated nutritional needs were 1320 calories and 64 grams of protein (1.5 grams/kg body weight) with 1290 cc of fluid (30 cc/kg body weight). The resident's weight on admission was 94.4 pounds with an ideal body weight range of 95 pounds +/- 10 percent. The resident's weight in August 01 was documented as 96.8 pounds. Resident's height was 50 inches. The Registered Dietician (RD) recommended a change in the tube feeding to Resource Diabetic at 60 cc per hour with 100 cc of water every shift (300 cc of additional water) to provide 1440 calories, 90 grams of protein (2.1 grams of protein/kg body weight) and 1509 cc of free water. The RD documented that the resident had a need for extra protein secondary to a low albumin. (This tube feeding provided an additional 120 calories and 26 grams of protein a day beyond the resident's estimated nutrient needs.) Review of the Enteral Feeding Flow Sheet revealed that the RD recommended increasing the tube feeding further on 10/03/01, secondary to weight loss to Resource Diabetic at 75 cc per hour with no recommendation to increase the fluid flushes. It was documented that the resident's weight decreased 3.2 percent without a specified period of time. The resident's current weight was documented as 93.8 pounds. The RD did not recalculate the nutritional needs based on the current weight. She documented that the increase in tube feeding would provide 1800 calories (41 grams/kg) with 113 grams of protein (approximately 2.7 grams/kg body weight) and 1812 cc of free fluid plus 30 cc of fluids with medications. (This tube feeding provided an additional 480 calories and 49 additional grams of protein beyond the resident's estimated nutrient needs.) The note further documented that the resident's blood sugars were ranging from 122-141 mg/dL, no other labs were documented or requested. Review of the Enteral Feeding Flow Sheet dated 11/20/01, revealed that the resident remained on this tube feeding and water flushes and gained an additional 4 pounds in one month. The RD documented to continue with the current Plan of Care. The resident continued to receive an additional 480 calories (40 calories/kg) and 49 grams of protein (approximately 2.5 grams/kg) from this formula. Review of the Enteral Feeding Flow Sheet dated 12/07/01, revealed that the resident continued on the tube feeding and flushes and gained another 2 pounds. Review of physician telephone orders dated 12/19/01, revealed that the physician increased the water flushes to 150 cc every 6 hours to provide 600 cc of fluid per day in addition to the tube feeding, an increase of 300 cc per day. Review of the physician's progress notes dated 12/22/01 at 4:50 P.M., indicated that the resident had an elevated BUN of 84 mg/dL and an elevated glucose of 128. The physician documented that the resident had azotemia without increased sodium and questioned a gastrointestinal bleed. He further documented that the resident did not look dehydrated clinically and that her Type 2 Diabetes was improved. The physician ordered labs, check the stool for blood and was receiving [sic] increased water through the PEG tube (feeding tube in the stomach). Review of nurses notes dated 12/22/01 at 1800, revealed the stools were checked for blood with negative results. Review of the resident's lab data dated 12/18/01, revealed that the resident had a normal sodium and potassium level and an elevated BUN of 84 mg/dL (reference range 6-28 mg/dL). The resident's creatinine level was normal at 1.1 mg/dL (reference range .2-1.5 mg/dL). Glucose was elevated at 128 mg/dL (reference range 60-115 mg/dL). The BUN/Creatinine Ration [sic] had increased from normal to 76:1 and the calculated serum osmolality was 323 mOsm/kg H2O (normal values 285-295 mOsm/kg H2O). (These lab values were indicative of excessive protein intake and possible dehydration). Review of lab data obtained 12/24/01, indicated that the resident's BUN remained at 84 mg/dL, Glucose was normal at 90 mg/dL and the resident had an elevated white blood cell count indicative of infection. Serum osmolality remained elevated at 316 mOsm/kg H2O. BUN/Creatinine Ratio remained at 76:1, indicative of excessive protein intake and possible dehydration. The nurse had noted on the lab work form that the resident had tested negative for blood in her stool X 2 on 12/25/01 and the resident's whiteblood cells had been normal in September 2001. The labs were faxed to the physician on 12/26/01. Further review of the physician's telephone orders revealed that a dietary consult was ordered on 12/28/02 [sic]. Review of the dietary progress notes and Enteral Feeding Flow Sheets revealed that the consult had not been completed. The resident remained on the tube feeding at 75 cc per hour which provided 1800 calories, 113 grams of protein and 2112 cc of free fluid. (480 additional calories: 40 calories/kg; 49 grams additional protein: 2.5 grams/kg and approximately 35 cc of fluid/kg per day). The next documented nutritional review was completed on 1/14/02. The RD reassessed the resident's calorie needs to add 500 calories for weight gain with a total of 1820 calories per day. Protein needs were reassessed at 72 grams per day (1.5 grams/kg based on current weight). Fluid needs were reassessed at 30 to 34 cc/kg body weight or 1440 to 1632 cc per day. The resident's weight was documented at 106 pounds, a 6.4 pound weight gain (6.4 percent) in one month. There was no indication that the RD addressed the consult ordered 12/28/01 or the abnormal lab data from 12/18/01 and 12/24/01. Accuchecks (blood sugar levels) were noted on the flow sheet an [sic] ranging from 123-170 mg/dL. It was noted that the resident was receiving multivitamins with minerals. Review of the progress note that accompanied the flow sheet revealed that the RD documented on 01/14/-2, that the resident continued to gain weight on the tube feeding, that the accuchecks were elevated and "MD aware." Her recommendation was to continue with the current Plan of Care. Observation of the resident on 02/04/02 at 11:32 A.M., revealed a petite, frail woman sitting in a geri-chair propped up with pillows and a splint on her left hand. The resident's tube feeding was running at 75 cc per hour. Skin appeared smooth with good skin turgor, lips were dry. Resident had mild temporal wasting. Observation of the Foley catheter bag 02/05/02 at 11:15 A.M., revealed 125 cc of moderately yellow urine in the bag with sediment in the tubing. Interview on 02/04/02 at 2:05 P.M., with the consultant RD, who had completed the assessment on 01/14/02, revealed that she had not reviewed the physician orders or lab data when she completed the assessment. She stated she did check the resident's daily blood sugar levels. She stated the resident's fluid needs were being met at the time of the assessment and the resident was gaining weight. She confirmed that she did not assess the resident's protein intake from the formula versus the resident's estimated needs. The RD stated that the Resource Diabetic is high in protein but that is the only diabetic formula available on the formulary. She stated that after discussion with the surveyor, she would reassess the resident today and check with the physician regarding the rate of the tube feeding to provide less protein. Further interview with the RD on 02/04/02 at 3:00 P.M., revealed that she had spoken to the RD who covers the C wing and that RD told her that she had been on vacation during the time the RD consult was ordered. The consultant RD confirmed that the facility had not contacted her regarding the consult during her visits to the facility. She again stated that she was planning to decrease the protein in the tube feeding and keep the fluid flushes at 150 cc every 6 hours. She further stated that it would be difficult to decrease the protein to the resident's estimated needs due to the need for use of the diabetic formula. Review of the dietary progress note completed on 02/04/02, after surveyor intervention, indicated that the resident had increased to 107.2 pounds and was now above ideal body weight. Recalculation of the the [sic] resident's calorie needs was estimated to be approximately 1400 calories per day. Protein was reestimated [sic] at 1.2 grams/kg body weight or 57.6 grams per day. Fluid needs were calculated at 30-34 cc/kg body weight or 1440 to 1632 cc per day. The RD recommended to decrease the tube feeding to Resource Diabetic at 55 cc per hour to provide 1399 calories with 83 grams of protein (1.6 to 1.7 grams/kg body weight). Total free fluids provided would be 1708 cc per day (approximately 35 cc/kg/body weight). The RD also recommended lab data to assess hydration status and visceral protein stores. Review of the physician telephone orders dated 2/4/02, revealed that the physician approved the decreased [sic] in the tube feeding. Review of the lab data obtained 2/5/02, revealed that the resident's BUN remained elevated at 71 g/dL. The Creatinine was 0.9 mg/dL with the BUN/Creatinine ratio remaining elevated at 78:1. Calculation of the serum osmolality was 318, indicative of continued excessive protein intake and possible dehydration. The resident serum albumin did improve to 3.2 grams/dL. Further review of the dietary progress notes written 02/06/02, revealed that the RD recommended contacting the physician regarding the abnormal labs. She recommended increasing the fluid flushes to 150 cc every 4 hours which would provide an additional 900 cc of free fluid per day. The RD further documented that if the BUN did not show improvement in one week with the increased fluid flushes, a change in the type of formula would be necessary. She recommended Fibersource that has a protein level of 45 grams/1000 cc versus the resident's current Resource Diabetic which has 63 grams/1000 cc. Interview on 02/06/02 at 2:30 P.M., with the Administrator, Director of Nursing and 2 RD's confirmed that the RD's had not been notified of the 12/28/01 consult, that they do not get notified when lab data is abnormal unless they are verbally told by nursing. The full-time RD stated that she had originally assessed the resident's protein needs at 1.5 grams/kg body weight secondary to the low albumin and the resident's poor appetite. She stated that she was providing the extra protein secondary to having to use the diabetic tube feeding formula that was available in the formulary and meet the resident's calorie needs. The Director of Nursing stated that they had formulas from other companies in the building and that the facility could get a different diabetic formula if needed. The RD's agreed that the resident needed to be reassessed. Interview with the Director of Nursing on 02/07/02 at 12:05 P.M., revealed that she had reviewed the resident's record and had nothing else to bring the surveyors after reviewing the record and nothing else to offer. She stated that she that [sic] there were issues and that the facility would work on them. Cynthia Lehman, a public health nutrition consultant, was the survey team member who recorded the observation of Resident No. 2. Ms. Lehman's findings were based on her observations of Resident No. 2, a review of the resident's medical records and of the facility's policies and procedures, and interviews with IHS staff. At the hearing, IHS did not contest the accuracy of the factual findings set forth by Ms. Lehman, though it did contest AHCA's conclusion that Resident No. 2's elevated BUN level was caused by excessive protein intake. Resident No. 2 was a 82-year-old female first admitted to IHS on August 15, 2001, after a hospital stay for intravenous hydration. She had been admitted to the hospital with severe dehydration with azotemia, which is the retention of excess nitrogenous compounds in the blood caused by the failure of the kidneys to remove urea from the blood. Azotemia is associated with a high blood urea nitrogen ("BUN") level. Resident No. 2's BUN level on August 10, 2001, was 37 mg/dL. Normal limits of BUN are 5-25 mg/dL. Resident No. 2 was a small woman, 4'2" tall, and weighed 96.8 pounds. She suffered from diabetes, chronic obstructive pulmonary disease ("COPD"), chronic pancreatitis, hypothyroidism and heart disease. Upon admission to IHS, Resident No. 2 was bed-bound in a fetal position, lethargic and uncommunicative. She had skin tears on her heels and coccyx. During her first admission, Resident No. 2 ate poorly and had difficulty swallowing. The speech therapist at IHS determined that she would require tube feeding to maintain nutrition. Resident No. 2 was therefore readmitted to the hospital for placement of a percutaneous endoscopic gastrostomy tube, or "PEG tube." She was readmitted to IHS on September 6, 2001. Her condition was the same as on her first admission, with the exception of the PEG tube. Laboratory values were taken of Resident No. 2 during her second hospital stay. Of relevance to this proceeding, her blood urea nitrogen ("BUN") level on September 5 was 12 mg/dL, within normal limits of 5-25 mg/dL. She showed a moderate protein deficiency. Her albumin level was 2.6 g/dL, below normal limits of 3.4-5.0 g/dL. The IHS dietician, Carol Gathy, assessed Resident No. 2 upon her September 6 admission. She estimated that the resident required 1,320 calories and 64 grams of protein per day to maintain nutrition. Ms. Gathy noted that Resident No. 2 had a history of poorly controlled diabetes and that her accuchecks (blood sugar monitoring tests) were high. Resident No. 2's medical history indicated that she was prone to fall into azotemia. Ms. Gathy determined that the first priority was bringing Resident No. 2's diabetes under control, and for that reason recommended a product called Resource Diabetic for her tube feeding. Resource Diabetic is recommended for diabetics because it has a lower ratio of simple sugars than other tube feeding formulas. The tube feeding was initially provided at 60 cc/hour, with water flushes of 300 cc/day. This provided Resident No. 2 with 1,440 calories and 90 grams of protein per day. At the recommended levels, Resource Diabetic provided calories and protein in excess of Resident No. 2's estimated needs. Ms. Gathy thought this necessary to assist Resident No. 2 in gaining weight and replenishing her protein stores. The resident's thinness made her prone to pressure sores, as indicated by the skin tears on her heels and coccyx. Ms. Gathy thought that the extra protein would raise Resident No. 2's low albumin levels and enable healing of the existing skin tears, and that the extra calories would provide some "padding" to prevent future skin tears. On October 3, 2001, Ms. Gathy noted a three-pound weight loss for Resident No. 2 and recommended that the tube feeding be increased to 75 cc/hour. This increased Resident No. 2's intake to 1800 calories and 113 grams of protein per day. From early October through November, IHS performed daily accuchecks and determined that Resident No. 2's blood sugar and glucose levels were normal. Resident No. 2 was adjusting well to tube feeding and gaining weight. Her skin tears had healed and her skin was intact. Aside from the accuchecks, no other laboratory tests had been taken since her admission to IHS on September 6, 2001. The attending physician ordered lab work on December 18, 2001. Resident No. 2's BUN level was 84 mg/dL, well above the normal limits of 5-25 mg/dL. Evidence produced at the hearing indicated that an elevated BUN level over a long period of time can have negative effects, including renal failure. A BUN level must reach 100 mg/dL to be considered "critical," but a level of 84 mg/dL is considered abnormally high. Because no lab work was performed between September 5 and December 18, 2001, IHS did not know how long Resident No. 2's BUN level had been elevated. On December 19, 2001, the physician ordered an increase in the water flush through the PEG tube in an effort to bring down the BUN level. The "flush" is simply free water in the tube feeding that hydrates the resident and flushes out some of the excess protein. On December 22, 2001, the physician diagnosed Resident No. 2 with azotemia, due to the elevated BUN level. The elevated BUN level could have several causes, including a gastrointestinal ("GI") bleed, dehydration, infections, or excess protein. The physician ordered a stool culture to rule out a GI bleed. The culture tested negative for blood in the stool. The physician ordered further lab work on December 24, 2001. Resident No. 2's BUN level remained at 84 mg/dL. Her creatinine and hematocrit (red blood cell) levels were within normal limits. These labs caused the physician to focus on excess protein as the cause of the elevated BUN level. On December 28, 2001, he ordered a dietary consultation regarding Resident No. 2's protein intake. Staff of IHS did not perform the dietary consultation. Ms. Gathy was on vacation during this period, and no one at IHS informed the consulting dietician on duty, Chrisanna Harrington, that the consultation had been ordered. Resident No. 2 continued to receive the Resource Diabetic feedings at 75 cc/hour. Ms. Harrington performed a nutritional assessment of Resdient No. 2 on January 14, 2002. She documented a significant unplanned weight gain of 6.4 pounds by Resident No. 2, from 99.6 to 106 pounds in one month. She recalculated the resident's caloric and protein needs upward, from 1320 to 1820 calories per day and from 64 to 72 grams of protein per day. Ms. Harrington recommended continuing the Resource Diabetic feedings at 75 cc/hour and otherwise continuing with the existing care plan. When she performed her assessment on January 14, 2002, Ms. Harrington was unaware that the physician had ordered a dietary consult. She was also unaware of the laboratory tests performed the previous December. She did not know that Resident No. 2's BUN levels were elevated. Ms. Harrington only learned of the physician's orders and the lab tests when the agency surveyor, Ms. Lehman, informed her of them on February 4, 2002. Ms. Harrington then performed a weight review of Resident No. 2 that showed her weight increased to 107.2 pounds. She recalculated the residents caloric and protein needs downward to 1400 calories and 57.6 grams of protein. She recommended reducing the tube feeding to 55 cc/hour, and recommended further laboratory testing. The labs performed on February 5, 2002, indicated that Resident No. 2's BUN level was at 71 mg/dL, reduced but still well above normal limits. At the hearing, IHS contended that Resident No. 2's elevated BUN level was not necessarily caused by excessive protein intake. The resident suffered a urinary tract infection in early December. Infections can increase the BUN level. Throughout her stay at IHS, the resident was receiving Prinivil, a beta-blocker for hypertension that has a potential side effect of increasing the BUN level. In October 2001, the resident received Levaquin, an anti-infective drug, that could have influenced her BUN level. The weight of the evidence made it clear that, while these other causes were possibilities, the excessive protein was the most likely cause. The steps taken by the physician showed that he believed excessive protein was the most likely cause of the elevated BUN level, once he ruled out a GI bleed. Ms. Harrington, too, acted immediately to reduce Resident No. 2's protein intake as soon as she was informed of the elevated BUN level. In any event, the cause of the elevated BUN level is less important than the fact that the facility's care ensured that the resident's BUN level would not be tested for a period of three and one-half months. Resident No. 2 was an elderly diabetic with a history of azotemia, and was being provided a diet with a level of protein well in excess of her assessed need, yet no laboratory blood levels were taken between September 5 and December 18, 2001. Even after the attending physician began to suspect excess protein as the culprit and ordered a dietary consultation, the facility failed to act on the order. In summary, the evidence presented at the hearing demonstrated that IHS provided an excessive amount of protein in the tube feeding of this elderly diabetic resident, failed to monitor the resident's laboratory values, including BUN levels, despite a documented history of azotemia, and failed to follow physician orders calling for a dietary consultation. All of these factors placed Resident No. 2 in unnecessary jeopardy of sustaining kidney damage. That she displayed no outward physical signs of kidney damage was fortuitous, not the result of the care provided by IHS. The evidence demonstrated that IHS compromised Resident No. 2's ability to maintain or reach her highest practicable physical, mental, and psychosocial well-being as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order upholding its notice of intent to assign conditional licensure status to Integrated Health Services of Port Charlotte. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Jonathan S. Grout, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Suite 310-G St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
