The Issue The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, has been the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was a licensed physician in Florida under license number ME 0039846. On September 23, 1988, Respondent saw Patient #1, a 55 year old female, who presented with a primary complaint of chronic pain in the neck and low back resulting from an automobile accident. The patient history taken by the Respondent revealed a head injury, a back injury and a whiplash injury, all within the previous five years. The patient also had a history of unstable blood pressure, especially in times of stress, and a history of alcohol abuse which had been in remission for the past two years. Respondent examined the patient and found she was suffering from depression but evidenced no suicidal ideations or indications of psychosis. Respondent diagnosed a major depressive reaction and myofacial syndrome of the neck and low back. Dr. Morales treated this patient from September 23, 1988 to February 1, 1990, prescribing various antidepressants and anti-anxiety medications including Limbitrol, Prozac, Valium, Halcion and Tranxene for her. He also prescribed various opiates including Percodan and Percocet. Respondent claims he made a copy of each prescription he wrote for the patient medical records of each patient so that he could keep track of the number of pills he prescribed for that patient. He claims that the quantity of a prescribed medication was kept in a separate area of the patient's chart and not with the clinical notes. Though Respondent claims this procedure was a common office practice and done consistently in every patient's chart, the evidence indicates otherwise. His method of recording medication in the clinical record was inconsistent. At some places in the record he would indicate the exact number of a specific pill prescribed. At other places in the record, he would not. Examples of this practice, as seen from the medical records of Patient #1 available, shows the following entries: October 20, 1988, Rx for Valium for patient #1 but no indication of the amount prescribed is found in the records. March 2, 1989, Rx for Percodan QID (4 times a day), but no indication in records of the amount prescribed. July 8, 1989 Rx for Percodan - 60 tabs. August 2, 1989 Respondent notes to continue with Percoset, but no notation in records as to amount. September 7, 1989 Rx for Percocet but records do not reflect amount prescribed. November 15, 1989 Rx for 60 Percocet. December 6, 1989 Rx for 30 Percocet pills. While Patient #1 was under Respondent's care, she was admitted to the hospital twice. On September 18, 1989 she was admitted to Largo Medical Center for narcotics addiction and was discharged on September 28, 1989. On September 18, 1989, while the patient was in the hospital, Dr. Farullah, a staff physician, called Respondent to discuss the patient with him. This conversation, including the Respondent's name, is itemized in the hospital records for this patient. It is appropriate practice protocol upon the admission of a patient to the hospital for the admitting physician to notify the patient's attending physician about the patient's diagnoses and condition. It would appear this was done here by Dr. Farullah. Nonetheless, Respondent claims he did not know the patient was hospitalized, contending he did not recall the conversation, and noting that the information regarding hospitalization might not have been included in it. Respondent claims he never heard of Dr. Farulla until a subsequent visit from the patient in his office on October 24, 1989. After the patient's discharge from the hospital, she came to Respondent's office for a 30 minute visit on October 4, 1989. Though this visit occurred only 6 days after her discharge from the hospital, Respondent claims the subject of her hospitalization was not discussed. Two days later, on October 6, 1989, the patient returned to Respondent's office for another 30 minute visit and again, the subject of her hospitalization did not come up. This patient was readmitted to the hospital on October 10, 1989 with a diagnosis of, among other things, drug dependency. She was discharged on October 20, 1989, but, again, Respondent claims he did not know of her hospitalization. He saw her on October 24, 1989 for another 30 minute visit during which, he claims, the subject of her hospitalization did not come up. This appears to be a conflict with his previous testimony , noted in Paragraph 8, supra, wherein he stated he never heard of Dr. Farullah until he met with the patient in his office on October 24, 1989. On April 10, 1990, in the course of filing a disability claim with the Department of Health and Rehabilitative Services, (DHRS), the patient signed a medical release form. Thereafter, HRS requested the patient's records from the Respondent, but they were not forthcoming. A second request was transmitted to the Respondent who replied that the records requested had been copied but not dispatched because no release form accompanied the request. Respondent indicated that upon receipt of the release form, the records would be forwarded, and on June 4, 1990, they were, in fact, sent by the Respondent. This was approximately 17 months before the burglary of Respondent's office to be discussed, infra. Respondent claims it was his policy, however, in responding to requests for information to the Social Security Administration, (disability claims are paid by Social Security), to provide only clinical notes, initial evaluation, and a medical summary update. Other records, including prescription records, are not sent. Respondent's office was burglarized on November 30, 1991 by one of his former employees. According to Respondent, all the medical records he had were taken during the break-in. Though they were ultimately returned, he claims they were incomplete when returned. However, comparison done by the Department's investigator, of the medical records of Patient #1 which were sent to HRS before the burglary with those taken from Respondent's office after the burglary, indicated they were the same, except for some duplicates. Nonetheless, Respondent claims that some of the records pertaining to Patient #1, including prescription records, were not recovered. This could explain the absence of prescription records in both sets of records, but that is not found to be the case here, however. According to the Board's expert, Dr. Boorstin, a Board Certified Psychiatrist who specializes in addiction psychiatry and opiastic medicine, the benzodiazepins prescribed for Patient #1 by the Respondent, were inappropriate because of her known alcoholism, and he failed to adequately monitor her for possible addiction or dependence. Even though her condition had been in remission for two years, Dr. Boorstin concluded it was below standard practice to prescribe those drugs to this patient. Dr. Boorstin also concluded that Respondent failed to keep adequate written medical records for this patient and did not justify the less than conservative prescription of anti-anxiety and pain medications to a known alcoholic. A physician must keep track of the drugs being used by a patient to be sure no abuse trends exist. The Respondent should have detailed with exactitude in his records the number of each specific medication. From September 30, 1988 to February 1, 1990, a period of 16 months, he prescribed various opiate-based pain killers to Patient #1, including Tylenol #3, Codeine, Percodan and Percocet. His prescription of the latter two, in Dr. Boorstin's opinion, fell below the appropriate standard of care. The patient's hospital records indicate she was suffering from drug addiction, and if, as the Department claims, Respondent knew of her hospitalizations and the reason therefor, his prescription of liberal amounts of opiate based drugs was inappropriate. The evidence shows the patient was admitted to the hospital on two occasions, both times for, among other problems, drug addiction. Less than one month after her second discharge, Respondent prescribed Percocet for this patient for pain relief at a rate of two tables every six hours. According to Dr. Boorstin, the usual adult dosage is one tablet every six hours. This is outlined in the Physician's Desk Reference, (PDR), a compendium of drugs and medications with manufacturer's recommendations for dosage. Though authoritative in nature, the PDR is not mandatory in application, and physicians often use it as a guide only, modifying strength and dosage as is felt appropriate for the circumstance. On at least one occasion, Respondent's medical records for this patient show he prescribed Percocet but not the amount prescribed. This is below standard. The same is true for the noted prescription for Percodan. Both Percodan and Percocet are Schedule II drugs. A notation in the records for a prescription for Valium also reveals no indication was given as to the amount prescribed. Again, this is below standard. Dr. Boorstin's opinion is contradicted by that of Dr. Wen-Hsien Wu, the Director of the Pain Management Center at the Schools of Dentistry and Medicine of New Jersey, the New Jersey Medical School, who testified by deposition for the Respondent. Dr. Wu claims he has prescribed medications in amounts and dosages far in excess of those prescribed by Respondent and for a much longer period of time. Wu is Board certified in anesthesiology and has published numerous articles on pain management. Dr. Wu contends there is no contraindication for the use of narcotic therapy in Patient #1's alcoholism. The use of narcotics is appropriate if the patient can return to function with careful monitoring. Here, it would appear that Patient #1 was monitored through her frequent visits to the Respondent's office. It is impossible to tell from the Respondent's patient records just how much medication he prescribed for his patient. Because of the failure to indicate the number of pills of each type Respondent was prescribing, it is impossible to form a conclusion as to whether the amount prescribed was appropriate or excessive. Notwithstanding Respondent's claim in his Proposed Findings of Fact that "...there is no indication of drug abuse in the prescribed drug area", the medical records show that on each admission of Patient #1, a diagnosis of drug addiction was made. To be sure, these records do not reflect the drug to which the addiction relates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein finding Respondent guilty of all allegations except prescribing in inappropriate amounts. It is also recommended that Respondent be ordered to pay an administrative fine of $3,500 within 90 days of the date of the Final Order herein, be reprimanded, and within one year of the date of the Final Order herein, attend continuing medical education courses at the University of South Florida Medical School in appropriate medical record keeping and in the prescribing of abusable drugs. RECOMMENDED this 12th day of June, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of June, 1995. APPENDIX TO RECOMMENDED ORDER 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. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. - 15. Accepted and incorporated herein. 16. - 19. Accepted and incorporated herein. & 21. Accepted as a representation by Respondent. Accepted as Respondent's position but not accepted as fact. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. Rejected as unproven. & 30. Accepted but repetitive of other evidence previously admitted. 31. & 32. Accepted and incorporated herein. - 38. Not appropriate Findings of Fact but merely recitations of the contents of records. Accepted and incorporated herein. - 42. Restatement of witness testimony. FOR THE RESPONDENT: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. & 7. Accepted as testimony of Respondent, but not as probative of any issue. 8. - 11. Accepted and incorporated herein 12. & 13. Accepted. 14. - 16. Accepted and incorporated herein. 17. Accepted. 18. & 19. Accepted. 20. Accepted. 21. Accepted. 22. - 24. Accepted. 25. - 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. Accepted. & 34. Accepted as opinions of the witness, but not as the ultimate fact. Accepted as to admissions but rejected as to Respondent not being advised. Accepted and incorporated herein. COPIES FURNISHED: Steven A, Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33617 Grover C. Freeman, Esquire Freeman, Hunter & Malloy 201 E. Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Respondent is a licensed medical doctor holding a license to practice medicine in the State of Florida issued by the Board of Medical Examiners, Department of Professional Regulation. The Petitioner is a governmental agency charged with enforcing the provisions of Chapter 458, Florida Statutes, and related rules which regulate the licensure standards and status pertaining to medical doctors in the State of Florida, and enforcing the practice standards for licensed medical doctors embodied in Chapter 458, Florida Statutes. Steven Jones has been employed as a detective in the Narcotics Department of the City of Miami Beach Police Department for approximately three and one-half years. He is a ten-year veteran of the law enforcement profession. In December 1982, an investigation was initiated to determine whether allegations of misprescribing scheduled controlled substances made by a confidential informant against Dr. Ramos, the Respondent, were true. On December 16, 1982, Detective Jones entered the medical offices of the Respondent and asked to see Dr. Ramos. The Respondent's receptionist asked him to fill out a patient information sheet. On this sheet or form he indicated his name was "Steven James." He was then taken to the Respondent's office and met the Respondent. He told the Respondent that he was a construction worker, had recently experienced turmoil in his domestic life, and also suffered from a lumbo-sacral sprain. The Respondent then asked him if he had back pain and, after asking him general questions about his health and whether he suffered from any major illnesses, took out his prescription pad and wrote prescriptions for three medications. Other than the general questions the doctor asked him about his health, no detailed medical history was taken from Mr. Jones and there was no physical examination performed by Dr. Ramos or anyone else, except that his weight and height were recorded. No blood pressure reading was taken. After Dr. Ramos asked Mr. Jones if he had a backache, to which Mr. Jones responded in the affirmative, Dr. Ramos stated that he would prescribe something for the backache and something for stress that caused the backache, and something to sleep at night. Although no blood pressure was taken, Dr. Ramos did ask the patient how his blood pressure was, and the patient answered that it was "fine." The doctor then prescribed 60 tablets of valium, 60 placidyl tablets and 40 darvocet tablets. The only medical history provided in writing to the doctor concerned the name, address and employment, medical insurance information and answers to questions on the form concerning allergies. Additionally, the patient noted that he had been taking "valium" or "valium." Upon receiving the prescriptions, Steven Jones paid Dr. Ramos $40 and left his office. Detective Jones again visited Dr. Ramos' office on February 2, 1983. Upon arriving at the office he was escorted into an examining room by the Respondent's assistant, who was also his wife. While Mr. Jones was seated in the examining room, an assistant placed a blood pressure tourniquet or cuff on the patient's arm, leaving it there four to five minutes, when she ultimately returned to the room and informed Steven Jones that the doctor was ready to see him. The blood pressure tourniquet or arm band was never actually inflated by the Respondent or assistant, and no blood pressure reading was ever taken on this visit. Upon going into the Respondent's office, Mr. Jones was asked by Dr. Ramos about how he was feeling and the "patient" requested stronger pain medication. The doctor refused to do this, saying in effect that the patient, Mr. Jones, would have to be admitted to a hospital before the Respondent could prescribe stronger pain medication. Again, on this office visit no social or medical history was taken, and no physical examination was conducted at all. The Respondent asked the patient if he wanted the same prescriptions he had obtained at his December visit, and the patient answered in the affirmative. There was no discussion between the patient and the Respondent or anyone else concerning the patient's condition or progress between the December visit and this February visit. There was no discussion concerning the need for future treatment. The Respondent simply, at that point, wrote the same prescriptions given at the December visit. The next visit by Detective Steven Jones, a/k/a Steven James, occurred on May 25, 1983, at the Respondent's medical offices. The same medical assistant recognized Jones immediately when he came into the office and asked him if he was there for the same reason, to which he replied in the affirmative. He was then escorted straight to Dr. Ramos' office, who asked him if he wanted the same medication again, to which he assented. There was no discussion at all about his condition and how it may have progressed since the February visit, nor was there any discussions about future prospects for treatment, what treatment if any, was being considered or what it was designed to accomplish. The Respondent simply wrote three prescriptions once again, for valium, placidyl and darvocet, Schedule IV controlled substances. Except for the first visit, there was never any discussion of back pain nor any discussion concerning symptoms of insomnia and nervousness in this patient. Onelia Padron testified for Respondent. She has known the Respondent for many years and has worked for him as a technician for approximately a year. She was working in his office in December 1982, as an x-ray technician and in the performance of blood tests, blood pressure readings and physical therapy. She remembered Detective Jones coming to the office in December 1982, and testified that she did not take a blood pressure reading at the December visit, but did so at the February visit. Her specific memory of taking the blood pressure reading in February was not clear, however. She remembers specifically that his blood pressure was normal at the February visit and testified that she was sure that Dr. Ramos wrote down the blood pressure of the patient in his medical chart for the February visit. The patient medical record of Detective Jones a/k/a James, however, does not reveal that a blood pressure reading was taken at the February visit. Although the witness claims to have taken a blood pressure reading on the patient on his February 1983 visit, the testimony of Detective Jones reveals that no blood pressure reading was taken; although the blood pressure cuff or tourniquet was applied to his arm, it was simply not used. This may account in part for Ms. Padron's mistaken memory of actually taking the blood pressure reading. Her memory may be less than accurate due to passage of time. The testimony of Detective Jones to the effect that no blood pressure reading was taken, when considered with the Respondent's own medical records which do not reveal a blood pressure reading being taken, renders the finding inescapable that no blood pressure reading was taken at the February, 1983 visit and that Ms. Padron, after the passage of over a year, has a less- than-specific, inaccurate memory about the occasion and thus her testimony with regard to this visit is not credible. Rita Ramos, the Respondent's wife, acts as the office receptionist who makes and maintains the medical records for the Respondent. She performs no medical duties, however, she is well acquainted with her husband's handwriting and, of course, her own handwriting, and established that the word "valium" on Petitioner's Exhibit 2 and the word "valium" on Petitioner's Exhibit 6 were not written by her or her husband. She maintains that she specifically remembers the patient (Detective Jones) coming to visit Dr. Ramos on December 16, 1982, and she specifically remembers the doctor conducting a full physical examination and writing at least four lines of notes in the patient's record. She did not take a blood pressure on this patient in either December or February, however, and could not give an adequate explanation of how she could perform all her administrative record-keeping and maintenance duties and still have time to continually watch through the open door of her husband's office to see the physicals performed on approximately 20 patients a day, including Jones, and especially then to be able to remember the details of that one specific patient's visit in December 1982, over a year prior to the hearing. Although this witness supposedly remembered the doctor "always" conducting physical examinations on the first visit by a patient, and specifically conducting a head, eyes and ears examination on the first visit of Detective Jones, given the inherent interest of the patient in this case, the fact that her memory must be suspect regarding a specific patient's visit on a specific date more than a year prior to the hearing, and her own testimony that no irregularity or memorable occurrence happened during the visit of that patient to stimulate her recall, her memory of that event must be deemed less than accurate and therefore her testimony concerning the physical examination cannot be found credible by this Hearing Officer. Dr. Ramos testified on his own behalf. He stated that his standard practice is to interview and examine each patient and that he was especially suspicious of the subject patient who came in wearing earrings and boots. He interpreted his abbreviated notes on the patient's chart to reveal that the patient was 5'8" tall and weighed 145 pounds, had a blood pressure of 120 over 80 and a pulse of 80, and a normal sinus rhythm with no heart murmur and no abnormal respiratory signs. The doctor additionally interpreted his handwritten notes containing his own abbreviations, to reveal that the patient's eyes were normal, neck supple, with normal ears, nose, throat and a fair complexion. Although the patient asked for a stronger medication on at least one of the visits, including quaaludes, the doctor refused, informing the patient that he could not legally prescribe such for him in Florida. The doctor also testified that he remembered that on the second visit in February 1983, Ms. Padron took the blood pressure of the patient. He contends that he did not record the blood pressure reading because it was the same as the first time, that is, the December 1982 visit. No blood pressure was taken or recorded at the December 1982 visit, however, and none is revealed in the doctor's record for that visit. Although the doctor testified that on the February visit he believed that the patient might be trying to trick him and might be an undercover law enforcement officer, he still prescribed the same controlled substance prescribed earlier, with no additional physical examination made nor physical findings recorded in the patient records. He repeated the same instructions as to use of those drugs and the reasons for taking those drugs, but did not record any physical findings related to that visit. By his own admission, he did not ask the patient what had occurred in his medical history between December and February and did not ask questions concerning the success of his previously prescribed course of treatment. If indeed, the Respondent believed that the patient could be an undercover law enforcement officer and thus attempting to trick the doctor into misprescribing drugs for him, one might think that the doctor would take pains to make a thorough physical examination and to thoroughly record his findings and conclusions in the medical records he maintained, instead of failing to document his physical findings and conclusions and continuing to prescribe those drugs over a period of months. Thus, the testimony of Dr. Ramos is not supportive of a finding that a thorough physical examination, including the taking of blood pressure readings at each patient visit and, (in view of the low back pain complaint) straight leg raise tests, tests for impairment of sensation in extremities and other parameter checks, was actually conducted on the patient. Dr. John Handwerker, M.D., testified as an expert witness for the Petitioner. He has served as first chairman of the Department of Family Practice at the University of Florida Family and Community Medicine programs. He is Chairman of the Family Practice Department of Mercy Hospital in Miami, and is assistant professor of pharmacology at the University of Miami. He is knowledgeable regarding generally prevailing and accepted standards of family practice in Dade County and was accepted, without challenge, as an expert in the field of family practice. The drug Darvocet and Darvocet N-100 is a Schedule IV controlled substance, according to the schedule established in Chapter 893, Florida Statutes. Darvocet is characterized by some habituating influence, together with some problems with withdrawal. Its use is contraindicated with tranquilizers, such as valium, which was also prescribed in conjunction with it by Respondent for the patient involved herein. Valium, which is known generically as diazepam, is also a Schedule IV controlled substance and is a sedative or anti-anxiety drug with a wide variety of potentially adverse drug interactions, including darvocet. It can be mildly addictive, has a depressant effect on the central nervous system and is also a muscle relaxant. Placidyl is a short-term drug used in sleep disorders. It is only indicated for use for a maximum of seven days. It is classed as an oral hypnotic, and is a Schedule IV controlled substance pursuant to Chapter 893, Florida Statutes. Prior to prescribing any of these drugs, a physician should take a full history from a patient, and perform a thorough physical examination. The history should include the patient's chief complaint with questions from the physician to the patient involving areas of past problems with the nervous system, ears, eyes, lungs, chest, respiratory system, GI tract, and urinary tract. The physical examination should involve all body systems, including blood pressure, examination of the head, neck and chest and back regions. Further, if the patient requests these or other drugs specifically, a check should then be made for "track marks" and other evidence of prior drug abuse or usage. If the patient complains of low back pain, there should be a physical examination specifically involving the low back area before prescribing the scheduled controlled substances at issue. The past history is important to determine the duration of the problem, any previous medical treatment, examinations or tests by other physicians regarding the lumbosacral or low back area. A physical examination should be performed designed to elicit indications of neurological involvement, including straight leg raise tests, impairment of sensation tests in the extremities and other neurological inquiries. Such a full history and a physical examination is necessary prior to initiating a course of treatment involving treatment of chronic pain due to the existence of a wide assortment of other treatment modalities which might treat the root of the problem, rather than merely the pain symptoms. Dr. Handwerker, upon being questioned concerning the December 1982 visit of Detective Jones to the Respondent's office, posing as a 29-year-old construction worker complaining of lower back pain and insomnia, established that if a doctor performed no physical examination of such a patient, or only a cursory one, and took a history which in essence elicited only the complaint of injury (aside from the non-medical personal background information) that it would amount to inappropriate prescribing of the subject drugs if the patient was given these drugs in the manner prescribed to Detective Jones. The Respondent simply made insufficient findings upon which to base the decision to prescribe those drugs. Such prescribing without an adequate physical examination or the obtaining of detailed patient medical history would constitute a failure to conform to the level of care, skill and treatment recognized by reasonably prudent similar physicians under these conditions and circumstances. The continued prescribing of these drugs at the February and May visits of this patient, without any discussion or consideration of the effect the previous course of treatment had had on the patient, other than a simple question by the Respondent concerning how the patient was feeling, also constitutes inappropriate prescribing of scheduled controlled substances and demonstrates a failure to conform to the generally accepted and prevailing standards of medical practice in the Dade County community. It was similarly established that the medical records failed to justify the course of treatment afforded this patient. Especially regarding the lack of a physical examination at each visit, and the failure to elicit any further medical history on the latter two visits. Even if a full physical examination and history was conducted on the first visit in December 1982, which was not the case, there would still be required an interim update and recording of physical findings related to the patient's experience since the December visit. Notes should have been made in the patient records regarding how the medications were affecting the patient and his pain problem, including notes reflecting that a physical examination had been performed, involving all vital signs, which was not the case with this patient. Not only does the generally accepted and prevailing standard of medical practice in Dade County require that an initial, thorough physical examination including the blood pressure and pulse and the eliciting of a detailed medical history be performed, as well as update physical examinations at later visits to check the progress of the patient under the treatment program; the failure to note the findings in the patient records constitutes a failure to conform to generally accepted and prevailing standards of medical practice for the Dade County community. Dr. Alfred March testified as an expert witness for Respondent, but agreed that the same detailed medical history and examination described by Dr. Handwerker is required before the practitioner should prescribe scheduled controlled substances in the same manner as done by the Respondent. Dr. March was unable to ascertain from simply reviewing the medical records of the Respondent, the reason or justification for the prescribing of any of the drugs on the three dates in question, and established that the medical records of the doctor should always justify the course of treatment for a patient. Indeed, Dr. March established that if a patient came in complaining of a backache, then such would be inappropriate prescribing without the performance of x-rays of the affected area and a full neurological examination, neither of which was performed by the Respondent in this case. Dr. Ramos has never been subjected to disciplinary proceedings in the past, and his past professional record reveals that his medical practice has been characterized by sincere concern for his patients and the highest respect of his colleagues. The subject drugs involved are Schedule IV controlled substances, which are of the class of drugs characterized by the least serious ramifications for patients, if misused. It is to the doctor's credit that when the undercover detective, Mr. Jones, attempted to persuade him to prescribe more powerful medication such as quaaludes, the doctor vigorously protested such a course of treatment and refused to do so, citing his belief that indeed it was illegal to do so in Florida.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor
The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of medicine in Florida. At all times material to this case, the Respondent has been a physician in the state, holding Florida license number ME 0044838. The Respondent's last address of record is 11216 North Dale Mabry, Tampa, Florida, 33168 The Respondent has practiced in Florida since 1984 in Internal Medicine. At all times material to this case, Patient number 1 was a 72 year old male. In early December of 1988 the Respondent performed a physical examination of Patient number 1 on behalf of the American Weight Clinic weight loss program. The records of that examination were forwarded to the clinic. Because the Respondent was not the patient's physician, he did not retain a copy of the exam report. Patient number 1 returned to the Respondent on December 28, 1988 and became his patient. Between December 1988 and May 1989, Patient number 1 was examined and/or treated by the Respondent on approximately ten visits. The Respondent became familiar with Patient number 1 over the course of the six months. Patient number 1 was obese, diabetic, and suffered from chronic obstructive pulmonary disease (COPD), glaucoma and heart disease. COPD can not be cured. Patients with COPD generally deteriorate over time. Treatment of COPD may include medications to open bronchial tubes, but most treatment results in minimal improvement. The overall treatment rendered to the patient by the Respondent included weight loss and "maintenance" of the COPD. The Respondent's treatment of the COPD can essentially be described as the "fine tuning" of medications. Although not codified during the time period relevant to this proceeding, effective professional standards required that physicians make contemporaneous medical records to justify the course of treatment provided to patients. Medical records protect both the patient and the physician. Such records provide an historical record of a patient's physical condition, diagnosis and treatment, and are valuable both to the recording physician and to any subsequent physician who provides treatment to the patient. The Respondent was aware of the purpose of keeping medical records. During the time period relevant to this case, the Respondent's receptionist would greet each patient who entered the Respondent's office. Thereafter, a nurse would guide the patient to an examining room, check the patient's "vital signs" and record the main presenting complaint. After the nurse entered the information on the chart, the Respondent would talk with and examine the patient. Also during this time, the Respondent began utilizing a dictation system to record the results of physical examinations. The Respondent continued to hand write diagnosis and medication information but relied on the dictation for recordation of physical exam findings. The office employee responsible for transcribing the dictation performed inadequately. Examination results were apparently not being entered into the medical records. The Respondent also had problems during this time with the employee responsible for management of his office. The family of Patient number 1, apparently unhappy with the medical care being provided to the patient by the Respondent, began utilizing the services of another physician. The family sought to obtain the patient's medical records from the Respondent. Eventually, Patient number 1's son obtained a copy of his father's records in approximately August of 1989, after making repeated requests to obtain the records. Although the Respondent asserts that he did not review records for completeness until or unless a copy of the record was requested, the records provided to Patient number 1's son in August, 1989 were apparently not reviewed for completeness by the Respondent. The Respondent asserts that he was not made aware by his office manager that such records had been requested. The medical records released to the son in August 1989 fail to document the patient's physical condition for three specific office visits. The record of Patient number 1's office visit on December 28, 1988 sets forth the nurse's documentation of vital signs and medication records. The record does not include a description of physical examination findings made contemporaneously at the time of the examination. Based on the lack of physical examination information, the Respondent's medical record related to and made contemporaneously with Patient number 1's office visit on December 28, 1988 does not justify the course of treatment of the patient as identified in the record. The record of Patient number 1's office visit on February 21, 1989 does not include a description of physical examination findings made contemporaneously at the time of the examination. Based on the lack of physical examination information, the Respondent's medical record related to and made contemporaneously with Patient number 1's office visit on February 21, 1989 does not justify the course of treatment of the patient as identified in the record. The record of Patient number 1's office visit on April 18, 1989 does not include a description of physical examination findings made contemporaneously at the time of the examination. Based on the lack of physical examination information, the Respondent's medical record related to and made contemporaneously with Patient number 1's office visit on April 18, 1989 does not justify the course of treatment of the patient as identified in the record. The Respondent asserted that he dictated the physical examination reports of the patient conducted on December 28, 1988, February 21, 1989 and April 18, 1989. There is no credible evidence to the contrary. After the records were provided to the Patient number 1's son in August, 1989, the Respondent became aware that examination information for December 28, 1988, February 21, 1989 and April 18, 1989 was missing from the medical records. Based on his mental recollection of the Respondent and a review of the existing record, he added physical examination findings to the medical records of Patient number 1 for exams conducted on December 28, 1988, February 21, 1989 and April 18, 1989. Standard practice among physicians is to initial and date any additions or changes made to a patient's medical records. The additions made by the Respondent to Patient number 1's medical records are not initialed or dated. There is no notation made on the records which would indicate that the information was not recorded contemporaneously at the time of the examination. The Respondent testified that at the time of the additions, he had sufficient recollection of Patient number 1 to permit the addition of information related to specific office visits to the medical records. The testimony was not persuasive. The evidence fails to establish that the Respondent's recollections of the patient are of such sufficient reliability to establish that the subsequent additions to the medical records were reliable. At some point in the treatment of the patient, he presented to the Respondent with complaints of hemoptysis. The number of such complaints is indeterminable. Testimony by the patient's family directed to the number of visits and quantities of expelled blood being brought to the office lack sufficient precision to be credible. It appears, based on the medical records, that hemoptysis was reported as early as January, 1989. In any event, the evidence fails to establish that incidents of hemoptysis were reported to and not recorded by the Respondent. There is no credible evidence that the Respondent sought to conceal the fact that information was added to the medical records of Patient number 1. The Respondent's primary medical practice involves a substantial level of managed care. According to the Respondent, the effect of a reprimand or probation will be termination of managed care contracts. The Respondent has not been previously disciplined. The Respondent currently hand writes all medical records because he is not convinced of the reliability of dictation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a Final Order determining that Alexander Sonkin, M. D., has violated Sections 458.331(1)(m), Florida Statutes, and imposing a fine of $1,000. It is also recommended that the Respondent be required to complete such course of education related to appropriate methods of patient care documentation as the Board deems acceptable. DONE and RECOMMENDED this 29th day of November, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 95-2535 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, irrelevant. 5-7. Rejected, the dates of reported hemoptysis are not supported by clear and convincing evidence. Respondent The Respondent's proposed findings of fact, set forth at pages 16-22 of the proposed recommended order are accepted as modified and incorporated in the Recommended Order except as follows: 1. Rejected, incorrect license number cited. 4. Rejected, subordinate. 16-18. Rejected, not supported by credible and persuasive evidence. Rejected, subordinate. Rejected, irrelevant. The Respondent is not alleged to have provided inappropriate or unreasonable medical treatment. 24-25. Rejected, cumulative. 29. Rejected, not supported by cited testimony. Dr. Stein did not state that he knew of no standard for making "after the fact" record additions. 30-31. Rejected, irrelevant. 32. Rejected, immaterial. DOAH CASE NO. 95-2535 COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hugh Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Grover C. Freeman, Esquire 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602
The Issue The issues in this case are whether Respondent, a physician, failed to adhere to the applicable level of care in prescribing controlled substances; failed to follow standards for the use of controlled substances for the treatment of pain; and failed to keep legible medical records justifying the course of a patient's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Lowell Anthony Adkins, M.D., was licensed to practice medicine in the state of Florida. Dr. Adkins is a family practitioner who has a clinical interest in pain management. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Adkins. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Adkins committed three such offenses——namely, failure to adhere to the applicable level of care in prescribing controlled substances; failure to follow standards for the use of controlled substances for the treatment of pain; and failure to keep legible medical records justifying the course of treatment——in connection with the care he provided to J.D., a young adult (early twenties) whom Dr. Adkins saw on about a half-dozen occasions between September 2007 and March 2008. The events giving rise to this dispute began on September 19, 2007, when J.D. was first seen by Dr. Adkins. J.D. presented with complaints of chronic pain in both knees, which were swollen, and a history of juvenile arthritis. Until recently before this visit, J.D. had been treated for several months by a Dr. Gelinas, who had prescribed Vicodin to alleviate the pain. J.D. told Dr. Adkins that the Vicodin had made him nauseous and failed to control his pain. He also reported that nonsteroidal anti-inflammatory drugs ("NSAIDs") caused him to have nosebleeds. Dr. Adkins took J.D.'s medical history and performed a physical examination. J.D. characterized the degree of pain he was experiencing as severe (grading it as 8 on a scale of 1 to 10 with 10 being the worst), which was an exaggeration intended to deceive the doctor (although he did in fact have some pain). As part of his ruse, which fooled Dr. Adkins, J.D. purposely faked the range of motion tests to give the impression that the condition of his knees was worse than it actually was. J.D. was not candid with Dr. Adkins in providing information about his symptoms because——unknown to Dr. Adkins at the time, who reasonably assumed that his patient's statements for purposes of medical diagnosis or treatment were reliable1——J.D. was addicted to narcotic pain medication and wanted a prescription to feed this addiction. Dr. Adkins wrote a prescription authorizing J.D. to obtain 60 tablets of Oxycodone having a dosage of 15 milligrams ("mg") apiece. Because Oxycodone is a narcotic pain reliever, Dr. Adkins required J.D. to sign a Medication Contract, which enumerated J.D.'s responsibilities regarding the proper use of the controlled substances he was being prescribed. The terms and conditions of the contract included the following: The physicians and staff of Lowell Adkins M.D.P.A. will be the ONLY physicians that will be writing for these medications and I will not seek these medications from other physicians, INCLUDING EMERGENCY ROOM PHYSICIANS. . . . I will take the medications as prescribed and not take more on a daily basis unless approved by my physician. At the initial visit on September 19, 2007, J.D. also signed a release authorizing Dr. Gelinas to provide copies of J.D.'s medical records to Dr. Adkins, which was done. Dr. Gelinas's handwritten chart is largely illegible, but it shows that J.D. carried a diagnosis of arthralgia (joint pain) based on the problems he was having with his knees. In addition, the records included the radiologist's report regarding an MRI of J.D.'s right knee, which had been examined on July 31, 2007. The MRI report gives as J.D.'s diagnosis: "History of juvenile rheumatoid arthritis since age 12. Complaints of pain, crepitus, locking, and instability." The study did not discover any significant damage or disease, except for a "tiny incipient Baker's cyst." For the next half-year, J.D. saw Dr. Adkins on a monthly basis. J.D. continued to complain of chronic pain and repeatedly reported that the pain medication Dr. Adkins was prescribing was not adequately controlling his pain. For much of this time, J.D. held two jobs, working full-time as a small- engine mechanic until being laid off in December 2007, and moonlighting in a sporting goods store, which became his only source of income after the loss of his regular job. These jobs required J.D. to be physically active, and Dr. Adkins periodically increased the dosage of the pain medication he was prescribing, so that J.D. could function at work. Dr. Adkins ordered X-rays of J.D.'s knees as well, but J.D. declined to get them. While under Dr. Adkins's care, J.D. suffered at least two traumatic injuries requiring treatment for acute pain. In October 2007, J.D. injured his shoulder at work and went to an urgent care center for treatment. The doctor prescribed Oxycodone to control the pain associated with this injury. J.D. told Dr. Adkins that he had hurt his shoulder but did not let Dr. Adkins know that he had obtained a prescription for Oxycodone from another physician, in violation of the Medication Contract he had entered into. On or about December 29, 2007, J.D. suffered a serious and painful injury to his finger at work. For this he went to the emergency room, accompanied by his mother who told the ER doctor that J.D. was addicted to, and abusing, narcotic pain medication. Despite the objection of J.D.'s mother, the ER doctor prescribed Oxycodone for pain. Thereafter, J.D. visited a workers' compensation physician for treatment of this same injury, and he was again prescribed Oxycodone. J.D. informed Dr. Adkins of the injury to his finger but not these prescriptions, which represented additional breaches of the Medication Contract.2 A couple of months before the trip to the ER described above, J.D.'s mother ("T.R.") had attempted to stop Dr. Adkins from prescribing Oxycodone to J.D., raising similar concerns about J.D.'s alleged drug abuse. On November 26, 2007, she had dropped by Dr. Adkins's office to report to him that J.D. was crushing and snorting his pain medication. Dr. Adkins was not immediately available, so T.R. left her business card and requested that Dr. Adkins call her, which he did later that evening. Upon hearing T.R.'s concerns, Dr. Adkins requested that she arrange to accompany J.D. on his next office visit, so that the three of them could discuss the situation together. T.R. did show up for J.D.'s next doctor's appointment, on December 14, 2007. J.D., however, had not invited her, and he became very angry when, upon arriving at Dr. Adkins's office, he found his mother already waiting there. The two argued loudly in the reception area, causing a scene. J.D. refused to allow his mother to come into the examination room with him and Dr. Adkins. Consequently, Dr. Adkins met separately with J.D. and T.R. T.R. told Dr. Adkins that J.D. was on probation as a result of drug-related charges and that he was participating in a Drug Court program, but she apparently provided no paperwork to substantiate these assertions. Dr. Adkins had not been aware that J.D. might be in trouble with the law, and he was somewhat surprised by the news because ordinarily the authorities contact him when a patient of his has been arrested for unlawful possession or use of prescription medication. T.R. further claimed that J.D. had been snorting his medication, although she had not actually seen him do so. T.R.'s concerns upset Dr. Adkins, and when he met with J.D. alone, he lectured him on the need for strict compliance with the Medication Contract. Dr. Adkins told J.D. that he would be discharged from Dr. Adkins's practice if J.D. ever snorted the medication again. Dr. Adkins ordered a urine toxicology screen and required J.D. to be tested. J.D. complied, and the drug screen was negative for illegal substances. Dr. Adkins agreed to continue treating J.D. with narcotic analgesics. When J.D. lost his full-time job in December 2007, he lost his health insurance. After that, J.D. paid out-of-pocket for his doctor's appointments. Following a visit on March 19, 2008, however, J.D. stopped seeing Dr. Adkins. In summary, Dr. Adkins prescribed Oxycodone to J.D. in the following dosages and amounts, on the dates shown below: Date Dosage Amount 09/19/07 15 mg 60 tablets 10/19/07 30 mg 90 tablets 11/16/07 30 mg 120 tablets 12/14/07 30 mg 120 tablets 01/14/08 30 mg 150 tablets 02/22/08 30 mg 150 tablets 03/19/08 30 mg 180 tablets The Department's expert witness, Marc R. Gerber, M.D., testified at hearing that the foregoing amounts and dosages of opioids, which Dr. Adkins prescribed to J.D., did not violate the standard of care. T. 165. The undersigned finds this to be true, based on Dr. Gerber's testimony. In its Amended Administrative Complaint, the Department alleged that Dr. Adkins had practiced below the requisite level of care in prescribing narcotic pain medication to J.D.——and thus violated section 458.326(3), Florida Statutes3——in one or more of the following ways: By failing to diagnose Patient J.D. with intractable pain; and/or By failing to refer Patient J.D. to a Psychiatric-addiction specialist, especially after he was informed by Patient's mother that he was, allegedly, an addict; and/or By failing to refer Patient J.D. to an orthopedic specialist to have the pain in his knee evaluated; and/or By prescribing excessive narcotics for Patient J.D.'s alleged pain condition prior to exploring the effectiveness of other NSAIDs; and/or By failing to refer Patient J.D. to a rheumatoid arthritis specialist and/or by failing to verify the complaints of pain from juvenile rheumatoid arthritis with blood tests. Although Dr. Gerber clearly expressed concerns about Dr. Adkins's treatment of J.D., his testimony ultimately failed to establish, unequivocally, that any of the acts or omissions enumerated above constituted an unambiguous violation of the applicable standard of care. As mentioned, Dr. Gerber specifically refuted the allegation that Dr. Adkins had prescribed "excessive narcotics," as charged in subparagraph d). He further testified that, in his opinion, Dr. Adkins had not violated section 458.326, see T. 164——a blanket statement that casts doubt on all of the standard-of-care violations that the Department has alleged. Dr. Gerber testified that he "had no problem with respect to how J.D. presented to Dr. Adkins and the treatment Dr. Adkins had rendered to J.D. through December." T. 161. This testimony, given by the Department's expert, precludes the undersigned from finding without hesitation that the acts and omissions described in subparagraphs a), c), and e) above violated the standard of care. As for subparagraph b), Dr. Gerber stopped well short of stating that the standard of care required Dr. Adkins to refer J.D. to an addiction specialist. To the contrary, he expressed the opinion that, at the time (i.e., 2007-2008), the decision whether to make such a referral was left to the physician's discretion. T. 124, 153. The most Dr. Gerber could say on this point was that, in his view, one "hundred percent of pain specialist [sic] would . . . possibly refer out to an addiction specialist." T. 155 (emphasis added). This testimony is insufficiently convincing to establish clearly that Dr. Adkins's "failure" to refer J.D. to an addiction specialist violated the standard of care. The essence of Dr. Gerber's opinion on the standard of care was captured in the following remarks, which he made on cross-examination in the course of explaining his opinion that Dr. Adkins had not violated section 458.326: We wouldn't even be here if there wasn't the issue [that is, J.D.'s addiction] brought to his [Dr. Adkins's] attention [by T.R.] and the negative urine screen. [T]here are not major issues early on and I never said that there were. I had concerns but this whole case and the whole issue, standard of care, revolves around what was not done when significant issues [relating to J.D.'s addiction] were made available. That's really what I feel comfortable giving my opinion on is what happened after November." T. 163. Dr. Gerber then identified three steps that, in his opinion, Dr. Adkins should have taken "after November" to satisfy the standard of care: (1) order a urine toxicology test; (2) talk with the patient and his mother; and (3) "possibly change the medication regimen." T. 167-68. Although the Department did not allege that Dr. Adkins had violated the standard of care by failing to take any of these measures, the evidence shows that Dr. Adkins did, in fact, perform the first two. The third is plainly too indefinite on its face to qualify as a standard of care. The Department's other expert, James F. Schaus, M.D., who testified via videotaped deposition, was, like Dr. Gerber, unable to unambiguously declare that Dr. Adkins's treatment of J.D. had fallen below the applicable standard of care. On this subject he hedged: I found some problems in the case that could or could not be deviations from the standard of care, but it certainly raised some concerns on my part. . . . * * * Standard of care is to me a black and white, you know, question, and there's many shades of gray, like any case. And in this case, there are shades of gray when it comes to standard of care. As I said earlier, I found a few things that could be potential deficiencies in his care that may or may not come to the level of a deviation of the standard of care. And I'm not prepared to say definitively that he did deviate from the standard of care. But I do identify those concerns, those various concerns. J.F.S. 11, 13 (emphasis added). Dr. Schaus's testimony is insufficient to support a finding, based on clear and convincing evidence, that Dr. Adkins's treatment of J.D. fell below the applicable level of care, skill, and treatment. The remaining charges against Dr. Adkins are based on alleged deficiencies in the medical record of J.D.'s treatment. In Count Two of the Amended Administrative Complaint, the Department has charged Dr. Adkins with violating, in one or more of the following ways, the administrative rule which sets forth standards for prescribing narcotic pain medications: By prescribing controlled substances for pain control, to wit: oxycodone and carisprodol, to Patient J.D. without documenting the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and any history of substance abuse; and/or By prescribing controlled substances for pain control, to wit: oxycodone and carisprodol, to Patient J.D. without documenting one or more recognized medical indications for the use of a controlled substance. As will be discussed below, the provisions of the rule that articulated standards for documenting a pain-management patient's evaluation, which are the provisions that Dr. Adkins is alleged to have violated, were aspirational rather than prescriptive at the time of the alleged violations, enumerating matters that a physician should include in the medical record as opposed to mandating what must be done. Nevertheless, even though the chart that Dr. Adkins prepared contemporaneously was written in his own hand and is difficult to decipher, the undersigned finds upon review of the medical record that Dr. Adkins substantially followed the rule's guidelines. To be sure, Dr. Adkins's handwriting is hard to read. This, coupled with Dr. Adkins's use of abbreviations and other types of informal shorthand when making his notes, prevents the undersigned from forming a full understanding of everything in the medical record. The undersigned can make out enough words, however, to appreciate that Dr. Adkins documented the nature of J.D.'s pain, current and past treatment for pain, and various diseases or conditions that had caused, or were causing, pain, e.g., swollen knees, a rotator cuff injury, and the avulsion of J.D.'s finger. The Department has failed to prove, with clear and convincing evidence, that Dr. Adkins's documentation of his evaluation of J.D. fell short of the guidelines. In Count Three of the Amended Administrative Complaint, the Department has alleged that Dr. Adkins violated the statute governing medical recordkeeping in one or more of the following ways: By failing to keep legible medical records documenting the reasons for prescribing oxycodone and carisprodal for Patient J.D.; and/or By failing to keep medical records which legibly recorded the patient history, examination results, test results, and drugs prescribed for Patient J.D.; and/or By failing to keep medical records which justify the course of treatment for Patient J.D. Having reviewed the medical record, the undersigned finds the evidence insufficient to prove, clearly and convincingly, that Dr. Adkins failed to justify the course of treatment for Patient J.D. The chart is barely legible, however, and in this regard Dr. Adkins has committed a disciplinable offense; the chart itself is clear and convincing proof of guilt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Adkins not guilty of the charges set forth in the Counts One and Two of the Amended Administrative Complaint; finding Dr. Adkins guilty of the charge set forth in Count Three, namely failing to keep legible medical records, an offense defined in section 458.331(1)(m); and imposing the following penalties: reprimand, administrative fine in the amount of $1,000, and obligation to complete the Medical Records course. DONE AND ENTERED this 26th day of October, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 26th day of October, 2011.
The Issue An administrative complaint dated June 20, 1997, alleges that Respondent, Dr. Jeri-Lin Furlow Burton, committed various violations of Chapter 458, Florida Statutes, the Medical Practice Act. The issues in this proceeding are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact Respondent Dr. Burton is and has been at all material times a licensed medical physician in the State of Florida, having been issued license number ME: 0042559. Dr. Burton is a general practitioner and has been a physician for 21 years. At all relevant times she was practicing in Melbourne, Brevard County, Florida. The Department of Health (agency) is the state agency now charged with regulating the practice of medicine in Florida. Patient J.M. In 1996 J.M. lived in Melbourne, Florida, in an apartment complex frequented by Dr. Burton. Dr. Burton's former husband and a friend, L.V., both lived at the complex and she visited, provided some medical care to them, and sometimes brought them groceries. J.M. knew Dr. Burton was a physician. On February 15, 1996, J.M. awakened feeling awful. At the urging of her boyfriend, J.T., and accompanied by J.T., J.M. visited Dr. Burton at her office. According to Dr. Burton's treatment sheet notes, J.M. presented with complaints of a sore throat and migraine headaches associated with nausea and vomiting. Dr. Burton performed a brief physical examination, but not a neurological examination. J.M.'s temperature and blood pressure are documented, but not her pulse, weight, or respiration. Dr. Burton recorded that J.M. had a history of migraine headaches for years and was sometimes sick in bed for days. Dr. Burton performed a streptococcus screen, which was negative. For a first visit there should have been a more complete history in the records of this patient. Moreover, any complaint of serious headache, and especially a migraine headache, should have prompted Dr. Burton to perform and record a neurological examination. Dr. Burton diagnosed J.M.'s immediate problem as an upper respiratory infection with pharyngitis. Dr. Burton prescribed Inderal to prevent migraine headaches and Bactrim D.S., an antibiotic. Dr. Burton also gave J.M. some samples of Imitrex, which relieves migraine headaches. These prescriptions were appropriate and were justified by the medical record of the February 15, 1996, visit. There were subsequent prescriptions, however, that were not justified by Dr. Burton's medical notes for her patient, J.M. On March 12, 1996, Dr. Burton prescribed 30 Percocet for J.M.'s headache. The office note merely recites the date and the complaint that the headache was not getting relief from the Imitrex which usually produced good results. The next office note is dated March 21, 1996, and states only that patient needs refill of medications for headaches. "Again 'sick' headaches in bed. Written RX Percocet(30)." (Petitioner's Exhibit No. 7) On April 19, 1996, Dr. Burton again prescribed a refill of 30 Percocet for J.M. The office note merely reflects this fact. On May 10, 1996, Dr. Burton noted that she gave J.M. samples of Imitrex, 25 milligrams, No. 9. On none of the occasions noted after the initial visit in February 1996 was any examination described. Dr. Burton explained at the hearing that these were occasions when she saw J.M. at the apartment complex, generally in the evenings. Imitrex is a non-narcotic medication that works on progestagen. It is effective in approximately 90 percent of cases. When J.M. complained that it did not work, Dr. Burton did not pursue that complaint further with a neurological examination and detailed history; instead she simply prescribed Percocet, an inappropriate narcotic. (Roxicet, reflected in the pharmacy records for J.M., is a generic substitute for Percocet.) Inexplicably on the final occasion noted in J.M.'s chart, Dr. Burton switched back to Imitrex. The records by Dr. Burton are thoroughly void of any explanation for her course of treatment of J.M.'s headaches. Patient D.W. According to Dr. Burton, D.W., born March 5, 1953, was a long-standing patient, having first seen Dr. Burton in 1990 when Dr. Burton was employed by a walk-in clinic. The records of those visits are not part of the record in this case. The walk- in clinic has closed. The documented chronology of Dr. Burton's treatment of D.W. commences with D.W.'s visit to Dr. Burton's new private practice office in October 1995. D.W. presented to Dr. Burton's office on October 17, 1995, with complaints of Crohn's Disease (an autoimmune disease that affects the intestinal tract and causes severe abdominal pain, inflammation, bleeding, and in some instances infection and perforation of the intestinal tract), headache, and weight loss. There is no documentation of physical examination or an objective finding other than D.W. was in no acute distress (NAD). Dr. Burton prescribed three vials of Stadol NS (nasal spray) with two refills and one hundred tablets of Fioricet. On November 1, 1995, Dr. Turse, a gastroenterologist, evaluated D.W. Dr. Turse reviewed prior records from a Dr. Klein, which dated back to April 1995, revealing an extensive work-up including a normal upper gastro-intestinal endoscopy, bisopsies that were negative, an unremarkable colonoscopy, a normal abdominal and pelvic ultrasound, and a negative sigmoidoscopy. Dr. Turse noted that Dr. Klein suspected that the patient's problem might be psychogenic. Dr. Turse performed two studies, an endoscopy study, and a gastric emptying study. In a report dated November 16, 1995, Dr. Turse indicated that the EGD with mucosal biopsy revealed minimal findings and that he wanted to rule out gastroparesis/gastric motility disorder. Dr. Turse followed up with a gastric emptying study, which was normal. These studies allowed Dr. Turse to rule out Crohn's disease and gastroparesis in this patient. In a letter dated December 4, 1995, Dr. Turse advised Dr. Burton that the EGD was unremarkable and the gastric emptying study was normal, and despite an extensive work-up, there was no explanation for patient D.W.'s chronic recurrent vomiting. This doctor then indicated that his main impression was gastric motility disorder. On November 6, 1995, D.W. presented to Dr. Burton complaining of headaches. The medical records do not reflect a physical examination or that any lab studies were performed. Dr. Burton's "diagnoses" were a headache, Crohn's Disease, and nausea and vomiting. She prescribed Stadol NS No. 20 (twenty), Lortab 7.5 No. 100 (one hundred) and Fioricet No. 500 (five hundred). From December 5, 1995, through December 19, 1996, D.W. presented to Dr. Burton's office multiple times with various complaints of headache, diarrhea, nausea, and vomiting. Dr. Burton continued to diagnose gastroparesis and Crohn's disease without additional testing or consultation. At this time, it is clear that Dr. Burton had Dr. Turse's letter of December 4, 1995. While it was not inappropriate for her to continue with the diagnosis of Crohn's disease or gastroparesis, a general practitioner receiving a patient with Crohn's disease or gastroparesis would perform a physical examination with a minimum of a rectal exam. A stool test should also have been done to determine if the patient was experiencing blood, parasites, or infection in the intestines. These tests were not done. On December 27, 1995, D.W. presented to Dr. Burton with complaints of a headache. She was tearful, upset, and plucking her hair. Dr. Burton diagnosed Obsessive-Compulsive Disorder and prescribed one hundred tablets of Anafranil 5mg, and Buprenex. On March 8, 1996, D.W. presented to Dr. Burton with gastrointestinal complaints. She reported a history of two episodes of anorexia and Dr. Burton's diagnosis reflects "r/o (rule out) anorexia." On July 12, 1996, Dr. Burton prescribed Wellbutrin to D.W. She had already prescribed Prozac to D.W. on June 27, 1996. Documentation of numerous office visits from October 17, 1995, through December 19, 1996, for D.W. do not contain a complete history and physical examination, or physical findings and assessment. Several of the records, such as the July 12, 1996, record, contain no physical findings whatsoever; others contain merely a temperature reading. Dr. Burton continued to indicate Crohn's disease and gastroparesis as the working diagnoses. She continued to prescribe narcotics like Lortab in high doses for this patient and Donnatrol, Lomotil, and Bentyl, all of which will slow down the motility of the digestive tract. D.W. had a motility problem with her digestive tract. To prescribe medications that slow down the digestive tract further is contra-indicated and can make the patient subject to a perforation of the colon or a systemic infection called septicemia which can be life-threatening. Dr. Burton prescribed significant amounts of Lortab and Fioricet, which contain acetaminophen. Large doses of acetaminophen can be toxic to the liver. She did not perform any liver tests on D.W. Dr. Burton prescribed Xanax, a tranqulizer and Wellbutrin, an anti-depressant, to D.W. in a short period of time. It is not appropriate to prescribe a tranquilizer with an antidepressant in a depressed patient. Dr. Burton also prescribed Prozac and Wellbutrin in the same month. Wellbutrin and Prozac can lower the seizure threshold in people and the former can increase the effect of the latter. It is inappropriate to prescribe these drugs together so close in time. Dr. Burton failed to practice medicine within the acceptable level of care in that she failed to perform an adequate or complete history, physical examination, and assessment of D.W. related to multiple complaints. Dr. Burton failed to perform a rectal exam or a stool test; in addition, she failed to perform a liver test. She also fell below the acceptable standard of care by prescribing medications that slow down the digestive tract and are contra-indicated for a patient with either Crohn's disease or gastric motility disorder. She fell below the standard of care by prescribing Stadol, a narcotic antagonist, with the amount of narcotics prescribed for this patient. Dr. Burton failed to keep written records justifying the course of treatment in that she failed to document a detailed history, physical examination, assessment of physical findings, and plan of treatment for D.W. She consistently prescribed controlled substances for Patient D.W. without performing a complete physical assessment to determine need and she prescribed medications that had the potential to exacerbate some of D.W.'s previous known conditions. Patient C.W. C.W., born March 9, 1955, was D.W.'s husband and also a long-term patient of Dr. Burton. The records of his visit commence with his visit to Dr. Burton's office on October 26, 1995, with complaints of backache and headaches. Dr. Burton's records note a history of three back surgeries, one with insertion of Harrington rods (rods surgically placed along the spine to correct curvature) and recent epidural block. Dr. Burton's office records of C.W. do not contain reports of the surgeries, CTs, or Magnetic Resonance Imaging. There is no documentation of a physical examination or findings other than blood pressure. Dr. Burton diagnosed C.W. with headache, back pain, and depression and prescribed multiple medications including but not limited to: two hundred tablets of Lortab 7.5mg, one hundred tablets of Zoloft, one hundred tablets of Xanax 2mg, six units of Stadol NS, fifty tablets of Imitrex 50mg, ten units of injectable Imitrex, and 100 M.S. Contin 30mg, a narcotic. Prior to his visit with Respondent, C.W. was treated by a Dr. Weiss from December 3, 1992, through October 1995. Dr. Weiss' records, the majority of which were not obtained by Dr. Burton until shortly before the final hearing in this case, did substantiate the prior back surgeries and problems. Dr. Weiss also prescribed Lortab, a narcotic analgesic, for this patient. However, Dr. Weiss indicated in his reports that he either dropped the dosage on the Lortabs or he cancelled the prescriptions completely. As an example, in his report of August 31, 1993, it is noted that patient tried again for Lortab No. 60 but Dr. Weiss said it was too soon. Contained in Dr. Weiss' reports is a report from Dr. Hynes. Dr. Hynes treated C.W. on June 28, 1994, and commented that Patient C.W. was on Lortabs for three years and that the patient recognized that there probably was an addiction problem. This doctor strongly recommended an inpatient pain program. Dr. Burton did not have this record from Dr. Hynes or Dr. Weiss' records, other than a note giving C.W. a disability rating, when Dr. Burton treated him. A reasonably prudent physician would not prescribe the amount of narcotics that Dr. Burton has done in this case without documentation establishing the patient's history. During the period of about October 26, 1995, through December 9, 1996, C.W. presented to Dr. Burton on approximately sixteen occasions with complaints of back pain. Dr. Burton diagnosed chronic back pain and "failed back syndrome" and continued to prescribed Lortabs and other narcotics during this time period. There is no documentation of referral for orthopedic or neurological consultation, and inadequate documentation of physical assessment or clinical evaluation for treatment. There is no documentation concerning a referral to a pain management program. In her note of November 6, 1995, Dr. Burton indicated that C.W. took five tablets of MS Contin at once with no relief. Dr. Burton had indicated in her October 26, 1995, report, less than 2 weeks earlier, that she had warned the patient to take only one a day. Based on this history, C.W. was non-compliant with medication and Dr. Burton should have realized there may be a problem. On April 1, 1996, C.W. presented to Dr. Burton with complaints of weight loss and increased sleeping. Respondent prescribed several medications including Wellbutrin. From October 26, 1995, through December 9, 1996, C.W. received the following medications, among others, prescribed by Dr. Burton in the following approximate amounts: Lortab 7.5 1100 tablets Lortab 10 500 tablets Xanax 2mg 30 tablets Ritalin 20mg 10 tablets Imitrex 50mg 100 tablets Fioricet 900 tablets Duragesic 100mg 5 patches Methadone 10mg 40 Despiramine 25mg 30 Stadol NS 60 Vials Dr. Burton failed to practice medicine within the acceptable level of care in that she failed to perform an adequate or complete history, physical examination, and assessment of C.W. related to complaints of chronic back pain. Dr. Burton failed to practice medicine within the acceptable level of care when she failed to refer C.W. for neurological consultation and physical or pain management therapy of any kind. She failed to practice medicine within the acceptable standard of care for C.W. by consistently prescribing controlled substances in excessive quantities that are addictive without documenting the risks and by not attempting to decrease the dosage or detoxify the patient. Dr. Burton failed to maintain medical records documenting a detailed history, complete physical examinations, and assessments of physical findings of C.W. She failed to obtain records of prior surgeries or diagnostic evaluations to supplement C.W.'s record. Dr. Burton's medical records do not justify the course and scope of treatment of this patient. Weighing the Evidence The testimony of Drs. Rafool and Stein on behalf of the agency was competent and credible. Both reviewed all of the medical records provided by Dr. Burton to the agency and pharmacy records obtained independently by the agency. They also received some law enforcement records which have been excluded from this proceeding as hearsay. Both experts relied appropriately and substantially on Dr. Burton's medical records, or lack thereof, in rendering their opinions of her violations. Both experts explained their conclusions with specific examples and discussions of various office visits of the patients at issue. It is difficult to assess the credibility of Dr. Burton's expert witness, Dr. Centrone, a neurosurgeon. Like the other experts, he reviewed Dr. Burton's records, but he also reviewed detailed statements provided to him by Dr. Burton, which were prepared in the course of this proceeding and not contemporaneously with the office notes. Dr. Centrone, without detailing any basis, concluded that Dr. Burton properly treated the patients at issue. The testimony of J.M. regarding finding prescription bottles, in her name and provided by Dr. Burton, among the abandoned possessions of her former live-in boyfriend was unspecific and confusing and an inadequate basis for finding that Dr. Burton illegally provided drugs to the boyfriend, J.T., through prescriptions written to J.M. Likewise, J.M. never plainly contradicted Dr. Burton's explanation of her encounters with J.M. subsequent to the one office visit in February 1996. J.M. insists that she never returned to Dr. Burton's office, but Dr. Burton's notes do not state that she did return. Instead, as Dr. Burton explained, the notes reflect more casual encounters at the apartment complex and Dr. Burton's prescriptions for continued migraine complaints. Although the agency failed to prove alleged fraud by Dr. Burton, it did prove that Dr. Burton failed 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. For each patient at issue Dr. Burton consistently responded with prescriptions of controlled substances in inappropriate amounts or combinations. Her testimony that the patients had intractable pain, that she often provided free medical treatment to poor or uninsured patients, and that she had many patients, "nuts", that had been "dumped by every doctor in town," is not a valid defense. Moreover, the explanations in Dr. Burton's written statements offered at hearing and in her testimony regarding her treatment do not obviate the serious deficiencies in her medical records for J.M., D.W., and C.W. Those records provide a sketchy statement of complaint, diagnosis (often no more then "headaches," "back pain," or "failed back syndrome"), and a listing of medications prescribed (sometimes as many as 6 for a single visit). Rarely is there any evidence of an examination or any written justification for prescriptions. The agency's evidence, primarily Dr. Burton's own records, clearly establishes that she failed to keep written medical records justifying the course of treatment of the patients at issue. In a Final Order dated June 10, 1995, in DOAH Case No. 93-3096, Dr. Burton was disciplined by the Board of Medicine for failure to maintain appropriate medical records. In a consent order entered in Case No. 96-02493, Dr. Burton agreed to a fine and other conditions, after she was charged with violating the Board's order in the prior case.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the Board of Medicine enter its final order finding that Respondent violated Sections 458.331(1)(m),(q), and (t), Florida Statutes (1995), and imposing discipline of a 2-year suspension, $2,000 fine and 2-year probation under appropriate conditions to be established by the Board. DONE AND ENTERED this 17th day of June, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 17th day of June, 1999. COPIES FURNISHED: John E. Terrell, Senior Attorney Office of the General Counsel Department of Health Post Office Box 14229 Tallahassee, Florida 32317-4229 George Ollinger, Esquire 100 Rialto Place, Suite 700 Melbourne, Florida 32940 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A023 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Department of Health, Division of Medical Quality Assurance, Board of Medicine (Department), is a state agency charged with the duty and responsibility for regulating the practice of medicine pursuant to Section 20.43 and Chapters 455 and 458, Florida Statutes. Respondent, Lazaro Guerra, is, and was at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0029249. Respondent is board-certified in orthopedic medicine. From on or about November 22, 1993 through at least October, 1994, Respondent was the supervising physician for Mariano Martinez, a certified physician's assistant, who was accorded clinical privileges at Coral Gables Hospital, a health care facility located at 3100 Douglas Road, Coral Gables, Florida. On one occasion in or about August 1994, while making a routine floor inspection at the hospital, Jan Bennett, Director of Risk Management at Coral Gables Hospital, observed Mr. Martinez wearing a laboratory coat embroidered "Dr. Mariano Martinez, Orthopedic Surgery." Ms. Bennett also overheard a member of the staff address Mr. Martinez as "doctor," without Mr. Martinez's correcting the staff member. Apart from this isolated occurrence, Mr. Martinez was not otherwise observed to have worn such a coat, or to have been addressed as doctor, and there is no proof that Respondent knew, observed, fostered, or condoned Mr. Martinez's behavior. Following the incident in question, Ms. Bennett looked at medical records on the floor, as well as records for patients that had been discharged, to see if Mr. Martinez's written orders had been countersigned by Respondent (evidencing his review) within seven days. According to Ms. Bennett, she did find medical records that had not been countersigned by Respondent within seven days; however, she did not address the number of occasions she found that Respondent had failed to countersign Mr. Martinez's written orders, and she did not produce or identify any such records at hearing. Indeed, the only proof presumatively offered to address such particulars were Physician's Orders for two patients (identified as Patient 1 and Patient 2), received into evidence (without objection) as Petitioner's Exhibit 4, pages 8-10; however, these records were not further discussed or identified at hearing, and the records for Patient 2 relate to an admission in August 1993, a time Respondent was not shown to have been a supervising physician for Mr. Martinez. Under the circumstances, the proof, at best, supports the conclusion that Respondent failed to countersign Mr. Martinez's written orders regarding one patient (Patient 1), within seven days. With regard to such failure, Respondent observed that he certainly never "knowingly fail[ed] to sign or countersign any written patient medical records that were prepared by Mr. Martinez." Rather, Respondent averred that he had an established procedure whereby he would countersign Mr. Martinez's written orders as they made rounds together, or, if Mr. Martinez made rounds on his own, Respondent would make rounds the next day and countersign Mr. Martinez's orders. If the patient had been discharged in the interim, the patient's records were transferred to the Medical Records Section (from the floor) for storage, and the Medical Records Section had an established protocol whereby the staff would flag (mark) the records that required Respondent's countersignature. With regard to Respondent's failure to countersign Mr. Martinez's orders for Patient 1, there is no (known) explanation; however, as likely an explanation as any other is that the Medical Records Section failed to mark the orders and Respondent, therefore (inadvertently) failed to countersign them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent guilty of violating Subsection 458.331(1)(x), Florida Statutes, as alleged in Count One of the Administrative Complaint, but which withholds the imposition of any penalty for such violation. It is further RECOMMENDED that the final order find Respondent not guilty of the violation alleged in Count Two of the Administrative Complaint. DONE AND ENTERED this 24th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 24th day of September, 1999.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of alleged violations of the Medical Practice Act, Chapter 458, Florida Statutes. In an eight-count Amended Administrative Complaint, the Respondent has been charged with four violations of Section 458.331(l)(m), Florida Statutes, and four violations of Section 458.331(l)(t), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, a licensed physician in the State of Florida. His license number is ME0022079. Facts regarding Patient #1 The Respondent provided medical treatment to Patient #1 from April 20, 1987, through April 12, 1988. During the period of that treatment Patient #1 was approximately 92 years old and was diagnosed as having organic brain syndrome. Respondent obtained a brief past medical history of the patient and failed to document the patient's current complaints or review any prior medical records of the patient. On May 26, 1987, Respondent diagnosed the patient with pedal edema and ordered Hygroton 25 mg., but failed to document in the medical records the number of times per day the patient was to take the medication or the dosage for the medication. On June 6, 1987, the patient presented with shortness of breath and a blood pressure of 110/80. Respondent did not perform any tests or examinations to determine the cause of the symptoms. On July 14, 1987, and September 22, 1987, the patient again presented with shortness of breath and pedal edema and Respondent only recorded the lungs as clear and took her blood pressure. Respondent did not perform any other tests or examinations to determine the cause of the symptoms. On October 26, 1987, when the patient presented with shortness of breath, Respondent noted an arrhythmia and blood pressure of 136/82. However, Respondent did not perform any tests or examinations to determine the course of the symptoms. When the patient presented with arrhythmia, the applicable standard of care 5/ required Respondent to perform an EKG, to check her digoxin levels, and monitor her electrolytes and renal functions. Respondent's medical records for the patient did not meet the applicable record-keeping standards 6/ because the records were incomplete, inadequate, and illegible. Specifically, the records did not have diagnoses, did not have a plan of treatment, and did not include thorough examinations or histories, making it impossible to determine the appropriate treatment for the patient. Facts regarding Patient #2 Respondent provided treatment to Patient #2 from July 11, 1978, until September 13, 1988. Patient #2, a male, was seventy-one years old when such treatment began. The patient had a history of gastric ulcers. Nevertheless, Respondent prescribed nonsteroidal anti-inflammatory medications which exacerbate or increase difficulties with gastric ulcers and bleeding without obtaining a complete history or conducting a full examination. Respondent's medical records did not document whether Respondent assessed the risk to the patient, discussed the risk with the patient, or made any determinations that the risks outweighed the benefits for the patient. In 1978, the patient presented with a chronic cough and chronic bronchitis. However, Respondent did not perform any chest x-rays to determine the origin of the cough or to rule out lung carcinoma. Over the years, the cough persisted and in 1982-1983, the patient experienced shortness of breath and increased ankle edema. Respondent prescribed diuretics without determining the etiology of the edema and without conducting renal status or electrolyte monitoring. In 1985, the patient was hospitalized with severe ankle swelling. Respondent did not aggressively treat the possibility of deep vein thrombosis or cellulitis, nor did he treat the patient with anticoagulants to lessen the risk of a blood clot going to the lung. The applicable standard of care required anticoagulant treatment under these circumstances. In 1987, the patient suffered a severe weight loss with the chronic cough. The Respondent's records do not reveal any attempt to make a diagnosis. On December 15, 1987, the patient complained of abdominal problems, which could have related to the steroidal anti-inflammatory medications prescribed. The Respondent's records fail to document any laboratory tests or examinations by Respondent to determine the cause of the complaints. Respondent breached the applicable standard of care by failing to perform an EKG on the patient when he presented with dizziness, light-headedness or syncopal episodes from September 1987, until July 12, 1988. When the patient presented on August 30, 1988, and September 13, 1988, with very serious complaints of precordial chest pain, shortness of breath, and palpitations, a reasonably prudent physician would have suspected that the patient was having a heart attack. Despite the symptoms, Respondent made a psychiatric diagnosis, rather than fully evaluating the heart and cardiac status. Respondent's medical records for the patient did not comply with the applicable record-keeping standards in that they did not contain thorough examinations or histories, and did not have diagnoses or plans of treatment for the patient. Facts regarding Patient #3 Respondent provided care to Patient #3 from November 17, 1987, until May 16, 1989. Patient #3, a female, was eighty-five years old when such treatment began. Respondent should have been aware from the patient's initial presentation, that the patient did not qualify to reside in an adult congregate living facility and should have taken steps to have her admitted to a skilled nursing facility. Respondent's failure to do so is a breach of the applicable standard of care. Respondent's initial examination of the patient was limited and Respondent failed to conduct an EKG to reveal the origin of the patient's pedal edema or irregular heartbeat. Respondent also failed to diagnose, treat, or refer the patient for a consult to evaluate her vision and hearing loss. Even though the diagnosis was not made in the Respondent's records, it is apparent from the medications prescribed by Respondent that the patient was being treated for congestive heart failure. She also had pedal edema, shortness of breath, and cardiac arrhythmia. Respondent failed to perform or conduct the appropriate tests and examinations to make a diagnosis of the patient's condition or to provide effective treatment. The patient had frequent episodes of high blood pressure for which Respondent prescribed diuretics. Respondent's prescribing of Tenormin violated the applicable standard of care and subjected the patient to serious cardiac risks. Respondent's medical records for the patient were illegible for the most part and in many instances omitted information about the diagnosis and course of treatment. For these reasons the records failed to comply with applicable record-keeping standards. Facts regarding Patient #4 Respondent provided treatment to Patient #4 from April 1985 until January 5, 1988. Patient #4, a male, was seventy-four years old when such treatment began. When the patient originally presented to Respondent, he was on cardiac medications, had complaints of possible arrhythmias, and had a history of organic brain syndrome and tardive dyskinesia. Respondent was required by the applicable standard of care to evaluate the patient's cardiac condition, renal status, and potassium level. Respondent breached the standard of care by failing to conduct these evaluations and examinations. On October 1, 1985, the patient presented with back pain. Rather than conducting a physical exam to determine the source of the pain, Respondent violated the standard of care and treated the pain symptomatically. The patient was prescribed an anti-psychotic drug, Mellaril, and throughout Respondent's care exhibited side effects, including falls with resulting abrasions. Respondent failed to discontinue the drug or take appropriate measures to determine the extent of the patient's condition and implement a course of treatment. On July 23, 1987, Respondent prescribed an amount of Dalmane considered excessive for geriatric patients. These inappropriate prescriptions constitute a departure from the applicable standard of care. Respondent's medical records for the patient were replete with omissions of physical exams, diagnoses, and plans of care, and were inadequate as to patient history and justification for course of treatment. For these reasons the records failed to comply with applicable record-keeping standards. Facts regarding prior discipline Respondent has been the subject of prior disciplinary action by the Board of Medicine. The prior disciplinary action was based on deficiencies in Respondent's record-keeping. The prior disciplinary action does not appear to have improved Respondent's record-keeping in any significant way.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine issue a final order in this case to the following effect: Concluding that the Respondent is guilty of four counts of violations of Section 458.331(l)(m), Florida Statutes, and four counts of violations of Section 458.331(l)(t), Florida Statutes, as charged in the Amended Administrative Complaint; and Imposing administrative penalties consisting of all of the following: (a) an administrative fine in the total amount of $4,000.00 (representing a $500.00 fine for each of the eight counts); (b) a one-year period of suspension of the Respondent's license; and (c) a one-year period of probation following the suspension, during which probation period the Respondent shall be required to have his records reviewed by a supervising physician approved by the Board, such supervising physician to provide quarterly reports to the Board regarding the sufficiency of the Respondent's record-keeping. DONE AND ENTERED this 2nd day of February 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 2nd day of February 1995.
Findings Of Fact Respondent is a licensed medical doctor, having been issued license number ME004427. Respondent maintains a general practice of medicine in Fort Lauderdale, Broward County, Florida. The parties have stipulated that the following are Schedule II Controlled Substances pursuant to Chapter 893, Florida Statutes: dilaudid; tuinal; percodan; dexedrine; quaalude; and seconal. COUNTS I - III (HILDA BULLARD) In early 1981, Anatole Mizell had been employed as a medical assistant in Respondent's office for approximately two years. In early 1981, she approached Respondent and explained to him that her mother, who was a resident of the Bahamas, had been diagnosed as having terminal cancer. Ms. Mizell explained to Respondent that physicians in the Bahamas had prescribed dilaudid to relieve her mother's pain, but that dilaudid was much more expensive in the Bahamas than in the United States. As a result, Ms. Mizell requested that Respondent write prescriptions for dilaudid in the United States which she could then have filled for use by her mother in the Bahamas. As a result of this conversation, Respondent, without ever having examined either Ms. Mizell's mother, Hilda Bullard, or any medical records concerning Hilda Bullard, began writing prescriptions for dilaudid in March of 1981. From March through October 1981, Respondent wrote prescriptions for Hilda Bullard totaling 1,072 two- milligram dilaudid tablets. According to the information furnished to Respondent by Ms. Mizell, her mother had had exploratory surgery in approximately 1977, at which time she was diagnosed as terminally ill. Ms. Mizell did not approach Respondent to write dilaudid prescriptions for her mother until early 1981. Having written dilaudid prescriptions for Ms. Bullard for March through October, 1981, Respondent began to suspect that perhaps he should examine Ms. Bullard in light of the fact that patients with illnesses of the severity described to him by Ms. Mizell seldom live for as long as Ms. Bullard apparently had. As a result, Ms. Bullard came to the United States and was first examined by Respondent on October 23, 1981. At that time, Respondent discovered that the patient had an enlarged abdominal mass, and sent her for blood samples and a liver scan. As a result of these procedures, Ms. Bullard was diagnosed as having cirrhosis of the liver, rather than terminal cancer. Respondent immediately discontinued prescribing dilaudid for Ms. Bullard. Although the record in this cause establishes that it is not uncommon, and oftentimes is appropriate, for physicians to prescribe a controlled substance for use by patients without first examining them, this procedure is justifiable only when the prescribing physician is prohibited by emergency conditions from personally examining the patient, or is so familiar with the patient's history that an examination might not be necessary. In this instance, Respondent wrote prescriptions for a controlled substance for use by Ms. Bullard for a period of six months without either having reviewed her medical records or personally examining her. There is no evidence, however, from which it could be concluded that Respondent did not act in a good faith effort to assist his employee's mother. Further, it is significant that, upon determining that the patient did not suffer from terminal cancer, Respondent immediately ceased prescribing dilaudid. COUNTS IV-VII (BILL CAUDILL) William Caudill has been a patient of Respondent's since approximately 1957. At the time of final hearing in this cause, Mr. Caudill was 59 years old. For as long as he can remember, Mr. Caudill has suffered from severe headaches of unknown etiology. His headaches are so severe, in fact, that Mr. Caudill has been unable to work, and is presently receiving Social Security disability benefits. Since he became a patient of Respondent, Mr. Caudill has been referred by Respondent to several specialists, including a neurologist, for procedures to determine the cause of his headaches. To date, the cause of Mr. Caudill's headaches remains undetermined, and he still suffers almost constant pain. In approximately 1978, Mr. Caudill ceased visiting Respondent, and instead was treated by a physician in Pompano Beach, Florida. Upon his return as a patient to Respondent in approximately July of 1980, Respondent was taking approximately 800 to 1,000 percodans per month for relief of pain associated with his headaches. The record in this cause is undisputed that percodan was moderately effective in assisting Mr. Caudill with headache pain, and that percodan is, in fact, an appropriate medication for that purpose. Upon his return as a patient, Mr. Caudill was advised by the Respondent that he was taking too many percodans, and that Respondent was instituting a procedure to decrease his habituation to that drug. In fact, during his treatment of Mr. Caudill from July, 1980, until the time of this hearing, Mr. Caudill had reduced his ingestion of percodan from in excess of 800 per month down to approximately 50 per month. During the period July, 1980, through December 1981, Respondent prescribed 2,959 two-milligram percodan tablets and 489 two-milligram tuinals to Mr. Caudill. This procedure of reducing the patient's dependence upon percodan by gradually reducing the dosage over an extended period of time is both medically justifiable and appropriate under the circumstances here present. However, Respondent's patient records on Mr. Caudill for the period July, 1980 through December, 1981, are virtually absent any information other than the identification of medication, and the date and amount of the prescription to justify Respondent's course of treatment for Mr. Caudill. Respondent was, of course, intimately familiar with Mr. Caudill's condition, having treated him since 1957. Respondent did, however, fail to keep records sufficient to justify his course of treatment, document the patient's progress or lack thereof, and any alternative treatment modalities considered or rejected. COUNTS VIII-XII (E. O. WALKER) At the final hearing in this cause, E. O. Walker was 72 years old, and had been a patient of Respondent's for approximately 20 years. Respondent ceased treating Mr. Walker when Mr. Walker moved to California in 1975. Respondent forwarded Mr. Walker's patient records to a physician in California, and did not retain copies of those records in his files. Mr. Walker returned as a patient to Respondent in 1980. At that time, Mr. Walker was suffering almost constant pain as a result of earlier heart surgery, disc disease in his lower back, and arthritis. In addition, Mr. Walker had difficulty sleeping, and was depressed as a result of a recent divorce. Because of the pain associated with the above-described ailments, Mr. Walker is totally disabled. For the period of September, 1980 through December, 1981 Respondent prescribed 650 percodans, 500 quaaludes, 500 dexedrines, and 400 seconals to assist Mr. Walker in coping with the pain, enabling him to sleep, and assisting him with his depression. The record in this cause establishes that, given Mr. Walker's history and his existing condition, the prescription of these controlled substances in two-milligram dosages over the period in question was reasonable, medically justifiable, and not excessive in quantity or dosage. There is no evidence to support a conclusion that Respondent's treatment of Mr. Walker from September, 1980 through December, 1991 in any way departed from medically acceptable levels of care. COUNT XII (SELF PRESERVATION) 10. On July 14, 1980, November 10, 1980, January 20, 1981, August 2, 1981 and December 18, 1981, Respondent prescribed demerol tablets and injectables in the name of "R. S. Faircloth" or "Robert S. Faircloth". These controlled substances were used by Respondent in the treatment of his patients. All such controlled substances received by Respondent as a result of these prescriptions were either administered to Respondent's patients or were accounted for by Respondent at the time of final hearing. Further, the prescription blanks used to obtain these controlled substances had the notation "Office Use" on their face
