The Issue The issue is whether respondent's license as a medical doctor should be disciplined for the reasons stated in the administrative complaint, as amended.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Bernardo G. Bilang, was a licensed medical doctor having been issued license number 0026846 by petitioner, Department of Professional Regulation, Board of Medicine (DPR or Board). He has been licensed by the Board since July 19, 1976. Respondent presently practices medicine at 1201 South Highland Avenue, Suite 11, Clearwater, Florida. His specialty, if any, is not of record. Around 10:45 p.m. on February 2, 1986, N.K., a seventy-four year old female, was transported by ambulance to the emergency room of Morton F. Plant Hospital, Inc. (hospital) in Clearwater, Florida. When admitted, she complained of nausea, diarreah, dehydration, vomiting, fatigue and not feeling well. Also, she had experienced some pain in her back. With the exception of the back pain, which had begun more than a day earlier, all other symptoms had begun on February 2. Doctor Linda L. Shaffer was the emergency room physician on duty on the evening of February 2. Doctor Shaffer initially observed that the patient looked "acutely ill." She examined the patient and found her to be coherent and alert but very weak, as evidenced by her lack of grip strength In slurred speech, the patient answered questions very faintly and generally in one word answers. As might be expected, the patient was dehydrated. Her vital signs at 11:00 p.m. here as follows: rectal temperature - 104.6 degrees; blood pressure 152 over 96; respiration - 24; and pulse - 101. She also had tenderness across the middle of the back on both sides but did not have a stiff neck. After a preliminary physical examination and history were completed, and while the patient remained in the emergency room area for a few hours, Dr. Shaffer ordered a chest x-ray, electrocardiogram, complete blood count, electrolyte panel, chemical profile, two tests of kidney function, blood cultures, and urinalysis. The patient was then placed on a cardiac monitor, had a foley catheter inserted to obtain a urine speciman, and was given tylenol to reduce her temperature. Also, an IV was started. After finding the chest to be essentially clear and the abdominal examination negative, Dr. Shaffer diagnosed the patient as follows: "fever/dehydration - possible sepsis?" The latter diagnosis (sepsis) meant the patient may have had either a bacterial or viral infection in her blood stream affecting her entire system in a "generalized way." For a seventy-four year old patient, sepsis is a serious condition and can be life threatening if not promptly treated. The normal treatment for sepsis is antibiotics, fluids, medicines to elevate the blood pressure and reduce the temperature, and occasionally the use of steroids. It is noted, however, that a viral infection will not respond to antibiotics. If the use of antibiotics is indicated, they must be started immediately to kill the infection. After concluding her examination, Dr. Shaffer ruled out the threat of cardiac arrest and believed the patient, although "seriously ill," was not suffering from a terminal ailment. Nonetheless, she was concerned with the patient's low white blood cell count (3500) which was indicative of an infection, and one more likely of a viral nature. At the same time, she knew that influenza "was quite prevalent at the time" and might produce symptoms like those experienced by N.K. However, she stuck by her preliminary diagnosis of a possible bacterial infection. Respondent was on call the evening of February 2 for patients such as N.K. who were admitted to the hospital but had no personal physician. 1/ He was telephoned by Dr. Shaffer at 1:20 a.m. on February 3 concerning the patient's status. After being told the patient's symptoms, vital signs, available test results (which did not include the blood cultures, urine culture and chemistry profile) and Dr. Shaffer's preliminary diagnosis respondent requested Dr. Shaffer to admit N.K. to the hospital. He then gave telephonic orders to the nurse regarding N.K.'s future treatment. At that point, responsibility for the patient shifted to respondent. Respondent's first orders at 1:25 a.m. were (a) the patient be given nothing by mouth except medications (b) the IV be continued, (c) she be given atrophine and phenergaan intramuscularly if diarrhea occurred, (d) she be given compazine, if necessary, for nausea and vomiting, and (e) she continue to be given ten grains of tylenol every four hours for her fever. The patient was then transferred from a critical care room to a room where more stabilized patients are kept. According to a nurse on duty that evening, she did not consider N.K. to be a "problem" patient who required extra care or attention. It is noted here that the patient records reflect that respondent initially suspected that N.K. might have the flu, a fairly common ailment in the area at that time. At 1:40 a.m., the patient's vital signs were as follows: blood pressure 124 over 80; respiration rate - 24; and pulse - 92. There is no indication that her temperature was taken at that time but the records indicate that an hour earlier, it had droped to 103.1 degrees. At 2:25 a.m., the patient was moved from an emergency room bed to a semi-private room in the general ward. At 3:05 a.m., N.K.'s temperature was again checked and found to be 103.5 degrees. At 4:00 am., the patient's condition had begun to seriously deteriorate. She manifested signs of being "very lethargic," that is, it was difficult to awaken her, and she appeared to be weaker on her left side. According to Dr. Shaffer, such a localized weakness was indicative of "some process" involving the patient's brain and spinal cord. Also, N.K. still had a rectal temperature reading of 103.5 degrees. At 5:40 am., N.K.'s fingers and toes became cyanotic, that is, they turned blue in color, indicating a lack of circulation. Also, she was confused and her lethargy continued. By then, her respiration rate had increased to 32, almost twice the normal rate. Her blood pressure (138 over 70) began dropping which was a sign of sepsis shock, that is, the peripheral blood vessels were dilating causing the pressure to drop and circulation to be impaired. At 6:05 am., the head nurse, believing there to be an emergency situation, spoke with respondent by telephone. She relayed the previous findings from 5:40 a.m. and noted that the patient's temperature had risen to 104.7 degrees while her blood pressure had dropped to 126 over 70. The nurse did not recall whether she was able to reach respondent immediately or if it took a few minutes for him to return the call. In any event, respondent gave telephonic orders that mandol, a second generation antibiotic, be given to the patient intravenously every six hours, and she be given one gram of solu-cortef, a steroid medication, for shock. Also, he ordered an arterial blood gas analysis and that N.K. be given oxygen by nasal cannula when necessary. Although the telephonic orders were given at 6:05 a.m., the drugs had to be requested and obtained (after mixing) from the hospital pharmacy. In some cases, it takes several hours to receive a drug from the pharmacy, particularly during other than normal daytime hours. The steroid IV was eventually started at 6:30 a.m. but the mandol was never received and administered. When the patient's condition did not improve and actually continued to deteriorate, respondent was telephoned again by a nurse at 6:40 a.m. By then, the patient's entire skin had turned a bluish color indicating very poor circulation. After being briefed by the nurse, including the results of the just received blood gas report, but still without knowing the precise cause of N.K.'s ailment, Dr. Bilang issued a "CMO" order. This means "comfort measures only" and that no aggressive steps, such as resuscitative measures, be taken by hospital personnel to prolong the life of the patient. According to Dr. Shaffer, had resuscitative steps been taken at that time, the patient's chances for survival were around "twenty percent, maybe less." The patient expired at 7:13 a.m. The primary cause of death was listed as meningococcial meningitis, a bacterial infection having a 70% to 80% mortality rate, and a "quite uncommon" infection in a seventy-four year old patient. Laboratory results obtained several days after the patient's death revealed she had gram-negative sepsis. Doctor Bilang arrived at the hospital and pronounced the patient dead at 7:20 a.m. This was the first time respondent had seen and examined the patient. Respondent then dictated a history and physical examination which appear in the patient records. These reports were based on information previously provided by others. On February 21, 1986 respondent dictated a discharge summary which indicated a pre mortem physical finding. This report was also placed in the expired patient's records. Several months later, respondent prepared a second physical examination and history for the patient. This was dictated on July 31, 1986 and again was based on the notes of other persons. However, respondent made the following note at the beginning of the physical examination and history: "Disregard above notes. Patient expired prior to my seeing her in the ward." Two medical experts testified on behalf of the Board. They are Drs. Matthew M. Cohen and Laurence Neufeld, both board certified family practitioners in Tallahassee and Tampa, Florida, respectively. A Shreveport, Louisiana board certified internist, Dr. John M. Brady, presented expert testimony on behalf of respondent. In addition, Dr. Linda L. Shaffer, an experienced physician, testified from her perspective as an emergency room physician at the hospital in question. As might be expected, the experts reached differing conclusions regarding respondent's treatment of the patient. Pertinent findings based on the experts' relevant testimony are made below. There was a consensus among the experts that the emergency room doctor's role is to pass on to the admitting physician all the information the doctor has gathered from the examination and tests. It is then the responsibility of the admitting physician to ask the emergency room doctor appropriate questions concerning the patient, order vital signs to be taken at specified intervals, and give other directions to the monitoring staff (nurses) concerning steps to be taken in the event of changes in the patient's condition. The experts also concluded that the primary physician, in preparing a history and physical examination of the patient, should not rely on the emergency room doctor's notes and findings but should personally conduct his own physical and history in a more thorough manner. This is especially true when, as here, the emergency room physician is unable to conclusively establish the cause of the patient's illness. In Dr. Cohen's opinion, respondent should have suspected meningitis at the outset of N.K.'s admission. This was because of her lethargy, high fever and back pain, all being symptoms associated with that infection. Doctor Cohen also noted that respondent was cognizant of Dr. Shaffer's preliminary diagnosis of possible sepsis, knew that pneumonia and urinary tract infection were not the causes of the infection, and still had no idea what caused N.K.'s infection. Given these considerations, Dr. Cohen opined that respondent should have ordered further tests to confirm N.K.'s ailment, such as a lumbar puncture (spinal tap), an X-ray of her abdomen, a reexamination of the abdomen or a head scan. Doctor Cohen further suggested that after those tests were completed, it would have been prudent for respondent to "employ a sort of antibiotic recipe for dealing with a septic, elderly person." In other words, he should have used a group of intravenous antibiotics that would cover most of the possible causes for that type of infection. In addition to the foregoing omissions, Dr. Cohen was of the opinion that Dr. Bilang erred further when, after receiving advice from the nurse at 6:05 a.m. and 6:40 a.m. concerning the patient's rapid deterioration in health, he failed to institute aggressive antibiotic therapy and instead prescribed mandol, a drug Dr. Cohen felt was too little, too late. According to Dr. Cohen, respondent compounded his mistakes by issuing a CMO order when the patient did not have a terminal illness and without consulting the patient's family. By engaging in the foregoing conduct, the expert concluded that respondent did not conform with minimally acceptable medical standards in the community. Doctor Cohen next opined that it was inappropriate for respondent to prepare a history and physical after the patient's death and to base those items on information gathered by others. He labeled these matters "false and misleading" and a deviation from the standard expected of a doctor. Doctor Neufeld initially pointed out that respondent erred by failing to start a broad spectrum (third generation) antibiotic regimen when he assumed responsibility for the patient at 1:20 a.m. According to the witness, such a regimen was called for because respondent was aware of the patient's age, high fever, slurred speech, dehydrated condition, the very strong possibility of sepsis, and his own inability to promptly obtain blood cultures from the laboratory to aid in confirming or ruling out various ailments. Further, respondent had no concrete evidence that the patient was suffering from the flu, an illness he initially thought N.K. might have. Even if respondent was unsure if the infection was viral or bacterial, Dr. Neufeld pointed out that respondent nonetheless should have assumed the patient was septic and started an antibiotic regimen until the cultures were received from the laboratory or the fever subsided. Moreover, even if the patient had a viral infection, the antibiotics would not have harmed her. By respondent waiting until 6:05 a.m., and then ordering mandol rather than a stronger drug, Dr. Neufeld opined that respondent fell below the minimum standard of care for community physicians. Doctor Neufeld stated further that respondent deviated from the same standard of care by issuing a CMO order when the patient did not have a terminal illness. Doctor Neufeld echoed Dr. Cohen's sentiments that the prevailing community standards did not call for a CMO order unless the patient was afflicted with a terminal, irreversible illness and only after a physical examination had been performed by the physician. Doctor Neufeld found the physical examination documented by Dr. Bilang on pages 10 and 11 and the accompanying discharge summary on pages 13 and 14 of the patient records to misleading since both erroneously suggested a pre mortem physical finding. Also, Dr. Neufeld opined that the medical records did not justify the course of treatment to the patient. However, the basis for this opinion is not clearly delineated in the record. Doctor Neufeld conceded that though he would have gone to the hospital at 1:20 a.m. to examine the patient, respondent did not violate the standard of care by evaluating the needs of the patient by telephone. Even so, Dr. Neufeld maintained that respondent should have ordered antibiotics after his consultation with Dr. Shaffer. The expert differed in one respect with Dr. Cohen and agreed with respondent that the records, at least at 1:20 am., did not call for a spinal tap or head scan, and respondent's failure to perform those tests at that time was acceptable. Finally, although he acknowledged that an order for a third generation antibiotic regimen at 6:05 a.m. might not have been mixed and ready for patient use by the time the patient expired, Dr. Neufeld opined that respondent still had a duty to use all available measures to keep her alive until the drugs were received. According to Dr. Shaffer, she observed Dr. Bilang on a day to day basis and considered him a "caring, competent, practicing physician." However, she stated that respondent was sometimes too busy" and overextended" himself. As a consequence, she was "concerned" that he was taking care of too many patients at the same time. Although she did not consider herself qualified to render an opinion, she opined that respondent did not deviate from the minimally acceptable standards for Clearwater area physicians when he failed to initially order antibiotics for N.K. at 1:20 a.m. This was because, if a physician was unsure if a patient had a viral syndrome or a bacterial septic condition, he might wait "a little bit of time" to see what course of treatment was required. Further, the decision to order antibiotics is a "judgment call" by a doctor and depends in part on two "iffy" tests, a lumbar puncture and a gram stain of the blood smear. The latter test result was not available until several days after the patient expired. According to Dr. Brady, respondent's course of treatment and overall conduct, with one exception, fell within the minimal acceptable standards of care for physicians. The exception pertained to respondent's issuance of a CMO order. After reviewing the patient's records, Dr. Brady concluded that respondent could not have known the patient was suffering from a bacterial infection since nothing in the physical examination was suggestive of meningococcemia, the organism affecting the patient. Thus, he concluded that the patient's illness was probably not diagnosable until shortly before she died. This was because the patient did not have a stiff neck (nuchal rigidity), purplish skin rash, or signs of shock, which are the normal indications of meningitis, and because the infection is extremely rare and has an incidence rate of only one case per one hundred thousand persons in a given year. Even so, he conceded that if the disease occurs, its physical signs can manifest in a very short period of time and could have begun shortly after the patient was first examined by the emergency room physician around 11:00 p.m. Once respondent recognized the severity of the patient's ailment, and prescribed mandol at 6:05 a.m., Dr. Brady agreed that mandol would not have had any beneficial effect on the patient even if administered immediately after being ordered. Instead, the witness would have ordered a third generation antibiotic which is more effective in treating gram negative rods. While he characterized respondent's choice of mandol as "not the best thing to do", he nonetheless said "it was not an unreasonable thing to do" given the circumstances. The expert next agreed with the Board experts that a CMO order is appropriate only when the patient has a terminal illness and has requested that no life-sustaining measures be used. In this case, he agreed that the patient records did not justify this action. He added, however, that the patient would probably have expired no matter what resuscitative efforts were undertaken. Finally, while Dr. Brady did not think respondent was attempting to falsify his records by copying the notes of others in preparing the post-mortem physical and patient history, he noted that respondent should have indicated on his February 3, 1986 notes that he was copying the records of others. Having evaluated the testimony of the experts, the undersigned has resolved the conflicts in favor of the Board. Accordingly, it is found that respondent fell below the minimum standard of care by failing to initially recognize the patient's septic condition and prescribing a comprehensive antibiotic regimen, by failing to institute the same regimen at 6:05 a.m. after becoming aware of her critical condition, and by issuing a CMO order at 6:40 a.m. when the patient did not have a terminal illness. Further, respondent filed reports on February 3 and 21, 1986 which he knew or should have known were misleading and false, namely, a patient history, physical examination and discharge summary prepared post mortem which suggested that such reports were based on pre mortem findings by respondent. Finally, it is found that the records maintained by respondent were inadequate to justify the issuance of a CMO order since the patient did not have a terminal illness. By stipulation approved by Board order dated October 30, 1987, respondent was reprimanded by the Board, paid a $1,000 fine, was placed on monitored probation for a year, and agreed to take twenty hours of continuing medical education in the area of prescribing medicinal drugs. Official Board records indicate that respondent's license still remains on a probationary status presumably because of the pending proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of the violations discussed in the Conclusions of Law portion of this Recommended Order, and that respondent's medical license be suspended for two years. DONE and RECOMMENDED this 11th day of July, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1989.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 26th day of June, 2006.
Findings Of Fact At all times pertinent to the issues herein, the Board of Medicine was the state agency responsible for the licensing of physicians and the regulation of the practice of medicine in this state. Respondent was licensed as a physician in Florida and holds license number ME 0017915. He practices medicine, specializing in psychiatry, in Clearwater, Florida. He is board certified in that specialty. On September 7, 1987, Patient #1, a 55 year old married female, whose husband had recently separated from many years in the armed service of the United States, came to see Respondent at his office, complaining of severe headaches, loneliness, depression, and a lowering of self esteem. She had been referred to him by physicians at the U.S. Coast Guard Station Dispensary. Respondent examined Patient #1 and found her to be of limited intelligence, considerably overweight, anxious, depressed and confused. She was ashamed of her new status in life as a result of her husband's inability to find work and was experiencing difficulties with him and her children. She was suffering from severe insomnia. Respondent's examination of Patient #1 was limited. He was satisfied with the medical work-up which had been conducted by his colleagues at the Dispensary. Because he was consulting psychiatrist for that facility, he knew all the physicians there and was familiar with the caliber of their work. Based on the medical information furnished him from the Dispensary and his own examination, he diagnosed Patient #1 as suffering a major depression and a psychogenic pain disorder manifested by headaches and insomnia. He developed a treatment plan for the patient which included a wide variety of psychotherapy interventions, the first of which was to effect relief of the symptoms. This included clarification of relationships, interpretation of dreams and fantasies, and allowed for catharsis. When Respondent found out that empathy and intervention alone would not work on this patient, and he had established a relationship with her, he started psychotropic medications including Elavil, the drug of choice for this type of condition in 1988. Elavil is a "superb" antidepressant. While the antidepressant factor is "cranking in", the medication also works as a sedative. For this reason, it is normally prescribed for administration at bedtime. Patient #1 responded to this course of treatment and she and the Respondent established a good and friendly working relationship, which he noted in his April 4, 1988 letter and treatment report to the Coast Guard and to CHAMPUS. In that treatment report, however, Respondent noted Patient #1 had a suicidal ideation. The term "suicidal ideation" does not import that the patient was, at that time, seriously considering suicide. Her mentioning suicide was but an overcompensation - more an alerting statement of depression and sadness with emptiness and angst. She never indicated to Respondent any thought of or plan to commit suicide. Patient #1 thrived for many months in Respondent's therapy. She complained often of her impoverished condition, however, and as a result, he wrote prescriptions for her in such a way that they could be filled at the Coast Guard dispensary without charge. This required writing prescriptions for more tablets of a drug at a lower strength which was stocked by the Dispensary. It was a surprise to him to learn, later on, that she was filling her prescriptions at Eckerds. Throughout the period he treated her, Dr. Fireman prescribed psychotropic drugs for Patient #1, which consisted primarily of amitriptyline, (Elavil), and butalbital, (Fiorinal), in varying strengths, and, at times, in compounds with other substances. As was noted previously, Elavil is an antidepressant with sedative effects. The recommended daily dose for a patient in an outpatient setting is indicated as 150 mg by the Physicians' Desk Reference, (PDR), which also recommends suicidal patients not be allowed unrestricted access to it because of the danger of intentional overdose. Other qualified psychiatrists who testified, including Dr. Spreyhe and Dr. El Yousef, indicate up to 300 or even 350 mg/day may be appropriate. As Dr. Spreyhe noted, it is not so much the daily dose on any given day which is pertinent but the aliquot over an extended period. In that regard, he notes, Dr. Fireman's prescriptions for both Elavil and Fiorinal were within recommended maximums and, therefore, within the appropriate standard of care. Fiorinal is a barbiturate anti-anxiety agent and muscle relaxant with habit forming potential. Fiorinal #3 contains codeine, a legend drug and narcotic. Generally, according to Dr. El Yousef, it should be dispensed for use at a rate of between 8 to 12 tablets per day over the short term, but over a 9 month period he would prescribe between 4 and 9 tablets per day. Pharmacy records indicate that over the period he treated patient #1, Respondent gave her numerous prescriptions for both Elavil and Fiorinal which, at first glance, appear to be excessive. For example, the records reflect that on December 29, 1987, Respondent wrote prescription number 390073 for 100 Elavil 25 mg tablets. Though the prescription clearly indicates no refills were authorized, and the back of the prescription form, where refills are noted by the pharmacist, fails to reflect any refills were authorized by the physician, the pharmacy records indicate two additional dispensings by the pharmacy for 100 tablets each on January 11 and April 20, 1988. There is no evidence to indicate how these additional fillings came about; who arranged for them, or who received them. On February 22, 1988, Respondent wrote prescription number 394289 to the patient for 12 Fiorinal #3 tablets. Again the prescription form authorizes no refills and the back of the prescription form indicates but one coordinated refill but the pharmacy records show the prescription was filled twice - once on April 6, 1988 and once on April 23, 1998. Only the latter is annotated. On March 3, 1988, Respondent wrote prescription number 397144 to the patient for 60 Fiorinal tablets. While the doctor's refill note reflects none were allowed, the computer printout sticker for the bottle reflects 2 refills were authorized. The back of the prescription form shows no refills annotated thereon as required, but the pharmacy's computer listing of all prescriptions indicates the prescription was refilled on May 28 and again on June 3, 1988. No further explanation is given. Prescription number 396378, written to the patient by Respondent on March 14, 1988 for 50 Fiorinal tablets, reflects no refills authorized by the physician nor does the reverse of the form bear any refill annotations. Nonetheless, the pharmacy records as shown on the computer printout indicates a refill on March 27 and April 6, 1988 with no explanation therefore. Before the last refill, however, Respondent wrote prescription number 397091 to the patient on March 29, 1988, for 21 Fiorinal #2, later approved for #3's. He also, on April 4, 1988, wrote prescription number 398853 for 35 Fiorinal tablets. Respondent claims he would not authorize a refill of a prior prescription for the same medication for which he is writing a new prescription, and, since neither of the refills of the earlier prescription properly reflect any physician authorization, it is so found. On May 2, 1988, Respondent wrote prescription 399717 for 50 Fiorinal tablets, and prescription 399718 for 100 Elavil 25 mg tablets. Both reflect Respondent's instruction that no refill be given, and neither form bears an annotation for authorized phone refills. Yet, the pharmacy's computer printout indicates that the prescription for Elavil was written on May 31, 1988 even though the bottle sticker shows it was filled on May 3, 1988. On August 1, 1988, Respondent wrote prescription 405572 for 100 Fiorinal and 475573 for 100 Elavil 100 mg tablets. Both were filled the next day but neither form bears any annotation of authorized refill, consistent with the physician's instructions. On August 16, 1988, Respondent prescribed another 100 Fiorinal by Prescription 406536. It was not refilled. On August 29, 1988, Respondent wrote prescription 407201 for 150 Elavil 50 mg tablets to patient #1, and number 407202 for 100 Fiorinal tablets. Both prescription forms clearly reflected no refills, but the back of the forms reflect refills were authorized. The Elavil prescription was refilled on September 10, 1988 by pharmacist Ivan Funkhouser who contends he refilled on the basis either of a call to or from the doctor's office. He cannot recall which. He also, at the same time, refilled the Fiorinal prescription under the same conditions. The Elavil prescription was filled again, this time for 225 tablets, on September 30, 1988, by pharmacist Robert Wivagg who also indicated phone refills made only on the basis of a call to or from the physician's office. In this case, however, he believes that because of the amounts involved, he would have spoken to the physician himself before filling the prescription. He cannot be sure of this, however, and Respondent denies having ever prescribed 225 Elavil tablets, regardless of strength, at one time. Mr. Lewis, the pharmacy expert, indicates that proper pharmacy practice would have allowed the pharmacist to issue fewer tablets than on the prescription but not more without express approval of the physician. The Fiorinal prescription, refilled on September 30, 1988, this time for 150 tablets, is not reflected on the prescription form though it is on the computer printout. Respondent denies that he ever called in prescriptions for Patient #1 because he never had to. She came to his office frequently enough that he was able to provide her with a new prescription for whatever medication she needed. Indeed, his medical office billing records reflect that in June, 1988 he saw her on June 6, 13, 20, and 27; in July, 1988 on July 5, 12, 19, and 26; and in August, 1988, on August 2, 9, 16, and 30. It would appear, therefore, that the refills of prescriptions reflected on the pharmacy computer printout either are in error or were arranged for under some unexplained process not involving Respondent. There appears to be no reason for him having had to authorize refills since he saw the patient so frequently, notwithstanding his comments to Ms. Sutton, during the investigation, that 90 percent of the refill calls are authorized by him personally, and only 10 percent through his secretary. There was no showing that the authorization comment Ms. Sutton recalls was related to this particular patient. Further, according to Ms. Maguire, Respondent's secretary, Respondent frequently refuses to grant refills, and, to her knowledge, he never gives refills to psychiatric patients. Since most, if not all Respondent's patients are psychiatric patients, this does not make sense. Respondent does not deny writing the two prescriptions on August 29, 1988. At that particular time patient #1 was planning a trip to New York to make peace with her dying mother. As a result, and since her headaches had gotten worse, as had her depression, he decided to increase her dosage of Elavil. This was a medical decision which is not in issue here. He admits that Elavil is a drug which is often used to commit suicide and that prescribed at even its lowest strength, a full prescription can be lethal. This became, therefore, an assessment problem wherein Respondent, the physician, had to evaluate the risk of the patient's depression against the benefits to be gained by the use of the drug. Respondent gave patient #1 enough Elavil to hold her through her visit up north. He had previously given her sixty 50 mg tablets to be taken 6 per day for a 300 mg dose at bedtime. He now told her not to use the 50 mg tablets any more and to destroy them. He believed she did. He then gave her a new prescription for one hundred and twenty 25 mg tablets for her trip. He unequivocally states that he never prescribes more than 300 mg/day of Elavil. He admits, however, that while she was on that dosage, he neither hospitalized her nor had blood work done on her. Respondent feels his original treatment plan and diagnosis were sufficient and his records pertaining to those factors were adequate. He uses checkoff forms because he believes they are the most open way of showing how he sees his patient and what he is doing for her. This same conclusion was reached by Dr. Spreyhe, another Board certified psychiatrist who is Clinical Professor of psychiatry at the University of South Florida Medical School, who has served as an expert witness for the Department in the past, and who continues to serve as a contract consultant for it and as a member of the Medical Advisory Committee of the Department. Examination of Respondent's medical records pertaining to Patient #1 indicates that the medical history and treatment plan are in the form of check sheets on which the physician makes no more than minimally worded entries. The Department's witness, Dr. Greener, an expert in the completeness of medical records, is of the opinion that Respondent's records should have reflected an initial detailed assessment of the patient's condition, including the reasons for her referral to him, a complete medical history, and a subsequent detailed mental status examination. This should be followed by a formulation of her problems and a treatment program. After the initial evaluation, according to Dr. Greener, the physician should make regular progress notes as to treatments, communications with others, phone calls received, prescriptions issued, and matters of that nature. This is done to memorialize the particulars for the patient and to keep a tally of which and how much of any drug is given to the patient. This would show over or under use as a possible flag as to how well the patient follows instructions or if the patient develops a use addiction problem. Based on Dr. Greener's review of Respondent's records for patient #1 and the prescription records relevant to her, he concluded those records were "totally inadequate." This conclusion is based on his opinion that the initial evaluation is cursory and without detail and there are few progress notes in the records. Those which are there are inadequate in detail and full of conclusions without the required supporting information such as drug side-effects, the patient's ability to follow instructions, follow-up, changes in dosages, and the like. He complains that Respondent's records do not really outline a plan of treatment designed specifically for that patient. For example, the forms used by Respondent are merely check-off forms even though, during the period, the patient was receiving continuing analgesic medications. From Respondent's records, it was impossible to determine how the patient was doing on the medications prescribed or whether additional medical evaluation was required. It is important to put this information in patient records to memorialize what is done and not just to keep the information in the treating physician's memory. Respondent denies that his initial evaluation and treatment plan, prepared by the use of form check sheets, is below standard. Dr. Spreyhe concluded the use of such check sheets is not inappropriate for the initial work-up of a patient and he opined that Respondent's forms, and the information thereon provide sufficient information for an independent understanding of the patient's situation and are within an appropriate standard of care. It is so found. However, the medical progress notes which make up the bulk of the remaining medical records are not so complete and, in Dr. Spreyhe's opinion are insufficient. Respondent concurs and admits this. It is so found. As to Respondent's prescribing practices, Dr. Greener is far more conservative than Respondent in prescribing Elavil. He starts with a low dose and gradually works up to a therapeutic level dosage depending upon the patient. He would start an average patient out at 25 mg/day and work up to a maintenance dose of 150 mg/day. Elavil is a dangerous drug and the doctor must closely monitor the patient for possible side effects and the direct effect it is having on the patient. It should never be ordered "prn", (as needed) when that designation relates to the amount to be taken. Based on Respondent's records for this patient, it would appear to Dr. Greener that the medication was being used improperly. There appears to have been no monitoring of the amount of the drug the patient was getting and it would appear that the patient was given the prerogative as to dose, which is not a good thing to do. In his opinion, a dose at 300 mg/day of Elavil is very and unnaturally high and he would not use so high a dose. He would do other tests first to see why the medication was not working at the lower dosage. As was seen before, however, other physicians of equal expertise disagree. Fiorinal is habit forming and, according to Dr. Greener, should be used only over the short term. If needed for a longer period, the patient should be reviewed to see why. The doctor must keep in mind the addictive properties of the drug. Here, Dr. Greener is of the opinion that Respondent prescribed excessive amounts of Fiorinal for patient #1. From January 27, 1988 through March 2, 1988, a period of 34 or 35 days, Respondent prescribed 302 tablets and Dr. Greener would be concerned that the patient was addicted. On March 21, 1988 Respondent prescribed another 50 tablets, and on March 27,1988, he prescribed 50 more followed by another 60 somewhat later and more after that. All of these were being prescribed for a patient whose records reflect she was doing "OK", and was "nicely stabilized". To Dr. Greener, this is just too much, especially for a patient who is obviously addicted and who appears to be taking the medication only to prevent withdrawal symptoms. By his prescription regimen, a patient would get no more than 10 tablets a day for no more than 4 to 5 days, and he would prescribe this drug for 9 months, as here, only with support for it in the patient records, including the opinions of other specialists to whom the patient would have been referred. While it is obvious Dr. Greener is more conservative in his approach to medication than is Respondent, the evidence does not clearly show Respondent's approach fell below standards. Dr. Spreyhe is of the opinion that the levels of Elavil and Fiorinal prescribed by Respondent for this patient were appropriate in both dosage and amounts. He has patients of his own who take such doses and he is not swayed by the PDR recommendations for dosage which, he believes, is too conservative. As for the Fiorinal, he would prescribe no more than 8 per day because there is some information that a patient may develop a tolerance for the substance. In any case, the drug is appropriate for the treatment of psychogenic headaches as were suffered by Respondent's patient here. Both W.L.P. and M.J.S. have been patients of Respondent. Both found him to be concerned and available. When patient #1 died, Ms. Sherman was in a therapy group with her. She did not appear to be suicidal and was looking forward to her proposed trip to New York. Patient #1 died on October 8, 1988. The report of the Hillsborough County Medical Examiner reflected her death as suicide from the combined effects of amitriptyline, (Elavil), butalbital, (Fiorinal), and salicylate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued herein, finding Respondent not guilty of all allegations except those relating to his failure to keep adequate medical records regarding Patient #1 as alleged in Count One, of which he is shown to be guilty, and imposing an administrative reprimand and a requirement for continuing medical education in the area of proper record keeping. RECOMMENDED this 31st day of August, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 31st day of August, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5048 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. Accepted as a restatement of witness testimony but not as a Finding of Fact. 8. Accepted as a restatement of witness testimony but not as a Finding of Fact. 9. & 10. Accepted that the medications were dispensed based on prescriptions written under the patient's name. 11. & 12. Accepted and incorporated herein. 13. & 14. Accepted as a restatement of witness testimony. - 18. Accepted and incorporated herein. Rejected as not a necessary conclusion to be drawn. Accepted. - 23. Accepted as restatements of witness testimony. Accepted and incorporated herein. - 26. Accepted and incorporated herein as pertaining to the dosage level of Elavil used and the balance accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted. & 32. Rejected as Findings of Fact, and found to be Conclusions of Law. FOR THE RESPONDENT: Accepted and incorporated herein. - 4. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. 13. & 14. Accepted. 15. & 16. Accepted and incorporated herein. 17. & 18. Accepted. 19. & 20. Accepted and incorporated herein. 21. Accepted. 22. This Proposed Finding of Fact is, in reality, a restatement of the evidence presented, in several subparagraphs, some of which are identified by letter and some of which are not. It is, however, accepted as an accurate restatement of the evidence admitted at hearing on this point, except where it becomes argument. 23. & 24. Accepted and incorporated herein. 25. First four sentences accepted and incorporated herein. Balance considered only as argument in support of the position taken. 26. Accepted and incorporated herein. 27. Accepted. 28. Rejected as a Conclusion of Law and not a Finding of Fact. 29. - 31. Accepted as basic findings. This does not go to their adequacy, however. 32. & 33. Rejected as contra to the weight of the evidence. & 35. Accepted as the substance of the witness' testimony. Accepted and incorporated herein. Accepted. Accepted. Rejected as a Conclusion of Law. COPIES FURNISHED: Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard Suite 210 Tampa, Florida 33619 Bruce D. Lamb, Esquire Christopher J. Schulte, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. Post Office Box 2378 Tampa, Florida 33601 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes. The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.
Findings Of Fact Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice. Patient Fleming Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions. Patient Kipp Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.
