Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of, Florida having been issued license No. 0033496. Respondent's address is 133 Darnell Avenue, Spring Hill, Florida 33626. Respondent rendered medical care and treatment to patient B.R. during the period July 11, 1985 to July 15, 1985 while she was a patient at the Oak Hill Community Hospital, Spring Hill, Florida for, among other things, acute transmural myocardial infarction. On or about July 15, 1985, patient B.R. died from acute myocardial infarction after resuscitative procedures were unsuccessful. Patient B.R. was brought to the emergency room at Oak Hill Community Hospital on July 11, 1985 by her husband after complaining of chest pains. Shortly after arrival she suffered a myocardial infarction and "coded." She was resuscitated and placed in the intensive care unit. As the medical services physician on call, Respondent was contacted and assumed the care of patient B.R., a 65 year old female. Respondent is Board-certified in internal medicine and is Board eligible in cardiology having completed a fellowship in cardiology at George Washington University in 1968. B.R. had formerly worked as a licensed practical nurse who suffered a back injury some years ago which resulted in back surgery three times. In 1978, some 10 years before her demise, B.R. suffered a heart attack. She also had a history of diabetes and recently had undergone a thyroidectomy. With this medical history she presented a complex case for care and treatment. With patient presenting the history and symptoms of B.R., a reasonably prudent physician would have ordered daily chest X-rays, had an echocardiagram taken, inserted a Swan-Ganz catheter and consulted with a cardiologist on the treatment of this patient. None of these were done by Respondent. While acknowledging those procedures above listed were clearly indicated, Respondent testified he suggested those procedures to B.R. but, while she was fully competent to understand his recommendation, B.R. refused to be further X-rayed, refused the echocardiagram because she thought it produced some type of nuclear radiation, and also specifically refused to have any tubes inserted in her veins which would result if the Swan-Ganz catheter was inserted. None of the patient's refusals to accept recommended procedures was charted in B.R.'s hospital records. Respondent testified that B.R. specifically directed him to not chart on her hospital record her refusal to undergo the test and procedures recommended by Respondent. Respondent further testified that following her refusal to undergo the test and procedures and under directions to him not to chart those refusals on the hospital chart, he put this history in his office notes. To corroborate thin testimony Respondent presented Exhibit 5, a copy of those office notes containing entries dated July 12, 13, 14, 15, and 23, August 13, September 26, December 13, 1985 and January 29, 1986, comprising 4 typewritten pages. While a patient has a absolute right to refuse treatment or procedures recommended by his/her physician, the patient does not have the right to direct the physician to prepare an incomplete record of his treatment and progress. The principal purpose of the chart is to record medical evidence of the patient's condition, treatment rendered and results obtained to provide a history from which another physician can, if necessary, adequately take over the care of the patient. The record also provides a history of the patient's response to treatment. Respondent's explanation that if he had expected to be away and another physician had to take over the care and treatment of B.R. he would have made the other physician aware of B.R.'s refusal to undergo the recommended procedures totally failed to satisfy the need for a complete record of the patient in one place. To prove the validity of the office notes as a "business record," Respondent testified that for the past 30 years he has maintained office notes in which he has placed information the patient didn't want in the hospital record. An expert witness in the field of questioned documents testified that each dated entry on Exhibit 5 was typed following a new insertion of the paper in the typewriter rather than all entries being typed at the same time or with the same insertion of the paper in the typewriter and this was consistent with what would be expected in normal office procedures. Respondent's office manager and secretary during the times reported on Exhibit 5 testified she was the one who normally transcribed Respondent's dictated notes, that Exhibit 5 was consistent with the normal office practice which would be to date the entries when they were typed, and, although she does not specifically recall typing each entry on Exhibit 5, they were probably all typed by her. Evidence questioning the validity of Respondent's testimony that the office notes were dictated contemporaneously with his treatment of B.R. and typed on the dates indicated included the testimony of the husband of B.R. that B.R. had a zest for life and it would be contrary to her nature to refuse certain procedures or consultations; the fact that on July 14, 1985 B.R. was intubated with the Respondent present; that there was no financial consideration involved as B.R. was adequately insured; the office manager and secretary of Respondent during the period the office notes are alleged to have been prepared is the daughter of Respondent; and the fact that at the peer review committee inquiry into the facts surrounding the death of B.R., Respondent never mentioned the existence of office notes although he was extensively questioned regarding his failure to maintain a more complete medical record in this case. From the foregoing it is found that B.R.'s refusal to submit to the procedures allegedly recommended by Respondent were not contemporaneously recorded in Respondent's office notes and Exhibit 5 was prepared after Respondent appeared before the hospital peer review committee if not also after the administrative complaint was filed in this case.
Findings Of Fact At all times pertinent to this proceeding the Respondent, Dr. Benjamin Belmonte, M.D., has held a current and valid medical license issued by the Board of Medical Examiners, Department of Professional Regulation. Dr. Belmonte is practicing as a general practitioner in Rockledge, Florida. The Respondent has attained a number of significant honors during the course of his professional career. He was valedictorian of his class in medical school. Subsequently he served as a medical professor from 1956 to 1970 at St. Thomas University in Manila, the Philippines. He worked in the Philippines as a cardiovascular surgeon. He has practiced for approximately ten years in Rockledge, Florida. On June 25, 1980, Linda Lomax made a medical appointment at the Respondent's office using the alias "Sandy Hobson". She testified that upon arriving at the office no medical history was taken although she did state she filled out a form given her by the Respondent's nurse. The Respondent's own testimony shows that she filled out an extensive medical history form (which included a false description of her drug use habits.) This form only indicated the name Sandy Hobson and Linda Lomax never gave any indication to the Respondent at this time that her name was other than Sandy Hobson. Her complaint that day was a severe migraine headache with nausea and, indeed, she vomited in the Respondent's office at the time. The Respondent's testimony established that she gave the appearance of being very ill with a verbal history of severe headaches. The Respondent on that occasion did a complete physical examination, since it was that patient's first visit. The Respondent's testimony, as well as that of his medical expert witnesses, establishes that it is within accepted medical practice to do such an extensive physical only on the first visit and not on subsequent visits. The Doctor suggested prescribing certain non-addictive drugs to this patient at that time and she refused, stating that she was allergic to talwin and others and requested demerol. He told her that he had no demerol in his office and then issued her a prescription for demerol. "Sandy Hobson" then left the Respondent's office and proceeded to a pharmacy across the street. The pharmacist, David Ray, testified for the Petitioner and established that he recognized Sandy Hobson as Linda Lomax, known to him to be a drug abuser. The pharmacist refused to fill her prescription and telephoned Dr. Belmonte and asked him to come to the pharmacy to identify the person to whom he had issued the prescription. David Ray asked the Doctor if that was the person he prescribed the demerol for and he affirmed that it was. The pharmacist in the meantime had called the Rockledge Police Department and two officers, Lt. Carter and Sgt. Ellis had come to the pharmacy. Upon informing the pharmacist that "Sandy Hobson" was the person to whom he had prescribed the demerol the Doctor left the pharmacy. The officers then escorted Ms. Lomax to the police station where she gave certain information to the police and thereupon proceeded to work with the law enforcement agency as an informer providing information concerning certain robberies of pharmacies and other criminal activities in the Rockledge-Cocoa area. It was at this meeting with the pharmacist at the drugstore to identify Sandy Hobson that the Doctor first learned that her name might not be Sandy Hobson. Either at that time or at their next visit on July 3 or 4, 1980, she informed the Doctor that she had given him a false name because she was "hiding from her husband." The Doctor believed this reason for being given the false name and, as the testimony of David Ray establishes, was not actually informed that she was a drug abuser at the time he was asked to affirm his prescription at the pharmacy on June 25, 1980. Linda Lomax next contacted the Respondent on either July 3 or July 4, 1980 (the record is unclear). This meeting occurred when Linda Lomax, uninvited, visited the Doctor at his table at the Rockledge Country Club. Linda Lomax related to the Doctor at that time that she was in severe pain from migraine headaches and feeling very ill. His testimony reveals that her appearance at that time was that she was very ill. She requested another prescription. After questioning her regarding why she needed another prescription so soon the Doctor ultimately gave into her entreaties and agreed to prescribe again for her provided she would come to his office nearby. They then proceeded to the Doctor's office. The record is unclear whether they stopped enroute at a private residence on Barton Boulevard belonging to the Doctor's sister. The Doctor makes an almost daily habit of stopping at that residence to ascertain that it is secure because his sister and her husband are away during the summer. It is his habit to enter the house, turn on the air conditioner briefly and ascertain that no unauthorized entry has occurred and that the house is otherwise secure. The Doctor testified that he could not remember definitely whether he stopped on this occasion nor whether Linda Lomax also stopped at the house on the way to his office. Linda Lomax testified that they went into the house together, had an alcoholic drink and that he propositioned her for sexual favors. She then testified that he called two pharmacists in the local area, one in Melbourne and one in Rockledge who, according to her testimony, informed him that they would not fill a prescription for her because she was a drug addict. It was established by the Doctor's testimony, which the undersigned finds more credible, that the telephone was disconnected all that summer because the house was unoccupied and therefore the undersigned finds it was impossible that the Doctor called any pharmacies from the house on that occasion and therefore could not have learned at that time that Linda Lomax was a suspected drug addict. The testimony of Elsina Jordan, a pharmacist at the Eckerd drugstore on Dixon Boulevard in Rockledge is unpersuasive because although she testified that she received a call from a person who sounded like Dr. Belmonte, she was unable to remember the definite date that she received the call and that it could have been in the latter part of July, 1980. She could not sufficiently relate it to the same occasion to enable that testimony to serve as corroborative of that of Linda Lomax regarding whether the Doctor had been put on notice by a pharmacist of Lomax's drug problem. It should be pointed out that the testimony of Elsina Jordan also corroborated the showing by the other pharmacists testifying that the Doctor was of a conservative bent in his tendency to prescribe controlled substances. In any event Dr. Belmonte ultimately issued Ms. Lomax a prescription for demerol dated July 4, 1980. Linda Lomax next approached the Respondent on July 6, 1980, when she confronted him at the Rockledge Country Club where he was socializing with friends. This visit was not at his invitation and he felt surprised and a little discomfited at her appearance during non-office hours. She requested an additional demerol prescription and he protested, reminding her firmly that he had just prescribed thirty tablets on July 4. She remonstrated persistently that she was suffering from severe migraine headache pain and felt very ill. She additionally protested that she was leaving town the next day for approximately ten days' vacation and wanted to have the medication to meet any need that might arise while she was out of town. The Doctor ultimately and reluctantly agreed to give her a prescription for fifteen tablets since she still had fifteen left of the thirty tablet prescription made on July 4. These tablets were prescribed to be taken every four hours for a total of six per day, therefore the additional prescription, if taken at that rate, would have only lasted her approximately two and a half days of the ten days for which she requested them. The Doctor thus, at this stage of the doctor-patient relationship, was making an effort to prescribe conservatively and the number of tablets prescribed on this occasion corroborates the Doctor's testimony that at this meeting he was trying to inform her that she might be taking an excessive amount of this medication. The Doctor acknowledges that on this occasion he and Linda Lomax journeyed in separate cars from the Country Club to his office to execute the prescription. Her testimony asserts that they stopped by the house of his sister on Barton Boulevard at which time the Doctor drank an alcoholic beverage and propositioned her for sex. The Doctor vehemently denies that this occurred, although he acknowledges that they may have stopped at the house enroute in order to allow him to inspect the house according to his almost daily routine when journeying between his office and the Country Club. Dr. Belmonte next saw Linda Lomax on July 12, 1980, when, at her request, he admitted her into Wuesthoff Memorial Hospital for demerol detoxification. Dr. Belmonte obtained her complete medical records at that time and first noted her history of drug abuse for the previous ten years, both from her verbal information, as well as her medical records. The Doctor then requested a demerol toxicity report and referred her to the treatment of Drs. Torres and Turla, both associated with the Rock ledge Community Mental Health Center and psychiatrists on the staff of the hospital. She was actually treated by Dr. Torres who followed Dr. Turla's standard orders on file at the hospital for the treatment of drug addicts. Valium, darvon and darvocet were prescribed for her withdrawal symptoms, as well as vitamins. The toxicity report requested by Dr. Belmonte revealed that the patient had had no demerol in her blood system for the previous seven to ten days. Dr. Turla ultimately released Linda Lomax from the hospital on July 17, 1980, to be followed as an out-patient at the Mental Health Center. On July 24, 1980, Linda Lomax went to the Rockledge Police Station and in the presence of Lt. William Carter placed a telephone call to the Rockledge Country Club asking for Dr. Belmonte. When he answered the phone he allegedly asked her to meet him at the "house" on Barton Boulevard. The record does not reflect clearly that Lt. Carter had initiated a criminal investigation of Dr. Belmonte at the time he listened to their conversation on an extension phone. 1/ Linda Lomax had gone to the offices of the police department to talk about criminal investigations for which she had provided information. She then told Lt. Carter to listen on an extension phone while she called "someone." In essence the conversation only concerned Dr. Belmonte telling her to meet him at the house. There is no evidence what the conversational context was, nor why he requested her to meet him at the house. In any event, the record does not reflect that Lt. Carter had previous knowledge that Linda Lomax was going to call the Respondent nor that he had formed the intent to investigate Dr. Belmonte prior to hearing this phone conversation. In any event had the testimony regarding the phone conversation been admitted as evidence it could only reveal that Dr. Belmonte asked her to meet him at the house on July 24 and nothing more. In any event Linda Lomax did go to the private residence owned by Dr. Belmonte's sister and brother-in-law, secretly followed by Lt. Carter and another police officer, and met Dr. Belmonte for a few minutes. The photographs in evidence revealed them standing together outside the residence beside Dr. Belmonte's car. Dr. Belmonte claims not to remember whether they went into the house, he merely acknowledges that they "could have stopped by the house" as he put it. Lt. Carter's testimony establishes that they were inside for a few minutes. Linda Lomax alleges that while inside the house he drank whiskey and propositioned her for sexual favors, which she refused, whereupon they left. They proceeded to Dr. Belmonte's office whereupon he issued her a prescription for valium and darvocet. These are scheduled controlled substances pursuant to Chapter 893, Florida Statutes. Drs. Turla and Johnson testified that these are valid and appropriate medications to prescribe for a person experiencing, or complaining of experiencing, withdrawal symptoms from demerol addiction as was Linda Lomax on this occasion. It might be remembered that this was the course of treatment prescribed by her treating physician, Dr. Turla, while she was confined in the hospital for detoxification from her demerol addiction. The Respondent asserts that Dr. Belmonte departed from proper community medical practice standards by prescribing demerol to a drug addict. Dr. Belmonte, however, was not aware of Lomax's drug addiction until she was admitted to the hospital on July 12, after all demerol prescriptions involved herein had already been made. The record simply does not reflect clear and convincing evidence that Dr. Belmonte was on notice that Linda Lomax was a demerol addict until he obtained her complete medical history upon her admission to the hospital. Dr. Turla testified that Dr. Belmonte did not indicate in the admission medical history that he had previously prescribed demerol to Linda Lomax and that this would have been helpful to know and would have been standard practice in the community in creating medical records. Dr. Turla would only testify however that the patient herself told him that she had obtained 380 demerol tablets over an unspecified period of time and he just took her word for it. Thus, Dr. Turla's testimony establishes that although it was standard practice to put such information in such a medical history record, he did not testify that the omission of it by the Respondent, given the information supplied by the patient herself, resulted in any lapse in conformance to proper standards of care to the patient, nor that Dr. Belmonte thus failed to conform to community medical standards. It must be remembered that Dr. Belmonte himself was the admitting physician and already had personal knowledge of his previous prescriptions for her. It is also true that Dr. Turla testified that if he had an initial contact with a patient who complained of severe migraine headache of several days' duration that he would not use a potentially addicting drug as a first prescription. In this instance, however, Linda Lomax maintained that she was allergic to talwin and other medications the Respondent proposed. Thus, given his good faith belief in her veracity at the time, his prescription of demerol was not shown to be medically inappropriate. The Petitioner presented no evidence to support its charges contained in Count two which alleged the making of deceptive, untrue or fraudulent representations in the practice of medicine. It did present the testimony of Linda Lomax which could be construed to go to the charge of employing a trick or scheme in the practice of medicine. In that connection, with regard to the Petitioner's charge (in Count three) that the Respondent exercised influence within the doctor-patient relationship for the purpose of engaging the patient, Linda Lomax, in sexual activity, it should be pointed out that the allegation was supported solely by the testimony of Linda Lomax. Her testimony establishes that no sexual encounter actually occurred, although she maintained that the Respondent suggested such. She testified that on each of the occasions when she maintained she met the Doctor at the house on Barton Boulevard that he solicited sexual activity which she consistently refused. Also, as her testimony clearly indicates, the Doctor prescribed the requested medication for her on each of those three occasions when she maintains they were together at the "house" even though he received no sexual favors in return. Thus, it has not been established that there was a connection between sexual activity or the suggestion or promise thereof on the part of the Respondent and the prescriptions he ultimately wrote for Ms. Lomax. In fact, the Respondent's testimony established that on each of the occasions he saw her she complained of symptoms of anxiety, sleeplessness and severe pain, coupled with allergies to certain substances, which would make the prescriptions written for her appropriate as Dr. Turla's testimony corroborates. Thus, even if it could be deemed to have been proven that the Doctor suggested the sexual escapades testified to by Linda Lomax, there is no nexus established that these were in return for his prescribing the subject drugs. Further, Linda Lomax's testimony is totally uncorroborated regarding the Doctor's alleged suggestion of such sexual activity. Even if the telephone conversation overheard by Lt. Carter was admissible, which the Hearing Officer rules it is not, it would only establish that the Doctor may have suggested that they meet at the house and nothing more. Thus, it cannot corroborate the testimony of Linda Lomax that he suggested they engage in sexual activity during the course of their physician-patient relationship. The testimony of Linda Lomax is laced with certain inconsistencies which significantly detract from its weight and credibility. Thus, with regard to the occasion when she contends she went to the subject house on July 24, she maintained in an earlier sworn statement that the Doctor answered the door clad only in his underwear and later suggested that they engage in sexual activity. At the hearing, however, she testified that he answered the door, they went to the kitchen of the house, had a drink and, as he was seated at the kitchen table he allegedly unzipped his pants (although he did not expose himself) , and suggested that she favor him with oral sex. On an earlier visit to the house, according to Linda Lomax, after suggesting that they engage in sexual activity, she states the Doctor telephoned several pharmacies on her behalf. The Doctor's testimony established in an unrefuted way that the telephone was not even connected that summer because his sister and brother-in-law were out of the state and not using their house, thus it was impossible for him to have called pharmacists on that occasion, contrary to her testimony. Witness Lomax was also unable to recall or supply details of the conversations on the occasions of these various supposed meetings at the house on Barton Boulevard and, for instance, on each occasion could only testify that the Doctor suggested they have sex relations. She supplied no details regarding how this subject of conversation actually arose and failed to recall other details of the contacts she had with the Respondent during the various meetings in June and July of 1980, which could have rendered her testimony of sexual misconduct more plausible. Witness Lomax's own testimony as well as the testimony by deposition of Drs. Gutman and Parsons establishes that this witness has a history of drug addiction and a sociopathic personality trait characterized by unabashed deception of doctors and other "authority figures" in order to achieve personal desires (such as obtaining drugs) Although, as ruled in the Conclusions of Law below, the witness is legally competent to testify, I find that her testimony standing alone is not of a type which would be commonly relied upon by reasonably prudent persons in the conduct of their affairs when juxtaposed with the Respondent's testimony categorically denying any suggestion of sexual activity between the two of them, as well as denying that he had any idea that she was a drug abuser until he admitted her to the hospital. The undersigned is compelled to find that the Respondent's testimony in this regard is more credible and worthy of belief. Other than the fact that they stopped by the house on Barton Boulevard on at least one occasion, her testimony compared to that of the Respondent establishes nothing more than that he prescribed the subject drugs and thus does not establish the truth of charges related to his alleged soliciting of sexual favors. The Petitioner presented the testimony of two nurses, Janet Stalnaker and Carol Hampton, in support of its allegation that the Respondent is unable to practice medicine with reasonable skill and safety to his patients by reason of the use of alcohol. Nurse Stalnaker was a witness whose name was not supplied to the Respondent in answer to the question in the Respondent's interrogatories regarding the witnesses to be called at the hearing. Thus, the witness was a surprise witness. The Respondent, however, did not demonstrate that her proffered testimony so prejudiced its conduct of its case as to necessitate a continuance in order for it to prepare to meet the matters raised by that testimony. Accordingly, her testimony is considered herein; however, her testimony is not substantial in establishing the Doctor's inability to practice medicine because of the use of alcohol, since Nurse Stalnaker only observed the Respondent in a situation where she thought he had been using alcohol prior to coming on duty on one occasion. That was either in 1974 or 1975 (she could not remember which year). The Doctor on that occasion, according to Nurse Stalnaker, appeared to act in a slow and sluggish manner and she thought she could smell alcohol on his person. She was not able to state that he was an impaired physician however, and that occurrence is so remote in time to the occasion of this proceeding as to have little materiality to the charge to which it relates. The excessive remoteness of that alleged occurrence is borne out by Nurse Stalnaker's own inability to recall which year it occurred. Nurse Hampton testified that on one occasion "a year or so ago she seemed to detect an odor of alcohol on the Respondent's breath" and that his speech was "slightly slurry" when he was working in the emergency room. She recalled rather vaguely that there may have been other occasions when he "might" have been under the influence of alcohol. All these occasions however were when the Respondent was a doctor "on-call" rather than actually working at the emergency room on a scheduled shift, according to her own testimony. Dr. M. Blake Arnall on the other hand, had never observed the Doctor to be under the influence of alcohol while he was working and had never known him "to have a drinking problem." Doctor Arnall has known the Respondent for seven years, although he has not worked closely with him, but he is aware of his reputation in the medical community. Similarly, witnesses Tournavene and Monsigneur Terrence Fariealy, the pastor of the Catholic Church in Rockledge, vouched for the Respondent's moderate drinking habits. Witness Tournavene has known the Respondent since 1973 or 1974 socially, plays golf with him frequently and has been in the lounge with him at the Country Club and has observed his drinking habits. He has noted nothing unusual or excessive in the Respondent's drinking habits and he has never been "out of control of himself." He is generally the first of his party to leave the lounge. He has been with the Respondent socially three to four times per week for the last three to four years and has noted that the Respondent does not drink at social gatherings when he is about to report for work. He would not hesitate to use him as his own physician. Monsigneur Fariealy has known the Respondent as a parishioner for ten years and the Respondent is also his personal physician and social friend. They have been together on numerous social occasions, typically at the Country Club, and he has observed his drinking habits. He has seen the Respondent only engage in social drinking and has never observed him drinking when he thought it was merely for the purpose of having a drink. He has never seen him drink to excess, has observed that he does not always drink alcohol when others with him do, and has never heard the Respondent's drinking habits discussed at all. In the words of Monsigneur Fariealy "his drinks last a long time -- longer than mine." The Respondent conducts his office very professionally according to this witness and always takes a written medical history on a form obtained from his daughter, the receptionist.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of all witnesses, and the pleadings and arguments of counsel, it is, therefore RECOMMENDED: That, the Petitioner having failed to establish any of the allegations of the administrative complaint by competent, substantial evidence, that the same be dismissed with prejudice. DONE AND ENTERED this 15th day of December, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1981.
The Issue The issues to be determined are whether Respondent is unable to practice medicine with reasonable skill and safety by reason of illness, or physical or mental condition, in violation of Section 458.331(1)(s), Florida Statutes (2008, 2009)1/, and if so, what penalty or restriction should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to Section 20.43, and Chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent has been a licensed medical doctor within the State of Florida, having been issued license number ME 33042. She is board certified in internal medicine and has never been the subject of a disciplinary proceeding against her Florida license. Dr. Sharpe's mailing address of record during the time relevant to these proceedings was 6603 San Juan Avenue, #1, Jacksonville, Florida 32210, and she practiced medicine at this address. On November 8, 2008, Detective Elaina Gonzales of the Jacksonville Sheriff's Office Narcotics Division was investigating a complaint that a patient, E.R., might be "doctor shopping." As part of that investigation, Detective Gonzales contacted Dr. Sharpe to see if E.R. was a patient of hers. When Dr. Sharpe confirmed that E.R. had been a patient for a couple of months, Detective Gonzales asked her to locate the chart so that they could verify what medications E.R. had received and the dates they had been prescribed. Dr. Sharpe related that she could not locate the chart at that time, because she was at the office alone, was in a wheelchair, and was very ill with "African fever." Detective Gonzales asked her whether she required her patients to sign pain contracts, and Dr. Sharpe indicated that she did not believe in them. The conversation, which was by telephone, left Detective Gonzales "uneasy," and she found Dr. Sharpe's responses to be strange, in that she appeared to be confused and would answer questions in a tangential manner that was hard to follow. On January 19, 2009, two and a half months later, Detective Gonzales arrested two suspects who attempted to fill fraudulent prescriptions at Panama Pharmacy. During the arrest, there was a search of the suspects' vehicle, and a blank prescription pad bearing Dr. Sharpe's name was seized, along with a prescription for 60 pills of Oxycontin 80 mg dated January 20, 2009, taken from suspect G.L.'s wallet. Four other prescriptions G.L. attempted to fill were recovered from pharmacies. All four were on printed prescription forms bearing Dr. Sharpe's name. The handwriting on the four prescriptions recovered from various pharmacies, while on Dr. Sharpe's prescription pad, is not consistent with the handwriting from prescriptions that Dr. Sharpe identified as ones she wrote. Detective Gonzales attempted to contact Dr. Sharpe to verify whether she wrote the prescriptions on January 19, 2009, but was unable to contact her. The next day, she called Dr. Sharpe and asked whether G.L. was a patient, which Dr. Sharpe confirmed. Detective Gonzales asked Respondent if she post-dated prescriptions, which she denied. Gonzales asked Dr. Sharpe to locate the chart so that she could verify when prescriptions were written for G.L. Dr. Sharpe indicated that she could not find the file, that she did not have an office staff and that she was ill and by herself. Detective Gonzales tried to impress on Dr. Sharpe the importance of verifying the prescriptions, because she had two suspects sitting in jail, and indicated that she would be coming to the office to have Dr. Sharpe look at the prescriptions. Dr. Sharp became upset and at first stated she would not open the door because she was sick. Eventually, she relented and gave instructions for the detective to let the phone ring three times in order for her to gain entrance to the office. Upon Detective Gonzales' arrival at the office at approximately 2:00 p.m. on January 20, 2009, she found Respondent in a wheelchair, wearing a nightgown and socks with no shoes. Dr. Sharpe asked Detective Gonzales to wear gloves so she would not get sick. At the time Detective Gonzales arrived, there was a woman in the reception area who Dr. Sharpe described as helping her. Detective Gonzales observed a patient waiting area and reception area that was cluttered and disorganized. The area appeared to include both household and office furniture, and the reception area contained what appeared to be piles of medical charts. Detective Gonzales showed Dr. Sharpe the prescriptions retrieved from G.L. and from the pharmacies. Dr. Sharpe denied writing the prescriptions presented to the pharmacies and described in paragraph 7. She identified the prescription to G.L. dated January 20, 2009, taken from G.L.'s wallet, as being a prescription she wrote. (See Petitioner's Exhibit 3). When Detective Gonzales asked Dr. Sharpe why she post- dated the prescription, Dr. Sharpe became upset with her, and started telling a story that did not answer the question. Gonzales asked to see the patient's file, and Dr. Sharpe could not find it. Detective called DEA Drug Diversion Investigator Lutz while she was at the office, because she wanted to have someone else observe what she had observed. While she waited for Investigator Lutz to arrive, she sat with Dr. Sharpe and talked, and the woman helping Dr. Sharpe continued to look for G.L.'s file. The file was never located during this visit. During this time, a couple arrived with soup for Dr. Sharpe. Once Investigator Lutz arrived, Detective Gonzales left the reception area to search for a restroom. While in the back part of the building, she observed a room with a bed and a TV on, along with a dresser and clothes. It appeared to Detective Gonzales that Dr. Sharpe was living out of her office. Detective Gonzales asked Dr. Sharpe if she was living in her office, and Respondent said she would stay at the office for a couple of days, because she could not get up and down the stairs at her home. Investigator Lutz has since married, and is now known as Investigator Walters. She and another DEA agent arrived at the office while Detective Gonzales was still present. She also confirmed that Dr. Sharpe was in a wheelchair, wearing a nightgown and robe, and that she did not appear to be feeling well. She also confirmed that the office was disorganized. Dr. Sharpe also asked her and her partner to wear gloves because she was concerned she might be contagious. Investigator Walters was concerned that Dr. Sharpe was not in any condition to be seeing patients. She asked Dr. Sharpe if she was in fact seeing patients, and Dr. Sharpe indicated she was not feeling well, and had been sick for a while, but was seeing patients when she was able. Given her age and the comments regarding her health, Investigator Walters asked Dr. Sharpe if she had thought about retiring. Dr. Sharpe was upset by the question and said she had not thought about doing so. Investigator Walters also indicated that Dr. Sharpe rarely answered a question directly. She would start to, then go off on a tangent about something in her past, and indicated that she thought she had some type of African Fever. Investigator Walters felt the interview was not productive, and Dr. Sharpe kept stressing how poorly she felt, so Investigator Walters asked Dr. Sharpe to contact her in the next couple of weeks. Dr. Sharpe left Investigator Walters one voice message. When Investigator Walters tried to return the call, sometime in February, she reached the answering service and was informed that Dr. Sharpe was still sick. Detective Gonzales also attempted to contact Dr. Sharpe after the January 20 visit. Each time, Dr. Sharpe's answering service indicated that she was ill. A prescription bearing Dr. Sharpe's signature was written for patient D.T. on March 3, 2009. The prescription was for 480 pills of Oxycontin 15mg. (See Petitioner's Exhibit 6). Two other prescriptions written for D.T. on Dr. Sharpe's prescription pad were subsequently recovered from Walgreen's pharmacy and are included in the record as Petitioner's Exhibit One, dated March 5, 2009, was for 360 pills of Oxycontin 40mg. The second, dated April 2, 2009, was also for 360 pills of Oxycontin 40mg. While no testimony was presented indicating that Dr. Sharpe ever confirmed that she had written the two prescriptions described above and contained in Petitioner's Exhibit 9, the handwriting appears to be the same as that on the prescription in Petitioner's Exhibit 6, which Dr. Sharpe confirmed was her handwriting. On March 25, 2009, Investigator Wendy Foy of DOH notified Dr. Sharpe by letter that she was under investigation. Dr. Sharpe was advised that she had 45 days to submit a written response and to contact the office to schedule an interview, if she chose. The letter also requested that she provide a copy of her curriculum vitae. The 45-day period for filing a response would have required that any response be filed by May 9, 2009. Dr. Sharpe called in response to the letter. She appeared to be aggravated that the Department was investigating her, and referred to Detective Gonzales as "a loud mouth detective" who barged in her office, demanding to see information. She told Ms. Foy that she would be providing a written response to the complaint, but said she had been sick for weeks. Ms. Foy called Respondent again because she had not received a response, although the timing of the phone call is not clear. Dr. Sharpe stated that she had been sick and was in the process of writing her response and sending it to her typist. Dr. Sharpe's response was received by the Department on April 28, 2009. The response are as follows:2/ The delay in response is not dismissive. I needed to gather facts and explain myself while considering the facts you need. One thing I find interesting is "confidential" at the top of your letter. The detective -- whose name I don't recall -- I referred to her as "the mouth" acted as a bully here and told me by phone that I pass out medication "like candy" (news to my patients) before I ever met her. She has told pharmacists around the Westside that I am under investigation. They've told my patients. My patients have told me. I have explained to the patients that it is appropriate, if there is a question, to have an investigation. That is the right and the job of the State to protect them. However, she was unprofessional and demonstrated inability or unwillingness; definitely unworthiness to keep a confidence. There is another narcotics detective in the JSO that I work with very well. I have, on occasion, had a questionable prescription. When this happened I reported to her and fired the patient. . . . If indeed the patient IS a patient. You may be interested in the fact that I fly in the dark as I've talked to some of my colleagues. We don't get notified of people that are using narcotics or selling things or anything. If I were a gun salesman or a pawn broker I would have a hot list. I'm supposed to know to spot criminals when what I see are patients that are sick. This whole system is remarkable. It's "gotcha", but that's for another letter. On the day that the questionable detective demanded entry, I had already placed myself in isolation. That is the only thing a good citizen would do with a severe virus to keep it from spreading. Two volunteer friends were sorting out the mail and "shuffling papers". They were friends NOT regular employees or "trained medical assistants." She had them terrified standing over them. She claimed to be waiting for a partner. She was waiting for the DEA. They insisted on entry as well. Before the detective came I had told my helpers I was exhausted and needed a nap. I never got dressed that day. I wore a nightgown and a thermal blanket which is better than a housecoat as I am in a wheelchair. . . . yet they pressed on. Why she lied leaves me mystified, where was I going? I met them all at the door with a box of rubber gloves because, again, I tried to protect anyone else from this terrible virus which kept me out of work for weeks. The DEA asked questions like "what do you give to a new patient?" Well teaching for four years in the United States Peace Corps and before that in Watts before the riots, I believed that there was no such thing as a dumb question but that sure is one. In my diminished state I waited for the rest of the question. An example would be, maybe, presentation of a case. When that did not come I told them all to leave. They were "kicking me when I was down". You've asked about the chart they demanded. My terrified helpers were separated from me and looked everywhere. I didn't know what the problem was as they were in the business office and I was in the waiting room. I NEVER SAW THE PATIENT SHE REQUESTED AS THERE WAS NO CHART. He was due several days later. (Please see the page from my calendar) There were two charts requested, G.L. was going to be seen on February 3, 2009 as a new patient. I never saw him. The other chart they requested was R.G. That chart was taken. I want it back. I have no receipt. I don't know what this woman thinks she knows but she is destructive and inefficient in her gang buster method. We're not used to this. The JSO is better than she is. I recently had the pleasure to write some lovely letters to Sheriff Rutherford regarding some of his staff when I suffered a felony. I never planned to write about this individual or her demeanor. "If you can't say something nice . . .". She is, however, a disgrace and I guess I need to defend myself and let you know the details so that you can come to your own conclusion. The detective demanded two charts. R.G., she took the chart and did not give it back. I've not seen him again, anyway. G.L. They came in on January 15th or 16th -- I'm unsure as I said and he was due to come in for a new patient evaluation (2 hours) on February 3, 2009 at 2:00 pm. If this signifies giving out medicine like candy then I guess it is. As a double check I asked my transcriptionist for a history and physical from her computer memory and there was no such patient as G.L. I've never seen him. I hope this explains your legitimate concerns and her attempt to build a case from thin air. I don't know what she thinks she knows. I do request all of the reports if I can get them as you said is my right. Further, I have such an extensive Curriculum Vitae. I cleaned it up as I don't put everything in it. I don't even know if I have one right now. I have to reconstruct it as nobody asks for them. I will ask my transcriptionist if she has one in memory. As a blind copy I'm going to send you the letters that I've sent the Sheriff because it has a couple of things from my background anyway and my awe of the police force and the JSO here. I don't have an attitude toward them, just her. She is an outlier certainly. Thank you for opportunity to respond to your concerns. Sincerely yours, (signed) Isabella K. Sharpe, M.D. Isabella K. Sharpe, M.S.M.D.,F.A.C.P. Dr. Sharpe's written response differs from Detective Gonzales' and Investigator Walters' accounts of the events in several respects. For example, she identifies the date of their visit to be January 15 or 16, as opposed to January 20. She claims that Detective Gonzales retrieved a chart for a patient R.G. when there has been no testimony about such a patient. She claims that she never saw patient G.L. when Detective Gonzales testified that Respondent confirmed G.L. was her patient and identified the signature on his January 20, 2009, prescription as her signature. She claimed to be "separated" from her volunteers and unable to know what they were looking for, when all testimony indicates that the rooms involved are adjacent, with an opening between them. Detective Gonzalez' and Investigator Walters' testimony is credited. On June 23, 2009, DOH Investigator Foy as well as Investigative Manager Charles Coates went to Respondent's office to serve a subpoena for patient records. The Investigators had arranged previously for an appointment with Respondent for 12 o'clock sharp. When they arrived for the appointment, there were approximately seven or eight people in the waiting area, but appeared to be no one working in the reception area. Within 15 minutes of the investigators' arrival, all but two or three of the people in the waiting room left the office without seeing Respondent. Despite having a noon appointment with Respondent, the investigators waited for approximately an hour to see her. During that entire time, no one appeared to be attending the reception area. It was not only unattended, but it appeared to the investigators that the area was in disarray. There were files stacked that appeared to be medical records in different areas on the counters, in no apparent order. The files were readily accessible to anyone seeking to look at them. Respondent finally appeared after the investigators had waited an hour. Once again, she appeared in a wheelchair with socks and no shoes. She attempted to conduct her interview with the DOH investigators in the patient waiting area in front of the remaining people waiting there. Mr. Coates advised her that the interview should be conducted in private, so the investigators and Respondent moved to the back of the building. During the interview, Dr. Sharpe confirmed that E.R., T.D. and S.D.T. (also referred to as D.T.) were her patients. Mr. Coates presented her with a prescription dated March 3, 2009, for 480 pills of Oxycontin 15mg, referenced in finding of fact Dr. Sharpe confirmed that D.T. was her patient, and that the prescription bore her signature, but that she "must have been out of it" when she wrote the prescription. She volunteered that she had been sick for weeks at a time. Subsequent to the June 23, 2009, interview, Investigator Foy contacted Dr. Sharpe about the records that were the subject of the subpoena. Dr. Sharpe indicated that she did not have time to get them and she wanted to get a volunteer to get the copies to DOH. She also told the investigator that one of her prescription pads was missing prescriptions from the middle of the pad. Dr. Sharpe apparently believed the prescriptions were taken by a volunteer, whom she "fired" by not treating the volunteer any longer. No evidence was presented to indicate that any of the subpoenaed records were ever supplied to the Department. On September 18, 2009, Dr. Sharpe was evaluated by George M. Joseph, M.D., a board certified psychiatrist. Dr. Joseph has been licensed in Florida since 1970, and has performed evaluations for the Professionals Resource Network (PRN) since the mid '80's. In addition to interviewing Dr. Sharpe for 90 minutes, Dr. Joseph administered the MMPI and reviewed investigative materials supplied by the Department and chronicled in the collateral history section of Dr. Joseph's report to the Department (See Petitioner's Exhibit 10). Dr. Sharpe related to Dr. Joseph that her general health was affected when 17 years ago she received vancomycin, a very powerful antibiotic, for an infection. The medicine caused renal failure and neurotoxicity, which in turn caused severe vertigo from which she still suffers. As a result, she is confined to a wheelchair. Dr. Sharpe also indicated to Dr. Joseph that she self-prescribes medicine for a pituitary tumor, and for hypothyroidism. During his interview with Dr. Sharpe, they talked about several topics, including her reaction to Detective Gonzales and the DOH investigation; her prescribing practices; and her office management style. With respect to her prescribing practices, Dr. Sharpe acknowledged treating a number of patients who suffer from severe pain, and indicated that "I have to believe my patient," regarding their reporting of pain. She also stated her belief that other physicians were not giving patients the medication they needed, and that she did, enabling patients to have a better quality of life. She acknowledged that she is not a pain management specialist. Dr. Joseph also noted that in the interview, Dr. Sharpe's thought process was circumstantial and digressive, with reference to previous life experiences as opposed to analyzing a question and discussing it directly. Dr. Joseph opined that Dr. Sharpe has an Axis II, personality disorder not otherwise specified (NOS), with marked characteristics of hyperthymia. A personality disorder, NOS, is recognized in the Diagnostic and Statistical Manual IV (DSM-IV) under diagnostic number 301.9. Hyperthymia is a personality temperament that would be characterized by a prominently upbeat mood, and a person who admits to very few, if any problems. A person who is hyperthymic is overly enthusiastic and upbeat, exuberant, grandiose and talkative. Such a person minimizes the effect of any negative situations and always try to portray herself in a positive light, believing she can "trump" the applicable rules with rules they fashion themselves. A personality temperament becomes indicative of a personality disorder where, as here, it has some affect on a person's functioning occupationally or socially, or both. Dr. Joseph opined that Dr Sharpe is unable to practice with reasonable skill and safety. He reached this ultimate opinion because, in his view, her personality disorder creates a tendency on her part to form judgments about prescribing to pain patients that can be idiosyncratic and excessive, and impairs her clinical judgment. The impairment of her clinical judgment impairs her ability to discern legitimate patients from patients who are manipulating physicians for medications. This represents a danger to patients by the prescription of excessive amounts of medication with possible misuse by those receiving them. Dr. Joseph also opined that Dr. Sharpe's personality disorder impairs her ability to maintain adequate medical records for her patients, and to maintain an orderly practice. He based this opinion on her failure to maintain boundaries with her patients, as illustrated by her using patients as "volunteers" in her office, and her inability to retrieve records when requested. These failures present, in his view, a danger to patients because of the failure to maintain adequate records for providing a history of medications prescribed, any side effects to those medications, and the patient's ongoing treatment. With pain management patients, the need for accurate and available medical records is especially important. In other words, Respondent displayed a cavalier attitude with respect to both prescribing pain medication and recordkeeping, in areas that the medical profession generally regards as very serious, controlled and organized. The Respondent did not present any expert testimony to rebut Dr. Joseph's view. Dr. Joseph's opinion that Respondent cannot practice with reasonable skill and safety at this time is accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Medicine enter a final order finding that Respondent is unable to practice with reasonable skill and safety by virtue of a mental condition, as proscribed in Section 458.331(1)(s), Florida Statutes. It is further recommended that Respondent's license to practice medicine be suspended, until such time as she demonstrates that she can practice with reasonable skill and safety. DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2009.
The Issue As stated in the Order of Remand entered March 26, 1999.
Findings Of Fact On or about March 7, 1994, Mark Leibowitz, an attorney representing Patient E.G., sent a Notice of Intent to the Agency for Health Care Administration (AHCA) which advised of his client's intent to file a malpractice action against Respondent. The Notice of Intent was reviewed by Marie Kokol, an employee of AHCA. During the course of his representation of Patient E.G., Mr. Leibowitz obtained a copy of Respondent's medical records for Patient E.G. On or about April 5, 1994, Ms. Kokol requested that Mr. Leibowitz provide her with a copy of those medical records. Those medical records were received by Ms. Kokol at AHCA on or about April 18, 1994. The medical records received from Mr. Leibowitz were incorporated as part of Petitioner's investigative record as pages numbered 234 and 235. These records included Respondent's medical records for Patient E.G. for July 17, 1992, and July 29, 1992. In or about June 1994, the medical records received by Ms. Kokol were sent to AHCA's investigative office in Miami, Florida. On July 14, 1994, Georgina Jorge, an investigator employed by AHCA, issued a subpoena to Respondent for all medical records of Patient E.G. Respondent provided the medical records of Patient E.G. to Ms. Jorge, which were included in the investigative record as pages numbered 293 through 296. Included in the medical records received by Ms. Jorge pursuant to her subpoena issued July 14, 1994, were Respondent's medical records for Patient E.G. dated July 17, 1992, and July 29, 1992. These records were numbered pages 294 and 295. The medical records of Patient E.G. obtained from Mr. Leibowitz (pages 234 and 235) and the medical records received by Ms. Jorge pursuant to her subpoena (pages 294 and 295) should have been identical, but they were not. The subpoenaed medical records (pages 294 and 295) contain handwritten notations not found on the medical records obtained from Mr. Leibowitz (pages 234 and 235). Respondent's medical records for Patient E.G. for July 17, 1992, received pursuant to the subpoena contain the following handwritten notations not found on the medical records obtained from Mr. Leibowitz: unable to dilate today (illegible word) r/o (rule out) retinopathy Respondent's medical records for Patient E.G. for July 29, 1992, received pursuant to the subpoena contain the following handwritten notations not found on the medical record obtained from Mr. Leibowitz: Martha Delgado 326-6421 Pt. Did not keep appt. at BEIP as recommended. The additional notations contained in the medical records obtained pursuant to the subpoena were not dated or signed by Respondent. Dr. William Cobb served as the Petitioner's expert witness at the initial formal hearing. Dr. Cobb reviewed the medical records obtained from Respondent by the agency investigator and based the opinions expressed at the initial formal hearing on those records. A review of his deposition reveals that Dr. Cobb had access to the two sets of medical records and that he observed that there were discrepancies between the two sets of records. Dr. Cobb did not base the opinions he expressed at the initial hearing on the fact that there were two sets of medical records, one with the notations and the other without. Both before and after the Order of Remand, Dr. Cobb expressed the opinion that Respondent practiced within the standard of care on July 17, 1992. His opinions that Respondent committed the violations alleged in the Administrative Complaint were unaffected by the existence of the additional notations on the subpoenaed medical records. A physician may make additional notations to a medical record when the record is reviewed after the initial examination at the end of the day without dating or signing the additional notation. A physician making additional notations to a medical record more than one day after the initial examination must date and sign the additional notation. Dr. Cobb expressed the opinion in his deposition, taken after the remand, that the failure to date and sign additional notations made more than one day after the initial examination would be a violation. 1/ The only plausible explanation for the additional notations on the medical records for July 17 and July 29, 1992, is that Respondent made the notations after Mr. Leibowitz obtained his copy of E.G.'s records. While Dr. Cobb may be correct in his opinion that Respondent's failure to date and sign these notations would be a violation, the Administrative Complaint filed against Respondent did not charge him with that violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order consistent with the findings of fact, conclusions of law, and recommendations contained in the Recommended Order entered January 8, 1999. DONE AND ENTERED this 29th day of November, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of November, 1999.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0031545. The Respondent practices in south Florida as a cardiologist. The Respondent treated patient William Dean from 1979 through 1982. William Dean died of heart failure on August 30, 1982. Following Mr. Dean's death, his wife, Elizabeth Dean, obtained from Respondent copies of Dean's medical records. On July 2, 1983, Elizabeth Dean filed a complaint by letter with the Department of Professional Regulation against the Respondent. As a result of Mrs. Dean's complaint, the Petitioner began an investigation of the Respondent and notified Respondent of same. In addition, Mrs. Dean sued the Respondent for malpractice. During the investigation by Petitioner, copies of Mr. Dean's records were obtained from the Respondent. When the records obtained by Petitioner were compared with the earlier records obtained by Mrs. Dean, it was discovered that Respondent had made at least two additions to them. After being notified of the complaint and investigation, the Respondent added entries to the progress notes on Mr. Dean for November 12, 1981 and May 15, 1982. Among other things, the additions to the progress notes indicated that Respondent had advised Mr. Dean to take a stress test and angiogram and that Dean had refused. The Respondent dictated Mr. Dean's patient Expiration Summary, which appears in the hospital's patient charts, on October 17, 1983, fourteen months' after Mr. Dean's death. Humana Hospital Cypress, where Mr. Dean died, requires that physicians prepare patient expiration summaries within thirty (30) days after the patient's death.
The Issue Whether Respondent, a licensed physician, committed record- keeping violations and repeated medical malpractice by committing three or more incidents of medical malpractice, as alleged in the Second Amended Administrative Complaint; and, if so, what is the appropriate penalty?
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against medical doctors licensed in the state of Florida, who are accused of violating chapters 456 and 458 of the Florida Statutes. Respondent is licensed as a medical doctor in Florida, having been issued license number ME 99126 on June 15, 2007. Respondent is not board-certified in any specialty recognized by the Florida Board of Medicine. Respondent has never had disciplinary action against his license to practice medicine. In May 2015, Respondent performed cosmetic surgery procedures, including liposuction and fat injection procedures (commonly referred to as a "Brazilian Butt Lift" or "BBL"), at Vanity Cosmetic Surgery (Vanity), Encore Plastic Surgery (Encore), and Spectrum Aesthetics (Spectrum). Liposuction is an elective cosmetic procedure that involves the removal of fat from a patient. Fat is removed with a cannula, or a long, thin, metal rod, attached to a suctioning device. The cannula is repeatedly passed through the patient's subcutaneous layer until the desired amount of fat is removed. Facts Related to Patient L.L. On May 2, 2015, Patient L.L., a 29-year-old female patient, contacted Vanity to undergo liposuction. On May 2, 2015, prior to her procedure, Patient L.L. underwent bloodwork that revealed she had a normal hematocrit level, normal hemoglobin level, and a normal red blood cell count. Respondent determined that Patient L.L. was of sufficiently good health to undergo liposuction. Respondent performed liposuction on Patient L.L. at Vanity on May 14, 2015. Several hours after being discharged to a hotel, Patient L.L. experienced pain, weakness, elevated heart rate (tachycardia), and excessive bleeding. Patient L.L. presented to Homestead Hospital, where she was admitted for three days of post-operative care and monitoring. L.L.'s recovery took several months and resulted in her losing her job. Upon admission, Patient L.L.'s hematology report revealed a low hematocrit, low hemoglobin, and a low red blood cell count, which signified severely diminished blood levels and necessitated her to be transfused with two units of blood and plasma. Facts Related to Patient D.M. On April 25, 2015, Patient D.M., a 31-year-old female patient, contacted Spectrum to undergo liposuction with gluteal fat transfer. On April 29, 2015, prior to her procedure, Patient D.M. underwent bloodwork that revealed she had a normal hematocrit level, normal hemoglobin level, and a normal red blood cell count. Also prior to her procedure, Patient D.M. indicated in her medical questionnaire that she was pregnant approximately five times. Because Patient D.M. disclosed her prior pregnancies to Respondent, Respondent knew, or should have known, that Patient D.M. had a potentially weak or thin abdominal wall. Respondent determined that Patient D.M. was of sufficiently good health to be an appropriate candidate to undergo liposuction with gluteal fat transfer. Respondent performed liposuction with gluteal fat transfer on Patient D.M. at Spectrum on May 15, 2015. Following the surgery, Patient D.M. experienced extreme pain, resulting in her admission to Westchester Hospital. Upon admission, Patient D.M.'s hematology report revealed a low hematocrit and low hemoglobin, which signified severely diminished blood levels and necessitated her to be transfused with three units of blood. During an exploratory surgery, Patient D.M. was found to have several holes in her liver and damage to her chest and abdominal wall. Facts Related to Patient N.F. On February 4, 2015, Patient N.F., a 35-year-old female patient, contacted Spectrum to undergo liposuction with gluteal fat transfer. On April 23, 2015, prior to the procedure, Patient N.F. underwent bloodwork that revealed she had a normal hematocrit level, normal hemoglobin level, and a normal red blood cell count. Also prior to her procedure, Patient N.F. indicated in her medical questionnaire that she was pregnant at least twice. Because Patient N.F. disclosed her prior pregnancies to Respondent, Respondent knew, or should have known, that Patient N.F. had a potentially weak or thin abdominal wall. Respondent determined that Patient N.F. was of good health and an appropriate candidate to undergo liposuction. Respondent performed liposuction with gluteal fat transfer on Patient N.F. at Spectrum on May 15, 2015. Following the surgery, Patient N.F. experienced abdominal pain, weakness, and an inability to walk, resulting in her admission to Baptist Hospital. During an exploratory surgery, Patient N.F. was found to have a hole in her small bowel (colon), which was leaking fluid into her abdominal cavity.1/ Facts Related to Patient P.N. On May 16, 2015, Patient P.N., a 35-year-old female patient, was scheduled to undergo liposuction with gluteal fat transfer at Encore. On May 4, 2015, prior to her procedure, Patient P.N. underwent bloodwork that revealed she had a normal hematocrit level, normal hemoglobin level, and a normal red blood cell count. Respondent determined that Patient P.N. was of sufficiently good health and an appropriate candidate to undergo liposuction. Respondent performed liposuction with gluteal fat transfer on Patient P.N. as scheduled. Following the surgery, Patient P.N. experienced extreme pain and heavy bleeding, resulting in her admission to Memorial Regional Hospital. Upon admission, Patient P.N.'s hematology report revealed a low hematocrit level, and low hemoglobin, which signified severely diminished blood levels and necessitated a blood transfusion. Facts Related to Concentration of Tumescent Solution Before harvesting Patients L.L.'s, D.M.'s, N.F.'s, and P.N.'s fat, Respondent infiltrated tumescent solution into the areas that were prepared to undergo liposuction. Tumescent solution is a mixture of natural saline, epinephrine, and lidocaine and is used to decrease the risk of excessive bleeding caused by large-volume liposuction procedures. Epinephrine, the active ingredient in tumescent solution, constricts blood vessels and reduces blood loss. The minimum concentration of epinephrine in tumescent solution needed to achieve its intended purpose of reducing blood loss is 1:1,000,000. This concentration was first popularized by Dr. Jeffrey Klein in 1965. After experimenting with several concentrations of epinephrine, Dr. Klein concluded that a 1:1,000,000 concentration of epinephrine appropriately balanced patient safety with effectiveness. The most dilute concentration of epinephrine Dr. Klein experimented with was 1:2,000,000. Dr. Klein's concentration of epinephrine in tumescent solution of 1:1,000,000 is the standard concentration in the state of Florida for BBL procedures. The medical records reflect that during each of the four procedures, Respondent used tumescent solution with an epinephrine concentration of 1:4,000,000. This concentration is too diluted to have the intended effect of restricting blood loss. However, the tumescent solution was prepared by the circulators who assisted during the surgeries. The circulators credibly testified that when preparing the tumescent solution, they used enough epinephrine to create at least a 1:1,000,000 concentration of epinephrine. The circulators prepared the tumescent solution by adding lidocaine with 1:100,000 epinephrine and one cubic centimeter (cc) of epinephrine to a one-liter (1000 cc) bag of normal saline. The circulators explained that the additional epinephrine that was used was not documented in the patients' operating room records because there was no designated space on the form for this information. In light of the circulators' credible testimony, no evidence was presented to support the conclusion that Respondent fell below the standard of care by using an inappropriate concentration of epinephrine in the tumescent solution. Further, there was no causal connection demonstrated between the patients' blood loss, a fairly common complication associated with BBL procedures, and the concentration of epinephrine used. Facts Related to Damage to Internal Organs During Patient N.F.'s liposuction procedure, Respondent used a cannula to remove 4,000 ccs of supernatant fat from Patient N.F.'s abdomen, waist, back, bra rolls, and flanks. While manipulating the cannula, Respondent pushed the cannula through Patient N.F.'s abdominal wall and punctured her small bowel. Because Respondent perforated Patient N.F.'s small bowel, Patient N.F.'s abdominal cavity was contaminated, and 10 to 15 centimeters of Patient N.F.'s bowel later had to be resected and removed. After Patient N.F.'s hospitalization, her mother confronted Respondent who admitted that he "messed up," and suggested that his instrument "cuts through muscle and fat like butter," and may have contributed to the perforation. During Patient D.M.'s liposuction procedure, Respondent used a cannula to remove 4,000 ccs of supernatant fat from Patient D.M.'s abdomen, waist, back, bra rolls, and flanks. While manipulating the cannula, Respondent pushed the cannula through Patient D.M.'s abdominal wall, damaging her chest wall, and Respondent punctured her liver at least five times. Respondent was responsible for ensuring that the cannula used during liposuction procedures was manipulated with precision and extreme care to avoid contact with the patients' internal organs. In order for the cannula to come into contact with an internal organ (with the exception of the heart and lungs), Respondent pushed the cannula at an inappropriate angle through a thick layer of muscle called the abdominal wall. The tough abdominal wall has a noticeably different consistency than the soft layers of subcutaneous fat. A surgeon is required to operate with a level of skill and care to be able to discern between subcutaneous fat and muscle tissue while passing the cannula through the patient. The standard of care in Florida requires surgeons to use extreme care to ensure that the abdominal wall is not breeched. This is especially true when the patient's medical history suggests the possibility of a thin abdominal wall. According to both Petitioner's and Respondent's experts the perforation of an internal organ during a liposuction procedure, even once, is an extremely rare incident. In fact, Respondent's world-renowned BBL expert, Dr. Mendieta explained, "I'm constantly thinking bowel, bowel, bowel perforation or I'm constantly thinking trying to avoid, so it is constantly on my mind in terms of what I am trying to avoid, so I'm always angling my cannula and making sure that I'm on the right plane."2/ Dr. Mendieta admitted that although perforating an internal organ is a "known complication" related to liposuction, it can result from medical negligence. Respondent argues he is absolved of any responsibility for the puncture of internal organs because Patients D.M. and N.F. signed consent forms that included the risk of "damage to deeper structures, including nerves, blood vessels, muscles, and lungs." Significantly, the informed consent forms for liposuction signed by the patients did not include damage to the liver, small bowel, or other intra-abdominal organs. Petitioner's expert, Dr. Greenberg, explained that the language in the consent form does not contemplate damage to internal organs shielded by the abdominal wall, and a lay person would be unlikely to make such an inference. Dr. Greenberg credibly testified that it is a violation of the standard of care to damage a patient's internal organs during a liposuction procedure, regardless of whether it is a known complication. Dr. Mendieta countered that the only way for a surgeon to violate the standard of care would be to either intentionally stab the patient, or to perform the surgery in such a reckless and careless manner, improperly angling the cannula, that damage to the surrounding structures is either inevitable or purposeful. As noted by all three experts, absent being present during the procedure, having it well-documented in the Respondent's notes, or talking with Respondent, it is not possible to tell with certainty what transpired. Respondent refused to testify on his own behalf. Respondent asserted his Fifth Amendment Privilege against self-incrimination, instead of clarifying any of the disputed issues. Based on the forgoing, Petitioner demonstrated by clear and convincing evidence that the puncture of the patients' internal organs was the result of Respondent's violation of the standard of care and improper angling of the cannula during the procedures. Facts Related to the Alleged Medical Records Violation The circulators at Vanity, Encore, and Spectrum Aesthetics testified that they prepared the tumescent solution that Respondent used during his liposuction procedures at Respondent's direction. The circulators testified that when preparing the tumescent solution, they used enough epinephrine to create at least a 1:1,000,000 concentration of epinephrine. However, the additional epinephrine that was purportedly used was never documented in the patients' operating room records. Respondent argues that it was the responsibility of the circulators who prepared the solutions or the facilities at which he operated that maintain the records, which bear responsibility for the accuracy of the records. Respondent is the surgeon who performed the surgery on each patient. The operative records for each surgery bear the same signature in every signature block for "Surgeon Signature," "Physician Signature," "Osakatukei O. Omulepu, M.D.," and "Osak Omulepu, MD." In most instances, the signature is clearly legible as O.O. Omulepu. The record supports by clear and convincing evidence that Respondent signed or approved these records and bears responsibility for their accuracy. However, Respondent reviewed and signed the medical records, all of which omitted the additional ampule of epinephrine that was purportedly added, without correcting the apparent discrepancy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding that Respondent violated sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes, as charged in Petitioner's Second Amended Administrative Complaint; imposing a fine of $14,000.004/; issuing a reprimand against Petitioner for the record-keeping violations; placing Respondent on probation for a period of two years; and imposing costs of the investigation and prosecution of this case. DONE AND ENTERED this 6th day of January, 2017, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2017.
The Issue Whether disciplinary action should be taken against Respondent’s license to practice as a medical doctor based on allegations that he violated sections 458.331(1)(t), (m), and (q), Florida Statutes (2008-2010), as alleged in Petitioner’s Amended Administrative Complaint.
Findings Of Fact The following Findings of Fact are based on the testimony presented at the final hearing, exhibits accepted into evidence, admitted facts set forth in the pre-hearing stipulation, and matters officially recognized. The Parties and the Origin of This Litigation The Department is the state agency charged with regulating the practice of medicine pursuant to chapter 456, Florida Statutes (2006-2017). At all times relevant to the instant case, Dr. McKenzie was a Florida-licensed physician having been issued license ME 93485. Dr. McKenzie is also licensed to practice medicine in Alabama. Dr. McKenzie is board-certified in internal medicine with sub-specialties in pulmonary disease and sleep medicine. Dr. McKenzie earned his medical degree at the University of South Alabama (“USA”) in May of 2000. Over the next three years, Dr. McKenzie completed an internship and a residency in Internal Medicine at USA. By June of 2005, Dr. McKenzie had left USA after completing a fellowship in “Pulmonary & Sleep Medicine, Critical Care.” Dr. Victor Ortega has a medical practice in Panama City, Florida, known as Pulmonary Associates, and Dr. McKenzie began working for Dr. Ortega on approximately July 1, 2005. Dr. McKenzie had no ownership interest in Pulmonary Associates. He was an employee of Dr. Ortega. Therefore, Dr. Ortega owned the medical records for the patients Dr. McKenzie treated at Pulmonary Associates. Dr. McKenzie worked at Pulmonary Associates until July of 2006, and the separation was acrimonious. Dr. McKenzie elected to leave Pulmonary Associates after learning that the compensation system instituted by Dr. Ortega unfairly enriched him at the expense of his associates.1/ Dr. McKenzie began practicing at Bay Clinic, Inc. (“Bay Clinic”), in Panama City in July 2006, and continued there through May 2009. At Bay Clinic, Dr. McKenzie shared office space and administrative expenses with Dr. Jesus Ramirez. Dr. McKenzie had no ownership interest in Bay Clinic. The record is unclear as to whether Dr. McKenzie had an employment contract with Bay Clinic. In May of 2009, Dr. McKenzie opened his own practice at The Lung and Sleep Center in Panama City. Dr. McKenzie owns The Lung and Sleep Center, and he owns the medical records for the patients he treats there. In addition to his practice at The Lung and Sleep Center, Dr. McKenzie is a staff physician at Bay Medical Center, Select Specialty Hospital, and Health South in Panama City. Since August of 2015, Dr. McKenzie has been a clinical instructor for the nurse practitioner program at USA. Because Dr. McKenzie has been practicing in close proximity to Pulmonary Associates, Dr. Ortega sued Dr. McKenzie in 2011 in order to enforce a non-compete agreement.2/ During the course of that litigation, Dr. Ortega’s attorney asked Dr. McKenzie during a deposition whether he had ever treated a current or former employee with narcotic medications at Pulmonary Associates. Because Dr. McKenzie had rendered such treatment to K.D., he responded affirmatively. On January 28, 2011, Dr. Ortega wrote the following letter to the Board of Medicine: A deposition with Dr. McKenzie took place and is enclosed. Dr. McKenzie acknowledged under sworn statement that he had prescribed controlled substances for employees at Pulmonary Associates of Bay County. That person, of course, was [K.D.]. Dr. McKenzie’s attorney opposed any further questioning alleging privacy violations, etc. Since [K.D.] was our employee and he was under contract and under the privacy and umbrella of our corporation, that record keeping was by contract to be kept under our protection. As I understand it, this is a criminal occurrence and violation of the prescription of controlled substances. I am forwarding all this to the law enforcement agency and to the state with the hope that you will proceed accordingly with prosecution and stop this practice as soon as possible. I recognize that the problem of illegal use, abuse, and prescription of controlled substances is a significant issue throughout the United States. This represents one more way in which drugs are being diverted from their legal and appropriate use. To this day I am certain that this illegal prescription practice continues with different individuals. The rapid check of prescriptions at the local pharmacies for controlled substances, particularly Lortab, Dilaudid, etc., by this physician will reveal a number of individuals which I am sure will not have corresponding medical record entries to justify the use of pain control medication by appropriate evaluation, diagnosis, and treatments as required by law. (emphasis added). Dr. Ortega ultimately identified A.W., R.W., and K.D. to the Department as patients who received inappropriate prescriptions from Dr. McKenzie. However, the Department and the Florida Department of Law Enforcement’s (“FDLE”) investigation began due to a confidential informant observing Dr. McKenzie disposing of pill bottles at a car wash. FDLE investigated the matter, but limited resources led to FDLE referring the case to the Department for administrative action. The Department’s allegations pertaining to A.W., R.W., and K.D. will be separately addressed below. Was Dr. McKenzie’s Treatment of A.W. Below the Standard of Care? A.W. has been a Florida-licensed nurse since April of 2007 and has worked at Bay Medical Center since 2005. She was in nursing school when her employment at Bay Medical Center began. A.W. and Dr. McKenzie were co-workers at Bay Medical Center. While Dr. McKenzie was married and A.W. was engaged, they began a romantic relationship in 2005 that continued until 2006 or 2007. When A.W. learned that Dr. McKenzie’s wife was pregnant, their relationship ended, and A.W. did not have any meaningful communication with Dr. McKenzie for the next year. Even though she was already treating with a general medicine practitioner who she considered to be her primary care physician, A.W. began treating with Dr. McKenzie in approximately April of 2009 because she was experiencing “really severe headaches,” anxiety, and abdominal pain. Dr. McKenzie prescribed Lortab, the brand name for an opioid pain medication consisting of acetaminophen and hydrocodone. Under section 893.03(3), Florida Statutes (2008-2017), hydrocodone, in the dosages found in Lortab, is a Schedule III controlled substance. From April of 2009 through October of 2010, Dr. McKenzie prescribed 90 Lortab pills a month to A.W. A.W. was to take one pill every six hours as needed for pain. When A.W. began treating with Dr. McKenzie, they resumed having a personal relationship. While A.W. describes their relationship at that time as being friendly rather than romantic, A.W. and Dr. McKenzie were having sex while Dr. McKenzie was writing prescriptions for her. A.W.’s first documented treatment with Dr. McKenzie at The Lung and Sleep Center occurred on July 22, 2009, and she presented with several issues. For instance, A.W. was experiencing anxiety, and Dr. McKenzie noted on the medical record that A.W. needed to see a psychiatrist. A.W. was also experiencing pain from multiple sources. Migraines were one source of pain, and Dr. McKenzie recommended continuing with Lortab and discussed obtaining a neurology consult. A.W. also had abdominal pain, and Dr. McKenzie discussed obtaining a colonoscopy and consulting with a gastroenterologist. In addition to migraines and abdominal pain, A.W. was experiencing pain from pleurisy. Pleurisy is inflammation of the lining of the lungs, and its symptoms include chest and back pain. It is characterized by a sharp pain that worsens with deep breaths. Pleurisy is treated with nonsteroidal anti-inflammatory drugs (“NSAIDs”) such as Motrin, Aleve, and ibuprofen. If NSAIDs have no effect, then, narcotics can be used. A.W.’s next documented treatment at The Lung and Sleep Center occurred on December 9, 2009. Dr. McKenzie noted in the medical record associated with that office visit that A.W. had gastroesophageal reflux disease, i.e., GERD. In order to treat that condition, Dr. McKenzie prescribed over-the-counter Prilosec and advised A.W. to avoid NSAIDs because they can aggravate heartburn. If a patient cannot take NSAIDs, then Lortab is a reasonable alternative. By the time of her next documented office visit at The Lung and Sleep Center on July 22, 2009, A.W. was still suffering from anxiety, abdominal pain, and pleurisy. A.W. had neglected to obtain any of the consultations recommended by Dr. McKenzie. Dr. McKenzie testified that it can be difficult to get patients to obtain consultations: So a lot of times, it’s hard to get people to be compliant. Nobody wants to go and have scopes in both ends, but especially when something flares up and goes away, because every time you see – it’s like taking your car to the mechanic, when you take it to the mechanic, it quits knocking. So a lot of these people come in, well, it’s not that bad. And they they go home and it will be bad. So a lot of times it’s hard to get them to be compliant with these. Because the [esophagogastroduodenoscopy] and the colonoscopy, I don’t know if anybody has had one, but they can be unpleasant, at best. Because A.W. is a nurse, Dr. McKenzie assumed that she would eventually obtain the consultations: [O]ne thing about A.W. is she’s a nurse. And so you kind of put more weight, because a normal patient, when they say, well, I’m going to call psychiatry, or I’m going to get this down or this done, you know, then you may push them a little harder. But if you have a medical professional, when they tell you that, well, I’ll call this and I’ll do that, you kind of put more weight to that. And so, you know, she did – you know, and she was told, and she said, well, I’ll call psychiatry. And then she would call – was going to call GI and she was going to call neurology. And she eventually did, of course. When asked about prescribing narcotics for a year to a patient who was not obtaining the recommended consultations, Dr. McKenzie testified as follows: So you give people the benefit of the doubt. And her symptoms would come and go. And then she said – like I said, she kept saying, well, I’m going to go see this person, see this person. She worked nights. She had a lot of compounding issues that would make it harder for her to follow up and be compliant. Dr. McKenzie did not have an office visit with A.W. every time that he wrote a prescription for her. The next documented visit by A.W. to The Lung and Sleep Center occurred on December 9, 2009. The medical record notes that A.W. continued to have stomach pain. As a result, she was to continue avoiding NSAIDs, and she was supposed to consult with a gastroenterologist. A.W. was still suffering from pleurisy, anxiety, and migraines. A.W.’s next documented treatment at The Lung and Sleep Center occurred on May 5, 2010. A.W. still had not obtained the consultations mentioned above, and Dr. McKenzie recognized that doing so would be difficult because A.W. was working nights. A.W.’s last documented treatment at The Lung and Sleep Center occurred on October 11, 2010. She still had not obtained the consultations previously recommended by Dr. McKenzie. Dr. McKenzie notified A.W. during this office visit that he would not prescribe any more pain medication until she obtained the psychiatry, neurology, and gastroenterology consultations they had discussed. A.W. then treated with Dr. Mariusz J. Klin, a gastroenterologist, on November 24, 2010. Dr. Klin performed an endoscopy on A.W. and discovered that she was suffering from “severe gastritis from NSAIDs and a 2 centimeter hernia.” Dr. McKenzie testified that severe gastritis is painful. A lot of people call the ambulance, you know, they get all kinds of heart workup and all kinds of pulmonary workup and they did a lot of workup because of the severe pain. And it’s episodic. You can have episodes where you won’t have any issues and then you’ll have flare-ups and have issues. Dr. McKenzie testified that a hiatal hernia can be painful: It can be. A lot of times your – what causes a hiatal hernia is your stomach and your esophagus are above the diaphragm. And your esophagus fits into your diaphragm like a lock and key. And so if your esophagus is in the right place, it helps close off the stomach so the acid can’t come out. Well, when you have a hernia, it pulls the lock and key in the wrong direction to be optimal, so now the stomach acid can leak out and cause more of a problem. Dr. Francisco Calimano, the Department’s expert witness, reviewed A.W.’s medical records and provided expert testimony on the Department’s behalf. Dr. Calimano is licensed to practice medicine in Florida and is board-certified in internal medicine, pulmonary medicine, and critical care medicine. Dr. Calimano testified that the amount of Lortab prescribed to A.W. by Dr. McKenzie was “excessive.” However, Dr. Calimano’s objection was directed more toward the length of time that Dr. McKenzie prescribed 90 Lortab pills a month, rather than the monthly amount of Lortab prescribed. Specifically, Dr. Calimano testified that he would do no more than a two to three month Lortab prescription for a patient with migraines, anxiety, and abdominal pain: In my opinion, you know, in my professional opinion, you know, at least in the scope of practice that I have, which I am not a pain specialist, I wouldn’t go for this length of time prescribing this amount of narcotics. I will feel uncomfortable doing that. So I think that I would refer to the pain management specialist. I would have been, you know, up to the point I said, you know, usually what I tell my patients is I give you a prescription, because you are having acute pain. I might give a second prescription if the pain is not resolved or so with the understanding that he needs to get that addressed. Before I give him that second prescription, I tell him I no longer will prescribe you these medications. And so before she runs out of that prescription, she knows in advance that it’s a no, the answer is no. That she needs to get some help, professional help. Because I think if not I would be doing a disfavor. Dr. David Hart Goldstein provided expert testimony on Dr. McKenzie’s behalf. Dr. Goldstein is licensed to practice medicine in Florida, and he practices internal, pulmonary, and hospital medicine at Sarasota Memorial Hospital. In addition, Dr. Goldstein currently works as an Assistant Clinical Professor of Internal, Pulmonary, and Hospitalist Medicine at Florida State University’s School of Medicine. Dr. Goldstein rendered a different opinion regarding Dr. McKenzie’s treatment of A.W. and the Lortab prescriptions: Q: Does anything appear remarkable to you in terms of the dosage? A: The dosages are on the high side. But when a patient has severe pain sometimes you need a higher dose. It seems that Dr. McKenzie was managing this patient for a long period of time. There was no pain specialist involved at that time. Q: From your review of the record, did it appear that patient A.W. had significant gastric distress? A: Yes. In fact, it appears from the record and the note by Dr. Klin that she tried other methods to relieve the pain. The reasons I say that is his diagnosis was severe gastritis related to the use of NSAIDs. Meaning that she tried using things like Advil. So that caused the issue. So NSAIDs would be prohibited. And this would be consistent with a person who has, according to the record, significant headaches, abdominal pain, which was [caused] by gastritis and pleurisy. Q: So from your review of the records, particularly Dr. Klin’s clinical records, would it be appropriate if NSAIDs were not effective to step up to a Lortab prescription? A: If that was the only way the patient’s pain could be managed, yes. * * * Q: So taking all of these records together, did you see anything clinically inappropriate as to either the medical care or the prescribing that Dr. McKenzie offered to patient A.W. during this timeframe? A: The only thing is as I mentioned – I think I mentioned it in my deposition also. There are a lot of prescriptions for Lortab. The medical record documents that she has a lot of pain. I think there might have been better documentation of the fact that this was failing or this was working. So I am not that impressed with the documentation, but the record is consistent with symptoms that can be treated and are often treated with narcotics such as Percocet or Lortab. Q: Dr. Goldstein, did you see anything that appeared to you to be a practice beneath the standard of care? A: Just as I mentioned, I don’t think the records were great, but I don’t believe that’s a deviation of the standard of care. I just think that’s poor recordkeeping. As for the length of time that Dr. McKenzie prescribed Lortab to A.W., Dr. Goldstein testified that, “I would not prescribe it for a year unless I was comfortable that this patient had made attempts to see a neurologist and had migraines and was not abusing this medication.” Because A.W.’s gastric issues prevented her from taking NSAIDs, Dr. Goldstein opined that it was appropriate to treat A.W.’s headache pain, abdominal pain, and pleurisy with Lortab. With regard to the fact that Dr. McKenzie wrote prescriptions for A.W. without a corresponding office visit, Dr. Calimano acknowledged that “you don’t absolutely need a face-to-face contact with the patient if you have established a diagnosis and you are sure of what you are treating and so on.” Nevertheless, Dr. Calimano objected to Dr. McKenzie not doing more to treat the sources of A.W.’s pain, and the Department takes Dr. McKenzie to task because A.W.’s medical records do not set forth a treatment plan, objectives, etc. However, A.W. was a difficult patient because she did not obtain the consultations requested by Dr. McKenzie until he threatened to discharge her as a patient. Such consultations would be an essential prerequisite to formulating an effective treatment plan for A.W. If A.W. had obtained those consultations when she had been directed to do so, then her illnesses might have resolved much sooner. While Dr. McKenzie probably should have threatened to discharge A.W. sooner, he believed that A.W., as a medical professional, would eventually obtain the consultations, and he recognized that A.W.’s night shift work made it difficult for her to obtain those consultations. In sum, even Dr. Goldstein acknowledged that Dr. McKenzie’s recordkeeping for A.W. could have been better. However, the evidence does not clearly and convincingly demonstrate that Dr. McKenzie’s treatment of A.W., under these particular circumstances, fell below the standard of care.3/ Did Dr. McKenzie Falsify A.W.’s Medical Records and Use Her to Illegally Obtain Lortab? Contrary to the medical records described above, A.W. asserts that she has never sought treatment at The Lung and Sleep Center. While she acknowledges visiting The Lung and Sleep Center, she asserts that she was only there as a friend of Dr. McKenzie and to assist her father with obtaining treatment.4/ A.W. testified that Dr. McKenzie never determined the cause of her headaches, her anxiety, or her abdominal pain. A.W. testified that Dr. McKenzie never performed a physical exam on her or discussed a treatment plan with her. A.W. also denies that she received any treatment from Dr. McKenzie at Bay Clinic, but she acknowledges visiting him there as a friend. As noted above, A.W.’s Lortab prescriptions enabled her to obtain 90 Lortab pills a month. As a result, she could take one pill every six hours. A.W. testified that she could not tolerate taking that amount of Lortab. The medicine made her drowsy and upset her stomach. A.W. also testified that she never had to take four Lortab pills in a single day in order to control her pain. After the first month of her treatment with Dr. McKenzie, A.W. testified that she continued to fill the Lortab prescriptions but gave a large majority of the pills to Dr. McKenzie. A.W. testified that she kept a few pills for those times when she would experience severe headaches or abdominal pain, and one pill a day was enough to keep her pain under control. As for why she gave large portions of her Lortab prescriptions to Dr. McKenzie, A.W. testified that she did so “[b]ecause he was my friend, and he had told me he was going through a lot, and he was embarrassed to go see a physician in town. He asked me if he wrote me a script could I give him some back or give it back to him.” During the time in question, Dr. McKenzie was experiencing marital difficulties and opening his own practice. A.W. testified that she would fill the Lortab prescriptions at a CVS Pharmacy in Panama City and then meet Dr. McKenzie in a parking lot so that she could give him the medication. A.W. and Dr. McKenzie’s personal relationship ended again in 2011 when A.W. became pregnant. At some point in 2011, A.W. was contacted by investigators from the Department and the Drug Enforcement Agency. A.W. then alerted Dr. McKenzie to the aforementioned agencies’ investigation. A.W. testified that she assisted Dr. McKenzie with fabricating medical records demonstrating that she had treated at The Lung and Sleep Center and that the Lortab prescriptions were medically necessary. She testified that she did so because Dr. McKenzie was her friend and she wanted the investigation to “go away.” Moreover, A.W. testified that she was worried that she could be charged with impaired nursing. When asked why she fabricated medical records, A.W. testified as follows: Because he was my friend and I didn’t want him to get in trouble for all of this, and I wanted it to be done with. I was worried about being a nurse and being a part of this. And I had been – the whole impaired nursing thing had been brought up, and I figured if I did this everything would just go away. A.W. learned of the Administrative Complaint when Dr. McKenzie showed it to her during a 2014 visit to his apartment. A.W. visited Dr. McKenzie’s apartment “quite a few times” and their last sexual encounter probably occurred in 2015. Despite testifying that she and Dr. McKenzie had been friends, A.W. testified against Dr. McKenzie at the final hearing and claimed that she was doing so because she felt it was the right thing to do and did not “want this over [her] head anymore.” Medical records from Dr. Klin and a Dr. Elzawahry memorialize treatment rendered to A.W. in October and November of 2010. However, those records, which were in the possession of The Lung and Sleep Center, bear a facsimile timestamp of March 1, 2011, and March 2, 2011. Those dates are four months after A.W.’s treatment dates. Also, the facsimile timestamps are seven days after the Department served Dr. McKenzie with a subpoena for A.W.’s medical records. While concerning, the facsimile timestamps do not conclusively demonstrate that Dr. McKenzie fabricated the records pertaining to A.W.’s treatment at The Lung and Sleep Center. While the undersigned has doubts about Dr. McKenzie’s credibility, there are reasons to question A.W.’s credibility. A.W. and Dr. McKenzie had a complicated relationship, and Dr. McKenzie is currently seeing another nurse employed at Bay Medical Center. The undersigned cannot ignore the possibility that A.W. and Dr. McKenzie’s prior relationship did not end on good terms. As noted above, Dr. Ortega brought A.W., R.W., and K.D. to the Department’s attention. The January 28, 2011, letter from Dr. Ortega to the Board of Medicine is suspicious because Dr. Ortega confidently states (without stating the basis for his assertions) that there are other patients who have received illegal prescriptions from Dr. McKenzie. Given the January 28, 2011, letter and the acrimony between them, one of Dr. McKenzie’s defenses to the Amended Administrative Complaint is that Dr. Ortega persuaded or coerced A.W., R.W., and K.D. to provide false testimony against him. It is possible that Dr. Ortega could be in a position to exercise some sort of leverage over A.W. due to the fact that Dr. Ortega works as a pulmonary doctor at Bay Medical Center and A.W. is a pulmonary nurse. During the hearing, A.W. acknowledged that she is taking 14 medications such as Latuda for psychosis; Ativan for anxiety; Prozac for depression; Nuvigil for Attention Deficit Disorder (“ADD”) and narcolepsy; Adderall for ADD; Fioricet for migraines; Metoprobol for hypertension; Lamictal for bipolar disorder; Carafate to coat her stomach; Prilosec for indigestion, gastric reflux, and gastritis; and Rispedal, a mood stabilizer associated with bipolar disorder. The fact that A.W. is currently receiving treatment for psychosis and bipolar disorder does not cause the undersigned to discredit her testimony. However, the undersigned cannot ignore the fact that there was no testimony as to what extent (if any) the aforementioned conditions affected her during the time period relevant to the instant case. In sum, there is evidence indicating that Dr. McKenzie used A.W. to obtain Lortab. Nevertheless, the evidence taken as a whole does not clearly and convincingly demonstrate that Dr. McKenzie prescribed Lortab to A.W. outside the course of his professional practice. Was Dr. McKenzie’s Treatment of R.W. Below the Standard of Care? R.W. was a Florida-licensed respiratory therapist from approximately 2000 to 2012. R.W. met Dr. McKenzie sometime between 2005 and 2006 when both of them were employed at Gulf Coast Medical Center. Dr. McKenzie and R.W. often worked together. While R.W. considered Dr. McKenzie to be a friend, they did not spend time together outside the hospital. Since his first marriage ended in 1993, R.W. had been taking Ativan in order to alleviate anxiety resulting from his divorce. Ativan is the brand name for Lorazepam and is prescribed for anxiety. According to section 893.03(4), Lorazepam is a Schedule IV controlled substance. Approximately one year after meeting Dr. McKenzie, R.W. inquired about becoming Dr. McKenzie’s patient. R.W. had become heavily dependent on Ativan and admits that he was engaging in “doctor shopping” in order to obtain more Ativan prescriptions. Other doctors had declined to treat R.W. because they believed he was taking too much Ativan: Q: So my question was about Dr. McKenzie and how did you begin treating as a patient with Dr. McKenzie. A: I was taking large amounts of Ativan. After that many years, you build up a tolerance to it. I [did] what was called doctor shopping. I had asked a couple of other physicians if they would follow me for my Ativan. Because generally I am healthy. And I had become dependent on it and was taking pretty large amounts of it and approached him about that, if he would prescribe it for me. Q: Did the other physicians you had asked to follow you begin following you and providing you with Ativan? A: No. Q: Why not? A: They said I was taking an incredibly large dose of it. They didn’t think I should be on that much. Q: Did they offer to take you as a patient and prescribe you alternatives? A: No. Q: They wouldn’t follow you altogether? A: They wouldn’t follow me altogether. They wanted to know who had been prescribing me that much. I guess it was because I wasn’t getting the answer I was wanting, I just didn’t pursue it any further. Q: So what did you do to get it after that? A: I approached Dr. McKenzie. Q: Was Dr. McKenzie aware that any other practitioners wouldn’t give it to you? A: I don’t know. I don’t believe I made that – I don’t know. Q: Do you recall how you approached Dr. McKenzie about the Ativan? A: Yeah. We were at the hospital. I approached him. I said, look, I am on Ativan. Explained the reason I was on it. I am on large doses of it. I need someone to follow me for this, is that something you could do. The first documented treatment occurred on November 2, 2007, when R.W. presented at Bay Clinic. A patient intake form indicates that R.W. placed notations on the form indicating that he was suffering from “anxiety/stress” and “problems with sleep.” A follow-up note dated November 20, 2007, lists Ativan as R.W.’s current medication and states that he will continue with Ativan. The note records the following: The patient follows up today. He is complaining of chest pain. He states that he has had chest pain in the center of his chest which radiated into both arms for about 15 minutes. He has had no further episodes of this. The patient had a normal stress test last year. We will try to obtain the results. The patient does have a smoking history. Today we did an EKG which showed no significant abnormalities. The patient states that he has been under a lot of stress. He continues to take his Ativan. The patient is an avid kick boxer[5/] and exercises often. Lab work was obtained. The patient knows to seek immediate medical attention for any worsening of his condition. The next documented treatment occurred on August 29, 2008, at Bay Clinic. The medical record reports the following: The patient follows up today. States that he has had no further chest pain. The patient does have significant anxiety. The patient has been on Ativan for several years. Risks, benefits, and alternatives [to] Ativan were explained to patient and patient voiced understanding. The patient does not want to decrease the Ativan. Does not want to change the Ativan. The patient denies suicidal or homicidal ideation. The patient jogs several miles each day. The patient exercises. The patient is a respiratory therapist, and I have contact with [the] patient every day. The patient is compliant with his medications. Does use it at the same pharmacy. The patient is under a narcotic contract here. If the patient violates his contract[6/], the patient knows that he will be discharged immediately. The patient knows to seek immediate medical attention for any worsening condition. The medical record notes that Dr. McKenzie will continue R.W. on Ativan. On January 24, 2009, R.W. was injured in an automobile accident. Another vehicle traveling 40 mph rammed into the back of R.W.’s Corvette. According to R.W., the other vehicle was traveling [f]ast enough to knock me from a red light. I was at a red light. I was in a Corvette. Fast enough to fold the tail end of my Corvette under and knock me across the intersection to the railroad tracks. Pretty hard. When asked if the accident was “significant,” R.W. responded by testifying that his car had been “totaled.” On February 9, 2009, R.W. received a prescription from Bay Clinic for Lortab, but no refills were authorized. On April 3, 2009, R.W. received a second prescription from Bay Clinic for Lortab. Again, no refills were authorized. The next documented treatment occurred at Bay Clinic on May 1, 2009. R.W. presented with anxiety and some depression. Dr. McKenzie discussed R.W. treating with a psychiatrist and prescribing Luvox, an antidepressant. This record notes that R.W. was still experiencing pain from the motor vehicle accident and that Dr. McKenzie “will try NSAIDs.” The next documented treatment occurred on July 23, 2009. With regard to R.W.’s anxiety, Dr. McKenzie wanted R.W. to see a psychiatrist, but R.W. refused. Dr. McKenzie noted in the medical record that he was going to begin decreasing R.W.’s Ativan dosage and replacing it with a short-acting benzodiazepine. Dr. McKenzie explained that he wanted to wean R.W. off of Ativan because: He had been on Ativan, as he testified, for 25 years before I met him. And the goal was to try to get him off the Ativan. And so, we were going to change him from a long- acting benzodiazepine Ativan to a short- acting one, Xanax. And so what you try to do is wean his Ativan down and then wean him to the short-acting, and it’s easier for people to get off the short-acting. But, somebody that’s been on benzodiazepines or like Ativan for 25 years, it does the same thing to your brain that alcohol does. And so abruptly withdrawing benzodiazepines can put people in DT’s, delirium tremens and with a 25 percent mortality, being that one in four people could die if you just took somebody off those medications. Given R.W.’s 25-year use of Ativan, slowly weaning R.W. from Ativan and to a less harmful anxiety drug was certainly a reasonable goal. The medical record indicates that R.W. was still experiencing back pain from the motor vehicle accident and had “failed NSAIDs.” The record notes that Dr. McKenzie and R.W. discussed obtaining x-rays. At that time, Dr. McKenzie began prescribing at least 90 Lortab pills per month to R.W. The next documented treatment occurred on November 20, 2009. R.W. was continuing to take Lortab for chronic back pain, and Dr. McKenzie was still in the process of weaning R.W. from Ativan. This record notes that R.W. refused a psychiatric consult. In February of 2010, Dr. McKenzie increased the Lortab prescription from 90 to 120 pills a month. The next documented treatment occurred on March 10, 2010. R.W. was still experiencing chronic back pain and anxiety. Dr. McKenzie noted that R.W. needed an MRI and consultations with an orthopedist and a pain management specialist. There is a notation in the record indicating that R.W. needed x-rays. However, R.W. reported that he needed to “check his funds” before obtaining the x-rays. In addition, there is a notation that Dr. McKenzie “will stop Lortab soon.” The next documented treatment occurred on August 12, 2010. R.W. was still experiencing chronic back pain, and Dr. McKenzie wanted R.W. to consult with an orthopedist and a pain management specialist. R.W. was aware that Dr. McKenzie wanted MRIs taken. R.W. was still experiencing anxiety, but the medical record notes that Dr. McKenzie was only going to prescribe one more refill of his medication. Dr. McKenzie noted on the record that R.W. stated, “I will get you. This is bullshit.” R.W. testified that his faith has enabled him to stop taking any medication other than BC headache powder. There is no dispute that Dr. McKenzie did not require an office visit from R.W. each time he wrote a prescription. With regard to whether that practice was appropriate, Dr. McKenzie testified as follows: Ideally we did but, like I said, sometimes patients would come in and pick up a prescription. And it’s kind of the rule that they have one each time but, like I said, that’s sometimes rules can’t be ideal. I mean, if you know the patient, and you know what the issues are, I don’t think there was any law or statute that said they need to be seen every single time. With regard to whether Dr. McKenzie’s treatment of R.W. fell below the standard of care, Dr. Calimano explained that a physician should begin treating a patient complaining of back pain by taking the patient’s history and performing a physical exam. The physical exam would be followed by imaging studies such as an MRI. If there is nothing pressuring the patient’s spine, then treatment options include physical therapy and NSAIDs. If the patient’s pain is very severe, then the physician could prescribe narcotics for a short period of time. If the patient’s condition does not improve, then the physician would refer the patient to the appropriate specialists, such as ones dealing with the spine and pain management. With regard to R.W.’s anxiety, Dr. Calimano stated that he would have attempted to refer R.W. to a psychiatrist. Dr. Calimano was of the opinion that Dr. McKenzie’s medical records do not justify the amount of Lortab and Ativan prescribed to R.W. However, his testimony did not sufficiently address the notations regarding R.W.’s pain from the violent motor vehicle accident. His opinion appeared to focus on the notations regarding chest pain. With regard to the Xanax and Lortab Dr. McKenzie prescribed to R.W. between November 20, 2009, and August 12, 2010, Dr. Goldstein testified as follows: Q: Anything about the dosing or the frequency for the Xanax prescriptions that looks remarkable to you? A: Xanax, one milligram. You know, it can be given up to four milligrams a day. So one milligram [four times a day] is on the higher end, but it’s not above the prescribing recommendations. Lortab is being given continuously. Patient has continuous pain. And it’s documented that the doctor wanted to send this patient to a pain specialist, to an ortho doctor and to rehab. So there is a lot of documented pain medicine there. Again, the only thing I mention is there might have been better documentation as to why he needed to continue it. But there is nothing remarkable about the dosages. Q: So, Dr. Goldstein, based upon all the medical records that we’ve been through regarding R.W. and the medication administration record on page 39, could you offer an opinion to the Court as to whether or not you perceive that Dr. McKenzie’s treatment or prescribing of R.W. during the time period at issue to be beneath the acceptable standard of care? A: The fact that the patient was referred to a psychiatrist. The fact that Xanax was given and it was documented on that last note we mentioned, that the patient was not suicidal, which is important if you are prescribing that. The fact that the patient was referred to an orthopedic doctor, a rehab doctor and a pain specialist, I believe it was within the standard of care. I don’t think the documentation is great, but I can’t see anything that says this is beneath the standard of care. The Department takes Dr. McKenzie to task for not doing more to address R.W.’s anxiety, such as recommending behavior modifications and/or psychotherapy. The Department also takes issue with Dr. McKenzie’s not doing more to treat R.W.’s chronic back pain. However, the medical records indicate that Dr. McKenzie attempted several times to have R.W. treat with a psychiatrist, but R.W. refused. It appears from the medical records that R.W. was not compliant with Dr. McKenzie’s request for x-rays. Dr. McKenzie did not offer a reason why he maintained R.W. as a patient when R.W. would not obtain the recommended consultations and tests. But, Dr. McKenzie noted during his testimony regarding A.W. that he gives more leeway to medical professionals when it comes to obtaining recommended consultations. Given R.W.’s refusal to pursue the recommended consultations and tests, it probably would have been appropriate for Dr. McKenzie to have ended the prescriptions much sooner. Nevertheless, the greater weight of the evidence demonstrates that R.W. was a difficult patient who was resistant to obtaining the consultations desired by Dr. McKenzie. If he had been more compliant in obtaining those consultations, then Dr. McKenzie may have been more successful in treating R.W.’s anxiety and chronic pain. In sum, the evidence does not clearly and convincingly demonstrate that Dr. McKenzie’s treatment of R.W. fell below the standard of care given the circumstances associated with R.W. Did Dr. McKenzie Falsify R.W.’s Medical Records and Use Him to Illegally Obtain Lortab? R.W. testified that any pain from his motor vehicle accident only lasted two days, and he denies experiencing any chronic/long-term pain following the accident. R.W. testified that Dr. McKenzie prescribed Lortab and asked him to transfer the medicine to him. R.W. testified that he returned pain medication to Dr. McKenzie on a monthly basis over the course of approximately one year. The transactions would occur at the hospital or in parking lots at a Wal-Mart or a service station. R.W. testified that he would typically give 90 to 100 pills to Dr. McKenzie and retain 10 to 20 for his own use. R.W. denies being addicted to Lortab but acknowledges that he was a recreational user and that he “abused” Lortab and Percocet. As for why Dr. McKenzie engaged in this practice, R.W. testified that: As in my deposition, Dr. McKenzie had a corneal abrasion. And I understand, maybe I don’t understand, that physicians, I guess, it’s looked down upon if they are taking medications. So he had a corneal abrasion and asked if I would get him a prescription filled for the pain for his corneal abrasion. When asked why he agreed to divert drugs to Dr. McKenzie, R.W. stated that, “I don’t have a good answer for that. Stupidity I would assume.” As for why he stopped diverting drugs to Dr. McKenzie, R.W. stated that, “Again, when it stopped, my life, it was falling apart. It was a mess.” When asked why he stopped treating with Dr. McKenzie, R.W. testified as follows. A: I don’t even recall. My life was blowing up there. It was a total mess there near the end of my tenure with Gulf Coast. I mean, it was a train wreck. Q: What does that mean? A: I was taking a lot of Ativan. I was taking Lortab. I was drinking heavily. It was a wreck. Q: So the question is why did you stop treating with Dr. McKenzie? A: I left employ – you know, I don’t recall other than we just parted ways and I went my way and that is that. I don’t recall. Q: Did Dr. McKenzie ever have any discussion with you about terminating you as a patient of his? A: He may have. I don’t recall. I am not going to say he didn’t. The Department argues that Dr. McKenzie fabricated the medical records discussed in the previous section because R.W. claims that he only received treatment from Dr. McKenzie at The Lung and Sleep Center on two occasions. Moreover, R.W. claims that he never received treatment from Dr. McKenzie at Bay Clinic.7/ As for why he testified against Dr. McKenzie, R.W. stated the following: A: Well, first of all, I was subpoenaed here. You answer a subpoena. This has been going on for many, many years. Too many for me. I don’t want to be here today. And that is just a fact. Several years ago, I think it was during a – I don’t think, I know. During a fit of anger, withdrawals, all the above, I contacted your department and asked that this be investigated. And I believe the lady’s name was [] Ms. McBride, [and she] came to my residence in Mexico Beach and said that she was going to follow- up and I never heard back. When I heard from you, I was floored that it had taken that long. I figured, well, maybe my – it was a – maybe my suspicions were unfounded when I didn’t hear anything back from her. Q: What do you mean maybe your suspicions were unfounded? A: Maybe I was [the] one off. He was – maybe he was helping me out. Maybe we were helping each other out. I don’t really know. All I know is that I had brought it to your office’s attention a long time ago and nothing was ever done about it. Q: Did anyone ever offer you anything for your testimony today? A: No. Other than the $8.42 check I got from the State for gas I believe. It was delivered to me with my subpoena. Q: Are you referring to [the] witness fee? A: Yes. That I tore up. As was the case with A.W., Dr. McKenzie argues that Dr. Ortega somehow influenced or coerced R.W. into falsely testifying that Dr. McKenzie received Lortab from R.W. Dr. McKenzie testified that Dr. Ortega supervised R.W. at Bay Clinic when R.W. was employed as a respiratory therapist. Therefore, if R.W. held a grudge against Dr. McKenzie for cutting off his Ativan supply as indicated in the August 12, 2010, medical record, it is certainly possible that Dr. Ortega could have learned of that circumstance and sought to take advantage of it. As noted above, the undersigned has doubts about Dr. McKenzie’s credibility. However, R.W.’s statements about engaging in “doctor shopping” for years in order to obtain Ativan, abusing Lortab, and being a “train wreck” when he stopped treating with Dr. McKenzie cast substantial doubt on R.W.’s credibility. Indeed, it appears that R.W.’s difficulties may be the reason why he is no longer a respiratory therapist. Moreover, given R.W.’s own description of the severity of his car accident, it is surprising that he would testify that he experienced little or no pain afterwards. That is especially true given the fact that his car was struck from behind and totaled. Finally, given R.W.’s longstanding dependency on Ativan, R.W. certainly had a motive for filing a false report with the Department after Dr. McKenzie cut off his Ativan supply. In sum, the evidence taken as a whole does not clearly and convincingly demonstrate that Dr. McKenzie prescribed Lortab to R.W. outside the course of his professional practice. Was Dr. McKenzie’s Treatment of K.D. Below the Standard of Care? K.D. began working at Pulmonary Associates in 2007 and was employed there at the same time that Dr. McKenzie worked there. K.D. considered Dr. McKenzie to be her primary care physician, and she treated with him from some point in 2006 at least until August of 2009. K.D. treated with Dr. McKenzie at Gulf Coast Medical Center, Bay Medical Center, Pulmonary Associates, and Bay Clinic. However, K.D. usually treated with Dr. McKenzie at Gulf Coast Medical Center. As her primary care physician, Dr. McKenzie was typically K.D.’s attending physician when she was admitted to either Bay Medical Center or Gulf Coast Medical Center. K.D. primary health problem was intractable pain originating from her hips and one of her knees. K.D.’s knee pain resulted from two knee surgeries and appears to have been aggravated by a car accident. During the course of her treatment with Dr. McKenzie, K.D. was often admitted into hospitals for treatment of her pain. A medical record from Bay Medical Center dated January 22, 2008, describes K.D.’s general condition during the treatment with Dr. McKenzie: This patient is a 37-year-old female who has had long standing problems with chronic pain, particularly involving the right lower extremity. Her history is extensive in that she has been previously diagnosed with torn meniscus in the right knee. She has undergone 2 previous orthoscopic procedures. Also, she has been treated for chronic pes anserinus bursitis. She has had a plethora of complaints over recent years including chronic pain syndrome, migraine headaches, asthma, fibromyalgia, anxiety, depression, and recurrent pain in the right knee and occasionally in the right hip. She was in a motor vehicle accident about a year or so ago, which resulted in no significant abnormalities on workup, but aggravated her chronic pain. She also had a fall and an MRI of the right hip was carried out at the end of 2006, and a partial tear of the gluteus medius was noted. All of her MRIs of the knee demonstrate minimal degenerative change, and previous meniscal pathology. * * * She has been diagnosed previously with chronic pain syndrome and has been utilizing up to 12 mg a day of oral Dilaudid for quite a few months. This is on the basis of chronic migraine headaches and fibromyalgia. From January 2007 through July 22, 2009, Dr. McKenzie prescribed Lortab and Dilaudid on a monthly basis for K.D.’s pain. Dilaudid is a brand name for hydromorphone. Dilaudid is an opioid pain medication that is four times stronger than Lortab. Under section 893.03(2), hydromorphone is a Schedule II controlled substance. For several months in 2008, K.D. was receiving a 120-pill supply of Lortab intended to last 15 days and a 120-pill supply of Dilaudid intended to last 10 days. He also prescribed Xanax for anxiety and Ambien for sleep. The Department takes issue with Dr. McKenzie prescribing two short-acting narcotics, Lortab and Dilaudid, to K.D. between January 2007 and July 22, 2009, without medical records supporting those prescriptions. According to the Department, there is no justified medical purpose for prescribing Lortab and Dilaudid together. Dr. Calimano testified as follows: I’m a pulmonologist, so anything that depress[es] or repress[es] your respiratory drive is always a concern with me. Plus they are all habit forming, so I will be concerned. Going back to the use of narcotics, sometimes you can use a combination of narcotics. But when you are using narcotics on a chronic basis for, like, terminally ill patients and so on, the combination will be you do a long-term or long acting narcotic. You know, there are some preparations, Morphine, and so on and so forth that will last 12 hours. And then you use preparations for breakthrough pain, like short acting ones and so on. But if you have two narcotics that are both, like, will give you the hit quickly, but will disappear three or four hours later, I am not sure, you know, what the advantage would be. In contrast, Dr. Goldstein testified that prescribing two short-acting narcotics is appropriate in order to treat “breakthrough pain:” Q: Is Dilaudid a short acting narcotic? A: Yes. It’s considered an immediate release with a half life of two to three hours. Q: Is Lortab a short acting narcotic? A: Yes. Two to three hours. The answer is yes. Q: In your practice, have you ever prescribed a combination of both Lortab and Dilaudid? A: Yes. But never to be used, as I said in my deposition, at the exact same time. You could use one and another for breakthrough. In other words, you wouldn’t say to the patient take a Dilaudid and a Lortab at the same time for pain. You would say take a Dilaudid on the scheduled basis. And then you may use Lortab for breakthrough. Lortab is not as strong as Dilaudid. And it would be better to use Lortab for breakthrough than Dilaudid for breakthrough. Q: Why would you prescribe a patient two short acting narcotics as opposed to one long acting narcotic such as Fentanyl or Morphine with a short acting narcotic for breakthrough pain? A: Yes. As a matter of fact, the recommendations for pain control, and you can check it [is] up-to-date, are to reserve the long acting pain medications like Oxycontin and Fentanyl for people who have severe chronic pain like cancer. And that should not be the first thing. That should be the last thing you should do. In other words, we try to get away with short acting and try to stay away from the long acting ones. In other words, the long acting one is progression. That’s something you go to next, not before. If the long acting pain medications, for patients, for example, who have cancer and are on hospice, those are the ones we give Fentanyl patches to or Oxycontin. And that’s currently what a lot of the pain management doctors are doing with severe pain. The short acting ones are not as effective. Dr. McKenzie explained why he prescribed two short- acting narcotics as follows: Well, I mean, that your – the goal for the patient is to get them off narcotics. And just like Dr. Goldstein testified that, you know, once you put people on long-acting narcotics, they’re kind of stuck there. And so, you know, what you – cancer patients and terminally ill patients, you put them on long-acting, you know, morphine, long-acting Oxycontin and then for the breakthrough pain, you add a short-acting [narcotic]. Well, that’s not the goal with [K.D.]. The goal is to get her off these medications. And so the medications that I had her on were two short-acting and, yes, you have to use caution with two short acting medications but, again, the goal was to get her off the medication, not advance her to a higher level where she’s – it’s a lot harder to get her off. Once you get somebody on a long-acting narcotic, pain medications to wean them off and that’s the perpetual state that she was in, trying to get her off the narcotics, not keep going up. The Department also takes issue with the lack of medical records supporting the prescriptions written between February 26, 2008, and July 22, 2009. According to the Department, Dr. McKenzie should have had a treatment plan with objectives to assess the success of K.D.’s treatment. In addition, the Department asserts that Dr. McKenzie should have documented recommendations for referrals to other physicians. For the vast majority of the time between February 26, 2008, and July 22, 2009, Dr. McKenzie’s non- hospital practice was based at Bay Clinic, and Dr. McKenzie testified that K.D. had office visits with him in 2008 at Bay Clinic. Therefore, it is possible that Dr. McKenzie treated K.D. at Bay Clinic between February 26, 2008, and July 22, 2009, and that the lack of medical records is attributable to him retaining no ownership over the corresponding records. The Department has presented no persuasive evidence conclusively establishing that Dr. McKenzie owned or should have owned the medical records associated with the patients he treated at Bay Clinic. While K.D. testified that she only visited Bay Clinic on two occasions, Christen Tubbs, a former medical assistant at Bay Clinic, testified that K.D. visited Bay Clinic frequently and that there were many medical records pertaining to K.D. at Bay Clinic.8/ For reasons discussed in detail below, Ms. Tubbs’ testimony on this point was more credible than K.D.’s. As a result, medical records pertaining to K.D.’s treatment at Bay Clinic were created but unavailable for the final hearing. Without those medical records, it is impossible to evaluate whether Dr. McKenzie practiced below the standard of care with regard to not having a treatment plan with objectives to assess the success of K.D.’s treatment. The lack of medical records makes it extremely difficult to evaluate whether Dr. McKenzie practiced below the standard of care by prescribing Lortab and Dilaudid to K.D. in the quantities at issue. The Department presented no sufficiently persuasive evidence demonstrating that the quantities of Lortab and Dilaudid prescribed to K.D. were per se below the standard of care given the circumstances associated with K.D.’s treatment.9/ In sum, the Department has not presented clear and convincing evidence that Dr. McKenzie’s treatment of K.D. fell below the standard of care. Did Dr. McKenzie Use K.D. to Illegally Obtain Lortab? Rather than ingesting the Lortab prescribed for her, K.D. testified that she would fill the Lortab prescriptions and give the pills to Dr. McKenzie in a mall parking lot or her home. According to K.D., Dr. McKenzie would usually give her $40 to $100 for the Lortab. K.D. testified that she would not have taken Lortab because she is allergic to it. K.D. explained that she had her tonsils removed at 16 and was given hydrocodone, an ingredient in Lortab. The hydrocodone caused her to have an itchy, swollen throat. Medical records from Bay Medical Center and Gulf Coast Medical Center note that K.D. was allergic to Lortab. Dr. McKenzie pointed out that he authored a July 16, 2007, medical record, which stated K.D. was allergic to Lortab. However, that same record notes that K.D. “states it makes her nose itch, but has no significant abnormal affect.” Dr. McKenzie testified as follows: And so that, as far as I’m concerned, that she was not, you know, she was not allergic to Lortab. Plus, she had over 80 different independent medical exams because she had been in the hospital 20, 30 different times where she didn’t tell physicians, at that time, or nurses, that she was allergic to Lortab. So that’s not on there. So she would pick and choose who she would tell she was allergic to Lortab and who she wasn’t. And you would say, well, is that a red flag, well, I didn’t know that. And so I don’t go back and look. She was my patient. She told me she wasn’t allergic to Lortab. That’s what I document. And so I would prescribe Lortab for her. Even in the hospital, they did a – and it’s in the records, we can find the Bates number, they got tired of her saying Lortab or not, and there’s a whole section where they went through and viewed every single allergy she had, and they deemed her not to be allergic to Lortab. So, I don’t see how her telling one physician that she’s allergic to Lortab and one physician that she’s not, that that’s – that’s a red flag or that’s anything that I would even notice if I was to go back and look at these medical records. There are aspects of K.D.’s testimony that cause the undersigned to consider Dr. McKenzie’s testimony to be more credible. Rather than testifying during the final hearing, K.D. was deposed on August 9, 2017, at the Gadsden Correctional Facility where she was serving a 36-month sentence for recruiting patients to obtain prescriptions by fraud. K.D. agreed that the aforementioned offense was a “felony conviction.” K.D.’s own testimony suggested that she had a motive to provide false testimony against Dr. McKenzie. Specifically, K.D. testified that she became addicted to pain medication and asserts Dr. McKenzie knew of her addiction. K.D. stated that pain medication “destroyed” her life and was the reason why she was in prison. While K.D. did not directly state that she blamed Dr. McKenzie for her difficulties, one could easily infer from her testimony that she holds a grudge against him. As is the case with A.W. and R.W., there is a connection between K.D. and Dr. Ortega. K.D. testified that she was forced to resign from Pulmonary Associates because she was suspected of embezzlement. Dr. Ortega brought charges against her, but those charges were dismissed after K.D.’s father paid restitution. While K.D. denies that Dr. Ortega offered to drop the charges against her if she gave testimony against Dr. McKenzie, this circumstance must be taken into account when evaluating K.D.’s credibility. The Department has failed to present clear and convincing evidence that Dr. McKenzie prescribed Lortab to K.D. outside the course of his professional practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint. DONE AND ENTERED this 1st day of May, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2018.
