The Issue The issues to be resolved in this proceeding concern whether disciplinary action should be taken against the Respondent's licensure based upon an alleged violation of Section 458.331(1)(S), Florida Statutes, concerning his ability to practice medicine with reasonable skill and safety by reason of illness, substance abuse, or mental or physical condition.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine as delineated in Chapter 458, Florida Statutes. This regulation is both in terms of the agency's licensure entry regulation and the professional practice standards embodied in that chapter, as they relate to license retention and other disciplinary measures. The Respondent, at all times material hereto, has been a licensed physician, holding a license issued by the State of Florida. The Respondent, as a licensed physician in the State of Florida, is subject to the licensure and medical practice regulatory jurisdiction of the Board of Medicine of the Agency for Health Care Administration. E. Michael Gutman, M.D. is a psychiatrist, board certified with the National Board of Medical Examiners, the American Academy of Addiction Medicine, and the American Academy of Forensic Psychiatry. He is a diplomate of the American Board of Psychiatry and Neurology and was accepted as an expert witness in the area of psychiatry on behalf of the Petitioner. Karl Burak, M.D. is a physician, who is board certified in family medicine and board certified as a diplomate of the American Board of Psychiatry and Neurology and who practices as a psychiatrist. He is also a fellow of the American College of Legal Medicine and holds a law degree, although he is not and has not been a practicing attorney. Dr. Burak was accepted as an expert witness in the field of psychiatry, testifying on behalf of the Respondent. The Respondent, at the time of the agency's investigation and his various evaluations, was approximately 63 years of age. He is a graduate of the University of Texas and Harvard Medical School. Additionally, he studied in the medical field at the Medical School at Johns Hopkins University for six years thereafter. Since approximately 1966, he has been engaged in medical practice, with an approximate two-year hiatus from 1978 to 1980. He practiced as a neurosurgeon in private practice in a partnership until 1978, at which time, his partnership was terminated. He returned to medical practice in 1980 and has practiced since that time, essentially as a general practitioner until shortly prior to the initiation of this proceeding. He is not practicing currently, but his license is still active. In September of 1991, the Respondent had a cerebral vascular accident (CVA), or stroke, which temporarily affected his visual field, although his vision has since greatly improved. His personal opinion, and his medical history since that time, does not indicate any other significant impairment caused by the stroke. He has been evaluated by a cardiologist and neurologist and has been diagnosed with bilateral carotid disease. He also developed arthritic pain and stiffness some two years ago in the left knee which caused him to stop his primary recreation of running, as a means of exercise. The Respondent freely acknowledges that he has a fairly recent alcohol problem to the extent that in 1986 and 1993, he was arrested for driving under the influence. As a result of the second arrest, he was convicted and suffered a suspension of driver's license. He has willingly acknowledged his problem with alcohol and has acted to correct it. He is an active member and attendee of Alcoholics Anonymous and its meetings and, as shown by his testimony and by his medical evaluation, has been clean of alcohol use for a substantial period of time. He states that he last drank alcohol in December of 1993. Tests concerning his blood and liver function bear out this statement as accurate. The Respondent is not impaired as a result of alcohol use at the present time. As a result of his second DUI arrest, in December of 1993, the Respondent was evaluated by a licensed mental health counselor by referral from the Northeast Florida Safety Council. That Council encouraged the Respondent to contact the Physicians' Recovery Network (PRN). The Respondent contacted the PRN and inquired about the program and an attempt was made to refer him for an evaluation. The Respondent scheduled an evaluation with a physician participant in the program in Ocala, Florida. The Respondent maintains that when he called Dr. Thompson's office in Ocala, to verify his appointment, he was instructed by that office to call PRN. He states that upon calling PRN, he was told that he should not see Dr. Thompson but, instead, go to a hospital (Talbert Recovery System) in Atlanta, Georgia, for a three-day, in-patient evaluation. He explained that he was working at the time and that it would difficult for him to do that, but he was told to clear his time and immediately contact Dr. Moliere. He did not contact Dr. Moliere. He maintains that some weeks later, Dr. Moliere called and, in essence, told him to either have the evaluation done in Atlanta, Georgia, or that he would have problems "with the Medical Board." Whether or not that description of the conversation is accurate, that marked the start of the Respondent's rather extreme, intransigent hostility toward the PRN program, as an entity, in part because of his belief that the in- patient method of evaluation would cost him a great deal of money, when he could have as easily availed himself of the services of PRN on an out-patient basis. He considers PRN to be "legalized extortion." The Respondent has a great deal of pride as a physician and greatly resents his practice and himself being personally evaluated by the PRN, which he considers an illegitimate arm of the proper regulatory body, the Medical Board. He has become quite resentful and hostile toward the PRN, partly through what he considers to be the disrespectful manner in which PRN personnel have treated him. On January 18, 1995, the Respondent complied with an agency order compelling that he undergo a mental examination. Consequently, he was evaluated by E. Michael Gutman, M.D., the psychiatrist who testified on behalf of the agency in this proceeding. On his own volition, he also underwent evaluation by Dr. Burak and by Dr. Chaknis, a neuro-psychologist who performed certain testing and reported on those test results, to assist Dr. Burak in forming his medical opinion and expert opinion to which he testified in this case. Dr. Gutman obtained and prepared a detailed social and medical history of the Respondent, administered the Minnesota Multiphasic Personality Inventory Psychological Test (MMPI), questioned the Respondent in detail concerning historical facts, and performed a mental-status examination. The purpose of the evaluation was to determine the Respondent's medical condition, diagnosis, psyche, prognosis, and to make any recommendations for treatment or any other matters concerning his fitness to practice medicine, in response to the Board of Medicine's ordering of the evaluation. Dr. Gutman completed a written evaluation, including a written opinion based upon that evaluation, in which he found that the Respondent showed signs of bad judgment and emotional conditions which preclude him from being able to entirely, adequately handle the practice of medicine. He found evidence of alcohol abuse, but in recovery; dysthymia (a depressive disorder); and a personality disorder with schizoid, paranoid, and passive-aggressive traits. Based upon an interview with the Respondent, Dr. Gutman opined that, coupled with the results of the MMPI, the Respondent showed anger, manipulativeness, and passive-aggressive traits, with a tendency to blame others or make excuses for his actions, and to take up a "cudgel" against someone or the agency. He found that the Respondent's vehement refusal to comply with the program of PRN, in spite of PRN's "authority" over his medical license, indicates intransigence in the face of reasonable, logical activities and pathways to protection of his right to practice. This shows, according to Dr. Gutman, personality traits that incline the Respondent toward obstructionism and disruptiveness in his dealings with the PRN and the Board and indicate someone who has a "blind spot" or is in denial, which could impinge on his safe practice of medicine. Dr. Gutman found the Respondent inclined toward "pettifogging" or quibbling over small issues, words, or details. This tendency concerning his dispute with the Petitioner and the PRN the doctor finds self-destructive, negative, and indicative of a personality disorder, which may cause him severe problems in practicing medicine. Dr. Gutman testified that the Respondent's actions with regard to his confrontation with the PRN seem to be permanently intransigent. He advised him, and concluded that, until the Respondent realizes this and decides to "back off" or surrender, in Dr. Gutman's opinion, he should not practice medicine. Dr. Gutman and his assistant have endeavored and advised the Respondent to be reasonable and to see the wisdom of surrendering to the Board and PRN, in following the evaluation requests that have been made of him. He advised the Respondent that he should show contrition, remorse, and true penitence if "he were to have any hope of redemption by PRN and the Board." The Respondent did not seem to have a clear understanding of the PRN's standing, relationship and purpose in conjunction with the Board of Medicine, which Dr. Gutman explained to him at the time of his evaluation of the Respondent. He appeared to understand more of the purpose of the PRN and the purpose of its inquiry into his behavior and conduct, although he did not agree at that time to make a complete surrender to the PRN program. Dr. Gutman found, however, that there were no actively psychotic symptoms, such as hallucinations, delusions, tangential thinking or ideas of reference. He observed primarily a paranoid suspiciousness based upon the Respondent's tenacious stubbornness and pride, more than a psychotic trend. The Respondent informed him that he had had a previous stroke, which caused quadrantonopsia or impairment of his visual field. Since that time, his visual problem has been largely alleviated. The doctor observed his intellectual functioning to show that he is well-oriented to person, place and time and to have no deficits in areas dealing with recent and remote memory, retention, and recall of information or ability to calculate. Dr. Gutman did not feel that the Respondent's "crankiness" was related to organic features associated with brain damage or his previous CVA. He found the Respondent to be of above-average intelligence. Dr. Gutman, in summary, found that the past problems with alcohol, his negativism underlying depression, and the impossible stand he takes with regard to cooperation with the PRN and, to a lesser extent with the Board, show definite signs of bad judgment and emotional conditions which preclude him from being able to adequately practice medicine at the present time. The Respondent acknowledges that he is in recovery from his alcohol problem, and the past alcohol problem does not appear to be a cause of an inability to safety and effectively practice medicine. Dr. Gutman feels that the Respondent's behavior and conduct in his dealings with the PRN and, to some extent, the Board, shows flawed judgment. He recommended that the Respondent seek psychiatric treatment, counseling, psychotherapy, and possibly medications and that he "offer a full and complete surrender and capitulation to the Board and PRN" and complete all requirements of those agencies before restoration of his full right to practice. Dr. Burak has some of the same concerns regarding the Respondent's judgment concerning his handling of the physicians' recovery issue with the PRN. Dr. Burak referenced testing done on the Respondent by Dr. Chaknis, which indicates poor judgement, in particular, a test where the Respondent failed to observe certain missing items in a picture on a test. This was particularly so with a picture of a room and a door with a missing door knob. The Respondent failed to notice the missing door knob. He felt that the Respondent's poor performance on this test might be attributed to somewhat flawed insight or judgment. Dr. Burak also described the Respondent's performance on the WAIS-R test, performed by Dr. Chaknis. Dr. Burak finds this test significant in the evaluation of the Respondent. He noted a significant difference of some 25 points revealed on the test, between the Respondent's verbal I.Q. and his performance I.Q. He spoke with Dr. Chaknis concerning this significant discrepancy. Neither he nor Dr. Chaknis were able to state definitively why there was such a significant discrepancy in a gentleman of above-average intelligence, such as the Respondent. Dr. Burak opined that with a person of such an exemplary academic background and good performance throughout his medical career, some other cause must explain such a significant difference. Dr. Burak felt that it might be worth evaluating any changes which might have occurred in the Respondent's performance related to his CVA or the stroke he experienced in 1991, as to the possibility of some residual effects from that event. Dr. Burak felt that the evidence of mild depression and the lack of any evidence of psychosis or psychotic manifestations, coupled with the fact that he is no longer having a problem with alcohol, all indicate that the Respondent can continue to practice medicine. Because of the evidence of questionable judgment, however, derived primarily from his intransigent, hostile attitude in relationship with the PRN, as well as the variance between his performance in verbal intelligence test results, further investigation should be made concerning whether any performance deficit is present in the Respondent as a result of his CVA incident. Consequently, Dr. Burak's opinion, as corroborated by that of Dr. Chaknis, is that the Respondent should not be precluded from practicing medicine but that, in this particular, he agrees somewhat with Dr. Gutman that the Respondent should be allowed to practice medicine only with supervision until Dr. Burak's questions are answered by further evaluation. Dr. Burak does not have a concern with him practicing medicine, so long as he does not practice medicine without supervision. Dr. Burak's opinion, as corroborated by the findings and reports of Dr. Chaknis, are accepted, as are those of Dr. Gutman, except to the extent that Dr. Gutman finds that he has a personality disorder so severe as to absolutely preclude the practice of medicine with reasonable skill and safety at the present time. In view of the details of the history taken of the Respondent, the mental and physical findings and especially those embodied in the testimony and evidence adduced through Dr. Burak and Dr. Chaknis, clear and convincing evidence has not been presented to show that the Respondent is so impaired as to be unable to practice medicine with reasonable skill and safety in any fashion at the present time.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the Respondent be found in violation of Section 458.331(1)(S), Florida Statutes, in the above particulars, and that his practice should be restricted such that he practices under the supervision of another qualified physician and the Board of Medicine and that he be placed on probation for a period of one year, during which time he undergo such evaluation and, if necessary, treatment, as seems best designed to alleviate his impairment. He should appear before the Board of Medicine at the end of that effort and be given an opportunity to demonstrate that he is able to practice medicine, independently, with skill and safety to patients. DONE AND ENTERED this 6th day of February, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-2531 Petitioner's Proposed Findings of Fact 1-4. Accepted. 5-9. Accepted. 10-22. Accepted, only as modified by the findings of fact made by the Hearing Officer and subordinate thereto. 23. Rejected, as constituting a recitation of testimony and not a finding of fact. 24-29. Rejected, as constituting a recitation of testimony and not a finding of fact and subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact The Respondent's purported "proposed findings of fact" numbered 1-11 are, in reality, recitations of testimony, discussion and argument concerning the nature, import and legal effect of testimony and evidence. There are no separately stated, coherent findings of fact upon which cogent rulings can be made. However, the subject matter of the purported "proposed findings of fact" submitted by the Respondent has been completely addressed in this Recommended Order. COPIES FURNISHED: Kevin W. Crews, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lincoln Jeanes, Jr., M.D. Post Office Box 50497 Jacksonville, Florida 32240 Jerome Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792
