13-001205PL Department Of Health, Board Of Medicine vs. James Alexander Cocores, M.D. Status: Closed Recommended Order on Monday, June 24, 2013.

Summary: Petitioner established by clear and convincing evidence that Respondent violated section 458.331(m) and (t), Florida Statutes, as alleged in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 13 - 1205PL

JAMES ALEXANDER COCORES, M.D.,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P.

Resavage for final hearing by video teleconference on May 6,

2013, at sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jenifer L. Friedberg, Esquire

Daniel Hernandez, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Sean M. Ellsworth, Esquire

Ellsworth Law Firm

420 Lincoln Road, Suite 601

Miami Beach, Florida 33139

Anthony C. Vitale, Esquire

Anthony C. Vitale, P.A.

Law Center at Brickell Bay

2333 Brickell Avenue, Suite A - 1

Miami, Florida 33129

STATEMENT OF THE ISSUES

Whether, in treating a single patient, who was actually an

undercover law enforcement agent, Respondent, a medical doctor,

violated sections 458.331(1)(m), (q), and (t), Florida Statutes;

if so, whether (and what) disciplinary measures should be taken

against Respondent ' s license to practice medicine.

PRELIMINARY STATEMENT

On March 13, 2013, Petitioner, Department of Health ( " the

Department " ), issued an Administrative Complaint ( " Complaint " )

against Respondent, James Alexander Cocores, M.D. On or about

March 26, 2013, Dr. Cocores filed an Election of Rights,

disputing the material facts alleged in the Complaint and

requesting an administrative hearing. On April 5, 2013, the

Department referred the matter to the Division of Administrative

Hearings.

Administrative Law Judge John G. Van Laningham was assigned

to the matter, and the final hearing was scheduled for May 6,

2013. On May 3, 2013, this case was transferred to the

undersigned for all further proceedings .

The parties entered into a Joint Pre - hearing Stipulation

and stipulated to certain facts contained in Section E of the

Joint Pre - hearing Stipulation. To the extent relevant, those

facts have been incorporated in this Recommended Order.

Both parties were represented by counsel at the hearing,

which went forward as planned. The Department presented the

testimo ny of Detective Ian Stuffield and Petitioner ' s Exhibits

1 - 3, 5, 7 - 8, 12, and 14 were admitted without objection.

Petitioner also offered Exhibits 4 and 13, which were admitted

over objection. The Department ' s exhibits included the

deposition transcripts of Edward Dieguez, Jr., M.D., Scott

Teitelbaum, M.D., and L.D. Respondent presented the testimony

of four witness, E.L.T., E.H.H., Jr., C.D., and M.A.C.

The final hearing Transcript was filed on May 22, 2013.

The Department and Dr. Cocores timely filed proposed recommended

orders, which were considered in preparing this Recommended

Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged violations.

FINDINGS OF FACT

The Parties

1. At all times relevant to this case, James Alexander

Cocores, M.D., was licens ed to practice medicine in the s tate of

Florida, having been issued lic ense number ME 76635.

2. The Department has regulatory jurisdiction over

licensed physicians such as Dr. Cocores. In particular, the

Department is authorized to file and prosecute an administrative

complaint against a physician, as it has done in this instance,

when a panel of the Board of Medicine has found that probable

cause exists to suspect that the phy sician has committed a

disciplinable offense.

3. Here, the Department alleges that Dr. Cocores committed

three such offenses. In Count I of the Complaint, the

Department charged Dr. Cocores with the offense defined in

section 458.331(t), alleging that he committed medical

malpractice in the treatment of fictitious patient, L.D. In

Count II, Dr. Cocores was charged with prescribing, dispensing,

administering, mixing, or otherwise preparing a legend drug,

including any controlled substance, other than in the course of

his professional practice, an offense under section

458.331(1)(q). In Count III, the Department charged Dr. Cocores

with the offense defined in section 458.331(1)(m), alleging that

he failed to keep legible medical records that justified L. D. ' s

course of treatment.

Background and Initial Appointment

4. This matter had its genesis in July 2010, following an

anonymous complaint that Dr. Cocores was prescribing Roxicodone

( oxycodone hydrochloride) , Oxycontin ( oxycodone hydrochloride

control led release) , and other controlled substances, in

exchange for a fee, and without conducting an exam. The

complainant further alleged that Dr. Cocores would leave

prescriptions for controlled substances at the reception desk of

his office without seeing t he patient.

5. Based on these allegations, the Palm Beach County

Sheriff ' s Office initiated a criminal investigation. Initially,

an undercover agent attempted to obtain an appointment with

Dr. Cocores for pain management; however, he advised that he w as

not taking on any new patients for pain management. Thereafter,

an undercover officer (hereinafter referred to as L.D.) sought

to establish herself as a new patient in need of psychiatric

treatment. This strategy was successful, and L.D. obtained an

a ppointment with Dr. Cocores for August 10, 2011.

6. Prior to the first session, an Office - Based Opioid

Treatment Order (OBOT Order) was obtained that allowed law

enforcement to create undercover audio and video recordings of

the sessions by and between L.D. and Dr. Cocores.

7. On August 20, 2011, L.D. presented to Dr. Cocores. As

is customary, L.D. completed a lengthy medical questionnaire.

In response to the " Presenting Problems " section, L.D. noted

" not feeling like me anymore. " She further not ed , inter alia,

that she (1) fatigued easily, (2) was easily distracted, (3) had

problems focusing or concentrating, (4) had memory difficulties,

(5) believed she was depressed, (6) sometimes had disorganized

thinking, social isolation, binged or purged fo od, anxiety/panic

attacks , (7) had trouble sleeping and often wakes during the

night, (8) experienced weekly headaches, (9) had mood swings,

and (10) was having financial problems.

8. L.D. ' s questionnaire further noted that she felt

distant from her husb and a t times and attributed the same to the

loss of her brother. Concerning her physical condition, L.D.

noted that her last physical exam was approximately two weeks

prior and that she had fa llen off of a horse in February 2011.

Absent from the question naire was any indication of pain.

9. L.D. further documented in the questionnaire that she

had not had any previous psychiatric or chemical dependence

treatment and that there was no family psychiatric history. She

also noted daily use of caffeine, al cohol, codeine, pain

killers, and sleeping pills (six months prior). L.D. listed

Roxicodone, Xanax (alprazolam) , and ibuprophen , as her current

medications.

10. During the initial consultation, L.D. explained that

her issues stemmed from her decision t o remove her brother from

life support following a motorcycle accident around Christmas of

2010. L.D. advised Dr. Cocores that subsequent to the accident

" things just aren ' t right any more " and that she felt numb and

was " just going through the motions. "

11. In addition to providing pertinent family history,

L.D. discussed her sleeping problems. When Dr. Cocores inquired

into the horse accident, L.D. advised she had been under the

care of a chiropractor, as well as a pain management physician

who was prescribing her oxycodone , Xanax, and ibuprophen .

During this initial session, L.D. did not request any

medications and none were suggested or prescribed by

Dr. Cocores.

12. The initial session included discussions on

nutritional counseling, guidelin es for bereavement, techniques

for mitigating pain in her back , and talk - therapy. At the

conclusion of the first session, L.D. and Dr. Cocores agreed to

reduce further sessions from one hour to a half - hour, due to her

financial hardship.

13. Dr. Cocor es ' s medical notations for the first session

are less than one page and reflect that the next discussion will

focus upon the decision to remove her brother from life support.

September 7, 2011 Session

14. On September 7, 2011, L.D. presented to Dr. Coco res

for a follow - up visit. L.D. and Dr. Cocores return ed to the

topic of remov ing L.D.'s brother from life - support. L.D.

advised Dr. Cocores that she had discussed the same with her

pastor, and a discussion followed generally concerning guilt and

anger.

15. L.D. initiated a conversation concerning her sleep

issues. She advised Dr. Cocores that she had been without Xanax

for approximately three weeks, and, therefore, she had been

taking her husband ' s Ambien at night. She explained that her

pain manag ement physician had been " shut down by the DEA or

something. "

16. L.D. a dvised Dr. Cocores that her pain management

physician possessed a former MRI from an automobile injury, as

well as X - rays ; however, she was not sure she could " get all

that. " When L.D. inquired as to whether Dr. Cocores could help

her, the following dialogue transpired:

D R. COCORES: Well, Xanax, I can do. And

[the pain management physician] wasn ' t

supposed to be writing this Ï that o xycodone

unless he ' s a psychiatrist.

L.D.: O h, really?

DR. COCORES: Yeah. And then once Ï

L.D.: He didn ' t say that to me. Maybe

(Inaudible)

DR. COCORES: (Inaudible.)

L.D.: Well, apparently, they were after

him.

DR. COCORES: They came after me, and I had

to change my ways. And Ï but I am th e

psychiatrist. So they, so far, are not

bothering me. So I can Î I Î so he wasn ' t a

psychiatrist. He Î one of the reasons he

might have gotten busted is because he was

giving out psychiatric meds with pain

medication. You aren ' t supposed to do that

unle ss you are a psychiatrist. And,

basically anyone that writes o xycodone is

subject to investigation. And so I stopped

writing o xycodone since the DEA was last

here in February. And so Î and they know

I ' m not taking any new pain people. But

what I can do is I certainly can write the

Xanax, and I can certainly write the Motrin.

As far as o xycodone , the only thing I could

give you to replace it, is either Î I would

prefer Vicodin 10 - milligrams if you can

tolerate it and don ' t get sick on it. That

would be best.

L.D.: Right.

DR. COCORES: I would rather avoid Percocet,

which is o xycodone 10.

L.D.: Right.

17. Thereafter, L.D. advised Dr. Cocores that she had

previously taken Percocet without issue. L.D. again reiterated

that she had fallen from a horse; however, she responded

affirmatively to Dr. Cocores ' s question that she did not have

surgery for that event. As a result, Dr. Cocores noted that,

" [s]o then you also need to get a copy of an MRI for the next

time; although, it ' s not as crucial with the Vicodin. " He also

noted that, " [w]hat ' s good about Vicodin is that you can get

refills on it. "

18. Respondent prescribed 30 dosage units of Xanax 1 mg

and 120 dosage unites of Vicodin 1 / 10/325 mg to L.D. on

September 7, 2011. Dr. Cocores noted that, " [w]ell, if you are

going to continue with the pastor, you have enough medicines

her e for three months. And so that will save you some money.

And you can continue with him and then if you need some spot

checks for therapy, you can come in. "

19. The totality of Dr. Cocores ' medical notes for the

September 7, 2011 , session are as follows:

RX Vicodin 10/325 #120

RX Xanax 1mgLS #30

Subsequent Sessions

20. L.D. presented to Dr. Cocores on November 10, 2011,

just shy of two months since her last visit. During this " spot

check " , L.D. and Dr. Cocores very briefly discussed artificial

sweeteners and then transitioned to whether the medications were

helping L.D. s leep. L.D. advised Dr. Cocores that she had been

out of Xanax " for a little bit becaus e I think you Î I only got

like two months. "

21. L.D. advised Dr. Cocores that she didn ' t like the

Vicodin and was hoping to get back on either oxycodone or

Percocet. 2 / She informed Dr. Cocores that she didn ' t know who

else to go to. Dr. Cocores inst ructed L.D. that, " we can ' t do

oxycodone . It ' s just too expensive and too highly scrutinized

and too unavailable. " Instead, he notified L.D. that " we could

do four Percocet, if you want to. "

22. Dr. Cocores informed L.D. that the Xanax could be

renew ed; however, the Percocet could not . As such, it was

agreed that L.D. would make a return appointment in one month.

On this date, Dr. Cocores prescribed 30 dosage units of Xanax 1

mg and 120 dosage units of Percocet 10/325 mg to L.D.

Dr. Cocores ' medica l notations for the November 10, 2011 , visit

are as follows:

D/C Vicodin

Percocet 10/325

Xanax 1mg LS #30

23. On December 8, 2011, L.D. returned to Dr. Cocores, as

scheduled. After discussing various religious traditions,

Dr. Cocores segued into whet her the medications were working for

L.D. She responded affirmatively; however, she noted that she

becomes nauseous on occasion. Thereafter, the conversation

primarily focused on nutrition. Dr. Cocores also inquired into

her pain. L.D. responded by inf orming Dr. Cocores that her pain

was in the thoracic lumbar area and primarily occasioned upon

picking up her minor child.

24. Dr. Cocores prescribed 30 dosage units of Xanax 1 mg

and 120 dosage units of Percocet 10/325 mg to L.D. Dr. Cocores '

medical notes for the December 8, 2011 , visit are as follows:

Percocet 10/325 #120

Xanax 1mg #30

25. L.D. ' s next spot check with Dr. Cocores occurred on

January 4, 2012. On this occ asion after L.D. wished Dr. Cocores

a Happy New Year and apologized for be ing 15 minutes late,

Dr. Cocores immediately stated, " Well, I ' ll try to get that Ï what

you need; I guess you just need a refill? " L.D. then advised

Dr. Cocores that she was leaving for a ski trip and requested

something stronger like " the oxies that I used t o take. "

Dr. Cocores refused this request noting that " they ' re

unobtainable and they ' re extremely expensive. " He further noted

that, " there ' s just too much scrutiny around those medicines. "

26. After disc ussing vacation plans, a follow - up

appointmen t was scheduled. Dr. Cocores again prescribed 30

dosage units of Xanax 1 mg and 120 dosage units of Percocet

10/325 mg to L.D. On this occasion, Dr. Cocores ' medical notes

simply provide: " Rxs. "

27. On February 1, 2012, L.D. returned to Dr. Cocores.

Again, Dr. Cocores prescribed 30 dosage units of Xanax 1 mg and

120 dosage units of Percocet 10/325 mg to L.D. Again, his

medical notes for this visit provide: " Rxs. "

28. L.D. returned to Dr. Cocores on February 29, 2012.

After discussing L.D. ' s c lothing accessories, Dr. Cocores

inquired if the two medicines were " working out all right. "

L.D. responded that things were going really well and she was

staying busy with her child. He further asked if she was still

attempting to minimize the daily dam age to her spine based on

correct posture. She noted that she walks big dogs, and picks

up her child.

29. Dr. Cocores confirmed that the Percocet and Xanax were

not impairing her ability " to drive or be safe. " In response,

L.D. noted that she gets a foul stomach every once in awhile.

Dr. Cocores opined that he thought it was the Tylenol more than

the Percocet. L.D. agreed and explained that was why she would

rather just have the oxycodone . Dr. Cocores replied to this

request by stating, " Is that wh at you want to do? "

30. Thereafter, Dr. Cocores prescribed 30 dosage units of

Xanax 1 mg and 75 dosage units of oxycodone 15 mg to L. D . on

February 29, 2012. His medical records for that occasion simply

provide: Å (change) Perc ã Oxy 15 #75.

31. On March 28, 2012, L.D. returned to Dr. Cocores.

After initial greetings, Dr. Cocores confirmed that L.D. had

switched to oxycodone from Percocet and inquired as to where she

obtained the prescription. He then confirme d that L.D. was

" trying to minimize the injury that you inflict upon yourself

every day with physical exercise. " Dr. Cocores then proceeded

to request an updated MRI " or else I can ' t prescribe it anymore

because they ' re getting very strict with that stuff . "

32. L.D. also advised that she needed additional Xanax and

Dr. Cocores confirmed through L.D. that the Xanax did not

interefere with her functionality. He also asked L.D. whether

the oxycodone interfered with her ability to drive or her

coordinatio n, to which she said it did not.

33. Dr. Cocores prescribed 30 dosage units of Xanax 1 mg

and 75 dosage units of oxycodone 15 mg to L.D . on February 29,

2012. His medical records for that occasion simply provide:

Rx Oxy 15 #75

Rx Xanax 1mg #30

34. L.D. ' s last visit to Dr. Cocores occurred on April 25,

2012. Dr. Cocores asked, " So how is the oxycodone and the Xanax

working for you, okay? L.D. replied, " I mean, I Î I guess I ' ve

been doing pretty good, you know. " Again, Dr. Cocores asked her

whether it interfered with her coordination or driving. L.D.

confirmed that she does " okay. " Dr. Cocores also confirmed that

L.D. had not reinjured her back. L.D. replied that she had not

but still lifts her child and walks big dogs and that she gets

by.

35. There is no evidence that L.D. provided an updated MRI

at any point during this session. Notwithstanding Dr. Cocores ' s

previous demand of an updated MRI as a condition precedent to

further prescriptions for oxycodone , he prescribed 30 dosage

units of Xa nax 1 mg and 75 dosage units of oxycodone 15 mg to

L. D . on April 25 , 2012. With the exception of writing the date,

Dr. Cocores did not author any medical records or notations for

this visit.

Expert Testimony

A. Medical Malpractice and Recordkeeping

3 6. Petitioner offered the deposition of Dr. Edward

Dieguez, Jr., M.D., as an expert in pain management.

Dr. Di e guez is a diplomat e of the American Academy of Pain

Management , an anesthesiologist , and chronic pain management

specialist. Dr. Dieguez opin ed that Dr. Cocores fell below the

standard of care for the use of controlled substances for the

treatment of L.D. ' s pain, as set forth in Florida Administrative

Code Rule 64B8 - 9.013. 3 /

37. Dr. Dieguez opined that Dr. Cocores was deficient in

every res pect of the rule. Specifically, Dr. Dieguez testified

that Dr. Cocores failed to comply with the standard of care in

the following respects: 1) failed to perform and document a

history and physical examination appropriate for a patient with

pain; 2) fail ed to establish sound clinical grounds to justify

the need for the therapy instituted; 3) failed to establish a

treatment plan, delineating any objectives that he used to

determine treatment success, such as pain relief and improved

physical and psychologi cal function; 4) failed to use any other

modalities of treatment such as interventional techniques, and

failed to request consultations with other specialists such as

interventions, orthopaedic surgeons, neurosurgeons, or pain

specialists; 5) failed in att empting to prevent drug abuse and

diversion; 6) failed to document evidence to support any

diagnostic impression for the therapy instituted and ; 7) failed

to properly document the medication s prescribe d including the

strength , number , frequency , and date o f issuance.

38. Dr. Dieguez also opined that the medical records

relating to Dr. Cocores ' s treatment of L.D. w ere deficient.

Dr. Dieguez succinctly opined that, " there was basically no

medical records. "

39. The undersigned finds that the testimon y of

Dr. Dieguez is credible. The undersigned concludes , and

Dr. Cocores concedes, that the Department presented sufficient

evidence to establish that Dr. Cocores breached the prevailing

professional standard of care in prescribing pain medication to

L. D., as set forth in r ule 64B8 - 9.013 , thus violating section

458.331(1)(t)(1)(Count I), and that Dr. Cocores failed to keep

appropriate medical records as required by section

458.331(1)(m)(Count III).

40. The Depa rtment also presented the testimony of i ts

second expert witness, Scott Teitelbaum, M.D., by deposition

transcript. Dr. Teitelbaum, is certified by the American Board

of Pediatrics and the American Board of Addiction Medicine. He

is an associate professor at the University of Florida,

and is t he Vice - Chairman of the Department of Psychiatry.

Dr. Teitelbaum practices psychiatry on a daily basis.

41. Dr. Teitelbaum confirmed that rule 64B8 - 9.013 applies

to physicians who practice psychiatry in the s tate of Florida

when those physicians pr escrib e controlled substances for the

treatment of their patients ' pain. He further opined that

Vicodin, Percocet, and oxycodone are not medications used to

treat psych iatric disorders or conditions, and, therefore,

Dr. Cocores would have breached the st andard of care in

prescribing the same in the treatment of any psychiatric

condition or mental health disorder.

42. Dr. Teitelbaum testified that Dr. Cocores prescribed

Xanax to L.D. fo r sleep issues. In his opinion, Dr. Cocores

breached the standard o f care in this regard, because he did not

obtain a proper history, which would provide the appropriate

rationale for the prescription. Additionally, Dr. Teitelbaum

opined that Dr. Cocores breached the standard of care in failing

to document and monitor th e efficacy of the Xanax prescription.

43. Dr. Teitelbaum also opined that the combination of

Xanax (b enzodiazepine ) with an opioid (such as oxycodone ) can

create a great risk for adverse medical consequences. He

explained that a physician prescribing s uch a combination must

complete a thorough assessment of any substance abuse disorder;

conduct drug testing and document the use or non - use of other

drugs the patient may be taking; and inquire regarding the

patient ' s alcohol usage.

44. Dr. Teitelbaum o pined that Dr. Cocores did not take

the above - noted precautionary measures, and, therefore breached

the standard of care in prescribing Xanax and oxycodone

contemporaneously. The undersigned finds Dr. Teitelbaum ' s

testimony to be credible and that it supp orts an additional and

independent basis for finding that Dr. Cocores violat ed section

458.331(1)(t)(1)(Count I).

B. Course of Physician ' s Professional Practice

45. Dr. Dieguez further testified that Dr. Cocores was not

practicing medicine during the se ssions with L.D. Dr. Deiguez ' s

testimony in this regard is rejected. Dr. Dieguez is not a

psychiatrist, has never practiced psychiatry, and conceded that

he could not testify regarding whether the interactions by and

between Dr. Cocores and L.D. met or b reached the standard of

care from a psychiatric point - of - view.

46. Although Dr. Teitelbaum testified that he was unclear

as to " what was being addressed with respect to the medications

that were being prescribed, " h e did not offer an opinion that

Dr. C ocores was not practicing medicine. The undersigned finds,

as a matter of ultimate fact, that Dr. Cocores ' s conduct did not

occur outside the practice of medicine, and, therefore, he is

not guilty of violating section 458.331(1)(q).

Mitigation

47. Dr . Cocores presented the testimony of four current or

former patients to testify on his behalf. All four indicated

that Dr. Cocores is a trustworthy and effective physician that

they would recommend t o other patients.

48. No evidence was presented that Dr. Cocores has been

previously disciplined.

CONCLUSIONS OF LAW

49. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to section 120.57(1), Florida Statutes.

50. This is a disciplin ary proceeding in which the

Department seeks to discipline Dr. Cocores ' s license to practice

medicine. Accordingly, the Department must prove the

allegations contained in the Administrative Complaint by clear

and convincing evidence. Dep ' t of Banking & F in., Div. of Secs.

& Investor Prot. v. Osborne Sterne, Inc. , 670 So. 2d 932, 935

(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292, 294 (Fla.

1987).

51. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), t he Court

developed a " workable definition of clear and convincing

evidence " and found that of necessity such a definition would

need to contain " both qualitative and quantitative standards. "

The Court held that:

[C]lear and convincing evidence requires

t hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking confusion as

to the facts in issue. The evidence must be

of such weight that it produces in the mind

of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court ' s description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that " [a]lthough this standard of proof may

be met where the evidenc e is in conflict . . . it seems to

preclude evidence that is ambiguous. " Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991);

rev. denied , 599 So. 2d 1279 (Fla. 1992)(citations omitted).

52. Section 458.331(1), Flor ida Statutes, authorizes the

Board of Medicine to impose penalties ranging from the issuance

of a letter of concern to revocation of a physician ' s license t o

practice medicine in Florida i f a physician commits one or more

acts specified therein.

53. In its Complaint, the Department alleges that

Dr. Cocores is guilty of: committing medical malpractice (Count

I); prescribing a legend drug other than in the course of his

professional practice (Count II); and failing to keep sufficient

medical records (Cou nt III).

54. In Count I of the Administrative Complaint, Petitioner

contends that Respondent violated section 458.331(1)(t)(1),

which provides:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s . 456.072(2):

* * *

(t) Notwithstanding s. 456.072(2) but as

specified in s. 456.50(2):

1. Committing medical malpractice as

defined in s. 456.50. The board shall give

great weight to the provisions of s. 766.102

when enforcing this paragraph. Medi cal

malpractice 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 par agraph. A

recommended order by an administrative law

judge or a final order of the board finding

a violation under this paragraph shall

specify whether the licensee was found to

have committed " gross medical malpractice, "

" repeated medical malpractice, " o r " medical

malpractice, " or any combination thereof,

and any publication by the board must so

specify.

55. This is a case of medical malpractice, not gross

medical malpractice or repeated medical malpractice. Section

456.50(1)(g) defines " medical malpr actice " as:

[T]he fail ure to practice medicine in

accordance with the level of care, skill,

and treatment recognized in general law

related to health care licensure. . . .

56. Section 456.50(1)(e) provides: " Level of care, skill,

and treatment recogn ized in general law related to health care

licensure " means the standard of care specified in s. 766.102. "

Section 766.102(1), in turn, provides:

The prevailing professional standard of care

for a given health care provider shall be

that level of care, sk ill, and treatment

which, in light of all relevant surrounding

circumstances, is recognized as acceptable

and appropriate by reasonably prudent

similar health care providers.

57. The Department contends the following acts or

omissions on behalf of Dr. Cocores constitute failures in the

prevailing standard in care: failing to conduct a history and

physical examination on L.D. at any time; failing to order

appropriate diagnostic or objective tests for L.D.; prescribing

controlled substances to L.D. witho ut medical justification;

prescribing inappropriate quantites of controlled substances to

L.D.; failing to establish a treatment plan for the treatment of

L.D. ' s pain; failing to employ other modalities for the

treatment of L.D. ' s pain; failing to request consultations with

other specialists for the treatment of L.D. ' s pain; and failing

to monitor L.D. for drug abuse and/or diversion of the

medications which he prescribed to her.

58. Rule 64B8 - 9.013 (3) defines, to the extent of its

reach, the standard of care for a physician ' s use of controlled

substances:

(3) Standards. The Board has adopted the

following standards for the use of

controlled substances for pain control:

(a) Evaluation of the Patient. A complete

medical history and physical examinat ion

must be conducted and documented in the

medical record. The medical record shall

document the nature and intensity of the

pain, current and past treatments for pain,

underlying or coexisting diseases or

conditions, the effect of the pain on

physical a nd psychological function, and

history of substance abuse. The medical

record also shall document the presence of

one or more recognized medical indications

for the use of a controlled substance.

(b) Treatment Plan. The written treatment

plan shall sta te objectives that will be

used to determine treatment success, such as

pain relief and improved physical and

psychosocial function, and shall indicate if

any further diagnostic evaluations or other

treatments are planned. After treatment

begins, the phys ician shall adjust drug

therapy, if necessary, to the individual

medical needs of each patient. Other

treatment modalities or a rehabilitation

program may be necessary depending on the

etiology of the pain and the extent to which

the pain is associated wi th physical and

psychosocial impairment.

(c) Informed Consent and Agreement for

Treatment. The physician shall discuss the

risks and benefits of the use of controlled

substances with the patient, persons

designated by the patient, or with the

patient ' s surrogate or guardian if the

patient is incompetent. The patient shall

receive prescriptions from one physician and

one pharmacy where possible. If the patient

is determined to be at high risk for

medication abuse or have a history of

substance abuse, th e physician shall employ

the use of a written agreement between

physician and patient outlining patient

responsibilities, including, but not limited

to:

1. Urine/serum medication levels screening

when requested;

2. Number and frequency of all prescript ion

refills; and

3. Reasons for which drug therapy may be

discontinued (i.e., violation of agreement).

(d) Periodic Review. Based on the

individual circumstances of the patient, the

physician shall review the course of

treatment and any new informati on about the

etiology of the pain. Continuation or

modification of therapy shall depend on the

physician ' s evaluation of the patient ' s

progress. If treatment goals are not being

achieved, despite medication adjustments,

the physician shall reevaluate the

appropriateness of continued treatment. The

physician shall monitor patient compliance

in medication usage and related treatment

plans.

(e) Consultation. The physician shall be

willing to refer the patient as necessary

for additional evaluation and tr eatment in

order to achieve treatment objectives.

Special attention must be given to those

pain patients who are at risk for misusing

their medications and those whose living

arrangements pose a risk for medication

misuse or diversion. The management of pain

in patients with a history of substance

abuse or with a comorbid psychiatric

disorder requires extra care, monitoring,

and documentation, and may require

consultation with or referral to an expert

in the management of such patients.

(f) Medical Reco rds. The physician is

required to keep accurate and complete

records to include, but not be limited to:

1. The complete medical history and a

physical examination, including history of

drug abuse or dependence, as appropriate;

2. Diagnostic, therapeut ic, and laboratory

results;

3. Evaluations and consultations;

4. Treatment objectives;

5. D iscussion of risks and benefits;

6. Treatments;

7. Medications (including date, type,

dosage, and quantity prescribed);

8. Instructions and agreements;

9. Drug testing results; and

10. Periodic reviews. Records must remain

current, maintained in an accessible manner,

readily available for review, and must be in

full compliance with Rule 64B8 - 9.003, F.A.C,

and Section 458.331(1)(m), F.S. Records

must remain current and be maintained in an

accessible manner and readily available for

review.

(g) Compliance with Controlled Substances

Laws and Regulations. To prescribe,

dispense, or administer controlled

substances, the physician must be licensed

in th e state and comply with applicable

federal and state regulations. Physicians

are referred to the Physicians Manual: An

Informational Outline of the Controlled

Substances Act of 1970, published by the

U.S. Drug Enforcement Agency, for specific

rules gover ning controlled substances as

well as applicable state regulations.

59 . As detailed in the findings of fact above, the

undersigned concludes, and Dr. Cocores concedes, that the

Department has proved standard - of - care violations in prescribing

pain medica tions to fictitious patient, L.D., in violation of

section 458.331(1)(t).

60. In Count II of the Administrative Comp laint, the

Department avers that Dr. Cocores violated section

458.331(1)(q), which provides:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(q) Prescribing, dispensing, administering,

mixing, or otherwise preparing a legend

drug, including any controlled substance,

other than in the course of the physician ' s

professional practice. For the purposes of

this paragraph, it shall be legally presumed

that prescribing, dispensing, administering,

mixing, or otherwise preparing legend drugs,

including all controlled substances,

inappropriately or in excessive or

in appropriate quantities is not in the best

interest of the patient and is not in the

course of the physician ' s professional

practice, without regard to his or her

intent.

61. As concluded in the preceding section of this

Recommended Order, Dr. Cocores b reached the applicable standard -

of - care in prescribing controlled substances to fictitious

patient, L.D. The undersigned cannot conclude, however, that

his conduct occurred outside the practice of medicine, a

required element of a section 458.331(1)(q) vi olation.

62. As detailed in the findings of fact, the only credible

evidence presented on this issue w as provided by Dr. Teitelbaum.

Although understandably unclear as to " what was being addressed

with respect to the medications that were being prescri bed, "

Dr. Teitelbaum did not go so far as to opin e that Dr. Cocor es

was not practicing medicine.

63. The undersigned concludes that a reasonable

interpretation or characterization of the first two sessions by

and between Dr. Cocores and L.D. would be that of talk - therapy.

The balance of the " spot check " sessions, admittedly short in

duration, may be properly viewed as potential prescription

adjustment sessions. The Department failed to pr esent any

evidence that the brief consultations with L.D. w ere incongruous

w ith the psychiatric profession .

64. Assuming, arguendo, that Dr. Cocores ' s conduct

occurred outside the practice of medicine, he could not be

convicted, in connection with the same underlying behavior, of

failing to practice medicine in ac cordance with the applicable

standard of care. See Dep ' t of Health, Bd. of Chiropractic Med.

v. Christensen, M.D. , Case No. 11 - 5163PL, 2012 Fla. Div. Adm.

Hear. LEXIS 136 (Fla. DOAH Mar. 16, 2012 )(concluding that

physician cannot be convicted, in connecti on with the same

underlying behavior, of failing to practice medicine in

accordance with the applicable standard of care and

simultaneously for conduct occurring outside the practice of

medicine).

65. For the reasons expressed above, Dr. Cocores is not

guilty of violating section 458.331(1)(q).

66. The Department further contends, in Count II I of the

Complaint, that Dr. Cocores has violated Section 458.331(1)(m),

which provides:

(1) The following acts constitute grounds

for denial of a license or di sciplinary

action, as specified in s. 456.072(2):

* * *

(m) Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, order ing , supervising, or

billing for each diagnostic or treatment

procedure and that justify 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.

67. As set forth in the discussion of Count I, r ule 64B8 -

9.013(3)(f) requires that the medical records contai n a complete

medical history and physical examination, including history of

drug abuse or dependence (as appropriate); diagnostic,

therapeutic, and laboratory results; evaluations and

consultations; treatment objectives; discussion of risks and

benefits; a nd medications (including date, type, dosage, and

quantity prescribed), among other things. For the most part,

Dr. Cocores ' s records contained none of these required elements

and generally failed to justify the course of treatment.

68. The undersigned concludes, and Dr. Cocores concedes,

that the Department has satisfying its burden that Dr. Cocores

failed to maintain legible medical records justifying the course

of treatment to L.D., in violation of section 458.331(1)(m).

69. The Board of Medicine imposes penalties upon licensees

in accordance with the disciplinary guidelines prescribed in

Florida Administrative Code Rule 64B8 - 8.001. As it relates to

Dr. Cocores ' s violation of section 458.331(1)(t), rule 64B8 -

8.001(2)(t) provides for a penalty rang e (for a first offense)

of one year probation, 50 to 100 hours of community service, to

revocation and an administrative fine from $1,000 to $10,000.

With respect to the violation of section 458.331(1)(m), rule

64B8 - 8.001(2)(m) provides a penalty range (f or a first offense)

from a reprimand to a two year suspension followed by probation,

50 to 100 hours of community service, and an administrative fine

from $1,000 to $10,000.

70. Rule 64B8 - 8.001(3) provides that, in applying the

penalty guidelines, the following aggravating and mitigating

circumstances shall be considered:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraint s, or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self - gain inuring

to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, bart er or

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recommended above and impose suspension or

revocation of licensure.

(h) Where a licensee has been charged with

violating the standard of care pursuant to

Section 458.331 (1)(t), F.S., but the

licensee, who is also the records owner

pursuant to Section 456.057(1), F.S., fails

to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

71. Having considered the potential aggravating and

mitig ating factors, the undersigned does not find compelling

reasons to deviate from the guidelines and, therefore,

recommends that the Board of Medicine impose a penalty that

falls within the recommended range.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medicine enter a final

order :

1. Finding that Dr. Cocores violated sections

458.331(1)( t) and (m), Florida Statutes, as Charged in Counts I

and III of the Complaint;

2. Dismissing Cou nt II of the Complaint;

3. Imposing $10,000 in administrative fines, suspending

Dr. Cocores from the practice of medicine for two years,

requiring 200 hours of community service, five years of

probation after completion of the suspension, and such

restr ictions on his license thereafter as the Board of Medicine

deems prudent and for as long as the Board of Medicine deems

prudent, and such educational courses in the prescription of

controlled substances, as the Board of Medicine may require.

DONE AND ENTE RED this 24th day of June, 2013, in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of June , 2013 .

ENDNOTES

1 / Vicodine contains a combination of acetaminophen and

hydrocodone.

2 / Percocet contains a combination of acetaminophen and

oxycodone .

3 / The text of rule 64B8 - 9.013 is set forth in full in the

Conclusions of Law section of this Recommended Order.

COPIES FURNISHED :

Anthony Vitale, Esquire

Anthony C. Vitale, P.A.

Suite A - 1

2333 Brickell Avenue

Miami, Florida 33029

Sean Michael Ellsworth, Esquire

Ellsworth Law Firm, P.A.

Suite 601

420 Lincoln Road

Miami Beach, Florida 33139

Daniel Hernandez, Esquire

Department of Healt h

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

Allison M. Dudley, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Jennifer A. Tschetter, General Counsel

Department of Heal th

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended O rder should be filed with the agency that

will issue the Final Order in this case.