02-000080PL Department Of Health, Board Of Medicine vs. Anthony Glenn Rogers, M.D. Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, October 14, 2003.

Summary: Evidence was sufficient to prove insufficient medical records, but not sufficient to prove other charges alleged.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0080PL

)

ANTHONY GLENN ROGERS, M.D., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pur suant to notice, a final hearing was conducted in this

case on May 7, 2002, at West Palm Beach, Florida, before

Administrative Law Judge Michael M. Parrish of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Kim M. Kluck, Esquire

Agency for Health Care Administration

Office of General Counsel

Post Office Box 14229

Tallahassee, Florida 32308

For Respondent: C. William Berger, Esquire

1499 West Palmetto Park Road, Suite 412

Boca Raton, Florida 33486

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner

seeks to take disciplinary action against the Respondent on the

basis of ch arges set forth in a three - count Administrative

Complaint. The Administrative Complaint charges the Respondent

with violations of subsections (m), (q), and (t) of Section

458.331(1) Florida Statutes.

PRELIMINARY STATEMENT

At the final hearing on May 7, 2 002, the Petitioner

presented the testimony of one expert witness (Dr. Chaitoff) and

also offered three Petitioner's exhibits and one joint exhibit,

all of which were received in evidence. At the final hearing,

the Respondent testified on his own behalf a nd also presented

the testimony of two additional witnesses (the subject patient

and the patient's mother). The Respondent also offered five

Respondent's exhibits, all of which were received in evidence.

Following the final hearing on May 7, 2002, the Re spondent also

submitted the deposition testimony of an expert witness

(Dr. Brookoff).

At the conclusion of the hearing, the parties were allowed

10 days from the filing of the transcript of the deposition of

Dr. Brookoff within which to file proposed recom mended orders.

The deposition transcript was filed with the Division of

Administrative Hearings on July 26, 2002. Thereafter, all

parties filed timely proposed recommended orders containing

proposed findings of fact and conclusions of law. The parties'

proposals have been carefully considered during the preparation

of this Recommended Order. 1

FINDINGS OF FACT

1. At all times material to this case, the Respondent,

Anthony Glenn Rogers, M.D., has been licensed, and continues to

be licensed, to practice medicine in the State of Florida. His

license number is ME 0062034. Dr. Rogers is a pain management

specialist. Dr. Rogers is certified by the American Board of

Anesthesia and the American Academy of Pain Management.

2. On October 20, 1998, Patient N . A. presented to the

Respondent with complaints of chronic back pain following two

motor vehicle accidents and three back surgeries. At that time

Patient N. A. was an adult female approximately 32 years of age.

Immediately prior to her presentation to t he Respondent she had

been treated for a period of approximately five months by Dr.

Robert E. Lentz who, at that time, also specialized in pain

management in the same geographic community as the Respondent. 2

3. In May of 1998, Dr. Lentz's initial treatme nt plan for

the Patient N. A. was as follows:

There is no surgical procedure indicated nor

is there any blocks indicated for this

patient at this time. Medications will be

the patient's mainstay of therapy.

Therefore at this time we will renew her

prescr iptions with the following changes we

will try to reduce the amount of Dilaudid

for breakthrough pain by increasing her MS

Contin from 60 mg. q.d. to 60 mg. b.i.d and

the Dilaudid remaining for breakthrough

pain. The patient will phone in a few days

to up date her progress on the new medication

regimen.

4. When the Patient N. A. first presented to the

Respondent, she was taking the following medications in an

effort to relieve her chronic back pain: MS Contin, Dilaudid,

Effexor, and Klonopin.

5. Prior to her treatment by Dr. Lentz and by the

Respondent, the Patient N. A. had been treated for many years by

physicians in the state where she previously resided. That

treatment had included three back surgeries and numerous other

invasive procedures for th e purpose of trying to relieve her

chronic back pain. Some of those prior invasive procedures had

produced life threatening consequences. None of the prior

invasive procedures had produced any beneficial effects. By the

time the Patient N. A. presented to the Respondent, she was

strongly opposed to any further surgical or other invasive

procedures. Her opposition was based on her prior experiences

which indicated that such procedures could be risky, could be

painful, and in the past had not provided her with any benefit.

6. The Respondent's records of Patient N. A.'s first visit

to his office indicate that he performed a physical examination

of the patient, but the records do not document a complete

physical examination. The documentation issue aside, the

Respondent's initial physical examination of Patient N. A. was

sufficient and appropriate under the circumstances. The history

memorialized in the Respondent's records of his initial

consultation with Patient N. A. was sufficient and appropriate.

7. In the care and treatment of a patient who presents

with the history, signs, and symptoms, presented by the Patient

N. A. on her initial presentation, the level of care, skill, and

treatment which is recognized by a reasonably prudent similar

physician a s being acceptable under similar conditions and

circumstances requires that the initial physical examination of

the patient include a neurological or reflex assessment and a

range of motion examination. The Respondent's medical records

of the initial pres entation of the Patient N. A. do not include

a notation that the Respondent conducted a neurological or

reflex assessment or a range of motion examination on that

occasion, even though the Respondent performed such assessments

and examinations during the p atient's initial visit.

8. The Respondent initially diagnosed Patient N. A.'s

condition as "chronic lower back pain, failed back syndrome."

This was a sufficient diagnosis, especially in view of the

patient's long history of treatment for the same condi tion. 3

9. The Respondent's initial plan of treatment for Patient

N. A. was to obtain the patient's old medical records, discuss

epidural adhesionolysis, and to follow up in one week. He

prescribed Oxycontin, 80 mg. (three tablets, three times a day)

and Dilaudid, 4 mg., for breakthrough pain.

10. During the course of the next eighteen months, 4 the

Patient N. A. continued to see the Respondent for care and

treatment of her "chronic low back pain, failed back syndrome."

During that period of time, she s aw the Respondent an average of

about twice a month. During that period of time the Respondent

continued to prescribe Oxycontin and Dilaudid for her. He also

prescribed other medicines from time to time in his efforts to

relieve her chronic pain.

11. A t all times material to this case, the Patient N. A.

was enrolled in a Humana HMO. The Respondent was not a

participating provider with that HMO. The Respondent was not

the "primary physician" for the Patient N. A. in her HMO plan.

At the time the Patie nt N. A. first went to see the Respondent,

she was experiencing some difficulties in her relationship with

her HMO and for a period of several months she did not have a

"primary physician." Shortly after he began the care and

treatment of the Patient N. A ., the Respondent felt that it

would be beneficial to the care and treatment of the patient for

her to have an MRI examination. Because the Patient N. A. did

not have a "primary physician" at that time, the Respondent

contacted the HMO in an effort to per suade them to authorize an

MRI examination for the Patient N. A. The Respondent's efforts

in this regard were unsuccessful because the HMO did not want to

discuss any substantive issues with him since he was not one of

their participating physicians. Eve ntually, the Respondent was

able to have the Patient N. A. admitted to a hospital via the

emergency room and during the course of that admission was able

to arrange for the patient to receive an MRI examination.

12. On January 22, 1999, the Respondent in creased Patient

N.A.'s prescription of Oxycontin, 80 mg., to four tablets, three

times a day. The Respondent also continued to prescribe

Dilaudid for the patient to take for breakthrough pain. The

Respondent did not document a physical examination on tha t date.

13. On April 13, 1999, the Respondent increased Patient

N. A.'s prescription of Oxycontin, 80 mg., to five tablets,

three times a day. The Respondent's medical records for that

date did not document a physical examination on that date.

14. On June 11, 1999, the Respondent doubled Patient

N. A.'s prescription of Oxycontin, 80 mg., from five tablets,

three times a day, to ten tablets three times a day. The

Respondent's medical records for that date did not document a

physical examination on that date.

15. On June 28, 1999, the Respondent increased Patient

N. A.'s prescription of Oxycontin, 80 mg., to eleven tablets,

three times a day. The Respondent's medical records for that

date did not document a physical examination on that date.

16. On August 2, 1999, the Respondent increased Patient

N. A.'s prescription of Oxycontin, 80 mg., from eleven tablets,

three times a day, to thirteen tablets, three times a day. The

Respondent's medical records for that date did not document a

physical examinat ion on that date.

17. On September 2, 1999, Patient N. A. presented to the

Respondent with complaints of continued pain and headaches. The

Respondent increased her prescription of Oxycontin, 80 mg., from

thirteen tablets, three times a day, to twenty ta blets, three

times a day, and he also gave her prescriptions for Oxyfast

liquid and Fioricet for her headaches. The Respondent's medical

records for that date did not document a physical examination on

that date.

18. Other dates on which the Respondent increased Patient

N. A.'s prescriptions without adequately documenting a physical

examination were November 23, 1998, and April 26, 1999. Also,

on December 30, 1999, at which time the Patient N. A. presented

with a complaint of a new injury to her lower b ack and left leg,

the Respondent's medical records do not adequately document a

physical examination on that date.

19. The level of care, skill, and treatment which is

recognized by a reasonably prudent similar physician as being

acceptable under similar conditions and circumstances requires,

at a minimum, that under the circumstances described in

paragraphs 12 through 18, above, the physician must conduct at

least a focussed physical examination of the patient and must

include in the patient's medical re cords a description of the

types of physical examinations conducted and the results of such

examinations.

20. In order to achieve the level of care, skill, and

treatment which is recognized by a reasonably prudent similar

physician as being acceptable un der similar conditions and

circumstances, in the care and treatment of a patient such as

the Patient N. A., the physician should conduct at least a

focused physical examination of the patient before increasing

the patient's pain medications. Such a physic al examination

should also be conducted where there is a significant change in

the patient's condition. This type of focused physical

examination could include such matters as observation of the

patient, palpation, range of motion tests for the back and l egs,

reflex tests, strength tests, sensation tests, and observation

of the patient's gait.

21. The Respondent is still providing care and treatment

for the Patient N. A. The patient seems to be satisfied with

the care she is receiving from the Responden t and also seems to

be very appreciative of the efforts the Respondent has made on

her behalf. She is also appreciative of the fact that the

Respondent has provided some of his services to her without

seeking compensation for his services.

22. In the co urse of his professional career, the

Respondent has not had a patient who presented a case as

complicated as that presented by the Patient N. A. Cases of

this level of complexity are very rare; so rare that in an

entire career of a physician specializing in pain management it

is unlikely that the physician would see more than two or three

such cases.

23. During the course of his care and treatment of the

Patient N. A., the Respondent discussed with her just about

every procedure that was available to att empt to relieve her

chronic back pain. The Patient N. A. was opposed to any form of

invasive procedure and hoped to be able to achieve relief from

her pain through the use of medicines.

24. During the course of his care and treatment of the

Patient A. N ., the Respondent never felt there were any

secondary gain issues or diversion issues.

25. During the course of his care and treatment of the

Patient N. A., the Respondent knew that she was also seeing a

psychiatrist at the same time and that she was rec eiving

prescriptions from the psychiatrist. On a number of occasions

the Respondent and the Patient N. A. discussed her psychiatric

care, and on one or two occasions the Respondent spoke directly

to her treating psychiatrist.

26. During the course of hi s care and treatment of the

Patient N. A., the Respondent recommended that the patient be

seen by an orthopedic surgeon. However, he could not refer her

to an orthopedic surgeon because he was not a Humana HMO

provider and the Humana HMO did not honor or recognize his

referrals.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

28. At all times material to this case, Section

458.331(1), Florida Statutes, included the following material

provisions on which the Board of Medicine could take

disciplinary action against a licensed physician:

(m) Failing to keep legible, as defined

by department rule in consultation with the

boa rd, 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, ordering, supervising, or

billing for each diagnostic or treatment

procedur e 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.

* * *

(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 lega lly presumed that

prescribing, dispensing, administering,

mixing, or otherwise preparing legend drugs,

including all controlled substances,

inappropriately or in excessive or

inappropriate 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.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circumstances.

29. Where the revocation or suspension of the physician's

license is sought, proof greater than a mere preponderance of

the evidence must be submitted before the Bo ard of Medicine

(Board) may take punitive action against a licensed physician.

Clear and convincing evidence of the physician's guilt is

required. Section 458.331(3), Florida Statutes. See also

Department of Banking and Finance, Division of Securities a nd

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987); McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st DCA

1995); Tenbroeck v. Castor , 640 So. 2d 164, 167 (Fla. 1st DCA

1994 ); Nair v. Department of Business and Professional

Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save

v. Department of Business Regulation , 601 So. 2d 245 (Fla. 1st

DCA 1992); Munch v. Department of Professional Regulation , 592

So. 2d 1136 (F la. 1st DCA 1992); Newberry v. Florida Department

of Law Enforcement , 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale

v. Department of Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988);

Section 458.331(3), Florida Statutes; Section 120.57(1)(h),

Florida Statutes ("F indings of fact shall be based on a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statute.").

30. "'[C]lear and convincing evidence requires that the

evidence must be found to be c redible; the facts to which the

witnesses testify must be distinctly remembered; the testimony

must be precise and explicit and the witnesses must be lacking

in confusion as to the facts in issue. The evidence must be of

such weight that it produces in th e mind of the trier of fact a

firm belief or conviction, without hesitancy, as to the truth of

the allegations sought to be established.'" In re Davey , 645

So. 2d 398, 404 (Fla. 1994), quoting, with approval, from

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

31. When the Board seeks to take punitive action against a

physician, such action may be based only upon those offenses

specifically alleged in the administrative complaint. See

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996); Chrysler v. Department of Professional

Regulation , 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v.

Department of Business and Professional Regulation , 625 So. 2d

1237, 1238 - 39 (Fla. 2d DCA 1993); Arpayoglou v. Department of

Professio nal Regulation , 603 So. 2d 8 (Fla. 1st DCA 1992);

Willner v. Department of Professional Regulation, Board of

Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1992); Celaya v.

Department of Professional Regulation, Board of Medicine , 560

So. 2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of

State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Sternberg v.

Department of Professional Regulation , 465 So. 2d 1324, 1325

(Fla. 1st DCA 1985); Hunter v. Department of Professional

Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

32. Furthermore, in determining whether Section

458.331(1), Florida Statutes, has been violated in the manner

charged in the administrative complaint, one "must bear in mind

that it is, in effect, a penal statute. . . . This being true

the st atute must be strictly construed and no conduct is to be

regarded as included within it that is not reasonably proscribed

by it. Furthermore, if there are any ambiguities included such

must be construed in favor of the . . . licensee." Lester v.

Departme nt of Professional and Occupational Regulations , 348 So.

2d 923, 925 (Fla. 1st DCA 1977).

33. Count One of the Administrative Complaint alleges that

the Respondent violated Section 458.331(1)(t), Florida Statutes,

in that:

. . .while Patient N.A. was und er his care,

Respondent did one or more of the following:

(a) Failed to document a complete history

of Patient N.A.'s complaints;

(b) Failed to properly diagnose Patient

N.A.'s condition;

(c) Failed to conduct a physical

examination before increas ing Patient N.A.'s

narcotic prescriptions;

(d) Failed to refer Patient N.A. to any

specialists for evaluation; and/or

(e) Failed to order any diagnostic tests

or studies for Patient N.A.

34. There is no clear and convincing evidence to establish

t he facts upon which the violation charged in Count One of the

Administrative Complaint is predicated. There is no clear and

convincing evidence that the Respondent failed to document a

complete history of Patient N. A.'s complaints. Rather, the

greater w eight of the evidence is to the effect that the patient

history documented by the Respondent was "sufficient and

appropriate." There is no clear and convincing evidence that

the Respondent failed to properly diagnose Patient N. A.'s

condition. Rather, th e greater weight of the evidence is to the

effect that the Respondent's diagnosis was a "sufficient

diagnosis." There is no clear and convincing evidence that the

Respondent failed to conduct a physical examination before

increasing Patient N. A. is narco tic prescriptions. 5 There is no

clear and convincing evidence that the Respondent failed to

refer the Patient N. A. to any specialists. Quite to the

contrary, the Respondent discussed with the patient her visits

to her psychiatrist and also urged the pat ient on numerous

occasions to be seen by an orthopedic surgeon. There is no

clear and convincing evidence that it would have been useful for

the Patient N. A. to be evaluated by any other specialists.

Finally, there is no clear and convincing evidence th at the

Respondent failed to order any diagnostic tests or studies for

Patient N. A. To the contrary, early in his treatment of the

Patient N. A. the Respondent concluded that an MRI examination

might be useful and, when the patient's HMO would not agree t o

pay for an MRI, the Respondent spent time and effort to find

another way for the patient to receive an MRI examination.

35. As noted in the foregoing paragraph, there is a lack

of clear and convincing evidence to establish the factual

predicates upon wh ich the violation alleged in Count One is

based. Accordingly, Count One of the Administrative Complaint

should be dismissed.

36. Count Two of the Administrative Complaint alleges that

the Respondent violated Section 458.331(1)(m), Florida Statutes,

in th at:

. . . Respondent failed to adequately

document one or more of the following:

(a) A complete history of Patient N.A.'s

complaints;

(b) An appropriate diagnosis of Patient

N.A.'s condition;

(c) Any physical examinations before

increasing Patien t N.A.'s narcotic

prescriptions;

(d) Referrals to any specialists for

further evaluation of Patient N.A.'s

condition; and/or

(e) The results of any diagnostic tests

or studies.

37. There is competent substantial evidence to establish a

small number of the facts upon which the violation charged in

Count Two of the Administrative Complaint is predicated.

However, there is no clear and convincing evidence to establish

the majority of the facts upon which the violation charged in

Count Two of the Admin istrative Complaint is predicated.

38. There is no clear and convincing evidence that the

Respondent failed to adequately document a complete history of

Patient N. A.'s complaints. To the contrary, the greater weight

of the evidence is to the effect that the history documented by

the Respondent was "appropriate." 6 There is no clear and

convincing evidence that the Respondent failed to adequately

document an appropriate diagnosis of Patient N. A.'s condition.

To the contrary, the greater weight of the ev idence is to the

effect that the Respondent's diagnoses are standard diagnoses

that are widely recognized and accepted. 7 There is no clear and

convincing evidence that the Respondent failed to adequately

document referrals to any specialists for further e valuation of

Patient N. A.'s condition. To the contrary, the greater weight

of the evidence is to the effect that the Respondent made

appropriate efforts to have the patient seen by other physicians

and that those efforts were sufficiently documented. 8 T here is

no clear and convincing evidence that the Respondent failed to

adequately document the results of any diagnostic tests or

studies. In this regard, the evidence fails to identify any

specific tests or studies that were not adequately documented.

39 . There is clear and convincing evidence that on several

occasions the Respondent failed to adequately document physical

examinations before increasing Patient N. A.'s narcotic

prescriptions. 9 These several failures to adequately document

physical examin ations constitute violations of Section

458.331(1)(m), Florida Statutes.

40. Count Three of the Administrative Complaint alleges

that the Respondent violated Section 458.331(1)(q), Florida

Statutes, by reason of the following acts and failures to act

alle ged in paragraph 52 of the Administrative Complaint:

52. Respondent prescribed, dispensed,

administered, mixed, or otherwise prepared a

legend drug, including any controlled

substance, other than in the course of the

physician's professional practice, i n that

Respondent continued to increase Patient

N.A.'s various narcotic prescriptions

without conducting physical examinations or

evaluating her medical history.

41. The scope of the physician misconduct encompassed by

the language of Section 458.331(1)( q), Florida Statutes, was

discussed at length in the recommended order in Department of

Health, Board of Medicine v. Leland M. Heller, M.D. , DOAH Case

No. 00 - 4747PL, 2001 WL 666972. There the judge stated:

41. There is one legal issue that

merits further discussion. Based on the

same alleged over - prescribing of drugs to

J.B., the Department accused Dr. Heller of

professional negligence in violation of

Section 458.331(1)(t), Florida Statutes, and

also of prescribing legend drugs "other than

in the course of [his] professional

practice," in violation of Section

458.331(1)(q). Given the identity of the

conduct underlying both charges, it is

important to point out that Section

458.331(1)(q) does not target "mere"

negligence but rather proscribes a different

form of misconduct.

42. The wrongdoing that Section

458.331(1)(q) seeks to prevent, it bears

repeating, is "prescribing . . . a legend

drug . . . other than in the course of the

physician's professional practice ."

(Emphasis added). The underlined langu age

is the gravamen of the offense. To

establish guilt, the Department must prove

that the accused doctor was not practicing

medicine when he prescribed the drugs in

question but instead was engaged in an

illicit (and probably oftentimes criminal)

activit y, e.g. selling narcotics to a

"patient" who was not really sick but wanted

the drugs for recreational purposes. No

other subpart of Section 458.331(1), it may

be seen, generally proscribes this type of

physician misbehavior.

43. To help the Department prove this

offense, the legislature has provided a

presumption, which arises when the

Department demonstrates that the accused

doctor prescribed drugs "inappropriately or

in excessive or inappropriate quantities[.]"

Section 458.331(1)(q), Florida Statutes . In

that event, it may be "legally presumed"

that the doctor was not acting in the course

of his or her professional practice,

"without regard to his or her intent." Id.

44. From the plain language of Section

458.331(1)(q), considered as a whole, it is

clear that the terms "inappropriate" and

"excessive," taken in context, do not refer

to simple breaches of ordinary and

reasonable care. Such negligence is the

province of Section 458.331(1)(t).

45. Supporting this interpretation is

the common sen se observation that there is

no logical connection between an ill - advised

prescription resulting from negligence and

the conclusion that the negligent physician

was operating outside the course of his

medical practice. It is an undeniable and

commonly - kno wn fact of the human condition

that all doctors make a mistake now and

again, and some doctors' mistakes

unfortunately cause harm, for which the law

provides redress. But reasonable people do

not ordinarily conclude that a negligent

doctor must have made his mistake other than

in the course of his medical practice. To

the contrary, the natural and normal

assumption when contemplating medical

malpractice is that the wrong occurred while

the doctor was practicing medicine.

(Conversely, it is counterintuiti ve to

conceive of a doctor's dispensing drugs

outside the course of his medical practice

as a form of professional negligence; this

is a wrongful act, to be sure, deserving of

censure and sanction without question, but

not one commonly thought of as malpra ctice.)

46. Further, if the terms

"inappropriate" and "excessive" were

construed to embrace all prescription

practices that fall short of that which

reasonable care requires under the

circumstances, then the presumption of guilt

effectively would re - defi ne and become the

offense, and Sections 458.331(1)(q) and

458.331(1)(t) would be practically

indistinguishable. Because the legislature

presumably did not intend that Section

458.331(1)(q) be subsumed by Section

458.331(1)(t) —— which would make the former

redundant —— it follows that the presumption

of guilt should not arise from proof of mere

negligence.

47. The Department has proposed a

novel solution to the redundancy problem.

It contends that whether a prescription is

inappropriate or excessive shoul d be

determined based on a universal standard of

care —— the same for all doctors, regardless

of specialty. This would, of course,

distinguish Section 458.331(1)(q) from

Section 458.331(1)(t), but in a potentially

anomalous way. A doctor could be deemed to

have exercised reasonable care in compliance

with Section 458.331(1)(t) but be found in

violation of the "universal" standard under

Section 458.331(1)(q) and punished for

prescribing outside the course of his

medical practice! That cannot have been the

l egislature's intent.

48. To have relevant meaning in

reference to the offense of prescribing

drugs outside the scope of a medical

practice, then, the words "inappropriate"

and "excessive" should be understood to

connote prescription practices that are an

abuse of professional discretion, that is,

so far beyond the pale that no reasonable

physician could justify them. Put another

way, if reasonable physicians can disagree

about whether the prescription in question

was inappropriate or excessive, then th e

presumption is not warranted, and the

Department must prove a charge under Section

458.331(1)(q) with other evidence that the

doctor was acting outside the course of his

professional practice.

49. Here, the Department failed to

prove, clearly and conv incingly, either a

"universal" standard of care respecting the

prescriptions at issue (assuming for

argument's sake that such is relevant, as

the Department urges) or that Dr. Heller's

treatment decisions were an untenable abuse

of professional judgment. Further, at any

rate, as set forth above, the trier has

determined based on the totality of the

evidence that Dr. Heller in fact treated

J.B. in the course of his professional

practice.

42. The observations quoted immediately above are equally

applicable here. And for those same reasons, the charge that

the Respondent in this case has violated Section 458.331(1)(q),

Florida Statutes, should be dismissed.

43. With regard to the appropriate penalty to be imposed

in this case, in its proposed recommended o rder the Petitioner

suggests, in the context of an assumption that it would prevail

on all three counts in the Administrative Complaint, that the

appropriate penalty would be: ". . . a penalty that includes

payment of an Administrative Fine in the amount o f $5,000.00 to

be paid within 180 days, completion of the USF prescribing

abusable drugs course within 180 days, completion of the FMA

records keeping course within 180 days, two (2) years probation

during which time a quarterly review of 25% of Respondent 's

files shall be conducted by a monitor for the first year and a

quarterly review of 10% of his cases for the following year, and

payment of costs." The penalty suggested by the Petitioner is

certainly within the range of penalties authorized by statute

and would appear to be a reasonable penalty if the Petitioner

had proved all of the facts that form the basis for all of the

violations alleged in the Administrative Complaint. But the

Petitioner did not prove all of those facts and did not

establish all of the violations charged in the Administrative

Complaint. In this regard it is especially significant to note

that with regard to Count Three of the Administrative Complaint,

the Petitioner was proceeding on a flawed interpretation of

Section 458.331(1)( q), Florida Statutes. Thus, even if all of

the facts alleged in support of the violation charged in Count

Three were to be proved or admitted, such facts would not

constitute a violation of Section 458.331(1)(q), Florida

Statutes. With regard to the othe r two counts of the

Administrative Complaint, although there is clear and convincing

evidence to prove some conduct by the Respondent that

constitutes violations of subsection (m) of Section 458.331(1),

Florida Statutes, the vast majority of the other cond uct alleged

to be the factual predicate for the charges in Counts One and

Two was not proved by clear and convincing evidence. Where the

conduct proved at the final hearing is substantially less than

the conduct alleged in the Administrative Complaint, it appears

that the penalty should be substantially less than that proposed

by the Petitioner in its proposed recommended order.

RECOMMENDATION

On the basis of the foregoing Findings of Fact and

Conclusions of Law, it is RECOMMENDED that a final order be

is sued in this case to the following effect:

(a) Dismissing Count One of the Administrative Complaint

for insufficient evidence to establish a violation of Section

458.331(1)(t), Florida Statutes;

(b) Concluding that the Respondent is guilty of having

viol ated Section 458.331(1)(m), Florida Statutes, in some of the

ways charged in Count Two of the Administrative Complaint;

(c) Dismissing Count Three of the Administrative Complaint

for insufficient evidence to establish a violation of Section

458.331(1)(q), Florida Statutes; and,

(d) Imposing a penalty on the Respondent consisting of the

following: (1) a requirement that the Respondent pay, within

180 days of the issuance of the final order in this case, an

administrative fine in the amount of $1,000.00, a nd (2) a

requirement that the Respondent complete, within 180 days of the

issuance of the final order in this case, the FMA records -

keeping course, or some similar course regarding the proper

preparation of medical records.

DONE AND ENTERED this 21st day o f February, 2003, in

Tallahassee, Leon County, Florida.

__________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Divi sion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of Febr uary, 2003.

ENDNOTES

1/ By means of a letter dated August 12, 2002, which was

received on August 13, 2002, counsel for the Respondent, while

noting that "the record in this case is technically closed,"

nevertheless seeks to supplement the record in thi s case with a

copy of a document purportedly prepared by the Petitioner's

expert witness (Dr. Chaitoff) which is asserted to conflict with

Dr. Chaitoff's testimony at the final hearing. The letter

requests that the judge in this case take "judicial notice " of

the document enclosed with the letter. The document submitted

with the letter of August 12, 2002, is simply too little, too

late. The document has not been considered during the

preparation of this Recommended Order. At this point it is

perhaps app ropriate to also mention that not a great deal of

weight has been given to much of Dr. Chaitoff's expert opinion

testimony. This is due in substantial part to the fact that

other expert witness testimony was more persuasive. It is also

due in substantial part to the fact that Dr. Chaitoff greatly

undermined the persuasiveness and reliability of his opinion

testimony with the following question and answer early in his

cross - examination:

Q. Do you agree that reasonable

experts could disagree with all you r

opinions that you gave here?

A. Yes.

2/ The Patient N. A. sought the services of the Respondent

because Dr. Lentz discontinued the care and treatment of

patients who required pain management.

3/ The Respondent's diagnosis was also very similar to t he

initial diagnosis by Dr. Lentz when he examined the patient some

five months earlier.

4/ The allegations in the Administrative Complaint address

matters that allegedly took place during the period that began

on October 20, 1998, when the patient first presented to the

Respondent, and ended with the patient's visit to the Respondent

on April 20, 2000. The Patient N. A. has continued to see the

Respondent since April 20, 2000, and still receives care and

treatment from the Respondent. The Patient N. A. appears to be

very satisfied with the care and treatment she has received from

the Respondent. She did not initiate the complaint that led to

the Administrative Complaint in this case.

5/ While there is clear and convincing evidence of shortcomings

in the Respondent's documentation of a number of physical

examinations of the patient that should have been made, there is

no clear and convincing evidence that such physical examinations

were not performed; only that, if performed, they were

inadequately doc umented in the patient's medical records.

6/ See Dr. Chaitoff's testimony at lines 8 and 9 of page 70 of

the hearing transcript.

7/ See Dr. Brookoff's testimony at lines 10 through 21 of page

19 of the transcript of the May 21, 2002, deposition.

8/ S ee Dr. Brokoff's testimony on page 37 and on the top half

of page 38 of the transcript of the May 21, 2002, deposition.

9/ These several occasions of failure to adequately document

physical examinations include the occasions specifically

mentioned in par agraphs 12 through 18 of the findings of fact.

COPIES FURNISHED:

Kim M. Kluck, Esquire

Agency for Health Care Administration

Office of General Counsel

Post Office Box 14229

Tallahassee, Florida 32308

C. William Berger, Esquire

1499 West Palmetto Park Road, Suite 412

Boca Raton, Florida 33486

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tal lahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

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 Order should be filed with the agency that

will issue the Final Order in this case.