The Issue Whether Respondent violated Subsections 458.331(1)(q), 458.331(1)(t), 458.331(1)(nn), 458.347(4), and 456.072(1)(o), Florida Statutes (2001), and Florida Administrative Code Rule 64B8-30.008, and, if so, what discipline should be imposed.
Findings Of Fact At all material times relevant to this proceeding, Coker was a licensed physician assistant with an additional qualification as a prescribing physician assistant in the State of Florida, having been issued license number PA3151. A physician assistant is a dependent practitioner, who practices under a supervising physician. A physician assistant acts as a supplement or extension of the supervising physician and is trained to do histories and physicals, to diagnose, and to treat patients. In Florida, a physician assistant is permitted to prescribe certain medications after completion of a prescriptive practice seminar and an application process. Beginning in June 2001, Coker began working as an independent contractor for Dr. Rosetta V. Cannata, an anesthesiologist who practices in pain management. Dr. Cannata was Coker's supervising physician. Dr. Cannata maintained an office in Englewood, Florida, and decided to expand her business to adult entertainment clubs in Tampa, Florida. The purported purpose was to provide medical services to persons who were working in the adult entertainment business. She made arrangements with various clubs to provide space to her at the clubs for use as examining rooms. Dr. Cannata and Coker began seeing patients at adult clubs such as the Pink Pony and Diamond's Men's Club. Patients other than those from the adult entertainment business began to come to the clubs to see Dr. Cannata and Coker. Dr. Cannata opened an office on Martin Luther King, Jr. Boulevard in Tampa to take care of the increased business. Coker saw patients at the new office and also continued to see patients at the adult clubs. In 2001, the Hillsborough Sheriff's Office began an investigation of Coker's activities in Tampa. Jaceson Yandell (Yandell) was the lead investigator. Yandell used a confidential informant (CI) to make contact with Coker. On July 14, 2001, the CI took Detective Dan Mathis (Mathis),1 an undercover officer, to Diamond's Men's Club to see Coker. Mathis and the CI were fitted with either recording or transmitting devices so that their conversations with Coker were recorded. Yandell was stationed in a nearby vehicle, which contained devices that could receive and record the transmission of the conversation between Mathis and Coker. Mathis was introduced to Coker by the CI as Dee Tucker. Coker asked Mathis to fill out a medical history form. Mathis filled out the form, indicated no to all the questions, and stated that he was not currently taking any medication, had no previous surgeries, and was not allergic to any medications. He did not list a name for his medical doctor. After asking Mathis his height and weight and whether he was allergic to any medicine, Coker asked, "What am I seeing you for today, Dee?," and the following conversation took place: Mathis: I ain't got nothing wrong with me. CI: Tell him what you want, shit that's the only way you're gonna get it. Mathis: Some Z's.2 Coker: So you are having some anxiety is what you're telling me? Mathis: Yeah, yeah. CI: Say yes. Mathis: Yes. Coker: Has this been going on long? Mathis: Shit. Well, it's been a long. It's been a while. I've been kinda acting like that. Coker also asked Mathis whether he had ever been in the military, had a car wreck, or been injured in anyway, including any football injuries. Coker also asked him whether he had a family history or had any surgeries. Mathis replied negatively to all of these inquiries. Mathis did advise Coker that his mother, who had smoked for 45 years, had recently died of hypertension and congestive heart failure at the age of 62. Coker did not check Mathis' heart, lungs, ears, nose, throat, or glands. Coker took Mathis' blood pressure and found that it was high, and advised Mathis that he needed to take medication for the high blood pressure. He prescribed hydrochlorothiazide for the high blood pressure and ordered some laboratory work to rule out causes for the elevated blood pressure. Coker also advised Mathis to eat more foods that were high in potassium. Coker had two prescription pads. One pad contained prescription forms that were pre-signed on the physician's signature line, and the other pad contained prescription forms that were not pre-signed. Coker wrote the prescriptions for the hydrochlorothiazide and the laboratory work on the prescription forms that were not pre-signed. Coker prescribed 30 two-milligram bars of Xanax for Mathis for anxiety. The prescription could be refilled two times. The prescription was written on one of the pre-signed prescription forms. During the July 14 office visit, there was no discussion of the possible cause of Mathis' anxiety, no discussion of a plan of treatment for the anxiety, and no discussion of alternative treatments for anxiety, such as counseling. The only discussion of directions of use or warnings concerning Xanax was that taking Xanax in the bar, rather than pill form, could save the patient money, because the bar could be broken into smaller doses and that Coker would prefer that a patient not take a whole bar unless it was necessary. Xanax contains Alprazolam which is a schedule IV controlled substance. Mathis did not see Dr. Cannata during his July 14 office visit. Coker did not leave the examining room or make any telephone calls during Mathis' office visit. Mathis paid Coker $50 for the visit. After leaving the Diamond's Men's Club, Mathis went to the vehicle where Yandell was located and gave Yandell the prescriptions. On August 17, 2001, Mathis returned alone to Diamond's Men's Club to see Coker. Mathis was wired with a transmitting device so that the conversation between Coker and Mathis was recorded. Coker took Mathis' blood pressure and found it to be lower. Other than taking Mathis' blood pressure, Coker did not perform any physical examination of Mathis. Mathis advised Coker that he had an injury due to bench pressing and that he felt some discomfort when he bench-pressed during a work out. Coker did not ask Mathis how often he experienced the pain, nor did he ask Mathis if he was taking any other medication for the pain. Coker and Mathis discussed the use of anabolic steroids, and Coker discouraged the use of steroids. During the August 17, 2001, office visit, Coker did not ask Mathis how the Xanax was working, did not inquire whether Mathis was still experiencing anxiety, did not discuss alternatives to Xanax, did not discuss the causes of anxiety or ways to address the anxiety, did not discuss a medical diagnosis with Mathis, and did not discuss a plan of treatment. On August 17, 2001, Coker wrote Mathis a prescription for 30 two-milligram bars of Xanax, which could be refilled two times, and a prescription for Lortab, which could be refilled one time. Lortab contains Hydrocodone which is a Schedule III controlled substance. Coker wrote the prescriptions on prescription forms which had been pre-signed on the line for the physician's signature. Mathis did not see Dr. Cannata on the August 17, 2001, visit, and Coker did not leave the room. Other than a telephone call to his family, Coker did not talk on the telephone during Mathis' visit. Mathis paid Coker $50 for the office visit and left the adult club. He met Yandell at a predetermined location and turned over the prescriptions to Yandell. On August 21, 2001, Mathis and another undercover officer, Detective Peggy Grow (Grow), met with Coker at an office located on Martin Luther King, Jr. Boulevard in Tampa. Mathis and Grow were outfitted with transmitting and recording devices so that the conversations of Mathis, Coker, and Grow were recorded. Grow was introduced to Coker as Peggy Lane.3 As an undercover officer, Grow played the role of a call girl or escort. Upon meeting Grow, Coker explained that he was a physician assistant and worked with Dr. Cannata, who was an anesthesiologist. He stated that the practice included primary care, pain management, and management of anxiety and depression. He asked Grow to fill out a medical history questionnaire. She checked no to all the questions except for the use of alcohol and tobacco. Grow did not list the name of her medical doctor and told Coker that she had not seen a doctor in a long time. Coker asked Grow the reason for her visit, and the following conversation took place: Grow: I just need something to keep going. I work a lot of hours, you know, sometimes I'm up real late and then you know I get up again and, sometimes, you know, it's hard. Coker: Okay. Define keep me going 'cause I don't prescribe any kind of amphetamines or any speed or anything like Mathis: I told you doc. He, he, he's straight. Tell him you want some Zees. Coker: Tell me . . . Grow: I want some Zees. Coker: Xanax. Okay. Xanax is an anti- anxiety. Okay? Grow: Will that help like stress and stuff like that? Coker: Oh, absolutely. Grow: Okay. I think that keeps . . . Coker: Any time dealing with anxiety. It's actually a wonderful medicine and it works very well. Grow: Okay. Coker: Um, it either can be dosed, you can, like I always prescribe the bars because you can break them into four pieces or you can break them into two pieces or you can take the whole thing. It just depends on what your need is. Grow: Okay. Coker: Okay? And I have folks, you know, I tell them take it as needed. Um, but usually it's just an anxiety kind of thing, so . . . you know, you got to talk English to me otherwise I don't understand. The medical records which Coker generated for Grow contained the following notes, as they related to Grow's anxiety: CHIEF COMPLAINT: Describes being tense, on edge, tremulous, difficulty relaxing, tachycardia-palpitations, dyspnea, symptoms present for "years." * * * PLAN: advised Referral - To therapist of choice for chronic recurring anxiety Advised If hyper-ventilating, then teach "brown paper lunch bag" re-breathing technique. Avoid caffeine and plan for regular physical activity. Practicing a relaxation exercise regularly as well. Discussed stress reduction. Grow did not describe the symptoms listed above, and Coker did not give the advice listed above. Grow told Coker that she had never had any surgeries and that she had taken some of Mathis' Xanax. Coker took Grow's blood pressure, listened to her heart and lungs, and checked the glands on her neck. Coker gave Grow a prescription for Xanax and advised her not to drink, drive, or operate machinery while she was taking the Xanax. He told her the prescription included one refill and not to call him saying that she needed another refill. He told her to "[g]o get some of his (meaning Mathis)." Coker wrote the prescription for Xanax on a prescription form which had been pre-signed on the physician's signature line. During Grow's visit on August 21, 2001, Mathis asked Coker about giving him a prescription for Vicodin. Coker explained that Vicodin was the same medication as the Lortab, which he had prescribed to Mathis on Mathis' last visit. Mathis explained that the Lortab was actually for him, and Coker asked him for whom was the Vicodin. Mathis replied that it was for himself, after which the following conversation took place: Coker: Well, see I can't give them to you then 'cause I gave script for a hundred on the 17th. Grow: How about me? Coker: Yeah, I can give them for her. Mathis: Well, do that. Alright, I get, I get ah Craig hooked up. Coker: For your, your neck pain, huh? Mathis: Yeah. Coker: After the motor vehicle accident two weeks ago. There had been no mention of Grow having any neck pain until Coker stated that it was for her neck pain. There is nothing in the recorded conversation between Grow and Coker from which Coker could make a determination that Grow had neck pain resulting from a motorcycle or motor vehicle accident. Coker invented the symptoms for Grow to give support for a prescription for pain medication. Coker asked Mathis, not Grow, about the Vicodin prescription in the following conversation: Coker: Which Vicodins are we talking about here, Dee? Mathis: A stronger one. Coker: Well, if you want the tens you have to go really with the Lortabs 'cause you're going to get generic anyhow. Mathis: I'm going to get generic? Coker: Right. Mathis: As opposed to what? Coker: Well, if I wrote it for Vicodin HP, which is not generic, then you pay a lot of money. Mathis: I ain't paying it. I ain't worried about that. Coker: What I'm saying somebody's going to pay a lot of money versus . . . the thing about it is it's no difference than the generic. Mathis: Is, I mean, Craig going to be able to take of that, I'm not as far as . . . Based on the recorded conversations between Mathis and Coker, it is clear that Mathis wanted the Vicodin prescription for someone named Craig, and that Coker was going to prescribe the pain medication for Grow in order to get around the problem that it was too soon for Coker to give Mathis another prescription for pain medication. On August 21, 2001, Coker gave Grow a prescription for 50 Lortab, which could be refilled one time. The prescription was written on a prescription form, which was pre-signed on the physician's signature line. During the August 21 office visit, Grow did not see Dr. Cannata; Coker did not leave the room; and Coker did not make any telephone calls. On August 24, 2001, Grow and another undercover officer, Detective Heinz Bachman (Bachman),4 went to Diamond's Men's Club to see Coker. Both Grow and Bachman were outfitted with electronic devices that allowed the conversations during the visit to be monitored and recorded. Grow introduced Bachman to Coker as Hank Richardson. When Coker asked Bachman the reason for the visit, Bachman told him pain. Grow told Coker that Bachman wanted some Vicodin. Coker asked Bachman what kind of pain he had, the cause of the pain, and the duration of the pain. Bachman told Coker that he had injured his back a week ago while throwing a fish net. Coker asked Bachman if he had had any surgeries, was on any medication, was allergic to any medicine, or smoked. Bachman answered all the questions in the negative. Bachman also filled out a medical history questionnaire, indicating no to all the questions. Later, when he told Coker that he had back pain, the form was changed to reflect that condition. Bachman did not list the name of his medical doctor. Coker took Bachman's blood pressure and listened to his lungs and heart with a stethoscope. Bachman was requested to stand up. Coker then palpated Bachman's lower back and asked if that was where he had pain. Bachman replied that it was. Coker told Bachman that he was going to give him a prescription for pain medicine and that Bachman should take an anti-inflammatory, over-the-counter medication and put ice on his back. Coker advised Bachman that if the pain did not go away that Bachman should come back for a shot of cortisone. Coker told him not to drink, drive, operate machinery, or drive a boat while he was taking the medication. During the visit, Grow asked Coker if he could give Bachman some Xanax during the following conversation: Grow: Very cool. While's we're here can, can you give him one for Zees for me and Dee [Mathis] to take? Coker: Ah-yi-yi-yi-yi-yi-yi Grow: Can you give him some Zees? Coker: Maybe. Grow: Okay. Okay. (Laughs.) Coker: (Laughs.) Grow: Well, you gotta ask, right? Coker: Ay-yi-yi-yi-yi-yi Grow: You told me last time to ask. Bachman did not tell Coker that he was experiencing any anxiety or any symptoms of anxiety or stress. Coker did not ask what might be causing Bachman to have anxiety or describe a plan of treatment for anxiety. Coker did tell Bachman that the Xanax was for mild anxiety. It is clear that Bachman was not experiencing anxiety and that the reason for prescribing Xanax was for Grow's use and not Bachman's. Coker wrote a prescription for Bachman for 50 Lortab with no refill, and a prescription for 60 Xanax with one refill. Both of the prescriptions were written on prescription forms which had been pre-signed on the physician's signature line. During the visit, Bachman did not see Dr. Cannata, and Coker did not leave the room or discuss anything with Dr. Cannata. Bachman paid Coker $50 for the visit. On September 27, 2001, Grow went to see Coker and brought along another undercover officer, Anthony Bordonaro (Bordonaro).5 Both Grow and Bordonaro were outfitted with electronic devices that allowed the conversations during the office visit to be recorded. Grow told Coker that she was there for refills of her prescriptions. Coker asked her how her back and neck were, to which she replied the "same." He asked if she were okay with her medications and she said "Love 'em." Coker took Grow's blood pressure and listened to her heart. He felt her neck and palpated her back. Coker found a knot in her back area, and suggested that she have some massage therapy, stating that he was also a massage therapist. He wrote prescriptions for Grow for 45 Xanax with one refill and for 50 Lortab with one refill. Coker asked Bordonaro his height and weight. Bordonaro stated he was not taking any medications and that he was allergic to penicillin. He told Coker that he piloted tug boats, had hurt his arm in a fall on a boat, and had to have surgery on his arm five years ago, resulting in a screw being placed in his arm. Bordonaro stated that he had no other medical problems. He denied smoking, but indicated he did drink alcohol. When Coker asked Bordonaro what was the purpose of the visit, Bordonaro said that he wanted some Vicodin, which he had taken when he had hurt his arm. According to Bordonaro, it was "some good stuff." Coker's computer medical notes for Bordonaro's visit indicate that Bordonaro was currently taking pain medication; however, Bordonaro did not indicate that he was currently taking any pain medications. Coker took Bordonaro's blood pressure and listened to his lungs. Coker told Bordonaro that his blood pressure was high. Bordonaro told Coker that the last time that he had gone to his doctor in Pensacola, his blood pressure was 112/80. Coker told Bordonaro that they would keep an eye on his blood pressure. When Coker asked Bordonaro what he did that caused pain in his arm, Bordonaro replied, "Like all in, all in here." Coker had him lift his wrist up and down, spread his fingers apart and push them together, and touch his thumb and little finger. Coker wrote Bordonaro a prescription for 50 Vicodin with one refill. Vicodin contains Hydrocodone, which is a Schedule III controlled substance. Coker told Bordonaro to avoid doing anything that would exacerbate the pain and not to drink, drive, or operate any machinery while taking the medication. The prescriptions that Coker wrote for Grow and Bordonaro on September 27, 2001, were written on prescription forms which were pre-signed on the physician's signature line. Dr. Cannata was not present during the office visit, and Coker did not leave the room or make any telephone calls during the visit. Coker charged Bordonaro $100 for his and Grow's visit. On November 15, 2001, Grow returned to see Coker and took along undercover officer Donald Bowling.6 Both officers carried electronic devices that allowed the conversations during the visit to be recorded. Grow indicated that she was there because she wanted refills on her Lortab prescription. Coker asked her how she was feeling, to which she replied, "Oh, pretty good." When asked about her neck, Grow told Coker that it was about the same. Coker asked if ever got any better, and she told him it did, but that sometimes she slept funny. Coker took Grow's blood pressure, listened to her heart, and felt her neck. He asked Grow her weight and height. Coker indicated that she could get her medications from him, rather than getting prescriptions and having them filled at a pharmacy. He gave her a bottle of 100 Hydrocodone and a bottle of 180 one-milligram tablets of Alprazolam, the generic name for Xanax. He told her to take two of the Xanax instead of one because the dosage was smaller. When Coker asked Bowling the reason for his visit, Bowling told him that he had injured his knee in high school and that the knee would get really sore every now and then. He said that when he bent his knee he could feel something, but he did not know how to describe it. Bowling said that someone wanted to do a "scope thing" on his knee and that he had refused. Coker took Bowling's blood pressure and listened to his heart. Coker had Bowling lie down on the examination table. While Coker felt around Bowling's knee, he asked where the pain was. Bowling said that he could feel the pain when he was moving in a certain way. Coker had him tighten his muscle and lift his leg. Coker advised Bowling that his condition was early wear and tear on the knee, which was common. The condition, Coker said, would come and go. Coker told Bowling that in addition to taking the pain medication, he should take over-the-counter, anti-inflammatory medications such as Ibuprofen and Aleve. He told Bowling to put ice on the knee and to avoid actions that would tend to make the knee worse, such as squatting on the knee. Coker asked Bowling his height and weight. When asked by Coker, Bowling said that he had not had any major surgery and was not allergic to any medication. He told Coker that his father had recently been diagnosed with colon cancer. Bowling said that he smoked tobacco and drank alcohol. During the visit Grow told Coker that Bowling wanted some Zees. After examining Bowling, Coker asked, "You said you wanted Xanax also?" to which Bowling replied "Yes. Please." There was no other mention of a reason for giving Bowling Xanax. In Bowling's medical records, Coker indicated that Bowling had "Anxiety syndrome (tense or nervous)"; however, Bowling never said that he had anxiety or was tense or nervous. Coker gave Bowling a bottle of Alprazolam and a bottle containing 100 Hydrocodone tablets. Bowling paid Coker $310 for his and Grow's visit and medications. Dr. Cannata was not present during the visit of Grow and Bowling on November 15, 2001. Coker did not leave the room or contact Dr. Cannata during the visit. On December 13, 2001, Bordonaro went to see Coker to get a refill of his pain medication. Bordonaro carried an electronic device which allowed their conversation to be recorded. Even though Coker had told Bordonaro during their last visit that Bordonaro's blood pressure was high, Coker did not examine Bordonaro or take his blood pressure. Coker asked Bordonaro how he was doing, and Bordonaro replied, "Good. Good." After explaining the difference between Vicodin ES and Hydrocodone, Coker gave Bordonaro a bottle of 100 Hydrocodone tablets, and charged Bordonaro $115 for the visit and medication. On January 11, 2002, Bordonaro visited Coker at an adult club to get more medication. Again, Bordonaro wore a device which allowed the conversation to be recorded. He told Coker that he was having to take more of the Vicodin and asked if he could get something stronger. Bordonaro also asked if he could get some Xanax. At first, Coker told him no, but then gave him a form and told him to place a checkmark by everything that applied to him. Bordonaro checked the first three items on the form and gave it back to Coker. Coker did not discuss with Bordonaro any symptoms of anxiety that Bordonaro checked on the form or any plan of treatment for anxiety. Coker did not perform an examination of Bordonaro. Although Coker's computer-generated medical records for Bordonaro's January 11 visit indicate that Bordonaro's blood pressure was taken, it was not. Coker gave Bordonaro a bottle of 100 tablets of Hydrocodone/Acetaminophen, and a bottle of 90 Alprazolam bars for anxiety. Coker did not contact Dr. Cannata during the visit. The total charge for the visit and medications was $155. On February 12, 2002, Bordonaro returned to see Coker to get refills of his pain medication. The undercover officer wore an electronic device which allowed the conversation to be recorded. Bordonaro told Coker that the pain pills he had gotten at the last visit were not working and asked if he could get something stronger. Coker told him that he could write a prescription for Percocet, but that Bordonaro would have to get it filled at a pharmacy. Coker suggested that he get the prescription filled at Wal-Mart or Target because those pharmacies are not computer interconnected as Eckerds and Walgreens are. Coker gave Bordonaro a prescription for 100 Percocet with no refills. Percocet contains Oxycodone, which is a Schedule II controlled substance. Coker wrote the prescription on a prescription form which was pre-signed on the physician's signature line. Coker did not examine Bordonaro during the visit. Although Bordonaro complained that the pain medication that he had been given on his last visit was not working, Coker put in Bordonaro's medical records that Bordonaro was "[d]oing well with current medication and treatment plan." Coker asked Bordonaro if he wanted the Xanax medication refilled, and Bordonaro replied that his girl was out of town so he did not need the Xanax. Bordonaro paid Coker $75 for the visit. On April 25, 2002, Bordonaro again visited Coker for the purpose of getting refills of his medications. Again, Bordonaro wore a device which allowed the conversation to be recorded. Coker gave Bordonaro 120 tablets of Hydrocodone, the generic for Lortab, and 90 bars of two-milligram Alprazolam for anxiety. Bordonaro asked if he could double up on his medication, and the following conversation took place: Coker: No. Bordonaro: No? Coker: That's what I have to tell you. Bordonaro: Okay. Coker: Remember with these don't drink, drive, operate any machinery while you're taking it. Don't mix with other medicines or share them with anyone else. When Coker told Bordonaro that he could not double up on the medication, Coker winked at Bordonaro. Bordonaro was not examined on the April 25 visit. Coker charged Bordonaro $165 for the visit and medications. John Barsa, M.D., a board certified physician in pain medicine, testified as an expert witness on Coker's behalf. Dr. Barsa practices in the Tampa area. Approximately nine or ten years ago, Dr. Barsa employed a physician assistant for about six months to one year. He currently employs three nurse practitioners. Dr. Barsa gave his opinions on the care that Coker provided to the undercover officers. However, his opinions were based in part on the medical records made by Coker. Much of those medical records do not accurately reflect what occurred during the visits of the undercover officers. Herly Ramos, P.A.-C., is a physician assistant and has passed the national board certification examination for general medicine. He is presently employed as a surgical assistant. Previously he practiced for nine years with the Orlando Orthopedic Center, which is primarily an orthopedic practice. While with the Orlando Orthopedic Center, Mr. Ramos routinely took medical histories, performed physical examinations, made assessments, developed treatment plans, did discharge evaluations, and wrote progress reports. A large component of the orthopedic practice involves evaluating patients for complaints of pain. Common orthopedic ailments include back or neck pain, extremity pain from strains, sprains, or fractures. The first line of treatment for such ailments includes nonsteroidal, anti-inflammatory drugs, muscle relaxers, and physical therapy. Patients with fresh fractures or other conditions involving severe pain often require narcotic analgesics or controlled substances. Mr. Ramos credibly opined on the standard of care for a physician assistant in evaluating a patient on the initial visit and follow-up visits. It is his opinion that when performing an initial evaluation of a patient complaining of pain, a detailed medical history should be taken, and a thorough physical examination should be conducted. The medical history should include a personal medical history, social history, family medical history, allergies, surgical history, name of current physician, current medications, review of systems, and any diagnoses. According to Mr. Ramos, the initial physical examination for a patient complaining of pain should include taking the patient's vital signs (blood pressure, pulse, respiration, and temperature), heart and lung examination, assessment for any obvious abnormalities, examination of the abdomen, and a detailed examination of the portion of the body about which the patient is complaining. During the physical examination, the physician assistant should be looking for anything that might indicate a cause for the patient's complaint. A limited examination is a less detailed examination, and it is Mr. Ramos' opinion that a limited examination is indicated when the physician assistant is treating the patient for a recurring complaint and wants to determine if there was any interval change. Dr. Barsa and Mr. Ramos agree that a physician assistant could recommend to the supervising physician that controlled substances be prescribed for a patient, but that a physician assistant could not prescribe controlled substances for a patient. It is the opinion of Dr. Barsa that a physician assistant who prescribes controlled substances is practicing beyond the scope permitted by law for a physician assistant. According to Dr. Barsa, the prescribing of controlled substances should be based upon a clear documentation of unrelieved pain that is unmanageable with simple Tylenol or aspirin. For example, it would be a violation of the standard of care to prescribe a controlled substance for neck pain when the patient has no complaints of neck pain. Mr. Ramos credibly opined that Coker's treatment of the undercover officers fell below the level of care, skill, and treatment which is recognized by a reasonably prudent physician assistant as being acceptable under the conditions and circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding James Coker guilty of violating Subsections 458.331(1)(t), 458.331(1)(q), 459.331(1)(nn), and 456.072(1)(o) and Florida Administrative Code Rule 64B8-30.008, and revoking his license as a physician assistant. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND 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 31st day of October, 2003.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated March 26, 2010, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See § 456.072, Fla. Stat. The Board of Medicine ("Board") is the entity responsible for regulating the practice of medicine and for imposing penalties on physicians found to have violated the provisions of section 458.331(1). See § 458.331(2), Fla. Stat. At the times material to this proceeding, Dr. Genao was a physician licensed to practice medicine in Florida, having been issued license number ME 58604. Dr. Genao was board-certified in pediatrics, and, until he closed his office in 2008, he practiced pediatric medicine and complementary medicine, which consists primarily of nutrition counseling and infusion therapy. From December 2008 to March 2010, Dr. Genao was employed as a physician at the Full Service Pain Management Clinic ("Clinic"). Prior to his employment with the Clinic, Dr. Genao had not practiced medicine in the field of pain management and had not taken any continuing medical education classes in the field of pain management. His knowledge of pain management medicine prior to his association with the Clinic was limited to the writing of an occasional prescription for Oxycodone or Percoset. When Dr. Genao learned that the Clinic was looking for a physician, he contacted the Clinic and was interviewed by one of the owners. After he was hired by the Clinic, he observed and worked with the medical director of the Clinic, Dr. Friedberg, for approximately three weeks. Then, when he began seeing patients at the Clinic on his own, another physician observed him with his first few patients. This was the only formal training he received in pain management medicine. During the time he was observing the medical director of the Clinic and working with patients at the Clinic, Dr. Genao read about pain management medication in textbooks and on the Internet, and he also attended approximately 35 hours of continuing medical education in the field of pain management medicine. During the time he was working at the Clinic, Dr. Genao had an endorsement on his medical license allowing him to dispense drugs on the premises. Dr. Genao began treating patients V.C. and J.S. at the Clinic in December 2008, soon after he began working at the Clinic. They were among his first patients. Dr. Genao prescribed Roxicodone and Xanax for both V.C. and J.S. during the course of their treatment. He also prescribed Soma for V.C. on one occasion, and he prescribed Percocet for J.S. on one occasion. Roxicodone is a rapid release formula of oxycodone. Oxycodone is an opiate (narcotic) analgesic used for the treatment of acute or chronic pain. Oxycodone is a schedule II controlled substance pursuant to section 893.03(2), Florida Statutes, and has a high potential for abuse. Roxicodone is dispensed in 30-milligram and 15-milligram tablets. This medication begins to relieve pain within 30-to-45 minutes after it is ingested, and it continues to act on pain for up to five hours. Percocet is the brand name for a combination of oxycodone and acetaminophen, and it differs from Roxicodone only in the addition of acetaminophen. Xanax, the brand name of alprazolam, is a benzodiazepine sedative hypnotic that is used to treat anxiety. It is a schedule IV controlled substance pursuant to section 893.03(4), and it has a low potential for abuse relative to schedule I, II, and III controlled substances. Soma is the brand name for carisprodol, which is a muscle relaxant commonly prescribed for muscle pain. It is a schedule IV controlled substance pursuant to section 893.03(4), and it has a low potential for abuse relative to schedule I, II, and III substances. Patient V.C. V.C.'s first visit to the Clinic was on December 20, 2008. At that time, he was screened by the Clinic's staff. The screening included completion of forms recording past substance abuse and psychiatric history. V.C. reported that he had no history of drug abuse and no history of a psychiatric diagnosis. V.C. also reported that he had taken, among other drugs, Roxicodone, Valium, Oxydose, Xanax, Lorcet, Percocet, Vicodin, Oxycontin, and Ambien. On December 20, 2008, V.C. also signed the following documents: A Pain Management Agreement, in which he agreed to follow the guidelines set forth in the agreement regarding the use of controlled pharmaceuticals, including submitting himself for blood or urine testing at the request of his physician; A form entitled "Informed Consent to Take Opiate/Narcotic Pain Medication," in which the benefits and risks of taking this type of medication were set out; A form advising V.C. that, pursuant to section 893.13, Florida Statutes, it was a third degree felony to fail to tell a physician prescribing narcotic pain medication that he had received pain medication from another physician since his last visit to the Clinic and/or to possess narcotic medication by misrepresentation, fraud, subterfuge, forgery, or deception; and A non-overdose contract, in which V.C. agreed to take the medication as prescribed and agreed to accept full responsibility if an overdose of pain medications occurred. V.C. also completed an Initial Pain Assessment form on December 20, 2008, in which V.C. reported the following: He tore his rotator cuff at the gym approximately 20 months prior to his first office visit with Dr. Genao; His pain was burning and sharp, and he was stiff in the morning; His pain interfered substantially with his work and made him depressed and irritable; He had been treated in 2006-2007 by a Dr. Taylor, who had treated him with therapy and cortisone shots, among other modalities, and in 2007-2008 by a Dr. Ward, who did nerve conduction testing; and d. X-rays and an MRI had been taken of his shoulder. V.C. was first seen by Dr. Genao on December 23, 2008. At that time, an Initial Medical Evaluation form was completed, in which the following was noted: a. V.C. sought a medical evaluation in order obtain medication refills; b V.C. had previously been seen in a pain clinic in Davie, Florida, in November 2008; The pain medications currently prescribed for V.C. were Roxicodone and Xanax; V.C.'s neck and shoulder were the areas affected by the pain; The level of pain with medication reported by V.C. was three on a scale of ten, while the level of pain without medication was eight on a scale of ten; The pain was constant, burning, aching, and radiating; There was limited range of motion in V.C.'s left shoulder, and he could not raise his left arm; and An MRI scan of the left shoulder was conducted on February 26, 2007. Dr. Genao obtained a copy of the results of the February 26, 2007, MRI scan, which included the following impression: Rotator cuff tendinosis involving the supraspinatus tendon. There is bursal-sided fraying. There is undersurface fraying and some low-grade partial thickness tear in the central distal aspect of the supraspinatus tendon. Fluid in the overlying subdeltoid bursa reflects moderate bursitis. AC joint degenerative change, as noted above with evidence of a type 2 anterior acromion. Labral blunting and fraying along the anterior, anterosuperior, and posterosuperior aspects of the labrum. Changes that appear to suggest some element of chondral thinning along the bony margin of the glenoid, more evident inferior and posteroinferiorly. Dr. Genao's diagnosis, as stated on the Initial Medical Evaluation form, was tendonitis. The blank space on the Initial Medical Evaluation form reserved for a listing of "Non-pharmaceutical pain modifying therapies" was completed with "N/A." The medication treatment plan that Dr. Genao developed for V.C. consisted of prescriptions for 224 30-milligram tablets of Roxicodone; 56 15-milligram tablets of Roxicodone; and 56 two milligram tablets of Xanax3; this treatment plan was included by Dr. Genao in the Initial Medical Evaluation form. The long-term goals Dr. Genao identified on the Initial Medical Evaluation form were to "decrease pain" and to "improve enjoyment of daily life activities and social interaction and function." Dr. Genao completed a History and Physical Examination Form for V.C. on December 23, 2008. Although a small part of the information on the form was illegible, Dr. Genao noted the following: V.C. suffered from severe pain in his left shoulder due to a weight-lifting injury in November 2006, although he continued to exercise with pain; V.C. was first seen for his shoulder pain by a Dr. Taylor, who prescribed exercise and treated him with cortisone shots and Percocet; V.C. continued to experience pain, however, and he was then seen by a Dr. Ward,4 who treated V.C. with 25-to- 30 milligram tablets of Roxicodone; V.C. worked as a cameraman for a television station, which required him to continually push buttons and pull cables, and it was impossible for him to do his work without pain medication; V.C. had been taking pain medications for about a year before his appointment with Dr. Genao; V.C. had not decided whether to have surgery on his shoulder, although he knew it was an option for treating the pain; V.C.'s previous doctor had prescribed Valium, and then Xanax, to relieve anxiety and stress; V.C. had no other health problems and no side effects from the medications; V.C. was divorced and had a young daughter and a 92- year-old mother, for whom he provided care; V.C. smoked but did not use alcohol; V.C.'s current medications were 30-milligram tablets of Roxicodone and two-milligram tablets of Xanax; V.C. may go on work trips and might need prescriptions filled before scheduled. Under the heading "ROS" on the History and Physical Examination Form, Dr. Genao noted that V.C. reported sleepiness but "none" of the following: Gen: Confusion, appetite, weakness Resp: Cough, wheeze, SOB, hemoptysis CVS: CP, palpitations, PND, Syncope, SOBOE, H/O, HTN, Lipid d/o GI: N/V/D/C, dark tarry stool, BRBPR, Liver problems GU: dysuria, urinary retention, frequency urgency, hesitancy, hematuria, kidney problems Neuro: weakness, numbness, tingling, dizziness, memory, cognition, balance, dexterity, agility MSKT: brittle bones, muscle tone, strength, joint pain/deformities/limitation/swelling, carpal tunnel Psych: depression, anxiety, mood, behavioral changes, h/o psychosis Other than the documents discussed above and copies of the prescriptions Dr. Genao wrote for V.C., the only significant items in Dr. Genao's medical records were "Patient Follow Up Sheets" completed by Dr. Genao for each of V.C.'s appointments subsequent to the initial office visit on December 23, 2008. After his initial office visit, V.C. had six appointments with Dr. Genao, on January 21, 2009; February 18, 2009; April 3, 2009; May 4, 2009; June 1, 2009; and June 29, 2009. Dr. Genao assessed V.C.'s condition during each office visit, and each follow-up sheet included the date of the appointment, V.C.'s vital signs, and the following notations: V.C. did not take vitamins, did exercise, and smoked between one-quarter pack to one pack of cigarettes each day; V.C. experienced pain during normal activities of three on a scale of ten with medications and eight on a scale of ten without medications, except that he reported on May 4, 2009, that he experienced pain during normal activities of two on a scale of ten with medications; V.C. had no side effects from the medications, had no new complaints or injuries, and had experienced improvement in mood and daily activities, Lifestyle changes were discussed and notes from previous office visits were reviewed; V.C. was responding well to the medications; Dr. Genao and V.C. discussed reducing his medication amounts and making changes in the medication prescribed for V.C.; and All questions and concerns were addressed in detail; No referral, labs, or diagnostic tests had been ordered. The medication prescribed at each appointment, together with Dr. Genao's notes, are included on the "Patient Follow Up Sheet" for each appointment as follows: January 21, 2009: 224 Roxicodone 30 mg 56 Roxicodone 15 mg 56 Xanax 2 mg "Pt did fine on his prescriptions. Pain well controlled. No side effects reported." February 18, 2009: 224 Roxicodone 30 mg 56 Roxicodone 15 mg 56 Xanax 2 mg "Pt did fine. No side effects reported." April 3, 2009: 224 Roxicodone 30 mg 84 Roxicodone 15 mg 56 Xanax 2 mg "Tendonitis/bursitis L shoulder [illegible] shoulder acting up. Pt feels better ± same" May 4, 2009: 224 Roxicodone 30 mg 84 Roxicodone 15 mg 56 Xanax 2 mg "Pt doing well. No side effects." June 1, 2009: 224 Roxicodone 30 mg 84 Roxicodone 15 mg 56 Xanax 2 mg "Pt doing fine. Active camera man." June 29, 2009: 196 Roxicodone 30 mg 112 Roxicodone 15 mg 56 Xanax 2 mg 56 Soma 350 mg "Pt doing well. Active at job. Doing some painting job which increase his pain. Lot of muscle spasms." Dr. Genao did not conduct a complete physical examination of V.C. during his initial office visit or during subsequent visits. Rather, because V.C. had voiced no other complaints, Dr. Genao performed a limited physical examination on V.C.'s first office visit that focused on his neck and left shoulder, which were the areas of his body that V.C. identified as the sources of his pain. With respect to this limited physical examination, Dr. Genao noted on the Initial Medical Evaluation form that V.C. had a limited range of motion of his left shoulder and was unable to raise his left arm. According to Dr. Genao, the type of examination he gave V.C. on his initial visit usually takes three-to-five minutes. It was Dr. Genao's practice not to touch the patient or conduct any manual manipulation; rather, Dr. Genao would request that the patient perform movements at his direction, and he would measure the amount of rotation and enter the information on the patient's medical records. There is nothing in V.C.'s medical records to indicate that Dr. Genao did any type of physical examination during any of V.C.'s subsequent office visits, although his height, weight, and vital signs were taken and recorded on the "Patient Follow- Up Sheet" for each appointment. Although V.C. reported that he had been seen previously by a Dr. Taylor and a Dr. Ward, neither Dr. Genao nor anyone at the Clinic contacted the offices of these physicians to obtain copies of V.C.'s medical records. Consequently, Dr. Genao did not have any records of V.C.'s prior medical treatment or of the medications that Dr. Taylor and/or Dr. Ward had prescribed for V.C. Nonetheless, Dr. Genao's treatment plan for V.C. was to continue with the medications that V.C. told Dr. Genao he had been taking prior to December 23, 2008. In prescribing 224 30-milligram tablets of Roxicodone, 56 15- milligram tablets of Roxicodone, and 56 two-milligram tablets of Xanax for V.C. at his first office visit, Dr. Genao relied exclusively on the information V.C. provided about the type, strength, and quantities of the medications that Dr. Ward had prescribed. Dr. Genao continued with the medication treatment plan through V.C.'s February 18, 2009, office visit, and he based the strength and quantity of the pain medications he prescribed for V.C. on his assessment of V.C. at each office visit. The strength and quantity of Roxicodone and Xanax prescribed for V.C. remained the same until April 3, 2009, when Dr. Friedberg, the Clinic's medical director, increased to 84 the quantity of 15-milligram tablets of Roxicodone prescribed for V.C. Dr. Genao followed the lead of Dr. Friedberg at V.C.'s May 4, 2009, office visit and increased the quantity of 15- milligram tablets of Roxicodone prescribed for V.C. to 84, deferring to Dr. Friedberg's knowledge and experience in pain management medicine. At V.C.'s May 4, 2009, office visit, Dr. Genao also continued to prescribe the 30-milligram tablets of Roxicodone and the two-milligram tablets of Xanax in the quantities he had previously prescribed. Dr. Genao did not change V.C.'s medications at his office visit on June 1, 2009. At V.C.'s final office visit on June 29, 2009, Dr. Genao prescribed Soma, a muscle relaxant, for V.C. because V.C. reported that he had fallen and was having muscle spasms; Dr. Genao reduced the number of 30-milligram tablets Roxicodone from 224 to 196, and he increased the number of 15-milligram tablets of Roxicodone from 84 to 112. Dr. Genao did this because he wanted to increase the number of 15-milligram tablets of Roxicodone available to V.C. for dealing with "break-through pain"5 and because he wanted to decrease the total milligrams of Roxicodone V.C. was taking each day. According to Dr. Genao, V.C. had decided, after having received other types of treatments, to use pain medication as the modality of treatment for the pain in his shoulder. Dr. Genao did not discuss different modalities of pain management, such as physical therapy, injection therapy, and surgery, with V.C. because, in Dr. Genao's view, V.C. had the right to chose treatment with pain medication. Because V.C. had made his choice of treatments, Dr. Genao did not refer him to other physicians for any other modality of treatment for his pain or treat him with anti-inflammatory medications. Dr. Genao did not doubt the truthfulness of the information V.C. provided about the type, quantity, and strength of the medications he was taking at the time of his first office visit with Dr. Genao on December 23, 2008. He did not order V.C. to submit to urinalysis to determine the amount and type of drugs in V.C.'s system on his first or subsequent visits because Dr. Genao did not consider V.C. to be a patient at high risk of abusing pain medication. Dr. Genao observed that V.C. always kept his appointments, was on time for his appointments, was doing well with his job, and was taking care of his 92-year-old mother and his two-year-old child. In addition, Dr. Genao observed that V.C. behaved in a professional manner during his office visits. Patient J.S. J.S.'s first visit to the Clinic was on December 29, 2008. At that time, he was screened by the Clinic's staff. The screening included completion of forms recording past substance abuse and psychiatric history. J.S. reported that he had no history of drug abuse and no history of a psychiatric diagnosis. J.S. also reported that he had taken, among other drugs, Roxicodone, Percocet, and Lortab. On December 29, 2008, J.S. also signed the following documents: A Pain Management Agreement, in which he agreed to follow the guidelines set forth in the agreement regarding the use of controlled pharmaceuticals, including submitting himself for blood or urine testing at the request of his physician; A form entitled "Informed Consent to Take Opiate/Narcotic Pain Medication," in which the benefits and risks of taking this type of medication were set out; A form advising J.S. that, pursuant to section 893.13, Florida Statutes, it was a third degree felony to fail to tell a physician prescribing narcotic pain medication that he had received pain medication from another physician since his last visit to the Clinic and/or to possess narcotic medication by misrepresentation, fraud, subterfuge, forgery, or deception; and A non-overdose contract, in which J.S. agreed to take the medication as prescribed and agreed to accept full responsibility if an overdose of pain medications occurred. At J.S.'s first office visit with Dr. Genao, on December 29, 2008, an Initial Pain Assessment form was completed, in which J.S. reported the following: His problem started three years prior to his first office visit with Dr. Genao; His pain interfered with his work and his daily routine but did not make him irritable, depressed, or angry; He had been treated in November 2008 by Dr. Beaure, who prescribed 224 30-milligram tablets of Roxicodone, 140 15-milligram tablets of Roxicodone, and 60 two-milligram tablets of Xanax; and He had an MRI in November 2008. An Initial Medical Evaluation form was also completed on December 29, 2007, in which the following was noted: J.S. had been seen in November 2008 by "Dr. Bower" at the AAA pain management clinic; J.S. decided to go to the Clinic because the AAA pain management clinic had closed; J.S. sought a medical evaluation in order to obtain medication refills and medication changes; The pain medications currently prescribed for J.S. were Roxicodone, Xanax, and "Rox 15"; J.S.'s lower back was the area affected by the pain, and it was aggravated by lifting, sitting, standing, walking, and bending; J.S. reported that the level of pain with medication was "N" on a scale of ten and that the level of pain without medication was ten on a scale of ten; J.S. described the pain as constant, sharp, stabbing, throbbing, and radiating; Dr. Genao observed swelling in J.S.'s cervical area, and tenderness, trigger points, and spasms, were observed in his lumbrosacral area; and An MRI scan of the lumbrosacral area was conducted on November 13, 2008. J.S. brought a copy of the November 13, 2008, MRI report to his first office visit with Dr. Genao, and this document was included in Dr. Genao's medical records for J.S. The impression stated in the radiologist's report was that J.S. had a disc protrusion between the L3-4 vertebrae that "touches and mildly effaces the dural sac" and a disc protrusion between the L5-S1 vertebrae that "touches the left exiting S1 exiting nerve root". Dr. Genao's diagnosis, as stated on the Initial Medical Evaluation form, was severe back pain and bulging discs. "No" was filled in the blank space on the Initial Medical Evaluation form reserved for a listing of "Non-pharmaceutical pain modifying therapies." The medication treatment plan that Dr. Genao developed for J.S. consisted of prescriptions for 224 30-milligram tablets of Roxicodone; 56 15-milligram tablets of Roxicodone; and 56 two-milligram tablets of Xanax6; this treatment plan was set forth on the Initial Medical Evaluation form. The long-term goals for J.S. that Dr. Genao identified on the Initial Medical Evaluation form were to "decrease pain" and to "improve enjoyment of daily life activities and social interaction and function." Dr. Genao completed a History and Physical Examination Form for J.S. on December 29, 2008. Although a small part of the information on the form was illegible, Dr. Genao noted the following: J.S. suffered for three years from severe aches and spasms in his lower back, that radiated to his mid-back and neck and went down both legs, especially his right leg, and to his right testicle; J.S. described the pain as ten on a scale of ten; J.S. had been seen by a pain management physician steadily for two years but had to stop this regular pain management treatment because he lacked insurance; J.S. subsequently obtained pain management medications whenever he could afford them, and, when he was last seen in November 2008, he had received prescriptions for both 30- milligram and 15-milligram tablets of Roxicodone; J.S. reported that the pain had become unbearable and interfered with his ability to work and that he had anxiety and problems sleeping; J.S. had no other health problems; J.S. was married with one child; J.S. did not smoke or use alcohol or drugs; J.S.'s current medications were Roxicodone and Xanax; Under the heading "ROS" on the History and Physical Examination Form, Dr. Genao noted that J.S. reported sleepiness; problems with agility, muscle tone, and strength; and anxiety, but he reported "none" of the following: Gen: Confusion, appetite, weakness Resp: Cough, wheeze, SOB, hemoptysis CVS: CP, palpitations, PND, Syncope, SOBOE, H/O, HTN, Lipid d/o GI: N/V/D/C, dark tarry stool, BRBPR, Liver problems GU: dysuria, urinary retention, frequency urgency, hesitancy, hematuria, kidney problems Neuro: weakness, numbness, tingling, dizziness, memory, cognition, balance, dexterity MSKT: brittle bones, muscle tone, strength, joint pain/deformities/limitation/swelling, carpal tunnel Psych: depression, mood, behavioral changes, h/o psychosis Other than the documents discussed above and copies of the prescriptions Dr. Genao wrote for J.S., the only significant items in Dr. Genao's medical records were "Patient Follow Up Sheets" completed for each of J.S.'s appointments with Dr. Genao subsequent to the initial appointment on December 29, 2008. After his initial office visit, J.S. had four appointments with Dr. Genao, on January 26, 2009; February 23, 2009; March 27, 2009, and April 29, 2009.7 Dr. Genao assessed at each office visit, and each follow-up sheet included the date of the appointment, J.S.'s vital signs, and the following notations: J.S. did not take vitamins, did exercise, and smoked between one-quarter pack to one-half pack of cigarettes each day; J.S. experienced pain during normal activities of three on a scale of ten with medications and ten on a scale of ten without medications, except that he reported on April 29, 2009, that he experienced pain during normal activities of nine on a scale of ten with medications; J.S. had no side effects from the medications and had no new complaints or injuries, although he did report at the January 26, 2009, office visit that he had been treated with a "Z-pack" for pneumonia; J.S. experienced improvement in mood and daily activities; Lifestyle changes were discussed and notes from previous office visits were reviewed; J.S. was responding well to the medications; Dr. Genao and J.S. discussed reducing his medication amounts and making medication changes; All questions and concerns were addressed in detail; and No referral, labs, or diagnostic tests were ordered. The medication prescribed at each appointment, together with Dr. Genao's notes, are included on the "Patient Follow Up Sheet" for each appointment as follows: January 26, 2009: 224 Roxicodone 30 mg 112 Roxicodone 15 mg 56 Xanax 2 mg "Pt doing much better. More active at work. Helping [illegible] and performing well at his job. No side effects reported." February 23, 2009: 224 Roxicodone 30 mg 56 Xanax 2 mg 112 Percocet 10/650 mg "Pt did fine. Working almost like a normal person. Pt and wife are happy. Will give Percocet for BTP [breakthrough pain] instead of Roxi 15 mg." March 27, 2009: 224 Roxicodone 30 mg 112 Roxicodone 15 mg 56 Xanax 2 mg Chantix for 2 weeks "Pt doing well. Working some over time and now able to play with daughter. Patient looking to quit smoking asking for Chantix" April 29, 2009: 224 Roxicodone 30 mg 112 Roxicodone 15 mg 56 Xanax 2 mg "Pt very happy with med. Quitting smoking. Did not take Chantix. 2 deaths in the family." Dr. Genao did not conduct a full physical examination of J.S. during his initial office visit or during subsequent office visits. Rather, because J.S. had no other complaints, Dr. Genao performed a limited physical examination on J.S.'s first office visit that focused on his back, which was the area of his body that J.S. identified as the source of his pain. With respect to this limited physical examination, Dr. Genao noted on the Initial Medical Evaluation form that J.S. had muscle spasms and tenderness in trigger points. According to Dr. Genao, the type of examination he gave J.S. on his initial visit usually takes three-to-five minutes. Although it was Dr. Genao's practice not to touch the patient or conduct any manual manipulation, he touched J.S.'s back at several points to determine if it was tender. Otherwise, Dr. Genao requested that J.S. perform movements at his direction, and he noted the results on the Initial Medical Evaluation form. There is nothing in J.S.'s medical records to indicate that Dr. Genao did any type of physical examination during any of J.S.'s subsequent office visits, although his height, weight, and vital signs were taken and recorded on the Patient Follow Up Sheet for each appointment. J.S. reported that he had been seen previously by Dr. Beaure, but neither Dr. Genao nor anyone at the Clinic contacted Dr. Beaure's office to obtain copies of J.S.'s medical records. Consequently, Dr. Genao did not have any records of J.S.'s prior medical treatment or of the medications that Dr. Beaure had prescribed for J.S. Nonetheless, Dr. Genao's treatment plan for J.S. was to continue him on the medications that J.S. told Dr. Genao he had been taking prior to December 29, 2008. In prescribing 224 30-milligram tablets of Roxicodone, 112 15-milligram tablets of Roxicodone, and 56 two- milligram tablets of Xanax, for J.S. at his first office visit, Dr. Genao relied exclusively on the information J.S. provided about the type, strength, and quantities of the medications that Dr. Beaure had prescribed. On February 23, 2009, Dr. Genao substituted 112 10/650-milligram tablets of Percocet for the 112 15-milligram tablets of Roxicodone that he had prescribed on January 26, 2009, at J.S.'s request. J.S. felt that the 15- milligram Roxicodone tablets did not take the edge off of his pain, but the Percocet, which contained ten milligrams of oxycodone and 650 milligrams of acetaminophen, was not as effective as J.S. had expected. Dr. Genao returned to the original prescription of 112 tablets of 15-milligram Roxicodone at J.S.'s March 27, 2009, office visit. Dr. Genao discussed with J.S. different modalities of pain management, such as physical therapy, injection therapy, and surgery, even though he did not note the substance of this discussion in J.S.'s medical records. J.S., however, chose to manage his pain through medication, and Dr. Genao did not refer J.S. to any other physicians for other modalities of treatment for his pain or treat him with anti-inflammatory medications. Dr. Genao did not require J.S. to submit to urinalysis to determine the amount and type of drugs in J.S.'s system on his first or subsequent visits because Dr. Genao did not consider J.S. to be a patient at high risk of abusing pain medications. Dr. Genao did not doubt the truthfulness of the information J.S. provided regarding the type, strength, and quantity of medications J.S. was taking at the time of his first office visit on December 29, 2008. Dr. Genao observed throughout the time that J.S. was his patient that J.S. always kept his appointments, was on time for his appointments, and behaved in a professional and orderly manner. General V.C. and J.S. were among the first patients Dr. Genao treated at the Clinic. He subsequently modified the way in which he approached the treatment of patients seeking help managing pain. He started patients who had not previously taken opioids on small amounts of pain medication and then worked up, or titrated, to the amount that relieved their pain. With V.C. and J.S., however, Dr. Genao prescribed the same type, quantity, and strength of pain medications that they had been taking prior to their first office visits with him because V.C. and J.S. had developed a tolerance for the medications, and Dr. Genao did not want to decrease the amount or change the type of medications and possibly cause them distress or withdrawal symptoms. It was the Clinic's policy to do urine tests to determine what, if any, drugs were in the patient's system at any given time and to obtain copies of patient's medical records. Dr. Genao conceded that he did not order urine tests or ensure that copies of medical records for V.C. and J.S. were obtained by Clinic staff, but, again, he explained that V.C. and J.S. were among his first patients and that he had modified his practices as he became more experienced. Dr. Genao based the type, strength, and quantity of the pain medications he prescribed on his assessment of his patients at each office visit, and he followed the standard procedure of the Clinic in prescribing both 30-milligram and 15- milligram tablets of Roxicodone. Dr. Genao prescribed 224 30- milligram tablets of Roxicodone for both V.C. and J.S.; this amounted to eight tablets a day, and two tablets were to be taken every four-to-six hours.8 Dr. Genao prescribed 15-milligram tablets of Roxicodone to allow V.C. and J.S. to take a 15-milligram Roxicodone tablet for break-through pain rather than having them take a 30-milligram tablet of Roxicodone tablet before the next dose of the greater-strength Roxicodone was due. In this way, Dr. Genao believed that V.C. and J.S. could control their pain with the least amount of medication Dr. Genao used pre-printed prescription forms for Roxicodone and Xanax because those forms were routinely used by the doctors practicing at the Clinic. There were a number of pre-printed forms, and the use of these forms did not mean that Dr. Genao failed to tailor the prescriptions to the specific needs of V.C. and J.S., individually. Summary9 The evidence presented by the Department is not sufficient to establish that Dr. Genao failed to conduct and document appropriate evaluations of V.C. and J.S.10 The Past Substance Abuse and Past Psychiatric History forms, the Initial Pain Assessment forms, the History and Physical Examination Forms, and the Patient's Follow-Up Sheets completed by or for and J.S. included the following: Complete medical histories of these patients relating to their need for pain management; The results of the physical examinations that Dr. Genao performed of the areas related to their complaints of pain to ensure that the symptoms of which they complained correlated with the results of the physical examinations and the information revealed by their MRIs and that there was a medical indication for the use of pain medications; An assessment of the nature and intensity of V.C.'s and J.S.'s pain, with a rating of their pain on a scale of one to ten both with and without medication, together with a description of the nature of their pain; A listing of their current and past treatments for pain, as well as the names of the physicians who had treated them for the pain; A list of underlying or coexistent diseases or conditions that they reported, if any; The effect of the pain on their physical and psychological functioning; A history of their substance abuse, if any; and The diagnoses constituting the medical indications for the prescribing of controlled substances for V.C. and J.S. The evidence presented by the Department is not sufficient to establish that Dr. Genao failed to develop and document appropriate treatment plans for V.C. and J.S. The medication treatment plans were set forth on the Initial Medical Evaluation forms and indicated the type, strength, and quantity of the medications to be prescribed. The short- and long-term goals for V.C. and J.S. were included on the Initial Medication Evaluation form for each of them and included both a decrease in pain and improved enjoyment of daily activities and social interaction as objectives of the treatment plan and the means by which the success of the treatment was to be measured. Dr. Genao indicated on the Initial Medication Evaluation forms for V.C. and J.S. that there would be no non-pharmaceutical pain modifying therapies for either patient. After treatment began, Dr. Genao completed a Patient's Follow-Up Form for each of V.C.'s and J.S.'s office visits, in which he indicated that no new referrals, labs, or diagnostic tests had been ordered; he made notes relating the progress of these patients toward the goals of the treatment plan; and he indicated that he had discussed with V.C. and J.S. reducing the amount of medication or changing medications. The evidence presented by the Department is also insufficient to establish, with the requisite degree of certainty, that Dr. Genao fell below the level of care, skill, and treatment recognized as appropriate by a reasonably prudent physician, in light of all relevant circumstances, with respect to those aspects of the treatment of V.C. and J.S. identified in the Administrative Complaint. The testimony of the Department's expert witness is found to be generally unpersuasive, with the following but a few examples of the basis for this finding: The Department's expert offered a sometimes meandering commentary on what he considered deficiencies in Dr. Genao's treatment of V.C. and J.S., but he neither limited his commentary to the allegations in the Administrative Complaint, nor articulated the standards of care by which he evaluated Dr. Genao's treatment of V.C. and J.S. In several instances, the Department's expert was led by the Department's counsel with questions regarding standards of care to which he was required only to respond with a "yes" or a "no." The testimony of the Department's expert was contradictory in important respects, such as when he testified that treatment of V.C.'s shoulder pain with controlled substances may be needed and then testified that "this kind of medications [sic]" is not what "we use to treat shoulder pain."11 The Department's expert testified in terms of his opinions and his "feelings" about particular matters; used words and phrases such as "seems" and "appears" and "I would state"; and stated conclusions without explanation. Two of the most problematic aspects of the testimony of the Department's expert were his statements that the quantity and dosage of Roxicodone prescribed by Dr. Genao for V.C. and J.S. were excessive and that there was no indication for prescribing both 30-milligram and 15-milligram tablets of Roxicodone.12 These statements are specifically rejected as unpersuasive because the Department's expert did not offer any cogent explanation to support these opinions or articulate any standards of care from which he derived the opinions. Indeed, with respect to the testimony that the quantity of Roxicodone prescribed for V.C. and J.S. was excessive, the Department's expert began discussing the manner in which one would titrate the dosage of opioids for a person who was "opioid naïve" when the medical histories provided by V.C. and J.S. established that they had recently been prescribed Roxicodone by other physicians.13 Furthermore, the only explanation the Department's expert provided to support his opinion that Dr. Genao's prescribing both 30-milligram and 15-milligram tablets of Roxicodone was excessive, "kind of like double dosing almost,"14 was that both 30-milligram and 15-milligram tablets of Roxicodone are immediate release opioids used to treat acute pain. While an accurate statement of fact, this testimony begs the question and did not address Dr. Genao's explanation that he prescribed the 15-milligram tablets of Roxicodone to allow V.C. and J.S. to take a minimal dosage of the drug to combat breakthrough pain, a subject which the Department's expert also failed to address.15 The opinion of the Department's expert that Dr. Genao should have ordered urine drug screens for V.C. and J.S. in order to meet what he would "consider" the standard of care is unpersuasive, first, because the Department's expert never articulated a standard of care related to the routine administration of urine drug screens and, second, because he based his opinion that these patients should have been administered urine drug-screening tests on his assumptions that V.C. and J.S. were at high risk of drug abuse and/or diversion.16 These assumptions, however, were based on nothing more than the amount and type of medications prescribed for V.C. and J.S. With respect to V.C., the Department's expert testified that "[t]he nature of these prescriptions alone place this patient into a high risk category because of the combination that are [sic] very abusable, have a high street value, and are [sic] highly diverted."17 With respect to J.S., the Department's expert testified that "[a] twenty[-]eight year[-]old male on this much medication, that would be a high risk patient"18 and that [t]his is a patient requiring or requesting a very, very high combination of multiple controlled substances. So that alone would be cause for concern. I mean, signs are patients losing their scripts, selling them, knowing that they have other recreational or illicit substances in the urine. So I would say he [J.S.] has the symptoms of potential substance abuse or diversion.[19] The Department's expert did not base his assumptions that V.C. and J.S. were high-risk patients on any evidence in the record that either of them claimed to have lost prescriptions or gave any indication whatsoever that they were diverting and/or abusing the medications Dr. Genao prescribed for them. In addition, by basing his assumption that V.C. and J.S. were at high risk of medication abuse exclusively on the type and amount of medications Dr. Genao was prescribing for them, the Department's expert failed to consider the individual characteristics, circumstances, or conditions of V.C. and J.S. The notes that Dr. Genao included on the Patient Follow Up Sheets for V.C. and J.S. indicated that V.C. and J.S. were both doing well on their medications; that they had no side effects; that their activities of daily were improving; that they were able to perform their jobs better than they could without medication; and, with respect to J.S., that he was able to play with his daughter and that he and his wife were very happy. The testimony of the Department's expert witness is not sufficient to establish that Dr. Genao violated any standard of care by failing to refer V.C. or J.S. for modalities of treatment other than medication to control their pain. First, the Department's expert did not articulate a standard of care with respect to the circumstances in which it would be appropriate for a physician to refer a patient for treatment modalities such as physical therapy, surgery, neuropathic medications, or pain blocks or the circumstances in which it would be appropriate to treat a patient with muscle relaxers or anti-inflammatory medications. In fact, the testimony of the Department's expert was inconsistent with respect to his opinion regarding the appropriate treatment for V.C.'s shoulder pain: He testified that treatment with pain medications would be appropriate for V.C.; he testified that he "could support" Dr. Genao's treatment of V.C. for at least the short term; he testified that pain medications were "not something that we use to treat shoulder pain"; and, finally, he testified, without any supporting explanation, that Dr. Genao should have referred V.C. to an orthopedic surgeon for surgery.20 With respect to J.S., the Department's expert witness merely acknowledged, in response to a question posed by the Department's counsel, that he did not see any recommendations in the medical records for J.S. for treatment modalities other than pain medication; he continued his testimony with a statement regarding his practice of putting patients on opioids only as "a last resort," after having obtained the opinions of surgeons and other clinicians,"21 but this opinion was not given in the context of the standard of care which would be followed by a reasonably prudent similar physician under similar conditions and circumstances. Finally, with respect to a physician's utilizing treatment modalities other than pain medications, the Department's counsel posed the following question: "Is it within the standard of care for a physician to merely recommend that the patient undergo these modalities or should they [a physician] require that they [a patient] undergo them?"22 The Department's expert witness responded: Well, I mean, I think that depends on a physician's judgment. When we talk about prescribing medications like this I think a prudent physician should mandate that a patient at least see some other colleagues to help co-manage a difficult case. It's not mandatory but I think it would be highly recommended.[23] Not only does this testimony fail to address a standard of care relating to utilization of other treatment modalities, the opinion of the Department's expert regarding a practice that he considers "highly recommended" is limited to "a difficult case." The Department's expert witness did not, however, testify that the cases of V.C. and J.S. were difficult cases, so that this opinion is irrelevant to the issues in this case. Finally, and importantly, the Department's expert concedes that a physician should use his or her own judgment with respect to referrals for treatment modalities for pain other than pain medications.
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 all counts of the Administrative Complaint against Esteban A. Genao, M.D. DONE AND ENTERED this 28th day of January, 2011, in Tallahassee, Leon County, Florida. S Patricia M. Hart 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 28th day of January, 2011.
Findings Of Fact At all times relevant hereto, Respondent, Jaime Benavides, held medical doctor License No. 10189 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. He currently resides at 1201 South Main Street, Belle Glade, Florida. Respondent is a graduate of the University of Pennsylvania Medical School and entered the U.S. Navy in 1949. He retired from the Navy in 1966 1/. His last duty assignment was as chief of orthopedics at the Navy hospital in Key West. He was board certified as an orthopedic surgeon in 1961 and is a Fellow of the American Academy of Orthopedic Surgeons. He has also received the Physician's Recognition Award every three years for continuing education studies and was president of the Florida Orthopedic Society for several years. Since June, 1980, he has been practicing in Belle Glade, where he is vice-chief of staff at Glades Hospital. In 1973, Robert Greene was initially treated at Respondent's clinic in Marathon, Florida. Respondent's office was in Key West, but he provided medical services at a clinic in Marathon on Tuesday of each week. Greene had suffered a wrist injury while in the service and reinjured it while employed at a grocery store in Marathon. Greene was initially treated by Respondent's associate, Dr. Schaubel, and eventually had a bone graft placed in his wrist in January, 1974, by both physicians. Schaubel prescribed Demerol for Greene and in June, 1974, Respondent began prescribing Dilaudid for pain. Between January 1, 1976, and October 4, 1976, Respondent wrote prescriptions for 3,041 Dilaudid tablets of 4- milligram strength and 518 Dilaudid tablets having 2-milligram strength. The maximum amount of Dilaudid consumed by Greene during any period of time was 10 tablets per day, with each having 4-milligram strength. During this same period of time, Greene had three additional operations on the same wrist. The second operation involved a silicone implant, the third a replacement of the implant, and the fourth replaced a bone in his wrist and realigned the implant to its proper place. A scheduled fifth operation never took place. After the third operation, Greene told Respondent he believed he was becoming addicted to the drug. Respondent "detoxed" Greene prior to the fourth operation, but Greene later requested more drugs because of the intense pain in his wrist and his inability to work as a fisherman, which required that he lift lobster traps weighing more than 125 pounds. Respondent attempted on a number of occasions to cut back the dosage, but Greene could not stand the pain and always requested that the medication be continued. Although Respondent prescribed a large number of tablets in the first 10 months of 1976, Greene did not actually ingest all the tablets since his prescriptions were lost or stolen on "numerous" occasions, thereby necessitating the obtaining of a new prescription from Respondent on each occasion. This was confirmed by testimony from the patient. Some of the prescriptions were obtained by Greene when Benavides was on rounds at the hospital or at his home and did not have his medical records present. Respondent conceded the amount of dosage was high, but said the patient had a low threshold for pain and could not support his family unless he was able to work as a fisherman. Based on the seriousness of the injury, he concluded that only Dilaudid was effective in taking care of the pain, particularly since in 1976 there were no other oral medications that were equally satisfactory. According to the 1982 Physician's Desk Reference (PDR), the following instructions appear relative to the use of Dilaudid: The oral route of administration is effective for the treatment of moderate to severe pain. The usual oral dose is two milligrams every four to six hours as necessary. The dose must be individually adjusted according to severity of pain, patient response, and patient size. More severe pain may require three to four milli- grams every four to six hours. If the pain increases in severity or relief is not ade- quate or a tolerance occurs, a gradual in- crease in dosage may be required. (p.1009) The prescriptions given by Respondent, excluding those that were lost or stolen, were consistent with this PDR instruction. An expert retained by the Department, Dr. John R. Mahoney, a board certified orthopedic surgeon, characterized the amount of Dilaudid prescribed for Greene as an "enormous amount" and "far in excess" of what his condition indicated. However, he did not take into account the fact that large amounts were never ingested by the patient since they were lost or stolen. He considered the maximum accepted daily dosage to be 12 to 16 milligrams per day for short periods of time. He conceded that larger amounts could be taken under certain circumstances. It was his opinion that Respondent's conduct in treating Green deviated from the standard of care expected from an orthopedic surgeon. Mahoney did not dispute the recommendations of the PDR on prescribing Dilaudid. He also agreed that preventing addiction by a patient is a great problem and one that is "not manageable on an individual physician's part." Michael Aulting was injured in a motorcycle accident in 1974 and suffered a fractured dislocation of his left hip. He subsequently developed a traumatic arthritis. It is unclear when Respondent began treating Aulting, but Respondent eventually performed a total hip replacement on Aulting. This was followed by the removal and replacement of a new prosthesis due to an infection and a similar procedure some two years thereafter. The exact dates of surgery were not disclosed. During the period October 2, 1975, through February 16, 1979, Benavides prescribed the following drugs for Aulting: 10/2/75 20 Dilaudid 2 mg. 11/3/75 28 Dilaudid 2 mg. 11/10/75 20 Dilaudid 2 mg. 1/10/76 45 Dilaudid 4 mg. 1/12/76 28 Dilaudid 4 mg. 5/14/76 28 Dilaudid 2 mg. 5/23/76 56 Dilaudid 2 mg. 5/30/76 46 Dilaudid 4 mg. 6/14/76 21 Dilaudid 4 mg. 6/16/76 21 Dilaudid 4 mg. 7/25/76 24 Dilaudid 4 mg. 9/16/76 30 Tuinal 100 (?) 9/17/76 30 Parest 400 (?) 9/26/76 45 Parest 400 (?) 10/11/76 21 Parest 400 (?) 10/14/77 50 Percodan (strength unknown) 11/15/76 50 Percodan (strength unknown) 11/26/76 50 Percodan (strength unknown) 12/11/78 40 Percodan (strength unknown) 12/19/78 50 Percodan (strength unknown) 12/29/78 50 Percodan (strength unknown) 1/15/79 50 Percodan (strength unknown) 1/22/79 50 Percodan (strength unknown) 1/26/79 40 Percodan (strength unknown) 2/12/79 30 Percodan (strength unknown) 2/16/79 50 Percodan (strength unknown) Aulting claimed he lost his prescriptions on several occasions. Whether any of the above were duplicate or backup prescriptions was not disclosed. Benavides described Aulting as having a low pain threshold and a fairly high tolerance to medication. Given this and the severe hip injury and associated operations, he felt the medications for Aulting were reasonable. He also believed that Aulting may have been "feigning" pain at times, and on these occasions, he would turn down his requests for more drugs. After his treatment of Aulting had ceased, he learned that Aulting may have stolen blank prescription pads from his office and forged his signature to obtain drugs. The expert retained by the Department considered the amount and level of drugs given to Aulting to be unacceptable and below the standard of care expected of an orthopedic surgeon in treating a patient with Aulting's condition. In reaching this conclusion, he relied principally upon the prescriptions written on June 14 and 16, 1976, and January 22 and 26, 1979. However, the strength of the drugs prescribed on the latter two dates was not disclosed. Dilaudid is a Schedule II narcotic pain killer and has addictive qualities. Percodan has similar characteristics. Tuinal is a nonnarcotic barbiturate with habituating qualities. The characteristics of the drug Parest were never disclosed. The Department began its investigation of Benavides in 1976 when it investigated Benavides' treatment of Aulting. In early September, 1977, the Department again sent investigators to Key West to draw a profile of Respondent in treating Greene. A report as to Greene was prepared on September 16 for the Board of Medical Examiners. No action was taken by the Department until April, 1982, when the administrative complaint was issued. No explanation was given as to why it took almost five years to formalize the charges and file a complaint.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Respondent be DISMISSED. DONE and ENTERED THIS 18th day of November, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of November, 1983.
