The Issue The Petitioner does not assert any specific basis for her appeal in her Petition; however, based upon the presentation at the formal hearing, the Petitioner essentially asserts that the practical examination does not conform to the Board's rules and that the practical portion of the examination was arbitrary and capricious as administered. Summary: Testimony was received from the two individuals who graded the practical portion of the examination, a member of the Board who participated in preparing the examination and a member of the Department of Professional Regulation staff who possessed expertise in the construction and administration of examinations. The Petitioner did not testify regarding the examination. The Petitioner's case was based upon the divergence of the two examiners' grading on certain required procedures, specifically Blend and "Skip Waving." The Petitioner had the burden to show that the examination failed to conform to the Board's rules or was arbitrary and capricious. The Petitioner failed to prove her case. The Board's initial determination should be approved.
Findings Of Fact Petitioner applied for licensure by examination to practice cosmetology in Florida on the basis of having completed 600 hours of instruction in cosmetology. This is the minimum number of hours with which one may be admitted to the examination. The Petitioner took the examination on May 4, 1981, which consisted of a written portion and a practical examination. Petitioner received a grade of 87 on the written examination and a grade of 73 on the practical examination. A passing grade on the practical examination is 75. The practical portion of Petitioner's examination was graded by Elinor Commander and Laura Petty, both of whom are licensed cosmetologists, cosmetology instructors, and have several years of experience in administering and grading practical examinations of the type Petitioner was given. The examination was based upon the Board's rules and the points assigned to each of the required tasks had a reasonable relationship to the practice of cosmetology and protection of the consumer from unqualified practitioners. The instructions provided the Petitioner before coming to the examination and prior to taking the examination were adequate to apprise the Petitioner of the skills she would have to demonstrate and the standard by which these skills would be assessed through the use of a live model. The examiners, Commander and Petty, were well trained and experienced in administering and grading this type of examination. The use of two examiners is acceptable testing procedure and provides fairness to the applicant and public. The examiners used the same written criteria to assess the Petitioner's performance, recording their observations on score sheets received as Exhibit K. The observations of the examiners as recorded in Exhibit K are accepted as accurate, and made a part of these findings in the absence of any conflicting testimony. The two examiners did not check the Petitioner's work at the same time, or compare their findings, making independent assessments of the Petitioner's work. The manner of assessing Petitioner's work by the examiners made it possible that each examiner did not look at the same portion of the model's hair and resulted in different observations by the examiners. The examiners concurred on the assessment of Chemical Straightening, Base; Hair Bleaching, Application and Sub Parting and Coverage-Retouch. They concurred in part on Hair Shaping, Blend. They found different deficiencies on Chemical Straightening, Relaxer Application, and Hair Styling, Skip Waving. The examiners concurred in the majority of their findings, and each found items the other examiner had overlooked. Both examiners stated essentially the same standards for assessing all of these criteria.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Board take no action on the Petition filed by Mary R. Nelson challenging her grade on the practical examination she took on May 4, 1981. DONE AND RECOMMENDED this 21st day of December, 1981, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1981. COPIES FURNISHED: George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301 Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue to be determined is whether Respondent has violated sections 456.072(1)(hh) and 458.331(1)(s), Florida Statutes (2009), and if so, what sanction should be imposed?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 73326. Respondent's address of record is Post Office Box 18977, Panama City Beach, Florida 32417. His medical practice is radiology. Professionals Resource Network, Inc. ("PRN"), is an impaired practitioner's program authorized pursuant to chapter 456, which monitors the evaluation, care, and treatment of impaired healthcare professionals. Among those functions performed by PRN or as part of its program are random drug and alcohol screens, and the exchange of information between treatment providers and the Department for the protection of the public. PRN also arranges for evaluations of professionals to determine whether any impairment a professional may have, whether attributed to use of drugs or alcohol, or physical or mental illness, presents a danger to the health, safety, and welfare of the public should the professional continue to practice his or her profession. July Rivenbark, M.D., is a board-certified psychiatrist and addictionologist, and is the current medical director of PRN responsible for the oversight of the program and documentation of compliance and noncompliance with PRN monitoring contracts. During at least part of the time relevant to these proceedings, Dr. Rivenbark was the assistant medical director and Dr. Raymond Pomm, M.D., was the director. Dr. Natalie Sohn was, during approximately 2005-2007, Respondent's girlfriend, with whom he shared a home. On or about December 6, 2006, Respondent and Dr. Sohn were involved in an incident involving domestic violence. During the incident, Respondent twisted Dr. Sohn's arm and pulled her hair, causing her scalp to bleed. Dr. Sohn testified that Respondent had consumed 3-4 drinks of cranberry and vodka prior to the incident and was under the influence of alcohol. When asked about the incident, Respondent indicated that his hand got caught in Dr. Sohn's hair, and he "accidently" tore a piece of her scalp. Although Dr. Sohn "dropped the charges", the State Attorney did not. As a result, Respondent entered what he referred to as a "pass and plea" agreement in February 2007, requiring "small counseling sessions." Respondent completed a court-mandated batterers intervention program for which a discharge summary by Dr. Connie Ingraham was issued on or about May 3, 2007. Shortly after the completion of the batterer's intervention program, Respondent was involved in a second domestic violence incident. On May 11, 2007, police were called to Respondent and Dr. Sohn's residence for a second time. Respondent states that Dr. Sohn "fell." The police report, however, states that her elbow was bruised and bleeding slightly, and that she also had slight swelling in her lower back area.1/ More importantly, however, for the purposes of this proceeding, is the statement by the arresting officer: It should be noted while talking with Mishlove, he appeared to be slightly intoxicated and at times appeared not to understand what I was saying either from the use of alcohol or drugs. While I was completing the paperwork in my vehicle for Mishlove, he began to cry at times and he seemed to be very upset. Dr. Sohn testified in her deposition that during the time she shared a home with Respondent, he often drank alcohol, and also used cocaine. She also reported that toward the end of their personal relationship, she and Respondent were asked to leave a cruise ship while docked in Copenhagen because of Respondent's actions after drinking. Dr. Sohn's testimony is credited. From August 2006 through August 2007, Respondent was employed by Imaging Consultants of South Florida ("ICSF").2/ At that time, Dr. Carl Rosencrantz was the managing partner of the office group. While Respondent was employed by ICSF, St. Mary's Hospital performed a background check in connection with reappointment of his staff privileges. Staff at St. Mary's called Dr. Rosencrantz, because their background check revealed the two domestic violence incidents described above. While Dr. Rosencrantz initially thought the problem was an interpersonal issue, he soon believed that alcohol was involved. Dr. Rosencrantz spoke to Respondent about the reports, and asked him to contact PRN for treatment. Respondent denied he had an alcohol problem and refused to contact PRN. As a result of his concerns, Rosencrantz ultimately terminated Respondent's employment with ICSF. On or about August 27, 2007, Dr. Rosencrantz referred Respondent to PRN, citing the two episodes of domestic violence. His referral states that there had been an incident where Respondent did not call in and missed work for five days, the lab techs at St. Mary's Hospital are afraid of him, and that "there appears to be some underlying anger issues along [with] the use (excessive) use of alcohol." Also received by PRN was an e-mail from Steve Robertson, M.D., another doctor with the same group, dated August 31, 2007. The e-mail stated that Respondent was suspended from the group after showing up intoxicated at Good Samaritan Hospital the day before. Dr. Robertson's e-mail to PRN stated: fter being confronted by the chief radiologist at that hospital yesterday, he made implied threats against the radiologist and his family and had to be escorted by security out of the hospital. Today he attempted to show up for work at St. Mary's Hospital as per original schedule despite being told that he was on indefinite suspension and appeared again to be intoxicated as per staff at that hospital and was again escorted out of the facility by security. . . . Dr. Robertson testified in his deposition that he was present when Dr. Mishlove appeared for work at Good Samaritan Hospital, and that he was not focusing, "smelled like a bar," had an unstable gait and could not sit still. Dr. Robertson stated, Respondent was "definitely not the sort of person that really could sit down and perform their duties as a radiologist and focus on critical patient needs." On August 30, 2007, Dr. Sohn also referred Respondent to PRN, stating that his drinking was out of control. This same day, Respondent had an encounter with the police at the Breakers Hotel in Palm Beach. The police report states in pertinent part: On 8/30/07, at approximately 1700 hours, I responded to 1 South County Road, Breakers Hotel, in reference to an unwanted guest. . . . We made contact and identified him as Lawrence Mishlove w/m 10/1/62. I asked Mishlove what was going on and he said he did not know. I immediately could tell Mishlove was intoxicated due to his demeanor, the smell of alcoholic beverage on his breathe [sic], and his slurred speech. Mishlove was also staggering around with a food substance on his face and his pants not zipped up. I informed Mishlove of the trespass issue with the hotel and made sure he understood. Mishlove agreed that he understood and Ofc. Madden made arrangements for a cab ride. Mishlove said he did not need a cab and was going to drive himself home. I informed him that he was not driving due to his intoxication and reminded him of the cab. At this point, Mishlove began to get irritated and began demanding my name and badge number. I complied by offering a business card with my badge number on it numerous times. Mishlove would not take the business card, but still demanded the information. He then began to state to Ofc. Madden and I that he better not ever see us in his emergency room. Mishlove was stating this in a manner and tone implying we would not receive medical attention if we were in need. Based on the referrals from Respondent's employer and Dr. Sohn, Debra Troupe from PRN attempted to call Respondent on September 5, 2007. However, he did not speak to her. On September 6, 2007, Dr. Pomm wrote to Dr. Mishlove, notifying him that PRN had received information that he may be experiencing difficulty affecting his ability to practice with reasonable skill and safety, and encouraging him to contact Debra Troupe within three days. Dr. Pomm advised that "failure to do so will require my referral of the information received to the Department for appropriate investigation." Respondent signed for the letter on September 19, 2007. In the meantime, however, Dr. Mishlove was arrested for DUI in Palm Beach, Florida, on September 7, 2007. The police incident report states in pertinent part: When I approached the car, I knocked on the glass so the driver would open the door. As soon as the door was opened, I was overwhelmed by the odor of an unknown alcoholic beverage. The driver had heavy bloodshot eyes. I asked the driver to exit the car which he did, however, while standing he had to lean against the car for support. The driver, [was] later identified as Lawrence A. Mishlove, white male, dob/100162, by his Florida d/l. . . . I had to ask Mishlove several times to walk to the rear of the car. He appeared unsteady on his feet and seemed to need to lean on the car for stability. I had to ask him several times for his FL d/l before he would produce it. His speech was slow and slurred when he spoke. Officer Anderson and Riley arrived as back up. . . . . I asked Mishlove to submit to roadside sobriety tasks. He refused. Officer Anderson advised him that failure to submit to roadside tasks could be used against him in court. He refused again. Based on the evidence prior to the refusal, I placed Mishlove under arrest for DUI. While I was attempting to handcuff Mishlove, he began to yell that I was hurting him. Whenever I touched him, he would scream and yell. He was placed into the rear passenger side seat and belted in. . . . While I was traveling to the PBSO Jail, Mishlove threatened me on several occasions. He said he was a surgeon. He told me if I ever ended up on his operating table, that he would see to it I was through. He also said if I had a wife and kids, he would make sure they were through also. He also continually threatened to have me fired. . . . Mishlove refused to give his name or any other info. He refused to give a breath sample. I read implied consent and he refused again. I read his constitutional warnings and he asked for his attorney. I stopped questioning him at this time. I put Mishlove into a cell while I finished my paperwork. After I finished my paperwork, I had Mishlove exit the cell and sit. He began telling everybody in the room that I was gay. He accused me of hitting him repeatedly. He refused to sign the citations for DUI and failure to maintain a single lane. I charged with failure to sign a citation. I packaged up Mishlove's property which included $1160.25 in cash. I removed his belt. I placed him back into handcuffs and told him to hold onto the rear of his pants. While walking to intake, he let his pants go and they dropped. PBSO Intake deputies assisted Mishlove to intake. Whenever a deputy would touch Mishlove, he would yell that he was being hurt. " On September 25, 2007, Dr. Pomm notified Respondent by certified mail that his case had been referred to the Department of Health. On or about October 17, 2007, Respondent finally called PRN and agreed to be evaluated. He reported that he was suspended at DelRay Hospital and had some problems at Good Samaritan, but denied that there was any basis for the "fabricated" allegations against him. On October 29, 2007, Respondent was evaluated by Dr. Jason Jerry, M.D., a board certified psychiatrist and addictionologist. Dr. Jerry's psychiatric assessment was completed December 5, 2007. Dr. Jerry reviewed materials supplied by PRN and interviewed Respondent. During the evaluation and at hearing, Respondent claimed that he rarely drank alcohol and never used illicit drugs. He stated that his use of alcohol was limited to one or two drinks of wine or beer a month. With respect to absences from work, he claimed to be absent due to a virus. With respect to past psychiatric history, the report indicates that Respondent was Baker Acted in 2002 by the Chief of Staff at the hospital where he worked, and stayed in a psychiatric facility for one week. Respondent claimed the involuntary commitment was initiated after a contract dispute. Dr. Jerry's report indicated that Respondent was also evaluated by a psychiatrist in connection with a child custody hearing. In terms of his mental status evaluation, Dr. Jerry reported that Dr. Mishlove arrived fifteen minutes late for his scheduled evaluation, and that, during the process of being checked in, got up from his chair and closed and locked the door, and expressed concern regarding the confidential nature of the evaluation. He was dismissive of all of the allegations against him and was reluctant to give consent to allow access to any prior records or treatment providers.3/ The Axis I diagnosis identified by Dr. Jerry was to rule out alcohol abuse (DSM IV 305.00) and rule out alcohol dependence (DSM IV 303.90). With respect to Axis II, he listed rule out Narcissistic Personality Disorder. All three diagnoses are recognized in the Diagnostic and Statistical Manual IV. In his recommendations, Dr. Jerry stated: It is the opinion of the undersigned that Dr. Mishlove's aberrant behavior over the preceding 12 months calls into question his ability to practice medicine with reasonable skill and safety. Until the etiology of such behavior can be clarified, it is recommended that he should only be allowed to return to practice under the close supervision of The Florida Professionals Resource Network (PRN). Furthermore, a protracted urine monitoring program (perhaps two years) that includes ethyl-glucuronide (EtG) may help corroborate or refute Dr. Mishlove's claim that he rarely consumes alcohol. Since the patient's reported alcohol consumption, roughly two drinks per month, should not be enough to trigger urine EtG, any such result would merit immediate re-evaluation of this individual's fitness to practice medicine. On January 11, 2008, Respondent signed a two-year Substance Abuse Monitoring Contract with PRN. The contract included random urine drug screens and weekly facilitated groups. The group sessions were required to assess and observe Respondent's mental and physical condition. Random urine screens were required to detect drugs or alcohol excreted through the urinary system. The contract signed by Respondent contained, among others, the following provisions: I agree to participate in a random urine, drug, hair testing and/or blood screen program through FirstLab/U.S. Drug Testing Laboratories within twelve hours of notification. I will release by waiver of confidentiality the written results of all such screens to the Professionals Resource Network to validate my continuing progress. I agree to abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medications unless ordered by my primary physician, and when appropriate, in consultation with the Professionals Resource Network, I agree to send copies of all prescriptions to the Professionals Resource Network for my file. * * * Lewis Hoechstetter, Ph.D., LHC, CAP, CAS, SAP has been selected as my monitoring professional located [insert address] and telephone number]. I will attend a weekly PRN monitored professional group with Dr. Lewis Hoechstetter.[4] I agree to notify the Professional Resources Network of any changes in physical or mental health, address or employment. * * * I agree to notify the [PRN] in the event of use of mood altering substances without a prescription from one of the physicians above. I agree to provide appropriate release forms for urine screen results, treatment center records, therapist reports, and other written and verbal information required to comply and be in compliance with the above requests. * * * 12. I agree to return messages left by the PRN staff within 24 hours. My case manager is Debra Troupe. * * * 15. If I fail to comply with this contract, it may result in my being reported to DOH through the PRN and/or withdrawal of advocacy with appropriate agencies. * * * 17. I will complete psychological testing within ninety (90) days. The contract also includes an Authorization and Consent to Release Confidential Information, which in turn includes the following: I, Lawrence Mishlove, M.D., pursuant to 42 CFR Section 2.31 (1999), hereby authorize the Professionals Resource Network to disclose any records maintained by the [PRN] in regards to my treatment and/or participation in the program to the Department of Health for any purpose permitted by law including but not limited to potential disciplinary action against my professional license. This information may include, but not be limited to, medical information, psychiatric, psychological, and drug and/or alcohol treatment records as well as information regarding my participation in the [PRN] program. I hereby release the [PRN] from all legal liability that may arise from the release of said information. * * * I understand and specifically consent that, regardless of any subsequent revocation of this consent, any information that has been forwarded from the [PRN] to the Department of Health or their designee in reliance upon this consent may be used by the Department of Health or their designee for any purpose permitted by law, including, but not limited to, potential disciplinary action against my professional license and I understand and specifically consent that information contained in my records may become public as a result of said investigation and action. Respondent initialed each term of the monitoring contract and indicated that he understood the contract requirements. Despite his agreement to be monitored by PRN and to attend weekly sessions, his actual attendance and his submission to random testing was sporadic at best. For example, by July 10, 2008, Respondent had been to only one group session in the previous quarter. As a PRN participant, Respondent was assigned a color for the purpose of random urine screens. Every weekday (Monday through Friday), Respondent was expected to call a number provided by PRN to see if his color had been chosen for screening. If his color came up, Respondent had twelve hours to present himself to a designated lab to provide a urine sample. Respondent was set up to test once weekly. The paperwork for his testing was completed and he was scheduled to begin testing on Friday, February 22, 2008. PRN only received results of the test if they were positive. Negative tests were not retained. If a participant was out of town and unable to test, then the participant was required to submit evidence of his or her travels, such as a plane itinerary or ticket. During the period from March 17, 2008, through January 3, 2009, Respondent traveled extensively during the week, making him unavailable for testing. Specifically, the record reveals that Respondent traveled during this time as follows: On March 17, 2008, Respondent called and stated he was in California and would return on March 22, 2008. An airline itinerary leaving West Palm Beach and arriving in Los Angeles on March 16 and returning on March 22 was provided. On March 24, 2008, Respondent provided an airline itinerary indicating that he left West Palm Beach on Sunday, March 23, 2008, to travel to Lake Charles, Louisiana, and would return to West Palm Beach on Friday, March 28, 2008. Respondent apparently did not contact his group facilitator in advance, because on March 24, 2008, Dr. Hoeschstetter called to report that Respondent had not been in group for the last two weeks. On Monday, April 7, 2008, Respondent called and left a message that he would be in Oxnard, California, all week. On April 10, 2008, Respondent provided an airline itinerary for departure from West Palm Beach on Sunday, April 6, 2008, to Los Angeles, and return to West Palm Beach on Saturday, April 12, 2008. On Monday, April 14, 2008, Respondent provided an airline itinerary for departure from West Palm Beach to Lake Charles on Sunday, April 13, 2008, with a return trip Friday, April 25, 2008. Respondent was apparently called for a random screening on April 14, and he left a message with PRN that he would continue to call First Lab and send proof of travel. On Sunday, April 27, 2008, Respondent left a voice mail that he would be in California through May 3, 2008. The next day he supplied an airline itinerary with departure on April 27, 2008, from West Palm Beach to Los Angeles with a return trip Friday, May 2, 2009. On Sunday, May 4, 2008, Respondent left a voice mail that he would be in California until May 10. He left his voice mail with a staff member at PRN who tracks urine screening. On Monday, May 5, 2008, Respondent provided an airline itinerary with departure on May 4, 2008, for West Palm Beach to Los Angeles with return on Saturday, May 10, 2008. On Sunday, May 18, 2008, Respondent called PRN and said he would be in Lafayette, Louisiana, from May 19 through May 30, 2008. The next day, Respondent provided an airline itinerary with departure from West Palm Beach on May 18 to Lafayette, Louisiana, with return flight on Friday, May 30, 2008. On Sunday, June 1, 2008, Respondent called PRN and said he would be in Louisiana from June 1 through June 6, 2008. On June 4, 2008, he provided a travel itinerary for a departure from West Palm Beach to Lafayette on June 1, 2008. On June 8, 2008, he called and said he would be on vacation another week, from Monday, June 9, 2008, through June 15, 2008. On June 15, 2008, he called again and stated that he would be in Louisiana through Saturday, June 21, 2008. On Tuesday, June 24, 2008, Respondent called to say he was in Europe and was unable to call in to First Lab. Respondent indicated that he would return to Louisiana on Sunday, June 29, 2008. No travel itinerary was submitted at this time. On Tuesday, July 1, 2008, Respondent called and said he had returned from France and was in Louisiana, and would not return to Florida until Friday, July 18, 2009. Respondent indicated that he was selected to test and is not usually selected when he is out of town. That same day, he provided an airline itinerary that indicated he departed from Lafayette, Louisiana, and traveled to Nice on June 20-21, 2008, and returned on June 29, 2008. The quarterly monitoring report submitted by Dr. Hoechstetter on July 6, 2008, states that "Larry has been in maybe 1 group this quarter -- PRN is aware." On Sunday, July 20, 2008, Respondent left a voice mail at PRN stating that he was leaving for Louisiana that day and would be there until Saturday, July 26, 2008. On the following day, he provided an airline itinerary for departure from Lafayette on Friday, July 18, 2008, to West Palm Beach, with return trip to Lafayette on July 20, 2008. There is also a progress note in PRN's records indicating that the test scheduled for that day would be rescheduled to the next month. On Wednesday, August 13, 2008, Respondent called to say he had been selected for testing but was still in Louisiana. Progress notes for PRN indicate that they were trying to set up a site in Louisiana so he would not miss any more tests, and would reschedule the test scheduled for that day. On Wednesday, August 20, 2008, Respondent called PRN and confirmed the site to use in Louisiana. On Monday, September 1; Sunday, September 28; Monday, October 6; Monday, October 13; and Monday, October 20, 2008, Respondent called PRN to say he was still in Louisiana. In several of these calls he indicated that he would call his group facilitator, Dr. Hoechstetter. On October 23, 2008, Dr. Hoechstetter called inquiring what he should do about Respondent's absences, as he had only been to group sessions twice when he first started. On Tuesday, November 4, 2008, Respondent provided an itinerary with departure from Lafayette, Louisiana, on Thursday, October 30, 2008, to Chicago, with a return trip on Sunday, November 2, 2008. Respondent was scheduled to test on November 18, 2008, and did not do so. PRN staff called him on December 16, 2008, and he indicated that he had just gotten out of the hospital at the time of the test. No prior notification of the hospitalization had been provided. On Monday, December 29, 2008, Respondent left a voice mail for PRN staff that he was in California that week, looking for a job. On January 5, 2009, Respondent provided an airline ticket departing from Lafayette, Louisiana, on December 28, 2008, to Fresno, California, with a return flight on Saturday, January 3, 2009. On January 5, 2009, he called and left a voice mail that he was still in Louisiana but had no job. Respondent conceded in his deposition that he missed monitoring sessions and urine drug screens when he was out of town. Debra Troupe, Respondent's case manager, testified that from March 17, 2008, through January 3, 2009, Respondent was only in town for approximately two weeks. From some time in May 2008, through some time in November 2008, Respondent worked as Director of Radiology at Southwest Medical Center in Lafayette, Louisiana. Although working in Louisiana is consistent with the proof of travel he provided, he never notified his case manager at PRN that he was working in Louisiana, and several of the voice mails he left at PRN indicated that he did not have a job during this time. On August 8, 2008, Respondent submitted a urine sample that returned results including a low creatinine level of 16.8 mg/dL. The PRN cut-off for creatinine is 20 mg/dL, and anything under that level is considered to be diluted. The level of creatinine is significant because a low level can indicate that someone is trying to flush the evidence of a prohibited substance, such as alcohol, out of his or her system. While Respondent’s creatinine level for this test was considered low, the result could be because of overhydration, or simply drinking too much water, as opposed to purposefully diluting. Debra Troupe, Respondent's compliance manager, reviewed the results and noted them, but took no action based upon this single result. On November 25, 2008, Respondent submitted to a random urine test. The lab report, which was completed December 5, 2008, indicated a positive result for Phenobarbital. The confirmation cutoff for Phenobarbital is 150 ng/mL. Respondent's results indicated 884 ng/mL. As noted in paragraph 32(r), Respondent was supposed to, but did not test on November 18, 2008, the week before the positive Phenobarbital test. PRN staff called Respondent on December 16, 2008, at which time he stated that he had just gotten out of the hospital at the time of the missed test. On December 16, 2008, PRN received a letter from a David Dawes, M.D., of the Neuropsychiatric Clinic of Acadiana, LLC., located in Lafayette, Louisiana. Dr. Dawes' letter stated in its entirety: "To Whom it May Concern: Lawrence Mishlove was hospitalized at Lafayette General Medical Center from 11-13-08 until 11-17-08. On 11-13-08 he received a one-time dose of Phenobarbital 260mgIV." No diagnosis or explanation of why the Phenobarbital was given was provided. Respondent later claimed that the drug was administered for an extreme panic attack occurring in California (as opposed to Louisiana). However, persuasive evidence was presented that Phenobarbital is not usually prescribed for treatment of panic attacks. It is usually used for seizure disorders and for alcohol detoxification to prevent seizures and DTs, and the amount given is consistent with the dosage given to a person experiencing alcohol withdrawal. It is also significant, and a violation of Respondent's PRN contract, that no notification of his hospitalization or the administration of Phenobarbital was provided by Respondent until the positive result was reported from his drug test. On February 5, 2009, Respondent called saying he was scheduled to test but was now back in Panama City, Florida, and had called First Lab to see where he was to submit to testing. This call was the first time that Respondent had notified PRN that he was back in Florida. On Tuesday, February 17, 2009, Respondent called PRN to say he was still in Panama City and not working. On April 1, 2009, Dr. Hoechstetter filed a PRN Mental Health Compliance Update, indicating that Respondent was calling in weekly as opposed to attending group sessions. His Update also indicated that Respondent had relocated to California. A review of PRN's records in Petitioner's Exhibit A did not reveal any direct notification from Respondent that he had relocated to California. On April 2, 2009, Respondent provided a hotel bill from Arizona as proof of travel. The bill had a note on it requesting that PRN reschedule testing because Respondent was traveling to California. On April 3, 2009, Respondent reported that he found a position at Kaweah Delta Hospital ("Kaweah") in Visalia, California, and would start working April 13, 2009, as a radiologist. He also reported that he would be in Lafayette, Louisiana, the following week, and that the head of the well- being committee at Kaweah was Ron Marcorn. Respondent also reported that he missed calling in for testing by "one minute," due to the time difference. At this point, he had missed calling in on three different occasions. In April 2009, PRN changed third party administrators for its drug testing program. While the lab used by both providers was Labcorp, the third party administrator changed to Affinity. Respondent was told he must immediately contact Affinity to enroll for the urine drug screening system. Respondent requested a second information packet, claiming that he lost the first one. A second packet was mailed to him April 30, 2009, but Respondent did not enroll. After May 2009, PRN could no longer order tests for Respondent because, although notified, he had not enrolled with Affinity as requested. On May 5, 2009, PRN received a letter from Thomas Gray, M.D., the Chief of Staff for Kaweah. The letter stated: To Whom It May Concern: Dr. Mishlove was appointed to the Medical Staff of this facility as of March 19, 2009 with radiology privileges. On May 5, 2009, the Medical Staff learned that Dr. Mishlove's practice group terminated his contract because he had missed assigned work shifts. It was also reported that his missing work was related to suspected alcohol abuse. Due to the termination of his contract, his Medical Staff status was terminated effective May 5, 2009. Respondent admitted in deposition that he worked only two weeks before being terminated by Kaweah. On May 12, 2009, PRN staff called Respondent, but was unable to leave a message because his voice mail was full. On May 13, 2009, Dr. Pomm sent Respondent a certified letter notifying him that his case was being prepared for referral to the Department of Health because of his unwillingness to comply with the requirements and recommendations of the PRN program. The letter directed him to schedule an evaluation by June 1, 2009, in order to avoid referral. On June 8, 2009, Respondent reported for an evaluation by Dr. Michael Sucher, M.D., of California Physicians Health Program. Dr. Sucher asked that Respondent submit to urine and hair tests within a week of the evaluation. The urine sample was not submitted until June 22, 2009, and the hair sample was not supplied until September 28, 2009, well after Dr. Sucher submitted his report on August 31, 2009. The delay of a urine screen allows time to dilute the evidence of a drug from a person's system. Alcohol can remain in urine for approximately six hours, and alcohol metabolites can be detected for three to five days. Respondent delayed submitting a urine sample for approximately two weeks. Testing from a hair sample can detect a substance for approximately three months and is most effective for detecting consistent use of a substance. Respondent delayed submitting a hair sample for three and a half months. Dr. Sucher evaluated Respondent for fitness and safety to practice medicine, and reviewed the materials provided to him by PRN. He provided an extensive report of his evaluation and Respondent's statements that were in conflict with documentation previously reviewed. His report stated in part: I am faced with much the same situation as Dr. Jerry in 2007. The history provided directly by Dr. Mishlove does not appear to indicate an alcohol use disorder or other substance use disorder. However the information contained in the additional documentation that was provided by the Florida PRN Program and from review of the evaluation of Dr. Jerry reveals a very different discussion about consumption of alcohol, drinking and the series of events that have occurred in Dr. Mishlove's professional life that brought him to the attention of the PRN program. Additionally I am quite concerned that Dr. Mishlove failed to mention his psychiatric hospitalization that is well described and that he did discuss with Dr. Jerry. Of greater concern is the fact that Dr. Mishlove delayed significantly in providing a urine drug specimen and has not provided a hair drug test as requested as part of this evaluation process. Therefore, I have significant concern that Dr. Mishlove does in fact have a significant alcohol or other substance abuse or dependence issue which has yet to be properly diagnosed and treated. I would consider this to be an incomplete evaluation and my recommendation would be that Dr. Mishlove be required to enter into and successfully complete a comprehensive residential evaluation at a Florida PRN and Louisiana Physician Health Foundation approved evaluation center. The purpose of this would be to further clarify the history, obtain more comprehensive physical and psychological testing as well as laboratory testing and garnering additional information from collateral sources in order to come up with an accurate diagnosis or diagnoses and recommended treatment as well as a more definitive statement regarding his fitness for duty and safety to practice medicine. On September 14, 2009, Dr. Pomm notified Susan Love at the Department that Respondent's contract with PRN had been voided because of his failure to comply with the requirements of his contract. The following day, Dr. Pomm wrote to Dr. Mishlove informing him that his monitoring contract was terminated and his case referred to the Department for noncompliance. On September 23, 2009, the State of Louisiana State Board of Medical Examiners suspended his license to practice medicine. On September 28, 2009, Respondent submitted the hair sample for testing that Dr. Sucher had requested of him in June. The report dated October 1, 2009, showed positive results for cocaine, benzoylecgonine, norcocaine, and cocaethylene. The positive test for cocaethylene indicates use of both cocaine and alcohol. The confirmation level for a positive test for benzoylecgonine is 50 pg/mg; Respondent's result was 59 pg/mg. The confirmation level for a positive test for Norcocaine is 50 pg/mg; Respondent's result was 116 pg/mg. The confirmation level for a positive test for cocaine is 100 pg/mg; Respondent's result was 402 pg/mg. Finally, the confirmation level for a positive test for cocaethylene is 50 pg/mg; Respondent's result was 95 pg/mg. Respondent denied ever using cocaine and claimed that the results were contaminated. He did not, however, request a retest of the sample submitted and did not explain how he thought the results were contaminated. On October 14, 2009, Dr. Sucher e-mailed Debbie Troupe, stating that Respondent had missed an appointment with him, claiming he was taking care of his ill grandmother. He reiterated the results of the hair test. Because of these results, Dr. Sucher indicated that he would amend his report to reaffirm that Respondent needs a comprehensive evaluation but to also require a polygraph examination as part of the evaluation. On October 20, 2009, Respondent was arrested for DUI in California. On October 22, 2009, a mere two days later, Respondent was arrested a second time for DUI in California. On November 20, 2009, the Department issued an Emergency Suspension Order suspending his license to practice medicine in Florida. On November 24, 2009, California also suspended his California license. On March 23, 2010, Respondent was arrested for battery on a police officer and resisting arrest. In April 2010, Respondent pleaded nolo contendere to reckless driving involving alcohol with respect to one of the DUIs from October 2009. Respondent claims that the other charge was dropped, and the Department presented no evidence to refute his claim. In May 2010, Respondent was arrested for DUI, this time in Fort Walton Beach, Florida. He pleaded nolo contendere to the charge on August 11, 2010. On October 31, 2010, Respondent was admitted to Bradford Health Services ("Bradford") for a healthcare professional assessment, upon referral by the Louisiana Medical Board. Respondent signed a release that permitted Bradford Health Services to release and/or receive information from Florida PRN. He was discharged from the facility five days later to allow time for receipt of the voluminous records the assessment team reviewed in order to complete the evaluation. Bradford completed its evaluation and issued its report on December 31, 2010, at which time the results were shared with Respondent by phone, as he indicated he could not afford to return to the facility. The report by Bradford is extensive. He was seen by a multi-disciplinary team, headed by Michael Wilkerson, M.D., the Medical Director of the Extended Care Program. The results of the evaluation are consistent with, and corroborative of, the testimony of Elen Gajo, M.D., who evaluated Respondent separately. M. Elen Gajo, M.D. is a medical doctor who has been licensed in the State of Florida since 1991. She received her medical degree at the University of the Philippines, and completed her residency in psychiatry at the Massachusetts Mental Health Center through Harvard Medical School. She is board- certified by the American Board of Psychiatry and Neurology, and is in private practice in Fort Walton Beach, Florida. Dr. Gajo was accepted as an expert in psychiatry.5/ In preparation for Respondent's evaluation, Dr. Gajo reviewed records provided by PRN, including group facility records; evaluations from Dr. Jerry, Dr. Sucher, and the Bradford evaluation; law enforcement reports and materials in the Department file. The materials reviewed by Dr. Gajo are the type of materials commonly reviewed by physicians to evaluate patients in order to determine whether a practitioner is safe to practice his or her profession. Dr. Gajo met with Respondent for approximately 90 minutes on October 31, 2011. The interview was shorter than she would have preferred because she did not feel that Dr. Mishlove was forthcoming with any information that would be helpful. For example, Respondent denied any psychiatric history, either inpatient or outpatient, despite references to them in previous evaluations. When asked about the Bradford evaluation and the treatment by Dr. Dawes, he claimed he did not remember being evaluated at Bradford, despite the fact that he spent five days there a year before. When she presented the evaluation to him, he claimed he could not discuss it because he was in litigation with Bradford. In addition, Respondent claimed he had two DUI arrests when there were four. He would not provide significant information regarding employment issues or prior evaluations, and would only say that he was in litigation with the various entities. Despite his denials, Dr. Gajo found that the descriptions of the four incidents by the various law enforcement officers in different locations, whether or not Respondent was driving while intoxicated, were "eerily stating and reciting the same physical symptomatology." These symptoms exhibited a level of cognitive impairment, such as being passed out in the car in a traffic jam at Sunset Boulevard in Los Angeles, having a staggering gait, redness of the eyes, and slurred speech. Responses about these incidents resulted in answers such as "I fell asleep," "I was hungry," and "it didn't happen." Respondent provided little information during the evaluation to explain the documentation and there were no discussions about chemical abuse and dependency, because Respondent believes that there is not a problem. Given the number of issues that Respondent was unwilling to discuss, Dr. Gajo testified that two possibilities arise: that the person is in denial of what actually happened; or the person is simply unwilling to discuss the actual truth of what occurred. Under these circumstances, the credibility of the information that is received is suspect. Dr. Gajo testified that DSM-IV provides criteria upon which to base a diagnosis of alcohol abuse. These include failure to fulfill obligations with work, school and/or family; conduct that places the person in situations that are physically dangerous, such as driving while impaired; recurrent legal problems; and continued use despite persistent or recurrent problems interpersonally or in the community. She felt all four of these factors applied to Respondent. Dr. Gajo also testified credibly that a positive breathalyzer test or positive urine drug screen is not required for a diagnosis of alcohol abuse or dependence, but is one factor to consider. In Dr. Gajo's opinion, Respondent has Axis I diagnoses of alcohol abuse; rule out alcohol dependence; and rule out cocaine abuse and/or abuse of other substances. Under Axis II, she opined that he had a diagnosis of rule out narcissistic and antisocial personality traits. Dr. Gajo also opined that Dr. Mishlove is currently unable to practice medicine with reasonable skill and safety to patients. The fact that as a radiologist, Dr. Mishlove does not interact with patients is not dispositive. Impairment due to alcohol abuse affects a person's cognitive function and ability to render critical opinions. Dr. Gajo's opinion is credited. Respondent proffered Respondent's Exhibit 8, which comprises a series of reports from hair and urine tests that he had performed in Panama City over the last year. These reports were not admitted into evidence because they were not properly authenticated. However, even assuming the admissibility of these reports, the results obtained are not probative. As Dr. Mishlove admitted in his deposition, he arranged for the testing and it was not conducted on a random basis. Inasmuch as alcohol and cocaine are only detectable in both hair and urine for a limited period of time, tests conducted at a time selected by the person being tested do not provide any helpful information in determining whether Respondent is able to practice with reasonable skill and safety to patients.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Medicine enter a final order finding Respondent violated section 456.072(1)(hh) and section 458.331(1)(s), Florida Statutes, and suspending his license to practice medicine until such time as he can demonstrate the ability to practice with reasonable skill and safety to patients. In the event that he is reinstated, it is further recommended that he be placed on probation for a period of five years. DONE AND ENTERED this 30th day of March, 2012, in Tallahassee, Leon County, Florida. S Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2012.
The Issue At issue in this case is whether the Respondent's license as a physician should be disciplined for alleged violations of Section 458.331(1), Florida Statutes, as set forth in the Administrative Complaint.
Findings Of Fact Petitioner is the state department responsible for regulating the practice of medicine in Florida pursuant to Sections 20.165 and 20.43, and Chapters 456, 458, Florida Statutes. Respondent is Kanwaljit S. Serai, M.D. At all times material to this matter he has been a licensed physician in the State of Florida, having been issued license No. ME 0042038. His last known address on record with Petitioner is 5054 Crawfordville Road, Tallahassee, Florida 32310. Respondent was born and educated in India, receiving his medical and surgical credentials in that country. He came to the United States in 1979. He has been licensed in the State of Florida since 1983. Respondent is Board-certified in the area of family practice. Demerol is a Schedule II narcotic that is indicated for relief of moderate to severe pain. Demerol carries a high potential for abuse or addiction. Dilaudid is a Schedule II narcotic that contains hydromorphone. Hydromorphone is a powerful narcotic analgesic indicated for the relief of moderate to severe pain, and carries a high potential for abuse and addiction. Dilaudid is a heavy- duty painkiller that should only be used in terminal illnesses. Lorcet contains Hydrocodone bitartrate and acetaminophen which, when mixed together, is a Schedule III controlled substance. Lorcet is indicated for the relief of moderate to moderately severe pain. Lorcet has a potential for abuse and addiction. Lortab contains Hydrocodone bitartrate and acetaminophen (Tylenol) which, when mixed together, is a Schedule III controlled substance. Lortab is indicated for the relief of moderate to moderately severe pain. Lortab has a potential for misuse, abuse, dependency, and in the person who is prone to addiction, it can contribute to and accelerate his addiction. Methadone is a Schedule II controlled substance. 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. Oxycontin contains Oxycodone, a Schedule II controlled substance. Oxycodone is a narcotic analgesic indicated for the relief of moderate to moderately severe pain and carries a high potential for dependency, producing and feeding into the addiction of a person who has an addictive behavior. Percocet contains Oxycodone, a Schedule II controlled substance. Oxycodone is a narcotic analgesic indicated for the relief of moderate to moderately severe pain and carries a high potential for abuse and dependence. Valium contains Diazepam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Diazepam is a benzodiazepine anxiolytic (anti-anxiety drug) and muscle relaxant. The abuse of Diazepam can lead to physical or psychological dependence. Vicodin contains Hydrocodone bitartrate, a Schedule III controlled substance. Hydrocodone is a narcotic analgesic indicated for the relief of moderate to severe pain on a short-term basis. Vicodin is a highly addictive medication. Xanax contains alprazolam, a Schedule IV controlled substance. 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 and is highly addictive. On January 20, 1999, Patient L.D., a 27-year-old female, presented to Respondent at his Family Practice clinic located at 5054 Crawfordville Road, Tallahassee, Florida (Family Practice clinic), with complaints of chronic migraine headaches. Patient L.D. informed Respondent that a neurologist had previously treated her for the headaches through prescription of Lortab 10 mg, 120 tablets per month, and Demerol 100 mg, four injectable per month. Respondent took a minimal history and physical and did not obtain an adequate history regarding Patient L.D.’s substance abuse and her prior experience with narcotic analgesics. Respondent failed to perform a complete neurologic evaluation of Patient L.D. He should have, but did not look in her eyes to see if there was any indication that she may have had swelling in the brain. Also, Respondent should have examined her heart and lungs in regard to possible neurological problems. On January 20, 1999, Respondent prescribed for Patient L.D. Lortab 10 mg, 120 tablets and Demerol 100 mg injectable, without sufficient medical justification. Respondent continued to prescribe these medications through February 1999. On March 8, 1999, Respondent admonished Patient L.D. for obtaining prescriptions from her neurologist, in addition to the prescriptions that she was obtaining from Respondent, but continued Patient L.D. on Lortab and Demerol. On March 11, 1999, Patient L.D. presented to Respondent with multiple symptoms of narcotic withdrawal. Respondent began prescribing Methadone 5 mg, to be taken four at a time, four times a day (80 mg/day) for the migraine headaches. In general, methadone is not an appropriate drug to use for migraine headaches. Methadone is primarily used for cancer patients or drug-addicted patients. Methadone patients have to be monitored carefully and there must be an abundance of documentation detailing: evidence of opioid toxicity; functional status, both physical and psychosocial; and evidence of aberrant behavior, such as escalating the dose or frequent “loss” of prescriptions. Respondent’s medical records do not contain this type of documentation on Patient L.D. Respondent continued to prescribe Methadone in the same amounts from March 11, 1999, through August 2001. Respondent prescribed an excessive and inappropriate amount of Methadone to this patient. In addition, while prescribing the Methadone, Respondent continued prescribing Demerol to Patient L.D. This prescribing practice was inappropriate. Respondent was not monitoring Patient L.D. on a regular basis or attempting to wean her off of Methadone. Respondent prescribed medications in an inappropriate and excessive manner to Patient L.D. Respondent failed to practice medicine within an acceptable standard of care for Patient L.D. in regard to his prescribing practice, his failure to obtain an adequate history and physical, his failure to obtain appropriate tests, and obtain appropriate referrals. Respondent failed to keep medical records that adequately documented the course and scope of treatment for Patient L.D. in regard to his prescription practice, the history and physicals for the patient, as well as the decision to not refer this patient out to the appropriate specialists in pain management and addiction therapy. On May 6, 1999, Patient V.Y., a 30-year-old female presented to Respondent at his Family Practice clinic complaining of abdominal pain and exhibiting hepatomegalia (enlarged liver) secondary to Hepatitis C. Hepatitis C is a chronic disease which rarely causes pain. Patients with Hepatitis C are at-risk for primarily liver cancer, and certainly an enlarged liver that is painful should alert one to the possibility of cancer or other conditions. Without any further history or examination, Respondent prescribed Dilaudid 2 mg, two times a day. On November 17, 1999, Patient V.Y. presented to Respondent with the continued pain. Without further history and only documenting “same” for the diagnosis, Respondent increased Patient V.Y.’s prescription to Dilaudid 4 mg, two times a day, quantity 20. On November 24, 1999, Patient V.Y. presented to Respondent with the continued pain. Without further history and only documenting “same” for the diagnosis, Respondent prescribed Dilaudid 4 mg, two times a day, quantity 20. On December 1, 1999, Patient V.Y. presented to Respondent with continued complaints of pain. Without further history and only documenting “same” for the diagnosis, Respondent prescribed Dilaudid 4 mg, two times a day, quantity 20. Respondent also noted “pending f/u with We Care.” We Care is a clinic in Tallahassee that assists with examinations and tests. On December 8, 1999, Patient V.Y. presented to Respondent with the continued pain. Without further history or examination, Respondent prescribed the normal dosage of Dilaudid and, in addition, prescribed Valium 10 mg, two times a day. The only added note was “stressed out job divorce holidays.” The record also notes that there was no follow-up contact with We Care. On January 5, 2000, Patient V.Y. presented to Respondent again for treatment. Respondent’s notes indicated that We Care rejected the patient without any explanation concerning the rejection. Respondent prescribed Dilaudid 4 mg, quantity 20. On June 23, 2000, Respondent noted in his record that the patient could not cope with a reduction in drugs. Respondent then increased the amount of drugs he prescribed for Patient V.Y., prescribing Dilaudid and Valium with increases in Dilaudid until July 2001. On May 1, 2001, Patient V.Y. was admitted to the Emergency Room of Tallahassee Memorial Hospital (TMH) with an overdose of Dilaudid and Valium. The following notes are contained in TMH’s medical records: ". . .suggest d/c dilaudid for pain control of hepatitis – not indicated and cleared by liver" "She should NOT be on chronic narcotics for hepatitis pain control" "Dilaudid is not indicated for HepC/Cirrhosis especially since it is cleared by the liver." Respondent should have never prescribed Dilaudid and Valium to Patient V.Y. Both Dilaudid and Valium are detoxified through the liver. If the liver is having problems, as was evident with this patient, it was contraindicated to prescribe these drugs to her because her liver was damaged. Respondent did not appropriately treat the Hepatitis C for Patient V.Y. Although Respondent had previously referred Patient V.Y. for a gastroenterology study and for an ultrasound due to her enlarged, painful liver, he did not follow up on this referral or test and simply continued to prescribe the same medication for this patient. During the treatment and care of Respondent for Patient V.Y., Respondent was having a sexual relationship with her. Respondent prescribed medications inappropriately and excessively to Patient V.Y. Respondent did not practice medicine within the acceptable standard of care for Patient V.Y. by his manner of prescribing medication, his incomplete physicals and histories, as well as his inappropriate sexual relationship with the patient. Respondent failed to keep appropriate medical records for Patient V.Y. and failed to adequately document the course and scope of treatment in regard to the prescription practice, his treatment of the Hepatitis C and liver problems, his decision not to seek appropriate referrals, as well as his failure to follow up or order appropriate tests. On May 3, 1999, Patient S.W., a 39-year-old female with a history of a mechanical soft tissue injury of the cervical and lumbar spine with a nine percent permanent impairment rating, presented to Respondent at his Family Practice clinic with back, neck, and head pain. Without rendering a complete history or physical examination, Respondent prescribed Dilaudid 4 mg, quantity 10, along with other medications. On June 1, 1999, Patient S.W. presented to Respondent with the same findings again and Respondent, without rendering a complete history or physical examination, prescribed Lortab 5/500 mg, quantity 15. On December 11, 2000, Patient S.W. presented to Respondent with the same findings. Respondent prescribed Dilaudid and Xanax. Respondent’s notes indicated that the patient did not get the Magnetic Resonance Imaging test (MRI) that he had recommended because her car broke down. On May 3, 2001, Patient S.W. finally presented for an MRI of her back and neck. This test revealed a bulging disc at L5-S1 and one at C6-7. However, these are common findings and were not the source of her pain. Patient S.W. continued to see Respondent until August 2001. During this period of time, Respondent continued to prescribe Dilaudid and Lortab, and began prescribing, along with other medications: Xanax .5 mg with a gradual increase to 1 mg., Lorcet Plus, Percocet 10/650 mg, and Oxycontin 40 mg. Patient S.W. was clinically stable during the treatment and care of Respondent; however, medications were adjusted and changed and increased without adequate explanation. The medications prescribed by Respondent to Patient S.W. were excessive amounts of narcotics for a condition that did not require that much pain medication. Respondent never rendered a complete history or physical examination and did not perform sufficient testing and appropriate referrals on this patient. Respondent should have referred Patient S.W. to a physical therapist and/or pain management center rather than trying to take care of her himself. During the treatment and care of Respondent for Patient S.W., Respondent was having a sexual relationship with her, which Respondent has admitted to in the prehearing stipulation. This relationship was inappropriate and Respondent fell below the applicable standard of care by engaging in this sexual relationship. Respondent prescribed medications inappropriately and excessively to Patient S.W. Respondent did not practice medicine within the acceptable standard of care for Patient S.W. by his manner of prescribing medication, his incomplete physicals and histories as well as his inappropriate sexual relationship with the patient. Respondent failed to keep appropriate medical records for Patient S.W. adequately documenting the course and scope of treatment in regard to his prescription practice, the history and physicals for the patient, as well as the decision to not refer this patient out to the appropriate specialists. On June 10, 1999, Patient J.M., 37-year-old male, presented to Respondent at his Family Practice clinic for a burn on his forearm. Respondent appropriately treated this condition. There is an unsigned note in Respondent’s records dated June 30, 1999, about this patient running a “scam.” The scam apparently involved the patient attempting to get narcotic medications at every clinic in town. Patient J.M. approached the Leon County Sheriff's Office (LCSO) with a tip about Respondent prescribing narcotics without adequate justification. On January 20, 2000, Patient J.M., now an undercover informant with LCSO, presented to Respondent at his Family Practice clinic with a history of a narcotic addition. Without any counseling or a referral, Respondent prescribed Vicodin, quantity 20. On January 26, 2000, Patient J.M. presented to Respondent with the same findings as before. Respondent proceeded to prescribe Vicodin, quantity 20, without any counseling or a referral and despite the prior note dated June 30, 1999. On February 3, 2000, Patient J.M. presented to Respondent with the same findings as before. Respondent proceeded to prescribe Vicodin, quantity 20, without any counseling or a referral and despite the note in his file dated June 30, 1999. On February 19, 2001, Patient J.M. presented to Respondent with a tooth abscess. Respondent treated the problem and prescribed Vicodin for pain. Although Respondent did not violate the standard of care on this visit, the prescribing of Vicodin to a known drug addict was unwise. Respondent did not do a complete history, physical examination, or seek proper testing or consultation of Patient J.M. before prescribing Vicodin. Respondent should have referred Patient J.M. to an addiction specialist. The medical records do not justify prescribing Vicodin to a patient who was already addicted to it. Respondent prescribed medications inappropriately and excessively to Patient J.M. Respondent did not practice medicine within the acceptable standard of care for Patient J.M. by his manner of prescribing medication, his incomplete physicals and histories for each of the visits detailed above except the June 10, 1999, and February 19, 2001 visits. Respondent failed to keep appropriate medical records for Patient J.M. and failed to adequately document and justify the course and scope of treatment accorded to this patient. On February 5, 2000, Officer Butler/Patient L.P., a 31-year-old female and undercover officer with LCSO, completed a brief history and physical form for Respondent. She was there as part of her official duties. On February 24, 2000, Officer Butler/Patient L.P. presented to Respondent at his Family Practice clinic with a history of an addiction to pain pills. There was no nurse present during Respondent's examination of this patient. The extent of the physical examination of Officer Butler/Patient L.P. was that Respondent took a light and made an “S” shape across her face. He lifted her shirt and listened to her heart then took the palm of his hand and rubbed it across her breast, and then checked her abdomen. Respondent then proceeded to kiss this patient. Without further examination or medical history, Respondent noted “Drug dependence” in Officer Butler/Patient L.P.’s medical record and prescribed Vicodin ES, one tablet, three times a day for one week for the patient. On March 9, 2000, Officer Butler/Patient L.P. presented to Respondent for additional Vicodin pills. At this visit, Respondent again checked Officer Butler/Patient L.P.’s heart and lungs and told her to lift her shirt. When she did not lift it high enough, he lifted it higher himself. Officer Butler/Patient L.P. indicated to Respondent that she had received 21 Vicodin off the street the past week. There was no nurse present during this examination. Respondent kissed Officer Butler/Patient L.P. and silently mouthed to Officer Butler/Patient L.P. if she wanted to make love. She did not respond to this message. Respondent then, without a complete history and physical examination, and only indicating “Same” in the patient's medical record, prescribed Vicodin ES, quantity 19. Again, on March 23, 2000, Officer Butler/Patient L.P. presented to Respondent for additional Vicodin pills. She indicated to Respondent that she had received 20 Vicodin off the street during the past week. There was no nurse present during this examination. Respondent inquired about meeting Officer Butler/Patient L.P. outside of the clinic on a personal basis. Again, without a complete history and physical examination, and only indicating “Same” in Officer Butler/Patient L.P.’s medical record, Respondent prescribed Vicodin ES, quantity 20, during this visit. During the time Officer Butler/Patient L.P. was under the treatment and care of Respondent, there was never a referral to a pain management specialist or drug addiction or rehab clinic. Notably, Officer Butler/Patient L.P. presented to Respondent with no alleged chronic pain, only her written statement that she was a drug addict. As a result, Respondent launched into his own self-prescribed treatment plan to reduce Officer Butler/Patient L.P. from her dependency, a task which should be performed under the jurisdiction of a licensed treatment center. Respondent’s medical records for Officer Butler/Patient L.P. included a very limited history and physical, no blood work completed, no prior records, an incomplete history regarding why she was addicted or what brought her to the point of addiction, and no explanation as to why she was drug-dependent. There was no legitimate purpose or justification for prescribing Vicodin to Officer Butler/Patient L.P. Respondent made sexual advances towards Officer Butler/Patient L.P. He inappropriately touched and kissed her. Also, Respondent suggested to Officer Butler/Patient L.P. that they have sex. Respondent has admitted to having a sexual relationship with Officer Butler/Patient L.P. in the prehearing stipulation form. Respondent prescribed medications inappropriately and excessively to Officer Butler/Patient L.P., and did not practice medicine within the acceptable standard of care. This is exemplified in regard to Officer Butler/Patient L.P. by Respondent's manner of prescribing medication, his incomplete physicals and histories, as well as his inappropriate sexual relationship with the patient. Respondent failed to keep medical records that adequately documented the course and scope of treatment for Officer Butler/Patient L.P. This is exemplified by Respondent's prescription practice, the history and physicals for this patient, as well as the decision to not refer this patient out to the appropriate specialists (pain management and addiction specialists). On January 3, 2002, Respondent presented to a Physician Recovery Network (PRN) evaluator as a self-referral. This evaluator was Barbara Stein, M.D. The PRN is the impaired practitioners program for the Board of Medicine, pursuant to Section 456.076, Florida Statutes. PRN is an independent program that monitors the evaluation, care and treatment of impaired healthcare professionals. PRN oversees random drug screens and provides for the exchange of information between the treatment providers, PRN, and the Department for the protection of the public. Raymond M. Pomm, M.D., a Board-certified psychiatrist and addictionologist, is the medical director of the PRN. Dr. Pomm is charged with responsibility for the oversight of the program and documentation of compliance and noncompliance with PRN monitoring contracts. During the evaluation with Dr. Stein, Respondent admitted his inappropriate relationships with Patients V.Y. and S.W. Respondent was advised that a doctor-patient relationship was not being formed and that any conclusions or results from the evaluation would be sent to the PRN. Respondent underwent various tests, including, but not limited to, the Minnesota Multiphasic Personality Inventory-2 and the Millon Clinical Multiaxial Inventory-III tests. Respondent was defensive and did not provide full disclosure of his situation on these tests. The Diagnostic Statistical Manual, Fourth Edition (DSM- IV) is the guidebook that all mental health professionals refer to when they are applying clinical information to criteria, diagnostic criteria, and rendering diagnoses. Utilizing the DSM- IV, Dr. Stein opined that Respondent had antisocial and narcissistic personality traits and could not practice with skill and safety to patients at this time. Dr. Stein opined that, although Respondent does not perceive that he has a problem, Respondent should seek treatment. The treatment should be in an inpatient professional boundary violation program. Then, Respondent should seek outpatient weekly-to-biweekly cognitive behavioral therapy geared towards sexual offenders, professional boundary violators and personality disordered individuals with a licensed PRN-approved provider for at least two years. He should also receive a series of courses on professional boundaries and be re-assessed one year after treatment is initiated to determine whether he is safe to practice medicine. Dr. Stein opined that a PRN contract was premature because Respondent has no conception whatsoever that he has a problem. Following this evaluation by Dr. Stein, Respondent was seen during the period March 13, 2002, to April 5, 2002, by Thomas Hauth, M.D. Dr. Hauth’s final diagnosis for Respondent establishes that there were no diagnoses under any of the Axes, which register psychiatric or psychological problems. Dr Hauth opined that Respondent could return to practice under appropriate treatment. Respondent has seen Mr. Andrew Miller, a licensed social clinical worker, during the period April 10, 2002, through the date of the final hearing. Respondent has been receiving supportive treatment, as opposed to remedial treatment. The PRN is not aware of Respondent’s treatment with Mr. Miller. In addition, Respondent did not comply with any of the other recommendations made by Dr. Stein. Although Respondent sought help from Mr. Miller, he did not contact the PRN to seek approval of this therapy. In fact, after the initial evaluation by Dr. Stein and supplying the report from Dr. Hauth, Respondent had no other dealings with the PRN. Dr. Pomm's testimony also establishes a diagnostic concern regarding Respondent. If there were no diagnoses on Axis I or II, then there is no psychiatric condition and, in the case of Respondent, one is dealing strictly with a predatory sexual violator. Dr. Pomm's testimony further establishes that such an individual should be dealt with in a legal sense without involvement from a psychiatric point of view. Respondent can not practice medicine with skill and safety at this time. Further, he is not an appropriate candidate for the PRN program because of his diagnoses, or lack thereof, and his lack of insight and motivation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and the Recommended Range of Penalty under Rule 64B8-8.001(2), Florida Administrative Code, and Aggravating and Mitigating Circumstances under Rule 64B8-8.001(3), Florida Administrative Code, it is RECOMMENDED that the Board enter a final order finding Respondent guilty of the charges set forth in the Administrative Complaint and revoking Respondent’s license. DONE AND ENTERED this 21st day of March, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of March, 2003. COPIES FURNISHED: Steven R. Andrews, Esquire Andrews & Walker, P.A. 822 North Monroe Street Tallahassee, Florida 32303-6141 John E. Terrel, Esquire Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Respondent holds a law enforcement certificate issued by Petitioner on March 9, 1983. At times relevant to this inquiry he was employed by the Gainesville, Florida, Police Department as a patrolman. In that capacity, his duties included serving the public, issuing traffic citations, investigating automobile accidents, and making drug arrests. On March 16, 1987, Lt. Alan Morrow of the Gainesville Police Department was investigating a suspect, whose name is Carlos Bartee. In the course of this investigation, Bartee told Morrow that Officer Cunningham had been seen to ingest material which Bartee believed to be cocaine. This is said to have occurred while Cunningham was on duty. Further Cunningham is alleged to have talked to Bartee about getting something to put up Cunningham's nose. This latter remark is taken to mean cocaine, in view of the comments of Morrow, who is recognized as having expertise in interpreting the vernacular associated with the use of that drug. As a consequence of the assertions made by Bartee, an internal investigation was commenced by the Gainesville Police Department. In that pursuit, the locker of Cunningham was opened in his absence and a small container was found which, in Morrow's opinion, contained crack cocaine. Morrow has expertise in the field identification of that substance. In furtherance of the investigation, Respondent was interviewed and offered the opportunity to submit to a urinalysis to ascertain if he had been using cocaine. He was encouraged to seek legal assistance before making a decision on that overture. He was also offered some form of test involving hair follicles which is designed to detect the presence of cocaine. He declined the opportunity for the hair follicle test but agreed to undergo a urinalysis. That urine sample was given with his attorney being aware of that matter. The sample was placed in a container which was not contaminated. The giving of the sample was monitored to insure that no mistakes were made concerning whose sample it might be. The sample was sealed and protected against problems associated with the chain of custody. Respondent was asked to reveal any form of medication that he was using that might effect the results of the analysis made on the sample. He responded that he was using Ibupropen and BC powder. The urine sample was subjected to several tests, the Enzyme Multiplied Immunoassay Technique (EMIT) test; the High Performance Thin Layer Chromatography (HPTLC) test; and Gas Chromatography Mass Spectrometry (GCMS) test. Each test revealed the presence of cocaine. Those substances which he had admitted using; i.e., Ibupropen and BC powder, would not effect the accuracy of these results. Based upon these positive results, Respondent was terminated from his position with the Gainesville Police Department. In closing out his tenure with that Department, Captain Robert Samuel Mitchell, II, who was then the Internal Affairs Supervisor, asked Respondent why he took the test if he knew he had ingested it, taken to mean cocaine. Respondent replied that he did not think it would still be in his system that long. As identified by investigators with the Gainesville Police Department, the use of cocaine was contrary to their agency policies and to Florida law.
Recommendation Under the circumstances set out in the Findings of Fact and based upon the Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered which revokes Willie C. Cunningham's law enforcement certificate. DONE and ORDERED this 27th day of October, 1989, in Tallahassee, Florida. CHARLES C. ADAMS, 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 27th day of October, 1989.
