The Issue Should Respondent's license to practice podiatric medicine be disciplined for failure to keep required written medical records, for prescribing or dispensing legend drugs other than in the course of his professional podiatric practice, for failing to practice as a reasonably prudent podiatric physician, and for practicing beyond the scope of his license?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of podiatric medicine pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 461, Florida Statutes. Dr. McNally has been licensed without interruption to practice podiatry in the State of Florida since October 22, 1996. He has not been the subject of disciplinary action by the Board of Podiatry. Dr. McNally was licensed as a podiatrist in the State of Florida by the Agency for Health Care Administration (AHCA) in October 1996. He was born on June 19, 1969. Ms. Sara Helen Lowe, a pharmacist, is an inspector for AHCA. She conducted a survey of pharmacies in the vicinity of Destin and Ft. Walton area and discovered that Respondent had written multiple prescriptions for legend drugs which were in the name of Patient B.R. She also determined from her survey that Respondent had prescribed the legend drug Phentermine for six of his patients. A legend drug is a drug for which a prescription is required and includes Schedule II controlled substances under Chapter 893, Florida Statutes. A Schedule II controlled substance is a pharmaceutical which has medical uses and also has a potential for being abused. Mrs. B.R. is the wife of Patient B.R. She was aware that her husband received numerous prescriptions from Dr. McNally for multiple drugs including oxycodone and methadone in 1998 and 1999. Mrs. B.R. was aware that her husband had an open wound on his foot for several years. She was also aware that he suffered chronic and severe pain from this condition. Mrs. B.R. was concerned about the amount of drugs being consumed by Patient B.R. and discussed this matter with Dr. McNally. During this conversation, Dr. McNally told her that, "B.R. was in chronic pain, and that the amount of medication that B.R. took was basically B.R.'s problem." Mrs. B.R. was angry with regard to the amount and type of drugs which were prescribed by Dr. McNally. However, she thought that during this time his foot wound was improving. Mrs. B.R. was aware that Dr. McNally brought drugs to patient B.R.'s hospital room when patient B.R. was hospitalized in November of 1998. Mrs. B.R. was aware that her husband was hospitalized on an emergency basis for an overdose of Tegrital, a drug designed to combat seizures. This drug was not prescribed by Dr. McNally. It was prescribed by another doctor. The pain that patient B.R. suffered caused a hardship in Mrs. B.R.'s home but she preferred that he take the pain medication rather than see him suffer. Patient B.R. lives in Destin with his wife. He is receiving disability payments due to a hip replacement, a knee replacement, and an ulcer on his right foot. In an effort to relieve the pain in B.R.'s foot Respondent prescribed Oxycodone, Endodan, Endocet, Methadone, Roxicet, Roxiprin, Percocet, Oxycontin, Morphine Sulfate Er, MS Contin, Oramorph SR, and Roxicodone. All of these are forms of oxycodone, methadone, or morphine, alone, or in combinations with acetaminophen. Dr. McNally prescribed approximately 8,705 units of oxycodone, 250 units of methadone, and 510 units of morphine for patient B.R. during the eighteen-month period he treated him. These drugs were prescribed to him subsequent to his first visit to Dr. McNally in 1997. All of the foregoing drugs are Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Patient B.R. obtained prescriptions during office visits and by telephoning Dr. McNally. When B.R. called Dr. McNally the doctor would ask him what drugs he wished to have and B.R. would tell him. Dr. McNally would then provide the prescription to a pharmacy telephonically. On at least one occasion the prescription was left inside the screen door of Dr. McNally's dwelling for Patient B.R. to pick up. Office visits were on some occasions made at the offices of Dr. Haire from which Dr. McNally occasionally practiced. During office visits Dr. McNally would sometimes take B.R.'s temperature. He checked B.R.'s vital signs approximately every six months. Patient B.R. got prescriptions from Dr. McNally when Dr. McNally was on an extended trip to Europe in early 1998 or 1999. While Patient B.R. was a patient in the local hospital, Dr. McNally brought him drugs because the pain medication provided by the hospital was inadequate. Dr. McNally brought the drugs to his hospital room four or five times. He bought these drugs with patient B.R.'s credit cards. Patient B.R. was in the hospital November 9 through 17, 1998. Dr. McNally submitted insurance claims for patient B.R. for a portion of the time he was treating patient B.R. but eventually stopped. Patient B.R. stopped seeing Dr. McNally. Subsequently, a therapist, Sherry Levitis, recommended that patient B.R. attend a pain management center in New Orleans. As a result of his attendence there he experienced a decrease in needle-like pains. The pain management succeeded in getting B.R. to gradually reduce the amount of pain-killing drugs that he was ingesting. Patient B.R. never received any drug rehabilitation. The pain management clinic taught him that he could get by without the aid of drugs. Patient B.R. went to different pharmacies to have his prescriptions filled because he thought they would question the amount if he received too many drugs from the same business. He was advised by Dr. McNally to avoid making frequent visits to the same pharmacy. Patient B.R. never shared the drugs he obtained with others. The use of these drugs changed patient B.R.'s personality and caused domestic difficulties. He became dependent on the drugs. Buying the drugs was a financial strain. At the time of the hearing patient B.R. still was suffering from the ulcer on his right foot. Though he has had surgery on the ulcer three times, it has not healed. Patient B.R. believes his emergency trip to the hospital was the result of his taking Tegrital which is an anti- seizure medicine. He believes he should have coordinated the taking of this medicine with Dr. McNally and that his failure to do so was the cause of the medical event which resulted in emergency hospitalization. The medical doctor who prescribed the Tegrital never asked him if he was taking other medications. Numerous efforts were made by Dr. McNally to address patient B.R.'s foot condition and the resultant pain, including surgery, orthotics, and pain management efforts. The drugs prescribed by Dr. McNally enabled patient B.R. to get off of his couch and live a more normal life. Patient B.R. had better results in addressing his pain and treating his ulcer with Dr. McNally than with any other doctor. At the insistence of Petitioner, Dr. McNally supplied to Petitioner what he claimed to be patient records in the case of B.R. Petitioner believed these records to be phony. Dr. McNally prescribed Phentermine to patients and asserted that he believed it would enhance circulation in the lower extremities. Dr. McNally has been out of the country often and has prescribed drugs for patients in the United States while he was physically located in Italy. Dr. McNally prescribed drugs for patient B.R. while in Europe. He provided patient B.R. with numerous prescriptions for limited amounts because he did not want him to have too many drugs in his possession at once. Dr. McNally, at the time of the hearing, was not accepting new patients but was continuing to treat some old ones. He no longer carries malpractice insurance. Dr. McNally claimed that the medical records in the case of patient B.R., records which he supplied to ACHA at ACHA's request, were prepared by him either at the time of patient B.R.'s visits, a few days after a visit, or several days after a visit. Dr. McNally used the word "analgesic" when preparing records on patient B.R. He did not enter the actual names of the drugs. "Analgesic" could encompass all drugs which relieve pain. Dr. McNally turned to pharmaceuticals in B.R.'s case because he had tried all available alternative treatments without success. Dr. McNally prescribed drugs for the benefit of patient B.R. in the belief that he was doing what was best for his patient. Barry C. Blass, D.P.M., testified. He is an expert in the field of podiatry. Dr. Blass reviewed the evidence with regard to Dr. McNally and his treatment of patient B.R. and with regard to Dr. McNally's prescriptions of Phentermine for six patients. The pain-relieving drugs prescribed by Dr. McNally for B.R. were far in excess of an amount which would be appropriate. The amounts of legend drugs prescribed were about double that permitted by the instructions contained on the container. Dr. Blass reviewed 229 pages of office notes addressing the treatment of patient B.R. which purported to encompass the period January 2, 1998 through September 29, 1999. Almost all of the notes were identical with the exception of the dates. For the notes to be legitimate, patient B.R. would have had to visit Dr. McNally every day during October 1998 and almost everyday on several other months. It is a deficiency for a physician to fail to note on office notes that a patient has been prescribed legend drugs. The standard of care requires a physician to sign office notes. Respondent did not sign his notes. Additionally, the office notes were inconsistent with the hospital records of B.R., in that they indicated treatment in Dr. McNally's office when in fact B.R. was on those dates resident in a hospital. The office notes provided by the Respondent were manufactured, are not authentic, were not prepared at or near a time of an actual office visit, if there was an office visit, and are not, therefore, actual medical records addressing the treatment of patient B.R. It is inappropriate for a physician to bring drugs into a hospital for the use of a hospitalized patient. Phentermine is a diet drug which has no podiatric uses and therefore should not be prescribed by a podiatrist. Phentermine is usually prescribed as a remedy for exogenous obesity. Thomas L. Hicks, M.D., is an expert in the field of medicine. His testimony was provided by deposition. Dr. Hicks reviewed the medical records supplied by Dr. McNally, and provided expert opinions based on that review. It is inappropriate for a podiatrist to prescribe Phentermine. Respondent's prescriptions for Phentermine were unsafe and in excess of the customary dosages recommended by the manufacturer. By writing these prescriptions, Dr. McNally practiced outside of the scope of his license. The amount of Schedule II drugs prescribed for patient B.R. was inappropriate, dangerous, and not justified by the medical records. Dr. McNally wrote the prescriptions for patient B.R. at very frequent intervals which, while peculiar, did not violate the Practice Act. Usually when writing prescriptions for chronic pain a physician prescribes for a longer period of time. Richard D.Roth, D.P.M., testified. He is an expert in the field of podiatric medicine. Dr. Roth reviewed the medical records supplied by Dr. McNally. The prescribing of Phentermine by Dr. McNally was outside of the scope of his license and was potentially dangerous. Dr. McNally's treatment notes were inadequate in that, for example, they do not describe the exact location, size, or depth of an ulcer, among other things. Neither do they describe the types of analgesics prescribed even though massive doses of narcotic analgesics were prescribed. Dr. McNally's records in the case of patient B.R. are grotesquely incomplete. Most of the notes provided by Dr. McNally were canned notes generated by a computer.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Podiatric Medicine enter a final order finding that the Respondent, George C. P. McNally, failed to keep required medical records during the period January 2, 1998 through September 29, 1999, in violation of Section 461.013(1)(l), Florida Statutes; that the Respondent prescribed legend drugs other than in the course of his professional podiatric practice during the period January 1988 through August 1999, in violation of Section 461.013(1)(o), Florida Statutes; that Respondent failed to practice as a reasonably prudent podiatric physician during the period January 2, 1998 through September 29, 1999, in violation of Section 461.013(1)(s), Florida Statutes; and that Respondent practiced beyond the scope of his license during the period January 1988 through August 1999, in violation of Section 461.013(1)(u), Florida Statutes. It is recommended that Respondent's license to practice podiatric medicine be suspended for a period of six months, that he pay a $2,000 fine, and that he pay for the cost of the investigation and prosecution. The cost of investigation and prosecution shall be assessed at the time the matter is presented to the Board of Podiatric medicine. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida HARRY L. HOOPER 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 9th day of November, 2000. COPIES FURNISHED: Wings S. Benton, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 George C. P. McNally Post Office Box 5585 Destin, Florida 32540 Joe Baker, Jr., Executive Director Board of Podiatric Medicine Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in the State of Florida and holds license number ME 0043566. Respondent has never been the subject of a previous complaint from the Department of Professional Regulation (now the Department of Business and Professional Regulation). No patient involved in this proceeding incurred injury as a result of any procedure performed by Respondent or as a result of any medical record kept by Respondent, nor did any patient claim injury or make a complaint against Respondent. Respondent derived no financial gain from any act or omission alleged in the administrative complaint. All events pertaining to this proceeding occurred in 1987 or 1988. Prior to February 8, 1988, the effective date of Chapter 88-1, Laws of Florida, Section 458.331(1), Florida Statutes provided, in pertinent part, as follows: The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken. * * * (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results. * * * (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances", shall not be construed to require more than one instance, event, or act. Section 25 of Chapter 88-1, Florida Statutes, became effective February 8, 1988, and amended the pertinent provisions of Section 458.311(1), Florida Statutes, to read as follows: The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken. * * * (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations. * * * (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances", shall not be construed to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. At the times pertinent to this proceeding, Petitioner had adopted no rules pertaining to the keeping of records by a licensed physician. Imperial Point Medical Center (Imperial Point) is a hospital located in Broward County, Florida. Unless otherwise indicated, all hospital records referred to in this matter are from Imperial Point. PATIENT #1 (C.S.) On August 8, 1988, Respondent performed an upper endoscopy on Patient #1, a male, who was 44 years old at the time of the procedure. This procedure was performed at Imperial Point on an outpatient basis. An upper endoscopy is the viewing of the mouth, the pharynx, the esophagus, the stomach and portions of the duodenum with a fiber optic instrument that allows direct visualization of the lining of these structures and allows therapeutic maneuvers. The records kept of this procedure performed on Patient #1 on August 8, 1988, include an outpatient hospital record entitled "Operative Report". The description of the procedure portion of this report includes the following: ". . . The gastric portion was infiltrated with 1:1,000 adrenaline . . ." Adrenaline, also known as epinephrine, is a vasoconstrictor that can be used to control minor bleeding and oozing. It is used regularly in gastroenterology to treat actively bleeding lesions or ulcers with evidence of recent bleeding prior to performing a more permanent type of hemostasis. Dr. Goldberg testified that epinephrine was usually injected into these areas by a needle. Dr. Goldberg was of the opinion that epinephrine should not be used in cases of trivial bleeding or oozing or after routine biopsies unless there is an imminent danger of a significant arterial bleed. The testimony of Dr. Cerda and Dr. Singh established that spraying epinephrine over an area that is subject to bleeding is a precautionary technique some gastroenterologists follow. Dr. Singh and Dr. Cerda have both either used this technique, or have observed its use by other physicians. The expert witnesses agreed that the injection by needle of epinephrine into the gastric wall would be a procedure that falls below an established standard of care. There was a dispute among the expert witnesses as to how the term "infiltrated" should be interpreted. Petitioner contends that the term "infiltrated" is synonymous with the term "injected", and that the medical records should be construed to mean that Respondent injected the gastric wall with a needle, and therefore practiced below the standard of care. This contention is consistent with the testimony of Dr. Goldberg. Respondent asserts that the medical record should be construed to mean that Respondent sprayed the gastric wall as a precautionary measure. This contention is consistent with the testimony of the expert witnesses who testified on behalf of the Respondent. This dispute is resolved by finding that the term "infiltrated" does not have the same meaning as the term "injected" and does not prove that Respondent injected Patient #1's gastric wall with a needle. This conclusion is based, in part, on the definition of the term "infiltrate" and on the context in which epinephrine is sometimes administered by gastroenterologists during this type procedure. According to The American Heritage Dictionary of the English Language, the term "infiltrate" means to pass a liquid or a gas into something through its interstices or to permeate with a liquid or gas passed through interstices. Dorland's Illustrated Medical Dictionary, Twenty Sixth Edition (Dorland) has a similar definition of the term "infiltrate". According to Dorland, an "interstice" is small interval, space, or gap in a tissue or structure. According to Dorland, the term permeate means to penetrate or pass through, as through a filter. Also according to Dorland, the term inject means the act of forcing a liquid into a part, as into the subcutaneous, the vascular tree, or an organ. Based on these definitions, it is found that the use of the term "infiltrate" is more consistent with the practice of spraying epinephrine onto the gastric wall, and that the use of the term "infiltrate" does not prove that Respondent injected the epinephrine into the gastric wall with a needle. It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #1 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail. A pathology report dated August 8, 1988 contained in the medical file provided a pathological diagnosis as follows: "esophageal brushings: no evidence of malignancy." Brushings are the result of passing a small brush through the biopsy channel of an endoscope, rubbing it over an area of concern that might have either a malignancy or a fungal infection, taking the brush out of the scope, wiping it on a microscopic slide, and sending the slide to the pathologist for cytological examination. The reference to the "esophageal brushings" in the pathology report was error. The brushings taken from Patient #1 during the procedure on August 8, 1988, came from the stomach, a fact obvious to all of the expert witnesses in light of the operative report and operative drawing made by Respondent. Because Petitioner failed to prove that Respondent took esophageal brushings from Patient #1, its charge that he failed to properly document his reasons for doing so must also fail. 1/ Petitioner proved that Respondent's medical records, including his office notes as to Patient #1 failed to contain an adequate medical history for Patient #1 and failed to reflect the findings of any physical examination of Patient #1 by Respondent. Petitioner further proved that such failures fall below an established standard of care as alleged in Count Two of the Amended Administrative Complaint. PATIENT #2 (R.B.) Patient #2 was a 70 year old male seen by Respondent for a consultation because of the patient's history of hematemesis, which is the vomiting of blood. Respondent prepared a formal consultation note dated September 25, 1988. The consultation note contains a description of the patient's condition, references a rectal exam, which was positive for blood, and indicates that a physical examination of the patient was made. Respondent again saw the patient on September 27, 1988 and performed an upper endoscopy. Dr. Goldberg was critical of the medical records kept by Respondent as to this procedure and was of the opinion that the medical records were inadequate. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedure. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records pertaining to this patient were inadequate. It is further found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. The records kept of this procedure reflect that Respondent "infiltrated" Patient #2 with epinephrine. This is the identical dispute over the meaning of the term "infiltrated" that pertained to Patient #1 as discussed above. For the reasons given in resolving the dispute as it pertains to Patient #1, it is found that the term "infiltrated" does not have the same meaning as the term "injected" and that the use of the term does not prove that Respondent administered the epinephrine by injecting Patient #2 with a needle. It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #2 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail. PATIENT #3 (B.B.) Patient #3, a 65 year old female was admitted to Imperial Point with chest pains by her physician, a Dr. Fanfan. Patient #3 had a history of cancer which included the prior surgical removal of a tumor. On October 3, 1988, Respondent performed a colonoscopy of Patient #3. A colonoscopy is an examination of the colon from the anus to the ileocecal valve using a fiber optic instrument. A colonoscopy is indicated to evaluate abnormal X-rays, changes in bowel habits, evidence of bleeding, suspicions of inflammation, tumors, or polyps. Respondent adequately performed the procedure on Patient #3. The colonoscopy detected that Patient #3 had polyps. Subsequent laboratory results established that these were hyperplastic polyps that required no follow-up. Had the polyp been an adenomatous polyp, which is a true neoplasm with malignant potential, a follow-up for recolonoscopy would have been appropriate in one year. Prior to receiving the pathology reports, on the polyp, Respondent recommended a six month follow-up for the patient. This follow-up recommendation was appropriate at the time it was made. Petitioner failed to prove that the recommendation that a follow-up be performed was below an established standard of care. Petitioner failed to prove that the recommendation that the follow-up for this patient with a history of cancer be in six months as opposed to one year fell below an established standard of care. The barium enema for this patient was originally scheduled by the attending physician, Dr. Fanfan. Dr. Fanfan clearly wrote a note on the same day following Respondent's report of the colonoscopy that the barium enema was pending, yet the attending physician did not cancel the barium enema. There is no disagreement among the experts that the barium enema was unnecessary in light of the findings of the colonoscopy. It is medically unnecessary and inappropriate for both tests to be performed on the same day. Dr. Goldberg was of the opinion that Respondent was responsible for the patient once he began his consultation and that Respondent should have canceled the barium enema. Dr. Cerda, Dr. Eberly and Dr. Singh were of the opinion that the attending physician was responsible for scheduling the barium enema and that the attending physician or the radiologist should have canceled the barium enema. Dr. Eberly testified that as the primary care physician, the admitting physician is the "captain of the ship" and has the responsibility to make final determinations with respect to tests of this nature. Because of the conflicting testimony from equally credible expert witnesses, it is found that Petitioner failed to prove that Respondent violated an established standard of care by not cancelling Patient #3's enema. Dr. Goldberg was of the opinion that Respondent's medical records pertaining to Patient #3 were inadequate. He had several criticisms of the records. Dr. Goldberg opined that there should have been a formal consultation note on Patient #3's chart that included past history, present illness, review of systems, allergies, pertinent laboratories, a thorough organ specific or system examination, an impression, an adequate discussion of the consultant's impression and the consultant's plans. He opined that the indications for Patient #3's procedure were inadequately dictated on the procedure notes and that Respondent's history pertaining to Patient #3 was inadequate because there was no pertinent review of systems or past history, no mention of the previous tumor, no mention of allergies, and an extremely scant examination. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of this patient's medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records fell below an established standard of acceptability. PATIENT #4 (E.K.) On October 4, 1988, Patient #4, a 92 year-old female, was admitted to the hospital with an acute onset of vomiting, dehydration, and abdominal pain. Respondent was asked by Patient #4's attending physician to evaluate Patient #4 for a potential small bowel obstruction following an X-ray that was consistent with a small bowel obstruction. Respondent performed an upper endoscopy on Patient #4 on October 7, 1988. An obstruction of the intestines is a blockage in the large or small intestine. The bowel behind the blockage may become inflated with fluid or air and may be seen on X-ray. The obstruction may result from a variety of abnormalities. Dr. Goldberg was of the opinion that the upper endoscopy was contra- indicated and potentially dangerous to the patient because of the X-ray indicating a complete bowel obstruction. Dr. Goldberg was also of the opinion that an upper endoscopy should be used only under compelling circumstances if there is a partial bowel obstruction. Dr. Goldberg was of the opinion that Respondent did the right tests on Patient #4, but in the wrong order since he did not first rule out an obstruction. Prior to performing the upper endoscopy Respondent monitored the patient for several days. During that time period, examinations indicated that the patient was having bowel movements. Both the attending physician's notes, Respondent's notes, and the nurse's notes indicate positive bowel signs on October 5 and 6, indicating that there was not a complete bowel obstruction. Respondent ordered a Golytely preparation administered to the patient, which usually consists of one or two liters of non-absorbable solution that basically washes the bowel out. That preparation would have been improper with a complete bowel obstruction. Dr. Goldberg was of the opinion that the use of a Golytely prep in this patient was a gross judgment error. Dr. Singh was of the opinion that there was no contra-indication for using the preparation in this situation. Petitioner failed to prove that Patient #4 had a complete bowel obstruction or that the procedure, including the use of the Golytely preparation, violated an established standard of care. It is found that Respondent was acting within the scope of his discretion as the consulting physician to order the administration of the Golytely preparation and to perform the upper endoscopy. On October 11, 1988, Respondent performed a colonoscopy on Patient #4. Respondent stated on the operative report that the colonoscopy was indicated because of diverticulitis. Diverticulitis was not mentioned in any of Respondent's notes concerning Patient #4, and there was no notation as to the reasons Respondent thought the patient had diverticulitis. Although Respondent failed to document why he felt that diverticulitis was an appropriate indication for the colonoscope, there is no dispute that a colonoscope was, in fact, indicated. Further, the colonoscope established that the pretest diagnosis of possible diverticulitis was not incorrect. The colonoscopy revealed areas of colitis, and the pathology report noted an ulcer with acute and chronic inflammation. Respondent's experts testified that they were of the opinion that Respondent violated no established standard by listing diverticulitis as an indication for the colonoscopy. It is found that Petitioner failed to prove that Respondent practiced below an established level in listing diverticulitis as an indication for the colonoscope. During the colonoscopy, Respondent found several mildly bleeding areas and infiltrated Patient #4 with epinephrine. For the reasons discussed pertaining to Patient #4, it is found that Petitioner failed to prove that Respondent violated an established standard of care in administering epinephrine to Patient #4. Dr. Goldberg was of the opinion that Respondent's handwritten consultation report was inadequate. Dr. Goldberg bases his conclusion on the following observations. The report was difficult to read and failed to include any significant historical events concerning Patient #4. In his consultation report, the Respondent failed to note anything about having done a rectal examination on this patient, whether or not the abdomen was distended, and whether there were active or inactive bowel sounds. Dr. Goldberg was of the opinion that these findings would help to distinguish between an obstruction and an ileus or paralysis of the bowel. Dr. Goldberg was also of the opinion that the patient's records of the upper endoscopy performed October 7, 1998, fail to reveal any significant findings. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, Petitioner failed to prove that the medical records fell below an established standard of acceptability. PATIENT #5 (J.T.) Patient #5, an 89 year-old male, was admitted to Imperial Point with a history of peptic ulcer disease and arthritis. This patient was seen by Respondent on a consulting basis. The patient was vomiting blood and Respondent was asked to see the patient to determine the source of the bleeding. Respondent performed an upper endoscopy on October 13, 1988, and found a significant outlet obstruction. On October 17, 1988, a G.I. series was performed and a repeat upper endoscopy and pyloric dilatation was performed. The procedures performed by Respondent were properly indicated and had a beneficial result to the patient. Back-to-back pyloric dilatations were appropriate and clinical judgment was properly exercised. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the upper endoscopy of October 13, 1988, in that Respondent's operative report failed to document Respondent's findings in detail. Dr. Goldberg testified that an essential endoscopy report that physicians are trained to do should include the following: indications for the procedure, medication used to sedate the patient, identification of instrument used, description of the anatomical landmarks and their condition as visualized by the physician passing the endoscope, the removal of the scope, the physician's impressions and what the physician plans to do about those impressions, how the patient tolerated the procedure and what the patient's condition was after the procedure, and that the patient was sent to the recovery area. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the procedures performed on this patient on October 17, 1988, in that Respondent's operative report did not document Respondent's findings in detail and did not indicate if the scope was passed through Patient #5's dilated pylorus into the duodenum. In Respondent's impressions on the second endoscopy, he noted pyloric stenosis and duodenal ulcer. In his procedure note Respondent does not mention whether he passed the scope into the duodenum or how he knew there was a duodenal ulcer. Dr. Goldberg was of the opinion that Respondent did not properly document what he did. On October 18, 1988, Respondent performed a repeat pyloric dilation on Patient #5. Dr. Goldberg was of the opinion that Respondent failed to record the reasons for the second procedure and to document his findings. Dr. Goldberg was of the opinion that the third endoscopy note did not adequately detail the examinations of the esophagus and stomach. Dr. Goldberg was of the opinion that every procedure note stands alone, and that if a physician does an endoscopy on day one and repeats it on day two, the physician still must make that report complete because it is not always going to be part of a document. Dr. Goldberg was of the opinion that Respondent's records did not stand alone. Dr. Goldberg was of the opinion that Respondent's handwritten consultation note was sketchy and should have contained a history of allergies because of the need to give the patient medications for sedation. Dr. Goldberg's criticisms of Respondent's medical records do not prove that the medical records kept by Respondent were inadequate as measured by an established standard. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedures and that the records were adequate. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records were inadequate. It is further found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. PATIENT #6 (D.Y.) From October 19, 1988, until October 22, 1988, Respondent was consulting physician to Patient #6, a 72 year-old male, who was admitted to Imperial Point with rectal bleeding. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to Patient #6 because a formal consultation note was lacking. The medical records which were reviewed by Dr. Goldberg were incomplete when reviewed by him. A specific reference is made to a consultation note that is not contained in the hospital records. Respondent established that other medical records were missing from the hospital records. In light of the specific reference to the consultation note, it is found that the absence of this consultation note from the hospital records is insufficient to prove that there existed no consultation note. On October 20, 1988, Respondent performed an colonoscopy on this patient and a biopsy was taken in the segmental descending colon area. The colonoscopy could not be completed because the colonoscopy could not pass to the patient's cecum. The following recommendation was made by Respondent (the original is in all capital letters): IN VIEW OF NOT REACHING TO THE CECUM, THE PATIENT WOULD NEED BE (this is an abbreviation for barium enema) AND ALSO IF EVERYTHING IS NEGATIVE, RECOLONOSCOPY IN ONE YEAR AND IF THERE ARE ANY CHANGES IN THE BIOPSY OF THE POLYP, THEN ACCORDINGLY WILL PLAN. On October 21, 1988, the follow-up barium enema was performed by Dr. Nicholas M. Arfaras, a radiologist. The radiology report reflected the following finding: "Also in the sigmoid there is an approximately 1 cm. rounded filling defect identified near the junction with the descending colon. This is felt to be secondary to a polyp." The possible polyp detected by the barium enema should have been followed up. However, it was not established that Respondent was consulted by the attending physician about the results of the barium enema. Dr. Lipton, as the attending physician, would have had the responsibility for following up the recommendations made by Respondent and for bringing Respondent or another gastroenterologist in for further consultations following the barium enema if Dr. Lipton had believed it necessary to do so. This patient was discharged from Imperial Point by Dr. Lipton on October 22, 1988. The final page of the discharge summary for this patient reflected the following notation: "Condition was improved. The patient is to have a follow up in one week in the office with Dr. Lipton and with Dr. Gupta in two weeks." The evidence presented in this proceeding, including Respondent's office notes, does not reflect that Respondent had any involvement with this patient after October 21, 1988, until 1990, when he performed on the patient at North Broward Medical Center a procedure described as a "multiple colonoscopy with multiple biopsies and cauterization." This procedure in 1990 revealed multiple polyps. The polyp removed on colonoscopy in 1988 was an adenomatous polyp, a polyp with significant malignant potential. This patient needed a follow-up colonoscopy in one year. Respondent was the consulting physician and recommended reevaluation of the patient in one year. Follow-up care was not the responsibility of Respondent, but of the treating physician. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records in that Respondent failed to adequately document the indications for the colonoscopy performed on Patient #6 and why the colonoscope could not be passed to Patient #6's cecum. Dr. Goldberg opined that a physician doing a colonoscopy needs to tell why he did not get to the cecum so that the next physician colonoscoping this patient can take appropriate precautions. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. PATIENT #7 (C.R.) Respondent was a consulting physician to Patient #7, a 64 year old male who was hospitalized with rectal bleeding. Respondent saw this patient because of a possible colonic fistula, which is a connection with any piece of the intestine and some other structure. Respondent recommended a barium small bowel X-ray and a barium enema, both appropriate clinical recommendations. On November 11, 1987, Respondent performed a colonoscopy on Patient #7. Petitioner contends that Respondent failed to keep adequate written medical records pertaining to the aforementioned procedure in that Respondent failed to document an adequate history as an indication of Patient #7's colonoscopy. This contention is rejected based on the testimony of Dr. Singh. The medical records provide adequate justification for the procedure. Dr. Goldberg was critical of Respondent's records pertaining to this patient and considered the records inadequate. He was of the opinion that the records should have better detailed his findings and should have recorded any follow-up plans for a repeat colonoscopy on the patient. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, by failing to provide a history or physical examination for Patient #1 as alleged in Count Two, which reprimands Respondent for that violation, and which imposes an administrative fine in the amount of $250.00 against the Respondent for that violation. It is further recommended that all other charges against Respondent contained in the Amended Administrative Complaint be dismissed. DONE AND ENTERED this 12th day of October, 1993, 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 12th day of October, 1993.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Robb E. Ross was a licensed physician engaged in the practice of family medicine as a sole practitioner. He was licensed to practice medicine in the State of Florida in 1966 and holds license number 12433. He was board certified in family practice in 1970. Respondent also holds a license as a pharmacist. Respondent treated patient N.B. from September of 1970 through October of 1986. She initially presented as a new patient moving into the area, aged 61, for maintenance of her general physical medical care, primarily relating to her mild depression that she had for years following a mastectomy. While believing that patient N.B. had previously been under the care of a psychiatrist or psychologist, respondent never requested her prior medical records. Patient N.B. informed the respondent that she had been taking Biphetamine, a steroid amphetamine that is no longer produced, for the past ten years. Respondent continued patient N.B. in that treatment modality for over ten years, as well as treating her for other complaints. At some point, he did attempt to titrate her from Biphetamine, but she did not function as well with a substitute drug. When the drug Biphetamine was phased out of the market in either 1980 or 1982, respondent prescribed Dexedrine to patient N.B. and continued to do so approximately every six months. Respondent maintained her on Dexedrine due to her mild depression and the fact that she had been on amphetamines for many, many years. He was reluctant to take her off Dexedrine for fear that she could become overtly depressed. Since she did well with Dexedrine, respondent maintained her on that regiment due to the adverse side effects of other compounds utilized to control depression. The respondent's medical records for patient N.B. contain virtually no patient history or background information. For each patient visit, there is a brief notation which includes N.B.'s temperature, blood pressure and weight and also a reason for the visit. The reason noted on the records are either "check- up" or a brief statement of the patient's complaint on that particular day. The medication prescribed is noted, though very difficult to read. While the symptom or patient complaint is often noted, the patient records contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from N.B.'s medical records the reason that Dexedrine was prescribed for this patient. While N.B. complained of tiredness, she did not suffer from narcolepsy. Patient G.B. was under respondent's care from August of 1979 through May of 1985. He initially presented, at age 56, with problems relating to emphysema, lung collapse, exhaustion, impotency and aches and pains. Respondent prescribed various medications for him, including Nitroglycerin for chest pains. Respondent felt that due to his age and his complaints, patient G.B. had some type of arteriosclerosis. Patient G.B. frequently complained of being weak, exhausted and having no endurance or energy. For this reason, respondent prescribed Dexedrine for him on March 30, 1984. Other medications to increase his energy were tried before this and after this time. Nothing appeared to give him any relief. After determining that patient G.B. "liked his medicine too much," respondent terminated his treatment of him. The respondent's medical records for patient G.B. are brief and difficult to decipher. Again, the patient's temperature, blood pressure and weight are recorded for each visit, and there is a brief statement of the patient's complaint. There is no statement indicating a medical diagnosis or a treatment plan. The medications prescribed at each visit are written on the records, but are difficult to read. D.M. was a patient under respondent's care from December of 1976 until his death, at age 84, in March of 1986. He initially presented with stomach problems and subsequently had a host of other medical problems, surgeries and hospitalizations throughout the years. This patient was given so many different medications for his various physical problems that respondent did not always write each of them down on his records after each office visit. It appears from respondent's medical records that he first started patient D.M. on Dexedrine in January of 1984. At that time, D.M.'s chief complaint was "dizziness, falling, no pep." Respondent maintained D.M. on Dexedrine or an amphetamine type of compound from that period until his death, primarily because of his weakness, dizziness, falling down and low blood pressure. Other specialists were consulted regarding D.M.'s fainting and falling episodes, caused by postural hypotension, and were unable to remedy the problem. Respondent was of the opinion that the administration of Dexedrine enabled patient D.M. to function more properly and that it worked better than anything else. Patient D.M. expired in March of 1986. Respondent listed the cause of death as "cardiac arrest." The respondent's medical records on patient D.M. are typical of those previously described for patients N.B. and G.B. The office visit notes list patient complaints or symptoms and no medical diagnosis or comprehensive assessments. There are indications in the record that D.M. complained of chest pains in 1983, 1984 and 1985. The medications prescribed indicate the presence of cardiac disease. Respondent's record-keeping with regard to patients N.B., G.B. and D.M. are below an acceptable standard of care. They fail to include an adequate patient history and initial assessment of the patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the patient's background. The respondent's only notation of treatment is a listing, and a partial listing in the case of D.M., of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken. Dextroamphedimine sulfate, also known as Dexedrine, is a sympathomimetic amine drug and is designated as a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Commonly, it is referred to as "speed" or an "upper." It is addictive and highly abusive. While individual patients react differently to Dexedrine, its consumption can cause psychosis, marked elevations of blood pressure and marked rhythmic disturbances. As such, its use is contraindicated in patients with coronary disease. In addition, because Dexedrine is an "upper" and makes a patient "feel good," it can mask a true physical condition and prevent the patient from being treated for the physical ailment he is experiencing. A patient should not be relieved of pain without first knowing what is causing the pain. In Florida, Dexedrine may only be prescribed, administered or dispensed to treat specifically enumerated diseases, conditions or symptoms. Section 458.331(1)(cc), Florida Statutes. Neither respondent's medical records nor his testimony indicate that patients N.B., G.B. and/or D.M. suffered from the conditions, symptoms or diseases which warranted the statutorily approved and limited use of Dexedrine. Respondent was not aware that there were statutory limitations for the use of Dexedrine. He is aware of the possible dangers of amphetamines and he prescribes Dexedrine as a treatment of last resort when he believes it will help the patient. Respondent further testified that his medical record-keeping is adequate to enable him, as a sole practitioner, to treat his patients, though he admits that his medical records could be improved.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(I), subparagraphs (cc),(q),(t) and (n), Florida Statutes, and that the following penalties be imposed: an administrative fine in the total amount of $2,000.00, and probation for a period of twelve (12) months, with the following conditions: (a) that respondent complete continuing medical education courses or seminars in the areas of medical record-keeping and the dangers and authorized use of compounds designated as Schedule II controlled substances, and (b) that respondent submit to the Board on a monthly basis the medical records of those patients for whom a Schedule II controlled substance is prescribed or administered during the probationary period. Respectfully submitted and entered this 2nd day of September, 1987, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3483 The proposed findings of fact submitted by counsel for the parties have been carefully considered. To the extent that the proposed factual findings are not included in this Recommended Order, they are rejected for the following reasons: Petitioner: The 48 proposed findings of fact submitted by the petitioner consist of summaries or recitations of the testimony of the witnesses presented by the petitioner in this proceeding. While the summaries and/or recitations constitute an accurate representation of the testimony received by those witnesses at the hearing, and are thus accepted, they do not constitute proper factual findings by themselves. Instead, they (along with the testimony presented by the respondent) form the basis for the findings of fact in this Recommended Order. Respondent: Page 4, Paragraph 1 The reference to 30 years is rejected as contrary to the evidence. COPIES FURNISHED: David E Bryant, Esquire Alpert, Josey, Grilli, Paris and Bryant 100 South Ashley Drive Suite 2000 Tampa, Florida 33602 David J. Wollinka, Esquire P. O. Box 3649 Holiday, Florida 33590 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The ultimate issues for determination are whether Respondent, Dr. Lieberman, committed the violations as alleged, and if so, what license discipline is appropriate. More specifically, did the following violations of Chapters 893 and 458, Florida Statutes, regulating the practice of medicine occur as alleged: As to Patient, M. A. Sections 893.05, Florida Statutes, and Section 458.1201(1)(k), Florida Statutes, (1977) reenacted as Section 458.331(1)(g), Florida Statutes, (1987) -- by inappropriately prescribing certain drugs classified as controlled substances. Section 458.1201(1)(m), Florida Statutes, (1977) reenacted as Section 458.331(1)(j) and (t), Florida Statutes, (1987) -- by utilizing examinations for his own sexual gratification, by making inappropriate remarks during examinations and by engaging in sexual activity with the patient within the patient-physician relationship. As to Patient, L. I. Sections 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, -- by forcibly engaging in sexual intercourse with a patient and by inappropriately using the examination for his own sexual gratification. As to Patient, D. B. Section 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, by engaging in sexual conduct with a patient and using the examination for purposes of obtaining sexual gratification. As to Patient, B. J. (Case NO. 88-3334) Section 458.331(1)(t), Florida Statutes, by failing to obtain appropriate tests on a patient who was later diagnosed as having cervical cancer.
Findings Of Fact At all times relevant to the allegations of the Administrative Complaints, Robert A. Lieberman was a physician licensed to practice medicine pursuant to Chapter 458, Florida Statutes, and holding license number ME 0023165. After two years in the U.S. Navy, serving as a physician with the rank of Lt. Commander, Dr. Lieberman opened a private practice in Orlando, Florida in 1976. At all times relevant to the allegations of the complaints, Dr. Lieberman has been Board Certified in obstetrics and gynecology and maintained his practice at 615 East Princeton Street, in Orlando, Florida. Dr. Lieberman's practice includes approximately 6500 patient visits per year and the delivery of approximately 180 infants per year. M. A. Patient M. A., also known as M. Q., was treated by Dr. Lieberman from February 1, 1977 until May 31, 1979. She also visited the office on October 24, 1979 for a pregnancy test, but was not seen by Dr. Lieberman on that date. During the course of her visits she was treated for a variety of complaints including difficulty in adjusting to birth control pills, gynecological infections, post-coital bleeding and a spontaneous abortion. She underwent an induced abortion on February 7, 1977, and later became an obstetric patient of Dr. Lieberman. She delivered a live birth on June 29, 1978. During the course of her treatment M. A. was an extremely stressed and disturbed young woman. In January 1978, She reported having been beaten by her boyfriend. She also reported heavy usage of cocaine and "sopors" (methaqualone) In January 1979, she reported she was raped. At one point, during a divorce, she wrote an anguished letter to Dr. Lieberman asking that he be her "shrink" (her term, which in the context of the letter meant counselor). (Petitioner's Exhibit 7.) During the course of his treatment of M. A., Dr. Lieberman's office notes and copies of prescriptions reflect the following controlled substances that he prescribed for her: Date 2/7/77 Type Percodan Dosage (not indicated) Number 12 2/22/77 Valium 10 mgs 30 3/1/77 Percodan (not indicated) 30 3/1/77 Quaaludes (not indicated) 10 3/10/77 Valium 10 mgs 30 3/18/77 Valium 10 mgs (not indicated) 5/6/77 Valium 10 mgs 60, plus one refill 5/20/77 Quaaludes 300 mgs 15, plus one refill 5/27/77 Valium 10 mgs 60, plus one refill 8/11/77 Tranxene 7.5 60 1/4/78 Phenobarbitol 1 gr 60, plus one refill 1/4/78 Darvocet N100 60 5/17/78 Quaaludes 300 mgs 30 7/13/78 Fiornal No. 3 20 7/17/78 Seconal 100 mgs 10 7/20/78 Fiornal No. 3 20 8/4/78 Quaaludes (not indicated) 30 8/7/78 Fiornal No. 3 15 8/24/78 Quaaludes 300 mgs 30 9/18/78 Quaaludes 300 mgs 30 9/19/78 Quaaludes (not indicated) 30 9/25/78 Quaaludes 300 mgs (not indicated) 10/10/78 Quaaludes 300 mgs 30 11/1/78 Quaaludes 300 mgs 30 11/6/78 Valium 10 mgs 30, plus two refills 11/6/78 Valium (not indicated) 30, plus two refills 12/15/78 Percodan (not indicated) 20 12/26/78 Quaaludes 300 mgs 30 1/2/79 Quaaludes 300 mgs (not indicated) 1/15/79 Placidyl 500 mgs 30 2/1/79 Valium 10 mgs 30 5/31/79 Placidyl 750 mgs 30 The medical records also reveal that M. A. was given a single injection of Demerol at the time of her abortion procedure on February 7, 1977. No evidence supports the allegation that this use of the drug was inappropriate. Quaaludes are a depressant and were prescribed for sleep, primarily. They have an effect comparable to barbiturates. They are highly addictive and, while legal at the time that Dr. Lieberman was prescribing them for M. A., they were removed from the market around 1982 because of their abuse. Placidyl is also a sleeping pill, although in a different class of drugs than Quaalude. Tranxene is similar to Valium and both are used as tranquilizers. Dr. Lieberman's office notes did not reflect the basis for the wide array and sometimes frequent prescriptions. In several instances he prescribed Quaaludes without any notation in his office records. This occurred on August 24, 1978, September 18, 1978 and October 10, 1978. Nevertheless, the testimony of the agency's physician witnesses lacked specificity with regard to the propriety of Dr. Lieberman's prescriptions to this patient. Dr. Curry felt that the prescriptions for Quaaludes were "excessive" and that it was "unwise" for a physician to prescribe this quantity of a popular street drug to a known drug abuser. (Petitioner's Exhibit 2, pp. 6 and 10.) He offered no opinion on the other controlled substances. Dr. Rudolph had a close family member who had a problem with Quaaludes and he would never prescribe this drug. He was concerned generally with regard to the variety of drugs, but could conclude that only the Quaaludes were absolutely, totally, unnecessary. (Petitioner's Exhibit 1, P. 71.) Neither physician was qualified as an expert in pharmacology and neither was particularly familiar with M. A.'s records, as they had difficulty reading the office notes. M. A.`s testimony with regard to her experiences as Dr. Lieberman's patient was vague and confused. Ten years ago she was, as she described, a different person, under substantial stress and thoroughly habituated to drugs. She claims that Dr. Lieberman knew that she was a substance abuser and willingly provided her with the prescriptions she sought. She also claimed that he made embarrassing "joking and filthy" comments about the appearance of her genitalia during her pelvic examinations. She also claims that on one occasion, when she had gone to his office seeking drugs, he required that she perform oral sex on him. The dates and specifics of these charges were not provided. M. A. admitted that during the period in question, she was on tranquilizing drugs all of the time and that she was not aware of all that Dr. Lieberman had done to her until 1982 or 1983. Prior to her testimony in this proceeding she had given sworn statements in deposition or otherwise with regard to her relationship with Dr. Lieberman. In one such statement given on November 9, 1984, she testified that she was a patient of Dr. Lieberman in the early 70's and that he prescribed drugs for her for a period of about eight years. (Petitioner's Exhibit 8.) The patient records and prescriptions substantiate that M. A. was a patient for approximately two years (1977-1979). Dr. Lieberman was not in private practice until 1976, and M. A. concedes that she first met him when she visited his office at East Princeton Street. In addition to discrepancies in dates, M. A. at various times claimed that Dr. Lieberman made advances or fondled her prior to the oral sex incident and, in contradiction, claimed that she was surprised by the incident as sex had never come up at all other than verbal teasing. (Transcript, pp. 52 and 68, Petitioner's Exhibit 3, P. 10.) In summary, M. A. was an earnest and emphatic witness. However, the lavish and unspecific charges she has made cannot alone form the basis of proof of the violations related to this patient in the Administrative Complaint. In spite of the ten years time that has elapsed since these violations allegedly occurred, the agency failed to produce written records, prescriptions, and corroborating testimony from the other patients through whom M. A. claimed Dr. Lieberman was supplementing her drugs, to substantiate her charges. L. I. L. I. was Dr. Lieberman's patient from July 1978 until November 1982. She was initially treated for conditions requiring a total abdominal hysterectomy. She had follow-up visits and was seen intermittently for other non-related complaints through April 1980. Two years later she again visited Dr. Lieberman on June 8, 1982, when she presented complaints of pain in her left side. On June 17, 1982, she was hospitalized and Dr. Lieberman performed an exploratory laparotomy with lysis of adhesions. That is, abdominal surgery was performed and adhesions or scar tissue attached to the ovary were broken apart, without complications. She was discharged after some further tests related to digestive and vision problems, on June 25, 1982. On July 2, 1982, L. I. returned to Dr. Lieberman's office for a post- operative examination and for removal of her bandages. At the time of the examination, as instructed, L. I. kept her clothing on, except for her underpants, which she removed. She was given a paper sheet which she used as she lay an the examining table. Dr. Lieberman conducted the examination without a chaperone, pulling the sheet up and pressing around the abdomen area. After the examination, he said she could get up and reached out to help her when she had difficulty. Instead of moving away, he stood and stared at L. I. as she sat on the table with her legs outstretched. This made her uncomfortable. He told her to scoot forward and when she did not, he pulled her forward and unzipped his pants. L. I. protested verbally with, "Don't do this, and "this is not right." He then leaned forward and quickly had sexual intercourse with her. Afterwards L. I. sat and cried. He turned to the sink and handed her tissues and asked if he had hurt her. He said that he did not want her to be upset, that it was important that she not say anything and that he would see her again in two weeks. (Transcript, Vol. I, pp. 79-86.) L. I. did not report the rape. She was profoundly embarrassed and felt that she was at fault for not struggling. In order to return to work after her surgery, L. I. had to have a release from her attending physician. She returned to Dr. Lieberman's office on July 20, 1982, as he was the only person who could provide the release insisted on by her employer. The nurse instructed her to get undressed for a pelvic examination. She questioned why a pelvic examination was necessary, but did undress. The nurse left and Dr. Lieberman entered the examining room. As he walked toward her, L. I. put her hand up and said, "No, not until the nurse comes'. He turned, and L. I. thought he had pushed a call button for the nurse. She stretched back on the table positioned for the examination, with her feet in the stirrups. Dr. Lieberman stood next to her at the side of the table, rather than at the end of the table between the stirrups, where a pelvic examination is usually conducted. He touched her between the legs with his bare hand and L. I. heard him undoing his pants. She said, "Oh, not this again," and the phone rang in the examining room. As he turned to answer the phone, she sat up and wrapped herself with the sheet. After the call, he walked out. As L. I. was getting dressed, he walked back in. She said, Just give me my release and I'll go". He told her to sit down and calm herself; she sat on the stool where her clothes had been and asked again for the release. He told her it was important not to say anything about what happened, that it had never happened before; he wrote her release on a prescription pad and left. (Transcript, Vol. I, pp. 90-94.) L. I. returned to Dr. Lieberman's office for one final visit in November 1982. She had received a card in the mail reminding her that it was time for a Pap test. By then she had thought about what had happened and felt that, given another opportunity, she could struggle or scream and someone would believe her. Otherwise, she was concerned it was just her word against the doctor. On this occasion, she undressed fully for the exam. A nurse was in the room almost the entire time and no improper advances or comments were made. The examination and discourse afterward were uneventful. Although, she told him that she was still upset about what happened. He didn't respond. L. I. never returned to Dr. Lieberman or to any other gynecologist. In March 1983, L. I. began seeing a mental health counselor through her employee assistance program when she was having trouble with one of her children. At some point in the counseling process, L. I. began discussing her experience with Dr. Lieberman. As a result of the counseling she gained some insight into her own reactions to the incident. She is intimidated easily and is compliant. She tries to let things go and handle matters in her own way. In his testimony at hearing, Dr. Lieberman agreed that L. I. was reticent and a subdued and submissive type of individual. (Transcript, Vol. IV, P. 138.) She obtained legal counsel civil brought a civil suit against Dr. Lieberman, which suit has since been settled. D. B. D. B. was a patient of Dr. Lieberman from June 1978 until September 1981. She first became his patient when he was the OB/GYN physician on call at Florida Hospital where she had been referred by a family practitioner. He performed emergency surgery, and she continued to see him on a regular basis for routine check-ups and a variety of gynecological services, including two abortions, treatment for infections, and birth control. On September 1, 1981, D. B. visited Dr. Lieberman's office for the purpose of being fitted for a diaphragm, a birth control device. At the instructions of the nurse, D. B. completely disrobed, and draped the paper vest and sheet. She was sitting on the examining table when Dr. Lieberman entered the examining room. They exchanged brief pleasantries with regard to his having been up all night delivering babies. He then approached her, attempted to push her down on the table, and french kissed her while fondling her left breast. She resisted physically by pushing forward, and the incident lasted only ten to fifteen seconds. As he wiped lipstick from his mouth, he told her that she wasn't cheating on her husband. She dressed, left the office and returned to her own office. (Transcript, Vol. I, pp. 52-58.) At the office she talked to a friend who suggested that she do something. The friend called the police and arrangements were made for her to meet them at her apartment. After she made her report to the police, D. B. was contacted by a female police detective, Sgt. Alana Hunter. D. B. decided not to press charges because she had two abortions prior to her marriage and had never told her husband. She was told that the abortions might be disclosed during the prosecution. She later retained the services of an attorney and a civil action is pending. B. J. B. J. was an OB/GYN patient of Dr. Lieberman from September 1979 until May 1984. Her medical care and treatment by Dr. Lieberman included obstetrical deliveries in June 1980 and November 1982, with intervening gynecological care. Part of that care included a test called a Pap smear. This procedure involves the taking of a sample of cells from the patient's cervix which sample is sent to a laboratory for a cytological/pathological examination to determine the presence of abnormal, precancerous or cancerous cells. It is a routine gynecological procedure with the primary purpose of early detection of cancer. The findings of examination of a Pap smear are reported in levels, ranging from I, which is considered normal; to II, considered abnormal or denoting inflamed or damaged cells; to III, inferring cancerous consideration; to IV and V, where carcinoma is more clear and definite. B. J. had Pap smears taken by Dr. Lieberman on September 26, 1979; June 23, 1980; December 18, 1980; July 28, 1981; and May 7, 1982 -- all Class I, although the laboratory reports for the latter three tests noted mild and moderate inflammation. On December 21, 1982, her Pap result was Class II. She was treated with a vaginal suppository and was appropriately directed to return for a follow-up test in one month. The repeat test on January 25, 1983, was still Class II. On February 8, 1983, Dr. Lieberman performed a cryocauterization of B. J.'s cervix. This is an office procedure involving the use of a probe-like instrument which is inserted flush up against the cervix. Nitrous oxide is released to the probe, freezing the atypical cells. This results in a discharge over the next six to eight weeks, during which time the entire surface of the cervix is sloughed away. Dr. Lieberman next saw B. J. on September 14, 1983, when another Pap smear was taken. This returned from the laboratory as a Class I. At that point he was satisfied that the cryocauterization had been successful. Sometime between September 1983 and February 1984, B. J. began experiencing bleeding during and after intercourse. She returned to Dr. Lieberman with that complaint on February 23, 1984. He found the cervix bled when touched and he took another Pap smear. This test returned as a Class II. Since he felt that the procedure had worked in the past, Dr. Lieberman performed another cryocautery procedure on B. J. on March 8, 1984. On May 8, 1984, she came back to his office still complaining of bleeding. Her cervix appeared beefy red and Dr. Lieberman saw very small points of bleeding. He applied a coagulent to attempt to stop the bleeding. She returned two days later and more coagulent was applied to her cervix. On May 30, 1984, Dr. Lieberman applied hot cauterization to her cervix. B. J. never returned for further treatment from Dr. Lieberman. Instead, B. J. changed her Health Maintenance Organization (HMO) family practitioner and was referred to another OB/GYN physician, Dr. Grace Sarvotham. During her pelvic examination B. J. bled profusely and was referred to Dr. Robert DeMaio, a Board-certified OB/GYN, practicing in Winter Park, Florida. Dr. DeMaio examined B. J. on September 5, 1984. Utilizing a colposcope, which is a microscope-type instrument, to magnify the cervix, he found areas of abnormal blood vessels and abnormal white epithelium. Because of these abnormalities, he took a biopsy. The report on the biopsy was returned on September 6, 1984, with the finding exophytic squamous cell carcinoma -- in lay terms, cancer of the cervix that had shown evidence of spread. B. J. was referred to Dr. Thomas Castaldo, a gynecological oncologist, who admitted her for surgery on September 17, 1984, and performed a radical abdominal hysterectomy and bilateral pelvic node dissection. That means her uterus and cervix were removed, along with the supporting tissues and pelvic lymph nodes. She is still being followed by Dr. Castaldo and has received radiation therapy from Dr. John Looper, a Board-certified radiation oncologist in Orlando, Florida. Dr. Lieberman claims that by May 1984, he was beginning to feel that a biopsy should be done on B. J.'s cervix. This procedure involves the surgical removal of a small amount of tissue and its examination under a microscope. He was familiar with this procedure and was trained in it, as well as in the cotoposcopy procedure utilized by Dr. DeMaio. Except with a Class V Pap smear, which undeniably indicates cancer, a diagnosis cannot be made from a Pap smear. The abnormalities or inflammations noted with a Class II Pap smear are symptoms of some condition which must be diagnosed before they are treated. Dr. Lieberman's use of the cautery procedures prior to diagnosis served to temporarily mask the symptoms. His failure to diagnose B. J.'s condition prior to treatment, or to rule out cancer or precancerous condition was a departure from the standards of acceptable and prevailing medical practice. SUMMARY OF FINDINGS One of the most sensitive but essential functions of a fact finder is the resolution of conflicting testimony by weighing the credibility of witnesses. Disposition of the issues in this case involves almost exclusively that function. M. A.'s rambling and confused account of her life as a drug abuser in the 1970's, indiscriminately consuming vast quantities of controlled substances, was either zealous hyperbole or a candid revelation of her tortured former existence and mental state. Neither construction recommends the credibility of her allegations of Dr. Lieberman's wrongdoing. The agency failed to prove the specifics of those allegations. There were a few prescriptions, some of which were never recorded in Dr. Lieberman's office notes for this patient, contrary to his avowed practice. But those prescriptions in no way fully corroborated M. A.'s testimony. Likewise, the expert opinions based on review of office notes, medical records and the prescription forms were too equivocal to outweigh contrary opinions offered by Dr. Lieberman's experts. L. I. and D. B., in contrast, were convincing and competent witnesses. L. I. credibly explained how she could return twice to the scene of her rape. Her unwillingness to immediately report the incidents was also explained. D. B. stated at hearing that she did not receive any treatment in Dr. Lieberman's office on September 1, 1981. In an earlier, out-of-hearing statement, she established that she had been fitted with a diaphragm during the visit and prior to Dr. Lieberman's untoward conduct. The earlier statement is consistent with the office notes in records maintained by Dr. Lieberman. The inconsistent statements do not, however, impeach her allegation that Dr. Lieberman kissed and fondled her on that occasion. Dr. Lieberman claims that he has no independent recollection of the visits by these patients on the dates in question. He denies that he is a violent person who could have assaulted these women. Although sexual assaults are generally considered acts of violence, in these instances little force was required. He had established a relationship of trust and took advantage of that trust. His testimony that coitus is anatomically impossible with the woman in a seated position, likewise begs the question. L. I. described her position as seated on the examining table with her legs dropped, when the extension of the table was dropped by Dr. Lieberman. He positioned her, as she described, with his arm around her buttocks, moving her forward. A simple rotation of the anatomical chart, received in evidence as Respondent's Exhibit 12, demonstrates how entry could have been accomplished under those circumstances. Uncontroverted expert testimony established that the sexual activities by Dr. Lieberman with L. I. and D. B. were outside the scope of generally accepted examination or treatment of a patient. With regard to Patient B. J., the solid weight of expert evidence established that the failure to obtain appropriate tests was an unacceptable deviation from the standards of reasonable medical care. The wrongdoing was not, as argued by counsel for Respondent, the failure to diagnose B. J.'s cancer. The violation was the persistent treatment of symptoms whose etiology had not been established. The testimony of Dr. William Russell, one of Respondent's experts, regarding the use of Pap smears in the detection of cancer, was informative, but his opinion that a colposcopy or biopsy of B. J.'s cervix during Dr. Lieberman's treatment was unnecessary is not persuasive in the face of the overwhelming competent evidence presented by the agency's witnesses.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered by the Board of Medicine finding Robert A. Lieberman, M.D., guilty of sexual misconduct in the practice of medicine and failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and revoking his license to practice medicine. DONE and ENTERED this 13th day of April, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 13th day of April, 1989. APPENDIX Subsection 120.59(2), Florida Statutes, requires that if a party submits proposed findings of fact, the order must include a ruling on each. Counsel for Petitioner submitted a 101-page "proposed recommended order", with 599 separately numbered paragraphs styled "proposed findings of fact". The vast majority of these paragraphs are not proposed findings of fact, but rather are a summary statement of testimony of the witnesses, taken from the transcript of hearing and the two depositions of Petitioner's experts. The statements are not organized by issue or subject matter but faithfully follow the order in which the testimony was given at hearing. Although these statements have been read, no rulings need be made. Any rulings would be mere commentary on the testimony as summarized by Petitioner. Specific Rulings on Respondent's Proposed Findings of Fact (Case NO. 88-3333) Adopted in paragraph 1. Adopted in paragraphs 2 and 3. Adopted in paragraph 2. Adopted in paragraphs 4, 14 and 23, with the exception of the last sentence which is not addressed in the record. Adopted in substance in paragraph 4. Adopted in summary in paragraph 5, except that the number of months is 15, not 12. 7.-9. Adopted in summary in paragraph 10. 10.-12. Rejected as unnecessary. 13.-17. Adopted in summary in paragraph 6. 18.-45. Adopted in summary in paragraphs 5, 7 and 10. 46.-53. Rejected as unnecessary. 54. Adopted in substance in paragraph 4. 55.-60. Rejected as unnecessary. 61.-62. Adopted in paragraph 23. 63. Adopted in paragraph 24. 64.-65. Rejected as unnecessary 66. Adopted in paragraph 24. 67.-69. Rejected as unnecessary. Adopted in paragraph 43. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 15. 74.-75. Rejected as unnecessary. 76. Adopted in paragraphs 18 and 19, except that the record does not establish that a pelvic examina- tion was conducted on July 20, 1982. (Case NO. 88-3334) 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2 and 3. Adopted in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 29. Adopted in paragraphs 37 and 39. Adopted in paragraph 39. Adopted in paragraph 31. Adopted in paragraph 31, except that the record established that the condition is not unusual after a vaginal delivery. B. J.'s delivery was a Caesarean section. 11.-12. Adopted by implication in paragraphs 30 and 31. Adopted in paragraph 31. Rejected as contrary to the weight of evidence. Adopted in paragraph 32. Rejected as unnecessary. Adopted in paragraph 33. Rejected as unnecessary, but still implied in the finding in paragraph 34. 19.-21. Adopted in paragraph 34. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 35. 25.-26. Adopted in summary in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 38. 29.-30. Rejected as unnecessary, except the fact that she underwent radiation therapy, addressed in paragraph 38. COPIES FURNISHED: PETER FLEITMAN, ESQUIRE ONE DATRAN CENTER, SUITE 1409 9100 SOUTH DADELAND BOULEVARD MIAMI, FLORIDA 33156 THOMAS M. BURKE, ESQUIRE RICHARD A. SOLOMON, ESQUIRE 11 EAST PINE STREET POST OFFICE BOX 1873 ORLANDO, FLORIDA 32802 DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
Findings Of Fact Respondent is the state agency charged with regulating the practice of dentistry, pursuant to Sections 20.165, 20.42, and Chapters 455 and 466, Florida Statutes and was not a nominal party to the proceedings. Petitioner, John Allison Rowe, D.D.S., (hereinafter referred to as Petitioner Rowe), is a Florida licensed dentist having been issued license number DN-0009364. Petitioner Rowe, at all times material hereto, practiced through a professional service corporation with principal office in the State of Florida. Petitioner, Ralph E. Toombs, D.D.S., (hereinafter referred to as Petitioner Toombs), is a Florida licensed dentist having been issued license number DN-0007026. Petitioner Toombs, at all times material hereto, practiced through a professional service corporation, with principal office in the State of Florida. Petitioner Rowe and Petitioner Toombs each employed less than twenty- five (25) employees at the time this action was initiated. Petitioner Rowe and Petitioner Toombs each had a net worth, including both personal and business investments, of less than two million dollars. In or around 1988, and in or around 1989, Respondent received several complaints from insurance companies concerning Petitioner Rowe's treatment, services, and fees charged to patients through the Central Florida Dental Association and/or other entities. Each insurance company had obtained a review of the services, treatment, and fees charged to the patients and had included that information in their complaint to Respondent. As a result, Respondent began a series of investigations into the allegations against Petitioner Rowe, whose name had appeared as the treating or certifying dentist on all health insurance claim forms submitted on behalf of the patients. The insurance companies alleged that Petitioner Rowe's fees were excessive relative to the customary and usual fees charged for the services, that certain diagnostic tests had been provided to the patients although of questionable medical necessity and acceptance in the dental community, and that certain procedures had been performed in excess of the justified needs of the patient. During the course of the investigation, it became necessary for the Respondent to consult with the Probable Cause Panel on the Board of Dentistry on or about July 12, 1989, and on or about October 13, 1989, to obtain certain patient records without patient authorization. The Probable Cause Panel of July 12, 1989, was composed of members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer. Each of the panel members at the July 12, 1989, meeting indicated that they had received and reviewed the Department's investigative materials. The July 12, 1989, panel found-reasonable cause to believe that there was a question of the medical necessity for the treatment provided such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek the patient's records by subpoena. On or about October 13, 1989, the Respondent again consulted with panel members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer to determine if reasonable cause existed to obtain certain patient records as part of its investigation of Petitioner Rowe. Each of the panel members indicated at the October 13, 1989, meeting that he had received and reviewed the investigative materials presented by the Respondent. The October 13, 1989, panel found reasonable cause to believe that there was a question of medical necessity for the treatment provided to the patient such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek patients' records by subpoena. Following completion of its investigation, on or about April 10, 1991, Respondent initiated an action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the April 10, 1991, Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.W. DBPR Case No. 01-11379 Count II patient E.M. DBPR Case No. 89-02166 Count III patient J.T. DBPR Case No. 89-13187 Count IV patient M.Z. DBPR Case No. 89-02167 Count V patient M.R.V. DBPR Case No. 89-02372 Respondent alleged in the April 10, 1991 Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.W. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; and Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Patient E.M. (Count II) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient J.T. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.Z. (Count IV) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.R.V. (Count V) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. (Ex-A pgs. 1-18). The April 10, 1991 Administrative Complaint was filed at the direction of the November 2, 1990 Probable Cause Panel of the Board of Dentistry. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990 panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the meeting. After brief discussion and receipt of the advice of counsel, the Panel separately took up each investigative report but recommended that the Department consider consolidation of the charges into a single filed administrative complaint The Panel members felt very strongly about the charges as revealed by the investigative reports and consultant's opinions, and in accordance with Section 466.028(7), Florida Statutes, the panel recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek and expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about July 18, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, September 11, 1990, September 17, 1990, and September 18, 1990, Dr. Lilly issued individual detailed reports from review of the investigative materials noting several areas of concern with each patient's treatment and the billing associated with that treatment. As had the June 4, 1990, Probable Cause Panel, Dr. Lilly noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. The November 2, 1990, panel, composed of the same membership as the June 4, 1990, meeting, expressed similar concerns regarding Petitioner Rowe and an apparent lack of concern for treatment effectiveness. Panel member Robert Ferris, D.D.S. expressed praise for Dr. Lilly's reports noting that they were "excellent." The panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinion. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly found that in some cases diagnostic services had been billed twice on the same day although it was customary in the profession to perform the services in one session, that services had been billed which had not been provided to the patients, records were inadequate to justify those services provided, that treatment was provided without appropriate use of diagnostic information, orthotic devices were mischaracterized as surgical devices, fees greatly exceeded the usual and customary charges for certain services, questionable use of arthrogram studies was employed by Petitioner Rowe, certain other diagnostic studies conducted on the patients were of questionable medical necessity, and Petitioner Rowe had misdiagnosed a patient's condition. On or about July 24, 1991, Respondent initiated a second action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the July 24, 2991 Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.D. DBPR Case No. 01-11377 Count II patient R.M. DBPR Case No. 01-11378 Count III patient S.R. DBPR Case No. 01-12140 Respondent alleged in the July 24, 1991, Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.D. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; and Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Patient R.M. (Count II) Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry of dental hygiene. Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient S.R. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. The July 24, 1991, Administrative Complaint was filed at the direction of the April 10, 1991, Probable Cause Panel of the Board of Dentistry. The panel was composed of members Donald Cadle, D.M.D., William Robinson, D.D.S., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the April 10, 1991, panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the April 10, 1991, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the three investigative reports together and recommended that the Department file charges as a single filed administrative complaint. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the April 27, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about April 27, 1990, the department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about December 13, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about February 21, 1991, February 27, 1991, and February 28, 1991, Dr. Lilly issued individual detailed reports from review of the investigative materials again noting several areas of concern with each patient's treatment and the billing associated with that treatment. Dr. Lilly again noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. Dr. Lilly noted that, despite the verification of completeness of records executed by the records custodian and obtained during the investigation of the allegations against Petitioner Rowe, certain patient records and billing information were clearly missing from some patient files. Despite lack of detailed discussion about the Department's recommendations, the April 10, 1991, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly's findings from review of DBPR Case Numbers 01-11377, 01- 11378 and 01-12140 were not dissimilar from those found in reviewing other investigative reports concerning Petitioner. Respondent's investigation of the allegations against Petitioner Rowe was extensive and included information gathering and interviews with the patients, Petitioner Rowe, Frank Murray, D.D.S., and others. On or about December 20, 1990, Respondent initiated an action against Petitioner Toombs, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. The December 20, 1990, Administrative Complaint filed against Petitioner Toombs concerned allegations filed by patient J.T., who had also filed a similar complaint against Petitioner Rowe. Both Petitioner Rowe and Petitioner Toombs disclaimed any knowledge about the care and treatment J.T. had received from them. Petitioner Toombs claimed that Petitioner Rowe and Dr. Frank Murray were responsible for setting the fees charged for services. Petitioner Toombs claimed that he was aware excessive charges had been incurred by some patients who had seen Petitioner Rowe and that the dental practice was aware of the problem and had ignored the problem. Respondent's investigation of Petitioner Toombs was coordinated with its investigation of Petitioner Rowe. In the Administrative Complaint filed December 20, 1990, Respondent alleged that Petitioner Toombs committed the following violations: Patient J.T. Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient. The December 20, 1990, Administrative Complaint was filed at the direction of the November 2, 1990, Probable Cause Panel of the Board of Dentistry, which had also considered the investigative materials for Petitioner Rowe. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990, panel meeting, with the Department's recommendation that an administrative complaint be filed against Petitioner Toombs. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the November 2, 1990, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the investigative report and recommended that the Department file and administrative complaint against Petitioner Toombs. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek a suspension, probation, and fine in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative report to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The June 4, 1990, Probable Cause Panel expressed specific concerns about the billing practices and on the care provided to the patient, i.e., the immediate seeking of oral surgery prior to excluding the use of less invasive techniques. The Panel found that expert review as necessary. On or about July 18, 1990, Respondent forwarded the investigative report for Petitioner Toombs, as well as the reports for Petitioner Rowe, to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, Dr. Lilly issued his report from review of the investigative materials noting several areas of concern with patient J.T.'s treatment and the billing associated with treatment. Dr. Lilly noted that Petitioner Toombs seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and service. Despite lack of detailed discussion about the Department's recommendation for Petitioner Toombs, the November 2, 1990, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from the patient J.T., interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. Respondent's investigation of the allegations against Petitioner Toombs was extensive and included information gathering and interviews with the patient, Petitioner Rowe, Petitioner Toombs, subsequent providers, Frank Murray, D.D.S., and others. On or about July 24, 1991, Respondent amended the Administrative Complaint filed against Petitioner Toombs without substantially altering the alleged violations committed by Petitioner Toombs. In each case, Respondent was required by Section 455.225(4), Florida Statutes, to file the administrative complaints at the direction of the Probable Cause Panel for the Board of Dentistry and prosecute the administrative complaints against the Petitioners according to Chapter 120, Florida Statutes. Both Petitioner Rowe and Petitioner Toombs disputed the allegations of the administrative complaints and the cases were referred to the Division of Administrative Hearings for formal hearing. Petitioner Rowe, without objection from Respondent, sought consolidation of DOAH Case Number 91-03213, representing the charges of the April 10, 1991, Administrative Complaint against him, with DOAH Case Number 91- 6022, representing the charges of the July 24, 1991, Administrative Complaint against him. Petitioner Rowe's cases were consolidated into a single proceeding on or about October 2, 1991. On or about October 18, 1991, this Hearing Officer entered an Order to Show Cause why Petitioner Toombs' case should not be heard concurrently with Petitioner Rowe's consolidated cases. Respondent did not object to hearing the cases concurrently and an Order was issued on November 4, 1991, setting Petitioner Toombs case for hearing concurrently with Petitioner Rowe's consolidated cases. On or about November 4, 1991, Respondent with the full agreement and consent of Petitioners Rowe and Toombs, requested consolidation of the then existing two proceedings. On or about November 18, 1991, the proceedings against Petitioners Rowe and Toombs were consolidated into a single action by Order of this Hearing Officer. During discovery, Petitioner Rowe obtained the original patient records for the eight patients at issue in the consolidated proceeding from Dr. Murray and/or the Central Florida Dental Association. Counsel for Petitioner Rowe provided the Respondent with copies of the records he had obtained in discovery. Counsel for Petitioner Rowe found that approximately 426 pages of records were then contained in the files of Dr. Murray and/or the Central Florida Dental Association, which had not been previously provided to the Respondent despite certification that the records provided to Respondent were complete. The majority of the records obtained by Petitioner Rowe, subsequent to the original finding of probable causes, were records of billing information not previously contained in the patient records. Based on the additional records, Petitioner Rowe and the Respondent moved this Hearing Officer to permit Respondent to amend the administrative complaints against Petitioner Rowe, which request was granted by this Hearing Officer. On or about April 9, 1992, Respondent conferred with the Probable Cause Panel of the Board of Dentistry for the purpose of amending the administrative complaints against Petitioner Rowe. The April 9, 1992, Probable Cause Panel was composed of members William Robinson, D.D.S., Faustino Garcia, D.M.D., and Robert Hudson. Prior to presentation of the proposed amended administrative complaint to the April 9, 1992, Probable Cause Panel, Respondent obtained the assistance of Reda A. Abdel-Fattah, D.D.S. in evaluating the patient records and in the drafting of the amended complaint. Prior to the Panel's consideration of the investigative materials, the Respondent obtained from Petitioner Rowe approximately 426 additional pages from the patient records of the Central Florida Dental Association and/or Dr. Murray and received additional records and information through supplemental investigation. Before directing that an amended administrative complaint be filed against Petitioner Rowe, the panel members at the April 9, 1992, meeting indicated that he had received the investigative materials and reviewed the materials along with the Department's recommendation to amend the complaint. Following receipt of the material and after having the opportunity to inquire of counsel, the April 9, 1992, Probable Cause Panel directed that the proposed Amended Administrative Complaint be filed against Petitioner Rowe. The Amended Administrative Complaint was filed against Petitioner Rowe, at the direction of the April 9, 1992, Probable Cause Panel, on or about April 22, 1992, and alleged the following violations: Count I Section 466.028(1)(b), Florida Statutes by having had a license to practice dentistry acted against by the licensing authority of another state; and/or Section 466.028(1)(jj), Florida Statutes by having failed to report to the Board, in writing, within 30 days if action has been taken against one's license to practice dentistry in another state. Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1978) by making deceptive, untrue or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonable calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VIII patient S.R. DBPR No. 01-12140, DOAH 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count IX patient J.T. DBPR No. 89-13187, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count I of the Amended Administrative Complaint was based on records obtained from the Tennessee Board of Dentistry and had not been previously charged as a violation in this proceeding. Panel Member Donald Cadle, D.M.D., had originally requested in the meeting of April 27, 1990, that the Department included findings as to the Tennessee Board of Dentistry's discipline of Petitioner Rowe in its expert review as possible violation of Section 466.0268(1)(jj), Florida Statutes. Dr. Cadle withdrew his request, after discussion with Panel Member Robert Ferris, D.D.S., finding that the previous disciplinary action was too remote in time for the statute to be applicable in Petitioner Rowe's case. The Probable Cause Panel of April 9, 1992, revisited the issue of the Tennessee Board of Dentistry's discipline of Petitioner Rowe and found that it should be included in the current disciplinary proceeding as part of the amended complaint. The panel failed to recognize the effective date of Section 466.028(1)(jj), Florida Statutes. After considering the additional records provided by Petitioner Rowe and the records obtained in supplemental investigation, the Amended Administrative Complaint dropped the previous allegations that Petitioner Rowe had violated Section 466.028(1)(m), Florida Statutes by failing to keep adequate written records for each patient. The remaining allegations of the original administrative complaints filed against Petitioner Rowe were included in the Amended Administrative Complaint and the following additional allegations were made for each patient: Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry. Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Count VIII patient S.R. DBPR No. 01-12140, DOAH No. 91-6022 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Count IX patient J.T. DBPR No. 13187, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(jj), Florida Statutes was added as a disciplinary provision for the Board of Dentistry effective July 6, 1990, pursuant to Section 3, Chapter 90-341, Laws of Florida (1990). Section 466.028(1)(n), Florida Statutes was repealed effective April 8, 1992, pursuant to Section 6, Chapter 92-178 Laws of Florida (1992). A formal hearing was held on the charges of the Amended Administrative Complaints beginning on or about November 9, 1992, and ending on or about November 13, 1992. As sanction for his non-compliance with prehearing discovery, Petitioner Toombs was limited at the formal hearing to the cross-examination of witnesses and the ability to object to evidence but was not permitted to call witnesses or enter evidence on his behalf. At the formal hearing, the patient records were found to be inherently unreliable and untrustworthy as evidence, due to the inconsistencies found to then exist in the patient records. At the formal hearing, it was established that Frank Murray, D.D.S. had custody and control of the patient records and that he had full control over patient billing and the fees charged for the treatment or services rendered through the Central Florida Dental Association. At the time Petitioner Rowe provided treatment or services to the patients who were the subject of the administrative complaints and amended administrative complaints, Petitioner Rowe was an employee and a shareholder of the Central Florida Dental Association. At the time that Petitioner Rowe provided treatment or services to the patients at issue in the underlying disciplinary proceeding, Frank Murray, D.D.S. made all operational decisions affecting the clinic and its patients. Petitioner Toombs was an associate dentist working for the Central Florida Dental Association and was not a shareholder of the clinic. At the time these cases were investigated, Respondent permitted individuals from whom patient records were sought to copy those records and provide the records to Respondent with an executed verification of completeness of records. For each patient who was the subject of the Respondent's investigation, an employee of the Central Florida Dental Association copied the patient records and submitted the records to the Respondent's investigator with a verification of completeness of records. There was no reason for the investigator to question the accuracy of the executed verification of completeness of records and the patient records appeared generally consistent across patient files. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action finding that Petitioner Rowe had violated Section 466.028(1)(b), Florida Statutes. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action dismissing all charges against Petitioner Toombs and the remaining charges against Petitioner Rowe. At the time services were provided to the patients by Petitioners Rowe and Toombs, Section 466.018, Florida Statutes, required that there be a dentist of record identified in the patient record. Section 466.018, Florida Statutes (1987) provided that the dentist of record was presumed responsible for the patient's care and treatment unless otherwise noted in the record. The records maintained for each of the patients at issue in the underlying disciplinary proceeding revealed that either no dentist of record had been charted or that Petitioner Rowe was the treating dentist of record as indicated by the patient medical history form and the health insurance claim forms submitted on behalf of the patient. Absent the identification of the dentist of record in the chart, Section 466.018(2), Florida Statutes (1987) provided that the owner of the dental practice was the dentist of record for the patient, in this case, Frank Murray, D.D.S., Petitioner Rowe, and the other shareholders of the dental practice. Section 466.018(4), Florida Statutes provided that a dentist of record could be relieved of his/her responsibility to maintain dental records by transferring records to the owner dentist and maintaining a list of all records transferred. There was no evidence presented during the investigation of the underlying disciplinary proceeding or offered at formal hearing to demonstrate that either Petitioner Rowe or Petitioner Toombs had complied with Section 466.018(4), Florida Statutes in transferring patient records to Frank Murray, D.D.S. or the Central Florida Dental Association, i.e., a written statement signed by dentist of record, the owner of the practice, and two witnesses, that listed the date and the records transferred to either Frank Murray, D.D.S. or Central Florida Dental Association.
Recommendation Based on the foregoing, it is hereby, ORDERED: That Petitioners' requests for award of attorney's fees and costs are DENIED. DONE AND ORDERED this 23rd day of November, 1994, in Tallahassee, Leon County, Florida. MARK CLARK 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 23rd day of November, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioners, pursuant to Section 120.59(2), F.S. Adopted in Paragraph 1. & 3. Rejected as unnecessary. Adopted in part in Paragraph 64. The charges with regard to influence for financial gain were included in the amended complaint. & 6. Rejected as immaterial. The panel explained in an earlier meeting that its real concern was with the exercise of influence for financial gain. Rejected as contrary to the weight of evidence. Adopted in Paragraph 54. Rejected as argument that is not supported by the record or immaterial. Adopted in conclusions of law, as to section 57.111, but rejected-as immaterial as to section 120.59(6)(a), F.S. since the agency is not a "nonprevailing party". Adopted in conclusions of law. This finding is, however, disputed by Respondent. Adopted in Paragraphs 2 and 3. Adopted in Paragraph 4 14.-16. Rejected as contrary to the weight of evidence. 17.-19. Rejected as unnecessary, given the conclusion that the complaints were "substantially justified" at the time they were filed. COPIES FURNISHED: Mr. William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0765 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, Florida 32789 Jon M. Pellett, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, Florida 32399-0792
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
