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
Findings Of Fact At all times pertinent to this proceeding the Respondent, Dr. Benjamin Belmonte, M.D., has held a current and valid medical license issued by the Board of Medical Examiners, Department of Professional Regulation. Dr. Belmonte is practicing as a general practitioner in Rockledge, Florida. The Respondent has attained a number of significant honors during the course of his professional career. He was valedictorian of his class in medical school. Subsequently he served as a medical professor from 1956 to 1970 at St. Thomas University in Manila, the Philippines. He worked in the Philippines as a cardiovascular surgeon. He has practiced for approximately ten years in Rockledge, Florida. On June 25, 1980, Linda Lomax made a medical appointment at the Respondent's office using the alias "Sandy Hobson". She testified that upon arriving at the office no medical history was taken although she did state she filled out a form given her by the Respondent's nurse. The Respondent's own testimony shows that she filled out an extensive medical history form (which included a false description of her drug use habits.) This form only indicated the name Sandy Hobson and Linda Lomax never gave any indication to the Respondent at this time that her name was other than Sandy Hobson. Her complaint that day was a severe migraine headache with nausea and, indeed, she vomited in the Respondent's office at the time. The Respondent's testimony established that she gave the appearance of being very ill with a verbal history of severe headaches. The Respondent on that occasion did a complete physical examination, since it was that patient's first visit. The Respondent's testimony, as well as that of his medical expert witnesses, establishes that it is within accepted medical practice to do such an extensive physical only on the first visit and not on subsequent visits. The Doctor suggested prescribing certain non-addictive drugs to this patient at that time and she refused, stating that she was allergic to talwin and others and requested demerol. He told her that he had no demerol in his office and then issued her a prescription for demerol. "Sandy Hobson" then left the Respondent's office and proceeded to a pharmacy across the street. The pharmacist, David Ray, testified for the Petitioner and established that he recognized Sandy Hobson as Linda Lomax, known to him to be a drug abuser. The pharmacist refused to fill her prescription and telephoned Dr. Belmonte and asked him to come to the pharmacy to identify the person to whom he had issued the prescription. David Ray asked the Doctor if that was the person he prescribed the demerol for and he affirmed that it was. The pharmacist in the meantime had called the Rockledge Police Department and two officers, Lt. Carter and Sgt. Ellis had come to the pharmacy. Upon informing the pharmacist that "Sandy Hobson" was the person to whom he had prescribed the demerol the Doctor left the pharmacy. The officers then escorted Ms. Lomax to the police station where she gave certain information to the police and thereupon proceeded to work with the law enforcement agency as an informer providing information concerning certain robberies of pharmacies and other criminal activities in the Rockledge-Cocoa area. It was at this meeting with the pharmacist at the drugstore to identify Sandy Hobson that the Doctor first learned that her name might not be Sandy Hobson. Either at that time or at their next visit on July 3 or 4, 1980, she informed the Doctor that she had given him a false name because she was "hiding from her husband." The Doctor believed this reason for being given the false name and, as the testimony of David Ray establishes, was not actually informed that she was a drug abuser at the time he was asked to affirm his prescription at the pharmacy on June 25, 1980. Linda Lomax next contacted the Respondent on either July 3 or July 4, 1980 (the record is unclear). This meeting occurred when Linda Lomax, uninvited, visited the Doctor at his table at the Rockledge Country Club. Linda Lomax related to the Doctor at that time that she was in severe pain from migraine headaches and feeling very ill. His testimony reveals that her appearance at that time was that she was very ill. She requested another prescription. After questioning her regarding why she needed another prescription so soon the Doctor ultimately gave into her entreaties and agreed to prescribe again for her provided she would come to his office nearby. They then proceeded to the Doctor's office. The record is unclear whether they stopped enroute at a private residence on Barton Boulevard belonging to the Doctor's sister. The Doctor makes an almost daily habit of stopping at that residence to ascertain that it is secure because his sister and her husband are away during the summer. It is his habit to enter the house, turn on the air conditioner briefly and ascertain that no unauthorized entry has occurred and that the house is otherwise secure. The Doctor testified that he could not remember definitely whether he stopped on this occasion nor whether Linda Lomax also stopped at the house on the way to his office. Linda Lomax testified that they went into the house together, had an alcoholic drink and that he propositioned her for sexual favors. She then testified that he called two pharmacists in the local area, one in Melbourne and one in Rockledge who, according to her testimony, informed him that they would not fill a prescription for her because she was a drug addict. It was established by the Doctor's testimony, which the undersigned finds more credible, that the telephone was disconnected all that summer because the house was unoccupied and therefore the undersigned finds it was impossible that the Doctor called any pharmacies from the house on that occasion and therefore could not have learned at that time that Linda Lomax was a suspected drug addict. The testimony of Elsina Jordan, a pharmacist at the Eckerd drugstore on Dixon Boulevard in Rockledge is unpersuasive because although she testified that she received a call from a person who sounded like Dr. Belmonte, she was unable to remember the definite date that she received the call and that it could have been in the latter part of July, 1980. She could not sufficiently relate it to the same occasion to enable that testimony to serve as corroborative of that of Linda Lomax regarding whether the Doctor had been put on notice by a pharmacist of Lomax's drug problem. It should be pointed out that the testimony of Elsina Jordan also corroborated the showing by the other pharmacists testifying that the Doctor was of a conservative bent in his tendency to prescribe controlled substances. In any event Dr. Belmonte ultimately issued Ms. Lomax a prescription for demerol dated July 4, 1980. Linda Lomax next approached the Respondent on July 6, 1980, when she confronted him at the Rockledge Country Club where he was socializing with friends. This visit was not at his invitation and he felt surprised and a little discomfited at her appearance during non-office hours. She requested an additional demerol prescription and he protested, reminding her firmly that he had just prescribed thirty tablets on July 4. She remonstrated persistently that she was suffering from severe migraine headache pain and felt very ill. She additionally protested that she was leaving town the next day for approximately ten days' vacation and wanted to have the medication to meet any need that might arise while she was out of town. The Doctor ultimately and reluctantly agreed to give her a prescription for fifteen tablets since she still had fifteen left of the thirty tablet prescription made on July 4. These tablets were prescribed to be taken every four hours for a total of six per day, therefore the additional prescription, if taken at that rate, would have only lasted her approximately two and a half days of the ten days for which she requested them. The Doctor thus, at this stage of the doctor-patient relationship, was making an effort to prescribe conservatively and the number of tablets prescribed on this occasion corroborates the Doctor's testimony that at this meeting he was trying to inform her that she might be taking an excessive amount of this medication. The Doctor acknowledges that on this occasion he and Linda Lomax journeyed in separate cars from the Country Club to his office to execute the prescription. Her testimony asserts that they stopped by the house of his sister on Barton Boulevard at which time the Doctor drank an alcoholic beverage and propositioned her for sex. The Doctor vehemently denies that this occurred, although he acknowledges that they may have stopped at the house enroute in order to allow him to inspect the house according to his almost daily routine when journeying between his office and the Country Club. Dr. Belmonte next saw Linda Lomax on July 12, 1980, when, at her request, he admitted her into Wuesthoff Memorial Hospital for demerol detoxification. Dr. Belmonte obtained her complete medical records at that time and first noted her history of drug abuse for the previous ten years, both from her verbal information, as well as her medical records. The Doctor then requested a demerol toxicity report and referred her to the treatment of Drs. Torres and Turla, both associated with the Rock ledge Community Mental Health Center and psychiatrists on the staff of the hospital. She was actually treated by Dr. Torres who followed Dr. Turla's standard orders on file at the hospital for the treatment of drug addicts. Valium, darvon and darvocet were prescribed for her withdrawal symptoms, as well as vitamins. The toxicity report requested by Dr. Belmonte revealed that the patient had had no demerol in her blood system for the previous seven to ten days. Dr. Turla ultimately released Linda Lomax from the hospital on July 17, 1980, to be followed as an out-patient at the Mental Health Center. On July 24, 1980, Linda Lomax went to the Rockledge Police Station and in the presence of Lt. William Carter placed a telephone call to the Rockledge Country Club asking for Dr. Belmonte. When he answered the phone he allegedly asked her to meet him at the "house" on Barton Boulevard. The record does not reflect clearly that Lt. Carter had initiated a criminal investigation of Dr. Belmonte at the time he listened to their conversation on an extension phone. 1/ Linda Lomax had gone to the offices of the police department to talk about criminal investigations for which she had provided information. She then told Lt. Carter to listen on an extension phone while she called "someone." In essence the conversation only concerned Dr. Belmonte telling her to meet him at the house. There is no evidence what the conversational context was, nor why he requested her to meet him at the house. In any event, the record does not reflect that Lt. Carter had previous knowledge that Linda Lomax was going to call the Respondent nor that he had formed the intent to investigate Dr. Belmonte prior to hearing this phone conversation. In any event had the testimony regarding the phone conversation been admitted as evidence it could only reveal that Dr. Belmonte asked her to meet him at the house on July 24 and nothing more. In any event Linda Lomax did go to the private residence owned by Dr. Belmonte's sister and brother-in-law, secretly followed by Lt. Carter and another police officer, and met Dr. Belmonte for a few minutes. The photographs in evidence revealed them standing together outside the residence beside Dr. Belmonte's car. Dr. Belmonte claims not to remember whether they went into the house, he merely acknowledges that they "could have stopped by the house" as he put it. Lt. Carter's testimony establishes that they were inside for a few minutes. Linda Lomax alleges that while inside the house he drank whiskey and propositioned her for sexual favors, which she refused, whereupon they left. They proceeded to Dr. Belmonte's office whereupon he issued her a prescription for valium and darvocet. These are scheduled controlled substances pursuant to Chapter 893, Florida Statutes. Drs. Turla and Johnson testified that these are valid and appropriate medications to prescribe for a person experiencing, or complaining of experiencing, withdrawal symptoms from demerol addiction as was Linda Lomax on this occasion. It might be remembered that this was the course of treatment prescribed by her treating physician, Dr. Turla, while she was confined in the hospital for detoxification from her demerol addiction. The Respondent asserts that Dr. Belmonte departed from proper community medical practice standards by prescribing demerol to a drug addict. Dr. Belmonte, however, was not aware of Lomax's drug addiction until she was admitted to the hospital on July 12, after all demerol prescriptions involved herein had already been made. The record simply does not reflect clear and convincing evidence that Dr. Belmonte was on notice that Linda Lomax was a demerol addict until he obtained her complete medical history upon her admission to the hospital. Dr. Turla testified that Dr. Belmonte did not indicate in the admission medical history that he had previously prescribed demerol to Linda Lomax and that this would have been helpful to know and would have been standard practice in the community in creating medical records. Dr. Turla would only testify however that the patient herself told him that she had obtained 380 demerol tablets over an unspecified period of time and he just took her word for it. Thus, Dr. Turla's testimony establishes that although it was standard practice to put such information in such a medical history record, he did not testify that the omission of it by the Respondent, given the information supplied by the patient herself, resulted in any lapse in conformance to proper standards of care to the patient, nor that Dr. Belmonte thus failed to conform to community medical standards. It must be remembered that Dr. Belmonte himself was the admitting physician and already had personal knowledge of his previous prescriptions for her. It is also true that Dr. Turla testified that if he had an initial contact with a patient who complained of severe migraine headache of several days' duration that he would not use a potentially addicting drug as a first prescription. In this instance, however, Linda Lomax maintained that she was allergic to talwin and other medications the Respondent proposed. Thus, given his good faith belief in her veracity at the time, his prescription of demerol was not shown to be medically inappropriate. The Petitioner presented no evidence to support its charges contained in Count two which alleged the making of deceptive, untrue or fraudulent representations in the practice of medicine. It did present the testimony of Linda Lomax which could be construed to go to the charge of employing a trick or scheme in the practice of medicine. In that connection, with regard to the Petitioner's charge (in Count three) that the Respondent exercised influence within the doctor-patient relationship for the purpose of engaging the patient, Linda Lomax, in sexual activity, it should be pointed out that the allegation was supported solely by the testimony of Linda Lomax. Her testimony establishes that no sexual encounter actually occurred, although she maintained that the Respondent suggested such. She testified that on each of the occasions when she maintained she met the Doctor at the house on Barton Boulevard that he solicited sexual activity which she consistently refused. Also, as her testimony clearly indicates, the Doctor prescribed the requested medication for her on each of those three occasions when she maintains they were together at the "house" even though he received no sexual favors in return. Thus, it has not been established that there was a connection between sexual activity or the suggestion or promise thereof on the part of the Respondent and the prescriptions he ultimately wrote for Ms. Lomax. In fact, the Respondent's testimony established that on each of the occasions he saw her she complained of symptoms of anxiety, sleeplessness and severe pain, coupled with allergies to certain substances, which would make the prescriptions written for her appropriate as Dr. Turla's testimony corroborates. Thus, even if it could be deemed to have been proven that the Doctor suggested the sexual escapades testified to by Linda Lomax, there is no nexus established that these were in return for his prescribing the subject drugs. Further, Linda Lomax's testimony is totally uncorroborated regarding the Doctor's alleged suggestion of such sexual activity. Even if the telephone conversation overheard by Lt. Carter was admissible, which the Hearing Officer rules it is not, it would only establish that the Doctor may have suggested that they meet at the house and nothing more. Thus, it cannot corroborate the testimony of Linda Lomax that he suggested they engage in sexual activity during the course of their physician-patient relationship. The testimony of Linda Lomax is laced with certain inconsistencies which significantly detract from its weight and credibility. Thus, with regard to the occasion when she contends she went to the subject house on July 24, she maintained in an earlier sworn statement that the Doctor answered the door clad only in his underwear and later suggested that they engage in sexual activity. At the hearing, however, she testified that he answered the door, they went to the kitchen of the house, had a drink and, as he was seated at the kitchen table he allegedly unzipped his pants (although he did not expose himself) , and suggested that she favor him with oral sex. On an earlier visit to the house, according to Linda Lomax, after suggesting that they engage in sexual activity, she states the Doctor telephoned several pharmacies on her behalf. The Doctor's testimony established in an unrefuted way that the telephone was not even connected that summer because his sister and brother-in-law were out of the state and not using their house, thus it was impossible for him to have called pharmacists on that occasion, contrary to her testimony. Witness Lomax was also unable to recall or supply details of the conversations on the occasions of these various supposed meetings at the house on Barton Boulevard and, for instance, on each occasion could only testify that the Doctor suggested they have sex relations. She supplied no details regarding how this subject of conversation actually arose and failed to recall other details of the contacts she had with the Respondent during the various meetings in June and July of 1980, which could have rendered her testimony of sexual misconduct more plausible. Witness Lomax's own testimony as well as the testimony by deposition of Drs. Gutman and Parsons establishes that this witness has a history of drug addiction and a sociopathic personality trait characterized by unabashed deception of doctors and other "authority figures" in order to achieve personal desires (such as obtaining drugs) Although, as ruled in the Conclusions of Law below, the witness is legally competent to testify, I find that her testimony standing alone is not of a type which would be commonly relied upon by reasonably prudent persons in the conduct of their affairs when juxtaposed with the Respondent's testimony categorically denying any suggestion of sexual activity between the two of them, as well as denying that he had any idea that she was a drug abuser until he admitted her to the hospital. The undersigned is compelled to find that the Respondent's testimony in this regard is more credible and worthy of belief. Other than the fact that they stopped by the house on Barton Boulevard on at least one occasion, her testimony compared to that of the Respondent establishes nothing more than that he prescribed the subject drugs and thus does not establish the truth of charges related to his alleged soliciting of sexual favors. The Petitioner presented the testimony of two nurses, Janet Stalnaker and Carol Hampton, in support of its allegation that the Respondent is unable to practice medicine with reasonable skill and safety to his patients by reason of the use of alcohol. Nurse Stalnaker was a witness whose name was not supplied to the Respondent in answer to the question in the Respondent's interrogatories regarding the witnesses to be called at the hearing. Thus, the witness was a surprise witness. The Respondent, however, did not demonstrate that her proffered testimony so prejudiced its conduct of its case as to necessitate a continuance in order for it to prepare to meet the matters raised by that testimony. Accordingly, her testimony is considered herein; however, her testimony is not substantial in establishing the Doctor's inability to practice medicine because of the use of alcohol, since Nurse Stalnaker only observed the Respondent in a situation where she thought he had been using alcohol prior to coming on duty on one occasion. That was either in 1974 or 1975 (she could not remember which year). The Doctor on that occasion, according to Nurse Stalnaker, appeared to act in a slow and sluggish manner and she thought she could smell alcohol on his person. She was not able to state that he was an impaired physician however, and that occurrence is so remote in time to the occasion of this proceeding as to have little materiality to the charge to which it relates. The excessive remoteness of that alleged occurrence is borne out by Nurse Stalnaker's own inability to recall which year it occurred. Nurse Hampton testified that on one occasion "a year or so ago she seemed to detect an odor of alcohol on the Respondent's breath" and that his speech was "slightly slurry" when he was working in the emergency room. She recalled rather vaguely that there may have been other occasions when he "might" have been under the influence of alcohol. All these occasions however were when the Respondent was a doctor "on-call" rather than actually working at the emergency room on a scheduled shift, according to her own testimony. Dr. M. Blake Arnall on the other hand, had never observed the Doctor to be under the influence of alcohol while he was working and had never known him "to have a drinking problem." Doctor Arnall has known the Respondent for seven years, although he has not worked closely with him, but he is aware of his reputation in the medical community. Similarly, witnesses Tournavene and Monsigneur Terrence Fariealy, the pastor of the Catholic Church in Rockledge, vouched for the Respondent's moderate drinking habits. Witness Tournavene has known the Respondent since 1973 or 1974 socially, plays golf with him frequently and has been in the lounge with him at the Country Club and has observed his drinking habits. He has noted nothing unusual or excessive in the Respondent's drinking habits and he has never been "out of control of himself." He is generally the first of his party to leave the lounge. He has been with the Respondent socially three to four times per week for the last three to four years and has noted that the Respondent does not drink at social gatherings when he is about to report for work. He would not hesitate to use him as his own physician. Monsigneur Fariealy has known the Respondent as a parishioner for ten years and the Respondent is also his personal physician and social friend. They have been together on numerous social occasions, typically at the Country Club, and he has observed his drinking habits. He has seen the Respondent only engage in social drinking and has never observed him drinking when he thought it was merely for the purpose of having a drink. He has never seen him drink to excess, has observed that he does not always drink alcohol when others with him do, and has never heard the Respondent's drinking habits discussed at all. In the words of Monsigneur Fariealy "his drinks last a long time -- longer than mine." The Respondent conducts his office very professionally according to this witness and always takes a written medical history on a form obtained from his daughter, the receptionist.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of all witnesses, and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That, the Petitioner having failed to establish any of the allegations of the administrative complaint by competent, substantial evidence, that the same be dismissed with prejudice. DONE AND ENTERED this 15th day of December, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1981.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent, Carlos De La Fe, M.D., is now and was at all times material to these proceedings, a licensed physician in the State of Florida having been issued License No. ME 0017825. On January 15, 1985, the Board of Medical Examiners issued a final order wherein disciplinary action was taken against the Respondent's license to practice medicine. The order stated in part that: it is hereby ordered and adjudged that Respondent be reprimanded. Respondent's license to practice medicine in the State of Florida shall be placed on probation for a period of three years under the following terms and conditions: * * * (d) Respondent must take and pass within six months part three of the examination by the National Board of Medical Examiners in lieu of the first 50 hours of continuing medical education. The Respondent applied to take Part III of the National Board Examination but was notified in March, 1985, by the National Board that he was not eligible to sit for the examination. On May 2, 1985, the Respondent informed the Florida Board of Medical Examiners that he was not eligible to take the National Board's test. At a meeting held by the Board of Medical Examiners on June 1, 1985, the Respondent was present and agreed to take and pass Part II of the Flex examination in lieu of the National Board of Medical Examiner's test which he was previously ordered to take and pass in the Final Order of January 15, 1985. The Flex Examination was scheduled for mid-June, 1985. Although Respondent agreed to the substitution of examinations, he indicated to the Board that he might not be able to adequately prepare for the examination in such a short period of time. Respondent took Part II of the Flex examination on June 12, 1985, but failed to pass it. Respondent received a score of 71. Flex examinations are offered every six months in June and December. The Flex Examination was offered in December, 1985 and June, 1986, but the Respondent failed to take either examination. The Respondent attempted to apply to take the December, 1985 examination, but was beyond the registration deadline.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered imposing a reprimand, a $500 administrative fine, and suspending Respondent's license to practice medicine unless and until he successfully passes the Flex Examination Part II. DONE and ORDERED this 20th day of November, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32304 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 20th of November, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1851 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Rejected as subordinate. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 6. Rulings on Proposed Findings of Fact Submitted by the Respondent (None submitted) COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert K. Estes, Esquire 717 Ponce de Leon Blvd. Suite 232 Coral Gables, Florida 33134 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings E. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 3233 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
