00-003259PL
Department Of Health, Board Of Podiatric Medicine vs.
George C. P. Mcnally
Status: Closed
Recommended Order on Thursday, November 9, 2000.
Recommended Order on Thursday, November 9, 2000.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HEALTH, BOARD OF )
14PODIATRIC MEDICINE, )
17)
18Petitioner, )
20)
21vs. ) Case No. 00-3259PL
26)
27GEORGE C. P. MCNALLY, )
32)
33Respondent. )
35_________________________________)
36RECOMMENDED ORDER
38Notice was provided, and a formal hearing was held on
48October 11, 2000, at the Destin Community Center, in Destin,
58Florida, and conducted by Harry L. Hooper, Administrative Law
67Judge with the Division of Administrative Hearings.
74APPEARANCES
75For Petitioner: Wings S. Benton, Esquire
81Agency for Health Care Administration
86Office of the General Counsel
91Practitioner Regulation-Legal
93Post Office Box 14229
97Tallahassee, Florida 32317-4229
100For Respondent: George C. P. McNally, D.P.M., pro se
109Post Office Box 5585
113Destin, Florida 32540
116STATEMENT OF THE ISSUE
120Should Respondent's license to practice podiatric medicine
127be disciplined for failure to keep required written medical
136records, for prescribing or dispensing legend drugs other than in
146the course of his professional podiatric practice, for failing to
156practice as a reasonably prudent podiatric physician, and for
165practicing beyond the scope of his license?
172PRELIMINARY STATEMENT
174On June 13, 2000, Petitioner filed an Administrative
182Complaint against Respondent. On August 14, 2000, Respondent
190requested a formal hearing for the purpose of disputing the
200allegations of wrongdoing contained in the complaint. At the
209formal hearing, Petitioner offered Exhibits 1-26 which were
217admitted into evidence without objection. Petitioner presented
224the testimony of Sara Helen Lowe; Lloyd Eugene Richard; Patient
234B.R.; Patient B.R.'s wife; Barry C. Blass, D.P.M.; and the
244Respondent. Petitioner also presented the deposition testimony
251of Dr. Thomas L. Hicks, M.D. and Richard D. Roth, D.P.M. A
263Transcript was prepared and filed with the Division of
272Administrative Hearings on October 27, 2000. Both parties timely
281provided Proposed Recommended Orders which were considered in the
290preparation of the Recommended Order.
295FINDINGS OF FACT
2981. Petitioner is the state agency charged with regulating
307the practice of podiatric medicine pursuant to Section 20.43,
316Florida Statutes, and Chapters 456 and 461, Florida Statutes.
325Dr. McNally has been licensed without interruption to practice
334podiatry in the State of Florida since October 22, 1996. He has
346not been the subject of disciplinary action by the Board of
357Podiatry.
3582. Dr. McNally was licensed as a podiatrist in the State of
370Florida by the Agency for Health Care Administration (AHCA) in
380October 1996. He was born on June 19, 1969.
3893. Ms. Sara Helen Lowe, a pharmacist, is an inspector for
400AHCA. She conducted a survey of pharmacies in the vicinity of
411Destin and Ft. Walton area and discovered that Respondent had
421written multiple prescriptions for legend drugs which were in the
431name of Patient B.R. She also determined from her survey that
442Respondent had prescribed the legend drug Phentermine for six of
452his patients.
4544. A legend drug is a drug for which a prescription is
466required and includes Schedule II controlled substances under
474Chapter 893, Florida Statutes. A Schedule II controlled
482substance is a pharmaceutical which has medical uses and also has
493a potential for being abused.
4985. Mrs. B.R. is the wife of Patient B.R. She was aware
510that her husband received numerous prescriptions from Dr. McNally
519for multiple drugs including oxycodone and methadone in 1998 and
5291999. Mrs. B.R. was aware that her husband had an open wound on
542his foot for several years. She was also aware that he suffered
554chronic and severe pain from this condition.
5616. Mrs. B.R. was concerned about the amount of drugs being
572consumed by Patient B.R. and discussed this matter with Dr.
582McNally. During this conversation, Dr. McNally told her that,
"591B.R. was in chronic pain, and that the amount of medication that
603B.R. took was basically B.R.'s problem."
6097. Mrs. B.R. was angry with regard to the amount and type
621of drugs which were prescribed by Dr. McNally. However, she
631thought that during this time his foot wound was improving.
6418. Mrs. B.R. was aware that Dr. McNally brought drugs to
652patient B.R.'s hospital room when patient B.R. was hospitalized
661in November of 1998.
6659. Mrs. B.R. was aware that her husband was hospitalized on
676an emergency basis for an overdose of Tegrital, a drug designed
687to combat seizures. This drug was not prescribed by Dr. McNally.
698It was prescribed by another doctor.
70410. The pain that patient B.R. suffered caused a hardship
714in Mrs. B.R.'s home but she preferred that he take the pain
726medication rather than see him suffer.
73211. Patient B.R. lives in Destin with his wife. He is
743receiving disability payments due to a hip replacement, a knee
753replacement, and an ulcer on his right foot.
76112. In an effort to relieve the pain in B.R.'s foot
772Respondent prescribed Oxycodone, Endodan, Endocet, Methadone,
778Roxicet, Roxiprin, Percocet, Oxycontin, Morphine Sulfate Er, MS
786Contin, Oramorph SR, and Roxicodone. All of these are forms of
797oxycodone, methadone, or morphine, alone, or in combinations with
806acetaminophen. Dr. McNally prescribed approximately 8,705 units
814of oxycodone, 250 units of methadone, and 510 units of morphine
825for patient B.R. during the eighteen-month period he treated him.
835These drugs were prescribed to him subsequent to his first visit
846to Dr. McNally in 1997. All of the foregoing drugs are Schedule
858II controlled substances pursuant to Chapter 893, Florida
866Statutes.
86713. Patient B.R. obtained prescriptions during office
874visits and by telephoning Dr. McNally. When B.R. called Dr.
884McNally the doctor would ask him what drugs he wished to have and
897B.R. would tell him. Dr. McNally would then provide the
907prescription to a pharmacy telephonically. On at least one
916occasion the prescription was left inside the screen door of
926Dr. McNally's dwelling for Patient B.R. to pick up.
93514. Office visits were on some occasions made at the
945offices of Dr. Haire from which Dr. McNally occasionally
954practiced. During office visits Dr. McNally would sometimes take
963B.R.'s temperature. He checked B.R.'s vital signs approximately
971every six months.
97415. Patient B.R. got prescriptions from Dr. McNally when
983Dr. McNally was on an extended trip to Europe in early 1998 or
9961999.
99716. While Patient B.R. was a patient in the local hospital,
1008Dr. McNally brought him drugs because the pain medication
1017provided by the hospital was inadequate. Dr. McNally brought the
1027drugs to his hospital room four or five times. He bought these
1039drugs with patient B.R.'s credit cards. Patient B.R. was in the
1050hospital November 9 through 17, 1998.
105617. Dr. McNally submitted insurance claims for patient B.R.
1065for a portion of the time he was treating patient B.R. but
1077eventually stopped.
107918. Patient B.R. stopped seeing Dr. McNally. Subsequently,
1087a therapist, Sherry Levitis, recommended that patient B.R. attend
1096a pain management center in New Orleans. As a result of his
1108attendence there he experienced a decrease in needle-like pains.
1117The pain management succeeded in getting B.R. to gradually reduce
1127the amount of pain-killing drugs that he was ingesting.
113619. Patient B.R. never received any drug rehabilitation.
1144The pain management clinic taught him that he could get by
1155without the aid of drugs.
116020. Patient B.R. went to different pharmacies to have his
1170prescriptions filled because he thought they would question the
1179amount if he received too many drugs from the same business. He
1191was advised by Dr. McNally to avoid making frequent visits to the
1203same pharmacy.
120521. Patient B.R. never shared the drugs he obtained with
1215others.
121622. The use of these drugs changed patient B.R.'s
1225personality and caused domestic difficulties. He became
1232dependent on the drugs. Buying the drugs was a financial strain.
124323. At the time of the hearing patient B.R. still was
1254suffering from the ulcer on his right foot. Though he has had
1266surgery on the ulcer three times, it has not healed.
127624. Patient B.R. believes his emergency trip to the
1285hospital was the result of his taking Tegrital which is an anti-
1297seizure medicine. He believes he should have coordinated the
1306taking of this medicine with Dr. McNally and that his failure to
1318do so was the cause of the medical event which resulted in
1330emergency hospitalization. The medical doctor who prescribed the
1338Tegrital never asked him if he was taking other medications.
134825. Numerous efforts were made by Dr. McNally to address
1358patient B.R.'s foot condition and the resultant pain, including
1367surgery, orthotics, and pain management efforts.
137326. The drugs prescribed by Dr. McNally enabled patient
1382B.R. to get off of his couch and live a more normal life.
1395Patient B.R. had better results in addressing his pain and
1405treating his ulcer with Dr. McNally than with any other doctor.
141627. At the insistence of Petitioner, Dr. McNally supplied
1425to Petitioner what he claimed to be patient records in the case
1437of B.R. Petitioner believed these records to be phony.
144628. Dr. McNally prescribed Phentermine to patients and
1454asserted that he believed it would enhance circulation in the
1464lower extremities.
146629. Dr. McNally has been out of the country often and has
1478prescribed drugs for patients in the United States while he was
1489physically located in Italy. Dr. McNally prescribed drugs for
1498patient B.R. while in Europe. He provided patient B.R. with
1508numerous prescriptions for limited amounts because he did not
1517want him to have too many drugs in his possession at once.
152930. Dr. McNally, at the time of the hearing, was not
1540accepting new patients but was continuing to treat some old ones.
1551He no longer carries malpractice insurance.
155731. Dr. McNally claimed that the medical records in the
1567case of patient B.R., records which he supplied to ACHA at ACHA's
1579request, were prepared by him either at the time of patient
1590B.R.'s visits, a few days after a visit, or several days after a
1603visit.
160432. Dr. McNally used the word "analgesic" when preparing
1613records on patient B.R. He did not enter the actual names of the
1626drugs. "Analgesic" could encompass all drugs which relieve pain.
163533. Dr. McNally turned to pharmaceuticals in B.R.'s case
1644because he had tried all available alternative treatments without
1653success.
165434. Dr. McNally prescribed drugs for the benefit of patient
1664B.R. in the belief that he was doing what was best for his
1677patient.
167835. Barry C. Blass, D.P.M., testified. He is an expert in
1689the field of podiatry.
169336. Dr. Blass reviewed the evidence with regard to Dr.
1703McNally and his treatment of patient B.R. and with regard to Dr.
1715McNally's prescriptions of Phentermine for six patients.
172237. The pain-relieving drugs prescribed by Dr. McNally for
1731B.R. were far in excess of an amount which would be appropriate.
1743The amounts of legend drugs prescribed were about double that
1753permitted by the instructions contained on the container.
176138. Dr. Blass reviewed 229 pages of office notes addressing
1771the treatment of patient B.R. which purported to encompass the
1781period January 2, 1998 through September 29, 1999. Almost all of
1792the notes were identical with the exception of the dates. For
1803the notes to be legitimate, patient B.R. would have had to visit
1815Dr. McNally every day during October 1998 and almost everyday on
1826several other months.
182939. It is a deficiency for a physician to fail to note on
1842office notes that a patient has been prescribed legend drugs.
1852The standard of care requires a physician to sign office notes.
1863Respondent did not sign his notes. Additionally, the office
1872notes were inconsistent with the hospital records of B.R., in
1882that they indicated treatment in Dr. McNally's office when in
1892fact B.R. was on those dates resident in a hospital.
190240. The office notes provided by the Respondent were
1911manufactured, are not authentic, were not prepared at or near a
1922time of an actual office visit, if there was an office visit, and
1935are not, therefore, actual medical records addressing the
1943treatment of patient B.R.
194741. It is inappropriate for a physician to bring drugs into
1958a hospital for the use of a hospitalized patient.
196742. Phentermine is a diet drug which has no podiatric uses
1978and therefore should not be prescribed by a podiatrist.
1987Phentermine is usually prescribed as a remedy for exogenous
1996obesity.
199743. Thomas L. Hicks, M.D., is an expert in the field of
2009medicine. His testimony was provided by deposition.
201644. Dr. Hicks reviewed the medical records supplied by
2025Dr. McNally, and provided expert opinions based on that review.
2035It is inappropriate for a podiatrist to prescribe Phentermine.
2044Respondent's prescriptions for Phentermine were unsafe and in
2052excess of the customary dosages recommended by the manufacturer.
2061By writing these prescriptions, Dr. McNally practiced outside of
2070the scope of his license.
207545. The amount of Schedule II drugs prescribed for patient
2085B.R. was inappropriate, dangerous, and not justified by the
2094medical records. Dr. McNally wrote the prescriptions for patient
2103B.R. at very frequent intervals which, while peculiar, did not
2113violate the Practice Act. Usually when writing prescriptions for
2122chronic pain a physician prescribes for a longer period of time.
213346. Richard D.Roth, D.P.M., testified. He is an expert in
2143the field of podiatric medicine.
214847. Dr. Roth reviewed the medical records supplied by Dr.
2158McNally. The prescribing of Phentermine by Dr. McNally was
2167outside of the scope of his license and was potentially
2177dangerous.
217848. Dr. McNally's treatment notes were inadequate in that,
2187for example, they do not describe the exact location, size, or
2198depth of an ulcer, among other things. Neither do they describe
2209the types of analgesics prescribed even though massive doses of
2219narcotic analgesics were prescribed. Dr. McNally's records in
2227the case of patient B.R. are grotesquely incomplete. Most of the
2238notes provided by Dr. McNally were canned notes generated by a
2249computer.
2250CONCLUSIONS OF LAW
225349. The Division of Administrative Hearings has
2260jurisdiction over the subject matter. Section 120.57(1), Florida
2268Statutes.
226950. Section 461.013(1)(l), Florida Statutes, provides the
2276following ground for disciplinary action:
2281Failing to keep written medical records
2287justifying the course of treatment of the
2294patient, including, but not limited to,
2300patient histories, examination results, and
2305test results.
230751. Section 461.013(1)(o), Florida Statutes, provides the
2314following ground for disciplinary action:
2319Prescribing, dispensing, administering,
2322mixing, or otherwise preparing a legend drug,
2329including all controlled substances, other
2334than in the course of the podiatric
2341physician's professional practice. For the
2346purposes of this paragraph, it shall be
2353legally presumed that prescribing,
2357dispensing, administering, mixing, or
2361otherwise preparing legend drugs, including
2366all controlled substances, inappropriately or
2371in excessive or inappropriate quantities is
2377not in the best interest of the patient and
2386is not in the course of the podiatric
2394physician's professional practice, without
2398regard to her or his intent.
240452. Section 461.013(1)(s), Florida Statutes, provides the
2411following ground for disciplinary action:
2416. . . [T]he failure to practice podiatric
2424medicine at a level of care, skill, and
2432treatment which is recognized by a reasonably
2439prudent podiatric physician as being
2444acceptable under similar conditions and
2449circumstances. The board shall give great
2455weight to the standards for malpractice in s.
2463766.102 in interpreting this section. As
2469used in this paragraph, "repeated
2474malpractice" includes, but is not limited to,
2481three or more claims for medical malpractice
2488within the previous 5-year period resulting
2494in indemnities being paid in excess of
2501$10,000 each to the claimant in a judgment or
2511settlement and which incidents involved
2516negligent conduct by the podiatric
2521physicians. As used in this paragraph, "gross
2528malpractice" or "the failure to practice
2534podiatric medicine with the level of care,
2541skill, and treatment which is recognized by a
2549reasonably prudent similar podiatric
2553physician as being acceptable under similar
2559conditions and circumstances" shall not be
2565construed so as to require more than one
2573instance, event, or act.
257753. Section 461.013(1)(u), Florida Statutes, provides the
2584following ground for disciplinary action:
2589Practicing or offering to practice beyond the
2596scope permitted by law or accepting and
2603performing professional responsibilities
2606which the licensee knows or has reason to
2614know that she or he is not competent to
2623perform.
262454. The material allegations set forth in the
2632Administrative Complaint must be proven by clear and convincing
2641evidence. Department of Banking and Finance v. Osborne Stern and
2651Company, Inc. , 670 So. 2d 932 (Fla. 1996) and Ferris v.
2662Turlington , 510 So. 2d 292(Fla. 1987). In this case the
2672allegations of the complaint have been proven by clear and
2682convincing evidence.
268455. Rules 64B18-14.002(2)(m), (p), (t), and (v), Florida
2692Administrative Code, set forth the range of penalties which may
2702be imposed upon Respondent for violations of Sections
2710461.013(1)(l), (o), (s), and (u), Florida Statutes. The
2718guidelines for the four alleged violations contain penalties
2726ranging from reprimand to revocation and provide for fines of
2736$250 to $1,000.
274056. Rule 64B18-14.003, Florida Administrative Code,
2746provides for the following aggravating circumstances which may
2754affect the quantity of the penalty and the factors which bear on
2766this case have been duly considered in formulating the
2775recommendation. The factors are:
2779(1) The severity of the offense;
2785(2) The danger to the public;
2791(3) The number of repetitions of the
2798offense;
2799(4) The length of time since the violation
2807when no further complaints have been made
2814against the licensee;
2817(5) The number of times the licensee has
2825been previously disciplined by the Board;
2831(6) The length of time the licensee has
2839practiced without having any disciplinary
2844action taken;
2846(7) The damage to a patient caused by the
2855violation;
2856(8) Any efforts of rehabilitation by the
2863licensee;
2864(9) The licensee's actual knowledge of the
2871violation;
2872(10) Attempts by the licensee to correct or
2880stop the violation, or the refusal of the
2888licensee to correct or stop the violation;
2895(11) Related violations by the licensee in
2902Florida or in another jurisdiction, including
2908findings of guilt or innocence, penalties
2914imposed and penalties served;
2918(12) The degree to which the licensee was
2926involved in the violation;
2930(13) The degree to which the licensee
2937benefited from the violation;
2941(14) The cost of the disciplinary action.
294857. In considering the penalty to be recommended several of
2958the factors listed in Rule 64B18-14.003, Florida Administrative
2966Code, should be considered. These include the fact that the
2976offenses are serious offenses, the potential danger to the public
2986from Respondent's actions was great, and the prohibited
2994activities occurred many times over a substantial period of time.
3004It is particularly disturbing that he presented manufactured
3012medical notes to ACHA. On the other hand, there was no evidence
3024that anyone was actually harmed. Dr. McNally is a relatively
3034young person who has been practicing podiatry for only four
3044years, he believed that what he was doing was in the best
3056interests of his patients, and he received no benefit from the
3067violation.
3068RECOMMENDATIONS
3069Based upon the findings of fact and conclusions of law, it
3080is
3081RECOMMENDED:
3082That the Board of Podiatric Medicine enter a final order
3092finding that the Respondent, George C. P. McNally, failed to keep
3103required medical records during the period January 2, 1998
3112through September 29, 1999, in violation of Section
3120461.013(1)(l), Florida Statutes; that the Respondent prescribed
3127legend drugs other than in the course of his professional
3137podiatric practice during the period January 1988 through August
31461999, in violation of Section 461.013(1)(o), Florida Statutes;
3154that Respondent failed to practice as a reasonably prudent
3163podiatric physician during the period January 2, 1998 through
3172September 29, 1999, in violation of Section 461.013(1)(s),
3180Florida Statutes; and that Respondent practiced beyond the scope
3189of his license during the period January 1988 through August
31991999, in violation of Section 461.013(1)(u), Florida Statutes.
3207It is recommended that Respondent's license to practice podiatric
3216medicine be suspended for a period of six months, that he pay a
3229$2,000 fine, and that he pay for the cost of the investigation
3242and prosecution. The cost of investigation and prosecution shall
3251be assessed at the time the matter is presented to the Board of
3264Podiatric medicine.
3266DONE AND ENTERED this 9th day of November, 2000, in
3276Tallahassee, Leon County, Florida
3280___________________________________
3281HARRY L. HOOPER
3284Administrative Law Judge
3287Division of Administrative Hearings
3291The DeSoto Building
32941230 Apalachee Parkway
3297Tallahassee, Florida 32399-3060
3300(850) 488-9675 SUNCOM 278-9675
3304Fax Filing (850) 921-6847
3308www.doah.state.fl.us
3309Filed with the Clerk of the
3315Division of Administrative Hearings
3319this 9th day of November, 2000.
3325COPIES FURNISHED:
3327Wings S. Benton, Esquire
3331Agency for Health Care Administration
3336Post Office Box 14229
3340Tallahassee, Florida 32317-4229
3343George C. P. McNally
3347Post Office Box 5585
3351Destin, Florida 32540
3354Joe Baker, Jr., Executive Director
3359Board of Podiatric Medicine
3363Department of Health
33664052 Bald Cypress Way, Bin C07
3372Tallahassee, Florida 32399-1701
3375William W. Large, General Counsel
3380Department of Health
33834052 Bald Cypress Way, Bin A02
3389Tallahassee, Florida 32399-1701
3392Theodore M. Henderson, Agency Clerk
3397Department of Health
34004052 Bald Cypress Way, Bin A02
3406Tallahassee, Florida 32399-1701
3409NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3415All parties have the right to submit written exceptions within
342515 days from the date of this Recommended Order. Any exceptions
3436to this Recommended Order should be filed with the agency that
3447will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 11/09/2000
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- PDF:
- Date: 11/09/2000
- Proceedings: Recommended Order issued (hearing held October 11, 2000) CASE CLOSED.
- Date: 10/27/2000
- Proceedings: Transcript (Volume 1) filed.
- PDF:
- Date: 10/17/2000
- Proceedings: Ltr. to Judge H. Hooper from G. McNally In re: summary of case with recommendations filed.
- Date: 10/11/2000
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 10/06/2000
- Proceedings: Petitioner`s Notice of Filing Respondent`s Response to Petitioner`s First Reuest for Admissions filed.
- PDF:
- Date: 10/06/2000
- Proceedings: Petitioner`s Notice of Filing Respondent`s Response to Petitioner`s First Interrogatories filed.
- PDF:
- Date: 10/04/2000
- Proceedings: Amended Notice of Taking Deposition of S. Wilson, T. Underwood, R. Roth (filed via facsimile).
- PDF:
- Date: 10/03/2000
- Proceedings: Order issued. (Respondent shall produce the documents identified in the motion, not already produced, pertaining to the patient B. R. at the location agreed to by the parties).
- PDF:
- Date: 09/01/2000
- Proceedings: Petitioner`s First Request for Production of Documents (filed via facsimile).
- PDF:
- Date: 09/01/2000
- Proceedings: Certificate of Service of Petitioner`s First Interrogatories to Respondent (filed via facsimile).
- PDF:
- Date: 08/24/2000
- Proceedings: Notice of Hearing issued (hearing set for October 11, 2000; 9:30 a.m.; Destin, FL).
- PDF:
- Date: 08/18/2000
- Proceedings: Memorandum to Judge Adams from G. McNally Re: Revised Initial Order filed.
- Date: 08/10/2000
- Proceedings: Initial Order issued.