The Issue Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(n), Florida Statutes [failure to keep written medical records justifying the course of treatment of patients as set out in Counts 1-4, 6-9, 11, and 13-14 of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(cc) 1, 2, and 3, Florida Statutes [prescription of an amphetamine drug for purposes other than specifically stated in those subsections as set out in Counts 5 (Preludin), 10 (Preludin), and 12 (Ritalin) of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 453.331(1)(t), Florida Statutes [by engaging in gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances as set out in Counts 1-15 inclusive, of the administrative complaint].
Findings Of Fact Respondent, Tariq Husam Abdullah, is a licensed medical physician, practicing under license number ME 0021526. He is also known as Henry Nichols. The two are one and the same and there is no dispute over identity. Respondent appears to have been a hard worker, rising from a "bed pan hustler" at the old Fort Walton Hospital to his current level of education, licensure, and community position. Previous to Florida licensure, Respondent received his medical degree from Meharry Medical College in Nashville, Tennessee, where he also did his internship in straight medicine. Thereafter, Respondent performed three years of anatomical and experimental pathology at Washington University School of Medicine in St. Louis, Missouri, and two years in clinical pathology at the National Institute of Health and the United States Public Health Service in Bethesda, Maryland. Respondent is not board-certified, but is currently board-eligible in both pathology and laboratory medicine. At all times material hereto, Respondent engaged in medical practice in Bay County, Florida. During much of the time in question, Respondent had no assisting staff. His usual fee for each office visit of each of the patients referred to in the fifteen count administrative complaint was approximately $15- 20 maximum. They are a small portion of the approximately 1,000 patients he treated between 1978 and 1982, and in most cases his fees for office visits were $10.00 apiece. Sometimes his fees were paid and sometimes they were not paid. Medicaid and Medicare reimbursed all or a portion of many fees. In the course of his practice Respondent treated the following patients: D.B.; T.B.; Tommy B.; J.C.; L.C.; T.G. a/k/a L.C.; David G.; Dan G.; C.R.; B.W.; and J.M. Petitioner's expert-witness medical doctors were Jabe Armistead Breland and Michael W. Cohen. Dr. Breland was present at the formal hearing and had the advantage of reviewing Respondent's exhibits as well as Petitioner's exhibits in the forming of his opinions. Dr. Breland has been a licensed medical doctor in the State of Florida since September 1950. Most of that time he has practiced in the panhandle of north Florida which includes Panama City, Bay County. His office is in Marianna, Florida. He is board- certified in family medicine, licensed by the federal government to prescribe controlled substances, and was stipulated as an expert in the field of medicine. Dr. Michael W. Cohen testified by means of a deposition taken prior to formal hearing and did not have the advantage of review of Respondent's exhibits admitted in evidence at the formal hearing. He is a family physician with an M.D. from the University of Miami School of Medicine (1975), a graduate of Tallahassee Memorial Hospital Regional Medical Center Family Practice Program, and has been a board-certified family physician for six and one-half years. His practice is limited to Tallahassee and he has testified on contract for Petitioner six times previous to this case. He is accepted by the undersigned as an expert medical witness, but because of the unavailability to Dr. Cohen of Respondent's exhibits which were admitted in evidence at the formal hearing held subsequent to his deposition and because some of the materials upon which Dr. Cohen's opinions were predicated were excluded from evidence at the formal hearing, the weight and credibility of his prior deposition testimony is significantly impaired through no fault of Dr. Cohen and without any unfavorable reflection upon him. Dr. Wilson, Respondent's expert medical doctor who testified by after-filed deposition knew nothing of Respondent's records and was unaware of the precise charges against him. In the absence of appropriate predicate as to medical opinion, his testimony has been accepted only as to facts of which he had personal knowledge and as to character. It is his opinion that Respondent is the kind of person who deserves not to have his license suspended or revoked. Dr. Wilson partly financed Respondent's education. The parties by Request for Admission have established that Preludin is an amphetamine; more accurately Preludin is phenmetrazine. Ritalin is methylphenidate. Dioxan is a methylamphetamine. At all times pertinent these were Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Percodan is also a Schedule II controlled substance. Valium is a Schedule IV controlled substance. Darvon Compound and Tylenol 4 are Schedule III controlled substances. Respondent frequently talked to police, Sheriff's deputies and pharmacists in an effort to avoid his patients becoming addicted to drugs. He never was made aware from any source of any drug addiction or any arrests of any patients concerned in this action. He testified that he performed a physical examination in every case and verified all prior medications in every case, but he also conceded not verifying prior medications with previous doctors or hospitals. It is specifically found that in many instances none of these precautions appear in his records as set out infra. D. B. (Counts I; XV) It is admitted (Requests for Admission) and found that between February 19, 1979, and April 23, 1983, Respondent prescribed at least the following quantities of controlled substances to his patient, D. B.: DATE DRUG STRENGTH QUANTITY 02/19/79 Percodan Approximate 04/30/79 Darvon Compound 03/23/82 Valium 05/13/82 Tylenol #4 06/03/82 Percodan Demi 40 06/16/82 " " 18 07/10/82 " " 07/17/82 " " 36 08/14/82 " " 18 08/28/82 Percodan 08/28/82 Valium 01/15/83 Percodan 03/26/83 " 03/26/83 Valium 04/23/83 Percodan Respondent's treatment of his patient, D.B. with controlled substances was predicated upon his diagnosis of "traumatic arthritis." His records reflect, "hurting ankle, leg, and back" as the chief complaint. In no instance of prescribing scheduled drugs for this patient did Respondent maintain a record of the strength (dosage) and on only a few occasions did he record the quantity prescribed. This particular inadequacy of record-keeping seems also to have applied to additional non- scheduled drugs prescribed by Respondent for this patient. Although Dr. Breland acknowledged that many doctors only record the word "refill," good medical practice dictates that Respondent should have recorded at least the quantity and dosage at the time of the initial prescription. Normal protocol would be to also record the method of taking the medication. On this analysis, in Dr. Breland's professional medical opinion, Respondent's medical records for his patient, D.B. (Composite P-1) were inadequate and did not justify the course of treatment upon the recorded chief complaint. Dr. Cohen concurs. Further record inadequacies as noted by Dr. Breland include failure of the records to indicate which bone was fractured in relating the patient's medical history, recording only blood pressure as a vital sign, and failure to state what condition was being treated on subsequent visits. Dr. Cohen recited the same inadequacies in forming his professional medical opinion that Respondent's records do not justify the treatment received. Dr. Cohen further opined that if the patient had traumatic arthritis, the treatment prescribed was wholly inadequate due to the absence of any recorded plans for therapy. Dr. Breland, on the other hand, felt that a Percodan prescription is consistent with good medical practice for a patient who complains of traumatic arthritis and that Valium, a benzodiazepine drug which is a calmative or tranquilizer, may also be properly used for traumatic arthritis but that Valium would be contraindicated if there were associated patient nervousness and anxiety. Dr. Breland's opinion is that it would not be medical malpractice to prescribe Valium upon the basis of Respondent's records nor would it be medical malpractice based upon the continued prescribing of Percodan unless the patient became addicted. Dr. Breland's experience is that 1-3 months on Percodan would cause individuals to run the risk of addiction but knows of doctors in the Panama City locale who have prescribed Percodan in excess of three months with addiction resulting in some patients and not in others. Respondent conceded that his records for this patient should show greater detail but according to his recollection independent of the medical records, he recalled that on the first visit, he had accepted D.B.'s representation that D.B. had had prior surgery on the left ankle because the pins could be seen through that swollen ankle. Respondent's independent recollection was that D.B. did not ask for Percodan. Respondent testified that he prescribed the Percodan because "after codeine I can't think of another drug with potential for comfort." His failure to record further detail he explained as his belief that writing down prescriptions was a sufficient reference back to the original first visit diagnosis. Respondent admittedly did not record, but expressed independent recollection of also accepting D.B.'s representation of previous unsuccessful medication with codeine from a Dr. Smith and of recommending acupuncture as an alternative pain therapy but admitted he also did not record this latter instruction. The medical records themselves confirm Respondent's testimony in the course of the hearing that Respondent prescribed the scheduled drugs in addition to a number of other medications such as Roboxin and anti-inflammatories which he did record and which Dr. Breland confirmed were appropriate as treatment for traumatic arthritis. A portion of Petitioner's Composite Exhibit 15, court certified records, show one "Donald Richard Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person was subsequently tried and found guilty of one count and entered a plea of guilty to the other. A Circuit Court Judgment was entered. The date of the commission of this person's offenses are close to the date of a prescription by Respondent to his patient "D.B." but there is absolutely nothing in the court documents to connect them to the D.B. treated by Respondent except a partial similarity of name. Nor does the similarity of name of a co-defendant, Tereza Ann Bozeman (see infra.) prove an inescapable link of "Donald Richard Bozeman" to Respondent's patient, "D.B." who was married to someone of partially similar name. Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, "D.B." for a non-medical or criminal purpose or that the patient was drug-addicted. Upon all the foregoing information taken together it is clear Respondent failed to keep written medical records justifying the course of treatment of his patient, D.B. This finding is made despite both of Petitioner's experts' testimony that there is no affirmative professional requirement that dosage and number of tablets be recorded anywhere except on a prescription. That concern is only a portion of the inadequacies of these records. However, in light of Dr. Breland's greater familiarity with all of Respondent's records and the standard of medical practice in the community, and the greater detail provided by his testimony and the explanations provided by Respondent at formal hearing, Dr. Breland's opinion that the course of treatment for this patient, isolated from all others, does not represent malpractice is accepted over Dr. Cohen's opinion that it does. T. B. (Counts II, XV) It is admitted (Requests for Admission) and found that between approximately May 1, 1982, and April 9, 1983, Respondent prescribed at least the following quantities of schedule- controlled substances to his patient, T.B.: DATE DRUG STRENGTH QUANTITY 05/01/82 Valium 05/01/82 Percodan Demi 07/10/82 " " " 30 08/14/82 " " " 08/14/82 " " " 18 08/14/82 Valium 09/11/82 Percodan 09/11/82 Valium 12/12/83 Percocet #5 Although in some respects, Drs. Breland and Cohen emphasized different faults or inadequacies of Respondent's records which they reviewed concerning T.B. (Composite P-2), both experts concur that the records do not justify the course of treatment of this patient. Dr. Cohen bases his opinion on his analysis that the history Respondent recorded for this patient was not sufficiently detailed. Specifically, the initial office visit record is flawed by only writing down patient's vital signs and recording no physical findings. Dr. Cohen stated it is unjustifiable to prescribe a narcotic analgesic on the first office visit and to continue to refill the prescription on subsequent visits without recording how the patient had done on those medications and further without recording physical examination, assessment of how the patient is responding to the medication, a plan outline for prophylactic care, and patient education. Further, both Drs. Breland and Cohen assert that although there is no affirmative professional requirement to record dosage and tablet numbers except on prescriptions, it is the custom of reasonably prudent similar physicians to record amount, dosage quantity of drugs prescribed, and method of taking drugs, and Respondent's records do not do so. Respondent's records for this patient also offend custom and usage of the profession in that they indicate several office visits for which there are no recorded findings or treatments whatsoever. Dr. Breland's opinion that the records do not justify the treatment and that they fall below the customary standard of care are based on his analysis thereof emphasizing that the records of the first office visit do not evidence a physical examination other than taking a blood pressure reading and weighing the patient. There is a brief history of migraine headaches for three months recorded and also recorded is a past diagnosis and treatment with codeine and talwin; the records note no previous surgery, no previous fracture, and no physical findings. Then, Cafergot PB #2, Valium #3 and Percodan-demi were prescribed by Respondent. The records should have specified whether or not previous treatment was successful and if it was successful, Respondent could have subsequently prescribed less addictive drugs. In Dr. Breland's opinion, it is "hard to justify" a Class II drug without trying some other modalities available. Respondent first saw this patient on May 1, 1982, for migraine headaches and prescribed Cafergot PB and Percodan-demi. He selected Percodan- demi because Percodan is habit-forming. In the course of the formal hearing, he testified, "I just didn't know another medication to go to after you pass codeine that would be effective with patients, other than giving them Demerol and the harder narcotic medications" and that when he first began seeing this patient he was less aware of the similar use of the less addictive drug, Inderal, than he is now. On the physical examination portion of his clinical notes, Respondent indicated that the patient had been using Codeine, Talwin, and "Dx" and "Rx". He then and thereafter (8/14/82 and 9/11/82) prescribed analgesics and vasoconstrictors (Cafergot PB and Ergotamine) together with the Valium because Valium, in his opinion, is often ineffective without more because of the significant emotional components of migraine headaches. Respondent also expressed his independent recollection of discussing with this patient the alternative treatment of acupuncture but admitted he did not record this instruction. Respondent's explanation is not sufficient justification for the repeated prescriptions of controlled substances in light of Dr. Breland's more knowledgeable and thorough explanation of the standards of record-keeping necessary to justify continued prescription of the particular controlled substances here at issue. Dr. Breland faults another of Respondent's prescriptions dated 12/4/82 of Cafergot PB#2 (a combination of drugs primarily containing an Ergotamine derivative and caffeine), Percocet, and Valium because Respondent's records do not show how many pills were prescribed nor do they give directions for taking them. For prescriptions on 1/8/83, 8/14/82, 9/11/82, and 2/12/83, Dr. Breland expressed as his chief concern that there was an absence of recorded physical findings, history, and blood pressure plus no recorded amount of dosage listed for most prescription drugs, but Dr. Breland also determined that prescribing Cafergot is consistent with Respondent's diagnosis of vascular headaches and his prescriptions for these dates is an appropriate lesser treatment to be tried before prescribing a Schedule II drug, and, further, that Respondent's records justify prescribing Cafergot. However, the opinion expressed in the prior sentence is not compelling in face of the records having no notations to show the effect, if any, of Cafergot or other drugs or to show why Respondent prescribed stronger medication. Dr. Breland also felt Respondent should have prescribed other less addictive drugs before going to the Schedule II-controlled substances as he did, and that if Respondent's findings were negative, he should have recorded them as negative rather than leaving the record blank, because without such records it cannot be determined if a physical examination was ever made and because in absence of recorded physical findings, no Schedule II drugs should have been prescribed. A portion of Petitioner's Composite 15, court-certified records show one "Tereza Ann Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person entered a plea of guilty to a lesser-included misdemeanor. The Circuit Court withheld adjudication and placed her on probation. The date of one of the offenses coincides with one of the dates of a prescription by Respondent to his patient, "T.B." but there is absolutely nothing in the Court documents to connect them to the "T.B." treated by Respondent, except a partial similarity of name. The court documents also charge "Donald Richard Bozeman" who has a similar name to that of another of Respondent's patients (see supra.) but the court documents do not indicate the charged individuals are married or provide any other link to Respondent's patient(s). Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, T.B., for a non-medical or criminal purpose or that the patient was drug-addicted. Tommy B. (Counts III, XV) It is admitted (Request for Admissions) and found that between approximately August 16, 1981, and February 19, 1983, Respondent prescribed at least the following quantities of schedule controlled substances to Tommy B.: DATE DRUG STRENGTH QUANTITY 08/15/81 Valium 08/15/81 Percodan 08/15/81 Dalmane 10/30/81 Tylox 12/05/81 " 12/05/81 Valium 12/06/82 Darvon compound 02/17/82 Percodan 30 04/01/82 " Demi 04/01/82 Percodan 30 05/29/82 Percodan Demi 06/21/82 Tylox 24 07/12/82 Percocet #5 30 02/19/83 Percocet 02/19/83 Valium In the course of the hearing, Respondent independently recalled that this patient presented on 8/15/81 and that Respondent himself personally recorded the notes for that date including a history, diagnosis of L-S syndrome, and treatment. On that date he observed scars on the patient's back from back surgeries which the patient related had been done at Southern Baptist Hospital in New Orleans. Respondent conceded that he failed to record the physical findings of scars and failed to record full details of the related surgeries so that at first glance it might appear to others, in this case Dr. Breland, that Respondent was only filling in a history of surgeries without making his own diagnosis. Respondent stated that he had relied on the Physician's Desk Reference, which he characterized as a "bible of the medical profession", and which recommends Percodan as a pain-killer. The treatise itself was not offered in evidence. Respondent also stated that the Percodan-based drugs he prescribed effectively relieved this patient's pain. There is no contrary evidence on this point of effectiveness but it still was not contemporaneously recorded by Respondent in the patient's record. Both Drs. Cohen and Breland opined that Respondent's records for Tommy B. did not justify the prescribing of these controlled substances, most specifically Percodan. These opinions have not been accepted for the following reasons. In the absence of any supporting evidence, Dr. Cohen's considerable testimony concerning his belief that this must have been a scam or scheme of Respondent to indirectly charge for a controlled substance prescription by requiring frequent office visits is rejected as conscientious but pure conjecture. Dr. Breland expressed concern that Percodan-demi was among the drugs prescribed by Respondent in the presence of a record notation within the physical findings which relates that "patient says he can't take Percodan". Respondent denied he made this notation, and related it is in someone else's handwriting and not true. Respondent's testimony on this score is corroborated by clear observation of the records. Most of Dr. Breland's other complaints concerning Respondent's record of this patient devolve to Dr. Breland's inability to read Respondent's handwriting and his original erroneous belief that the history and exam was chronologically incorrect and taken by someone other than Respondent. Dr. Breland's opinion that the records are deficient because the fracture of the back was not specifically recorded by Respondent's indicating whether there was an old fracture or current pain and by Respondent's not indicating whether there was thoracic or lumbar distress, and because there is no recitation of whether the fracture is pelvical or in any body of the vertebrae, and his objection to failure of Respondent to either record "no x- rays" if none or to record x-rays if there were some instead of leaving a blank space constitute technique over professional custom requirement of record- keeping. Dr. Breland also described the two month fluctuation down to Percodan- demi and then up to the stronger drug of Percocet from 4/1/82 to 2/19/83 as unjustified because no less addictive medicines had been tried and no degree of relief from less addictive drugs was attempted by Respondent, but Dr. Breland described the Percodan- based drugs and the Valium as medically acceptable where based on the degree of relief the patient had received. In such a situation Dr. Breland would use these drugs for pain treatment and consider them medically justified. Like Dr. Cohen, Dr. Breland also found unacceptable the failure of Respondent to record amounts and dosages in his office medical records, but on many occasions throughout their testimony, both of Petitioner's experts observed the requirement of listing amount and dosages is for prescriptions only and not for a doctor's office records. Upon the failure of adequate predicate for Dr. Cohen's conclusion of unjustified prescriptions, the absence of any admissible evidence of any addiction in this patient, and the only positive evidence of the effect of these prescriptions being Respondent's opinion that it was effective, the opinions of both Drs. Cohen and Breland that the medical records do not justify the course of treatment of Tommy B. are rejected. J. C. (COUNTS IV; XV) It is admitted (Requests for Admissions) and found that between January 4, 1982, and February 26, 1983, Respondent prescribed at least the following schedule-controlled substances to J.C.: DATE DRUG STRENGTH QUANTITY 01/04/82 Percodan 24 03/23/82 Tylox 30 04/17/82 Percodan 04/17/82 " " 05/01/82 Tylenol #4 30 05/01/82 Valium 30 05/04/82 Tylox 30 06/12/82 Valium 06/16/82 Tylox 36 07/17/82 " 30 08/14/82 " 30 10/03/82 " 30 10/30/82 Tylenol #4 11/13/82 Percodan 30 01/15/83 Percocet 01/15/83 Valium 28. J.C.'s chief complaint was migraine headaches, "nerves", and back trouble. Respondent prescribed Percodan for pain, Valium for "nerves", and Cafergot-pb for migraines. He diagnosed hypertensive heart disease, anxiety neurosis, migraine headaches, and lumbosacral syndrome. He only used Percodan four times over a year's period due to the severity of the symptoms brought on by the tug and strain on this 200-pound woman's back. Dr. Cohen ranks the relatively minimal fault of writing progress notes in two corners and across the top and side of a page in the same category as overprescribing. Dr. Cohen's concern over the absence of recorded physical findings for this patient was not confirmed by Dr. Breland (see infra.) and his concern because the number and dosage of Cafergot-pb (non-scheduled), Valium (scheduled) and Percodan (scheduled) were frequently not recorded by Respondent is less significant in light of Dr. Breland's testimony that the best custom and practice of the medical profession is to record these matters but such recordation is not required for office records but only for prescriptions. Dr. Cohen also faulted Respondent for prescribing symptomatically with no effort to educate the patient to prevent or "prophylax" against migraines or to prescribe common anti- inflammatory medications usually prescribed for migraines. Dr. Breland noted that Tylenol #4 is a controlled substance but made no specific objection to Respondent's prescription of it for this patient. Cafergot-pb is not a controlled substance and its prescription by Respondent was not faulted by Dr. Breland. All of Dr. Breland's testimony on this patient is couched in vague terms of "it is hard to justify" Respondent's prescription of Percodan and Percocet on just this work-up and Dr. Breland felt Respondent's prescription of Percodan on the first visit was not justified without obtaining a further medical history, but he would have approved eventual (not first visit) use of Percodan for this patient's migraine headaches if it were not for the presence of hypertensive heart disease or her neurosis. Although the records fail to state why Percodan-based drugs were used, Dr. Breland felt these drugs would have been appropriately prescribed for the lumbosacral syndrome. By comparison, J.C's recorded medical history is more extensive than that of most of the patient records involved in this action. The history taken by Respondent lists previous surgery of a hysterectomy, of a previous fracture to the left hip, and of a tonsillectomy. Also given is an elevated blood pressure of 160 over 100, height and weight, state of parity, and diagnoses. The date of her last period and of her hysterectomy are not given. Petitioner's two expert witnesses each would have made separate and different judgment calls on all prescriptions here related, except that each concurs that Respondent's initial prescription of Percodan on this patient's first visit was unjustified without a further recorded history; therefore, Dr. Breland's summation that the records justify overall treatment of this patient is accepted. L. C. (COUNTS V; VI; XV) It is admitted (Requests for Admission) and found that between approximately March 27, 1978, and April 23, 1983, Respondent prescribed at least the following quantities of schedule-controlled substances to L.C.: DATE DRUG STRENGTH QUANTITY 03/27/78 Darvon Compound 07/21/78 Darvon 07/21/78 Darvon Compound 07/21/78 Valium 10/23/79 Percodan 10/31/79 Preludin 11/17/80 Preludin 11/28/81 Darvon Compound 12/28/81 Percodan 24 01/14/82 " " 30 04/02/82 " " 36 06/08/82 " " 36 07/17/82 " " 36 08/28/82 " " 36 09/25/82 " " 24 09/25/82 Darvon Compound 12/03/82 Percodan 30 01/15/83 " " Dr. Cohen's opinion that there had been prescription of an amphetamine drug for an unjustified purpose and that the patient's records did not justify the Respondent's prescribed course of treatment is rejected as partially predicated upon inadmissible and unadmitted exhibits. The opinion of Dr. Breland is accepted that most of these prescriptions as only part of the course of treatment as a whole were acceptable. More particularly, Dr. Breland indicated there are other doctors similarly geographically situated who use Percodan similarly; there was a very adequate history taken, although the date appears out of order on the page; Respondent's early prescribing of Roboxin and Darvon (one of the less addictive controlled substances) would be a good treatment for osteoarthritis which was part of Respondent's diagnosis of this patient; there was not enough Percodan prescription here for Dr. Breland to say it was not justified in this patient's case. Dr. Breland was unsure when Preludin became a scheduled substance and so would not comment on that aspect of the case. This is an issue of law and is discussed under "Conclusions of Law." T. G. (COUNTS VII; XV) Between approximately July 23, 1978, and April 26, 1983, Respondent treated a patient by the name of T.G. During that period, the stipulated records reveal at least the following prescriptions, among others: DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 7/23/78 30 Percodan 7/23/78 Darvon Compound 9/21/78 Percodan 10/14/78 Percodan 10/14/78 Darvon Compound 11/21/78 24 Percodan 11/21/78 Darvon 12/6/78 30 Percodan 12/6/78 Darvon Compound 12/28/78 Percodan 12/28/78 Darvon 1/23/79 Qualudes 1/29/79 24 Percocet 1/19/82 24 Percocet 3/4/82 Valium 3/4/82 Percodan 4/29/82 Percocet 8/19/82 Percodan 8/19/82 Valium 10 mg 9/25/82 Valium 9/25/82 Percocet 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Percocet 10/14/82 40 Valium 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Valium 10/14/82 40 Percocet #5 10/14/82 40 Percocet 10/14/82 40 Valium Additionally, the Respondent occasionally prescribed Tetracycline and Actifed Syrup for colds, and the parties have stipulated these are not controlled substances. Although Dr. Breland tagged Respondent's use of Roboxin 750, Percodan 30, Darvon compound and Prednisone (a Cortisone- like anti-inflammatory) on the first visit as "borderline acceptable," it was his and Dr. Cohen's mutual opinions that in the absence of recorded physical findings, the Respondent's prescribing of controlled substances in these quantities and with this frequency to this patient was not justified by the records Respondent kept. Dr. Breland, in particular, found unacceptable the Respondent's diagnosis of lumbosacral syndrome without detailed physical findings or any x-ray diagnosis, and both experts took exception to the continued and repeated prescriptions of the addictive drugs, Valium and Percodan, in a case where Respondent's records repeatedly indicate a good response. Both further opined against Respondent's delayed attempt to diminish the use of these addictive drugs. The doctors' opinion that the records do not justify the prescriptions are accepted. DAVID G. (Counts VIII; XV) The stipulated records reveal at least the following controlled substances were prescribed by Respondent to his patient, David G., between December 17, 1981, and February 12, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 12/17/81 Ativan 12/30/81 Ativan 2/12/82 Valium 3/06/82 Seconal 3/11/82 Valium 4/08/82 Seconal 8/28/82 Seconal 8/28/82 Valium Respondent saw this patient 12 times in approximately 2 years and accepted David G.'s representation that he had been previously prescribed Ativan, a controlled substance of the same chemical family as Valium. Although Respondent claims he verified all prior medications, the verification here is not reflected in his record. The records themselves do not reflect for most occasions why this patient was being treated nor do they set forth an assessment of why Respondent switched from less to more addictive sedative hypnotics. Ativan is a tranquilizer on Schedule III. Seconal is a sedative on Schedule II. In an isolated response, Dr. Breland testified that if the Respondent's initial diagnosis of insomnia and anxiety neurosis had been arrived at after taking a proper history and after a proper physical examination which was not recorded, he would not find Respondent's use of these medications, including Seconal, improper, because there are doctors in the same geographical area who would also use Seconal. However, the ultimate opinion of both of Petitioner's experts is accepted that in the absence of a recorded initial physical examination and a recorded history beyond merely recording height and weight and an unverified former medical treatment, the course of this patient's treatment was not justified by the records kept. DAN G. (Counts IX; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, Dan G., Jr., between January 9, 1979, and April 22, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 01/09/79 Percodan 02/22/79 Talwin (50 mg) 11/18/81 Percodan 11/30/81 Percodan 01/02/82 Percodan 01/19/82 Percodan 02/05/82 Percodan 03/30/82 Percodan 04/12/82 Percodan 05/01/82 Percodan 05/01/82 Valium 05/18/82 24 Percodan 06/05/82 Valium 06/22/82 Percodan Demi 06/22/82 Darvon Compound 06/22/82 Valium 07/24/82 Percodan 07/24/82 Valium 08/28/82 Percodan Demi 08/28/82 Valium 09/25/82 Percodan 09/25/82 Valium 10/30/82 Valium 10/30/82 Percodan 12/03/82 Percodan 02/19/83 Percocet 03/26/83 Percodan 03/26/83 Valium 04/22/83 Tylox 04/22/83 Valium Respondent's records for this single patient sometimes specify "Jr." and sometimes do not. The initial record indicates a surgical incision along the lateral aspect of both femurs and pain on palpation of both hips, and records a history of total hip arthroplasty (two total hip replacements) in 1979 with the patient evidencing pain secondary to a post-operative procedure to correct aseptic necrosis of both femurs. At formal hearing, Respondent stated that this patient first presented in a wheel chair and returned frequently, due to chronic pain and was already on Demerol when first seen by Respondent. The chronic pain was not always repeatedly recorded in Respondent's records. Both of Petitioner's experts concede that prescriptions of Percodan would be consistent if that were all that were relieving the pain when the patient presented to Respondent, and Dr. Cohen opined that Percodan and Talwin were possibly consistent with aseptic necrosis of a femur. Respondent had admitted (R-1), a hospital summary of subsequent surgery (conversion of left total hip arthoplasty to girdlestone on 8/19/83) at the Veteran's Administration Hospital in Gainesville. This exhibit of subsequent surgery corroborates the previous 1979 history taken by Respondent which indicated that medications on discharge from the VA Hospital included Demerol 50 mg. po q 4h prn for pain. In light of no evidence of patient addiction and no evidence of poor response by this patient to Respondent's prescribing and treatment, the opinions of Dr. Breland and Dr. Cohen that Respondent's prescribing was excessive and necessarily addictive and therefore was unjustified are rejected, however the undersigned accepts their mutual opinions that the Respondent's records by themselves without the subsequent corroboration of the VA Hospital report do not justify the treatment Respondent administered to Dan G. Respondent admits R-1 was not relied on in treating this patient. C. R. (Counts X; XI; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, C.R., between July 3, 1978, and April 22, 1983: 2/ DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCES 07/03/78 Percodan 07/03/78 Percodan Compound 07/20/78 30 Percodan 08/14/78 30 Percodan 11/01/78 30 Percodan 12/05/79 Desoxyn 12/05/79 Percodan 01/02/79 Desoxyn 02/05/79 Percodan 02/12/79 18 Percodan 03/28/79 Percodan 04/16/79 Percodan 05/03/79 Percodan 05/17/79 Percodan 05/17/79 Darvon Compound 05/17/79 Percodan 05/17/79 Darvon Compound 06/14/79 6 Percodan 06/14/79 24 Desoxyn 09/18/79 Desoxyn 10/04/79 Percodan 11/10/79 Preludin 01/28/80 P 06/12/80 Preludin (75 mg.) 09/18/80 Preludin (75 mg.) 11/17/80 Percodan 01/27/81 Darvon Compound 04/27/81 Percodan 07/28/81 Percodan 08/31/81 24 Percodan 09/21/81 24 Percodan 12/16/81 Percodan 01/06/82 Percodan 01/29/82 Percodan 03/02/82 Percodan Demi 03/02/82 03/28/82 Percodan 04/20/82 Percodan 05/13/82 06/04/82 Percodan Demi 07/03/82 Percodan Demi 08/03/82 36 Percodan Demi 08/28/82 Percodan 08/28/82 Valium 12/20/82 24 Percocet 5 12/20/82 30 Valium (10mg) 01/15/83 6 Tylenol #6 01/22/83 Percodan Preludin and Desoxyn are amphetamine drugs. Desoxyn was legitimately prescribed for weight control in 1978. Respondent's prescription of both drugs was ostensibly to modify the amount of weight supported by the patient's leg bones. Dr. Breland is not sure whether both drugs were reclassified for control in 1979 or not but this is an issue of law resolved in "Conclusions of Law" supra. Despite Dr. Breland's testimony that if he did not have to base his opinion on the Respondent's inadequate recorded history and findings, he would term the prescribing of Percodan and Roboxin as recorded to be borderline acceptable, the undersigned accepts his and Dr. Cohen's mutual opinion that the frequent prescriptions of Percodan, Percodan- demi or Percocet (narcotic analgesics) for the Respondent's recorded diagnosis of arthritis and right leg pain resulting from previous right thigh surgery are unjustified by the records. Their respective opinions that this pattern of prescribing was excessive and unjustified in light of the potentially addictive nature of these drugs is also accepted. B. W. (Counts XII; XIII; IV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, B.W. between June 7, 1979, and January 29, 1983. 3/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/01/79 Valium 10/15/79 Tylenol #3 06/19/80 Tylenol #3 06/08/81 Ritalin (20mg) 08/11/81 Valium 08/15/81 Valium 09/15/81 Talwin 11/14/81 Talwin 12/07/81 24 Ritalin (20 mg) 12/20/81 Talwin 01/23/82 Talwin 02/12/82 Percodan Demi 02/27/82 Tylenol #4 03/04/82 Ritalin 03/18/82 Percodan Demi 04/02/82 30 Talwin 07/03/82 24 Ritalin 08/28/82 30 Ritalin 09/22/82 24 Percodan 10/14/82 Talwin (50mg) 12/21/82 24 Percodan 01/29/83 Tylox Ritalin is a sympathomimetric amine drug, which may only be properly prescribed in certain types of cases more specifically set out in the following "Conclusions of Law." Respondent's diagnosis, that this patient had chronic anxiety and back pain, is reflected in his written records. This is essentially the only recorded history on this patient. Respondent did not record a diagnosis of narcolepsy. Respondent did, however, introduce R-2, a consultation report to a Dr. Yankovich dated 1/5/82 from a Dr. Elzawahry which states the impression: "narcolepsy; low back syndrome. . . maintain on Ritalin 10 mg. po tid." Respondent testified that he had received similar information concerning the narcolepsy and psychiatric disturbance earlier than 1/5/82 first by telephone and then by written reports thereon from consulting neurologists, surgeons, and psychiatrists, and that through inadvertence this document was not turned over to Petitioner's investigator. However, Respondent did not explain why his files did not contain these other consultants' reports or why he did not write-up their contents or the dates they were received by him or why his prescriptions of 20 mg were so much greater than those recommended by Dr. Elzawahry. Dr. Breland felt that if Respondent were aware when he first prescribed Ritalin to this patient that the consultant had recommended it because of a good response, then Respondent's Ritalin prescriptions would be justified. It was also noted by Dr. Breland that Ritalin once was believed by the medical profession to be appropriately prescribed in the treatment of depression but that method had ceased and was statutorily proscribed by the time periods in question. Dr. Breland's expert opinion on prior belief of the medical profession is accepted. His conclusions of law invade the province of the hearing officer and are rejected in part and accepted in part as set out in the "Conclusions of Law." Dr. Breland did not feel under the circumstances that the Ritalin was contraindicated. Accordingly, Dr. Cohen's testimony that Ritalin is very dangerous if prescribed for chronic anxiety and depression is hereby discounted in that unlike Dr. Breland, he did not have the benefit of R-2 when testifying by earlier deposition. Dr. Cohen felt Valium was useful for chronic anxiety and that Tylenol #3 and Talwin were useful for pain but that there were excessive prescriptions of these drugs with few or no notations indicating any pain. In most instances all that is noted in Respondent's records on this patient is a prescription listed beside the date. Dr. Breland remarked that even the forms used by Respondent did not include a space for physical findings. J. M. (Counts XIV; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, J. M., between October 25, 1980, and March 9, 1982: 4/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/25/80 Percodan 01/05/81 Percodan 05/19/81 Emprin #4 06/03/81 Emprin #4 07/29/81 18 Percodan 09/25/81 12 Percodan 09/25/81 18 Tylenol #3 11/07/81 24 Tylox 11/21/81 Percodan 12/17/81 Percodan 01/02/82 Percodan 02/22/82 Percodan 03/09/82 Percodan The records of history and findings on this patient are reasonably complete and were faulted by Dr. Breland mostly because without appropriate dates one cannot tell if the history was taken on the initial visit as it should have been or later, and because the dates given are frequently out of order. In Dr. Breland's opinion, some of the modes of therapy utilized by Respondent were not of his choice but Dr. Breland only seriously objected to Respondent's continued and excessive use of Percodan as unsafe. Dr. Cohen's opinion was that the Respondent's conduct constituted mal- prescribing over malpractice. Dr. Breland's opinion was that Respondent's overall conduct with regard to these eleven patients constituted malpractice in that it was the failure to practice medicine with that level of care, skill and treatment of a reasonably prudent similar physician, under similar circumstances. Dr. Breland has had the benefit of reviewing all of Respondent's exhibits and he practices in the same geographical locale as Respondent. His opinion in this regard is accepted as to the overall pattern of practice with these eleven patients, despite his previous opinions that specific cases might not evidence malpractice.
The Issue The issues in these three consolidated cases are whether Respondent, Jerome F. Waters, M.D., committed the violations alleged in three Administrative Complaints filed by Petitioner, the Department of Health, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties Petitioner, the Department of Health (hereinafter referred to as “Petitioner” or “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. Respondent, Jerome F. Waters, M.D. (hereinafter referred to as “Respondent”) is, and has been at all times material to these consolidated cases, a physician licensed to practice medicine in Florida, having been issued license number ME 7236. Respondent graduated from New York University Medical school 48 years ago and did four years of a general surgical residency. He is not board-certified although he is board eligible in general surgery. Respondent had only one medical malpractice lawsuit against him and that was in 1964. The Administrative Complaints in these consolidated cases are the first license discipline cases against Respondent. Respondent has had a long and distinguished medical career. He has been in private practice in Miami, Florida, since 1961 and he has been at the same location for the last 23 years. He currently has a general medical practice, although he also still practices surgery. Twenty-five percent of his practice comprises Medicaid patients and 30 percent comprises Medicare patients. Respondent had about 125 AIDS patients at the time of the emergency restriction of his practice. Respondent became interested in treating patients with pain as a result of his surgical practice. Approximately twenty-five percent of his practice is devoted to pain management. Respondent's pain practice grew as a result of a few patients from Broward County in 1996 who recommended other "pain patients" to Respondent. Respondent admits that because of his “compassion for his patients” he was probably more indulgent than he should have been with his pain patients. Respondent acknowledges that his medical record documentation was poor. He concedes that he relied too much on his memory and had a tendency to write down only special negatives or positives in his findings. Respondent also often omitted information in his medical records that he thought might be stigmatizing or embarrassing to the patient. He tried to rely on his memory regarding such matters. Respondent often has been reluctant to refer his patients to consultants because of their economic constraints. Applicable rules The Board of Medicine has adopted rules that contain standards for the use of controlled substances for the treatment of pain. Those standards include Florida Administrative Code Rule 64B8-9.013(3), which read as follows at all times material to these consolidated cases: Guidelines. The Board has adopted the following guidelines when evaluating the use of controlled substances for pain control: Evaluation of the Patient. A complete medical history and physical examination must be conducted and documented in the medical record. The medical record should document the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse. The medical record also should document the presence of one or more recognized medical indications for the use of a controlled substance. Treatment Plan. The written treatment plan should state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and should indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician should adjust drug therapy to the individual medical needs of each patient. Other treatment modalities or a rehabilitation program may be necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment. Informed Consent and Agreement for Treatment. The physician should discuss the risks and benefits of the use of controlled substances with the patient, persons designated by the patient, or with the patient’s surrogate or guardian if the patient is incompetent. The patient should receive prescriptions from one physician and one pharmacy where possible. If the patient is determined to be at high risk for medication abuse or have a history of substance abuse, the physician may employ the use of a written agreement between physician and patient outlining patient responsibilities, including, but not limited to: Urine/serum medication levels screening when requested; Number and frequency of all prescription refills; and Reasons for which drug therapy may be discontinued (i.e., violation of agreement). Periodic Review. At reasonable intervals based on the individual circumstances of the patient, the physician should review the course of treatment and any new information about the etiology of the pain. Continuation or modification of therapy should depend on the physician’s evaluation of progress toward stated treatment objectives such as improvement in patient’s pain intensity and improved physical and/or psychosocial function, i.e., ability to work, need of health care resources, activities of daily living, and quality of social life. If treatment goals are not being achieved, despite medication adjustments, the physician should reevaluate the appropriateness of continued treatment. The physician should monitor patient compliance in medication usage and related treatment plans. Consultation. The physician should be willing to refer the patient as necessary for additional evaluation and treatment in order to achieve treatment objectives. Special attention should be given to those pain patients who are at risk for misusing their medications and those whose living arrangements pose a risk for medication misuse or diversion. The management of pain in patients with a history of substance abuse or with a comorbid psychiatric disorder may require extra care, monitoring, documentation, and consultation with or referral to an expert in the management of such patients. Medical Records. The physician is required to keep accurate and complete records to include, but not be limited to: The medical history and physical examination; Diagnostic, therapeutic, and laboratory results; Evaluations and consultations; Treatment objectives; Discussion of risks and benefits; Treatments; Medications (including date, type, dosage, and quantity prescribed); Instructions and agreements; and Periodic reviews. Records must remain current and be maintained in an accessible manner and readily available for review. Compliance with Controlled Substances Laws and Regulations. To prescribe, dispense, or administer controlled substances, the physician must be licensed in the state and comply with applicable federal and state regulations. Physicians are referred to the Physicians Manual: An Informational Outline of the Controlled Substances Act of 1970, published by the U.S. Drug Enforcement Agency, for specific rules governing controlled substances as well as applicable state regulations. Florida Administrative Code Rule 64B8-9.003, on the subject of the adequacy of medical records, read, in pertinent part, as follows at all times material to these consolidated cases: Medical records are maintained for the following purposes: To serve as a basis for planning patient care and for continuity in the evaluation of the patient’s condition and treatment. To furnish documentary evidence of the course of the patient’s medical evaluation, treatment, and change in condition. To document communication between the practitioner responsible for the patient and any other health care professional who contributes to the patient’s care. To assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient. A licensed physician shall maintain patient medical records in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken or why an apparently indicated course of treatment was not undertaken. The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. All entries made into the medical records shall be accurately dated and timed. Late entries are permitted, but must be clearly and accurately noted as late entries and dated and timed accurately when they are entered into the record. However, office records do not need to be timed, just dated. Relevant Drugs Methadone is a legend drug and is a Schedule II controlled substance listed in Chapter 893, Florida Statutes.1 Methadone is indicated for the relief of severe pain, for detoxification treatment in cases of narcotic addiction, and for the temporary maintenance treatment of narcotic addiction. Methadone can produce drug dependence of the morphine type. Psychological dependence, physical dependence, and tolerance may develop upon repeated administration of methadone. Xanax is a legend drug and it contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Alprazolam is a Benzodiazepine Anxiolytic, and the abuse of Alprazolam can lead to physical and psychological dependence. Xanax is indicated for the short-term relief of symptoms of anxiety. It produces additive CNS (Central Nervous System) depressant effects when co-administered with other CNS depressants. Oxycontin is a legend drug and it contains Oxycodone, a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Oxycodone is a narcotic analgesic indicated for the relief of moderate to moderately severe pain, and carries a high potential for abuse which may lead to severe physical and psychological dependence. Dilaudid is a legend drug and it contains Hydromorphone, a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Hydromorphone is a powerful narcotic analgesic indicated for the relief of moderate to severe pain, and carries a high potential for abuse and dependence. Abuse of hydromorphone may lead to severe physical and psychological dependence. Soma (Carisoprodol) is a legend drug and it is a muscle relaxant used as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with acute, painful musculoskeletal conditions. The effects of Carisoprodol and other drugs that depress the CNS may be additive, and Soma should be prescribed with caution to patients taking other CNS depressant medications, such as narcotics, benzodiazepine anxiolytics and tranquilizers, and barbiturates. Fiorinal with Codeine is a legend drug and it contains Codeine and Butalbital, both Schedule III controlled substances listed in Chapter 893, Florida Statutes. Codeine is a narcotic analgesic indicated for the relief of moderate to severe pain, and carries a significant potential for abuse and dependence. Butalbital is a barbiturate sedative which also carries a significant potential for abuse and dependence. Fiorinal with Codeine is indicated for the treatment of tension headaches. Keflex (Cephalexin) is a semi-synthetic cephalosporin antibiotic intended for oral administration. MS Contin is a legend drug and it contains Morphine Sulfate USP, a Schedule II controlled substance listed in Chapter 893, Florida Statutes, which is indicated for the relief of moderate to severe pain. Morphine has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Abuse of Morphine may lead to severe psychological or physical dependence. Restoril contains Temazepam, a schedule IV controlled substance indicated for the relief of insomnia. The abuse of Temazepam can lead to physical or psychological dependence. Vicodin is a legend drug and it contains Hydrocodone Bitartrate, a Schedule III controlled substance listed in Chapter 893, Florida Statutes. Hydrocodone is a narcotic analgesic indicated for the relief of moderate to severe pain, and is also used as an antitussive (cough suppressant). Hydrocodone carries a high potential for abuse and dependence. General facts about Respondent's medical records Respondent's medical records for each of the patients whose treatment forms the basis for the administrative complaints in these consolidated cases included an office cover sheet with a patient name. However, the individual records following the cover sheet contained no patient names. The patient's name should be on each page of medical records for that patient. Physicians are taught in medical school to use a variation of the S.O.A.P. method for creating medical records. S.O.A.P. is an acronym standing for Subjective, Objective, Assessment, and Plan. The basic elements of the S.O.A.P. method should be present in the records of each patient visit. In the medical records prepared by Respondent during the course of his treatment of the six patients at issue in these consolidated cases, more often than not some elements of the S.O.A.P. method were omitted. Many of Respondent's entries in these records are insufficient because they omit information required by the S.O.A.P. method. Admitted Facts regarding Patient S.T. (Case No. 2002-26343) On or about December 5, 2000, Patient S.T., a 46-year- old female, first presented to Respondent with complaints of back and neck pain, bronchitis, chronic hepatitis B, bipolar illness, lupus discoid and seizure disorder. According to Patient S.T.’s medical records, Patient S.T. had a history of being treated with controlled substances, including Dilaudid. Based on his impression that Patient S.T. was suffering from severe asthmatic bronchitis, seizures, and lupus and needed immediate care, Respondent directed Patient S.T. to the local emergency room, where she remained in the hospital until December 9, 2000. Various tests were performed on Patient S.T. including a complete blood count (CBC) and an electrocardiogram (EKG). On or about December 11, 2000, Patient S.T. presented to Respondent and Respondent prescribed Albuterol and a Nebulizer for her bronchitis. On or about January 15, 2001, Patient S.T. returned to Respondent’s’ office. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 90 Dilaudid, 4 mg 60 Xanax, 2 mg 180 Fiorinal #3 On or about February 13, 2001, Respondent saw Patient S.T. Patient S.T.’s records, for the February 13, 2001 visit, do not indicate the reason for the Keflex. During the course of that visit, Respondent prescribed Soma and Fiorinal #3 to Patient S.T. without documenting the presence of one or more recognized medical indications for the use of controlled substances, and without documenting a treatment plan for Patient S.T. On or about February 26, 2001, Patient S.T. presented to Respondent. On or about March 13, 2001, Patient S.T. visited Respondent and complained of urinary incontinence and heartburn. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 90 Soma, 350 mg Dilantin Fiorinal #3 90 Dilaudid, 4 mg On or about April 12, 2001, Respondent prescribed the following drugs to Patient S.T.: 90 Soma, 350 mg 60 Xanax, 2 mg 120 Fiorinal #3 120 Methadone, 10 mg On or about April 12, 2001, Respondent initially prescribed 90 Dilaudid, 4 mg, but then crossed this prescription out and substituted Methadone instead. On or about May 10, 2001, Patient S.T. returned to Respondent’ office. During the course of that visit Respondent prescribed the following drugs to Patient S.T.: 60 Soma, 350 mg 60 Xanax, 2 mg 100 Firoinal #3 120 Methadone, 10 mg On or about May 10, 2001, Respondent also prescribed Cipro and Prednisone, 10 mg, for an apparent skin condition affecting Patient S.T.’s legs. On or about June 7, 2001, Respondent saw Patient S.T. again. During this visit, Respondent noted that Patient S.T. suffered from edema (excess fluid in cells and tissues). Respondent failed to document any other physical examination of Patient S.T. during the course of the June 7, 2001, visit. On or about June 7, 2001, Respondent treated Patient S.T.’s edema. On or about June 7, 2001, Respondent failed to document any explanation or adequate medical justification for prescribing 60 Xanax, 2 mg, 100 Fiorinal #3 and 120 Methadone, 10 mg to Patient S.T. On or about July 6, 2001, Patient S.T. returned to Respondent at which time he prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Firoinal #3 150 Dilantin, 100 mg 120 Methadone, 10 mg On or about August 3, 2001, Patient S.T. returned to Respondent. Respondent's medical records regarding S.T.'s August 3, 2001, visit do not reflect that there was a discussion of risks and benefits of using controlled substances. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Fiorinal #3 180 Dilantin, 100 mg 120 Methadone 10 mg On or about September 12, 2001, Respondent prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Fiorinal #3 120 Methadone 10 mg On or about September 17, 2001, Patient S.T. presented to Respondent for a final time. During the September 17, 2001, visit, Patient S.T. complained of cellulitis (inflammation of tissue) to her abdomen. During the September 17, 2001 visit, Respondent treated Patient S.T.’s cellulitis with ointment and Tequin (an antibacterial agent). Additional Facts regarding Patient S.T. (Case No. 2002-26343) During her hospitalization, Patient S.T.'s treatment included Atrovent with Ventolin. Patient S.T. remained in the hospital until December 9, 2000, when she was discharged with directions to follow up with Respondent. Contained within the medical file for Respondent are copies of magnetic resonance imaging (MRIs) for the lumbar spine (dated January 17, 2000), the brain (dated January 12, 2000) and the neck (dated January 17, 2000). The MRI of the brain was normal but the MRIs of the neck and low back showed disc herniations, among other changes. An echocardiogram was also performed on January 12, 2000 that stated “if a significant valvular lesion is still being considered, correlation with a cardiac Doppler examination is recommended.” There is no medical record concerning Patient S.T.'s visit to Respondent's office on December 11, 2000. There is only a copy of the prescription written that day with some notes written on the bottom of the prescription. Respondent's record for the January 15, 2001, visit with Patient S.T. consists basically of a list of prescription drugs. There is no documented subjective complaint, objective result, assessment, or treatment plan. There are also no notes concerning the treatment in the hospital or concerning the test results from January 2000. On January 15, 2001, Respondent prescribed 90 Dilaudid 4 mg, 60 Xanax 2 mg, 180 Fiorinal #3, Dilantin, Soma and Phenergen to Patient S.T. Respondent failed to document why any of these medications were prescribed. On February 13, 2001, Patient S.T. presented to Respondent. Respondent noted that the patient was getting Keflex (an antibiotic) on her own. Respondent’s records do not indicate any inquiry concerning how she was obtaining Keflex on her own or the reason for the Keflex. On the February 13, 2001 visit, Respondent noted pharynx infected and no evidence of thrush. Respondent then prescribed Soma 350 (now three times per day), Cipro 500, an inhaler and Fiorinal #3 to Patient S.T. Presumably, the Cipro (an antibiotic) was prescribed for some infection, but there are no notes indicating this. On February 13, 2001, Respondent prescribed Soma, Cipro, and Fiorinal #3 to Patient S.T. without documenting an assessment or treatment plan for Patient S.T. Respondent prescribed Soma and Fiorinal #3 to Patient S.T. without documenting the presence of one or more recognized medical indications for the use of controlled substances. Respondent does not indicate why he increased the Soma. On February 13, 2001, Respondent noted that he wrote a prescription for Neurontin 400 but then put a note over that that says “hold.” There is no explanation in the record for this change in treatment nor is there a reason why the Neurontin was prescribed initially. On February 26, 2001, Patient S.T. presented to Respondent. Respondent noted that Patient S.T.’s Dilantin level was low, noted a recent seizure, and noted that there were extreme sores with two arrows pointing downward. Respondent then switched the patient to Tequinn (another antibiotic) without any explanation for the switch. There were no other subjective or objective complaints listed. Respondent failed to record an assessment or treatment plan other than to “do Dilantin level.” Respondent failed to document any medical reasons for doing a Dilantin level check if Respondent already knew the Dilantin level was low. On March 13, 2001, Respondent prescribed #90 Soma 350 mg, Dilantin, Paxil, Xanax 2.0 mg, 90 Dilaudid 4 mg, Fiorinal #3, Phenergen, a Nebulizer and Neurontin to Patient S.T. There are no explanations for the prescribing of these drugs. There is no assessment, other than of the skin condition, and no written plan concerning the prescriptions given. On March 13, 2001, Respondent also prescribed a trial of Lithium 450. There were no subjective or objective complaints concerning the reason Respondent prescribed this drug. There is no assessment or plan concerning the prescription of this drug. Lithium can be prescribed for psychiatric diagnoses but there are no notes indicating why Respondent is prescribing this drug. On April 12, 2001, Patient S.T. returned to Respondent. Respondent noted in Patient S.T.’s records that the DEA (Drug Enforcement Agency) “confiscated some of her meds” which were in a friend’s house. Respondent did not note any follow-up, plan, or inquiry concerning the note that the DEA confiscated Patient S.T.’s medications. Respondent noted that Patient S.T. should try to take the Lithium and that she needed a right ankle brace. There are no subjective or objective complaints in this note. There is also no assessment or plan, other than to try to take Lithium. The medical records for the visit on April 12, 2001, do not contain any explanation as to why Respondent prescribed any of the controlled substances he prescribed during that visit. It is clearly a “red flag” when a patient informs a doctor that the DEA has confiscated her medications. When this type of event occurs, it is inappropriate and egregious for the physician to prescribe controlled substances like the ones Respondent prescribed on April 12, 2001, without inquiry and investigation into the circumstances. On May 10, 2001, Patient S.T. returned to Respondent’s office. Respondent noted that Patient S.T. was non-diabetic. Respondent then prescribed Cipro and Prednisone 10 mg for the sores on the lower limbs. There is no explanation why Respondent switched the patient back to Cipro. There are no documented subjective or objective complaints concerning the legs other than that there were sores. There was no adequate assessment of the legs. The rest of Respondent’s medical record for May 10, 2001, is basically a list of prescriptions. There is no written explanation for the prescriptions, no assessment, and no plan concerning their use. On July 6, 2001, Patient S.T. returned to Respondent. Respondent listed Patient S.T.’s conditions on the side of his record. These conditions were: lupus, hepatitis, bronchitis, herpes simplex, proven non-diabetic, edema and seizure disorder. Respondent notes a plan to do a complete blood count (CBC) and Dilantin level. The rest of the record is a list of prescriptions. During the visit on July 6, 2001, Respondent prescribed controlled substances without documenting any medical complaints by the patient. There are no subjective or objective complaints. There is no assessment or plan concerning the drugs prescribed. Respondent prescribed controlled substances to Patient S.T. without documenting that he discussed the patient’s chronic pain with her (if she had any). Respondent's medical records for Patient S.T.'s visit on August 3, 2001, do not contain any subjective or objective complaints. Also there is no assessment or plan concerning the drugs prescribed that day. On September 12, 2001, Patient S.T. returned to Respondent. Respondent wrote in Patient S.T.’s record abbreviations for Glucosamine and Chondroitin. There is no other note other than a weight recorded for this visit. However, contained within Respondent’s medical file are copies of some of his prescriptions. These copies indicate that Respondent prescribed 60 Xanax 2 mg, 100 Fiorinal #3, Methadone 10 mg on this visit. On the prescription form itself, Respondent indicated that the Fiorinal was for headaches and the Methadone for pain. There are no notes at all in the medical record about these prescriptions or why they were prescribed. Further, Respondent’s medical records for September 12, 2001, fail to indicate why the Xanax was prescribed. The medical records do not contain any subjective or objective complaints. There is no assessment or plan. It is not sufficient to write instructions and the rationale for prescribing a drug on the prescription form only. A physician should document in the medical record the prescription, the dosing, and the reason why the drug is being prescribed. Respondent failed to do this on September 12, 2001. On September 20, 2001, Patient S.T. died. An autopsy was performed and the cause of death was determined to be acute polydrug toxicity (Fentanyl, Codeine, Methadone, Oxycodone, Butalbital, and Alprazolam or Xanax). Butalbital is a component of Fiorinal. The Miami-Dade County medical examiner’s report indicated that Patient S.T. had a history of drug abuse since aged 20. The toxicology report indicated that Patient S.T. had fatal doses of Fentanyl, Oxycodone and Codeine in her system. Respondent violated the statutory standard of care2 by failing to adequately address the etiology of Patient S.T.’s pain, by prescribing controlled substances without adequate medical justification, and by failing to set up a treatment plan concerning the prescribing of controlled substances. Respondent’s actions were particularly egregious following the DEA seizure of the patient’s medication. Respondent also violated the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control.3 Respondent failed to keep adequate medical records justifying the course of treatment by failing to document an appropriate plan concerning the controlled substances and by failing to document the justification for the controlled substances he prescribed. Respondent failed to keep adequate medical records documenting the source of any alleged pain and failed to document adequate progress notes. Respondent inappropriately prescribed controlled substances to Patient S.T. Respondent inappropriately increased the Soma without noting any reason or discussion concerning this increase. Respondent also inappropriately prescribed medications by discontinuing the Dilaudid and prescribing the Methadone without justification or explanation. Finally, Respondent inappropriately prescribed controlled substances to Patient S.T. after learning that the DEA had seized her medications.4 Admitted Facts regarding Patient C.C. (Case No. 2002-26342) On or about August 2, 2001, Patient C.C., a 45-year- old male, first presented to Respondent with a history of several injuries including a left and right hip replacement, a left ankle fusion, and a right ankle compound break. According to Patient C.C.’s medical records for this visit, Respondent verified the injuries reported by Patient C.C. by only examining the surgical scars on Patient C.C.’s body. At the conclusion of this visit, Respondent instructed Patient C.C. to return with copies of his X-rays and to undergo “blood work”. During the course of this visit, Respondent prescribed 90 Dilaudid, 4 mg, and 60 Oxycontin, 80 mg, to Patient C.C. On or about August 6, 2001, Respondent prescribed 15 Xanax, 2 mg, to Patient C.C. Patient C.C.’s medical records for the August 6, 2001, visit do not contain examination results or subjective or objective complaints. On or about August 23, 2001, Patient C.C. returned to Respondent’s office, whereupon, Respondent prescribed 90 Dilaudid, 4 mg, and 30 MS Contin, 100 mg, to Patient C.C. Patient C.C.’s records for the August 23, 2001, visit reflect that the only physical examination results recorded are weight and blood pressure. Patient C.C.’s records for the August 23, 2001, visit reflect that Patient C.C. did not provide Respondent with copies of his X-rays. Patient C.C.’s records for the August 23, 2001, visit also reflect that Patient C.C. did not provide Respondent with verification of completion of the “blood work” that Respondent requested during Patient C.C.’s visit of August 2, 2001. On or about September 19, 2001, Patient C.C. returned to Respondent’s office complaining of an upper respiratory infection. Respondent renewed Patient C.C.’s prescriptions for 90 Dilaudid, 4 mg, and 30 MS Contin, 100 mg. On or about September 20, 2001, Respondent prescribed 30 Xanax, 2 mg, to Patient C.C. by telephonic order. On September 26, 2001, Patient C.C. presented to Respondent. Patient C.C.’s medical records for the September 26, 2001, visit indicate that Patient C.C. complained of a gastrointestinal disorder. Patient C.C.’s medical records for the September 26, 2001 visit indicate that Respondent again noted: “must do lab work.” Patient C.C.’s medical records contain what appears to be an entry for September 29, 2001, which simply states “Restoril 30 — trial.” On or about October 11, 2001, Respondent prescribed 30 Vicodin ES by telephonic order for Patient C.C. Patient C.C.’s final visit to Respondent occurred on or about October 19, 2001. During the course of that visit, Patient C.C. complained of a contusion that resulted from a fall. Patient C.C.’s medical records for the October 19, 2001, visit fail to document which part of Patient C.C.’s body was contused. Patient C.C.’s records for the October 19, 2001, visit do not contain any documentation that Respondent performed a physical examination of Patient C.C. During the course of the October 19, 2001, visit, Respondent prescribed the following drugs to Patient C.C.: 90 Dilaudid, 4 mg 90 Soma, 350 mg 60 MS Contin, 100 mg Additional Facts regarding Patient C.C. (Case No. 2002-26342) In the medical record of the August 2, 2001, visit there are no notations as to when the injuries occurred or which injury was causing a complaint that day, if any. Respondent noted that the patient was disabled and on Medicare. On August 2, 2001, in addition to the Dilaudid and Oxycontin, Respondent also prescribed Fiorinal with Codeine and Tuinal (a short-acting barbiturate). Respondent’s medical records for Patient C.C.’s August 2, 2001, visit do not contain examination results or subjective or objective complaints. The record has no assessment of Patient C.C.’s hips or ankles. Respondent requested copies of the X-rays from the patient, presumably to confirm the prior injuries to the hips and ankles. There is no indication in the record that Respondent ever tried to obtain the X-rays himself. In the medical record for the August 23, 2001, visit, Respondent did not document any indication why he switched Patient C.C. from Oxycontin to MS Contin. The Dilaudid was prescribed apparently for “breakthrough pain.” However, there are no notes concerning the severity of any pain or the source of any pain. Respondent also noted on this visit that the patient had GERD (gastroesophogeal reflux disease) or irritable bowel syndrome. No subjective complaints or symptoms are recorded. He questioned whether it was due to diet and thought he might be a candidate for Librax (a medication used for irritable bowel disease). Respondent then gave Patient C.C. a sample of Prevacid (a medication that can treat GERD). In the medical record for the September 19, 2001, visit there are no notations concerning the patient's respiration or whether he was wheezing. No other symptoms are recorded. Respondent did not record any objective results, failed to record any assessment and did not record an adequate plan. Respondent gave the patient a Zithromax sample for the respiratory infection. Respondent then renewed Patient C.C.’s prescriptions for #90 Dilaudid 4 mg and #30 MS Contin 100 mg. There are no records indicating why these medications were prescribed. The medical record for Patient C.C. does not document why Respondent prescribed Xanax to the patient by telephone on September 20, 2001. The medical records for the October 11, 2001, visit contains no notations as to why Respondent prescribed Vicodin ES, nor are there any subjective or objective complaints noted. In the medical record for the October 19, 2001, visit, there is no chief complaint recorded, other than the contusion. There is no assessment and no plan other than prescribing narcotics. There are no indications in the record as to why prescriptions for Dilaudid, Soma, and MS Contin were written, or what chief complaint required these medications. On October 29, 2001, Patient C.C. died. The medical examiner’s report stated that the cause of death was acute morphine toxicity. The toxicology report indicated the following drugs were detected in Patient C.C.’s body: Alprazolam or Xanax, Benzodiazepines, Meprobamate, Corisoprodol or Soma and Morphine. The medical examiner's report also detailed a history of a motor vehicle accident at aged 17 (approximately 28 years before Respondent first saw the patient). The medical history indicated that Patient C.C. broke his legs during this accident and that the legs never healed properly. The medical examiner’s report also indicated a social history of drug abuse, both illegal and prescription, as well as prior suicidal attempts years ago by cutting his wrists. There were also the typical track or needle marks on the arms that would have been visible a month or longer before death. Respondent did not record the detailed medical history from the motor vehicle accident nor the past suicide attempts. Even if the patient was not candid with Respondent, an examination of Patient C.C.’s arms would have revealed the prior track or needle marks as well as the prior marks from the suicide attempts. However, Respondent’s records do not contain any such details. Respondent failed to practice medicine within the statutory standard of care by failing to adequately assess Patient C.C.’s pain, failing to create an adequate treatment plan and by failing to obtain prior medical records to review past drug use. Respondent also violated the statutory standard of care by inappropriately prescribing controlled substances without adequate medical justification and by refilling controlled substances without identifying a chief complaint, without performing a review of systems, without performing adequate physical exams and assessments, and without preparing adequate plans. Respondent also failed to meet the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent failed to keep adequate medical records that justify the course of treatment by failing to document a complete medical history as well as a history of Patient C.C.’s present complaint, and by failing to document adequate physical exams, adequate treatment plans and assessments of the etiology of Patient C.C.’s pain. Respondent also failed to keep medical records that justify the course of treatment by failing to document a discussion of risks and benefits of using controlled substances, and the medical justification for the continued treatment with controlled substances. Respondent inappropriately prescribed controlled substances to Patient C.C. Respondent continued to inappropriately prescribe controlled substances to this patient without a definitive diagnosis and without verifying the patient’s medical history and past drug use. Admitted Facts regarding Patient B.F. (Case No. 2002-26340) On or about October 15, 2001, Patient B.F., a 55-year- old female, presented to Respondent with complaints of lower back pain, polyneuropathy, bronchitis, a history of HIV (human immunodeficiency virus), AIDS (acquired immunodeficiency syndrome), heroin addiction, and hepatitis C. No other physical exam results are documented. During the course of this visit, Respondent prescribed the following drugs to Patient B.F.: 90 Oxycontin, 80 mg 60 Xanax, 2 mg On or about November 15, 2001, Patient B.F. returned to Respondent’s office. Patient B.F.’s medical records for the November 15, 2001, visit do not document that Respondent performed a review of systems. Patient B.F.’s medical records for the November 15, 2001, visit do not document that Respondent performed an adequate physical examination of Patient B.F. during this visit. Respondent then noted that “Pt to bring in all her HIV meds for renewal.” During the course of the November 15, 2001, visit, Respondent prescribed the following drugs to Patient B.F.: 90 Oxycontin, 80 mg 60 Xanax, 2 mg There is no documentation in Patient B.F.’s medical record for the December 17, 2001, visit that Respondent received the prior HIV medical records. There is no documentation in Patient B.F.’s medical record for the December 17, 2001, visit that Respondent addressed the nature or intensity of Patient B.F.’s pain. On or about January 14, 2002, Patient B.F. returned to Respondent with complaints of severe asthmatic bronchitis. Patient B.F.’s records for the January 14, 2002, visit reflect that Respondent treated Patient B.F.’s bronchitis with medication. Patient B.F.’s records for the January 14, 2002, visit reflect that Respondent renewed Patient B.F.’s prescription for 90 Oxycontin, 80 mg, and for 60 Xanax, 2 mg. Patient B.F.’s medical records of February 12, 2002, indicate that Respondent needs lab work at the next visit. On or about March 15, 2002, Patient B.F. returned to Respondent’s office. Patient B.F.’s medical records for the March 15, 2002, visit reflect that Patient B.F.’s pain was fluctuating and that her anxiety was high. On the March 15, 2002, visit Respondent briefly listened to Patient B.F.’s lungs and noted her blood pressure and pulse. On the March 15, 2002, visit, Respondent renewed Patient B.F.’s prescriptions for 90 Oxycontin, 80 mg, and for 60 Xanax, 2 mg. Additional Facts regarding Patient B.F. (Case No. 2002-26340) During the visit on October 15, 2001, Respondent documented a painful lumbar region. However, Respondent did not document results of other physical exams, including the level of pain for the lower back, the location of the polyneuropathy in the body, and the rate of respiration. Lab tests were ordered. There is no clear indication from the medical records of the first visit what Respondent’s treatment plan was for this patient. At Patient B.F.'s visit on November 15, 2001, Respondent wanted to see if the patient qualified for Neupogen. He also recommended Glucosomine and Chondroitin with water exercises. He also noted that the liver studies reflected hepatitis C. Respondent’s recommendation to try Neupogen is unexplained. Because Neupogen stimulates white blood cells and Patient B.F.’s white blood count was normal, there was no justification for Respondent’s consideration of Neupogen. Respondent’s medical record for his December 17, 2001, visit with Patient B.F. is very brief. He wrote a blood pressure reading and the word “pulse” but with no reading next to it. He also drew an arrow pointing up next to the words “bronchitis; smoking !!”. There are no subjective complaints documented, no assessment, and no treatment plan documented. During the December 17, 2001, visit, Respondent prescribed #60 Xanax 2.0 mg and #90 Oxycontin 80 mg for Patient B.F. Respondent failed to document a reason for prescribing these two controlled substances. There is also no documented plan concerning treatment for the notation about the increased bronchitis or smoking. Regarding the January 14, 2002, visit, there are no subjective complaints listed other than the one about severe asthmatic bronchitis. There is no documented physical exam or review of systems for this visit. The record does not contain any details of the patient’s respirations or diagnosis as to whether this was an acute bronchial attack or chronic bronchitis. In the medical records for the January 14, 2002, visit, Respondent noted that he had a discussion about Oxycontin with Patient B.F. However the record does not reflect why the drug was prescribed. On February 5, 2002, Patient B.F. returned to Respondent. Respondent’s note on this date is also brief. It contains a blood pressure, a pulse and a weight. Respondent also notes “GERD - ? to meds or anx.?” and gives the patient a sample of Prevacid for this problem. GERD means gastro- esophageal reflux disease. Respondent once again prescribed #90 Oxycontin 80 mg and #60 Xanax 2.0 mg. Respondent also prescribed some drugs for Patient B.F.’s HIV condition. However, there are no notes explaining why the Oxycontin and Xanax were prescribed. There is no assessment of the prior bronchial problems, the prior back problems, or any new complaints. On February 12, 2002, Patient B.F. returned to Respondent’s office. Respondent’s medical record indicated that Patient B.F. needs lab work at the next visit and contained a list of prescriptions. Respondent provides no indication why the various drugs were prescribed, no assessment of the patient, no subjective complaints detailed and no plan for treating the patient. Respondent saw Patient B.F. again on March 15, 2002. At that time he noted decreased breath signs, and at some later time he recorded the lab results. On the March 15, 2002 visit, Respondent also questioned the patient’s “compliance.” There was no explanation given as to what type of compliance issues were of concern to Respondent. Respondent then renewed Patient B.F.’s prescription for #90 Oxycontin 80 mg and #60 Xanax 20 mg. On March 25, 2002, Patient B.F. died. According to the initial Miami-Dade County Medical Examiner’s report, the cause of Patient B.F.’s death was accidental heroin and Xanax intoxication. The contributing causes were AIDS and Hepatitis C. A toxicology report was issued on October 1, 2004, by the Miami Dade County Medical Examiner’s office. This report was positive for Oxycodone, Methadone, Morphine, Codeine, and Alprazolam or Xanax. The Miami-Dade County Medical Examiner’s office issued an amended report on November 2, 2004, indicating that Patient B.F.’s cause of death was polydrug intoxication (Heroin, Oxycodone, Methadone, and Alprazolam or Xanax). The contributing causes were AIDS and Hepatitis C. The report added Oxycodone and Methadone as contributing to the death. Both the original and the amended Medical Examiner reports contain a social history indicating that Patient B.F. was a known IV drug abuser and had received treatment at a local Methadone clinic. None of Respondent’s medical records for Patient B.F. contain a past or current history of treatment at a Methadone clinic. The records also fail to identify whether Respondent inquired about any current drug abuse. Respondent should have inquired about, and should have documented, any Methadone treatment Patient B.F. was involved in before Respondent instituted his own treatment in order to prescribe narcotics properly. This patient was a complicated case and would have benefited from a multi-disciplinary team approach.5 In his treatment of Patient B.F., Respondent failed to practice medicine within the statutory standard of care by inappropriately prescribing controlled substances without adequate medical justification and by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent also violated the statutory standard of care by failing to sufficiently assess the bronchial asthmatic condition by noting the patient’s respiratory rate and degree of wheezing. Respondent failed to keep adequate medical records that justify the course of treatment by failing to document adequate physical exams, by failing to document an adequate review of systems, by failing to document a treatment plan, and by failing to document the respiratory rate and degree of wheezing related to B.F.’s bronchial asthmatic condition. Respondent failed to keep adequate medical records to justify the course of treatment by failing to document adequate justification for prescribing Oxycontin on the first visit and for continuing to prescribe Oxycontin and Xanax in a patient with a history of heroin abuse. Respondent inappropriately prescribed Oxycontin to Patient B.F. on the first visit and inappropriately prescribed Oxycontin and Xanax to her on subsequent visits without adequate medical justification. Many of Respondent’s medical records are merely a list of the drugs prescribed without any rationale or reason stated for the prescriptions. Respondent inappropriately prescribed controlled substances without documenting a physical exam, a review of systems, assessments, or any plans for the patient and without inquiring about the patient's Methadone clinic treatment. Admitted Facts regarding Patient D.P. (Case No. 2002-12858) On or about February 2, 2002, Patient D.P., a 25-year old male, presented to Respondent’s office with complaints of severe lower lumbar pain with radiation into both thighs, left greater than right. The medical record for this visit contains a brief family history, social history, and notation of no allergies in the medical records. The medical record for this visit has no adequate review of symptoms. Respondent documented that the patient is to furnish the X-rays of his lumbar spine, and pending this review, Respondent elected to hold off on ordering an MRI (magnetic resonance imaging). Blood work was deferred to the next visit. Further instructions included glucosamine and chondroitin and water exercises. During the course of the February 2, 2002, visit, Respondent prescribed the following drugs to Patient D.P.: 240 Methadone, 10 mg 120 Dilaudid, 4 mg 90 Xanax, 2 mg On or about March 1, 2002, Patient D.P. returned to Respondent with a complaint of an area of baldness in the upper right occipital area, secondary to striking his head. Patient D.P. also had complaints concerning his left great toe. Respondent again requested that Patient D.P. supply him with his lumbar X-rays. During the course of this visit, Respondent prescribed the following drugs to Patient D.P.: 60 Soma, 350 mg 90 Xanax, 2 mg 120 Dilaudid, 4 mg Respondent’s medical records indicate that on or about March 30, 2002, a Saturday, Patient D.P. appeared for an office visit. The medical records indicate that some type of final warning was given. The record indicates that on or about March 30, 2002, Respondent prescribed the following drugs to Patient D.P.: 60 Soma, 350 mg 90 Xanax, 2 mg 105 Dilaudid, 4 mg On the record of the March 30, 2002, visit, after the Dilaudid, Respondent wrote, “start to lower.” There is also an entry that Patient D.P. paid $75.00 for this visit. Respondent did not see Patient D.P. on the March 30, 2002, visit because the patient was late. Respondent sent Petitioner a letter on or about August 29, 2002, indicating that Respondent did not see Patient D.P. on the March 30, 2002, visit because the patient was late. Respondent’s secretary waited for the patient in order to give him the prescriptions written by Respondent. Additional Facts regarding Patient D.P. (Case No. 2002-12858) Patient D.P. presented to Respondent with a history of prescriptions for Methadone, Dilaudid, Xanax, and Oxycontin. Although Respondent wrote refill prescriptions for Methadone, Dilaudid, and Xanax, he did not write a refill prescription for Oxycontin. There is no explanation in the medical record for the Respondent's decision not to refill the Oxycontin. Respondent failed to document an explanation for continuing some of the pain medications and discontinuing the Oxycontin. It is not safe to discontinue Oxycontin abruptly. Respondent also failed to document the name of the physician who previously prescribed the above-described pain medications and failed to document any need to obtain the medical records from the prior physician. Patient D.P. presented to Respondent with several “red flags.” Among the “red flags” were: a young man with a list of previously used pain medications, no X-rays, and a request to refill the pain medications based on unverified back pain. The medical record for Patient D.P.'s visit on March 1, 2002, does not indicate what medical conditions the pain medications that were prescribed on that date were supposed to treat. Two body parts (the head and large toe) were identified with subjective complaints. An appropriate objective note was not made. The medications prescribed on March 1, 2002, were essentially the same as those prescribed during the February 2, 2002, visit but with no mention of back problems in the record of the March 1, 2002 visit. In a patient such as D.P., pain is a vital sign and should be documented. Pain is usually documented on a scale of one to ten. There is no record of pain for any of the three body parts (head, back or great toe). Soma was also prescribed on this visit. There is no documented justification for the prescription of Soma. On April 1, 2002, Patient D.P. died of a combined drug overdose (Methadone, Xanax, Alprazolam, Soma, Carisoprodol, and Meprobamate). A toxicology exam was done, with a follow-up confirming report. The report was positive for Xanax, Soma, Methadone, and the metabolites for Cocaine. The report showed fatal or lethal levels of Methadone and Xanax in Patient D.P.’s body. Respondent violated the statutory standard of care by prescribing controlled substances to Patient D.P. without even seeing or examining him. Respondent also violated the statutory standard of care by prescribing the controlled substances inappropriately without adequate justification. Respondent also violated the statutory standard of care by his inadequate physical exams, especially on the visits after February 2, 2002. Respondent’s medical records for this patient fail to justify the course of treatment for all of the visits. There is an inadequate history of any prior back problem or drug abuse problem. The records concerning any physical exam are inadequate. Respondent’s records for this patient fail to contain an adequate history documenting any prior diagnostic testing or diagnosis that would have been the basis for his previously prescribed drugs. The medical record of March 30, 2002, fails to accurately describe what actually happened that day. Further, the medical record for that date is written in such a way as to suggest that Respondent had seen and treated the patient on that date, when, in fact, Respondent did not see Patient D.P. on March 30, 2002. Respondent inappropriately prescribed Soma, Methadone, Xanax, and Dilaudid to Patient D.P. In addition, he inappropriately prescribed the Soma, Xanax, Methadone and Dilaudid when he left them with his secretary for Patient D.P. to pick up without examining Patient D.P. or discerning a need for these drugs. Respondent left the prescriptions "out of compassion" for D.P. In hindsight, Respondent admits that it was a mistake to do so. He had never done such before and has not done it since. During the course of his treatment of Patient D.P., Respondent failed to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Admitted Facts regarding Patient F.K. (Case No. 2002-26339) On or about January 31, 2002, Patient F.K., a 46- year-old male, first presented to Respondent with complaints of back pain, with pain radiating to both sides, insomnia, and depression. According to Patient F.K.’s medical records, Patient F.K., had a history of heroin addiction in the past. According to Patient F.K.’s medical records, Patient F.K. has a documented history of hepatitis 30 years ago, most likely from a needle. According to Patient F.K.’s medical records, Patient F.K.’s current medications included Methadone, 80 mg/day, Oxycontin, 80 mg qid (4 times daily), and Xanax, 2.0 mg, “3, 4, or 5”. On or about January 31, 2002, Respondent ordered lab work for Patient F.K. On or about January 31, 2002, Respondent noted in Patient F.K.’s medical records that the X-ray reports were “on the way.” On or about January 31, 2002, Respondent also recommended Glucosamine and Chondroitin for Patient F.K., both to be taken twice daily. During the course of the visit on January 31, 2002, Respondent prescribed the following drugs to Patient F.K.: 120 Xanax, qid 240 Methadone (8 pills/day) 180 Dilaudid (6 per day) On or about March 4, 2002, Patient F.K. returned to Respondent’s office. On or about March 4, 2002, Respondent noted that Patient F.K. was stabilizing. On or about March 4, 2002, Respondent noted that Patient F.K.’s X-ray reports were pending at the prison. On or about March 4, 2002, Respondent did not record an adequate examination or a range of system review for Patient F.K. On or about March 4, 2002, the lab data was reviewed and a notation that Patient F.K. was a non-diabetic was made. On or about March 4, 2002, Respondent recommended water exercises and Glucosamine/Chondroitin for Patient F.K. On or about March 4, 2002, Respondent failed to document in Patient F.K.’s medical record that he had performed a physical examination. On or about March 4, 2002, there is an entry in Patient F.K.’s medical record that states the pain is a combination of pathology and depression. On or about March 4, 2002, the Respondent failed to document in Patient F.K.’s medical records that he discussed the risks and benefits of the use of controlled substances with Patient F.K. During the course of the visit on March 4, 2002, Respondent prescribed the following drugs to Patient F.K.: 180 Dilaudid, 4 mg 240 Methadone 120 Xanax, 2 mg On or about April 1, 2002, it was noted that Patient F.K. was doing water exercises. On or about April 1, 2002, Respondent failed to document in his medical records a physical examination or review of Patient F.K.’s systems. During the course of the April 1, 2002 visit, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg, 2 q6h (every six hours) 180 Dilaudid, $ mg, 2 q8h (every eight hours) On or about April 1, 2002, there is also an entry in Patient F.K.’s medical records that a pharmacist called to discuss and confirm the medications prescribed. On or about April 29, 2002, Patient F.K. presented to Respondent’s office. On or about April 29, 2002, an entry in Patient F.K.’s medical record indicates that the patient will try to get his X-ray report that was done while in prison, apparently in early 2000. On or about April 29, 2002, Respondent did not document in Patient F.K.’s medical record that he performed a physical examination of Patient F.K. during this visit or that he identified the nature and intensity of Patient F.K.’s pain. During the course of the April 29, 2002, visit, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg 180 Dilaudid, 4 mg On or about May 25, 2002 (a Saturday), Patient F.K. returned to Respondent’s office. On or about May 25, 2002, Respondent noted that the patient was recently incarcerated and could not persist in his efforts to get the X-rays from prison. On or about May 25, 2002, there is no documented physical examination or review of systems in Patient F.K.’s medical records. On or about May 25, 2002, Respondent recommended that Patient F.K. continue water exercises with Glucosomine and Chrondroiton. During the course of the visit on May 25, 2002, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg 180 Dilaudid, 4 mg On or about May 25, 2002, Respondent ordered X-rays for Patient F.K.’s right knee and back ASAP. On or about May 26, 2002, Patient F.K. died. According to the Broward County Medical Examiner’s report, the cause of Patient F.K.’s death was acute bronchopneumonia due to combined drug toxicity (cocaine and methadone). Additional Facts regarding Patient F.K. (Case No. 2002-26339) In his medical records for the visit on January 31, 2002, Respondent indicates “severe low back syndrome,” but does not indicate how he reached this diagnosis. On April 1, 2002, Patient F.K. presented to Respondent’s office for polyarthritis. There is no other note concerning the polyarthritis such as its location, duration or severity. On April 1, 2002, Respondent also failed to document an assessment of any problems or a treatment plan, other than prescribing Xanax, Methadone, and Dilaudid. A telephone call from a pharmacist about prescriptions for narcotic drugs is often perceived as a “red flag.” This phone call, combined with the patient’s heroin history, should have alerted Respondent that Patient F.K. was a drug seeker or drug user with a history of abuse. Respondent's records for the April 29, 2002, visit do not indicate why Respondent prescribed Xanax, Methadone, and Dilaudid to Patient F.K. Patient F.K.’s history of incarceration is another “red flag” which should have been taken into account before prescribing controlled substances to this patient. Respondent's records for the May 25, 2002, visit do not indicate why Respondent prescribed Xanax, Methadone, and Dilaudid to Patient F.K. Prior to May 25, 2002, Respondent should have himself either obtained Patient F.K.'s X-rays from the prison or he should have ordered X-rays for the back and right knee sooner and before prescribing controlled substances over an extended period of time. At the time of his death, Patient F.K.’s level of Methadone recorded from the toxicology screen was in the toxic or lethal range. The level of Cocaine was at a low level. Patient F.K. would have benefited from a multi- disciplinary team approach. The multi-disciplinary approach could have dealt with his addiction problems, as well as his physical ailments.6 Respondent violated the statutory standard of care by failing to perform adequate physical exams, failing to identify or recommend a treatment plan, and by failing to adequately assess any pain the patient had. Respondent also violated the statutory standard of care by prescribing controlled substances to this patient without adequate medical justification, and prescribing controlled substances for pain before ordering or obtaining X-rays. Respondent also violated the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent failed to keep adequate medical records justifying the course and scope of treatment for Patient F.K. Respondent failed to adequately document justification for the controlled medications, failed to document adequate physical examinations, and failed to document an appropriate treatment plan for this patient. Respondent inappropriately prescribed controlled substances without adequate medical justification to Patient F.K. Admitted Facts regarding Patient A.C. (Case No. 2002-26341) On or about March 13, 2001, Patient A.C., a 43-year- old male, first presented to Respondent. The medical record for that visit notes that Respondent questioned a loss of Patient A.C.’s medications and that the patient is to return with X- rays. On or about March 19, 2001, Patient A.C. returned to Respondent’s office with his X-rays. On or about March 19, 2001, Respondent noted that the X-rays were indicative of significant advanced lumbar disc disease. On or about March 19, 2001, the recorded history also noted that Patient A.C. was involved in a motor vehicle accident on February 3, 2000. On or about March 19, 2001, Respondent noted a complaint of pain in the lumbar region radiating to both of Patient A.C.’s thighs, left greater than right. On or about March 19, 2001, Respondent ordered laboratory studies for Patient A.C. Respondent’s medical record of March 19, 2001, also contains a note that a pharmacy advised Respondent that Patient A.C. was “on Oxycontin 40 mg before.” Respondent notes in Patient A.C.’s record of March 19, 2001, the names of two doctors. On or about March 19, 2001, Respondent gave Patient A.C. samples of HCTZ (hydrochlorothiazide), an anti- hypertensive. On or about March 19, 2001, Respondent started Patient A.C. on Tevetan, an anti-hypertensive, 600 mg daily. During the course of the visit on March 19, 2001, Respondent also prescribed the following drugs to Patient A.C.: 60 Oxycontin, 80 mg Xanax, 2 mg, bid (twice daily) On or about March 21, 2001, Patient A.C. returned to Respondent’s office. On or about March 21, 2001, there are no notes in Patient A.C.’s medical records concerning a physical examination or review of systems. On or about March 21, 2001, there is also a note in Patient A.C.'s medical records about a pending evaluation with no details concerning the proposed evaluation. On or about March 21, 2001, Patient A.C.’s record also contains a note that his next appointment was April 4, 2001. On or about March 21, 2001, Respondent’s medical records also contain a dated entry of March 19, 2001, that lists Patient A.C.’s medications on this date as HCTZ 25 mg daily; Tevetan 600 mg daily; Norvasc 5 mg, 2 daily; Xanax 2 mg bid; and Oxycontin 80 mg bid. On or about March 21, 2001, Patient A.C.’s record does not reflect that the Respondent attempted to obtain Patient A.C.’s past medical records in order to verify Patient A.C.’s reported injuries and medical history. On or about March 21, 2001, Respondent did not document a treatment plan for Patient A.C. other than to order or request lab work. On or about April 1, 2001, Patient A.C. was transported to Broward General Hospital where he was pronounced dead at 9:06 a.m. The medical examiner ruled that the cause of Patient A.C.’s death was accidental Cocaine excited delirium and Oxycodone toxicity. The toxicology report indicated that the following drugs were detected in Patient A.C.'s body: Benzoylecgonine, Cocaine, Ecgonine, Methylester, and Oxycodone. Additional Facts regarding Patient A.C. (Case No. 2002-26341) Respondent also noted in the medical record for March 19, 2001, two doctors’ names (“Roonig” and”Washman”). Next to these names Respondent noted “ pt. given Oxycontin 160 #116 on 3/14” and under that “Oxycontin 40 + 20 Sig T.I.D. on 2/17.” There is no indication in the medical record that Respondent attempted to contact either of the doctors mentioned in his note or to obtain any of the medical records from either doctor. There are no notes about counseling the patient about the consequences of taking controlled substances. There is no indication in the medical records as to why Respondent prescribed Xanax and Oxycontin to this patient on March 19, 2001. Although the medical records for March 19, 2001, contain some subjective and objective results, there is no assessment or treatment plan for this patient. Respondent failed to document how he was managing the pain medication prescribed for this patient, particularly since the patient was obtaining Oxycontin from two other doctors. Respondent knew or should have known that Patient A.C. was a doctor shopper (an individual going to numerous doctors in order to obtain a number of controlled medications). Patient A.C. would have benefited from a multi-disciplinary team approach.7 Patient A.C. obviously had an addiction problem and that should have been apparent to Respondent. Respondent violated the statutory standard of care by failing to perform adequate physical exams, by failing to identify or recommend a treatment plan, and by failing to obtain past medical records. Respondent also violated the standard of care by prescribing controlled substances to this patient without adequate medical justification and by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control.8 Respondent failed to keep adequate medical records justifying the course and scope of treatment for Patient A.C. Respondent failed to adequately document justification for the controlled medications, failed to document adequate physical examinations, failed to document a complete history and failed to document an appropriate treatment plan for this patient. Respondent also failed to keep adequate progress notes. Respondent inappropriately prescribed controlled substances to Patient A.C. without adequate medical justification.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in these cases to the following effect: Adopting all of the foregoing findings of fact and conclusions of law; Dismissing the six counts in the Administrative Complaints alleging violations of Section 458.331(1)(q), Florida Statutes; Finding Respondent guilty of the six counts of violations of Section 458.331(1)(m), Florida Statutes, alleged in the Administrative Complaints; Finding Respondent guilty of the six counts of violations of Section 458.331(1)(t), Florida Statutes, alleged in the Administrative Complaints; and Imposing a penalty consisting of the revocation of Respondent's license to practice medicine in the State of Florida. DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2005.
The Issue The issues in this case are whether Respondent, a physician specializing in obstetrics and gynecology, committed medical malpractice in delivering a baby and/or failed to maintain medical records justifying the course of the mother's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Mark N. Scheinberg, M.D., was licensed to practice medicine in the state of Florida. He is board-certified in obstetrics and gynecology. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Scheinberg. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Scheinberg committed two such offenses——namely, medical malpractice and failure to keep records justifying the course of treatment——in connection with the vacuum-assisted vaginal delivery of an infant born to Patient L.G. on February 2, 2005, at West Boca Medical Center. The crux of this case (though not the sole issue) is whether, as the Department contends, the standard of care required Dr. Scheinberg to perform a Caesarean section ("C- section") on L.G. due to the passage of time, instead of allowing her to continue to labor for approximately 13 hours and, ultimately, deliver vaginally. The events giving rise to this dispute began on February 1, 2005, at around 11:00 a.m., when L.G., whose pregnancy was at term, checked into the hospital after having experienced ruptured membranes. At 12:30 p.m. that day, L.G. signed a form bearing the title "Authorization for Medical and/or Surgical Treatment," which manifested her consent to a vaginal delivery or C-section together with, among other things, "such additional operations or procedures as [her physicians might] deem necessary." Immediately above L.G.'s signature on the form is an affirmation: "The above procedures, with their attendant risks, benefits and possible complications and alternatives, have been explained to me " The evidence is not clear as to when, exactly, Dr. Scheinberg first saw L.G., but that fact is unimportant. The medical records reflect that at 8:30 p.m. on February 1, 2005, Dr. Scheinberg gave a telephone order to initiate an IV push of the antibiotic Ampicillin; therefore, he had taken charge of L.G.'s care by that time. The nurses' notes indicate that at 10:00 p.m., L.G.'s cervix had dilated to "rim" or approximately nine centimeters—— meaning that the dilation was complete, or nearly so. At this time, and throughout the duration of L.G.'s labor, an external fetal heart monitor was in place to detect and record the baby's heartbeats and the mother's uterine contractions. An intrauterine pressure catheter ("IUPC")——a device that precisely measures the force of uterine contractions——was not inserted into L.G.'s uterus at any time during this event. The Department argues (although it did not allege in the Complaint) that, at some point during L.G.'s labor, the standard of care required Dr. Scheinberg either to place an IUPC or perform a C-section. Pet. Prop. Rec. Order at 10, ¶36. The Department's expert witness, Dr. John Busowski, testified unequivocally and unconditionally, however, that the standard of care does not require the use of an IUPC. T. 36. The undersigned credits this evidence and finds that Dr. Scheinberg's nonuse of an IUPC did not breach the standard of care. Dr. Scheinberg conducted a physical at around 2:00 a.m. on February 2, 2005, which included taking L.G.'s complete history and performing a vaginal examination. L.G.'s cervix remained dilated to approximately nine centimeters, and her labor had not substantially progressed for about four hours. Dr. Scheinberg noted in L.G.'s chart that the baby was in the posterior position at 2:00 a.m. The Department argues, based on Dr. Busowski's testimony, that as of 2:00 a.m., the standard of care required [Dr. Scheinberg to] choose one of the following options: (1) watch the patient for a few more hours to allow for progress; (2) place an IUPC to determine the adequacy of Patient L.G.'s contractions; (3) start Pitocin without the placement of an IUPC; or (4) perform a C- section. Pet. Prop. Rec. Order at 9-10, ¶ 32. The Department contends that Dr. Scheinberg breached the standard of care by choosing "simply to watch the patient for approximately 10 more hours"—— which was tantamount to "choosing to do nothing." Id. at 10, ¶¶ 33-34. In fact, Dr. Scheinberg chose to watch the patient, which was, according to Dr. Busowski, within the standard of care. Obviously, at 2:00 in the morning on February 2, 2005, Dr. Scheinberg did not choose to wait for 10 more hours, because at that point he (unlike the parties to this litigation) did not know what was about to happen. The nurses' notes reflect that L.G. was under close observation throughout the early morning hours, and that Dr. Scheinberg was following the situation. At 4:30 a.m., L.G. was set up to push and at 4:45 a.m. was pushing well. At 6:15 a.m., the notes indicate that Dr. Scheinberg was aware of the mother's attempts to push. At 6:45 a.m., he reviewed the strips from the fetal heart monitor. At 7:45 a.m., he was present and aware of L.G.'s status. From 7:00 a.m. until 8:00 a.m., no contractions were identifiable on the external monitor. At 8:00 a.m., however, L.G. was comfortable and pushing well. She stopped pushing at 8:30 a.m., but remained comfortable. Dr. Scheinberg then ordered the administration of Pitocin, a medicine which is used to strengthen contractions and hasten delivery. Although the Department faults Dr. Scheinberg for giving L.G. Pitocin at this relatively late stage of her labor, Dr. Busowski (the Department's expert witness) admitted being unable to say "that Dr. Scheinberg should have started Pitocin earlier " T. 72. The Department therefore has no clear evidential basis for second-guessing Dr. Scheinberg's professional judgment in this particular, and neither does the undersigned. At 9:10 a.m., L.G. resumed pushing. The baby's fetal heart tones (heartbeats) were stable. L.G. continued pushing, with her family present, until around 11:00 a.m., at which time Dr. Scheinberg discussed the situation with the patient and her family. Dr. Scheinberg explained to L.G. or her husband the risks of, and alternatives to, performing a vacuum-assisted vaginal delivery. Either L.G. or her husband gave verbal consent to the use of a vacuum device to assist in the delivery. Between 11:00 a.m. and 11:10 a.m., the fetal heart monitor detected some variable decelerations, meaning a decrease in heart rate that could be a sign of fetal distress. Dr. Scheinberg delivered the baby at 11:23 a.m., using a vacuum device to help pull the infant out of the birth canal. In his post-operative notes, Dr. Scheinberg wrote that his "pre-operative diagnosis" was "+3 station — prolonged second stage 2½ hrs." As a "post-operative diagnosis," Dr. Scheinberg recorded, "same + tight cord." He reported the following "findings": "tight cord cut on perineum[;] mec[onium] aspirated on perineum."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Scheinberg not guilty of the charges set forth in the Complaint. DONE AND ENTERED this 20th day of June, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2011.
The Issue The basic issue in this proceeding is whether Petitioner's application for certification as a respiratory therapy technician should be granted. More specifically, the issue is whether Jack Mallan, Jr., submitted false information on, or in support of his application and, if so, whether that is sufficient basis to deny his application. Despite confusion throughout the proceeding, the basis for Mr. Mallan's termination from employment at Florida Hospital was also at issue. This matter is addressed in more detail below.
Findings Of Fact Jack Mallan, Jr., submitted his application for certification as a respiratory therapy technician through endorsement in September 1985. His application stated that he was employed as a graduate therapist at Florida Hospital in Orlando, Florida, from 1980-1984. His response checked the answer "no", to question #6 on the form, "Have you ever been terminated, disciplined, or allowed to resign from an employment setting where you were employed to deliver respiratory care services?" [Petitioner's exhibit #4, Application]. Sometime later, apparently in the course of the Board of Medical Examiners' routine investigation, it was disclosed by Florida Hospital that Jack Mallan was terminated in November 1986, for misconduct and falsification of patient records and that, prior to the termination, he had been "written up" several times regarding problems he had with patients. [Petitioner's exhibit #4, letter dated July 30, 1986]. Mallan was informed that he must make a personal appearance before the Advisory Council on respiratory care and he did appear on October 1, 1986. [Petitioner's exhibit #4, letters dated September 10, 1986, and September 24, 1986; Petitioner's exhibit #5]. At his appearance, Mallan denied having falsified patients records and claimed that the basis for the termination was "a travesty". He conceded that he erred in his answer on the application and, at one point in the proceeding, apologized for writing the wrong answer and said that he was embarrassed and was hoping it wouldn't be discovered. The Council voted to deny his application. [Petitioner's exhibit #5]. The order from the Council, dated January 5, 1987, states the following as grounds for denial: The applicant submitted false information on, or in support of, his application for licensure. See Section 468.365(1)(a), (d), and (f), Florida Statutes; Section 468.354(5), Florida Statutes; and Rule 21M-37.02(2), Florida Administrative Code. At the final hearing in this proceeding, Mr. Mallan continued to deny that he ever falsified patient's records. [Tr. 14]. In support of this, he presented the testimony of Catherine "Kitty" Arnold, the charge nurse on the floor where Jack Mallan worked in 1983. While she heard that he was fired, she denied hearing complaints from any patients about Mr. Mallan. She also told Mallan's supervisor, Jim Richardson, before the termination, that she had not heard any complaints. [Tr. 52]. In support of his professional qualifications and fitness to practice, Mr. Mallan presented an employee performance review from Winter Park Hospital dated February 13, 1986. For every factor on the rating form, he was rated "very good", the highest rating, by his supervisor, Avery Smith. Mr. Smith also appeared before the Advisory Council on Mallan's behalf. Mallan was employed as a therapist at Winter Park Hospital from February 1985, until October 1986, when the council voted to deny his certificate. He was granted leave from his employer in order to pursue remedies to obtain the certificate. [Petitioner's exhibits #3, #5, and #6; Tr. 21-22]. In response to his attorney's question, "... why did you not go into detail about why you left the employ of Florida Hospital?", Mallan explained that he felt the "alleged termination at Florida Hospital" was unjust and untrue, that he did not want to spread lies about himself and was afraid for his future career. [Tr. 25]. On cross-examination, he refused to admit that he was "terminated" from employment by Florida Hospital, but later conceded that he did not leave the employment voluntarily and was accused of wrongdoing. [Tr. 31, 32]. His responses continued to be evasive and vague, as characterized by the following exchange: Q [By Ms. Lannon] Were you ever disciplined at Florida Hospital prior to this occasion while you were employed there to deliver respiratory care services? A Yes. Q Isn't it true that in fact in August of that very same year, you were disciplined for allegedly falsifying patient records? MR. SIWICA: I'd like a continuing objection to the relevancy. THE HEARING OFFICER: Noted for the record but you may answer the question. THE WITNESS: I have a choice to answer yes or no? THE HEARING OFFICER: You'll be allowed to explain the answer but go ahead and answer the question. THE WITNESS: could you repeat it again, please? BY MS. LANNON: Q Isn't it true that in August of the same year, the year that you were terminated, you were disci- plined based on an accusation or an allegation that you had falsified a patient's records? A I don't recall. Q Weren't you in fact suspended for two days in August of that year? A What year was that, please? Q 1983. A I can't recall. Q Were you ever suspended from your job at Florida Hospital? A I took sick days. Q Were you ever suspended from your job at Florida Hospital? MR. SIWICA: I think he's answered that. THE HEARING OFFICER: Wait. No, he hasn't. MR. SIWICA: I'm sorry. THE WITNESS: There was an incident. They told me to stay home. I can't remember when it was. BY MS. LANNON: Q Well, that wasn't ever. Were you ever suspended? I wasn't asking you to remember when it was with that question. A I don't know if it was suspended. I was asked to stay home from my shift and I don't known how many -- it was maybe one day, I think. Q Maybe one day. You don't recall? A No. Q Were you paid for that day? A I don't remember that either. [Tr. 35-37]. His personnel record reflects a two-day suspension in August 1983 for charting treatment that the patient denied having received, and for rudeness to a patient. [Respondent's exhibit #1, Memo dated August 30, 1983, Discussion reports dated August 22, 1983, and August 20, 1983.] Irv Hamilton was associate director of personnel at Florida Hospital in 1983. In a meeting with Jack Mallen he discussed the basis for termination. Mallen was observed sitting at the nurses' station when he was supposed to be coaching a patient in therapy and recording vital signs. After investigating, his supervisor, Jim Richardson, concluded that the record of treatment made by Mallan was falsified. Hamilton also reviewed and briefly investigated Jim Richardson's recommendation for termination. While the nurses and patient denied talking with Richardson about the November incident, Hamilton affirmed the recommendation for termination. He felt that Mallan had contacted the witnesses after their initial statements to Richardson. He also concluded, based on Mallan's alleged admissions that he was in the nurses' station rather than in the patient's room for part of the therapy, that it would have been impossible for the treatment to have been properly administered. [Petitioner's exhibit #2; Tr. 59, 60, 73, 75, 81]. Hamilton confirmed from his own recollection that Mallan was suspended in August 1983 for falsification of patient records. [Tr. 62]. Jim Richardson insisted that the nurse and patient had changed their story, that the nurse had indicated to him on the date of the incident that she heard of a patient's complaint. Further, when he approached the patient, she first said she didn't want to get anyone in trouble, but then said that the therapist who gave her treatment that night simply gave her the apparatus with medicine, left the room and returned after she finished the treatment to pick it up. [Tr. 98-101] Mr. Richardson personally observed Mallan in the nurses' station but did not confront him at the time, nor was Richardson close enough to see exactly what Mallan was doing. [Tr. 104, 106-108]. Circumstantial evidence and hearsay in this proceeding is insufficient to establish conclusively that Mr. Mallan falsified records in November 1983. He clearly, knowingly and deliberately falsified his application for certification. Even after appearing before the Council and hearing the concern about the need to be forthright, he remained very defensive and evasive throughout the final hearing. He feigned ignorance of the details of an incident in August 1983, when that incident was referenced on a special performance evaluation dated October 16, 1983. That evaluation, completed by his supervisor, Jim Richardson, rated him well above average and commended him for excellent effort in improvement. Notably, the first page of that evaluation was submitted and received as Petitioner's exhibit #1. The first page contains the rating factors and very positive levels of achievement selected by the supervisor as applicable. The second and subsequent pages are found in the personnel file, Respondent's exhibit #1. Those pages include a signature page with reference to an attached sheet. The typewritten attachments include general comments which reference past problems, including the August incident, and the commendation for improvement. Jack Mallan obtained an Associates Degree in respiratory therapy from Valencia Community College in 1981. He received a "respiratory care technicians" certification from the National Board of Respiratory Care on March 16, 1985. [Tr. 9]. His qualifications as to training and experience are not in question in this proceeding.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a final order be entered DENYING Petitioner's application for certification as a respiratory therapy technician. DONE AND ORDERED this 17th day of August, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0618 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner 1. Adopted in paragraph #12. 2-3. Rejected as immaterial. 4. Incorporated in the finding in paragraph #10. 5-6. Incorporated in the findings in paragraphs #9 and #10. Adopted in paragraph #5. Adopted in paragraph #9. Rejected as immaterial. Adopted in substance in paragraph #6. Adopted in paragraph #1. Adopted in paragraph #7. Respondent 1-2. Adopted in substance in paragraph #1. Adopted in paragraphs #3 and #4. Adopted in paragraphs #2 and #4. Adopted in substance in paragraph #10. Rejected as unsupported by competent evidence. 7-8. Adopted in part in paragraph #9, otherwise rejected as immaterial. Adopted in paragraph #7. Rejected as unnecessary, except the last sentence, which is adopted in paragraph #4. Adopted in part in paragraph #11. While the Florida Hospital witnesses were credible and adequately explained the basis for termination, their testimony was insufficient to establish conclusively that the falsification occurred. COPIES FURNISHED: Richard P. Siwica, Esquire EGAN, LEV & SIWICA 918 Lucerne Terrace Orlando, Florida 32806 M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2006.
The Issue At issue in these consolidated cases is whether respondent committed the offenses alleged in the amended administrative complaints and, if so, what disciplinary action should be taken.
Findings Of Fact Background Respondent, Jeffrey G. Tardiff, was, at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0021567. His office address is 2950 Crystal View Court, Miami, Florida. Respondent graduated from George Washington Medical School in 1967; completed his internship at Jackson Memorial Hospital, Miami, Florida, rotating in internal medicine and surgery; and, completed a two-year residency program in internal medicine, surgery and emergency medicine, at the University of California at Los Angeles Medical Center, Los Angeles County Harbor General Hospital, Jackson Memorial Hospital, Miami, Florida, and Veterans Administration Hospitals in Long Beach, California, and Wadsworth, Virginia. Currently, much of respondent's practice involves removing tumors of the face, both benign and cancerous, as well as micro surgery to repair the results of acne. During the approximately 19 years respondent has been licensed to practice medicine in Florida, he has never previously been the subject of any disciplinary proceeding. Facts relating to Patient #1 (Case No. 92-0228, Counts Two and Three) On September 11, 1989, Patient #1 (the "patient") was first seen by respondent. When he presented himself, the patient's chief complaint was a very large number of skin growths, which had the appearance of small black warts, on his face, neck and upper body, and which were spreading rapidly. The patient indicated that people were talking about these growths, and that he wanted to "get them taken care of before they cover me." Respondent took a history from the patient. At the time, the patient was 54 years of age, 69.5 inches tall, weighed 199.5 pounds, and had a blood pressure of 140/90 and a temperature of 98.0. The patient was described as very health, and expressed no allergic reaction or adverse side effects from penicillin or other known medications. During this initial visit, respondent excised one of the lesions on the patient's right cheek for pathology. Pathology characterized the lesion as "intradermal nevus." Respondent diagnosed the condition as "multiple viral premalignant facial verroucose papillomas to the neck and below." On September 20, 1989, the patient returned to respondent's office, and respondent removed approximately 197 skin lesions from the patient by hyfercation. During the procedure in which the lesions were removed, the patient was administered Meperidine, 210 mgs., and Diphenhydramine, 150 mgs., by micro drip I.V., to the point of twilight anesthesia. Additionally, the patient was administered Nitrous Oxide 75 percent and Oxygen 25 percent by inhalation during the procedure, and each lesion was injected with Xylocaine and 2 percent epinephrine locally before it was removed. While respondent administered the patient Meporidine and Diphenhydramine by micro drip I.V. during the course of the two and one half hour procedure, the proof demonstrates that the medications were administered at moderate levels necessary to relieve pain and nausea, and that the patient remained alert throughout the procedure. Respondent, although unassisted throughout the procedure, had immediate control of the I.V. flow, such that he could increase or decrease its administration as necessary for pain, and continuously monitored the patient during the course of the procedure. Regarding the techniques applied by respondent to monitor the patient, the proof demonstrates that before the procedure began respondent took the patient's blood pressure and pulse, and periodically checked the patient's pulse during the course of the procedure. Moreover, respondent engaged the patient in a continuing dialogue concerning a matter of common interest, automobiles, and compelled the patient to respond to requests that he reposition himself, as a means of monitoring the patient's alertness. Finally, respondent visually observed the patient for any signs of respiratory distress or changes in skin tone. During the course of the foregoing procedure, respondent had available numerous items of monitoring equipment which he elected not to use, and numerous items of emergency requirement which he was not required to use, including: blood pressure cuffs, an EKG, an Edak plethysmograph, a power breather, amu bags and masks, a heart rate monitor, a Debidick Life Pack 6 monitor defibrillator, and Narcon and other drugs needed to reverse the effects of a medication or to revive a patient. Respondent did not, however, have on hand or use a pulse oximeter during the procedure, did not utilize any of his equipment to take or monitor the patient's vital signs during the course of the procedure, did not record the patient's vital signs during or after the procedure, and did not have a second person present to assist him in monitoring the patient's vital signs during the procedure. The patient tolerated the procedure well and, as heretofore noted, was cognizant and alert during its course. Following completion of the surgery, the patient was released without ill effect, and has expressed satisfaction with the results of respondent's labors. Here, petitioner charges that respondent failed to practice medicine with that level of care, skill, and treatment which a reasonably prudent similar physician recognizes as acceptable under similar conditions and circumstances because he failed to have a second person assist him in monitoring the patient's vital signs during the course of the September 20, 1989, procedure, and because he failed to use a pulse oximeter to measure the patient's oxygen satiation level during the course of such procedure. Petitioner further charges that respondent failed to keep written medical records justifying the course of treatment of the patient because he failed to record the patient's vital signs before, during or after the anesthesia and surgery. In response, respondent contends that due to the nature of the procedure, the type and level of sedation, and the alertness of the patient, it was appropriate to monitor the patient in the manner he elected, without resort to utilizing a pulse oximeter; that, under the circumstances, it was unnecessary to have a second person present to monitor the patient's vital signs; and that, under the circumstances, his failure to record the patient's vital signs before, during and after the anesthesia and surgery does not evidence a failure to keep medical records justifying the course of treatment of the patient. To support its position, petitioner offered the testimony of Dr. Bruick, a board certified plastic surgeon, and, through deposition, Dr. Kruse, a board certified anesthesiologist. Dr. Bruick opined that to comport with the requisite standard of care in circumstances where I.V. anesthesia is employed, a pulse oximeter must be used, an assistant must be present to monitor the patient's vital signs, and such signs must be recorded before, during and after the anesthesia and surgery. Dr. Bruick was not, however, totally familiar with the combination of drugs used in the subject procedure, and based his opinion regarding the use of a pulse oximeter on a rule of the Department of Health and Rehabilitative Services relating to minimum requirements for licensing of ambulatory surgical centers, a matter not pertinent to this case. Dr. Kruse rendered opinions consistent with Dr. Bruick, but was familiar with the combination of medications used in the subject case and did not rely on any rules of the Department of Health and Rehabilitative Services. Dr. Kruse further opined, however, that if practitioners in South Florida did not routinely use a pulse oximeter during this type of procedure then the standard of care would not mandate its use. Juxtaposed with the proof offered by petitioner, the proof offered on behalf of respondent consisted of his own testimony, as well as the opinions of two local physicians, a registered nurse/trauma nurse specialist, and one of petitioner's own investigators, who offered persuasive proof that pulse oximeters were not routinely used during the course of procedures like that at issue in this case, and that considering the nature of the procedure, the type and level of sedation, and the alertness of the patient it was within the accepted level of care for respondent to have monitored the patient in the manner he elected, without the utilization of a pulse oximeter, without having a second person present to monitor the patient's vital signs, and without the necessity of recording the patient's vital signs before, during and after anesthesia and surgery. Considering the proof, it cannot be concluded, with the requisite degree of certainty required by law, which opinions accurately reflect the appropriate standard of care prevalent within the State of Florida. Therefore, considering the fact that the burden of proof in these proceedings rested on petitioner, as discussed infra, it must be concluded that the proof fails to support the conclusion that respondent is guilty of having committed the offenses charged in Counts Two and Three of the amended administrative complaint filed under Case No. 92-0228. Facts relating to the notice requirements of Section 458.320(5), Florida Statutes, relating to a practitioner's election not to carry malpractice insurance. (Case No. 92-0228, Count One) By Count One of the amended administrative complaint filed in Case No. 92-0228, petitioner charges that respondent "failed to post notice in the form of a sign prominently displayed in the reception area or to provide a written statement in the language required by Section 458.320(5) . . ., Florida Statutes, to Patient #1 in regard to respondent's financial responsibility to pay claims and costs ancillary thereto arising out of the rendering of, or the failure to render, medical care or services." Regarding the notice provided by respondent, the proof demonstrates that respondent had taped on the counter where all patients presented themselves upon arrival at his office a photo copy of Section 358.380, Florida Statutes, which bore the following language prominently printed above the statutory provisions: TO ALL DR. TARDIFF'S PATIENTS I have elected not to carry medical malpractice insurance or otherwise demonstrate financial responsibility; however, I have agreed to satisfy any adverse judgments up to the minimum amounts pursuant to s 458.320(5)(g)1, F.S. I understand that I must post notice in the form of a "sign" prominently displayed in the reception area or provide a written statement to any person to whom medical services are being provided that I have decided not to carry medical malpractice insurance or otherwise demonstrate financial responsibility. I understand that such a sign or notice must contain the wording specified in s. 458.320(5)(g), F.S. No other "sign" or notice was posted in respondent's reception area. Numerous portions of Section 458.320, Florida Statutes, which was reproduced immediately under the foregoing statement, were underlined, including portions of the subsections dealing with the notice requirement. The specific notice requirements were not, however, emphasized in toto or in such a manner as to be readily discernible. Rather, the apparent random underlining was confusing and did little, if anything, to emphasize the required statutory notice. In addition to the foregoing notice, respondent provided each patient, including Patient #1, a form which provided them with various information and disclaimers regarding respondent's practice. Prominently displayed at the top of such form was the following statement: TO ALL OUR PATIENTS: BE IT KNOWN THAT DR. TARDIFF DOES NOT CARRY ANY MAL-PRACTICE INSURANCE AND ALL ASSETS HAVE BEEN PROTECTED EXTENSIVELY. Receipt of such form was routinely acknowledged by the patient's signature thereon, including that of Patient #1. Patient #1 acknowledged, through his testimony, his awareness that respondent did not carry malpractice insurance. Such awareness was gleamed from the foregoing form, as well as the notice he observed taped to the counter in respondent's reception area. Whether Patient #1 specifically noted the disclaimer's language set forth in the statute does not, however, appear of record. Facts relating to respondent's possession of expired medications and record keeping regarding controlled substances. (Case No. 92-1156) On July 19, 1990, the petitioner's investigators made an inspection of the respondent's office located at 2950 Crystal View Court, Miami, Florida. Follow-up inspections were conducted by petitioner's investigators on October 29, 1990, and May 3, 1991. At the time of the aforesaid inspections, the respondent was a dispensing practitioner and registered with the Drug Enforcement Administration (DEA), having been issued DEA number AT589553. At the conclusion of the inspection of July 19, 1990, petitioner's investigators were critical of certain aspects of petitioner's practices. These concerns related to petitioner's record keeping, or lack thereof, with regard to controlled substances; his possession of pharmaceuticals bearing an expiration date that had been reached; his failure to maintain DEA Form 222 as required by Federal law; and, his storage of controlled substances, which included Dilaudid, Demerol, Morphine and Fiorinal with codein number three, in what the investigators perceived to be an unlocked double door refrigerator. With regard to respondent's record keeping with respect to controlled substances, the proof demonstrates that respondent failed to maintain a record of controlled substances received that showed the date of receipt, name and address of the person from whom received, and the kind and quantity of controlled substances received, except to the extent respondent's DEA Forms 222 could be construed to satisfy, in part, such requirements. Respondent's DEA Form 222's do not, however, as hereinafter discussed, reflect the date he received the controlled substances ordered, if at all, and do not account for the variety of controlled substances in his possession. Moreover, respondent failed to maintain any log or record that reflected the controlled substances he sold, administered, dispensed or otherwise disposed of. Regarding the DEA Forms 222, the proof demonstrates that the federal government strictly controls the acquisition of controlled substances and that for a practitioner, such as respondent, to legally order such substances he must be registered with DEA and utilize DEA Form 222 when ordering such substances. See, 21 CFR Sections 1305.01, et seq. The DEA Form 222's issued to practitioners, such as respondent, are sequentially numbered, and each form consists of three copies. The practitioner in ordering controlled substances with the form, fills in the name and address of the supplier from who he is ordering, the number of packages and size of the package ordered, the name of the item, and signs the form. Pursuant to 21 CFR 1305.09(a), the practitioner, as the purchaser, "shall submit Copy 1 and Copy 2 of the order form to the supplier, and retain Copy 3 in his own files." The supplier, pursuant to 21 CFR 1305.09(d), retains "Copy 1 of the order form for his own files and forward[s] Copy 2 to the Special Agent in Charge of the Drug Enforcement Administration in the area in which the supplier is located." The practitioner, pursuant to 21 CFR 1305.13(a), is required to "retain Copy 3 of each order form which has been filled . . . [as well as] . . . all copies of each . . . defective order form . . . ." for a period of two years. The DEA Form 222's produced by the respondent, which total four in number, were not issued in sequential order; Order Form number 861093790 was not retained by respondent; the copy of Order Form number 861093789, retained by respondent, was the Supplier's Copy 1, as opposed to the Purchaser's Copy 3; none of the forms reflect the number of packages received or the date received by respondent; and the forms retained by respondent do not, as discussed infra, account for all controlled substances found in his office. Regarding the missing Order Form number 861093790, respondent averred at hearing that, because he made an error in filling out the form, he destroyed it. Regarding the investigator's concerns regarding expired pharmaceuticals located on respondent's premises, the proof demonstrates that at the time of the July 19, 1990, inspection of respondent's office, the investigators observed a "[l]arge amount of medications over the counter, such as Tylenol, nasal sprays, birth control, antibiotics, muscle relaxants, pain medication covering 21 open shelves about four feet wide each and shelves inside cupboards between five and ten feet. Approximately 40 percent of these medications were expired" [Tr. p. 154]. As to the quantitative amount of expired medications, petitioner's investigator estimated it to be in excess of one hundred medications [Tr. p. 185]. The investigators did not, however, inventory all the medications and the record fails to persuasively demonstrate which of the medications listed on the shelves, if any, carried an expiration date at least four months old. There were, however, expired medications, with an expiration date at least four months old located in the refrigerator, along with current medications, including: Acidophilus culture (expiration date 1986) and Small pox vacine (expiration date May 1978). The expired medications were not, however, shown to be co-mingled with similar medications and the location (the refrigerator) was not shown to be within the "prescription department," as that term is commonly known. Respondent concedes that there were several boxes of expired medications, approximately 80 to 90 pounds worth, at the time of the July 19, 1990, inspection, and certainly some of them carried an expiration date over four months old. Respondent denies, however, that any drugs with an expiration date of over four months were co-mingled with current medications destined for dispensing to patients in Florida and, but for the two items located in the refrigerator, there is no competent or persuasive proof to the contrary. At hearing, respondent offered proof, which is credited, regarding his rational for possession of such large quantities of expired medications. According to respondent, in addition to being licensed to practice medicine in the State of Florida, he is also licensed as a surgeon under the Health Practitioners Law of 1974 in the Cayman Islands, and collects expired medications and samples from other physicians and drug reps which he transports to the Cayman Islands for dispensation or donation to the local hospital or clinic. Use of such medications is apparently permissible under the laws of the Cayman Islands, and it was not suggested or demonstrated in this proceeding to be contrary to the laws of the United States or the State of Florida. Respondent has not, however, been charged or shown to have ever dispensed any expired medications during the course of his practice in Miami, Florida. Finally, regarding the observations of the investigators regarding the storage of controlled substances in an unlocked double door refrigerator, the proof is conflicting. The investigators averred that when they inspected the premises on July 19, 1990, the refrigerator was not locked and that respondent, upon questioning, advised it was never locked. Respondent averred that no such question was posed to him and that had it been he would have advised the investigators that it was his practice to lock the refrigerator with a large combination lock, similar to those used on bicycles, through the double handles on the front of the refrigerator when he was absent from the office or when the office was closed. Moreover, after hours, the operating suite, where the refrigerator is located is locked and the office is locked. Here, the conflict in the proof is resolved to accord deference to respondent's testimony. During the reinspection of October 29, 1990, most of respondent's expired medications were segregated from current medications within the open shelving or boxed. The majority of such expired medications were expectorant, antihistamine and similar medications. There is, however, no competent or persuasive proof as to which, if any, of the medications bore an expiration date of over four months, except for Haldol (expiration date 1981), and as to the Haldol there was no competent or persuasive proof that it was co-mingled with current medications. As with the expired medications observed on the first inspection, respondent averred that the expired medications, as well as others that were not expired, were acquired from other physicians and drug reps for use in the Cayman Islands, and that he did not dispense expired medications to his patients in Miami, Florida. Respondent's testimony is credited. As with the first inspection, the reinspection of October 29, 1990, revealed deficiencies in respondent's record keeping with respect to controlled substances. Respondent still did not have a record of controlled substances received that showed the date of receipt, name and address of the person from whom received, and the kind and quantity of controlled substances received, except to the extent respondent's preexistent DEA Form 222's, heretofore discussed, could be construed to satisfy such requirements. There was, however, no proof that respondent had received any additional controlled substances since the initial inspection. Moreover, while respondent now had a record or log to reflect the controlled substances he sold, administered, dispensed or otherwise deposed of, it had but one entry and that entry was limited to the patient's name, the date dispensed, and an itemization of the medications and the quantities dispensed. During the reinspection of May 3, 1991, petitioner's investigator located only a few medications, approximately six or seven, that were expired. The nature of such medications was not disclosed of record, and whether such medications bore an expiration date at least four months old was not disclosed of record. Respondent was also found to be in possession of pharmacy dispensed medications prescribed to other people. The investigator did not know the nature of such medications but was advised by respondent that it was "expensive" AIDS medication that had been prescribed for his AIDS patients, who had died. It was respondent's intention, which is accepted, to use such medications in the Cayman Islands, and not to distribute such medications to his patients in Miami, Florida. As with the first inspection and the reinspection of October 29, 1990, the reinspection of May 3, 1991, again revealed deficiencies in respondent's record keeping with respect to controlled substances. Respondent had still not compiled a record of controlled substances received that showed the date of receipt, name and address of the person from whom received, and the kind and quantity of controlled substances, except to the extent respondent's preexistent DEA Form 222's, heretofore discussed, could be construed to satisfy such requirement. There was, however, no proof that respondent had received any additional controlled substances since the initial inspection. While respondent's record of controlled substances received was deficient, he had inventoried the controlled substances he purportedly had on hand as of October 30, 1990, and entered such information in the log he maintained to reflect controlled substances sold, administered, dispensed or otherwise disposed of. Neither such inventory nor respondent's DEA Form 222's account, however, for the controlled substance Dilaudid then in his possession, and dispensed subsequent to October 30, 1990, according to his log. As to the log itself, it continued to only reflect the patient's name, the date dispensed, and type and quantity of drug dispensed.
Recommendation Based on the foregoing findings of fact and conclusions of law it is Recommended that a final order be rendered consistent with the foregoing findings and conclusions, and that for those violations for which respondent has been found guilty, that respondent's license to practice medicine be reprimanded, that a fine in the amount of $5,000 be assessed, and that respondent's license to practice medicine be placed on probation for a period of two (2) years subject to such terms and conditions as the Board of Medicine might reasonably prescribe, including continuing medical education courses in record keeping with regard to controlled substances. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of September 1993. WILLIAM J. KENDRICK 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 28th day of September 1993.
Findings Of Fact Respondent is the state agency charged with regulating the practice of dentistry, pursuant to Sections 20.165, 20.42, and Chapters 455 and 466, Florida Statutes and was not a nominal party to the proceedings. Petitioner, John Allison Rowe, D.D.S., (hereinafter referred to as Petitioner Rowe), is a Florida licensed dentist having been issued license number DN-0009364. Petitioner Rowe, at all times material hereto, practiced through a professional service corporation with principal office in the State of Florida. Petitioner, Ralph E. Toombs, D.D.S., (hereinafter referred to as Petitioner Toombs), is a Florida licensed dentist having been issued license number DN-0007026. Petitioner Toombs, at all times material hereto, practiced through a professional service corporation, with principal office in the State of Florida. Petitioner Rowe and Petitioner Toombs each employed less than twenty- five (25) employees at the time this action was initiated. Petitioner Rowe and Petitioner Toombs each had a net worth, including both personal and business investments, of less than two million dollars. In or around 1988, and in or around 1989, Respondent received several complaints from insurance companies concerning Petitioner Rowe's treatment, services, and fees charged to patients through the Central Florida Dental Association and/or other entities. Each insurance company had obtained a review of the services, treatment, and fees charged to the patients and had included that information in their complaint to Respondent. As a result, Respondent began a series of investigations into the allegations against Petitioner Rowe, whose name had appeared as the treating or certifying dentist on all health insurance claim forms submitted on behalf of the patients. The insurance companies alleged that Petitioner Rowe's fees were excessive relative to the customary and usual fees charged for the services, that certain diagnostic tests had been provided to the patients although of questionable medical necessity and acceptance in the dental community, and that certain procedures had been performed in excess of the justified needs of the patient. During the course of the investigation, it became necessary for the Respondent to consult with the Probable Cause Panel on the Board of Dentistry on or about July 12, 1989, and on or about October 13, 1989, to obtain certain patient records without patient authorization. The Probable Cause Panel of July 12, 1989, was composed of members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer. Each of the panel members at the July 12, 1989, meeting indicated that they had received and reviewed the Department's investigative materials. The July 12, 1989, panel found-reasonable cause to believe that there was a question of the medical necessity for the treatment provided such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek the patient's records by subpoena. On or about October 13, 1989, the Respondent again consulted with panel members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer to determine if reasonable cause existed to obtain certain patient records as part of its investigation of Petitioner Rowe. Each of the panel members indicated at the October 13, 1989, meeting that he had received and reviewed the investigative materials presented by the Respondent. The October 13, 1989, panel found reasonable cause to believe that there was a question of medical necessity for the treatment provided to the patient such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek patients' records by subpoena. Following completion of its investigation, on or about April 10, 1991, Respondent initiated an action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the April 10, 1991, Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.W. DBPR Case No. 01-11379 Count II patient E.M. DBPR Case No. 89-02166 Count III patient J.T. DBPR Case No. 89-13187 Count IV patient M.Z. DBPR Case No. 89-02167 Count V patient M.R.V. DBPR Case No. 89-02372 Respondent alleged in the April 10, 1991 Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.W. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; and Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Patient E.M. (Count II) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient J.T. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.Z. (Count IV) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.R.V. (Count V) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. (Ex-A pgs. 1-18). The April 10, 1991 Administrative Complaint was filed at the direction of the November 2, 1990 Probable Cause Panel of the Board of Dentistry. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990 panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the meeting. After brief discussion and receipt of the advice of counsel, the Panel separately took up each investigative report but recommended that the Department consider consolidation of the charges into a single filed administrative complaint The Panel members felt very strongly about the charges as revealed by the investigative reports and consultant's opinions, and in accordance with Section 466.028(7), Florida Statutes, the panel recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek and expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about July 18, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, September 11, 1990, September 17, 1990, and September 18, 1990, Dr. Lilly issued individual detailed reports from review of the investigative materials noting several areas of concern with each patient's treatment and the billing associated with that treatment. As had the June 4, 1990, Probable Cause Panel, Dr. Lilly noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. The November 2, 1990, panel, composed of the same membership as the June 4, 1990, meeting, expressed similar concerns regarding Petitioner Rowe and an apparent lack of concern for treatment effectiveness. Panel member Robert Ferris, D.D.S. expressed praise for Dr. Lilly's reports noting that they were "excellent." The panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinion. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly found that in some cases diagnostic services had been billed twice on the same day although it was customary in the profession to perform the services in one session, that services had been billed which had not been provided to the patients, records were inadequate to justify those services provided, that treatment was provided without appropriate use of diagnostic information, orthotic devices were mischaracterized as surgical devices, fees greatly exceeded the usual and customary charges for certain services, questionable use of arthrogram studies was employed by Petitioner Rowe, certain other diagnostic studies conducted on the patients were of questionable medical necessity, and Petitioner Rowe had misdiagnosed a patient's condition. On or about July 24, 1991, Respondent initiated a second action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the July 24, 2991 Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.D. DBPR Case No. 01-11377 Count II patient R.M. DBPR Case No. 01-11378 Count III patient S.R. DBPR Case No. 01-12140 Respondent alleged in the July 24, 1991, Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.D. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; and Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Patient R.M. (Count II) Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry of dental hygiene. Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient S.R. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. The July 24, 1991, Administrative Complaint was filed at the direction of the April 10, 1991, Probable Cause Panel of the Board of Dentistry. The panel was composed of members Donald Cadle, D.M.D., William Robinson, D.D.S., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the April 10, 1991, panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the April 10, 1991, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the three investigative reports together and recommended that the Department file charges as a single filed administrative complaint. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the April 27, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about April 27, 1990, the department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about December 13, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about February 21, 1991, February 27, 1991, and February 28, 1991, Dr. Lilly issued individual detailed reports from review of the investigative materials again noting several areas of concern with each patient's treatment and the billing associated with that treatment. Dr. Lilly again noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. Dr. Lilly noted that, despite the verification of completeness of records executed by the records custodian and obtained during the investigation of the allegations against Petitioner Rowe, certain patient records and billing information were clearly missing from some patient files. Despite lack of detailed discussion about the Department's recommendations, the April 10, 1991, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly's findings from review of DBPR Case Numbers 01-11377, 01- 11378 and 01-12140 were not dissimilar from those found in reviewing other investigative reports concerning Petitioner. Respondent's investigation of the allegations against Petitioner Rowe was extensive and included information gathering and interviews with the patients, Petitioner Rowe, Frank Murray, D.D.S., and others. On or about December 20, 1990, Respondent initiated an action against Petitioner Toombs, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. The December 20, 1990, Administrative Complaint filed against Petitioner Toombs concerned allegations filed by patient J.T., who had also filed a similar complaint against Petitioner Rowe. Both Petitioner Rowe and Petitioner Toombs disclaimed any knowledge about the care and treatment J.T. had received from them. Petitioner Toombs claimed that Petitioner Rowe and Dr. Frank Murray were responsible for setting the fees charged for services. Petitioner Toombs claimed that he was aware excessive charges had been incurred by some patients who had seen Petitioner Rowe and that the dental practice was aware of the problem and had ignored the problem. Respondent's investigation of Petitioner Toombs was coordinated with its investigation of Petitioner Rowe. In the Administrative Complaint filed December 20, 1990, Respondent alleged that Petitioner Toombs committed the following violations: Patient J.T. Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient. The December 20, 1990, Administrative Complaint was filed at the direction of the November 2, 1990, Probable Cause Panel of the Board of Dentistry, which had also considered the investigative materials for Petitioner Rowe. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990, panel meeting, with the Department's recommendation that an administrative complaint be filed against Petitioner Toombs. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the November 2, 1990, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the investigative report and recommended that the Department file and administrative complaint against Petitioner Toombs. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek a suspension, probation, and fine in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative report to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The June 4, 1990, Probable Cause Panel expressed specific concerns about the billing practices and on the care provided to the patient, i.e., the immediate seeking of oral surgery prior to excluding the use of less invasive techniques. The Panel found that expert review as necessary. On or about July 18, 1990, Respondent forwarded the investigative report for Petitioner Toombs, as well as the reports for Petitioner Rowe, to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, Dr. Lilly issued his report from review of the investigative materials noting several areas of concern with patient J.T.'s treatment and the billing associated with treatment. Dr. Lilly noted that Petitioner Toombs seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and service. Despite lack of detailed discussion about the Department's recommendation for Petitioner Toombs, the November 2, 1990, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from the patient J.T., interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. Respondent's investigation of the allegations against Petitioner Toombs was extensive and included information gathering and interviews with the patient, Petitioner Rowe, Petitioner Toombs, subsequent providers, Frank Murray, D.D.S., and others. On or about July 24, 1991, Respondent amended the Administrative Complaint filed against Petitioner Toombs without substantially altering the alleged violations committed by Petitioner Toombs. In each case, Respondent was required by Section 455.225(4), Florida Statutes, to file the administrative complaints at the direction of the Probable Cause Panel for the Board of Dentistry and prosecute the administrative complaints against the Petitioners according to Chapter 120, Florida Statutes. Both Petitioner Rowe and Petitioner Toombs disputed the allegations of the administrative complaints and the cases were referred to the Division of Administrative Hearings for formal hearing. Petitioner Rowe, without objection from Respondent, sought consolidation of DOAH Case Number 91-03213, representing the charges of the April 10, 1991, Administrative Complaint against him, with DOAH Case Number 91- 6022, representing the charges of the July 24, 1991, Administrative Complaint against him. Petitioner Rowe's cases were consolidated into a single proceeding on or about October 2, 1991. On or about October 18, 1991, this Hearing Officer entered an Order to Show Cause why Petitioner Toombs' case should not be heard concurrently with Petitioner Rowe's consolidated cases. Respondent did not object to hearing the cases concurrently and an Order was issued on November 4, 1991, setting Petitioner Toombs case for hearing concurrently with Petitioner Rowe's consolidated cases. On or about November 4, 1991, Respondent with the full agreement and consent of Petitioners Rowe and Toombs, requested consolidation of the then existing two proceedings. On or about November 18, 1991, the proceedings against Petitioners Rowe and Toombs were consolidated into a single action by Order of this Hearing Officer. During discovery, Petitioner Rowe obtained the original patient records for the eight patients at issue in the consolidated proceeding from Dr. Murray and/or the Central Florida Dental Association. Counsel for Petitioner Rowe provided the Respondent with copies of the records he had obtained in discovery. Counsel for Petitioner Rowe found that approximately 426 pages of records were then contained in the files of Dr. Murray and/or the Central Florida Dental Association, which had not been previously provided to the Respondent despite certification that the records provided to Respondent were complete. The majority of the records obtained by Petitioner Rowe, subsequent to the original finding of probable causes, were records of billing information not previously contained in the patient records. Based on the additional records, Petitioner Rowe and the Respondent moved this Hearing Officer to permit Respondent to amend the administrative complaints against Petitioner Rowe, which request was granted by this Hearing Officer. On or about April 9, 1992, Respondent conferred with the Probable Cause Panel of the Board of Dentistry for the purpose of amending the administrative complaints against Petitioner Rowe. The April 9, 1992, Probable Cause Panel was composed of members William Robinson, D.D.S., Faustino Garcia, D.M.D., and Robert Hudson. Prior to presentation of the proposed amended administrative complaint to the April 9, 1992, Probable Cause Panel, Respondent obtained the assistance of Reda A. Abdel-Fattah, D.D.S. in evaluating the patient records and in the drafting of the amended complaint. Prior to the Panel's consideration of the investigative materials, the Respondent obtained from Petitioner Rowe approximately 426 additional pages from the patient records of the Central Florida Dental Association and/or Dr. Murray and received additional records and information through supplemental investigation. Before directing that an amended administrative complaint be filed against Petitioner Rowe, the panel members at the April 9, 1992, meeting indicated that he had received the investigative materials and reviewed the materials along with the Department's recommendation to amend the complaint. Following receipt of the material and after having the opportunity to inquire of counsel, the April 9, 1992, Probable Cause Panel directed that the proposed Amended Administrative Complaint be filed against Petitioner Rowe. The Amended Administrative Complaint was filed against Petitioner Rowe, at the direction of the April 9, 1992, Probable Cause Panel, on or about April 22, 1992, and alleged the following violations: Count I Section 466.028(1)(b), Florida Statutes by having had a license to practice dentistry acted against by the licensing authority of another state; and/or Section 466.028(1)(jj), Florida Statutes by having failed to report to the Board, in writing, within 30 days if action has been taken against one's license to practice dentistry in another state. Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1978) by making deceptive, untrue or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonable calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VIII patient S.R. DBPR No. 01-12140, DOAH 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count IX patient J.T. DBPR No. 89-13187, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count I of the Amended Administrative Complaint was based on records obtained from the Tennessee Board of Dentistry and had not been previously charged as a violation in this proceeding. Panel Member Donald Cadle, D.M.D., had originally requested in the meeting of April 27, 1990, that the Department included findings as to the Tennessee Board of Dentistry's discipline of Petitioner Rowe in its expert review as possible violation of Section 466.0268(1)(jj), Florida Statutes. Dr. Cadle withdrew his request, after discussion with Panel Member Robert Ferris, D.D.S., finding that the previous disciplinary action was too remote in time for the statute to be applicable in Petitioner Rowe's case. The Probable Cause Panel of April 9, 1992, revisited the issue of the Tennessee Board of Dentistry's discipline of Petitioner Rowe and found that it should be included in the current disciplinary proceeding as part of the amended complaint. The panel failed to recognize the effective date of Section 466.028(1)(jj), Florida Statutes. After considering the additional records provided by Petitioner Rowe and the records obtained in supplemental investigation, the Amended Administrative Complaint dropped the previous allegations that Petitioner Rowe had violated Section 466.028(1)(m), Florida Statutes by failing to keep adequate written records for each patient. The remaining allegations of the original administrative complaints filed against Petitioner Rowe were included in the Amended Administrative Complaint and the following additional allegations were made for each patient: Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry. Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Count VIII patient S.R. DBPR No. 01-12140, DOAH No. 91-6022 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Count IX patient J.T. DBPR No. 13187, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(jj), Florida Statutes was added as a disciplinary provision for the Board of Dentistry effective July 6, 1990, pursuant to Section 3, Chapter 90-341, Laws of Florida (1990). Section 466.028(1)(n), Florida Statutes was repealed effective April 8, 1992, pursuant to Section 6, Chapter 92-178 Laws of Florida (1992). A formal hearing was held on the charges of the Amended Administrative Complaints beginning on or about November 9, 1992, and ending on or about November 13, 1992. As sanction for his non-compliance with prehearing discovery, Petitioner Toombs was limited at the formal hearing to the cross-examination of witnesses and the ability to object to evidence but was not permitted to call witnesses or enter evidence on his behalf. At the formal hearing, the patient records were found to be inherently unreliable and untrustworthy as evidence, due to the inconsistencies found to then exist in the patient records. At the formal hearing, it was established that Frank Murray, D.D.S. had custody and control of the patient records and that he had full control over patient billing and the fees charged for the treatment or services rendered through the Central Florida Dental Association. At the time Petitioner Rowe provided treatment or services to the patients who were the subject of the administrative complaints and amended administrative complaints, Petitioner Rowe was an employee and a shareholder of the Central Florida Dental Association. At the time that Petitioner Rowe provided treatment or services to the patients at issue in the underlying disciplinary proceeding, Frank Murray, D.D.S. made all operational decisions affecting the clinic and its patients. Petitioner Toombs was an associate dentist working for the Central Florida Dental Association and was not a shareholder of the clinic. At the time these cases were investigated, Respondent permitted individuals from whom patient records were sought to copy those records and provide the records to Respondent with an executed verification of completeness of records. For each patient who was the subject of the Respondent's investigation, an employee of the Central Florida Dental Association copied the patient records and submitted the records to the Respondent's investigator with a verification of completeness of records. There was no reason for the investigator to question the accuracy of the executed verification of completeness of records and the patient records appeared generally consistent across patient files. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action finding that Petitioner Rowe had violated Section 466.028(1)(b), Florida Statutes. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action dismissing all charges against Petitioner Toombs and the remaining charges against Petitioner Rowe. At the time services were provided to the patients by Petitioners Rowe and Toombs, Section 466.018, Florida Statutes, required that there be a dentist of record identified in the patient record. Section 466.018, Florida Statutes (1987) provided that the dentist of record was presumed responsible for the patient's care and treatment unless otherwise noted in the record. The records maintained for each of the patients at issue in the underlying disciplinary proceeding revealed that either no dentist of record had been charted or that Petitioner Rowe was the treating dentist of record as indicated by the patient medical history form and the health insurance claim forms submitted on behalf of the patient. Absent the identification of the dentist of record in the chart, Section 466.018(2), Florida Statutes (1987) provided that the owner of the dental practice was the dentist of record for the patient, in this case, Frank Murray, D.D.S., Petitioner Rowe, and the other shareholders of the dental practice. Section 466.018(4), Florida Statutes provided that a dentist of record could be relieved of his/her responsibility to maintain dental records by transferring records to the owner dentist and maintaining a list of all records transferred. There was no evidence presented during the investigation of the underlying disciplinary proceeding or offered at formal hearing to demonstrate that either Petitioner Rowe or Petitioner Toombs had complied with Section 466.018(4), Florida Statutes in transferring patient records to Frank Murray, D.D.S. or the Central Florida Dental Association, i.e., a written statement signed by dentist of record, the owner of the practice, and two witnesses, that listed the date and the records transferred to either Frank Murray, D.D.S. or Central Florida Dental Association.
Recommendation Based on the foregoing, it is hereby, ORDERED: That Petitioners' requests for award of attorney's fees and costs are DENIED. DONE AND ORDERED this 23rd day of November, 1994, in Tallahassee, Leon County, Florida. MARK CLARK 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 23rd day of November, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioners, pursuant to Section 120.59(2), F.S. Adopted in Paragraph 1. & 3. Rejected as unnecessary. Adopted in part in Paragraph 64. The charges with regard to influence for financial gain were included in the amended complaint. & 6. Rejected as immaterial. The panel explained in an earlier meeting that its real concern was with the exercise of influence for financial gain. Rejected as contrary to the weight of evidence. Adopted in Paragraph 54. Rejected as argument that is not supported by the record or immaterial. Adopted in conclusions of law, as to section 57.111, but rejected-as immaterial as to section 120.59(6)(a), F.S. since the agency is not a "nonprevailing party". Adopted in conclusions of law. This finding is, however, disputed by Respondent. Adopted in Paragraphs 2 and 3. Adopted in Paragraph 4 14.-16. Rejected as contrary to the weight of evidence. 17.-19. Rejected as unnecessary, given the conclusion that the complaints were "substantially justified" at the time they were filed. COPIES FURNISHED: Mr. William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0765 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, Florida 32789 Jon M. Pellett, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, Florida 32399-0792
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Respondent, Timothy A. Alexander, is now, and was at all times material hereto, licensed as a physician by the State of Florida, having been issued license number ME 0035285. On June 29, 1995, the Board of Medicine entered a final order which approved and adopted a consent agreement accepted by Respondent in a prior disciplinary action (Case No. 92-11508). Pertinent to this case, the final order imposed an administrative fine in the amount of $1,500.00, against Respondent, which was to be paid within 60 days following the filing of the final order (June 30, 1995). The final order also required that Respondent attend 10 hours of Category I Continuing Medical Education in risk management within one year of the filing of the order. Finally, the order required that Respondent complete the course "Quality Medical Records Keeping for Health Care Professionals," sponsored by the Florida Medical Association, or a Board-approved equivalent, within one year of the filing of the final order.2 Here, there is no dispute or reason to doubt that Respondent timely paid the administrative fine imposed by the final order and that he likewise timely completed the 10 hours of Category I Continuing Medical Education in risk management required by the terms of the final order.3 Consequently, the only viable issue to resolve is whether Respondent timely completed the course "Quality Medical Records Keeping for Health Care Professionals," sponsored by the Florida Medical Association, or a Board-approved equivalent. The course "Quality Medical Records Keeping for Health Care Professionals," sponsored by the Florida Medical Association (the "Course"), is a course designed to help physicians improve their medical record-keeping skills and is divided into two phases. Phase I includes a one-hour credit for preparatory reading and a four-hour credit for on-site instruction in Jacksonville, Florida. The on-site instruction includes one hour of didactic lecture, a two-hour audit practicum, and a one-hour critique of the practitioner's existing records. Phase II is a follow-up critique, designed to be performed at three months following completion of the on-site instruction. At this phase, the practitioner is required to submit another six sets of records for evaluation (the second set), which presumably reflect the benefits of the on-site instruction. The second set of records is evaluated by the same individual who examined the first set and if deemed acceptable the evaluator would immediately notify the Florida Medical Association (FMA), which would issue a certificate reflecting completion of the course. If the practitioner's record-keeping was not acceptable, he would be accorded another three-month period to implement the recommendations, following which he would submit additional records for evaluation. Successful completion of Phase I and Phase II was required for course completion. Here, the proof demonstrates that in or about May 1996, Respondent registered to attend the Course on June 8, 1996, at Jacksonville, Florida, and that on May 9, 1996, the FMA forwarded to him the required preparatory reading material. Respondent attended and completed the June 8, 1996, on-site instruction (Phase I). By letter of August 12, 1996, two months following the on-site instruction, the FMA reminded Respondent that, at three months, he needed to complete Phase II. That letter provided, as follows: The letter is to remind you that it is time for Phase II of the FMA Clinical Excellence Program, "Quality Medical Records Keeping for Health Care Professionals". You completed Phase I on June 8, 1996. The second phase of the course will consist of a self-audit of approximately 10-20 of your own office records utilizing the same audit criteria which were provided in Phase To ensure that the objectives of the course have been accomplished, this audit is performed three months after you have completed Phase I. The three month delay is to allow sufficient time for implementation of the new record-keeping practices in your own medical record keeping system. The same faculty member who critiqued your office medical records during Phase I will provide the critique of your Phase II self- audit. You need not return to Jacksonville to complete the self-audit. At the end of three months, September 8, 1996, six (6) sets of medical records should be mailed to the Florida Medical Association, attention Suzanne Brunette, CME Projects Manager. Please take appropriate measures to preserve patient confidentiality. Your mentor will evaluate the records and report the findings to you. Upon successful completion of Phase II, you will receive a certificate indicating that you have completed the course. No certificate of credit can be issued until Phase II (follow-up evaluation) has been successfully completed. In late October or early November, 1996, Respondent submitted the required medical records for evaluation, they were successfully critiqued, and on November 6, 1996, Respondent was certified by the FMA as having successfully completed the course. Given the proof, it cannot be subject to serious debate that Respondent did not complete the Course, and could not have completed the Course (given the date he elected to take Phase I of the Course and the minimum three-month delay required between the completion of Phase I and the completion of Phase II), within one year after the Board's order was filed. He did, however, timely complete the on-site portion of the Course (Phase I) and successfully completed the follow-up critique (Phase II), with nominal delay. That Phase II and, consequently, completion of the Course occurred outside the one-year period prescribed by the final order was not, apart from the untimeliness itself, shown to be significant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which finds Respondent guilty of violating Section 458.331(1)(x), Florida Statutes, by having failed to timely complete the course "Quality Medical Records Keeping for Health Care Professionals," sponsored by the Florida Medical Association, as alleged in the Administrative Complaint, and that for such violation, Respondent receive a reprimand and an administrative fine in the amount of Fifty Dollars ($50.00). It is further RECOMMENDED that in all other respects, Respondent was not shown to have committed any offense alleged in the Administrative Complaint and that the Administrative Complaint should otherwise be dismissed. DONE AND ENTERED this 12th day of March, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 12th day of March, 1999.
