00-004115PL Department Of Health, Board Of Medicine vs. Mark Franklin Prysi, M.D. Status: Closed Recommended Order on Tuesday, February 27, 2001.

Summary: Nurse`s signature on written prescription for controlled substance may, or may not, have violated Section 893.04(1)(b), Florida Statutes, but did not violate Section 458.331, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 00-4115PL

)

MARK FRANKLIN PRYSI, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge ("ALJ") Daniel Manry conducted the

administrative hearing of this proceeding on January 4, 2001, in

Naples, Florida .

APPEARANCES

For Petitioner: Ephraim D. Livingston, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4221

For Respondent: Bruce M. Stanley, Sr., Esquire

Henderson, Franklin, Starnes & Holt

Post Office Box 280

Fort Myers, Florida 33902

STATEMENT OF THE ISSUES

The ultimat e issues for determination are whether

Respondent violated Section 458.331(1)(f) and (w), Florida

Statutes (2000), by allowing or directing a nurse to fill out

two separate written prescriptions for Keflex and Vicodin and to

sign Respondent's name and the nurse's initials on each

prescription; and, if so, what penalty, if any, should be

imposed against Respondent's license to practice medicine. (All

chapter and section references are to Florida Statutes (2000)

unless otherwise stated.)

PRELIMINARY STATEMENT

On June 26, 2000, Petitioner filed an Administrative

Complaint against Respondent. Respondent timely requested an

administrative hearing.

At the hearing, Petitioner presented the testimony of one

witness and submitted six exhibits for admission in evidence.

Respondent testified in his own behalf, presented the live

testimony of one witness, and submitted as Respondent's only

exhibit the deposition testimony of a plastic surgeon that

Petitioner originally designated as its expert but did not call

at the hearing ("Petitioner's expert"). The identity of the

witnesses and exhibits and any attendant rulings are set forth

in the Transcript of the hearing filed on January 23, 2001.

Respondent timely submitted his Proposed Recommended Order

("PRO") on January 26, 2001. Petitioner timely submitted its

PRO on February 8, 2001.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating the practice of medicine in Florida pursuant to

Sections 20.165 and 20.43 and Chapters 455 and 458. Respondent

is licensed as a medical physician in Florida pursuant to

license number ME0054804.

2. Respondent has been a board-certified plastic surgeon

since 1992. After graduating from the University of Virginia

Medical School in 1983, Respondent completed a three-year

residency in general surgery at the University of Alabama, a

two-year residency in plastic surgery at the University of

Tennessee, and a one-year fellowship in breast reconstructive

surgery at Vanderbilt University. Respondent completed his

fellowship at Vanderbilt University in 1989 and began the

private practice of medicine in the same year as a plastic

surgeon in West Palm Beach, Florida.

3. In 1997, Respondent moved to Naples, Florida, and

joined the practice of Dr. Richard Maloney. Dr. Maloney

operates a freestanding facility for plastic surgery known as

the Aesthetic Surgery Center (the "Center"). Dr. Maloney has

exclusive authority over the daily operation and policy of the

Center. Respondent has authority over the medical care of

Respondent's individual patients.

4. On or about July 8, 1998, Ms. Deborah Puhl, LPN, was a

nurse at the Center. Nurse Puhl completed two written

prescriptions for patient C.R. and signed Respondent's name to

each prescription. Nurse Puhl wrote her initials beside the

signature of Respondent's name on each prescription.

5. One of the written prescriptions was a prescription for

Keflex 500 mg. The other written prescription was for Vicodin

7.5 mg. Keflex is an antibiotic. Vicodin is the brand name for

hydrocodone bitartrate. Hydrocodone bitartrate is an opiod

analgesic similar to codeine and a controlled substance within

the meaning of Chapter 893.

6. When C.R. presented the two prescriptions to a

pharmacist on duty at a local K-Mart, the pharmacist filled the

written prescription for Keflex but correctly determined that

the pharmacist has no legal authority to fill a written

prescription for a controlled substance unless the prescription

is signed by the physician. The pharmacist never filled the

written prescription for Vicodin that was signed by Nurse Puhl.

7. The pharmacist telephoned the Center and verified the

written prescription for Vicodin with a nurse at the Center.

Once verified by telephone, the Pharmacist determined that there

was a valid verbal prescription for Vicodin, and the pharmacist

filled the verbal prescription for Vicodin.

8. The pharmacy then filed a complaint with Petitioner

complaining of the procedure at the Center that allowed nurses

to sign written prescriptions for a controlled substance.

Petitioner investigated the complaint and determined there was

probable cause to bring this action.

9. By letter dated October 28, 1998, Petitioner notified

the Center that it was illegal for nurses to sign written

prescriptions. Dr. Maloney immediately terminated the office

procedure. Neither Dr. Maloney, Nurse Puhl, nor Respondent had

actual knowledge prior to the letter from Petitioner that a

pharmacist has no legal authority to fill a written prescription

for a controlled substance unless the prescription is signed by

the prescribing practitioner.

10. Petitioner argues in this case that Respondent

violated an express provision in Section 893.04(1)(b).

Petitioner construes the requirement in Section 893.04(1)(b) for

a physician to sign a written prescription for a controlled

substance as being enforceable against the physician. For

reasons discussed more fully in the Conclusions of Law,

Petitioner's statutory construction of Section 893.04(1)(b) may

be misplaced. Even if Petitioner's statutory construction of

Section 893.04(1)(b) were correct, Petitioner did not charge in

the Administrative Complaint that Respondent violated Section

893.04(1)(b). Petitioner expressly limited the Administrative

Complaint to allegations that Respondent violated Section

458.331(1)(f) and (w).

11. Petitioner cited no legal authority at the hearing or

in its PRO that authorizes Petitioner to prove that Respondent

is guilty of charges that are not alleged in the Administrative

Complaint. For reasons stated more fully in the Conclusions of

Law, such a procedure would clearly violate fundamental

principles of due process, deprive Respondent of adequate notice

of the charges against him, and deprive Respondent of a fair

opportunity to prepare a defense to allegations not included in

the Administrative Complaint. Thus, matters relevant to the

allegation that Respondent violated Section 893.04(1)(b) are

beyond the scope of the Administrative Complaint and irrelevant

to the allegations in the Administrative Complaint that

Respondent violated Section 458.331(1)(f) and (w).

12. Section 458.331(1)(f) and (w) contains no express

requirement for written prescriptions to be signed a physician

or prescribing practitioner. In relevant part, Section

458.331(1) prohibits a physician from:

(f) Aiding, assisting, procuring, or

advising any unlicensed person to practice

medicine contrary to this chapter or to a

rule of the department or board. (emphasis

supplied)

* * *

(w) Delegating professional

responsibilities to a person when the

licensee delegating such responsibilities

knows or has reason to know that such person

is not qualified by training, experience, or

licensure to perform them.

13. Petitioner cited no provision in Chapter 458 or in any

rule promulgated pursuant to Chapter 458 that expressly makes

the signature of a nurse on a written prescription a violation

of either Section 458.331(f) or (w). A determination of whether

a nurse's signature on a written prescription violates either

Section 458.331(f) or (w), or both, must be made based on all of

the surrounding facts and circumstances established by clear and

convincing evidence.

14. Nurse Puhl's signature on the written prescription for

Keflex did not violate either Section 458.331(1)(f) or (w).

The procedure used for the Keflex prescription involved neither

the practice of medicine nor the performance of any professional

responsibilities by an unqualified person. In response to

questions about a nurse calling in a prescription for Keflex,

Respondent's expert explained:

A. . . . I would say, [Nurse] Penny, would

you please call in a prescription for Keflex

500 milligrams 14, directions take one twice

a day and start the day before surgery

. . . .

Q. . . . you are not delegating to her any

medical judgment? . . . .

A. I'm simply using her as an extended

agent of myself for the patient's benefit.

Respondent's Exhibit 1, at 24-25.

15. The substance of the testimony of the pharmacist

called as a witness by Petitioner was consistent with the

testimony of Petitioner's expert. The pharmacist determined

that he was authorized to fill a written prescription for Keflex

that was signed by a nurse.

16. The signature of Nurse Puhl on the written

prescription for Vicodin involved neither the practice of

medicine nor the performance of any professional

responsibilities within the meaning of Section 458.331(1)(f) or

(w). Respondent did not delegate to Nurse Puhl any medical

discretion concerning the care of Respondent's patient. Nor did

Respondent aid, assist, procure, or advise Nurse Puhl in the

exercise of any medical discretion or similar professional

responsibility concerning the care of Respondent's patient.

Respondent alone determined the type of medication, dosage,

administration, strength, and other particulars of the

prescription for Vicodin. Nurse Puhl merely acted as an

"extended agent" or scribe for Respondent.

17. The testimony of Respondent's expert elucidates the

issue of whether a nurse practices medicine or performs

professional responsibilities when she effectuates a physician's

orders. Respondent's expert explained, in relevant part:

Q. And you don't give your nurse the option

of what kind of medication to prescribe or

the dosage or how often it should be taken,

do you?

A. . . . here's where the rub is, if there

is anything to do with narcotics . . ., it's

been my understanding that I need to write a

prescription for it. And in fact when I've

called to the pharmacy, for example, for

Percocet, I have been told by the pharmacist

that I cannot prescribe this over the phone

and that there has to be a written

prescription from me for the patient.

That's the pharmacists that are here and

that has been my experience here. . . .

(emphasis supplied)

* * *

. . . with anything that I'm asking my nurse

to do, it's something that I've thought

through that is my responsibility that I

have asked her simply as a convenience to

take care of as an agent for me, as a go-

between for me that I'm not asking her to

think about.

Respondent's Exhibit 1, at 25-26.

18. The prescriptions for Keflex and Vicodin were part of

the routine standing orders in place at the Center. They were

written on preprinted prescription forms. There was no

opportunity for Nurse Puhl to change either prescription.

19. Respondent did not direct or allow Nurse Puhl to sign

his name to the written prescriptions for Keflex and Vicodin.

Nurse Puhl signed Respondent's name to the written prescriptions

pursuant to the direction of Dr. Maloney. Dr. Maloney had

exclusive authority to direct matters concerning office

procedure. The signature of written prescriptions by nurses was

part of the office procedure at the Center and within the sole

and exclusive authority of Dr. Maloney. The signature of

written prescriptions was not a matter of patient care over

which Respondent had exclusive authority.

20. The signature of Nurse Puhl on the written

prescription for Vicodin caused no harm to the public. The

pharmacist did not fill the written prescription. The amount of

Vicodin prescribed in both the written and verbal prescriptions

was a reasonable post-surgical prescription for pain. Pain

management is part of all medical practices, including plastic

surgery. Petitioner has no prior disciplinary history.

CONCLUSION OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter. The

parties received adequate notice of the administrative hearing.

Section 120.57(1).

22. The burden of proof is on Petitioner. Petitioner must

show by clear and convincing evidence that Respondent committed

the violations alleged in Administrative Complaint and the

reasonableness of any proposed penalty. Department of Banking

and Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); State ex rel.

Vining v. Florida Real Estate Commission , 281 So. 2d 487 (Fla.

1973).

23. Petitioner did not satisfy its burden of proof. The

reasons that Petitioner did not satisfy its burden of proof

involve both legal and evidentiary deficiencies.

24. The legal deficiency arises from the interplay between

Sections 893.04(1)(b) and 458.331(1)(f) and (w).

Section 893.04(1)(b) authorizes a pharmacist to "dispense"

controlled substances only if the pharmacist has a written

prescription that is signed by the prescribing practitioner.

Section 893.13(7)(b) subjects any person who "distributes" a

controlled substance in violation of Chapter 893 to criminal

prosecution for a first degree misdemeanor that is punishable by

up to one-year imprisonment as provided in Section

775.082(4)(a).

25. Neither Petitioner nor the undersigned sitting in

place of the agency head has jurisdiction to enforce criminal

statutes. However, Section 893.09(1) and (2) authorizes

Petitioner to undertake an administrative action to enforce

Section 893.04(1)(b).

26. Petitioner cited no legal authority to support a

conclusion that Petitioner can enforce Section 893.04(1)(b)

against a physician. In relevant part, Section 893.04 provides:

(1) A pharmacist . . . may dispense

controlled substances upon a written or oral

prescription of a practitioner, under the

following conditions: (emphasis supplied)

(a) Oral prescriptions must be promptly

reduced to writing by the pharmacist .

(emphasis supplied)

(b) The written prescription must be dated

and signed by the prescribing practitioner

on the day when issued.

27. The terms "dispense" and "distribute" are defined

separately in Section 893.02(6) and (7). Neither definition

expressly includes the writing of a prescription by a physician.

Assuming arguendo that writing a prescription is a method of

dispensing a controlled substance, nothing in Section 893.04

prescribes the conditions upon which a physician is authorized

to "dispense" a controlled substance by written prescription.

The plain and ordinary meaning of the terms of Section 893.04

prescribes conditions upon which a pharmacist is authorized to

dispense a controlled substance by filling a presription. If a

pharmacist dispenses a controlled substance based on a written

prescription that is not signed by a physician, the enforcement

action authorized in Section 893.09(1) and (2) is an

administrative action against the pharmacist who violated

Section 893.04(1)(b).

28. In support of its administrative action against

Respondent, who is a physician, Petitioner relies on the

provision in Section 893.04(1)(b) that prescribes the conditions

upon which a pharmacist is authorized to dispense a controlled

substance pursuant to a written prescription by a physician.

Petitioner relies on a silent premise that if a pharmacist

dispenses a controlled substance in violation of Section

893.04(1)(b), Petitioner may undertake an administrative action

against the physician pursuant to Sections 893.04(1)(b) and

893.09(1) and (2). Petitioner cited no legal authority in

support of its silent premise.

29. Petitioner did not allege in the Administrative

Complaint that Respondent violated Section 893.04(1)(b).

Petitioner limited the Administrative Complaint to allegations

that Respondent violated Section 458.331(1)(f) and (w).

30. Petitioner argues that Respondent's alleged violation

of Section 458.331(1)(f) and (w) is evidenced by the express

provision in Section 893.04(1)(b) that authorizes a pharmacist

to dispense a controlled substance only if the pharmacist has a

written prescription signed by a physician. Unlike Section

893.04(1)(b), however, Section 458.331(1)(f) and (w) does not

contain an express provision that authorizes a physician to

prescribe a controlled substance only if the physician signs a

written prescription. The two statutes are not synonymous and

notice in the Administrative Complaint that Petitioner charged

Respondent with violating Section 458.331(1)(f) and (w) is not

adequate notice that provides a fair opportunity for Respondent

to prepare a defense to the charge that Respondent violated

Section 893.04(1)(b).

31. Petitioner cannot effectively amend Section

458.331(1)(f) and (w) to include the express provision found in

Section 893.04(1)(b) that authorizes a pharmacist to dispense a

controlled substance only if a written prescription is signed by

a physician. A statute such as Section 458.331(1)(f) and (w)

that imposes a penalty is never to be construed in a manner that

expands the statute. Hotel and Restaurant Commission v. Sunny

Seas No. One , 104 So. 2d 570, 571 (Fla. 1958.) Disciplinary

statutes such as Section 458.331(1)(f) and (w) are penal in

nature and must be strictly interpreted against the

authorization of discipline and in favor of the person sought to

be penalized. Munch v. Department of Business and Professional

Regulation , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992);

Fleischman v. Department of Business and Professional

Regulation , 441 So. 2d 1121, 1133 (Fla. 3rd DCA 1983.); Lester

v. Department of Professional and Occupational Regulations,

State Board of Medical Examiners , 348 So. 2d 923 (Fla. 1st. DCA

1977).

32. In the absence of an express requirement in Section

458.331(1)(f) and (w) for Respondent to sign a written

prescription, the evidentiary issue for determination is whether

the failure of Respondent to sign a written prescription aided,

assisted, procured, or advised an unlicensed person to practice

medicine or delegated professional responsibilities to an

unqualified person within the meaning of Section 458.331(1)(f)

or (w). Petitioner must prove each element required in the

statutory definition of the violation by clear and convincing

evidence.

33. In order for evidence to be clear and convincing:

The evidence must be of such weight that it

produces in the mind of the trier of fact a

firm . . . conviction, without hesitancy, as

to the truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

34. Petitioner's evidence consists of six exhibits and the

testimony of the pharmacist who filled a verbal prescription for

a controlled substance and who is the complaining witness

against Respondent. The deposition testimony of Petitioner's

expert is evidence submitted by Respondent.

35. The six exhibits submitted by Petitioner are the

certified licensure file of Respondent, the curriculum vitae of

Petitioner's expert witness, copies of the prescriptions for

Keflex and Vicodin, a statement of the costs of investigation

and prosecution up to the date of hearing, the investigative

report of Petitioner, and the curriculum vitae of the

pharmacist. None of Petitioner's exhibits are probative of the

issue of whether the failure of Respondent to sign a written

prescription aided, assisted, procured, or advised an unlicensed

person to practice medicine or delegated professional

responsibilities to an unqualified person within the meaning of

Section 458.331(1)(f) or (w).

36. Part of the testimony of Petitioner's expert is

legally irrelevant because it addresses the failure of

Respondent to sign a written prescription for a controlled

substance in the context of Section 893.04(1)(b). However,

another part of the testimony of Petitioner's expert is relevant

and material to the issue of whether the failure of Respondent

to sign a written prescription aided, assisted, procured, or

advised an unlicensed person to practice medicine or delegated

professional responsibilities to an unqualified person within

the meaning of Section 458.331(1)(f) or (w). The relevant part

of the testimony of Petitioner's expert concludes that when a

nurse carries out the orders of a physician, the physician does

not delegate the practice of medicine or delegate professional

responsibilities to an unqualified person. See , e.g. ,

Respondent's Exhibit 1, at 23-26.

37. The deposition testimony of Respondent's expert and

the testimony of the pharmacist at the hearing conflict over the

authority of a pharmacist to fill a verbal prescription for

Vicodin. Respondent's expert testified that pharmacists could

not fill a verbal prescription for a controlled substance. The

pharmacist testified that the verbal prescription for Vicodin

was filled because the verbal prescription was a valid

prescription. The pharmacist's testimony is consistent with the

express terms of Section 893.04(1)(a) that authorizes a

pharmacist to fill an oral prescription for a controlled

substance if the pharmacist immediately reduces the prescription

to writing. Compare Respondent's Exhibit 1, at 25-26, and

Section 893.04(1)(a) with Transcript at 52, line 18, through 55,

line 22.

38. The remaining portion of the testimony of the

pharmacist called as witness by Petitioner attempted to render

an opinion as to whether a nurse's signature on a written

prescription constituted the practice of medicine or the

performance of professional responsibilities by an unqualified

person within the meaning of Section 458.331(1)(f) and (w).

However, a pharmacist is not qualified by education or

experience to render an opinion regarding the practice of

plastic surgery, including the writing of prescriptions for

medication.

39. Even if a pharmacist were qualified to render an

expert opinion regarding the practice of plastic surgery, the

pharmacist in this case is an employee or agent of the

complaining witness (the pharmacy) and, therefore, is an

interested witness in this case. The testimony of one

interested witness does not begin to approach the level of

competent and substantial evidence. Robinson v. Florida Board

of Dentistry, Department of Professional Regulation, Division of

Professions , 447 So. 2d 930, 932 (Fla. 3d DCA 1984).

40. The evidence submitted by Respondent was credible and

persuasive and sufficient to refute the evidence submitted by

Petitioner. The evidence of record was clear and convincing

that Respondent did not violate Section 458.331(1)(f) or (w).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a Final Order finding

that Respondent is not guilty of violating Section 458.331(1)(f)

and (w) and dismissing the Administrative Complaint.

DONE AND ENTERED this 27th day of February, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalache e Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of February, 2001.

COPIES FURNISHED :

Ephraim D. Livingston, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Bruce M. Stanley, Esquire

Henderson, Franklin, Starnes & Holt

Post Office Box 280

Fort Myers, Florida 33902

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, A02

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, 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 Order should be filed with the agency that

will issue the Final Order in this case.