The Issue The issue in this case is whether the Board of Medicine should discipline the Respondent's license on charges that he committed medical malpractice in violation of section 458.331(1)(t), Florida Statutes (2012), in his treatment of patient H.S. on December 1, 2012. (All statutory and rule references are to those in effect on December 1, 2012.)
Findings Of Fact The Respondent, John G. Bennett, M.D., is a licensed physician in the State of Florida, having been issued license ME 48950. His only prior discipline was in 1988 for violations not charged in this case; it resulted in two years of probation. In December 2012, the Respondent was a general practitioner working part-time for an entity called Doctors Housecalls Limited (Doctors Housecalls), which provided concierge medical care to visitors to the Miami area residing short-term in area hotels and other rental properties. When requested by a resident, the concierge would contact Doctors Housecalls by telephone and relay pertinent contact information. Doctors Housecalls would telephone a physician on its staff and relay the contact information. The physician would telephone the patient or visit the patient to initiate a doctor-patient relationship. Usually, telephone contact would result in a subsequent in-person visit with the patient. The patient would pay by cash, credit card, or insurance. Medicare and Medicaid were not accepted. The Respondent testified that on December 1, 2012, while he was either driving to dinner or already at a local restaurant, he received a call from Doctors Housecalls on his cell phone. He was given contact information for H.S. The Respondent used his cell phone to call H.S. and establish a doctor-patient relationship. The patient testified that his eyes had become irritated during a business trip to Miami Beach in December 2012. He thought he might have gotten suntan lotion in his eyes while at poolside. He called his optometrist in Pennsylvania and was given a prescription over the phone, which he filled and started taking. Although the patient could not recall the name of the medication, the evidence was clear that it was Tobramycin, an antibiotic eye drop. His Pennsylvania optometrist told the patient to go to an emergency room or get care from a local doctor if his eyes got worse. When the patient's eye irritation got worse, H.S. called the concierge where he was staying and eventually talked to the Respondent on the telephone. The patient testified that he reported the essentials of his eye problem to the Respondent--namely, that his were irritated from the suntan lotion and from the Tobramycin prescription. He testified that, in response, the Respondent prescribed a different eye drop and told him to follow up with his primary care doctor when he returned to Pennsylvania. The eye drop the Respondent prescribed was Predforte (prednisolone acetate), which is a steroid and a legend drug. The brief interaction between the Respondent and the patient was entirely by telephone. The Respondent did not see the patient in person and did not see any patient medical records or any photograph or other image of the patient's eye. The Respondent testified that initially he asked to see the patient to examine him to get a clearer picture of the patient's medical problem. He testified that the patient did not want to be seen. He testified that he then told the patient he would have to go to an emergency room and that the patient refused. He testified that he then asked some more questions and decided he could prescribe Predforte without seeing the patient. The patient denied that the Respondent asked for an in-person examination, told him to go to an emergency room, or asked him additional questions to ascertain if he could prescribe Predforte without seeing the patient. Specifically, the patient denied that the Respondent asked him if he wore contact lenses. (He normally wore them but took them out when his eyes became irritated.) He denied that the Respondent asked him if he had a history of cataracts, any recent eye surgeries, or ocular herpes. The Respondent testified that he asked these questions but did not notate the questions or the patient's negative answers in his only medical records from the encounter (which included a brief description of the presenting problems and the treatment plan in his telephone consultation form and descriptions of the diagnosis or nature of illness or injury and of the procedures, services, or supplies provided on his insurance claim form). The Respondent's testimony on these points does not ring true. While the emergency room would have taken time, the Respondent testified that he was very close to where the patient was staying when he placed the telephone call and could have gotten there to see the patient very quickly. Also, the Respondent's testimony on this point was inconsistent with the position he was taking at the hearing that the standard of care did not require him to see the patient before prescribing the Predforte. Taken as a whole, the evidence was clear and convincing that the Respondent did not insist on seeing patient H.S. and did not ask those specific questions before prescribing Predforte. At most, the Respondent may have asked a general question whether the patient had any other eye problems and gotten a negative answer. The patient's eyes got better, and he did not seek any further medical attention in Florida. About a week after his return to Pennsylvania, he followed up with his primary care doctor. By then, his eyes were better. It is not clear from the evidence why the patient's eyes got better. DOH's expert, Dr. Eugene Crouch, testified that the Respondent's treatment of H.S. was below the standard of care. He testified that it was necessary to physically examine the patient's eye, front and back using an ophthalmoscope. He testified that it also was necessary for the Respondent to get a complete medical history, including when the problem started, the circumstances that might have caused it, if the patient was taking medication that could have caused it, if there were vision changes, if the patient smoked cigarettes, if the patient was seen for the problem by another treating physician, if there was drainage coming from the eye, if the patient wore contact lenses, or if the patient had cataracts, glaucoma, recent eye surgeries, or ocular herpes. Although it is rare, ruling out ocular herpes is especially important because the steroid prescribed by the Respondent "blunts the immune system, so the virus would take over, which is potentially devastating [and] an absolute crisis at that point." Dr. Crouch testified convincingly that the eye is "tricky" for a general practitioner to diagnose and treat, and the consequences of falling below the standard of care can be serious. Contrary to the Respondent's suggestion, he did not meet the standard of care by prescribing Predforte and telling the patient to seek further treatment if the problem got worse. Dr. Crouch did not review the Board's rule 64B8-9.014 on the standards for telemedicine prescribing practice, or determine whether the Respondent complied with it, before reaching his opinion on the standard of care. Neither the rule nor the Respondent's compliance with it affected Dr. Crouch's opinion. Regardless of that and other efforts to impeach Dr. Crouch's credibility, Dr. Crouch's opinion is accepted and is clear and convincing evidence that the Respondent did not meet the standard of care in his treatment of patient H.S. The Respondent takes the position that DOH is estopped from charging him with medical malpractice under section 458.331(1)(t) because it waived that charge by agreeing to dismiss, with prejudice, the count charging a violation of rule 64B8-9.014. To the contrary, it is clear that DOH had no intention of waiving the medical malpractice charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding the Respondent guilty of one count of medical malpractice in violation of section 458.331(1)(t), fining him $5,000, placing him on one year of indirect supervision probation with appropriate terms and conditions, and assessing costs of investigation and prosecution. DONE AND ENTERED this 29th day of July, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 29th day of July, 2015. COPIES FURNISHED: Andre Ourso, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed) Daniel Hernandez, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Ronald Chapman, Esquire Chapman Law Group 1834 Main Street Sarasota, Florida 34236-5912 Steven D. Brownlee, Esquire Chapman Law Group 1834 Main Street Sarasota, Florida 34236-5912 (eServed) Jack F. Wise, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Yolonda Y. Green, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed)
The Issue The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2005). At all times material to this case, the Respondent was a physician licensed by the State of Florida, holding license number 59702 and was board-certified in obstetrics and gynecology. The Respondent owned, and practiced medicine at, EPOC Clinic, 609 Virginia Drive, Orlando, Florida. On December 19, 2005, Patient S.B. presented to the EPOC Clinic to inquire about terminating a pregnancy, but elected not to proceed with the termination at that time. On February 3, 2006, S.B. returned to the EPOC Clinic, having decided to terminate the pregnancy. A sonogram was performed, and S.B. was determined to be approximately 18 to 19 weeks gestation. At that time, she executed consent forms for pregnancy termination by medication, and dilation and extraction (D&E). Patient S.B. had been pregnant three times previously and had birthed three children, each delivered live by cesarean section. The patient's pregnancy termination was scheduled to commence on February 4, 2006, but S.B. was late in arriving at the clinic, and the procedure was rescheduled for February 6, 2006. The patient returned to the EPOC Clinic as rescheduled. While at the EPOC Clinic on February 6 and 7, 2006, S.B. received medical care and treatment primarily from the Respondent and from Carmita Etienne, a medical assistant working at the clinic. The termination was initiated with the use of "Cytotec," a drug that causes cervical dilation and uterine contractions, and which generally results in passage of the fetus into the vaginal vault. Cytotec is commonly used in medication-based pregnancy termination. It is known to increase the potential for uterine rupture during labor and delivery, the risk for which is noted within the relevant consent documents executed by the patient. Cytotec tablets, in 200 microgram dosages, were administered orally to the patient by the Respondent's medical assistant. S.B. received 200 micrograms of Cytotec at 10:00 a.m. on February 6, 2006, and received the same dosage at four-hour intervals through 10:00 a.m. on February 7, 2006, at which time the patient's cervix remained undilated. The Respondent thereafter escalated the frequency of the Cytotec to every two hours, and the drug was administered two additional times on February 7, 2006, at noon and 2:00 p.m. According to progress notes contained in the medical records, S.B. complained of discomfort on February 6, 2006, at 7:45 p.m. and on February 7, 2006, at 3:00 a.m. Discomfort or pain is a typical element of labor, and S.B.'s discomfort was not unexpected. Demerol, a controlled substance, is routinely used to relieve pain during medical procedures, including pregnancy terminations. The medical assistant relayed S.B.'s reports of discomfort to the Respondent. The Respondent ordered Demerol on both occasions to relieve S.B.'s pain. A physician must be properly registered with the U.S. Drug Enforcement Administration (DEA) to order the administration of Demerol to a patient. The Respondent was not properly registered with the DEA on February 6 or 7, 2006. At the hearing, the Respondent denied that he ordered the Demerol. He testified that he was serving as a conduit between his medical assistant and another physician, Dr. Harry Perper, who also worked at the clinic and who was apparently properly registered with the DEA. The Respondent's testimony on this issue was not persuasive and has been rejected. The evidence failed to establish that Dr. Perper ordered the administration of Demerol to the patient or that the Respondent merely relayed such orders from Dr. Perper to the medical assistant. The Respondent asserted that he had not been registered with the DEA since 2002 and that everyone at the clinic knew he could not order controlled substances. The patient's progress notes, created contemporaneously with the patient's treatment at the clinic, explicitly state that the orders for Demerol came from the Respondent. The medical assistant who created the progress notes testified that she preferred talking to the Respondent rather than Dr. Perper and that the directions she received for the patient's Demerol came from the Respondent. The Respondent's assertion that he did not order the Demerol was not credible and has been rejected. The Demerol was administered by the medical assistant through injection of the medication into S.B.'s buttocks, and the patient's pain was reduced. The medical assistant denied that she personally administered the Demerol to the patient. Her denial was not credible and has been rejected. The progress notes also state that the patient complained of "right side" pain at 3:00 p.m. on February 7, 2006. At approximately 3:45 p.m. on February 7, 2006, the patient was apparently examined by Dr. Perper, who wrote "SROM" in the progress notes, signifying that a "spontaneous rupture of membranes" had occurred and indicating that the patient's "water had broken." He also documented his observation that a fetal part was protruding from the cervix into the vagina. By that evening, the patient's termination was not completed. At approximately 7:00 p.m. on February 7, 2006, the medical assistant moved the patient into a procedure room at the Respondent's direction. The instruments to perform a D&E were present in the procedure room. The Respondent began to perform an examination of S.B. to assess the situation and determine whether the termination procedure should be completed by D&E. The Respondent utilized a speculum to open the patient's vagina and performed a sonogram on the patient's abdomen to identify the location of the fetus. The fetus was observed to be within S.B.'s uterus. The Respondent observed a fetal part protruding through the cervical os into the vagina. In order to examine the extent of cervical dilation, he detached the part from the fetus by grasping the part with a "Hearn" instrument and twisting the instrument. After he detached the part, he withdrew the instrument and the part from the patient. The Petitioner alleged that the Respondent "apparently" attempted a D&E. The evidence failed to support the allegation. The evidence failed to establish that the Respondent pulled on the exposed fetal part in an attempt to extract the fetus from the uterus. The evidence failed to establish that the Respondent inserted the Hearn or any other instrument into the patient's cervix or uterus. After removing the fetal part from the vagina, the Respondent placed the part on a tray. Almost immediately thereafter, the Respondent's reviewed the ultrasound image and observed that the image indicated the fetus was no longer fully contained within the uterus. The Respondent understood that the ultrasound image indicated a potential uterine perforation or rupture and, appropriately, concluded that the situation could be life- threatening for the patient. He quickly contacted the Arnold Palmer Hospital to arrange for emergency transfer of S.B. to the hospital. The Respondent also spoke to two practitioners at the hospital. Initially, he spoke by telephone to Dr. Pamela Cates, a resident physician at the hospital. Dr. Cates did not have the authority to admit the patient to the hospital and directed the Respondent to talk to Dr. Norman Lamberty, the "Ob/Gyn" physician on call and present at the hospital. The Respondent spoke by telephone to Dr. Lamberty, who agreed to accept the transfer of the patient from the clinic to the hospital. The Respondent failed to inform either Dr. Cates or Dr. Lamberty that he had removed a portion of the fetus from the patient at the clinic. While waiting for an ambulance to arrive to transport the patient, the Respondent wrote a note to be transported to the hospital with the patient. Although in the note he documented the treatment provided to the patient at the clinic, he failed to include the removal of the fetal part in the note. The Respondent testified that he did not document his removal of the fetal part because he did not believe it was significant to the medical care the patient would receive at the hospital. S.B. was transported to the hospital along with some of her medical records from the clinic and the Respondent's handwritten note. None of the documentation indicated that a part of the fetus had been removed at the clinic. After S.B. arrived at the hospital, Dr. Lamberty removed the fetus and completed the abortion procedure. Dr. Lamberty also repaired a cervical laceration and performed a hysterectomy. He noted that the uterine rupture occurred on the patient's right side and that the fetus was located not "floating" in the abdomen but "between two layers of tissue on the right side of the pelvis." The evidence failed to establish that the cervical laceration occurred while the patient was at the clinic or that it was caused by treatment the patient received at the clinic. Upon removing the fetus, Dr. Lamberty observed that the fetus was incomplete and that a portion of the fetal leg was missing. Dr. Lamberty began efforts to locate the missing part, which he reasonably presumed remained in the patient. Dr. Lamberty's concern regarding the missing part was that potential exposure of the part to the patient's vagina would have contaminated the part with bacteria and that a risk of infection would be presented by leaving the part within the patient's pelvis or abdomen. Dr. Lamberty was unable to locate the missing part, and, thereafter, radiological studies, including X-rays and a CT scan, were performed in an unsuccessful attempt to locate the part. The patient remained hospitalized and on February 10, 2006, a second surgical procedure was performed on the patient, this time to remove a "Jackson-Pratt" drain that had been improperly sutured into the patient's abdomen at the time of the hysterectomy. The second surgery was unrelated to the search for the missing part. Also on February 10, 2006, the hospital contacted the clinic to inquire as to the missing part and was advised that the part had been removed by the Respondent at the clinic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding James S. Pendergraft IV, M.D., in violation of Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2005), and imposing a penalty as follows: a two-year period of suspension followed by a three-year period of probation and an administrative fine of $20,000.00. DONE AND ENTERED this 21st day of September, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of September, 2009. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Kenneth J. Metzger, Esquire Metzger, Grossman, Furlow & Bayo, LLC 1408 North Piedmont Way Tallahassee, Florida 32308 Kathryn L. Kasprzak, Esquire Fowler White Boggs Banker, P.A. 200 South Orange Avenue, Suite 1950 Orlando, Florida 32801 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0031545. The Respondent practices in south Florida as a cardiologist. The Respondent treated patient William Dean from 1979 through 1982. William Dean died of heart failure on August 30, 1982. Following Mr. Dean's death, his wife, Elizabeth Dean, obtained from Respondent copies of Dean's medical records. On July 2, 1983, Elizabeth Dean filed a complaint by letter with the Department of Professional Regulation against the Respondent. As a result of Mrs. Dean's complaint, the Petitioner began an investigation of the Respondent and notified Respondent of same. In addition, Mrs. Dean sued the Respondent for malpractice. During the investigation by Petitioner, copies of Mr. Dean's records were obtained from the Respondent. When the records obtained by Petitioner were compared with the earlier records obtained by Mrs. Dean, it was discovered that Respondent had made at least two additions to them. After being notified of the complaint and investigation, the Respondent added entries to the progress notes on Mr. Dean for November 12, 1981 and May 15, 1982. Among other things, the additions to the progress notes indicated that Respondent had advised Mr. Dean to take a stress test and angiogram and that Dean had refused. The Respondent dictated Mr. Dean's patient Expiration Summary, which appears in the hospital's patient charts, on October 17, 1983, fourteen months' after Mr. Dean's death. Humana Hospital Cypress, where Mr. Dean died, requires that physicians prepare patient expiration summaries within thirty (30) days after the patient's death.
Findings Of Fact The parties Petitioner, Agency for Health Care Administration, Division of Quality Assurance, Board of Medicine, formerly Department of Business and Professional Regulation, Board of Medicine, is the state government licensing and regulatory agency charged with the responsibility and duty of regulating the practice of medicine pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. Chapter 93-129, Laws of Florida. Respondent, Muhammad S. Mustafa, M.D., is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0047360. Respondent was licensed by endorsement on October 7, 1985, but did not, ostensibly, actively engage in the practice of medicine in the State of Florida until September 14, 1988. 4/ Respondent's last known address, as of the date of hearing, was 8245 North Nebraska Avenue, Tampa, Florida 33604. Respondent received his medical degree from the Oklahoma University School of Medicine in 1970, performed an internship from 1970 to 1971 at the Altoona Hospital, Altoona, Pennsylvania, did a four-year residency in general surgery from 1971 to 1975 at The Cleveland Clinic, Cleveland, Ohio, and started practice as a sole practitioner in Cleveland, Ohio, in November 1975. Respondent's practice consisted of general surgery and family medicine, and he practiced in a predominately blue collar neighborhood until his license to practice medicine was revoked by the State Medical Board of Ohio, as discussed infra. While practicing in Cleveland, respondent had staff privileges at St. Vincent Charity Hospital, Luthern Medical Center, St. John's Hospital, and St. John's Westshore Medical Center, but by May 1988 had restricted his practice to Luthern Medical Center and St. John's Hospital. Respondent resigned his staff privileges at Luthern Medical Center and St. Johns in December 1989. The Ohio charges On May 11, 1988, the State Medical Board of Ohio, the licensing authority for medicine in the State of Ohio, notified respondent that it proposed to take disciplinary action against his certificate to practice medicine and surgery in Ohio. The gravamen of the Board's charges were as follows: That respondent's prescribing practices with regard to approximately 83 difference patients, as well as his overall prescribing as reflected by a listing entitled "Total Drug Amounts by Drug, Year and Month," constituted: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease," as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes," as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established," as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. That as to Patient 152 respondent did between March 27, 1984 and December 12, 1985, and again between November 13, 1986 and April 1, 1987, prescribe controlled substance stimulants when the patient either gained weight or failed to lose weight, contrary to the provisions of Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further charged that respondent's billing to Patient 152's insurance company for services rendered between March 27, 1984 and December 15, 1986, reflected a diagnosis of "hypertension, obesity, ingrown toenail, nerves, low back pain, and arthritis" when there was no indication in respondent's record that he had treated the patient for any condition other than obesity. Such conduct was alleged to constitute "publishing a false, fraudulent, deceptive or misleading statement," as that clause is used in Section 4731.22(B)(5), Ohio Revised Code, and the "obtaining of, or attempting to obtain money or anything of value by fraudulent misrepresentation in the course of practice," as that clause is defined in Section 4731.22(B)(8), Ohio Revised Code. That as to Patient 151 respondent did between February 21, 1979 and April 17, 1986, and again between November 13, 1986 and April 1, 1987, prescribe controlled substances and stimulants when the patient either gained weight or failed to lose weight, contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further alleged that on respondent's billing to Patient 151's insurance company for services rendered between January 10, 1984 and November 13, 1986, the diagnosis of "menopause; arthritis; glossitis; bronchitis; hypertension; nerves; and chest wall pain" were entered when the majority of services rendered by respondent were for "obesity," a diagnosis not listed, and his records contain no indication that she was being treated for hypertension, nerves or arthritis. Moreover, an EKG and "comprehensive office exam" performed on November 13, 1986 and billed under a diagnosis of "chest wall pain" were in fact performed as part of the physical required prior to starting the diet program. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent's reports and billing to two different attorneys with regard to Patient 140 (who had been involved in accidents in June and November 1985) reflected dates of service and patient complaints which were not reflected in the medical records. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent prescribed controlled substances for Patient 241 in 1979, 1982 and 1983 through 1985 contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, in that the patient had admitted to respondent in 1979 that he was addicted to Codeine and in 1985 that he was addicted to Percocet. Respondent was alleged to have first prescribed Percocet in 1983, upon the patient's complaint of back pain, without noting any physical exam or findings, and had continued prescribing it on a regular basis well into 1985. His prescribing of Codeine-based medications and Percocet continued after the patient's admission of addiction to those substances. Finally, citing 13 different patients as examples, the Board alleged that respondent routinely kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications prescribed or dispensed; prescribed controlled substances and dangerous drugs based upon patient requests for medications or patient complaints, often without utilizing appropriate testing or other methods for evaluating the validity or etiology of the complaints; and routinely prescribed controlled substance stimulants for weight loss over extended periods of time without regard to whether or not the patient demonstrated weight loss. Such conduct was alleged to violate Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. Moreover, respondent's acts or omissions with regard to certain prescriptions written on or after November 17, 1986, for patients 25, 34, 130, 166, 265, and 276, were alleged to constitute violations of Rules 4731-11-02 and/or 4731-11-04, Ohio Administrative Code, and therefore Section 4731.22(B)(20), Ohio Revised Code. The aforesaid notice of charges dated May 11, 1988, advised respondent of his right to request a hearing on the matter, his right to appear at such hearing in person or through his attorney, to present his position and argument, and to present evidence and examine witnesses appearing for or against him. Respondent timely requested such hearing, and was represented by counsel. The subject charges were heard before Wanita J. Sage, Esquire, Hearing Examiner for the State Medical Board of Ohio, on September 18, 1988. Thereafter, the Hearing Examiner rendered an extensive recommendation, which contained findings of fact, conclusions and an order. Such findings of fact sustained the charges filed against respondent, and are contained in petitioner's exhibit 2. The recommendation, which summarized the factual findings, concluded: The acts, conduct, and/or omissions of Muhammad S. Mustafa, M.D., as set forth in the above Findings of Fact, constitute: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease", as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes", as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and/or "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established", as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. The testimony and evidence presented in this Matter amply establish that Dr. Mustafa, in the routine course of his practice, prescribed controlled substances and dangerous drugs for patients for excessive periods of time, without establishing valid medical indication or diagnosis. He prescribed potentially addictive controlled substances, often in dangerous combinations, for patients for years without adequately evaluating their complaints or attempting alternative therapies. In the case of Patient 241, Dr. Mustafa admitted that he had prescribed Codeine for this patient for a period of over one month in 1979 as treatment for his admitted Codeine addiction. Several years later, Dr. Mustafa began prescribing Percocet upon this same patient's complaint of back pain, without any evidence of evaluation, and continued to do so over a two-year period. When Patient 241 then admitted that he was addicted to Percocet, Dr. Mustafa continued to prescribe it for three addi- tional months as treatment for his addiction. Such prescribing contravenes both federal and state laws, including each of those provisions listed above. Dr. Mustafa's claim that there was no adequate treatment program available in 1979 does not satisfactorily explain his prescribing for Patient 241's addiction in 1985. The patient records clearly demonstrate Dr. Mustafa's willingness to prescribe whatever patients requested, even when objective data indicated that there was no valid medical indication for such drugs and no medical basis for the patients' complaints. In the case of Patient 36, Dr. Mustafa liberally prescribed synthetic thyroid hormone at her request, despite the fact that he had obtained tests showing her thyroid levels to be normal. He provided this same patient with narcotic pain medications, even when her complaints of pain were apparently related to urinary tract infections, menstrual cramps, or other conditions which would not appear to justify the use of controlled substances. In the case of Patient 308, Dr. Mustafa prescribed combinations of controlled substances and dangerous drugs, including narcotic analgesics, tranquilizers, hypnotics, barbiturates, antipsychotics, tricyclic antidepressants, and stimulants, even though he was aware that her complaints generally [had] no physical cause, but rather stemmed from emotional problems. On one occasion, he actually telephoned in a prescription for Compazine for Patient 308 when she was in the hospital under the care of another physician for treatment of a drug overdose. Even though Dr. Mustafa was admittedly aware that she had been hospitalized on three occasions due to drug overdoses, he continued afterwards to prescribe dangerous combinations of drugs for her, including the substances on which she had overdosed. In the case of Patient 130, Dr. Mustafa regularly prescribed and administered large amounts of narcotic analgesics over an approximately four year period. Dr. Mustafa admitted that Patient 130 was chemically dependent on narcotics, but claimed they were necessary to control his back pain. Yet, the patient record clearly indicates that Dr. Mustafa made no effort to independently evaluate or diagnose, but rather relied solely upon this patient's representations as justi- fication for his inappropriate prescribing in response to this patient's requests for addictive drugs. Furthermore, the patient record indicates that Dr. Mustafa abruptly discontinued prescribing pain medications and tranquilizers for Patient 130 in early 1987. In general, the patient records demonstrate lack of independent evaluations by Dr. Mustafa of patients' complaints of pain, for treatment of which he prescribed large amounts of controlled medications for excessive periods of time. Such prescribing violates each of the above provisions of law. Further, the patient records of Patients 152, 151, 25, 26, 36, 218, 236 and 265 support the State's allegations that Dr. Mustafa routinely prescribed controlled substance stimulants for weight loss purposes over extended periods of time, whether or not a patient demonstrated weight loss. Dr. Mustafa admitted that it had been his standard practice to prescribe a controlled substance anorectic upon a diet patient's initial visit, without first attempting to achieve weight loss through other means, such as diet or nutritional counseling. In addition, Dr. Mustafa often prescribed Lasix, a diuretic, for weight control purposes. As indicated by the testimony of Dr. Junglas, there is no valid medical indication for the use of a diuretic for weight loss. Such pre- scribing of diet medications also violates each of the above provisions of law. Certainly, both the patient records and the testimony of Dr. Mustafa support the Board's allegations that Dr. Mustafa, in the routine course of his practice, kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications he prescribed or dispensed to his patients. Although Dr. Mustafa appeared to claim that he had done examinations or made physical findings which justified the medications he prescribed, he stated that he simply didn't have time to write down everything he knew about his patients. The patient records generally reflect only patient requests for refills of medications, non-specific patient complaints, and lists of drugs prescribed or administered by Dr. Mustafa. They are generally devoid of evidence of appropriate diagnostic testing; documentation as to the nature or severity of the patient's reported pain, illness, or injury; evidence of investigation of alter- native therapies; thorough histories, physical examinations, and diagnoses; in short, infor- mation necessary to assure that the patient receives appropriate treatment. Such records evidence Dr. Mustafa's violations of each of the above provisions of law. As indicated by the testimony of Dr. Donald Junglas, Dr. Mustafa's treatment with regard to each of the 17 patients whose records were reviewed at hearing violates each of the above provisions of law. Further, the prescriptions identified as State's Exhibits #6A through #6H and summarized by the "Prescription List by Patient Number" and the listing of "Total Drug Amounts by Drug, Year, and Month" (State's Exhibit #1) indicate that Dr. Mustafa's inappropriate, long-term prescribing of controlled substances was not confined to those 17 patients, but rather was common in his practice. Dr. Mustafa's prescribing of controlled substances for weight reduction for Patients 152 and 151 after November 17, 1986, constitutes "violating . . ., directly or indirectly, . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rule 4731-11-04, Ohio Adminis- trative Code, as in effect on and after November 17, 1986. Rule 4731-11-04(B) requires that a physician's use of controlled substances for purposes of weight reduction in the treatment of obesity be only as an adjunct in a regimen of weight reduction based on caloric restriction. It further requires the physician to determine, before instituting treatment with a controlled substance, that the patient has made a "substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification, and exercise, without the utilization of controlled substances, and that said treatment has been ineffective. Further, the physician must obtain a thorough history, perform a thorough physical examination, and rule out the existence of any recognized contradictions to the use of the controlled substance. Further, according to this rule, the physician may not initiate or must discontinue utilizing controlled substances immediately upon determin- ing that the patient has failed to lose weight while under treatment with a controlled substance over a period of 14 days, such determination to be made by weighing the patient at least every fourteenth day. Dr. Mustafa's prescribing of Schedule IV anorectics for Patients 152 and failed to meet these requirements. Patient testified that he had never tried dieting before seeing Dr. Mustafa. Dr. Mustafa's lecturing Patient 152 about snacking does not constitute the institution of a regimen of weight reduction based on caloric restriction. The documentation in the patient records, parti- cularly in the case of Patient 151, fails even to establish that these patients' overweight constituted obesity which might have justified the use of a controlled substance in the event that other treatment methods had been proven ineffective. Further, Dr. Mustafa failed to discontinue prescribing Schedule IV anorectics for Patients 152 and 151 when they failed to lose weight, as required by Rule 4731-11-04(B). In fact, although Dr. Mustafa admittedly become aware of this Rule in December, 1986, he prescribed Schedule IV anorectics for Patient 152 when he demonstrated weight gains on February 5, March 5, and April 1, 1987, and he prescribed Schedule IV anorectics for Patient 151 when she demonstrated failure to lose weight on January 9, February 5, and March 5, 1987. Pursuant to Rule 4731-11-04(C), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Further, Dr. Mustafa's prescribing for Patients 25, 34, 130, 166, 265, and 276, on and after November 17, 1986, constitutes "violating . . ., directly or indirectly . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rules 4731-11-02 and/ or 4731-11-04, Ohio Administrative Code, as in effect on and after November 17, 1986. With respect to patient 25, Dr. Mustafa violated Rule 4731-11-04(B) by prescribing the Schedule IV controlled substance Fasin 30 mg. for purposes of weight reduction on both December 19, 1986, and February 13, 1987, without: instituting a regimen of weight reduction based upon caloric restriction, first determining the ineffectiveness of other methods of weight reduction, or determining whether or not she failed to lose weight by weighing her at least every fourteenth day. Further, Dr. Mustafa violated Rule 4731-11-02(D) by telephoning in a prescription for 30 Tranxene 7.5 mg., a Schedule IV anxiolytic, for Patient 25 on April 2, 1987, without documenting any exam- ination, evaluation, diagnosis, or purpose for this controlled substance. On seven occasions from November 19, 1986, through April 29, 1987, Dr. Mustafa prescribed Vicodin, a Schedule III narcotic analgesic, for Patient 34 without documenting any examination, evaluation, diagnosis, or purpose for his use of this addictive controlled substance. In fact, four of these prescriptions were issued after Dr. Mustafa had discussed with Patient 34 the addictiveness of Vicodin and the need for him to take less of it. Such acts and omissions violate both paragraph (C) and (D) of Rule 4731-11-02. Dr. Mustafa's acts and omissions with regard to Patient 130 also constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Without documenting any examination, evaluation, diagnosis, or purpose other than the patient's requests for pain medication, Dr. Mustafa administered IM injections of Demorel 100 mg., a Schedule II narcotic analgesic, to Patient 130 on December 13, 1986, January 6, 1987, and April 7, 1987. In addition to the Demerol injection, he also prescribed 100 Tylenol #4, a Schedule III narcotic analgesic, for this patient on April 7, 1987, solely upon Patient 130's request for pain medications for vacation. Dr. Mustafa had previously notified this patient on January 12 that he would prescribe no more tranquilizers or pain medications for him. Dr. Mustafa admitted at hearing that this patient had been chemically dependent upon narcotics, though he claimed that he had needed them to control his pain. Upon Patient 166's request, without document- ing any examination, evaluation, diagnosis, or purpose, Dr. Mustafa prescribed for her 100 Vicodin, a Schedule III narcotic analgesic, on December 24, 1986, and 50 Vicodin on January 29 and again on April 23, 1987. Such acts violate Rule 4731-11-02(D). With respect to Patient 265, Dr. Mustafa initiated treatment with Adipex-P, a Schedule IV stimulant anorectic controlled substance, on December 9, 1986, without first determining the effectiveness of other methods of weight reduction, without instituting a regimen of weight reduction based on caloric restriction, and without obtaining a thorough history or performing a thorough physical examination to rule out the existence of any contradiction. Dr. Mustafa continued to prescribe Apidex-P through April 31, 1987, without weighing Patient 265 at least every fourteenth day and without immediately discontinuing such treatment when this patient showed a weight gain on February 10, 1987. Such acts and omissions violate Rule 4731-11-04(B). Furthermore, from December 9, 1986, through May 11, 1987, Dr. Mustafa prescribed Valium for her on three occasions, two of which prescriptions he telephoned in. On five occasions during this period, he prescribed Darvon Compound 65 for her, including one occasion when Patient 265 indicated that she had 30 tablets left from a previous prescription, two occasions where Dr. Mustafa provided her with postdated prescriptions, and one occasion where he telephoned in a prescription. At no time did Dr. Mustafa document any examination, evaluation, diagnosis, or purpose other than the patient's stated complaint, for his prescribing of these controlled substances. Such acts and omissions constitute violation of both paragraphs (C) and (D) of Rule 4731-11-02. In an approximately five month period from November 17, 1986, through April 28, 1987, Dr. Mustafa prescribed for or administered to Patient 276 a total of 519 dosage units of controlled substances, including: 25 Demerol 50 mg., a Schedule II narcotic analgesic; 2 IM injections of Demerol 50 mg.; 2 IM injections of Demerol 75 mg.; 60 Fiorinal, a Schedule III barbiturate analgesic; and 430 Darvocet N-100, a Schedule IV narcotic analgesic. Of these, 230 dosage units were prescribed by telephone. Throughout this period, Dr. Mustafa failed to document examination, evaluation, diagnosis, or purpose for this prescribing other than patient requests and complaints. On one occasion, he did note a physical finding of severe pain and tenderness in the back, radiating downward; however, no further evaluation was done and no diagnosis was indicated. On another occasion, Dr. Mustafa noted a diagnosis of severe migraine headache, but failed to state any information upon which that diagnosis was based. In view of the addictiveness and volume of the substances so prescribed, it is concluded that Dr. Mustafa's acts and omissions with regard to Patient 276 constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Pursuant to Rule 4731-11-04(C), Ohio Administ- rative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Pursuant to Rule 4731-11-02(F), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-02(C) and (D) also violate Sections 4731.22(B)(2) and (B)(6), Ohio Revised Code. Further, in view of the nature and/or amounts of the drugs prescribed and the circumstances with regard to such prescribing, Dr. Mustafa's acts and omissions with regard to Patients 130, 265, and 276 are found to constitute purposeful, knowing, or reckless violations of paragraph (C), and thus, pursuant to paragraph (F), also violate Section 4731.22(B)(3), Ohio Revised Code. Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of Fact #7 and #13, above, constitute: "Publishing a false, fraudulent, deceptive, or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Reviewed Code. Claim forms submitted by Dr. Mustafa or his office staff to insurers for reimbursement for Dr. Mustafa's services for both Patient 152 and Patient 151 reported diagnoses for which he had not treated those patients. The fact that diagnoses appeared on claim forms, but not in the patient records, cannot be attributed merely to Dr. Mustafa's poor documentation. Although Dr. Mustafa's patient records clearly indicate that the EKG's done in November, 1986, were part of physical examinations for initiation of diet programs, these EKG's were claimed under diagnoses of hypertension for Patient 152 and chest wall pain for Patient 151. In fact, the "Weight Reduction Program" form contained in Patient 152's file indicates that he had no history of hypertension or heart disease. It must be concluded that false diagnoses were reported for purposes of obtaining reimbursement from the insurer for performance of these routine tests. Although not included in the Board's allegations, it is noted that a similar billing was submitted on behalf of another patient reviewed in this Matter, Patient 25 (See Finding of Fact #19). Although Dr. Mustafa denied knowledge of or responsibility for these false billings, copies of the claims, many of which were signed by Dr. Mustafa, were made a part of the patients' records. Furthermore, contrary to Dr. Mustafa's contentions, he is responsible for the billing procedures of his office. It must be concluded that Dr. Mustafa knew or should have known of the fraudulent billings submitted on behalf of Patients 152 and 151. Further, Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of fact #15 and #16, above, constitute: "Publishing a false, fraudulent, deceptive or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Revised Code. Dr. Mustafa submitted billings and reports of Patient 140's attorneys, listing dates of service and fees not reflected in the patient record. In addition, he billed both attorneys for a January 28, 1986, office visit. Dr. Mustafa's attempts to explain these discrepancies are not convincing. The reports to the attorneys listed no specific treatments or medications for the dates reported; thus, they could not be adequate substitutes for clinical notes which Dr. Mustafa claimed to have recorded on separate cards. Further, Dr. Mustafa claimed that he had made clinical notes on cards, later discarded, because Patient 140 had come to his home, rather than to his office, for treatment; yet he had earlier testified that his office was in his home (Tr. at 41). Also, Dr. Mustafa's attempt to blame his receptionist for the double billing of the January 28, 1986, visit is not well taken. Dr. Mustafa signed the reports submitted to both attorneys and was responsible for their accuracy. It is evident that the billings submitted to Patient 140's attorneys for reimbursement for professional services fraudulently misrepresented the extent of and fees for Dr. Mustafa's services. Although not part of the Board's charges, it is further noted that the patient record for Patient 166 contains a billing submitted to an attorney which contains both dates of service and fees which are not reflected in the patient record (see Finding of fact #31). * * * * * The testimony and evidence in this Matter sub- stantially shows that Dr. Mustafa, in the routine course of his practice, engaged in inappropriate, indiscriminate prescribing of controlled substances and dangerous drugs. The patient records evidence his willingness to prescribe at the patient's request, without regard for medical indications or patient welfare. In at least one case, he admittedly prescribed narcotics to a known addict for an inappropriate period of time without referring him to an authorized treatment program. Both the State's exhibits and the testimony of its expert, Dr. Junglas, rob Dr. Mustafa's claim, that his prescribing was in accordance with acceptable community standards for the time, of credence. Dr. Mustafa admitted that he had ignored the warnings of drug manufacturers and FDA labeling with regard to his long-term prescribing of controlled substances, relying on information he claimed to have obtained from his colleagues. At best, Dr. Mustafa's prescribing practices reflect a willful ignorance of the properties and effects of drugs. Neither willful ignorance nor the lack of moral character demonstrated by Dr. Mustafa's fraudulent billings would seem to be remediable. PROPOSED ORDER It is hereby ORDERED that the certificate of Muhammad S. Mustafa, M.D., to practice medicine and surgery in the State of Ohio shall be and is hereby REVOKED. This Order shall become effective thirty (30) days from the date of mailing of notification of approval by the State Medical Board of Ohio, except that Dr. Mustafa shall immediately surrender his United States Drug Enforcement Administration certificate and shall not order, purchase, prescribe, dispense, administer, or possess any controlled substances, except for those prescribed for his personal use by another so authorized by law. Further, in the interim, Dr. Mustafa shall not undertake treatment of any individual not already under his care. Wanita J. Sage Attorney Hearing Examiner The Hearing Examiner's proposed findings of fact, conclusions and order were adopted by the State Medical Board of Ohio on December 6, 1989. Respondent appealed the Board's order through the courts and on May 4, 1992, the Ohio Supreme Court refused respondent's request that it take jurisdiction of the case. Consequently, the order of the State Medical Board of Ohio revoking respondent's license to practice medicine became effective June 15, 1992. Other matters At hearing, respondent offered the opinion of Adnan E. Mourany, M.D., Soundiah Selvaraj, M.D., and Marcello Mellino, M.D., by way of deposition (Respondent's exhibits 9-11), concerning respondent's reputation as a physician. Dr. Mourany is licensed to practice medicine in the State of Ohio, as well as Indiana, Minnesota and New York, and has practiced since 1986. He is Chairman of Surgery and Chief of Otolarynology at St. John's Westshore Hospital, and has known respondent professionally and personally since 1979. Dr. Selvaraj is licensed to practice medicine in the State of Ohio, and has practiced since 1974. he is Chief of Internal Medicine and Ambulatory Care at the Luthern Medical Center, and has known respondent professionally since 1976. Dr. Mellino is licensed to practice medicine in Ohio, and has practiced for 13 years. He is a cardiologist, and has known respondent professionally since 1978. It was the opinions of Doctors Mourany, Selvaraj and Mellino that respondent was an excellent surgeon who enjoyed a reputation as a good physician. 5/ At hearing, respondent also presented proof that during medical school he received an award from the Governor of Oklahoma for having performed volunteer work with charitable organizations, and that during his practice in Cleveland he received a ten-year service award from Luthern Medical Center and an award from the United States Senate recognizing his volunteer work for the Cleveland Foundation. Respondent also participated in two projects in Cleveland, one in 1983 and one in 1987, to treat patients without charge. All such activities predated the charges filed by the Ohio Board of Medicine. Since revocation of his Ohio license, respondent attended three courses of continuing medical education programs. The first, "Medical Malpractice and Risk Management--1993," was apparently completed in October 1993; the second, "AIDS and Florida Law--1993," was apparently completed in October 1993; and the third, "Surgical Education and Self-Assessment Program," was apparently completed in November 1993. Other than having attended such courses, respondent's activities since the revocation of his Ohio license do not appear of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license to practice medicine in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September 1994.
The Issue The issue presented is whether Petitioner is entitled to attorney?s fees pursuant to section 57.105, Florida Statutes (2011), and if so, what constitutes a reasonable fee?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of veterinarians in the State of Florida pursuant to section 20.165 and chapters 455 and 474, Florida Statutes. At all times material to these proceedings, Petitioner has been a licensed veterinarian in Florida, having been issued license number VM 5290. Petitioner was the treating veterinarian for a dog named, Awesomer, owned by Sheri Lawhun. On April 28, 2009, Ms. Lawhun brought Awesomer to Petitioner for examination and treatment. Details of the treatment provided to Awesomer are related in the Findings of Fact in the Merits Case. For the purposes of this Final Order, it is sufficient to state that Respondent treated Awesomer from April 28-30, 2009, and that on April 30, Awesomer died. Ms. Lawhun filed a complaint with the Department of Business and Professional Regulation regarding the care and treatment Respondent provided to Awesomer. Just prior to his provision of care for Awesomer, Dr. Langford?s office switched to a “paperless” system, which involved switching to electronic medical records, bookkeeping, etc. Petitioner testified in the Merits Case that the medical record itself is stored on the computer software and that there are a wide variety of “print screen” options available. Dr. Langford demonstrated the complicated nature of the software and the ability to “hide” different parts of the medical records from the print screen, as well as to copy and paste entries to the “top” or most recent page, of the medical record. The software does not allow the user to delete record entries, but does allow a user to hide them, change the dates for them, or make them unavailable to print. There are also entries on screens called “snatch screens” that do not print. As a result, there are three different sets of medical records for the same period of time for Awesomer that were admitted into evidence in the underlying case: 1) Petitioner?s Exhibit A, which was printed on May 16, 2009, at the request of Ms. Lawhun; 2) Petitioner?s Exhibit B, which is the copy of the records printed on July 15, 2009, in response to the complaint filed with the Department; and 3) Petitioner?s Exhibit C, which was printed August 2, 2011, and provided to Petitioner?s counsel during the litigation of this case. The three sets of medical records are not identical. Dr. Langford attributed these differences to entries that he ordered “declined” or hidden, so that the client did not see them, or because information was on the “snatch screen” in the program, which does not print. For example, the information related to Awesomer?s final visit to the clinic, according to Dr. Langford, was moved to the top of the record on May 16, 2009, so that Ms. Lawhun could see what happened on the day the dog died. He claimed that the entry was originally recorded soon after the dog?s death, but that it was moved when providing the records to Ms. Lawhun. Similarly, the date of the dog?s death is recorded in Petitioner?s Exhibits A and B as May 1, 2009, the first business day following the dog?s after-hours? visit. It is changed to April 30, 2009, in Petitioner?s Exhibit C. After the initial investigation of this case, counsel for the Department prepared a draft closing order and presented it to the probable cause panel for the Board of Veterinary Medicine at its meeting April 21, 2010. However, after some concerns expressed by the panel members, the Department?s recommendation was changed from closing the case to obtaining an expert review of the file. The Department had the file reviewed by two veterinary experts, Dr. Jerry Green and Dr. Melanie Donofro. Dr. Donofro is a former member of the Board of Veterinary Medicine. Both experts opined that there were problems with the care and treatment of Awesomer, as well as problems with the medical records for Awesomer. As a result of the expert witness reviews, a four-count Administrative Complaint was drafted and filed, charging Respondent with violating subsections 474.213(1)(r)(violation of the relevant standard of care); 474.213(1)(ee)(failure to keep contemporaneously written medical records as required by rule of the board); 474.214(1)(w) (practicing at a location without a valid premises permit); and 474.214(1)(m)(failure to notify Board of a change of address). The case was not taken back to probable cause prior to the drafting of the Administrative Complaint because of a computer data entry error that resulted in a computer record indicating probable cause had already been found. As is recounted below, the case eventually was presented to the probable cause panel a second time on the issue of medical records. Because the Fees Motion is directed to the medical records count, the failure to take the case back to the probable cause panel before the filing of the original Administrative Complaint has no real significance at this point. Petitioner?s assertion that counsel for the Department had a personal vendetta against him and had to remember that probable cause was not found at the April 2010, meeting is specifically rejected. As stated by Ms. Henderson at hearing, Dr. Langford?s case was one of many presented for consideration. While it is unfortunate that an error occurred, it is not indicative of any “personal” interest in prosecuting Petitioner. The Department and Dr. Langford agreed to a settlement that would have dismissed three of the four counts in the Administrative Complaint, and imposed a minimal penalty for Count III. However, when the stipulation was presented to the Board for approval, it was rejected. Board members voiced serious concerns regarding both the standard of care given to Awesomer and the adequacy of the medical records. The prosecutor told the Board that the Department entered into the settlement stipulation “in the interest of getting the case wrapped up,” and that the Department believed that the case would be a “battle of the experts” with respect to the standard of care issue. Ultimately, the Board voted to reject the stipulation offered and offered a counter proposal that would have resulted in dismissal of all of the charges except the medical records count, with a penalty consisting of a $1,500 fine, 30 days probation, and costs. Dr. Langford rejected the counter- proposal. An Amended Administrative Complaint was prepared and, along with the expert reports received, was submitted to the probable cause panel for review and approval. Also included in the materials was Dr. Langford?s response to the Amended Administrative Complaint. While counsel for Dr. Langford offered to “walk them through” his response to the allegations contained in the Amended Administrative Complaint, counsel acknowledged that she did not have anything to add that was not in his written response. The probable cause panel voted to approve amendment of the Administrative Complaint to a single charge of violating section 474.213(1)(ee). The panel also directed counsel for the Department to consult one of its experts, Dr. Green, to make sure the allegations in the Amended Administrative Complaint were consistent with his opinion. She did so. Contrary to Petitioner?s assertions, the panel did not simply “rubber stamp” the actions of the Department. Dr. Jones indicated her agreement with Dr. Green?s expert opinion, and there is lengthy discussion of the case. See Petitioner?s Exhibit P, pages 13-21, and 23-26. Respondent disputed the allegations in the Amended Administrative Complaint and on June 24, 2011, the case was forwarded to the Division of Administrative Hearings to conduct a section 120.57(1) hearing. Discovery and motion practice was active and, at times, acrimonious.1/ See, for example, the Order on Pending Motions, dated August 24, 2012. On August 29, 2012, Respondent filed the Fees Motion giving rise to this proceeding. The Fees Motion contains a certification that it was served on Petitioner on August 4, 2012. Ironically, much of the Fees Motion has nothing to do with the allegations contained in the Amended Administrative Complaint. The first four pages of the Fees Motion present Dr. Langford?s version of what happened in the final days of Awesomer?s life, and include facts not found anywhere in the pleadings. The next sections deal with accusations of the dog owner involving a psychic, and “public untrue statements about Respondent,” by Ms. Lawhun, which are also accusations not finding their way into the Department?s charging document. It is not until page 16 of the Fees Motion that the actual allegations that would give rise to the motion are identified and discussed. Ultimately, a Recommended Order was submitted that recommended dismissal of the Second Amended Administrative Complaint. The Recommended Order was issued after a section 120.57(1) hearing, and after consideration of all of the evidence presented at that hearing. The Board of Veterinary Medicine issued a Final Order on June 25, 2012, adopting the Findings of Fact and Conclusions of Law contained in the Recommended Order. At the time Petitioner filed the Fees Motion, the case was proceeding on the Amended Administrative Complaint. There was pending at that time a Motion to Amend the Amended Administrative Complaint, which was granted, and the case went to hearing on the Second Amended Administrative Complaint. At pages 16-17 of the Fees Motion,2/ Petitioner asserts that the Department alleges that he failed to properly document the dog?s heart rate and did not record any recommendations for diagnostic tests or follow-up examinations to determine the cause of the heart rate.3/ The basis for Petitioner?s challenge is an attack on the sources used by and the opinion of Dr. Donofro, one of the Department?s experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding Awesomer?s heart rate. The Department had a reasonable basis upon which to file the allegations in the Second Amended Administrative Complaint, and to proceed with those allegations. Petitioner cites to the Department?s allegations regarding his failure to record a fecal test. It was found in the Recommended Order that Respondent did not perform a fecal test (hence no record for one). While the Recommended Order concluded that the Department did not prove a medical records violation on this ground by clear and convincing evidence, the medical records indicate that the pet owner had reported that Awesomer had suffered from diarrhea the night before, and noted that his stool was “near normal” at the clinic. A notation of “near normal” stool could be interpreted, as it was in light of testimony presented at hearing, that no fecal test was performed and that the notation was based upon observation alone, or that fecal tests resulted in findings that were close to normal but that were not expressly recorded. Petitioner?s record is ambiguous enough to support either interpretation, and the Department relied on the interpretation of its experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the tests, or lack thereof, of Awesomer?s stool, and the Department had a reasonable basis to include the allegation in the Second Amended Administrative Complaint and to proceed with prosecution. Respondent takes issue with the allegations regarding low-urine gravity and other serum values. The specific allegations, found at paragraphs 12-13 of the Second Amended Administrative Complaint, state: Respondent performed a urinalysis for Awesomer. Respondent recorded in the medical records that he found a “low urine gravity,” but failed to address the elevated serum creatinine, serum albumin, serum sodium, and urine pH in Awesomer?s medical records. Dr. Donofro found the failure to address these values to be a problem. Ultimately, Dr. Langford?s testimony that he documented the values in the record but did not record any follow-up based on his belief that the identified values were not abnormal was credited at hearing. However, the fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the evaluation of serum creatinine, serum albumin, serum sodium, and urine pH. The Department had a reasonable basis on which to include the allegations in the Second Amended Administrative Complaint and to proceed with the prosecution of these allegations. At page 16 of the Fees Motion, Petitioner takes issue with paragraphs 14-15 of the Second Amended Administrative Complaint, which allege that Respondent failed to record any indication that Awesomer drank excessively, beyond the tentative diagnosis of polydipsia. Dr. Donofro?s report specifically addresses the failure to indicate excessive fluid consumption in that one would expect to see a notation regarding the level of consumption, in light of Respondent?s tentative diagnosis for Awesomer. Once again, however, the inclusion of this item in the Second Amended Administrative Complaint was based upon expert reports received by the Department prior to filing the Amended Administrative Complaint and the Department had a reasonable basis for including it and for prosecuting it. At page 19 of the Fees Motion, Petitioner takes issue with the allegation that he failed to include anything in the medical records for April 28, 2009, to support the administration of Phenylpropanolamine. This allegation is discussed by Dr. Donofro in her report, upon which the Department relied. At hearing, the issue was decided in Dr. Langford?s favor based upon his testimony and that of his expert witness, Dr. Vega (who is also a former member of the Board of Veterinary Medicine). However, the Department had a reasonable basis for including this factual allegation in the Second Amended Administrative Complaint and for prosecuting it. At pages 19-20 of the Fees Motion, Petitioner takes issue with the inclusion of allegations related to the documentation of a modified water-deprivation test. He is especially critical because he testified that he performed a modified water-deprivation test as opposed to a water- deprivation test, and states that the medical records clearly delineate that a modified water-deprivation test was performed. While the April 28, 2009, entry indicates that a modified water- deprivation test will be performed, there are other entries in the records for Awesomer that refer to scheduling and conducting a water-deprivation test. Based on the records, Dr. Donofro addressed this issue in her report.4/ While Petitioner ultimately prevailed on this issue, there was a legitimate basis for the Department to include the allegations in the Second Amended Administrative Complaint and to proceed with these allegations. On page 21 of the Fees Motion, Petitioner alleges that “Amended administrative complaint lines 25-26 allege Respondent failed to record in Awesomer?s medical record for April 29, 2009, anything regarding this visit, including the lactated- ringers solution administration. It is there in the record for that date, clear as day, that it was administered, as it was, on April 30, 2009, not on April 29, 2009.” Petitioner?s allegation is not consistent with the actual allegations in the Second Amended Administrative Complaint. That document states: Respondent?s written response from July 7, 2009, states that he examined Awesomer after 9:30 PM on April 29, 2009 and “found nothing abnormal in the examination of the dog, but considered the possibility of the lingering effects from the water deprivation study.” Respondent failed to record in Awesomer?s medical records for April 29, 2009, anything regarding this visit or examination. Respondent?s written response from July 7, 2009, also states that he examined Awesomer after 9:30 PM on April 29, 2009, and “placed a catheter in [Awesomer?s] arm, and administered 1000 cc of [Lactated Ringers Solution].” Respondent failed to record in Awesomer?s medical records for April 29, 2009, that he placed a catheter or administered the Lactated Ringers Solution (LRS). The Fees Motion does not mention the July 7, 2009, response by Dr. Langford. It was not admitted into evidence in this proceeding or in the disciplinary proceeding. It is, however, mentioned in Dr. Donofro?s report, and she comments on the discrepancy between Dr. Langford?s account of the events and Ms. Lawhun?s. Dr. Donofro also discusses at length what she viewed as some ambiguities in the recording of the amount of LRS, and opined that the amount provided under either interpretation she could reach was inappropriate. There was a basis upon which the Department could rely for including these allegations in the Second Amended Administrative Complaint and proceeding with those allegations. At page 21 of the Fees Motion, Petitioner claims that the Department alleges “in administrative complaint line 35 that Respondent should have included a „discussion? of electrolytes and white blood count,” and claims that there are no facts to support a records violation for line 35. Paragraph 35 of the Second Amended Administrative Complaint simply states that “the CBC results indicated that Awesomer?s white blood count was elevated.” A review of both the original and the Amended Administrative Complaint confirm that neither of those documents have the allegation of which Petitioner complains, at paragraph 35. Paragraph 36 of the Second Amended Administrative Complaint alleges that “Respondent failed to record any explanation or discussion of the results of the CBC or General Health Profile with Electrolytes in the April 30, 2009, medical records for Awesomer.” Dr. Langford?s criticism that “this is a medical record, not a dissertation,” is flippant at best, and ignores the requirement in Florida Administrative Code Rule 61G18-18.002(1) that the records “contain sufficient information to justify the diagnosis or determination of health status and warrant any treatment recommended or administered.” Concerns about issues revealed in the CBC were discussed in Dr. Donofro?s report, and the lack of follow-up or discussion led her to believe that certain possibilities in treatment were overlooked. The Department?s belief, that some reference other than the test result itself was necessary, was reasonable given the need for records to justify a diagnosis, and the Department had a basis to proceed with this allegation. Finally, at page 22 of the Fees Motion, Dr. Langford takes issue with the Department?s allegations that medical records were not contemporaneously recorded for events taking place April 30, 2009. Yet, there is no dispute that there are three separate versions of the medical records in this case, and one of the issues presented was the discrepancy in dates for certain services. The Department had a reasonable basis to proceed with the allegations with respect to the May 16, 2009, entries.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice medicine and for regulating such licensees on behalf of the state. Respondent practices general medicine under license number ME 0042559. The parties stipulated to all material facts alleged in the Corrected Second Amended Administrative Complaint except one. The disputed fact is whether Respondent maintained adequate medical records of her treatment of patient R.W. with Lortab. Lortab is a legend drug within the meaning of Section 465.003(7). It contains hydrocodone. Hydrocodone is a Schedule III controlled substance in Chapter 893. On April 7, 1989, Respondent signed a prescription for 30 Lortab 7.5 mg tablets as an analgesic medication for a toothache. Respondent's medical records contain no entry for R.W.'s office visit on April 7, 1989, and no entries disclosing the nature of R.W.'s complaint, diagnosis, plan of treatment, or justification for prescribing Lortab. On January 5, 1990, Respondent prescribed Indocin 7.5 mg., an anti- inflammatory medication, and Lortab 7.5 mg. for R.W.'s shoulder pain. Respondent's medical records contain no entries documenting the examination of R.W., exam results, or diagnosis. There is no justification in Respondent's medical records for prescribing Lortab for R.W. on January 5, 1990. In addition, Respondent failed to document the number of Lortab tablets prescribed for R.W. on January 5, 1990. On January 26, 1990, R.W. complained of pain in his right shoulder secondary to an injury sustained while pushing a car. Respondent again prescribed Lortab 7.5 mg. Respondent did not document in her medical records the number of Lortab tablets prescribed. On February 25, 1990, R.W. advised Respondent that he had reinjured his shoulder in a fight. Respondent instructed R.W. to wear a sling and rest. Respondent again prescribed Indocin and Lortab 7.5 mg. On May 4, 1990, R.W. again complained of shoulder pain. Respondent performed an x-ray of R.W.'s shoulder. Respondent's medical records do not document that the x-ray was taken or the results of the x-ray. On May 4, 1990, Respondent diagnosed R.W. with possible rotator cuff tear. Respondent prescribed Indocin and Lortab 7.5 mg. Respondent's medical records do not document the number of Lortab tablets prescribed. Respondent did not know the number of Lortab tablets R.W. received or the number he took each day. Respondent's medical records do not document Respondent's instructions concerning the number of tablets to be taken each day or the frequency with which the tablets were to be taken. Respondent's medical records do not document the number of refills R.W. was given. On May 24, 1990, Respondent's medical records document that she warned R.W. of the potential for addiction to Lortab. However, Respondent continued to prescribe Lortab without documenting the amount of Lortab prescribed for R.W. Respondent failed to keep written medical records justifying the course of treatment for R.W., including patient history, examination results, and records of drugs prescribed. Respondent failed to document patient history on April 7, 1989. Respondent failed to document x-ray examination results on May 4, 1990. Respondent failed to document Lortab prescribed, dispensed, or administered from April 7, 1989, through July, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 458.331(1)(m), reprimanding Respondent, imposing a fine of $3,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed herein. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1995.
The Issue The issues in this case are whether the allegations of the Amended Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a licensed physician in the State of Florida, holding license number ME 81249. At all times material to this case, the Respondent was board-certified in family medicine. The Respondent held no board certification at the time of the administrative hearing, and, according to his response to the Petitioner's First Request for Admissions, the family medicine certification expired in July 2007. On February 8, 2006, the Respondent prescribed hydrocodone (10/325, generic Norco, 10mg.) to Patient M.R. through an internet service called ERMeds.com. On June 26, 2006, the Respondent prescribed hydrocodone (Hydro/APAP 10/325, generic Norco, 10/325) to Patient M.R. through the internet service called ERMeds.com. Hydrocodone is a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Hydrocodone/APAP is hydrocodone combined with acetaminophen, and the combined drug is a Schedule III controlled substance listed in Chapter 893, Florida Statutes. Both hydrocodone and hydrocodone/APAP have high potential for abuse and addiction. The prescriptions issued to Patient M.R. contained the Respondent's identification including address and DEA number on the prescription form, as well as the Respondent's electronic facsimile signature. The Respondent had no contact with Patient M.R. either before or after the prescription was issued to Patient M.R. The Respondent conducted no health evaluation of Patient M.R. The Respondent did not obtain or review any medical information related to Patient M.R. The Respondent testified during deposition that a physician's assistant for whom the Respondent was the supervising physician was responsible for gathering and reviewing medical information from the patient. According to the Respondent's response to the Petitioner's First Request for Admissions, the physician's assistant obtained patient history, including current medications and complaints, and the "information was available to Respondent at the time the prescriptions were authorized." According to the Respondent's response to the Petitioner's First Request for Admissions, a completed medical questionnaire was available for the Respondent's review. There is no evidence that the Respondent reviewed any information or questionnaire regarding the patient's medical history or complaint either before or at the time the prescriptions were authorized. The Respondent did not know and never met the physician's assistant and was unable to recall the last name of the physician's assistant. There is no evidence that the Respondent had any discussion with any physician's assistant related to Patient M.R. either before or at the time the prescriptions were authorized. At the hearing, the Petitioner presented the testimony of Bernd Wollschlaeger, M.D., a Florida-licensed physician holding board certification in family practice. Dr. Wollschlaeger testified that a physician must evaluate a patient, take a patient's medical history, review any available medical records, and document the findings and diagnosis in a contemporaneous record prior to issuing a prescription for hydrocodone to a patient. Based upon the Respondent's deposition testimony and the responses to the Petitioner's First Request for Admissions, it is clear that the Respondent failed to evaluate Patient M.R. in any respect prior to issuing the prescriptions for hydrocodone to the patient. The Respondent reviewed no medical history or records related to Patient M.R. The Respondent failed to diagnose any medical condition that would support prescribing hydrocodone to Patient M.R. The Respondent failed to document any medical information related to Patient M.R. in any written record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Gerard Romain, M.D., in violation of Subsections 458.331(1)(m), 458.331(1)(q), and 458.331(1)(t), Florida Statutes (2005), and imposing a penalty as follows: a reprimand; a three-year period of probation, the first year of which shall include a prohibition on issuing prescriptions for Schedule II and III controlled substances; an administrative fine of $20,000.00; and such additional continuing education and community service requirements as the Department of Health determines appropriate. DONE AND ENTERED this 23rd day of September, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 23rd day of September, 2008. COPIES FURNISHED: Elana J. Jones, Esquire Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Dale R. Sisco, Esquire Stacy Estes, Esquire Sisco-Law Post Office Box 3382 Tampa, Florida 33601-3382 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issue is whether the medical license of Respondent, Elizer F. Castro, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint. The Petitioner, Department of Professional Regulation, Board of Medical Examiners, (DPR) presented the testimony of David F. Scales, M.D., John E. Danson, and Steven J. Clark, M.D. Petitioner's Exhibits 1-3 were admitted in evidence. Respondent presented his own testimony and that of Melvin Greer, M.D., by deposition. Respondent's Exhibit 1 was admitted in evidence. DPR recalled John E. Danson for rebuttal. The transcript of the proceedings was filed on November 2, 1987. The deposition of Melvin Greer, M.D., was filed on November 24, 1987. The parties agreed that they would file proposed findings of fact and conclusions of law within ten days following the filing of the Greer deposition. DPR filed its proposed findings of fact and conclusions of law on December 4, 1987. Respondent's proposed order was filed on December 11, 1987, and is therefore untimely. It has not been considered. The proposed findings of fact submitted by DPR have been considered and a specific ruling on each proposed finding of fact is made in the Appendix attached hereto and made a part of this Recommended Order.
Findings Of Fact At all times relevant, Elizer F. Castro, M.D., was a licensed physician in the State of Florida, having been issued license number ME 0029506. Dr. Castro treated a patient, A.S., from May 9, 1983, to September 23, 1986. Dr. Castro treated A.S. for narcolepsy. A.S. was formerly treated by David Scales, M.D., of Jacksonville, Florida. Dr. Scales, a neurologist, treated A.S. for narcolepsy from December 16, 1982, until March or April, 1983. At that time, Dr. Scales discontinued treatment because he had received outside information that A.S. was a known drug dealer. Narcolepsy is a sleep disorder in which the patient has an uncontrollable urge to fall asleep at inappropriate times. Diagnosis of narcolepsy can only be made through a patient history and patient information regarding symptoms, past illnesses, past physicians, prior medications, sleep patterns and the existence of features associated with the disease such as cataplexy, nightmares and sleep paralysis. According to Dr. Castro, he took such a patient's history and performed a complete physical examination during the first visit by A.S. on May 9, 1983. Dr. Castro also asserted that he called Dr. Scales' office immediately following the first visit with A.S. and was advised by the physician's assistant that A.S. had been treated by Dr. Scales for narcolepsy. However, Dr. Castro's medical records, including the patient information sheet, do not contain any documentation of the history, specific examination results, or the phone calls to Dr. Scales' office. The first page of the medical records regarding A.S. which is entitled "Patient Information" reflects information regarding tests which were done on August 5, 1983, at Jacksonville Memorial Medical Center following involvement of A.S. in an automobile accident. Clearly this information was not given to Dr. Castro during the first visit of May 9, 1983 (despite Dr. Castro's testimony to the contrary), because these tests were not even done until three months after the first visit. Hence, these tests cannot be relied on by Dr. Castro to support his clinical diagnosis of narcolepsy because the tests postdate the diagnosis and because Dr. Castro never sought copies of the test results. Both Dr. Clark, DPR's expert, and Dr. Greer, Dr. Castro's expert, expressed the opinion that the medical records maintained by Dr. Castro failed to reflect an adequate history upon which to make the clinical diagnosis of narcolepsy. It is also important to perform certain tests in order to rule out other etiologies or problems which can complicate or confuse a physician in the diagnosis of narcolepsy. Here, Dr. Castro's records do not reflect any such testing prior to Dr. Castro's diagnosis of narcolepsy in A.S. In diagnosing narcolepsy in A.S., Dr. Castro acknowledged that his diagnosis was based on the representations of A.S. that he had narcolepsy and had been treated in the past for narcolepsy. Dr. Castro also stated that he did a physical examination, took an extensive patient history, and spoke to Dr. Scales' office for confirmation of the narcolepsy diagnosis. Dr. Castro did not record any of this in the patient records. Dr. Castro treated A.S. for narcolepsy by prescribing Preludin, 75 milligrams, three times per day. A.S. told Dr. Castro that that was medication he had been receiving and that was the dosage he had been receiving form Dr. Scales. In order to follow A.S. on this medication, Dr. Castro began by prescribing 45 tablets for a fifteen day supply. Dr. Castro saw A.S. at fifteen day intervals for the first few visits in order to monitor his progress and to examine him for side effects. Only after assuring himself that the dosage was correct and any side effects were being effectively managed, did Dr. Castro began prescribing the Preludin on a monthly basis. After November, 1983, Dr. Castro saw A.S. on a monthly basis to monitor his medication. Preludin is the brand name for phenmetrazine hydrochloride, which is a sympathomimetic amine and Schedule II controlled substance. The Physician's Desk Reference (PDR) is compiled by drug companies and contains data on all drugs, including indications for use, contraindications, adverse side effects, and recommended dosages. The PDR states that the maximum safe dose of Preludin is one 75 milligram tablet per day. The PDR also reflects that Preludin is contraindicated with hypertension. Dr. Castro was treating A.S. for hypertension. While Dr. Castro was prescribing Preludin in dosages beyond those set forth in the PDR, his prescription was not inappropriate. According to Dr. Greer, prescribing Preludin three times a day is a dosage that would be within a medically safe range and would be within the range appropriate within a physician's professional practice. Additionally, that prescription and dosage, being monitored on a monthly basis for side effects, would be within the range of sound medical practice. The dosage prescribed by Dr. Castro is also within the appropriate range that would be used on a patient of this type who had hypertension, as long as the physician also follows the hypertension. Here, Dr. Castro prescribed medication for A.S.'s hypertension and, according to Dr. Greer, that medication and treatment was appropriate. Dr. Castro's records reflect that A.S. was not referred for any consultations with other specialists until November 20, 1986. According to Dr. Greer, waiting two and one-half years to refer a patient for consultation with a neurologist to confirm the diagnosis of narcolepsy would be inappropriate unless the doctor had gotten additional information to confirm the diagnosis. Here, Dr. Castro asserts that he did receive additional information in the form of telephone confirmation by Dr. Scales' physician's assistant which confirmed the diagnosis of narcolepsy. Dr. Castro did not record this in his medical records. Dr. Castro practiced medicine within the community standard in his diagnosis and treatment of A.S. His failure was in the lack of documentation throughout his treatment of A.S.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order, and therein: Dismiss Counts II, III, IV, and V of the Administrative Complaint. Find Elizer F. Castro, M.D., guilty of violating Section 458.331(1)(n), Florida Statutes, as set forth in Count I of the Administrative Complaint. Assess a fine in the amount of five hundred ($500) dollars. Order Elizer F. Castro, M.D., to attend and complete continuing medical education in the area of record keeping. DONE AND ENTERED this 17th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4106 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 are 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); 2(2); 3(2); 4(3); 5(4); 6 & 7(5-7); 8(7); 9(8); 10(8); 14(10); 15(11); 16(11); 17(11); and 18(12). Proposed findings of fact 11, 12, 13, and 19-23 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Clyde E. Wolfe, Esquire 1 Corporation Square, Suite B-10 St. Augustine, Florida 32086 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
