Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent Martin Kasner was licensed to practice medicine in the State of Florida having been issued license number ME0031141 on August 24, 1977. At all time pertinent to this proceeding, Respondent maintained an office at 1911 North Andrews Avenue, Wilton Manors, Florida 33311. There is no evidence that Petitioner has ever been the subject of prior disciplinary action by the Petitioner, Department of Professional Regulation, Board of Medicine ("the Board"). On June 7, 1988, Detective Robert Trawinski of the Broward County Sheriff's Office visited Respondent's office in an undercover capacity posing as a new patient identifying himself as Robert Conti. Detective Trawinski had never previously worked in an undercover capacity in a doctor's office. Prior to Detective Trawinski's June 7, 1988 visit to the Respondent's office, Detective Trawinski met with Sergeant Clukey of the narcotics division of the Broward County Sheriff's Office and Mel Waxman, an investigator for the Petitioner. Detective Trawinski was instructed to try to obtain a prescription for Valium from the Respondent without giving any valid medical purpose. Valium or Diazepam is a Schedule IV controlled substance that is not an analgesic, but is a potent tranquilizer and skeletal muscle relaxant which can have adverse effects on sensorium. It is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. Individual patients taking Valium can become dependent on the drug and withdrawal from addiction to the drug can lead to potentially life-threatening health problems. Detective Trawinski was not advised as to all of the potentially acceptable medical purposes for which Valium could be used. He understood his instructions to mean that he should not voice any complaint of pain. Prior to seeing the Respondent during this first visit, Detective Trawinski filled out a medical questionnaire in Respondent's office using the fictitious name Bob Conti. In filling out the questionnaire, Detective Trawinski did not state any specific medical complaints. The patient's blood pressure was taken by a nurse in the office and recorded at 150/84. That reading tends to confirm the patient's subsequent complaint of anxiety. During the June 7, 1988 visit, Detective Trawinski advised Respondent that he was having problems performing sexually and was experiencing some anxiety as a result of job and family problems. Detective Trawinski also advised the Respondent that he had previously obtained prescriptions for Valium from a doctor up north and the drug had helped calm him down. Detective Trawinski advised the Respondent that the Valium he had previously been taking relaxed him and alleviated many of the symptoms of which he was complaining. During this first visit, the Respondent took a limited medical history from the patient including questions regarding possible alternative sources of the patient's complaints such as diabetes and thyroid problems. The patient denied a history of any such possible alternative causes for his symptoms. During the first visit, the Respondent made preliminary overtures towards conducting a physical examination of the patient. However, the detective told the doctor he did not want a physical. Respondent advised the Petitioner that he should consider having a blood work-up, but the Respondent indicated that because the tests were so expensive, the patient could wait until he had the money. At the conclusion of the June 7, 1988 visit, the Respondent issued a prescription to Detective Trawinski for 30 ten milligram Valium tablets with the ability to refill the prescription three times. The patient was advised to take two Valium per day as needed and one at night as a sleeping pill. At the time of the first visit, Detective Trawinski did not know the therapeutic use for Valium and was not advised of the appropriate use for Valium by his superiors. In actuality, a prescription for Valium was not inappropriate for the patient given his high blood pressure, complaints of anxiety and minor sexual dysfunction which could have been related to anxiety. Detective Trawinski returned for a second visit to the Respondent's office seventeen days later on June 24, 1988 at which time the patient's blood pressure was recorded at 164/80 which could reflect anxiety on the part of the patient. During this second visit, the Respondent questioned the patient regarding his appetite and medical history. Detective Trawinski denied a history of thyroid trouble, hayfever, etc. The Respondent conducted a limited physical examination of the patient checking his lungs and his heart rate. During the June 24 visit, Detective Trawinski advised the doctor that, while he still had some anxious moments, the prescription for Valium was helping him. The Respondent asked the patient whether he had any Valium left. The patient responded that he did not have any and also advised the Respondent that he was taking the Valium as directed and was not sharing them with anyone else. At the conclusion of the second visit, the Respondent provided the patient with a prescription for 50 Valium tablets with two refills. While the medical records of Detective Trawinski's first and second visit are sketchy at best, the Valium prescriptions issued on these two occasions do not fall beneath the standard of a reasonably prudent physician under the circumstances. The third visit by Detective Trawinski to Respondent's office took place twelve days later on July 6, 1988. During that visit, the detective advised the Respondent that the reason the Valium were going so quickly was because he was sharing the prescription with his wife. Detective Trawinski attempted to obtain from Respondent a separate prescription for Valium for his wife. Detective Trawinski offered to pay Respondent the amount of an additional office visit if Respondent would issue a prescription in his wife's name. However, Respondent refused to accept the additional money or issue a prescription in the wife's name without seeing her. The Respondent stated that he would need to take a medical history and conduct a physical examination prior to prescribing anything for the patient's wife. The Respondent advised Detective Trawinski that his wife should not be taking prescription drugs without having seen a doctor and that, although the prescription seem to be working for him, it may not necessarily be good for his wife. The Respondent advised the patient that, while his wife could take a few of his Valium until she could make an appointment to see the doctor, an appointment should be made as soon as possible and that no one should take prescription medication without being seen by the doctor. Notwithstanding the cautionary statements to the patient regarding sharing the drug, at the conclusion of the third visit, Respondent increased the patient's prescription for Valium from 50 tablets to 100 tablets with 1 refill. In fact, Respondent originally made out the prescription for 50 tablets. However, after being advised that the patient was sharing the pills with his wife, the prescription was increased to 100 tablets. By increasing the prescription in this manner, the Respondent was excessively prescribing a controlled substance and fell below the standard of care expected in this community of a reasonably prudent similar physician under similar circumstances. On July 13, 1988, Detective Trawinski returned to Respondent's office with Deputy Somerall of the Broward Sheriff's Office posing as his wife, Jeanette Conti. Upon arriving at the doctor's office, Deputy Somerall was weighed and her blood pressure was taken. In addition, the doctor performed a limited physical examination including listening to her heart and lungs with a stethoscope. The Respondent took a limited medical history from Deputy Somerall and she stated that she was suffering from stress and that Valium seemed to relieve it. Deputy Somerall advised the Respondent that she had been taking some of the Valium prescribed for her purported husband. In response to questioning by the Respondent, Deputy Somerall stated that she took the Valium on an as needed basis and it did not cause her to be drowsy and seemed to relieve the stress and anxiety she sometimes experienced towards the end of the visit, the Respondent indicated he would issue a separate prescription for Valium for Deputy Somerall and stated that he did not want her taking pills from her husband without her seeing a doctor first. The Respondent issued a prescription in the name of Jeanette Conti for 30 ten milligram Valium tablets with two refills permitted. During the July 13, 1988 visit, the Respondent inquired of Detective Trawinski whether his prescriptions were holding out. After Detective Trawinski indicated that he needed additional prescriptions, the Respondent issued a new prescription in the name of Bob Conti for 100 ten milligram Valium tablets. No refills were indicated. During this fourth visit, Detective Trawinski told the Respondent that he had tried some Percodan and had enjoyed it. He indicated that the drug had helped him to perform sexually and requested the doctor to issue him a prescription for that drug. Percodan is a Schedule II Controlled Substance which is used to relieve moderate to severe pain. It is an opiate narcotic and can be addictive. At the conclusion of this fourth visit, the Respondent issued a prescription to Detective Trawinski for 30 Percodan tablets. The prescription did not provide for any refills. No valid medical reason was provided for the issuance of the Percodan prescription. While Respondent contends that the patient had previously complained of back pain and a prescription for Percodan was issued for that reason, no competent evidence was presented to establish that Detective Trawinski had ever made a serious complaint about back pain. Therefore, the Respondent fell below the standard of care expected of a reasonably prudent physician in this community by issuing the Percodan prescription. Likewise, the issuance of additional prescriptions for Valium in the name of Bob Conti was excessive when considered together with the previous prescriptions issued. Pharmacists in Broward County will sometimes contact a physician to advise him if a patient is attempting to refill a prescription sooner than it should be refilled. The Respondent was never contacted by any pharmacist or advised that his patients were attempting to refill their prescriptions sooner than they should and there is no indication that the Respondent was ever advised that all of the refills allowed under the prescriptions were obtained by the patient. Patients often overlook the ability to refill a prescription and return to the doctor for a new prescription. The Respondent specifically advised Detective Trawinski during one of the visits that he could get the prescriptions refilled without returning to see the doctor. This statement indicates that the Respondent assumed that the patient had not sought all the refills of the earlier prescriptions. While the Respondent might have assumed that the patient had not sought all the refills provided, the Respondent should have been more cautious about issuing so many prescriptions with refills permitted within such a short period of time. However, at no time was the Respondent informed or led to believe that the patient was selling the drugs to others. Although both patients were seen by the doctor and issued prescriptions during the July 13 visit, they were only charged Respondent's typical rate for a single visit, $30.00. On July 19, 1988, both Detective Trawinski and Deputy Somerall returned to the Respondent's office. During this visit, Deputy Somerall advised Respondent she had taken some of the Percodan prescribed for her purported husband and requested a prescription of her own. Deputy Somerall told the Respondent that she was using the drug as an aphrodisiac. Detective Trawinski advised the doctor that he was taking four Percodan per day because it made him feel good. Detective Trawinski advised Respondent that he did not have any Percodan remaining because he had used it during a party with another couple. The Respondent lectured both patients about the dangers of Percodan and told them that the drug was habit forming and should not be taken for recreational purposes. Respondent expressed surprise that the drug was serving as an aphrodisiac for the patients. While Respondent indicated he was reluctant to issue a new prescription for Percodan, he stated that the drug seemed to be providing some benefits to the patients and ultimately issued a prescription in the name of Bob Conti for an additional 30 Percodan tablets. Respondent would not issue a prescription for Percodan in the name of Jeanette Conti. Furthermore, when Detective Trawinski inquired about making an appointment for his brother-in-law to see the Respondent, the Respondent replied that if the intention was to obtain Percodan, he did not want to see the patient. However, he indicated he would be willing to see the brother-in-law if he was simply seeking a prescription for Valium. At no time did the Respondent adequately inform the patients regarding the synergistic effects of the use of Percodan and Valium nor did he adequately explain the risks associated with combining these drugs with alcohol or other substances. Moreover, Respondent failed to explore the possibility that the prescriptions he issued were increasing or exacerbating existing dependency by these Patients on the drugs involved. On July 25, 1988, Detective Trawinski returned to Respondent's office and requested that his prescriptions be renewed. The patient denied any medical complaints and there is no indication that any physical examination was conducted by Respondent. In response to Respondent's inquiries, Detective Trawinski indicated that he was following the Respondent's previous advice and use of the Percodan was "under control." At the conclusion of the July 25 visit, Respondent issued a prescription in the name of Bob Conti for 30 Percodan "for pain" and 50 Valium tablets. One refill was provided for the Valium prescription. No refills were indicated for the Percodan prescription. No valid medical reasons were provided for the prescriptions that were issued following the July 25 visit. There is no evidence indicating any pecuniary gain by the Respondent for writing any of the prescriptions in question. The only remuneration received by Respondent was his typical $30.00 office charge per visit. The written medical records which the Respondent maintained fail to adequately justify the course of treatment of the patients known to Respondent as Bob and Jeanette Conti (collectively referred to as the "Patients"). The records do not reflect repeated evaluation of the persistent symptoms or adequate evaluation and follow-up of the results of medication, either as to effectiveness or possible side effects such as dependency. Respondent's record-keeping with regard to the Patients falls below the acceptable standard. The records fail to include an adequate patient history and initial assessment of the Patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the Patient's background. In several instances, the Respondent's only notation of treatment is a listing of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken, especially with respect to the prescriptions for Percodan. The Respondent's medical records for patient Bob Conti contain a very limited patient history and general background information. For this patient's first two visits, there is a brief notation which includes the patient's blood pressure and weight. On the first three visits, there is a diagnosis of "chronic anxiety" without any further discussion. On the final three visits, only the medication prescribed is noted. The patient's records for these three last visits contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from Bob Conti's medical records the reason that Percodan was prescribed. The Respondent's medical records on the patient Jeanette Conti are similar to those previously described for patient Bob Conti. The office visit notes list no patient complaints or symptoms and no medical diagnosis or comprehensive assessments. While Respondent's counsel suggested that Respondent intended to supplement the medical records with additional information at a later date, no competent evidence was presented to support this claim. The Respondent was examined and tested by a psychiatric expert Dr. Klass. The results of the psychiatric examination indicate that the Respondent is not corrupt, but that he is corruptible, i.e., easily manipulated and overly compliant.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order which finds Respondent guilty of the violations alleged in Count One, Three and Four of the Administrative Complaint, dismisses Counts Two and Five, imposes an administrative fine in the amount $5000.00 and suspends Respondent's license for a period of two years followed by a three (3) year term of probation during which time Respondent's prescribing practices should be closely monitored. DONE and ORDERED this 3 day of May, 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 3 day of May, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 4-33. Subordinate to Findings of Fact 23, 24, 26, 29, 31 and 32. Rejected as constituting argument and a summary of testimony rather than a finding of fact. Rejected as constituting argument and a summary of testimony rather than a finding of fact. This subject matter is covered in Findings of Fact 34-37. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. The first sentence is adopted in substance in Findings of Fact 33. The second sentence is adopted in part in Finding of Fact 27. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Subordinate to Findings of Fact 34-37. Rejected as irrelevant. No evidence was presented to establish that the Respondent intended to further supplement the medical records. Rejected as not constituting a finding of fact. Subordinate to Findings of Fact 4-7 and 12. Rejected as a summary of testimony rather than a finding of fact. This subject area is covered in Findings of Fact 6-10. Subordinate to Findings of Fact 16. Rejected as a summary of testimony rather than a finding of fact. This subject area is addressed in Findings of Fact 27. Rejected as irrelevant and because it is merely a summary of testimony rather than a finding of fact. Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 27. Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 16. Subordinate to Findings of Fact 13-15. Subordinate to Findings of Fact 17 - 19. Rejected as constituting argument rather than a finding of fact. This subject area is addressed in Findings of Fact 19. Subordinate to Findings of Fact 20-23, 25, 26, and 28. Subordinate to Findings of Fact 29. Subordinate to Findings of Fact 30-33. Rejected as constituting argument and a summary of testimony rather than a finding of fact. Rejected as constituting argument. Rejected as constituting argument. Subordinate to Findings of Fact 38. 30. (SIC) Rejected as constituting argument. COPIES FURNISHED: Joseph Harrison, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 C. Craig Stella, Esquire Attorney at Law 200 S. Andrews Avenue Suite 300 Mercede City Center Fort Lauderdale, Florida 33301 Kenneth E. Easely General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact At all times pertinent to the issues herein, the Board of Medicine was the state agency responsible for the licensing of physicians and the regulation of the practice of medicine in this state. Respondent was licensed as a physician in Florida and holds license number ME 0017915. He practices medicine, specializing in psychiatry, in Clearwater, Florida. He is board certified in that specialty. On September 7, 1987, Patient #1, a 55 year old married female, whose husband had recently separated from many years in the armed service of the United States, came to see Respondent at his office, complaining of severe headaches, loneliness, depression, and a lowering of self esteem. She had been referred to him by physicians at the U.S. Coast Guard Station Dispensary. Respondent examined Patient #1 and found her to be of limited intelligence, considerably overweight, anxious, depressed and confused. She was ashamed of her new status in life as a result of her husband's inability to find work and was experiencing difficulties with him and her children. She was suffering from severe insomnia. Respondent's examination of Patient #1 was limited. He was satisfied with the medical work-up which had been conducted by his colleagues at the Dispensary. Because he was consulting psychiatrist for that facility, he knew all the physicians there and was familiar with the caliber of their work. Based on the medical information furnished him from the Dispensary and his own examination, he diagnosed Patient #1 as suffering a major depression and a psychogenic pain disorder manifested by headaches and insomnia. He developed a treatment plan for the patient which included a wide variety of psychotherapy interventions, the first of which was to effect relief of the symptoms. This included clarification of relationships, interpretation of dreams and fantasies, and allowed for catharsis. When Respondent found out that empathy and intervention alone would not work on this patient, and he had established a relationship with her, he started psychotropic medications including Elavil, the drug of choice for this type of condition in 1988. Elavil is a "superb" antidepressant. While the antidepressant factor is "cranking in", the medication also works as a sedative. For this reason, it is normally prescribed for administration at bedtime. Patient #1 responded to this course of treatment and she and the Respondent established a good and friendly working relationship, which he noted in his April 4, 1988 letter and treatment report to the Coast Guard and to CHAMPUS. In that treatment report, however, Respondent noted Patient #1 had a suicidal ideation. The term "suicidal ideation" does not import that the patient was, at that time, seriously considering suicide. Her mentioning suicide was but an overcompensation - more an alerting statement of depression and sadness with emptiness and angst. She never indicated to Respondent any thought of or plan to commit suicide. Patient #1 thrived for many months in Respondent's therapy. She complained often of her impoverished condition, however, and as a result, he wrote prescriptions for her in such a way that they could be filled at the Coast Guard dispensary without charge. This required writing prescriptions for more tablets of a drug at a lower strength which was stocked by the Dispensary. It was a surprise to him to learn, later on, that she was filling her prescriptions at Eckerds. Throughout the period he treated her, Dr. Fireman prescribed psychotropic drugs for Patient #1, which consisted primarily of amitriptyline, (Elavil), and butalbital, (Fiorinal), in varying strengths, and, at times, in compounds with other substances. As was noted previously, Elavil is an antidepressant with sedative effects. The recommended daily dose for a patient in an outpatient setting is indicated as 150 mg by the Physicians' Desk Reference, (PDR), which also recommends suicidal patients not be allowed unrestricted access to it because of the danger of intentional overdose. Other qualified psychiatrists who testified, including Dr. Spreyhe and Dr. El Yousef, indicate up to 300 or even 350 mg/day may be appropriate. As Dr. Spreyhe noted, it is not so much the daily dose on any given day which is pertinent but the aliquot over an extended period. In that regard, he notes, Dr. Fireman's prescriptions for both Elavil and Fiorinal were within recommended maximums and, therefore, within the appropriate standard of care. Fiorinal is a barbiturate anti-anxiety agent and muscle relaxant with habit forming potential. Fiorinal #3 contains codeine, a legend drug and narcotic. Generally, according to Dr. El Yousef, it should be dispensed for use at a rate of between 8 to 12 tablets per day over the short term, but over a 9 month period he would prescribe between 4 and 9 tablets per day. Pharmacy records indicate that over the period he treated patient #1, Respondent gave her numerous prescriptions for both Elavil and Fiorinal which, at first glance, appear to be excessive. For example, the records reflect that on December 29, 1987, Respondent wrote prescription number 390073 for 100 Elavil 25 mg tablets. Though the prescription clearly indicates no refills were authorized, and the back of the prescription form, where refills are noted by the pharmacist, fails to reflect any refills were authorized by the physician, the pharmacy records indicate two additional dispensings by the pharmacy for 100 tablets each on January 11 and April 20, 1988. There is no evidence to indicate how these additional fillings came about; who arranged for them, or who received them. On February 22, 1988, Respondent wrote prescription number 394289 to the patient for 12 Fiorinal #3 tablets. Again the prescription form authorizes no refills and the back of the prescription form indicates but one coordinated refill but the pharmacy records show the prescription was filled twice - once on April 6, 1988 and once on April 23, 1998. Only the latter is annotated. On March 3, 1988, Respondent wrote prescription number 397144 to the patient for 60 Fiorinal tablets. While the doctor's refill note reflects none were allowed, the computer printout sticker for the bottle reflects 2 refills were authorized. The back of the prescription form shows no refills annotated thereon as required, but the pharmacy's computer listing of all prescriptions indicates the prescription was refilled on May 28 and again on June 3, 1988. No further explanation is given. Prescription number 396378, written to the patient by Respondent on March 14, 1988 for 50 Fiorinal tablets, reflects no refills authorized by the physician nor does the reverse of the form bear any refill annotations. Nonetheless, the pharmacy records as shown on the computer printout indicates a refill on March 27 and April 6, 1988 with no explanation therefore. Before the last refill, however, Respondent wrote prescription number 397091 to the patient on March 29, 1988, for 21 Fiorinal #2, later approved for #3's. He also, on April 4, 1988, wrote prescription number 398853 for 35 Fiorinal tablets. Respondent claims he would not authorize a refill of a prior prescription for the same medication for which he is writing a new prescription, and, since neither of the refills of the earlier prescription properly reflect any physician authorization, it is so found. On May 2, 1988, Respondent wrote prescription 399717 for 50 Fiorinal tablets, and prescription 399718 for 100 Elavil 25 mg tablets. Both reflect Respondent's instruction that no refill be given, and neither form bears an annotation for authorized phone refills. Yet, the pharmacy's computer printout indicates that the prescription for Elavil was written on May 31, 1988 even though the bottle sticker shows it was filled on May 3, 1988. On August 1, 1988, Respondent wrote prescription 405572 for 100 Fiorinal and 475573 for 100 Elavil 100 mg tablets. Both were filled the next day but neither form bears any annotation of authorized refill, consistent with the physician's instructions. On August 16, 1988, Respondent prescribed another 100 Fiorinal by Prescription 406536. It was not refilled. On August 29, 1988, Respondent wrote prescription 407201 for 150 Elavil 50 mg tablets to patient #1, and number 407202 for 100 Fiorinal tablets. Both prescription forms clearly reflected no refills, but the back of the forms reflect refills were authorized. The Elavil prescription was refilled on September 10, 1988 by pharmacist Ivan Funkhouser who contends he refilled on the basis either of a call to or from the doctor's office. He cannot recall which. He also, at the same time, refilled the Fiorinal prescription under the same conditions. The Elavil prescription was filled again, this time for 225 tablets, on September 30, 1988, by pharmacist Robert Wivagg who also indicated phone refills made only on the basis of a call to or from the physician's office. In this case, however, he believes that because of the amounts involved, he would have spoken to the physician himself before filling the prescription. He cannot be sure of this, however, and Respondent denies having ever prescribed 225 Elavil tablets, regardless of strength, at one time. Mr. Lewis, the pharmacy expert, indicates that proper pharmacy practice would have allowed the pharmacist to issue fewer tablets than on the prescription but not more without express approval of the physician. The Fiorinal prescription, refilled on September 30, 1988, this time for 150 tablets, is not reflected on the prescription form though it is on the computer printout. Respondent denies that he ever called in prescriptions for Patient #1 because he never had to. She came to his office frequently enough that he was able to provide her with a new prescription for whatever medication she needed. Indeed, his medical office billing records reflect that in June, 1988 he saw her on June 6, 13, 20, and 27; in July, 1988 on July 5, 12, 19, and 26; and in August, 1988, on August 2, 9, 16, and 30. It would appear, therefore, that the refills of prescriptions reflected on the pharmacy computer printout either are in error or were arranged for under some unexplained process not involving Respondent. There appears to be no reason for him having had to authorize refills since he saw the patient so frequently, notwithstanding his comments to Ms. Sutton, during the investigation, that 90 percent of the refill calls are authorized by him personally, and only 10 percent through his secretary. There was no showing that the authorization comment Ms. Sutton recalls was related to this particular patient. Further, according to Ms. Maguire, Respondent's secretary, Respondent frequently refuses to grant refills, and, to her knowledge, he never gives refills to psychiatric patients. Since most, if not all Respondent's patients are psychiatric patients, this does not make sense. Respondent does not deny writing the two prescriptions on August 29, 1988. At that particular time patient #1 was planning a trip to New York to make peace with her dying mother. As a result, and since her headaches had gotten worse, as had her depression, he decided to increase her dosage of Elavil. This was a medical decision which is not in issue here. He admits that Elavil is a drug which is often used to commit suicide and that prescribed at even its lowest strength, a full prescription can be lethal. This became, therefore, an assessment problem wherein Respondent, the physician, had to evaluate the risk of the patient's depression against the benefits to be gained by the use of the drug. Respondent gave patient #1 enough Elavil to hold her through her visit up north. He had previously given her sixty 50 mg tablets to be taken 6 per day for a 300 mg dose at bedtime. He now told her not to use the 50 mg tablets any more and to destroy them. He believed she did. He then gave her a new prescription for one hundred and twenty 25 mg tablets for her trip. He unequivocally states that he never prescribes more than 300 mg/day of Elavil. He admits, however, that while she was on that dosage, he neither hospitalized her nor had blood work done on her. Respondent feels his original treatment plan and diagnosis were sufficient and his records pertaining to those factors were adequate. He uses checkoff forms because he believes they are the most open way of showing how he sees his patient and what he is doing for her. This same conclusion was reached by Dr. Spreyhe, another Board certified psychiatrist who is Clinical Professor of psychiatry at the University of South Florida Medical School, who has served as an expert witness for the Department in the past, and who continues to serve as a contract consultant for it and as a member of the Medical Advisory Committee of the Department. Examination of Respondent's medical records pertaining to Patient #1 indicates that the medical history and treatment plan are in the form of check sheets on which the physician makes no more than minimally worded entries. The Department's witness, Dr. Greener, an expert in the completeness of medical records, is of the opinion that Respondent's records should have reflected an initial detailed assessment of the patient's condition, including the reasons for her referral to him, a complete medical history, and a subsequent detailed mental status examination. This should be followed by a formulation of her problems and a treatment program. After the initial evaluation, according to Dr. Greener, the physician should make regular progress notes as to treatments, communications with others, phone calls received, prescriptions issued, and matters of that nature. This is done to memorialize the particulars for the patient and to keep a tally of which and how much of any drug is given to the patient. This would show over or under use as a possible flag as to how well the patient follows instructions or if the patient develops a use addiction problem. Based on Dr. Greener's review of Respondent's records for patient #1 and the prescription records relevant to her, he concluded those records were "totally inadequate." This conclusion is based on his opinion that the initial evaluation is cursory and without detail and there are few progress notes in the records. Those which are there are inadequate in detail and full of conclusions without the required supporting information such as drug side-effects, the patient's ability to follow instructions, follow-up, changes in dosages, and the like. He complains that Respondent's records do not really outline a plan of treatment designed specifically for that patient. For example, the forms used by Respondent are merely check-off forms even though, during the period, the patient was receiving continuing analgesic medications. From Respondent's records, it was impossible to determine how the patient was doing on the medications prescribed or whether additional medical evaluation was required. It is important to put this information in patient records to memorialize what is done and not just to keep the information in the treating physician's memory. Respondent denies that his initial evaluation and treatment plan, prepared by the use of form check sheets, is below standard. Dr. Spreyhe concluded the use of such check sheets is not inappropriate for the initial work-up of a patient and he opined that Respondent's forms, and the information thereon provide sufficient information for an independent understanding of the patient's situation and are within an appropriate standard of care. It is so found. However, the medical progress notes which make up the bulk of the remaining medical records are not so complete and, in Dr. Spreyhe's opinion are insufficient. Respondent concurs and admits this. It is so found. As to Respondent's prescribing practices, Dr. Greener is far more conservative than Respondent in prescribing Elavil. He starts with a low dose and gradually works up to a therapeutic level dosage depending upon the patient. He would start an average patient out at 25 mg/day and work up to a maintenance dose of 150 mg/day. Elavil is a dangerous drug and the doctor must closely monitor the patient for possible side effects and the direct effect it is having on the patient. It should never be ordered "prn", (as needed) when that designation relates to the amount to be taken. Based on Respondent's records for this patient, it would appear to Dr. Greener that the medication was being used improperly. There appears to have been no monitoring of the amount of the drug the patient was getting and it would appear that the patient was given the prerogative as to dose, which is not a good thing to do. In his opinion, a dose at 300 mg/day of Elavil is very and unnaturally high and he would not use so high a dose. He would do other tests first to see why the medication was not working at the lower dosage. As was seen before, however, other physicians of equal expertise disagree. Fiorinal is habit forming and, according to Dr. Greener, should be used only over the short term. If needed for a longer period, the patient should be reviewed to see why. The doctor must keep in mind the addictive properties of the drug. Here, Dr. Greener is of the opinion that Respondent prescribed excessive amounts of Fiorinal for patient #1. From January 27, 1988 through March 2, 1988, a period of 34 or 35 days, Respondent prescribed 302 tablets and Dr. Greener would be concerned that the patient was addicted. On March 21, 1988 Respondent prescribed another 50 tablets, and on March 27,1988, he prescribed 50 more followed by another 60 somewhat later and more after that. All of these were being prescribed for a patient whose records reflect she was doing "OK", and was "nicely stabilized". To Dr. Greener, this is just too much, especially for a patient who is obviously addicted and who appears to be taking the medication only to prevent withdrawal symptoms. By his prescription regimen, a patient would get no more than 10 tablets a day for no more than 4 to 5 days, and he would prescribe this drug for 9 months, as here, only with support for it in the patient records, including the opinions of other specialists to whom the patient would have been referred. While it is obvious Dr. Greener is more conservative in his approach to medication than is Respondent, the evidence does not clearly show Respondent's approach fell below standards. Dr. Spreyhe is of the opinion that the levels of Elavil and Fiorinal prescribed by Respondent for this patient were appropriate in both dosage and amounts. He has patients of his own who take such doses and he is not swayed by the PDR recommendations for dosage which, he believes, is too conservative. As for the Fiorinal, he would prescribe no more than 8 per day because there is some information that a patient may develop a tolerance for the substance. In any case, the drug is appropriate for the treatment of psychogenic headaches as were suffered by Respondent's patient here. Both W.L.P. and M.J.S. have been patients of Respondent. Both found him to be concerned and available. When patient #1 died, Ms. Sherman was in a therapy group with her. She did not appear to be suicidal and was looking forward to her proposed trip to New York. Patient #1 died on October 8, 1988. The report of the Hillsborough County Medical Examiner reflected her death as suicide from the combined effects of amitriptyline, (Elavil), butalbital, (Fiorinal), and salicylate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued herein, finding Respondent not guilty of all allegations except those relating to his failure to keep adequate medical records regarding Patient #1 as alleged in Count One, of which he is shown to be guilty, and imposing an administrative reprimand and a requirement for continuing medical education in the area of proper record keeping. RECOMMENDED this 31st day of August, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of August, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5048 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. Accepted as a restatement of witness testimony but not as a Finding of Fact. 8. Accepted as a restatement of witness testimony but not as a Finding of Fact. 9. & 10. Accepted that the medications were dispensed based on prescriptions written under the patient's name. 11. & 12. Accepted and incorporated herein. 13. & 14. Accepted as a restatement of witness testimony. - 18. Accepted and incorporated herein. Rejected as not a necessary conclusion to be drawn. Accepted. - 23. Accepted as restatements of witness testimony. Accepted and incorporated herein. - 26. Accepted and incorporated herein as pertaining to the dosage level of Elavil used and the balance accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted. & 32. Rejected as Findings of Fact, and found to be Conclusions of Law. FOR THE RESPONDENT: Accepted and incorporated herein. - 4. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. 13. & 14. Accepted. 15. & 16. Accepted and incorporated herein. 17. & 18. Accepted. 19. & 20. Accepted and incorporated herein. 21. Accepted. 22. This Proposed Finding of Fact is, in reality, a restatement of the evidence presented, in several subparagraphs, some of which are identified by letter and some of which are not. It is, however, accepted as an accurate restatement of the evidence admitted at hearing on this point, except where it becomes argument. 23. & 24. Accepted and incorporated herein. 25. First four sentences accepted and incorporated herein. Balance considered only as argument in support of the position taken. 26. Accepted and incorporated herein. 27. Accepted. 28. Rejected as a Conclusion of Law and not a Finding of Fact. 29. - 31. Accepted as basic findings. This does not go to their adequacy, however. 32. & 33. Rejected as contra to the weight of the evidence. & 35. Accepted as the substance of the witness' testimony. Accepted and incorporated herein. Accepted. Accepted. Rejected as a Conclusion of Law. COPIES FURNISHED: Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard Suite 210 Tampa, Florida 33619 Bruce D. Lamb, Esquire Christopher J. Schulte, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. Post Office Box 2378 Tampa, Florida 33601 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented herein is whether or not the Respondent's licenses as a registered and practical nurse should be revoked, suspended or otherwise disciplined based on allegations that she violated various provisions of Chapter 464, Florida Statutes, as more specifically set forth hereinafter, in detail, as alleged in the Amended Administrative Complaint filed herein.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant findings of fact. At all times material herein, Respondent was licensed as a registered and practical nurse having been issued license numbers 76324-2 and 28359-1 by the State of Florida. (Petitioner's Exhibit 1.) Between November 13, 1978 and October 1, 1979, Respondent was employed as a nurse at Broward General Medical Center. On October 1, 1979, Respondent's resignation was requested by Julia Trenker, Director of Nursing Services and Assistant Administrator of Nursing Services for Broward General Medical Center. The reason for the resignation request by Ms. Trenker was alleged discrepancies in the charting of narcotics performed by Respondent. The practical effect of the resignation request of Respondent was the same as a termination inasmuch as Respondent was given the option of either voluntarily resigning or being terminated. (Tr. pages 97, 190, 193 through 197.) By letter dated October 2, 1979, Ms. Trenker notified the Florida State Hoard of Nursing of Respondent's employment termination from Broward General Medical Center due to charting discrepancies. (Tr. page 193 and Petitioner's Exhibit 25(a).) On or about March 22, 1982, Respondent completed an application for employment as a registered nurse with Doctor's Hospital of Hollywood, Inc. On the employment application, Respondent listed her previous employment with Broward General Medical Center and gave as the reason for leaving the need for increased salary because she gave was head of her household. (Petitioner's Exhibit 19.) At no time prior to employment with Doctor's Hospital 2/ of Hollywood, Inc. did Respondent notify Doctor's Hospital of the true reasons for the severance of her employment relationship with Broward General Medical Center (charting discrepancies). (Petitioner's Exhibit 2 and Tr. page 132.) Respondent admitted to Lucille Markowitz, an investigator with the Petitioner and Maureen Lake, then the Assistant Director of Nursing for Doctor's Hospital of Hollywood, Inc., that she had been terminated from Broward General Medical Center because of her failure to chart. Respondent did not list that reason on her employment application because she considered that it would have been too hard for her to be considered for employment. (Tr. 41.) Respondent was employed as a registered nurse at Doctor's Hospital of Hollywood, Inc. from March, 1982 through October, 1982. While employed at Doctor's Hospital, Respondent worked in Unit 2 East. Patient care was provided in that Unit under the "team care concept." Each team consisted of a registered nurse, licensed practical nurse and an aide. The team leader was responsible for overseeing team members, administering medications, setting up IVs, and administering IV medications, performing charting for the aide that the LPN could not do, coordinating patient x-rays, operating room (OR) and doctor's orders, transcribing such orders, taking telephone orders and making "rounds" with physicians. (Tr. pages 153 to 154.) There were two nursing teams on Unit 2 East at Doctor's Hospital of Hollywood, Inc. and the patient census was, at maximum, 35. Patients on Unit 2 East were split evenly between the two teams. The team leader was responsible for the "hands-on care" of at most four patients. The remaining patients were assigned to the other team members and assignments were overseen by the team leader. (Tr. pages 149 through 153.) Medications for each team are kept in separate medication carts. Each cart contained patient drawers for each patient on that team. The medication cart contains a narcotic drawer which is locked with the keys for each narcotic drawer kept by the cart's team leader or the LPN for that team when the team leader was unavailable. The medication administration record (MAR) and a 24- hour narcotic control drug record (narcotics sheet) is placed on each cart. The policy at Doctor's Hospital with reference to the administration of medications was that medications would be administered to a team: s patient only from that team's medication cart. Patients were not to be cross-medicated from other carts. (See Petitioner's Exhibit 2) The Policy and Procedure Manual for Doctor's Hospital of Hollywood, Inc. states that "when a medication is given, it is to be charted." (Tr. page 185.) At Doctor's Hospital, it was the team leader's responsibility to remove all post-operative orders for patients returning to Unit 2 East from surgery and to fill out a new MAR for that patient. (Tr. page 293.) Charting must be performed in the administration of all narcotics. When a narcotic is withdrawn from the narcotic drawer, the withdrawal must be noted on the narcotics sheet. The narcotics sheet is an audit tool for pharmacy and reflects the withdrawal and addition of narcotics in the narcotic cart. Once a narcotic has been administered to a patient, the administration should be immediately charted on the MAR. Charting involves making a notation on the MAR of the time that the narcotic was given and placing one's signature (who administered the narcotic) in the appropriate space. The MAR is the most accurate record of the administration of medications and the MAR along with the Nurse's Notes, unlike the narcotics sheet, becomes a part of the patient's medical history. In practice, the Nurse's Notes are usually completed within one hour of the administration of the medication and is acceptable if performed prior to the completion of one's shift provided other charting is performed in a timely manner. On September 1, 1982, at approximately 12:10 p.m., patient Katherine Kerwin was returned to Unit 2 East after eye surgery. Respondent's team was responsible for Ms. Kerwin's care on September 1, 1982. Respondent, as team leader for Unit 2E, received Ms. Kerwin from surgery. (Petitioner's Exhibit 7.) Upon Ms. Kerwin's return from surgery, Respondent administered 35 milligrams of demerol intramuscular to Ms. Kerwin. Under the physician's order, Kerwin was to receive that dosage once every six (6) hours as needed for twenty-four (24) hours. Respondent noted the withdrawal of the demerol on the narcotics sheet at or before the time of administration to Ms. Kerwin. (Petitioner's Exhibits 4 and 7.) When Respondent withdrew demerol from the narcotics drawer, she withdrew a 50 milligram vial. Ms. Kerwin was to receive a 35 milligram dosage of demerol. Respondent therefore had to waste 15 milligrams of demerol which wastage was witnessed by Lonna Wlodarczyk, an LPN on Respondent's team. (Petitioner's Exhibit 4.) Although Wlodarczyk witnessed the wastage, she did not inquire and was not required to inquire as to the patient for whom the wastage was performed. At the time of administering demerol to Ms. Kerwin, Respondent did not chart the administration of medication on either the Nurse's Notes or the MAR. Respondent did not prepare an MAR upon Kerwin's return from surgery. Sometime after 1:00 p.m. on September 1, 1982, patient Kerwin requested pain medication from Wlodarczyk. Wlodarczyk asked Kerwin if she had received pain medication and she replied that she had not. Wlodarczyk checked patient Kerwin' s chart to see if any post-operative orders had been taken off and none had been removed. Wlodarczyk further checked the MAR and determined that there was not one for patient Kerwin. Wlodarczyk further checked the Nurse's Notes to see if patient Kerwin had received anything for pain prior to the time Wlodarczyk answered patient Kerwin's buzzer. There was no record in the Nurse's Notes that demerol had been administered to patient Kerwin upon her return from surgery. (Tr. pages 291-292.) After determining that there was no record of the administration of demerol to patient Kerwin on the Nurse's Notes or the MAR, Wlodarczyk drew up 35 milligrams of demerol from a 50 milligram vial. Jean Ellis witnessed the wastage of the excess demerol for patient Kerwin. Wlodarczyk noted the withdrawal on the narcotics sheet and had Ellis sign the narcotics sheet as a witness to the wastage of the excess. (Petitioner's Exhibit 4.) Wlodarczyk did not check the narcotics sheet to determine whether demerol had been withdrawn previously for patient Kerwin. (Tr. page 293.) Wlodarczyk prepared an MAR sheet for patient Kerwin by taking down the post-op orders and placed them on the MAR sheet. After administering the demerol to patient Kerwin, Wlodarczyk charted the administration of demerol on the MAR. When Wlodarczyk went to chart the administration of demerol to patient Kerwin on the Nurse's Notes, after having administered the demerol. Wlodarczyk noted that the Nurse's Notes indicated that an identical dosage of demerol had been previously administered by Respondent. The entry noting said administration by Respondent was not in the Nurse's Notes when Wlodarczyk originally checked them. The entry was made some time between the time Wlodarczyk originally checked the Nurse's Notes and the time that Wlodarczyk went to chart the administration of demerol and give it to patient Kerwin (approximately 1:30 p.m.). (Tr. page 292.) The double dosage of patient Kerwin resulted in an incident. An incident was reported by Wlodarczyk to Marsha Hogg, Supervisor. Supervisor Hogg prepared an Incident/Accident Investigation Report. Hogg counseled Respondent on proper procedures in making out MAR and charting the administration of medications immediately. (Petitioner's Exhibit 21 and Tr. pages 137-138, 362, and 366-368.) On or about September 4, 1982, Respondent administered 75 milligrams of demerol intramuscular to Elizabeth Dobson at 9:00 a.m. and at 2:50 p.m. (See Petitioner's Exhibits 8, 10 and 12.) On September 4, 1982, Respondent was team leader for Team 1, Unit 2 East. Elizabeth Dobson was a patient being cared for by Team 2, Unit 2 East. The team leader for Team 2 was Cecelia Falis. The procedures in effect at Doctors' Hospital during September, 1982 were that when administering medication to patients on another team, it was incumbent upon the staff person administering the medication to first determine whether a team mother for that patient was available to medicate the patient and thereafter if no such person was available to medicate the patient, the patient should be medicated from that team's cart. In administering demerol to Elizabeth Dobson, Respondent withdrew two 75 milligram vials of demerol from her own team's medication cart. Respondent did not withdraw the demerol from the Team 2 medication cart even though Team 2 was responsible for Ms. Dobson's care. (Petitioner's Exhibits 8 and 9.) Respondent did not immediately chart the 9:00 a.m. administration of demerol to patient Dobson on the MAR. When Falis checked the MAR later in the afternoon, the 9:00 a.m. entry was not on the MAR. Falis checked the MAR for patient Dobson at 7:30 and 9:00 a.m., 12:00 and 1:00 p.m., and immediately prior to the close of her shift, 3:00 p.m. (Tr. pages 324 and 332.) At a time uncertain, Respondent charted the 9:00 a.m. administration of demerol to patient Dobson on her Nurse's Notes. However, Respondent did not sign the entry for that administration. (Petitioner's Exhibit 12.) When Falis reported to the incoming 3 - 11 shift employees on September 4, 1982, she first discovered that Respondent had administered two (2) 75 milligram doses of demerol to patient Dobson. Falis looked on the MAR for patient Dobson and discovered that entries had been made documenting the administration of demerol to patient Dobson at both 9:00 a.m. and 2:50 p.m. Prior to the end of the shift, Falis was certain that Respondent had not charted the administration of demerol to patient Dobson on September 4, 1982. On or about September 4, 1982, Joyce Murphy, Administrative Nursing Supervisor for the 7 - 3 shift at Doctors' Hospital, conducted an audit of the charting performed by Respondent on September 4, 1982. After reviewing Respondent's charting with reference to patient Dobson, Supervisor Murphy asked Respondent to go back and complete her charting for patient Dobson. At that time, Respondent had not charted the 2:50 p.m. administration of demerol to patient Dobson on the Nurse's Notes. (Tr. pages 378 through 380 and 394.) Pursuant to Murphy's request, Respondent made a "late entry" under Nurse's Notes for patient Dobson, documenting the administration of 75 milligrams of demerol and 25 milligrams of vistaril. (Petitioner's Exhibit 12 and Tr. page 394.) On September 8, 1982 at approximately 8:30 a.m., Respondent administered a percocet tablet to Carmela DeLora, by mouth. Pursuant to the physician's order for patient DeLora, she was to receive one percocet tablet every six (6) hours by mouth, as needed. (Petitioner's Exhibit 15.) Respondent noted the withdrawal of one percocet tablet for patient DeLora on the narcotics sheet some time between 9:00 a.m. and 10:15 a.m. (Petitioner's Exhibit 13.) Respondent also did not immediately chart the administration of a percocet tablet to patient DeLora on September 8th on either the Nurse's Notes or the MAR. (Petitioner's Exhibits 15 and 16 and Tr. page 344.) On September 8, 1982, Crystal Reeves, an RN at Doctors' Hospital, was called to relieve Respondent during lunch for a period of approximately 30 minutes. Reeves and Respondent made a narcotics count and Reeves assumed responsibility for the narcotics keys. While Respondent was at lunch, Carmela DeLora requested pain medication from Reeves. Reeves checked the doctor's orders for DeLora. Reeves thereafter checked the Nurse's Notes and the MAR for DeLora. Reeves found nothing charted for patient DeLora since the night of September 7, 1982. (Tr. page 344.) At approximately 12:00 p.m. after checking both the Nurse's Notes and the MAR for patient DeLora, Reeves administered one tablet of percocet by mouth to DeLora. Reeves charted the withdrawal of the medication on the narcotics sheet and after administering the percocet tablet to DeLora, Reeves charted the administration of percocet on the MAR. (Tr. pages 344, 346 and Petitioner's Exhibits 13 and 15.) Reeves did not chart the administration of percocet on the Nurse's Notes because there was nothing charted on the Nurse's Notes for the entire morning and when serving in a relief capacity, Reeves, following the practice then in effect at Doctor's Hospital, merely filed an oral report with the nurse she relieved, Respondent. When Respondent returned to Unit 2 East on September 8, 1982, Reeves informed her that she had medicated DeLora with percocet. Respondent then advised Reeves that DeLora had been medicated earlier. (Tr. page 347.) Due to this medication error, Reeves completed an incident report at Doctor's Hospital of Hollywood, Inc. The incident report was submitted to Marsha Hogg who prepared an Incident/Accident Investigation Report. Hogg counseled Respondent about the importance of charting on the MAR. Hogg also reviewed procedures for properly administering and charting medications. Finally, Hogg gave Respondent a written warning notice. (Petitioner's Exhibits 22 and 23 and Tr. pages 347, 362- 363, and 369-370.) Respondent offered (to Hogg) no reason for her failure to timely chart the administration of medications on the MAR or Nurse's Notes. On or about September 24, 1982, patient Will LaBree was sent to X-Ray at Doctor's Hospital of Hollywood, Inc. with two name bracelets. Respondent was the team leader responsible for LaBree's total patient care. The responsibility for placement of identification bracelets is primarily a responsibility resting with the Admission's Office. Respondent's Position As to the failure to chart and the failure to timely chart allegations, Respondent contends that Unit 2 East of Doctor's Hospital where she served as team leader was usually at capacity and that in addition to the responsibility for caring for 4 of the 17 or 18 patients, she also had the duties of making rounds with physicians, providing IV therapies, starting IV's, transcription of physician's orders and ensuring that all the treatment plans and care for those patients were completed on her tour of duty. According to Respondent, waiting to chart the MAR was a frequent occurrence and was acceptable at Doctor's Hospital in September of 1982. Respondent admits that while failure to chart the administration of medications upon a patient's MAR was unacceptable, late charting on the MAR by a nurse before she left duty was acceptable. Further, Respondent testified that she faced constant interruptions while team leader at Unit 2E; that it was customary as a team leader to chart Nurse's Notes after making rounds with physicians; that generalized accusations and innuendos were leveled at her and that following such accusations, she generally felt emotionally upset. She testified that this, in fact, happened in the administration of the percocet to patient DeLora, resulting in a failure to chart the MAR. When relieved by nurse Reeves to have lunch, Respondent returned to find that she had not charted the administration of percocet to patient DeLora. As to the allegation respecting the discovery of two arm bracelets upon patient Will LaBree on September 24, 1982, a nurse other than Respondent admitted patient LaBree at 6:30 a.m. onto the floor of Unit 2E and it is herein specifically found that it was not the Respondent's responsibility for ensuring or otherwise making out the patient's name tag for the patient's bed or to make sure that it matched the bracelet on LaBree's arm. As to the Respondent's stated reasons on her employment application submitted to Doctor's Hospital for employment and the given reasons for leaving Broward General Hospital Center as "needed higher salary (head of household)," Respondent contends that she relied upon Investigator Markowitz's representation to her that such would be a satisfactory answer as to her reason for leaving Broward General Medical Center. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's licenses as a registered and practical nurse be suspended for a period of two (2) years. Respondent may apply for reinstatement at the end of one (1) year of said suspension if she submits the following to the Board of Nursing: a satisfactory in-depth psychological evaluation prepared by a qualified psychiatrist, psychologist or other qualified mental health counselor recommending or otherwise representing that Respondent is currently able to practice nursing with reasonable skill and safety to patients; verification of successful completion and documentation that Respondent has successfully completed a refresher course in basic nursing skills including the procedures for charting the administration of medications prior to reinstatement. The terms of the probation are as follows: Respondent shall not violate any federal or state laws or rules or orders of the Board of Nursing. Respondent agrees to submit to random blood or urine tests and shall cause results of analysis to be furnished to the Board if collected by an agent other than an authorized representative of the Department. At such time as the blood and/or urine sample is collected, it shall be Respondent's responsibility to provide pertinent information regarding her usage of prescribed or over-the- counter medication consumed. Additionally, Respondent shall provide documentation of valid prescriptions for any medication or controlled substances consumed for legitimate purposes. Respondent shall not consume, inject or otherwise self- medicate with any controlled substance or prescription drug which has not been prescribed by an duly licensed practitioner. Respondent shall obtain or continue to obtain counseling with a psychiatrist, psychologist or other mental health counselor and shall cause progress reports to be furnished to the Board or probation supervisor every three (3) months during treatment as scheduled by the probation supervisor. RECOMMENDED this 16th day of May, 1984, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of May, 1984.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2006.
The Issue The issues to be determined are whether Respondent is unable to practice medicine with reasonable skill and safety by reason of illness, or physical or mental condition, in violation of Section 458.331(1)(s), Florida Statutes (2008, 2009)1/, and if so, what penalty or restriction should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to Section 20.43, and Chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent has been a licensed medical doctor within the State of Florida, having been issued license number ME 33042. She is board certified in internal medicine and has never been the subject of a disciplinary proceeding against her Florida license. Dr. Sharpe's mailing address of record during the time relevant to these proceedings was 6603 San Juan Avenue, #1, Jacksonville, Florida 32210, and she practiced medicine at this address. On November 8, 2008, Detective Elaina Gonzales of the Jacksonville Sheriff's Office Narcotics Division was investigating a complaint that a patient, E.R., might be "doctor shopping." As part of that investigation, Detective Gonzales contacted Dr. Sharpe to see if E.R. was a patient of hers. When Dr. Sharpe confirmed that E.R. had been a patient for a couple of months, Detective Gonzales asked her to locate the chart so that they could verify what medications E.R. had received and the dates they had been prescribed. Dr. Sharpe related that she could not locate the chart at that time, because she was at the office alone, was in a wheelchair, and was very ill with "African fever." Detective Gonzales asked her whether she required her patients to sign pain contracts, and Dr. Sharpe indicated that she did not believe in them. The conversation, which was by telephone, left Detective Gonzales "uneasy," and she found Dr. Sharpe's responses to be strange, in that she appeared to be confused and would answer questions in a tangential manner that was hard to follow. On January 19, 2009, two and a half months later, Detective Gonzales arrested two suspects who attempted to fill fraudulent prescriptions at Panama Pharmacy. During the arrest, there was a search of the suspects' vehicle, and a blank prescription pad bearing Dr. Sharpe's name was seized, along with a prescription for 60 pills of Oxycontin 80 mg dated January 20, 2009, taken from suspect G.L.'s wallet. Four other prescriptions G.L. attempted to fill were recovered from pharmacies. All four were on printed prescription forms bearing Dr. Sharpe's name. The handwriting on the four prescriptions recovered from various pharmacies, while on Dr. Sharpe's prescription pad, is not consistent with the handwriting from prescriptions that Dr. Sharpe identified as ones she wrote. Detective Gonzales attempted to contact Dr. Sharpe to verify whether she wrote the prescriptions on January 19, 2009, but was unable to contact her. The next day, she called Dr. Sharpe and asked whether G.L. was a patient, which Dr. Sharpe confirmed. Detective Gonzales asked Respondent if she post-dated prescriptions, which she denied. Gonzales asked Dr. Sharpe to locate the chart so that she could verify when prescriptions were written for G.L. Dr. Sharpe indicated that she could not find the file, that she did not have an office staff and that she was ill and by herself. Detective Gonzales tried to impress on Dr. Sharpe the importance of verifying the prescriptions, because she had two suspects sitting in jail, and indicated that she would be coming to the office to have Dr. Sharpe look at the prescriptions. Dr. Sharp became upset and at first stated she would not open the door because she was sick. Eventually, she relented and gave instructions for the detective to let the phone ring three times in order for her to gain entrance to the office. Upon Detective Gonzales' arrival at the office at approximately 2:00 p.m. on January 20, 2009, she found Respondent in a wheelchair, wearing a nightgown and socks with no shoes. Dr. Sharpe asked Detective Gonzales to wear gloves so she would not get sick. At the time Detective Gonzales arrived, there was a woman in the reception area who Dr. Sharpe described as helping her. Detective Gonzales observed a patient waiting area and reception area that was cluttered and disorganized. The area appeared to include both household and office furniture, and the reception area contained what appeared to be piles of medical charts. Detective Gonzales showed Dr. Sharpe the prescriptions retrieved from G.L. and from the pharmacies. Dr. Sharpe denied writing the prescriptions presented to the pharmacies and described in paragraph 7. She identified the prescription to G.L. dated January 20, 2009, taken from G.L.'s wallet, as being a prescription she wrote. (See Petitioner's Exhibit 3). When Detective Gonzales asked Dr. Sharpe why she post- dated the prescription, Dr. Sharpe became upset with her, and started telling a story that did not answer the question. Gonzales asked to see the patient's file, and Dr. Sharpe could not find it. Detective called DEA Drug Diversion Investigator Lutz while she was at the office, because she wanted to have someone else observe what she had observed. While she waited for Investigator Lutz to arrive, she sat with Dr. Sharpe and talked, and the woman helping Dr. Sharpe continued to look for G.L.'s file. The file was never located during this visit. During this time, a couple arrived with soup for Dr. Sharpe. Once Investigator Lutz arrived, Detective Gonzales left the reception area to search for a restroom. While in the back part of the building, she observed a room with a bed and a TV on, along with a dresser and clothes. It appeared to Detective Gonzales that Dr. Sharpe was living out of her office. Detective Gonzales asked Dr. Sharpe if she was living in her office, and Respondent said she would stay at the office for a couple of days, because she could not get up and down the stairs at her home. Investigator Lutz has since married, and is now known as Investigator Walters. She and another DEA agent arrived at the office while Detective Gonzales was still present. She also confirmed that Dr. Sharpe was in a wheelchair, wearing a nightgown and robe, and that she did not appear to be feeling well. She also confirmed that the office was disorganized. Dr. Sharpe also asked her and her partner to wear gloves because she was concerned she might be contagious. Investigator Walters was concerned that Dr. Sharpe was not in any condition to be seeing patients. She asked Dr. Sharpe if she was in fact seeing patients, and Dr. Sharpe indicated she was not feeling well, and had been sick for a while, but was seeing patients when she was able. Given her age and the comments regarding her health, Investigator Walters asked Dr. Sharpe if she had thought about retiring. Dr. Sharpe was upset by the question and said she had not thought about doing so. Investigator Walters also indicated that Dr. Sharpe rarely answered a question directly. She would start to, then go off on a tangent about something in her past, and indicated that she thought she had some type of African Fever. Investigator Walters felt the interview was not productive, and Dr. Sharpe kept stressing how poorly she felt, so Investigator Walters asked Dr. Sharpe to contact her in the next couple of weeks. Dr. Sharpe left Investigator Walters one voice message. When Investigator Walters tried to return the call, sometime in February, she reached the answering service and was informed that Dr. Sharpe was still sick. Detective Gonzales also attempted to contact Dr. Sharpe after the January 20 visit. Each time, Dr. Sharpe's answering service indicated that she was ill. A prescription bearing Dr. Sharpe's signature was written for patient D.T. on March 3, 2009. The prescription was for 480 pills of Oxycontin 15mg. (See Petitioner's Exhibit 6). Two other prescriptions written for D.T. on Dr. Sharpe's prescription pad were subsequently recovered from Walgreen's pharmacy and are included in the record as Petitioner's Exhibit One, dated March 5, 2009, was for 360 pills of Oxycontin 40mg. The second, dated April 2, 2009, was also for 360 pills of Oxycontin 40mg. While no testimony was presented indicating that Dr. Sharpe ever confirmed that she had written the two prescriptions described above and contained in Petitioner's Exhibit 9, the handwriting appears to be the same as that on the prescription in Petitioner's Exhibit 6, which Dr. Sharpe confirmed was her handwriting. On March 25, 2009, Investigator Wendy Foy of DOH notified Dr. Sharpe by letter that she was under investigation. Dr. Sharpe was advised that she had 45 days to submit a written response and to contact the office to schedule an interview, if she chose. The letter also requested that she provide a copy of her curriculum vitae. The 45-day period for filing a response would have required that any response be filed by May 9, 2009. Dr. Sharpe called in response to the letter. She appeared to be aggravated that the Department was investigating her, and referred to Detective Gonzales as "a loud mouth detective" who barged in her office, demanding to see information. She told Ms. Foy that she would be providing a written response to the complaint, but said she had been sick for weeks. Ms. Foy called Respondent again because she had not received a response, although the timing of the phone call is not clear. Dr. Sharpe stated that she had been sick and was in the process of writing her response and sending it to her typist. Dr. Sharpe's response was received by the Department on April 28, 2009. The response are as follows:2/ The delay in response is not dismissive. I needed to gather facts and explain myself while considering the facts you need. One thing I find interesting is "confidential" at the top of your letter. The detective -- whose name I don't recall -- I referred to her as "the mouth" acted as a bully here and told me by phone that I pass out medication "like candy" (news to my patients) before I ever met her. She has told pharmacists around the Westside that I am under investigation. They've told my patients. My patients have told me. I have explained to the patients that it is appropriate, if there is a question, to have an investigation. That is the right and the job of the State to protect them. However, she was unprofessional and demonstrated inability or unwillingness; definitely unworthiness to keep a confidence. There is another narcotics detective in the JSO that I work with very well. I have, on occasion, had a questionable prescription. When this happened I reported to her and fired the patient. . . . If indeed the patient IS a patient. You may be interested in the fact that I fly in the dark as I've talked to some of my colleagues. We don't get notified of people that are using narcotics or selling things or anything. If I were a gun salesman or a pawn broker I would have a hot list. I'm supposed to know to spot criminals when what I see are patients that are sick. This whole system is remarkable. It's "gotcha", but that's for another letter. On the day that the questionable detective demanded entry, I had already placed myself in isolation. That is the only thing a good citizen would do with a severe virus to keep it from spreading. Two volunteer friends were sorting out the mail and "shuffling papers". They were friends NOT regular employees or "trained medical assistants." She had them terrified standing over them. She claimed to be waiting for a partner. She was waiting for the DEA. They insisted on entry as well. Before the detective came I had told my helpers I was exhausted and needed a nap. I never got dressed that day. I wore a nightgown and a thermal blanket which is better than a housecoat as I am in a wheelchair. . . . yet they pressed on. Why she lied leaves me mystified, where was I going? I met them all at the door with a box of rubber gloves because, again, I tried to protect anyone else from this terrible virus which kept me out of work for weeks. The DEA asked questions like "what do you give to a new patient?" Well teaching for four years in the United States Peace Corps and before that in Watts before the riots, I believed that there was no such thing as a dumb question but that sure is one. In my diminished state I waited for the rest of the question. An example would be, maybe, presentation of a case. When that did not come I told them all to leave. They were "kicking me when I was down". You've asked about the chart they demanded. My terrified helpers were separated from me and looked everywhere. I didn't know what the problem was as they were in the business office and I was in the waiting room. I NEVER SAW THE PATIENT SHE REQUESTED AS THERE WAS NO CHART. He was due several days later. (Please see the page from my calendar) There were two charts requested, G.L. was going to be seen on February 3, 2009 as a new patient. I never saw him. The other chart they requested was R.G. That chart was taken. I want it back. I have no receipt. I don't know what this woman thinks she knows but she is destructive and inefficient in her gang buster method. We're not used to this. The JSO is better than she is. I recently had the pleasure to write some lovely letters to Sheriff Rutherford regarding some of his staff when I suffered a felony. I never planned to write about this individual or her demeanor. "If you can't say something nice . . .". She is, however, a disgrace and I guess I need to defend myself and let you know the details so that you can come to your own conclusion. The detective demanded two charts. R.G., she took the chart and did not give it back. I've not seen him again, anyway. G.L. They came in on January 15th or 16th -- I'm unsure as I said and he was due to come in for a new patient evaluation (2 hours) on February 3, 2009 at 2:00 pm. If this signifies giving out medicine like candy then I guess it is. As a double check I asked my transcriptionist for a history and physical from her computer memory and there was no such patient as G.L. I've never seen him. I hope this explains your legitimate concerns and her attempt to build a case from thin air. I don't know what she thinks she knows. I do request all of the reports if I can get them as you said is my right. Further, I have such an extensive Curriculum Vitae. I cleaned it up as I don't put everything in it. I don't even know if I have one right now. I have to reconstruct it as nobody asks for them. I will ask my transcriptionist if she has one in memory. As a blind copy I'm going to send you the letters that I've sent the Sheriff because it has a couple of things from my background anyway and my awe of the police force and the JSO here. I don't have an attitude toward them, just her. She is an outlier certainly. Thank you for opportunity to respond to your concerns. Sincerely yours, (signed) Isabella K. Sharpe, M.D. Isabella K. Sharpe, M.S.M.D.,F.A.C.P. Dr. Sharpe's written response differs from Detective Gonzales' and Investigator Walters' accounts of the events in several respects. For example, she identifies the date of their visit to be January 15 or 16, as opposed to January 20. She claims that Detective Gonzales retrieved a chart for a patient R.G. when there has been no testimony about such a patient. She claims that she never saw patient G.L. when Detective Gonzales testified that Respondent confirmed G.L. was her patient and identified the signature on his January 20, 2009, prescription as her signature. She claimed to be "separated" from her volunteers and unable to know what they were looking for, when all testimony indicates that the rooms involved are adjacent, with an opening between them. Detective Gonzalez' and Investigator Walters' testimony is credited. On June 23, 2009, DOH Investigator Foy as well as Investigative Manager Charles Coates went to Respondent's office to serve a subpoena for patient records. The Investigators had arranged previously for an appointment with Respondent for 12 o'clock sharp. When they arrived for the appointment, there were approximately seven or eight people in the waiting area, but appeared to be no one working in the reception area. Within 15 minutes of the investigators' arrival, all but two or three of the people in the waiting room left the office without seeing Respondent. Despite having a noon appointment with Respondent, the investigators waited for approximately an hour to see her. During that entire time, no one appeared to be attending the reception area. It was not only unattended, but it appeared to the investigators that the area was in disarray. There were files stacked that appeared to be medical records in different areas on the counters, in no apparent order. The files were readily accessible to anyone seeking to look at them. Respondent finally appeared after the investigators had waited an hour. Once again, she appeared in a wheelchair with socks and no shoes. She attempted to conduct her interview with the DOH investigators in the patient waiting area in front of the remaining people waiting there. Mr. Coates advised her that the interview should be conducted in private, so the investigators and Respondent moved to the back of the building. During the interview, Dr. Sharpe confirmed that E.R., T.D. and S.D.T. (also referred to as D.T.) were her patients. Mr. Coates presented her with a prescription dated March 3, 2009, for 480 pills of Oxycontin 15mg, referenced in finding of fact Dr. Sharpe confirmed that D.T. was her patient, and that the prescription bore her signature, but that she "must have been out of it" when she wrote the prescription. She volunteered that she had been sick for weeks at a time. Subsequent to the June 23, 2009, interview, Investigator Foy contacted Dr. Sharpe about the records that were the subject of the subpoena. Dr. Sharpe indicated that she did not have time to get them and she wanted to get a volunteer to get the copies to DOH. She also told the investigator that one of her prescription pads was missing prescriptions from the middle of the pad. Dr. Sharpe apparently believed the prescriptions were taken by a volunteer, whom she "fired" by not treating the volunteer any longer. No evidence was presented to indicate that any of the subpoenaed records were ever supplied to the Department. On September 18, 2009, Dr. Sharpe was evaluated by George M. Joseph, M.D., a board certified psychiatrist. Dr. Joseph has been licensed in Florida since 1970, and has performed evaluations for the Professionals Resource Network (PRN) since the mid '80's. In addition to interviewing Dr. Sharpe for 90 minutes, Dr. Joseph administered the MMPI and reviewed investigative materials supplied by the Department and chronicled in the collateral history section of Dr. Joseph's report to the Department (See Petitioner's Exhibit 10). Dr. Sharpe related to Dr. Joseph that her general health was affected when 17 years ago she received vancomycin, a very powerful antibiotic, for an infection. The medicine caused renal failure and neurotoxicity, which in turn caused severe vertigo from which she still suffers. As a result, she is confined to a wheelchair. Dr. Sharpe also indicated to Dr. Joseph that she self-prescribes medicine for a pituitary tumor, and for hypothyroidism. During his interview with Dr. Sharpe, they talked about several topics, including her reaction to Detective Gonzales and the DOH investigation; her prescribing practices; and her office management style. With respect to her prescribing practices, Dr. Sharpe acknowledged treating a number of patients who suffer from severe pain, and indicated that "I have to believe my patient," regarding their reporting of pain. She also stated her belief that other physicians were not giving patients the medication they needed, and that she did, enabling patients to have a better quality of life. She acknowledged that she is not a pain management specialist. Dr. Joseph also noted that in the interview, Dr. Sharpe's thought process was circumstantial and digressive, with reference to previous life experiences as opposed to analyzing a question and discussing it directly. Dr. Joseph opined that Dr. Sharpe has an Axis II, personality disorder not otherwise specified (NOS), with marked characteristics of hyperthymia. A personality disorder, NOS, is recognized in the Diagnostic and Statistical Manual IV (DSM-IV) under diagnostic number 301.9. Hyperthymia is a personality temperament that would be characterized by a prominently upbeat mood, and a person who admits to very few, if any problems. A person who is hyperthymic is overly enthusiastic and upbeat, exuberant, grandiose and talkative. Such a person minimizes the effect of any negative situations and always try to portray herself in a positive light, believing she can "trump" the applicable rules with rules they fashion themselves. A personality temperament becomes indicative of a personality disorder where, as here, it has some affect on a person's functioning occupationally or socially, or both. Dr. Joseph opined that Dr Sharpe is unable to practice with reasonable skill and safety. He reached this ultimate opinion because, in his view, her personality disorder creates a tendency on her part to form judgments about prescribing to pain patients that can be idiosyncratic and excessive, and impairs her clinical judgment. The impairment of her clinical judgment impairs her ability to discern legitimate patients from patients who are manipulating physicians for medications. This represents a danger to patients by the prescription of excessive amounts of medication with possible misuse by those receiving them. Dr. Joseph also opined that Dr. Sharpe's personality disorder impairs her ability to maintain adequate medical records for her patients, and to maintain an orderly practice. He based this opinion on her failure to maintain boundaries with her patients, as illustrated by her using patients as "volunteers" in her office, and her inability to retrieve records when requested. These failures present, in his view, a danger to patients because of the failure to maintain adequate records for providing a history of medications prescribed, any side effects to those medications, and the patient's ongoing treatment. With pain management patients, the need for accurate and available medical records is especially important. In other words, Respondent displayed a cavalier attitude with respect to both prescribing pain medication and recordkeeping, in areas that the medical profession generally regards as very serious, controlled and organized. The Respondent did not present any expert testimony to rebut Dr. Joseph's view. Dr. Joseph's opinion that Respondent cannot practice with reasonable skill and safety at this time is accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Medicine enter a final order finding that Respondent is unable to practice with reasonable skill and safety by virtue of a mental condition, as proscribed in Section 458.331(1)(s), Florida Statutes. It is further recommended that Respondent's license to practice medicine be suspended, until such time as she demonstrates that she can practice with reasonable skill and safety. DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2009.
The Issue Should Respondent's license to practice podiatric medicine be disciplined for failure to keep required written medical records, for prescribing or dispensing legend drugs other than in the course of his professional podiatric practice, for failing to practice as a reasonably prudent podiatric physician, and for practicing beyond the scope of his license?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of podiatric medicine pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 461, Florida Statutes. Dr. McNally has been licensed without interruption to practice podiatry in the State of Florida since October 22, 1996. He has not been the subject of disciplinary action by the Board of Podiatry. Dr. McNally was licensed as a podiatrist in the State of Florida by the Agency for Health Care Administration (AHCA) in October 1996. He was born on June 19, 1969. Ms. Sara Helen Lowe, a pharmacist, is an inspector for AHCA. She conducted a survey of pharmacies in the vicinity of Destin and Ft. Walton area and discovered that Respondent had written multiple prescriptions for legend drugs which were in the name of Patient B.R. She also determined from her survey that Respondent had prescribed the legend drug Phentermine for six of his patients. A legend drug is a drug for which a prescription is required and includes Schedule II controlled substances under Chapter 893, Florida Statutes. A Schedule II controlled substance is a pharmaceutical which has medical uses and also has a potential for being abused. Mrs. B.R. is the wife of Patient B.R. She was aware that her husband received numerous prescriptions from Dr. McNally for multiple drugs including oxycodone and methadone in 1998 and 1999. Mrs. B.R. was aware that her husband had an open wound on his foot for several years. She was also aware that he suffered chronic and severe pain from this condition. Mrs. B.R. was concerned about the amount of drugs being consumed by Patient B.R. and discussed this matter with Dr. McNally. During this conversation, Dr. McNally told her that, "B.R. was in chronic pain, and that the amount of medication that B.R. took was basically B.R.'s problem." Mrs. B.R. was angry with regard to the amount and type of drugs which were prescribed by Dr. McNally. However, she thought that during this time his foot wound was improving. Mrs. B.R. was aware that Dr. McNally brought drugs to patient B.R.'s hospital room when patient B.R. was hospitalized in November of 1998. Mrs. B.R. was aware that her husband was hospitalized on an emergency basis for an overdose of Tegrital, a drug designed to combat seizures. This drug was not prescribed by Dr. McNally. It was prescribed by another doctor. The pain that patient B.R. suffered caused a hardship in Mrs. B.R.'s home but she preferred that he take the pain medication rather than see him suffer. Patient B.R. lives in Destin with his wife. He is receiving disability payments due to a hip replacement, a knee replacement, and an ulcer on his right foot. In an effort to relieve the pain in B.R.'s foot Respondent prescribed Oxycodone, Endodan, Endocet, Methadone, Roxicet, Roxiprin, Percocet, Oxycontin, Morphine Sulfate Er, MS Contin, Oramorph SR, and Roxicodone. All of these are forms of oxycodone, methadone, or morphine, alone, or in combinations with acetaminophen. Dr. McNally prescribed approximately 8,705 units of oxycodone, 250 units of methadone, and 510 units of morphine for patient B.R. during the eighteen-month period he treated him. These drugs were prescribed to him subsequent to his first visit to Dr. McNally in 1997. All of the foregoing drugs are Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Patient B.R. obtained prescriptions during office visits and by telephoning Dr. McNally. When B.R. called Dr. McNally the doctor would ask him what drugs he wished to have and B.R. would tell him. Dr. McNally would then provide the prescription to a pharmacy telephonically. On at least one occasion the prescription was left inside the screen door of Dr. McNally's dwelling for Patient B.R. to pick up. Office visits were on some occasions made at the offices of Dr. Haire from which Dr. McNally occasionally practiced. During office visits Dr. McNally would sometimes take B.R.'s temperature. He checked B.R.'s vital signs approximately every six months. Patient B.R. got prescriptions from Dr. McNally when Dr. McNally was on an extended trip to Europe in early 1998 or 1999. While Patient B.R. was a patient in the local hospital, Dr. McNally brought him drugs because the pain medication provided by the hospital was inadequate. Dr. McNally brought the drugs to his hospital room four or five times. He bought these drugs with patient B.R.'s credit cards. Patient B.R. was in the hospital November 9 through 17, 1998. Dr. McNally submitted insurance claims for patient B.R. for a portion of the time he was treating patient B.R. but eventually stopped. Patient B.R. stopped seeing Dr. McNally. Subsequently, a therapist, Sherry Levitis, recommended that patient B.R. attend a pain management center in New Orleans. As a result of his attendence there he experienced a decrease in needle-like pains. The pain management succeeded in getting B.R. to gradually reduce the amount of pain-killing drugs that he was ingesting. Patient B.R. never received any drug rehabilitation. The pain management clinic taught him that he could get by without the aid of drugs. Patient B.R. went to different pharmacies to have his prescriptions filled because he thought they would question the amount if he received too many drugs from the same business. He was advised by Dr. McNally to avoid making frequent visits to the same pharmacy. Patient B.R. never shared the drugs he obtained with others. The use of these drugs changed patient B.R.'s personality and caused domestic difficulties. He became dependent on the drugs. Buying the drugs was a financial strain. At the time of the hearing patient B.R. still was suffering from the ulcer on his right foot. Though he has had surgery on the ulcer three times, it has not healed. Patient B.R. believes his emergency trip to the hospital was the result of his taking Tegrital which is an anti- seizure medicine. He believes he should have coordinated the taking of this medicine with Dr. McNally and that his failure to do so was the cause of the medical event which resulted in emergency hospitalization. The medical doctor who prescribed the Tegrital never asked him if he was taking other medications. Numerous efforts were made by Dr. McNally to address patient B.R.'s foot condition and the resultant pain, including surgery, orthotics, and pain management efforts. The drugs prescribed by Dr. McNally enabled patient B.R. to get off of his couch and live a more normal life. Patient B.R. had better results in addressing his pain and treating his ulcer with Dr. McNally than with any other doctor. At the insistence of Petitioner, Dr. McNally supplied to Petitioner what he claimed to be patient records in the case of B.R. Petitioner believed these records to be phony. Dr. McNally prescribed Phentermine to patients and asserted that he believed it would enhance circulation in the lower extremities. Dr. McNally has been out of the country often and has prescribed drugs for patients in the United States while he was physically located in Italy. Dr. McNally prescribed drugs for patient B.R. while in Europe. He provided patient B.R. with numerous prescriptions for limited amounts because he did not want him to have too many drugs in his possession at once. Dr. McNally, at the time of the hearing, was not accepting new patients but was continuing to treat some old ones. He no longer carries malpractice insurance. Dr. McNally claimed that the medical records in the case of patient B.R., records which he supplied to ACHA at ACHA's request, were prepared by him either at the time of patient B.R.'s visits, a few days after a visit, or several days after a visit. Dr. McNally used the word "analgesic" when preparing records on patient B.R. He did not enter the actual names of the drugs. "Analgesic" could encompass all drugs which relieve pain. Dr. McNally turned to pharmaceuticals in B.R.'s case because he had tried all available alternative treatments without success. Dr. McNally prescribed drugs for the benefit of patient B.R. in the belief that he was doing what was best for his patient. Barry C. Blass, D.P.M., testified. He is an expert in the field of podiatry. Dr. Blass reviewed the evidence with regard to Dr. McNally and his treatment of patient B.R. and with regard to Dr. McNally's prescriptions of Phentermine for six patients. The pain-relieving drugs prescribed by Dr. McNally for B.R. were far in excess of an amount which would be appropriate. The amounts of legend drugs prescribed were about double that permitted by the instructions contained on the container. Dr. Blass reviewed 229 pages of office notes addressing the treatment of patient B.R. which purported to encompass the period January 2, 1998 through September 29, 1999. Almost all of the notes were identical with the exception of the dates. For the notes to be legitimate, patient B.R. would have had to visit Dr. McNally every day during October 1998 and almost everyday on several other months. It is a deficiency for a physician to fail to note on office notes that a patient has been prescribed legend drugs. The standard of care requires a physician to sign office notes. Respondent did not sign his notes. Additionally, the office notes were inconsistent with the hospital records of B.R., in that they indicated treatment in Dr. McNally's office when in fact B.R. was on those dates resident in a hospital. The office notes provided by the Respondent were manufactured, are not authentic, were not prepared at or near a time of an actual office visit, if there was an office visit, and are not, therefore, actual medical records addressing the treatment of patient B.R. It is inappropriate for a physician to bring drugs into a hospital for the use of a hospitalized patient. Phentermine is a diet drug which has no podiatric uses and therefore should not be prescribed by a podiatrist. Phentermine is usually prescribed as a remedy for exogenous obesity. Thomas L. Hicks, M.D., is an expert in the field of medicine. His testimony was provided by deposition. Dr. Hicks reviewed the medical records supplied by Dr. McNally, and provided expert opinions based on that review. It is inappropriate for a podiatrist to prescribe Phentermine. Respondent's prescriptions for Phentermine were unsafe and in excess of the customary dosages recommended by the manufacturer. By writing these prescriptions, Dr. McNally practiced outside of the scope of his license. The amount of Schedule II drugs prescribed for patient B.R. was inappropriate, dangerous, and not justified by the medical records. Dr. McNally wrote the prescriptions for patient B.R. at very frequent intervals which, while peculiar, did not violate the Practice Act. Usually when writing prescriptions for chronic pain a physician prescribes for a longer period of time. Richard D.Roth, D.P.M., testified. He is an expert in the field of podiatric medicine. Dr. Roth reviewed the medical records supplied by Dr. McNally. The prescribing of Phentermine by Dr. McNally was outside of the scope of his license and was potentially dangerous. Dr. McNally's treatment notes were inadequate in that, for example, they do not describe the exact location, size, or depth of an ulcer, among other things. Neither do they describe the types of analgesics prescribed even though massive doses of narcotic analgesics were prescribed. Dr. McNally's records in the case of patient B.R. are grotesquely incomplete. Most of the notes provided by Dr. McNally were canned notes generated by a computer.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Podiatric Medicine enter a final order finding that the Respondent, George C. P. McNally, failed to keep required medical records during the period January 2, 1998 through September 29, 1999, in violation of Section 461.013(1)(l), Florida Statutes; that the Respondent prescribed legend drugs other than in the course of his professional podiatric practice during the period January 1988 through August 1999, in violation of Section 461.013(1)(o), Florida Statutes; that Respondent failed to practice as a reasonably prudent podiatric physician during the period January 2, 1998 through September 29, 1999, in violation of Section 461.013(1)(s), Florida Statutes; and that Respondent practiced beyond the scope of his license during the period January 1988 through August 1999, in violation of Section 461.013(1)(u), Florida Statutes. It is recommended that Respondent's license to practice podiatric medicine be suspended for a period of six months, that he pay a $2,000 fine, and that he pay for the cost of the investigation and prosecution. The cost of investigation and prosecution shall be assessed at the time the matter is presented to the Board of Podiatric medicine. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida HARRY L. HOOPER 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 9th day of November, 2000. COPIES FURNISHED: Wings S. Benton, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 George C. P. McNally Post Office Box 5585 Destin, Florida 32540 Joe Baker, Jr., Executive Director Board of Podiatric Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Has Respondent, Charles E. Schutt, D.D.S., violated Sections 466.028(1)(m) and (p), Florida Statutes, as alleged in the Amended Administrative Complaint, Department of Health Case No. 92-02364?1
Findings Of Fact Respondent is licensed to practice dentistry in Florida. His license number is DN005795. On and off commencing December 30, 1985, and ending April 20, 1987, Respondent treated a patient known as J.G. She was subsequently known as J.W. She is now known as J.E.D. During the treatment Respondent prescribed the patient J.G. Mepergan Fortis 50 mg on numerous occasions. Mepergan Fortis is a Schedule II controlled substance. It is an opoiod analgesic. It contains 50 mg of Demerol. Demerol is a Schedule II controlled substance and is an opoiod analgesic. Mepergan Fortis also contains Phenergan 25 mg. In this combination the Phenergan potentiates the effect of the Demerol. Schedule II controlled substances present a high potential for abuse in relation to possible addiction. Respondent prescribed Mepergan Fortis in response to the patient's complaints and upon his clinical findings. The issue is raised whether the prescriptions were in excessive or inappropriate quantities, thus not in the best interest of the patient and not in the course of professional practice. On December 30, 1985, when Respondent first saw J.G., it was on an emergency basis. When the patient presented she complained that she had a "tooth ache." The tooth involved was No. 30. Respondent provided treatment through surgery known as an "apico" or "apicoectomy." On that date Respondent prescribed 30 Mepergan Fortis 50 mg and 15 Valium 10 mg. That series of prescriptions was repeated on January 2, 1986. Between the prescriptions given on December 30, 1985, and the repeat prescriptions on January 2, 1986, the patient's record reports that the patient had to take 2 to 3 pain medications at one time to get comfortable. The patient record indicates that C.E.S., taken to mean the Respondent, said that this was okay. The note in the patient's record concerning the amount of medication "to get comfortable" was entered December 31, 1985. On January 9, 1986, the patient J.G. received another prescription of Mepergan Fortis 50 mg from Respondent. This was a prescription for 20 tablets. An entry was made in the patient record that at the time the patient still had some swelling but the swelling should subside. On January 14, 1986, the record for patient J.G. indicates that the patient called and stated that she had some feeling in her lower lip area that was coming back and that she had pain and wanted pain medication. A note was made that C.E.S. (Respondent) would need to see the patient. A note reflects that there was still some swelling. A note was made that the patient should continue heat and antibiotics. A prescription was provided for 40 tablets V-Cillin K 500 mg. On January 14, 1986, another prescription was written by Respondent for Mepergan Fortis 50 mg, 20 tablets. On that date a note was made that the patient should call tomorrow to inform the office how she was doing. A note was made on that date that C.E.S. (Respondent) would like to see the patient in a week. The patient J.G. was seen on February 28, 1986. She was prescribed 30 tablets of Mepergan Fortis 50 mg on that date. On March 7, 1986, an entry was made in the patient record that J.G. was still hurting. A prescription for 25 tablets, Mepergan Fortis 50 mg was written on that date together with V-Cillin K 500 mg, 40 tablets. On March 14, 1986, the patient J.G. returned to Respondent for extraction of tooth No. 30. On that date the patient was prescribed 20 tablets of Mepergan Fortis 50 mg. On March 17, 1986, the patient received a prescription of 20 tablets of Mepergan Fortis 50 mg. On March 19, 1986, patient J.G. called Respondent's office stating that when she "breathed in" there was pain. The patient record notes that C.E.S. (Respondent) states that this sensation is not caused from the extraction of tooth No. 30. The patient was seen that day. C.E.S. (Respondent) checked the sensitivity of tooth No. 31. According to the patient's record the extraction site of tooth No. 30 was healing well. A prescription of 20 tablets of Mepergan Fortis, 50 mg was prescribed on that date. On March 27, 1986, the patient, J.G. complained that she was hurting and pointed to tooth No. 31. The patient said she was doing fine until the night before when she was eating. Upon examination C.E.S. (Respondent) explained that sometimes a tooth adjacent to the site of the extraction can be sensitive but usually quiets down. Further arrangements were made to address the patient's condition. Two 5 mg valium were prescribed for pre-op. On that date, a prescription was provided from Respondent to patient J.G. in the amount of 25 tablets of Mepergan Fortis 50 mg. The appointment that was to take place on March 28, 1986, for possible root canal therapy was rescheduled for April 16, 1986, upon the patient's request. On April 11, 1986, the patient called and said that she would be in Atlanta until April 21, 1986, and wanted pain medication. According to the patient record, C.E.S. (Respondent) declined to give the patient pain medication unless the patient was undergoing active and regular treatment. This was reported in the patient record as based upon "DPR Regulations." On November 5, 1986, the patient J.G. called Respondent's office. C.E.S. (Respondent) advised the patient that root canal therapy was necessary for tooth No. 18. According to the record, the patient agreed that she wanted to save that tooth. On that occasion, Respondent provided J.G. a prescription for 15 tablets of Mepergan Fortis and 40 tablets of Erythromycin, 250 mg. Some treatment was given to the patient for tooth No. 18 on that date with the expectation that the patient would be seen again in 10 days. On November 7, 1986, the patient called Respondent's office complaining that she still had some discomfort and requesting more pain medication for the weekend. According to the patient's record, C.E.S. (Respondent) "okayed" a prescription for 15 tablets of Mepergan Fortis. On November 11, 1986, according to the patient's record, the patient J.G. was still having pain in tooth No. 18 where the root canal had been done. C.E.S. (Respondent) opened the root canal, re-irrigated and devoted other attention to the problem. Respondent prescribed 15 tablets of Mepergan Fortis for pain on that occasion. On November 14, 1986, patient J.G. called Respondent's office from Miami complaining of pain and saying that she would fly back in the "p.m." According to the record, the patient reported that she had one pill left and was still having considerable pain. A note was made in the record that a prescription of Mepergan Fortis in the amount of 10 tablets would be left with a person named "Kay" at the Jiffy Store. In fact, that prescription was left at the Jiffy Store to be picked-up by the patient. On November 18, 1986, Respondent completed the root canal therapy on J.G.'s tooth No. 18. The patient's record notes that the patient was to return in three weeks for core build-up. On November 18, 1986, 15 tablets of Mepergan Fortis were prescribed for the patient. On November 19, 1986, the patient's record reflects that J.G. called reporting that she had a "terrible night" and was taking pain medication 2 or 3 at a time. The record reflects that the patient had some slight swelling. Twenty tablets of Mepergan Fortis were prescribed for the patient on that date. Forty-two Erythromycin tablets, 250 mg were also prescribed. According to the patient's record, on November 24, 1986, the patient called Respondent's office indicating that there was still some swelling, that she hurt a lot and it hurt to eat. She requested more pain medication. Respondent prescribed 28 tablets of Erythromycin 250 mg and 15 tablets of Mepergan Fortis 50 mg. On December 4, 1986, Respondent saw patient J.G. concerning tooth No. 18. On that date 15 tablets of Mepergan Fortis 50 mg were prescribed. According to the patient's record, on February 18, 1987, the patient was having "severe pain" in tooth No. 31. The tooth was marked for root canal therapy and therapy was provided on that date. On that date 20 tablets of Mepergan Fortis, 50 mg were prescribed with a prescription of 40 tablets of Erythromycin 250 mg. On March 2, 1987, in relation to tooth No. 31, there was an entry made in the patient's record that the patient was still hurting and that the tooth was sensitive to cold. C.E.S. (Respondent) made an adjustment on the tooth. On that date prescriptions of 20 tablets of Mepergan Fortis, 50 mg and 40 tablets of Erythromycin 250 mg were written. On March 5, 1987, tooth No. 31 was reopened for treatment based upon the patient's complaints of pain. The patient's record indicates that the patient was to return in about a week to decide how to proceed. On March 5, 1987, a prescription of 30 tablets of Mepergan Fortis was prescribed by Respondent. On March 9, 1987, the patient's record notes that the patient was still hurting in the area of tooth No. 31 and that C.E.S. (Respondent) had determined that an "apico" was to be done on the tooth. On March 9, 1987, thirty tablets of Mepergan Fortis were prescribed. On March 10, 1987, Respondent performed an apicoectomy on tooth No. 31. According to the patient's record, on March 11, 1987, the patient J.G. called Respondent's office and indicated that Demerol made her nauseated. Instead, J.G. requested Mepergan Fortis. Respondent prescribed 30 tablets of Mepergan Fortis, 50 mg on that date. On March 13, 1987, Respondent prescribed J.G. 20 tablets of Valium, 10 mg; 6 tablets of Phenergransupp, 50 mg; 40 tablets of Mepergan Fortis, 50 mg; and 40 tablets of Erythromycin. On March 16, 1987, patient J.G. presented to Respondent's office with a drain in her tooth that had been placed by another dentist on an emergency basis. According to the patient's record, C.E.S (Respondent) stated that he would leave the drain in until tomorrow. A note in the record on that date indicates that the patient preferred to have an antibiotic and pain medications through an I.V. given at her work. It was noted that her work was in a medical facility. The patient's record indicates that C.E.S. (Respondent) stated that this would be "fine." Demerol, 50 mg/ml was prescribed for the patient J.G. On March 17, 1987, Respondent removed the drain in J.G.'s tooth. The patient's record notes that the patient was receiving pain medication through I.M. and antibiotics through I.V. The medications were being administered by a nurse at the patient's place of employment. Respondent prescribed a 3 ml bottle of Demerol injectable, 50 mg/ml and 15 ampules of Phenergran, 50 mg/ml on that date. On March 19, 1987, the patient J.G. received 30 ml of Demerol, 50 mg/ml and 15 ampules of Phenergran, 50 mg/ml. The patient's record notes that there was some adema on that date and that the patient was reported to have taken three pain shots the day before of Demerol, 100 mg each time. On March 23, 1987, a note was made in the patient J.G.'s record concerning some compressibility experienced by the patient. Respondent prescribed 30 ml of Demerol, 50 mg/ml and 5 ampules of Phenergan, 50 mg/ml. On March 30, 1987, the patient record for J.G. indicates that the patient was still on antibiotics and was "spiking" a fever. Nonetheless, there is an entry that "the tooth does not hurt." On that date Respondent prescribed 20 tablets of Mepergan Fortis, 50 mg. On April 3, 1987, the patient called Respondent's office stating that she had an earache and wanted "something for swelling." The record notes that C.E.S. (Respondent) would give medication for pain but that nothing else is necessary. Respondent prescribed 40 tablets of Mepergan Fortis on that date. On April 8, 1987, the patient record for J.G. indicates that the patient had a little residual swelling and that the "pain level" was down quite a bit. Nonetheless, the record indicates that the patient still needed pain medication. On that date Respondent prescribed 40 tablets of Mepergan Fortis, 50mg. On April 13, 1987, the patient's record indicates that the patient J.G. called and stated that she would be in Miami for the remainder of the week and requested pain medication. On that date Respondent prescribed 20 tablets of Mepergan Fortis. On April 17, 1987, Respondent saw patient J.G. in his office. The patient was diagnosed with tendonitis, grade 4. Respondent prescribed 20 tablets of Mepergan Fortis 50mg, "1 cap of 4-6 hr prn for pain." On April 20, 1987, Respondent saw patient J.G. for TMJ treatment. On that date Respondent wrote a prescription for J.G. for 25 tablets of Mepergan Fortis. Thomas Eugene Shields, II, DDS, is licensed to practice dentistry in Florida. He reviewed the patient record for J.G. that has been described in relation to the prescription of Mepergan Fortis by Respondent. In Dr. Shields' opinion as a dentist, Respondent over-prescribed Mepergan Fortis. Dr. Shields considered Respondent's prescription of Mepergan Fortis to J.G. over time to be inappropriate. In Dr. Shields' opinion Respondent's prescribing of Mepergan Fortis to J.G. on some occasions was inappropriate as to the length of time prescribed and number of tablets prescribed. Dr. Shields referred to the frequency with which Mepergan Fortis was prescribed at times, given the closeness in time for writing the questioned prescriptions. He criticized the number of pills dispensed at a given time. In Dr. Shields' opinion there is a risk of addiction if Mepergan Fortis is over-prescribed. Given the amount and the frequency of the prescriptions of Mepergan Fortis by Respondent in this case, Dr. Shields' opinion is that any patient would suffer the risk of becoming addicted to the controlled substance. In his testimony Respondent explained that he prescribed Mepergan Fortis to J.G. because she kept complaining of pain. He commented that "some people just have a low tolerance for pain." Respondent testified that some people can take Mepergan Fortis every six hours and be comfortable while other people could take two every two hours and not be comfortable, given what their physical make-up may be. In commenting on the reason for these differences Respondent stated, "I have no idea." Given the nature of the procedures the patient was receiving Respondent had reason to believe her reports of pain. In particular, Respondent testified about the fact that a root canal can sometimes cause excruciating pain and that in doing an "apico," when you go into the bone to remove part of the root "that's pretty tough, too, a pretty tough procedure." In summarizing the reasons for prescribing the amount of prescription medications given to J.G. and whether it was inappropriate or excessive, Respondent expressed the opinion that the medications given to J.G. were necessary to alleviate the pain she had. Respondent stated that "she was a difficult patient. And we get them." Dentists other than Petitioner's principal expert, Dr. Shields, and Respondent testified concerning Respondent's practice prescribing Mepergan Fortis. Dr. Robert Romans, D.M.D. testified by deposition. He specializes in periodontics. In reviewing Respondent's record concerning the treatment of J.G., Dr. Romans referred to what he saw as "a pattern of rather strong medications in both amount and numbers." He had concerns about the quantities of those drugs being prescribed by Respondent. The drugs being referred to in his remarks were Valium, Mepergan, and Demerol. On the whole, based upon the excerpted testimony from his deposition that was introduced, Dr. Romans rendered no useful opinion concerning the alleged excessive or inappropriate quantities of Mepergan Fortis prescribed by Respondent in treating J.G. Dr. David D. Woods, an oral surgeon offered his testimony by deposition concerning Respondent's treatment of J.G. His testimony was based upon Respondent's treatment record that has been described. Dr. Woods referred to the amount of narcotics given to J.G. by Respondent as "a lot of narcotics given obviously, but it really -- it really depends on a patient." Dr. Woods testified that J.G. was probably a drug seeker and a manipulator. Having considered the excerpts in the deposition, Dr. Woods did not express an opinion concerning Respondent's prescription of Mepergan Fortis to the patient J.G. that can be relied upon. Dr. John D. Zongker practices in endodontics. He is licensed in Florida. He had the opportunity to review Respondent's treatment record for J.G. that has been described concerning prescribing Mepergan Fortis and Valium. In his deposition testimony Dr. Zongker referred to J.G., through "hind- sight," as a patient who has definitely had an abuse problem and who requested a lot of medication, that it was easy to be "hood- winked" by those kinds of patients, and that it was something for which the practitioner needed to be alert. Dr. Zongker refers to the amount of narcotics prescribed as a "little high" because of manipulation by the patient. In the deposition, in addressing whether the quantity of drugs prescribed by Respondent was high in the case of J.G., Dr. Zongker said that he felt that this was an easy trap to get into where the patient may have some legitimate pain and complaint. In which case, at some point a decision has to be made about whether the pain is real. But Dr. Zongker really arrives at no opinion in that deposition testimony concerning the prescribing by Respondent. In his testimony at hearing, Dr. Zongker indicated that he considered it appropriate for a dentist to continue use of pain medication such as Mepergan Fortis as long as the dentist felt that he was still dealing with the same pain and that the dentist believed that the patient was in pain. Dr. Zongker expressed the opinion the J.G. was a patient who required more than the normal amount of medication for the procedures she was undergoing. Dr. Zongker refers to the large dosage of Mepergan Fortis in the numbers of tablets and the fact that it had extended over several episodes of different types of treatment. He refers to the necessity at some point in time to make a decision whether a patient such as J.G. has a clinical need for the medication or a psychological need. What makes it more difficult to determine in this instance, under Dr. Zongker's analysis, is that there were a number of procedures over time making it "more hazy as to what that cut-off is" for determining whether the patient's need was clinical or psychological. Having considered all of the opinions by the experts, Dr. Shields' opinion that Respondent prescribed J.G. excessive and inappropriate quantities of Mepergan Fortis on certain occasions, when taking into consideration the amounts within the prescriptions and the frequency with which they were written, is accepted. As Petitioner's counsel conceded in that party's proposed recommended order, the proof was insufficient to show that Respondent failed to keep written dental records justifying the course of treatment of J.G. in relation to patient history, consent forms for procedures performed, treatment plans, phone call logs, duplicate copies of prescriptions or other items aside from the patient record. There was significant delay in bringing this action against Respondent. Consequently, the patient history, consent forms for treatment, treatment plans, phone call logs, and copies of prescriptions that had been maintained by Respondent were no longer available nor was it necessary for Respondent to have preserved them. The patient record constituted of patient contact entries and other data had been provided to Petitioner from another source. It is adequate to explain the circumstances concerning the prescribing of Mepergan Fortis.
Recommendation Upon consideration of the facts found and the Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered finding Respondent in violation of Section 466.028(1)(q), Florida Statutes, now Section 466.028(1)(p), Florida Statutes; imposing a 60-day suspension and a $3,000 administrative fine; and dismissing the allegations in the Amended Administrative Complaint that Respondent violated Section 466.028(1)(m) and (y), Florida Statutes. DONE AND ENTERED this 28th day of July, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 July, 2000.
