Findings Of Fact Jules J. Dossick, D. O. is duly licensed by the Florida State Board of Osteopathic Medical Examiners and the Hearing Officer has jurisdiction over the Respondent and the events as alleged. Placidyl (ethchlorvynol) is shown as a Schedule IV controlled substance in Chapter 893.03(4) F.S. On or about April 9, 1975 John Guynn, while serving as an informer with the Hialeah Police Department, visited the office of Respondent Dossick to obtain prescriptions for controlled substances. Guynn was "wired for sound" by having a transmitter concealed under his clothes to transmit the conversation between Guynn and Dossick to a recorder monitored by the police in a car on the street outside the office. After telling Dossick that he was having trouble sleeping Guynn received a dissertation from Dossick on how much easier life the young people have today than they had 30 to 40 years ago. This was followed by general conversation on the life styles today and Dossick then issued a prescription to Guynn for 30 Placidyl 750 mg. plus a prescription for Valium (Exhibit 10) without any physical examination to determine if Guynn had a medical problem. These prescriptions were turned over to the police as soon as Guynn left Dossick's office. Guynn was not present to testify. Exhibit 1, copies of the medical records of the Dade County Medical Examiner's office show that John Guynn died at 12:30 a.m. May 30, 1975 of ethchlorvynol intoxication. The police investigation concluded the overdose was intentional and the death was ruled a suicide. On May 1, 1975, Robert Diedesch, also working with the Hialeah Police, made his first visit to Dossick's office to make a "controlled buy" of Placidyl. Diedesch too was "wired for sound" but the conversation recorded was not intelligible to the hearing officer; however, Diedesch was present to testify. Upon entering Dossick's office Diedesch advised Dossick that he was a diabetic and that he was having trouble sleeping. After inquiring if Diedesch's diabetes was under control, Dossick, without further examination, gave Diedesch a prescription for 30 Placidyl 750 mg. and one for 100 Valium. These prescriptions were turned over to the police as soon as Diedesch left the office. Copies of these prescriptions were admitted into evidence as Exhibit 5. In his testimony Diedesch contended that his visit to Dossick's office occurred in 1976 instead of 1975. However, he was obviously mistaken as all other evidence clearly placed the time of Diedesch's visit to Dossick on May l, 1975 as alleged. Sara Lee Milius, a/k/a Sarah Bernhardt, was given prescriptions by Dossick for 30 Placidyl 750 mg. each month for nearly a year. Her examination by Dossick consisted of taking blood pressure, temperature and weight. Not only did Ms. Milius not have any need for the drug, in fact she was getting them for her brother. Occasionally she obtained the prescription by calling the doctor and getting his consent to let her brother pick up the prescriptions. In early January, 1976 Ms. Milius offered to assist the police in their investigation of Dossick. Immediately prior to her January 9, 1976 visit to Dossick she was given a physical examination by Albert Gersing, M.D. At this time she weighed approximately 117 pounds. At Gersing's examination she appeared pale and malnourished. Her blood count and history of having menstrual flow led him to prescribe iron (ferrous sulphate) and to recommend that she cut down on her smoking. Immediately thereafter Ms. Milius was "wired for sound" and taken to Dossick's office to keep the appointment previously made. The tape of this visit was bad due to interference and was not introduced into evidence. Ms. Milius' testimony of the events that transpired was not contradicted or rebutted. Upon arrival in Dossick's office Milius sat in the waiting room for about one half hour and was then with Dossick for about one half hour. During this time no medical examination was made other than blood pressure and weight. She told Dossick she would like to lose ten pounds and asked for diet pills. During her time with Dossick medical problems were not discussed; only general gossip about friends and relatives was the subject of their conversation. Upon her departure she was given prescriptions for Placidyl 750 mg., Tepanil 25 mg., and Lasix 40 mg. Upon her departure from the office these prescriptions were turned over to the police and admitted into evidence as Exhibit 7. On January 14, 1976 Milius called Dossick from the police station to make an appointment. This conversation was recorded and the tape thereof was admitted as Exhibit 12. Milius advised Dossick that the diet pills he had prescribed for her on January 9, 1976 were not working and she was told to come in and see him. On her January 14 visit to Dossick she was again wired for sound, but the conversation that transpired was not on the tape that was admitted into evidence. At this visit Dossick gave Milius Presate (65 mg.) (Exhibit 6) Milius' third visit to Dossick under the supervision of the Hialeah Police occurred on February 2, 1976. Again she was "wired for sound" but that tape is unintelligible to the hearing officer. Prior to that visit she called Dossick to ask if she could come in to get Valium for her nerves. On her arrival to Dossick's office he asked her about her depression but when she replied that she had no depression only nerves no further medical problems were discussed. She was weighed but no medical examination was conducted. Upon her departure she was given prescriptions for Placidyl 750 mg., Presate 65 mg, Lasix 40 mg. and Valium. These prescriptions were admitted into evidence as Exhibit 8. Exhibit 4 indicates the largest quantity capsule of Placidyl marketed is 750 mg. Other quantities are 100 mg., 200 mg., and 500 mg. 750 mg. capsule of Placidyl is a very high dosage to induce sleep. Exhibit 4 states greater caution is indicated in administering Placidyl "to mentally depressed patients with or without suicidal tendencies; it should also be administered with caution to those who have a psychological potential for drug dependence." At the time Placidyl was prescribed for John Guynn by Dossick, Guynn was on Methadone or had been on the Methadone program. This should make it obvious that Guynn had psychological potential for drug dependence. Placidyl, if taken regularly, can lead to dependency on the drug, and once dependent, severe withdrawal problems can result if the drug is not available. Because of this many doctors do not prescribe Placidyl. Community medical standards require a physical examination be given before Placidyl is prescribed for a patient. Richard D. Kaplan, D. O., in general practice and David Masters, D. O., who specializes in psychiatry, testified on behalf of Respondent at the March 29th hearing. The former opined that he did not consider the drugs prescribed by Respondent to be administered in good faith. Before prescribing Placidyl he would fully discuss with the patient why he wanted the drug. Dr. Masters does not usually perform a physical work-up before prescribing Placidyl to patients and he uses this drug occasionally. However, he does not prescribe either Placidyl or Presate for weight problems. Unless a medical or psychological reason for giving Placidyl was determined, in his opinion prescribing Placidyl was not necessarily all right. Both of Respondent's witnesses agreed that drug users are not fully honest with the doctor and often try to manipulate the doctor to get drugs. Placidyl is not a drug commonly used by "street people".
Findings Of Fact The following Findings of Fact are based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to section 20.43, and chapters 456 and 459, Florida Statutes. At all times material to these proceedings, Respondent was a licensed osteopathic physician within the State of Florida, having been issued license number OS 8729. Respondent's address of record at the time of filing the Administrative Complaint was 11950 County Road 101, Suites 101, 102, and 103, The Villages, Florida 32162. Respondent's current address of record is 13767 U.S. Highway 441, Lady Lake, Florida 32159. Respondent currently holds no board certification in any specialty area, and did not complete any residency other than in emergency medicine. Respondent attended Michigan State University, College of Osteopathic Medicine. In 2002, he began full-time practice as an emergency room physician at Munroe Regional Medical Center in Ocala, Florida. He worked as an emergency room physician until he opened Exceptional Urgent Care Center (“EUCC”). At all times material to this complaint, Respondent owned and operated EUCC. Treatment Provided to Patient J.K. On March 15, 2018, J.K., along with his wife, presented to EUCC with complaints of a sore throat and fever. This was the first of two visits to the clinic. J.K. reported his medications as Amlodipine, Warfarin, Tamsulosin, and Dofetilide (unless otherwise indicated, hereinafter referred to by its trade name "Tikosyn"). J.K. was prescribed these medications by his cardiologist at the William S. Middleton Memorial Veterans Hospital (“V.A. Hospital”) in Wisconsin, his home state. Relevant to this matter, Tikosyn helps patients maintain a normal heartbeat rhythm. Tikosyn was prescribed to keep J.K.'s heart in rhythm as he had atrial fibrillation. J.K. was treated by a nurse practitioner, who ordered a chest x-ray and a flu swab. The flu swab returned negative, and the chest x-ray showed no focal pneumonia. J.K. was prescribed Tamiflu and Naproxen. J.K. elected not to fill the Tamiflu due to the “expensive cost.” Respondent was not involved in J.K.'s treatment on this date. On March 16, 2018, J.K. and his wife K.K. returned to EUCC as J.K.’s symptoms had not improved. On this visit, J.K. saw Dr. Im. Dr. Im evaluated J.K. and ordered two tests. Dr. Im ordered a Prothrombin Time International Normalized Ration ("PT INR") test to determine J.K.'s coagulation and he ordered a CT scan of the chest. The PT INR results were within the therapeutic range. The CT scan showed shattered ground- glass opacification in the posterior right lower lobe and the medial left upper lobe. The CT scan findings were interpreted as "non-specific, may represent hypoventilatory change or an infectious inflammatory process (acute or chronic).” Respondent advised J.K. and K.K. that the CT scan appeared to show the start of pneumonia, and he was going to prescribe three medications: Levaquin 750 mg, Prednisone 20 mg, and Zyrtec 10 mg. K.K. testified that she asked Respondent if the Levaquin, Prednisone, or Zyrtec were contraindicated with any of J.K.'s current prescriptions, specifically Tikosyn. K.K recalls that Respondent replied that he was not familiar with Dofetilide (Tikosyn), and advised them to check with the pharmacist to see if there were any contraindications. Although Respondent initially advised J.K. and K.K. that he was not familiar with Tikosyn, Respondent testified that he advised J.K. and K.K. of the possible interactions between Levaquin and Tikosyn and told her that the interaction was very rare. He testified that he advised J.K. and K.K. that the pharmacist is a safety net, and the pharmacist would call him to discuss the prescriptions if he missed anything. K.K. credibly testified that Respondent did not counsel J.K. or K.K. on any risks regarding the medications Dr. Im prescribed or provide them with any alternatives during the visit on March 16, 2018. J.K. and K.K. left EUCC and went to Publix to fill the prescriptions. K.K. asked the pharmacist if any medications would interfere with any of J.K.'s prescribed medications. Upon advice of the pharmacist that Levaquin was contraindicated with Tikosyn, K.K. declined to fill the prescription for Levaquin. On behalf of J.K., K.K. then called EUCC and asked for a different antibiotic that would not interact with Tikosyn. However, she was instructed to contact J.K.'s cardiologist. K.K. then contacted the cardiology staff of the V.A. Hospital in Wisconsin, who instructed K.K. to follow the advice of the pharmacist and (tell J.K.) not to take the Levaquin. K.K. called EUCC a second time to confirm whether J.K. had an infection and she was told that J.K. did not have an infection. Respondent recalls that he had a personal conversation with K.K. during a courtesy telephone call placed the next day (March 17, 2018). Respondent testified that during that call, he explained Levaquin was the drug of choice, other medications would not cover J.K.'s pneumonia, the potential interactions were very rare, and J.K. needed to take the Levaquin. By his own admission and his medical records, Respondent did not provide J.K. or K.K. with any specific alternative antibiotics and insisted that J.K. needed to take the Levaquin. K.K. disputes that Dr. Im spoke with her or J.K. at any point after the March 16, 2018, visit. She clearly recalled that she spoke with a woman each time she spoke with staff at Dr. Im’s office. Overall, J.K. and K.K. clearly and convincingly testified that Respondent never advised them of the risks of using Levaquin with Tikosyn or provided any alternatives to the Levaquin. Expert Testimony Petitioner offered the testimony of Dr. Anthony Davis, who testified as an expert. Dr. Davis has been licensed as an osteopathic physician in Florida since 1995. Dr. Davis attended Kirksville College of Osteopathic Medicine and completed an internship in family practice. He has been board certified in family medicine by the American Board of Osteopathic Family Physicians since 2001, and board certified in emergency medicine by the American Association of Physician Specialists since July 2003. He is also affiliated with professional organizations including the American College of Family Practice and Florida Osteopathic Medical Association. Dr. Davis was accepted as an expert in emergency and family medicine. Dr. Davis relied upon his work experience, his training, and his review of the medical records for J.K. to render his opinion regarding the standard of care related to treating J.K. The standard of care requires an osteopathic physician treating a patient similar to J.K. to: (1) provide and document their justification for why Levaquin was the appropriate drug of choice; (2) note the patient’s acknowledgment that there are interactions with Tikosyn; (3) ensure the patient understands the risks and benefits of combining Tikosyn and Levaquin; (4) explain to the patient that there are limited alternatives to Levaquin; and (5) provide the reason for prescribing a potentially dangerous drug. Levaquin is a medication that comes with a black box warning that requires physicians to counsel patients on the risks associated. When a drug is designated as contraindicated and has a category X for interaction, the standard of care requires that the physician clearly explains to the patient why they are using the drug and defend how it is going to be safe. Tr., p. 70. Dr. Davis opined there were multiple treatment options available for J.K., such as supportive care or an antibiotic with a lower risk of interaction with J.K.'s existing medication. Moreover, Dr. Davis testified that there were safer alternatives to Levaquin that would effectively treat pneumonia, such as doxycycline, if J.K. actually had pneumonia and an antibiotic was necessary. Respondent provided literature from the Infectious Diseases Society of America related to community-acquired pneumonia in an attempt to prove that X-Ray or other imaging techniques are required for the diagnosis of pneumonia and to support his claim that Levaquin was the drug of choice for J.K. However, Dr. Davis credibly pointed out that the article, published in 2007, is no longer accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a Final Order as follows: Finding that John Joseph Im, D.O., violated section 459.015(1)(x), by committing medical malpractice, as defined in section 456.50, as alleged in the Administrative Complaint; Issue a letter of concern against Respondent’s license to practice osteopathic medicine; Requiring completion of a prescribing practices course; and Imposing an administrative fine of $2,500. DONE AND ENTERED this 16th day of December, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 16th day of December, 2019.
The Issue The issue in this case is whether the Board of Osteopathic Medicine (the Board) should discipline the Respondent's license on charges alleged in an Administrative Complaint, AHCA Case No. 94-09207, filed against him on August 17, 1994.
Findings Of Fact On March 31, 1986, the Respondent's license to practice osteopathic medicine was revoked. The Respondent reapplied for licensure, and the Board issued an Order on April 5, 1993, approving the application and relicensing the Respondent subject to a period of probation. One of the conditions of the Respondent's probation was: "Respondent shall not examine or treat any female patients without a female employee who is a health care practitioner licensed by the Department of Professional Regulation present in the room during the examination." On various occasions since April 5, 1993, while on probation, the Respondent examined female patients while just one of the following female employees was present in the room during the examination: Jacqueline Mehle, a licensed practical nurse who worked for him from approximately July through October, 1993; Teresa Patrick, a medical lab technician licensed by the Department of Business and Professional Regulation (formerly the Department of Professional Regulation, now the ACHA), who worked for the Respondent in 1994; Lynn Gongre, either a licensed practical nurse or a licensed registered nurse who worked for the Respondent starting in June, 1994; Susan Almgreen, a certified nurse assistant; and Lynn Sanford, a licensed X-ray technician. During times when Mehle worked for the Respondent, usually she would be present, but sometimes Almgreen or Sanford would take her place when she stepped out of the room. While Gongre worked for him, usually she would be present, but sometimes Patrick would be and sometimes one of the others took their place when Gongre or Patrick stepped out of the room. In 1994, before Gongre started working for him, Patrick usually would be present, but sometimes one of the others took her place when she stepped out of the room. The Respondent did not see patients during the time period after Mehle left but before Patrick started working for him. On other occasions, Almgreen or Carmen McGrew were present in the examination room with female patients to take information concerning insurance and payment for services, but those interviews generally occurred before the Respondent entered the examination room with Mehle, Patrick or Gongre. It was not proven whether either Patrick, Almgreen or Sanford is a "health care practitioner licensed by the Department of Professional Regulation" under the terms of the Respondent's probation conditions. It was not proven that the Respondent believed that either Patrick, Almgreen or Sanford was not a "health care practitioner licensed by the Department of Professional Regulation" under the terms of the Respondent's probation conditions. There is no evidence that any female patient has complained about anything the Respondent has said or done during an examination since his relicensure. After his relicensure, the Respondent reapplied for Drug Enforcement Agency (DEA) certification to prescribe and dispense controlled substances. When the Respondent filled out the DEA application, he correctly checked the box on the form to indicate that he was applying as a "Practitioner," not as a "Teaching Institution" or one of the other categories. But he misread the form and mistakenly checked the "no" box in answer to the following question, which was single-spaced in very small print on the form: Has the applicant ever been convicted of a crime in connection with controlled substances under State or Federal law, or ever surrendered or had a Federal controlled substance registration revoked, suspended, restricted or denied, or ever had a State professional license or controlled substances registration revoked, suspended, denied, restricted or placed on probation? The evidence on the DEA application process is confusing. This finding reflects what is believed to be what transpired. It is believed that the Respondent's initial application was returned for failure to include an osteopathic medicine license number. The Respondent telephoned the DEA to resolve the problem and fully discussed his prior revocation and relicensure under probation. (In addition, copies of the documentation of the prior revocation were contained in DEA files under the Respondent's name both in the DEA's Florida office and in Washington, D.C.) After his discussions with the DEA, the Respondent contacted the Board to obtain a license number. After being told that it takes time, the Respondent resubmitted the DEA application, together with copies of both the Final Order revoking his previous license and the April 5, 1993, Order relicensing him under probation conditions. When the Respondent received his DEA certificate, it mistakenly indicated that the Respondent was a "Teaching Institution," instead of a "Practitioner." The Respondent again telephoned the DEA to have the error corrected. While the Respondent was waiting for his certificate to be corrected, a DEA investigator noticed the mistaken reference to the Respondent's being a "Teaching Institution" and investigated. While investigating, she also noticed the false statement in the Respondent's application. She notified the AHCA, which dispatched an investigator to accompany the DEA investigator to the Respondent's office. The charges in the Order of Emergency Restriction of License and the Administrative Complaint followed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Osteopathic Medicine enter a final order dismissing the Administrative Complaint. RECOMMENDED this 3rd day of October, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4595 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-3. Accepted but subordinate and unnecessary. 4.-7. Accepted and incorporated to the extent not subordinate or unnecessary. 8. Rejected as not proven. 9.-10. Accepted, but whether either was a "health care licensee" is not the issue. Rejected as not proven. Also, whether she was a "health care licensee" is not the issue. Accepted, but whether she was a "health care licensee" is not the issue. Rejected as not proven. Also, whether he had a "health care licensee in the room" is not the issue. Rejected as not proven. Rejected as largely not proven. Accepted and incorporated that his license was revoked and that his application for relicensure was granted with probation conditions. 16.-17. Rejected as not proven. Accepted and incorporated. Rejected as not proven. Respondent's Proposed Findings of Fact. Rejected as unclear. His license was revoked; he applied for relicensure; he was relicensed with probation conditions. Rejected as contrary to the greater weight of the evidence. It is believed that he applied, that the application was returned for failure to include a license number, and that then he spoke to DEA about the probation conditions. Accepted and incorporated. Second sentence, rejected as contrary to the greater weight of the evidence. See 2., above. Third sentence, also rejected as contrary to the greater weight of the evidence. (It is believed that the conversation related here took place after the surrender of the Respondent's DEA certificate on June 2, 1994.) Otherwise, accepted and incorporated. Accepted and incorporated. Generally accepted but largely argument, and subordinate and unnecessary. Accepted and incorporated. Rejected as contrary to the greater weight of the evidence that the Respondent always "keeps the Torah." Otherwise, accepted but subordinate and unnecessary. Rejected as contrary to the greater weight of the evidence. Sometimes Almgreen or Sanford replaced them for periods of time. 10.-14. Accepted and incorporated. 15.-16. Accepted; subordinate to facts found. 17. Accepted and incorporated. COPIES FURNISHED: Francesca Plendl, Esquire Agency for Health Care Administration Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Salvatore Carpino, Esquire 8001 North Dale Mabry, Suite 301-A Tampa, Florida 33614 Henry Dover Executive Director Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue presented for decision herein is whether or not Respondent has engaged in conduct, more particularly set forth in the Administrative Complaint filed herein, signed April 10, 1986, violative of Chapter 459, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Donald J. Weiss, D.O., during times material herein, was licensed as an osteopathic physician in Florida and has been issued license number OS 0003459. The investigative report of Petitioner's investigator Mel Waxman, medical records and a consultant's report of Dr. Ralph Birzon, D.O., were received into evidence without objection except for certain unspecified prescriptions (by Respondent). During the time period 1980 through 1985, Respondent admitted to having treated patients R.N., H.M. and C.B. or C.P. Respondent admitted to the treatment of the above- referred patients with specific dates relating to prescriptions of Schedule II drugs for patients R.N. and H.M. (Request for Admissions dated June 2, 1986). A review of the medical records for patients R.N., H.M. and C.B. or C.P. reveals that Respondent failed to maintain appropriate medical records justifying his course of medical treatment for such patients. As example, during the period January 1984 and June 19, 1985, Respondent prescribed 1,970 4 mg. Dilaudid and 380 Seconal 100 mg. capsules for patient R.N. Also, during the same time period, Respondent prescribed 2,665 4 mg. tablets of Dilaudid for patient H.M. (Responses to Request for Admissions dated June 2, 1986). Respondent failed to take adequate physical exams, laboratory reports or other medical histories to justify the quantity of controlled substances prescribed for patients R.N and H.M. In his treatment of patient R.N., H.M. and C.B., each patient was addicted to the medication Dilaudid and Seconal, both Schedule II controlled substances as defined in Sections 893.03(2)(a) and (c), Florida Statutes. Respondent's treatment of patients R.N., H.M. and C.B. by prescribing Dilaudid, Seconal and Valium (also a Schedule II controlled substance) was not in their best interest as addicts. Based upon a review of the medical records for patients R.N., H.M. and C.B. or C.P., Respondent's prescriptions for Dilaudid, Seconal and Valium were excessive, inappropriate and unacceptable for an osteopathic physician. Respondent's treatment for patients R.N., H.M and C.B. or C.P. fell below the level of care, skill and treatment as recognized by a reasonable prudent similar osteopathic physician as being acceptable under similar conditions and circumstances. (Testimony of Ralph Birzon, D.O., TR 41-46). An examination of the Physician's Desk Reference (PDR) reveals that Respondent, by prescribing Dilaudid and Seconal to patients R.N. and H.M. was inappropriate, and when taken together, exacerbated those patient's medical problems. Additionally, a review of the PDR indicates that Dilaudid cannot be safely prescribed for long periods of time. A long period of time is, based on the reference, a period in excess of three months. Respondent admits that he made a mistake in his treatment of the above-referred patients by prescribing Schedule II controlled substances. Respondent considered that he was "duped" and offered that this was his first contact with drug addicts. Respondent prays that his license not be revoked or suspended and offered to accept any lesser ordered penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED THAT: Respondent's license be suspended for a period of six (6) months; Following the period of suspension, Respondent be placed on probation for a similar period of six (6) months; During the probationary period, Respondent be required to successfully complete eighty (80) hours of continuing education related to the physician and proper substance abuse prescribing procedures. RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of December, 1986. COPIES FURNISHED: Preston T. Everett, Jr., Esquire Fred Roche, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Donald J. Weiss, D.O. Wings Benton, Esquire 145 River North Circle General Counsel Atlanta, Georgia 30328 Department of Professional Regulation Rod Presnell, Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact The Respondent is licensed by the Board to practice as an osteopathic physician in Florida. The Respondent has been licensed to practice as an osteopathic physician in the State of Pennsylvania. He was criminally charged in the State of Pennsylvania with various violations of 35 Penna. Stat. Section 780- 113(a)(14). After entering a plea of not guilty, he was tried and convicted of three counts of violating the statute. He was adjudicated guilty and sentenced. The Respondent has exhausted all direct appellate remedies in Pennsylvania. He continues to pursue available collateral remedies. The Pennsylvania State Board of Osteopathic Examiners initiated disciplinary action against the Respondent. A hearing was conducted, and the Pennsylvania board concluded that the Respondent was convicted of a crime involving moral turpitude and was guilty of unethical conduct. The Board stated: It is clear that the Respondent blatantly disregarded the health and welfare of the citizens of Pennsylvania and the Board can impose a penalty for such disregard. How- ever, the Board has taken into consideration the fact that the Respondent no longer resides or practices osteopathic medicine in Pennsylvania, and therefore, he is presently not a danger to the health, safety and welfare of Pennsylvania. Apparently disregarding the testimony of the Respondent in the record that he did intend to continue practicing osteopathic medicine in Pennsylvania if his license was not revoked, the Board imposed no penalty against the Respondent. The Respondent thus continues to be licensed to practice osteopathic medicine in Pennsylvania. The Respondent is presently engaged in the general practice of osteopathic medicine in Florida. He practices in a black area and is the only doctor who accepts Medicaid patients in the area. During 1976 he turned in his federal license to dispense controlled substances. He is thus not able to prescribe controlled substances in his practice, but he can prescribe other drugs. The Respondent has not been the subject of any other disciplinary proceedings during his many years as a practicing osteopathic physician.
The Issue Whether Petitioner's license as an Osteopathic Physician in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found: Respondent is, and has been at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0003822. Respondent's last known address is 1804 Nelson Street, No. 15, Ormond Beach, Florida 32074. From on or about July 17, 1985, until on or about April 28, 1987, Respondent diagnosed patient L.K. as suffering from, and rendered medical care and treatment for, juvenile fibromatosis or fibromatosis colli. Juvenile fibromatosis and fibromatosis colli are conditions characterized by the occurrence of multiple fibromas. Fribromas are benign (non- malignant) neoplasms. On or about July 17, 1985, Respondent executed a letter which was sent to the Exceptional Student Education Services section of the School Board of Volusia County (School Board) wherein Respondent represents that the patient L.K. "is being treated for a malignancy of the neck, etiology undermined." On or about August 22, 1986, Respondent executed a letter intended to allow the patient L.K. to avoid required immunization wherein Respondent represents that patient L.K. "...has a malignancy which was not identified by multiple biopsy." The representations made to the School Board in his letters of July 17, 1985, and August 22, 1986, were made in Respondent's practice of Osteopathic Medicine. Only one biopsy of the patient's neck mass was performed prior to Respondent's letter of August 22, 1986, to the School Board. This biopsy was performed during March of 1980 by Gary Horndeski, M.D. The pathology report concerning this biopsy was not received by Respondent until March 18, 1987. The patient's neck mass had not been subjected to multiple biopsy as represented by the Respondent on August 22, 1986. The Respondent's representations in the August 22, 1986 letter were deceptive, untrue, and fraudulent. The medical records of Respondent fail to document that Respondent performed multiple biopsies on the mass. Respondent has failed to keep written medical records justifying the course of treatment of the patient, including but not limited patient histories, examination results, and test results. Respondent prescribed, dispensed or recommended BHI Regeneration, Polyzyme 022 and Vitamin C 500 mg tablets to patient L.K. On or about November 21, 1986, Respondent executed three separate forms authorizing the administration of BHI Regeneration, Polyzyme 022 and Vitamin C to patient L.K. by school personnel of Volusia County, indicating that he had ordered the administration of these substances as a "part of scheduled med program." BHI Regeneration and Polyzyme 022 are "drugs" as defined by Section 499.003(8), Florida Statutes. Respondent failed to note in patient L.K.'s medical records his prescribing, dispensing or recommendation of BHI Regeneration and Polyzyme 022. Respondent's written medical records fail to document "informed consent" to the drug therapy initiated including medically acceptable alternative procedures or treatments. The preferred course of treatment for a mass of the size and location as existing on patient L.K. would be surgical intervention. Respondent's written medical records fail to adequately document the reason for not following the preferred course of treatment (surgery), that surgery was discussed with the patient's parents, or that the parents declined surgery. Respondent's entry for March 10, 1987, in the medical record of patient L.K. indicates "recommend to get physiotherapy in lieu of surgery." Respondent's medical records fail to justify the course of treatment of the patient, including but not limited to patient histories, examination results, and test results. A reasonably prudent similar physician under similar conditions and circumstances would have referred patient L.K. to a specialist or obtained a consultation with a specialist. Respondent failed to do so. A reasonably prudent similar physician under similar conditions and circumstances would not have recommended that patient L.K. not receive standard immunizations nor would such a physician have executed a school form allowing patient L.K. to be exempted from required immunizations. A reasonably prudent similar physician would have obtained and reviewed prior biopsy report or conducted a biopsy on patient L.K. soon after undertaking the care of the patient. Respondent has failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably osteopathic physician as being acceptable under similar conditions and circumstances. On or about April 7, 1987, the Board of Osteopathic Medical Examiners issued a Subpoena Duces Tecum commanding Respondent produce for copying and inspection any and all medical records of patient L.K. On or about May 8, 1987, the aforementioned subpoena was served on Respondent to produce copies of any and all medical records of patient, L.K., on May 10, 1987, at 6501 Arlington Expressway, Jacksonville, Florida. Respondent did not file a challenge or object in any fashion to the subpoena. As a result of the Petitioner filing a petition for enforcement of the subpoena, Respondent furnished to Petitioner what was purported to be the medical records of patient L.K., and did not in any way advise Petitioner that there were certain records pertaining to L.K. that he did not consider medical records. The medical records of patient L.K. submitted by Respondent in response to the subpoena were incomplete. Respondent's license to practice osteopathic medicine in the state of Florida was disciplined by the Board of Osteopathic Medical Examiners (Board) by its final order issued on April 19, 1988, wherein Respondent's license was suspended for one year; to be followed by a three year period of probation.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 459.015(1)(n), (p), (y) (cc), Florida Statutes (1989), as set forth in Counts I, III, IV and V of the Second Amended Administrative Complaint, as amended, and for such violation, considering the guidelines for imposing penalties set forth in Rule 2IR-19, Florida Administrative Code, and the aggravating or mitigating circumstances allowing the Board to deviate from those guidelines set forth in Rule 2IR-19, Florida Administrative Code, it is RECOMMENDED that Respondent's license to practice osteopathic medicine in the State of Florida be suspended for one year subject to the terms and conditions the Board deems appropriate for reinstatement. It is further RECOMMENDED that Count II be DISMISSED. Respectfully submitted and entered this 27th day of October, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 27th day of October, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0308 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on the proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1-26. Adopted in Findings of Fact 1-26, respectively. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Respondent filed a one page, two paragraph Proposed Findings of Fact and Proposed Conclusion of Law that was an argument consisting of facts and law. To the extent that there are facts contained in his argument, they are either not material or not relevant. COPIES FURNISHED: Bruce D. Lamb, Esquire Chief Trial Counsel 730 S. Sterling Street Suite 201 Tampa, Florida 32609 David L. Sturdivant, Sr. 1804 Nelson Street, #I15 Ormond Beach, Florida 32704 Rod Presnell Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
