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.
The Issue The issue for consideration in this proceeding is whether Respondent's license as an adult living facility should be disciplined.
Findings Of Fact Respondent, Woodland Field, Inc., holds a license to operate an adult living facility (ALF) effective December 8, 2001, through December 7, 2003. Respondent is a small ALF. In addition to the administrator/owner, Respondent employs two staff persons to assist the residents of the ALF. On June 7, 2002, AHCA conducted a survey of Respondent's facility. The facility's administrator was not present when the surveyors arrived. There was one person, Lisa Phoenix, on duty at the facility when the survey began. The person on duty was assisting with self-administered medication. She had some medication training but did not have the four hours of training required pursuant to Section 400.2456, Florida Statutes (2002). Several violations were found during the survey. The violations relevant here were that the duty person at the time did not have documentation or training in first-aid and CPR (Tag A525); there was no posted staffing schedule for the facility available for review (Tag A528); and the person on duty at the time did not have medication training as required by Florida Statutes (Tag A1106). All four citations were classified as Class III deficiencies. The violations were to be corrected immediately and, but for the posting of a schedule satisfactory to AHCA, the violations were corrected by Respondent. On July 23, 2002, a follow-up visit and moratorium visit was conducted by AHCA. Again, there was one person, Ronella Jones, on duty at the facility. Ms. Jones had had first-aid and CPR training in the past but her documentation of such training had expired prior to the July 23, 2002, survey. While at the facility, the surveyor did review what he described as a sheet of paper, titled, "work schedule" dated March 1, 2002. However, the surveyor felt that not enough information was contained on the schedule to enable it to comply with Rule 58A-5.0191(4)(c), Florida Administrative Code. The surveyor cited three uncorrected deficiencies, related to Tags A525 (first-aid training), A528 (work schedule), and A1106 (medication training). On July 24, 2002, AHCA received a copy of the expired first-aid card for Ms. Jones from Petitioner. The card was later updated and the technical deficiency timely corrected. AHCA also received a copy of Ms. Jones' medication training certificate. The certificate was dated July 8, 2002, prior to the survey and signed by Erma Thompson, R.N. The certificate was not in Respondent's files because it had not been received by the facility at the time of the July survey. Additionally, AHCA received a copy of a generic work schedule for Petitioner's facility. Petitioner had also faxed a similar schedule to AHCA in June. The work schedule was dated March 1, 2002. It did not reflect a specific time period that the schedule would be effective. However, given the size of the facility, it is reasonable to conclude that the schedule was effective until changed. The schedule also did not list the names of individual staff. The schedule looked as follows: WORK SCHEDULE Weekly Schedule Staff on Duty 6:00 a.m. 6:00 p.m. Staff on Duty 6:00 p.m. 6:00 a.m. Weekends (Staff will alternate) Staff on Duty 6:00 a.m. 6:00 p.m. Staff on Duty 6:00 p.m. 6:00 a.m. The generic schedule, while not listing specific individuals, does reflect the general staffing pattern of Respondent since it shows the time periods during which staff will be on duty at the facility and a reasonable person can determine the scheduling pattern for staff therefrom. Copies of similar schedules were submitted into evidence with names of facility employees hand-written on these schedules. However, the relation of these schedules to one another or anything about them regarding their development was not shown by the evidence, except that since Respondent’s facility was very small, scheduling of specific employees was accomplished on a more or less ad hoc basis. Because, Ms. Jones indicated to AHCA surveyors that she had not received any medication training, the surveyors questioned the authenticity of Ms. Jones' medication training card. On August 12, 2002, Erma Thompson, R.N., mailed AHCA a letter referencing the medication training she gave to Respondent's staff. Although the communication is somewhat non-specific as to when Nurse Thompson performed such training or to when she trained Respondent’s staff, the evidence showed that Nurse Thompson's communication was in reference to the on-going surveys of Petitioner's facility and the training of Ms. Jones and Ms. Phoenix. On August 23, 2002, AHCA conducted a third follow-up visit and moratorium monitoring visit of Respondent's facility. The surveyor found that Tags A528 (work schedule) and A1106 (medication training) were not corrected. Both employees of Respondent had medication training certificates. As indicated earlier, the certificate for Ms. Jones was dated July 7, 2002, and signed by Erma Thompson, R.N. However, Petitioner had continued to question the validity of Ms. Jones' medication training. Therefore, Respondent sent AHCA a copy of the administrative guide used as a curriculum for training its employees. The curriculum was dated September 1992. Unfortunately, the curriculum was out of date as of 1999 when the only official and required curriculum changed. The 1992 requirements for medication training differed somewhat from the state’s current requirements for medication training. The evidence did not demonstrate the extent of the differences between the two curriculums. However, they were different, and the older version used by Nurse Thompson was not the version recognized by Petitioner as the curriculum meeting its rule on medication training. Ms. Phoenix's medication training certificate was dated March 27, 2002, and was signed by an L.P.N. The course was given by Nurse Thompson, who was an R.N. The same nurse/L.P.N. who had signed the facility's administrator's certification had signed Ms. Phoenix’s medication training card. The facility administrator met all of Respondent's certification requirements. The Rule does not specifically require that the medication training card be signed by the R.N. giving the course. Therefore, as long as an R.N. teaches the course the training is valid. However, as indicated earlier, the curriculum used by Nurse Thompson in her training was out of date for Ms. Phoenix, as well. Therefore, technically, even though Respondent had made a good faith effort to comply with the Rule’s medication training requirements, Tag A528 remained uncorrected. During the August 23, 2002, survey, there was a schedule available for review at the facility. The schedule was the generic work schedule similar to the schedule noted above. It did not have the employees who would be on duty at a given time. However, it did reflect the staffing pattern of Respondent's facility. The evidence was clear that Respondent's administrator/owner was confused as to what information the surveyors wanted on the facility's work schedule since this generic schedule reflected staffing patterns; there were only two employees other than herself at the facility, and the administrator desired to maintain flexibility in utilizing those employees. Further, the surveyors' complaints about the schedule were at best de minimus, given the size of the facility involved. On September 5, 2002, a fourth moratorium monitoring visit was conducted at Respondent's facility. Again, the facility was cited for Tag A528 (work schedule) and Tag A1106 (medication training). On October 3, 2002, AHCA conducted a fifth follow-up visit and moratorium monitoring visit. The same citations were given. The surveyor was able to review a work schedule similar to the generic work schedule noted above. However, the document was dated September 5, 2002. A paragraph was added listing the names of the administrator and her two employees and indicates they will be assigned on an ad hoc basis. The work schedule also indicates the staff signs in daily with specific hours and personnel listed on the daily time sheet. Again the facility was cited for Tag A528 (work schedule) and Tag A1106 (medication training). The schedule complied with the requirements of Rule 59A-0191(4)(c), Florida Administrative Code. However, neither employee’s medication training had been updated under the current curriculum. Therefore, the deficiency related to the medication training of Respondent’s employee’s remained uncorrected.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a final order imposing a fine of $500.00 for one uncorrected deficiency related to medication training. DONE AND ENTERED this 29th day of May, 2003, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 29th day of May, 2003. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Harriett Wallace, Administrator Woodland Field, Inc. 8236 Moncrief-Dinsmore Road Jacksonville, Florida 32219 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
