Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice medicine and for regulating such licensees on behalf of the state. Respondent practices general medicine under license number ME 0042559. The parties stipulated to all material facts alleged in the Corrected Second Amended Administrative Complaint except one. The disputed fact is whether Respondent maintained adequate medical records of her treatment of patient R.W. with Lortab. Lortab is a legend drug within the meaning of Section 465.003(7). It contains hydrocodone. Hydrocodone is a Schedule III controlled substance in Chapter 893. On April 7, 1989, Respondent signed a prescription for 30 Lortab 7.5 mg tablets as an analgesic medication for a toothache. Respondent's medical records contain no entry for R.W.'s office visit on April 7, 1989, and no entries disclosing the nature of R.W.'s complaint, diagnosis, plan of treatment, or justification for prescribing Lortab. On January 5, 1990, Respondent prescribed Indocin 7.5 mg., an anti- inflammatory medication, and Lortab 7.5 mg. for R.W.'s shoulder pain. Respondent's medical records contain no entries documenting the examination of R.W., exam results, or diagnosis. There is no justification in Respondent's medical records for prescribing Lortab for R.W. on January 5, 1990. In addition, Respondent failed to document the number of Lortab tablets prescribed for R.W. on January 5, 1990. On January 26, 1990, R.W. complained of pain in his right shoulder secondary to an injury sustained while pushing a car. Respondent again prescribed Lortab 7.5 mg. Respondent did not document in her medical records the number of Lortab tablets prescribed. On February 25, 1990, R.W. advised Respondent that he had reinjured his shoulder in a fight. Respondent instructed R.W. to wear a sling and rest. Respondent again prescribed Indocin and Lortab 7.5 mg. On May 4, 1990, R.W. again complained of shoulder pain. Respondent performed an x-ray of R.W.'s shoulder. Respondent's medical records do not document that the x-ray was taken or the results of the x-ray. On May 4, 1990, Respondent diagnosed R.W. with possible rotator cuff tear. Respondent prescribed Indocin and Lortab 7.5 mg. Respondent's medical records do not document the number of Lortab tablets prescribed. Respondent did not know the number of Lortab tablets R.W. received or the number he took each day. Respondent's medical records do not document Respondent's instructions concerning the number of tablets to be taken each day or the frequency with which the tablets were to be taken. Respondent's medical records do not document the number of refills R.W. was given. On May 24, 1990, Respondent's medical records document that she warned R.W. of the potential for addiction to Lortab. However, Respondent continued to prescribe Lortab without documenting the amount of Lortab prescribed for R.W. Respondent failed to keep written medical records justifying the course of treatment for R.W., including patient history, examination results, and records of drugs prescribed. Respondent failed to document patient history on April 7, 1989. Respondent failed to document x-ray examination results on May 4, 1990. Respondent failed to document Lortab prescribed, dispensed, or administered from April 7, 1989, through July, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 458.331(1)(m), reprimanding Respondent, imposing a fine of $3,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed herein. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1995.
Findings Of Fact Respondent, Herbert R. Slavin, M.D. (Dr. Slavin), is and has been at all times material hereto, a licensed physician, having been issued license number ME 0036889 by Petitioner, Agency for Health Care Administration, Board of Medicine, (Board). Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 458 and 455, Florida Statutes. Dilaudid is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains hydromorphone a Schedule II controlled substance listed in Chapter 893, Florida Statutes. A substance in Schedule II has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Schedule II is the second most potent category and the first category for which there is any viable medical purpose. The purpose of Dilaudid is to provide pain relief in the appropriate medical situation. The Physician's Desk Reference recommends that the usual oral dosage for Dilaudid is two milligrams every four to six hours as necessary. For more severe pain the recommendation is four milligrams or more every four to six hours. According to the Physician's Desk Reference the dosage should be individually adjusted according to severity of pain, patient response and patient size. PATIENT #1 On September 26, 1990, Patient #1, a 27 year old female, sustained injuries to her back in a motor vehicle accident. On October 22, 1990, Patient #1 underwent a MRI scan of her cervical spine which indicated moderate disc herniation extending slightly asymmetrically to the left side at the C6-7 level and which also indicated a moderate diffuse disc herniation at the C5-6 level with associated osteophytes off the adjacent vertebral end plates. On March 12, 1991, Patient #1 saw Dr. Slavin for the first time. She was complaining of low back pain secondary to the motor vehicle accident. She advised Dr. Slavin that she was taking physical therapy three times per week. Dr. Slavin performed a limited physical examination, noted that the patient's old records should be obtained, and prescribed four milligrams of Dilaudid to be taken orally every four hours. The prescription was for 180 units. On March 26, 1991, Patient #1 returned to see Dr. Slavin, stating that she had chest congestion, a cough, and some numbness in the back of the right leg. She indicated that her prescription for Dilaudid had been stolen along with her purse on March 13, 1991. Dr. Slavin diagnosed bronchitis, gave her a prescription for an antibiotic, and gave her a prescription for Dilaudid to replace the one that was stolen. On April 11, 1991, Patient #1 visited Dr. Slavin for the purpose of getting the prescription for Dilaudid refilled. Dr. Slavin did not prescribe a refill because it was too soon since he had given the prescription. Patient #1 signed an acknowledgment dated April 11, 1991 that she was not a Dilaudid addict, that she was taking Dilaudid to control pain caused by a herniated disc, which was originally diagnosed in September, 1990, that she had tried other medications and found Dilaudid to control the pain with the least side effects, that she understood that Dilaudid was an addictive substance, and that she understood that it was unlawful for the drug to be transferred to or be used by anyone other than the person named on the prescription. On April 25, 1991, Patient #1 again came to Dr. Slavin for a refill on the prescription for Dilaudid. Dr. Slavin prescribed a refill for the same dosage. He noted in the progress notes that he was planning to obtain the patient's old records. Based on the patient's file, Dr. Slavin did receive a report from Dr. Lichstrahl, an orthopedic specialist who had seen Patient #1 in October, 1990 and who had diagnosed the herniated disc. Patient #1's file also contained a report dated March 25, 1991, from Dr. Paul Ginsberg, a specialist in neurology. On May 20, 1991, Patient #1 came back to see Dr. Slavin for a prescription to refill the Dilaudid. Dr. Slavin did prescribe a refill at the same dosage. On June 24, 1991, Patient #1 returned to Dr. Slavin for a refill of the Dilaudid. In his progress notes, Dr. Slavin noted that there was a decreased range of motion in all directions for her neck. He prescribed a refill at the same dosage for the Dilaudid and also prescribed Feldene. Dr. Slavin's office received information from an anonymous source that Patient #1 was receiving Dilaudid from other doctors. This information was verified. Dr. Slavin's office notified Patient #1 that he would no longer prescribe narcotic medication to her. PATIENT #2 On April 10, 1991, Patient #2, a 47 year old male, came to Dr. Slavin with a history of laminectomy and two herniated discs from accidents that occurred several years prior to the visit. Patient #2 indicated that he had been taking Dilaudid for the last six months, which allowed him to work with the pain. Patient #2 was waiting to have surgery until his health insurance became effective. Medical records furnished by the patient indicated that in 1988 Dr. Kernish had diagnosed a peripheral iliac bulge at L5-S1 and L-4-5 with a probable left posterolateral herniation at L5-S1 causing marked foraminal encroachment. Dr. Slavin noted in the progress notes that on the patient's initial visit, the patient was in distress secondary to back pain. Dr. Slavin prescribed four milligrams of Dilaudid to be taken orally every four hours, the same dosage which the patient had been taking. The prescription was for 180 units. Patient #2 signed an acknowledgment dated April 10, 1991, that he was not a Dilaudid addict, that he was currently taking Dilaudid for the control of pain related to herniated discs which were diagnosed in 1988, that he had tried other medications but found that Dilaudid controlled his pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or be used by anyone other than the person named on the prescription. On May 20, 1991, Patient #2 came to Dr. Slavin for a prescription to refill the Dilaudid. The progress notes indicated that the patient was scheduled for surgery in July. Again Dr. Slavin noted that Patient #2 was in distress secondary to back pain. Dr. Slavin prescribed a refill of Dilaudid at the same dosage. On June 25, 1991, Patient #2 again came to Dr. Slavin for a refill of Dilaudid. Again Dr. Slavin noted that the patient was contemplating surgery when his insurance became effective and that the patient was in distress secondary to back pain. Dr. Slavin prescribed 40 units of four milligrams of Dilaudid to be taken orally every four hours. The medication sheet in the patient's file indicates that Dr. Slavin prescribed 40 units at the same dosage on July 3 and 10, 1991. By memorandum dated July 3, 1991, Dr. Rosenberg advised Dr. Slavin that the radiographic views of Patient #2's spine indicated discogenic disease L4-L5, L5-S1. PATIENT #3 On April 24, 1991, Patient #3, a 64 year old female visited Dr. Slavin, complaining of shortness of breath, lower back pain, chest pain, and headaches. Her medical history indicated peripheral vascular disease, anemia, arthritis, liver dysfuntion, and left ventricular hypertrophy. In 1990, another doctor had prescribed four milligrams of Dilaudid as needed as well as other medications. Dr. Slavin scheduled the patient for blood tests , x-rays, and other tests. Dr. Slavin prescribed, among other medications, 120 units of four milligrams of Dilaudid. On April 24, 1991, Patient #3 signed an acknowledgment that she was not an Dilaudid addict, was currently taking Dilaudid for control of back pain secondary to a fall in 1982, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred or used by anyone other than the person named on the prescription. Patient #3 was recalled to Dr. Slavin's office on May 1, 1991 for further testing because of anemia. No prescriptions were given and the patient was scheduled for an office visit in one week. Patient #3 was seen again on May 9, 1991. No prescriptions were given. A bone survey was planned and the patient was to return after the tests. On May 22, 1991, Patient #3 returned for a refill of medications and to get the results of the bone survey. The bone survey had not been returned so an office visit was scheduled for a week later to review the bone survey. Dr. Slavin prescribed 120 units of four milligrams of Dilaudid. Patient #3 returned on June 4, 1991 for the follow up on the bone survey. Dr. Slavin planned to refer her to Dr. Kalman, an oncologist. No medications were prescribed. On June 24, 1991, Patient #3 returned for a refill of medication. The progress notes do not reflect whether Dr. Slavin prescribed any refills. The patient had not made an appointment with Dr. Kalman and she was reminded that it was important to do so. Dr. Slavin noted on the progress notes that the x-rays showed a disc narrowing at L4-5. The impression of the radiologist was degenerative disc disease at L4-L5. Dr. Slavin ordered a CT scan of the lumbar spine. By letter dated July 1, 1991, Dr. Robbins advised the CT scan indicated that Patient #3 had a slight narrowing at the L4-L5 intervertebral disc space, but there was no definite evidence of herniated disc or spinal stenosis. On July 19, 1991, Patient #3 returned to Dr. Slavin for a follow up visit. She was to see Dr. Kalman and return to Dr. Slavin in one month. The progress notes do not indicate whether any medications were prescribed. By letter dated July 31, 1991, Dr. Kalman advised Dr. Slavin that he had examined Patient #3. He indicated that results of some of the tests were still pending. By letter dated August 6, 1991, Dr. Kalman advised Dr. Slavin of the test results. Dr. Kalman suspected that Patient #3 had anemia of chronic disease secondary to rheumatoid arthritis. He further stated: "The markedly elevated rheumatoid factor titer as well as the markedly elevated sedimentation rate suggest extremely active disease and likely accounts for the patient's back pains." Dr. Kalman indicated the patient had not returned for a follow up visit. By letter dated August 16, 1991, Dr. Kalman advised Dr. Slavin that the patient had cancelled a number of follow up visits. Dr. Kalman had advised her by telephone that she may have an active case of rheumatoid arthritis and that she should return to Dr. Slavin. On August 20, 1991, Patient #3 made an office visit for follow up of medical problems and a refill of the pain medication. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and some vitamins. The patient was to return in one month. On September 24, 1991, Patient #3 returned for a follow up visit, refill of her pain medication, and due to pain in her left eye. Dr. Slavin prescribed Dilaudid at the same dosage and some drops for her eyes. She was to return in one month. On October 25, 1991, Patient #3 returned for a follow up visit. Dr. Slavin prescribed the same dosage of Dilaudid as on the previous visit. She was to return in one month. On November 25, 1991, Patient #3 came to Dr. Slavin for a follow up visit. He prescribed the same dosage of Dilaudid. She was scheduled for a visit in one month. On December 12, 1991, Patient #3 visited Dr. Slavin to get a refill of Dilaudid, stating that she had dropped the last thirty pills down the sink. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and 100 units of 40 milligrams of Lasix. PATIENT #4 On March 4, 1991, Patient #4, a 44 year old male, saw Dr. Slavin and complained of chest congestion, sores on the scalp, and pain in the left hand in the area where he had previously suffered severe burn and traumatic amputation of the left fifth finger. Dr. Slavin noted that the lungs were clear to auscultation with good breath sounds bilaterally. Dr. Slavin diagnosed bronchitis, impetigo, and phantom pain. He prescribed augmentin. On March 26, 1991, Patient #4 returned for a refill of pain medication and because he was still experiencing chest congestion. Dr. Slavin diagnosed chronic pain syndrome and bronchitis. He prescribed 180 units of four milligrams of Dilaudid and erthromycin, an antibiotic. On April 24, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication and because he had sores on his scalp associated with broken hair shafts. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Lotrisone cream. On April 24, 1991, Patient #4 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of pain in his left hand caused by an injury in 1976, had tried other medications but found that Dilaudid was the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 30, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On July 2, 1991, Dr. Slavin saw Patient #4 for a refill of the pain medication. Dr. Slavin diagnosed chronic pain syndrome, ulnar neuropathy and hypertension. He prescribed 90 units of Dilaudid and Hytrin. The patient was to return in two weeks to have his blood pressure rechecked. On July 30, 1991, Patient #4 returned for a refill of his pain medication. His blood pressure was lower than the previous visit. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On September 3, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams and noted that the patient was trying to diminish his dosage frequency. On November 26, 1991, Patient #4 returned for a refill of Dilaudid and complained of an infected wound on his left elbow. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid, Lotrisone Cream, and Duricef. On December 24, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. PATIENT #5 On April 5, 1991, Patient #5, a 28 year old male saw Dr. Slavin for pain in his lower to middle back which recently had been exacerbated by a fall off a curb while he was in his wheelchair. Patient #5 has been a paraplegic since 1989 as a result of a gunshot wound. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Cipro. Dr. Slavin noted on the problem list that Patient # 5 had chronic urinary infections. It could not be determined from the records whether Patient #5 had an urinary infection when he initially presented himself to Dr. Slavin. Cipro and Bactrim are drugs which are used to treat urinary infections. Patient #5 returned to see Dr. Slavin on April 23, 1991. He was complaining of having dark red blood from his rectum on one occasion, pain in the lower part of his abdomen, and not having a bowel movement in the last two days. Dr. Slavin advised the patient to have an enema and to take a laxative. The doctor also prescribed 180 units of 4 milligrams of Dilaudid, Cipro, Bactrim, and Valium. Under normal circumstances a physician would at least examine the rectal area and check the patient's stool. Dr. Slavin did neither. Patient #5 signed an acknowledgment dated April 23, 1991, stating that he was not a Dilaudid addict, that he was currently taking Dilaudid for back pain, that he had tried other medications and found that Dilaudid controlled the pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 14, 1991, Patient #5 again saw Dr. Slavin. The patient indicated that he would be out of town for six weeks and needed to have the pain medication refilled. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. The medical records contain no mention of the previous blood in the rectum. The matter, thus, remained medically unresolved as to what the issues were, whether they were addressed, and what the follow-up was, if any. PATIENT #6 On May 1, 1991, Patient #6, a 40 year old male, saw Dr. Slavin and complained of back pain secondary to an injury in 1981 which caused spinal stenosis with neurogenic claudication pain. The patient had presented to Dr. Slavin a letter dated November 16, 1987 from the Department of Labor and Employment Security, advising Patient #6 that he had been adjudicated as permanently and totally disabled; a neurologic report dated July 28, 1982; and a radiology consultation report dated August 5, 1987. Dr. Slavin noted on the patient's progress notes that myelogram indicated a defect at the L3-4 disc level. He also noted that the patient had a surgical scar over the LS spine. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid, and Robaxin. On May 1, 1991, Patient #6 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of back pain caused by spinal stenosis sustained in a work related injury in 1981 when he fell 18 feet in a sitting position, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. Dr. Slavin again saw Patient #6 on June 3, 1991, and prescribed 120 units of 4 milligrams of Dilaudid for chronic low back pain. The doctor noted that he planned to repeat the MRI of the LS spine. On July 3, 1991, Patient #6 returned for a refill of his medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid and Robaxin. On July 22, 1991, Dr. Slavin again saw Patient #6 for a refill of the pain medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid. Dr. Slavin saw Patient #6 on August 20, 1991 for a refill of the pain medication. The doctor noted in the progress notes that the patient had extensive hypertrophic and degenerative bone and disc disease at virtually all levels of the LS spine. He prescribed 120 units of 4 milligrams of Dilaudid. On September 19, October 23, November 22, and December 20, 1991, Patient #6 visited Dr. Slavin for a refill of his pain medication. On each occasion, Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, and 24 of the Administrative Complaint, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records to justify the course of treatment for Patient #1 and Patient #5, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances in the treatment of Patient #5, imposing an Administrative fine of $1,000 for each violation (total of $3,000), placing Herbert R. Slavin, M.D. on probation for one year during which time the records of Dr. Slavin shall be monitored by a monitoring physician approved by the Board of Medicine, and requiring that Herbert R. Slavin, M.D. be required to attend Category I continuing education course in Risk Management and Medical Records. DONE AND ENTERED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3931 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted in substance. Paragraphs 5-6: Rejected as unnecessary. Paragraph 7: Accepted in substance. Paragraphs 8-11: Rejected as unnecessary. Paragraphs 12-14: Accepted in substance. Paragraph 15: Rejected that there was no orthopedic examination; the medical records do not indicate whether there was one or not. Rejected that the neurological examination was questionable. The remainder of the paragraph is accepted in substance. Paragraphs 16-17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraphs 19-20: Rejected as not supported by clear and convincing evidence. Paragraphs 21-23: Accepted in substance. Paragraph 24: The second sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance. Paragraph 25: Accepted in substance. Paragraph 26: Accepted that Slavin continued to prescribe Dilaudid. Rejected as unnecessary the remainder of the paragraph. The radiographic views of the patient's spine indicated discogenic disc disease. Paragraphs 27-30: Rejected as not established by clear and convincing evidence. Paragraph 31: Accepted in substance. Paragraph 32: Rejected as not supported by the record that he performed a sparse medical history. The remainder of the paragraph is accepted in substance. Paragraphs 33-34: Accepted in substance. Paragraphs 35-38: Rejected as not established by clear and convincing evidence. Paragraph 40: Accepted in substance. Paragraph 41: The last sentence is accepted in substance. The first sentence is rejected as subordinate to the facts actually found. Paragraph 42: The first sentence is accepted in substance. The last sentence is rejected as subordinate to the facts actually found. Paragraph 43: Accepted in substance. Paragraphs 44-45: Rejected as subordinate to the facts actually found. Paragraph 46: Accepted in substance. Paragraphs 47-50: Rejected as not supported by clear and convincing evidence. Paragraphs 51-52: Accepted in substance. Paragraph 53: Rejected as not supported by the medical records except as to the orthopedic examination for which there is no mention in the medical records. Paragraph 54: Accepted to the extent that the medical records do not clearly establish that the patient was suffering from an urinary infection, although it was listed on the problem list. Cipro can be used to treat an urinary infection. Paragraph 55: Accepted in substance. Paragraph 56: See response to paragraph 54. Paragraphs 57-59: Accepted in substance. Paragraphs 60-61: Rejected as not supported by clear and convincing evidence. Paragraphs 62-63: Accepted in substance except as to the date 1882, which should be 1982. Paragraph 64: The first sentence is accepted except as to height which is subordinate to the facts actually found. The second sentence reference to temperature is accepted. The remainder of the second sentence is rejected as not supported by the record, the record indicates that Dr. Slavin also considered a more recent myleogram which confirmed the problems at L3-L4 disc levels. The last sentence is rejected as subordinate to the facts actually found. Paragraph 65-69: Rejected as not supported by clear and convincing evidence. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraphs 2-10: These paragraphs relate to the motion to stay, which is ruled on in a separate order. Paragraph 11: Accepted that Dr. Gillett was tendered and excepted as an expert in the field of internal medicine. Rejected that the doctor was provisionally accepted. Paragraph 12: Rejected as subordinate to the facts actually found. Paragraphs 13-17: Accepted in substance. Paragraph 18: The first sentence is accepted in substance. The second sentence is accepted to the extent that some physicians limit their practice to chronic pain management but rejected to the extent that it is subordinate to the facts found since there was not competent evidence presented that Dr. Slavin holds himself out to be a specialist in chronic pain management. Dr. Gillet assumed that to be so but had no evidence as to that fact. Dr. Brady thought that Dr. Slavin was a family practice physician. Paragraph 19: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. Paragraph 20: Accepted in substance. Paragraph 21: Accepted in substance as it relates to all but Patient #s 1 and 5. Rejected as to Patient #s 1 and 5 as not supported by the evidence. Paragraph 22: The first and last parts of the first sentence are accepted in substance. The middle part of the first sentence is rejected as not supported by the record. Paragraphs 23-24: Rejected as subordinate to the facts actually found. Paragraph 25: Accepted in substance as it relates to all patients except #s 1 and 5. Rejected as not supported by the evidence as it relates to Patient #s 1 and 5. Paragraphs 26 and 27: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Albert Peacock, Esquire Agency For Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Charles L. Curtis 1177 Southeast Third Avenue Fort Lauderdale, Florida 33316 Andrea L. Wolfson, Esquire Suite 314 4491 South State Road 7 David, Florida 33314 Arthur C. Wallberg Assistant Attorney General Office of the Attorney General PL-01 The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issues in this case for determination are whether Respondent Samuel Cox, M.D., committed the violations of Chapter 458, Florida Statutes, as alleged in an Administrative Complaint filed by the Department of Health on November 18, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, Samuel Cox, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 77851 on April 22, 1999. Dr. Cox's mailing address of record at all times relevant to this matter is 2438 East Commercial Boulevard, Fort Lauderdale, Florida 33308. Dr. Cox is a board-certified general surgeon who has specialized his practice to bariatric surgery. He has performed bariatric surgery since 1985, performing approximately 3,000 such surgeries since that time. Dr. Cox has performed approximately 214 Roux-en Y procedures in Florida. No evidence that Dr. Cox has previously been the subject of a license disciplinary proceeding was offered. Bariatric Surgery. Bariatric surgery, also known as gastro-bypass surgery, is a type of surgery performed on morbidly obese patients to assist them in losing weight. In order to be found to be morbidly obese and, therefore, to be considered a candidate for the procedure, a patient must be found to have a Body Mass Index greater than 40. Body Mass Index is a measure of body fat based on height and weight (weight in kilograms divided by the square of height in meters). For example, a six-foot-tall individual weighing 296 pounds would have a Body Mass Index of 40.1. See http://www.nhlbisupport.com/bmi/. A patient with a Body Mass Index of 35 may also be considered a candidate for the surgery if they present with certain comorbidities associated with obesity. Comorbidities are physical problems associated with obesity and include diabetes, lung problems, heart problems, and high blood pressure. The more comorbidities a patient has, the higher the risk is to that patient from bariatric surgery. While there is more than one type of bariatric surgery, at issue in this case is a procedure known as Roux-en-Y gastric- bypass surgery (hereinafter referred to as "RNY Surgery"). RNY Surgery is a surgical method of creating a reduced-sized stomach. This reduced-sized stomach is created by removing a small portion of the stomach, where the esophagus (which brings food from the mouth to the stomach) attaches to the stomach, from the larger remaining portion of the stomach. The small portion of the stomach attached to the esophagus is then formed into a pouch, creating a much smaller stomach. The remaining larger portion of the stomach is completely by-passed. Often a device called a silastic ring is used at the bottom of the newly created stomach to help the pouch maintain the desired size and prevent it from stretching into a larger pouch. A portion of the small intestine is attached to the bottom of the newly created stomach. Approximately 150 centimeters down the small intestine, the excluded or removed portion of the stomach, the liver, and the pancreas are connected back to the intestine. This allows digestion of food to continue, but reduces the amount of digestion that previously occurred in the 150 centimeters of the intestine which are bypassed. RNY Surgery allows a patient to lose weight in two ways: first, by limiting the amount of food the patient can eat; and secondly, by reducing the absorption of nutrients by bypassing part of the intestine. The most common and serious complication of RNY Surgery is a leak at the gastrojejunal anastomosis, or the point where the newly created stomach pouch (the gastro) is connected to the intestine (the jejunal)(a gastrojejunal anastomosis leak will hereinafter be referred to simply as a "Leak"). This complication may be evidenced by several symptoms exhibited by a patient. Surgeons performing bariatric surgery must look for these symptoms. The typical symptoms of a Leak include left shoulder pain (caused by pooling of the leakage under the diaphragm which causes irritation which manifests as left shoulder pain), decreased urine output, fever, shortness of breath, and high heart rate. Some manifestations of a Leak, such as atrial fibrillation, are indirect signs of a Leak in that they are associated with the stress on the body caused by the Leak. Dr. Cox's Treatment of Patient W.T. Patient W.T. presented to Dr. Cox for bariatric surgery. W.T., a male, was 47 years of age at the time and was morbidly obese. W.T. weighed 458 pounds and had a Body Mass Index of Because his Body Mass Index exceeded 50, he was considered "super" morbidly obese. He also had the following comorbidities: high blood pressure, sleep apnea, congestive heart failure, thrombophlebitis, pulmonary eboli, diabetes, and gatroesophageal reflux disease. There is no dispute that W.T. was an appropriate candidate for bariatric surgery. W.T. underwent RNY Surgery on August 31, 2005. During the surgery, Dr. Cox experienced difficulty seeing, due to the size of W.T.'s liver, the staples which he used to connect the intestine to the bottom of the newly formed stomach. Instead of confirming the placement of the staples, he was required to assess the staples with his fingers. This should have made him more sensitive to the possibility of a Leak. Before ending the surgery, Dr. Cox performed a test called a methylene blue test. To perform this test, an anesthesiologist puts medicine down a tube which passes through the patient's nose and into the new stomach. The physician then looks for any sign of a leak where the physician has sewn or stapled the small intestine to the stomach. With W.T., the methylene blue test did not disclose any leaks. The day after W.T.'s bariatric surgery, September 1, 2005, W.T. began to complain of pain in his left shoulder which is an important symptom of a Leak. W.T. also experienced decreased urine output during the night (he had, however, "responded well to fluid increases and diuretics"), and a low- grade fever, which are also indicators of a Leak. Although pain is a normal response to any operation, pain in the shoulder for the type of non-laparoscropic bariatric surgery performed by Dr. Cox should have made Dr. Cox more concerned than he apparently was as to the cause. The normal pain response to the type of operation Dr. Cox performed would be expected where the incision was made, but not in the shoulder. Dr. Cox treated W.T.'s shoulder pain with narcotic analgesia by a patient-controlled analgesia pump. He treated the decreased urine output with increased fluids and a diuretic (Mannitol). The fever was treated with Tylenol. Although the left shoulder pain, decrease in urine output, and low-grade fever could have been indicative of a Leak, Dr. Cox made no note in the patient records that he had considered the possibility that W.T. had a Leak, prematurely ruling out the possibility of a Leak. Dr. Cox suggested that the left shoulder pain was related to a diaphragmatic irritation caused by the use of surgical instruments on the diaphragm and that the urine output decline could have been attributable to the impact on W.T.'s kidneys by his diabetes. While these might have been appropriate considerations at the time, Dr. Cox could have not known for sure what was causing W.T.'s symptoms and, therefore, should have considered all the possible causes of these symptoms, especially the possibility of a Leak. On the second post-operative day, September 2, 2005, W.T. exhibited an abnormal heart rhythm, called atrial fibrillation. With a normal heart rhythm, the atrial (the first two of the four heart chambers) contracts, followed by contraction of the ventricles (the other two heart chambers). Atrial fibrillation is an abnormal heart rhythm characterized by a failure of the atria to completely contract. The fact that W.T., who had no prior history of atrial fibrillation, was evidencing atrial fibrillation on post-operative day two should have raised a concern about what was happening to W.T., including, but not limited to, the possibility of a Leak. W.T. was also experiencing an abnormally high heart rate of 148, which could have also been indicative of a Leak. Dr. Cox continued to treat W.T.'s shoulder pain with narcotic analgesia and the decreased urine output with increased fluids and Mannitol. He treated the elevated heart rate with Cardizem, a medicine used to slow the heart. W.T.'s shoulder pain appeared to decrease, which was to be expected given the course of treatment ordered by Dr. Cox. Dr. Cox had not, however, appropriately determined the cause of the pain. Again, nothing in Dr. Cox's medical records indicates that he considered the possibility that W.T.'s various symptoms might be indicative of a Leak. Nor did he take any action, such as an upper gastrointestinal test, to rule out the possibility of a Leak. To perform a gastrointestinal test, a patient drinks a water-soluble contrast called Gastrografin and a radiologists takes serial pictures of the patient, which show the contrast as it moves down the esophagus and then crosses through the anastomosis of the pouch and intestine. From these pictures, it can be determined whether the anastomosis is open and functioning properly and whether any of the contrast leaks outside of the new stomach-intestine path. The test is not fool-proof, but it is an appropriate diagnostic tool for Leaks. Dr. Cox suggests that the atrial fibrillation and high heart rate could have simply been a recognized complication of any stress W.T., with his borderline cardiac status, was experiencing. Again, while these might have been appropriate considerations at the time, Dr. Cox could have not known for sure what was causing W.T.'s symptoms and, therefore, should have considered all the possible causes of these symptoms, especially the possibility of a Leak. On the third post-operative day, September 3, 2005, air and serosanguinous fluid were observed seeping from W.T.'s abdominal incision. The existence of air may be evidence of a Leak. Although some air gets into the abdominal cavity during surgery, it is usually absorbed by the body very, very quickly. Air coming from an incision on post-operative day three suggests a hole in the intestine. Dr. Cox responded to the finding of air coming from the abdominal incision by ordering a methylene blue swallow, where W.T. swallowed a small amount of blue dye. Blue dye was then seen either coming out of the incision or drains placed in W.T.'s abdomen. Either way, the test was "positive" indicating a leak in W.T.'s intestine. Dr. Cox correctly took W.T. back into surgery. He discovered and corrected a Leak which had been caused by failure of the staples used in W.T.'s surgery. Although much was made as to when the staples failed, that evidence was not conclusive nor is it necessary to resolve the dispute. Whether the staples failed immediately after surgery or at some later time does not excuse Dr. Cox's failure to appropriately react to signs exhibited by W.T. which could have indicated that W.T. had a Leak. This case does not turn on whether a Leak actually existed. It turns on whether Dr. Cox appropriately considered the possibility of a Leak and took the steps medically necessary. With W.T., he did not. Dr. Cox's error was not in failing to find the Leak earlier; it was in failing to properly consider the possibility of a Leak when W.T. exhibited signs that should have prevented Dr. Cox from, with reasonable medical certainty, ruling out the possibility that a Leak was present. For this reason, the fact that a Leak was ultimately found is of little importance in deciding whether the charges leveled against him in the Administrative Complaint are accurate. Even if no Leak had ultimately been found, Dr. Cox's failure to properly respond to the potential of a Leak evidenced by W.T.'s symptoms was inconsistent with the standard of care. Dr. Cox's Treatment of Patient J.L. Patient J.L. presented to Dr. Cox for bariatric surgery. J.L., a male, was 35 years of age at the time and was morbidly obese. J.L. weighed 417 pounds and had a Body Mass Index of Because his Body Mass Index exceeded 50, he was considered "super" morbidly obese. He also had the following comorbidities: high cholesterol, stress incontinence, depression, anxiety, high blood pressure, gastroesophageal reflux disease, and shortness of breath on exertion associated with asthma. There is no dispute that J.L. was an appropriate candidate for bariatric surgery. J.L. underwent RNY Surgery on August 4, 2005. Dr. Cox also removed J.L.'s gallbladder. Before ending the surgery, Dr. Cox performed a methylene blue test. The methylene blue test performed on J.L. did not disclose any leaks. On the first post-operative day, August 4, 2005, J.L.'s heart rate was as high as 155 (anything over 120 is problematic), was experiencing decreased oxygen saturation of 89 percent (95 percent to 98 percent are considered normal saturation levels), had increased BUN and creatinine levels, and his urine output was borderline low. The increased BUN and creatinine, indicative of a problem with the kidneys, were are not being perfused well. J.L. was also complaining of right shoulder pain. Dr. Cox's note concerning the right shoulder pain specifically notes that it was not the "left" shoulder, which suggests that Dr. Cox was aware of the significance of left shoulder pain. J.L.'s high heart rate and low oxygen saturation level were considered significant enough to return him to the intensive care unit. On the second post-operative day, August 5, 2005, J.L.'s BUN and creatinine levels rose higher. That evening J.L. had a high heart rate. His urine output level, which Dr. Cox had treated with a diuretic and increased fluids, had improved. J.L. also became agitated and restless. He began to constantly request water. Dr. Cox eventually ordered, however, that J.L. not be given water. Dr. Cox failed to note in his records that he considered the possibility that J.L. had a Leak. Instead, Dr. Cox focused on the possibility that J.L. was suffering from rhabdomyolysis, a malfunction of the kidneys caused by the breakdown, as a result of surgery, of muscle tissue into cells too large in size for the kidneys to process. Dr. Cox ordered a CK test which found elevated creatine phosphor kinase or CPK, a marker of muscle death. Dr. Cox then consulted with a nephrologists. While the symptoms evidenced by J.L. could have very well been a result of rhadbodmyolysis, they also could have been symptomatic of a Leak. Dr. Cox did not have adequate information on August 5, 2005, to conclusively find that J.L. was suffering from rhadbodmyolysis and, more importantly, not from a Leak. As of the second post-operative day, J.L. was exhibiting a high heart rate, low urine output, pain in his right shoulder, a worsening oxygen saturation level and hunger for air, and a changed mental status (anxiety and combativeness). Due to these symptoms, Dr. Cox should have considered the possibility of a Leak, rather than merely concluding that J.L. was suffering from rhabdomyolysis and treating J.L.'s individual symptoms. On the third post-operative day, August 6, 2005, J.L.'s condition worsened. His agitation and combativeness due to his thirst and air hunger worsened. J.L. was treated with Haldol, a psychiatric medication. Dr. Cox continued to suspect rhadbdomyolysis and to ignore the possibility of a Leak. On the fourth post-operative day, August 7, 2005, at approximately 15:30, pink-tinged fluid was seen draining from J.L.'s incision. A pulmonologist consulting on J.L.'s case was the first to suggest the possibility of a Leak, questioning whether the entire clinical picture pointed to intra-abdominal sepsis due to a Leak. It was not until the drainage from J.L.'s incision that Dr. Cox first considered the possibility of a Leak. Even then, Dr. Cox did not return J.L. to surgery until August 7, 2005, where a Leak was found and repaired. Dr. Cox's error in his treatment of J.L., like his error in his treatment of W.T., was not in failing to find the Leak earlier, but in failing to properly consider the possibility of a Leak when J.L. exhibited signs which should have prevented Dr. Cox from, with reasonable medical certainty, ruling out the possibility that a Leak was present. For this reason, the fact that a Leak was ultimately found is of little importance in deciding whether the charges leveled against him in the Administrative Complaint are accurate. Even if no Leak had ultimately been found, Dr. Cox's failure to properly respond to the potential of a Leak, evidenced by J.L.'s symptoms, was inconsistent with the standard of care. Dr. Cox's explanation at hearing as to why he waited from August 5, 2005, when it was apparent that J.L. had a Leak, until August 7, 2005, to repair the Leak, is not contained in Dr. Cox's medical records. The Standard of Care. The Department's expert, Christian Birkedal, M.D., credibly opined that Dr. Cox failed to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure in violation of Section 458.331(1)(t), Florida Statutes (hereinafter referred to as the "Standard of Care"), in his treatment of W.T. and J.L. In particular, it was Dr. Birkedal's opinion that Dr. Cox violated the Standard of Care as to W.T. by failing to recognize W.T.'s signs and symptoms of a Leak and by failing to perform a post-operative upper gastrointestinal test on W.T. once he evidenced those signs. Dr. Birkedal's opinion is credited and accepted. As to J.L., Dr. Birkedal's opinion that Dr. Cox violated the Standard of Care by failing to recognize the signs and symptoms of a Leak for two days post-operatively is credited and accepted. The opinions to the contrary offered by Dr. Cox and his witnesses as to W.T. and J.L. are rejected as not convincing and as not addressing the issue precisely enough. The opinions offered by Dr. Cox and his witnesses with regard to both patients were essentially that the various symptoms pointed to by Dr. Birkedal were not "evidence" of a Leak. Those opinions do not specifically address the issue in this case. Dr. Cox and his witnesses based their opinions on whether Dr. Cox should have "known" there was a Leak at the times in issue. That is not the charge of the Administrative Complaint or the basis for Dr. Birkedal's opinion. The question was, not whether Dr. Cox should have known there was a Leak, but whether he should have considered a Leak as a possible cause for the symptoms exhibited by W.T. and J.L. Additionally, and finally, Dr. Birkedal based his opinions, not by looking at the record as a whole, as did Dr. Cox and his experts, but by looking at only those records in existence at the times relevant to this matter. In this way, Dr. Birkedal limited himself to a consideration of what Dr. Cox knew about his patients at the times relevant in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Samuel Cox, M.D., has violated Section 458.331(1)(m) and (t), Florida Statutes, as alleged in Counts I, II, and III of the Administrative Complaint; issuing a reprimand; placing his license on probation for two years, with terms to be established by the Board; and imposing a fine of $15,000. DONE AND ENTERED this 19th day of June, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 19th day of June, 2007. COPIES FURNISHED: Patricia Nelson, Esquire Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Jonathon P. Lynn, Esquire Marci Strauss, Esquire Stephens, Lynn, Klein 301 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, has been the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was a licensed physician in Florida under license number ME 0039846. On September 23, 1988, Respondent saw Patient #1, a 55 year old female, who presented with a primary complaint of chronic pain in the neck and low back resulting from an automobile accident. The patient history taken by the Respondent revealed a head injury, a back injury and a whiplash injury, all within the previous five years. The patient also had a history of unstable blood pressure, especially in times of stress, and a history of alcohol abuse which had been in remission for the past two years. Respondent examined the patient and found she was suffering from depression but evidenced no suicidal ideations or indications of psychosis. Respondent diagnosed a major depressive reaction and myofacial syndrome of the neck and low back. Dr. Morales treated this patient from September 23, 1988 to February 1, 1990, prescribing various antidepressants and anti-anxiety medications including Limbitrol, Prozac, Valium, Halcion and Tranxene for her. He also prescribed various opiates including Percodan and Percocet. Respondent claims he made a copy of each prescription he wrote for the patient medical records of each patient so that he could keep track of the number of pills he prescribed for that patient. He claims that the quantity of a prescribed medication was kept in a separate area of the patient's chart and not with the clinical notes. Though Respondent claims this procedure was a common office practice and done consistently in every patient's chart, the evidence indicates otherwise. His method of recording medication in the clinical record was inconsistent. At some places in the record he would indicate the exact number of a specific pill prescribed. At other places in the record, he would not. Examples of this practice, as seen from the medical records of Patient #1 available, shows the following entries: October 20, 1988, Rx for Valium for patient #1 but no indication of the amount prescribed is found in the records. March 2, 1989, Rx for Percodan QID (4 times a day), but no indication in records of the amount prescribed. July 8, 1989 Rx for Percodan - 60 tabs. August 2, 1989 Respondent notes to continue with Percoset, but no notation in records as to amount. September 7, 1989 Rx for Percocet but records do not reflect amount prescribed. November 15, 1989 Rx for 60 Percocet. December 6, 1989 Rx for 30 Percocet pills. While Patient #1 was under Respondent's care, she was admitted to the hospital twice. On September 18, 1989 she was admitted to Largo Medical Center for narcotics addiction and was discharged on September 28, 1989. On September 18, 1989, while the patient was in the hospital, Dr. Farullah, a staff physician, called Respondent to discuss the patient with him. This conversation, including the Respondent's name, is itemized in the hospital records for this patient. It is appropriate practice protocol upon the admission of a patient to the hospital for the admitting physician to notify the patient's attending physician about the patient's diagnoses and condition. It would appear this was done here by Dr. Farullah. Nonetheless, Respondent claims he did not know the patient was hospitalized, contending he did not recall the conversation, and noting that the information regarding hospitalization might not have been included in it. Respondent claims he never heard of Dr. Farulla until a subsequent visit from the patient in his office on October 24, 1989. After the patient's discharge from the hospital, she came to Respondent's office for a 30 minute visit on October 4, 1989. Though this visit occurred only 6 days after her discharge from the hospital, Respondent claims the subject of her hospitalization was not discussed. Two days later, on October 6, 1989, the patient returned to Respondent's office for another 30 minute visit and again, the subject of her hospitalization did not come up. This patient was readmitted to the hospital on October 10, 1989 with a diagnosis of, among other things, drug dependency. She was discharged on October 20, 1989, but, again, Respondent claims he did not know of her hospitalization. He saw her on October 24, 1989 for another 30 minute visit during which, he claims, the subject of her hospitalization did not come up. This appears to be a conflict with his previous testimony , noted in Paragraph 8, supra, wherein he stated he never heard of Dr. Farullah until he met with the patient in his office on October 24, 1989. On April 10, 1990, in the course of filing a disability claim with the Department of Health and Rehabilitative Services, (DHRS), the patient signed a medical release form. Thereafter, HRS requested the patient's records from the Respondent, but they were not forthcoming. A second request was transmitted to the Respondent who replied that the records requested had been copied but not dispatched because no release form accompanied the request. Respondent indicated that upon receipt of the release form, the records would be forwarded, and on June 4, 1990, they were, in fact, sent by the Respondent. This was approximately 17 months before the burglary of Respondent's office to be discussed, infra. Respondent claims it was his policy, however, in responding to requests for information to the Social Security Administration, (disability claims are paid by Social Security), to provide only clinical notes, initial evaluation, and a medical summary update. Other records, including prescription records, are not sent. Respondent's office was burglarized on November 30, 1991 by one of his former employees. According to Respondent, all the medical records he had were taken during the break-in. Though they were ultimately returned, he claims they were incomplete when returned. However, comparison done by the Department's investigator, of the medical records of Patient #1 which were sent to HRS before the burglary with those taken from Respondent's office after the burglary, indicated they were the same, except for some duplicates. Nonetheless, Respondent claims that some of the records pertaining to Patient #1, including prescription records, were not recovered. This could explain the absence of prescription records in both sets of records, but that is not found to be the case here, however. According to the Board's expert, Dr. Boorstin, a Board Certified Psychiatrist who specializes in addiction psychiatry and opiastic medicine, the benzodiazepins prescribed for Patient #1 by the Respondent, were inappropriate because of her known alcoholism, and he failed to adequately monitor her for possible addiction or dependence. Even though her condition had been in remission for two years, Dr. Boorstin concluded it was below standard practice to prescribe those drugs to this patient. Dr. Boorstin also concluded that Respondent failed to keep adequate written medical records for this patient and did not justify the less than conservative prescription of anti-anxiety and pain medications to a known alcoholic. A physician must keep track of the drugs being used by a patient to be sure no abuse trends exist. The Respondent should have detailed with exactitude in his records the number of each specific medication. From September 30, 1988 to February 1, 1990, a period of 16 months, he prescribed various opiate-based pain killers to Patient #1, including Tylenol #3, Codeine, Percodan and Percocet. His prescription of the latter two, in Dr. Boorstin's opinion, fell below the appropriate standard of care. The patient's hospital records indicate she was suffering from drug addiction, and if, as the Department claims, Respondent knew of her hospitalizations and the reason therefor, his prescription of liberal amounts of opiate based drugs was inappropriate. The evidence shows the patient was admitted to the hospital on two occasions, both times for, among other problems, drug addiction. Less than one month after her second discharge, Respondent prescribed Percocet for this patient for pain relief at a rate of two tables every six hours. According to Dr. Boorstin, the usual adult dosage is one tablet every six hours. This is outlined in the Physician's Desk Reference, (PDR), a compendium of drugs and medications with manufacturer's recommendations for dosage. Though authoritative in nature, the PDR is not mandatory in application, and physicians often use it as a guide only, modifying strength and dosage as is felt appropriate for the circumstance. On at least one occasion, Respondent's medical records for this patient show he prescribed Percocet but not the amount prescribed. This is below standard. The same is true for the noted prescription for Percodan. Both Percodan and Percocet are Schedule II drugs. A notation in the records for a prescription for Valium also reveals no indication was given as to the amount prescribed. Again, this is below standard. Dr. Boorstin's opinion is contradicted by that of Dr. Wen-Hsien Wu, the Director of the Pain Management Center at the Schools of Dentistry and Medicine of New Jersey, the New Jersey Medical School, who testified by deposition for the Respondent. Dr. Wu claims he has prescribed medications in amounts and dosages far in excess of those prescribed by Respondent and for a much longer period of time. Wu is Board certified in anesthesiology and has published numerous articles on pain management. Dr. Wu contends there is no contraindication for the use of narcotic therapy in Patient #1's alcoholism. The use of narcotics is appropriate if the patient can return to function with careful monitoring. Here, it would appear that Patient #1 was monitored through her frequent visits to the Respondent's office. It is impossible to tell from the Respondent's patient records just how much medication he prescribed for his patient. Because of the failure to indicate the number of pills of each type Respondent was prescribing, it is impossible to form a conclusion as to whether the amount prescribed was appropriate or excessive. Notwithstanding Respondent's claim in his Proposed Findings of Fact that "...there is no indication of drug abuse in the prescribed drug area", the medical records show that on each admission of Patient #1, a diagnosis of drug addiction was made. To be sure, these records do not reflect the drug to which the addiction relates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein finding Respondent guilty of all allegations except prescribing in inappropriate amounts. It is also recommended that Respondent be ordered to pay an administrative fine of $3,500 within 90 days of the date of the Final Order herein, be reprimanded, and within one year of the date of the Final Order herein, attend continuing medical education courses at the University of South Florida Medical School in appropriate medical record keeping and in the prescribing of abusable drugs. RECOMMENDED this 12th day of June, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. - 15. Accepted and incorporated herein. 16. - 19. Accepted and incorporated herein. & 21. Accepted as a representation by Respondent. Accepted as Respondent's position but not accepted as fact. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. Rejected as unproven. & 30. Accepted but repetitive of other evidence previously admitted. 31. & 32. Accepted and incorporated herein. - 38. Not appropriate Findings of Fact but merely recitations of the contents of records. Accepted and incorporated herein. - 42. Restatement of witness testimony. FOR THE RESPONDENT: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. & 7. Accepted as testimony of Respondent, but not as probative of any issue. 8. - 11. Accepted and incorporated herein 12. & 13. Accepted. 14. - 16. Accepted and incorporated herein. 17. Accepted. 18. & 19. Accepted. 20. Accepted. 21. Accepted. 22. - 24. Accepted. 25. - 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. Accepted. & 34. Accepted as opinions of the witness, but not as the ultimate fact. Accepted as to admissions but rejected as to Respondent not being advised. Accepted and incorporated herein. COPIES FURNISHED: Steven A, Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33617 Grover C. Freeman, Esquire Freeman, Hunter & Malloy 201 E. Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact At all material times, Respondent has been currently licensed as a physician in Florida, holding license ME 0033496. Patient 1 was a 32 year old female who was admitted to Lykes Memorial Hospital on March 24, 1988, due to upper and lower abdominal pain, vomiting, and early signs of dehydration. Respondent placed Patient 1 on intravenous fluids and administered medications to control the vomiting. Patient 1 underwent diagnostic studies, including an upper gastrointestinal series, and received medication for the abdominal pain. After five days of hospitalization and tests, the source of the pain had not yet been identified. However, the lower abdominal pain had ceased, and the upper abdominal pain had lessened considerably. In general, the patient had improved during the hospitalization. At this point, Respondent discharged Patient 1 from the hospital with a final diagnosis of acute gastroenteritis. Respondent directed Patient 1 to return to his office for a follow-up visit. Five or six days after discharge, Patient 1 called Respondent and told him that her symptoms, which she now linked with taking birth control pills, had disappeared. Respondent advised her not to resume taking the pills, but to return to her gynecologist. With respect to Patient 1, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances. Patient 2 was a 37 year old male who was admitted to Lykes Memorial Hospital on May 9, 1988, after having been found by a relative in a state of semi-consciousness. The admitting diagnosis was a probable overdose of lithium and possibly Thorazine. Respondent treated the drug toxicity during Patient 2's three-day hospitalization. Respondent became increasingly lucid during his hospitalization, and Respondent successfully managed the event of drug toxicity. Respondent tried to elicit from Patient 2 a medical and psychiatric history, but Patient 2 would or could not cooperate. Respondent was unable to identify any relatives or friends of Patient 2, including the person who brought him to the hospital. Respondent could not even find out where Patient 2 obtained the lithium and Thorazine that he was taking. Respondent treated the altered mental status that Patient 2 presented. There was no need during the short period of hospitalization to obtain a psychiatric consultation. Resumption of psychotropic medication so soon after the drug intoxication would have been imprudent. Consistent with the policy of Lykes Memorial Hospital, which has no psychiatrists on staff, Respondent referred Patient 2 to the Hernando County Mental Health Center. He directed Patient 2 not to take lithium or Thorazine until instructed to do so by a psychiatrist or other physician at the mental health center. Respondent and the hospital ensured that Patient 2 got to the mental health center following discharge. With respect to Patient 2, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances. Patient 3 was a 49 year old male who was admitted to Lykes Memorial Hospital on or about February 5, 1988, with complaints of difficulty breathing. At the time, Patient 3 had been diagnosed with lung cancer that had metastasized to the spine and had undergone maximum radiation therapy. He was paralyzed from the waist down and in the last year of his life. He steadfastly refused all diagnosis or treatment involving radiation. By his own request, Patient 3's standing medical orders were "Do Not Resuscitate." He only wanted to be made comfortable. The acute illness resulting in Patient 3's admission was pulmonary congestion. There is some likelihood that the symptoms of infectious bronchitis with which he presented at time of admission were exacerbated by his chronic obstructive pulmonary disease. There is a possibility that some of Patient 3's discomfort was caused by mucous plugs in the lungs, whose capacity had already been diminished by the other diseases. However, mucous plugs were not affecting Patient 3 at the time of discharge. Respondent discussed with Patient 3 the possibility of cleaning out his lungs with a bronchoscope, but Patient 3 refused. Respondent treated Patient 3's discomfort with oxygen, diuretics, and increased steroids. Patient 3 had been receiving steroids due to a spinal disorder resulting from the cancer. Patient 3 was already receiving bronchodilators at the time of his admission. There is also a possibility that Patient 3 suffered from superior vena cava syndrome in which one or more tumors would block veins of the thorax. However, diagnosis of the condition would have been invasive, and Patient 3 refused such interventions. Treatment of such a condition would likely have required radiation, and Patient 3 would not tolerate additional radiation treatment. Respondent discussed with Patient 3 the possibility of superior vena cava syndrome and the possible treatment, but Patient 3 declined this intervention. Patient 3 received no EKG while in the hospital. The emergency medical services team transporting Patient 3 to the hospital performed a rhythm strip, which provides information about limited cardiac functions. Although Patient 3's potassium levels were slightly below normal at discharge, they had improved during hospitalization. With respect to Patient 3, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances. Respondent's medical records represent the bare minimum required by law to justify the course of treatment. Matters discussed with Patient 3 were not always recorded. Patient 3's decisions concerning diagnosis and treatment were likewise not always recorded. But, on balance, the medical records adequately documented the course of treatment of Patient 3 while under Respondent's care at the hospital. Patient 4 was a 68 year old male who was admitted to Lykes Memorial Hospital on or about February 14, 1988, with complaints of a persistent cough and some gastric upset. He was suffering from exacerbation of chronic obstructive pulmonary disease. Respondent appropriately treated Patient 4's conditions. Patient 4 experienced problems with certain medications, which interfered with his progress, but he was drinking and eating without difficulty prior to his discharge. X-rays taken at admission and discharge revealed no significant change in Patient 4's condition during his eight-day hospitalization. At discharge, Respondent ordered Patient 4 to return for an office visit in two weeks. Patient 4's condition continued to improve following discharge. With respect to Patient 4, Respondent practiced medicine with that level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being unacceptable under similar circumstances.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Business and Professional Regulation enter a final order dismissing the administrative complaint. ENTERED on October 11, 1993, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on October 11, 1993. APPENDIX Treatment Accorded Proposed Findings of Petitioner 1-5: adopted or adopted in substance. 6: rejected as unsupported by the appropriate weight of the evidence. 7-12: adopted or adopted in substance. 13: rejected as unsupported by the appropriate weight of the evidence. The pain or discomfort had lessened considerably. 14: adopted. 15: rejected as unsupported by the appropriate weight of the evidence. 16-17: rejected as irrelevant and unnecessary. 18: rejected as unsupported by the appropriate weight of the evidence. and 21-23: adopted or adopted in substance. and 24: rejected as unsupported by the appropriate weight of the evidence. 25: adopted except that Respondent and the hospital ensured that the patient was referred to a mental health treatment center as soon as his condition was sufficiently stabilized to allow discharge from the hospital. 26: rejected as unsupported by the appropriate weight of the evidence. 27: adopted or adopted in substance. 28: rejected as unsupported by the appropriate weight of the evidence. The record does not suggest how a psychiatrist would obtain a history from an unwilling patient. 29: adopted with respect to the period of the hospitalization through the point at which the patient could recommence active psychiatric treatment. 30: rejected as unsupported by the appropriate weight of the evidence. Respondent duly referred the patient to an appropriate facility for the treatment of the patient's underlying mental health problems. 31: rejected as recitation of evidence and subordinate. 32: rejected as legal argument and unsupported by the appropriate weight of the evidence. 33-36: adopted or adopted in substance. 37-38: rejected as unsupported by the appropriate weight of the evidence. 39: rejected as subordinate. 40: rejected as unsupported by the appropriate weight of the evidence. 41-43 (through third sentence): adopted or adopted in substance. 43 (fourth sentence): rejected as unsupported by the appropriate weight of the evidence with respect to this patient. 44-48 (first sentence): adopted or adopted in substance. 48 (except first sentence)-50: rejected as irrelevant and subordinate. 51-52 and 54: adopted or adopted in substance. 53: rejected as unsupported by the appropriate weight of the evidence. 55-56: adopted or adopted in substance. 57-59: rejected as unsupported by the appropriate weight of the evidence. Treatment Accorded Proposed Findings of Respondent 1-6: adopted or adopted in substance. 7: rejected as legal argument. 8: rejected as recitation of evidence. 9: rejected as legal argument and recitation of evidence. 10: adopted or adopted in substance. 11: rejected as recitation of evidence. 12: rejected as recitation of evidence and subordinate. 15: adopted or adopted in substance. 16 (first sentence): rejected as legal argument. 16 (second and third sentences): adopted or adopted in substance. (fourth sentence): rejected as recitation of evidence. (first sentence): rejected as legal argument. 17 (second sentence): adopted or adopted in substance. 17 (third sentence)-19 (first sentence): rejected as recitation of evidence. 19 (second sentence): adopted or adopted in substance. 20: rejected as recitation of evidence. 21: rejected as legal argument and recitation of evidence. 22: rejected as legal argument and recitation of evidence. 23: rejected as subordinate. 24: rejected as recitation of evidence. 27: adopted or adopted in substance. 28-31 (second sentence): rejected as legal argument and recitation of evidence. 31 (third sentence): adopted or adopted in substance. 32-34: rejected as legal argument and recitation of evidence. 38: adopted or adopted in substance. 39-43: rejected as legal argument, recitation of evidence, and subordinate. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Barbara Whalin Makant, Staff Attorney Department of Business and Professional Regulation Northwood Center, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0972 William B. Taylor, IV Macfarlane Ferguson P.O. Box 1531 Tampa, FL 33618
