The Issue Whether respondent's license as a registered nurse should be disciplined on charges that she improperly recorded the administration and disposal of controlled substances in violation of Section 464.018(1)(d) and (f), Florida Statutes (1981).
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be administratively fined $500.00 and reprimanded for violating Section 464.018(1)(f) on three separate occasions. DONE and RECOMMENDED this 6th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of May, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Betty Bowman Fulk, pro se Apartment 1221 1500 N.W. 12th Avenue Miami, Florida 33136 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Department of Professional Regulation Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32202
The Issue The issue is whether the medical license of Respondent, Elizer F. Castro, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint. The Petitioner, Department of Professional Regulation, Board of Medical Examiners, (DPR) presented the testimony of David F. Scales, M.D., John E. Danson, and Steven J. Clark, M.D. Petitioner's Exhibits 1-3 were admitted in evidence. Respondent presented his own testimony and that of Melvin Greer, M.D., by deposition. Respondent's Exhibit 1 was admitted in evidence. DPR recalled John E. Danson for rebuttal. The transcript of the proceedings was filed on November 2, 1987. The deposition of Melvin Greer, M.D., was filed on November 24, 1987. The parties agreed that they would file proposed findings of fact and conclusions of law within ten days following the filing of the Greer deposition. DPR filed its proposed findings of fact and conclusions of law on December 4, 1987. Respondent's proposed order was filed on December 11, 1987, and is therefore untimely. It has not been considered. The proposed findings of fact submitted by DPR have been considered and a specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times relevant, Elizer F. Castro, M.D., was a licensed physician in the State of Florida, having been issued license number ME 0029506. Dr. Castro treated a patient, A.S., from May 9, 1983, to September 23, 1986. Dr. Castro treated A.S. for narcolepsy. A.S. was formerly treated by David Scales, M.D., of Jacksonville, Florida. Dr. Scales, a neurologist, treated A.S. for narcolepsy from December 16, 1982, until March or April, 1983. At that time, Dr. Scales discontinued treatment because he had received outside information that A.S. was a known drug dealer. Narcolepsy is a sleep disorder in which the patient has an uncontrollable urge to fall asleep at inappropriate times. Diagnosis of narcolepsy can only be made through a patient history and patient information regarding symptoms, past illnesses, past physicians, prior medications, sleep patterns and the existence of features associated with the disease such as cataplexy, nightmares and sleep paralysis. According to Dr. Castro, he took such a patient's history and performed a complete physical examination during the first visit by A.S. on May 9, 1983. Dr. Castro also asserted that he called Dr. Scales' office immediately following the first visit with A.S. and was advised by the physician's assistant that A.S. had been treated by Dr. Scales for narcolepsy. However, Dr. Castro's medical records, including the patient information sheet, do not contain any documentation of the history, specific examination results, or the phone calls to Dr. Scales' office. The first page of the medical records regarding A.S. which is entitled "Patient Information" reflects information regarding tests which were done on August 5, 1983, at Jacksonville Memorial Medical Center following involvement of A.S. in an automobile accident. Clearly this information was not given to Dr. Castro during the first visit of May 9, 1983 (despite Dr. Castro's testimony to the contrary), because these tests were not even done until three months after the first visit. Hence, these tests cannot be relied on by Dr. Castro to support his clinical diagnosis of narcolepsy because the tests postdate the diagnosis and because Dr. Castro never sought copies of the test results. Both Dr. Clark, DPR's expert, and Dr. Greer, Dr. Castro's expert, expressed the opinion that the medical records maintained by Dr. Castro failed to reflect an adequate history upon which to make the clinical diagnosis of narcolepsy. It is also important to perform certain tests in order to rule out other etiologies or problems which can complicate or confuse a physician in the diagnosis of narcolepsy. Here, Dr. Castro's records do not reflect any such testing prior to Dr. Castro's diagnosis of narcolepsy in A.S. In diagnosing narcolepsy in A.S., Dr. Castro acknowledged that his diagnosis was based on the representations of A.S. that he had narcolepsy and had been treated in the past for narcolepsy. Dr. Castro also stated that he did a physical examination, took an extensive patient history, and spoke to Dr. Scales' office for confirmation of the narcolepsy diagnosis. Dr. Castro did not record any of this in the patient records. Dr. Castro treated A.S. for narcolepsy by prescribing Preludin, 75 milligrams, three times per day. A.S. told Dr. Castro that that was medication he had been receiving and that was the dosage he had been receiving form Dr. Scales. In order to follow A.S. on this medication, Dr. Castro began by prescribing 45 tablets for a fifteen day supply. Dr. Castro saw A.S. at fifteen day intervals for the first few visits in order to monitor his progress and to examine him for side effects. Only after assuring himself that the dosage was correct and any side effects were being effectively managed, did Dr. Castro began prescribing the Preludin on a monthly basis. After November, 1983, Dr. Castro saw A.S. on a monthly basis to monitor his medication. Preludin is the brand name for phenmetrazine hydrochloride, which is a sympathomimetic amine and Schedule II controlled substance. The Physician's Desk Reference (PDR) is compiled by drug companies and contains data on all drugs, including indications for use, contraindications, adverse side effects, and recommended dosages. The PDR states that the maximum safe dose of Preludin is one 75 milligram tablet per day. The PDR also reflects that Preludin is contraindicated with hypertension. Dr. Castro was treating A.S. for hypertension. While Dr. Castro was prescribing Preludin in dosages beyond those set forth in the PDR, his prescription was not inappropriate. According to Dr. Greer, prescribing Preludin three times a day is a dosage that would be within a medically safe range and would be within the range appropriate within a physician's professional practice. Additionally, that prescription and dosage, being monitored on a monthly basis for side effects, would be within the range of sound medical practice. The dosage prescribed by Dr. Castro is also within the appropriate range that would be used on a patient of this type who had hypertension, as long as the physician also follows the hypertension. Here, Dr. Castro prescribed medication for A.S.'s hypertension and, according to Dr. Greer, that medication and treatment was appropriate. Dr. Castro's records reflect that A.S. was not referred for any consultations with other specialists until November 20, 1986. According to Dr. Greer, waiting two and one-half years to refer a patient for consultation with a neurologist to confirm the diagnosis of narcolepsy would be inappropriate unless the doctor had gotten additional information to confirm the diagnosis. Here, Dr. Castro asserts that he did receive additional information in the form of telephone confirmation by Dr. Scales' physician's assistant which confirmed the diagnosis of narcolepsy. Dr. Castro did not record this in his medical records. Dr. Castro practiced medicine within the community standard in his diagnosis and treatment of A.S. His failure was in the lack of documentation throughout his treatment of A.S.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order, and therein: Dismiss Counts II, III, IV, and V of the Administrative Complaint. Find Elizer F. Castro, M.D., guilty of violating Section 458.331(1)(n), Florida Statutes, as set forth in Count I of the Administrative Complaint. Assess a fine in the amount of five hundred ($500) dollars. Order Elizer F. Castro, M.D., to attend and complete continuing medical education in the area of record keeping. DONE AND ENTERED this 17th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4106 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(2); 4(3); 5(4); 6 & 7(5-7); 8(7); 9(8); 10(8); 14(10); 15(11); 16(11); 17(11); and 18(12). Proposed findings of fact 11, 12, 13, and 19-23 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Clyde E. Wolfe, Esquire 1 Corporation Square, Suite B-10 St. Augustine, Florida 32086 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue in this case is whether the Board of Medicine should discipline the Respondent's license on charges that he committed medical malpractice in violation of section 458.331(1)(t), Florida Statutes (2012), in his treatment of patient H.S. on December 1, 2012. (All statutory and rule references are to those in effect on December 1, 2012.)
Findings Of Fact The Respondent, John G. Bennett, M.D., is a licensed physician in the State of Florida, having been issued license ME 48950. His only prior discipline was in 1988 for violations not charged in this case; it resulted in two years of probation. In December 2012, the Respondent was a general practitioner working part-time for an entity called Doctors Housecalls Limited (Doctors Housecalls), which provided concierge medical care to visitors to the Miami area residing short-term in area hotels and other rental properties. When requested by a resident, the concierge would contact Doctors Housecalls by telephone and relay pertinent contact information. Doctors Housecalls would telephone a physician on its staff and relay the contact information. The physician would telephone the patient or visit the patient to initiate a doctor-patient relationship. Usually, telephone contact would result in a subsequent in-person visit with the patient. The patient would pay by cash, credit card, or insurance. Medicare and Medicaid were not accepted. The Respondent testified that on December 1, 2012, while he was either driving to dinner or already at a local restaurant, he received a call from Doctors Housecalls on his cell phone. He was given contact information for H.S. The Respondent used his cell phone to call H.S. and establish a doctor-patient relationship. The patient testified that his eyes had become irritated during a business trip to Miami Beach in December 2012. He thought he might have gotten suntan lotion in his eyes while at poolside. He called his optometrist in Pennsylvania and was given a prescription over the phone, which he filled and started taking. Although the patient could not recall the name of the medication, the evidence was clear that it was Tobramycin, an antibiotic eye drop. His Pennsylvania optometrist told the patient to go to an emergency room or get care from a local doctor if his eyes got worse. When the patient's eye irritation got worse, H.S. called the concierge where he was staying and eventually talked to the Respondent on the telephone. The patient testified that he reported the essentials of his eye problem to the Respondent--namely, that his were irritated from the suntan lotion and from the Tobramycin prescription. He testified that, in response, the Respondent prescribed a different eye drop and told him to follow up with his primary care doctor when he returned to Pennsylvania. The eye drop the Respondent prescribed was Predforte (prednisolone acetate), which is a steroid and a legend drug. The brief interaction between the Respondent and the patient was entirely by telephone. The Respondent did not see the patient in person and did not see any patient medical records or any photograph or other image of the patient's eye. The Respondent testified that initially he asked to see the patient to examine him to get a clearer picture of the patient's medical problem. He testified that the patient did not want to be seen. He testified that he then told the patient he would have to go to an emergency room and that the patient refused. He testified that he then asked some more questions and decided he could prescribe Predforte without seeing the patient. The patient denied that the Respondent asked for an in-person examination, told him to go to an emergency room, or asked him additional questions to ascertain if he could prescribe Predforte without seeing the patient. Specifically, the patient denied that the Respondent asked him if he wore contact lenses. (He normally wore them but took them out when his eyes became irritated.) He denied that the Respondent asked him if he had a history of cataracts, any recent eye surgeries, or ocular herpes. The Respondent testified that he asked these questions but did not notate the questions or the patient's negative answers in his only medical records from the encounter (which included a brief description of the presenting problems and the treatment plan in his telephone consultation form and descriptions of the diagnosis or nature of illness or injury and of the procedures, services, or supplies provided on his insurance claim form). The Respondent's testimony on these points does not ring true. While the emergency room would have taken time, the Respondent testified that he was very close to where the patient was staying when he placed the telephone call and could have gotten there to see the patient very quickly. Also, the Respondent's testimony on this point was inconsistent with the position he was taking at the hearing that the standard of care did not require him to see the patient before prescribing the Predforte. Taken as a whole, the evidence was clear and convincing that the Respondent did not insist on seeing patient H.S. and did not ask those specific questions before prescribing Predforte. At most, the Respondent may have asked a general question whether the patient had any other eye problems and gotten a negative answer. The patient's eyes got better, and he did not seek any further medical attention in Florida. About a week after his return to Pennsylvania, he followed up with his primary care doctor. By then, his eyes were better. It is not clear from the evidence why the patient's eyes got better. DOH's expert, Dr. Eugene Crouch, testified that the Respondent's treatment of H.S. was below the standard of care. He testified that it was necessary to physically examine the patient's eye, front and back using an ophthalmoscope. He testified that it also was necessary for the Respondent to get a complete medical history, including when the problem started, the circumstances that might have caused it, if the patient was taking medication that could have caused it, if there were vision changes, if the patient smoked cigarettes, if the patient was seen for the problem by another treating physician, if there was drainage coming from the eye, if the patient wore contact lenses, or if the patient had cataracts, glaucoma, recent eye surgeries, or ocular herpes. Although it is rare, ruling out ocular herpes is especially important because the steroid prescribed by the Respondent "blunts the immune system, so the virus would take over, which is potentially devastating [and] an absolute crisis at that point." Dr. Crouch testified convincingly that the eye is "tricky" for a general practitioner to diagnose and treat, and the consequences of falling below the standard of care can be serious. Contrary to the Respondent's suggestion, he did not meet the standard of care by prescribing Predforte and telling the patient to seek further treatment if the problem got worse. Dr. Crouch did not review the Board's rule 64B8-9.014 on the standards for telemedicine prescribing practice, or determine whether the Respondent complied with it, before reaching his opinion on the standard of care. Neither the rule nor the Respondent's compliance with it affected Dr. Crouch's opinion. Regardless of that and other efforts to impeach Dr. Crouch's credibility, Dr. Crouch's opinion is accepted and is clear and convincing evidence that the Respondent did not meet the standard of care in his treatment of patient H.S. The Respondent takes the position that DOH is estopped from charging him with medical malpractice under section 458.331(1)(t) because it waived that charge by agreeing to dismiss, with prejudice, the count charging a violation of rule 64B8-9.014. To the contrary, it is clear that DOH had no intention of waiving the medical malpractice charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding the Respondent guilty of one count of medical malpractice in violation of section 458.331(1)(t), fining him $5,000, placing him on one year of indirect supervision probation with appropriate terms and conditions, and assessing costs of investigation and prosecution. DONE AND ENTERED this 29th day of July, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 29th day of July, 2015. COPIES FURNISHED: Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed) Daniel Hernandez, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Ronald Chapman, Esquire Chapman Law Group 1834 Main Street Sarasota, Florida 34236-5912 Steven D. Brownlee, Esquire Chapman Law Group 1834 Main Street Sarasota, Florida 34236-5912 (eServed) Jack F. Wise, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Yolonda Y. Green, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed)
The Issue The issues in this case are whether the allegations of the Amended Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a licensed physician in the State of Florida, holding license number ME 81249. At all times material to this case, the Respondent was board-certified in family medicine. The Respondent held no board certification at the time of the administrative hearing, and, according to his response to the Petitioner's First Request for Admissions, the family medicine certification expired in July 2007. On February 8, 2006, the Respondent prescribed hydrocodone (10/325, generic Norco, 10mg.) to Patient M.R. through an internet service called ERMeds.com. On June 26, 2006, the Respondent prescribed hydrocodone (Hydro/APAP 10/325, generic Norco, 10/325) to Patient M.R. through the internet service called ERMeds.com. Hydrocodone is a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Hydrocodone/APAP is hydrocodone combined with acetaminophen, and the combined drug is a Schedule III controlled substance listed in Chapter 893, Florida Statutes. Both hydrocodone and hydrocodone/APAP have high potential for abuse and addiction. The prescriptions issued to Patient M.R. contained the Respondent's identification including address and DEA number on the prescription form, as well as the Respondent's electronic facsimile signature. The Respondent had no contact with Patient M.R. either before or after the prescription was issued to Patient M.R. The Respondent conducted no health evaluation of Patient M.R. The Respondent did not obtain or review any medical information related to Patient M.R. The Respondent testified during deposition that a physician's assistant for whom the Respondent was the supervising physician was responsible for gathering and reviewing medical information from the patient. According to the Respondent's response to the Petitioner's First Request for Admissions, the physician's assistant obtained patient history, including current medications and complaints, and the "information was available to Respondent at the time the prescriptions were authorized." According to the Respondent's response to the Petitioner's First Request for Admissions, a completed medical questionnaire was available for the Respondent's review. There is no evidence that the Respondent reviewed any information or questionnaire regarding the patient's medical history or complaint either before or at the time the prescriptions were authorized. The Respondent did not know and never met the physician's assistant and was unable to recall the last name of the physician's assistant. There is no evidence that the Respondent had any discussion with any physician's assistant related to Patient M.R. either before or at the time the prescriptions were authorized. At the hearing, the Petitioner presented the testimony of Bernd Wollschlaeger, M.D., a Florida-licensed physician holding board certification in family practice. Dr. Wollschlaeger testified that a physician must evaluate a patient, take a patient's medical history, review any available medical records, and document the findings and diagnosis in a contemporaneous record prior to issuing a prescription for hydrocodone to a patient. Based upon the Respondent's deposition testimony and the responses to the Petitioner's First Request for Admissions, it is clear that the Respondent failed to evaluate Patient M.R. in any respect prior to issuing the prescriptions for hydrocodone to the patient. The Respondent reviewed no medical history or records related to Patient M.R. The Respondent failed to diagnose any medical condition that would support prescribing hydrocodone to Patient M.R. The Respondent failed to document any medical information related to Patient M.R. in any written record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Gerard Romain, M.D., in violation of Subsections 458.331(1)(m), 458.331(1)(q), and 458.331(1)(t), Florida Statutes (2005), and imposing a penalty as follows: a reprimand; a three-year period of probation, the first year of which shall include a prohibition on issuing prescriptions for Schedule II and III controlled substances; an administrative fine of $20,000.00; and such additional continuing education and community service requirements as the Department of Health determines appropriate. DONE AND ENTERED this 23rd day of September, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 23rd day of September, 2008. COPIES FURNISHED: Elana J. Jones, Esquire Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Dale R. Sisco, Esquire Stacy Estes, Esquire Sisco-Law Post Office Box 3382 Tampa, Florida 33601-3382 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact The Respondent is a registered nurse holding License No. 0936792 issued by the Florida State Board of Nursing. The Respondent was employed as a registered nurse at Shands Teaching Hospital in Gainesville, Florida, from August of 1978, until April, 1979. Her duties were as a nursing team leader and medication nurse on the fourth floor. The fourth floor unit to which the Respondent was assigned was a 52-to-56- bed unit. Staff on this floor consisted of a charge nurse in charge of the floor and two to four registered nurses. Patient census on this unit ran from 40 to 56 patients. This was a general medical ward whose patients included the chronically ill. (a) Regarding the allegations of Count 1 of the Administrative Complaint related to the patient Gussie Sims Gardner, the hospital records reveal the patient was not admitted to the hospital until 2225 hours on March 24, 1979. The individual responsible for initial preparation of the medication administration record (MAR) did not cross through the times prior to the administration of the patient's first medications as required by the hospital's protocols. See Exhibit 1, Medication Record (Form No. 15-02-41-2), page 2, paragraph 5. Because of this failure, the initial entries for medication administered to the patient on March 25 were transposed to the date of March 24, and the entries for March 26 were placed in the column far March 25. After two days this error was apparently discovered, and no entries were made in the column for March 26. The Respondent cannot be held responsible for this error, because she was not on duty when the patient was admitted. Under the hospital's standard operating procedures (SOP), the first individual administering medication should have crossed out the dates and times in such a manner that this error could not occur. (b) Regarding Counts 1 and 2 of the Administrative Complaint, the Control Substance Form (CSF) does reflect that the Respondent withdrew two Darvon 65, a Class IV controlled substance, on March 25, 1979. The Respondent recorded the administration of the Darvon at the appropriate time but under the date of March 24, 1979. Only the administration of this medication at 0830 hours on March 25 was noted by the Respondent in the nurses' notes. (c) Regarding the allegations of Count 4, recording of the entries for March 25 and 26 under the dates of March 24 and 25 resulted in no entries being made on the MAR on March 26 by any of the nursing staff. (d) Regarding the allegations of Counts 6 and 8 that the physician's order entered March 24 for Oarvom 65 was no longer effective on March 28, Exhibit 1, the Formulary, page VIII, provides that stop orders occur automatically at the end of 48 hours for narcotics and at the end of seven days for all other drugs unless renewed. The Formulary differentiates on page IX between narcotics and other controlled substances. Darvon, while a controlled substance, is not a narcotic and therefore would not be terminated at the end of 48 hours, but at the end of seven days. The administration of this drug by the Respondent on March 28 was not precluded by the hospital's regulations. (e) Regarding the allegations contained in Counts 3, 5, 7 and 9, there is no substantial evidence that the Respondent possessed any controlled substance for any purpose other than the administration of the substance to the patient. No substantial and competent evidence was presented that the medications were not administered to the patient as recorded in the written records of the hospital. (a) Regarding the allegations concerning the patient Mary Lee Love Graham contained in Count 10 of the administrative Complaint, the CSF reflects two doses of Codeine were signed out by the Respondent for this patient on March 25, 1979. The appropriate entries were made on the MAR by the Respondent. Although the 1200 hour administration of medication was charted in the nurses' notes, the administration of the medication at 0830 hours was not charted by the Respondent. Similarly, the administration of Codeine 60 to this patient at 2200 hours was not charted by Nurse Wigginton on March 24, 1979. (b) Regarding Count 12 of the Administrative Complaint, the MAR reflects that Graham received Codeine 60 at 0400 hours from Wigginton and at 0800 hours from the Respondent on march 26, 1979. The nursing notes do not reflect the administration of Codeine 60 at either time. On March 27, 1979, the Respondent apparently administered no medications to this patient; however, the administration of Codeine 60 to this patient at 1600 hours on March 27, 1979, was not charted in the nursing notes. (c) Regarding the allegations of Count 14 in the Administrative Complaint, the MAR and CSF agree regarding the administration of Codeine 60 to Graham on March 26, 1979, at 0800 and 1400 hours by the Respondent. The administration of the medication at 0800 hours was not charted in the nursing notes, as was the administration of the same medication at 2300 hours on the same date by another nurse. Although the physician's orders were not renewed and therefore terminated at the end of 48 hours as discussed above, the MAR was not changed to reflect discontinuation of this medication, and all staff nurses, to include the Respondent, continued to administer Codeine 60 to this patient after the physician's orders ceased. (d) Regarding the allegations contained in Counts 11, 13 and 15, there is no substantial and competent evidence that the Respondent possessed any controlled substance for any purpose other than its administration to a patient. There is no substantial and competent evidence that the medications were not administered as charted. (a) Regarding the allegations contained in Count 16 concerning the patient Marshal Rex Burk, the MAR and CSF records reflect administration of Darvon 65 by the Respondent to this patient at 1000 hours on March 24, 1979. This was not charted by the Respondent in the nursing notes. As stated above, the drug Darvon 65 is not a narcotic drug and not subject to automatic termination at the end of 48 hours. Thee administration of Darvon 65 on March 24, 1979, was pursuant to a physician's order entered on March 19, 1979. (b) Regarding the allegations of Count 18, the CSF and MAR reflect administration of Darvon 65 to Burk at 1000 hours on March 25, 1979, by the Respondent. The Respondent did not chart this in the nurses notes. The physician's order for Darvon remained valid on March 25, 1979. (c) Regarding the patient Burk, the MAR reflects that Dalmane, a Class IV controlled substance, was administered March 21, 22, 23 arid 25 by a staff nurse. The administration of this medication was not charted in the nursing notes, and a review of the physician's orders for this patient does not reflect an order for Dalmane being entered until March 29, 1979. A review of the nursing notes for this patient reveals no charting for March 27, 1979. The SOP for charting provides a minimum of one charting for each patient per shift. (d) The allegations contained in Counts 17 and 19 are not proven. The records reflect the Respondent signed out for Darvon 65 and administered it to the patient. (a) Regarding the allegations contained in Count 20 of the Administrative Complaint concerning the patient Willie Mae Bender Tison, the CSF shows the Respondent signed out for two doses of Darvon 65 on March 24, 1979, for this patient. The MAR reflects administration at 0330 hours on March 24, 1979. The nursing notes do not reflect administration of Darvon 65 to his patient on March 24, 1979. One Darvon 65 was not accounted for in the records. (b) Regarding this patient, his MAR indicates the patient started receiving drugs on March 17, 1979; however, the admitting data and nursing notes reflect that this patient was not admitted until 1450 hours on March 21, 1979. The data contained in the MAR from March 17 until March 24 is clearly in error. (c) Regarding Count 21, although the facts indicate the Respondent did not chart the administration of one Darvon 65 to the patient Tison, no evidence was introduced that the Respondent took the medication herself or retained the medication for sale or distribution. (a) Regarding the allegations in the Administrative Complaint contained in Count 22 relating to the patient Frances Louise Blocker Medina, the MAR reveals that Percodan was administered to this patient on March 24, 1979, at 0530 hours, 0930 hours by the Respondent, 1300 hours by the Respondent and 2200 hours. The CSF reflects that the Respondent withdrew two doses of Percodan for the Respondent on March 24, 1979. The Respondent recorded the administration of the medication to this patient at 1300 hours in the nursing notes. No entries were made in the nursing notes for March 24, 1979, reflecting the administration of Percodan at 0530 hours, 0930 hours and 2200 hours by the Respondent and others. (b) Regarding the allegations of Count 24, the MAR reflects that the Respondent administered Percodan to this patient at 0700 hours and 1100 hours on March 25, 1979. The Respondent charted the administration of this medication to this patient in the nursing notes at 0730 hours and 1030 hours. The CSF shows the Respondent signed out for two Percodan for this patient on March 25, 1979. The MAR also reveals that this patient received Percodan at 1830 hours on March 25, 1979, from another nurse. The nursing notes do not reflect charting of this medication. (c) Regarding the allegations in Count 26, the CSF reflects that the Respondent signed out for two doses of Percodan for this patient on March 26, 1979. The MAR reflects administration of Percodan to this patient at 0200 hours, 0800 hours by the Respondent, 1400 hours by the Respondent and 2000 hours on March 26, 1979. The nursing notes reflect only the administration of this medication for 2000 hours. (d) Regarding the allegations of Count 28, the medical records of this patient reflect that staff nurses, to include the Respondent, continued to give the patient Percodan, a narcotic, although the physician's order for this medication automatically terminated. (e) Regarding the allegations of Count 30, the MAR and CSF reflect that the Respondent administered one Percodan to this patient on March 28, 1979. The Respondent failed to chart the administration of this medication to this patient in the nursing notes. (f) Regarding Counts 23, 25, 27, 29 and 31, no substantial and competent evidence was presented that the Respondent maintained possession of any drug. The records reflect that all drugs signed out by the Respondent were administered to the patient. (a) Regarding allegations contained in Count 32 of the Administrative Complaint concerning the patient Ruby Lee Denson Standback Woodburne, the times on the exhibit copies of the CSF are illegible. However, the MAR and CSF do reflect that the Darvon 65 checked out for this patient by the Respondent on Marcy 24, 1979, was administered to the patient. The nursing notes reflect administration of the medication to the patient. (b) Regarding the allegations in Count 34, the CSF shows the Respondent signed out for Darvon 65 two times on March 25, 1979, for this patient. The MAR reflects the Respondent administered Darvon 65 to the patient at 0830 hours and 1200 hours. The nursing notes reflect that Darvon 65 was administered at 1200 hours but not at 0830 hours. (c) Regarding the allegations of Count 36, the MAR and CSF records show the Respondent medicated the patient at 0800 hours and 1200 hours on March 26, 1979, with Darvon 65. The Respondent charted the administration at 1200 hours in the nursing notes but failed to chart the administration at 0800 hours. (d) Regarding the allegations of Count 38, the CSF reflects the Respondent withdraw one Darvon 65 for this patient on March 27, 1979. The MAR does not reflect administration of this medication; however, the nursing notes reflect the administration of Darvon at 0830 hours on March 27, 1979. (e) The medical service orders for this patient were renewed March 22, 1979, after Use patient's surgery. Presumably, this would have renewed the Darvon 65 order of March 17, 1979, and it would have been effective through March 29, 1970. (f) Regarding Counts 33, 35, 37 and 39, there is no evidence that any medication was net administered to the patient as reflected in the records. Although the MAR entry was not made on March 27, 1979, a nursing note does reflect administration of Darvon 65 on that date by the Respondent. (a) Regarding the allegation contained In Count 40 of the Administrative Complaint concerning the patient Willie Mae Hair, the CSF and MAR records reflect the Respondent administered Darvon 65 to this patient at 0830 hours on March 24, 1979. No entry was made in the nursing notes by the Respondent for this date. Although the patient was discharged on March 24, she was medicated for pain in the evening of March 23, and the nursing note for 0145 hours of March 24 reflects that the nursing staff apparently expected her to experience pain. (b) There is no substantial and competent evidence to support the allegation of Count 41. All medications checked out by the Respondent for this patient were administered according to the records. Regarding Count 42 of the Administrative Complaint, Exhibit 11 reveals that on several occasions the Respondent wasted medications without the required countersignatures of another staff member. There was no substantial and competent evidence presented that the Respondent converted any of the drugs wasted to her own use. To the contrary, although improperly witnessed, the records reflect that the medications were wasted. Review of Exhibit 1, containing extracts of the hospital's SOP's for controlled substances and charting, does not reveal any requirement that the specific time of withdrawal of a controlled substance be entered on the CSF. Exhibit 1 does reflect that medication may be prepared and placed upon a lockable medicine cart. The nature of the entries on the MAR reflect that medications were drawn at one time from the controlled substance container for administration to patients during a shift. The SOP for charting nursing notes does not require that the administration of medication be noted. However, the SOP for administration of medication would require noting the patient's complaint and the patient's response to medication in the nursing notes if a prn medication were administered. Gross departures from the hospital's SOP's regarding controlled substances and charting of nursing notes occurred among staff nurses employed on the fourth floor at the time in question due to staffing shortages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that no action be taken against the Respondent. DONE and ORDERED this day of January, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael I. Schwartz, Esquire Suite 201, Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 Irving J. Whitman, Esquire 9595 North Kendall Drive, Suite 103 Miami, Florida 33176 Geraldine B. Johnson, R. N. State Board of Nursing 111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202
The Issue The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, has been the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was a licensed physician in Florida under license number ME 0039846. On September 23, 1988, Respondent saw Patient #1, a 55 year old female, who presented with a primary complaint of chronic pain in the neck and low back resulting from an automobile accident. The patient history taken by the Respondent revealed a head injury, a back injury and a whiplash injury, all within the previous five years. The patient also had a history of unstable blood pressure, especially in times of stress, and a history of alcohol abuse which had been in remission for the past two years. Respondent examined the patient and found she was suffering from depression but evidenced no suicidal ideations or indications of psychosis. Respondent diagnosed a major depressive reaction and myofacial syndrome of the neck and low back. Dr. Morales treated this patient from September 23, 1988 to February 1, 1990, prescribing various antidepressants and anti-anxiety medications including Limbitrol, Prozac, Valium, Halcion and Tranxene for her. He also prescribed various opiates including Percodan and Percocet. Respondent claims he made a copy of each prescription he wrote for the patient medical records of each patient so that he could keep track of the number of pills he prescribed for that patient. He claims that the quantity of a prescribed medication was kept in a separate area of the patient's chart and not with the clinical notes. Though Respondent claims this procedure was a common office practice and done consistently in every patient's chart, the evidence indicates otherwise. His method of recording medication in the clinical record was inconsistent. At some places in the record he would indicate the exact number of a specific pill prescribed. At other places in the record, he would not. Examples of this practice, as seen from the medical records of Patient #1 available, shows the following entries: October 20, 1988, Rx for Valium for patient #1 but no indication of the amount prescribed is found in the records. March 2, 1989, Rx for Percodan QID (4 times a day), but no indication in records of the amount prescribed. July 8, 1989 Rx for Percodan - 60 tabs. August 2, 1989 Respondent notes to continue with Percoset, but no notation in records as to amount. September 7, 1989 Rx for Percocet but records do not reflect amount prescribed. November 15, 1989 Rx for 60 Percocet. December 6, 1989 Rx for 30 Percocet pills. While Patient #1 was under Respondent's care, she was admitted to the hospital twice. On September 18, 1989 she was admitted to Largo Medical Center for narcotics addiction and was discharged on September 28, 1989. On September 18, 1989, while the patient was in the hospital, Dr. Farullah, a staff physician, called Respondent to discuss the patient with him. This conversation, including the Respondent's name, is itemized in the hospital records for this patient. It is appropriate practice protocol upon the admission of a patient to the hospital for the admitting physician to notify the patient's attending physician about the patient's diagnoses and condition. It would appear this was done here by Dr. Farullah. Nonetheless, Respondent claims he did not know the patient was hospitalized, contending he did not recall the conversation, and noting that the information regarding hospitalization might not have been included in it. Respondent claims he never heard of Dr. Farulla until a subsequent visit from the patient in his office on October 24, 1989. After the patient's discharge from the hospital, she came to Respondent's office for a 30 minute visit on October 4, 1989. Though this visit occurred only 6 days after her discharge from the hospital, Respondent claims the subject of her hospitalization was not discussed. Two days later, on October 6, 1989, the patient returned to Respondent's office for another 30 minute visit and again, the subject of her hospitalization did not come up. This patient was readmitted to the hospital on October 10, 1989 with a diagnosis of, among other things, drug dependency. She was discharged on October 20, 1989, but, again, Respondent claims he did not know of her hospitalization. He saw her on October 24, 1989 for another 30 minute visit during which, he claims, the subject of her hospitalization did not come up. This appears to be a conflict with his previous testimony , noted in Paragraph 8, supra, wherein he stated he never heard of Dr. Farullah until he met with the patient in his office on October 24, 1989. On April 10, 1990, in the course of filing a disability claim with the Department of Health and Rehabilitative Services, (DHRS), the patient signed a medical release form. Thereafter, HRS requested the patient's records from the Respondent, but they were not forthcoming. A second request was transmitted to the Respondent who replied that the records requested had been copied but not dispatched because no release form accompanied the request. Respondent indicated that upon receipt of the release form, the records would be forwarded, and on June 4, 1990, they were, in fact, sent by the Respondent. This was approximately 17 months before the burglary of Respondent's office to be discussed, infra. Respondent claims it was his policy, however, in responding to requests for information to the Social Security Administration, (disability claims are paid by Social Security), to provide only clinical notes, initial evaluation, and a medical summary update. Other records, including prescription records, are not sent. Respondent's office was burglarized on November 30, 1991 by one of his former employees. According to Respondent, all the medical records he had were taken during the break-in. Though they were ultimately returned, he claims they were incomplete when returned. However, comparison done by the Department's investigator, of the medical records of Patient #1 which were sent to HRS before the burglary with those taken from Respondent's office after the burglary, indicated they were the same, except for some duplicates. Nonetheless, Respondent claims that some of the records pertaining to Patient #1, including prescription records, were not recovered. This could explain the absence of prescription records in both sets of records, but that is not found to be the case here, however. According to the Board's expert, Dr. Boorstin, a Board Certified Psychiatrist who specializes in addiction psychiatry and opiastic medicine, the benzodiazepins prescribed for Patient #1 by the Respondent, were inappropriate because of her known alcoholism, and he failed to adequately monitor her for possible addiction or dependence. Even though her condition had been in remission for two years, Dr. Boorstin concluded it was below standard practice to prescribe those drugs to this patient. Dr. Boorstin also concluded that Respondent failed to keep adequate written medical records for this patient and did not justify the less than conservative prescription of anti-anxiety and pain medications to a known alcoholic. A physician must keep track of the drugs being used by a patient to be sure no abuse trends exist. The Respondent should have detailed with exactitude in his records the number of each specific medication. From September 30, 1988 to February 1, 1990, a period of 16 months, he prescribed various opiate-based pain killers to Patient #1, including Tylenol #3, Codeine, Percodan and Percocet. His prescription of the latter two, in Dr. Boorstin's opinion, fell below the appropriate standard of care. The patient's hospital records indicate she was suffering from drug addiction, and if, as the Department claims, Respondent knew of her hospitalizations and the reason therefor, his prescription of liberal amounts of opiate based drugs was inappropriate. The evidence shows the patient was admitted to the hospital on two occasions, both times for, among other problems, drug addiction. Less than one month after her second discharge, Respondent prescribed Percocet for this patient for pain relief at a rate of two tables every six hours. According to Dr. Boorstin, the usual adult dosage is one tablet every six hours. This is outlined in the Physician's Desk Reference, (PDR), a compendium of drugs and medications with manufacturer's recommendations for dosage. Though authoritative in nature, the PDR is not mandatory in application, and physicians often use it as a guide only, modifying strength and dosage as is felt appropriate for the circumstance. On at least one occasion, Respondent's medical records for this patient show he prescribed Percocet but not the amount prescribed. This is below standard. The same is true for the noted prescription for Percodan. Both Percodan and Percocet are Schedule II drugs. A notation in the records for a prescription for Valium also reveals no indication was given as to the amount prescribed. Again, this is below standard. Dr. Boorstin's opinion is contradicted by that of Dr. Wen-Hsien Wu, the Director of the Pain Management Center at the Schools of Dentistry and Medicine of New Jersey, the New Jersey Medical School, who testified by deposition for the Respondent. Dr. Wu claims he has prescribed medications in amounts and dosages far in excess of those prescribed by Respondent and for a much longer period of time. Wu is Board certified in anesthesiology and has published numerous articles on pain management. Dr. Wu contends there is no contraindication for the use of narcotic therapy in Patient #1's alcoholism. The use of narcotics is appropriate if the patient can return to function with careful monitoring. Here, it would appear that Patient #1 was monitored through her frequent visits to the Respondent's office. It is impossible to tell from the Respondent's patient records just how much medication he prescribed for his patient. Because of the failure to indicate the number of pills of each type Respondent was prescribing, it is impossible to form a conclusion as to whether the amount prescribed was appropriate or excessive. Notwithstanding Respondent's claim in his Proposed Findings of Fact that "...there is no indication of drug abuse in the prescribed drug area", the medical records show that on each admission of Patient #1, a diagnosis of drug addiction was made. To be sure, these records do not reflect the drug to which the addiction relates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein finding Respondent guilty of all allegations except prescribing in inappropriate amounts. It is also recommended that Respondent be ordered to pay an administrative fine of $3,500 within 90 days of the date of the Final Order herein, be reprimanded, and within one year of the date of the Final Order herein, attend continuing medical education courses at the University of South Florida Medical School in appropriate medical record keeping and in the prescribing of abusable drugs. RECOMMENDED this 12th day of June, 1995, 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 12th day of June, 1995. APPENDIX TO RECOMMENDED ORDER 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: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. - 15. Accepted and incorporated herein. 16. - 19. Accepted and incorporated herein. & 21. Accepted as a representation by Respondent. Accepted as Respondent's position but not accepted as fact. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. Rejected as unproven. & 30. Accepted but repetitive of other evidence previously admitted. 31. & 32. Accepted and incorporated herein. - 38. Not appropriate Findings of Fact but merely recitations of the contents of records. Accepted and incorporated herein. - 42. Restatement of witness testimony. FOR THE RESPONDENT: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. & 7. Accepted as testimony of Respondent, but not as probative of any issue. 8. - 11. Accepted and incorporated herein 12. & 13. Accepted. 14. - 16. Accepted and incorporated herein. 17. Accepted. 18. & 19. Accepted. 20. Accepted. 21. Accepted. 22. - 24. Accepted. 25. - 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. Accepted. & 34. Accepted as opinions of the witness, but not as the ultimate fact. Accepted as to admissions but rejected as to Respondent not being advised. Accepted and incorporated herein. COPIES FURNISHED: Steven A, Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33617 Grover C. Freeman, Esquire Freeman, Hunter & Malloy 201 E. Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issues in this case are whether Respondent, a physician, failed to adhere to the applicable level of care in prescribing controlled substances; failed to follow standards for the use of controlled substances for the treatment of pain; and failed to keep legible medical records justifying the course of a patient's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Lowell Anthony Adkins, M.D., was licensed to practice medicine in the state of Florida. Dr. Adkins is a family practitioner who has a clinical interest in pain management. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Adkins. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Adkins committed three such offenses——namely, failure to adhere to the applicable level of care in prescribing controlled substances; failure to follow standards for the use of controlled substances for the treatment of pain; and failure to keep legible medical records justifying the course of treatment——in connection with the care he provided to J.D., a young adult (early twenties) whom Dr. Adkins saw on about a half-dozen occasions between September 2007 and March 2008. The events giving rise to this dispute began on September 19, 2007, when J.D. was first seen by Dr. Adkins. J.D. presented with complaints of chronic pain in both knees, which were swollen, and a history of juvenile arthritis. Until recently before this visit, J.D. had been treated for several months by a Dr. Gelinas, who had prescribed Vicodin to alleviate the pain. J.D. told Dr. Adkins that the Vicodin had made him nauseous and failed to control his pain. He also reported that nonsteroidal anti-inflammatory drugs ("NSAIDs") caused him to have nosebleeds. Dr. Adkins took J.D.'s medical history and performed a physical examination. J.D. characterized the degree of pain he was experiencing as severe (grading it as 8 on a scale of 1 to 10 with 10 being the worst), which was an exaggeration intended to deceive the doctor (although he did in fact have some pain). As part of his ruse, which fooled Dr. Adkins, J.D. purposely faked the range of motion tests to give the impression that the condition of his knees was worse than it actually was. J.D. was not candid with Dr. Adkins in providing information about his symptoms because——unknown to Dr. Adkins at the time, who reasonably assumed that his patient's statements for purposes of medical diagnosis or treatment were reliable1——J.D. was addicted to narcotic pain medication and wanted a prescription to feed this addiction. Dr. Adkins wrote a prescription authorizing J.D. to obtain 60 tablets of Oxycodone having a dosage of 15 milligrams ("mg") apiece. Because Oxycodone is a narcotic pain reliever, Dr. Adkins required J.D. to sign a Medication Contract, which enumerated J.D.'s responsibilities regarding the proper use of the controlled substances he was being prescribed. The terms and conditions of the contract included the following: The physicians and staff of Lowell Adkins M.D.P.A. will be the ONLY physicians that will be writing for these medications and I will not seek these medications from other physicians, INCLUDING EMERGENCY ROOM PHYSICIANS. . . . I will take the medications as prescribed and not take more on a daily basis unless approved by my physician. At the initial visit on September 19, 2007, J.D. also signed a release authorizing Dr. Gelinas to provide copies of J.D.'s medical records to Dr. Adkins, which was done. Dr. Gelinas's handwritten chart is largely illegible, but it shows that J.D. carried a diagnosis of arthralgia (joint pain) based on the problems he was having with his knees. In addition, the records included the radiologist's report regarding an MRI of J.D.'s right knee, which had been examined on July 31, 2007. The MRI report gives as J.D.'s diagnosis: "History of juvenile rheumatoid arthritis since age 12. Complaints of pain, crepitus, locking, and instability." The study did not discover any significant damage or disease, except for a "tiny incipient Baker's cyst." For the next half-year, J.D. saw Dr. Adkins on a monthly basis. J.D. continued to complain of chronic pain and repeatedly reported that the pain medication Dr. Adkins was prescribing was not adequately controlling his pain. For much of this time, J.D. held two jobs, working full-time as a small- engine mechanic until being laid off in December 2007, and moonlighting in a sporting goods store, which became his only source of income after the loss of his regular job. These jobs required J.D. to be physically active, and Dr. Adkins periodically increased the dosage of the pain medication he was prescribing, so that J.D. could function at work. Dr. Adkins ordered X-rays of J.D.'s knees as well, but J.D. declined to get them. While under Dr. Adkins's care, J.D. suffered at least two traumatic injuries requiring treatment for acute pain. In October 2007, J.D. injured his shoulder at work and went to an urgent care center for treatment. The doctor prescribed Oxycodone to control the pain associated with this injury. J.D. told Dr. Adkins that he had hurt his shoulder but did not let Dr. Adkins know that he had obtained a prescription for Oxycodone from another physician, in violation of the Medication Contract he had entered into. On or about December 29, 2007, J.D. suffered a serious and painful injury to his finger at work. For this he went to the emergency room, accompanied by his mother who told the ER doctor that J.D. was addicted to, and abusing, narcotic pain medication. Despite the objection of J.D.'s mother, the ER doctor prescribed Oxycodone for pain. Thereafter, J.D. visited a workers' compensation physician for treatment of this same injury, and he was again prescribed Oxycodone. J.D. informed Dr. Adkins of the injury to his finger but not these prescriptions, which represented additional breaches of the Medication Contract.2 A couple of months before the trip to the ER described above, J.D.'s mother ("T.R.") had attempted to stop Dr. Adkins from prescribing Oxycodone to J.D., raising similar concerns about J.D.'s alleged drug abuse. On November 26, 2007, she had dropped by Dr. Adkins's office to report to him that J.D. was crushing and snorting his pain medication. Dr. Adkins was not immediately available, so T.R. left her business card and requested that Dr. Adkins call her, which he did later that evening. Upon hearing T.R.'s concerns, Dr. Adkins requested that she arrange to accompany J.D. on his next office visit, so that the three of them could discuss the situation together. T.R. did show up for J.D.'s next doctor's appointment, on December 14, 2007. J.D., however, had not invited her, and he became very angry when, upon arriving at Dr. Adkins's office, he found his mother already waiting there. The two argued loudly in the reception area, causing a scene. J.D. refused to allow his mother to come into the examination room with him and Dr. Adkins. Consequently, Dr. Adkins met separately with J.D. and T.R. T.R. told Dr. Adkins that J.D. was on probation as a result of drug-related charges and that he was participating in a Drug Court program, but she apparently provided no paperwork to substantiate these assertions. Dr. Adkins had not been aware that J.D. might be in trouble with the law, and he was somewhat surprised by the news because ordinarily the authorities contact him when a patient of his has been arrested for unlawful possession or use of prescription medication. T.R. further claimed that J.D. had been snorting his medication, although she had not actually seen him do so. T.R.'s concerns upset Dr. Adkins, and when he met with J.D. alone, he lectured him on the need for strict compliance with the Medication Contract. Dr. Adkins told J.D. that he would be discharged from Dr. Adkins's practice if J.D. ever snorted the medication again. Dr. Adkins ordered a urine toxicology screen and required J.D. to be tested. J.D. complied, and the drug screen was negative for illegal substances. Dr. Adkins agreed to continue treating J.D. with narcotic analgesics. When J.D. lost his full-time job in December 2007, he lost his health insurance. After that, J.D. paid out-of-pocket for his doctor's appointments. Following a visit on March 19, 2008, however, J.D. stopped seeing Dr. Adkins. In summary, Dr. Adkins prescribed Oxycodone to J.D. in the following dosages and amounts, on the dates shown below: Date Dosage Amount 09/19/07 15 mg 60 tablets 10/19/07 30 mg 90 tablets 11/16/07 30 mg 120 tablets 12/14/07 30 mg 120 tablets 01/14/08 30 mg 150 tablets 02/22/08 30 mg 150 tablets 03/19/08 30 mg 180 tablets The Department's expert witness, Marc R. Gerber, M.D., testified at hearing that the foregoing amounts and dosages of opioids, which Dr. Adkins prescribed to J.D., did not violate the standard of care. T. 165. The undersigned finds this to be true, based on Dr. Gerber's testimony. In its Amended Administrative Complaint, the Department alleged that Dr. Adkins had practiced below the requisite level of care in prescribing narcotic pain medication to J.D.——and thus violated section 458.326(3), Florida Statutes3——in one or more of the following ways: By failing to diagnose Patient J.D. with intractable pain; and/or By failing to refer Patient J.D. to a Psychiatric-addiction specialist, especially after he was informed by Patient's mother that he was, allegedly, an addict; and/or By failing to refer Patient J.D. to an orthopedic specialist to have the pain in his knee evaluated; and/or By prescribing excessive narcotics for Patient J.D.'s alleged pain condition prior to exploring the effectiveness of other NSAIDs; and/or By failing to refer Patient J.D. to a rheumatoid arthritis specialist and/or by failing to verify the complaints of pain from juvenile rheumatoid arthritis with blood tests. Although Dr. Gerber clearly expressed concerns about Dr. Adkins's treatment of J.D., his testimony ultimately failed to establish, unequivocally, that any of the acts or omissions enumerated above constituted an unambiguous violation of the applicable standard of care. As mentioned, Dr. Gerber specifically refuted the allegation that Dr. Adkins had prescribed "excessive narcotics," as charged in subparagraph d). He further testified that, in his opinion, Dr. Adkins had not violated section 458.326, see T. 164——a blanket statement that casts doubt on all of the standard-of-care violations that the Department has alleged. Dr. Gerber testified that he "had no problem with respect to how J.D. presented to Dr. Adkins and the treatment Dr. Adkins had rendered to J.D. through December." T. 161. This testimony, given by the Department's expert, precludes the undersigned from finding without hesitation that the acts and omissions described in subparagraphs a), c), and e) above violated the standard of care. As for subparagraph b), Dr. Gerber stopped well short of stating that the standard of care required Dr. Adkins to refer J.D. to an addiction specialist. To the contrary, he expressed the opinion that, at the time (i.e., 2007-2008), the decision whether to make such a referral was left to the physician's discretion. T. 124, 153. The most Dr. Gerber could say on this point was that, in his view, one "hundred percent of pain specialist [sic] would . . . possibly refer out to an addiction specialist." T. 155 (emphasis added). This testimony is insufficiently convincing to establish clearly that Dr. Adkins's "failure" to refer J.D. to an addiction specialist violated the standard of care. The essence of Dr. Gerber's opinion on the standard of care was captured in the following remarks, which he made on cross-examination in the course of explaining his opinion that Dr. Adkins had not violated section 458.326: We wouldn't even be here if there wasn't the issue [that is, J.D.'s addiction] brought to his [Dr. Adkins's] attention [by T.R.] and the negative urine screen. [T]here are not major issues early on and I never said that there were. I had concerns but this whole case and the whole issue, standard of care, revolves around what was not done when significant issues [relating to J.D.'s addiction] were made available. That's really what I feel comfortable giving my opinion on is what happened after November." T. 163. Dr. Gerber then identified three steps that, in his opinion, Dr. Adkins should have taken "after November" to satisfy the standard of care: (1) order a urine toxicology test; (2) talk with the patient and his mother; and (3) "possibly change the medication regimen." T. 167-68. Although the Department did not allege that Dr. Adkins had violated the standard of care by failing to take any of these measures, the evidence shows that Dr. Adkins did, in fact, perform the first two. The third is plainly too indefinite on its face to qualify as a standard of care. The Department's other expert, James F. Schaus, M.D., who testified via videotaped deposition, was, like Dr. Gerber, unable to unambiguously declare that Dr. Adkins's treatment of J.D. had fallen below the applicable standard of care. On this subject he hedged: I found some problems in the case that could or could not be deviations from the standard of care, but it certainly raised some concerns on my part. . . . * * * Standard of care is to me a black and white, you know, question, and there's many shades of gray, like any case. And in this case, there are shades of gray when it comes to standard of care. As I said earlier, I found a few things that could be potential deficiencies in his care that may or may not come to the level of a deviation of the standard of care. And I'm not prepared to say definitively that he did deviate from the standard of care. But I do identify those concerns, those various concerns. J.F.S. 11, 13 (emphasis added). Dr. Schaus's testimony is insufficient to support a finding, based on clear and convincing evidence, that Dr. Adkins's treatment of J.D. fell below the applicable level of care, skill, and treatment. The remaining charges against Dr. Adkins are based on alleged deficiencies in the medical record of J.D.'s treatment. In Count Two of the Amended Administrative Complaint, the Department has charged Dr. Adkins with violating, in one or more of the following ways, the administrative rule which sets forth standards for prescribing narcotic pain medications: By prescribing controlled substances for pain control, to wit: oxycodone and carisprodol, to Patient J.D. without documenting the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and any history of substance abuse; and/or By prescribing controlled substances for pain control, to wit: oxycodone and carisprodol, to Patient J.D. without documenting one or more recognized medical indications for the use of a controlled substance. As will be discussed below, the provisions of the rule that articulated standards for documenting a pain-management patient's evaluation, which are the provisions that Dr. Adkins is alleged to have violated, were aspirational rather than prescriptive at the time of the alleged violations, enumerating matters that a physician should include in the medical record as opposed to mandating what must be done. Nevertheless, even though the chart that Dr. Adkins prepared contemporaneously was written in his own hand and is difficult to decipher, the undersigned finds upon review of the medical record that Dr. Adkins substantially followed the rule's guidelines. To be sure, Dr. Adkins's handwriting is hard to read. This, coupled with Dr. Adkins's use of abbreviations and other types of informal shorthand when making his notes, prevents the undersigned from forming a full understanding of everything in the medical record. The undersigned can make out enough words, however, to appreciate that Dr. Adkins documented the nature of J.D.'s pain, current and past treatment for pain, and various diseases or conditions that had caused, or were causing, pain, e.g., swollen knees, a rotator cuff injury, and the avulsion of J.D.'s finger. The Department has failed to prove, with clear and convincing evidence, that Dr. Adkins's documentation of his evaluation of J.D. fell short of the guidelines. In Count Three of the Amended Administrative Complaint, the Department has alleged that Dr. Adkins violated the statute governing medical recordkeeping in one or more of the following ways: By failing to keep legible medical records documenting the reasons for prescribing oxycodone and carisprodal for Patient J.D.; and/or By failing to keep medical records which legibly recorded the patient history, examination results, test results, and drugs prescribed for Patient J.D.; and/or By failing to keep medical records which justify the course of treatment for Patient J.D. Having reviewed the medical record, the undersigned finds the evidence insufficient to prove, clearly and convincingly, that Dr. Adkins failed to justify the course of treatment for Patient J.D. The chart is barely legible, however, and in this regard Dr. Adkins has committed a disciplinable offense; the chart itself is clear and convincing proof of guilt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Adkins not guilty of the charges set forth in the Counts One and Two of the Amended Administrative Complaint; finding Dr. Adkins guilty of the charge set forth in Count Three, namely failing to keep legible medical records, an offense defined in section 458.331(1)(m); and imposing the following penalties: reprimand, administrative fine in the amount of $1,000, and obligation to complete the Medical Records course. DONE AND ENTERED this 26th day of October, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 October, 2011.
