The Issue The issue in this case is whether the Board of Medicine should discipline and fine the Respondent for an alleged violation of section 456.072(1)(hh), Florida Statutes (2010),1/ for being terminated from a treatment program for impaired practitioners being overseen by an impaired practitioner consultant, as described in section 456.076.
Findings Of Fact The Respondent, Mark T. Ramsey, M.D., held Florida medical doctor license ME76559 beginning on August 21, 1998. The license expired on January 31, 2012, and its current status is "null and void." In 2002, the Respondent was referred to the Professional Resources Network (PRN), which was and still is designated as the State of Florida's impaired practitioners program for physicians. PRN is one of two such programs (the other being the Intervention Project for Nurses or IPN). The purpose of the program is to ensure the public health and safety by assisting practitioners who may suffer from chemical dependency; psychiatric illness; psychosexual illness, including boundary violations; neurological/cognitive impairment; physical illness; HIV infection/AIDS; and behavior disorders. The following services are provided by PRN: confidential reporting of impaired practitioners; investigating incoming referrals and determining appropriate action; conducting interventions on impaired practitioners; arranging for evaluations or treatment of impaired practitioners; coordinating treatment discharge with PRN monitoring; coordinating monitoring between state regional areas and PRN office; proving advocacy for participants who progress satisfactorily; monitoring compliance through a random urine call system; conducting monitoring phone calls with participants; overseeing monitored practitioner support groups; detecting relapses and providing a format for intervention of a relapse at the earliest possible stage; reporting non-compliance of participants to licensing authorities; and performing daily case management of new referrals and actively monitored participants. PRN participants are responsible for complying with the recommendations of the evaluator and/or treatment provider in consultation with the PRN medical director, complying with the terms of the PRN monitoring contract, and meeting financial obligations to care providers, including toxicology testing and PRN facilitator group fees. Witnesses did not characterize PRN as a treatment program because PRN itself does not provide treatment directly. However, their testimony is not controlling on the question of whether PRN is a treatment program for impaired physicians under the Florida Statutes. The Respondent's 2002 contract required him to abstain from mood-altering substances unless ordered by his primary physician, submit to random drug screenings, obtain psychiatric treatment, obtain psychotherapy treatment, and attend PRN's monitored professional support group meetings. In July 2005, the Respondent was admitted to Shands Healthcare and diagnosed with opiate withdrawal syndrome and opiate dependence. Due to this relapse, the Respondent entered into a second monitoring contract with PRN in November 2005. The 2005 contract required the Respondent to abstain from mood- altering substances unless ordered by his primary physician, submit to random drug screenings, obtain psychiatric treatment, obtain psychotherapy treatment, and attend PRN's monitored professional support group meetings. Due to his positive urine drug screen, the Respondent signed a third monitoring contract with PRN in September 2006. The 2006 contract required the Respondent to abstain from mood- altering substances unless ordered by his primary physician, submit to random drug screenings, obtain psychiatric treatment, obtain psychotherapy treatment, and attend PRN's monitored professional support group meetings. In October 2006, the Respondent tested positive for Darvocet2/ on a PRN-ordered urine drug screen. The Respondent did not have a valid prescription for Darvocet at the time he submitted to the urine drug screen. As a result of his positive urine drug screen, the Respondent was required to submit to an evaluation by Dr. Barbara Krantz. Dr. Krantz diagnosed the Respondent with alcohol dependency, cocaine dependency, and opiate dependency. However, Dr. Krantz found the Respondent safe to practice medicine, provided that he limit his working hours to approximately 45 hours per week and continue close monitoring with a psychiatrist and psychologist. From about January through July 2007, the Respondent was prescribed Percocet for pain. Percocet is the brand name for a drug that contains oxycodone and is prescribed to treat pain. According to section 893.03(2), Florida Statutes, oxycodone is a Schedule II controlled substance that has a high potential for abuse and has a currently accepted, but severely restricted, medical use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. In May 2007, PRN directed the Respondent to either stop taking Percocet or refrain from the practice of medicine. He did neither. The Respondent failed to submit to drug testing during June 2007. On or about July 17, 2007, PRN required the Respondent to voluntarily withdraw from practice. On or about July 30, 2007, the Respondent submitted to a second PRN-ordered evaluation by Dr. Krantz. Dr. Krantz diagnosed the Respondent with opiate dependency episodic, alcohol dependency in remission, and cocaine dependency in remission. Dr. Krantz opined that the Respondent was not able to practice medicine with reasonable skill and safety and recommended that the Respondent enter a customized outpatient treatment program. On or about July 30, 2007, the Respondent began outpatient treatment at the Hanley Center. On or about August 22, 2007, PRN held a staff meeting to discuss the Respondent's case. Rather than dismissing the Respondent from PRN for violating his monitoring contracts, the clinical team opted to require the Respondent to enter six months of residential treatment. On or about September 5, 2007, the Respondent left the Hanley Center "voluntarily to pursue more involved treatment recommended by PRN." The Respondent did not enter into a six-month residential treatment program, as recommended by PRN. On or about September 25, 2007, the Respondent advised PRN that he could not enter a six-month residential treatment program because the Respondent was responsible for paying the living expenses of his brother, who lived in North Carolina. The Respondent indicated that if he were unable to send money to provide for his brother, his brother would be forced to move into a nursing home. In October 2007, the Respondent entered into a fourth monitoring contract with PRN. The 2007 monitoring contract required the Respondent to abstain from mood-altering substances unless ordered by his primary physician, submit to random drug screenings, obtain psychiatric treatment, obtain psychotherapy treatment, and attend PRN's monitored professional support group meetings. Additionally, the Respondent agreed not to be re-evaluated for at least one year (until October 2008) and to refrain from practice until the Department of Health and/or the Board of Medicine rescinded the Voluntary Withdraw from Practice. In March 2008, the Respondent relocated to Wisconsin. In May 2008, the Respondent signed a revised version of the October 2007 contract due to his relocation to Wisconsin. The revised contract's substantive requirements were the same. For approximately a year and a half, while he lived in Wisconsin, the Respondent did not obtain psychiatric treatment or psychotherapy treatment, as required by the revised monitoring contract, because he could not afford it. In 2009, the Respondent requested that he be re-evaluated by a PRN-approved evaluator. The Respondent submitted to an evaluation with Dr. Bayez, who recommended that the Respondent complete an intensive outpatient program. In May 2009, the clinical team of PRN held a staff meeting and decided to require the Respondent to attend an intensive outpatient program, as recommended by Dr. Bayez, and demonstrate one year of complete compliance with his PRN monitoring contract, including obtaining psychiatric and psychotherapy treatment for one year, before PRN would advocate on his behalf before the Board of Medicine. In June 2009, the Respondent signed an addendum to his current monitoring contract which required him to: enroll in an intensive outpatient program (at least three times per week for six weeks) within 90 days (by August 8, 2009); and have one year of complete compliance with his PRN contract before requesting re-evaluation for PRN advocacy with the Board of Medicine. The Respondent completed an intensive outpatient treatment program in June or July 2009. In March 2010, the Respondent signed a revised version of the October 2007 contract due to his relocation from Wisconsin to Florida. The revised contract included the same requirements as the original October 2007 contract, with the exception of addresses and the names of providers. On or about November 23, 2010, the Respondent was selected for a PRN-ordered urine drug screen. The Respondent failed to submit to the urine drug screen. The Respondent advised PRN that he could not submit to the test because he was in North Carolina, and there were no collection sites open near him. The Respondent indicated that he had traveled to North Carolina due to a medical emergency involving his brother. However, the Respondent notified his group facilitator approximately one week before November 23, 2010, that he would be traveling out of state. The Respondent failed to notify PRN that he would be traveling on November 23, 2010. The Respondent was aware that he was required to notify both his group facilitator and PRN of any out-of-state travel. Due to his failure to submit to the urine drug screen, PRN required the Respondent to submit to a hair drug screen upon his return to Florida. On or about November 29, 2010, the Respondent's group facilitator, Ms. Brady, notified him that he was required to submit to the hair drug screen within two weeks. The Respondent did not submit to the required hair drug screen. In 2010, PRN had a loan fund available for doctoral level participants to assist participants with the cost of obtaining evaluations and paying for certain treatment programs. PRN also had an arrangement with a hair drug screen lab, as well as one for urine drug screening with Affinity Online Solutions (Affinity), which oversaw the selection process and compliance with random urine drug screening, and could request that a participant be permitted to test for free, if the participant was unable to afford a drug screening. The Respondent did not request financial assistance from PRN for completing the hair drug screen. Affinity offered a "self-test" feature that allowed participants to create and submit to a urine drug screen on their own initiative in order to document sobriety. The PRN handbook informed PRN participants of this option. The Respondent did not submit to a self-test urine drug screen in lieu of submitting to the hair drug screen. On or about December 1, 2010, the Respondent again failed to submit to a random urine drug screen. On or about December 13, 2010, the Respondent failed to check in to Affinity to determine whether he had been selected for drug testing. On or about January 4, 2011, the Respondent notified his group facilitator that he could not submit to the hair drug screen because he could not afford it. On or about January 5, 2011, PRN held a staff meeting regarding the Respondent's case. During the meeting, the medical director, Dr. Judy Rivenbark, decided to dismiss the Respondent from the PRN because she believed him to be "unmonitorable," based on his recent non-compliance in 2010 and his history of non-compliance with previous PRN contracts. On or about January 6, 2011, Dr. Rivenbark sent a letter to the Respondent notifying him that his case had been referred to the Florida Board of Medicine for appropriate action based on his "continued incidences of non-compliance" with his PRN Dual Diagnosis Monitoring Contract. On or about January 31, 2011, Dr. Rivenbark sent a letter notifying DOH that the Respondent had been terminated from PRN due to the Respondent's continued non-compliance with his Dual Diagnosis Monitoring Contract.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine find the Respondent guilty as charged and fine him $1,000. DONE AND ENTERED this 4th day of March, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2015.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Tracie Ann Johnson, was licensed as a practical nurse in Florida under license number NI20852451. The Board of Nursing was and is the state agency responsible for the licensing of practical nurses in Florida. On March 28, 1987, Deborah W. Murphy was a licensed practical nurse and charge nurse at the Hillsborough County Development Center assigned to the 3 - 11 PM shift. As a part of her duties that evening she was assigned to conduct an orientation of the Respondent, Tracie A. Johnson, who had recently been employed by the facility. As a part of her routine duties, Ms. Murphy conducted a count of all controlled drugs at the beginning of her shift, when medications were passed, and again at the end of her shift. The initial count, less the drugs passed, should have resulted in the number present at the end of shift count. On the night in question, Ms. Murphy, along with the Respondent, went to each individual house at the facility to pass medications. Drugs are kept in a locked cabinet in a locked storage room in each house. In order to get to the drugs, it takes two separate keys - one for the room and one for the drug cabinet. Both keys were kept within the personal control of the charge nurse on duty, and on the night in question, Ms. Murphy, as the sole nurse on duty, had the only keys. When Ms. Murphy was out of the drug room passing medicines, she would leave the room unoccupied save for Respondent for a few moments. During this period, the drug cabinet was unlocked as well. On the night in question, no one else, other than Ms. Murphy or Respondent, was present or had access to the drug room and cabinet. When Ms. Murphy finished passing medicines in the house where the shortage in question here was noted, she and Respondent were to go to another house to pass medicines. However, prior to leaving, Ms. Johnson indicated she had to go to the bathroom and they agreed that she would meet Ms. Murphy at the next house. Ms. Johnson did not show up and Ms. Murphy went back to find her. When she did, she found that Respondent was still in the bathroom. When Respondent came out of the bathroom, she was pale and sweaty, and her eyes appeared glassy. She said at that point that the "Doritos" must have made her sick. The two nurses went back to the nurse's station but Respondent was unable to stay awake to continue the orientation. In Ms. Murphy's opinion, Respondent was under the influence of some substance, either alcohol or a drug. When Ms. Murphy conducted the 11 PM count of drugs at the end of her shift, she found that one 100 mg phenobarbital capsule was missing from one of the drug cabinets in the room where she had left Respondent unaccompanied. Both Ms. Murphy and her replacement night nurse searched thoroughly for the pill but could not find it. As a result, Ms. Murphy called Ms. Cottrell, the assistant director of nursing, who advised her to fill out an incident report which all parties involved were to sign. When asked to sign this report, Respondent refused, stating that she was not present during the search and therefore could not vouch for its effectiveness. Ms. Murphy indicates that even before the medicines were passed, Respondent disappeared with her purse often and her conversation seemed to be somewhat inappropriate. She was highly talkative and after the passing of medicines, it appeared that her demeanor changed. She was much quieter and did not go with Ms. Murphy on any of the other medicine passes that evening. Ms. Cottrell, herself a recovered impaired nurse, was called by Ms. Murphy when the shortage was noticed. In a meeting the next morning, Ms. Murphy reported that Respondent's performance and demeanor had been inappropriate and Ms. Cottrell had heard from other nurses as well that Respondent appeared to be under the influence of some substance. When Ms. Murphy attempted to question Respondent about her familiarity with a venous puncture, she reportedly stated she did not have to observe that as she had experience in sticking needles in her own veins. After receiving a complete report from Ms. Murphy, Ms. Cottrell called Respondent in at which time Respondent indicated strong signs of impairment. These included repeated absences to go to the bathroom, drowsiness, sweating, and paleness. During their conversation, Respondent appeared to be bored and angry at having to come in early to talk. Ms. Cottrell spoke of her concerns about Respondent's behavior and condition, and Respondent's refusal to sign the incident report, and asked Respondent to be evaluated by an addiction counselor rather than to be reported to the Board. At this point, Respondent, already angry, got angrier. She denied taking drugs, made a few more inappropriate comments, and stomped out of the room. This type of conduct is consistent with a drug dependance denial but is also consistent with innocence. After the interview, during which Respondent declined to be evaluated by an addiction counselor, Ms. Cottrell felt she had no choice but to discharge Respondent from employment with the Center. In her opinion, based on her personal experience and her training in drug addiction, Respondent was under the influence of something at the time. Her symptoms are not consistent with food poisoning but with a drug high. She is satisfied that Ms. Murphy is not responsible for the loss of the pill and Ms. Murphy denied having taken it. She is further satisfied that none of the patients assigned to the residence from which the pill was missing was capable of taking it. It is found, therefore, that Respondent took the phenobarbital from the drug room while Mrs. Murphy was out of the room and ingested it. It is also found that her symptoms, as described by the three nurses who observed her, are consistent with drug ingestion and that she was under the influence of drugs whale on duty with Ms. Murphy on March 28, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a practical nurse in Florida be suspended for three years or until such time as she proves to the satisfaction of the Board of Nursing that she is capable of safely engaging in the functions of the profession of nursing. RECOMMENDED this 15th day of November, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 1988. COPIES FURNISHED: John Cobb, Law Clerk Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tracie Johnson 1906 East Hamilton Tampa, Florida 33610 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director DPR, Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201
The Issue Whether the Respondent's license as a Licensed Practical Nurse should be suspended or revoked for alleged violation of Sections 464.21(1)(b) and (d), F.S., as set forth in Administrative Complaint, dated August 3, 1978. The Respondent did not appear at the hearing. Notice of Hearing was issued by the Hearing Officer under date of October 25, 1978, to the address provided by Petitioner, 7124 Bay Drive No. 1, Miami Beach, Florida 33141. This is the address reflected on the envelope which enclosed Respondent's request for hearing on the Administrative Complaint sent to Petitioner under postmark August 28, 1978. It being determined that adequate notice had been provided to Respondent, the hearing was conducted as a uncontested proceed, pursuant to Rule 28-5.25(5), Florida Administrative Code. (Exhibit 5)
Findings Of Fact Respondent Michaela Fives holds License No. 27554-1 as a Licensed Practical Nurse and was so licensed in November, 1977. (Testimony of Johnson) On November 5, 1977, Detective Kenneth Valentine, Hialeah Police Department, was acting in an undercover capacity on an investigation of narcotics. Pursuant to his investigation, he met with Respondent at her apartment located at 5960 NW 38th Street, Apartment 210, Virginia Gardens, Miami, Florida. Lynn Sampson and Danny Cundiff were also present in Respondent's apartment at the time. Cundiff and Sampson wrote out a prescription of 60 300 mg. Quaalude tablets on a printed prescription form. The top of the form showed the name Lacy, Adler, M.D., P.A., followed by "Andrew P. Adler, M.D., Ray C. Lacy, M.D., 221 West Flagler Street, Miami, Florida 33130, Telephone: 887-9339." The prescription was handed to Valentine and Respondent gave him $15.50 to have it filled at the My Pharmacy, 1550 West 84th Street, Hialeah-Miami Lakes, Florida. By pre-arrangement with the pharmacist, Valentine had the prescription filled there and took the pills back to the apartment. Sampson divided them among Respondent, Cundiff and herself, and each of them ingested one tablet. Valentine purchased ten tablets from Sampson and Cundiff for $35.50. (Testimony of Valentine) On November 9, 1977, Valentine again met with the three individuals at Respondent's apartment and was provided another prescription for the same amount of drugs. It reflected the patient's name as Robert Southern, and registration number 178855. It was purportedly signed by "S. Adler, M.D." Prior to this meeting, the Hialeah police had determined that Doctors Adler and Lacy were not listed in the telephone book nor were they located at the address shown on the prescription form. They also determined that the phone number shown on the prescription form was a pay telephone located in Hialeah, Florida. After the individuals at the apartment discussed the fact that the pharmacist would probably call the phone number listed on the prescription form to verify its authenticity, Valentine took the Prescription to the My Pharmacy and had it filled, using his own money for the purchase. At this time, another police officer present at the pharmacy called the phone number listed on the prescription form to ostensibly verify the prescription. Lieutenant Paul Gentesse of the Hialeah Police Department had previously placed himself in a position to observe the pay telephone. He saw the Respondent answer the telephone and then followed her back to her apartment. When Valentine returned with the filled prescription, he gave it to Cundiff who divided the tablets among Respondent, Sampson and Valentine Valentine paid $30.00 for ten tablets. Other police officers then arrived at the apartment and Respondent, Cundiff and Sampson were placed under arrest. (Testimony of Valentine, Gentesse, Exhibit 3) The tablets taken from the possession of Respondent and the others were analyzed by a chemist in the Crime Laboratory of the Dade County Public Safety Department and were found to contain Methaqualone, a controlled substance under Chapter 893, Florida Statutes. Quaalude is a common tradename for Methaqualone. (Testimony of Lynn, Exhibit 2, supplemented by Exhibit 1) On January 9, 1975, Petitioner had suspended the license of the Respondent for period of two years as a result of prostitution charges. The record of that proceeding contained the testimony of Respondent that she had been involved In the illegal use of controlled drugs and had been attending a drug rehabilitation program for the treatment of drug abuse as a result of court order. Respondent thereafter petitioned for reconsideration of the suspension and, on June 29, 1976, Petitioner stayed its order of suspension and placed Respondent on probation for the remainder of the period of suspension. (Testimony of Johnson, Exhibit 4)
Recommendation That Respondent's license as a Licensed Practical Nurse be revoked for violation of Section 464.21(1)(d) , Florida Statutes. DONE and ENTERED this 2nd day day of January, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building Jacksonville, Florida 32202 Geraldine Johnson, R.N. Investigation and Licensing Coordinator 6501 Arlington Expressway, Bldg B Jacksonville, Florida 32211 Michaela Fives, L.P.N. 7124 Bay Drive No. 1 Miami Beach, Florida 33141
The Issue Whether the Respondent is guilty of unprofessional conduct. Whether her license as a registered nurse, certificate no. 8829 should be suspended or revoked or whether Respondent should be put on probation.
Findings Of Fact The Respondent, Christine Richter, who holds license no. 88294-2 was employed as a registered nurse at Tallahassee Memorial Hospital, Tallahassee, Florida, during the month of February, 1977. She worked as a certified nurse and anesthetist under Ann Marie Connors, the chief nurse anesthetist. The chief nurse anesthetist reported to the Associate Executive Director April 11, 1977, that there were gross discrepancies in the narcotics record kept by the Respondent and at that time she presented him with some of the records. On April 12, 1977, Respondent was requested by the Associate Executive Director to report to his office for a conference. Nurse Connors, the chief nurse anesthetist, was also called to be present at that conference. At the conference the Associate Executive Director asked Respondent for an explanation as to the discrepancies between the narcotic and barbiturate administration record and the patient records. In reply the Respondent stated that she needed a hysterectomy and could not afford it. Upon the insistance of the Associate Executive Director that she give an explanation for the discrepancy in the hospital records, she indicated that she needed to improve her charting. She gave no explanation for discrepancies in the narcotics chart which she signed, and indicated that she would resign. The Director stated that he would accept her resignation and she left the conference. The Respondent mailed her written resignation to the Tallahassee Memorial Hospital the following day. The Accreditation Manual for Hospitals, 1976 edition, published by the Joint Commission on Accreditation of Hospitals "Anesthesia Services" pages 59 through 64 is used as the standard for anesthetic procedure. A department standard book approved by the American Hospital Association and the joint commission on the accreditation of hospitals is required to be read by each employee of the Tallahassee Memorial Hospital as it pertains to the department in which the work is to be performed. The instructions in the department standards book are the same as in the Accreditation Manual for Hospitals as far as anesthesia services is concerned. Medical records of eight patients were introduced into evidence together with Narcotic and Barbiturate Record no. 081291. This shows the date, time, patient's name, room number, doseage, attending physician and administering nurse. The doseage of drugs secured by and signed for by the Respondent, Christine Richter, was more than the records show was administered to the various patients. No accounting was made for the difference between the amounts of drugs secured and the amounts, if any, administered to the patients, although it is the duty of the nurse checking out drugs to account for its use in writing on a form provided for that purpose. The Respondent offered no verbal explanation for the missing drugs when given the opportunity to explain her actions by the Associate Executive Director at Tallahassee Memorial Hospital and her immediate supervisor, Ann Marie Connors, chief nurse anesthetist.
Recommendation Revoke the license of Christine Richter. DONE AND ENTERED this 12th day of December, 1977, in Tallahassee, Florida. DELPENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Rivers Buford, Jr., Esquire Post Office Box 647 Tallahassee, Florida 32302
Findings Of Fact Based on the admissions of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact. Respondent, Kimberly Bauzon, L.P.N., is a licensed practical nurse in the state of Florida, having been issued license number PN 0803361. Respondent has been so licensed at all times material to the allegations in the complaint. Between the dates of October 25, 1985, and December 2, 1985, the Respondent was employed as an LPN by the Care Unit of Jacksonville Beach. On various occasions during her employment as an LPN at the Care Unit of Jacksonville Beach, Respondent charted vital signs for patients that she had not, in fact, taken. On or about November 21, 1985, while employed as an LPN on duty at the Care Unit of Jacksonville Beach, without authority or authorization, Respondent left her unit within the Care Unit for at least thirty (30) minutes. During that period of at least thirty (30) minutes on November 21, 1985, during which Respondent was out of her unit, there was no nurse present in the unit to take care of patient needs. Also on or about November 21, 1985, while on duty at the Care Unit of Jacksonville Beach, Respondent was asleep for a period of at least two (2) hours. On one occasion during Respondent's employment at the Care Unit of Jacksonville Beach, Respondent pulled a male adolescent by the waistband at the front of his trousers in the course of directing the patient to provide a urine specimen. The manner in which Respondent pulled on the patient's clothing was inappropriate and unprofessional. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to be asleep while on duty. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to chart vital signs which she has not, in fact, taken. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to leave her unit for a period of thirty (30) minutes in the absence of a replacement nurse.
Recommendation In view of all of the foregoing, it is recommended that the Board of Nursing enter a final order in this case finding the Respondent guilty of one incident of violation of Section 464.018(1)(d), Florida Statutes, and four incidents of violation of Section 464.018(1)(f), Florida Statutes. And in view of the provisions of Rule 210-10.05(4)(d), Florida Administrative Code, it is recommended that the Board of Nursing impose a penalty consisting of a letter of reprimand and further consisting of a requirement that Respondent attend required specific continuing education courses, with an emphasis on the legal responsibilities of a nurse to the patients under her care. DONE AND ORDERED this 19th day of March, 1987, at Tallahassee, Florida. M. M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1987. COPIES FURNISHED: Lisa Bassett, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kimberly Bauzon, LPN 2968 Songbird Trail Atlantic Beach, Florida 32233 Kimberly Bauzon, LPN 216B Seagate Avenue, #B Neptune Beach, Florida 32233 Joe Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 =================================================================
The Issue Whether Respondent's medical license should be suspended, revoked, or otherwise disciplined.
Findings Of Fact Respondent is a licensed physician in the State of Florida, holding license No. ME 0071307. Respondent specializes in psychiatry. However, he is not Board-certified in psychiatry. Prior to licensure, Respondent had a history of heavy drinking in medical school; an alcohol overdose resulted in a hospitalization in Tampa, Florida, followed by a ten week intensive outpatient program. In 1996, Respondent applied to the Board of Medicine for licensure as a physician in the State of Florida. During the licensure application process, the Board became aware of Respondent's history of alcohol and drug abuse and referred him to PRN for an evaluation. PRN is the impaired practitioners program for the Board of Medicine. It was created pursuant to Section 456.076, Florida Statutes. PRN is an independent program that monitors the evaluation, care, and treatment of impaired health care professionals. PRN oversees therapy and treatment and provides for the exchange of information between the treatment providers, PRN and the Department. PRN also refers impaired practitioners to treatment providers or treatment programs which have been approved by the Department. The purpose of PRN is to protect the public from physicians who have an impairment that is likely to interfere with the competent provision of medical services. PRN does not provide medical services. Chemical dependency is a disease for which there is no cure. It can be placed in remission by practicing a program of recovery and/or exercising a great deal of self-discipline. Remission is not easy to achieve or maintain and is the sole responsibility of the licensee to maintain. A program of recovery involves a support network of individuals who understand the disease and can offer support. Such support includes recognizing the signs and symptoms of potential relapse and confronting the individual about such relapse behavior. Relapse behavior is any behavior which a person uses to rationalize the use of a chemical, to avoid situations that might prevent use of a chemical and /or engage in situations which either directly or indirectly lead to the use of a chemical. Relapse behavior is often very subtle and insidious. The type of confrontation can range from very gentle to very intense, depending on a recovery program's philosophy. The PRN recovery program is more stringent than other impaired practitioner programs because of the potential consequences of relapse on the health, safety, and welfare of the public. In addition, PRN support groups are for professionals and are run by a facilitator who is trained to observe the type of behavioral patterns that are exhibited in an individual with an impending relapse. The PRN program tends to follow an intense confrontational philosophy. PRN's method of monitoring yields an extremely high rate of success. However, PRN also has failures in its monitoring. The minimal length of a standard PRN contract for an individual with a chemical dependency problem is five years. Statistics have shown the five-year term to be the most effective length of monitoring in order to guarantee the best prognosis possible. The longer the contract, the lower the risk of relapse. After five years, the risk of relapse is somewhere between five and ten percent. The conditions of a standard PRN contract include having a primary care physician, attendance at a professional support group, urine monitoring, and attendance at a recovery self-help group like AA. However, PRN does not require a self- help group which utilizes the spiritual or religious components of AA. There are alternative self-help groups available to Respondent which do not include such components. A professional support group and a trained facilitator is required due to the very complex and difficult management problems posed by physicians. The professional support groups have individuals who are newly in recovery and others who have been in recovery for five, ten, and fifteen years. Those professionals who have a number of years of recovery are very beneficial to the group since they have experienced similar problems in terms of balancing family needs, extreme requirements of medical practice, financial issues that go along with being a physician, and other aspects of being a physician that are not generally experienced by the general population. Such a physician support group works for the majority of physicians in PRN with a chemical dependence. However, the evidence did not show that participation in a professional support group is a necessity or beneficial to all of PRN's chemically dependent physicians. In particular, the necessity of participation of Respondent in such a group was not clear. Indeed, Respondent's participation in such a group appears to have been detrimental to his recovery because the primary underpinnings of Respondent's alcohol dependence are in Respondent's ongoing difficulty in dealing with various forms of severe familial inflicted trauma he experienced in his adolescence. The goals of PRN's monitoring contract are to stay sober, to stay in recovery, and to get one's life back in order including family life and the practice of medicine. The difference between the PRN program and other programs is the ongoing nature of the communications with the primary health care physician, the monitoring of prescription medications, the monitoring of physical and psychiatric problems, and the random urine monitoring system. PRN referred Respondent to Raymond Johnson, M.D., for evaluation of Respondent's possible chemical impairment. Around April 22, 1996, Dr. Johnson evaluated Respondent and diagnosed him as being alcohol dependent, in remission. Remission is defined as having not used a chemical. Dr. Johnson noted that Respondent was in a relapse pattern, although he may not have relapsed yet. A relapse pattern consists of behaviors exhibited by a chemically dependent person which indicate that the person either has or will begin to abuse substances. Dr. Johnson recommended that PRN monitor Respondent with the following conditions: One PRN meeting per week and at least three AA meetings per week; regular random urine drug screenings; a sponsor; and psychotherapy focusing on addictions and family of origin issues. Dr. Johnson felt that Respondent needed psychotherapy due to his lack of insight into his rebelliousness during his teen years and due to his difficulty in identifying relapse patterns. On May 25, 1996, Respondent executed a lifetime monitoring contract with PRN which included the following conditions: a) submit to random urine, drug, or blood screens; abstain from any use of drugs or alcohol; (c) attend AA or NA meetings two times a week; (d) attend a 12-step program of recovering professionals; (e) notify PRN of the use of any drugs or alcohol; (f) and withdraw from practice for evaluation at the request of PRN if a problem develops. The contract was based in part on Dr. Johnson's recommendations. However, the evidence did not demonstrate that the recommendation for psychotherapy was implemented by either Respondent, PRN, or the Board. In Respondent's case the lack of focused psychotherapy would prove to be a problem. However, it remains Respondent's responsibility to seek whatever help he needs in order to maintain his sobriety. Because of Respondent's participation in PRN, on September 12, 1996, the Board of Medicine granted Respondent's application for licensure by endorsement as a physician with Respondent's license to be subject to a period of five years of probationary terms and conditions, including the following: You shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practitioner authorized to prescribe controlled substances. Your [sic]shall not consume alcohol; and You shall participate and comply with the Physician's Recovery Network and shall enter into a and comply with an after-care contract with PRN. At some point after licensure, Respondent became disillusioned with the professional support group, the group's confrontational style, the demands of PRN staff which Respondent perceived as threatening, and attendance at AA which Respondent felt violated his religious freedom. As Respondent's participation in his PRN program became more erratic Respondent began to relapse; a classic pattern of relapse. However, even with his dissatisfaction with PRN and his underlying psychological difficulty, it was Respondent's sole responsibility to maintain his sobriety. In late November 1999, Respondent, in violation of the terms of his licensure, began to drink alcohol. Respondent sometimes consumed up to 12 beers a day. Petitioner consumed the alcohol even though he was being monitored by PRN and in treatment under his PRN contract. There was no evidence that Respondent's relapse had an adverse impact on his provision of psychiatric services at the correctional institution where he was employed. On December 19, 1999, over three years into his PRN contract, Respondent was arrested and charged with Driving Under the Influence (DUI). Respondent's blood alcohol level was 0.21. Such a level while driving demonstrates that Respondent has an alcohol dependence problem and that Respondent has developed a tolerance to alcohol. Respondent subsequently pled guilty to the charge of misdemeanor DUI. He was sentenced to eight month's probation, a $565.00 fine, 50 hours of community service, DUI School, six month's driver's license revocation, and completion of the victim awareness program. Respondent successfully completed his sentence. On December 21, 1999, Respondent contacted PRN and advised that he had been arrested for DUI. PRN staff instructed Respondent to withdraw from practice and get evaluated, as per his monitoring contract conditions. Respondent had already voluntarily withdrawn from practice. However, he did not voluntarily withdraw from practice until his drinking came to the attention of law enforcement. Respondent knew that attention from law enforcement would cause his drinking to come to the attention of PRN and the Board. On or about January 6, 2000, Kenneth Thompson, M.D., evaluated Respondent. Dr. Thompson is certified by the American Society of Addiction Medicine and is employed as a clinical associate professor. He is the medical director of the Florida Recovery Center in the Impaired Professional Program at the University of Florida. The program provides primary care to patients with addictive disorders. The program is approved by the Department. On the date of the evaluation, Respondent reported to Dr. Thompson a history of heavy drinking in medical school; an alcohol overdose which resulted in a hospitalization in Tampa, Florida, followed by a ten-week intensive outpatient program; and, most recently, a relapse during Thanksgiving of 1999, when he returned to drinking of up to a 12-pack of beer per day. Dr. Thompson concluded that Respondent was alcohol dependent and in relapse. He recommended Respondent withdraw from the practice of medicine and enter residential treatment. Respondent did not mention any trauma he had suffered during his younger years. His failure to mention such trauma was, in part, due to his denial of such trauma. The ability to maintain denial is high in a chemically dependent person. Dr. Thompson's recommendation that Respondent be involved with a residential or an intensive treatment program was based on the facts that Respondent has a high risk of relapsing since he was under monitoring by PRN when he returned to drinking; that Respondent's personality styling lent him to being resistive to treatment; and that Respondent needs to be involved in a strong peer group. In addition, Respondent's history of a prior hospitalization which failed, a prior outpatient program which failed, a monitoring program which failed, a DUI and a relapse, necessitated residential treatment. Residential treatment is the most intense form of program available and the only one not yet tried by Respondent. At the time of Respondent's evaluation in January 2000, both Dr. Pomm, the medical director of PRN and Dr. Thompson concluded that Respondent was unable to practice medicine with reasonable skill and safety to patients. When a practitioner is unable to practice medicine with reasonable skill and safety to patients, that person is either impaired or his or her impairment is in question. The danger of allowing a suspect individual to practice, without knowing more information about the individual's addiction, puts the health, safety, and welfare of the public at an unacceptable level of risk. The determination by Dr. Pomm and Dr. Thompson was based on the following reasons: Respondent had relapsed again after a chronic history of recovery; various attempts at recovery, treatment, and relapse; lack of a documented history of sobriety; and Respondent's high risk for continued relapse since he was not currently in treatment. On January 8, 2000, per Dr. Thompson's recommendation Respondent went to Shands Hospital's Vista treatment facility for an initial evaluation and admission to the Professional's Residential Program. The program is approved by the Department. Respondent was willing to comply with the residential treatment recommended by Dr. Thompson. Respondent was not willing to comply with any of the recommendations regarding participation in a physicians support group. Respondent did not enter the residential treatment program at Vista. He simply could not afford the hefty fee charged by Vista for its program. The same financial barrier applied to other residential treatment facilities approved by the Department. PRN did offer a small loan to Respondent to help pay for the cost of residential placement. However, the loan was inadequate to meet the huge cost of residential treatment. In February of 2000, Respondent's contract with PRN was voided and Respondent's case was turned over to the Department with a recommendation of an emergency suspension order. On or about February 20, 2000, Respondent began treatment at CATS. CATS is a non-PRN approved outpatient program in Tavares, Florida. Bud Stalter is the owner and director of CATS. Mr. Stalter does not hold a four-year or advanced degree, but does have many years of experience in the drug addiction recovery field. He is well thought of in the addiction recovery field and has dedicated his life to that field. Mr. Stalter personally counsels Respondent and provides treatment to Respondent for free. Even without a degree, Mr. Stalter is well qualified to operate an addiction recovery program. The CATS program deals with a variety of counseling issues such as co-dependency, marriage counseling, stress management, anger management, domestic violence, and abusive trauma in addition to chemical dependency. It employs a non- confrontational therapeutic method and tries to treat all of a person's problems which contribute to relapse or continued addiction. There are no medical physicians involved in Respondent's treatment. The program does employ random drug testing. However, the evidence did not show that the drugs CATS tests for are the same as the drugs tested for by PRN. The CATS program does not provide professional self- help groups. Again the need for such a peer group was not established by the evidence. The evidence did show that a professional peer group is generally a good idea and beneficial to most chemically dependant physicians. The CATS program does provide a twelve-step support group. Respondent attends AA at CATS. PRN's professional support groups are conducted by facilitators who are trained to identify relapse behaviors such as individuals not going to meetings as often, lacking insight into the impact of their disease, making poor decisions, and displaying increasing amounts of anger, defensiveness, projection, denial, and rationalization. The importance and effectiveness of these PRN group facilitators is punctuated by the fact that after Respondent had been confronted several times by a facilitator regarding his relapse behavior, Respondent did indeed relapse. However another type of group with a trained facilitator such as the one at CATS could have provided the same oversight as PRN's professional support group. On or about October 23, 2000, Respondent was re- evaluated by Dr. Thompson at which time Respondent reported that he was involved in the CATS program, had been attending some AA meetings, and had not had any alcohol or other substances since December of 1999. Based on the standard which Dr. Thompson used in monitoring health care professionals, he could not find any clear evidence that Respondent had maintained his sobriety since December of 1999 or that he had been monitored in an acceptable manner. The standard used by Dr. Thompson requires attending weekly, monitored PRN group meetings with a counselor who is known by either Dr. Thompson or PRN, and drug screens which are the type that would pick up atypical drugs, such as benzodiates or the more obscure opiates, that a physician might abuse. There was no evidence that Respondent requested that PRN investigate or review the CATS program to see if it could become a Departmentally approved treatment program for Respondent or that some of the provisions of Respondents monitoring contract be waived because such provisions did not benefit continuation of Respondent's remission. Likewise no such evidence was submitted at the hearing. Therefore, no findings of fact can be made regarding substitution of the CATS for parts of the PRN program can be made. Dr. Thompson also determined that Respondent's narcissistic features were adversely affecting his ability to recover from chemical addiction because of the greater level of resistance, the lack of insight into his behavior, and the tendency to think that he should be treated differently. A number of narcissistic features are present in Respondent's personality such as his tendency to project or blame other outside causes, entities, the Department, the PRN authority, and life circumstances for his current predicament. In addition, Respondent does not think that he should have to be treated in the same manner or placed under the same restraints as other people. Respondent's attempt to determine his treatment needs is gauged toward directing only those things that he's willing to do. Respondent has chosen a treatment program in which his treatment providers have considerably less medical and psychiatric experience than himself, which offers a completely non-confrontational therapeutic environment, in which he develops and directs his plan of recovery. In addition, the CATS program does not have a five-year contract with Respondent. CATS and Respondent have a one-year agreement for monitoring. After that year has elapsed, Respondent's participation is purely optional and he can continue to be monitored by CATS for "as long as he likes." However, Respondent has benefited more from the CATS program than from the program under his PRN contract. Again the evidence was insufficient to determine whether the CATS program could be substituted for the usual PRN program. The goal is to maintain remission and different programs may well work for different individuals if those programs can create the paper trail necessary to document continued remission. The treatment plan developed by Respondent and CATS is not familiar to PRN. The evidence showed that neither PRN or the Board reviewed the CATS program or the random drug testing CATS employed. The evidence did not show that PRN, the Board, or Respondent attempted to have the CATS program reviewed to see if it did meet PRN requirements. According to Mr. Stalter, Respondent's recovery plan has already been changed several times to accommodate Respondent's life situation. Indeed, the CATS program and gentler counseling are working for Respondent at this time. However, Respondent has also relapsed several times in the past. Clearly, Respondent needs to be actively monitored for licensure purposes. As of the date of the hearing, no current information was available to the Department experts as to what monitoring Respondent was receiving. Respondent's history shows that he is at a very high risk of relapse due to the fact that he is very early in recovery, and he has a chronic history of relapse. He has not complied with his PRN contract. Given this history, there is no reason to believe that Respondent will not repeat his history of relapse under CATS. Continued PRN monitoring is necessary. However, there is no reason to believe at this point that the CATS program cannot be substituted for parts of the PRN program or that the peer support group requirement might be adjusted given Respondent's need for greater therapy regarding his earlier trauma. Undoubtedly, Respondent violated Section 458.331(1)(c), Florida Statutes, by being convicted of DUI which under the facts of this case affects Respondent's ability to practice medicine. Additionally, Respondent violated Section 458.331(1)(g), Florida Statutes, by failing to perform the conditions of his licensure because he failed to comply with all the terms of his PRN monitoring contract and failed to remain sober and free from alcohol. However, Respondent was unable to pay for the treatment recommended by Dr. Thompson. Moreover, Respondent did seek out alternative treatment which at this point appears to be more beneficial to Respondent because it is addressing the underlying cause of his chemical dependence and self medication. Additionally, no direct harm occurred to any patient of Respondent. Respondent did recognize his need to withdraw from practice until he was back in control of his behavior. Based on these factors, it is not appropriate to revoke Respondent's license. However, it is appropriate to continue the conditions of Respondent's license and add that Respondent must participate in a PRN program unless and until a CATS or other CATS-type program becomes a Departmentally approved treatment program and that Respondent not practice until such time as he obtains such approval or enters into a standard PRN monitoring program. Failure of Respondent to participate in either an approved CATS program or a PRN program should result in revocation of Respondent's license.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Health, Board of Medicine, issue a final order imposing a reprimand; an administrative fine of $1,000.00; and placing Respondent's license on five years' probation with the following conditions: 1) that Respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practitioner authorized to prescribe controlled substances; 2) that Respondent shall not consume alcohol; and 3) that Respondent shall participate and comply with the Physician's Recovery Network unless or until a CATS or other CATS type program becomes a Departmentally approved treatment program; that Respondent not practice until such time as he obtains a such approval or enters into a standard PRN monitoring program; and that failure of Respondent to participate in either an approved CATS program or a PRN program shall result in revocation of Respondent's license. DONE AND ENTERED this 1st day of May, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 1st day of May, 2001. COPIES FURNISHED: Kim M. Kluck, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Bradley J. Broyles, M.D. 1614 North Michigan Avenue Leesburg, Florida 34748-7036 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Charles Peavy, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. This Petition was received by the Division of Administrative Hearings on July 15, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. That Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The matter was originally set for hearing on August 14, 1981, and upon motion of the Petitioner, was reestablished for hearing on September 1, 1981. The hearing was conducted on the aforementioned date. In the course of the final hearing, the Petitioner offered no testimony or presentation in his own behalf. Respondent called as witnesses Robert Alcorn, Clinical Director for the mentally Disordered Sex Offender Program at Florida State Hospital Mike Pomeroy, Petitioner's attending clinical psychologist at Florida State Hospital Connie Smith, Petitioner's social worker at Florida State Hospital and Dr. M. M. Estes, Forensic Unit Psychiatrist at Florida State Hospital. Respondent's Exhibits 1 and 2 were admitted into evidence. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent in keeping with orders of court and the authority of Chapter 917, Florida Statutes (1977). During that time the Petitioner has resided in the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in a hospital program for the benefit for mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has been subjected to a full range of treatment opportunities he has made no significant progress in the course of his stay, due to a persistent lack of motivation on his part. In the face of this circumstance, the Respondent has made a preliminary determination that it has exhausted all pertinent treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. Thus, the petitioner has requested the formal hearing which is the subject of this Recommended Order. The history of this case reveals that the Petitioner was originally admitted into the program from a commitment order of the court after being charged with the offense of involuntary sexual battery, that commitment coming in January, 1979. The Petitioner having failed to demonstrate reasonable progress, a decision was made in March, 1980, through a staffing conference to the effect that the hospital had exhausted treatment in the facility Florida State Hospital. Likewise, in a departmental screening conducted by the various clinical directors of the several sex offender programs in the State of Florida, held in May, 1980, it was concluded that the Petitioner should be returned to court for reason of exhaustion of treatment. On June 4, 1980, the Petitioner was recommitted to the sex offender program by order of court and the Florida State Hospital reinstituted its treatment of the Petitioner. In January, 1981, a staffing was held on the Petitioner and a decision was reached that the hospital had exhausted treatment for the benefit of the patient. This decision was followed by a decision in February, 1981, by the interdepartmental screening committee of several sex offender programs within the State, to the effect that the overall system had exhausted treatment. Following the February decision, counsel for the Petitioner requested a formal hearing; however, before that hearing could be convened, the Petitioner determined that he did not wish the hearing and was returned to court in April, 1981. The Petitioner was then returned to the Florida State Hospital by order of court on May 22, 1981, and has remained in the hospital since that time. At present, the Petitioner's underlying condition is diagnosed as that of a person with an antisocial personality disorder, severe, with a diagnostic profile which places him in the category of sex offender within the meaning of Chapter 917, Florida Statutes (1979). Contributing to this diagnostic impression is a severe case of substance abuse related to alcohol and substitutes for that chemical, together with a dependence on the psychotrogic medication Mellaril. While the patient has been involved in the program at Florida State Hospital, and has been exposed to the primary therapy of that hospital, namely group therapy, with certain adjunctive therapy and has been treated by numerous therapists, there has been no discernible success. The principal reason for the failure of the patient Peavy has been his lack of motivation, which is an essential prerequisite to success in the program. In this respect, in the course of his stay in the program, the Petitioner has not demonstrated an interest in making progress in the sex offender program. Mike Pomeroy, his primary therapist from May, 1980, until early 1981, through his testimony identified some of the features of the Petitioner's condition. As established by Pomeroy, the main problem with the Petitioner is that difficulty with substance abuse related herein, with the sex offense problem being an underlying feature of that difficulty. In this area, the Petitioner has been willing to discuss sex offenses to include the one for which he had been placed in the program and the others, but only in a superficial way. Pomeroy discovered that the substance abuse of Mellaril dates from approximately the 17th birthday of the patient, who was born on October 19, 1952. During the time of Pomeroy's involvement as therapist it has been necessary isolate the patient from any substance which might give him a "high." The patient has been known on five or six occasions to drink floor wax, 409 cleaner, etc., and at other times the staff has been suspicious that the patient has consumed this type material, in view of the patient's demeanor. While Pomeroy was the primary therapist, the Petitioner used the psychotropic medication Mellaril to maintain a mood, as opposed to a treatment for traditional thought disorders. Attempts to cut back on the amount of the Mellaril dosage have led to hostile episodes in which the patient made threats to hurt other persons. On one occasion, in an attempt to possibly have the patient relocated in a sex offender program in the South Florida State Hospital, the State tried to decrease the Mellaril from the dosage of 600 mgs. per day out of a possible 800 mgs., with 200 mgs. being an average dose. After one or two days, it was determined that the Petitioner was not making an effort to reduce his dependence on the medication Mellaril and it was necessary to isolate the Petitioner due to his behavior. (The Florida State Hospital was unable to effectuate a transfer to the South Florida State Hospital because that latter institution was unwilling to accept a person who had drug dependence, such as that of the Petitioner.) The reason for the isolation in this attempt to wean the Petitioner from the use of Mellaril, was due to confrontations with staff members. Pomeroy has spent more time with this patient than with any other patient in the history of Pomeroy's involvement as a therapist. He finds the Petitioner to be manipulative in playing members of the staff against each other, in the sense of reporting that one staff member has allowed him certain liberties, when in fact that has not proven to be true. The Petitioner, during his stay has agitated other patients in the sex offender program by his hyperactivity and constant attempts to borrow cigarettes from those patients and to do so in an intimidating way, and the Petitioner has even on one occasion thrown a chair at a patient. The Petitioner's attendance in the group therapy sessions which are the most vital phase of the treatment process has been irregular. When he has attended, his discussion in the course of the session has been of matters unrelated to the treatment program. Petitioner has also failed to attend adjunctive therapy sessions, notwithstanding the fact that he was allowed his choice of sessions to attend. In particular, he was allowed to attend the alcoholic rehabilitation program within the hospital and his attendance in those sessions was poor. This performance on the part of the patient has led therapist Pomeroy to comment that the Petitioner has done less to participate in the programs than any patient Pomeroy has known. This participation is essential especially for those persons who are suffering from substance abuse. The Petitioner has been made aware of the consequences of not participating in the sense of his possible return to court and court actions which might lead to further incarceration and more importantly of long term problems which the Petitioner would have in life should he fail to come to grips with his problems. Nonetheless, progress is not forthcoming, and the sexual problem which the Petitioner has is still in evidence, together with the substance abuse. The Florida State Hospital staff has also consulted professionals outside the sex offender program who might be able to deal with the problem with substance abuse however, the attempts have met with no success, in that the outside professionals have indicated that no progress will be made without proper motivation. In particular, the use of Antabuse as a deterrent to alcohol consumption would not be appropriate in view of the fact that this substance is dangerous if the patient is not well motivated. Other observations which are accepted, as made by therapist Pomeroy, establish that the Petitioner has only spoken about himself in one group session that the Petitioner continues to find it difficult to talk about things of a personal nature and that the Petitioner has no ability to get close to people as a means of breaking down the barriers necessary to come to some understanding of the myriad problems confronting him. In summary, from the point of view of Pomeroy and as accepted, the sex offender program has been exhausted in dealing with the Petitioner s circumstance and although the Petitioner continues to meet the definition of disordered sex offender, the placement of Petitioner in the programs administered by Respondent is not only inappropriate but is counterproductive. On the question of alternative placement, Pomeroy is of the persuasion that an institutional setting such as the prison system would allow the Petitioner to "get along about the same as here," meaning the Florida State Hospital. Connie Smith, a social worker who dealt with the Petitioner between January, 1981, and April, 1981, found his participation in group therapy, out of twenty (20) sessions, to be one of seven (7) appearances, within which he only stayed fifteen (15) minutes on two (2) occasions. Then he attended, he sat away from the group and offered no active participation. (At the time that he was attending the sessions, the Petitioner knew that a decision had been made on exhaustion of treatment and he expressed the desire to leave the hospital setting.) Staff psychiatrist, Dr. M. M. Estes, in the course of his testimony, concurred with the diagnostic impression of antisocial personality disorder, severe. He finds that the Petitioner gets along well with other persons as long as he is having his way. He finds that the Petitioner is intolerant of any regimented style of life, such as the hospital setting. In speaking to the issue of the use of Mellaril, the amount of 600 mgs. is a high amount and through the process of the De utilization of that substance, over the years, the patient now suffers from a side effect known as tardive dyskinesia. This condition and its appearance is close to that of Huntingtons-Cohrea. In this patient, the condition has manifested itself as an involuntary movement of the tongue and other muscles. Peavy has been advised not to use this medication as a mild palliative, this advice coming from Dr. Estes. As stated before, attempts have been made to have Peavy withdraw from the use of this medication, but when this has been attempted, Peavy has threatened violance in the sense of indicating his willingness to "tear up the place." Nonetheless, Dr. Estes is of the persuasion that the Petitioner's neurological condition as described will continue to get worse if he persists in the use of the psychotropic medication. Dr. Estes' observations established that the patient has the mental capacity to recognize what he is doing and he is found to be in touch with reality and in touch with time and knowledgeable of right and wrong, in the theoretical sense. Nevertheless, the Petitioner has never had to suffer the consequences of his criminal acts and remains unconvinced of those consequences. According to Dr. Estes and as established through his testimony, the patient is not benefiting from the sex offender program of the Department of Health and Rehabilitative Services and there is no real likelihood of improving in his condition through involvement in that program. Moreover, continued participation will only hinder the patient. Dr. Estes identified the fact that drug dependence does not impair the ability to make progress in the program, but the nature of the underlying diagnosis of antisocial personality is one which calls for external control and the need to learn conformity and the fact that the conformity is not threatening. The patient has not achieved those improvements in that he becomes frustrated and exasperated easily, as established by Dr. Estes. At this time, there is no sign of organic degeneration in the patient as a result of substance abuse, but that potential exists, per Dr. Estes. The report of Dr. Paul Deitchman, dated December 1980, was also admitted. Dr. Deitchman is a clinical psychologist, who examined the Petitioner upon request of Petitioner's counsel. In his report, Dr. Deitchman is supportive of the position of the Respondent on the question of returning the Petitioner to court for reason of exhaustion of treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Charles Peavy, and that said Charles Peavy be returned to the committing court for further disposition. DONE and ENTERED this 28th day of September, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1981. COPIES FURNISHED: Ken Driggs, Esquire Assistant Public Defender Post Office Box 671 Tallahassee, Florida 32302 Ted Mack, Esquire Florida State Hospital Chattahoochee, Florida 32324 William Ploss, Esquire Assistant Public Defender 1351 Northwest 12th Street Miami, Florida 33125
Findings Of Fact At all times relevant hereto Respondent was licensed as a licensed practical nursing in Florida and was employed at the Lake Wales Convalescent Center. On the evening of December 29, 1983, Respondent was called into patient Allen's room by the nurses aide because Allen had refused to get into his pajamas as requested and was verbally abusing the aide. Respondent approached Allen, who began swearing at her, whereupon Respondent rolled up a towel and struck Allen several times on the left arm causing some bleeding and bruises which were visible to another witness two days later. Respondent does not deny striking Allen with the towel but contends Allen picked up a pitcher and called her a nigger before she picked up the towel. Respondent denies any intent to hurt the patient and testified she has worked as a licensed practical nurse for 15 years and has never before struck a patient. Allen is senile, often verbally abusive, but has never been violent while a patient at Lake Wales Convalescent Center. He does not bruise as easily as do many elderly patients. It is below the minimal standards of acceptable and prevailing nursing practice to strike a patient and, especially, a senile patient who is not violent.
