The Issue The issues to be determined are whether Respondent overprescribed controlled substances and failed to maintain legible medical records as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, through its Board of Osteopathic Medicine, is the state agency charged with regulating the practice of osteopathic medicine in the state of Florida, pursuant to section 20.43, and chapters 456 and 459, Florida Statutes. At all times material to this proceeding, Richard D. Vitalis was a licensed osteopathic physician in the state of Florida, holding license number OS 4823. Respondent’s current address of record is 3774 China Grove Mews Lane, Fairfax, Virginia 22025. At all times material to the Administrative Complaint, Respondent was practicing as an osteopathic physician at All Family Medical in North Lauderdale, Florida, a licensed pain management clinic. On or about January 27, 2011, L.N., a 29-year-old female, and a resident of Biloxi, Mississippi, presented to Respondent at his Fort Lauderdale office with complaints of back pain. Between January 27, 2011, and August 3, 2011, L.N. presented to Respondent on seven occasions. L.N. indicated that she had previously been prescribed oxycodone 15 mg, oxycodone 30 mg, and Xanax 2 mg. She also indicated that she was dependent on her prescriptions, that she needed them every few hours, that she expected to need them the rest of her life, and that they were not helping resolve her medical problems. L.N. underwent a magnetic resonance imaging (MRI) study on January 27, 2011. The MRI diagnostic images showed that L.N.’s spine had no evidence of pathological disease. There was a normal alignment of the vertebral bodies without evidence of compression or spondylolisthesis. There was normal signal throughout the vertebral bodies and within the visualized spinal cord. There was no significant disc disease, evidence of spinal stenosis, or exiting nerve root impingement at L1-2, L2-3, L3-4, or L5-S1. Although the MRI depicted some annular disc bulging at L4-5, there was no spinal stenosis or neural foraminal stenosis. There was no pathology shown on the MRI, and it was, in general, “a normal MRI.” As such, the MRI would not provide support for a conclusion that L.N. would have been in pain. There were no diagnostic images in L.N.’s file to contravene the medical conditions shown in the MRI. The only evidence of anything requiring treatment was L.N.’s complaint of low back pain. Such a complaint would call for muscle relaxers, physical therapy, hot/cold packs, or ultrasound, rather than narcotic pain medications. There was no evidence in the medical records that L.N. exhibited signs of nerve root impingement with pain radiating down the leg. The records did not demonstrate that Respondent performed a comprehensive medical examination of L.N., or that Respondent performed any type of objective testing of L.N., including straight leg raises, checking for deep tendon reflexes, or palpation of the area of concern for spasms. The records did not contain an adequate medical history of L.N., including height, weight, temperature, pulse, respiration, blood pressure, age, date of birth, and medication lists, nor did they contain an assessment of L.N.’s chief complaint or plan of treatment. The intake from L.N.’s first visit to Respondent indicated that she was taking opioids and benzodiazepines, though there was no evidence of prescriptions or prescribing physicians for those substances. The records did not demonstrate that Respondent obtained records of prior treating physicians, nor was there any evidence of an effort to do so. The records do not demonstrate that Respondent consulted with any other physician which, in the case of treatment resulting from an MRI review, would fail to meet the standard of care. The records do not demonstrate that Respondent recommended alternative interventions for L.N.’s pain complaints, including physical therapy, which would have been appropriate, and within the standard of care given the normal MRI results. The only alternatives noted were “heat” and “massage” on January 27, 2011, and “heat” on June 23, 2011. Although it is possible that other alternative interventions were recommended, the illegibility of the intake forms prevents such a finding. The failure to recommend alternative interventions was a failure to meet the standard of care. On L.N.’s first visit to Respondent on January 27, 2011, a urine drug screen was performed. The drug screen tested positive for opioids and benzodiazepines. Subsequent to that first visit, Respondent performed no other drug tests. Such tests can confirm that the patient is taking prescribed medications, and not diverting them, and that the patient is not taking other non-prescribed medications. It is the medical standard of care to perform follow-up drug tests of patients when prescribing high doses of controlled substances, including opioids. The failure to closely monitor L.N. when prescribing high doses of opioids and benzodiazepines was a failure of the standard of care. Respondent did not communicate with L.N.’s pharmacy to ensure that she was not getting prescribed medicines from other doctors. Such information was, in 2010 and 2011, available from pharmacies. It was, during that period, the medical standard of care to communicate with the dispensing pharmacy. Respondent failed to meet that standard of care. There was no evidence to the contrary. Despite the fact that L.N. presented to Respondent with a stated history of opioid use and a positive drug screen, Respondent did not record L.N.’s medication history for the period up to her first visit with Respondent. The failure to take a medication history to substantiate the need and justification for the prescription of high-dose opioids is contrary to the 2010-2011 medical standard of care. Oxycodone was, during the relevant period, a Schedule II controlled substance with a high potential for abuse, and an accepted but severely restricted medical use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. § 893.03(2), Fla. Stat. Roxicodone is a brand name for oxycodone hydrochloride. It is a short-acting opioid that is rapidly absorbed. Short- acting opioids have a greater potential for abuse. Furthermore, prescription of short-acting opioids, such as Roxicodone, would not be within the standard of care for long-term, chronic pain such as that described by L.N. Xanax is the brand name for alprazolam and is prescribed to treat anxiety. Alprazolam was, during the relevant period, a Schedule IV controlled substance, with a low potential for abuse, and an accepted medical use in treatment in the United States. Abuse of alprazolam may lead to limited physical or psychological dependence. § 893.03(4), Fla. Stat. At L.N.’s initial January 27, 2011, visit, Respondent prescribed medications including 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. The prescribed doses and amounts were consistent with L.N.’s self-reported medications that she was then taking, presumably prescribed by “Dr. Sanchez” in Biloxi. Respondent’s plan of treatment listed the medications L.N. requested and recommended follow-up in one month. The records contain no individualized treatment plan. Respondent’s examination notes are entirely illegible. Respondent’s records lack copies of prescriptions issued to L.N. on January 27, 2011. A patient agreement and informed consent form was included in L.N.’s patient file, but was not signed by L.N. L.N. next presented to Respondent with complaints of chronic lower back pain on February 22, 2011. The intake form is largely illegible, though “overall feels well” is discernable. At that visit, Respondent prescribed 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment was medication refill and follow-up in one month. Again, there was no individualized treatment plan, and the examination notes were largely illegible. L.N. presented to Respondent with further complaints of chronic lower back pain on March 22, 2011. The intake form is largely illegible, though “overall feels well” is discernable. Respondent again prescribed 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment was medication refill and follow-up in one month. Again, there was no individualized treatment plan, and the examination notes were illegible. L.N. presented to Respondent on April 21, 2011. The intake form is largely illegible, though “overall feels well” is discernable. Respondent renewed L.N.’s previous prescriptions. L.N. next presented to Respondent with complaints of chronic lower back pain on May 19, 2011. The intake form is entirely illegible. Respondent prescribed 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment was medication refill and follow-up in an illegible timeframe. There was no individualized treatment plan. Respondent’s examination notes were illegible and minimal. On June 23, 2011, L.N. presented to Respondent. The intake form, though largely illegible, appears to state that “pt feels good pain solved with meds.” The treatment prescribed by Respondent apparently having the desired effect, Respondent renewed L.N.’s prescription for 210 tablets of Roxicodone Oral 30 mg (though in two separate prescriptions for 180 tablets and 30 tablets, respectively), 120 tablets of Roxicodone Oral 15 mg, and 60 tablets of Xanax Oral 2 mg. The prescription originally called for 150 tablets of Xanax, but Respondent struck 90 of those. Respondent’s plan of treatment was medication refill and follow-up at the next appointment on July 23, 2011. A monthly medication dosage evaluation was completed for the June visit, as was a pain management treatment plan medical record. Those records provided little individualized information regarding L.N.’s plan of care. The pain management treatment plan form indicated that drug testing was completed; however, there were no results. L.N.’s final visit to Respondent occurred on August 3, 2011. She indicated, in what appears to be her handwriting, that she had used a “hot bath,” “heat,” and “some exercise.” Her treatment objective continued to be “complete resolution of pain with medication.” At that visit, Respondent prescribed 150 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 60 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment included only a list of medications. The pain management treatment plan form indicated that drug testing was completed; however, there were no results. Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent failed to practice medicine with that level of care, skill, and treatment recognized in general law as being acceptable under similar conditions and circumstances in his treatment of L.N. Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent prescribed excessive and unnecessary amounts of Roxicodone and Xanax without a justifiable basis to do so, especially since the January 27, 2011, MRI report did not support a determination that L.N. was experiencing back pain so as to justify Respondent’s course of opioid treatment for L.N. Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent failed to create and maintain adequate and legible records supporting the course of treatment for L.N., or records documenting performance of a comprehensive physical examination of L.N. proportionate to her diagnoses. Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent failed to adequately monitor L.N.’s use of opioid therapies. The findings set forth herein are the result of Dr. Porcase’s undisputed expert testimony regarding the standard of care as it existed in 2010-2011, as well as the undersigned’s independent review of the record. Whether Respondent could have produced evidence to support his treatment of L.N. will remain a mystery, since Respondent essentially abandoned this proceeding. Despite challenging the Department’s Administrative Complaint, Respondent minimally and incompletely responded to written discovery, failed to meaningfully participate in Dr. Porcase’s deposition, twice refused to appear for his own deposition, despite personal service of the notice, and failed to make an appearance at the final hearing. In the absence of any testimony or evidence to counter that of the Department, the evidence presented by the Department, including the testimony of Dr. Porcase, was clear and convincing as to the matters set forth herein. Despite Respondent’s failure to actively contest the allegations in the Administrative Complaint, it must be recognized that the allegations concern a single patient over a total period of scarcely more than 6 months. There was no pattern of misconduct. Furthermore, Dr. Porcase acknowledged that the practices regarding the prescription of opioids in 2010-2011 were far different from those that exist today. Rather, “there was no standards that you were -- individualized your treatment to the pathology on imaging studies and patient’s complaints and their ability to function on medicine.” As to a doctor’s actions to rule out a patient’s drug-seeking behavior, he testified that “[i]t would be the individual physician having to make that determination based on his experience and diagnostic testing . . . and physical exam.” While the undersigned believes and gives weight to Dr. Porcase’s opinions regarding the standard of care, his testimony is equally compelling that the standard was not as clear-cut in 2010-2011 as it is in 2018. Though not affecting the ultimate findings regarding violations of law, it does affect the nature of the penalty that is warranted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, enter a final order: determining that Respondent violated sections 459.015(1)(x), 459.015(1)(t), and 459.015(1)(o); imposing an administrative fine of $2,000; issuing a letter of reprimand against Respondent’s license to practice osteopathic medicine; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 15th day of May, 2018. COPIES FURNISHED: Ann L. Prescott, Esquire Philip Aaron Crawford, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Richard D. Vitalis, D.O. 230 Caddie Court DeBary, Florida 32713 Richard D. Vitalis, D.O. 3774 China Grove Mews Lane Fairfax, Virginia 22025 Kama Monroe, Executive Director Board of Osteopathic Medicine Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed)
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
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaints filed by the Department of Health, Board of Medicine (Petitioner), against Lehel Kadosa, (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the State of Florida agency responsible for regulating the practice of medicine pursuant to Section 20.43, and Chapters 456 and 458, Florida Statutes (2001- 2004). At all times material to this case, the Respondent was a Florida-licensed physician, holding license number ME 41277. The Respondent's address of record is 7208 North Sterling Avenue, Tampa, Florida 33614-4051. The Respondent is certified in occupational health by the American College of Occupational and Environmental Medicine. The Respondent is also certified in pain management by the American Academy of Pain Management, an organization not recognized by the American Board of Medical Specialties or the Department of Health, Board of Medicine. At the hearing, the Petitioner presented the expert testimony of Kevin Chaitoff, M.D., on issues related to the relevant applicable standards of care. Dr. Chaitoff's persuasive testimony is credited without exception. According to the testimony of Dr. Chaitoff, informed consent requires that a physician sufficiently educate a patient as to the risks, benefits, and alternatives to a proposed treatment to allow a patient to consider the information prior to signing an "informed consent" form. The patients appearing in the hearing testified that they were not provided with such information; accordingly, in each instance where a procedure was performed on a testifying patient, no informed consent was obtained. According to the testimony of Dr. Chaitoff, sacroiliac injections and facet joint injections require use of fluoroscopy to assure proper location of the needle for delivery of the injected medication. Use of a fluoroscope can ensure proper placement of the injection, enhance efficacy, and minimize potential complications. Although the Respondent submitted billing claims indicating that he performed fluoroscopic imaging when administering injections, the evidence clearly establishes that he performed all injections referenced herein without fluoroscopy. The Board of Medicine has established through administrative rule, standards of practice for treatment of pain. Dr Chaitoff testified without contradiction, that he is familiar with the rule, and that the Respondent failed to meet the requirements of the rule specifically as to patients identified herein as B.T., S.H., F.T., H.Y., T.W., and O.G. The Petitioner also presented the testimony of Jean Acevedo, an expert in medical coding and billing procedures. Ms. Acevedo's testimony was persuasive and is credited without exception. Medicaid payments are calculated pursuant to "CPT Evaluation and Management" procedure codes. "Upcoding" is the practice of billing for services of a higher complexity than those actually provided to a patient. "Unbundling" is the practice of billing separately for the individual components of a comprehensive service normally billed as a single code. Upcoding and unbundling can result in payments to providers at higher levels than justified by the actual services delivered to the patients. Ms. Acevedo testified that based on her review of the records, the Respondent submitted billing codes consistent with the practices of upcoding and unbundling. Some codes utilized by the Respondent in billing Medicaid were incorrect and indicated greater levels of services than those actually provided to the patient. The Respondent unbundled injection- related charges and billed separately for injections and supplies. Rather than billing for performing injections without imaging, the Respondent billed for performing injections using fluoroscopy. The medical records lack documentation sufficient to support the billing codes submitted. The Respondent testified that he relied upon a billing service to utilize the correct billing codes, and that the submission of inappropriate billing codes was the fault of the billing service. The owner of the billing service testified that the codes on the "superbill" forms were selected by the Respondent, and that the Respondent provided the superbills to the billing service after they were completed. She further testified that if a superbill was submitted without codes, the form was returned to the Respondent for completion. The contract between the billing service and the Respondent provided that the Respondent was responsible for providing accurate information on the superbills. Further, the physician is responsible for certifying that the submitted claims are correct. The evidence establishes that the billing service owner contacted the Respondent at one time to question his use of the code indicating injection with fluoroscopy, and the Respondent indicated that he was aware that use of imaging equipment was required to support the submitted code. The testimony of the billing service owner is supported by the evidence and is credited without exception. DOAH Case No. 05-0862PL DOH Case No. 2002-14854 On April 5, 2002, B.T., a 41-year-old female, presented to the Respondent for treatment of pain related to a history of motor vehicle accidents and an injury from falling. B.T. brought various medical records, including an MRI and related report, to the Respondent's office. According to the records, B.T. had a left lumbar hemilaminectomy at L5/S1 in 1993, and a cervical laminectomy with fusion in 2001. B.T. also suffered from a history of depression. On B.T.'s first visit to the office, Respondent performed an examination without an assistant present in the examining room. The patient's vital signs were not taken. During the examination, the Respondent touched the patient's spinal area in what she described as a "rough manner," which caused significant pain. The Respondent further manipulated the patient's neck without warning, at which time the patient began to cry from the pain. After having the patient lay on her back, he lifted her legs without warning, which caused additional pain. The Respondent then instructed the patient to lie on her stomach at which time without warning he injected her back with an unidentified substance. At the time of the injection, the Respondent was not wearing gloves, did not swab the injection site with alcohol, did not mark the injection site with a surgical pen, and did not use a fluoroscope to guide the injections. Prior to the injections, the Respondent failed to discuss the procedure or discuss the risks and benefits of any treatment. The patient did not provide informed consent specifically related to the injections prior to the Respondent's administration of the medications. The patient asked the contents of the injection, but the Respondent did not provide the information, other than to state that the injection would ease the pain. The medical records indicate that the injection contained Xylocaine and triamcinolone acetate. On the same date, the Respondent ordered a complete set of cervical, thoracic, lumbosacral, and pelvic X-rays, and prescribed Soma and Vicodin to the patient. Vicodin contains hydrocodone, a Schedule II controlled substance under Florida law. A Schedule II drug has a high potential for abuse and an accepted, severely restricted, medical use. According to the applicable statute, abuse of the substance may lead to severe psychological or physical dependence. Soma contains carisoprodol, a Schedule IV controlled substance under Florida law. According to the applicable statute, a Schedule IV drug has a relatively low potential for abuse, but abuse can lead to limited psychological or physical dependence. B.T. remained in pain during the week subsequent to her treatment by the Respondent. A lump developed at the injection site that was painful, hot, and swollen. On April 15, 2002, B.T. again returned to the Respondent's office. Although a follow-up visit had been scheduled for April 19, B.T. sought treatment earlier because her pain was significant. During the visit, the Respondent indicated that her reaction to the injection was highly unusual and rare in his practice. He referred the patient for physical therapy, and, although the patient resided in St. Petersburg, the Respondent directed her to see a Tampa facility across the street from his office. The patient questioned the value of therapy. During the conversation, the Respondent reviewed her medical records, and asked about previous neck surgery in a manner that, to the patient, indicated that the Respondent had not reviewed the medical history prior to initiating treatment. B.T. continued to question the treatment plan, including the injection that she found to be ineffective at addressing her pain. The Respondent continued to assert that the injections were beneficial to his patients, and thereafter administered an injection of an unidentified substance into her neck. At the time of the injection, the Respondent was not wearing gloves, did not swab the injection site with alcohol, did not mark the injection site with a surgical pen, and did not use a fluoroscope to guide the injections. He failed to discuss the procedure or discuss the risks and benefits of the treatment. The patient did not provide informed consent specifically related to the injections prior to the Respondent's administration of the medications. The medical records indicate that the injection again contained Xylocaine and triamcinolone acetate. The Respondent again ordered a complete set of cervical, thoracic, lumbosacral, and pelvic X-rays, and prescribed OxyContin to the patient. OxyContin contains oxycodone, a Schedule II controlled substance under Florida law. A Schedule II drug has a high potential for abuse and an accepted, severely restricted, medical use. According to the applicable statute, abuse of the substance may lead to severe psychological or physical dependence. As with the first injection, swollen painful lumps developed at the injection site. On April 22, 2002, the patient returned to the Respondent's office for follow-up care, and brought various radiographic studies for the Respondent to review. During the review, the Respondent again asked about the previous neck surgery, in a manner that, to the patient, suggested a lack of awareness on the Respondent's part, notwithstanding their previous discussion and the medical history she provided upon initially seeking treatment. During the April 22 visit, the Respondent again administered injections in the mid-back and "tailbone" area. The patient testified that she felt the needle scraping against bone. The contents of the injections were not disclosed. The Respondent did not wear gloves, did not mark the injection site with a surgical pen, and did not use a fluoroscope to guide the injections. The medical records indicate that the injection again contained Xylocaine and triamcinolone acetate. A nerve conduction test was ordered on April 22 and was performed in the Respondent's office on May 1, 2002. The patient returned for follow-up care on May 6, 2002, and advised the Respondent that her pain had worsened since he began treating her, an opinion with which the Respondent disagreed. He observed that she had reported headaches (an ailment that had been previously reported to the Respondent) and thereafter injected a substance into her temple and into her shoulder. The patient testified that she again felt the needle scraping against bone. The medical records indicate that the injection contained Xylocaine and triamcinolone acetate. Upon leaving the Respondent's examination room, the patient was in pain of such significance that she had difficulty walking and requested the assistance of a male companion who had accompanied her to the Respondent's office and was waiting outside. When her companion responded to assist her, the Respondent engaged in a verbal altercation initially with the companion, and then with both the patient and the companion, in the presence of other patients. The Respondent subsequently called the patient and threatened to discontinue treatment, but relented when the patient agreed not to bring the companion back into the Respondent's office again. The patient had little option but to comply with the Respondent's directive because he was the only authorized Medicaid-approved pain management physician in the area from whom she could seek treatment. On May 13, 2002, the patient returned to the Respondent's office for follow-up care at which time she was informed that an additional nerve conduction test was required and that the process would take four hours to complete. The patient asked to reschedule the test because she did not have sufficient time to complete the test on that date, at which point the Respondent refused to refill the patient's medications. Another verbal altercation erupted between the Respondent and the patient, and the Respondent called law enforcement officials to remove the patient (and her companion who was waiting outside the office) from the Respondent's property. The altercation occurred in the presence of other patients. The treatment plan implemented by the Respondent was ineffective and inappropriate based on the information presented. The Respondent diagnosed the patient with lumbago, lumbar spondylosis, sacroiliac arthropathy, ligamentous and tendon instability, facet syndrome, greater occipital neuralgia, and sprain strain. A more appropriate diagnosis based on the MRI studies would have been L4/L5 disk herniation and L2-L4 annular disk tears, and treatment consistent with the patient's symptoms, history, and radiological studies would have included epidural steroid injections, transformational injections, intradiscal procedure, and physical therapy. According to the testimony of Dr. Chaitoff, the treatment provided by the Respondent to B.T. was below the applicable standard of care in that the Respondent: failed to obtain or document informed consent prior to administering injections; failed to discontinue injections when they did not provide the expected pain relief; prescribed medications that could have contributed to an adverse effect, including inflammation at the injection sites; ignored the adverse impacts apparent at the injection sites; failed to document the effectiveness of the treatment plan; ordered and/or performed unnecessary radiographic studies; failed to document and explain the rationale for the pharmacological content of the injections; failed to address the lack of efficacy of the treatment plan; failed, when his treatment plan was unsuccessful, to refer the patient to a pain management specialist skilled in use of fluoroscopy and in performing epidural injections, transformational injections, and intradiscal procedures; and acted unprofessionally towards B.T. by failing to respond to questions and engaging in conflicts in the presence of other patients. Some of the codes utilized by the Respondent in billing Medicaid for the services provided to B.T. were incorrect and indicated greater levels of services than those actually provided to the patient, resulting in payments at a higher rate than justified by the services the patient received. The Respondent also billed for performing injections using fluoroscopy, when he did not use fluoroscopy. DOH Case No. 2002-19119 On April 24, 2002, S.H., a 41-year-old female, presented to the Respondent for treatment of pain related to a 1992 work accident and 1995 cervical surgery. According to medical records, S.H. complained of neck and back pain, and headaches, and had sought prior treatment from other physicians. Her medication intake was identified as Lortab, Klonopin, Flexeril, Albuterol, Arthrotec, and Pepcid AC. Her social history indicated that her father was alcoholic and that a brother had committed suicide by shooting himself. Her past medical history referenced depression without further information. The records indicate that beginning on April 24, 2002, and on five additional office visits ending on July 17, 2002, the Respondent administered injections without fluoroscopy to S.H. There is no documentation of informed consent by the patient. On April 24, 2002, the Respondent prescribed Lortab and Soma to the patient. Lortab contains hydrocodone, a Schedule II controlled substance under Florida law. A Schedule II drug has a high potential for abuse and an accepted, severely restricted, medical use. According to the applicable statute, abuse of the substance may lead to severe psychological or physical dependence. Soma contains carisoprodol, a Schedule IV controlled substance under Florida law. According to the applicable statute, a Schedule IV drug has a relatively low potential for abuse, but abuse can lead to limited psychological or physical dependence. The treatment provided to the patient by the Respondent was ineffective. By the last visit on July 17, the records indicate that the patient complained that her pain had increased by 80-90 percent since beginning treatment. The medical records fail to indicate that the Respondent reviewed the patient's previous medical treatment or records. Other than a musculoskeletal examination, the records do not document any further medical review. The medical records fail to indicate that the Respondent considered the patient's history of depression or other social factors prior to prescribing controlled substances to S.H. S.H. died in October 2004 of a drug overdose. According to the autopsy report, the death was identified as a suicide due to a multiple drug overdose. The results of a drug screen indicated the presence of numerous substances, including carisoprodol and oxycodone. According to the testimony of Dr. Chaitoff, the treatment provided by the Respondent to S.H. was below the applicable standard of care in that the Respondent: failed to review past medical history or to document an appropriate physical examination; failed to document the effectiveness of the treatment plan; failed to obtain or document informed consent prior to administering injections; continued to perform injections without fluoroscopy when the treatment failed to provide the expected pain relief; and failed to consider the patient's social history prior to prescribing controlled substances. The Respondent billed Medicaid for services not provided to S.H., specifically using codes indicating that he performed injections with fluoroscopy. Additionally the evidence establishes that he "upcoded" by billing with codes that reflected a more extensive medical evaluation than was actually performed. DOH Case No. 2002-22078 In August 2002, an adult male identified as T.V. (also known as T.S.) presented to the Respondent for treatment of pain after being referred by a previous pain management specialist. Prior to being called in to meet with the Respondent, T.V. sat in the waiting room. A large dog wandered around the reception area. T.V. observed the Respondent entering the waiting room to call for various other patients. T.V. testified that on each observation, he observed the Respondent wearing stained gloves. When the Respondent called T.V. from the waiting room, the patient observed the Respondent wearing the same stained gloves. T.V. was not taken into an examination room, but instead was escorted into a room he described as an office, wherein T.V. observed the Respondent drinking coffee and handling paperwork while wearing the same stained gloves. The Respondent performed a minimal examination on T.V., during which the Respondent, wearing the same gloves, touched T.V. No vital signs were taken. The Respondent did not review the medical history information with T.V. The Respondent discussed giving injections to T.V., but did not identify the contents of the injections. T.V., concerned about the gloves and potential contamination issues, declined the injections, and left the office. T.V. did not return to the Respondent for treatment. DOH Case No. 2003-04569 In early February 2003, P.R., a 45-year-old female, presented to the Respondent for treatment of pain, including migraine headaches, and neck and back pain. She arrived at the Respondent's office with radiological studies for the Respondent to review. Prior to seeing the Respondent for examination, a nurse called P.R. from the waiting area and a series of X-rays were completed. When the Respondent met with P.R., he performed no physical examination. There is no documentation that the Respondent reviewed the radiological studies brought by the patient or the X-rays taken in the Respondent's office. The Respondent apparently told P.R. that he did not believe her assertions of pain and directed her to leave his office. The Respondent billed the payor for a detailed and complex medical examination; however, the medical records fail to reflect that such an examination occurred, and the billing appears to be an instance of upcoding. DOH Case No. 2004-24823 From December 2003 through May 2004, the Respondent treated F.T., a 42-year-old female, for pain. At various times, F.T. has been diagnosed with lumbago, sciatica, lumbar spondylosis with myelopathy, and lumbar instability. According to medical records, on December 29, 2003, the Respondent administered injections of Xylocaine, Marcaine, triamcinolone acetate, and "Proliferative Solution" to F.T. There is no record of a physical examination. The patient's vital signs were not taken. There was no discussion of potential risks attendant to the injections. The Respondent did not use a fluoroscope and did not mark the injection sites with a surgical pen. According to medical records, on January 26, February 5, and February 18, 2004, the Respondent administered injections of Xylocaine, Marcaine, and "Proliferative Solution" to F.T. There is no record of any physical examination being performed. The Respondent did not use a fluoroscope in administering the injections and did not mark the injection sites with a surgical pen. No discussion of any potential risks attendant to the injections occurred on any visit. Also on February 18, 2004, the Respondent prescribed Lortab and oxycodone to F.T. He provided a script for 120 tablets of Lortab (10/500 mg) and 480 tablets of oxycodone (5 mg) to the patient. Lortab contains hydrocodone. Both hydrocodone and oxycodone are Schedule II controlled substances under Florida law. A Schedule II drug has a high potential for abuse and an accepted, severely restricted, medical use. According to the applicable statute, abuse of the substance may lead to severe psychological or physical dependence. Although the records indicate that F.T. kept an appointment with the Respondent on March 9, 2004, there is no record of any examination or treatment provided on this date. On March 18, 2004, F.T. arrived at the Respondent's office to find it essentially empty of patients and most employees. The patient testified that she was advised by a physical therapist that the Respondent had fired the employees and had left the office. The medical records indicate that on that date, the patient's prescriptions were renewed in the same quantities as on February 18, 2004. The medical record contains a stamped identification of "Dr. Alan T. Braunstein, M.D." A handwritten note on the medical record indicates that a reduction in medication was being considered. The patient testified that on the evening of March 18, 2004, the Respondent contacted her and offered her employment in his office. On March 19, 2004, F.T. arrived for work and met another new employee named "Heidi." F.T. handled front desk duties at the Respondent's office, including verifying insurance coverage and accepting co-payments from patients. F.T. continued to see Respondent for pain treatment while working in his office. She continued to receive injections from the Respondent. There are no records of physical examination related to these visits. According to the medical record, pain relief was inconsistent indicating that the treatment was not successful. She received additional pain medication prescriptions while employed by the Respondent; however, she testified that she did not take the medication at work and was not affected by medication while at work. On April 5, 2004, the patient received a prescription for another 120 tablets of Lortab (10/500 mg), apparently from Dr. Braunstein. On April 16, 2004, the patient received a prescription for 120 tablets of OxyContin (20 mg). OxyContin contains oxycodone, a Schedule II controlled substance under Florida law. A Schedule II drug has a high potential for abuse and an accepted, severely restricted, medical use. According to the applicable statute, abuse of the substance may lead to severe psychological or physical dependence. On April 27, 2004, the patient received a prescription for 90 tablets of OxyContin (40 mg). On May 11, 2004, the Respondent administered injections of Xylocaine, Marcaine, and Proliferative Solution to F.T. An employee named Kelly Cusick prepared the injections. Ms. Cusick testified at the hearing that she was a licensed X-ray technician who was employed by the Respondent for a few months. Although she had no relevant training, she acknowledged that she prepared syringes for injection pursuant to the Respondent's direction. The injections administered by the Respondent to F.T. on May 11, 2004, resulted in pain and swelling at the injection site on F.T.'s back. On May 12, she called the Respondent about the pain. She testified that she was advised to apply ice and take her medications. By May 13, 2004, the swelling had increased substantially and she went to the Respondent's office. She was taken into the examination room where other employees were present. The Respondent instructed F.T. to get onto an examining table, she complied, and then the Respondent pulled down her pants exposing her buttocks. He manipulated the swollen area and caused additional pain, causing F.T. to begin crying. During the time F.T. was on the examination table with other employees present, the Respondent made derogatory remarks about the patient's weight, and slapped her bare buttock. Before F.T. left the office, the Respondent provided F.T. with a prescription for 120 tablets of Lortab (10/500 mg) and 30 Oxy-IR (5 mg). Oxy-IR contains oxycodone, a Schedule II controlled substance under Florida law. A Schedule II drug has a high potential for abuse and an accepted, severely restricted, medical use. According to the applicable statute, abuse of the substance may lead to severe psychological or physical dependence. F.T. stopped working for the Respondent on May 17, 2004. The medical records fail to justify the diagnoses and treatments provided to F.T. Additionally, the records fail to justify the quantity of pain medication prescribed to the patient. According to the testimony of Dr. Chaitoff, the treatment provided by the Respondent to F.T. was below the applicable standard of care in that the Respondent: failed to perform an adequate physical examination of the patient; failed to substantiate his diagnosis on the records; failed to obtain informed consent for the injections; continued to perform injections without fluoroscopy when the treatment failed to provide the expected pain relief and resulted in negative side effects; failed to document the effectiveness of the treatment plan, including injections and medications; failed to moderate the quantity of controlled substances being prescribed; and failed to act professionally towards F.T. as his patient. None of the injections administered to F.T. were performed using fluoroscopy; however, the Respondent "upcoded" the procedure and submitted billing codes for injections with fluoroscopy. DOH Case No. 2004-28040 Patient H.Y. On April 2, 2004, H.Y., a 47-year-old male, presented to the Respondent for treatment of pain related to auto accidents in 1992 and 2002. According to the medical records, H.Y. complained of pain in his right knee and hand, neck, lower back, and legs. The patient's current medications were listed as Percocet, MS Contin, Xanax, Neurontin, and Valium. He had high blood pressure and was taking Metaprolo [sic] (100 mg) four times daily. He reported a history of anxiety, depression, and insomnia. The Respondent completed a spinal and neurological evaluation, and diagnosed the patient with pain, facet joint syndrome, post-laminectomy syndrome, lumbosacral instability, sacroilitis [sic], TM-joint arthalgia [sic], unspecified anxiety, and depression. The Respondent treated the patient by prescribing 270 tablets of Methadone (10 mg) and 120 tablets of Xanax (1 mg). Methadone is a Schedule II controlled substance under Florida law. A Schedule II drug has a high potential for abuse and an accepted, severely restricted, medical use. According to the applicable statute, abuse of the substance may lead to severe psychological or physical dependence. Xanax contains alprazolam, a Schedule IV controlled substance under Florida law. According to the applicable statute, a Schedule IV drug has a relatively low potential for abuse, but abuse can lead to limited psychological or physical dependence. The medical records contain a note from the Respondent that he had warned the patient to use the medication under supervision; however, nothing in the patient's files indicates any acknowledgement or understanding of the warning by the patient. Methadone can cause electro-physiological changes and can result in dysrhythmia. The Respondent did not perform a baseline EKG prior to prescribing the Methadone. There is no credible evidence that the Respondent exercised appropriate caution, considering the medication usage identified by H.Y., in prescribing Methadone and in issuing an additional Xanax prescription to the patient. There is no evidence that the Respondent reviewed prior medical or pharmacy records related to the patient. The Respondent did not order that a drug screen be performed. The records contain no evidence of a narcotics agreement between the patient and the Respondent. The quantities of medication prescribed by the Respondent to H.Y. were excessive. Beyond the warning noted in the records, there is no credible evidence that the Respondent exercised appropriate diligence in prescribing medication to the patient. On April 5, 2004, H.Y. was found dead at the home he shared with his mother. According to the medical examiner's report, the cause of death was accidental intoxication by the combined effects of Methadone and alprazolam. According to a police report, prescription containers were located for both drugs indicating a fill date of April 2, 2004. Only 215 of the 270 Methadone tablets prescribed by the Respondent remained. Only 73 of the 120 Xanax tablets prescribed by the Respondent remained. According to the testimony of Dr. Chaitoff, the treatment provided by the Respondent to H.Y. was below the applicable standard of care in that the Respondent: failed to perform a physical examination; failed to substantiate the diagnosis; failed to obtain or review prior medical and pharmacy records; failed to utilize a narcotics agreement; failed to appropriately moderate the controlled substances prescribed; and failed to maintain accurate and complete medical records. Patient T.W. On April 30, 2004, T.W., a 43-year-old male, presented to the Respondent for treatment of pain in his jaw and back, and headaches. According to the medical records, the patient's current medications included Percocet, Lortab, OxyContin, MS Contin, and Methadone. A history of asthma, high blood pressure, rheumatoid arthritis, and hepatitis C were noted in the records. The Respondent completed a spinal and neurological evaluation, and diagnosed the patient with pain, facet joint syndrome, herniated disc with reticulates, lumbosacral instability, paresthesia, sacrum pain, chronic pain syndrome, neuralgia, migraine headaches, TM-joint arthalgia [sic], muscle spasm, and myofascitis. The Respondent treated the patient by prescribing 60 tablets of Valium (10 mg), 120 tablets of Methadone (10 mg), and 90 tablets of Percocet (7.5/500 mg). Valium contains diazepam, a Schedule IV controlled substance under Florida law. According to the applicable statute, a Schedule IV drug has a relatively low potential for abuse, but abuse can lead to limited psychological or physical dependence. Methadone is a Schedule II controlled substance under Florida law. Percocet contains oxycodone, a Schedule II controlled substance under Florida law. A Schedule II drug has a high potential for abuse and an accepted, severely restricted, medical use. According to the applicable statute, abuse of the substance may lead to severe psychological or physical dependence. The medical records contain no evidence that the Respondent discussed appropriate use of the prescribed medications with the patient. There is no evidence that the Respondent reviewed prior medical or pharmacy records related to the patient. The Respondent did not order that a drug screen be performed. The records contain no evidence of a narcotics agreement between the patient and the Respondent. Pharmacy information indicates that the Methadone and Percocet prescriptions were filled on April 30, 2004. The Valium prescription was filled on May 1, 2004, for a quantity of 20 tablets, rather than the prescribed 60. On May 11, 2004, T.W. was found dead. According to the medical examiner's report, the cause of death was accidental intoxication by Methadone and cocaine. According to the testimony of Dr. Chaitoff, the treatment provided by the Respondent to T.W. was below the applicable standard of care in that the Respondent: failed to perform a physical examination; failed to substantiate the diagnosis; failed to obtain or review prior medical and pharmacy records; failed to utilize a narcotics agreement; failed to appropriately moderate the controlled substances prescribed; and failed to maintain accurate and complete medical records. DOH Case No. 2004-36251 At some point prior to April 30, 2004, the Florida Attorney General's Office, Medicaid Fraud Unit, initiated an investigation of the Respondent. A part of the investigation included utilization of a female undercover operative using a fictitious name ("O.G.") who was sent into the Respondent's practice as a patient attempting to obtain medication. The undercover operative recorded her interactions with the Respondent on audiotape, some of which were transcribed. Both the audio records and the transcriptions were admitted into evidence at the hearing. The undercover operative testified about her visits with the Respondent. Any inconsistency in chronology between the testimony and the exhibits has been resolved by reference to the audio records and related transcriptions. On April 30, 2004, the undercover investigator presented to the Respondent for treatment of headaches and directly asked for a prescription for Vicodin. The Respondent declined, stating that he was not a "dope dealer" and had to know more about the nature of the headaches. The investigator stated that she had been taking Vicodin for several years, had moved to Florida from New York, where Vicodin was supposedly easy to obtain, and was having difficulty locating a new resource for the medication since the move. She told the Respondent that she began taking it recreationally with a boyfriend, and that her headaches began when she stopped taking the medication. She also stated that she had been taking Xanax. Upon inquiry by the Respondent, the investigator stated that someone named "Michele" who was otherwise unidentified referred her to the Respondent's practice. The Respondent took her blood pressure and manipulated her limbs apparently to determine whether any other pain sources were present; however, the investigator denied any pain but for the headache. According to the medical records, the Respondent diagnosed the investigator with neuralgia, migraine headache, muscle spasm, and myofascitis. On April 30, 2004 the Respondent prescribed Vicodin (10 mg) and Xanax (0.5 mg). The medical records contain a narcotics agreement signed on that date by the investigator and the Respondent. The investigator testified that she signed all the papers presented to her before being allowed to meet the Respondent. According to the pain management plan dated April 30, 2004, the investigator was directed to return in two weeks. The investigator paid for the office visit in cash. In mid-May 2004, the investigator returned to the Respondent's practice. According to the audiotape, the date of the visit was May 17, 2004. The medical records indicate that the date was May 18, 2004. In any event, the Respondent and the investigator discussed the fact that the investigator was seeking refills on the medication. He offered to administer injections, and the investigator declined; nonetheless, the medical records reflect documentation for administration of the injections. The Respondent asked additional questions about "Michele" and mentioned that the investigator is a cash-paying patient. The Respondent provided refill prescriptions for increased quantities of the medications, and told the investigator to return in one month. The investigator paid for the office visit in cash. On June 4, 2004, the investigator returned to the Respondent's practice and met with him. The Respondent again asked questions about "Michele." He again offered injections, and the investigator declined. The investigator told the Respondent that the Vicodin was not working because she had developed a tolerance for it, and that she needed "something better." The Respondent offered a prescription for Methadone (10 mg) taken four times daily and a prescription for Phenergan for nausea. The Respondent also asked the investigator whether she would be interested in participating in a treatment program to assist in withdrawal from the medication. She advised him that she would talk about it with him on her next visit. He advised the investigator that the Methadone would not make her "high" and that it would stop her desire to take pain medication. He discussed the strength of Methadone and advised her as to appropriate use. On June 4, 2005, the Respondent prescribed Methadone (10 mg) and Phenergan (25 mg). The investigator paid for the office visit in cash. On July 7, 2004, the investigator returned to the Respondent's practice seeking medication prescription refills. While meeting with the Respondent, the investigator offered to refer another headache patient to the Respondent if he would waive his office visit charges, and he agreed to do so, but he cautioned that the referred patient must need treatment of a medical condition, stating, "I am not a dope dealer." The investigator left the Respondent's practice with refills for Methadone and Xanax, and paid for the visit in cash. Although the Respondent clearly expressed concern about the quantity of narcotics supposedly being used by the investigator, he did not order a drug screen at any point during his treatment of the patient. The Respondent failed to moderate the controlled substances prescribed to the investigator. On October 15, 2004, law enforcement officials conducted a search of the Respondent's office pursuant to a search warrant. During the search, the officials discovered prescriptions that were pre-written and pre-signed for various narcotics, including Percocet, OxyContin, Vicodin, Dilaudid, Soma, and Methadone. The prescriptions were blank where the names of patients were to be written. DOH Case Nos. 2003-09300, 2004-01840, 2004-20581, and 2004-26368 In September 2003, the Respondent employed a female identified as T.R. Shortly before beginning the employment, T.R. suffered a fractured foot that was placed in a "boot" for stabilization. After starting to work for the Respondent, he advised T.R. that the boot was insufficient, and he placed a cast on her foot. The Respondent reviewed no X-rays and performed no examination prior to placing the cast on her foot. A few days after the cast was set, T.R.'s foot became swollen and painful. She contacted the Respondent, who met T.R. at his office and cut the cast from her foot. At one point in removing the cast, T.R. complained that the Respondent was cutting her foot. After removal of the cast, it was obvious that T.R.'s toe had been cut. The Respondent handed T.R. a pill that she identified as OxyContin and told her to take it. At the same time, the Respondent took a pill that resembled the pill given to T.R. On several other occasions, the Respondent provided various pills, including Vicodin, to T.R. At no time did the Respondent document the treatment or medication provided to T.R. According to the testimony of Dr. Chaitoff, the treatment provided by the Respondent to T.R. was below the applicable standard of care in that the Respondent: failed to perform a physical examination; failed to make a diagnosis; failed to properly treat the foot injury; failed to properly remove the cast placed on T.R.'s foot; failed to maintain accurate and complete medical records; and failed to make a record of prescribing controlled substances. The Respondent employed unlicensed persons to provide certain services, including massage services. T.R. provided massage therapy to patients no more than ten times at the direction of the Respondent. Male employee L.C. provided massage therapy to patients not less than 50 times at the direction of the Respondent. The Respondent was aware that both T.R. and L.C. were not licensed massage therapists. Several employees were directed by the Respondent to prepare syringes for the injection of medications into patients. The employees had no specific training in the preparation of injections. Utilization of untrained personnel to prepare syringes for an injection is below the applicable standard of care, according to the testimony of Dr. Chaitoff. The Respondent ordered medications, including controlled substances, from "Southwood Pharmaceuticals" and stored them in a large rolling metal toolbox located within the examination room. The medications included Vicodin, Lortab, Darvocet, Soma, hydrocodone, and Xanax. According to the testimony of Dr. Chaitoff, the Respondent's practice of storing narcotics in a metal toolbox located in an examination room fails to the meet the applicable standard of care in medicine that, at a minimum, requires that such medications be stored in a doubly secured location. Disposable waste products, including sharps, were not placed into an appropriate container, but were tossed into an open cardboard box approximately three-feet by three-feet-wide and four feet tall. The cardboard box had no cover and lacked appropriate labeling. At one time, when the Respondent expected a visit from an inspector, he moved the cardboard box of sharps into a shower area in his personal office, where they remained behind the shower curtain. The Respondent failed to maintain a sterile condition in his practice. Instruments used in surgical procedures were not routinely cleaned after use and were not maintained under sterile conditions in the clinic. One witness testified that she observed the Respondent, about to remove a "boil" from a patient's face, pick up an instrument from a tray, and that she observed a fluid she identified as blood on the instrument. She testified that she had been present on the previous day when the Respondent had used the same instrument in a surgical procedure on another patient. The witness testified that when the Respondent noticed the fluid, he placed the instrument back on the tray and picked up another instrument from the same tray. The witness's testimony is credited. The Respondent's use of gloves was inconsistent. He did not always wear gloves when examining patients or administering treatment. He sometimes wore the same pair of latex gloves for more than one patient examination. He was observed wearing stained gloves while drinking coffee and handling patient medical files. According to the testimony of Dr. Chaitoff, the office practices described herein, including the improper storage and disposal of waste products, the lack of sterile clinical conditions, and the failure to use latex gloves properly, fail to meet the applicable standard of care in medicine and constitute gross malpractice. Dr. Chaitoff also testified that the extensive violations of standards of care as set forth herein constituted gross and repeated malpractice. DOAH Case No. 05-0863PL On or about April 18, 2001, a three-count indictment in Case No. 01-CF-005999 in the Circuit Court, Thirteenth Judicial Circuit, Hillsborough County, Florida, alleged that the Respondent had engaged in sexual activity with a person 12 years of age or older, but less than 16 years of age. The indictment charged the Respondent with three counts of lewd and lascivious battery in violation of Subsection 800.04(4)(a), Florida Statutes (2001). The charges were resolved on October 29, 2001, when the Respondent entered a guilty plea to one count of felony battery in the third degree in violation of Section 784.041, Florida Statutes (2001). He was adjudicated guilty, and was sentenced to four years' probation, random drug/alcohol testing, and 100 hours of community service. In addition, the Respondent was ordered to have no unsupervised contact with any person under the age of 18 years. The Respondent failed to report the conviction to the Petitioner within 30 days as required by Florida law. Good moral character, honesty, and reliability are qualities essential to the ability to practice of medicine. The crime for which the Respondent was convicted demonstrates a lack of good moral character. The failure to report the crime as required demonstrates a lack of honesty and reliability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health, Board of Medicine enter a final order revoking the license of Lehel Kadosa. DONE AND ENTERED this 27th day of February, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 27th day of February, 2006. COPIES FURNISHED: Joseph Harrison, Esquire Joseph Harrison, P.A. 2500 North Military Trail, Suite 490 Boca Raton, Florida 33431 Maura M. Bolivar, Esquire Diane K. Kiesling, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Joan Tetter is a registered nurse licensed by the Florida State Board of Nursing. On September 5, 1978, Respondent Tetter reported to work at the Baptist Hospital in Miami, Florida. She had been in an accident earlier in which she had bruised her back. Her boy friend had also been injured in this same accident and had been treated with Percodan, a controlled substance, for his injuries. Subsequent to reporting to work, Ms. Tetter experienced severe pain and took the Percodan prescribed for her boy friend. Ms. Tetter then experienced a temporary and incapacitating reaction to the drug, which was observed and reported by others on her shift. After a supervisor arrived, Ms. Tetter was relieved and sent to the hospital's emergency room for evaluation. The emergency room's findings were inconclusive. Testimony was received from several witnesses regarding alleged discrepancies in charting. The testimony of Katherine Young, a licensed practical nurse, regarding an alleged error in the narcotics count was not coherent although, in fairness to Ms. Young, the incident had been some months before, and she was severely fatigued, having worked the night shift. The records involved were not submitted as a late filed exhibit and are not a part of the record in this case. Regarding Ms. Tetter's sign-out for Demerol for Kent Kelly, the allegations were that Ms. Tetter had not administered Demerol "prn" for pain because the nurse's notes made by Price indicated he was in no pain. Kelly and his mother testified he had been in intense pain and had never received Demerol except as required for the control of pain from Ms. Tetter. Regarding the other charting violations, there was no evidence of any substantial departure from the use of these records. In some instances the times were not in chronological order on the narcotic sign-out sheets; however, entries were made on all forms required. It appears Ms. Tetter entered the time of administration, not of sign-out, on the narcotic sign-out sheets. In some instances the medication administration record did not bear Ms. Tetter's initials to indicate which of two or more nurses administered the medication. However, this appears to be a common error, as only a cursory examination of the records reveals. There was also an occasional failure to chart administration of medication in the nurse's notes' however, this again appears to be the general practice in South Florida, where the medication nurse does not chart nurse's notes. There was no evidence that Ms. Tetter had ever self-administered a prescription drug, Tigan, taken from hospital stock without a physician's prescription. No evidence was introduced regarding administration of Demerol 75 mg to Kent Kelly on September 12, 1978, and failure to correctly chart its administration. No evidence was presented of any condition which was of a nature to preclude Ms. Tetter from practicing nursing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida State Board of Nursing suspend Joan Tetter for two months and place her on probation for ten months. DONE and ORDERED this 19th day of June, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Jeff Weiner, Esquire Suite 700, Rivergate Plaza 444 Brickell Avenue Miami, Florida 33131 Geraldine B. Johnson, R. N. 111 East Coastline Drive Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= IN THE MATTER OF: Joan Marie Tetter BEFORE THE FLORIDA STATE BOARD OF NURSING As a Registered Nurse Case No. 78-764 10932 N. Kendall Drive, Apt. U-4 License Number 0981152 Miami, Florida 33176 /
The Issue Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(n), Florida Statutes [failure to keep written medical records justifying the course of treatment of patients as set out in Counts 1-4, 6-9, 11, and 13-14 of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(cc) 1, 2, and 3, Florida Statutes [prescription of an amphetamine drug for purposes other than specifically stated in those subsections as set out in Counts 5 (Preludin), 10 (Preludin), and 12 (Ritalin) of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 453.331(1)(t), Florida Statutes [by engaging in gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances as set out in Counts 1-15 inclusive, of the administrative complaint].
Findings Of Fact Respondent, Tariq Husam Abdullah, is a licensed medical physician, practicing under license number ME 0021526. He is also known as Henry Nichols. The two are one and the same and there is no dispute over identity. Respondent appears to have been a hard worker, rising from a "bed pan hustler" at the old Fort Walton Hospital to his current level of education, licensure, and community position. Previous to Florida licensure, Respondent received his medical degree from Meharry Medical College in Nashville, Tennessee, where he also did his internship in straight medicine. Thereafter, Respondent performed three years of anatomical and experimental pathology at Washington University School of Medicine in St. Louis, Missouri, and two years in clinical pathology at the National Institute of Health and the United States Public Health Service in Bethesda, Maryland. Respondent is not board-certified, but is currently board-eligible in both pathology and laboratory medicine. At all times material hereto, Respondent engaged in medical practice in Bay County, Florida. During much of the time in question, Respondent had no assisting staff. His usual fee for each office visit of each of the patients referred to in the fifteen count administrative complaint was approximately $15- 20 maximum. They are a small portion of the approximately 1,000 patients he treated between 1978 and 1982, and in most cases his fees for office visits were $10.00 apiece. Sometimes his fees were paid and sometimes they were not paid. Medicaid and Medicare reimbursed all or a portion of many fees. In the course of his practice Respondent treated the following patients: D.B.; T.B.; Tommy B.; J.C.; L.C.; T.G. a/k/a L.C.; David G.; Dan G.; C.R.; B.W.; and J.M. Petitioner's expert-witness medical doctors were Jabe Armistead Breland and Michael W. Cohen. Dr. Breland was present at the formal hearing and had the advantage of reviewing Respondent's exhibits as well as Petitioner's exhibits in the forming of his opinions. Dr. Breland has been a licensed medical doctor in the State of Florida since September 1950. Most of that time he has practiced in the panhandle of north Florida which includes Panama City, Bay County. His office is in Marianna, Florida. He is board- certified in family medicine, licensed by the federal government to prescribe controlled substances, and was stipulated as an expert in the field of medicine. Dr. Michael W. Cohen testified by means of a deposition taken prior to formal hearing and did not have the advantage of review of Respondent's exhibits admitted in evidence at the formal hearing. He is a family physician with an M.D. from the University of Miami School of Medicine (1975), a graduate of Tallahassee Memorial Hospital Regional Medical Center Family Practice Program, and has been a board-certified family physician for six and one-half years. His practice is limited to Tallahassee and he has testified on contract for Petitioner six times previous to this case. He is accepted by the undersigned as an expert medical witness, but because of the unavailability to Dr. Cohen of Respondent's exhibits which were admitted in evidence at the formal hearing held subsequent to his deposition and because some of the materials upon which Dr. Cohen's opinions were predicated were excluded from evidence at the formal hearing, the weight and credibility of his prior deposition testimony is significantly impaired through no fault of Dr. Cohen and without any unfavorable reflection upon him. Dr. Wilson, Respondent's expert medical doctor who testified by after-filed deposition knew nothing of Respondent's records and was unaware of the precise charges against him. In the absence of appropriate predicate as to medical opinion, his testimony has been accepted only as to facts of which he had personal knowledge and as to character. It is his opinion that Respondent is the kind of person who deserves not to have his license suspended or revoked. Dr. Wilson partly financed Respondent's education. The parties by Request for Admission have established that Preludin is an amphetamine; more accurately Preludin is phenmetrazine. Ritalin is methylphenidate. Dioxan is a methylamphetamine. At all times pertinent these were Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Percodan is also a Schedule II controlled substance. Valium is a Schedule IV controlled substance. Darvon Compound and Tylenol 4 are Schedule III controlled substances. Respondent frequently talked to police, Sheriff's deputies and pharmacists in an effort to avoid his patients becoming addicted to drugs. He never was made aware from any source of any drug addiction or any arrests of any patients concerned in this action. He testified that he performed a physical examination in every case and verified all prior medications in every case, but he also conceded not verifying prior medications with previous doctors or hospitals. It is specifically found that in many instances none of these precautions appear in his records as set out infra. D. B. (Counts I; XV) It is admitted (Requests for Admission) and found that between February 19, 1979, and April 23, 1983, Respondent prescribed at least the following quantities of controlled substances to his patient, D. B.: DATE DRUG STRENGTH QUANTITY 02/19/79 Percodan Approximate 04/30/79 Darvon Compound 03/23/82 Valium 05/13/82 Tylenol #4 06/03/82 Percodan Demi 40 06/16/82 " " 18 07/10/82 " " 07/17/82 " " 36 08/14/82 " " 18 08/28/82 Percodan 08/28/82 Valium 01/15/83 Percodan 03/26/83 " 03/26/83 Valium 04/23/83 Percodan Respondent's treatment of his patient, D.B. with controlled substances was predicated upon his diagnosis of "traumatic arthritis." His records reflect, "hurting ankle, leg, and back" as the chief complaint. In no instance of prescribing scheduled drugs for this patient did Respondent maintain a record of the strength (dosage) and on only a few occasions did he record the quantity prescribed. This particular inadequacy of record-keeping seems also to have applied to additional non- scheduled drugs prescribed by Respondent for this patient. Although Dr. Breland acknowledged that many doctors only record the word "refill," good medical practice dictates that Respondent should have recorded at least the quantity and dosage at the time of the initial prescription. Normal protocol would be to also record the method of taking the medication. On this analysis, in Dr. Breland's professional medical opinion, Respondent's medical records for his patient, D.B. (Composite P-1) were inadequate and did not justify the course of treatment upon the recorded chief complaint. Dr. Cohen concurs. Further record inadequacies as noted by Dr. Breland include failure of the records to indicate which bone was fractured in relating the patient's medical history, recording only blood pressure as a vital sign, and failure to state what condition was being treated on subsequent visits. Dr. Cohen recited the same inadequacies in forming his professional medical opinion that Respondent's records do not justify the treatment received. Dr. Cohen further opined that if the patient had traumatic arthritis, the treatment prescribed was wholly inadequate due to the absence of any recorded plans for therapy. Dr. Breland, on the other hand, felt that a Percodan prescription is consistent with good medical practice for a patient who complains of traumatic arthritis and that Valium, a benzodiazepine drug which is a calmative or tranquilizer, may also be properly used for traumatic arthritis but that Valium would be contraindicated if there were associated patient nervousness and anxiety. Dr. Breland's opinion is that it would not be medical malpractice to prescribe Valium upon the basis of Respondent's records nor would it be medical malpractice based upon the continued prescribing of Percodan unless the patient became addicted. Dr. Breland's experience is that 1-3 months on Percodan would cause individuals to run the risk of addiction but knows of doctors in the Panama City locale who have prescribed Percodan in excess of three months with addiction resulting in some patients and not in others. Respondent conceded that his records for this patient should show greater detail but according to his recollection independent of the medical records, he recalled that on the first visit, he had accepted D.B.'s representation that D.B. had had prior surgery on the left ankle because the pins could be seen through that swollen ankle. Respondent's independent recollection was that D.B. did not ask for Percodan. Respondent testified that he prescribed the Percodan because "after codeine I can't think of another drug with potential for comfort." His failure to record further detail he explained as his belief that writing down prescriptions was a sufficient reference back to the original first visit diagnosis. Respondent admittedly did not record, but expressed independent recollection of also accepting D.B.'s representation of previous unsuccessful medication with codeine from a Dr. Smith and of recommending acupuncture as an alternative pain therapy but admitted he also did not record this latter instruction. The medical records themselves confirm Respondent's testimony in the course of the hearing that Respondent prescribed the scheduled drugs in addition to a number of other medications such as Roboxin and anti-inflammatories which he did record and which Dr. Breland confirmed were appropriate as treatment for traumatic arthritis. A portion of Petitioner's Composite Exhibit 15, court certified records, show one "Donald Richard Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person was subsequently tried and found guilty of one count and entered a plea of guilty to the other. A Circuit Court Judgment was entered. The date of the commission of this person's offenses are close to the date of a prescription by Respondent to his patient "D.B." but there is absolutely nothing in the court documents to connect them to the D.B. treated by Respondent except a partial similarity of name. Nor does the similarity of name of a co-defendant, Tereza Ann Bozeman (see infra.) prove an inescapable link of "Donald Richard Bozeman" to Respondent's patient, "D.B." who was married to someone of partially similar name. Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, "D.B." for a non-medical or criminal purpose or that the patient was drug-addicted. Upon all the foregoing information taken together it is clear Respondent failed to keep written medical records justifying the course of treatment of his patient, D.B. This finding is made despite both of Petitioner's experts' testimony that there is no affirmative professional requirement that dosage and number of tablets be recorded anywhere except on a prescription. That concern is only a portion of the inadequacies of these records. However, in light of Dr. Breland's greater familiarity with all of Respondent's records and the standard of medical practice in the community, and the greater detail provided by his testimony and the explanations provided by Respondent at formal hearing, Dr. Breland's opinion that the course of treatment for this patient, isolated from all others, does not represent malpractice is accepted over Dr. Cohen's opinion that it does. T. B. (Counts II, XV) It is admitted (Requests for Admission) and found that between approximately May 1, 1982, and April 9, 1983, Respondent prescribed at least the following quantities of schedule- controlled substances to his patient, T.B.: DATE DRUG STRENGTH QUANTITY 05/01/82 Valium 05/01/82 Percodan Demi 07/10/82 " " " 30 08/14/82 " " " 08/14/82 " " " 18 08/14/82 Valium 09/11/82 Percodan 09/11/82 Valium 12/12/83 Percocet #5 Although in some respects, Drs. Breland and Cohen emphasized different faults or inadequacies of Respondent's records which they reviewed concerning T.B. (Composite P-2), both experts concur that the records do not justify the course of treatment of this patient. Dr. Cohen bases his opinion on his analysis that the history Respondent recorded for this patient was not sufficiently detailed. Specifically, the initial office visit record is flawed by only writing down patient's vital signs and recording no physical findings. Dr. Cohen stated it is unjustifiable to prescribe a narcotic analgesic on the first office visit and to continue to refill the prescription on subsequent visits without recording how the patient had done on those medications and further without recording physical examination, assessment of how the patient is responding to the medication, a plan outline for prophylactic care, and patient education. Further, both Drs. Breland and Cohen assert that although there is no affirmative professional requirement to record dosage and tablet numbers except on prescriptions, it is the custom of reasonably prudent similar physicians to record amount, dosage quantity of drugs prescribed, and method of taking drugs, and Respondent's records do not do so. Respondent's records for this patient also offend custom and usage of the profession in that they indicate several office visits for which there are no recorded findings or treatments whatsoever. Dr. Breland's opinion that the records do not justify the treatment and that they fall below the customary standard of care are based on his analysis thereof emphasizing that the records of the first office visit do not evidence a physical examination other than taking a blood pressure reading and weighing the patient. There is a brief history of migraine headaches for three months recorded and also recorded is a past diagnosis and treatment with codeine and talwin; the records note no previous surgery, no previous fracture, and no physical findings. Then, Cafergot PB #2, Valium #3 and Percodan-demi were prescribed by Respondent. The records should have specified whether or not previous treatment was successful and if it was successful, Respondent could have subsequently prescribed less addictive drugs. In Dr. Breland's opinion, it is "hard to justify" a Class II drug without trying some other modalities available. Respondent first saw this patient on May 1, 1982, for migraine headaches and prescribed Cafergot PB and Percodan-demi. He selected Percodan- demi because Percodan is habit-forming. In the course of the formal hearing, he testified, "I just didn't know another medication to go to after you pass codeine that would be effective with patients, other than giving them Demerol and the harder narcotic medications" and that when he first began seeing this patient he was less aware of the similar use of the less addictive drug, Inderal, than he is now. On the physical examination portion of his clinical notes, Respondent indicated that the patient had been using Codeine, Talwin, and "Dx" and "Rx". He then and thereafter (8/14/82 and 9/11/82) prescribed analgesics and vasoconstrictors (Cafergot PB and Ergotamine) together with the Valium because Valium, in his opinion, is often ineffective without more because of the significant emotional components of migraine headaches. Respondent also expressed his independent recollection of discussing with this patient the alternative treatment of acupuncture but admitted he did not record this instruction. Respondent's explanation is not sufficient justification for the repeated prescriptions of controlled substances in light of Dr. Breland's more knowledgeable and thorough explanation of the standards of record-keeping necessary to justify continued prescription of the particular controlled substances here at issue. Dr. Breland faults another of Respondent's prescriptions dated 12/4/82 of Cafergot PB#2 (a combination of drugs primarily containing an Ergotamine derivative and caffeine), Percocet, and Valium because Respondent's records do not show how many pills were prescribed nor do they give directions for taking them. For prescriptions on 1/8/83, 8/14/82, 9/11/82, and 2/12/83, Dr. Breland expressed as his chief concern that there was an absence of recorded physical findings, history, and blood pressure plus no recorded amount of dosage listed for most prescription drugs, but Dr. Breland also determined that prescribing Cafergot is consistent with Respondent's diagnosis of vascular headaches and his prescriptions for these dates is an appropriate lesser treatment to be tried before prescribing a Schedule II drug, and, further, that Respondent's records justify prescribing Cafergot. However, the opinion expressed in the prior sentence is not compelling in face of the records having no notations to show the effect, if any, of Cafergot or other drugs or to show why Respondent prescribed stronger medication. Dr. Breland also felt Respondent should have prescribed other less addictive drugs before going to the Schedule II-controlled substances as he did, and that if Respondent's findings were negative, he should have recorded them as negative rather than leaving the record blank, because without such records it cannot be determined if a physical examination was ever made and because in absence of recorded physical findings, no Schedule II drugs should have been prescribed. A portion of Petitioner's Composite 15, court-certified records show one "Tereza Ann Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person entered a plea of guilty to a lesser-included misdemeanor. The Circuit Court withheld adjudication and placed her on probation. The date of one of the offenses coincides with one of the dates of a prescription by Respondent to his patient, "T.B." but there is absolutely nothing in the Court documents to connect them to the "T.B." treated by Respondent, except a partial similarity of name. The court documents also charge "Donald Richard Bozeman" who has a similar name to that of another of Respondent's patients (see supra.) but the court documents do not indicate the charged individuals are married or provide any other link to Respondent's patient(s). Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, T.B., for a non-medical or criminal purpose or that the patient was drug-addicted. Tommy B. (Counts III, XV) It is admitted (Request for Admissions) and found that between approximately August 16, 1981, and February 19, 1983, Respondent prescribed at least the following quantities of schedule controlled substances to Tommy B.: DATE DRUG STRENGTH QUANTITY 08/15/81 Valium 08/15/81 Percodan 08/15/81 Dalmane 10/30/81 Tylox 12/05/81 " 12/05/81 Valium 12/06/82 Darvon compound 02/17/82 Percodan 30 04/01/82 " Demi 04/01/82 Percodan 30 05/29/82 Percodan Demi 06/21/82 Tylox 24 07/12/82 Percocet #5 30 02/19/83 Percocet 02/19/83 Valium In the course of the hearing, Respondent independently recalled that this patient presented on 8/15/81 and that Respondent himself personally recorded the notes for that date including a history, diagnosis of L-S syndrome, and treatment. On that date he observed scars on the patient's back from back surgeries which the patient related had been done at Southern Baptist Hospital in New Orleans. Respondent conceded that he failed to record the physical findings of scars and failed to record full details of the related surgeries so that at first glance it might appear to others, in this case Dr. Breland, that Respondent was only filling in a history of surgeries without making his own diagnosis. Respondent stated that he had relied on the Physician's Desk Reference, which he characterized as a "bible of the medical profession", and which recommends Percodan as a pain-killer. The treatise itself was not offered in evidence. Respondent also stated that the Percodan-based drugs he prescribed effectively relieved this patient's pain. There is no contrary evidence on this point of effectiveness but it still was not contemporaneously recorded by Respondent in the patient's record. Both Drs. Cohen and Breland opined that Respondent's records for Tommy B. did not justify the prescribing of these controlled substances, most specifically Percodan. These opinions have not been accepted for the following reasons. In the absence of any supporting evidence, Dr. Cohen's considerable testimony concerning his belief that this must have been a scam or scheme of Respondent to indirectly charge for a controlled substance prescription by requiring frequent office visits is rejected as conscientious but pure conjecture. Dr. Breland expressed concern that Percodan-demi was among the drugs prescribed by Respondent in the presence of a record notation within the physical findings which relates that "patient says he can't take Percodan". Respondent denied he made this notation, and related it is in someone else's handwriting and not true. Respondent's testimony on this score is corroborated by clear observation of the records. Most of Dr. Breland's other complaints concerning Respondent's record of this patient devolve to Dr. Breland's inability to read Respondent's handwriting and his original erroneous belief that the history and exam was chronologically incorrect and taken by someone other than Respondent. Dr. Breland's opinion that the records are deficient because the fracture of the back was not specifically recorded by Respondent's indicating whether there was an old fracture or current pain and by Respondent's not indicating whether there was thoracic or lumbar distress, and because there is no recitation of whether the fracture is pelvical or in any body of the vertebrae, and his objection to failure of Respondent to either record "no x- rays" if none or to record x-rays if there were some instead of leaving a blank space constitute technique over professional custom requirement of record- keeping. Dr. Breland also described the two month fluctuation down to Percodan- demi and then up to the stronger drug of Percocet from 4/1/82 to 2/19/83 as unjustified because no less addictive medicines had been tried and no degree of relief from less addictive drugs was attempted by Respondent, but Dr. Breland described the Percodan- based drugs and the Valium as medically acceptable where based on the degree of relief the patient had received. In such a situation Dr. Breland would use these drugs for pain treatment and consider them medically justified. Like Dr. Cohen, Dr. Breland also found unacceptable the failure of Respondent to record amounts and dosages in his office medical records, but on many occasions throughout their testimony, both of Petitioner's experts observed the requirement of listing amount and dosages is for prescriptions only and not for a doctor's office records. Upon the failure of adequate predicate for Dr. Cohen's conclusion of unjustified prescriptions, the absence of any admissible evidence of any addiction in this patient, and the only positive evidence of the effect of these prescriptions being Respondent's opinion that it was effective, the opinions of both Drs. Cohen and Breland that the medical records do not justify the course of treatment of Tommy B. are rejected. J. C. (COUNTS IV; XV) It is admitted (Requests for Admissions) and found that between January 4, 1982, and February 26, 1983, Respondent prescribed at least the following schedule-controlled substances to J.C.: DATE DRUG STRENGTH QUANTITY 01/04/82 Percodan 24 03/23/82 Tylox 30 04/17/82 Percodan 04/17/82 " " 05/01/82 Tylenol #4 30 05/01/82 Valium 30 05/04/82 Tylox 30 06/12/82 Valium 06/16/82 Tylox 36 07/17/82 " 30 08/14/82 " 30 10/03/82 " 30 10/30/82 Tylenol #4 11/13/82 Percodan 30 01/15/83 Percocet 01/15/83 Valium 28. J.C.'s chief complaint was migraine headaches, "nerves", and back trouble. Respondent prescribed Percodan for pain, Valium for "nerves", and Cafergot-pb for migraines. He diagnosed hypertensive heart disease, anxiety neurosis, migraine headaches, and lumbosacral syndrome. He only used Percodan four times over a year's period due to the severity of the symptoms brought on by the tug and strain on this 200-pound woman's back. Dr. Cohen ranks the relatively minimal fault of writing progress notes in two corners and across the top and side of a page in the same category as overprescribing. Dr. Cohen's concern over the absence of recorded physical findings for this patient was not confirmed by Dr. Breland (see infra.) and his concern because the number and dosage of Cafergot-pb (non-scheduled), Valium (scheduled) and Percodan (scheduled) were frequently not recorded by Respondent is less significant in light of Dr. Breland's testimony that the best custom and practice of the medical profession is to record these matters but such recordation is not required for office records but only for prescriptions. Dr. Cohen also faulted Respondent for prescribing symptomatically with no effort to educate the patient to prevent or "prophylax" against migraines or to prescribe common anti- inflammatory medications usually prescribed for migraines. Dr. Breland noted that Tylenol #4 is a controlled substance but made no specific objection to Respondent's prescription of it for this patient. Cafergot-pb is not a controlled substance and its prescription by Respondent was not faulted by Dr. Breland. All of Dr. Breland's testimony on this patient is couched in vague terms of "it is hard to justify" Respondent's prescription of Percodan and Percocet on just this work-up and Dr. Breland felt Respondent's prescription of Percodan on the first visit was not justified without obtaining a further medical history, but he would have approved eventual (not first visit) use of Percodan for this patient's migraine headaches if it were not for the presence of hypertensive heart disease or her neurosis. Although the records fail to state why Percodan-based drugs were used, Dr. Breland felt these drugs would have been appropriately prescribed for the lumbosacral syndrome. By comparison, J.C's recorded medical history is more extensive than that of most of the patient records involved in this action. The history taken by Respondent lists previous surgery of a hysterectomy, of a previous fracture to the left hip, and of a tonsillectomy. Also given is an elevated blood pressure of 160 over 100, height and weight, state of parity, and diagnoses. The date of her last period and of her hysterectomy are not given. Petitioner's two expert witnesses each would have made separate and different judgment calls on all prescriptions here related, except that each concurs that Respondent's initial prescription of Percodan on this patient's first visit was unjustified without a further recorded history; therefore, Dr. Breland's summation that the records justify overall treatment of this patient is accepted. L. C. (COUNTS V; VI; XV) It is admitted (Requests for Admission) and found that between approximately March 27, 1978, and April 23, 1983, Respondent prescribed at least the following quantities of schedule-controlled substances to L.C.: DATE DRUG STRENGTH QUANTITY 03/27/78 Darvon Compound 07/21/78 Darvon 07/21/78 Darvon Compound 07/21/78 Valium 10/23/79 Percodan 10/31/79 Preludin 11/17/80 Preludin 11/28/81 Darvon Compound 12/28/81 Percodan 24 01/14/82 " " 30 04/02/82 " " 36 06/08/82 " " 36 07/17/82 " " 36 08/28/82 " " 36 09/25/82 " " 24 09/25/82 Darvon Compound 12/03/82 Percodan 30 01/15/83 " " Dr. Cohen's opinion that there had been prescription of an amphetamine drug for an unjustified purpose and that the patient's records did not justify the Respondent's prescribed course of treatment is rejected as partially predicated upon inadmissible and unadmitted exhibits. The opinion of Dr. Breland is accepted that most of these prescriptions as only part of the course of treatment as a whole were acceptable. More particularly, Dr. Breland indicated there are other doctors similarly geographically situated who use Percodan similarly; there was a very adequate history taken, although the date appears out of order on the page; Respondent's early prescribing of Roboxin and Darvon (one of the less addictive controlled substances) would be a good treatment for osteoarthritis which was part of Respondent's diagnosis of this patient; there was not enough Percodan prescription here for Dr. Breland to say it was not justified in this patient's case. Dr. Breland was unsure when Preludin became a scheduled substance and so would not comment on that aspect of the case. This is an issue of law and is discussed under "Conclusions of Law." T. G. (COUNTS VII; XV) Between approximately July 23, 1978, and April 26, 1983, Respondent treated a patient by the name of T.G. During that period, the stipulated records reveal at least the following prescriptions, among others: DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 7/23/78 30 Percodan 7/23/78 Darvon Compound 9/21/78 Percodan 10/14/78 Percodan 10/14/78 Darvon Compound 11/21/78 24 Percodan 11/21/78 Darvon 12/6/78 30 Percodan 12/6/78 Darvon Compound 12/28/78 Percodan 12/28/78 Darvon 1/23/79 Qualudes 1/29/79 24 Percocet 1/19/82 24 Percocet 3/4/82 Valium 3/4/82 Percodan 4/29/82 Percocet 8/19/82 Percodan 8/19/82 Valium 10 mg 9/25/82 Valium 9/25/82 Percocet 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Percocet 10/14/82 40 Valium 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Valium 10/14/82 40 Percocet #5 10/14/82 40 Percocet 10/14/82 40 Valium Additionally, the Respondent occasionally prescribed Tetracycline and Actifed Syrup for colds, and the parties have stipulated these are not controlled substances. Although Dr. Breland tagged Respondent's use of Roboxin 750, Percodan 30, Darvon compound and Prednisone (a Cortisone- like anti-inflammatory) on the first visit as "borderline acceptable," it was his and Dr. Cohen's mutual opinions that in the absence of recorded physical findings, the Respondent's prescribing of controlled substances in these quantities and with this frequency to this patient was not justified by the records Respondent kept. Dr. Breland, in particular, found unacceptable the Respondent's diagnosis of lumbosacral syndrome without detailed physical findings or any x-ray diagnosis, and both experts took exception to the continued and repeated prescriptions of the addictive drugs, Valium and Percodan, in a case where Respondent's records repeatedly indicate a good response. Both further opined against Respondent's delayed attempt to diminish the use of these addictive drugs. The doctors' opinion that the records do not justify the prescriptions are accepted. DAVID G. (Counts VIII; XV) The stipulated records reveal at least the following controlled substances were prescribed by Respondent to his patient, David G., between December 17, 1981, and February 12, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 12/17/81 Ativan 12/30/81 Ativan 2/12/82 Valium 3/06/82 Seconal 3/11/82 Valium 4/08/82 Seconal 8/28/82 Seconal 8/28/82 Valium Respondent saw this patient 12 times in approximately 2 years and accepted David G.'s representation that he had been previously prescribed Ativan, a controlled substance of the same chemical family as Valium. Although Respondent claims he verified all prior medications, the verification here is not reflected in his record. The records themselves do not reflect for most occasions why this patient was being treated nor do they set forth an assessment of why Respondent switched from less to more addictive sedative hypnotics. Ativan is a tranquilizer on Schedule III. Seconal is a sedative on Schedule II. In an isolated response, Dr. Breland testified that if the Respondent's initial diagnosis of insomnia and anxiety neurosis had been arrived at after taking a proper history and after a proper physical examination which was not recorded, he would not find Respondent's use of these medications, including Seconal, improper, because there are doctors in the same geographical area who would also use Seconal. However, the ultimate opinion of both of Petitioner's experts is accepted that in the absence of a recorded initial physical examination and a recorded history beyond merely recording height and weight and an unverified former medical treatment, the course of this patient's treatment was not justified by the records kept. DAN G. (Counts IX; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, Dan G., Jr., between January 9, 1979, and April 22, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 01/09/79 Percodan 02/22/79 Talwin (50 mg) 11/18/81 Percodan 11/30/81 Percodan 01/02/82 Percodan 01/19/82 Percodan 02/05/82 Percodan 03/30/82 Percodan 04/12/82 Percodan 05/01/82 Percodan 05/01/82 Valium 05/18/82 24 Percodan 06/05/82 Valium 06/22/82 Percodan Demi 06/22/82 Darvon Compound 06/22/82 Valium 07/24/82 Percodan 07/24/82 Valium 08/28/82 Percodan Demi 08/28/82 Valium 09/25/82 Percodan 09/25/82 Valium 10/30/82 Valium 10/30/82 Percodan 12/03/82 Percodan 02/19/83 Percocet 03/26/83 Percodan 03/26/83 Valium 04/22/83 Tylox 04/22/83 Valium Respondent's records for this single patient sometimes specify "Jr." and sometimes do not. The initial record indicates a surgical incision along the lateral aspect of both femurs and pain on palpation of both hips, and records a history of total hip arthroplasty (two total hip replacements) in 1979 with the patient evidencing pain secondary to a post-operative procedure to correct aseptic necrosis of both femurs. At formal hearing, Respondent stated that this patient first presented in a wheel chair and returned frequently, due to chronic pain and was already on Demerol when first seen by Respondent. The chronic pain was not always repeatedly recorded in Respondent's records. Both of Petitioner's experts concede that prescriptions of Percodan would be consistent if that were all that were relieving the pain when the patient presented to Respondent, and Dr. Cohen opined that Percodan and Talwin were possibly consistent with aseptic necrosis of a femur. Respondent had admitted (R-1), a hospital summary of subsequent surgery (conversion of left total hip arthoplasty to girdlestone on 8/19/83) at the Veteran's Administration Hospital in Gainesville. This exhibit of subsequent surgery corroborates the previous 1979 history taken by Respondent which indicated that medications on discharge from the VA Hospital included Demerol 50 mg. po q 4h prn for pain. In light of no evidence of patient addiction and no evidence of poor response by this patient to Respondent's prescribing and treatment, the opinions of Dr. Breland and Dr. Cohen that Respondent's prescribing was excessive and necessarily addictive and therefore was unjustified are rejected, however the undersigned accepts their mutual opinions that the Respondent's records by themselves without the subsequent corroboration of the VA Hospital report do not justify the treatment Respondent administered to Dan G. Respondent admits R-1 was not relied on in treating this patient. C. R. (Counts X; XI; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, C.R., between July 3, 1978, and April 22, 1983: 2/ DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCES 07/03/78 Percodan 07/03/78 Percodan Compound 07/20/78 30 Percodan 08/14/78 30 Percodan 11/01/78 30 Percodan 12/05/79 Desoxyn 12/05/79 Percodan 01/02/79 Desoxyn 02/05/79 Percodan 02/12/79 18 Percodan 03/28/79 Percodan 04/16/79 Percodan 05/03/79 Percodan 05/17/79 Percodan 05/17/79 Darvon Compound 05/17/79 Percodan 05/17/79 Darvon Compound 06/14/79 6 Percodan 06/14/79 24 Desoxyn 09/18/79 Desoxyn 10/04/79 Percodan 11/10/79 Preludin 01/28/80 P 06/12/80 Preludin (75 mg.) 09/18/80 Preludin (75 mg.) 11/17/80 Percodan 01/27/81 Darvon Compound 04/27/81 Percodan 07/28/81 Percodan 08/31/81 24 Percodan 09/21/81 24 Percodan 12/16/81 Percodan 01/06/82 Percodan 01/29/82 Percodan 03/02/82 Percodan Demi 03/02/82 03/28/82 Percodan 04/20/82 Percodan 05/13/82 06/04/82 Percodan Demi 07/03/82 Percodan Demi 08/03/82 36 Percodan Demi 08/28/82 Percodan 08/28/82 Valium 12/20/82 24 Percocet 5 12/20/82 30 Valium (10mg) 01/15/83 6 Tylenol #6 01/22/83 Percodan Preludin and Desoxyn are amphetamine drugs. Desoxyn was legitimately prescribed for weight control in 1978. Respondent's prescription of both drugs was ostensibly to modify the amount of weight supported by the patient's leg bones. Dr. Breland is not sure whether both drugs were reclassified for control in 1979 or not but this is an issue of law resolved in "Conclusions of Law" supra. Despite Dr. Breland's testimony that if he did not have to base his opinion on the Respondent's inadequate recorded history and findings, he would term the prescribing of Percodan and Roboxin as recorded to be borderline acceptable, the undersigned accepts his and Dr. Cohen's mutual opinion that the frequent prescriptions of Percodan, Percodan- demi or Percocet (narcotic analgesics) for the Respondent's recorded diagnosis of arthritis and right leg pain resulting from previous right thigh surgery are unjustified by the records. Their respective opinions that this pattern of prescribing was excessive and unjustified in light of the potentially addictive nature of these drugs is also accepted. B. W. (Counts XII; XIII; IV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, B.W. between June 7, 1979, and January 29, 1983. 3/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/01/79 Valium 10/15/79 Tylenol #3 06/19/80 Tylenol #3 06/08/81 Ritalin (20mg) 08/11/81 Valium 08/15/81 Valium 09/15/81 Talwin 11/14/81 Talwin 12/07/81 24 Ritalin (20 mg) 12/20/81 Talwin 01/23/82 Talwin 02/12/82 Percodan Demi 02/27/82 Tylenol #4 03/04/82 Ritalin 03/18/82 Percodan Demi 04/02/82 30 Talwin 07/03/82 24 Ritalin 08/28/82 30 Ritalin 09/22/82 24 Percodan 10/14/82 Talwin (50mg) 12/21/82 24 Percodan 01/29/83 Tylox Ritalin is a sympathomimetric amine drug, which may only be properly prescribed in certain types of cases more specifically set out in the following "Conclusions of Law." Respondent's diagnosis, that this patient had chronic anxiety and back pain, is reflected in his written records. This is essentially the only recorded history on this patient. Respondent did not record a diagnosis of narcolepsy. Respondent did, however, introduce R-2, a consultation report to a Dr. Yankovich dated 1/5/82 from a Dr. Elzawahry which states the impression: "narcolepsy; low back syndrome. . . maintain on Ritalin 10 mg. po tid." Respondent testified that he had received similar information concerning the narcolepsy and psychiatric disturbance earlier than 1/5/82 first by telephone and then by written reports thereon from consulting neurologists, surgeons, and psychiatrists, and that through inadvertence this document was not turned over to Petitioner's investigator. However, Respondent did not explain why his files did not contain these other consultants' reports or why he did not write-up their contents or the dates they were received by him or why his prescriptions of 20 mg were so much greater than those recommended by Dr. Elzawahry. Dr. Breland felt that if Respondent were aware when he first prescribed Ritalin to this patient that the consultant had recommended it because of a good response, then Respondent's Ritalin prescriptions would be justified. It was also noted by Dr. Breland that Ritalin once was believed by the medical profession to be appropriately prescribed in the treatment of depression but that method had ceased and was statutorily proscribed by the time periods in question. Dr. Breland's expert opinion on prior belief of the medical profession is accepted. His conclusions of law invade the province of the hearing officer and are rejected in part and accepted in part as set out in the "Conclusions of Law." Dr. Breland did not feel under the circumstances that the Ritalin was contraindicated. Accordingly, Dr. Cohen's testimony that Ritalin is very dangerous if prescribed for chronic anxiety and depression is hereby discounted in that unlike Dr. Breland, he did not have the benefit of R-2 when testifying by earlier deposition. Dr. Cohen felt Valium was useful for chronic anxiety and that Tylenol #3 and Talwin were useful for pain but that there were excessive prescriptions of these drugs with few or no notations indicating any pain. In most instances all that is noted in Respondent's records on this patient is a prescription listed beside the date. Dr. Breland remarked that even the forms used by Respondent did not include a space for physical findings. J. M. (Counts XIV; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, J. M., between October 25, 1980, and March 9, 1982: 4/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/25/80 Percodan 01/05/81 Percodan 05/19/81 Emprin #4 06/03/81 Emprin #4 07/29/81 18 Percodan 09/25/81 12 Percodan 09/25/81 18 Tylenol #3 11/07/81 24 Tylox 11/21/81 Percodan 12/17/81 Percodan 01/02/82 Percodan 02/22/82 Percodan 03/09/82 Percodan The records of history and findings on this patient are reasonably complete and were faulted by Dr. Breland mostly because without appropriate dates one cannot tell if the history was taken on the initial visit as it should have been or later, and because the dates given are frequently out of order. In Dr. Breland's opinion, some of the modes of therapy utilized by Respondent were not of his choice but Dr. Breland only seriously objected to Respondent's continued and excessive use of Percodan as unsafe. Dr. Cohen's opinion was that the Respondent's conduct constituted mal- prescribing over malpractice. Dr. Breland's opinion was that Respondent's overall conduct with regard to these eleven patients constituted malpractice in that it was the failure to practice medicine with that level of care, skill and treatment of a reasonably prudent similar physician, under similar circumstances. Dr. Breland has had the benefit of reviewing all of Respondent's exhibits and he practices in the same geographical locale as Respondent. His opinion in this regard is accepted as to the overall pattern of practice with these eleven patients, despite his previous opinions that specific cases might not evidence malpractice.
The Issue The issue is whether respondent's medical license should be disciplined for the reasons set forth in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background At all times relevant hereto, respondent, Maximo G. Perez, was a licensed medical doctor having been issued license number ME 0028193 by petitioner, Department of Professional Regulation, Board of Medicine (Board). He has held his license since 1969. A graduate of a seven year medical school curriculum at Autouncas University in Santo Domingo, respondent immigrated to the United States in 1967 and passed the ECFMG two years later. After working as a staff physician at a hospital in Tennessee for less than a year, in 1970 he began a one-year internship at a Brooklyn, New York medical center. Following completion of his internship, respondent completed a three year residency program in adult psychiatry in 1973. Thereafter, he completed a two year residency program in child and adolescent psychiatry. In 1976, Dr. Perez accepted a position as staff psychiatrist at Lee County Mental Health Center, a state institution providing inpatient psychiatric service at the hospital and outpatient evaluations and treatment at the clinic. In August 1977 respondent began his private practice in psychiatry in Fort Myers. Most recently, he has been employed as a staff psychiatrist at Lake Sumter Mental Health Center and Hospital in Leesburg, Florida. However, the charges herein stem from alleged illicit conduct that occurred while respondent was engaged in the private practice of medicine during the years 1983 - 1985. In September 1982, D. P., then a thirty-two year old female and briefly hospitalized for anxiety and depression, was referred by her internist to respondent for treatment at the hospital. Regular medical treatment began in June 1983, continued until 1984 and resumed again briefly in 1985. In December 1983 and January 1984, the patient and respondent engaged in sexual intercourse on three occasions. After the doctor-patient relationship ended, D. P. filed a civil action against respondent and eventually obtained a $150,000 settlement. She also filed a complaint against respondent with the Board. This resulted in the Board filing an administrative complaint against respondent on March 1, 1990, charging that respondent had violated a number of provisions within Chapter 458, Florida Statutes (1983), now codified as Chapter 458, Florida Statutes (1989). These charges will be dealt with separately below. The patient and her medical background The patient who filed the complaint against respondent was born on September 14, 1949. She has exhibited a history of anxiety and depression, with instances of abuse of certain drugs and several suicide attempts. The physician who referred D. P. to respondent for psychiatric treatment was Dr. Kenneth L. Sanders, a Fort Myers internist with a specialty in infectious diseases. Doctor Sanders, who gave deposition testimony in this cause, first treated the patient on September 30, 1980, and continues treating her at the present time. As a part of his request in 1980 for prior medical records of D. P., Dr. Sanders received a consultation of the patient from another doctor performed in June 1974 which noted that the patient had "possibly migraine-like equivalent" headaches. The prior physician had diagnosed her as having anxiety reaction, acute, possibly situational. Doctor Sanders agreed with this diagnosis and during the course of his treatment of the patient, he found that D. P. suffered from anxiety or panic attacks. Indeed, the patient's anxiety worsened while Dr. Sanders treated her and culminated in a panic attack in the doctor's office in March 1983. Three months later, Dr. Sanders referred D. P. to respondent for psychiatric treatment. According to Dr. Sanders, the patient has had a history of being anxious and depressed since he first observed her in 1980. At different times in his treatment of the patient, Dr. Sanders prescribed Tranxene, Valium, Limbitrol, which contains Librium, and Xanax. The last Valium prescription was given to the patient on March 21, 1990. In prescribing Valium, Dr. Sanders was unaware that D. P. had been hospitalized in March 1985 for possible Valium dependency, and the patient did not inform him of this fact. The patient's abuse of drugs began when she was eleven or twelve years of age. At that time, D. P. ingested a large quantity of over the counter drugs and was hospitalized for a week, first in intensive care, for overdose. Prior to her first pregnancy, the patient overdosed on Fastin and alcohol and was hospitalized. She was also hospitalized by Dr. Sanders in September 1982 to assist her in the withdrawal from sympathamimetic amine agents, possibly amphetamines. The overdoses at age eleven or twelve and prior to her first pregnancy were characterized as suicide attempts. Such suicidal tendencies, anxiety and depression predated her treatment by respondent. Doctor Sanders confirmed the patient's history of making multiple somatic complaints, that is, her physical complaints did not have a physical origin but rather a psychological origin. In June 1983 respondent began his medical treatment of the patient. He had previously seen her in September 1982 when she was hospitalized for withdrawal from sympathamimetic amine agents. During the hospitalization period, respondent visited D. P. twice, at which time he found her to be anxious and depressed. C. Count I In Count I, respondent is alleged to have prescribed, dispensed, administered, mixed, or otherwise prepared a legend drug, including a controlled substance, other than in the course of his professional practice. To support this allegation, petitioner has charged that respondent prescribed numerous legend drugs, including controlled substances, inappropriately and in excessive and inappropriate quantities. In this regard, and pursuant to petitioner's restrictive amendment, the patient records reveal that, during the course of his treatment of the patient from August 1983 to July 1985, respondent prescribed the following drugs to D. P. for anxiety and depression, all of which belong to the benzodiazepine group of anti-anxiety agents and are controlled substances listed in Schedule IV of Chapter 893, Florida Statutes. The drugs are shown by date of prescription, quantity, strength (size), name, number of refills authorized, total number of drugs, and the dates on which the prescriptions were initially filled and then refilled, if applicable, by the patient. Date Quantity Size/Drug Refills Total # of Date Refills 8/26/83 100 7.5 mg Tranxene 3 400 8/26/83 9/28/83 11/30/83 1/9/84 12/2/83 20 30 mg Serax 0 20 12/4/83 2/2/84 100 5 mg Valium 3 400 2/2/84 3/8/84 5/16/84 6/1/84 4/27/84 30 .5 mg Xanax 3 120 4/28/84 6/22/84 100 5 mg Valium 3 400 7/3/84 7/26/84 8/25/84 10/3/84 12/10/84 100 5 mg Valium 3 400 12/19/84 2/7/85 3/2/85 4/28/85 5/13/85 7/16/85 30 30 mg Serax 0 30 7/16/85 7/19/85 40 25 mg Librium 1 80 7/19/85 8/7/85 Initially, it is noted that Tranxene, Serax, Valium and Xanax are benzodiazepines, which help symptoms of anxiety and tension. The patient had a long history of anxiety and depression, and when the drugs were prescribed by respondent, D. P. was exhibiting rather acute symptoms of anxiety and depression. As to the prescription for Tranxene, with three refills, given on August 26, 1983, this was written immediately after the patient's discharge from Charter Glade Hospital where she had been under respondent's care for depression. She had been admitted to the hospital on August 20, 1983, at the request of her husband because she was very anxious, apprehensive and suffering from nausea, vomiting, dizziness and weakness. After showing improvement while taking Tranxene in the hospital, the patient was continued on the medication after her discharge. Based on the refill dates shown on the above chart, it is found that the patient was not abusing the medicine. Further, petitioner's expert agreed that the prescription was not inappropriate or excessive. Accordingly, it is found that the drug was properly prescribed in the course of respondent's professional practice. The prescription for Serax was written on December 2, 1983, before the sexual intercourse that took place at the end of the office visit. It was given to D. P. as a replacement for Tranxene which had been previously prescribed. However, D. P. was also given specific instructions by respondent that she must discontinue taking the Tranxene before beginning the Serax prescription. A second prescription for Serax was written on July 16, 1985. This prescription was written after D. P.'s hospitalization in July 1985 and when she claimed a Xanax prescription written by a second doctor was not working. She was told to discontinue the Xanax before beginning the new drug. Accordingly, it is found these prescriptions were prescribed in the course of Dr. Perez's professional practice. The patient received prescriptions for Valium on February 2, June 22 and December 10, 1984, with three refills on each occasion. These prescriptions were given to alleviate the symptoms of tension, anxiety and depression caused by family illnesses and deaths she was experiencing at that time. The refill dates do not indicate any abuse of the drug by the patient. Therefore, it is found that the prescriptions were not excessive or inappropriate. The patient was given prescriptions for Xanax and Librium on April 27, 1984 and July 19, 1985, respectively. The first drug was prescribed at a time when the patient's father was living with her and dying of cancer. When the prescription was written, the patient was given specific instructions by respondent not to use any other type of tranquilizer she may have had in her possession. It is noted that the three refills were never used. The second drug was prescribed, with one refill, immediately after her discharge from a hospital in July 1985. Again, the patient was instructed to discontinue her use of Serax before she started the Librium. In both cases, it is found that the drugs were dispensed in the course of Dr. Perez's professional practice. In addition to the drugs shown in finding of fact 8, respondent prescribed the following medicinal drugs shown below by date, quantity of drug, strength (size) and name of drug, number of refills authorized, total number of drugs authorized and date such prescriptions were initially filled and then refilled, if applicable, by the patient. It is noted that medicinal drugs are legend or prescription drugs and may only be dispensed on a prescription. Date Quantity Size/Drug Refills Total # Date of Refills 8/30/83 60 Fiorinal 3 240 8/30/83 9/25/83 11/1/83 12/6/83 100 Fiorinal w/Codeine 3 400 12/7/83 4/30/84 6/15/84 4/6/84 60 50 mg Sinequan 2 180 4/7/84 1/10/85 7/19/85 8/15/84 100 400 mg Meprobamate 2 300 8/15/84 11/1/84 7/16/85 30 Lithobid 0 30 7/16/85 7/16/84 30 Chlorpromazine 0 30 7/16/85 7/26/85 10 500 mg Chloral 1 20 7/26/85 Hydrate 8/16/85 As to the Fiorinal prescribed on August 30, 1983, with three refills, this was prescribed to treat the patient for migraine headaches, a malady she had long suffered from. A second prescription, including Codeine, and again with three refills, was written on December 6, 1983, after the patient complained of migraine headaches. The evidence reflects that the drug is an appropriate medicine for a person suffering from migraines, and that the amounts prescribed above were not excessive. In addition, the prescriptions were documented in the patient records. Accordingly, it is found that both prescriptions were dispensed in the course of respondent's professional practice. On April 6, 1984, respondent prescribed Sinequan, with two refills, as treatment for the patient's depression. 1/ The prescription for Meprobamate, with three refills, was given to D. P. after she stated the Valium was not working. This occurred during the terminal illness of her father. The patient was instructed to discontinue the Valium before the new drug was begun. Petitioner's expert agreed that this prescription was not excessive or inappropriate. Accordingly, it is found that the drug was properly prescribed in the course of respondent's professional practice. On July 16, 1985, respondent prescribed two drugs, Lithobid and Chloropromazine, with no refills. The prescriptions were written so that D. P. could continue the medicines she had been successfully taking during her hospitalization at Charter Glade Hospital. Accordingly, it is found the drugs were prescribed in the course of respondent's professional practice. After D. P. telephoned respondent around July 26, 1985, and said she had not slept in several days, respondent prescribed Chloral Hydrate, a sleeping medication. No refills were authorized. This occurred shortly after the patient's discharge from a hospital and while her father was dying. Petitioner's own expert agreed that the prescription was appropriate. Accordingly, it is found that the drug was properly prescribed in the course of respondent's professional practice. Finally, on April 23, 1985, respondent prescribed Fastin, a controlled substance, with no refills. This was done after D. P. telephoned respondent and complained of gaining weight due to overeating. Respondent justified this prescription on the ground he knew that the patient would obtain a similar drug from the "black market" if he did not comply with her request, and he only wished to protect her with a legitimate, safely prescribed drug. However, given the patient's prior history of difficulties with this type of medicine, of which respondent had knowledge, the prescription is found to be inappropriate and thus not in the course of respondent's professional practice. This is true even though respondent cautioned the patient that she had gotten in trouble using that type of drug in the past. The issue of whether it was inappropriate for respondent to overlap certain drugs was raised by petitioner. In other words, petitioner contends that it was inappropriate for respondent to prescribe one medication before another had been used up because the patient would then have several in her possession at the same time. It is noted initially that in June 1983 when respondent asked D. P. if she was using any drugs other than that prescribed by him, she denied any such use. Given the patient's repeated history of extreme anxiety, agitation, panic attacks and depression, her high tolerance for medications to treat the same, and her undergoing several family crises during the relevant time period, it is found that the overlapping of certain drugs was not inappropriate or excessive since respondent always instructed the patient to discontinue one drug if another was prescribed. In making this finding, the undersigned has accepted the testimony of Dr. Vatakencherry, an expert in psychiatry. Further, this finding is made even though respondent did not record in his records that such advice had been given. The undersigned has also considered the contention that respondent should not have prescribed any medicine to the patient after the sexual encounters occurred. However, the expert who rendered this opinion did not believe this was inappropriate when giving deposition testimony two weeks prior to hearing but reached a different conclusion two weeks later while giving live testimony at hearing. This opinion has been rejected as not being credible. Count II In the second count, respondent is charged with having exercised influence within a patient/physician relationship for the purpose of engaging a patient in sexual activity. This charge stems from respondent's admission that he had intercourse with the patient on three occasions in December 1983 and January 1984 while the patient was still under his care. In making this allegation, the Board relies upon the statutory presumption that a patient is presumed to be incapable of giving free, full, and informed consent to sexual activity with her doctor. Respondent's first regular office session with D. P. was on June 17, 1983. He saw her again on June 20 and 23 and July 1, 1983. During a subsequent visit on July 19, 1983, D. P. began speaking about what is classically known as transference. This term is used to explain the feeling a patient develops for her psychiatrist during treatment. It can be positive or negative in the sense that the patient may like (positive) or dislike (negative) the therapist. It is common to have positive transference in a psychiatrist/patient relationship, and it is essential for the patient to get better and to improve. A doctor is not to be faulted for the development of a positive transference. In some cases, the positive transference takes on erotic or sexual overtones. If this occurs, the doctor should try to redirect the patient by explaining transference to the patient, telling the patient such a relationship is impossible, and that the patient may have to get another doctor. When D. P. first spoke of transference on July 19, respondent explained the meaning of the term to his patient. Even so, on numerous occasions thereafter, D. P. expressed her feelings for respondent, thereby evidencing the formation of a strong, positive transference with erotic and sexual overtones. On each occasion, respondent tried to redirect the patient and explained that such a relationship between them could not work and that she should see another psychiatrist. During the period from June 17, 1983 until December 2, 1983, a pattern of behavior by the patient began to emerge. On one visit D. P. would be calm, agreeable to treatment suggestions and seeming to improve and then be in crisis, very anxious, panicky and tense on the next visit. Towards the end of this period of time, respondent was becoming confused about the case because of the pattern of slight improvement on one visit and then no improvement on the next visit. Each time respondent would suggest that the patient see another psychiatrist she would refuse and say that she would hurt or kill herself. Even so, respondent did not consider D. P. to be a danger to herself or to others. At the end of a session with respondent on December 2, 1983, D. P. locked the door, told Dr. Perez she did not want to let him out, and started undressing him. At that point, respondent says he "lost (his) character" and had sexual relations with the patient in his office. At hearing the patient acknowledged that respondent did not force her to engage in sexual intercourse, and it is hereby found that her participation in the sexual episode was voluntary on her part. It is also noted that respondent did not initiate the incident and did not plan to have sex with his patient. Respondent next saw the patient in his office on December 7, 1983. He told her that the relationship was not going to work and that the sexual episode was unfortunate. When respondent next saw the patient in his office on December 15, 1983, he did not allow her to stay for the full hour session and told her they could not continue their psychiatrist/patient relationship. Later on that afternoon, D. P. telephoned respondent at his office and insisted on seeing him, saying it was very important and she would "blow up" if he would not see her. Respondent accordingly agreed to see D. P. at his office around 7 or 8 o'clock. At that time, respondent was separated from his wife and was living in an extra room at his office. The two again engaged in sexual intercourse on that evening. However, the patient acknowledged that respondent did not force her to engage in sexual intercourse and Dr. Perez did not initiate the incident nor plan to have sex with the patient when he agreed to see her that evening. Respondent next saw the patient on December 22 and 28, 1983. On both occasions the patient insisted they continue seeing each other. Respondent told her the sexual relationship was inappropriate and they could not continue to see each other. The patient warned respondent that if he left her, she would hurt herself. On January 6, 1984, respondent saw D. P. on an office visit. The patient telephoned respondent on the following Friday evening and insisted on seeing him. Respondent told D. P. he could not see her and that their relationship could not continue. After she continued to insist that they meet, respondent agreed to meet her on Saturday at the site of a house he was building. At that meeting, respondent had sexual intercourse with the patient, although at hearing she denied that a sexual encounter occurred on that date. Again, she was not forced to engage in this conduct and respondent did not initiate the incident nor plan to have sex with the patient when he agreed to see her. Although respondent continued to see the patient on a sporadic basis until August 1984, he repeatedly told her that their behavior was wrong, the doctor/patient relationship must end and she must seek a new therapist. However, the patient was under a great deal of pressure due to a very sick aunt and a father with cancer and needed support, which he tried to provide. Following her August 15, 1984, office visit, respondent next saw the patient in June 1985 when he admitted her to a local hospital after the patient's husband telephoned respondent saying she was very nervous, upset, hyper, was experiencing nausea, vomiting and panic and was in the need of hospitalization. The patient had threatened to "end it all" if respondent would not be her doctor. Respondent admitted her to Charter Glade Hospital, monitoring her case and treating her with another psychiatrist. Two months later, D. P. agreed to be transferred to the care of Dr. Norman Bills, a Fort Myers clinical psychologist. Count III Count III of the amended complaint alleges that respondent "engaged in sexual misconduct in the practice of medicine by using the physician-patient relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient." The findings of fact used in the preceding count are equally applicable to this charge and will be used in determining whether such a violation occurred. Count IV The next count alleges that respondent "failed to keep written medical records justifying the course of treatment of the patient including, but not limited to, the following: the Respondent failed to note numerous prescriptions in Patient #1's medical records: the records fail to justify the long term prescribing of medicinal drugs; the records contain no justification for prescribing Fastin; the records are insufficient to allow even Respondent to monitor the patient's drug therapy." The medical records of patient D. P. reveal that respondent did not record the following prescriptions in his progress notes: 12/2/83 Serax 0 refills 2/2/84 Valium 3 refills 4/6/84 Sinequam 2 refills 4/27/84 Xanax 3 refills 12/10/84 Valium 3 refills Respondent conceded that he had neglected to note those prescriptions in his records but stated it was inadvertent. He noted that some of the prescriptions were requested by telephone, and because at that time he was working part time at two mental health centers besides his office practice, he inadvertently neglected to record the prescriptions in the records. Even so, by failing to record those prescriptions, respondent did not maintain adequate medical records as required by law. As to the allegation that respondent's records failed "to justify the long term prescribing of medicinal drugs", it is found that by virtue of the lack of records noted in the preceding finding of fact, they were deficient in that they did not enable him to properly and adequately monitor the patient's drug therapy. The amended complaint also makes an allegation that "the records contain no justification for prescribing Fastin". That drug contains phentermine, a controlled substance listed in Schedule IV of Chapter 893, Florida Statutes, and has anorexiant appetite suppressant effects. The drug was prescribed for D. P. on April 23, 1985, after D. P. telephoned respondent and asked for the prescription because her father was dying of cancer and she was overeating and getting extremely overweight. Respondent cautioned the patient that she had gotten into trouble with that type of drug in the past but nonetheless wrote her a prescription for thirty pills to keep her from purchasing a weight reduction pill on the black market. Although his progress notes indicate that the drug was prescribed, there are no other entries indicating the patient's symptoms or the like. Therefore, while respondent's verbal explanation may have been a valid reason for prescribing the drug, it is found that the written records contain no justification for that action. Finally, the allegation is made that "the records are insufficient to allow even Respondent to monitor the patient's drug therapy." In this regard, it is found that to the extent respondent failed to record his prescribing of drugs on five occasions as noted in finding of fact 34, the records are deficient in this limited respect. Count V The final count charges that respondent "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." In this regard, both parties presented expert testimony on this issue. As might be expected, the experts reached sharply different conclusions as to whether respondent met the statutory standard of care. In resolving this issue, the undersigned has accepted the more credible testimony which is embodied in the finding below. The testimony of the Board's expert, Dr. Peter J. Spoto, a practicing psychiatrist in Clearwater, is accepted to the extent that Dr. Spoto found respondent's sexual involvement with his patient, inappropriate prescribing of Fastin on one occasion, and failure to keep adequate medical records as described in findings of fact 34 - 37 to be a deviation from the standard of care expected of a psychiatrist. Testimony that respondent's sexual episodes rose to the level of gross malpractice is not accepted. Mitigating Evidence The Board's rule setting forth suggested penalties to be imposed on licensees for violating chapter 458 contains a number of factors to be taken into account in determining an appropriate penalty. One such factor is the exposure, if any, of the patient to injury, physical or otherwise, as a result of the questioned treatment. After the patient was referred by respondent to Dr. Bills, and respondent acknowledged to Dr. Bills that he had been sexually involved with her, Dr. Bills saw D. P. for seven office visits. In Dr. Bills' opinion, the patient consented to having sex with respondent, and the sexual relationship between respondent and D. P. had a very minimal effect on her. He also expressed the opinion that the patient's prognosis was very poor because she was not motivated to really help herself and she continued to seize upon drugs. The patient refused to follow Dr. Bills' advice and suggestions and eventually refused to return for follow up appointments. The testimony of Dr. Bills is deemed to be credible and is hereby accepted. At hearing the patient stated she suffers from headaches and stomach problems at the present time. An internist, Dr. Barry Zaretzky, confirmed that D. P. was first diagnosed as having colitis in January 1985. Colitis is a benign inflammation of the surface lining of the colon. In August 1985 a gastroscopy performed by Dr. Zaretzky revealed the patient had chronic gastritis. Another examination performed in May 1990 revealed ulcers in the lower portion of her stomach, and she now suffers from chronic peptic ulcer disease, a permanent condition. However, Dr. Zaretzky expressed the opinion that with proper treatment D. P. will get better and there is nothing wrong with her of a serious nature. In addition, Dr. Sanders' deposition testimony established that D. P.'s headache and colitis conditions predated her treatment by respondent. Accordingly, it is found that there is a lack of clear and convincing evidence to establish that the emotional and medical problems suffered by D. P. were caused or exacerbated by her treatment by respondent or the sexual relationship between them. In making this finding, it is noted that during this same period of time, the patient was experiencing a number of family crises caused by the terminal illnesses of her father and a close aunt. There is no evidence that respondent's license has ever been disciplined by the Board or that he has engaged in this type of conduct with other patients. Except for this isolated incident which occurred almost seven years ago, respondent's record as a medical doctor is unblemished. Moreover, at the time of the offense, there were no legal restraints on respondent's legal status. Finally, respondent did not realize pecuniary gain by virtue of his conduct. Indeed, he has suffered substantial monetary losses through the closing of his private practice as a result of the notoriety of this matter and the settlement of D. P.'s civil malpractice action for $150,000. Respondent was described by a wide array of witnesses, all of whom were aware of these charges, as being a competent physician who is highly respected by his professional peers and employers both before and after the D. P. incident. These character witnesses included nineteen Fort Myers area medical doctors as well a number of health care administrators. Respondent is now employed in the public sector by a mental health hospital in Lake County. He is the first child and adolescent psychiatrist employed by that facility, and its administrator said it would take at least six months to find anyone who would replace him. Of all the physicians at that facility, respondent is the physician in whom the medical director places the greatest trust. Respondent desires to continue in his present employment and has no intentions of returning to private practice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 458.331(1)(j), (m), (q) and (t), Florida Statutes (1989) and that his license be suspended for one year, of which all shall be stayed except for thirty days and that he be placed on probation for four years. DONE and ENTERED this 9th day of November, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1990.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Nursing, has regulatory authority over nurse practitioners in the State of Florida. One of those practitioners is Sandra Pauly, who has been issued license number 37332-1, Licensed Practical Nurse. She was formerly known as Sandra Hoffman. Respondent Pauly holds that license in good standing and was so licensed at all times relevant to this case. From late 1980, through the beginning of February, 1982, Respondent worked as a shift nurse at Beaches Hospital, Duval County, Florida. When Respondent took the position, she was apprised of the hospital's procedures for transcribing doctors' medication orders and for the administration of those medications. These procedures are in keeping with the procedures manual, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. This manual was given to Pauly at the time of her employment. Additionally, she was assigned to work with an experienced nurse who assisted in familiarizing Pauly with the procedures set forth in that manual. Respondent was also involved in an orientation session with the Director of Pharmacy Services in the hospital. In the course of that education session, Respondent was familiarized with pharmacy policies related to dispensing medication for patients and made aware of Florida laws on the subject of administration of medications. This orientation period considered physicians orders, labeling techniques utilized by the pharmacy in identifying the patient medications and other matters related to medications dispensed by the pharmacy. This discussion also included proper documentation of the administration of medications. On January 7, 1981, Carol Brown, Head Nurse on the 300 Wing of Beaches Hospital, had an employee conference with Respondent on the topic of medication errors which had been committed by Respondent in the treatment of patients in Respondent's charge. While working at Beaches Hospital, Pauly had initialed patient medication records indicating the administration of medications, when in fact the medications had not been administered. This conduct by Respondent was contrary to hospital procedures and contrary to minimal acceptable and prevailing nursing practice in the community. Respondent denied failing to give the medications. Out of this circumstance, Respondent was given a warning and told that if the problem continued she would he terminated from her employment at Beaches Hospital. Linda C. Melanson was a patient who was being treated in Beaches Hospital in February, 1981. Respondent was a shift nurse in charge of the care of Melanson on the 3:00 P.M. to 11:00 P.M. work cycle, February 9, 1981. The patient's medication administration record, a copy of which is Petitioner's Exhibit No. 1A, admitted into evidence, indicates that Respondent gave the patient Tussenex at 9:00 P.M., Bactrim DS at 9:00 P.M., Desophoral at 9:00 P.M. and Adapin 10 mg. at 9:00 P.M. However, the medications were not given to the patient by Respondent as documented. Respondent did not initial the entries related to the medications when she made the entries. On February 10, 1981, the medications were returned to the pharmacy and it was noted that the administration of those medications had not been initialed on the carbon utilized by the pharmacy, in addition to Pauly's failure to administer the medications. Respondent subsequently initialed the original patient medication administration record on February 11, 1981. By these acts and omissions, Respondent departed from minimal standards of acceptable and prevailing nursing practice in the community. Anthony Scott was a patient being treated in Beaches Hospital on February 25, 1981, and he was under Respondent's care on that date. On that date, at 4:00 P.M. she administered Sphospho-Soda; at 5 P.M. to 9:00 P.M., Proctofoam-HC and at 7:00 P.M., Dulcolax in the amount of three tablets. Per physicians' instructions these items should have been administered to the patient on February 26, 1981. See patient's medication administration record, Petitioner's Exhibit 1B, admitted into evidence. In effect, a barium enema was given one day prior to the time ordered. This error required the patient to undergo the same preparation, i.e., the barium enema sequence, on the following day, a physical discomfort to the patient. The action by Respondent also caused additional financial expense. This mistake on the part of Respondent was a departure from minimal standards of acceptable and prevailing nursing practice in the community. The medication administration record of the patient James Harrell, may be found as Petitioner's Exhibit 1H, admitted into evidence. This patient was under Respondent's care on September 28, 1981, while he was being treated in Beaches Hospital. On September 28, 1981, four Aluminum Hydroxide had been sent from the pharmacy for Harrell's benefit. In addition, four Maalox had been dispatched on that date. On the patient medication administration record, Respondent indicated that during her shift, from 3:00 P.M. to 11:00 P.M., on September 28, 1981 she administered one Aluminum Hydroxide out of the four and two Maalox out of the four. Four Aluminum Hydroxide were returned to the pharmacy on September 28, 1981. On that same date, three Maalox were returned. This establishes that Respondent did not administer the one Aluminum Hydroxide as she indicated and only administered one Maalox as opposed to the two Maalox which she claimed. By these acts and omissions Respondent departed from minimal standards of acceptable and prevailing nursing practices in the community. On October 16, 1981, Jessy Jones was a patient at Beaches Hospital. He was attended by Respondent on that date and she indicated the administration of SSKI to the patient; however, she failed to initial the administration of that medication. (SSKI is a saturated solution of potassium iodine.) This failure was a departure from minimal standards of acceptable and prevailing nursing practice in the community. See Petitioner's Exhibit No. 1F, admitted into evidence, the patient's medication administration record. Mary Sallas was a patient at Beaches Hospital on October 9, 1981. Forty milligrams of Prednisone had been dispensed from the pharmacy for the benefit of Sallas. This substance is a steriod to assist persons with asthmatic conditions. On that date, Respondent, who was caring for Sallas, made entry on the patient's medication administration record that 40 mg. of Prednisone was given Sallas. The entry was initialed by Respondent. See Petitioner's Exhibit 1G, admitted into evidence. In fact only 20 mg. had been administered to the patient by Respondent. These acts and omissions by Respondent are departures from minimal standards of acceptable and prevailing nursing practices in the community. Mary Sallas was again a patient in Beaches Hospital on December 21, 1981. A copy of her medication administration record for that date may be found as Petitioner's Exhibit No. 1C, admitted into evidence. Sallas was in the care of Respondent on that date. Respondent indicated and initialed that she had administered 40 mg. of Prednisone to the patient Sallas at 9:00 A.M. on December 21, 1981. The 40 mg. of Prednisone Sallas supposedly received from Respondent was not administered by Respondent and was in fact returned to the pharmacy. These acts and omissions by Respondent were departures from minimal standards of acceptable and prevailing nursing practice in the community. Monserrate Morales was a patient in Beaches Hospital on February 8, 1982. Respondent was the shift nurse on his ward from 7:00 A.M. to 3:00 P.M. on that date. She indicated the administration of Orinaze at 7:30 A.M.; Septra DS at 8:00 A.M.; Zyloprim at 9:00 A.M.; Clinoril at 9:00 A.M. and Pyridium at 9:00 A.M. See Petitioner's Exhibit No. 1D, admitted into evidence. Pyridium is an urinary anesthetic. Clinoril is an antiarthritic or pain reliever. Zyloprim is an anti-gout medication. No other patient on the ward was receiving these medications on February 8, 1982. Amounts of Clinoril, Zyloprim and Pyridium which Respondent claimed to have administered to the patient Morales were found in a trash bag on the medication cart from which the medications had been extracted by Respondent. They were found by a nurse on the next work shift, the 3:00 P.M. to 11:00 P.M. shift. These medications are part of Petitioner's Composite Exhibit 3, admitted into evidence. Respondent had not administered the Clinoril, Zyloprim and Pyridium as she claimed on the medication administration record. These acts and omissions by Respondent were departures from minimal standards of acceptable and prevailing nursing practices in the community. Catherine Fantom was also a patient at Beaches Hospital on February 8, 1982. She was being attended by Respondent on the 7:00 A.M. to 3:00 P.M. shift. A copy of her medication administration record may be found as Petitioner's Exhibit No. 1E, admitted into evidence. That record shows, by written entry made by Respondent, that she administered Slow K and Aristocort to the patient on February 8, 1982. Slow K is a potassium supplement to increase potassium or electrolytes in the patient's system. Fantom was the only patient on that ward receiving Slow K on the date in question. When Respondent indicated her administration of Slow K and Aristocort, she did not initial the medication administration record where the entries were being made. She subsequently initialed the record at a time later than February 8, 1982. These differences are shown in the pages of Exhibit 1E, in that copies of the Slow K and Aristocort entries at the time of the claimed administration are found on the second sheet and the initialed copies are found at page four of that exhibit. The Slow K was never administered to the patient and was subsequently found by the 3:00 P.M. to 11:00 P.M. shift nurse who came to work after Respondent on the date in question. That substance may be found as a part of Petitioner's Composite Exhibit No. 3. These acts and omissions by Respondent constitute departures from the minimal standards of acceptable and prevailing nursing practice in the community. All individual mistakes, acts and omissions were also departures from hospital policy related to administration and charting of patient medications.
Findings Of Fact At all times relevant to the issues involved in this hearing, the Respondent was licensed as a registered nurse, having been licensed on September 1, 1967, by examination, with license number 41856-2. At all times pertinent to the issues involved in this hearing, Respondent was employed as a registered nurse at Gulf Coast Community Hospital (GCCH), Panama City, Florida. On August 4, 1983, Dr. David W. Scott, an orthopedic surgeon with practice privileges at GCCH, treated Arthur Collins in the emergency room of that hospital. After taking a history from the patient and examining him, he concluded that Mr. Collins was a drug addict who had the ability to manipulate physicians for the purpose of obtaining narcotics. As a part of his treatment of this individual, Dr. Scott prescribed 100 mg of Demerol four times a day which was obviously insufficient for Mr. Collins who had developed a drug tolerance. As a result, Dr. Scott added an additional drug, Vistoril, to augment the Demerol. Before leaving the hospital that night, and because Mr. Collins was obviously addicted to narcotics, Dr. Scott left an oral order with the nurse on duty at the nurses' station, subsequently identified as Ms. Habersham, not to increase the dosage prescribed for the patient, not to give additional narcotics, and not to call the on-call physician in the event Mr. Collins complained of pain. The reason for this last instruction concerning the physician was to prevent the on call physician, who might not know the patient's history and of his drug addiction, from prescribing additional narcotics. Ms. Habersham worked as a charge nurse on the day shift during this period and recalls patient Collins. When she was relieved by the Respondent at the end of her shift, she passed Dr. Scott's orders on to her. Consequently, it is clear that Respondent was aware of Dr. Scott's order not to increase Collins' dose and not to contact the on-duty physician in the event Collins asked for more medicine. Nonetheless, Respondent admits giving Mr. Collins an injection of 125 mg of Demerol even though the doctor's order called for a 100 mg dose. She justifies this on the basis that the patient had said he was in great pain and constantly kept coming to the nurses station begging for more medication. She observed him to be sweating and grabbing at his stomach. Based on her experience in the Army Nurse Corps and the Army Surgeon General's recommendation for a 125 mg dose of Demerol in situations such as this, and because she did not want to wake up Dr. Rohan, the on-call physician, she gave the additional dose on her own authority feeling she could get Dr. Rohan's approval later on. Dr. Rohan recalls only an incident in August of 1983 where he got a call from a nurse whose name he cannot remember for a "cover order" for a medication. As he recalls it, the nurse in question called to notify him that she had administered more of a drug than was called for in the doctor's order. It was his understanding, however, that the nurse had given too much by accident and was telling him about it after-the-fact, not in advance, to authorize a higher dose. It is clear from the above, therefore, that Respondent called Dr. Rohan after she had administered the higher dosage to Mr. Collins on her own authority. Respondent indicates, however, that Ms. Habersham had told her that if this particular patient needed more medication he was to get it and that the nurse should secure the authorization by phone. Respondent presented no evidence to support this, however, and though she contended she had a witness to this conversation, the witness was not presented. Respondent contends that she could change the amount of medication prescribed by the physician if it was necessary. She claims that nurse-practitioners can do this within the protocols set down by a physician. Respondent was not then nor is she now a nurse practitioner. During the month of February, 1984, Linda Marie Jones was unit coordinator for three units at GCCH, including Respondent's. Part of her job involved the monitoring of and investigation of drug discrepancies. During this time, Mr. Jones was conducting an audit of drug accountability in Respondent's unit. This audit, while not based on any suspicion of misconduct by any employee, resulted in a determination that one Nembutal tablet was missing from the unit. A check of the records reflected that this medicine had not been ordered for any patient on the unit that day. She then checked the patients' charts to see if a Demerol 100, a similar drug, had been used, and as a part of this procedure, she found that in the case of some patients, two different records dealing with a specific administration of medication did not agree. Her check of all records on the unit revealed that only the Respondent had any discrepancies. All other nurses' records were satisfactory. Her investigation included a comparison of the medication administration record (MAR) with the nurses notes on which the same administration was to be noted. In the course of her investigation, she checked six patient records, including those of patient Haire, patient Oakley, and patient Crosby. At the conclusion of her investigation, she prepared a summary of her findings which she presented to Ms. Flemister, the Director of Nursing. Ms. Flemister met with Respondent and showed her a copy of the report. At that point, Respondent denied having taken any of the medications and said that she could not figure out why the discrepancies existed. As to the Nembutal, which prompted the investigation initially, Respondent remembered cleaning out the narcotic box the first time, but did not identify a shortage at the time. As a result, the missing Nembutal was attributed to "wastage" and when that happens, the wastage must be recorded on the narcotics sheet. This Nembutal wastage was not recorded by Respondent or any other nurse. Ms. Jones admits, however, that there is no evidence to connect Respondent with the wastage of the Nembutal any more than any other nurse assigned to that floor. With regard to an administration of Morphine Sulfate to patient Haire at 9:00 P.M., on February 6, 1984, the narcotics control sheet fails to show that morphine sulfate was administered to this patient on that occasion. With regard to the 8:30 P.M. administration of Morphine Sulfate to patient Haire on February 5, 1984, the narcotics control sheet reflects that Respondent recorded the administration of this medicine but does not reflect the date in question. The entry made reflects the patient's room rather than the date. As a result, it is impossible to tell if the administration was done on February 4 or February 5. However, the Respondent did reflect this administration on the nurses' notes although in the wrong place. As to the issue of Respondent's signing out Morphine Sulfate for patient Haire at 7:00 A.M. on February 5, the evidence establishes that she did sign out both Morphine Sulfate 100 and Demerol 100 as alleged. The MAR reflects some entry but it is impossible to determine what the entry is or to what drug it refers and Respondent's nurse's notes for that date are silent. The medical records pertaining to patient Oakley for February 5, 1984, reflect that, as to the nurses' notes, the patient was given medication for pain but the notes fail to show what type of medication was administered. It could have been aspirin or tylenol and the note should have said what medicine was administered. This administration was not listed on either the narcotics control sheet or the MAR. If the substance given was not Demerol or Morphine Sulfate, it need not appear on the narcotics control sheet, but whatever it was, it should have been listed on the MAR and it was not. The records regarding patient Crosby reflect that on February 5, 1984, Respondent signed out 75 mg Demerol for the patient as alleged. The notes do not, however, reflect that she administered Demerol specifically. They reflect only that she administered some medication. As to the 9:30 P.M. dose of Demerol on February 5, 1984, Respondent did sign out Demerol at that time but the nurses' notes do not reflect what the substance administered was. Patient Haire's records reflect that on February 4, 1984, Respondent signed out Morphine Sulfate for the patient. The nurses' notes reflect that at 8:00 P.M. on that date, she administered a "pain medication" to the patient without defining what that medication was. The record does not indicate that Morphine Sulfate was administered. The narcotics control sheet for this period is not dated so it is impossible to determine whether Morphine Sulfate was listed on its document or not. However, the MAR reflects that Respondent administered Morphine Sulfate to this patient at 6:00 A.M. On February 4, 1984, Respondent signed out Demerol for patient Oakley and properly noted this on the narcotics control sheet but the nurses' notes fail to show that the substance was administered as required. Later on, at 8:30 P.M. the same day, Respondent again signed out Demerol for Patient Crosby listing on the narcotics control sheet the patient's room number but not the date. Other dates on the sheet lead to the conclusion that it was February 4, however Respondent thereafter failed to record the drug's administration on the nurses' notes. She also signed Demerol out for Patient Crosby at 7:30 P.M. on February 4 though the narcotics control sheet fails to reflect the date - only the room number. This administration is in the MAR at 8:30 P.M. rather than at 7:30 P.M. but is not in the nurses' notes at all. On February 3, 1984, Respondent recorded in her nurse's notes that she administered Demerol to patient Crosby at 8:00 P.M. The narcotics disposition record (narcotics control sheet) shows that she signed the medication out between 8:00 and 9:00 P.M., but it is impossible to tell with certainty the exact time. It is obvious that Respondent's handwriting is poor. This fact adds to the difficulties encountered from the way in which Respondent kept her records. In the opinion of Ms. Jones, who has been doing quality assurance checks for a number of years, Respondent's records are inaccurate, inconsistent, incomplete and totally insufficient for a nurse on the next shift to know what medications have been given and what must be done. In this area alone, Ms. Jones was of the opinion that Respondent's charts are below the minimum standards for nursing practice in the area and even though her own report was erroneous in some respects, there are still enough verified errors by the Respondent to support her opinion that Respondent's performance is less than acceptable. Respondent admits that some but not all of the charges against her are true. Though she may have mischarted her administration of drugs she never took the drugs herself. The patient always got the drug that he or she was supposed to get and her errors were errors only as to the recordation of time. They were administrative errors, not substantive errors. She contends that in February, 1984, because the floor on which she had been charge nurse since December, 1981 had been closed, she was forced into a staff nurse position. This was not a good situation and as a result of the closing of that floor, several nurses quit. This loss of nurses resulted in more patients per nurse to the point where Respondent felt that patient safety was in danger. She contends she tried to tell Ms. Jones about this but Ms. Jones would not see her. All of a sudden, she found herself called in front of Ms. Flemister and Ms. Jones and terminated based on the alleged inaccuracies in her records. Respondent contends she received no information about this other than that contained in Ms. Jones' summary and in that regard she says, Ms. Jones assured her that her summary was correct and in no way tried to explain the inaccuracy of the records. Respondent contends that she had frequently asked her supervisors for extra help but never got any. She contends she had as many as 18 patients to handle by herself and at the time involved in the records discrepancies here, she had 8 patients on the floor. She contends that the errors to which she admits were due to her hectic schedule. As a single parent, she was working, she says, between 60 to 80 hours per week on two jobs and had a sick child at home. Ms. Flemister, on the other hand, says that Respondent had plenty of help. At the time, Respondent was working the night shift from 7:00 P.M. to 7:00 A.M. The shift was staffed by 4 registered nurses, 2 licensed practical nurses, and a secretary, and in her opinion, this staff was well within the normal range of staff-patient ratio. Ms. Flemister contends that while Respondent was on duty, she had between 5 and 6 patients to take care of. She was the charge nurse for the shift and therefore had less patients than a regular floor nurse. She admits that Respondent did complain about being shorthanded, but these complaints were neither constant nor repeated and were never submitted through proper channels. Ms. Flemister contends that prior to this time Respondent had been counseled about her writing and documentation, but there has been no evidence of any discrepancies other than those involved in this case. There are certain procedures followed at GCCH and a part of Ms. Flemister's job is to oversee the standards of the hospital, the Board of Nursing, and the Joint Committee on Hospital Accreditation as they are applicable at this hospital. On the first day of duty, all new nurses are given an orientation which includes records management and how to use a medication cart. A medications test is given and a model cart is used in this training. On the cart, each patient has his or her own area. Narcotics and barbiturates are kept together. Medication administration records, including a page for every patient, are kept with the cart. Each administration of medication is supposed to be recorded and each use of narcotics is supposed to be listed on the narcotics sheet with the name of the patient, the date, the drug, and the nurse administering it. Medications are first called for in the doctor's orders and are checked by the secretary and the nurse who checks and signs it initially. The doctor's orders are then used to give medications. When a nurse gives a medication she checks the doctor's order against the medical records and then prepares the medicine, administers it, charts it and signs it off. The entry is recorded on the medical administration record and it and the charting register are both on the cart. The nurse goes back to the nurses' station to record the administration of the medicine in the nurses' notes which are kept in the patient record. This method of documentation is set out in the hospital policy and procedures which are given to all nurses. Accurate medication records are important so that nurses on subsequent shifts do not administer a drug too soon after the last dose was given and thereby create an overdose. Therefore, medications are logged in several different locations because state law requires it to promote agency oversight by the pharmacy and the Department of Nursing, and because the record is used at shift change to insure an accurate count of narcotics on hand on the medicine cart. Failure of employees to follow the hospital procedures results in the following sequence of events: reprimand; counseling; a written reprimand; and discharge; all depending, of course, on the seriousness of the offense. However, after the discussion with Ms. Flemister and Ms. Jones Respondent was terminated because of the discrepancies between the narcotic record and the poor and illegible documentation in the nurses' records and elsewhere. Respondent, on the other hand, claims that though she has been licensed in the State of Florida since 1967 and has worked at GCCH since 1981, there has never been any prior disciplinary action taken against her nor has she received any prior complaints about her method of charting or administration of drugs and she was doing it as she usually does in February, 1984. Notwithstanding her protestations of no prior disciplinary action, however, the records reveal that Respondent was given a two-day suspension for the incident involving the over administration of Demerol to Mr. Collins and advised that a repeat discrepancy would result in her discharge. It is important to note that as a part of the investigation into Respondent's alleged misconduct, she was requested to provide a urine sample for urinalysis. This routine drug screen revealed no use of controlled substances within the seven days prior to the test which was accomplished on February 20, 1984.
