Findings Of Fact The Respondent, Glenn R. Johnston, is a medical doctor, holding license number ME0018091. His address is 201 North Lakemont Avenue, Winter Park, Florida 32759. The Respondent obtained his Bachelor of Science degree from the University of Florida in 1966, and his medical degree from Bowman Gray School of Medicine in 1970. He served his internship and a two-year general family practice residency at Jacksonville Naval Hospital while serving in the Navy, and became board certified in family practice in 1973. Subsequently, the Respondent served for four years as Chief of the Family Practice Department at the Naval Regional Medical Center in Orlando. In approximately 1976 the Respondent entered private practice in Orlando with a group of doctors, and began his own medical practice in 1977. The Respondent has been married for sixteen years, and has two children, ages 11 and 13. The Respondent performs his family practice in a responsible manner, utilizing the prescription of narcotics and narcotic pain medications at an overall very low rate. The Respondent has never before been the subject of an investigation by the Department of Professional Regulation, and this is the first proceeding against him and his medical license. Between the dates of approximately July 1, 1980, and June 30, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrdchloride for his patient, Robert Hicks in the quantity of 4499. Between the dates of July 3, 1980, and July 3, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrochloride for his patient, James Everett, in the quantity of 4320. Between the dates of approximately July 3, 1980, and June 10, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrochloride for his patient, Harold Stacy, in the quantity of 2550. Between the dates of approximately October 2, 1980, and November 20, 1981, the Respondent prescribed Dilaudid (4 mg.) hydromorphone hydrochloride, Percodan, and Tylox to his patient, Billy Carr, in the quantities of 1620, 30 and 30, respectively. Dilaudid, Percodan, and Tylox are Schedule II controlled substances pursuant to Chapter 593, Florida Statutes. The Physicians Desk Reference (PDR) states the following relative to Dilaudid: Description: DILAUDID (hydromorphone hydrochloride) (WARNING: May be habit forming), a hydrogenated keton of morphine, is a narcotic analgesic . . . * * * DRUG ABUSE AND DEPENDENCE: DILAUDID is a Schedule II narcotic. Psychic dependence, physical dependence, and tolerance may develop upon repeated administration of narcotics; therefore, DILAUDID should be prescribed and administered with caution. However, psychic dependence is unlikely to develop when DILAUDID is used for a short time for the treatment of pain. Physical dependence, the condition in which continued administration of the drug is required to prevent the appearance of a withdrawal syndrome, assumes clinically significant proportions only after several weeks of continued narcotic use, although some mild degree of physical dependency may develop after a few days of narcotic therapy. Tolerance, in which increasingly large doses are required in order to produce the same degree of analgesia, is manifested initially by shortened duration of analgesic effect, and subsequently by decreases in the intensity of analgesia. The rate of development of tolerance varies among patients. * * * Oral: The usual oral dose is 2mg. every 4 to 6 hours as necessary. The dose must be individually adjusted according to severity of pain, patient response and patient size. More severe pain may require 4mg. or more every 4 to 6 hours. If the pain increases in severity, analgesia is not adequate or tolerance occurs, a gradual increase in dosage may be required. If pain is exceedingly severe, or if prompt response is desired, parenteral DILAUDID should be used initially in adequate amounts to control the pain. The Respondent prescribed Dilaudid to patient Robert Hicks for severe chronic pain associated with multiple medical problems, primarily related to his severe degenerative rheumatoid arthritis. Mr. Hicks, 49 years of age, had a long history of multiple joint pains, degeneration of his normal joints, chronic pain in his joints, swelling and abnormal laboratory tests. He had been diagnosed as having rheumatoid arthritis since 1976 by a neurosurgeon, confirmed by blood tests and x-rays. He was classified as 100 percent disabled in 1977 by the Veterans Administration because of the chronic joint pains of rheumatoid arthritis. He had been seen by numerous doctors and treated with various pain medications including Dilaudid, which was the only drug that allowed him to function. The pains, discomfort and disability that Mr. Hicks suffered were located in most of the joints of his body, especially in his lumbosacral spine, with involvement in the left hip, shoulder areas, both knees and elbows, with swelling and deformity in the hands. Practically every joint in his body was involved. Mr. Hicks frequently used a cane for walking, and occasionally used crutches. He had difficulty in standing from a sitting position and on occasion he used a wheelchair. The Respondent tried several different medications to treat his rheumatoid arthritis, in addition to physical therapy, and used various pain medications, but Dilaudid proved to be the best when used in conjunction with treatment medications that would allow Mr. Hicks sufficient relief to work and function in a reasonably normal life-style. The Respondent prescribed 4 mg. Dilaudid tablets to Mr. Hicks, to be taken in doses within the limits recommended by the Physician's Desk Reference (PDR) in that the overall quantity prescribed for him did not exceed the maximum limit recommended by the PDR. Mr. Hicks also had other medical problems appropriately treated by the Respondent, such as subdeltoid bursitis, lateral ankylosing spondylitis, spondylolisthesis, Reiter's Syndrome, cervical spondylosis and diabetes. The Respondent prescribed Dilaudid in quantities of two pills of 4 mgs. every four hours as needed for pain, to patient James Everett for chronic severe pain stemming primarily from the lower chest wall and left upper abdominal chest wall which followed a transthoracic hiatal hernia repair performed in 1965. Mr. Everett also had angina with a history of one or two myocardial infarctions in 1970; he was on medication for the angina. The hiatal hernia repair left a surgical scar across his entire left chest, extending from the midportion of the back all the way across his chest and ending right above the stomach, at the lower part of the anterior chest wall, with another scar extending from his epigastric region down the mid-rib and into the lower midline area. During the surgical repair, Mr. Everett suffered a collapsed lung and suffered a great deal of scar tissue visible in his chest x-rays in the area where most of the pain is reported. Most of his pain resulted from the surgical scar tissue rather than the angina, as confirmed by a cardiologist. Mr. Everett was a very debilitated, elderly person, older looking than his 60 years, obese, very pale, with a slow gait; he perspired quite a bit and appeared to be a patient with chronic medical problems. Mr. Everett had been taking Dilaudid on prescription from his previous physician when he became the Respondent's patient. The quantity of Dilaudid prescribed for Mr. Everett did not exceed the maximum recommended dosage. The Respondent tried other medications and therapies to relieve the patient's chronic severe pain, with limited success, and used other methods of treatment for the patient's problems, which included diabetes and high blood pressure. Mr. Everett had been classified 100 percent disabled by the Veterans Administration because of his chronic severe pain. The Respondent concluded that Dilaudid was the only pain medication that would give the patient sufficient relief from pain to enable him to continue his employment and to function in his daily life. The Respondent prescribed Dilaudid in quantities of 2 tablets of 4 mgs. every 4 hours as needed for pain, to patient Harold Stacy for chronic severe pain relating to acute possibly pinched, nerve, lumbosacral low back pain with radiation into the left leg and degenerative arthritis, possible spinal cord tumor, early hypertrophic osteoarthritis, and possible hernitated disc. At age 49, Mr. Stacy was semi-crippled, always requiring a cane while walking and always in a great deal of pain. The hypertrophic arthritis was confirmed by calcium deposits visible on x-ray films. Mr. Stacy was never able to function normally, and could not maintain employment without the pain relief the Dilaudid provided. The Respondent used other medications in an attempt to relieve the pain, but found that Dilaudid was the only medication which would allow Mr. Stacy to work and function in as reasonable a fashion as possible. The Respondent treated Mr. Stacy's physical and health problems with an appropriate variety of treatment methods and medications. The quantity of Dilaudid prescribed for Mr. Stacy did not exceed the PDR recommended dosage. The Respondent prescribed Dilaudid, in dosages of 1-2 tablets of 4 mgs. every 4 hours, to patient Billy Carr for relief of chronic severe low back pain, related to chronic lumbosacral spine strain, chronic prostatitis and spondylolisthesis. Mr. Carr, at age 49, walked with a severe limp, had pain in his perineal area, had difficulty in sitting, and had a deformity in one of his legs due to a pseudoarthritis resulting from a malunion of a fracture of his femur. The Respondent tried several different pain medications and treatment methods, but found that Dilaudid was the only medication which would relieve the pain to allow Mr. Carr to work and enjoy as reasonable a life-style as possible. The quantity of Dilaudid prescribed for Mr. Carr did not exceed the maximum PDR recommended dosage. The Respondent is a board certified family practitioner. The Petitioner's expert witness, Dr. Robert Johnson, is a general practitioner who is not board certified. The Respondent's expert witnesses, Drs. Charles Grant, James Louttit and Clarence Bailey, are board certified in family practice and testified as such. All four expert witnesses testified, and it is so found, that a medically justifiable purpose in treating a patient is determined by the treating physician, and means a treatment which enhances the well-being of a patient and enhances the quality of a patient's life, in a manner the physician feels qualified to render. Reasonable physicians differ in the manner of treating the same condition. Reasonable physicians differ in the manner of treating pain. A person's pain is not measurable. A person's pain threshold is not measurable. One method of determining the level of medication needed to relieve a person's pain is by titration, that is, adjusting the quantity and type of medication to the patient's symptoms. Dilaudid is approved by the Federal Drug Administration for the treatment of pain. The Physician Desk Reference (PDR) does not place a cap on the quantity of Dilaudid to be prescribed for a patient in chronic moderate to severe pain. The analgesic effect of Dilaudid shortens with continued use. Some patients require a greater amount of Dilaudid to relieve pain than other patients. It is a medically justifiable purpose to prescribe Dilaudid to a patient for the relief of moderate to severe pain. It is a medically justifiable purpose to continue to prescribe Dilaudid to a patient for chronic moderate to severe pain. It is ethical, and medically justifiable, for a physician to treat a patient who is already habituated or tolerant to Dilaudid, and who has chronic moderate to severe pain, for the purpose of relieving this pain, since the patient should be given relief from the pain. There is no evidence that any of the four patients treated by the Respondent were drug abusers. It was medically justifiable for the Respondent to prescribe Dilaudid to each of his four patients during the time periods alleged in the Administrative Complaint. The quantities of Dilaudid prescribed by the Respondent to each of the four patients during the time period alleged in the Administrative Complaint were neither excessive nor inappropriate. The evidence is not sufficient to support a finding of fact that the Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonable and prudent physician as being acceptable, under the circumstances alleged in the Administrative Complaint. There is insufficient evidence to support a finding that the Respondent engaged in repeated malpractice in the treatment of the four subject patients. Dr. Robert B. Johnson, testifying on behalf of the Petitioner as an expert general practitioner, did not feel that it was medically justifiable for the Respondent to prescribe Dilaudid in the quantities alleged, to each of the four patients, and he testified that such quantities were excessive. However, Dr. Johnson neither saw nor examined the patients, and he was not able to tell from reviewing the patient records how much pain any of the four patients were experiencing. Dr. Johnson also testified that, in his opinion, it is a gross departure from acceptable medical practice to prescribe the quantities of Dilaudid in question to a patient with any history other than terminal cancer, and that it would even be a questionable practice for this purpose; that three months would be the maximum length of time Dilaudid should be prescribed to a patient; and that it is not proper for a physician to continue to treat a patient for chronic moderate to severe pain by prescription of Dilaudid in the quantities and over the time periods alleged in the complaint; yet Dr. Johnson could find no physical harm to any of the four patients resulting from the Respondent's treatment. On the basis of the records reviewed, Dr. Johnson could not testify that the Respondent prescribed the Dilaudid in question other than in the course of his medical practice. The opinions of Dr. Johnson, however, were contradicted by the expert opinions of the Respondent's medical witnesses, Drs. Hailey, Grant and Louttit, except for their agreement that the Respondent's patients suffered no physical harm from their treatment by the Respondent, and that the Respondent prescribed Dilaudid to the four subject patients in the course of his medical practice. Where the expert medical opinions are in conflict, the testimony of Dr. Johnson is rejected as less credible than the opinions of Drs. Bailey, Grant and Louttit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medical Examiners enter a Final Order finding the Respondent, Glenn R. Johnston, M.D., not guilty of Counts I, IV, VII, X and XIII in the Administrative Complaint, and that the Board dismiss the Administrative Complaint with prejudice. THIS RECOMMENDED ORDER entered this 30th day of September, 1983. WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1983. COPIES FURNISHED: Spiro T. Kypreos, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Paul Watson Lambert, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs. CASE NO. 83-356 GLENN R. JOHNSTON, M.D., License No. 12142 Respondent. /
The Issue Whether disciplinary action should be taken against Respondent's license to practice as an osteopathic physician's assistant and/or a physician's assistant, based on alleged violations of Section 459.015(1)(n), (x), and (cc) and 458.331(1)(s), (v), and (x), Florida Statutes.
Findings Of Fact Respondent, William Dana Holton, is a licensed osteopathic physician's assistant in Florida, holding license numbers OA 0000027 and OA 0000097. Additionally, Respondent is a licensed physician's assistant in Florida, holding license number PA 0001538. For several years, Respondent has been experiencing a great deal of chronic pain associated with his back. Because of this pain, Respondent obtained a number of prescriptions for pain killers and muscle relaxers from various physicians. From May, 1989, through October, 1989, Respondent obtained a variety of medicinal drugs, in various amounts and dosages from two different pharmacies. The majority of these prescriptions were for pain killers. The Respondent represented to each pharmacist that the prescriptions had been authorized by a certain physician. The type of drug, quantity obtained, dosage, date obtained, pharmacist involved, and physician represented as the prescribing physician are as follows: Substance Amount Dosage Date Pharmacist Physician Anexsia 30 7.5 mg 5-18-89 Lanier Velasco Anexsia 30 7.5 mg 5-29-89 Lanier Velasco Anexsia 30 7.5 mg 6-08-89 Lanier Velasco Anexsia 30 7.5 mg 6-13-89 Lanier Velasco Diazepam 20 5.0 mg 5-18-89 Lanier Velasco Diazepam 20 5.0 mg 5-29-89 Lanier Velasco Diazepam 20 5.0 mg 6-13-89 Lanier Velasco Anexsia 50 7.5 mg 6-27-89 Lanier Noblejas Anexsia 50 7.5 mg 7-05-89 Lanier Noblejas Anexsia 50 7.5 mg 7-14-89 Lanier Noblejas Anexsia 50 7.5 mg 7-24-89 Lanier Noblejas Anexsia 50 7.5 mg 7-31-89 Lanier Noblejas Anexsia 50 7.5 mg 8-07-89 Lanier Noblejas Anexsia 50 7.5 mg 8-14-89 Lanier Noblejas Donnatal Elixer 4 oz. 8-07-89 Lanier Noblejas Anexsia 50 7.5 mg 8-21-89 Lanier Noblejas Anexsia 50 7.5 mg 8-29-89 Lanier Noblejas Anexsia 50 7.5 mg 9-02-89 Lanier Noblejas Anexsia 50 7.5 mg 9-08-89 Lanier Noblejas Anexsia 50 7.5 mg 9-14-89 Lanier Noblejas Anexsia 50 7.5 mg 9-23-89 Lanier Noblejas Diazepam 20 5.0 mg 8-21-89 Lanier Velasco Diazepam 20 5.0 mg 9-02-89 Lanier Velasco Diazepam 20 5.0 mg 9-14-89 Lanier Velasco Diazepam 20 5.0 mg 9-23-89 Lanier Velasco Anexsia 50 7.5 mg 9-28-89 Lanier Levinson Anexsia 50 7.5 mg 10-05-89 Lanier Levinson Anexsia 50 7.5 mg 10-16-89 Lanier Levinson Anexsia 30 7.5 mg 12-28-89 Hill Serrebutra Anexsia 30 7.5 mg 01-12-89 Hill Serrebutra Anexsia 15 7.5 mg 03-01-90 Hill Serrebutra Anexsia 30 7.5 mg 03-09-90 Hill Velasco Anexsia 30 7.5 mg 03-29-90 Hill Velasco Diazepam 30 5.0 mg 03-29-90 Hill Velasco Zydone 30 7.5 mg 05-02-90 Hill Velasco Zydone 31 7.5 mg 05-31-90 Hill Velasco Anexsia 30 7.5 mg 06-06-90 Hill Velasco Zydone 31 7.5 mg 06-30-90 Hill Velasco Vicodin 50 5.0 mg 07-01-90 Hill Noblejas Anexsia is a pain killer. Diazepam is the generic name for Valium. Donnatal Elixer is a muscle relaxant. Zydone is chemically equivalent to Anexsia and is a pain killer. Vicodin is similar to Anexsia and is a pain killer. All of the drugs are controlled substances. Except for Dr. Levinson, the evidence demonstrated that the listed physicians prescribed the relevant medications to Respondent and that these prescriptions were filled pursuant to those physician's prescriptions. However, the evidence clearly demonstrated that Dr. Levinson did not authorize any of the prescriptions listed in paragraph 3. Respondent believed that Dr. Levinson had authorized the prescriptions listed by his name via a general protocol for such treatment. However, such a belief does not equal an express prescription of a controlled substance by a physician and should not have been used by Respondent to obtain the drugs listed above. In essence, Respondent was prescribing medications for himself in violation of Section 459.015(1)(cc) and Rule 21R- 6.005(b) Florida Administration Code, and Section 458.331(1)(v), Florida Statutes. Sometime between September 26, 1989, and October 19, 1989, Dr. Dana Levinson saw Respondent at the Wellsprings Clinic in Carrabelle, Florida. The visit occurred on a weekend after Respondent had seen several patients during the day. Dr. Levinson observed that Respondent's speech was slurred, his hands were trembling and his pupils were small. Dr. Levinson, an osteopathic physician was of the opinion that the Respondent was under the influence of a narcotic or depressant drug. On October 21, 1989, Respondent was unable to have his prescription for Anexsia from Dr. Velasco filled at the pharmacy which had the prescription on file. The pharmacy was closed for the evening. Because Respondent felt he needed the pain killer for his pain and was unable to think clearly because of the excessive amounts of medications he was taking, 1/ he devised a scheme for obtaining the drug from another pharmacy. On October 21, 1989, the Respondent phoned in a prescription for Anexsia in the name of Emily Dinkins to the Eckerds Pharmacy located at 2526 South Monroe Street, Tallahassee, Florida. The Respondent told the pharmacist that the prescription had been authorized by Dr. Levinson. Dr. Levinson had not authorized the prescription. The prescription was intended by Respondent to be for his own use. Respondent instructed Emily Dinkins to go into Eckerds and pick up the prescription that he had ordered. He did not tell her that the prescription was in her name. Respondent was arrested on October 21, 1989, at the pharmacy for fraudulently trying to obtain a prescription. The charges were later dismissed. The incident on October 21, 1989 and Dr. Levinson's observation of Respondent clearly demonstrate that Respondent was taking enough medication to impair his ability to practice his profession and think clearly. Because Respondent was impaired, his continuing to practice during September and October, 1989, constituted a very serious violation of Section 459.015(1)(x), Florida Statutes, and Section 458.331(1)(s), Florida Statutes. Additionally, there is no doubt that Respondent attempted to utilize a trick or scheme in the practice of his profession and in pursuit of that scheme, on October 21, 1989, made a false statement to the Eckerd's pharmacist. It is immaterial that the criminal charges were dismissed. Such activity on Respondent's part is a serious violation of Section 459.015(1)(n), Florida Statutes, and Section 458.331(1)(v) and (x), Florida Statutes. After his arrest on October 21, 1989, the Respondent entered an inpatient drug treatment program. Against medical advice, Respondent left the program after only four weeks. However, Respondent continued out patient drug treatment. The outpatient treatment was telephonically approved by Dr. Goetz, the physician who oversees the impaired practitioners program. Respondent has not since entered any other inpatient drug treatment program, but has ceased taking the medication referenced above. Respondent now controls his back pain with aspirin and appears to again be in control of his life. To practice as a physician's assistant a licensee is required to have a supervising physician or osteopathic physician. From August 1, 1988 to January 19, 1989, the Respondent's supervising physician was Dr. Chai Serrebutra, M.D.. Between April 20, 1989, and June, 1989, the Respondent's supervising physician was Dr. Maximo Velasco, M.D.. The evidence, and in particular the insurance claim forms, does not support Respondent's contention that Dr. Velasco began supervising Respondent earlier than April 20, 1989. Dr. Velasco signed these claim forms for the Wellsprings Clinic. The earliest signature date for Dr. Velasco was April 20, 1989. On that date, Dr. Velasco signed several forms for treatment which had been rendered to various patients prior to April 20, 1989. However, the treatment given these patients occurred during a time when Dr. Serrebutra was Respondent's supervising physician and in fact had both directly and indirectly supervised Respondent. Therefore, the evidence did not demonstrate that Respondent had treated any patients while he was unsupervised during this interim period. Between May 1, 1989 and May 12, 1989, Dr. Velasco was in Omaha, Nebraska. During the time that Dr. Velasco was in Omaha, Nebraska, Respondent treated several patients at the Wellsprings Clinic in Carrabelle, Florida. The patients and the dates they were treated by Respondent are as follows: Patient's Initials Date E.M. 5-2-89 J.S. 5-2-89 J.M. 5-2-89 J.E. 5-4-89 F.M. 5-4-89 S.B. 5-4-89 A.B. 5-4-89 N.N. 5-4-89 M.B. 5-4-89 L.M. 5-4-89 S.S. 5-4-89 A.J. 5-4-89 L.W. 5-4-89 L.W. 5-4-89 T.T. 5-5-89 D.B. 5-6-89 D.H. 5-6-89 W.B. 5-6-89 V.M. 5-6-89 P.W. 5-6-89 A.C. 5-8-89 L.L. 5-8-89 L.T. 5-8-89 W.J. 5-8-89 L.T. 5-8-89 J.T. 5-8-89 R.P. 5-8-89 E.H. 5-9-89 M.W. 5-9-89 D.T. 5-9-89 M.R. 5-11-89 T.T. 5-11-89 C.B. 5-11-89 G.E. 5-11-89 M.R. 5-11-89 M.W. 5-11-89 T.R. 5-11-89 R.H. 5-11-89 L.M. 5-11-89 J.J. 5-12-89 C.S. 5-12-89 R.M. 5-12-89 R.L. 5-12-89 T.R. 5-12-89 C.B. 5-12-89 C.J. 5-12-89 S.C. 5-12-89 W.J. 5-12-89 While Dr. Velasco was in Omaha, Nebraska, the Respondent talked to him for five minutes or less by telephone. The Respondent and Dr. Velasco did not discuss specific cases during this telephone conversation. In each case, a preliminary final diagnosis was made by Respondent. The diagnoses were made by the Respondent without direct supervision by Dr. Velasco, Respondent's supervising physician. The preliminary final diagnoses were made pursuant to general unwritten protocols established by Dr. Velasco and were well within Respondent's training, competence and skill. The evidence did not demonstrate tht any treatment of these patients required any direct intervention from the doctor or that such direct supervision was requried. To that extent the preliminary final diagnoses were made at the direction of Respondent's supervising physician and were within the parameters of Chapter 458 and 459, Florida Statutes and Rules 21M-17.001(6), 21M-17.012 and 21R-6, Florida Administrative Code. Between September 26, 1989, and October 19, 1989, Dr. Dana Levinson was the Respondent's supervising osteopathic physician. In early October, 1989, Respondent phoned K-Mart Pharmacy in Apalachicola and placed prescription orders for various medicinal drugs with the pharmacist, Beverly Kelley, for several different patients. The patients involved, drugs prescribed, and the dates of the prescriptions, were as follows: Patient's Initials Drug Date J.T. Tigan 10-11-89 J.T. Halcion 10-11-89 J.T. Anexsia 10-11-89 J.T. Valium 10-11-89 V.M. Flexeril 10-11-89 V.M. Anexsia 10-11-89 L.T. Halcion 10-11-89 L.T. Duricef 10-11-89 L.T. Valium 10-11-89 L.T. Phrenilin Forte 10-11-89 L.T. Nucofed 10-11-89 L.H. Valium 10-11-89 L.H. Ionamin 10-11-89 T.T. Valium 10-14-89 T.S. Valium 10-14-89 The Respondent represented to Kelley that these prescriptions were authorized by Dr. Levinson. Dr. Levinson did not expressly authorize any of the prescriptions listed above and did not directly oversee the treatment and diagnosis of the patients. Again, Respondent performed these patient services pursuant to unwritten general protocols everyone involved, including the supervising physician, seemed to take for granted that everybody had knowledge of. To Respondent's credit, neither Dr. Serrebutra, Velasco nor Levinson had problems with Respondent's treatment of any of the patients treated by Respondent and Respondent was generally viewed as a competent physician's assistant, able to handle routine matters through general protocols and without the immediate supervision or direction of a physician. The lack of immediate supervision or direction does not violate Chapter 458 or 459, Florida Statutes, or the rules promulgated thereto. What does constitute a violation of Chapter 458 and 459 is that, during Dr. Levinson's supervisory time period, Respondent's services included the prescription of controlled substances which had not been specifically ordered or requested by Dr. Levinson. Respondent's actions were due in part to the lack of any written protocols and a very vague and ill- defined understanding of Respondent's duties between Respondent and Dr. Levinson. 2/ Since a physician's assistant has no authority and is prohibited by Rule from prescribing medication to patients, Respondent's actions, violated Section 459.015(1)(cc), Florida Statutes and Section 458.331(1)(v) and (x), Florida Statutes. See Rule 21M-17.012(2)(a)(7)b., Florida Administrative Code and Rule 21R-6.010(7), Florida Administrative Code. Petitioner has demonstrated by clear and convincing evidence that Respondent committed four violations in regards to his physician's assistant license and the same four violations in regards to his osteopathic physician's assistant license. The evidence did not demonstrate that an aggravated penalty should be imposed for any one of the violations. However, because of the number of violations, one composite penalty should be imposed for all the violations for each license. The composite penalty should not exceed the highest penalty which could be imposed for the most seriously penalized infraction under each Board's rules.
Recommendation It is accordingly, recommended that the Board of Medicine and the Board of Osteopathic Medicine each enter a Final Order finding the Respondent guilty of violating Section 458.331(1)(s), (v) and (x) and 459.015(1)(n), (x) and (cc), Florida Statutes and as punishment therefore: Respondent's license to practice as a physician's assistant in the State of Florida, number 0001538, should be suspended for two years beginning with the date of his temporary suspension on January 12, 1990, after which Respondent should be placed on a 2 year period of probation with direct supervision during which Respondent shall demonstrate to the Board his ability to practice with reasonable skill and safety. Additionally, Respondent should be required to successfully complete coursework involving the scope and practice of his profession and be assessed a $1,000 fine to be paid over the course of his suspension and probation. Respondent's license to practice as an osteopathic physician's assistant in the State of Florida, numbered 0000027 and 0000097, should be suspended for 2 years beginning with the date of his temporary suspension on January 12, 1990, after which Respondent should be placed on a 2 year period of probation with direct supervision during which Respondent shall demonstrate to the Board his ability to practice with reasonable skill and safety. Additionally, Respondent should be required to successfully complete coursework involving the scope and practice of his profession and be assessed a $1,000 fine against Respondent to be paid over the course of his suspension and probation. RECOMMENDED this 2nd day of May, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 2nd day of May, 1991.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the state of Florida, having been issued license number ME 0044173. She practiced medicine in Key West, Florida, from 1985 through June 1993 when she closed her office as a result of a family problem and moved to West Virginia. She is licensed as a physician in West Virginia and currently practices medicine in that state. Respondent is Board-certified in internal medicine. In April 1993, Petitioner's pharmacy inspector responded to telephone calls from pharmacists in Key West concerning Respondent's prescribing practices by traveling to Key West and reviewing pharmacy records of Respondent's patients. One of Petitioner's investigators thereafter collected and compiled copies of computer printouts from six pharmacies listing prescriptions filled for seven of Respondent's patients. Respondent had worked at a clinic where she experienced approximately 15,000 patient visits per year. After determining that Respondent had prescribed what he considered to be an inordinate amount of controlled substances, Schedule II narcotics, the investigator wrote to Respondent advising her that an investigation had been commenced. In July, Respondent telephoned him and advised him that she had relocated to West Virginia. The investigator asked her for the medical records for the seven patients he questioned, and Respondent advised him that in conjunction with her closing her practice and relocating, she had given their medical records to approximately 500 of her patients so they could take them to other physicians and continue receiving their medical care, and those records not picked up by patients had been sent to a Dr. Garriques to be the custodian of those records. Of the seven medical records requested by the investigator, six of them had been given to the patients, and the seventh had been transferred to Dr. Garriques. Respondent admitted that she had not personally kept either the originals or copies of the medical records of her patients. The investigator subsequently telephoned Sun Belt Clinic where Respondent had worked and was told that Respondent's medical records were not there because she had given them to her patients. In December 1993, the investigator issued a subpoena to Sun Belt Clinic for Respondent's medical records and received nothing. Petitioner has made no further effort to obtain the medical records of the patients involved in this proceeding. Controlled substances are categorized by the Drug Enforcement Agency in five different schedules according to their potential for abuse. Schedule I substances are illegal. Schedule II substances, although considered highly addictive, can be prescribed by licensed physicians for medical purposes. Schedule II substances can be narcotic (opiates administered for pain) or non- narcotic. Schedule II narcotics include morphine (morphine sulfate), methadone (dolophine), dilaudid (hydromor-phone), and oxycodone (percodan and percoset). Dexedrine is also a Schedule II controlled substance. Although morphine is the most potent narcotic available in the United States, only approximately 10-20 percent of it is absorbed, when ingested. Methadone is available in government-run clinics for the treatment of heroin addiction. Methadone is also a bona fide treatment for pain. Pursuant to the statutes regulating the conduct of registered pharmacists in the state of Florida, pharmacists are not permitted to dispense methadone for addiction; rather, pharmacists can only dispense methadone as a pain medication. At least one doctor in Key West, other than Respondent, prescribes methadone for pain, and a local hospital there has begun using methadone to treat pain on an in- patient basis. L.P., one of Respondent's patients, is a narcoleptic. Narcoleptics need a stimulant, such as dexedrine or ritalin, to function normally. Before seeing Respondent, L.P. had been "worked up" at Stanford and was taking a maintenance dosage of dexedrine. Between September 11, 1992, and June 1, 1993, Respondent prescribed dexedrine, 15 mg., for L.P., the same dosage L.P. was on before and after being Respondent's patient. The amount and frequency of dexedrine prescribed by Respondent for L.P. is within the range recommended by the Physician's Desk Reference and was an appropriate treatment for L.P.'s narcolepsy. Persons suffering from chronic pain (as opposed to acute episodes of pain) for which there is no cure or treatment available that can alleviate the person's pain are said to suffer from "intractable pain." There are two types of patients who suffer from intractable pain. The first group are patients with terminal, irreversible illnesses, such as cancer patients. Physicians generally give those patients whatever narcotics they need to alleviate the pain during the end stage of their lives. The second group is composed of patients who suffer from non-terminal disease processes who have tried different specialists and treatments available without achieving relief from their chronic pain. Those persons are generally not treated in family practice settings but rather are referred to pain management centers or pain clinics, in locations where such are available, to have their pain alleviated by treatments such as receiving morphine implants or having doctors perform nerve blocks. Many physicians avoid caring for patients who require Schedule II controlled substances to alleviate their suffering. The United States Department of Health, Education and Welfare, through its Agency for Health Care Planning and Research, has established national guidelines for treatment of moderate to severe pain in cancer patients, using Schedule II narcotics. The guidelines are written as a starting dose for opiate-naive adults, i.e., adults who have never before taken opiates. The guidelines further indicate that adults who are not opiate-naive may need a stronger dose. Although none of Respondent's other five patients involved in this proceeding were cancer patients, they suffered from intractable pain. Respondent prescribed narcotics for them within the guidelines recommended to relieve intractable pain in cancer patients. The Agency for Health Care Planning and Research recommends for moderate to severe pain a starting dose of dilaudid of 6 milligrams every three to four hours with a maximum recommended dose of 24 milligrams a day. It recommends a starting dose for moderate to severe pain for methadone or dolophine of 20 milligrams every six to eight hours with a maximum of 80 milligrams a day. For morphine, Agency guidelines recommend a starting dose of 30 milligrams every three to four hours. As to those five patients discussed hereinafter, Respondent saw each of them two times a week when they came to her for their prescriptions. In that way, she was able to monitor them closely and write prescriptions for limited quantities of medication. Sometimes, she saw those patients more often since the pharmacies in Key West were not able to stock supplies of narcotics as easily as non-narcotic medications. If a patient brought a prescription for such narcotics to a pharmacy and the pharmacy had an insufficient quantity in stock to fill that prescription, the patient could go elsewhere or could take the quantity the pharmacy had in stock. Under that circumstance, the prescription for the full quantity would be cancelled, and the patient would return to Respondent to get an additional prescription in order to have the full dose prescribed by Respondent. Respondent treated J.P. for six years for migraine headaches on an indigent basis. J.P. could not afford a CAT scan, and there were no other resources in Key West available to him for further work-up at no cost. Respondent based her treatment plan on her best clinical judgment and a complete physical examination. She tried Midren and other anti-inflammatory medications first. She prescribed percoset for three or four years. She then tried dilaudid. She prescribed dilaudid, 2 mg. from March 19, 1992, through April 23, 1992. She then prescribed dilaudid, 4 mg., from April 30, 1992, through August 17, 1992. From September 3, 1992, through November 30, 1992, she prescribed dolophine, 10 mg. On December 4, 1992, she changed J.P.'s treatment, prescribing morphine, 30 mg., through January 29, 1993. Pharmacy records reflect other medications thereafter, with a prescription for 15 dilaudid, 4 mg., on March 24, 1993, followed by 8 morphine sulfate tablets, 30 mg., on May 21, 1993; 5 percoset tablets on May 31, 1993; 15 morphine sulfate tablets, 30 mg., on June 4, 1993; and 5 percodan tablets on June 7, 1993. Although J.P. filled Respondent's prescriptions at several pharmacies, for example using three different pharmacies during the month of January 1993, the total amount of medication prescribed by Respondent was within the federal Agency guidelines. Respondent's prescribing practices as to J.P. were appropriate and not excessive. Over the course of her treatment of J.P., Respondent observed him change from a "non-functional" person to a functional person who was able to hold a job as a chef when his pain was relieved. Respondent treated M.G. for AIDS-related cluster headaches, which are very intense. He was also grieving for his girlfriend who had died of AIDS. Respondent treated him with dilaudid, which made him pain-free most of the time, and, in addition, he learned relaxation techniques to help deal with his pain. Respondent maintained him on a dosage of dilaudid, 4 mg., from December 28, 1992, through early March 1993. The quantity of dilaudid prescribed by Respondent was within the federal Agency guidelines, and was appropriate and not excessive. While taking dilaudid, M.G. was able to work four days a week as a taxi dispatcher. Respondent treated C.D. for chronic severe pain resulting from connective tissue disease. C.D. also suffered from intermittent gland swelling. Respondent unsuccessfully tried numerous anti-inflammatory medications in treating C.D., and he was treated by a rheumatologist in Miami without benefit. Respondent placed him on a maintenance treatment plan of 100 mg. a day of morphine and kept him at that level. Pharmacy computer printouts reveal C.D.'s morphine treatment commencing in February of 1992 and continuing into mid-June 1993. His functioning improved so that he was able to obtain a job as a taxi driver and once again start playing his guitar in a band. The maintenance program Respondent instituted for C.D. was within the federal Agency guidelines and was appropriate. Respondent treated J.B. for six years for multiple orthopedic problems and back pain. J.B. was not opiate-naive. He had been severely abused as a child and started taking narcotics at the age of two when he suffered a broken arm and severe burns to his hand as a result of his father's behavior. Respondent wrote alternating prescriptions for methadone, dolophine, and morphine for J.B. from December of 1991 through mid-June 1993. He remained on the same dosage. When seen in the community, J.B. was clean, spoke coherently, walked in a straight line, and dressed appropriately for Key West. Although the mixture of prescriptions and the dosage amounts Respondent prescribed for J.B. were substantial, her prescribing practices for J.B. were within the federal Agency guidelines and were appropriate. Respondent treated P.P. from 1986 through 1993 for severe sinusitis. P.P. also developed severe low back pain (sciatica). Respondent took a back x- ray, administered physical therapy, and referred P.P. to a hypnotist. Respondent wrote on prescriptions which she gave to P.P. that her diagnosis was a herniated disc. Respondent started her on dilaudid, 2 mg., in February 1992 and continued that regimen through January 1993. She also prescribed percoset and valium, 5 mg., for the severe back pain and muscle spasm. She also prescribed an anti-inflammatory for the stomach upset resulting from the narcotic. Respondent's prescribing practices as to P.P. were within the federal Agency's guidelines and were appropriate. In her treatment and prescribing practices for L.P., J.P., M.G., C.D., J.B., and P.P., Respondent kept detailed records, in part due to her concern that she might become the subject of criticism by Petitioner. Such records were not, however, offered at hearing by either party. The prescribing of controlled substances to the patients involved in this proceeding was done in the course of Respondent's professional practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE and ENTERED this 1st day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3 and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-21, 23, and 24 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's fifth unnumbered paragraph has been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth unnumbered paragraph has been rejected as being irrelevant to the issues involved herein. Respondent's first, second, third, sixth, and seventh paragraphs have been rejected as containing only argument. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Suite 210 9325 Bay Plaza Boulevard Tampa, Florida 33619 Katherine Anne Hoover, M.D. Route 2 Box 203 Lost Creek, West Virginia 26385 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace, Assistant Director Agency for Health Care Administration Suite 301 The Atrium 325 John Knox Road Tallahassee, Florida 32303
The Issue The issues in the case are whether the allegations set forth in the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with licensure of nursing homes and enforcement of applicable rules and regulations. At all times material to this case, Respondent has owned and operated a skilled nursing facility (License No. 1497096) located at 2310 North Airport Road, Fort Myers, Florida 33907. Respondent is a long-term care facility that participates in the Medicare and Medicaid programs and is subject to the requirements set forth at 42 C.F.R. § 483. On January 29, 2004, an employee of Petitioner conducted an annual licensure survey of Respondent's facility and, insofar as is relevant to this proceeding, determined that the facility operation was deficient as to compliance with one requirement. Deficiencies are commonly identified on the survey form as numbered "tags" and are communicated to the facility at the time of the survey. The parties have stipulated to the following fact: "During that survey, Respondent was cited for F 309 at scope and severity of "G" as a Class II." Otherwise stated, Petitioner cited Respondent for a "Tag F 309" violation and assessed the violation as Class II. The assertion of the Tag F 309 violation is based on Petitioner's assertion that Respondent failed to provide adequate pain management services to certain patients identified in the Administrative Complaint as Residents 9, 13, and 19. The evidence establishes that routine quarterly assessments of the residents were completed as required and appropriate. There is no evidence that a "pain care management plan" is a specific plan required by any applicable rule or regulation of a relevant licensing entity. Petitioner asserts that the Respondent failed to appropriately perform "pain assessments" on the cited residents. Respondent asserts that "pain assessments" are performed on a daily basis as facility employees respond to pain expressed by residents. There is no evidence that staff is required to complete new assessments for pain management at every complaint of pain or administration of medication. At Respondent's facility, resident pain management is included within the "activity of daily living" (ADL) plan. The person responsible for maintaining the plans testified that the residents deal with pain on a daily basis, and so it was logical to include the topic within the ADL plan. Such documentation has been Respondent's practice since at least as early as 2000 without objection from Petitioner's surveyors. There is no credible evidence that placement of pain information in the ADL plan adversely affected the delivery of pain care to residents. Resident 9 Resident 9 was diagnosed with multiple sclerosis, a debilitating disease that causes chronic pain of indeterminate origin. The resident was alert, oriented, and capable of making needs known to staff. The resident was involved in pain management decisions, including refusal of medication. Pain related to multiple sclerosis is difficult to treat because it is of unknown origin. The resident's attending physician attempted to address the resident's pain through a variety of medications. Resident 9's pain was noted in his daily care plan. The resident had a Lidoderm patch and could receive Vicodin every six hours as requested. The resident could also receive Tylenol and medication for muscle spasms. Resident 9's records indicate that as of May 20, 2003, the resident's pain was assessed as daily, moderate pain (noted as "2/2" in the records). As of November 5, 2003, Resident 9's pain was assessed as less than daily, and mild (noted as "1/1" in the records). On December 7, 8, 16, and 22, 2003, Resident 9's records indicate that the resident complained of pain and received medication. A quarterly pain assessment was performed on January 28, 2004. There is no evidence that the resident was denied any requested pain medication. There is no credible evidence that the provision of additional medication would have increased the physical, mental, or psychosocial well-being of the resident. Resident 13 Resident 13 was suffering from prostate cancer and was placed on hospice care in October 2003. Resident 13 was noted as having daily severe pain as of October 30, 2003. Resident 13's care plan provided that the resident would be observed for pain and medicated "as indicated" with the effectiveness of the medication monitored. Resident 13 had a Duragesic patch releasing 75 units per hour and was receiving Roxanol (25 mg. administered under the tongue) every three hours. On the date of the survey, the surveyor heard the resident, who was in bed and attended by his wife, expressing pain. The surveyor went to the nurse's station and requested that the resident's nurse attend to the situation. At that time, Resident 13's nurse was in the dining room assisting another resident, but she was quickly relieved of that responsibility and returned to the unit to assist Resident 13. The nurse determined that the pain was the result of a catheter that had become positioned under the patient. The nurse repositioned the catheter and administered some Tylenol to the resident. After about an hour, the nurse observed the resident and there was no further discomfort noted. There is no evidence that the resident used the call bell to obtain the nurse's assistance, or that the staff failed to promptly respond to the complaint of pain related to the catheter once it was relayed to them by the surveyor. There is no credible evidence that provision of additional medication would have increased the physical, mental, or psychosocial well-being of the resident. Resident 19 At the time of the survey, Resident 19 was suffering from end-stage cardiomyopathy and renal insufficiency. The resident's attending physician testified that the most appropriate medication to address the renal insufficiency was Lasix, but Lasix would have worsened the situation related to the cardiomyopathy. Morphine could have been administered to relieve pain, but would have adversely affected the resident's pulmonary function. According to a hospital discharge summary, Resident 19 suffered from severe back pain and was discharged to Respondent with a Duragesic patch releasing 25 units per hour. Darvocet was administered in 100 mg. doses as needed for pain. As to pain, Resident 19's care plan provided that the resident was to be assessed and medicated for pain "as ordered" by the physician. The pain assessment of January 19, 2004, noted non- verbal and non-cognitive signs of pain, including grunting and screaming. The weekend prior to the survey, Resident 19 became agitated and anxious. The physician prescribed Ativan, a tranquilizer. At about 8:00 a.m. on the date of the survey, Petitioner's surveyor observed Resident 19 seated in a wheelchair, yelling that he was in pain while a staff member attempted to administer medication. The staff member administered Tylenol. At the hearing, there was testimony from staff members that Resident 19's family wanted him out of bed several times daily, particularly at mealtimes, and that the resident was unhappy with the situation. At about 9:30 a.m., the surveyor inquired of a registered nurse as to whether pain medication to the resident had been increased based on her earlier observation that the resident was complaining of pain. The nurse did not observe signs of pain and attributed the morning incident to the resident's agitation and unhappiness at being in the wheelchair rather than in bed. Subsequent observations of the resident did not indicate increased pain. The surveyor testified that she understood something "stronger" would be obtained for the resident. The greater weight of the evidence establishes that the medication available to the resident was appropriate under the circumstances of his medical condition. There is no evidence that the administration of additional medication would have alleviated pain without adversely affecting the resident's condition. There is no credible evidence that the provision of additional medication would have increased the physical, mental, or psychosocial well-being of the resident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the Administrative Complaint filed in this case. DONE AND ENTERED this 10th day of December, 2004, 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 10th day of December, 2004.
Findings Of Fact George F. Graves is a Doctor of Osteopathy, licensed by the Florida Board of Osteopathic Medical Examiners, holding License No. 2972. The participants stipulated that dilaudid is a Class II controlled substance as defined by Chapter 893, Florida Statutes. The basic theory of the Board's case, as revealed in the Original Complaint and First Amended Complaint, was that George F. Graves did conspire to obtain and did in fact obtain narcotic drugs under false and fraudulent pretenses and did sell prescriptions for such narcotic drugs in violation of 459.14 (2)(c)(h)(m)(n), F.S. and Rule 21R-3.21 F.A.C. Although Count I of the Second Amended Complaint does not allege any conspiracy, the evidence presented at the hearing was intended to prove a conspiracy existing between George F. Graves and Marian Mullins involving the sale of prescriptions for the drug dilaudid, and to prove that Dr. Graves had prescribed dilaudid in the names of individuals who were not his patients or who he was not at the time treating. The Board's evidence against Dr. Graves relating to the proof of his conspiring to sell prescriptions for dilaudid was based solely upon the testimony of Marian Mullins, who was Dr. Graves' co-conspirator or accomplice. The law in Florida is very clear that the testimony of a co-conspirator or accomplice shall be received with great caution. See Weiss v. State, 120 So 2d 528. The Hearing Officer, having carefully considered the testimony of Marian Mullins, finds several matters which relate adversely to her credibility as a witness in this cause, as follows: Marian Mullins testified that she had never sold drugs. Marcie Loomas, who was a witness for the prosecution and close associate of Marian Mullins, testified that from the very first time that Marian Mullins shared her dilaudid with her, that Marian Mullins had invited Loomas to sell drugs for her. Further Marcie Loomas testified that she had had prescriptions filled in her name which she had received from Marian Mullins, that for having these prescriptions filled she received $50.00 in cash and that for selling a 36 pill prescription on the street she had received an additional $55.00 to $60.00 from Marian Mullins. Marian Mullins testified that she began to acquire dilaudid from Dr. Graves in the spring of 1974. The record of Class II prescriptions issued by Dr. Graves introduced at the hearing and prepared by the police department from a survey of pharmacies in the Pinellas County area indicate that the earliest prescription for dilaudid issued by Dr. Graves from which Marian Mullins received dilaudid was issued on August 29, 1974. Marian Mullins testified that she learned of her impending arrest from Marcie Loomas, after Marcie Loomas had been arrested. Marcie Loomas testified that she did not contact Mullins between the time of her arrest and the time Marian Mullins was arrested. Marian Mullins, upon her first interview by the authorities in February, indicated that she was under Dr. Graves care for heroin addiction. It was only after her arrest in July that she implicated Dr. Graves in any sale of prescriptions for narcotics. Marian Mullins was unable to provide information concerning specific dates, amounts of money and other matters which could be independently verified. She stated that she had difficulty remembering the particulars of the year 1974 because of the level of her narcotic addiction. The Hearing Officer finds no creditable proof of the sale of prescriptions for controlled substances by Dr. George F. Graves. The record of prescriptions for Class II controlled substances by Dr. Graves referred to above indicated that prescriptions for approximately 1,750 four mg dilaudid pills were delivered by Dr. Graves to Marian Mullins in the name of Marian Mullins, Margaret Schreffler, and Sherry Zauner. Dr. Graves admitted having written these prescriptions and having delivered them to Marian Mullins. Except for the first prescription for dilaudid dated August 29, 1974 in the name of Sherry Zauner, Dr. Graves could provide no explanation of why he had prescribed drugs for Marian Mullins in the names of other individuals beyond the fact that Marian Mullins had asked him to do so. Dr. Graves did state that the reason he prescribed dilaudid for Marian Mullins was to treat her addiction by maintaining her on the drug dilaudid until she entered a drug treatment program as she had indicated to him that she would do. Dr. Graves further testified that be had developed a treatment program for Marian Mullins to reduce her dependency on dilaudid in the interim. The record of prescriptions referred to above indicates that Dr. Graves delivered to Marian Mullins prescriptions for 385 four mg dilaudid pills in September, 576 four mg dilaudid pills in October, and 864 four mg dilaudid pills in November. Marian Mullins testified that her level of addiction was between 10-15 four mg dilaudid pills per day. Dr. Graves provided Mullins with an average of thirteen pills per day in September, nineteen pills per day in October, and twenty-nine pills per day in November. This shows a steady increase, not a reduction, in her supply of dilaudid. If one assumes that Dr. Graves was treating Marian Mullins for narcotics addiction and that such treatment falls within the professional practice of osteopathy, the record of prescription and Dr. Graves' testimony indicate that he did not control his patient and institute his treatment plan. Dr. Graves knew or should have known that the quantity of drugs that he was prescribing for Marian Mullins was in excess of that needed to maintain or reduce her level of addiction. Section 893.05, F.S., requires that a practitioner not only prescribe drugs in the course of his professional practice but also in good faith. Good faith is an honesty of intention and freedom from knowledge of circumstances which ought to put an individual upon notice to inquire. Under the circumstances, Dr. Graves did not exercise good faith in prescribing quantities of dilaudid in excess of what was indicated as necessary for treatment of Marian Mullins' addiction, and did so in violation of 893.05, F.S. Section 459.14(2)(m), F.S., provides that the State Board of Osteopathic Medical Examiners may suspend a license to practice upon a finding by the Board that the individual is guilty of immoral or unprofessional conduct. Unprofessional conduct is defined to include any departure from or failure to conform to the minimal standards of acceptable and prevailing osteopathic medical practice, without regard to the injury of a patient or the committing of any act contrary to honesty, whether the same is committed in the course of practice or not. Dr. Gravest prescription of gross quantities of dilaudid to Marian Mullins and his failure to require her adherence to his treatment plan does not conform to the minimal accepted standards of osteopathic medical practice. Based upon the evidence presented by the Board and the evidence presented by Dr. Graves relating to his professional and personal character, the Hearing Officer finds that Dr. Graves did not violate 823.05 and 459.14(2)(m) for his personal gain or profit. The Hearing Officer further finds that, except for the findings above, Dr. Graves is a knowledgeable osteopathic physician who has a fine reputation both personally and professionally within his community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the license of Dr. George F. Graves to practice osteopathic medicine in the State of Florida be revoked but that the Board in its discretion consider the reinstatement of Dr. George F. Graves restricting his practice of osteopathic medicine in such a manner that he may not prescribe any drug which is listed or may be listed in Schedules I through V of section 893.03 of the Florida Statutes. DONE and ORDERED this 10th day of August, 1976 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 904 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire LaFace and Baggett, P.A. 101 East College Avenue Tallahassee, Florida David Rein, Esquire Forer and Rein 400 Woodward Building 733 15th Street N.W. Washington, D.C. Crockett Farnell, Esquire Nixon and Farnell 521 Oak Avenue Clearwater, Florida
The Issue Whether Respondent violated Subsections 458.331(1)(q), 458.331(1)(t), 458.331(1)(nn), 458.347(4), and 456.072(1)(o), Florida Statutes (2001), and Florida Administrative Code Rule 64B8-30.008, and, if so, what discipline should be imposed.
Findings Of Fact At all material times relevant to this proceeding, Coker was a licensed physician assistant with an additional qualification as a prescribing physician assistant in the State of Florida, having been issued license number PA3151. A physician assistant is a dependent practitioner, who practices under a supervising physician. A physician assistant acts as a supplement or extension of the supervising physician and is trained to do histories and physicals, to diagnose, and to treat patients. In Florida, a physician assistant is permitted to prescribe certain medications after completion of a prescriptive practice seminar and an application process. Beginning in June 2001, Coker began working as an independent contractor for Dr. Rosetta V. Cannata, an anesthesiologist who practices in pain management. Dr. Cannata was Coker's supervising physician. Dr. Cannata maintained an office in Englewood, Florida, and decided to expand her business to adult entertainment clubs in Tampa, Florida. The purported purpose was to provide medical services to persons who were working in the adult entertainment business. She made arrangements with various clubs to provide space to her at the clubs for use as examining rooms. Dr. Cannata and Coker began seeing patients at adult clubs such as the Pink Pony and Diamond's Men's Club. Patients other than those from the adult entertainment business began to come to the clubs to see Dr. Cannata and Coker. Dr. Cannata opened an office on Martin Luther King, Jr. Boulevard in Tampa to take care of the increased business. Coker saw patients at the new office and also continued to see patients at the adult clubs. In 2001, the Hillsborough Sheriff's Office began an investigation of Coker's activities in Tampa. Jaceson Yandell (Yandell) was the lead investigator. Yandell used a confidential informant (CI) to make contact with Coker. On July 14, 2001, the CI took Detective Dan Mathis (Mathis),1 an undercover officer, to Diamond's Men's Club to see Coker. Mathis and the CI were fitted with either recording or transmitting devices so that their conversations with Coker were recorded. Yandell was stationed in a nearby vehicle, which contained devices that could receive and record the transmission of the conversation between Mathis and Coker. Mathis was introduced to Coker by the CI as Dee Tucker. Coker asked Mathis to fill out a medical history form. Mathis filled out the form, indicated no to all the questions, and stated that he was not currently taking any medication, had no previous surgeries, and was not allergic to any medications. He did not list a name for his medical doctor. After asking Mathis his height and weight and whether he was allergic to any medicine, Coker asked, "What am I seeing you for today, Dee?," and the following conversation took place: Mathis: I ain't got nothing wrong with me. CI: Tell him what you want, shit that's the only way you're gonna get it. Mathis: Some Z's.2 Coker: So you are having some anxiety is what you're telling me? Mathis: Yeah, yeah. CI: Say yes. Mathis: Yes. Coker: Has this been going on long? Mathis: Shit. Well, it's been a long. It's been a while. I've been kinda acting like that. Coker also asked Mathis whether he had ever been in the military, had a car wreck, or been injured in anyway, including any football injuries. Coker also asked him whether he had a family history or had any surgeries. Mathis replied negatively to all of these inquiries. Mathis did advise Coker that his mother, who had smoked for 45 years, had recently died of hypertension and congestive heart failure at the age of 62. Coker did not check Mathis' heart, lungs, ears, nose, throat, or glands. Coker took Mathis' blood pressure and found that it was high, and advised Mathis that he needed to take medication for the high blood pressure. He prescribed hydrochlorothiazide for the high blood pressure and ordered some laboratory work to rule out causes for the elevated blood pressure. Coker also advised Mathis to eat more foods that were high in potassium. Coker had two prescription pads. One pad contained prescription forms that were pre-signed on the physician's signature line, and the other pad contained prescription forms that were not pre-signed. Coker wrote the prescriptions for the hydrochlorothiazide and the laboratory work on the prescription forms that were not pre-signed. Coker prescribed 30 two-milligram bars of Xanax for Mathis for anxiety. The prescription could be refilled two times. The prescription was written on one of the pre-signed prescription forms. During the July 14 office visit, there was no discussion of the possible cause of Mathis' anxiety, no discussion of a plan of treatment for the anxiety, and no discussion of alternative treatments for anxiety, such as counseling. The only discussion of directions of use or warnings concerning Xanax was that taking Xanax in the bar, rather than pill form, could save the patient money, because the bar could be broken into smaller doses and that Coker would prefer that a patient not take a whole bar unless it was necessary. Xanax contains Alprazolam which is a schedule IV controlled substance. Mathis did not see Dr. Cannata during his July 14 office visit. Coker did not leave the examining room or make any telephone calls during Mathis' office visit. Mathis paid Coker $50 for the visit. After leaving the Diamond's Men's Club, Mathis went to the vehicle where Yandell was located and gave Yandell the prescriptions. On August 17, 2001, Mathis returned alone to Diamond's Men's Club to see Coker. Mathis was wired with a transmitting device so that the conversation between Coker and Mathis was recorded. Coker took Mathis' blood pressure and found it to be lower. Other than taking Mathis' blood pressure, Coker did not perform any physical examination of Mathis. Mathis advised Coker that he had an injury due to bench pressing and that he felt some discomfort when he bench-pressed during a work out. Coker did not ask Mathis how often he experienced the pain, nor did he ask Mathis if he was taking any other medication for the pain. Coker and Mathis discussed the use of anabolic steroids, and Coker discouraged the use of steroids. During the August 17, 2001, office visit, Coker did not ask Mathis how the Xanax was working, did not inquire whether Mathis was still experiencing anxiety, did not discuss alternatives to Xanax, did not discuss the causes of anxiety or ways to address the anxiety, did not discuss a medical diagnosis with Mathis, and did not discuss a plan of treatment. On August 17, 2001, Coker wrote Mathis a prescription for 30 two-milligram bars of Xanax, which could be refilled two times, and a prescription for Lortab, which could be refilled one time. Lortab contains Hydrocodone which is a Schedule III controlled substance. Coker wrote the prescriptions on prescription forms which had been pre-signed on the line for the physician's signature. Mathis did not see Dr. Cannata on the August 17, 2001, visit, and Coker did not leave the room. Other than a telephone call to his family, Coker did not talk on the telephone during Mathis' visit. Mathis paid Coker $50 for the office visit and left the adult club. He met Yandell at a predetermined location and turned over the prescriptions to Yandell. On August 21, 2001, Mathis and another undercover officer, Detective Peggy Grow (Grow), met with Coker at an office located on Martin Luther King, Jr. Boulevard in Tampa. Mathis and Grow were outfitted with transmitting and recording devices so that the conversations of Mathis, Coker, and Grow were recorded. Grow was introduced to Coker as Peggy Lane.3 As an undercover officer, Grow played the role of a call girl or escort. Upon meeting Grow, Coker explained that he was a physician assistant and worked with Dr. Cannata, who was an anesthesiologist. He stated that the practice included primary care, pain management, and management of anxiety and depression. He asked Grow to fill out a medical history questionnaire. She checked no to all the questions except for the use of alcohol and tobacco. Grow did not list the name of her medical doctor and told Coker that she had not seen a doctor in a long time. Coker asked Grow the reason for her visit, and the following conversation took place: Grow: I just need something to keep going. I work a lot of hours, you know, sometimes I'm up real late and then you know I get up again and, sometimes, you know, it's hard. Coker: Okay. Define keep me going 'cause I don't prescribe any kind of amphetamines or any speed or anything like Mathis: I told you doc. He, he, he's straight. Tell him you want some Zees. Coker: Tell me . . . Grow: I want some Zees. Coker: Xanax. Okay. Xanax is an anti- anxiety. Okay? Grow: Will that help like stress and stuff like that? Coker: Oh, absolutely. Grow: Okay. I think that keeps . . . Coker: Any time dealing with anxiety. It's actually a wonderful medicine and it works very well. Grow: Okay. Coker: Um, it either can be dosed, you can, like I always prescribe the bars because you can break them into four pieces or you can break them into two pieces or you can take the whole thing. It just depends on what your need is. Grow: Okay. Coker: Okay? And I have folks, you know, I tell them take it as needed. Um, but usually it's just an anxiety kind of thing, so . . . you know, you got to talk English to me otherwise I don't understand. The medical records which Coker generated for Grow contained the following notes, as they related to Grow's anxiety: CHIEF COMPLAINT: Describes being tense, on edge, tremulous, difficulty relaxing, tachycardia-palpitations, dyspnea, symptoms present for "years." * * * PLAN: advised Referral - To therapist of choice for chronic recurring anxiety Advised If hyper-ventilating, then teach "brown paper lunch bag" re-breathing technique. Avoid caffeine and plan for regular physical activity. Practicing a relaxation exercise regularly as well. Discussed stress reduction. Grow did not describe the symptoms listed above, and Coker did not give the advice listed above. Grow told Coker that she had never had any surgeries and that she had taken some of Mathis' Xanax. Coker took Grow's blood pressure, listened to her heart and lungs, and checked the glands on her neck. Coker gave Grow a prescription for Xanax and advised her not to drink, drive, or operate machinery while she was taking the Xanax. He told her the prescription included one refill and not to call him saying that she needed another refill. He told her to "[g]o get some of his (meaning Mathis)." Coker wrote the prescription for Xanax on a prescription form which had been pre-signed on the physician's signature line. During Grow's visit on August 21, 2001, Mathis asked Coker about giving him a prescription for Vicodin. Coker explained that Vicodin was the same medication as the Lortab, which he had prescribed to Mathis on Mathis' last visit. Mathis explained that the Lortab was actually for him, and Coker asked him for whom was the Vicodin. Mathis replied that it was for himself, after which the following conversation took place: Coker: Well, see I can't give them to you then 'cause I gave script for a hundred on the 17th. Grow: How about me? Coker: Yeah, I can give them for her. Mathis: Well, do that. Alright, I get, I get ah Craig hooked up. Coker: For your, your neck pain, huh? Mathis: Yeah. Coker: After the motor vehicle accident two weeks ago. There had been no mention of Grow having any neck pain until Coker stated that it was for her neck pain. There is nothing in the recorded conversation between Grow and Coker from which Coker could make a determination that Grow had neck pain resulting from a motorcycle or motor vehicle accident. Coker invented the symptoms for Grow to give support for a prescription for pain medication. Coker asked Mathis, not Grow, about the Vicodin prescription in the following conversation: Coker: Which Vicodins are we talking about here, Dee? Mathis: A stronger one. Coker: Well, if you want the tens you have to go really with the Lortabs 'cause you're going to get generic anyhow. Mathis: I'm going to get generic? Coker: Right. Mathis: As opposed to what? Coker: Well, if I wrote it for Vicodin HP, which is not generic, then you pay a lot of money. Mathis: I ain't paying it. I ain't worried about that. Coker: What I'm saying somebody's going to pay a lot of money versus . . . the thing about it is it's no difference than the generic. Mathis: Is, I mean, Craig going to be able to take of that, I'm not as far as . . . Based on the recorded conversations between Mathis and Coker, it is clear that Mathis wanted the Vicodin prescription for someone named Craig, and that Coker was going to prescribe the pain medication for Grow in order to get around the problem that it was too soon for Coker to give Mathis another prescription for pain medication. On August 21, 2001, Coker gave Grow a prescription for 50 Lortab, which could be refilled one time. The prescription was written on a prescription form, which was pre-signed on the physician's signature line. During the August 21 office visit, Grow did not see Dr. Cannata; Coker did not leave the room; and Coker did not make any telephone calls. On August 24, 2001, Grow and another undercover officer, Detective Heinz Bachman (Bachman),4 went to Diamond's Men's Club to see Coker. Both Grow and Bachman were outfitted with electronic devices that allowed the conversations during the visit to be monitored and recorded. Grow introduced Bachman to Coker as Hank Richardson. When Coker asked Bachman the reason for the visit, Bachman told him pain. Grow told Coker that Bachman wanted some Vicodin. Coker asked Bachman what kind of pain he had, the cause of the pain, and the duration of the pain. Bachman told Coker that he had injured his back a week ago while throwing a fish net. Coker asked Bachman if he had had any surgeries, was on any medication, was allergic to any medicine, or smoked. Bachman answered all the questions in the negative. Bachman also filled out a medical history questionnaire, indicating no to all the questions. Later, when he told Coker that he had back pain, the form was changed to reflect that condition. Bachman did not list the name of his medical doctor. Coker took Bachman's blood pressure and listened to his lungs and heart with a stethoscope. Bachman was requested to stand up. Coker then palpated Bachman's lower back and asked if that was where he had pain. Bachman replied that it was. Coker told Bachman that he was going to give him a prescription for pain medicine and that Bachman should take an anti-inflammatory, over-the-counter medication and put ice on his back. Coker advised Bachman that if the pain did not go away that Bachman should come back for a shot of cortisone. Coker told him not to drink, drive, operate machinery, or drive a boat while he was taking the medication. During the visit, Grow asked Coker if he could give Bachman some Xanax during the following conversation: Grow: Very cool. While's we're here can, can you give him one for Zees for me and Dee [Mathis] to take? Coker: Ah-yi-yi-yi-yi-yi-yi Grow: Can you give him some Zees? Coker: Maybe. Grow: Okay. Okay. (Laughs.) Coker: (Laughs.) Grow: Well, you gotta ask, right? Coker: Ay-yi-yi-yi-yi-yi Grow: You told me last time to ask. Bachman did not tell Coker that he was experiencing any anxiety or any symptoms of anxiety or stress. Coker did not ask what might be causing Bachman to have anxiety or describe a plan of treatment for anxiety. Coker did tell Bachman that the Xanax was for mild anxiety. It is clear that Bachman was not experiencing anxiety and that the reason for prescribing Xanax was for Grow's use and not Bachman's. Coker wrote a prescription for Bachman for 50 Lortab with no refill, and a prescription for 60 Xanax with one refill. Both of the prescriptions were written on prescription forms which had been pre-signed on the physician's signature line. During the visit, Bachman did not see Dr. Cannata, and Coker did not leave the room or discuss anything with Dr. Cannata. Bachman paid Coker $50 for the visit. On September 27, 2001, Grow went to see Coker and brought along another undercover officer, Anthony Bordonaro (Bordonaro).5 Both Grow and Bordonaro were outfitted with electronic devices that allowed the conversations during the office visit to be recorded. Grow told Coker that she was there for refills of her prescriptions. Coker asked her how her back and neck were, to which she replied the "same." He asked if she were okay with her medications and she said "Love 'em." Coker took Grow's blood pressure and listened to her heart. He felt her neck and palpated her back. Coker found a knot in her back area, and suggested that she have some massage therapy, stating that he was also a massage therapist. He wrote prescriptions for Grow for 45 Xanax with one refill and for 50 Lortab with one refill. Coker asked Bordonaro his height and weight. Bordonaro stated he was not taking any medications and that he was allergic to penicillin. He told Coker that he piloted tug boats, had hurt his arm in a fall on a boat, and had to have surgery on his arm five years ago, resulting in a screw being placed in his arm. Bordonaro stated that he had no other medical problems. He denied smoking, but indicated he did drink alcohol. When Coker asked Bordonaro what was the purpose of the visit, Bordonaro said that he wanted some Vicodin, which he had taken when he had hurt his arm. According to Bordonaro, it was "some good stuff." Coker's computer medical notes for Bordonaro's visit indicate that Bordonaro was currently taking pain medication; however, Bordonaro did not indicate that he was currently taking any pain medications. Coker took Bordonaro's blood pressure and listened to his lungs. Coker told Bordonaro that his blood pressure was high. Bordonaro told Coker that the last time that he had gone to his doctor in Pensacola, his blood pressure was 112/80. Coker told Bordonaro that they would keep an eye on his blood pressure. When Coker asked Bordonaro what he did that caused pain in his arm, Bordonaro replied, "Like all in, all in here." Coker had him lift his wrist up and down, spread his fingers apart and push them together, and touch his thumb and little finger. Coker wrote Bordonaro a prescription for 50 Vicodin with one refill. Vicodin contains Hydrocodone, which is a Schedule III controlled substance. Coker told Bordonaro to avoid doing anything that would exacerbate the pain and not to drink, drive, or operate any machinery while taking the medication. The prescriptions that Coker wrote for Grow and Bordonaro on September 27, 2001, were written on prescription forms which were pre-signed on the physician's signature line. Dr. Cannata was not present during the office visit, and Coker did not leave the room or make any telephone calls during the visit. Coker charged Bordonaro $100 for his and Grow's visit. On November 15, 2001, Grow returned to see Coker and took along undercover officer Donald Bowling.6 Both officers carried electronic devices that allowed the conversations during the visit to be recorded. Grow indicated that she was there because she wanted refills on her Lortab prescription. Coker asked her how she was feeling, to which she replied, "Oh, pretty good." When asked about her neck, Grow told Coker that it was about the same. Coker asked if ever got any better, and she told him it did, but that sometimes she slept funny. Coker took Grow's blood pressure, listened to her heart, and felt her neck. He asked Grow her weight and height. Coker indicated that she could get her medications from him, rather than getting prescriptions and having them filled at a pharmacy. He gave her a bottle of 100 Hydrocodone and a bottle of 180 one-milligram tablets of Alprazolam, the generic name for Xanax. He told her to take two of the Xanax instead of one because the dosage was smaller. When Coker asked Bowling the reason for his visit, Bowling told him that he had injured his knee in high school and that the knee would get really sore every now and then. He said that when he bent his knee he could feel something, but he did not know how to describe it. Bowling said that someone wanted to do a "scope thing" on his knee and that he had refused. Coker took Bowling's blood pressure and listened to his heart. Coker had Bowling lie down on the examination table. While Coker felt around Bowling's knee, he asked where the pain was. Bowling said that he could feel the pain when he was moving in a certain way. Coker had him tighten his muscle and lift his leg. Coker advised Bowling that his condition was early wear and tear on the knee, which was common. The condition, Coker said, would come and go. Coker told Bowling that in addition to taking the pain medication, he should take over-the-counter, anti-inflammatory medications such as Ibuprofen and Aleve. He told Bowling to put ice on the knee and to avoid actions that would tend to make the knee worse, such as squatting on the knee. Coker asked Bowling his height and weight. When asked by Coker, Bowling said that he had not had any major surgery and was not allergic to any medication. He told Coker that his father had recently been diagnosed with colon cancer. Bowling said that he smoked tobacco and drank alcohol. During the visit Grow told Coker that Bowling wanted some Zees. After examining Bowling, Coker asked, "You said you wanted Xanax also?" to which Bowling replied "Yes. Please." There was no other mention of a reason for giving Bowling Xanax. In Bowling's medical records, Coker indicated that Bowling had "Anxiety syndrome (tense or nervous)"; however, Bowling never said that he had anxiety or was tense or nervous. Coker gave Bowling a bottle of Alprazolam and a bottle containing 100 Hydrocodone tablets. Bowling paid Coker $310 for his and Grow's visit and medications. Dr. Cannata was not present during the visit of Grow and Bowling on November 15, 2001. Coker did not leave the room or contact Dr. Cannata during the visit. On December 13, 2001, Bordonaro went to see Coker to get a refill of his pain medication. Bordonaro carried an electronic device which allowed their conversation to be recorded. Even though Coker had told Bordonaro during their last visit that Bordonaro's blood pressure was high, Coker did not examine Bordonaro or take his blood pressure. Coker asked Bordonaro how he was doing, and Bordonaro replied, "Good. Good." After explaining the difference between Vicodin ES and Hydrocodone, Coker gave Bordonaro a bottle of 100 Hydrocodone tablets, and charged Bordonaro $115 for the visit and medication. On January 11, 2002, Bordonaro visited Coker at an adult club to get more medication. Again, Bordonaro wore a device which allowed the conversation to be recorded. He told Coker that he was having to take more of the Vicodin and asked if he could get something stronger. Bordonaro also asked if he could get some Xanax. At first, Coker told him no, but then gave him a form and told him to place a checkmark by everything that applied to him. Bordonaro checked the first three items on the form and gave it back to Coker. Coker did not discuss with Bordonaro any symptoms of anxiety that Bordonaro checked on the form or any plan of treatment for anxiety. Coker did not perform an examination of Bordonaro. Although Coker's computer-generated medical records for Bordonaro's January 11 visit indicate that Bordonaro's blood pressure was taken, it was not. Coker gave Bordonaro a bottle of 100 tablets of Hydrocodone/Acetaminophen, and a bottle of 90 Alprazolam bars for anxiety. Coker did not contact Dr. Cannata during the visit. The total charge for the visit and medications was $155. On February 12, 2002, Bordonaro returned to see Coker to get refills of his pain medication. The undercover officer wore an electronic device which allowed the conversation to be recorded. Bordonaro told Coker that the pain pills he had gotten at the last visit were not working and asked if he could get something stronger. Coker told him that he could write a prescription for Percocet, but that Bordonaro would have to get it filled at a pharmacy. Coker suggested that he get the prescription filled at Wal-Mart or Target because those pharmacies are not computer interconnected as Eckerds and Walgreens are. Coker gave Bordonaro a prescription for 100 Percocet with no refills. Percocet contains Oxycodone, which is a Schedule II controlled substance. Coker wrote the prescription on a prescription form which was pre-signed on the physician's signature line. Coker did not examine Bordonaro during the visit. Although Bordonaro complained that the pain medication that he had been given on his last visit was not working, Coker put in Bordonaro's medical records that Bordonaro was "[d]oing well with current medication and treatment plan." Coker asked Bordonaro if he wanted the Xanax medication refilled, and Bordonaro replied that his girl was out of town so he did not need the Xanax. Bordonaro paid Coker $75 for the visit. On April 25, 2002, Bordonaro again visited Coker for the purpose of getting refills of his medications. Again, Bordonaro wore a device which allowed the conversation to be recorded. Coker gave Bordonaro 120 tablets of Hydrocodone, the generic for Lortab, and 90 bars of two-milligram Alprazolam for anxiety. Bordonaro asked if he could double up on his medication, and the following conversation took place: Coker: No. Bordonaro: No? Coker: That's what I have to tell you. Bordonaro: Okay. Coker: Remember with these don't drink, drive, operate any machinery while you're taking it. Don't mix with other medicines or share them with anyone else. When Coker told Bordonaro that he could not double up on the medication, Coker winked at Bordonaro. Bordonaro was not examined on the April 25 visit. Coker charged Bordonaro $165 for the visit and medications. John Barsa, M.D., a board certified physician in pain medicine, testified as an expert witness on Coker's behalf. Dr. Barsa practices in the Tampa area. Approximately nine or ten years ago, Dr. Barsa employed a physician assistant for about six months to one year. He currently employs three nurse practitioners. Dr. Barsa gave his opinions on the care that Coker provided to the undercover officers. However, his opinions were based in part on the medical records made by Coker. Much of those medical records do not accurately reflect what occurred during the visits of the undercover officers. Herly Ramos, P.A.-C., is a physician assistant and has passed the national board certification examination for general medicine. He is presently employed as a surgical assistant. Previously he practiced for nine years with the Orlando Orthopedic Center, which is primarily an orthopedic practice. While with the Orlando Orthopedic Center, Mr. Ramos routinely took medical histories, performed physical examinations, made assessments, developed treatment plans, did discharge evaluations, and wrote progress reports. A large component of the orthopedic practice involves evaluating patients for complaints of pain. Common orthopedic ailments include back or neck pain, extremity pain from strains, sprains, or fractures. The first line of treatment for such ailments includes nonsteroidal, anti-inflammatory drugs, muscle relaxers, and physical therapy. Patients with fresh fractures or other conditions involving severe pain often require narcotic analgesics or controlled substances. Mr. Ramos credibly opined on the standard of care for a physician assistant in evaluating a patient on the initial visit and follow-up visits. It is his opinion that when performing an initial evaluation of a patient complaining of pain, a detailed medical history should be taken, and a thorough physical examination should be conducted. The medical history should include a personal medical history, social history, family medical history, allergies, surgical history, name of current physician, current medications, review of systems, and any diagnoses. According to Mr. Ramos, the initial physical examination for a patient complaining of pain should include taking the patient's vital signs (blood pressure, pulse, respiration, and temperature), heart and lung examination, assessment for any obvious abnormalities, examination of the abdomen, and a detailed examination of the portion of the body about which the patient is complaining. During the physical examination, the physician assistant should be looking for anything that might indicate a cause for the patient's complaint. A limited examination is a less detailed examination, and it is Mr. Ramos' opinion that a limited examination is indicated when the physician assistant is treating the patient for a recurring complaint and wants to determine if there was any interval change. Dr. Barsa and Mr. Ramos agree that a physician assistant could recommend to the supervising physician that controlled substances be prescribed for a patient, but that a physician assistant could not prescribe controlled substances for a patient. It is the opinion of Dr. Barsa that a physician assistant who prescribes controlled substances is practicing beyond the scope permitted by law for a physician assistant. According to Dr. Barsa, the prescribing of controlled substances should be based upon a clear documentation of unrelieved pain that is unmanageable with simple Tylenol or aspirin. For example, it would be a violation of the standard of care to prescribe a controlled substance for neck pain when the patient has no complaints of neck pain. Mr. Ramos credibly opined that Coker's treatment of the undercover officers fell below the level of care, skill, and treatment which is recognized by a reasonably prudent physician assistant as being acceptable under the conditions and circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding James Coker guilty of violating Subsections 458.331(1)(t), 458.331(1)(q), 459.331(1)(nn), and 456.072(1)(o) and Florida Administrative Code Rule 64B8-30.008, and revoking his license as a physician assistant. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003.
The Issue The issues to be decided are whether Respondent violated portions of chapter 458, Florida Statutes, as alleged in the Administrative Complaints; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to this matter, Dr. Mubang was a licensed physician within the State of Florida, having been issued license number ME55171. Respondent’s address of record is 741 Martin Luther King Boulevard West, Seffner, Florida 33584. Since at least March 17, 2010, Dr. Mubang’s practice at 741 Martin Luther King Boulevard has been registered as a pain management clinic with Petitioner. Dr. Mubang is board-certified in geriatric medicine and ambulatory medicine. Dr. Mubang immigrated to the United States from Cameroon, West Africa, to obtain his college education at State University of New York-Buffalo (“SUNY-Buffalo”). Dr. Mubang received a bachelor of arts degree in biology from SUNY-Buffalo. Dr. Mubang attended medical school at Southwestern University School of Medicine in the Philippines. Upon completion of his medical education, Dr. Mubang attended the Medical College of Pennsylvania for clinical rotations. He performed his residency at State University of New York-Brooklyn and Hahnemann University. Dr. Mubang’s license was first issued June 14, 1989, and is valid through January 31, 2020. His license has not been the subject of prior discipline. Dr. Mubang has maintained his Drug Enforcement Agency (“DEA”) Certificate of Registration without revocation, suspension, or other sanction. He has additionally qualified for, and obtained, a separate DEA Certificate of Registration to dispense Suboxone and buprenorphine. This secondary DEA Certificate of Registration requires training in addiction medicine. Dr. Mubang has continuously practiced as the primary care physician for many of his patients. He began his practice in Florida with CIGNA Health Group in one of its managed care clinics at University Mall in Tampa. When CIGNA closed its clinics, Dr. Mubang became employed by Correctional Medical Services (“CMS”), initially at Lake Correctional Facility, and then as the medical director for the Hillsborough County Sheriff’s Office. During his tenure with the Hillsborough County Sheriff’s Office, Dr. Mubang was recognized as the “Medical Director of the Year” for CMS in 1998. After leaving the Hillsborough County Sheriff’s Office, Dr. Mubang joined a practice with Dr. Encarnacion in Seffner, Florida. When Dr. Encarnacion retired, Dr. Mubang acquired the practice. In May 2009, Dr. Mubang received from the Board of Medicine and the Department of Health a publication entitled, “responsible opioid prescribing.” Dr. Mubang learned through his participation in various continuing medical education seminars about certain forms recommended for the treatment of patients suffering from chronic pain. He did not use electronic medical records prior to the dates of treatment charged in these consolidated Administrative Complaints. While in private practice, Dr. Mubang continued to treat patients committed to the State of Florida Juvenile Assessment Centers in Pasco, Pinellas, Sarasota, and Manatee counties. Dr. Mubang’s practice was licensed as a pain management clinic in 2010, despite his having limited formal training or education in pain management. Since initial licensure, his pain management clinic has remained continuously in operation, and has consistently passed all inspections. Pain Management Clinics are subject to annual inspections by DOH pursuant to section 458.3265(4)(a). Dr. Mubang’s Pain Management Clinic has never failed an inspection. DOH Investigator Victor Troupe of the Investigative Services Unit performed inspections of Dr. Mubang’s clinic. The clinic passed inspection. Dr. Mubang’s charged treatment of Patients A.M., B.B., C.C., W.B., and M.H., as alleged in the Administrative Complaint, occurred prior to October 17, 2010, the effective date of revised rule 64B8-9.013. Both parties presented expert witnesses board-certified in pain management to testify as to the standard of care required in this matter. Dr. Robert Guskiewicz testified as a medical expert for Petitioner. Dr. Guskiewicz is board-certified by the American Board of Anesthesiology in anesthesiology with a subspecialty in pain medicine. Dr. Guskiewicz practices as part of a large multispecialty practice in Gainesville, Florida, called Southeast Integrated Medical (“SIMED”). SIMED’s practice areas include neurology, neurosurgery, rheumatology, gynecology, psychology, urology, physiatry, allergy, family practice, and internal medicine. Dr. Guskiewicz is not now, and never has been, a primary care physician. About 40 percent of Dr. Guskiewicz’s practice is performing injections or interventions on patients. Most of the balance is patients on medication management seeking to achieve better functionality. Dr. Guskiewicz defines the standard of care as “what a prudent physician would do with a particular patient in a particular situation at that particular time.” In his practice, Dr. Guskiewicz prescribes 30 mg of oxycodone. Oxycodone is an effective pain medication. According to him, there is no maximum recommended dose for 30 mg of oxycodone. For the purposes of his expert testimony, Dr. Guskiewicz has no knowledge or information regarding Dr. Mubang or his practice. He does not know how big the clinic is where Dr. Mubang practices, who owns it, how many patients are seen each day, how many employees work there, or the types of patients treated there. Dr. Guskiewicz was paid an hourly fee for his expert testimony and preparation for deposition in this matter. Dr. Guskiewicz testified that he did a page-by-page review of the medical records he initially reviewed and those provided for his deposition in lieu of live testimony. Dr. Guskiewicz testified that the records were identical for Patients A.M., B.B., W.B., and M.H., but that the Bates numbers for the records for Patients C.C. and B.D. were not in sync. For Patient B.B., it was apparent at the hearing that Dr. Guskiewicz was in possession of the requisite records, which Respondent argued, had not been reviewed. For Patient M.H., Dr. Mubang argued that Joint Exhibit 6, covering records of treatment from 2010-2012, was not reviewed by Dr. Guskiewicz. Dr. Guskiewicz testified that the records for Patient M.H. were identical. In any event, the records subject to Respondent’s objection concern treatment after the treatment dates at issue in the Administrative Complaint. Only the records concerning the allegations contained in the Administrative Complaints will be considered for purposes of this Recommended Order. Dr. Mubang also raised the issue that Dr. Guskiewicz was not a similarly situated practitioner to Respondent. Dr. Mubang self-identified as practicing in pain management, and he owned and operated a clinic that was registered as a pain management clinic with DOH. Each patient treated by Dr. Mubang signed an Attestation for Pain Management, along with an Agreement for Treatment with Controlled Substances Therapy for Pain. Dr. Mubang acknowledged that if he gave a patient a pain management agreement, he was providing pain management to that patient. If a health care provider is providing evaluation, treatment, or diagnosis for a condition that is not within his or her specialty, a specialist trained in the evaluation, treatment, or diagnosis for that condition shall be considered a similar health care provider, pursuant to section 766.102(8), Florida Statutes. Because Respondent’s care at issue in this case is pain management, which is not specifically within his specialty, Dr. Guskiewicz is considered a similarly situated practitioner to Respondent. Petitioner did not provide Dr. Guskiewicz with any deposition testimony in this action until after his deposition in lieu of live testimony on October 9, 2018. Consequently, the depositions were not considered at the time Dr. Guskiewicz prepared his reports in this action. Dr. Guskiewicz never interviewed any of the patients at issue in this matter; never conducted any physical examination of the patients; and does not know where any of these patients are today. Further, he does not know what their current condition is; whether any of the patients are still receiving treatment for chronic pain; and whether any of the patients are still receiving opioid pain medications for the treatment of chronic pain. During the time periods relevant to these consolidated actions, Florida did not have a prescription drug monitoring database or E-FORCSE. At the time Dr. Guskiewicz authored his November 29, 2011, report, there was not a prescription drug monitoring database in Florida to permit practitioners to verify a patient’s representations about the medications they were taking and who had prescribed them. Dr. Guskiewicz is not a primary care physician, and has never been called upon to cover for a primary care physician who is treating a patient and has an ongoing relationship with that patient. Dr. Guskiewicz agrees that physicians in Florida have an obligation to consider their patients’ subjective complaints of pain and to treat them. Dr. Guskiewicz defines pain management as “treating patients who have chronic pain and provide different modalities of care to increase the functionality and well-being within that patient.” The goal of pain management is to optimize the patient’s functionality, lifestyle, and well-being within his or her family and community. Dr. Guskiewicz acknowledged that a patient coming to him for medical management of his or her pain is looking for an increase in function so he or she can get back to work and participate in normal activities of daily living. Dr. Guskiewicz defines intractable pain as “pain that perpetuates itself no matter what modalities are tried and will always be there. It’s now thought of being a more centralized pain that is basically within the brain itself.” Dr. Thomas Simopoulos testified as a medical expert for Respondent. Dr. Simopoulos is board-certified by the American Board of Anesthesiology in anesthesiology with a subspecialty in pain medicine. Dr. Simopoulos testifies as an expert for the defense more than 90 percent of the time. In the last five years, Respondent’s counsel has paid Dr. Simopoulos $30,000 to $50,000 in expert witness fees. Dr. Simopoulos lives in and practices medicine in Massachusetts. Dr. Simopoulos is not licensed to practice medicine in any other state; and he has never practiced medicine in the State of Florida. Dr. Simopoulos testified that the standard of care at the time material to this case was more regional than national. Dr. Simopoulos educated himself about the regional standard of care in Florida through conversations with his students and through hearing from people at national meetings. Dr. Simopoulos testified that patients have the right to reject a surgical recommendation: “Patients who are younger, in their more productive years, may not want to seek out surgery as a solution, particularly of the spine because it usually means that they’re at risk for having multiple surgeries. So and that even continues today, we try to manage younger folks with more conservative measure [sic], including medications to try to avoid surgery, because we know where that trajectory is going to go.” Dr. Simopoulos admitted that there were no studies at the time material to this case that revealed the exact nature and course of practice in the State of Florida. While Dr. Simopoulos is credited as an expert in anesthesiology and pain management, his reliance on the second- hand accounts from students and conferences he attended to form his opinions about the regional standard of care in Florida, are not as persuasive as the accounts of Dr. Guskiewicz, a physician practicing in the area of anesthesiology and pain management in Florida. Accordingly, Dr. Guskiewicz’s testimony is entitled to greater weight in this proceeding. Dr. Simopoulos also opined that the standard of care can only be violated when a patient is harmed. DOH argued that his definition is inconsistent with the definition in Florida law as contained in section 766.102(1). DOH Investigator Victor Troupe served a subpoena on September 2, 2010, for patient records to include: A.M., B.B., C.C., M.H., and W.B. Investigator Troupe took possession of the original files on that date. He has no reason to believe those patient files had been altered in any way. Investigator Troupe had performed numerous annual inspections of Dr. Mubang’s clinic, and neither found any violations or issued any citations. Investigator Troupe never interviewed Patients A.M., B.B., C.C., M.H., W.B., or B.D. Further, Investigator Troupe has no knowledge or information regarding the present whereabouts of any of those individuals. Finally, he has no information about whether those patients are still receiving opioid analgesic pain medication, even though DOH has access to E-FORCSE for investigative purposes. Drug Definitions Oxycodone is commonly prescribed to treat pain. Roxicodone is a brand name for oxycodone. Oxycodone is a Schedule II controlled substance. Oxycodone will be used throughout this Order, even if the brand name Roxicodone was prescribed. All Schedule II controlled substances have a high potential for abuse and have currently accepted, but severely restricted, medical use in treatment in the United States. Abuse of Schedule II controlled substances may lead to severe psychological or physical dependence. § 893.03(2), Fla. Stat. Fentanyl is a very strong opioid that is prescribed to treat pain and is listed as a Schedule II controlled substance. § 893.03(2)(b), Fla. Stat. Hydromorphone is a Schedule II controlled substance that is commonly prescribed to treat pain. Hydromorphone is commonly prescribed under the brand name Dilaudid. § 893.03(2)(a), Fla. Stat. Methadone is a synthetic opioid prescribed to treat pain. Methadone is a Schedule II controlled substance. § 893.03(2)(b), Fla. Stat. Vicodin and Lortab are brand names for hydrocodone/APAP. Hydrocodone/APAP contains hydrocodone and acetaminophen and is prescribed to treat pain. Hydrocodone in the dosages found in Vicodin is a Schedule III controlled substance. § 893.03(3)(c)4., Fla. Stat. All Schedule III controlled substances have a potential for abuse less than the substances in Schedules I and II. Abuse of Schedule III controlled substances may lead to moderate or low physical dependence or high psychological dependence. § 893.03(3), Fla. Stat. Fiorinal with codeine is the brand name for a drug that contains butalbital and codeine and is commonly prescribed to treat migraine headaches. Butalbital is a Schedule III controlled substance. Codeine is commonly prescribed to treat pain. Codeine is a Schedule II controlled substance. § 893.03(3)(a) and (2)(a), Fla. Stat. Ultram is a brand name for tramadol, an opioid-class narcotic medication prescribed to treat pain. At the time of the events of this case, tramadol was not a controlled substance. Tramadol is currently a Schedule IV controlled substance. § 893.03(4)(b), Fla. Stat. (2018). All Schedule IV controlled substances have a low potential for abuse relative to the substances in Schedule III. Abuse of Schedule IV controlled substances may lead to limited physical or psychological dependence relative to the substances in Schedule III. § 893.03(4), Fla. Stat. Soma is the brand name for carisoprodol. Carisoprodol is a muscle relaxant commonly prescribed to treat muscular pain. Carisoprodol is a Schedule IV controlled substance. § 893.03(4), Fla. Stat. Adderall is the brand name for a drug that contains amphetamine. Adderall is commonly prescribed to treat attention deficit disorder (“ADD”). Adderall is a Schedule II controlled substance. § 893.03(2)(c), Fla. Stat. Xanax is the brand name for alprazolam. Klonopin is the brand name for clonazepam. Valium is the brand name for diazepam. All three drugs are benzodiazepine-class drugs prescribed to treat anxiety, and all three drugs are Schedule IV controlled substances. During the time Respondent treated the five patients, who are the subject of the DOH Case No. 2010-12384, Florida did not have a prescription drug monitoring database. Before E-FORCSE, practitioners had to rely upon a patient’s representation regarding his or her medication history and verify the information by calling identified pharmacies. This “trust but verify” policy was in place at Dr. Mubang’s practice. During the time of Dr. Mubang’s treatment of these patients, he received a letter from Ana M. Viamonte Ros, M.D., the surgeon general for the State of Florida, and Fred Bearison, M.D., the chairman of the Florida Board of Medicine, dated May 13, 2009. That letter enclosed a copy of Responsible Opioid Prescribing, A Physician’s Guide, written by Scott M. Fishman, M.D. The letter advised Dr. Mubang, and others similarly situated, that Dr. Fishman’s book “is a practical guide to Florida’s current standards for the use of controlled substances for the treatment of pain,” based upon the Federation of State Medical Board’s Model Rule, “so it is right on point for Florida practicing doctors.” The book also stated, at page 25: Although Medicare and other institutions have defined what constitutes a physical examination for purposes of coding and reimbursement, exactly what comprises an appropriate or acceptable physical examination for pain is not well-defined, largely because it will differ from case to case. Regulators who expect to see a physical examination as part of the evaluation that leads to appropriate pain care involving controlled substances assume that a basic, if not focused, examination is warranted. The exact components of the examination are left to the judgment of the clinician who is expected to have performed an examination proportionate to the diagnosis that justifies a treatment. Dr. Mubang testified at the hearing, “many point-of- care screens for ‘opiates’ do not reliably detect any opioid other than codeine and morphine, or may not report if levels are below a certain threshold. Therefore, they may give false negative results for semisynthetic and synthetic oil opioid analgesics.” Dr. Mubang received feedback from pharmacists and patients regarding limitations on prescribing imposed on distributors and pharmacies by the DEA, including during the fall of 2010. During the time Dr. Mubang treated the six patients subject to these consolidated administrative actions, there was no upper limit recommended or identified regarding the maximum dosage for opioid analgesics. New patients to Dr. Mubang’s practice have to fill out paperwork, including a patient history. Patients were also required to sign an opioid contract, which mandated patients to use only one pharmacy and required that the patient only obtain medication from Dr. Mubang. Dr. Mubang obtained authorizations for release of medical information to acquire records of prior treating physicians. His office consistently obtained prior records, including MRIs and other diagnostic studies. Dr. Mubang testified that he performed a physical examination of each patient on each office visit. The initial exam was broad, while follow-up examinations were focal. His physical examinations included a review of systems, from head to toe. He stated that each physical examination included a review of the patient’s neurological status and notes whether the patient is oriented to person, time, and place. Dr. Mubang’s practice was to observe patients in his waiting room, and watch each patient as they come to the exam room. This observation is intended to identify things like gait abnormalities, guarding, and posture. Pain patients in Dr. Mubang’s practice are required to complete a Brief Pain Inventory, which he reviews with each patient. Dr. Mubang also reviews past medications with each patient to determine whether the medication has been effective in relieving pain and increasing activities of daily living. He reviews with each patient potential side effects of medication and the risks and benefits of using those medications. Dr. Mubang prepares a progress note for each office visit with a patient. Additionally, he maintains copies of each prescription issued to a patient. The identified treatment plan for each of these six patients was to improve the patient’s functional abilities, to allow them to return to work, and to participate in relationships. Dr. Mubang periodically required patients to submit to a urine immunoassay. This is a presumptive screening test for illicit substances and some other controlled substances. As Dr. Fishman points out on page 61 in his book Responsible Opioid Prescribing, Dr. Mubang was aware that “point-of-care screens for opioids do not reliably detect any opiate other than codeine and morphine.” During the 2010 timeframe, a physician who ordered a urine drug screen was not required to do anything with the results. Further, the requirements of rule 64B8-9.013(3)(d) to monitor patient compliance were not mandatory until after October 17, 2010. Dr. Mubang is aware of the sedative effects of opioids taken with muscle relaxants like Soma. This combination of medication should be dispensed with caution, but if a patient has been taking it for a period of time with no problems, he believes the prescription is appropriate. Dr. Mubang’s approach to changing pain medication, as explored more fully in the following discussion of the six patients subject to this proceeding is consistent, but deserves close scrutiny. He testified that: If the vital signs are stable, you can do what you want, so long as it doesn't have consequences. If you see the visit after this, this patient did not come in with hypertension or they did not end up in the hospital or I was not called at 2:00 in the morning. So it tells you what you're doing is right. See? That's why we do these vital signs. The Patients Each of the patients in this cause completed a two-page questionnaire about his or her pain, titled “brief pain inventory,” during each visit after the initial visit. The pain inventory contained: an anatomical figure for the patient to mark painful areas, 12 questions with a one-to-ten scale for pain level and for activities of daily living, and spaces for the patient to describe the pain in writing. Dr. Mubang’s progress notes for each of the patients consisted of a printed form, containing a similar anatomical figure at the top of the page with most of the rest of the page containing a checklist for “assessment.” Patient A.M. From December 22, 2009, to October 20, 2010, Dr. Mubang provided pain management treatment to Patient A.M., a then 23-year-old female, for lower back pain related to a car accident that occurred several years earlier. Dr. Mubang had first begun treating Patient A.M. while covering for Dr. Luis Azan at Plant City Polyclinic, where he prescribed her 240 30 mg tablets of oxycodone and 120 10 mg tablets of methadone. Dr. Mubang noted that Patient A.M. had been a passenger in the back of the car and was wearing a seatbelt. He noted that Patient A.M. did not lose consciousness, and while she went to the emergency room, she did not have an in-patient stay. On her initial evaluation questionnaire, Patient A.M. reported trying four alternative treatment methods for her pain out of 18 possible treatment options on Dr. Mubang’s checklist form: chiropractic treatment (no relief); muscle injections (no relief); massage (no relief); and pain relievers (some relief). By her own report, Patient A.M. had not tried physical therapy, nerve blocks, or surgery. Patient A.M. had sequential MRI findings from November 7, 2007 (ordered by Dr. Murthy Ravipati), and March 23, 2010 (ordered by Dr. Mubang), which demonstrated a central focal disc protrusion (herniated nucleus pulposus) at L5-S1. On her first visit at his office, Dr. Mubang increased Patient A.M.’s oxycodone from 240 to 270 30 mg tablets per month. He failed to document a rationale for the 30-pill increase. Dr. Mubang’s medical records included Patient A.M.’s medical history and physical examination; diagnostic, therapeutic, and laboratory results; evaluations and consultations; objectives identified; risks and benefits of the treatment ordered; treatments and medications ordered and documented; and instructions and agreements regarding pain management. Dr. Mubang made referrals to consulting physicians, including Dr. Goldsmith (orthopedic) and physical therapy (Select Physical Therapy). From December 22, 2009, to August 27, 2010, Dr. Mubang prescribed 270 30 mg tablets of oxycodone in combination with 120 10 mg tablets of methadone to Patient A.M. monthly. In ten months, Patient A.M. received 3,870 pain pills from Dr. Mubang. In order to take the pain medication as prescribed, Patient A.M. would have to take 13 pain pills per day. By comparison, Dr. Mubang’s expert, Dr. Simopoulos, testified that in his practice the most 30 mg of oxycodone that he ever prescribed was six tablets per day, or 180-200 tablets per month. Petitioner’s expert, Dr. Guskiewicz, testified that in his practice the most 30 mg of oxycodone that he ever prescribed was five per day, or 150 tablets. In addition to the pain medication, Dr. Mubang prescribed 90 350 mg tablets of Soma to Patient A.M. per month. On August 2, 2010, Dr. Mubang ordered a urine drug screen for Patient A.M. The drug screen was positive for benzodiazepines and negative for methadone. If a patient tests negative for a prescribed medication, the physician should consider the possibility that the patient is not taking the drug and, instead, is diverting it. Given Patient A.M.’s negative test for methadone, Dr. Mubang should not have continued to prescribe methadone to her, or at least should have questioned her about her usage of the prescribed drug. Despite the aberrant test result, Dr. Mubang continued to prescribe potentially lethal doses of oxycodone, methadone, and Soma to Patient A.M. Further, from December 22, 2009, through August 27, 2010, Dr. Mubang did not perform nor did he document performing a complete and adequate physical examination or medical history to justify his prescribing of potentially lethal doses of methadone, oxycodone, and Soma to Patient A.M. From December 22, 2009, through August 27, 2010, Dr. Mubang did not diagnose Patient A.M. with intractable pain prior to prescribing potentially lethal doses of methadone, oxycodone, and Soma to Patient A.M. To meet the standard of care, Dr. Mubang should have immediately reduced the amount of medication that he prescribed to Patient A.M. Additionally, he should have tried to determine the root cause of Patient A.M.’s pain. Dr. Mubang should have followed up on his ordering of alternative treatment modalities, such as physical therapy, and if Patient A.M. refused to follow his instructions, he should have discharged Patient A.M. While Dr. Mubang’s records are at times difficult to read, some were legible enough for review by the two experts who offered opinions in this matter. On the whole, however, the medical records for Patient A.M. were inadequate (and some of them were actually illegible) to provide complete information to either Dr. Mubang or another reviewing physician or investigator. Patient B.B. From March 25, 2010, to August 23, 2010, Respondent provided pain management treatment to Patient B.B., a then 25- year-old female. Patient B.B. initially visited Dr. Mubang on March 25, 2010, with a history of cervical spinal fusion in 2003 following a motor vehicle accident. Dr. Mubang’s Initial Evaluation documented a thorough review of systems, including skin; HEENT (head, eyes, ears, nose, and throat); neurological; and musculoskeletal. Simultaneously, Dr. Mubang and the patient completed a Pain Questionnaire documenting the location and severity of Patient B.B.’s pain and other treatment modalities, which had been tried, but failed (surgery, braces, chiropractic, physical therapy, TENS, and massage). On her initial visit with Dr. Mubang, Patient B.B. reported having neck, shoulder, and upper back pain. Dr. Mubang noted on his initial range of motion assessment that Patient B.B. had no thoraco-lumbar spine pain. Patient B.B. never indicated on her brief pain inventories that she had pain radiating down the leg. Instead, she consistently marked pain in the neck, radiating down the right arm, and pain in the middle back. After the initial visit, Dr. Mubang recorded that Patient B.B. had lower back pain by noting “LBP & radiculopathy” with a line drawn down the leg of the anatomical figure. Dr. Mubang’s explanation for the discrepancy between his notation on the anatomical figure and Patient B.B.’s notation was that the patient was noting pain, but that he was noting tenderness. He did not explain the difference. As discussed below, this same inconsistency appears frequently in many of the patients’ records. Dr. Mubang’s offered explanation for the discrepancy between his records and the patient-generated records is not credible. From March 25, 2010, to August 23, 2010, Dr. Mubang prescribed 240 30 mg tablets of oxycodone in combination with 60 2 mg tablets of Xanax to Patient B.B. monthly. From March 25, 2010, to May 20, 2010, Dr. Mubang also prescribed 120 350 mg tablets of Soma to Patient B.B., in addition to the oxycodone and Xanax each month. To justify the amount of Xanax he prescribed to Patient B.B., Dr. Mubang relied on an anxiety checklist questionnaire completed by Patient B.B. In his practice, if a patient marked five to six of the criteria on his anxiety checklist, Dr. Mubang would prescribe the patient Xanax. For Patient B.B., on three of his five progress notes, Dr. Mubang checked the box for anxiety. Other than that, there is no annotation or documentation by Dr. Mubang concerning Patient B.B.’s anxiety. From March 25, 2010, through August 23, 2010, based on Patient B.B.’s history and physical findings, Dr. Mubang prescribed potentially lethal doses of oxycodone, Xanax, and Soma to Patient B.B. in excessive quantities and without sufficient justification. From March 25, 2010, through August 23, 2010, Dr. Mubang neither performed nor documented performing a complete and adequate physical examination or medical history to justify his prescribing of potentially lethal doses of oxycodone, Xanax, and Soma to Patient B.B. From March 25, 2010, through August 23, 2010, Dr. Mubang failed to diagnose Patient B.B. with an anxiety disorder, which would have supported his prescribing of Xanax to Patient B.B. From March 25, 2010, through August 23, 2010, Dr. Mubang did not diagnose Patient B.B. with intractable pain prior to prescribing potentially lethal doses of oxycodone, Xanax, and Soma to Patient B.B. To meet the standard of care, Dr. Mubang should have done more to treat Patient B.B.’s underlying source of pain through referrals for physical therapy or orthopedics. Depending on the particular findings, he should have tried intervention care to relieve Patient B.B.’s pain instead of relying solely on medication management, particularly, excessive amounts of oxycodone. Patient B.B., as a relatively young patient, would have benefited from more aggressive physical therapy, massage therapy, and other treatment modalities to keep her off of addictive pain medication as much as possible. Dr. Mubang attempted, in part, to justify his excessive amounts of medications, based upon The Super Saver pharmacy profile for Patient B.B., which confirms that this patient was receiving the same quantities and combination of medications from the prior physician, Ibem R. Borges, M.D. He also cites rule 64B8-9.013 (2003) to support the heavy prescribing of medications, which indicates the Board of Medicine will not judge the validity of prescribing, “based upon the quantity and chronicity,” and that a “physician’s conduct will be evaluated to a great extent by treatment outcome.” He argues that Petitioner failed to introduce any evidence to establish Patient B.B. suffered any adverse effect from Dr. Mubang’s treatment. Patient C.C. From April 29, 2010, to May 28, 2012, Dr. Mubang provided pain management treatment to Patient C.C., a then 32-year-old female. At her initial evaluation, Patient C.C. reported having lower back pain and left knee pain. On her subsequent brief pain inventories, Patient C.C. consistently marked pain at the middle of the lower back and pain at the left knee. Almost identical to Patient B.B., Dr. Mubang’s progress notes for Patient C.C. note “LBP & radiculopathy” with a line drawn down the leg of an anatomical figure indicating pain radiating down the leg. Contained in Respondent’s records were notes from two prior treating providers, Drs. David Herson and Marc Weinstein. On a note dated February 27, 2007, Dr. Herson noted that Patient C.C.’s cervical and lumbar range of motion was within normal limits, and he noted no tenderness to palpation of the lumbar spine. Dr. Herson recommended epidural injections to Patient C.C. for the left knee pain. Dr. Herson prescribed Patient C.C. 30 tablets of Ultram for her pain. On a note dated March 1, 2007, Dr. Weinstein noted that “MRI scans of her cervical and lumbar spine and left knee were performed and show no significant abnormalities that would require surgery.” From April 29, 2010, to August 19, 2010, Dr. Mubang prescribed 290 30 mg tablets of oxycodone in combination with 180 10 mg tablets of methadone to Patient C.C. monthly. In a period of four months, Patient C.C. received 2,350 pain pills from Dr. Mubang, which equates to a daily prescription of 15.5 pills. In addition to addictive pain medication, Dr. Mubang also prescribed 60 2 mg tablets of Xanax to Patient C.C. per month. Opioids and benzodiazepines in combination increase the risk of respiratory depression, which can be fatal. On April 29, 2010, and May 27, 2010, Dr. Mubang added 90 350 mg tablets of Soma to the potentially lethal cocktail of medications he prescribed to Patient C.C. Dr. Mubang failed to document his rationale for starting and stopping Soma. On April 29, 2010, as part of her initial evaluation with Dr. Mubang, Patient C.C. reported to him that her current medications were oxycodone, methadone, Xanax, and Soma. On April 29, 2010, Dr. Mubang ordered a urine drug screen for Patient C.C. The drug screen was positive for opiates, oxycodone, and benzodiazepines, but was negative for methadone. Opiates and opioids are discernibly different categories of drugs. Opiates are morphine derivatives. Opioids are synthetic opiates. No medications Patient C.C. reported taking were opiates. The standard of care required Dr. Mubang to inquire as to the reasons behind the aberrant drug test result and adjust Patient C.C.’s medications accordingly. In his 2012 deposition, Dr. Mubang speculated that he may have consulted Patient C.C. about the drug test and that maybe she ran out of medication. He could not tell from his records if he discussed the results with Patient C.C. or the reason for the aberrant test result because his records lacked any such information. At the final hearing in this matter, Dr. Mubang raised for the first time the defense that the urine drug screen he used at that time was incapable of testing for methadone. He also argued that if a patient is taking oxycodone and methadone together, then either one, both, or neither may show up positive on a urine drug screen due to “tolerance” and methadone’s interaction with oxycodone and with the NMDA (the amino acid neuro receptor that increases the tolerance of oxycodone by interacting with methadone). This was a clear misunderstanding by Dr. Mubang of his expert’s testimony regarding the use of methadone in pain management. Dr. Mubang testified many times at hearing that methadone has a tolerance effect on oxycodone, which causes a physician to increase the dose of oxycodone. Respondent’s testimony was incongruent with the description given by his expert witness. Dr. Simopoulos explained that methadone can antagonize NMDA receptors, which can help some patients who have a tolerance to oxycodone. However, Dr. Simopoulos’s testimony regarding NMDA did not relate to the ability to detect methadone in a urine drug screen. Despite the negative test result for methadone, during the same visit, Dr. Mubang prescribed 180 10 mg tablets of methadone to Patient C.C. No questions of whether Patient C.C. may have diverted her methadone or notations of such were in the doctor’s notes. Dr. Mubang failed to order a second urine drug screen for Patient C.C. until ten months later on February 2, 2011. The second test was also negative for the prescribed medication methadone. From April 29, 2010, through August 19, 2010, based on Patient C.C.’s presentation, Dr. Mubang prescribed potentially lethal doses of oxycodone, methadone, Xanax, and Soma to Patient C.C. inappropriately, in excessive quantities, and without justification. From April 29, 2010, through August 19, 2010, Dr. Mubang neither performed nor documented performing a complete and adequate physical examination or medical history to justify his prescribing potentially lethal doses of oxycodone, methadone, Xanax, and Soma to Patient C.C. Dr. Mubang did not diagnose Patient C.C. with intractable pain prior to prescribing to the patient the potentially lethal doses of oxycodone, methadone, Xanax, and Soma. To meet the standard of care, Dr. Mubang should not have prescribed such large amounts of pain medication to Patient C.C., a patient who did not have a significant pathology for pain. Instead, he should have pursued other treatment modalities, such as injections and physical therapy. Patient W.B. From December 13, 2008, to February 18, 2011, Dr. Mubang provided pain management treatment to Patient W.B., a then 52-year-old male. On or about April 20, 2008, prior to visiting Dr. Mubang, Patient W.B. presented to the emergency room at Sarasota Memorial Hospital after being hit by a “slow moving vehicle,” while riding his bicycle. The emergency room physician diagnosed Patient W.B. with a bruise of the left knee and left hip and prescribed an unknown quantity of 7.5 mg Lortab to Patient W.B. Patient W.B. then visited Physician’s Group, LLC, in Sarasota for follow-up care on April 20, May 28, November 11, and December 2, 2008. On May 28, 2008, Patient W.B. reported to a provider at Physician’s Group, LLC, that he had taken Dilaudid from a friend. On November 11, 2008, Patient W.B. saw Dr. Frederic Sonstein. Dr. Sonstein noted that Patient W.B. missed a scheduled appointment because he was incarcerated. While incarcerated, Patient W.B. was treated with Flexeril and Ultram. Dr. Sonstein recommended referral to a pain management specialist and prescribed Vicodin for pain control. A November 24, 2008, MRI report of Patient W.B.’s lumbar spine was unremarkable. On December 13, 2008, Patient W.B. came to Dr. Mubang and reported having pain in his neck and shoulders, with pain radiating down both arms. In contrast to Patient W.B.’s report, on his initial range of motion evaluation, Dr. Mubang did not document any findings under cervical spine. Instead, he noted lumbar spine pain with radiculopathy. On his initial evaluation questionnaire, Patient W.B. reported only having tried one alternative treatment method for his pain, “braces or cast.” By his own report, Patient W.B. had not tried any of the other alternative treatment options on Dr. Mubang’s checklist form, such as physical therapy, chiropractic, muscle injections, or surgery. Despite the minimal objective findings in Patient W.B.’s history, Dr. Mubang began to prescribe escalating amounts of oxycodone to Patient W.B. On December 13, 2008, Dr. Mubang prescribed 120 30 mg tablets of oxycodone to Patient W.B. Then, he increased the amount of oxycodone he prescribed to Patient W.B. over the following monthly visits as follows: 150, 180, 210, 210, 240, 240, and ultimately settling at 270 30 mg tablets of oxycodone per month. From December 13, 2008, to August 24, 2010, Dr. Mubang prescribed Patient W.B. 4,050 30 mg tablets of oxycodone. On July 11, 2009, in addition to oxycodone and Soma, Dr. Mubang added Xanax and Fiorinal with codeine to Patient W.B.’s monthly prescription regimen. Like with Patient B.B., Dr. Mubang prescribed Xanax to Patient W.B. based on Patient W.B.’s answers to his checklist anxiety questionnaire. On July 11, 2009, Dr. Mubang saw Patient W.B. and renewed his medication. He scheduled Patient W.B. to return on August 9, 2009; however, Patient W.B. missed the appointment. Patient W.B. next visited Dr. Mubang two months later, on October 13, 2009. Dr. Mubang failed to document the reason for Patient W.B.’s three-month absence. He failed to document if Patient W.B. continued to receive pain medication from another source. He did not note whether Patient W.B. experienced withdrawal symptoms without his oxycodone for two months or how Patient W.B. managed his pain without oxycodone for two months. Dr. Mubang admitted during the hearing that, “[i]t is important to me to know why he misses visits. And you're right. Your point is well-taken.” Dr. Mubang’s own controlled substance agreement, which was executed by Patient W.B., explicitly stated that renewals are contingent on keeping scheduled appointments. Despite the unexplained absence, on October 13, 2009, he renewed Patient W.B.’s prescriptions for 270 tablets oxycodone, 30 tablets Soma, 60 tablets Xanax, and 90 tablets of Fiorinal with codeine. Dr. Mubang should not have restarted Patient W.B. at the same high dosage of oxycodone that he had previously prescribed, as it was potentially fatal. On November 10, 2009, Dr. Mubang ordered a urine drug screen for Patient W.B. The drug screen was positive for cocaine and hydromorphone. The drug screen was negative for the prescribed medications Soma (carisoprodol) and Xanax (alprazolam). Based upon the November 10, 2009, drug screen result, the standard of care required Dr. Mubang to refer Patient W.B. to a drug treatment center. When questioned about the positive cocaine result, Dr. Mubang’s expert, Dr. Simopoulos, testified, “That’s the part where this patient has a substance abuse disorder, obviously.” Dr. Simopoulos opined that, “if you are going to continue prescribing in this case, because the patient has duel diagnoses, you would want the input of a psychiatrist for this case.” Patient W.B. next visited Dr. Mubang approximately three months later on February 9, 2010. Again, Dr. Mubang failed to document the reason for the absence. At the February 9, 2010, visit, Dr. Mubang ordered a urine drug screen for Patient W.B., which returned completely negative results. After a multi-month absence and with a completely negative urine drug screen, Patient W.B. would have been opioid negative. In his 2012 deposition, Dr. Mubang theorized that the completely negative result may have been because Patient W.B. drove himself to his appointment and Dr. Mubang instructed his patients not to drive while on medication. This made little sense. Despite the completely negative result and unexplained absence, Respondent prescribed Patient W.B. 270 tablets of oxycodone, 30 tablets of Soma, 60 tablets of Xanax, and 90 tablets of Fiorinal with codeine. Again, Dr. Mubang should not have restarted Patient W.B. at the same high dosage of oxycodone that he had previously prescribed, as it was potentially fatal. Despite prescribing 270 tablets of oxycodone per month to Patient W.B., or nine pills per day, Dr. Mubang testified at hearing that, “[i]f I give them what they call ‘breakthrough medications,’ like oxycodone, all these, they'll tell you some days they take it, some days they don't take it.” Dr. Mubang was aware that Patient W.B. did not require nine oxycodone tablets per day and that the amount of oxycodone he prescribed to Patient W.B. was not justified. The foregoing pattern of unexplained absence and completely negative urine drug screen result, followed by Dr. Mubang renewing prescriptions, was repeated in November 2010. From December 13, 2008, through November 10, 2010, Dr. Mubang prescribed potentially lethal doses of oxycodone, Soma, Xanax, and Fiorinal with codeine to Patient W.B. inappropriately, in excessive quantities, and without justification. From December 13, 2008, through November 10, 2010, Dr. Mubang neither performed nor did he document performing a complete and adequate physical examination or medical history to justify his prescribing of the potentially lethal doses of oxycodone, Soma, Xanax, and Fiorinal with codeine to Patient W.B. From December 13, 2008, through August 24, 2010, Respondent did not diagnose Patient W.B. with intractable pain prior to prescribing potentially lethal doses of oxycodone, Soma, Xanax, and Fiorinal with codeine to Patient W.B. To meet the standard of care, Dr. Mubang should have discontinued prescribing the amount of medication that he prescribed to Patient W.B. based on the minimal findings in Patient W.B.’s history and the minimal changes on examination. In addition, Dr. Mubang should have referred Patient W.B. to a drug treatment center. Patient M.H. From January 10, 2005, to May 29, 2012, Dr. Mubang provided pain management treatment to Patient M.H., who first visited him as a 29-year-old female, suffering lower back pain. Prior to seeing Dr. Mubang, on March 24, 2004, Patient M.H. visited Dr. Edward Jacobson. Dr. Jacobson noted that Patient M.H. had been in a car accident on February 21, 2004, and that Patient M.H. was complaining of headaches. He prescribed 15 tablets of Vicodin to her. On January 10, 2005, Patient M.H.’s first visit with Dr. Mubang, he prescribed her 60 tablets of Vicodin. On January 21, 2005, Dr. Mubang added clonazepam and Adderall to Patient M.H.’s medication regimen. Dr. Mubang’s note for the January 21, 2005, visit does not make any mention of Patient M.H. suffering from an anxiety disorder or ADD that would justify his use of clonazepam or Adderall, save for a simple “ADD” noted in the assessment/plan portion of the form. Dr. Mubang should have referred Patient M.H. to a psychiatrist for diagnostic confirmation of ADD before automatically prescribing (or refilling) the Adderall prescription. From June 15, 2005, to March 7, 2007, Dr. Mubang prescribed Valium in combination with clonazepam to Patient M.H. monthly. Then on March 23, 2009, he discontinued clonazepam and started Patient M.H. on 90 2 mg tablets of Xanax. Dr. Mubang neglected to document a justification for prescribing Patient M.H. benzodiazepine-class drugs, or for prescribing her a combination of two different benzodiazepine- class drugs, or for the changes he made to the benzodiazepines he prescribed. On January 6, 2009, Patient M.H. reported having lower back pain from a car accident in 2003. Dr. Mubang noted that Patient M.H. was the driver of a car that was rear-ended. He also noted that Patient M.H. did not lose consciousness during the accident and did not go to the emergency room. At the January 6, 2009, visit, Patient M.H. reported trying three alternative treatment methods for her pain. By her own report, Patient M.H. had not tried any of the other 18 alternative treatment options on Dr. Mubang’s checklist form, such as physical therapy, muscle injections, or surgery. In 2009, for unexplained reasons, Dr. Mubang began significantly increasing Patient M.H.’s opioid pain medication. In January 2009, he increased Patient M.H.’s Vicodin from 60 to 90 tablets per month, then in July 2009 from 90 to 120 tablets per month. On October 19, 2009, Dr. Mubang prescribed Patient M.H. ten 50 mcg patches of fentanyl in combination with 120 tablets of Vicodin. A 50 mcg fentanyl patch is intended to last for 72 hours; so, a prescription of ten patches is intended to last one month. Fentanyl is a very strong opioid. Based on Patient M.H.’s experience with opioids, Dr. Mubang’s prescribing fentanyl to Patient M.H. was potentially lethal. On November 16, 2009, Dr. Mubang discontinued fentanyl and started Patient M.H. on 90 15 mg tablets of oxycodone, which he increased to 120 tablets the next month. Dr. Mubang prescribed the oxycodone in combination with 120 tablets of Vicodin. At hearing, Dr. Mubang could not tell from his notes and was, therefore, unable to explain his rationale as to why he prescribed fentanyl to Patient M.H., or why he discontinued the fentanyl and started Patient M.H. on oxycodone. The limited documentation that was included in Dr. Mubang’s records contradicted his course of treatment, as he routinely documented that Patient M.H.’s pain was a two out of ten with medication. From March 8, 2010, to June 28, 2010, Dr. Mubang added and then discontinued prescribing Soma to Patient M.H. His records do not contain any justification for starting Patient M.H. on Soma or for stopping Soma. On May 3, 2010, Dr. Mubang ordered a urine drug screen for Patient M.H. The urine drug screen result was negative for the prescribed medication oxycodone. The standard of care required Dr. Mubang to ask about the reason for the aberrant result to determine whether she was taking the medications or diverting them. Depending upon Patient M.H.’s answer, he should have ordered a repeat urine drug screen at the following visit. Despite the negative test, Dr. Mubang continued to prescribe potentially lethal doses of oxycodone and Vicodin to Patient M.H. From January 10, 2005, through August 23, 2010, Dr. Mubang prescribed potentially lethal doses of Vicodin, Xanax, Adderall, Soma, Valium, clonazepam, fentanyl, or oxycodone to Patient M.H. inappropriately, in excessive quantities, and without justification. From January 10, 2005, through August 23, 2010, Dr. Mubang did not diagnose Patient M.H. with ADD or any other clinical indication to support his prescribing Adderall to Patient M.H. From January 10, 2005, through August 23, 2010, Dr. Mubang neither performed nor documented performing a complete and adequate physical examination or medical history to justify his prescribing of the potentially lethal doses of Vicodin, Xanax, Adderall, Soma, Valium, clonazepam, fentanyl, or oxycodone to Patient M.H. Dr. Mubang did not diagnose Patient M.H. with intractable pain prior to prescribing to the patient the potentially lethal doses of Vicodin, Xanax, Adderall, Soma, Valium, clonazepam, fentanyl, or oxycodone. To meet the standard of care in his treatment of Patient M.H., Dr. Mubang should not have prescribed fentanyl to Patient M.H. without sufficient medical justification, as doing so was life threatening. Respondent should have referred Patient M.H. to specialists, such as orthopedics, physical therapy, and psychiatry. To the extent Dr. Mubang documented referrals to specialists, he should have followed up on his ordering of referrals to minimize the amount of medications he provided to Patient M.H., instead of escalating the amounts of pain medicine he prescribed. Patient B.D. From November 11, 2010, to November 8, 2012, Dr. Mubang provided pain management treatment to Patient B.D., a then 24- to 26-year-old female. In addition to lower back pain, Patient B.D. was also diagnosed with fibromyalgia. Dr. Mubang’s medical records for Patient B.D. contain a note from Dr. Indira Koshy, a prior treating provider, for a visit on August 24, 2010, in New York. Dr. Koshy noted that Patient B.D. was “entering rehab” and that Patient B.D. has seizures when she does not take her medications. Dr. Koshy’s note indicates potential for doctor shopping. At no point during his treatment of Patient B.D. did Dr. Mubang address the note from Dr. Koshy, specifically; Patient B.D.’s entry into rehabilitation; Patient B.D.’s seizures when she did not take her medications; or Patient B.D.’s potential for doctor shopping. Dr. Mubang previously treated Patient B.D. at Care Point Medical Center as a covering physician. He testified that when covering as a physician he provided “continuation of care” and that his practice was not to change a patient’s medication. Despite his testimony, when covering at Care Point Medical Center, Dr. Mubang increased Patient B.D.’s oxycodone from 210 tablets per month to 240 tablets per month. Then, on November 11, 2010, when Patient B.D. visited his practice, Dr. Mubang decreased her oxycodone from 240 to 180 tablets. As discussed below, this decrease came after he received notice of Petitioner’s investigation. From November 11, 2010, until May 24, 2012, Dr. Mubang prescribed Patient B.D. 180 30 mg tablets of oxycodone, 30 or 60 10 mg tablets of methadone, 60 350 mg tablets of Soma, and 30 0.5 mg to 2 mg tablets of Xanax monthly. On June 21, 2012, Dr. Mubang changed Patient B.D.’s prescribed muscle relaxant from Soma to baclofen; and on July 19, 2012, he changed Patient B.D.’s prescribed anxiolytic medication from 60 0.5 mg tablets of Xanax to 60 2 mg tablets of clonazepam. Dr. Mubang did not document any justification for the foregoing medication changes. From September 13, 2012, until November 8, 2012, Dr. Mubang prescribed 112 8 mg tablets of Dilaudid, 28 10 mg tablets of methadone, and 60 tablets of clonazepam to Patient B.D. monthly. On June 23, 2011, Dr. Mubang performed a urine drug screen on Patient B.D. The drug screen was negative for benzodiazepines, even though he prescribed Xanax to Patient B.D. The urine drug screen was positive for methadone, despite Dr. Mubang’s testimony that his urine drug screen could not detect methadone. On December 8, 2011, and June 21, 2012, Dr. Mubang performed urine drug screens on Patient B.D. Both drug screens were negative for the prescribed medication methadone. The standard of care required a reasonably prudent physician to question the patient about the aberrant urine drug screens results and cease prescribing methadone to a patient whose urine drug screen was negative for the drug. Despite the negative test results, Dr. Mubang continued to prescribe methadone to Patient B.D. From November 11, 2010, through November 8, 2012, Dr. Mubang neither performed nor documented performing an adequate history or physical examination to justify his prescribing of the potentially lethal controlled substances to Patient B.D. From November 11, 2010, through November 8, 2012, based on Patient B.D.’s history and physical findings, Dr. Mubang’s prescribing of the controlled substances to Patient B.D. was excessive and without justification. From June 23, 2011, through November 8, 2012, Dr. Mubang failed to address Patient B.D.’s aberrant urine drug screen results. To meet the standard of care in his treatment of Patient B.D., Dr. Mubang should not have prescribed the quantity and combination of drugs he prescribed to Patient B.D. He should have referred Patient B.D. for a rheumatology consult to confirm or rule out fibromyalgia and other diseases. He should have offered more physical therapy, and other, non-opioid modalities of care, and he should have routinely followed up with Patient B.D. to ensure that she was complying with his orders. Dr. Mubang testified that Soma was part of the “holy trinity,” which is a slang drug term used to refer to the prescription combination of oxycodone, a benzodiazepine, and Soma. He prescribed the “holy trinity” to five of the six patients in this cause. Dr. Mubang’s Medical Records Dr. Mubang’s medical records for the six patients, who are the subjects of the Administrative Complaints, were generally lacking in specificity to justify the level of his prescribing. Some examples common to the patients at issue illustrate these shortcomings. For each visit for each of the patients, Dr. Mubang noted that the patient had straight leg raise pain at 30 degrees, even though he testified that a patient can have straight leg raise pain at 15, 20, 30, or 45 degrees. Maybe this was a coincidence, but more credibly it is a pattern of sloppiness or autofill by the doctor. Also, for each patient, Dr. Mubang routinely drew a line down one leg of the anatomical figure on his progress notes indicating radiculopathy, regardless of where the patient reported pain. At hearing, on multiple occasions, Dr. Mubang could not determine his rationale for changing a patient’s medication regimen, based on his progress notes. His own expert, Dr. Simopoulos, testified that, “there's not much rationale on the plans in--in Dr. Mubang's notes in general.” Dr. Mubang tried to justify the lack of documented rationale by explaining that if a subsequent treating physician needed to know why he made medication changes, the physician would just call him and ask. While this should be true in an ideal world, his attempted justification is contrary to the purpose of medical records, which is continuity of care. No doctor, regardless of his education and experience, can be expected to remember every detail about every patient when he only sees the patient periodically. The medical record and doctor’s notes comprise his guide to ensuring the patient receives continuous, appropriate care. In addition to lacking in rationale, both experts were unable to read some of Dr. Mubang’s handwritten notes due to legibility. His own expert testified that, “The hardest part about these records is, obviously, how legible they are. I wish they were more legible.” Dr. Mubang’s medical records were inadequate for all six of the patients at issue here. Dr. Mubang’s Defenses Dr. Mubang passionately testified at hearing that he practices addiction medicine, that he prescribes Suboxone, and that his goal is to titrate patients’ medication. However, Dr. Mubang’s interest in addiction medicine and Suboxone is a recent phenomenon. In his 2012 deposition, he did not mention practicing addiction medicine, and the word Suboxone does not even appear in that deposition. Dr. Mubang titrated the medication he prescribed for four of the six patients in this cause. His reasoning for titrating the patients’ medication changed from his deposition testimony to his hearing testimony. In his 2018 deposition, he testified that he reduced the patients’ pain medication because the patients’ conditions were improving, and his goal was to titrate the medication. At hearing, he asserted the theory that he changed his prescribing practices because pharmacies contacted him and told him that they would no longer fill prescriptions written for such large quantities. The first of these is based upon a consideration of quality of care, while the second is based upon the practical reality of changing pharmacy practices as the dangers of over-prescribing opiates started to become more prevalent in the eyes of health professionals and regulators. On September 2, 2010, Investigator Victor Troupe personally served Dr. Mubang with a notice of investigation and a subpoena for medical records for Patients A.M., B.B., C.C., W.B., and M.H., among others. Following receipt of the notice of investigation, the doctor radically changed his prescribing practice for the patients in this cause. For ten months, Dr. Mubang prescribed Patient A.M. 270 tablets of oxycodone. Then on September 24, 2010, three weeks after being served by Petitioner, Respondent reduced Patient A.M.’s prescription of oxycodone from 270 tablets to 210, and then from 210 tablets to 180. For five months, Dr. Mubang prescribed Patient C.C. 290 tablets oxycodone. Then on September 9, 2010, Respondent reduced Patient C.C.’s prescription of oxycodone from 290 tablets to 210. At the patient’s next visit on January 5, 2011, Dr. Mubang reduced the patient’s prescription of oxycodone from 210 tablets to 180. Dr. Mubang also reduced Patient C.C.’s methadone. For five months, he prescribed 180 10 mg tablets of methadone to Patient C.C., but he reduced that number first to 60 tablets, then to 30, then discontinued the prescription. Further, in a matter of three visits, the doctor went from prescribing Patient C.C. 470 pain pills per month to 180 tablets. For ten months, Dr. Mubang prescribed Patient W.B. 270 tablets of oxycodone. Then on November 6, 2010, Patient W.B.’s first visit after the doctor received notice of the investigation, he reduced Patient W.B.’s prescription of oxycodone to 240 tablets, then to 210 on the next visit. For five months, Dr. Mubang prescribed Patient B.D. 240 tablets of oxycodone. Then on November 11, 2010, Patient B.D.’s first visit with the doctor after he had received notice of the investigation, he reduced Patient B.D.’s prescription of oxycodone to 180 tablets. The logical explanation for Dr. Mubang’s sudden reduction in amounts of pain medication prescribed is that the Petitioner’s notice of investigation triggered him to change his prescribing practice. The notice of investigation might have been his “eureka” moment or it might have served as a wake-up call to him concerning his prior over-prescribing practices. The evidence clearly and convincingly demonstrates that Dr. Mubang used little critical medical judgment when prescribing dangerous controlled substances to the patients in this matter. His diagnoses were based solely on patient report, and his primary tool for treating these patients was the prescription of controlled substances without first exhausting less harmful treatment modalities or combining lower doses of controlled substances with his patients seeking other treatment modalities.
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 that Respondent, John Nkolo Mubang, M.D., violated sections 458.331(1)(nn), 458.331(1)(q), 458.331(1)(t), 458.331(1)(m), and 458.331(1)(cc), Florida Statutes, as charged in Petitioner’s Administrative Complaints; and revoking Dr. Mubang’s Florida medical license. DONE AND ENTERED this 25th day of June, 2019, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 25th day of June, 2019. COPIES FURNISHED: Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Dale R. Sisco, Esquire Sisco-Law 1110 North Florida Avenue Tampa, Florida 33602 (eServed) Zachary Bell, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Claudia Kemp, JD, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed) Louise Wilhite-St Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed)
