Findings Of Fact Respondent is now and at all relevant times has been a licensed registered nurse in Florida under license number 1074052. She is currently on active status. Her latest license renewal expires on March 31, 1989. Respondent was hired in April, 1986, as a charge nurse at John Knox Village Medical Center in Tampa. John Knox Village Medical Center is a long- term care facility divided into two wings. The wing to which Respondent was assigned houses between 24 and 32 patients requiring skilled nursing care. For the first three weeks on the job, Respondent performed her duties quite well. She learned the names of all of the long-term patients. She was a good manager and motivator of her employees. She was not absent from work. After about three weeks on the job, Respondent began to exhibit minor lapses of memory. Her hands began shaking. Her face became puffy and pale. She often became withdrawn and subject to mood swings. Occasionally, she could not be located for short periods of time by her nurse's aides, who required her supervision. A coworker smelled what was clearly alcohol on Respondent's breath one evening while Respondent was on duty. Shortly thereafter, on or about May 21, 1987, Respondent admitted to the Director of Nursing, Cary Boylan, that Respondent was an alcoholic. Respondent agreed, at Ms. Boylan's urging, to enter an alcohol treatment program sponsored by Alcohol Community Treatment Services, Inc. ("ACTS"). Respondent had been working at John Knox Village Medical Center for about six weeks at the time of her departure to enter the ACTS Program. Respondent underwent extensive residential treatment in the ACTS program from June 9, 1986 through July 7, 1986. She received counseling seven days a week. On July 14, 1986, Respondent successfully completed the intensive phase of the ACTS program and returned to work. She was rehired on that date, but was no longer the charge nurse. For the first few weeks after her return, Respondent was compliant, exhibited no signs of alcohol consumption, and generally performed her duties quite well. Respondent subsequently began a pattern of absenteeism starting at the end of August, 1986. At first, Respondent would notify her supervisors in advance of her absence. By September, it was "no call, no show." At one point, she missed six working days during a two-week period. About ten absences were unexplained. Others were accompanied by a doctor's excuse. By this time, the hand tremors had returned. Respondent's failure to show up for work or even alert her supervisor in advance of her absence left the floor short-handed. Other nurses were suddenly required to work overtime or report to work early. Sometimes a temporary nurse had to be called in. Respondent evaded Ms. Boylan's attempts to discuss Respondent's behavior. Generally, she avoided Ms. Boylan's telephone calls. When Ms. Boylan terminated Respondent from employment, Respondent's face had the pale and puffy look that it had prior to her entering the ACTS program. There were no charting or care problems with Respondent while she was employed at John Knox Village Medical Center. Ms. Barbara Burhop, a nurse responsible for the orientation of new employees at John Knox Village Medical Center, testified affirmatively to this fact. Also, Respondent was preoccupied at the time with the hospitalization of her father who was suffering from an illness that later claimed his life on November 14, 1986. However, Ms. Boylan and Rosemary Myers, a licensed practical nurse who worked with Respondent at John Knox Village Medical Center, both opined that Respondent could not practice nursing safely while at John Knox Village Medical Center, before and after the ACTS treatment, due to alcohol use. After leaving John Knox Village Medical Center, Respondent worked for six or seven months for a temporary nurse pool. On November 2, 1987, Respondent was hired to work as a staff curse at Centro Espanol Memorial Hospital in Tampa. She was assigned to the med-surg unit, but was first required to undertake two weeks of orientation and employee training. Respondent never completed the orientation training program. On the first day, she fell asleep while another nurse was training Respondent in a one- on-one session. Other times, Respondent appeared to be nodding off while on duty; often, she appeared to be trying hard to stay awake. Other nurses detected the odor of alcohol on Respondent's breath. Respondent frequently left her nurse's station for short periods of time for no apparent reason and during which she could not be found. There was no competent evidence of any charting or care problems during Respondent's short term of employment at Centro Espanol Memorial Hospital. In one instance, Respondent failed to release an in-going catheter, but Respondent's unrebutted testimony was that she told the nurse who followed her on the next shift about the unreleased catheter. Her chart entries were difficult to read, but "made sense" and were not illegible in the strict sense of the word. However, Ms. Gloria Carper, who is Assistant Director of Nursing at Centro Espanol Memorial Hospital, opined that Respondent was impaired due to alcoholism. Respondent admits that she is an alcoholic and has been for 2 1/2 to 3 years. She admits that she does not abstain from alcohol consumption. She testified that she did not drink while on duty. On days that she felt that she could not adequately care for a patient, Respondent stated that she would not report to work. She has attended various alcoholic treatment groups, including Alcoholics Anonymous, but has not successfully completed her recent treatment programs. On February 19, 1987, the Impaired Nurses Program ("INP") found Respondent noncompliant in her treatment program. On March 17, 1987, her noncompliance necessitated an extension of her INP two-year monitoring to February 4, 1989. Respondent was again found noncompliant by INP by letter dated May 11, 1987. Respondent was dismissed for noncompliance from Petitioner's Intervention Project by letter dated May 22, 1987. By letter dated June 25, 1987, Respondent was also unfavorably terminated from the post- residential, out-patient counseling phase of the ACTS program. Her ACTS counselor noted Respondent's sporadic attendance, closed attitude, and insistence upon her alcohol and drug-free status, which insistence was belied upon her uncooperative behavior. Although there is no direct, clear and convincing evidence of alcohol intoxication or even consumption while on duty, the evidence is clear and convincing that Respondent consumed alcohol during the terms of her employment at John Knox Village Medical Center and Centro Espanol Memorial Hospital. The most reasonable inference is that she consumed alcohol excessively the night before work. As a result, Respondent was either so tired and sick the next morning that she was unable to work or, if not quite so tired and sick, she would report to work and doze off.
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.
Findings Of Fact Petitioner, the Agency for Health Care Administration, is the agency of the State of Florida charged with regulating the practice of nursing pursuant to Chapters 455 and 464, Florida Statutes. At all times pertinent to this proceeding Respondent has been a licensed Registered Nurse, having been issued license number RN 1730452. On July 26, 1993, Respondent was admitted to Palmetto General Hospital where she was given a blood alcohol test. The tests revealed that she had a blood alcohol level of 0.317. The medical records maintained in the regular course of its business reflected that Respondent was diagnosed by Dr. Samuel Pinosky as suffering from depression and alcohol dependency. 1/ On July 29, 1993, Respondent was referred to the Intervention Project for Nurses (IPN), an organization that provides assistance to nurses who suffer from addiction. Respondent refused to cooperate with the IPN and stopped attending meetings during August of 1993. On October 29, 1993, Dr. Pinosky noted in his progress notes that he had seen Respondent and that she has "poor insight into [her] alcoholism" and that her "control issues" were evident. Respondent was subsequently evaluated by Dr. John Eustace, the medical director for the Addiction Treatment Program at Mount Sinai Medical Center of Greater Miami. As of December 10, 1993, Dr. Eustace was of the opinion that Respondent suffered from active alcohol abuse and that she was a potential danger to the nursing profession and to patients whom she might serve. Dr. Eustace noted that Respondent was resistant to usual alcohol rehabilitation treatment modalities. On or about December 29, 1993, Respondent was evaluated by Dr. Stephen Kahn, a psychiatrist and addicitionalist. Dr. Kahn prepared a report based on his evaluation and history of the Respondent. His report, dated January 10, 1993 (sic), 2/ provided, in pertinent part, as follows: Ms. Cifuentes presents a very interesting picture, in that she has a history of psychotic episodes over a nine year period, and functioned very little for almost 15 years, and now [has] what appears to be a somewhat long standing, but more recently quite florid, alcoholism. She shows no sign of any psychotic symptomatology at this time, but her mood is clearly very labile. She clearly suffers addiction to alcohol, and although she has some insight into this disease, she is also in a considerable amount of denial. Emotionally, she has not accepted this disease, and clearly does not want to look at this any longer. Given her degree of denial, and her emotional instability, exacerbated by the recent loss of her husband in a plane accident, the prognosis is not good. . . . [S]he is a high risk candidate to relapse. I do not believe it would be safe for this woman to practice nursing without further therapy geared toward recovery from addiction with possible psychiatric intervention as necessary. Kenneth W. Thompson, M.D., was accepted as an expert witness in the field of addiction medicine. Dr. Thompson testified without contradiction that alcoholism is a disease that requires treatment. There was no evidence that Respondent has accepted the offers of treatment that have been made to her by the IPN or that she has otherwise sought or received treatment for her alcoholism. Dr. Thompson opined with reasonable medical certainty that the Respondent is unsafe to practice nursing due to her alcoholism and due to mental illness. Dr. Thompson's opinions are consistent with the uncontradicted evidence in this proceeding. Based on the record of this proceeding, it is found that Respondent is unsafe to practice nursing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that revokes the licensure of the Respondent, requires the IPN to provide her services if she requests assistance, and provides for reinstatement of her licensure on appropriate terms and conditions upon proof that she can safely practice. DONE AND ENTERED this 10th day of October 1995 in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1995.
The Issue The issues in this case are whether Respondent violated section 464.204(1)(b), Florida Statutes, by intentionally violating section 456.072(1)(z), Florida Statutes, due to being unable to practice as a nursing assistant with reasonable skill and safety to patients 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; and, if so, what penalty shall be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing assistants, pursuant to section 20.43, and chapters 456, and 464, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a certified nursing assistant (C.N.A.) in the State of Florida, having been issued Certificate No. CNA 165217. Respondent is a convicted felon, having been convicted in 1988 of the felony offenses of grand theft and forgery. The conviction constitutes a crime of dishonesty. In 1989, Respondent was convicted of felony possession of cocaine and sale of cocaine. In 1992, Respondent was convicted of robbery, a felony. In 1998, Respondent was convicted of possession of cocaine, a felony. Respondent was sentenced and incarcerated in 2003 to a term of three-and-a-half years. In addition to the numerous felony charges, Respondent committed multiple misdemeanors over the past 30 years. In 2007, Respondent applied to be a C.N.A. in Florida. Respondent explained her criminal history in her application to become a C.N.A., as follows: The charges that were committed happen [sic] at a time in my life when I was living on the streets. I stole out of stores in order to get clothes to wear and sell to support my addiction. I use [sic] drugs and alcohol to escape. I hung around a lot of wrong people who did drugs and stole for a living. To me this was normal. I did everything under the sun in order to get high. My life was very unmanageable. I wrote checks out of my mother’s checking account to purchase drugs and alcohol. I unchanging [sic] sex for drugs, so before long the relationships that I got involved in boyfriend’s would dealt [sic] drugs. I would sell drugs in order to get the drugs to [sic] and get enough money to make whomever I was dating at the time happy [sic]. I have been drug free since 2000. I have maintained steady employment, and stable housing. I attend A.A. meeting [sic] on a regular basis. I have successfully completed Parenting, and Behavioral Healthcare Technical training classes given by the Operation PAR Incorporation. I am currently in my second year of school at St. Petersburg College in the Human Service Program. With hopes [sic] of earning a [sic] associate degree in Substance Abuse Counseling. I have positive friends and role models that do not indulge in any criminal activities or drugs. I also attend church services, and participate in church functions. Also, I have been raising two children as a single parent. In conclusion, I have successfully completed probation and as well have not committed any new offenses. Respondent was first licensed as a C.N.A. in the State of Florida in April 2008. On April 24, 2015, Respondent attended a party where she consumed alcohol. Early the next morning, SPPD Officer Daniel L’Esperance observed a vehicle parked at an odd angle in the parking lot of a closed gas station. Respondent was asleep behind the wheel of the vehicle with the keys in the ignition. The officer noticed a strong odor of alcohol coming from her breath, slurred speech, unsteadiness on her feet, and watery, bloodshot eyes. Officer L’Esperance told Respondent to call a friend to come pick her up because he believed she was under the influence of alcohol or drugs. Respondent could not find her phone and gave Officer L’Esperance consent to look for her phone in the vehicle. While searching for Respondent’s phone, Officer L’Esperance found a crumpled up dollar bill in the driver’s seat containing what he believed to be cocaine residue. The officer arrested Respondent for the felony offense of cocaine possession. On or about April 26, 2016, at approximately 11:15 p.m., SPPD officers responded to a car accident involving two motor vehicles. Respondent was one of the drivers involved. She had consumed alcohol prior to the accident. Respondent was wearing black scrubs at the time of the car accident. She had slurred speech; glassy, watery, and bloodshot eyes; and alcohol on her breath. She was unsteady on her feet and was disoriented. She exhibited further signs of impairment while participating in the field sobriety exercises. SPPD Officer Michael Karayianes arrested Respondent for driving under the influence of alcohol or drugs. Respondent refused to provide a breath sample for alcohol testing. On August 3, 2016, Lawrence S. Wilson, M.D., a physician specializing in addiction medicine, and hereby found to be an expert in this field, evaluated Respondent pursuant to Department order. Respondent admitted she first consumed alcohol at age 15. She reported that in her past she would consume 12 beers in one drinking session, and she would consume approximately 750ml of liquor every weekend. She consumed alcohol approximately once or twice per month in the two to three months leading up to the evaluation. Respondent reported consuming a maximum of four alcoholic drinks in one sitting during this time period. She stated she had most recently consumed alcohol two days prior to her evaluation. Respondent acknowledged to Dr. Wilson that she is an alcoholic. Respondent acknowledged she first used cocaine at age 15. She most recently used cocaine two days prior to the evaluation. Respondent stated that, other than the use of cocaine two days prior to the evaluation, she had not used cocaine in approximately 20 to 30 years. She acknowledged she has a problem with cocaine. Respondent told Dr. Wilson that she had not admitted herself nor been admitted to any detox facilities, any inpatient treatment, or any outpatient treatment programs. During the evaluation and in her testimony at hearing, Respondent claimed to be in active recovery, attending Alcoholics Anonymous (AA) meetings three to five times per week for the past year. Respondent claimed to have a sponsor and home group. Respondent chaired meetings, but had never told her story as a speaker. On August 3, 2016, Respondent submitted to toxicology tests at Dr. Wilson’s request. The tests were positive for both cocaine and alcohol. These results, which were professionally obtained and are deemed credible, were inconsistent with Respondent’s reported use of alcohol and cocaine. The toxicology results indicated repetitive and frequent use of cocaine in the past two to three months. The toxicology results indicated heavy repeated alcohol use or binging. Respondent’s participation in AA has not prevented her from continuing both alcohol and cocaine use. Her “participation” in AA, at best, can be described as passive and, at worst, as embellished or untrue. Dr. Wilson agrees with the latter assessment, calling Respondent’s reporting of her alcohol and drug abuse “dishonest and deceptive.” He further concluded that Respondent’s minimization and deceptive reporting of her drug and alcohol use indicated that she was in denial of her alcohol and cocaine use disorders. Not surprisingly, Dr. Wilson diagnosed Respondent with severe alcohol use disorder and severe cocaine use disorder. Dr. Wilson recommended Respondent participate in an Intervention Project for Nurses (IPN) monitoring agreement and complete an inpatient treatment program for her cocaine use disorder and alcohol use disorder. Due to Respondent’s current addictions, Dr. Wilson concluded that Respondent is not able to practice as a nursing assistant with the necessary skill and safety to adequately serve patients. Dr. Wilson stated that his opinion would not change even if Respondent participated in AA meetings multiple times a week because the Respondent’s participation in AA is not effectively treating her addiction disorders. He believes she needs more intensive treatment due to her disease and addiction being active. The undersigned finds Dr. Wilson’s opinions and ultimate findings credible and well-substantiated. Respondent has not actively entered into an IPN monitoring agreement nor has she entered or completed an inpatient treatment program for her cocaine use disorder and alcohol use disorder. As recently as August 9, 2016, Respondent submitted a urine sample for a drug screening as a condition of her criminal probation. The sample returned positive for cocaine. In order to have a positive result, the individual tested must have consumed cocaine within 48 to 72 hours of submitting the sample. Even the witnesses called by Respondent to testify at hearing confirmed her alcohol abuse issues. Her sister, Candace Thomas testified that she had last drunk alcohol with Respondent a month or two prior to the hearing, and recalled having drinks with Respondent at least once a week. Another witness called by Respondent, Jakayla Hudson, testified that Respondent’s drinking habits were about the same as they had been years earlier, before she had been incarcerated. Respondent denied the allegations of alcohol and drug abuse. She claims that Dr. Wilson and Officers Karayianes and L’Esperance fabricated their testimony to exaggerate the extent of her impairment. Respondent claims to have last consumed alcohol on or about August 1, 2016, which is inconsistent with her sister’s testimony at the hearing. She testified that she is not an alcoholic and does not have a problem with alcohol. Respondent’s testimony was inconsistent with her statement that alcohol is her drug of choice, her history of alcohol abuse, her regular attendance at AA meetings since 2007, and her own previous statements. When asked if she still used cocaine, Respondent testified that alcohol is her drug of choice. She testified she had not used cocaine in many years, yet a drug test showed she had ingested cocaine within the past year. When these conflicting statements are viewed with her history of alcohol and cocaine abuse, her regular hosting of AA meetings, regardless of her active participation in them, since 2007, and her own previous statements about the frequency of her drinking and cocaine abuse, the evidence clearly and convincingly strongly supports her being both an alcohol and cocaine abuser. Respondent’s criminal history, combined with the established fact that she has been and continues to suffer from severe alcohol use disorder and severe cocaine use disorder, both of which appear to be voluntary, prove she is unable to practice as a nursing assistant with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding that Respondent violated sections 464.204(1)(b) and 456.072(1)(z); imposing a suspension of her license until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of a nursing assistant, and the demonstration shall include at least one IPN evaluation, in which the evaluator finds Respondent is presently able to engage in the safe practice of a nursing assistant or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, if any; requiring the payment of an administrative fine in the amount of $150; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 18th day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 18th day of May, 2017. COPIES FURNISHED: Rob F. Summers, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Lannette Thompson, C.N.A. 4718 9th Avenue South St. Petersburg, Florida 33711 Lindsey H. Frost, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-3252 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS, Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin D-02 Tallahassee, Florida 32399
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.
