The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against the Respondent's medical license based on an alleged violation of section 458.331(1)(s), Florida Statutes, concerning his ability to practice medicine with reasonable skill and safety by reason of illness, substance abuse, or mental or physical condition.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine as delineated in Chapter 458, Florida Statutes. The Board of Medicine is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction. At all times pertinent to this proceeding, Dr. Murtha has been licensed to practice medicine in the State of Florida, holding license no. 0037467. As a licensed physician in the State of Florida, Dr. Murtha is subject to the licensure and medical practice regulatory jurisdiction of the Board of Medicine of the Agency of Health Care Administration. Dr. Murtha, at the time of the Agency's investigation, was approximately 42 years of age. He received his medical degree in 1978 from the University of Florida and completed his residency at the University of Tennessee. In 1981, he became board certified in internal medicine. He has been on the staff of St. Joseph's Hospital in Tampa, Florida for the ten years prior to the initiation of this action. In August 1995, the Agency filed a complaint against Dr. Murtha alleging that two episodes affected Dr. Murtha's ability to practice medicine with reasonable skill and safety to patients by reason of use of alcohol. The first episode related to a charge of driving under the influence. On May 2, 1994, Dr. Murtha was involved in a minor traffic accident and charged with driving under the influence (DUI). On August 24, 1994, Dr. Murtha pled no contest to the charge, and he received 12 months probation, six months revocation of his driver's license, a $250.00 fine, required attendance of DUI school, and court costs. 7/ The officer who investigated the May 2, 1994 accident and who also charged Dr. Murtha was not available for the hearing and did not testify. The second episode alleged by the Agency relates to the allegation that Dr. Murtha practiced medicine while intoxicated. Specifically, the Agency alleged that Dr. Murtha saw patients while intoxicated. Relating to the second factual allegation, Nurse Georgia Jacinta Paille testified that on January 30, 1995, she encountered Dr. Murtha visiting a patient at St. Joseph's Hospital. Ms. Paille is the day charge nurse at St. Joseph's Hospital in Tampa, and she appeared as the first witness for the Agency. Nurse Paille testified that on January 30, 1995, she encountered Dr. Murtha and that he had a strong odor of alcohol on his breath. She further testified that Dr. Murtha was acting angry and inappropriate and that he raised repetitive questions relating to care given to one of his patients. While Nurse Paille noticed the odor of alcohol, she did not notice if Dr. Murtha's speech or gait was affected by the alcohol. Furthermore, Nurse Paille could not testify that Dr. Murtha acted like someone who had been drinking. Nurse Paille reported her observations of Dr. Murtha to her manager, Margie Butler, who in turn made a report to Dr. Gilbert J. Pitisci, the Hospital Administrator. Gilbert J. Pitisci is a medical physician and the Senior Vice President for Medical Affairs at St. Joseph's Hospital in Tampa, Florida. In addition to various administrative duties, Dr. Pitisci is authorized to summarily suspend a physician's privileges at a hospital. On January 30, 1995, the same day that Nurse Paille observed Dr. Murtha, Dr. Pitisci encountered Dr. Murtha. Dr. Pitisci also noticed the odor of alcohol on Dr. Murtha's breath, and he noticed that Dr. Murtha had a slight slurring of his speech and that there was a slight tremor in his hands. Dr. Murtha declined Dr. Pitisci's invitation to discuss his condition in private. Rather, Dr. Murtha insisted that the discussion be held publicly at the nurses' station. Based on Dr. Murtha's physical appearance and based on the odor of alcohol on his breath, Dr. Pitisci summarily suspended Dr. Murtha as a potentially impaired physician and directed him to leave the hospital. Subsequently, Dr. Pitisci notified the state that it had a physician with a potential impairment with alcohol abuse. Other than detecting the odor of alcohol on Dr. Murtha's breath, Dr. Pitisci had no information as to the amount of alcohol consumed by Dr. Murtha. On or about March 24, 1995, the Agency received notification of Dr. Murtha's suspension from St. Joseph's Hospital. In response, the Agency opened an investigation that led to the filing of an order compelling physical and mental examination. Subsequently, Dr. Murtha received an order from the Agency compelling him to submit to both a physical and mental examination. The Agency chose the physician and directed Dr. Murtha when to appear for his appointment. On June 6, 1995, Dr. Murtha complied with the Agency order compelling his mental examination, and he was evaluated by Daniel J. Sprehe, M.D. Daniel J. Sprehe, M.D. is a psychiatrist licensed in the State of Florida. He has been qualified by various Florida courts as an expert in clinical and forensic psychiatry and was accepted as an expert in the area of psychiatry on behalf of the Agency. Dr. Sprehe's examination and testing of Dr. Murtha lasted approximately three hours. Dr. Sprehe obtained and prepared a detailed social and medical history of Dr. Murtha, administrated the Minnesota Multiphasic Personality Inventory Psychological Test (MMPI) and MMPI II, administered the Michigan Alcoholism Screening Test (MAST), and administered a Beck Depression Inventory. He also questioned Dr. Murtha and performed a mental status examination. The purpose of the evaluation was to determine Dr. Murtha's medical condition and to make any recommendations for treatment concerning his fitness to practice medicine. Dr. Sprehe completed a written evaluation, including a written opinion based on the evaluation. In addition to the aforementioned tests, Dr. Murtha was given a blood test that revealed no alcohol or drugs in his system. Dr. Sprehe's report indicated that Dr. Murtha scored rather low, a score of 7 (out of a possible 30), on the MAST test. He stated that the MAST is a self-reporting test and that a score of five or more places the subject in the range to be considered an alcoholic. Later, Dr. Sprehe indicated that based on the facts presented in other reports relating to Dr. Murtha, he would have modified Dr. Murtha's score to 9. Still later at the hearing, Dr. Sprehe again revised his scoring of Dr. Murtha's MAST test and concluded that he scored a 20. Dr. Sprehe surmised that Dr. Murtha did not answer the test questions candidly and that his score should have been higher. Dr. Sprehe also found that Dr. Murtha minimalized his abuse of alcohol. Based on the MAST test, Dr. Sprehe found that Dr. Murtha fell into the alcoholic range. For reasons fully stated in paragraphs 26, 27, and 41, the undersigned declines to adopt, as a finding of fact, any diagnosis of Dr. Murtha based on the MAST test. Dr. Sprehe explained the differences between the definitions of abuse and dependence. Subsequently, Dr. Sprehe opined, within a reasonable degree of medical certainty, that the Respondent was an alcohol abuser. Based on his opinion, Dr. Sprehe recommended that Dr. Murtha consider a diversionary program such as the Physicians Recovery Network. Dr. Sprehe also opined that Dr. Murtha suffered from narcissistic personality disorder, which can complicate the diagnosis of alcoholism. A person with narcissistic personality disorder tends to deny defects in themselves. Dr. Sprehe's diagnosis of narcissistic personality disorder was made after a one-hour examination of Dr. Murtha. Dr. Sprehe could not state with certainty that Dr. Murtha could not practice with reasonable skill and safety. Dr. Sprehe did opine, however, that "there is at least a question in my mind as to [Dr. Murtha's] ability to practice medicine with reasonable skill and safety." Dr. Sprehe opined that the results of the MAST test and the mental examination, coupled with Dr. Murtha's history, placed Dr. Murtha in the high risk category. No where in the written report to the Agency did Dr. Sprehe advise the Agency that Dr. Murtha was not able to practice medicine with skill and safety. Dr. Sprehe also opined, based on a hypothetical question, that Dr. Murtha "is not in a position to practice medicine safely to patients." The hypothetical question, however, was based on the testimony of Dr. Murtha's ex- wife which has been found to lack consistency. (See paragraphs 28-30). Therefore, for the reasons stated in paragraphs 28-30, the undersigned declines to adopt, as a finding of fact, Dr. Sprehe's opinion which was based on a factually deficient hypothetical question. On August 9, 1995, sixty-five days after Dr. Sprehe's examination and report, the Agency issued an Emergency Suspension Order against Dr. Murtha's license to practice medicine. Dr. Murtha called Mark Stuart Goldman, Ph.D. as his sole witness. Dr. Goldman is a clinical psychologist and distinguished Professor of Psychology at the University of South Florida. Dr. Goldman specializes in the area alcohol research and is currently the director of the Alcohol and Substance Abuse Institute at the University of South Florida. Dr. Goldman was accepted as an expert witness in the field of alcohol and alcoholism, and he testified on behalf of Dr. Murtha. Dr. Goldman testified to the issue of alcoholism and discussed in detail the Michigan Alcoholism Screening Test (MAST). As discussed earlier, Dr. Sprehe relied on the MAST to help make his diagnosis that Dr. Murtha is dependent on alcohol. Dr. Goldman testified that the MAST can be skewed and that the very accusation of alcohol abuse can result in the subject having points scored against him. Dr. Goldman stated that tests such as MAST are crude devices used for screening alcohol problems but are not designed for the purpose of making diagnosis. To make this point, Dr. Goldman cited the Handbook of Alcoholism Treatment Approaches, by Hester and Miller, for the purpose that screening tests such as MAST should not be used for the purpose of making a diagnosis and that to do so represents a violation of professional and ethical standards. The undersigned is persuaded by Dr. Goldman's position that tests such as MAST should be used as screening not diagnostic tools. As such, any opinions based on results from the MAST test are rejected as not supported by credible evidence. Dr. Goldman examined Dr. Murtha on two separate occasions. Dr. Goldman obtained and reviewed Dr. Sprehe's report, and he reviewed the results of the MMPI and the MAST. Based on his review of the materials generated by Dr. Sprehe and on his own examination of Dr. Murtha, Dr. Goldman could not offer an opinion as to whether Dr. Murtha is safe to practice medicine. In addition, Dr. Goldman felt the record was incomplete to offer an opinion as to whether the Respondent was dependent on alcohol. In summary, Dr. Goldman found that a conclusive diagnosis would take considerably more time and would involve additional examination techniques. The undersigned adopts Dr. Goldman's position that inadequate information was available to render an opinion regarding Dr. Murtha's ability to safely practice medicine. In addition to the expert testimony received at the hearing, the Agency also offered the testimony of Dr. Murtha's ex-wife, Donna Gail Murtha. Mrs. Murtha is a registered nurse employed at James A. Haley Veterans Administration Hospital, and she was married to Dr. Murtha for 23 years until their divorce in December of 1994. Mrs. Murtha was offered for the purpose of establishing that Dr. Murtha was an abuser of alcohol and that he regularly consumed alcohol while engaging in the practice of medicine. Mrs. Murtha offered conflicting testimony relating to the quantity of alcohol Dr. Murtha consumed during their marriage. At the hearing she stated that he consumed "at least a pint [of liquor] a day. During the discovery deposition, however, she stated that "she couldn't state an amount [of alcohol consumed]." She also denied ever stating that he [Dr. Murtha] drank a fifth a day. Mrs. Murtha offered additional conflicting testimony as it related to Dr. Murtha's use of alcohol while on call at the hospital. At the hearing she testified that Dr. Murtha consumed alcohol while on call. During the discovery deposition, however, she testified that she knew of no specific incident when Dr. Murtha used alcohol on call. She also stated that she could not recall any instance when Dr. Murtha went to the office after having consumed alcohol. Mrs. Murtha's testimony is rejected because it is inconsistent and it lacks reliability 8/ At no time during or prior to the Agency's investigation had any complaints been received against Dr. Murtha.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED: That a final ordered be entered dismissing with prejudice the complaint filed against the Respondent in DOAH Case No. 96-0567. DONE and ENTERED this 20th day of June, 1996, in Tallahassee, Florida. WILLIAM A. BUZZETT, 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 20th day of June, 1996.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Treatment resource personnel, as defined in the "Comprehensive Alcoholism Prevention, Control, and Treatment Act," Chapter 396, Florida statutes, are screened in order to establish their good moral character. A person found guilty of certain enumerated offenses is disqualified from employment at a treatment resource which serves unmarried clients under the age of 18 years. In 1979, the petitioner was found guilty of one of the disqualifying offenses listed in Section 396.0425(1), Florida statutes. She was convicted of lewd and lascivious behavior for removing her clothes at a bar. In connection with this offense, she was jailed and her daughter was removed from her custody and was placed in foster care. The Department of Health and Rehabilitative Services is authorized, in certain instances, to grant an exemption to a treatment resource personnel from disqualification from working with children or the developmentally disabled. Section 396.0425(3), Florida Statutes. The petitioner requested such an exemption and appeared before the Department's Exemption Review Committee in November of 1987. The Committee determined that an inconsistent pattern of rehabilitation existed in her case and denied her request for an exemption from disqualification. On or about June 11, 1987, the petitioner entered a plea of guilty to the offense of driving under the influence of alcohol and was placed on probation for a period of one year. Among the terms of her probation were that she refrain from the consumption and possession of alcoholic beverages. In September of 1987, petitioner was adjudicated guilty of trespass in a structure or conveyance, which offense occurred on June 27, 1987. She was ordered to pay restitution and court costs and was placed on probation for six months. Petitioner admits that she has had a problem with alcohol for twenty years. She has no recall of the offenses which occurred in June of 1987, and states that she was in a "total blackout" state on both occasions. In January of 1988, petitioner began attending Alcoholic Anonymous (AA) meetings, often going to two meetings a day. She also attends Junior College and aspires to be a school teacher some day. She states that she realizes that all of her prior problems were alcohol-related. She states that, as of the date of the hearing, March 14, 1988, she has been sober for 49 days. Her daughter confirmed that petitioner was not drinking now, and states that AA has become a big part of their lives.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's request for an exemption from disqualification as a treatment resource personnel be DENIED. Respectfully submitted and entered this 26th day of May, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May , 1988. COPIES FURNISHED: E.J. Samuel C. Chavers, Esquire Department of HRS District 5 701 94th Avenue North St. Petersburg, Florida 33702 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues for determination are whether the undisputed actions of Respondent constitute just cause to terminate his employment as an educational support employee, and, if not, what penalty is reasonable.
Findings Of Fact Most of the material facts in this proceeding are undisputed. The parties dispute the reasonableness of the proposed termination of Respondent's employment. From December 3, 2001, through April 3, 2007, when Petitioner suspended Respondent without pay, Petitioner employed Respondent as an educational support employee, defined in Subsection 1012.40(1)(a), Florida Statutes (2006).1 Petitioner employed Respondent as an Electrician in Petitioner's Maintenance Services Department. The terms of employment are governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (the CBA).2 Respondent is a recovering alcoholic, but his alcoholism has not previously affected his job performance. That changed on January 12, 2007. After receiving work assignments on the morning of January 12, 2007, Respondent became loud and agitated. Respondent's supervisor asked Respondent what was wrong, and Respondent indicated he was having problems at home. The supervisor asked if Respondent had been drinking alcohol. Respondent denied the implicit accusation. After the encounter with the supervisor, Respondent drove one of Petitioner's vans to his home and consumed vodka for most of the day. At about 3:00 p.m. that day, Respondent returned the van to the parking lot of the Maintenance Department and had difficulty parking, according to the observations of Respondent's supervisor. Respondent stopped the van and got out. He was unable to walk without staggering. His eyes were red and watery. He had difficulty standing, and his shirt was soiled with vomit. The supervisor asked Respondent again if Respondent was intoxicated, and Respondent voluntarily reported his alcohol- related problem. Respondent's supervisor and two zone service managers called for assistance from the Fort Myers Police Department (the police). The police first attempted to have Respondent admitted to the Detoxification Unit, but the Unit was full. The police drove Respondent to the hospital, and the hospital admitted Respondent. The incident on January 12, 2007, was not the first time Respondent had voluntarily reported his alcohol-related problem to a member of management. In November of the previous year, Respondent experienced some personal problems and resumed the compulsive consumption of alcohol. Respondent voluntarily reported the alcohol-related problem to his supervisor and to his department director and obtained a 30-day leave of absence to complete a 28-day residential alcohol treatment program. Respondent completed only 17 days of the 28-day program. Respondent exhausted his insurance benefits after 17 days and could not afford the daily rate of $833 to complete the remaining 11 days. Respondent returned to duty sometime between January 8 and 10, 2007. Respondent informed his supervisor that Respondent had not completed the residential treatment program because he had exhausted his insurance benefits. Petitioner did not refer Respondent to another treatment program. After the incident on January 12, 2007, Respondent voluntarily entered an outpatient treatment program with Southwest Florida Addiction Services. Respondent successfully completed the program on March 30, 2007. Petitioner paid for the outpatient program and Respondent kept Petitioner notified of his progress. Respondent has maintained after-care treatment with a physician who specializes in addiction disorders and has regularly attended Alcoholic Anonymous meetings. Respondent has no prior disciplinary history. During the period of employment that began on December 3, 2001, Respondent received one probationary performance assessment and four annual performance assessments. Petitioner consistently evaluated Respondent at an "effective level of performance" in all areas targeted for assessment, with the exception that the assessment for the 2002-2003 school year scored two areas as "focus for development/feed back." The comment section in three annual assessments provides that Respondent "continues to do an excellent job." The department director recommended renewal of Respondent's contract for the five school years ending in 2007.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order suspending Respondent from his employment without pay for four months from April 3, 2007, as a penalty for personal business on school time and driving a school vehicle for personal use, and requiring Respondent, as a condition of his continued employment, to maintain his current regimen of addiction treatment with a physician and regular intervention from Alcoholics Anonymous. DONE AND ENTERED this 23rd day of August, 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 August, 2007.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Agency for Health Care Administration is the state agency charged with the responsibility for investigating complaints filed against health care professionals. The Board of Medicine ("Board") is organized within the Agency and charged with determining and issuing final orders in disciplinary cases involving physicians within its jurisdiction. At all times relevant to this proceeding, the respondent was licensed to practice medicine in Florida and holds the license numbered ME 0008667. From 1973 until his retirement in the summer of 1993, the respondent was a staff radiologist at Good Samaritan Hospital in West Palm Beach, Florida. He was a founding member of the group of radiologists now known as Palm Beach Imaging Associates. In December 1990, the respondent was going through a divorce, drinking three to four drinks each evening during the week and more on the weekends, dating several women, and generally "living hard." He was concerned about his lifestyle and intended to spend the month of February 1991, at a spa, resting and getting himself back to his normal condition. Instead, on December 17, 1990, he checked into South Miami Hospital for a five-day evaluation at the urging of Drs. Walter H. Forman and Donald W. Goodwin, his partners in Palm Beach Imaging Associates. Although they had been concerned about the respondent's health and his consumption of alcohol for years, Drs. Forman and Goodwin had been afraid to confront him about it previously. Upon his admission to South Miami Hospital, the respondent's blood pressure was taken and he was sent to the laboratory for a lab work-up and x- rays. He was then given a large dose of librium, which he continued to receive regularly until December 19. On December 19, the respondent was discharged from South Miami Hospital against medical advice because he was dissatisfied with his treatment and with the evaluation procedure. The respondent was diagnosed at South Miami Hospital as suffering from chronic alcoholism. When he left South Miami Hospital, the respondent drove himself to West Palm Beach. He was still heavily drugged and drove off the road twice. When he arrived in West Palm Beach, he learned from his estranged wife that Drs. Forman and Goodman had called and advised her that the respondent needed treatment for alcoholism and that he would lose his medical license if he failed to get it. Dr. Goodman was contacted by the hospital when the respondent was discharged, and the Physician's Recovery Network ("PRN") 2/ was also notified by South Miami Hospital of the respondent's discharge. This was the PRN's first involvement with the respondent. Upon being told that his medical license could be in jeopardy, the respondent immediately made arrangements to be admitted to the Talbott Recovery Systems ("Talbott"), a chemical dependency evaluation and treatment center in Atlanta, Georgia. He was admitted to Anchor Hospital, a part of the Talbott system, on December 20, remaining there for twenty-eight days before being transferred on January 17 to the Talbott Recovery Center. At the Talbott Recovery Center, the respondent lived in an apartment with several other patients and attended counseling sessions several times a day. The treatment was patterned after the twelve-step Alcoholics Anonymous Program. In January 1991, the respondent wrote a letter to three of his partners, Drs. Forman, Goodwin, and Wimbush, as part of the first step in his treatment. In the letter, he admitted that he needed to quit drinking but that he was too addicted to do it by himself, and he acknowledged that he could get himself and the radiology group into trouble if he didn't get his drinking under control. He described the treatment program as "totalitarian" but stated that he knew it would really help him. The respondent completed the twelve steps of the treatment program and was discharged from Talbott on April 13, 1991. Before his discharge, Talbott required the respondent to sign a five-year monitoring contract with Florida's PRN. He signed this contract on April 9, 1991. The terms of the contract required the respondent to attend weekly chemical dependency follow-up group meetings for two years, to submit to random urine and blood testing for two years, and to notify the PRN whenever he was going out of town. The contract also gave the PRN the power to order the respondent to be reevaluated if the PRN received any negative information about the respondent's behavior. After a two-week vacation, the respondent returned to West Palm Beach and, in late April or early May 1991, resumed the active practice of medicine. He rejoined his group, Palm Beach Imaging Associates, and worked as a staff radiologist at Good Samaritan Hospital. The respondent did not begin attending the follow-up meetings required by the PRN contract for several weeks after his return to practice, when he was notified that he must attend the meetings to be in compliance with the contract. The meetings were held at 6:00 p.m. in Stuart, Florida, about an hour's drive from Good Samaritan Hospital. The PRN expected attendance at all fifty-two meetings per year, and a participant who missed a meeting was required to have a good excuse for doing so. In a letter dated June 15, 1993, Gordon S. Bohl, President of Recovery Associates, Inc., wrote to the PRN affirming that the respondent had successfully completed his participation in the follow-up group meetings. As required by the PRN monitoring contract, the respondent submitted to random blood and urine testing for two years following his release from Talbott. He had approximately fifty blood tests and approximately twenty urine tests over the two-year period. He would usually receive a telephone call in the morning telling him to report to the office of a local physician in the afternoon. He never tested positive for alcohol. 3/ From early May 1991 until the end of May 1993, the respondent worked at the diagnostic center run by Palm Beach Imaging Associates in the professional office building adjacent to the Good Samaritan Hospital. The center was a very busy place, and the respondent spent more time working there than any of his partners. He handled the business of the center alone during the mornings, and, in the afternoons, all the partners shared in the responsibility. For approximately one year after his return from Talbott, the respondent did an excellent job. He routinely handled a very large workload, and the quality of his work was outstanding. However, beginning in the summer of 1992 and continuing into the fall, Dr. Goodwin and Dr. Forman noticed that his work habits were deteriorating and his personality changing. He still worked well in the mornings, but he began to take longer lunch hours and would run errands in the afternoons which took longer than seemed reasonable. Although the quality of his work was good, Dr. Forman noticed that the respondent's behavior was reverting back to what it had been prior to his treatment at Talbott. In November 1992, word came to Dr. Forman, and from him to Dr. Goodwin, that a technician had told another Palm Beach Imaging Associates partner, Donald Russell, that a patient had remarked that she smelled alcohol on the respondent's breath as he gave her an injection. Neither Dr. Forman nor Dr. Goodwin learned the name of the patient, and they did not attempt to verify the accuracy of the information conveyed to Dr. Russell by the technician. As a result of this report, as well as the changes they had observed in the respondent's work habits and personality, Drs. Forman and Goodwin decided to confront the respondent regarding their perception that he had resumed drinking and that his drinking might have an adverse effect on his work. In December 1992, Dr. Forman prepared a letter in which he set out the partner's concerns and offered the respondent three career choices: He could retire immediately from the group, undergo evaluation and treatment for his drinking, or work part-time in the diagnostic center for six months at a reduced salary and then retire. When the partners delivered this letter and confronted the respondent, he was furious and refused to accept any of the three alternatives. He told his partners that he was drinking, that he intended to continue drinking, that he was not an alcoholic, and that he would not cause the partners any trouble. In the face of the respondent's angry denials, the partners took no further action at the time, and the respondent continued to work full-time in the diagnostic center. Dr. Forman smelled alcohol on the respondent's breath several times between December 1992 and May 1993 and talked to him about it. The respondent denied any problem, but he continued to take long lunches and to be absent from work for long periods during the afternoons. In May 1993, the partners were told that, on three occasions, the respondent had asked a technologist to perform a procedure that, pursuant to the policies of the Palm Beach Imaging Associates, was to be performed by a radiologist. The partners met again in May 1993 to discuss their ongoing concerns regarding the respondent's behavior. They asked Dr. Goodwin to contact the PRN and ask for guidance in handling the problem. Dr. Goodwin telephoned the PRN and eventually spoke with Dr. Roger A. Goetz, a Florida-licensed physician who is the Director of the Physician's Resource Network/The Impaired Practitioner's Program of Florida, which includes the PRN. During their long professional association with the respondent, Dr. Forman and Dr. Goodwin never observed him in an impaired condition while at work, and they never heard any complaints that the respondent had been observed in an impaired condition while acting in his professional capacity. Dr. Forman and Dr. Goodwin never had reason to criticize the quality of the respondent's work, which they felt was consistently good and sometimes outstanding, and they never heard any complaints from other physicians or from patients regarding the quality of his work. Even so, Dr. Goodwin told Dr. Goetz that, although the partners had no evidence that the respondent had ever been intoxicated on the job or that the respondent had ever made a mistake in his work as a result of the use of alcohol, they were concerned about his behavior. Dr. Goodwin identified the bases for this concern as the respondent's previous history of alcohol abuse and the change in his work habits and behavior; he included the information that a patient had reported smelling alcohol on the respondent's breath. The partners followed up Dr. Goodwin's telephone call with a letter to Dr. Goetz dated May 26, 1993. They also notified the respondent that they had made a report to the PRN. The respondent ceased practicing medicine at the end of May 1993. On the basis of the information received from the respondent's partners, Dr. Goetz requested in a letter dated June 3, 1993, that the respondent present himself for an in-depth evaluation at one of the several PRN- approved facilities listed in the letter. The respondent found these facilities unacceptable because they were affiliated with the PRN, and he proposed three other facilities. Dr. Goetz agreed that the respondent could be evaluated at one of these, but he refused to agree to the respondent's suggestion that the evaluation be conducted without the examining physician having access to his medical history or, alternatively, that the medical history be provided only after the submission of the evaluation report. As a result, the respondent refused to undergo the requested evaluation. In September 1993, the respondent received an order from the Agency compelling him to submit to both a physical and a mental examination. The Agency chose the doctors and told the respondent when to appear for the appointments. On September 9, the respondent was seen at approximately 10:00 a.m. by Dr. Rohit Dandiya, a Florida-licensed physician board-certified in internal medicine. Dr. Dandiya performed a physical examination at the request of the Agency for the purpose of determining whether the respondent could practice medicine with reasonable skill and safety. Tests were run for several blood chemistries, including liver function, and, with the respondent's consent, for alcohol. The blood test results showed that two liver functions were abnormal. In Dr. Dandiya's opinion, the abnormalities could be related to injuries to the liver from the use of alcohol, but they could also be related to injuries to the liver from numerous other sources. The blood test results showed an alcohol level of twenty- seven milligrams per decaliter, which Dr. Dandiya considered very unusual given that the blood was drawn between 10:00 a.m. and 11:00 a.m. In Dr. Dandiya's opinion, this result indicated that the respondent had consumed alcohol within two or three hours before the blood was drawn. Dr. Dandiya did not receive any information regarding the respondent's medical history from the Agency. The information contained in the report was obtained solely from the respondent, who told Dr. Dandiya that he did not have any problems related to the use of alcohol; that he consumed four to six drinks per day, two to three before going home in the evening and two to three with dinner; that his consumption of alcohol had been at this level for the past twenty years; and that he had been treated at Talbott from January to April 13, 1991, for chemical dependency. Based on the results of the physical examination and on the history provided by the respondent, it is Dr. Dandiya's opinion that the respondent suffers from the disease of alcoholism. Although Dr. Dandiya included in his report to the Agency his opinion that the respondent's ability to practice medicine was questionable, he refused to state an opinion as to whether the respondent can currently practice medicine with reasonable skill and safety, explaining that he had examined the respondent fifteen months previously and had no knowledge of the respondent's current condition. On September 10, 1993, the respondent was seen by Dr. Neville S. Marks, a Florida-licensed psychiatrist with considerable experience in the diagnosis and treatment of alcohol dependency. Dr. Marks conducted the examination of the respondent at the Agency's request and received from the Agency the respondent's records from South Miami Hospital, Anchor Hospital, and the Talbott Recovery Center. Dr. Marks reviewed these records and performed a psychiatric examination in which he took a full history from the respondent, conducted a mental status examination, and performed two psychological tests. At the respondent's request and expense, Dr. Marks interviewed him a second time. The psychological tests administered were the 16PF Test Profile and the Minnesota Multiphasic Personality Inventory. The results of both of these tests were in the normal range, although the results suggested that the respondent was dependent and had a need for social approval. Dr. Marks concluded that the respondent had no significant pathology. In the history the respondent gave Dr. Marks, he stated that his father and two relatives on his mother's side were alcoholics and that his daughter had been treated for chemical dependency. He confirmed that, at the time he went into South Miami Hospital, he routinely consumed four to six drinks per day and six to twelve beers on Saturdays and Sundays. He described himself as very sharp and feeling very good for about a year after his release from the Talbott treatment program. He admitted that he likes to drink and that he had been drinking vodka and soda the night before the examination. He stated that he did not experience any effects from the use of alcohol, and he denied that he was an alcoholic. Dr. Marks observed the respondent's physical appearance and demeanor during the interviews, and he telephoned the respondent's partner, Dr. Goodwin, for additional information about the respondent, a normal procedure in evaluations of this type. Dr. Goodwin told Dr. Marks that the respondent had never been impaired on the job but that he had missed certain procedures, could be gruff over the telephone, and shown poor judgment at times. Based upon this information, Dr. Marks is of the opinion that, within a reasonable degree of medical certainty, the respondent suffers from chemical dependency of the alcohol type and that, until he obtains treatment and is motivated to stop using alcohol, the potential exists for him to practice medicine below the acceptable standard. In forming this opinion, Dr. Marks considered it significant that, even though his license to practice medicine was at stake, the respondent stated that he had consumed alcohol the night before his examination, that he had been drinking for many years, and that he wanted to continue to drink. As Director of the PRN, Dr. Goetz provides consulting services to the Agency with respect to impaired physicians, pursuant to the PRN's contract with the Agency. In his capacity as consultant to the Agency, Dr. Goetz, by letter dated September 30, 1995, notified the Agency that the respondent was not in compliance with his PRN monitoring contract and that, in his professional opinion, the respondent posed a serious danger to the public health, safety, and welfare. In making this assessment, Dr. Goetz considered the respondent's medical records, including oral reports from the Agency regarding the results of the examinations performed by Dr. Dandiya and Dr. Marks; the respondent's progress through the follow-up group meetings and the PRN monitoring process as reported by the treatment providers; and the behavioral and attitudinal changes and complaints reported by the respondent's partners. The respondent's medical license was suspended on October 5, 1993. Two letters were written to the respondent by Dr. John J. Purcell, a psychiatrist practicing at the Harvard Medical School, setting out his observations and opinions regarding the respondent's condition. In a letter dated November 23, 1991, Dr. Purcell reported that, based on three one-hour meetings with the respondent, it was his personal opinion that the respondent was merely a heavy social drinker, not an alcoholic. In a letter dated December 4, 1993, Dr. Purcell reported on his November 11, 1993, meeting with the respondent. He expressed his conclusions that the respondent's consumption of alcohol was less than that of a social drinker, that the respondent was being treated unfairly, and that there was no reason the respondent should be prevented from working. On December 20, 1993, the respondent was seen for a three-day evaluation by the staff of the Meninger Foundation in Topeka, Kansas, a well- respected chemical dependency evaluation and treatment facility. In the examination report, dated December 23, 1993, Roy W. Meninger, M.D., a psychiatrist, stated that the examining staff could find no basis for a diagnosis of alcohol abuse at the time of the examination, although they could neither affirm nor negate the earlier diagnoses at South Miami Hospital and Talbott. Likewise, the staff found no basis for concluding that the respondent was not competent to practice medicine or posed a public hazard. On August 19, 1994, the respondent was admitted to St. Mary's Hospital by Dr. William Donovan, with an admission diagnosis of gastroenteritis or hepatitis. Dr. Jeffrey S. Wenger, a gastroenterologist, was asked by Dr. Donovan to consult with regard to the condition of the respondent's liver. When he first examined the respondent, Dr. Wenger had no chronic history and was aware only of the acute history reported by Dr. Donovan that the respondent presented with acute intoxication and that he needed to undergo detoxification. Dr. Wenger's diagnosis on consultation was that the respondent suffered from acute hepatitis, likely alcohol related, and he ordered serologies which eliminated other causes of the liver disease. The respondent was discharged on August 29, 1994, to the Hanley-Hazelton Center for rehabilitation; he was released after four days. When Dr. Wenger spoke with the respondent on August 19, 1994, shortly after his admission, he admitted drinking about three glasses of vodka and soda per day, although the respondent claimed that the amount had decreased over the previous few months. Given his acute intoxication on admission, Dr. Wenger ordered that seventy-five milligrams of librium be administered to the respondent three times per day to prevent delerium tremens; this dosage was decreased incrementally during the respondent's hospitalization. Dr. Wenger has no opinion as to whether the respondent suffers from the disease of alcoholism or whether he is presently capable of practicing medicine with reasonable skill and safety. He is of the opinion that, during his hospitalization at St. Mary's, the respondent was not capable of practicing medicine with reasonable skill and safety. The respondent denies that he is an alcoholic and believes that all of his troubles originated with an incorrect "non-diagnosis" of chronic alcoholism made by a physician's assistant at South Miami Hospital in December 1990. During the summer and fall of 1990, he was having marital problems and was 'living life pretty hard.' Although he was drinking two to four drinks per day, he felt that he did not have a problem with alcohol but that he was just not getting enough rest. The respondent went into the Talbott Recovery System only because Drs. Forman and Goodwin threatened him with the loss of his license to practice medicine. He claims that he was not evaluated when he was in Anchor Hospital, and he believes that the staff at Anchor and Talbott merely accepted the incorrect diagnosis of chronic alcoholism made at South Miami Hospital and forced him to participate in a four-month inpatient treatment program on this basis alone. He felt he never belonged in the Talbott treatment program, so he lied and made things up in order to progress through the program's twelve steps. Specifically, the respondent claims that the January 1991 letter to his partners was written under duress, that his first draft was rejected because he didn't adequately admit his alcoholism, and that the letter he actually sent was essentially dictated to him. He would not have agreed to sign the PRN monitoring contract if it were not a condition of his release from Talbott. The respondent denies each allegation made by his partners in the confrontation of December 1992: He never took -longer than thirty minutes for lunch; he did not ever leave the diagnostic center unattended or for long periods of time; it was impossible for anyone to have smelled alcohol on his breath because at the time he was drinking no more than one or two beers on Saturday after playing golf. He was furious at the accusations and believes that his partners were trying to force him to retire because they knew he would never again submit to the humiliation and degradation of treatment. From December 1992 until May 1993, when his partners contacted the PRN, he settled back into his old pattern of having two drinks with his friends each evening after work. The respondent disputed the validity of the examination performed by Dr. Dandiya. According to the respondent, Dr. Dandiya did a very cursory, five- minute physical examination and took no past medical history whatsoever. The only conversation the respondent claimed he had with Dr. Dandiya was to tell him why he was there and to request that he draw blood to test for alcohol. The respondent testified that Dr. Dandiya drew the blood as requested but that he used an alcohol swab when he did so, thus contaminating the blood and ensuring a positive test result. Dr. Marks likewise did an inadequate psychiatric examination, according to the respondent. The respondent testified that Dr. Marks already had his notes prepared when the respondent arrived, having taken them from the records of his previous hospital admissions and of his time at Talbott. The respondent claims that Dr. Marks spent only fifteen minutes asking him about the things written in his notes; the remaining forty-five minutes of the first visit were spent in the secretary's office taking psychological tests. The respondent told Dr. Marks he thought he had not been evaluated at all and arranged for a second visit. The respondent described the second visit as much like the first, and he insisted that, in the only discussion he and Dr. Marks had, he told Dr. Marks he drank nothing more than an occasional beer. The respondent admits he was extremely ill when he was admitted to St. Mary's Hospital in August 1994. He concedes that he was drinking at that time but that he really wasn't keeping track of how much he was drinking. He did not think, however, that he was drinking enough to cause hepatitis. The respondent testified that, since his release from the Hanley-Hazelton Center, his alcohol consumption has been "almost" nonexistent. He is aware that he cannot drink without becoming seriously ill. The respondent has never been reported by a physician or other health care professional or by a patient as impaired on the job as a result of the use of alcohol or otherwise. None of the physicians for whom he has done work have complained that his work was of less than acceptable quality. Because the respondent has not practiced medicine since May 1993, except for a period of about one week in late September 1993, there is no current evidence regarding his ability to practice with reasonable skill and safety. Alcoholism is a disease characterized by the use of alcohol in an amount excessive for a particular person. This excessive use of alcohol can impair a person's ability to work; it can cause physical damage such as liver damage and brain damage manifested as loss of concentration and memory lapses; and it can adversely affect social and interpersonal relationships. The consumption of alcohol need not be compulsive; a person can decide that drinking will be part of his or her life and then continue drinking as a matter of choice even though it is clear that there are adverse effects and deterioration in the ability to function on a day-to-day basis. After a period of time, the consumption of alcohol becomes a pattern, and the person becomes dependent on drinking, both physically and psychologically. One of the classic symptoms of alcoholism is denial, denial of adverse effects on one's life as a result of continued drinking and denial that it would be physically and emotionally healthier to quit drinking. Alcoholism is a chronic, relapsing condition which, if left untreated, will get progressively worse. Alcoholism can only be treated and controlled. It cannot be cured. The testimony of the respondent, summarized above in paragraphs 41 through 47, is not credible to prove that he is not an alcoholic and that his ability to practice medicine with reasonable skill and safety has never been, is not now, and never will be, affected by his use of alcohol. The respondent accused all of the health care professionals who have diagnosed him as an alcoholic of incompetence, malpractice, and lying; he offered excuses for behavior which his partners considered questionable and denied every allegation they raised in December 1992; he blamed his troubles on conspiracies mounted against him because of greed - the greed of his partners to split his $600,000 annual salary among themselves and the greed of Dr. Goetz and those running state- approved treatment programs to enrich themselves at the expense of professionals like himself, who have been deliberately misdiagnosed as alcoholic. The respondent did not admit to a single fault and even explained away his deteriorated condition in December 1990 as the result of the lack of sufficient rest. Rather than support his assertion that, in spite of his drinking, he is not an alcoholic, this testimony merely confirms the extent of his denial of all signs and symptoms of the adverse effects of his consumption of alcohol. The respondent has shown a consistent pattern of drinking which, since December 1990, has been broken only by the one-year period following his discharge from Talbott in April 1991. He was diagnosed in August 1994 with alcohol-related hepatitis after being admitted to St. Mary's Hospital acutely intoxicated, yet he still drinks alcohol. The letters of Dr. John J. Purcell are not credible evidence to prove that the respondent is not an alcoholic and that his ability to practice medicine with reasonable skill and safety is not affected by his use of alcohol. At best, this hearsay evidence merely supplements the respondent's self-serving testimony that he is nothing more than a social drinker and that he is being treated unfairly. Nor is the Meninger report sufficient to prove that the respondent is not an alcoholic and that his ability to practice medicine with reasonable skill and safety is not affected by his use of alcohol under the standards recognized by the State of Florida. The staff was equivocal about whether the respondent is an alcoholic, concluding only that there was no present evidence of alcohol abuse. The staff's opinion that the respondent was competent to practice medicine was based on the assessment of his condition in December 1993. The evidence is clear and convincing that the respondent suffers from the disease of alcoholism. Even though there have been no complaints regarding the quality of his work and no indication that he has been impaired or intoxicated on the job, the respondent has shown extremely poor judgment regarding his consumption of alcohol in personal life. The evidence is clear and convincing that the respondent is an impaired physician and cannot practice medicine with reasonable skill and safety unless he abstains completely from the consumption of alcohol. This can be assured only if the respondent successfully completes an approved treatment program and keeps his alcoholism in remission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that James P. Bowman, M.D., is unable to practice medicine with reasonable skill and safety to patients by reason of the use of alcohol and Suspending his medical license until he appears before the Board and demonstrates that he is able to resume the practice of medicine with reasonable skill and safety; Requiring that this demonstration be supported, at a minimum, by satisfactory mental and physical evaluations performed by experts approved by the Board and by evidence of successful completion of an approved alcohol rehabilitation program; Placing Dr. Bowman on probation for five (5) years subject to terms and conditions set by the Board to ensure his continued ability to practice medicine with reasonable and safety, if or when the terms of the suspension are satisfied; Imposing an administrative fine of $3,000.00. DONE AND ENTERED this 28th day of August 1995, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August 1995.
The Issue The issues are whether the Respondent should be prohibited or restricted from practicing as a licensed registered nurse and as a licensed massage therapist, or be otherwise disciplined, for allegedly being unable to practice nursing and massage therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals, or any other type of material, or as a result of any mental or physical condition, in violation of sections 464.018(1)(j) and 480.046(1)(h), Florida Statutes (2016).1/
Findings Of Fact The Respondent is a Florida licensed registered nurse (RN 9295784) and licensed massage therapist (MA 46128). She has been working as an RN in Florida since 2009. Neither her nursing nor her massage therapist license had been disciplined before the charges filed in this case. In January 2016, the Respondent was working three 12- hour night shifts as a nurse in a hospital that admitted mentally ill patients. After being assaulted by a violent patient, she decided to change specialties. In May 2016, the Respondent applied for a job at Moffitt Cancer Center in Tampa. Moffitt made an offer, contingent on passing a health screening, which included a drug screening. During the screening on May 10, the Respondent appeared to be drowsy, which seemed odd and suspicious to the Moffitt staff who conducted the health screening. The Respondent’s urine sample was corrupted, and she returned two days later to provide another sample. The second sample tested positive for butalbital, oxazepam, morphine, codeine, temazepam, and alprazolam. The Respondent had prescriptions for all these drugs, but the one for butalbital was not current. Butalbital is a Schedule III controlled substance under section 893.03(3), Florida Statutes, and is found in Fiorinal and Fioricet, which are prescribed to treat migraine headaches. As a result of the pre-employment screening, Moffitt would not clear the Respondent to work there. The Respondent testified that she appeared to be drowsy at the time of the Moffitt pre-employment screening because she was tired from working three consecutive 12-hour night shifts at Hospital Corporation of America’s West Pasco Hospital in Trinity. In addition to working at the hospital, she was acting as a union delegate, plus going to school full-time to earn a bachelor’s degree in nursing, and she was up late studying the night before her screening at Moffitt. The Respondent denied abusing or misusing her prescriptions and explained that she was taking the out-of-date prescription to save money on a prescription she used infrequently, as needed, for migraines. In July 2016, the Respondent was recruited for a nursing job at Bayshore Health System’s St. Joseph’s Hospital in Tampa. She was hired and participated in a pre-employment screening there. Her drug screening tests were negative, and she was cleared to begin work starting on July 18. At St. Joseph’s, the Respondent passed her skills tests and worked three 12-hour shifts a week from 7:00 p.m. to 7:00 a.m. She took her new job seriously. Since she previously worked on a mental health unit, she was first assigned work with a preceptor in the neurological stroke unit to refresh general nursing skills. In September 2016, the Respondent received a letter from Moffitt saying that “recent events” had come to Moffitt’s attention that could constitute a violation of the Nurse Practice Act and advising that Moffitt would have to report the Respondent to DOH and the Board of Nursing if she did not consult with the Intervention Project for Nurses (IPN), within two days, as an alternative to disciplinary action for nurses who are in violation because of the use drugs or alcohol, or because of physical or psychological impairment. The Respondent did not think she was in violation and declined to consult IPN. Moffitt filed a complaint with DOH, which began the process of compelling the Respondent to be evaluated by an expert in addiction medicine. In October 2016, the Respondent’s supervisor, Laura Robidoux, talked to her because she thought the Respondent failed to recognize a patient’s subnormal temperature as a sign of sepsis. Seventeen hours after the Respondent’s shift ended, the patient went into medical distress, and the hospital staff recognized sepsis as the cause. Although several other nurses and doctors were involved in the patient’s care both during and after the Respondent’s shift, the Respondent was counseled about it. St. Joseph’s terminated the Respondent from her employment in early December 2016. The Respondent’s supervisor believed the Respondent missed a shift on Saturday, December 3, because of excessive drinking. Actually, the Respondent reasonably believed that she was not scheduled to work the shift in question. She already had satisfied her 36 hours of work that week, between actual work and paid time off; she was not expecting to have to work a fourth shift on Saturday; and she was unaware that she had been scheduled to work. The Respondent had dinner and a glass of wine with her mother, who resided with her. After dinner, she took a shower. At about 6:30 p.m., the unit secretary at St. Joseph’s called to say the Respondent was supposed to be at work. Her mother took the message and relayed it to the Respondent, who immediately called back to explain that she did not think she was scheduled to work and did not think she should go to work because she just had a glass of wine with dinner. The Respondent’s supervisor received a “zone report” on the supposed missed shift on Monday, December 5. She was very upset with the Respondent and did not accept her explanation of what happened. She informed the Respondent that, as a probationary employee, she was going to be terminated from her employment. The Respondent chose to resign instead. On the form used by Nurse Robidoux to document the reasons for terminating the Respondent, she added that the Respondent did not get the flu shot that was required by December 1, 2016. That ground for termination was false. Actually, as the Respondent tried to explain to her supervisor, she got her flu shot at CVS on November 28. Although the Respondent had proof, her supervisor maintained the alleged flu shot failure as a ground for termination. The termination documentation did not mention the incident in October regarding the patient with sepsis. It also did not mention any other grounds for termination. In her deposition on July 31, 2017, Nurse Robidoux talked about another supposed patient care issue, which she thought was a medication error, but she was not sure and was unable to recall any details. There was no evidence of any other patient care or attendance issues during the Respondent’s employment at St. Joseph Hospital. There was no evidence of any other incidents that could raise any concern that the Respondent was impaired in any way while working as a nurse at St. Joseph’s Hospital. The addiction medicine expert retained by DOH to evaluate the Respondent was Dr. Lawrence Wilson. Dr. Wilson was a urologist until substance abuse impaired his ability to practice medicine, and he entered the Professional Resource Network (PRN) program. Instead of remaining in urology after successful completion of the program, he decided to pursue addiction medicine. He completed a two-year fellowship in addiction medicine at the Drug Abuse Comprehensive Coordinating Office (DACCO) at the University of Florida in Tampa from 2010 to 2012 and is board-certified in the field. After his fellowship, he went to work at DACCO in Tampa and eventually became its associate medical director. He also serves as medical director at a private treatment facility in Tampa called Seven Summit Pathways, which is a residential and outpatient medication- assisted treatment facility. He also is a certified medical review officer, meaning he is qualified to determine whether there are legal and valid reasons for substances detected by laboratories testing samples from a drug screening program. Coincidentally, Dr. Wilson arranged to examine and interview the Respondent on December 14, 2016, shortly after her termination by St. Joseph’s Hospital. His evaluation was based on the examination and interview, the reports on three drug tests he had done on the Respondent, the report from Moffitt, and a telephone interview with Laura Robidoux. Dr. Wilson understood from Nurse Robidoux that the Respondent had “major performance issues” involving her failure to “pick up on clinical symptoms of her patients.” In fact, only one patient was involved. The Respondent was in the process of been retrained under the supervision of a preceptor at the time, and it was not clear from the evidence who was responsible for not recognizing the patient’s symptoms. Dr. Wilson also understood from Nurse Robidoux that the Respondent missed her shift on December 3 “because she had been drinking with friends” and “didn’t call that she was not coming to work and then didn’t show up [a]nd called, ‘after the fact’ – according to Ms. Robidoux – after her shift already started.” His understanding was incorrect. The Respondent’s explanation of what actually happened is accepted. The Moffitt drug screen was positive for several drugs. The Respondent had valid prescriptions for all of them except butalbital, which is a barbiturate and a Schedule III controlled substance under section 893.03(3). It can lead to moderate or low physical dependence or high psychological dependence. The Respondent’s primary care physician had prescribed Fiorinal, which contains butalbital and codeine, to treat the Respondent’s migraine headaches, which is a common use for it. However, the prescription was five years out-of-date. The Respondent conceded to Dr. Wilson that she should have asked her doctor to update the prescription, but she tried to explain that she did not use the prescription much and was trying to save money. The Moffitt drug screen also was positive for five other drugs, or their metabolites, for which the Respondent had valid, current prescriptions. These included alaprazam (generic for Xanax) and temazepam (generic for Restoril). In her interview on December 14, the Respondent told Dr. Wilson she was taking: Lisinopril; Zyrtac (an antihistamine used for allergies); Tylenol with codeine; Fiorinal; metoprolol (a beta blocker for blood pressure); Zofran (an antiemetic for nausea); Protonix (for gastroesophageal reflux); Ativan (generic for lorazepam, a long-acting benzodiazepine sedative); and Vistaril (a sedating antihistamine, typically used for anxiety). The Respondent told Dr. Wilson that she was “on and off” Xanax, a short-acting (two to four hours) benzodiazepine, for 20 years. She had been using it on an almost nightly basis for approximately five years, but stopped using it in approximately June 2016. She decided to stop taking it because she had to increase its dose to achieve the desired therapeutic effect (as her body habituated to the drug, and her tolerance for it increased). She had some withdrawal symptoms when she stopped taking it, including feeling sick, having trouble sleeping, and getting tremors or shakes for about three days. Dr. Wilson opined that the Respondent had become dependent on benzodiazepines. At some point in the year or so before Dr. Wilson evaluated her, the Respondent went to a second physician, who prescribed Restoril, a medium-acting benzodiazepine (temazepam). She was taking Restoril, 30 milligrams, “on and off” for about a year. Before she stopped the Xanax, there were times when the Respondent would take both Xanax and Restoril (which would explain the positive results from the Moffitt drug screening). It was a concern to Dr. Wilson that the Respondent might have been taking Xanax and Restoril together because they would have a synergistic effect and produce a higher level of sedation. The concurrent use of multiple benzodiazepines can cause cognitive impairment, including slow reactions and difficulty with problem-solving, which are critical to the practice of nursing and, to some lesser extent, massage therapy. However, the evidence was not clear and convincing that the Respondent used multiple benzodiazepines concurrently or that she ever was impaired when practicing nursing or massage therapy. As part of his evaluation on December 14, Dr. Wilson had the Respondent submit to a hair test and a urine test. A hair test typically records two to three months of substance or medication ingestion. A positive hair test indicates multiple, repeated uses of a substance or medication (at least four to five uses) over a two or three week period. A one-time use would not show up on a hair test. The Respondent’s hair test was positive for butalbital, codeine, hydrocodone (a metabolite of codeine), and Tramadol. The Respondent had valid prescriptions for the Fiorinal, which would explain the positive results for butalbital and codeine. Hydrocodone is a metabolite of codeine, which probably explains its presence along with codeine. The Respondent also had a prescription for Tylenol with codeine, which she was taking approximately three to five days a month for various musculoskeletal aches and pains in her hips, back and knees, and for premenstrual discomfort. The prescription was for one pill twice a day, but the Respondent admitted she would use between three and four tablets a day, which concerned Dr. Wilson. In general, Dr. Wilson was concerned with the Respondent taking opiates and benzodiazepines together. Both cause significant depression or slowing of the central nervous system, and using them together can lead to cognitive impairments, including slow thought processes; and taking too much could cause the Respondent to fall asleep or pass out, which obviously would affect her ability to practice nursing and massage therapy with reasonable skill and safety. However, the evidence was not clear and convincing that the Respondent ever was impaired when practicing nursing or massage therapy by the concurrent use of these two drugs. The positive result for Tramadol was very significant to Dr. Wilson because the Respondent did not mention it or produce a prescription for it during her interview, and the test showed a high level, which correlated to a significant use. Tramadol is a “non-opiate opiate,” meaning it mimics the effect of an opiate but is not made from opium poppy seed and has a different chemical structure. It is a strong analgesic used for pain management and, depending on the dose, can cause significant central nervous system depression. However, the evidence was not clear and convincing that the Respondent ever was impaired when practicing nursing or massage therapy by the use of Tramadol, alone or in combination with any other drug. Dr. Wilson did not think it likely that the Respondent had a plausible reason for not mentioning the Tramadol, and he believed she was trying to hide it from him. The Respondent’s explanation was that she had been taking it for menstrual cramps for about three months instead of Tylenol with codeine because it gave her enough pain relief without promoting menstrual bleeding; that it allowed her to remain clear-headed; and that she did not consider it to be an opiate or non-opiate opiate. Similar to the Xanax detected by the Moffitt pre-employment screening, the Respondent was using what remained from an out-of-date prescription. During the interview on December 14, Dr. Wilson asked the Respondent about alcohol. She told him that she would drink weekly during college, about three to five drinks, until becoming fairly intoxicated; that she drank socially in her thirties, about twice a week, between three and five ounces; and that her drinking decreased during her thirties and forties; and that she currently drinks one or two alcoholic beverages about four to five times a year. She said her most recent drinks were a large Bailey’s after dinner two days before the interview, and a large drink about ten days before that. As part of her examination by Dr. Wilson on December 14, the Respondent submitted to a phosphatidyl ethanol (PEth) blood spot test. This test measures ethanol in the blood stream and is used to detect heavy, frequent use of alcohol and/or binge drinking on less request occasions, as opposed to social drinking. The standard cut-off of the PEth test is set at 20 nanograms per milliliter (ng/ml), which requires, at a minimum, approximately seven to eight ounces of alcohol in a week. The Respondent’s PEth test was positive at 63 ng/ml, which was inconsistent with what she reported to Dr. Wilson. Dr. Wilson diagnosed the Respondent with alcohol use disorder of mild to moderate severity because he thought she used alcohol in larger amounts over a longer period of time than intended; her alcohol use resulted in a failure to fulfil a major obligation at work; and there was recurrent alcohol use in situations in which it was hazardous. He opined that her alcohol use put her at risk for being unable to practice with reasonable skill and safety to patients. During the interview on December 14, Dr. Wilson also asked the Respondent about cannabis use. She told him she used it a lot during high school, decreased its use in her twenties to episodic, and that she had not used it in four years. Dr. Wilson conceded that it did not seem to be an issue anymore and was insignificant, but he still diagnosed cannabis use disorder, moderate severity, in remission, based on her use of large amounts over a long period of time (in high school) and a general presumption that she spent “a great deal of time . . . in activities under the influence or to use or obtain, or recover from its effects.” After completing the evaluation of the Respondent, Dr. Wilson diagnosed: opioid use disorder, moderate severity; sedative/hypnotic use disorder, moderate severity; cannabis use disorder, moderate severity, in remission; alcohol use disorder, mild to moderate severity; chronic pain syndrome related to degenerative joint disease and chronic migraine headaches; hypertension; anxiety disorder, NOS; and chronic insomnia, NOS. Dr. Wilson opined that the Respondent was unable to continue her practice of nursing with the required skill and safety due to untreated substance use disorders and risk of impairment. He recommended that she enter treatment for substance abuse disorders, at a partial hospitalization level, at an IPN-approved treatment facility (which happens to be the kind of care provided for $5,000 a month at the substance abuse treatment facility operated by him in Tampa), and that she be monitored by IPN after completion of treatment. The Respondent disagreed, did not think referral to IPN was necessary, and declined IPN. Based on Dr. Wilson’s opinion and recommendation, DOH filed charges that the Respondent was unable to practice nursing or massage therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals, or any other type of material, or as a result of any mental or physical condition, in violation of sections 464.018(1)(j) and 480.046(1)(h). Emergency orders were entered restricting her practice of those professions pending disposition of the charges. At the hearing, Dr. Wilson testified in support of his opinions. However, his ultimate opinions on whether the Respondent was “safe to practice nursing or massage therapy” were based on “suspicions” and the “possibility” or “risk” of impairment. In addition, they were based in part on factual assumptions that were not proven by clear and convincing evidence at the hearing. The Respondent called her own expert, Dr. James Edgar, to dispute Dr. Wilson’s opinions. Dr. Edgar is a board-certified psychiatrist. He is not board-certified in addiction medicine or addiction psychiatry; does not complete continuing education or self-study related to substance use disorders; and does not hold the kinds of certifications Dr. Wilson has. However, he has performed evaluations of licensed health care providers for PRN and IPN, which are Florida’s programs for impaired physicians and nurses, and for private attorneys who represented licensees, for over 42 years. Dr. Edgar based his opinion on a review of Dr. Wilson’s work, an interview of the Respondent, and psychological testing using the Minnesota Multiphasic Personality Inventory (MMPI-2), which is considered the “Gold Standard.” He accepted the Respondent’s explanations of her sleepiness during the Moffitt pre-employment screening interview and her use of her prescription drugs. As a result, he questioned some of the factual basis for Dr. Wilson’s opinions. He did not concur with Dr. Wilson that taking Xanax and Restoril (“an anti-anxiety medication and sleeping medication”) at the same time was necessarily dangerous, depending on the dose (which Dr. Wilson did not know), the patient’s age, the patient’s weight, and other factors. Dr. Edgar did not concur with any of Dr. Wilson’s Axis I diagnoses (opioid use disorder, sedative/hypnotic use disorder, cannabis use disorder, or alcohol use disorder). He also did not think the Respondent had an Axis II personality disorder. He agreed with Dr. Wilson that the Respondent has Axis III medical illnesses and conditions and Axis IV stressors that made her level of anxiety and irritation understandable. On Axis V, Dr. Edgar rated the Respondent at a “global assessment of functioning” (GAF) of 85. Dr. Edgar explained that a GAF of 90 represents: Absent or minimal symptoms (e.g. mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasionally argument with family members). A GAF of 80 represents: If symptoms are present, they are transient and expectable reactions to psychological stressors (e.g. difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Dr. Edgar explained that he does not think the Respondent has opioid use disorder because: (a) all opioids she took were prescribed by her doctor; (b) there is no indication that she has increased the use of these medications; and (c) there is no indication that the use of these medications has impaired her ability to function as a nurse. He reviewed a note from the Respondent’s physician stating that he thought she was safe to practice in nursing, and there was no history of any employer or fellow employee expressing concern about the Respondent’s ability to function as a nurse as a result of her medications. Former co-worker, John Ault, R.N., testified that she was very capable, in his opinion. Dr. Edgar explained that he does not think the Respondent has sedative/hypnotic use disorder because: (a) her medications were all prescribed by physicians; (b) she does not have what he would call a history of taking more of these medications than prescribed; and (c) she may have increased the dosage of Xanax, but that was “perfectly within the realm” because some people need more for the drug to be effective. He does not think her taking more of the medication is a sign or symptom of any substance use disorder. He also noted that, as a nurse, she is capable of making that kind of decision. Dr. Edgar explained that he does not think the Respondent has cannabis use disorder because: (a) there is no history of cannabis affecting Respondent’s behavior, her social situation, her schooling, or her work; and (b) her use of cannabis was more than 20 years ago. He also disagreed with Dr. Wilson that the Respondent has a “lifetime [cannabis] disorder.” Dr. Edgar disagreed with Dr. Wilson’s basing a diagnosis of alcohol use disorder on Respondent’s PEth test result. He believes the test is unreliable and insufficient to support such a diagnosis by itself. He thought the other evidence of alcohol use was lacking and minimal. Dr. Edgar said the “chronic pain syndrome” diagnosed by Dr. Wilson was unwarranted and was another example of his making more out of something than was warranted. Having pain and taking prescribed medication does not mean the Respondent has a syndrome. If she did, he says you would expect to see that diagnosis by her primary care physician. Instead, he says she has a history of migraine headaches, and as an older nurse has aches and pains from stooping and bending and picking up patients, and is appropriately treating both with physician- prescribed medications. Dr. Edgar does not believe taking expired medications is an indication of a syndrome, of drug abuse, or of a disorder. It could well be related to the cost of the medicine. Regarding Dr. Wilson’s diagnosis of anxiety disorder, Dr. Edgar referred to the result of the Respondent’s MMPI-2 testing and explained that it is perfectly reasonable for somebody in the Respondent’s very stressful situation to have anxiety. Regarding Dr. Wilson’s diagnosis of chronic insomnia, Dr. Edgar noted that nurses who have consecutive night shifts are more apt to have trouble sleeping. He did not believe there was enough information to call it chronic insomnia. He would leave any diagnosis regarding insomnia up to the Respondent’s primary care physician. The Respondent tried different medications to deal with her insomnia, and Dr. Edgar did not think that was necessarily dangerous, even if she used Restoril and Xanax together. Dr. Edgar’s evaluation of the Respondent included the information that the IPN program requires. He ruled out substance abuse and other mental health problems that might interfere with the Respondent’s ability to provide safe nursing care. He saw no pertinent chemical dependency history, no history of diversion of patient medications, and no history of misusing prescription medication. The question in his “IPN template” regarding “status and stability of recovery” was inapplicable because the Respondent had no history of drug abuse or dependency, was not in a recovery program, and was only taking medications prescribed by her doctor. Dr. Edgar observed no impairment in the Respondent’s problem-solving ability, cognitive functioning, judgment, ability to cope with stressful situations, decision-making in a crisis, or mental status. He found no cravings on the part of the Respondent for drugs or alcohol. Dr. Edgar concluded that the Respondent does not suffer from any kind of impairment or disease that has resulted in an inability to practice nursing with reasonable skill and safety. He does not believe she needs to be referred to IPN for a program like the one Dr. Wilson recommended. According to the DSM-V, a diagnosis of substance use disorder is based on a “pathological pattern of behaviors” related to substance abuse. A person who has opioid use disorder, sedative/hypnotic use disorder, and/or alcohol use disorder will have behavioral issues and/or impairment that is obvious to other people. These typically would include a lack of motivation and a failure to meet school or work responsibilities. The Respondent has not demonstrated these behavioral patterns. Quite to the contrary, she was pursuing her bachelor’s degree in nursing while working full-time when she applied for the job at Moffitt; and she started a computer systems technician program at Erwin Technical College when her licenses were suspended, and was maintaining a straight “A” average. Dr. Edgar did not think it was likely that an impaired person would be able to perform like that. Dr. Edgar acknowledged that the Respondent had high scores on the addiction proneness indicator in her MMPI-2 psychological test results, but he explained that score is a mere indicator, and is insufficient to support a diagnosis. While it is possible that a problem could arise from being prescribed these medications, Dr. Edgar does not believe problems have arisen to date in the Respondent’s case. He believes it is telling that there has never been a complaint or a concern about the Respondent’s work as a nurse or her ability to practice nursing safely, except for those of Ms. Robidoux. As he observed, “that is usually where it starts.” Dr. Wilson’s opinions appeared to be influenced by his honest and genuine belief as a physician that the Respondent would benefit from the care and treatment she could receive as a participant in IPN. He may well be correct. He also may be correct that there is some risk that problems might arise in the future. However, the evidence taken as a whole was not clear and convincing that the Respondent is now unable to practice nursing and massage therapy with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals, or any other type of material, or as a result of any mental or physical condition.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that final orders be entered by the Board of Nursing and the Board of Massage Therapy dismissing the charges against the Respondent. If this recommendation is followed, jurisdiction is reserved for 30 days after the rendition of the final order to rule on the Respondent’s Motion for Sanctions under section 57.105(1), if it is renewed within those 30 days. DONE AND ENTERED this 3rd day of November, 2017, 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 3rd day of November, 2017.
The Issue Whether Respondent violated Subsection 466.028(1)(s), Florida Statutes (2000-2005), and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state department charged with regulating the practice of dentistry pursuant to Section 20.43 and Chapters 456 and 466, Florida Statutes (2006). Dr. Driggers is a licensed dentist in the State of Florida, having been issued license number 5473. The Professional Resource Network (PRN) is the impaired practitioner program for the Board of Dentistry, pursuant to Section 456.076, Florida Statutes (2006). PRN monitors the evaluation, care, and treatment of impaired healthcare professionals. Dr. Driggers has a long history of problems with alcohol. On January 15, 1987, he was arrested for driving under the influence (DUI). He was adjudicated guilty of that offense. In 1990, Dr. Ken Thompson did an intervention on Dr. Driggers based on Dr. Driggers' alcohol abuse. As a result, Dr. Driggers was admitted to Glenbeigh Hospital of Tampa for a three-day evaluation of alcoholism and chemical dependency. Dr. Driggers was diagnosed with alcohol abuse and benzodiazepine abuse. Dr. Martin Zfaz, who evaluated Dr. Driggers, recommended that Dr. Driggers attend an outpatient treatment program with Dr. Ken Thompson five days a week, attend 90 Alcoholic Anonymous (AA) and Narcotics Anonymous (NA) meetings in 90 days, and obtain a sponsor. On December 17, 1990, Dr. Driggers entered into an Impaired Practitioner Program of Florida Physicians Recovery Network Advocacy Contract. The contract required that he "abstain completely from the use of any medications, alcohol, and other mood altering substances." He agreed to attend a self-help group meeting such as AA or NA three times per week, to participate in continuing care group therapy one time per week, and to attend a 12-step program of recovering professionals every other week. The contract was for five years, with renewal subject to review by PRN. Dr. Driggers did complete an outpatient treatment program with Dr. Thompson by February 1991. He did attend some meetings of recovering professionals. In January 1992, PRN referred Dr. Driggers to Anton M. Krone, M.D., for an evaluation of Dr. Driggers' status. Dr. Driggers told Dr. Krone that he had not completely abstained from consuming alcohol, but that his consumption had not caused a problem. He was not attending AA meetings and did not have a sponsorship. Dr. Driggers did not consider himself to be an alcoholic and was opposed to attending AA meetings and abstaining completely from drinking. Dr. Krone opined that "it would be very difficult to engage [Dr. Driggers] in a recovery process at this time which is abstinence based." Dr. Krone suggested that "PRN follow him on an informal basis and watch to be sure that he is not getting into future trouble and to be ready to intervene with him promptly if such trouble begins to appear." The contract between Dr. Driggers and PRN dated December 17, 1990, was voided as of February 1992. On October 6, 2000, Dr. Driggers was again arrested for DUI. He drove his car into the back of a car stopped at a red light. He was given a breathalyzer test, which showed a blood alcohol level of .23, which is almost three times the limit for a presumption of DUI in Florida.1 Dr. Driggers did not feel like he was intoxicated and blamed the accident on his leaning over to prevent carry-out food from falling to the floor. He was adjudicated guilty of DUI in October 2001. Dr. Driggers reactivated with PRN and agreed to an inpatient evaluation. On November 13, 2000, he went to Shands at Vista for the evaluation. Dr. Thompson evaluated Dr. Driggers and concluded that he was concerned about Dr. Driggers' ability to practice with reasonable skill and safety. He made the following recommendation for the treatment of Dr. Driggers: "Return for inpatient detoxification with further assessment. I do not believe that in view of his denial, stress, shame, and anxiety level that he would likely be very successful in detoxing himself on an outpatient basis even with supervision." Dr. Driggers remained at Shands at Vista until he was discharged on March 9, 2001, with a diagnosis of alcohol dependence, sedative dependence, and anxiety disorder. On April 1, 2001, Dr. Driggers signed another five- year Impaired Practitioners Program of Florida Physician Recovery Network Advocacy Contract. As before, Dr. Driggers agreed to abstain completely from the use of any medications, alcohol, and other mood altering substances. He agreed to attend self-help meetings such as AA or NA three to four times per week. He agreed to attend a PRN monitored professional support group. Dr. Driggers agreed to participate in a random urine drug or blood screen program within 12 hours of notification. On June 23, 2004, Dr. Driggers tested positive for a metabolite of alcohol based on an ethyl glucuronide test, which detects metabolites of alcohol in urine. On July 12, 2004, Dr. Driggers again tested positive for a metabolite of alcohol based on an ethyl glucuronide test. His July score was higher than his June score. Dr. Driggers admits that he had not completely abstained from the use of alcohol and that he occasionally had a glass of wine with his new wife. Dr. Driggers rationalized his consumption of alcohol with the following comment: "I didn't think that the--that a glass of wine on a particular day would--would not only show in urine, but I didn't think that it was any major thing at the time. It was--it was something I did that I regret." On August 16, 2004, Dr. Driggers was referred by PRN to Martha E. Brown, M.D., for an evaluation. Dr. Driggers admitted to Dr. Brown that he had not abstained completely from alcohol. He told her that he went to PRN group meetings for a while, but quit going to the meetings. Dr. Brown concluded that she did "not feel Dr. Driggers can practice with reasonable skill and safety. He has been diagnosed with Alcohol Dependency in the past, yet has again resumed drinking. He appears to have much minimization of his alcohol use with rationalizations about it is okay that he has returned to drinking." Dr. Brown recommended that Dr. Driggers continue to participate in PRN, follow PRN recommendations, enter into a long-term residential treatment for chemical dependency, and abstain from all mood altering substances, including alcohol. In September 2004, Dr. Driggers sought a second opinion from Chowallur Dev Chacko, M.D., who is board-certified by the American Board of Psychiatry in general psychiatry, addiction psychiatry, and forensic psychiatry. Based on Dr. Driggers' long history of alcohol abuse and his continuing to drink while under a monitoring contract with PRN, Dr. Chacko opined that Dr. Driggers was not able to practice his profession with reasonable skill and safety and recommended that Dr. Driggers receive long-term residential treatment for his alcoholism. Dr. Driggers refused to follow the recommendations of either Dr. Brown or Dr. Chacko. On November 9, 2004, PRN sent notice to the Department advising that Dr. Driggers was not in compliance with his PRN monitoring contract. On June 17, 2005, Dr. Driggers returned to Dr. Brown for a new evaluation. Dr. Brown was still of the opinion that Dr. Driggers had a substance dependency problem and needed treatment. During her evaluation of Dr. Driggers, he told her that he would not be in PRN and would not follow PRN's recommendations. He was in severe denial concerning his chemical dependency. Dr. Brown recommended that Dr. Driggers should participate in PRN and follow the recommendations of PRN; that Dr. Driggers should minimally enter a partial hospitalization program with a step-down to an intensive out- patient program for his chemical dependency; that he should abstain from all mood altering substances, including alcohol; that he should attend 90 meetings of a self-help program in 90 days; and that he should turn in a signed list for attendance at 12-step meetings for six months to document his recovery. Dr. Driggers was evaluated by Jeffrey A. Danziger, M.D., on September 8, 2005, at the request of Dr. Driggers' attorney. Dr. Danziger opined that Dr. Driggers did not meet the criteria for alcohol dependence or active alcohol abuse at the time of the evaluation. Dr. Danziger diagnosed Dr. Driggers with posttraumatic stress disorder, in remission, and alcohol abuse, in sustained full remission. It was Dr. Danziger's "opinion that, from a psychiatric standpoint, Dr. Driggers did not have any substance abuse or psychiatric problems that would impair his ability to safely function as a dentist." Dr. Danziger explained that much of his evaluation was focused on whether Dr. Driggers posed an immediate danger that would justify an emergency suspension. Dr. Brown reviewed Dr. Danziger's evaluation report on Dr. Driggers and her prior evaluations of Dr. Driggers. On January 30, 2006, she opined as follows: I continue to believe that Dr. Driggers has a diagnosis of Alcohol Dependency as evidenced by having a BAL [blood alcohol level] of .2 at the time of one of his second DUI, indicating tolerance to the use of alcohol as "social" drinkers at a BAL of .2 would not have been able to get in their car to drive; he has been unsuccessful in his efforts to control his substance use while in PRN (he had continued to drink while in PRN) and again, if he was a social drinker, should have been able to completely abstain from substance use in PRN without any difficulty; and he has continued to use alcohol despite knowledge of having a persistent and recurrent problem with alcohol. Certainly of note is the fact that he has had not one but 2 DUIs in his past. He continues to have a great denial about the disease of chemical dependency and the need to abstain from all mood altering substances. This type of thinking poses an extreme risk to the public for him practicing without appropriate monitoring of his status by PRN. Alcohol Dependency is a permanent medical disease that does not go away once you develop it. A healthcare professional that has Alcohol Dependency must have long-term, appropriate treatment and monitoring to ensure they do well and can practice. In the most recent records you sent, numerous individuals gave affidavits that they have never seen him impaired while practicing. However, I would point out that simply not drinking at work, or not looking impaired, does not translate into whether one can practice their profession with reasonable skill and safety. Dr. Brown continued to recommend abstention from alcohol and mood altering substances, outpatient treatment, and participation in PRN monitoring. If those recommendations were followed, she felt that he could practice with reasonable safety and skill. However, Dr. Driggers has continued to refuse to participate in any PRN monitoring. On September 27, 2006, Dr. Danziger again evaluated Dr. Driggers. He was still of the opinion that Dr. Driggers had a diagnosis of alcohol abuse rather than alcohol dependence. Once you have a diagnosis of alcohol abuse, you will always have alcohol abuse, but it can be in remission. He agrees with Dr. Brown that Dr. Driggers is in need of outpatient treatment and monitoring. Whether Dr. Driggers' drinking problem is labeled alcohol abuse or alcohol dependence, the consensus of the experts in addiction psychiatry who evaluated Dr. Driggers is that Dr. Driggers must have some type of treatment and must be monitored in order for him to be able to practice dentistry with reasonable skill and safety. Dr. Driggers has been disciplined previously by the Board of Dentistry in 1989.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Driggers has violated Subsection 466.028(1)(s), Florida Statutes (2004); giving Dr. Driggers a written reprimand; requiring Dr. Driggers to undergo a new evaluation by a PRN- approved evaluator; requiring Dr. Driggers to comply with PRN recommendations; and suspending his license until he undergoes further evaluation and begins compliance with PRN recommendations. DONE AND ENTERED this 17th day of April, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 2007.
The Issue The issues in this case are whether Respondent committed the violation alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Department and the Board of Nursing have regulatory jurisdiction over licensed nurses such as Respondent. The Department furnishes investigative services to the Board and is authorized to file and prosecute an administrative complaint, as it has done in this instance, when cause exists to suspect that a licensee has committed one or more disciplinable offenses. On January 5, 1999, the Department issued Respondent license number RN3344322, which authorized her to practice as a registered nurse in the state of Florida. Respondent's address of record is 1720 Harrison Street, Apartment 11G, Hollywood, Florida. Though the record is less than explicit, it appears that, in or around July 2011, Respondent was suspected of misappropriating a small quantity of diazepam, a Schedule IV controlled substance. Although the administrative charges stemming from that allegation were ultimately dismissed, Respondent entered into an advocacy contract ("Contract") with the Intervention Project for Nurses ("IPN"), a program2/ which contracts with the Board of Nursing to monitor practitioners struggling with substance abuse issues or other problems. The Contract, which Respondent executed on October 5, 2011, mandated that she abstain from all mood-altering substances——including alcohol——for a period of two years; submit to random toxicology screens; and inform any potential employer of her participation in IPN. Further, by signing the Contract, Respondent acknowledged that she had reviewed the IPN Participant Manual ("Manual") and would abide by its terms. Significantly, the Manual provided that, upon a relapse,3/ Respondent would be required, as a condition of continued enrollment in IPN, to refrain from nursing until such time that an IPN-facilitated evaluation could be performed.4/ Subsequently, on or about December 20, 2011, Respondent obtained employment with Wound Technology Center as a "call-center nurse." In connection with this position, which required licensure as a registered nurse, Respondent provided consultation services to clinicians regarding wound treatment. Thereafter, on January 18, 2012, IPN requested that Respondent furnish a sample of her urine for testing. The results, which IPN received on January 24, 2012, revealed the presence of ethyl glucuronide (a metabolite of ethyl alcohol) and ethyl sulfate. That very afternoon, Patrice Ward, an IPN case manager, contacted Respondent by telephone to discuss the positive test result. During the ensuing conversation, Respondent admitted that she had consumed a glass of wine5/ with dinner, at which point Ms. Ward instructed Respondent to immediately refrain from nursing practice. Regrettably, Respondent failed to comply, without good cause, with Ms. Ward's directive to refrain from practice; indeed, the evidence demonstrates that Respondent continued to perform her regular nursing duties over the next two work days. Respondent's failure to refrain from nursing was quickly brought to the attention of IPN's executive director, who, consistent with the Contract's express provisions, terminated Respondent from IPN on January 26, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding Respondent guilty of violating section 456.072(1)(hh); suspending Respondent's nursing license until such time that an IPN-facilitated evaluation is completed and Respondent is deemed fit to return to practice; and ordering Respondent to enter into a monitoring agreement with IPN, should the IPN-coordinated evaluation demonstrate the need for further treatment. DONE AND ENTERED this 8th day of April, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 8th day of April, 2014.
