Findings Of Fact Bell holds license no. ME 0008297 issued by the State of Florida. His license was active from January 7, 1959, until December 31, 1991, at which time Bell's license became inactive because of his failure to pay the renewal fee. Bell is a board certified child and adult psychiatrist. In addition to his practice of psychiatry, Bell practiced general medicine for a year in 1979, worked as a contract physician in several emergency room in Georgia during 1986 and 1987, and worked as a parts warehouseman for an automobile dealership between February and September, 1989. Bell has a long history of alcohol related problems, beginning in August, 1982, when Bell was charged in South Carolina with driving under the influence of alcohol and was later convicted of reckless driving, which Bell acknowledges to have been alcohol related. In 1987, Bell called Roger A. Goetz, M.D., Director of the Florida Physicians Recovery Network (PRN), because he could not find employment in Georgia. He told Goetz that he was an alcoholic and agreed to enter the South Miami Hospital's addiction treatment program. This was not the first alcohol treatment program from which Bell had received treatment. Lynn A. Hankes, M.D., evaluated and observed Bell during his treatment at South Miami Hospital. Dr. Hankes also saw Bell in August, 1988, for a reevaluation. When Bell entered South Miami Hospital, he gave an extensive history of alcohol abuse and he acknowledged that he was an alcoholic. Alcoholism is a primary disease characterized by continuous or periodic impaired control, drinking to excess, preoccupation with the drug of alcohol, the use of alcohol despite adverse consequences, and distortions in thinking, most notably, denial. The disease of alcoholism is progressive, causing multi- system impairment. The alcoholic is impaired and cannot predict or control when his drinking is going to be out of control. Denial is an integral part of the illness and a major obstacle to recovery. According to Dr. Hankes, at the time of his evaluations of Bell, Bell suffered from the disease of alcoholism. Despite the treatment and a period of abstinence after his release, Bell's attitude, awareness, and belief system, as manifested by his denial and lack of insight, indicated to Dr. Hankes that Bell would be unable to change his behavior, vis-a-vis alcohol. In his testimony, Dr. Hankes expressed an opinion that Bell is unable to practice with reasonable skill and safety due to his alcoholism and use of alcohol. However, Dr. Hankes' opinion was based only on his personal knowledge from 1988 and on his review of the reports of the other experts and the interviews with Bell. On August 23, 1988, Bell entered into a five-year contract with PRN in which he agreed to abstain from use of alcohol, to have Dr. Hankes as his monitoring physician, to attend AA three times per week, to attend aftercare, to notify PRN in case of a relapse, to contact PRN two times per month, to withdraw from practice on evaluation at the request of PRN, and to be reported to DPR by PRN if he failed to comply with the contract. Bell claims to have unilaterally "cancelled" his contract about two weeks after signing it, but he failed to advise PRN or anyone else about this cancellation. He cancelled the contract because Dr. Goetz did not find him a job which Bell believed Dr. Goetz had agreed to do if he went to treatment and signed a contract. PRN and Bell corresponded in 1989 and 1991 regarding the contract and Bell's alcohol usage. In August, 1991, Bell advised Dr. Goetz and PRN that he had no problem with alcohol. In May, 1991, Bell was arrested after an alcohol-related incident. The events leading up to this arrest involved a drinking binge Bell had with a lady friend who lived in a trailer next to him. Bell believed that the friend had stolen his carton of cigarettes and bottle of vodka while Bell was "asleep." He went to retrieve these items and entered the friend's trailer through the floor air duct. An altercation ensued involving a butcher knife. On August 22, 1991, Bell pled no contest to the charge of trespass in an occupied structure. At the time of the arrest, Bell's trailer was unkempt and strewn with empty liquor bottles. In December, 1991, at the request of DPR, Bell was examined by two physicians, John E. Perchalski, a family practitioner, and Ernest C. Miller, a psychiatrist and expert in addiction medicine. Bell reported to Dr. Perchalski and acknowledged at hearing that his average daily alcohol intake was 14.5 ounces and that his alcohol intake had remained at that level for many years. Dr. Perchalski assessed this information and determined that Bell had a history of chronic excessive alcohol intake. Additionally, Bell had a high corpuscular volume which can be indicative of excessive alcohol intake. According to Dr. Perchalski, while Bell has no physical disability that would prevent him from practicing medicine, his long history of maladaptive behavior and excessive, regular alcohol intake would make it very difficult for Bell to be able to perform in a completely rational and safe way in his care for his patients. Bell told Dr. Miller that he consumed an average of 14.5 ounces of alcohol per day and that he suffered from occasional blackouts and hangovers. Bell's further discussions with Dr. Miller supported Dr. Miller's opinion that Bell has no insight into his problem with dealing with, relating to, and controlling the use of alcohol and that treatment programs have thus far been unsuccessful. Bell's refusal to admit that he is an alcoholic is consistent with the level of Bell's denial regarding his problems with alcohol. The history given by Bell, the physical examination results, and the evaluation and assessment of Dr. Miller support Dr. Miller's diagnosis of chronic alcoholism, alcohol abuse, alcohol dependency, and gamma alcoholism. Dr. Miller's opinion is that in light of the progressive dysfunctional aspects of the disease, Bell will become incapable of sustaining an effective clinical role. As Bell drinks, which is inevitable without treatment, he will not function effectively and his functioning will become less effective as the disease asserts itself on the various aspects of Bell's being. While Dr. Miller acknowledges that Bell may be able to practice currently, the probability is that he will be or will become unable to practice safely until his disease of alcoholism and its disease process are successfully treated. Bell is not currently practicing so no immediate evidence of impaired practice exists. Additionally, Miller indicated that the ingestion of 14.5 ounces of alcohol would take 20 hours to dissipate from Bell's system and any work with patients before the alcohol dissipated would be affected. Bell maintains that he has no problem with alcohol and that at no time has there been any allegation that he treated any patient while under the influence of alcohol.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order and therein: Suspend the medical license of Robert E. Bell, Jr., M.D., for a period of one year or until he appears before the Board of Medicine and demonstrates that he is able to resume the practice of medicine with reasonable skill and safety. If or when the terms of the suspension have been satisfied, place Dr. Bell on probation for five (5) years with terms and conditions to be set by the Board to insure his continued ability to practice with reasonable skill and safety. At a minimum, the demonstration of skill and safety should be supported by satisfactory mental and physical examinations by Board approved experts and by evidence of successful completion of an acceptable alcohol rehabilitation program. DONE and ENTERED this 26th day of August, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-2204 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 4(2); 5(3); 7(4); 8(12); 9(13); 10(16); 12(6); 13(5); 14(6 & 7); 15(7); 18(9 & 10); 20(15); 21(16); 22(18); 23(19); 24(19); 25(20); 26(21); and 27(23). Proposed findings of fact 2, 3, and 17 are unnecessary. Proposed findings of fact 6, 11, and 16 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 19 is unsupported by the credible, competent and substantial evidence in that Goetz's opinions were based on the evaluations and opinions of other experts and have insufficient support to stand alone. Proposed finding of fact 28 is irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Robert E. Bell, Jr., M.D. Proposed findings of fact 1a, 1b, 1d, 1e, 1f, 1g, 2a, and 2b are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 1c, 1h, and 1i are irrelevant. Proposed finding of fact 2c is unnecessary. COPIES FURNISHED: Larry G. McPherson, Jr. Barbara W. Makant Attorneys at Law Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert E. Bell, Jr., M.D. Route 3, Box 503 Starke, FL 32091 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Petitioner, the Agency for Health Care Administration, is the agency of the State of Florida charged with regulating the practice of nursing pursuant to Chapters 455 and 464, Florida Statutes. At all times pertinent to this proceeding Respondent has been a licensed Registered Nurse, having been issued license number RN 1730452. On July 26, 1993, Respondent was admitted to Palmetto General Hospital where she was given a blood alcohol test. The tests revealed that she had a blood alcohol level of 0.317. The medical records maintained in the regular course of its business reflected that Respondent was diagnosed by Dr. Samuel Pinosky as suffering from depression and alcohol dependency. 1/ On July 29, 1993, Respondent was referred to the Intervention Project for Nurses (IPN), an organization that provides assistance to nurses who suffer from addiction. Respondent refused to cooperate with the IPN and stopped attending meetings during August of 1993. On October 29, 1993, Dr. Pinosky noted in his progress notes that he had seen Respondent and that she has "poor insight into [her] alcoholism" and that her "control issues" were evident. Respondent was subsequently evaluated by Dr. John Eustace, the medical director for the Addiction Treatment Program at Mount Sinai Medical Center of Greater Miami. As of December 10, 1993, Dr. Eustace was of the opinion that Respondent suffered from active alcohol abuse and that she was a potential danger to the nursing profession and to patients whom she might serve. Dr. Eustace noted that Respondent was resistant to usual alcohol rehabilitation treatment modalities. On or about December 29, 1993, Respondent was evaluated by Dr. Stephen Kahn, a psychiatrist and addicitionalist. Dr. Kahn prepared a report based on his evaluation and history of the Respondent. His report, dated January 10, 1993 (sic), 2/ provided, in pertinent part, as follows: Ms. Cifuentes presents a very interesting picture, in that she has a history of psychotic episodes over a nine year period, and functioned very little for almost 15 years, and now [has] what appears to be a somewhat long standing, but more recently quite florid, alcoholism. She shows no sign of any psychotic symptomatology at this time, but her mood is clearly very labile. She clearly suffers addiction to alcohol, and although she has some insight into this disease, she is also in a considerable amount of denial. Emotionally, she has not accepted this disease, and clearly does not want to look at this any longer. Given her degree of denial, and her emotional instability, exacerbated by the recent loss of her husband in a plane accident, the prognosis is not good. . . . [S]he is a high risk candidate to relapse. I do not believe it would be safe for this woman to practice nursing without further therapy geared toward recovery from addiction with possible psychiatric intervention as necessary. Kenneth W. Thompson, M.D., was accepted as an expert witness in the field of addiction medicine. Dr. Thompson testified without contradiction that alcoholism is a disease that requires treatment. There was no evidence that Respondent has accepted the offers of treatment that have been made to her by the IPN or that she has otherwise sought or received treatment for her alcoholism. Dr. Thompson opined with reasonable medical certainty that the Respondent is unsafe to practice nursing due to her alcoholism and due to mental illness. Dr. Thompson's opinions are consistent with the uncontradicted evidence in this proceeding. Based on the record of this proceeding, it is found that Respondent is unsafe to practice nursing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes the licensure of the Respondent, requires the IPN to provide her services if she requests assistance, and provides for reinstatement of her licensure on appropriate terms and conditions upon proof that she can safely practice. DONE AND ENTERED this 10th day of October 1995 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of October 1995.
The Issue Whether the Board of Medicine should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Josefino P. Bargas holds license No. ME 0029440. He has been a licensed physician in Florida at all pertinent times, engaging in the general practice of medicine in central Florida. Internal Bleeding On October 25, 1984, Dr. Bargas admitted then 67-year old Mr. H.S. to Florida Hospital in Apopka. When the patient reached a medical floor at 3:40 that afternoon, Dr. Bargas assumed responsibility for H.S.'s care, taking over from staff in the emergency room, where H.S. had appeared that morning at 11:25. By 4:30 on the afternoon of October 25, 1984, H.S.'s pulse rate had fallen to 77. In the emergency room, Dr. Murphy had ordered "1,000 cc's of D5, half normal saline started with a 200 angio cath in the right wrist with a three-way stopcock ... [which one of petitioner's experts assumed] was in anticipation of giving him blood." T.102. Emergency room staff carried these orders out. The saline solution (with dextrose) was administered in response to apparent dehydration. An apparatus with a larger bore is ordinarily used for blood transfusions. When he arrived at the hospital, H.S. complained of melena and reported a history of ulcers. He had been taking Tagamet for epigastric pain. His pallor, his pulse rate of 104, his hemoglobin of 11.2 grams per liter and his hematocrit of 34% all pointed to decreased blood volume, reduced hemoglobin, and significant bleeding. Dr. Bargas ordered hemoglobin and hematocrit assessments once daily, and a single prothrombin time test, the results of which demonstrated that H.S.'s blood took longer than normal to clot, possibly a side effect of Tagamet. Nurses' notes reflected that stools H.S. passed after he was admitted contained blood. One was the subject of a laboratory test Dr. Bargas ordered to determine blood content; the result was 4+, the maximum indication. On October 26, 1984, Dr. Bargas wrote, on H.S.'s chart, "Bleeding still present?" Nothing about H.S.'s pulse, respiration, blood pressure nor anything in his demeanor indicated significant additional blood loss, although he complained of dizziness when he stood. The same day Dr. Bargas entered written orders, including "DC IV fluids," which signified, "Discontinue intravenous fluids." At two o'clock on the afternoon on the 26th, a nurse discontinued fluids and removed the apparatus through which they had entered H.S.'s vein. Dr. Bargas did not order another to replace it. Unless otherwise specified, a doctor's orders to discontinue intravenous fluids may be construed as a directive to discontinue intravenous access, which can be a conduit for infection. But Geraldine Petrone, for 13 years Director of Nursing at Williston Memorial Hospital, would not remove intravenous access without inquiry of the physician, if she saw "DC IV fluids" in a patient's chart. By 4:35 on the afternoon of October 26, 1984, the laboratory had reported to the floor that day's test results, including a hemoglobin of 7.2 grams per liter. But this had not been charted when Dr. Bargas made rounds at 85 that evening, and he did not inquire as to the laboratory results. The hospital laboratory is open 24 hours a day on an "on call" basis. Customarily, staff acts affirmatively to bring test results as significant as these to the attention of the treating physician. Before Dr. Bargas' arrival the following morning at 10:30, the nursing staff also learned the October 27 blood test results. Alarmed particularly at one of them, a hemoglobin of 5.5 grams per liter, and unable to reach Dr. Bargas, a conscientious nurse told the chief of staff about the situation. He ordered that four liters of blood be "typed and cross-matched," and that H.S. be given two units of blood. Only after Dr. Bargas arrived, however, did the transfusion begin. The drop in hemoglobin from 11.2 to 5.5 grams per liter reflected a loss of at least half the volume of H.S.'s blood, a "potential crisis situation." T. 87. Because hemoglobin measurements are "always behind in a patient that is bleeding," (T.87) hemoglobin and hematocrit testing only at 24- hour intervals is not adequate. When a patient is bleeding internally, minimum acceptable practice requires monitoring at intervals of "[s]ix hours at the outside, probably four," id., unless significant bleeding is known to have stopped. It would also have been better practice to order blood-typing, cross- matching, and intravenous access as precautionary measures or, as regards access, at least to have held off on ordering discontinuance of the access already in place (notwithstanding its straitness.) If evidence exists that a patient is actively bleeding, cross-matching should be done right away. T. 176. Physicians order blood typed and cross-matched as a precaution, in case an emergency transfusion proves necessary, even though blood that is not used must be wasted. "[P]eople can go into shock at any time." Reddy Deposition, p.11. Typing and cross-matching take about a half hour. Sometimes veins collapse before access is established, making it impossible to accomplish a transfusion, although such venal collapse is extremely rare. Reddy Deposition. Diabetes with Infection On October 26, 1984, Dr. Bargas admitted Mr. A.S., 51 years old at the time and disabled, to Florida Hospital. In the history he took on admission, Dr. Bargas noted that A.S. was taking "NPH insulin 25 units," Petitioner's Exhibit No. 4, twice daily. Although A.S. may have begun this regimen only a week or two before admission, he had taken insulin orally for a period of years, and was "an insulin-dependent diabetic." Londono Deposition, p.14; McClelland Deposition, p.13. "He obviously was a pretty sick type of individual. He was dehydrated. He was febrile. He was nauseous. He was vomiting. And he had what seemed to be a rotten foot." Id., p.11. Septicemia, a blood borne infection apparently attributable to A.S.'s infected, ulcerated right leg, was among A.S.'s medical problems Dr. Bargas recognized on his admission to hospital. "With high blood sugars, there can be problems with white blood cell response to infection." McClelland Deposition, p.9. Insulin makes glucose in the blood available for use by cells, normalizing blood levels. When he entered the hospital, A.S.'s blood sugar level was elevated. Blood sugar levels at "a controlled diabetes level" range between 60 or 70 and 120 or 200 milligrams per milliliter. Londono deposition, p.12. An elevated blood sugar level is not critical or life-threatening in itself, unless it exceeds 500 milligrams per milliliter. Id., pp.11, 12. N.P.H. insulin "lasts" 24 to 36 hours, but regular insulin has a half-life of less than 30 minutes. Blood glucose levels oscillate in response to regular insulin, in no less than two to three hours, and, in response to "long acting insulin anywhere between 8 and 24 hours." Londono Deposition, p.21. On A.S.'s admission, Dr. Bargas ordered urinalysis and a blood sugar test "stat." He prescribed regular insulin, depending on the urinalysis results. Dr. Bargas wrote: Rx urine for sugar & acetone and give regular insulin accordingly 4+ 20 units 3+ 15 2+ 10 1+ 0 Petitioner's Exhibit No. 4, p.123A. Because blood tests for glucose levels are much more precise than urine tests, which only approximate blood glucose levels, Dr. Bargas' prescription for "insulin ... on a sliding scale for urine," Londono Deposition, p.15, left something to be desired. Dr. Bargas ordered urine tests for sugar and acetone four times a day, and blood tests, which are more expensive, once daily. As with A.S., a patient may be unable to void on schedule. Urine collects in the bladder over time; accordingly, urine test results for glucose reflect an average, which may be misleading. The volume of blood moving through the kidney affects the concentration of glucose in the urine. Renal thresholds (the levels at which glucose leaves the blood to enter the urine) vary among individuals. The correlation between glucose levels in blood and urine is particularly problematic when a diabetic is acutely ill. Infection can cause elevated blood glucose levels, and affect kidney function. Test results known to Dr. Bargas indicated A.S. had impaired kidney function. At four o'clock on the afternoon of the 26th, the "clinitest" for sugar in A.S.'s urine yielded a result of "3+." A.S. received 15 units of regular insulin an hour and a half later. A contemporaneous blood test indicated 398 milligrams of glucose per milliliter of blood. At seven o'clock (or half past) on the evening of October 26, 1984, A.S. received a second dose of 15 units of regular insulin. T.48; Petitioner's Exhibit No. 4, p.220. Between six and seven the following morning and again at ten, A.S. was unable to produce a urine specimen. A blood test on a sample taken at ten o'clock indicated 264 milligrams of sugar per milliliter of blood. Tests on urine samples taken later on the 27th, at half past noon, at five o'clock and at seven o'clock yielded "+1." In keeping with Dr. Bargas orders, no insulin was administered to A.S. that day. A blood sample taken at quarter past two on the morning of October 28, 1984, in conformity with Dr. Bargas' order to test "stat.," indicated 399 milligrams of sugar per milliliter of A.S.'s blood. The laboratory apprised Dr. Bargas of these results. At 4:30 on the morning of the 28th, a urine test yielded a "3+." Three hours later A.S. received 15 units of regular insulin, his first insulin in some 36 hours. At no time did test results reflect ketosis. Even for general practitioners in Apopka in 1984, the failure to order more frequent blood sugar tests, and insulin coverage as indicated by such tests, for an insulin-dependent diabetic suffering from septicemia and a foot infection fell below minimum levels of acceptable practice. Dr. Bargas' approach, although once very common, was "antiquated" even than. His use of regular insulin, rather than N.P.H. insulin was appropriate. But allowing 36 hours to elapse between doses of regular insulin, and failing to order insulin promptly on learning the results of the tests the morning of the 28th, fell below standards.
Recommendation It is, accordingly, in consonance with Rule 21M-20.001(t) Florida Administrative Code, RECOMMENDED: That the Board of Medicine suspend Josefino P. Bargas license to practice medicine for sixty (60) days, and thereafter until he has completed at least three (3) days instruction on the management of diabetes, and paid a one thousand dollar ($1,000) fine; and that, once his license is reinstated, he be placed on probation for a year, on condition that a representative of the Board of Medicine review a sample of his charts monthly to determine that they demonstrate that he is practicing at least minimally acceptable medicine. DONE AND ENTERED this 24th day of May, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1989. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 6, 8 through 14, 16 through 30, 37, 40, 45, 46, 50, 51, 53 through 57, 63, 65, 69, 73, and 74 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 7, the test were done after admission. With respect to petitioner's proposed finding of fact No. 15, Dr. McBride ordered that two units be administered. Petitioner's proposed findings of fact Nos. 31, 32, 33, 38, 39, 47, 48, 58, 59, 60, 61, 62, 64, 66, 71 and 72 relate to subordinate matters. Petitioner's proposed findings of fact Nos. 34, 35, 36, 41, 42, 43, 44, 49 and 52 accurately recite the substance of the witnesses' testimony they report. With respect to petitioner's proposed finding of fact No. 68 the test results were not charted when he was at the hospital that evening. With response to petitioner's proposed finding of fact No. 70, he testified that he did not even believe he might be bleeding. With response to petitioner's proposed finding of fact No. 75, Dr. Bargas' testimony did raise resal questions of this kind. Respondent's proposed findings of fact Nos. 4, 5, 7, 8, 12, 14, 15, 18, 19, 20 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 1, 3, 6, 11, 16, 17 and 22 have been rejected, as unsupported by the weight of the evidence. With respect to respondent's proposed finding of fact No. 2, H.S. was not stabilized and his wishes, which were not proven, are not determinative. With respect to respondent's proposed finding of fact No. 9, clinical observations here included bloody stools and indicated more frequent testing. With respect to respondent's proposed finding of fact No. 13, whatever Dr. Reddy would have done, minimum standards were not met. With respect to respondent's proposed finding of fact No. 21, a preponderance of the evidence established, although not clearly and convincingly, that failure to order more frequent blood test fell below standards. COPIES FURNISHED: Robert L. Hessman Rumberger, Kirk, Caldwell, Cabaniss, Burke & Wechsler, P. A. 101 North Monroe Street, Suite 900 Tallahassee, Florida 32301 Stephanie A. Daniel 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 Peter Langley, III Post Office Box 486 Bronson, Florida 32621 Dorothy Faircloth, Executive Director Board of Medicine, Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0729 =================================================================
The Issue The issues in this case are whether Respondent violated Subsection 464.018(1)(j), Florida Statutes (2006),1 and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this proceeding, Ms. Penansky has been licensed as an A.R.N.P. in Florida, having been issued license number ARNP1302962 in 1982. From 1993 through August 2006, Ms. Penansky was employed as an A.R.N.P. at the Dover Clinic of Suncoast Community Health Centers, Inc. (Suncoast). She was the primary certified nurse midwife at the facility and saw the obstetric/gynecology patients. During 2004, Carmen Laguerra, who was the office manager at the Dover Clinic, smelled alcohol on Ms. Penansky’s breath at work and observed Ms. Penansky’s hands trembling. A couple of times, Ms. Laguerra observed that Ms. Penansky was having trouble walking at work and would put her hand on the walls to support herself. Ms. Penansky came to work at times with bruises on her arms and face. In the fall of 2004, the coordinator of medical records at the Dover Clinic asked Ms. Laguerra to observe Ms. Penansky in the medical records room. Ms. Laguerra observed Ms. Penansky murmuring to herself. Prior to 2004, Ms. Penansky had demonstrated a quiet demeanor. In 2004, Ms. Laguerra observed a change in Ms. Penansky’s demeanor. Ms. Penansky became more outspoken and opinionated. In 2004, Yolanda Guzman, the supervisor of nurses at the Dover Clinic, noticed the smell of alcohol on Ms. Penansky’s breath and body while at work. Ms. Guzman also noticed that Ms. Penansky’s hands were trembling and that Ms. Penansky’s speech was not clear. Ms. Guzman observed bruises on Ms. Penansky’s arms and face. Ms. Guzman reported her observations to Ms. Laguerra and to Subhakrarao Medidi, M.D., who was the associate medical director at the Dover Clinic. Dr. Medidi smelled alcohol on Ms. Penansky’s breath one time in 2004. On multiple occasions, he observed Ms. Penansky’s hands shaking. After receiving patient complaints, Dr. Medidi confronted Ms. Penansky about the smell of alcohol. Ms. Penansky denied the use of alcohol, claiming that the smell resulted from the use of mouthwash. Dr. Medidi also recalled one time, in particular, when Ms. Penansky came to work with bruises. George Hammond, the chief administrative officer at Suncoast, met with Ms. Penansky to discuss the observations of employees at the Dover Clinic. Ms. Penansky denied the use of alcohol at work. He directed Ms. Penansky to get a blood- alcohol test. She did as directed, and the result of the test was negative. Mr. Hammond directed Ms. Penansky to contact the Intervention Project for Nurses (IPN), which is the impaired practitioner program for the Board of Nursing. IPN is an independent program that monitors the evaluation, care, and treatment of impaired nurses. IPN oversees random drug screens and provides for the exchange of information between treatment providers, evaluators, and the Department. Ms. Penansky contacted IPN and was referred to Martha E. Brown, M.D., for an evaluation. As part of the evaluation, Ms. Penansky underwent a drug test, which was negative for drugs and alcohol, but was considered dilute. When a drug test is dilute, it usually means that the individual tested consumed a significant amount of fluids prior to the test. Ms. Penansky advised Dr. Brown that she averaged drinking almost every day, but had stopped drinking about ten days prior to the evaluation. As a result of abstinence, Ms. Penansky told Dr. Brown that she felt better and was able to stay up later and get up earlier. Ms. Penansky advised Dr. Brown that her brother had a problem with alcohol and had not had a drink in 20 years. In a report dated November 8, 2004, Dr. Brown opined that there was suspicion for Ms. Penansky having a substance abuse problem. She recommended that Ms. Penansky enter into an abuse contract with IPN for two years with a one-year review. Ms. Penansky entered into an IPN contract in December 2004. Her participation in the program included random drug screening, joining a support group, attending Alcoholics Anonymous meetings, and being evaluated by her supervisor. During her participation in the program, she was tested for alcohol 17 times, and each time the test was negative. Ms. Penansky completed the program in one year. While Ms. Penansky was participating in the IPN program, employees at Suncoast observed positive changes in her. Ms. Penansky’s appearance and mood improved, and the tremors in her hands disappeared. On July 31, 2006, Ms. Penansky was involved in an automobile accident. As a result of the accident, she sustained some bruises to her body, which were visible to employees at the Dover Clinic. In August 2006, while Ms. Penansky was at work, Ms. Guzman again smelled alcohol on Ms. Penansky’s breath and noticed Ms. Penansky’s hands were shaky, and her speech was not normal. Ms. Laguerra also smelled alcohol on Ms. Penansky while Ms. Penansky was at work during the same time period. In August 2006, Dr. Medidi noticed that Ms. Penansky’s hands were shaking again. Ms. Penansky denies that she had alcohol on her breath at work in either 2004 or 2006. However, both Ms. Guzman and Ms. Laguerra testified credibly that they smelled alcohol on Ms. Penansky’s breath and that the smell was different from the smell that would come from the use of mouthwash, which has a medicinal smell. Additionally, Ms. Penansky testified that in 2006 she was not using the mouthwash prior to going to work because she felt that in 2004 her fellow employees had mistaken the smell of the mouthwash for the smell of alcohol. Thus, the smell could not have come from mouthwash in 2006 because Ms. Penansky was not using it. Ms. Penansky commenced a change in her eating habits in which she had lost 50 pounds. In 2006, she was still losing weight, but not at a very rapid pace. At the final hearing, there were some allegations that the odor that Ms. Guzman and Ms. Laguerra smelled was a result of a release of ketones due to Ms. Penansky’s diet. However, the smell caused by ketones is a “sweet smell,” which is different from the smell of alcohol. Another allegation at the final hearing was that the smell could be a result of Ms. Penansky’s periodontal disease, but the smell that would result from a periodontal disease would be different from the smell of alcohol. Neither Ms. Guzman nor Ms. Laguerra had any conflict with Ms. Penansky that would cause them to make false allegations against her. In fact, both Ms. Guzman and Ms. Laguerra were highly complementary of Ms. Penansky’s work, aside from the use of alcohol and the hand tremors. The evidence is clear and convincing that in 2004 and in 2006, Ms. Penansky came to work at the Dover Clinic with alcohol on her breath while she was practicing as the primary midwife at the facility. In August 2006, the observations of Ms. Guzman and Ms. Laguerra were made known to the management at Suncoast. Suncoast elected not to require Ms. Penansky to undergo a drug screening to determine whether she had ingested alcohol. On August 3, 2006, Ms. Penansky was terminated from her position with Suncoast for her use of alcohol and directed to contact IPN. After Ms. Penansky was terminated from Suncoast, she went to work for a private physician. Her employment was uneventful, and she continued in his employ until the Department suspended her license by emergency order. Ms. Penansky did not contact IPN, and Suncoast filed a complaint with the Department. An investigation ensued. The Department required Ms. Penansky to be evaluated. In January 2007, Ms. Penansky was again evaluated by Dr. Brown. Ms. Penansky advised Dr. Brown that she had returned to drinking occasionally after she completed her program with IPN, but denied drinking on the job or drinking in large amounts. A drug screen was performed on Ms. Penansky, and the result was negative. Dr. Brown diagnosed Ms. Penansky with alcohol abuse, "rule out alcohol dependency." Credibly, Dr. Brown opined that Ms. Penansky appeared “to be either in denial or minimizing the impact alcohol has had on her life and the problems she has had at work with others smelling alcohol on her breathe [sic] multiple time [sic].” It was Dr. Brown’s opinion that in order for Ms. Penansky to be able to practice with reasonable safety and skill that she should minimally complete an intensive outpatient program and have monitoring through IPN. Ms. Penansky was also evaluated by Raymond A. Johnson, M.D., who came to the conclusion that Ms. Penansky did not have an addiction and alcohol problem. He felt that she was safe to practice nursing without treatment or monitoring by IPN. In his report dated January 22, 2007, he stated that Ms. Penansky used mouthwash multiple times a day because of periodontal disease, and he concluded that the use of the mouthwash was the reason for the smell of alcohol on her breath. His argument loses plausibility based on Ms. Penansky’s testimony at final hearing that she was not using the mouthwash in 2006 prior to going to work so that people would not mistake the smell of mouthwash for the smell of alcohol. Dr. Johnson had a psychological evaluation performed on Ms. Penansky by Nicholas Anthony, Ph.D. In his report, Dr. Anthony stated that Ms. Penansky told him that her brother was no longer allowed to use alcohol because he had been diagnosed with diabetes. Based on Ms. Penansky’s representations, he concluded that she did not have a family history for addiction. Ms. Penansky’s account of her brother’s abstinence differed when she related her family history to Dr. Brown. She did not tell Dr. Brown that her brother had stopped drinking because he was a diabetic. At the final hearing, she did not mention that her brother refrained from drinking because of diabetes. At the final hearing, Ms. Penansky testified: Well, what he [her brother] told me, in fact, what he told the whole family was, at one point he said he just felt like he was drinking too much and decided to stop. That was it. He never said anything about being an alcoholic. He never said he was diagnosed by a physician. He made a personal choice. Dr. Anthony tested Ms. Penansky using the Minnesota Multiphasic Personality Inventory-II (MMPI), The Rorschach, and the Million Clinical Multiaxial Inventory-III (MCMI). The Rorschach, otherwise known as the “ink blot” test, is not commonly used in the field of addiction psychiatry to look at substance abuse diagnoses. In the field of psychiatry, alcohol abuse and alcohol dependency are considered Axis I, or primary, diagnoses. The MMPI and the MCMI are more accurate and effective in diagnosing other Axis I disorders such as psychosis than in diagnosing substance abuse or dependency. This is due to the fact that individuals with substance abuse or dependency problems often attempt to present themselves in the best possible light when answering the test questions. The test results themselves for these individuals are often invalid because the test either misses the substance abuse or dependency diagnosis or identifies the individual’s denial or minimization tendencies. The Adult Clinical Interpretive Report for Ms. Penansky’s MMPI test states: [Ms. Penansky] approached the test items in a somewhat defensive manner. Her overcautious approach to the items suggests that she is concerned with making a good impression and is reluctant to disclose much about her personal adjustment. Interpretations of the clinical and content scale profiles should allow for her possible minimization of problems. The Adult Clinical Interpretive Report for Ms. Penansky’s MCMI test states: Unless this patient is a well-functioning adult who is facing minor life stressors, her responses suggest an effort to present a socially acceptable appearance or a resistance to admitting personal shortcomings. Inclined to view psychological problems as a sign of emotional or moral weakness, the patient may protectively deny any unseemly traits or symptoms. This probably reflects either a broad-based concern about being appraised unfavorably by others or an active suspicion of the arcane motives of psychological inquiry. Her MCMI-II scores have been adjusted to compensate for her defensiveness, but the overall profile may remain partially distorted. An interpretation based on standard interpretive procedures is likely to be reasonably valid but may fail to represent certain features of either the patient’s disorders or her character. The BR scores reported for this individual have been modified to account for the defensiveness suggested by the prominence of Personality Patterns Scale 7 (Compulsive). Dr. Anthony interpreted the results of Ms. Penansky’s test scores as being negative for a diagnosis of alcohol abuse or dependency. Dr. Johnson relied on Dr. Anthony’s interpretation of test results in forming his opinion that Ms. Penansky was negative for a diagnosis of alcohol abuse or dependency. Dr. Brown reviewed the Adult Clinical Interpretive Reports of the MMPI and the MCMI performed on Ms. Penansky by Dr. Anthony and opined that the tests are bordering on invalid and that, given Ms. Penansky’s defensiveness on the test in answering questions, she would not use the test results as a total basis for concluding that Ms. Penansky did not have a problem with alcohol. Given Dr. Johnson’s reliance on the use of mouthwash as the explanation for the smell on alcohol on Ms. Penansky’s breath, the lack of credibility in Ms. Penansky’s account of her family history, and the defensive answers given by Ms. Penansky on her psychological testing, Dr. Johnson’s opinion concerning Ms. Penansky’s alcohol abuse lacks credibility. Current and former employees of Suncoast highly regarded Ms. Penansky’s work. Her evaluations were very good. She worked very hard, and the quality of her work was excellent. However, alcohol abuse can affect a nurse’s judgment and ability to practice with reasonable skill and safety. Alcohol may slow concentration and thinking and thereby cause a nurse to miss a diagnosis or symptom while treating a patient. Alcohol abuse may cause tremors, such as those experienced by Ms. Penansky. Although Ms. Penansky’s alcohol abuse may not have resulted in patient harm, it does not mean that it will not result in harm in the future. It is not necessary to wait for a patient to be harmed to determine whether a nurse can practice with reasonable skill and safety by reason of use of alcohol.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that B.J. Penansky, A.R.N.P., violated Subsection 464.018(1)(j), Florida Statutes; imposing an administrative fine of $250; requiring her to undergo an IPN evaluation; suspending her license until such time as she undergoes an IPN evaluation; requiring compliance with all IPN recommendations, if any; and placing her on probation for three years with direct supervision. DONE AND ENTERED this 25th day of September, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 25th day of September, 2007.
Findings Of Fact Respondent is a licensed chiropractor in the State of Florida and was so licensed at the time of the alleged violations. He holds License No 2167 issued by the State Board of Chiropractic Examiners. On December 24, 1975, pursuant to a request of Randy Spector for a blood test, Respondent extracted a blood sample from Spector. At this time, Respondent informed Spector that he would send the blood sample to MET-PATH laboratories for testing and that the results would be back in approximately a week or ten days. A few days later Spector visited Respondent's office and was informed by him that the tests were fine and that he was in good health, but he did not have the results back from the laboratory. Respondent's wife, who was present, told Spector that the laboratories do not always send the test back unless they are asked for or unless something was wrong. This sounded like "double talk" to Spector and he asked Respondent for the test results. Respondent said that he would call the lab on the phone and obtain the results. On January 2, 1976, Spector again visited Respondent's office and was provided the report of blood analysis. Respondent explained some of the entries on the report and after so doing, Spector asked him to sign the report. Respondent did so. Thereupon Spector gave him a check for $15.00 in payment for the test and was provided a receipt. (Testimony of Spector, Petitioner's Exhibits 1,2 & 3) Spector was now convinced that the analysis of his blood had not been made by MET-PATH laboratories and therefore called that company several times during the next week or so. Each time he was informed by that concern that they had not received any of his blood for testing from Respondent. On January 5, 1976, Spector's legal counsel wrote a letter to Respondent advising him that Spector believed that the test results were fabricated and asserted a claim for malpractice and fraud. Respondent's counsel responded by letter of January 19 denying the allegations and stating that "if there was any error, it was simply an error in transposition of any test results and there was no resulting damage of any nature whatsoever to your client". (Testimony of Spector, Respondent's Exhibits 1 & 2). Spector contacted Dr. George Fica, a chiropractor who had been treating him and his wife. He told him of his complaint against Respondent and indicated that the matter was going "to be blown sky high" and that the press would be involved. However, Spector told Fica that if Respondent apologized, he would drop the matter. He showed Fica the blood test results and Fica told him that they were in normal limits but that some of the tests would have required the use of a laboratory. Fica talked to the Respondent about Spector's complaints and his claim that MET-PATH Laboratories had not done the work. Respondent stated that he had done it with a machine in his office. Fica then questioned him about certain tests such as triglycerides, which required laboratory analysis. Respondent then informed him that he didn't do the work in his office, but that he was using many labs for blood work and that his secretary had typed the wrong information on Spector's report. (Testimony of Fica) About January 12th or 13th, Spector went to Respondent's office and told him that the matter had gotten out of hand and that he wanted to straighten it out. Spector checked Respondent's tape recorder to make sure it was not running and also looked up and down the hallway outside his office and then closed the door. During the course of the conversation, Respondent apologized for not sending Spector's blood sample to MET-PATH and told him that he had run the tests in his own office and that they had been transposed in error. Spector told Respondent it would cost him a lot of money to go to court and indicated that the matter should be settled. (Testimony of Spector; Respondent) It was stipulated that Respondent had not sent Spector's blood sample to any laboratory for analysis. Respondent testified that he had originally planned to send Spector's blood to MET-PATH but due to a previous fire that destroyed much of his office, he had no usable mailing cartons for this purpose. Therefore, he did those tests that he could perform on a machine in his office. A number of the tests could not be done on the machine and he was unaware that his secretary had typed entries for such tests on the report given to Spector. Respondent speculated that the secretary must have mistakenly used figures from another patient's blood test when preparing the report. This explanation is not deemed credible in view of Respondent's contradictory statements in this regard to Spector and Fica as set forth in the foregoing findings. The laboratory cost for preparing a blood analysis is approximately $10.00. (Testimony of Resp., Pet.'s Exh. 4) Respondent has been a chiropractor for approximately 13 years and enjoys an excellent reputation for competence in his field. An associate, who has been in his office for the past several months, has never observed him engage in an unethical practice. (Testimony of Respondent, Fica, Gordon)
Recommendation That the Florida Board of Chiropractic Examiners issue a reprimand to Respondent, R.H. Grant, for violation of Section 460.13(3)(h), Florida Statutes. DONE and ENTERED this 25th day of October, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida Charles A. Sullivan 1245 20th Street Post Office Box 3 Vero Beach, Florida 32960
The Issue Whether Respondent violated Subsection 466.028(1)(s), Florida Statutes (2000-2005), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of dentistry pursuant to Section 20.43 and Chapters 456 and 466, Florida Statutes (2006). Dr. Driggers is a licensed dentist in the State of Florida, having been issued license number 5473. The Professional Resource Network (PRN) is the impaired practitioner program for the Board of Dentistry, pursuant to Section 456.076, Florida Statutes (2006). PRN monitors the evaluation, care, and treatment of impaired healthcare professionals. Dr. Driggers has a long history of problems with alcohol. On January 15, 1987, he was arrested for driving under the influence (DUI). He was adjudicated guilty of that offense. In 1990, Dr. Ken Thompson did an intervention on Dr. Driggers based on Dr. Driggers' alcohol abuse. As a result, Dr. Driggers was admitted to Glenbeigh Hospital of Tampa for a three-day evaluation of alcoholism and chemical dependency. Dr. Driggers was diagnosed with alcohol abuse and benzodiazepine abuse. Dr. Martin Zfaz, who evaluated Dr. Driggers, recommended that Dr. Driggers attend an outpatient treatment program with Dr. Ken Thompson five days a week, attend 90 Alcoholic Anonymous (AA) and Narcotics Anonymous (NA) meetings in 90 days, and obtain a sponsor. On December 17, 1990, Dr. Driggers entered into an Impaired Practitioner Program of Florida Physicians Recovery Network Advocacy Contract. The contract required that he "abstain completely from the use of any medications, alcohol, and other mood altering substances." He agreed to attend a self-help group meeting such as AA or NA three times per week, to participate in continuing care group therapy one time per week, and to attend a 12-step program of recovering professionals every other week. The contract was for five years, with renewal subject to review by PRN. Dr. Driggers did complete an outpatient treatment program with Dr. Thompson by February 1991. He did attend some meetings of recovering professionals. In January 1992, PRN referred Dr. Driggers to Anton M. Krone, M.D., for an evaluation of Dr. Driggers' status. Dr. Driggers told Dr. Krone that he had not completely abstained from consuming alcohol, but that his consumption had not caused a problem. He was not attending AA meetings and did not have a sponsorship. Dr. Driggers did not consider himself to be an alcoholic and was opposed to attending AA meetings and abstaining completely from drinking. Dr. Krone opined that "it would be very difficult to engage [Dr. Driggers] in a recovery process at this time which is abstinence based." Dr. Krone suggested that "PRN follow him on an informal basis and watch to be sure that he is not getting into future trouble and to be ready to intervene with him promptly if such trouble begins to appear." The contract between Dr. Driggers and PRN dated December 17, 1990, was voided as of February 1992. On October 6, 2000, Dr. Driggers was again arrested for DUI. He drove his car into the back of a car stopped at a red light. He was given a breathalyzer test, which showed a blood alcohol level of .23, which is almost three times the limit for a presumption of DUI in Florida.1 Dr. Driggers did not feel like he was intoxicated and blamed the accident on his leaning over to prevent carry-out food from falling to the floor. He was adjudicated guilty of DUI in October 2001. Dr. Driggers reactivated with PRN and agreed to an inpatient evaluation. On November 13, 2000, he went to Shands at Vista for the evaluation. Dr. Thompson evaluated Dr. Driggers and concluded that he was concerned about Dr. Driggers' ability to practice with reasonable skill and safety. He made the following recommendation for the treatment of Dr. Driggers: "Return for inpatient detoxification with further assessment. I do not believe that in view of his denial, stress, shame, and anxiety level that he would likely be very successful in detoxing himself on an outpatient basis even with supervision." Dr. Driggers remained at Shands at Vista until he was discharged on March 9, 2001, with a diagnosis of alcohol dependence, sedative dependence, and anxiety disorder. On April 1, 2001, Dr. Driggers signed another five- year Impaired Practitioners Program of Florida Physician Recovery Network Advocacy Contract. As before, Dr. Driggers agreed to abstain completely from the use of any medications, alcohol, and other mood altering substances. He agreed to attend self-help meetings such as AA or NA three to four times per week. He agreed to attend a PRN monitored professional support group. Dr. Driggers agreed to participate in a random urine drug or blood screen program within 12 hours of notification. On June 23, 2004, Dr. Driggers tested positive for a metabolite of alcohol based on an ethyl glucuronide test, which detects metabolites of alcohol in urine. On July 12, 2004, Dr. Driggers again tested positive for a metabolite of alcohol based on an ethyl glucuronide test. His July score was higher than his June score. Dr. Driggers admits that he had not completely abstained from the use of alcohol and that he occasionally had a glass of wine with his new wife. Dr. Driggers rationalized his consumption of alcohol with the following comment: "I didn't think that the--that a glass of wine on a particular day would--would not only show in urine, but I didn't think that it was any major thing at the time. It was--it was something I did that I regret." On August 16, 2004, Dr. Driggers was referred by PRN to Martha E. Brown, M.D., for an evaluation. Dr. Driggers admitted to Dr. Brown that he had not abstained completely from alcohol. He told her that he went to PRN group meetings for a while, but quit going to the meetings. Dr. Brown concluded that she did "not feel Dr. Driggers can practice with reasonable skill and safety. He has been diagnosed with Alcohol Dependency in the past, yet has again resumed drinking. He appears to have much minimization of his alcohol use with rationalizations about it is okay that he has returned to drinking." Dr. Brown recommended that Dr. Driggers continue to participate in PRN, follow PRN recommendations, enter into a long-term residential treatment for chemical dependency, and abstain from all mood altering substances, including alcohol. In September 2004, Dr. Driggers sought a second opinion from Chowallur Dev Chacko, M.D., who is board-certified by the American Board of Psychiatry in general psychiatry, addiction psychiatry, and forensic psychiatry. Based on Dr. Driggers' long history of alcohol abuse and his continuing to drink while under a monitoring contract with PRN, Dr. Chacko opined that Dr. Driggers was not able to practice his profession with reasonable skill and safety and recommended that Dr. Driggers receive long-term residential treatment for his alcoholism. Dr. Driggers refused to follow the recommendations of either Dr. Brown or Dr. Chacko. On November 9, 2004, PRN sent notice to the Department advising that Dr. Driggers was not in compliance with his PRN monitoring contract. On June 17, 2005, Dr. Driggers returned to Dr. Brown for a new evaluation. Dr. Brown was still of the opinion that Dr. Driggers had a substance dependency problem and needed treatment. During her evaluation of Dr. Driggers, he told her that he would not be in PRN and would not follow PRN's recommendations. He was in severe denial concerning his chemical dependency. Dr. Brown recommended that Dr. Driggers should participate in PRN and follow the recommendations of PRN; that Dr. Driggers should minimally enter a partial hospitalization program with a step-down to an intensive out- patient program for his chemical dependency; that he should abstain from all mood altering substances, including alcohol; that he should attend 90 meetings of a self-help program in 90 days; and that he should turn in a signed list for attendance at 12-step meetings for six months to document his recovery. Dr. Driggers was evaluated by Jeffrey A. Danziger, M.D., on September 8, 2005, at the request of Dr. Driggers' attorney. Dr. Danziger opined that Dr. Driggers did not meet the criteria for alcohol dependence or active alcohol abuse at the time of the evaluation. Dr. Danziger diagnosed Dr. Driggers with posttraumatic stress disorder, in remission, and alcohol abuse, in sustained full remission. It was Dr. Danziger's "opinion that, from a psychiatric standpoint, Dr. Driggers did not have any substance abuse or psychiatric problems that would impair his ability to safely function as a dentist." Dr. Danziger explained that much of his evaluation was focused on whether Dr. Driggers posed an immediate danger that would justify an emergency suspension. Dr. Brown reviewed Dr. Danziger's evaluation report on Dr. Driggers and her prior evaluations of Dr. Driggers. On January 30, 2006, she opined as follows: I continue to believe that Dr. Driggers has a diagnosis of Alcohol Dependency as evidenced by having a BAL [blood alcohol level] of .2 at the time of one of his second DUI, indicating tolerance to the use of alcohol as "social" drinkers at a BAL of .2 would not have been able to get in their car to drive; he has been unsuccessful in his efforts to control his substance use while in PRN (he had continued to drink while in PRN) and again, if he was a social drinker, should have been able to completely abstain from substance use in PRN without any difficulty; and he has continued to use alcohol despite knowledge of having a persistent and recurrent problem with alcohol. Certainly of note is the fact that he has had not one but 2 DUIs in his past. He continues to have a great denial about the disease of chemical dependency and the need to abstain from all mood altering substances. This type of thinking poses an extreme risk to the public for him practicing without appropriate monitoring of his status by PRN. Alcohol Dependency is a permanent medical disease that does not go away once you develop it. A healthcare professional that has Alcohol Dependency must have long-term, appropriate treatment and monitoring to ensure they do well and can practice. In the most recent records you sent, numerous individuals gave affidavits that they have never seen him impaired while practicing. However, I would point out that simply not drinking at work, or not looking impaired, does not translate into whether one can practice their profession with reasonable skill and safety. Dr. Brown continued to recommend abstention from alcohol and mood altering substances, outpatient treatment, and participation in PRN monitoring. If those recommendations were followed, she felt that he could practice with reasonable safety and skill. However, Dr. Driggers has continued to refuse to participate in any PRN monitoring. On September 27, 2006, Dr. Danziger again evaluated Dr. Driggers. He was still of the opinion that Dr. Driggers had a diagnosis of alcohol abuse rather than alcohol dependence. Once you have a diagnosis of alcohol abuse, you will always have alcohol abuse, but it can be in remission. He agrees with Dr. Brown that Dr. Driggers is in need of outpatient treatment and monitoring. Whether Dr. Driggers' drinking problem is labeled alcohol abuse or alcohol dependence, the consensus of the experts in addiction psychiatry who evaluated Dr. Driggers is that Dr. Driggers must have some type of treatment and must be monitored in order for him to be able to practice dentistry with reasonable skill and safety. Dr. Driggers has been disciplined previously by the Board of Dentistry in 1989.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Driggers has violated Subsection 466.028(1)(s), Florida Statutes (2004); giving Dr. Driggers a written reprimand; requiring Dr. Driggers to undergo a new evaluation by a PRN- approved evaluator; requiring Dr. Driggers to comply with PRN recommendations; and suspending his license until he undergoes further evaluation and begins compliance with PRN recommendations. DONE AND ENTERED this 17th day of April, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 17th day of April, 2007.
Findings Of Fact Valaria Alsina has been licensed as a medical physician in Florida since 1976 and was so licensed at all times here relevant. On August 19, 1980, Elsa Trujillo and her daughter Nancy, age 12, visited the office of Respondent for treatment. This was the initial visit to Respondent by these patients. Patient histories in Exhibit 3 for Elsa show the first entry to be October 7, 1980; however, the language used in this history clearly shows this to be not Elsa's first visit. Respondent's testimony and reports submitted by Respondent to Petitioner, Exhibit 3, reveal initial complaints by this patient to be dizziness, urinary tract infection, vomiting, vaginal discharge, headache, depression, burning sensation while voiding, and dark urine. Respondent did a urinalysis, took blood for testing, did a PAP smear and vaginal irrigation. Other treatment rendered this patient was not disclosed. The skin and blood tests performed constitute the gravamen of the charges here involved. In Exhibit 1 Respondent billed the insurance carrier for Elsa $359.50 for this visit of August 19, 1980. Those blood tests, the necessity for some of which is questioned by Petitioner, are for glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including sodium, potassium, chlorides, and carbon dioxide) total protein, bilirubin, and albumin. The reason the need for these tests is questioned is because they were billed to Prudential Insurance Company as individual tests for each of which Respondent billed from $10.00 to $20.00. These tests are normally performed by medical laboratories in groups, automatically, in which testing machines are programmed to do certain tests on one blood sample introduced into the testing machine. These automatic testing procedures are generically designated "SMA" and are known as SMAC-6, SMAC-16, SMAC-26, etc., with the number denoting the number of tests performed. Those blood tests performed on the Trujillos are all included in the SMAC-22 program for which a laboratory normally charges the doctor $10-$12. Had these tests been charged as SMAC-22, the fact that several were unnecessary would have been accepted because, as a SMAC-22 neither physical nor financial harm resulted to the patient from the unnecessary blood tests conducted. The SMAC-22 could have been performed as cheaply as or cheaper than two manual and individual tests. Since Petitioner's expert witnesses both agreed that some of the tests conducted on this patient were indicated from the symptoms presented, the only fault they found was in Respondent's performing, and charging the patient for, individual and manual blood tests for which there was no medical justification. Nancy Trujillo was seen by Respondent on August 19, 1980. For this visit Respondent billed Prudential Insurance Company $262.50. Clinical data prepared by Respondent for Nancy shows usual childhood diseases, tonsillectomy, adenoid-ectomy, fever, sore throat accompanied by ear pains and swelling, patient complaining of weakness, history of anemia, poor appetite, burning sensation when voiding, dark urine, and a skin rash on right leg. Patient's weight was recorded as 70 pounds, but neither height nor temperature was recorded. In addition to a complete physical examination, a urinalysis, skin culture, and sensitivity test were done, and blood chemistry tests included complete blood count, calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. These blood tests, all of which (except the cbc) are included in a SMAC-22, were billed as having been performed as individual tests at costs ranging from $10.00 to $17.50 each. Treatment prescribed for Nancy consisted of aspirin suppositories. Respondent testified that Nancy was under weight, although her height was not measured, and that she took Nancy's temperature but failed to record it. Jose Trujillo was seen by Respondent on February 4, 1981, as a patient. Clinical data recorded by Respondent on this visit (Exhibit 3) include ". . . history of diverticulitis of colon, states that have diet but feels like some abdominal discomfort accompanied by diarrhea and feels weak. Patient with history of admission in the hospital, admission Palmetto General Hospital. Some lower discomfort abdomen and dark urine." For this visit prudential Insurance Company was billed $340 for complete physical examination (genital exam omitted) complete blood count; urinalysis; blood tests including glucose, BUN, creatinine, calcium, phosphorus, uric acid, electrolytes (including calcium, potassium, chlorides, and carbon dioxide) total protein, cholesterol, triglycerides, SGOT, SGPT, and alkaline phosphates; urine culture; sensitivity test; and collection and handling. The blood tests were all included in a SMAC- 22 but were billed as individual and manually performed tests with costs ranging from $10.00 to $20.00 each. Petitioner's expert witnesses both testified that some of the tests performed on these three patients were indicated by the symptoms and complaints described. Other tests conducted were not appropriate for the symptoms given. They also agreed that had these tests been conducted and billed as a SMAC-22 they would not consider that that could be a violation of the Medical Practices Act because, even though some of these tests were not medically indicated, they "come with the package" and would not increase the cost to the patient. However, when conducted manually and individually and so billed, the practice of conducting blood tests for which there is no medical justification does not conform to the generally prevailing standards in the medical community. Because of the findings below, it is unnecessary to denote those tests performed on each of the Trujillos for which there was no medical justification. Although billed to Prudential Insurance Company as manually and individually performed, the blood tests on the three patients above-named were conducted as a SMAC-22 and were not performed manually and individually as testified to by Respondent. This determination is based on the following facts, circumstances, and rationalizations: Respondent sent the blood samples from these three patients to Central Medical Laboratory, Inc., for a SMAC-22 test. Respondent testified that she performed each of the series of 10 to 15 tests on the blood samples of these patients in 20 to 30 minutes; however, other medical witnesses testified it took a trained technician 20 minutes to perform one of these blood tests manually. The latter testimony is deemed more credible. Many of these tests have subjective characteristics, such as color comparisons, and identical results from the same blood sample tested by two technicians or run through the same automated process would be rare. The odds against a technician performing individual and manual tests on 16 blood samples and obtaining the identical result on all tests that is obtained from a commercial laboratory SMA test is astronomical. Yet, the one report obtained from Central Medical Laboratory for the SMAC-22 conducted on the blood sample from Jose Trujillo (Exhibit 7) is identical to the "manual and individual" test report maintained by Respondent for the same blood sample in Exhibit 3--with one exception. The laboratory found the triglyceride test to be 254 MG/DL, well outside the 30-175 range for this test. On Exhibit 3 Respondent recorded 175 for this test. She testified she sent blood samples from the three Trujillos to the laboratory to have a check on her tests but did not ask the laboratory to do a recheck on the triglycerides test on Jose or recheck her test for triglycerides after receiving the laboratory report. Only a small amount of blood (5 or 10 cc) is required for an automated procedure for up to 40 different tests, whereas at least three times this amount of serum would be required for 10 tests conducted manually or individually. Accordingly, manual testing would require the drawing of a lot more blood than would be required for automated testing in a commercial lab. Respondent testified that she sent one-half of the blood sample taken on each Trujillo to the laboratory and kept the other one-half to test in her office. Commercial medical laboratories are licensed by the state; are checked for compliance with proper procedures; equipment used is checked for proper calibration at frequent intervals; reagents used in the testing is frequently replaced; and, when compared to the equipment, procedures, calibration, and reagents used in a physician's office which are subject to no regulation, the former should provide the more reliable test in a much shorter time. The equipment in Respondent's office is capable of being used to conduct all of the tests on these three patients for which Respondent billed Prudential Insurance Company. No rational explanation was provided to justify having a SMAC-22 performed and duplicating these tests manually. Respondent's testimony that the SMAC-22 was ordered to check the results of the manual tests she performed is not credible. If a check on the manual tests conducted on blood samples of Nancy and Elsa Trujillo for the August 17, 1980, visit was desired, it would appear appropriate to check the office procedures by doing a SMAC-22 on only one of those blood samples, rather than have both of these samples checked as was done here. Repeating this "check" on the sample taken from Jose Trujillo on February 4, 1981, does not make sense. Either the laboratory test is trusted or it is not. The same applies to the individual tests conducted manually in the office. If confident of the procedures, there would be no reason for Respondent to check the manual tests conducted in the office by sending one-half of the serum to a commercial laboratory. Respondent testified that Central Medical Laboratory picks up blood samples at her office daily. This suggests that some tests are routinely ordered by Respondent and conducted by the laboratory, and no evidence was presented to rebut such a conclusion. On the other hand, Petitioner presented no evidence of the volume of tests conducted by Central Medical Laboratory for Respondent which would solidify this conclusion. Nor did Petitioner submit the SMAC-22 results obtained by Central Medical Laboratory for the blood test conducted on the serum taken from Elsa and Nancy Trujillo on August 17, 1980, to see if they too were identical to the results shown in Exhibit 3. The only rational explanation for having SMAC-22 tests performed in a commercial laboratory and reporting these tests as done individually and manually in Respondent's office is the amount the insurance company will pay for the latter is nearly ten times what they will pay for the former. Laboratory tests billed for Jose Trujillo for the February 4, 1981, visit amount to nearly $250. Charges submitted for these tests reported on the SMAC-22 (Exhibit 7) amount to $187. Respondent testified she paid for the SMAC-22 tests she ordered and did not bill the insurance company for these tests because "they won't pay for both" SMAC and manual tests performed on the same sample. Since the lab charged Respondent only $10-$12 for the SMAC-22 tests conducted, the insurance company would not pay $187 if these tests were charged as automated tests. Considerable evidence was submitted that there was no medical justification for certain of the tests performed on Nancy, Elsa, and Jose Trujillo. For Nancy, these unnecessary tests included tests for calcium, glucose, BUN, creatinine, albumin, bilirubin, total protein, and SGPT. For Elsa, these unnecessary tests were calcium, phosphorus, uric acid, total protein, bilirubin, with either BUN or creatinine justified, but not both. For Jose, no medical justification was shown for manually performed tests for glucose, calcium, phosphorus, electrolytes, SGDT and SGNT. In view of the finding above, that these tests were not manually done but were performed as a SMAC-22, the fact that they are not medically justified if done manually becomes immaterial.
