Findings Of Fact The Respondent, Glenn R. Johnston, is a medical doctor, holding license number ME0018091. His address is 201 North Lakemont Avenue, Winter Park, Florida 32759. The Respondent obtained his Bachelor of Science degree from the University of Florida in 1966, and his medical degree from Bowman Gray School of Medicine in 1970. He served his internship and a two-year general family practice residency at Jacksonville Naval Hospital while serving in the Navy, and became board certified in family practice in 1973. Subsequently, the Respondent served for four years as Chief of the Family Practice Department at the Naval Regional Medical Center in Orlando. In approximately 1976 the Respondent entered private practice in Orlando with a group of doctors, and began his own medical practice in 1977. The Respondent has been married for sixteen years, and has two children, ages 11 and 13. The Respondent performs his family practice in a responsible manner, utilizing the prescription of narcotics and narcotic pain medications at an overall very low rate. The Respondent has never before been the subject of an investigation by the Department of Professional Regulation, and this is the first proceeding against him and his medical license. Between the dates of approximately July 1, 1980, and June 30, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrdchloride for his patient, Robert Hicks in the quantity of 4499. Between the dates of July 3, 1980, and July 3, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrochloride for his patient, James Everett, in the quantity of 4320. Between the dates of approximately July 3, 1980, and June 10, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrochloride for his patient, Harold Stacy, in the quantity of 2550. Between the dates of approximately October 2, 1980, and November 20, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrochloride, Percodan, and Tylox to his patient, Billy Carr, in the quantities of 1620, 30 and 30, respectively. Dilaudid, Percodan, and Tylox are Schedule II controlled substances pursuant to Chapter 593, Florida Statutes. The Physicians Desk Reference (PDR) states the following relative to Dilaudid: Description: DILAUDID (hydromorphone hydrochloride) (WARNING: May be habit forming), a hydrogenated keton of morphine, is a narcotic analgesic . . . * * * DRUG ABUSE AND DEPENDENCE: DILAUDID is a Schedule II narcotic. Psychic dependence, physical dependence, and tolerance may develop upon repeated administration of narcotics; therefore, DILAUDID should be prescribed and administered with caution. However, psychic dependence is unlikely to develop when DILAUDID is used for a short time for the treatment of pain. Physical dependence, the condition in which continued administration of the drug is required to prevent the appearance of a withdrawal syndrome, assumes clinically significant proportions only after several weeks of continued narcotic use, although some mild degree of physical dependency may develop after a few days of narcotic therapy. Tolerance, in which increasingly large doses are required in order to produce the same degree of analgesia, is manifested initially by shortened duration of analgesic effect, and subsequently by decreases in the intensity of analgesia. The rate of development of tolerance varies among patients. * * * Oral: The usual oral dose is 2mg. every 4 to 6 hours as necessary. The dose must be individually adjusted according to severity of pain, patient response and patient size. More severe pain may require 4mg. or more every 4 to 6 hours. If the pain increases in severity, analgesia is not adequate or tolerance occurs, a gradual increase in dosage may be required. If pain is exceedingly severe, or if prompt response is desired, parenteral DILAUDID should be used initially in adequate amounts to control the pain. The Respondent prescribed Dilaudid to patient Robert Hicks for severe chronic pain associated with multiple medical problems, primarily related to his severe degenerative rheumatoid arthritis. Mr. Hicks, 49 years of age, had a long history of multiple joint pains, degeneration of his normal joints, chronic pain in his joints, swelling and abnormal laboratory tests. He had been diagnosed as having rheumatoid arthritis since 1976 by a neurosurgeon, confirmed by blood tests and x-rays. He was classified as 100 percent disabled in 1977 by the Veterans Administration because of the chronic joint pains of rheumatoid arthritis. He had been seen by numerous doctors and treated with various pain medications including Dilaudid, which was the only drug that allowed him to function. The pains, discomfort and disability that Mr. Hicks suffered were located in most of the joints of his body, especially in his lumbosacral spine, with involvement in the left hip, shoulder areas, both knees and elbows, with swelling and deformity in the hands. Practically every joint in his body was involved. Mr. Hicks frequently used a cane for walking, and occasionally used crutches. He had difficulty in standing from a sitting position and on occasion he used a wheelchair. The Respondent tried several different medications to treat his rheumatoid arthritis, in addition to physical therapy, and used various pain medications, but Dilaudid proved to be the best when used in conjunction with treatment medications that would allow Mr. Hicks sufficient relief to work and function in a reasonably normal life-style. The Respondent prescribed 4 mg. Dilaudid tablets to Mr. Hicks, to be taken in doses within the limits recommended by the Physician's Desk Reference (PDR) in that the overall quantity prescribed for him did not exceed the maximum limit recommended by the PDR. Mr. Hicks also had other medical problems appropriately treated by the Respondent, such as subdeltoid bursitis, lateral ankylosing spondylitis, spondylolisthesis, Reiter's Syndrome, cervical spondylosis and diabetes. The Respondent prescribed Dilaudid in quantities of two pills of 4 mgs. every four hours as needed for pain, to patient James Everett for chronic severe pain stemming primarily from the lower chest wall and left upper abdominal chest wall which followed a transthoracic hiatal hernia repair performed in 1965. Mr. Everett also had angina with a history of one or two myocardial infarctions in 1970; he was on medication for the angina. The hiatal hernia repair left a surgical scar across his entire left chest, extending from the midportion of the back all the way across his chest and ending right above the stomach, at the lower part of the anterior chest wall, with another scar extending from his epigastric region down the mid-rib and into the lower midline area. During the surgical repair, Mr. Everett suffered a collapsed lung and suffered a great deal of scar tissue visible in his chest x-rays in the area where most of the pain is reported. Most of his pain resulted from the surgical scar tissue rather than the angina, as confirmed by a cardiologist. Mr. Everett was a very debilitated, elderly person, older looking than his 60 years, obese, very pale, with a slow gait; he perspired quite a bit and appeared to be a patient with chronic medical problems. Mr. Everett had been taking Dilaudid on prescription from his previous physician when he became the Respondent's patient. The quantity of Dilaudid prescribed for Mr. Everett did not exceed the maximum recommended dosage. The Respondent tried other medications and therapies to relieve the patient's chronic severe pain, with limited success, and used other methods of treatment for the patient's problems, which included diabetes and high blood pressure. Mr. Everett had been classified 100 percent disabled by the Veterans Administration because of his chronic severe pain. The Respondent concluded that Dilaudid was the only pain medication that would give the patient sufficient relief from pain to enable him to continue his employment and to function in his daily life. The Respondent prescribed Dilaudid in quantities of 2 tablets of 4 mgs. every 4 hours as needed for pain, to patient Harold Stacy for chronic severe pain relating to acute possibly pinched, nerve, lumbosacral low back pain with radiation into the left leg and degenerative arthritis, possible spinal cord tumor, early hypertrophic osteoarthritis, and possible hernitated disc. At age 49, Mr. Stacy was semi-crippled, always requiring a cane while walking and always in a great deal of pain. The hypertrophic arthritis was confirmed by calcium deposits visible on x-ray films. Mr. Stacy was never able to function normally, and could not maintain employment without the pain relief the Dilaudid provided. The Respondent used other medications in an attempt to relieve the pain, but found that Dilaudid was the only medication which would allow Mr. Stacy to work and function in as reasonable a fashion as possible. The Respondent treated Mr. Stacy's physical and health problems with an appropriate variety of treatment methods and medications. The quantity of Dilaudid prescribed for Mr. Stacy did not exceed the PDR recommended dosage. The Respondent prescribed Dilaudid, in dosages of 1-2 tablets of 4 mgs. every 4 hours, to patient Billy Carr for relief of chronic severe low back pain, related to chronic lumbosacral spine strain, chronic prostatitis and spondylolisthesis. Mr. Carr, at age 49, walked with a severe limp, had pain in his perineal area, had difficulty in sitting, and had a deformity in one of his legs due to a pseudoarthritis resulting from a malunion of a fracture of his femur. The Respondent tried several different pain medications and treatment methods, but found that Dilaudid was the only medication which would relieve the pain to allow Mr. Carr to work and enjoy as reasonable a life-style as possible. The quantity of Dilaudid prescribed for Mr. Carr did not exceed the maximum PDR recommended dosage. The Respondent is a board certified family practitioner. The Petitioner's expert witness, Dr. Robert Johnson, is a general practitioner who is not board certified. The Respondent's expert witnesses, Drs. Charles Grant, James Louttit and Clarence Bailey, are board certified in family practice and testified as such. All four expert witnesses testified, and it is so found, that a medically justifiable purpose in treating a patient is determined by the treating physician, and means a treatment which enhances the well-being of a patient and enhances the quality of a patient's life, in a manner the physician feels qualified to render. Reasonable physicians differ in the manner of treating the same condition. Reasonable physicians differ in the manner of treating pain. A person's pain is not measurable. A person's pain threshold is not measurable. One method of determining the level of medication needed to relieve a person's pain is by titration, that is, adjusting the quantity and type of medication to the patient's symptoms. Dilaudid is approved by the Federal Drug Administration for the treatment of pain. The Physician Desk Reference (PDR) does not place a cap on the quantity of Dilaudid to be prescribed for a patient in chronic moderate to severe pain. The analgesic effect of Dilaudid shortens with continued use. Some patients require a greater amount of Dilaudid to relieve pain than other patients. It is a medically justifiable purpose to prescribe Dilaudid to a patient for the relief of moderate to severe pain. It is a medically justifiable purpose to continue to prescribe Dilaudid to a patient for chronic moderate to severe pain. It is ethical, and medically justifiable, for a physician to treat a patient who is already habituated or tolerant to Dilaudid, and who has chronic moderate to severe pain, for the purpose of relieving this pain, since the patient should be given relief from the pain. There is no evidence that any of the four patients treated by the Respondent were drug abusers. It was medically justifiable for the Respondent to prescribe Dilaudid to each of his four patients during the time periods alleged in the Administrative Complaint. The quantities of Dilaudid prescribed by the Respondent to each of the four patients during the time period alleged in the Administrative Complaint were neither excessive nor inappropriate. The evidence is not sufficient to support a finding of fact that the Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonable and prudent physician as being acceptable, under the circumstances alleged in the Administrative Complaint. There is insufficient evidence to support a finding that the Respondent engaged in repeated malpractice in the treatment of the four subject patients. Dr. Robert B. Johnson, testifying on behalf of the Petitioner as an expert general practitioner, did not feel that it was medically justifiable for the Respondent to prescribe Dilaudid in the quantities alleged, to each of the four patients, and he testified that such quantities were excessive. However, Dr. Johnson neither saw nor examined the patients, and he was not able to tell from reviewing the patient records how much pain any of the four patients were experiencing. Dr. Johnson also testified that, in his opinion, it is a gross departure from acceptable medical practice to prescribe the quantities of Dilaudid in question to a patient with any history other than terminal cancer, and that it would even be a questionable practice for this purpose; that three months would be the maximum length of time Dilaudid should be prescribed to a patient; and that it is not proper for a physician to continue to treat a patient for chronic moderate to severe pain by prescription of Dilaudid in the quantities and over the time periods alleged in the complaint; yet Dr. Johnson could find no physical harm to any of the four patients resulting from the Respondent's treatment. On the basis of the records reviewed, Dr. Johnson could not testify that the Respondent prescribed the Dilaudid in question other than in the course of his medical practice. The opinions of Dr. Johnson, however, were contradicted by the expert opinions of the Respondent's medical witnesses, Drs. Hailey, Grant and Louttit, except for their agreement that the Respondent's patients suffered no physical harm from their treatment by the Respondent, and that the Respondent prescribed Dilaudid to the four subject patients in the course of his medical practice. Where the expert medical opinions are in conflict, the testimony of Dr. Johnson is rejected as less credible than the opinions of Drs. Bailey, Grant and Louttit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medical Examiners enter a Final Order finding the Respondent, Glenn R. Johnston, M.D., not guilty of Counts I, IV, VII, X and XIII in the Administrative Complaint, and that the Board dismiss the Administrative Complaint with prejudice. THIS RECOMMENDED ORDER entered this 30th day of September, 1983. WILLIAM B. THOMAS, 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 30th day of September, 1983. COPIES FURNISHED: Spiro T. Kypreos, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Paul Watson Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 83-356 GLENN R. JOHNSTON, M.D., License No. 12142 Respondent. /
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the state of Florida, having been issued license number ME 0044173. She practiced medicine in Key West, Florida, from 1985 through June 1993 when she closed her office as a result of a family problem and moved to West Virginia. She is licensed as a physician in West Virginia and currently practices medicine in that state. Respondent is Board-certified in internal medicine. In April 1993, Petitioner's pharmacy inspector responded to telephone calls from pharmacists in Key West concerning Respondent's prescribing practices by traveling to Key West and reviewing pharmacy records of Respondent's patients. One of Petitioner's investigators thereafter collected and compiled copies of computer printouts from six pharmacies listing prescriptions filled for seven of Respondent's patients. Respondent had worked at a clinic where she experienced approximately 15,000 patient visits per year. After determining that Respondent had prescribed what he considered to be an inordinate amount of controlled substances, Schedule II narcotics, the investigator wrote to Respondent advising her that an investigation had been commenced. In July, Respondent telephoned him and advised him that she had relocated to West Virginia. The investigator asked her for the medical records for the seven patients he questioned, and Respondent advised him that in conjunction with her closing her practice and relocating, she had given their medical records to approximately 500 of her patients so they could take them to other physicians and continue receiving their medical care, and those records not picked up by patients had been sent to a Dr. Garriques to be the custodian of those records. Of the seven medical records requested by the investigator, six of them had been given to the patients, and the seventh had been transferred to Dr. Garriques. Respondent admitted that she had not personally kept either the originals or copies of the medical records of her patients. The investigator subsequently telephoned Sun Belt Clinic where Respondent had worked and was told that Respondent's medical records were not there because she had given them to her patients. In December 1993, the investigator issued a subpoena to Sun Belt Clinic for Respondent's medical records and received nothing. Petitioner has made no further effort to obtain the medical records of the patients involved in this proceeding. Controlled substances are categorized by the Drug Enforcement Agency in five different schedules according to their potential for abuse. Schedule I substances are illegal. Schedule II substances, although considered highly addictive, can be prescribed by licensed physicians for medical purposes. Schedule II substances can be narcotic (opiates administered for pain) or non- narcotic. Schedule II narcotics include morphine (morphine sulfate), methadone (dolophine), dilaudid (hydromor-phone), and oxycodone (percodan and percoset). Dexedrine is also a Schedule II controlled substance. Although morphine is the most potent narcotic available in the United States, only approximately 10-20 percent of it is absorbed, when ingested. Methadone is available in government-run clinics for the treatment of heroin addiction. Methadone is also a bona fide treatment for pain. Pursuant to the statutes regulating the conduct of registered pharmacists in the state of Florida, pharmacists are not permitted to dispense methadone for addiction; rather, pharmacists can only dispense methadone as a pain medication. At least one doctor in Key West, other than Respondent, prescribes methadone for pain, and a local hospital there has begun using methadone to treat pain on an in- patient basis. L.P., one of Respondent's patients, is a narcoleptic. Narcoleptics need a stimulant, such as dexedrine or ritalin, to function normally. Before seeing Respondent, L.P. had been "worked up" at Stanford and was taking a maintenance dosage of dexedrine. Between September 11, 1992, and June 1, 1993, Respondent prescribed dexedrine, 15 mg., for L.P., the same dosage L.P. was on before and after being Respondent's patient. The amount and frequency of dexedrine prescribed by Respondent for L.P. is within the range recommended by the Physician's Desk Reference and was an appropriate treatment for L.P.'s narcolepsy. Persons suffering from chronic pain (as opposed to acute episodes of pain) for which there is no cure or treatment available that can alleviate the person's pain are said to suffer from "intractable pain." There are two types of patients who suffer from intractable pain. The first group are patients with terminal, irreversible illnesses, such as cancer patients. Physicians generally give those patients whatever narcotics they need to alleviate the pain during the end stage of their lives. The second group is composed of patients who suffer from non-terminal disease processes who have tried different specialists and treatments available without achieving relief from their chronic pain. Those persons are generally not treated in family practice settings but rather are referred to pain management centers or pain clinics, in locations where such are available, to have their pain alleviated by treatments such as receiving morphine implants or having doctors perform nerve blocks. Many physicians avoid caring for patients who require Schedule II controlled substances to alleviate their suffering. The United States Department of Health, Education and Welfare, through its Agency for Health Care Planning and Research, has established national guidelines for treatment of moderate to severe pain in cancer patients, using Schedule II narcotics. The guidelines are written as a starting dose for opiate-naive adults, i.e., adults who have never before taken opiates. The guidelines further indicate that adults who are not opiate-naive may need a stronger dose. Although none of Respondent's other five patients involved in this proceeding were cancer patients, they suffered from intractable pain. Respondent prescribed narcotics for them within the guidelines recommended to relieve intractable pain in cancer patients. The Agency for Health Care Planning and Research recommends for moderate to severe pain a starting dose of dilaudid of 6 milligrams every three to four hours with a maximum recommended dose of 24 milligrams a day. It recommends a starting dose for moderate to severe pain for methadone or dolophine of 20 milligrams every six to eight hours with a maximum of 80 milligrams a day. For morphine, Agency guidelines recommend a starting dose of 30 milligrams every three to four hours. As to those five patients discussed hereinafter, Respondent saw each of them two times a week when they came to her for their prescriptions. In that way, she was able to monitor them closely and write prescriptions for limited quantities of medication. Sometimes, she saw those patients more often since the pharmacies in Key West were not able to stock supplies of narcotics as easily as non-narcotic medications. If a patient brought a prescription for such narcotics to a pharmacy and the pharmacy had an insufficient quantity in stock to fill that prescription, the patient could go elsewhere or could take the quantity the pharmacy had in stock. Under that circumstance, the prescription for the full quantity would be cancelled, and the patient would return to Respondent to get an additional prescription in order to have the full dose prescribed by Respondent. Respondent treated J.P. for six years for migraine headaches on an indigent basis. J.P. could not afford a CAT scan, and there were no other resources in Key West available to him for further work-up at no cost. Respondent based her treatment plan on her best clinical judgment and a complete physical examination. She tried Midren and other anti-inflammatory medications first. She prescribed percoset for three or four years. She then tried dilaudid. She prescribed dilaudid, 2 mg. from March 19, 1992, through April 23, 1992. She then prescribed dilaudid, 4 mg., from April 30, 1992, through August 17, 1992. From September 3, 1992, through November 30, 1992, she prescribed dolophine, 10 mg. On December 4, 1992, she changed J.P.'s treatment, prescribing morphine, 30 mg., through January 29, 1993. Pharmacy records reflect other medications thereafter, with a prescription for 15 dilaudid, 4 mg., on March 24, 1993, followed by 8 morphine sulfate tablets, 30 mg., on May 21, 1993; 5 percoset tablets on May 31, 1993; 15 morphine sulfate tablets, 30 mg., on June 4, 1993; and 5 percodan tablets on June 7, 1993. Although J.P. filled Respondent's prescriptions at several pharmacies, for example using three different pharmacies during the month of January 1993, the total amount of medication prescribed by Respondent was within the federal Agency guidelines. Respondent's prescribing practices as to J.P. were appropriate and not excessive. Over the course of her treatment of J.P., Respondent observed him change from a "non-functional" person to a functional person who was able to hold a job as a chef when his pain was relieved. Respondent treated M.G. for AIDS-related cluster headaches, which are very intense. He was also grieving for his girlfriend who had died of AIDS. Respondent treated him with dilaudid, which made him pain-free most of the time, and, in addition, he learned relaxation techniques to help deal with his pain. Respondent maintained him on a dosage of dilaudid, 4 mg., from December 28, 1992, through early March 1993. The quantity of dilaudid prescribed by Respondent was within the federal Agency guidelines, and was appropriate and not excessive. While taking dilaudid, M.G. was able to work four days a week as a taxi dispatcher. Respondent treated C.D. for chronic severe pain resulting from connective tissue disease. C.D. also suffered from intermittent gland swelling. Respondent unsuccessfully tried numerous anti-inflammatory medications in treating C.D., and he was treated by a rheumatologist in Miami without benefit. Respondent placed him on a maintenance treatment plan of 100 mg. a day of morphine and kept him at that level. Pharmacy computer printouts reveal C.D.'s morphine treatment commencing in February of 1992 and continuing into mid-June 1993. His functioning improved so that he was able to obtain a job as a taxi driver and once again start playing his guitar in a band. The maintenance program Respondent instituted for C.D. was within the federal Agency guidelines and was appropriate. Respondent treated J.B. for six years for multiple orthopedic problems and back pain. J.B. was not opiate-naive. He had been severely abused as a child and started taking narcotics at the age of two when he suffered a broken arm and severe burns to his hand as a result of his father's behavior. Respondent wrote alternating prescriptions for methadone, dolophine, and morphine for J.B. from December of 1991 through mid-June 1993. He remained on the same dosage. When seen in the community, J.B. was clean, spoke coherently, walked in a straight line, and dressed appropriately for Key West. Although the mixture of prescriptions and the dosage amounts Respondent prescribed for J.B. were substantial, her prescribing practices for J.B. were within the federal Agency guidelines and were appropriate. Respondent treated P.P. from 1986 through 1993 for severe sinusitis. P.P. also developed severe low back pain (sciatica). Respondent took a back x- ray, administered physical therapy, and referred P.P. to a hypnotist. Respondent wrote on prescriptions which she gave to P.P. that her diagnosis was a herniated disc. Respondent started her on dilaudid, 2 mg., in February 1992 and continued that regimen through January 1993. She also prescribed percoset and valium, 5 mg., for the severe back pain and muscle spasm. She also prescribed an anti-inflammatory for the stomach upset resulting from the narcotic. Respondent's prescribing practices as to P.P. were within the federal Agency's guidelines and were appropriate. In her treatment and prescribing practices for L.P., J.P., M.G., C.D., J.B., and P.P., Respondent kept detailed records, in part due to her concern that she might become the subject of criticism by Petitioner. Such records were not, however, offered at hearing by either party. The prescribing of controlled substances to the patients involved in this proceeding was done in the course of Respondent's professional practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE and ENTERED this 1st day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 1st day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3 and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-21, 23, and 24 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's fifth unnumbered paragraph has been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth unnumbered paragraph has been rejected as being irrelevant to the issues involved herein. Respondent's first, second, third, sixth, and seventh paragraphs have been rejected as containing only argument. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Suite 210 9325 Bay Plaza Boulevard Tampa, Florida 33619 Katherine Anne Hoover, M.D. Route 2 Box 203 Lost Creek, West Virginia 26385 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace, Assistant Director Agency for Health Care Administration Suite 301 The Atrium 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Respondent, Herbert R. Slavin, M.D. (Dr. Slavin), is and has been at all times material hereto, a licensed physician, having been issued license number ME 0036889 by Petitioner, Agency for Health Care Administration, Board of Medicine, (Board). Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 458 and 455, Florida Statutes. Dilaudid is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains hydromorphone a Schedule II controlled substance listed in Chapter 893, Florida Statutes. A substance in Schedule II has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Schedule II is the second most potent category and the first category for which there is any viable medical purpose. The purpose of Dilaudid is to provide pain relief in the appropriate medical situation. The Physician's Desk Reference recommends that the usual oral dosage for Dilaudid is two milligrams every four to six hours as necessary. For more severe pain the recommendation is four milligrams or more every four to six hours. According to the Physician's Desk Reference the dosage should be individually adjusted according to severity of pain, patient response and patient size. PATIENT #1 On September 26, 1990, Patient #1, a 27 year old female, sustained injuries to her back in a motor vehicle accident. On October 22, 1990, Patient #1 underwent a MRI scan of her cervical spine which indicated moderate disc herniation extending slightly asymmetrically to the left side at the C6-7 level and which also indicated a moderate diffuse disc herniation at the C5-6 level with associated osteophytes off the adjacent vertebral end plates. On March 12, 1991, Patient #1 saw Dr. Slavin for the first time. She was complaining of low back pain secondary to the motor vehicle accident. She advised Dr. Slavin that she was taking physical therapy three times per week. Dr. Slavin performed a limited physical examination, noted that the patient's old records should be obtained, and prescribed four milligrams of Dilaudid to be taken orally every four hours. The prescription was for 180 units. On March 26, 1991, Patient #1 returned to see Dr. Slavin, stating that she had chest congestion, a cough, and some numbness in the back of the right leg. She indicated that her prescription for Dilaudid had been stolen along with her purse on March 13, 1991. Dr. Slavin diagnosed bronchitis, gave her a prescription for an antibiotic, and gave her a prescription for Dilaudid to replace the one that was stolen. On April 11, 1991, Patient #1 visited Dr. Slavin for the purpose of getting the prescription for Dilaudid refilled. Dr. Slavin did not prescribe a refill because it was too soon since he had given the prescription. Patient #1 signed an acknowledgment dated April 11, 1991 that she was not a Dilaudid addict, that she was taking Dilaudid to control pain caused by a herniated disc, which was originally diagnosed in September, 1990, that she had tried other medications and found Dilaudid to control the pain with the least side effects, that she understood that Dilaudid was an addictive substance, and that she understood that it was unlawful for the drug to be transferred to or be used by anyone other than the person named on the prescription. On April 25, 1991, Patient #1 again came to Dr. Slavin for a refill on the prescription for Dilaudid. Dr. Slavin prescribed a refill for the same dosage. He noted in the progress notes that he was planning to obtain the patient's old records. Based on the patient's file, Dr. Slavin did receive a report from Dr. Lichstrahl, an orthopedic specialist who had seen Patient #1 in October, 1990 and who had diagnosed the herniated disc. Patient #1's file also contained a report dated March 25, 1991, from Dr. Paul Ginsberg, a specialist in neurology. On May 20, 1991, Patient #1 came back to see Dr. Slavin for a prescription to refill the Dilaudid. Dr. Slavin did prescribe a refill at the same dosage. On June 24, 1991, Patient #1 returned to Dr. Slavin for a refill of the Dilaudid. In his progress notes, Dr. Slavin noted that there was a decreased range of motion in all directions for her neck. He prescribed a refill at the same dosage for the Dilaudid and also prescribed Feldene. Dr. Slavin's office received information from an anonymous source that Patient #1 was receiving Dilaudid from other doctors. This information was verified. Dr. Slavin's office notified Patient #1 that he would no longer prescribe narcotic medication to her. PATIENT #2 On April 10, 1991, Patient #2, a 47 year old male, came to Dr. Slavin with a history of laminectomy and two herniated discs from accidents that occurred several years prior to the visit. Patient #2 indicated that he had been taking Dilaudid for the last six months, which allowed him to work with the pain. Patient #2 was waiting to have surgery until his health insurance became effective. Medical records furnished by the patient indicated that in 1988 Dr. Kernish had diagnosed a peripheral iliac bulge at L5-S1 and L-4-5 with a probable left posterolateral herniation at L5-S1 causing marked foraminal encroachment. Dr. Slavin noted in the progress notes that on the patient's initial visit, the patient was in distress secondary to back pain. Dr. Slavin prescribed four milligrams of Dilaudid to be taken orally every four hours, the same dosage which the patient had been taking. The prescription was for 180 units. Patient #2 signed an acknowledgment dated April 10, 1991, that he was not a Dilaudid addict, that he was currently taking Dilaudid for the control of pain related to herniated discs which were diagnosed in 1988, that he had tried other medications but found that Dilaudid controlled his pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or be used by anyone other than the person named on the prescription. On May 20, 1991, Patient #2 came to Dr. Slavin for a prescription to refill the Dilaudid. The progress notes indicated that the patient was scheduled for surgery in July. Again Dr. Slavin noted that Patient #2 was in distress secondary to back pain. Dr. Slavin prescribed a refill of Dilaudid at the same dosage. On June 25, 1991, Patient #2 again came to Dr. Slavin for a refill of Dilaudid. Again Dr. Slavin noted that the patient was contemplating surgery when his insurance became effective and that the patient was in distress secondary to back pain. Dr. Slavin prescribed 40 units of four milligrams of Dilaudid to be taken orally every four hours. The medication sheet in the patient's file indicates that Dr. Slavin prescribed 40 units at the same dosage on July 3 and 10, 1991. By memorandum dated July 3, 1991, Dr. Rosenberg advised Dr. Slavin that the radiographic views of Patient #2's spine indicated discogenic disease L4-L5, L5-S1. PATIENT #3 On April 24, 1991, Patient #3, a 64 year old female visited Dr. Slavin, complaining of shortness of breath, lower back pain, chest pain, and headaches. Her medical history indicated peripheral vascular disease, anemia, arthritis, liver dysfuntion, and left ventricular hypertrophy. In 1990, another doctor had prescribed four milligrams of Dilaudid as needed as well as other medications. Dr. Slavin scheduled the patient for blood tests , x-rays, and other tests. Dr. Slavin prescribed, among other medications, 120 units of four milligrams of Dilaudid. On April 24, 1991, Patient #3 signed an acknowledgment that she was not an Dilaudid addict, was currently taking Dilaudid for control of back pain secondary to a fall in 1982, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred or used by anyone other than the person named on the prescription. Patient #3 was recalled to Dr. Slavin's office on May 1, 1991 for further testing because of anemia. No prescriptions were given and the patient was scheduled for an office visit in one week. Patient #3 was seen again on May 9, 1991. No prescriptions were given. A bone survey was planned and the patient was to return after the tests. On May 22, 1991, Patient #3 returned for a refill of medications and to get the results of the bone survey. The bone survey had not been returned so an office visit was scheduled for a week later to review the bone survey. Dr. Slavin prescribed 120 units of four milligrams of Dilaudid. Patient #3 returned on June 4, 1991 for the follow up on the bone survey. Dr. Slavin planned to refer her to Dr. Kalman, an oncologist. No medications were prescribed. On June 24, 1991, Patient #3 returned for a refill of medication. The progress notes do not reflect whether Dr. Slavin prescribed any refills. The patient had not made an appointment with Dr. Kalman and she was reminded that it was important to do so. Dr. Slavin noted on the progress notes that the x-rays showed a disc narrowing at L4-5. The impression of the radiologist was degenerative disc disease at L4-L5. Dr. Slavin ordered a CT scan of the lumbar spine. By letter dated July 1, 1991, Dr. Robbins advised the CT scan indicated that Patient #3 had a slight narrowing at the L4-L5 intervertebral disc space, but there was no definite evidence of herniated disc or spinal stenosis. On July 19, 1991, Patient #3 returned to Dr. Slavin for a follow up visit. She was to see Dr. Kalman and return to Dr. Slavin in one month. The progress notes do not indicate whether any medications were prescribed. By letter dated July 31, 1991, Dr. Kalman advised Dr. Slavin that he had examined Patient #3. He indicated that results of some of the tests were still pending. By letter dated August 6, 1991, Dr. Kalman advised Dr. Slavin of the test results. Dr. Kalman suspected that Patient #3 had anemia of chronic disease secondary to rheumatoid arthritis. He further stated: "The markedly elevated rheumatoid factor titer as well as the markedly elevated sedimentation rate suggest extremely active disease and likely accounts for the patient's back pains." Dr. Kalman indicated the patient had not returned for a follow up visit. By letter dated August 16, 1991, Dr. Kalman advised Dr. Slavin that the patient had cancelled a number of follow up visits. Dr. Kalman had advised her by telephone that she may have an active case of rheumatoid arthritis and that she should return to Dr. Slavin. On August 20, 1991, Patient #3 made an office visit for follow up of medical problems and a refill of the pain medication. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and some vitamins. The patient was to return in one month. On September 24, 1991, Patient #3 returned for a follow up visit, refill of her pain medication, and due to pain in her left eye. Dr. Slavin prescribed Dilaudid at the same dosage and some drops for her eyes. She was to return in one month. On October 25, 1991, Patient #3 returned for a follow up visit. Dr. Slavin prescribed the same dosage of Dilaudid as on the previous visit. She was to return in one month. On November 25, 1991, Patient #3 came to Dr. Slavin for a follow up visit. He prescribed the same dosage of Dilaudid. She was scheduled for a visit in one month. On December 12, 1991, Patient #3 visited Dr. Slavin to get a refill of Dilaudid, stating that she had dropped the last thirty pills down the sink. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and 100 units of 40 milligrams of Lasix. PATIENT #4 On March 4, 1991, Patient #4, a 44 year old male, saw Dr. Slavin and complained of chest congestion, sores on the scalp, and pain in the left hand in the area where he had previously suffered severe burn and traumatic amputation of the left fifth finger. Dr. Slavin noted that the lungs were clear to auscultation with good breath sounds bilaterally. Dr. Slavin diagnosed bronchitis, impetigo, and phantom pain. He prescribed augmentin. On March 26, 1991, Patient #4 returned for a refill of pain medication and because he was still experiencing chest congestion. Dr. Slavin diagnosed chronic pain syndrome and bronchitis. He prescribed 180 units of four milligrams of Dilaudid and erthromycin, an antibiotic. On April 24, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication and because he had sores on his scalp associated with broken hair shafts. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Lotrisone cream. On April 24, 1991, Patient #4 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of pain in his left hand caused by an injury in 1976, had tried other medications but found that Dilaudid was the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 30, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On July 2, 1991, Dr. Slavin saw Patient #4 for a refill of the pain medication. Dr. Slavin diagnosed chronic pain syndrome, ulnar neuropathy and hypertension. He prescribed 90 units of Dilaudid and Hytrin. The patient was to return in two weeks to have his blood pressure rechecked. On July 30, 1991, Patient #4 returned for a refill of his pain medication. His blood pressure was lower than the previous visit. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On September 3, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams and noted that the patient was trying to diminish his dosage frequency. On November 26, 1991, Patient #4 returned for a refill of Dilaudid and complained of an infected wound on his left elbow. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid, Lotrisone Cream, and Duricef. On December 24, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. PATIENT #5 On April 5, 1991, Patient #5, a 28 year old male saw Dr. Slavin for pain in his lower to middle back which recently had been exacerbated by a fall off a curb while he was in his wheelchair. Patient #5 has been a paraplegic since 1989 as a result of a gunshot wound. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Cipro. Dr. Slavin noted on the problem list that Patient # 5 had chronic urinary infections. It could not be determined from the records whether Patient #5 had an urinary infection when he initially presented himself to Dr. Slavin. Cipro and Bactrim are drugs which are used to treat urinary infections. Patient #5 returned to see Dr. Slavin on April 23, 1991. He was complaining of having dark red blood from his rectum on one occasion, pain in the lower part of his abdomen, and not having a bowel movement in the last two days. Dr. Slavin advised the patient to have an enema and to take a laxative. The doctor also prescribed 180 units of 4 milligrams of Dilaudid, Cipro, Bactrim, and Valium. Under normal circumstances a physician would at least examine the rectal area and check the patient's stool. Dr. Slavin did neither. Patient #5 signed an acknowledgment dated April 23, 1991, stating that he was not a Dilaudid addict, that he was currently taking Dilaudid for back pain, that he had tried other medications and found that Dilaudid controlled the pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 14, 1991, Patient #5 again saw Dr. Slavin. The patient indicated that he would be out of town for six weeks and needed to have the pain medication refilled. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. The medical records contain no mention of the previous blood in the rectum. The matter, thus, remained medically unresolved as to what the issues were, whether they were addressed, and what the follow-up was, if any. PATIENT #6 On May 1, 1991, Patient #6, a 40 year old male, saw Dr. Slavin and complained of back pain secondary to an injury in 1981 which caused spinal stenosis with neurogenic claudication pain. The patient had presented to Dr. Slavin a letter dated November 16, 1987 from the Department of Labor and Employment Security, advising Patient #6 that he had been adjudicated as permanently and totally disabled; a neurologic report dated July 28, 1982; and a radiology consultation report dated August 5, 1987. Dr. Slavin noted on the patient's progress notes that myelogram indicated a defect at the L3-4 disc level. He also noted that the patient had a surgical scar over the LS spine. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid, and Robaxin. On May 1, 1991, Patient #6 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of back pain caused by spinal stenosis sustained in a work related injury in 1981 when he fell 18 feet in a sitting position, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. Dr. Slavin again saw Patient #6 on June 3, 1991, and prescribed 120 units of 4 milligrams of Dilaudid for chronic low back pain. The doctor noted that he planned to repeat the MRI of the LS spine. On July 3, 1991, Patient #6 returned for a refill of his medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid and Robaxin. On July 22, 1991, Dr. Slavin again saw Patient #6 for a refill of the pain medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid. Dr. Slavin saw Patient #6 on August 20, 1991 for a refill of the pain medication. The doctor noted in the progress notes that the patient had extensive hypertrophic and degenerative bone and disc disease at virtually all levels of the LS spine. He prescribed 120 units of 4 milligrams of Dilaudid. On September 19, October 23, November 22, and December 20, 1991, Patient #6 visited Dr. Slavin for a refill of his pain medication. On each occasion, Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, and 24 of the Administrative Complaint, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records to justify the course of treatment for Patient #1 and Patient #5, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances in the treatment of Patient #5, imposing an Administrative fine of $1,000 for each violation (total of $3,000), placing Herbert R. Slavin, M.D. on probation for one year during which time the records of Dr. Slavin shall be monitored by a monitoring physician approved by the Board of Medicine, and requiring that Herbert R. Slavin, M.D. be required to attend Category I continuing education course in Risk Management and Medical Records. DONE AND ENTERED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3931 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted in substance. Paragraphs 5-6: Rejected as unnecessary. Paragraph 7: Accepted in substance. Paragraphs 8-11: Rejected as unnecessary. Paragraphs 12-14: Accepted in substance. Paragraph 15: Rejected that there was no orthopedic examination; the medical records do not indicate whether there was one or not. Rejected that the neurological examination was questionable. The remainder of the paragraph is accepted in substance. Paragraphs 16-17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraphs 19-20: Rejected as not supported by clear and convincing evidence. Paragraphs 21-23: Accepted in substance. Paragraph 24: The second sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance. Paragraph 25: Accepted in substance. Paragraph 26: Accepted that Slavin continued to prescribe Dilaudid. Rejected as unnecessary the remainder of the paragraph. The radiographic views of the patient's spine indicated discogenic disc disease. Paragraphs 27-30: Rejected as not established by clear and convincing evidence. Paragraph 31: Accepted in substance. Paragraph 32: Rejected as not supported by the record that he performed a sparse medical history. The remainder of the paragraph is accepted in substance. Paragraphs 33-34: Accepted in substance. Paragraphs 35-38: Rejected as not established by clear and convincing evidence. Paragraph 40: Accepted in substance. Paragraph 41: The last sentence is accepted in substance. The first sentence is rejected as subordinate to the facts actually found. Paragraph 42: The first sentence is accepted in substance. The last sentence is rejected as subordinate to the facts actually found. Paragraph 43: Accepted in substance. Paragraphs 44-45: Rejected as subordinate to the facts actually found. Paragraph 46: Accepted in substance. Paragraphs 47-50: Rejected as not supported by clear and convincing evidence. Paragraphs 51-52: Accepted in substance. Paragraph 53: Rejected as not supported by the medical records except as to the orthopedic examination for which there is no mention in the medical records. Paragraph 54: Accepted to the extent that the medical records do not clearly establish that the patient was suffering from an urinary infection, although it was listed on the problem list. Cipro can be used to treat an urinary infection. Paragraph 55: Accepted in substance. Paragraph 56: See response to paragraph 54. Paragraphs 57-59: Accepted in substance. Paragraphs 60-61: Rejected as not supported by clear and convincing evidence. Paragraphs 62-63: Accepted in substance except as to the date 1882, which should be 1982. Paragraph 64: The first sentence is accepted except as to height which is subordinate to the facts actually found. The second sentence reference to temperature is accepted. The remainder of the second sentence is rejected as not supported by the record, the record indicates that Dr. Slavin also considered a more recent myleogram which confirmed the problems at L3-L4 disc levels. The last sentence is rejected as subordinate to the facts actually found. Paragraph 65-69: Rejected as not supported by clear and convincing evidence. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraphs 2-10: These paragraphs relate to the motion to stay, which is ruled on in a separate order. Paragraph 11: Accepted that Dr. Gillett was tendered and excepted as an expert in the field of internal medicine. Rejected that the doctor was provisionally accepted. Paragraph 12: Rejected as subordinate to the facts actually found. Paragraphs 13-17: Accepted in substance. Paragraph 18: The first sentence is accepted in substance. The second sentence is accepted to the extent that some physicians limit their practice to chronic pain management but rejected to the extent that it is subordinate to the facts found since there was not competent evidence presented that Dr. Slavin holds himself out to be a specialist in chronic pain management. Dr. Gillet assumed that to be so but had no evidence as to that fact. Dr. Brady thought that Dr. Slavin was a family practice physician. Paragraph 19: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. Paragraph 20: Accepted in substance. Paragraph 21: Accepted in substance as it relates to all but Patient #s 1 and 5. Rejected as to Patient #s 1 and 5 as not supported by the evidence. Paragraph 22: The first and last parts of the first sentence are accepted in substance. The middle part of the first sentence is rejected as not supported by the record. Paragraphs 23-24: Rejected as subordinate to the facts actually found. Paragraph 25: Accepted in substance as it relates to all patients except #s 1 and 5. Rejected as not supported by the evidence as it relates to Patient #s 1 and 5. Paragraphs 26 and 27: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Albert Peacock, Esquire Agency For Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Charles L. Curtis 1177 Southeast Third Avenue Fort Lauderdale, Florida 33316 Andrea L. Wolfson, Esquire Suite 314 4491 South State Road 7 David, Florida 33314 Arthur C. Wallberg Assistant Attorney General Office of the Attorney General PL-01 The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Board of Medical Examiners enter a final order dismissing the charges against Dr. Santos on the merits and with prejudice. DONE and ENTERED this 30th day of March 1984, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of March 1984.
