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
The Issue The issue is whether Respondent is guilty of failing to complete background screening of all employees, in violation of Sections 400.419(1)(c) and 400.4174(2), Florida Statutes, and failing to record the administration of medications to three residents, in violation of Sections 400.419(1)(c), Florida Statutes, and Rule 58A-5.0182(6)(b), Florida Administrative Code.
Findings Of Fact Effective June 13, 1998, Petitioner issued a standard license to Respondent to operate an assisted living facility to be known as The Islander. The license expired June 12, 2000. However, Respondent has maintained a license for the facility through the date of the final hearing. On February 9, 2000, Petitioner conducted a biennial inspection of The Islander. The inspection report reveals two relevant deficiencies, which are identified as "Tags." As cited in the inspection report, Tag A214 states that Respondent failed to complete background screening on all employees hired on or after October 1, 1998. Tag A214 alleges that Respondent hired one employee on September 10, 1999, but did not have evidence that this employee had completed background screening, even though the employee was on duty on the date of the inspection. As cited in the inspection report, Tag A605 states that Respondent failed to record the observed dosage of medication that residents administer to themselves. As relevant to the present case, Tag A605 alleges that the medication record documentation did not confirm the administration by Resident #3 of Artane, Dilantin, and Mellaril for specified periods of time or the administration by Resident #4 of Synthroid or Respiridol for specified periods of time. The February 9 inspection report gave Respondent until March 10, 2000, to correct the deficiency cited as Tag A204 and required the immediate correction of the deficiencies cited as Tags A605. The inspection report classified both of these tags as Class III deficiencies. On March 30, 2000, Petitioner conducted a follow-up inspection of The Islander. The purpose of this inspection was to determine if Respondent had timely corrected the deficiencies cited in the February 9 inspection report. The March 30 inspection report re-cites Tag A214. The inspection report states that, although the person previously cited as lacking documentation of background screening was no longer employed by Respondent, the manager's personnel file revealed that the manager lacked the required background screening. The inspection report gave Respondent until April 30, 2000, to correct this alleged deficiency. The manager to whom Tag A214 refers is Respondent's 22- year-old daughter. She has been an employee of Respondent at The Islander continuously since prior to October 1, 1998. The March 30 inspection report re-cites Tag A605. The inspection report states that, for three residents, Respondent failed to record the administration of medications at the time of administration. Specifically, the March 30 inspection report alleges that the last recorded administration by Resident #2 of Haloperidol, which was prescribed to be taken three times daily, was 5:00 PM on March 29, 2000; the last recorded administration by Resident #3 of Dilantin EX and Mellaril, both of which were prescribed to be taken twice daily, was at 5:00 PM on March 29, 2000; and the last recorded administration by Resident #4 of Respiridol, which was prescribed to be taken three times daily, was 5:00 PM on March 28, 2000. The administration times for the above-described medications prescribed three times daily are 8:00 AM, 1:00 PM, and 5:00 PM. The administration times for the above-described medications prescribed twice daily are 9:00 AM and 5:00 PM. The reinspection on March 30 took place between 10:10 AM and 11:45 AM. Thus, if the medications had been administered as prescribed, the medical observation records were deficient as follows: Resident #2's records were missing the 8:00 AM administration on March 30; Resident #3's records were missing the 9:00 AM administrations on March 30; and Resident #4's records were missing the three administrations on March 29 and the 8:00 AM administration on March 30. Except for the missing documentation for Resident #4 on March 29, the failures were of documentation, rather than of the actual administration of the prescribed medications. For Resident #4 on March 29, the omission from the records of any administration was because Resident #4 had run out of medication. Although Respondent had requested a renewal of the prescription one week in advance of its expiration, as is Respondent's customary practice, there had been some delay at the pharmacy in resupplying the medication. However, Petitioner has not charged Respondent with any failure in re-ordering medication. Thus, the March 29 record is accurate as for Resident #4. The accuracy of the medication observation record for Resident #4 on March 29 underscores Respondent's commitment to accurate recordkeeping. On the morning of March 30, the three residents in question received their medications, but the administrations were not promptly recorded in the medication observation records, despite Respondent's commitment to accurate recordkeeping. Unfortunately, normal routine at this six-resident assisted living facility was disrupted on the morning of March 30 when one resident woke up with diarrhea. The employee in charge of observing the administration of medications was able to observe each resident take his or her medication, but lacked time to record the administrations immediately. Instead, the employee had to clean the floor, give the ill resident a bath, and change the clothes of the ill resident. Making the morning more chaotic was the requirement that the employee ensure that the residents had their breakfast prior to taking their medications, as the medications were not to be taken on an empty stomach. Unfortunately, before the employee was able to record the administrations after tending to the more pressing concerns, Petitioner's inspector happened to arrive at The Islander and find the omissions from the medication observation records. However, under the unusual circumstances of the morning of March 30, the failure of the employee to record the administrations at 8:00 and 9:00 AM on March 30 did not constitute a failure to record administrations immediately.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 4th day of October, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 4th day of October, 2000. COPIES FURNISHED: Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Michael O. Mathis Senior Attorney Office of General Counsel Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Building 3, Suite 3408-D Tallahassee, Florida 32308 Larry H. Colleton Larry H. Colleton, P.A. 2300 East Concord Street Orlando, Florida 32803
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2006.
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.
