02-004268PL Department Of Health, Board Of Medicine vs. Kanwaljit S. Serai, M.D. Status: Closed Recommended Order on Friday, March 21, 2003.

Summary: Respondent issued prescriptions for scheduled drugs without proper documentation or indication. He also influenced patients to engage in sexual relationships with him. License revocation is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4268PL

)

KANWALJIT S. SERAI, M.D., )

)

Respondent. )

)

RECOMMENDE D ORDER

Administrative Law Judge Don W. Davis of the Division of

Administrative Hearings held a formal hearing in this cause on

January 28 - 30, 2003, in Tallahassee, Florida. The following

appearances were entered:

APPEARANCES

For Petitioner: John E. T errel, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Steven R. Andrews, Esquire

Andrews & Walker, P.A.

822 North Monroe Street

Tallahassee, Florida 32303 - 6141

STATEMENT OF THE ISSUE

At issue in this case is whether the Respondent's license

as a physician should be disciplined for alleged violations of

Section 458.331(1), Florida Statutes, as set forth in the

Administrative Complaint.

PRELIMINARY ST ATEMENT

By an Administrative Complaint, the Department of Health

(Petitioner) charged that Kanwaljit S. Serai, M.D. (Respondent),

violated Section 458.331(1)(q), Florida Statutes, through the

inappropriate prescription of legend drugs; Section 458.331(1)(t ),

Florida Statutes, through the failure to practice medicine with

that level of care, skill, and treatment which is recognized by

a reasonable prudent similar physician as being acceptable under

similar conditions and circumstances; through failure to kee p

adequate medical records justifying the course of treatment with

regard to specific patients in violation of Section 458.331(m),

Florida Statutes; and the exercise of influence within the

patient - physician relationship to obtain sexual favors in

violatio ns of Sections 458.331(j) and 458.329, Florida Statutes.

The Administrative Complaint was filed with the Department

of Health on September 26, 2001. The case was referred to the

Division of Administrative Hearings on November 4, 2002.

At the formal he aring, Petitioner introduced 23 exhibits

and the testimony of Roger Nemeth; Tommy Gore; Tina Rivers;

Linda Butler; Thomas Hicks, M.D.; Raymond M. Pomm, M.D.;

Kathy L. Redfearn; Harry Knight; and Respondent.

At the formal hearing, Respondent presented 6 ex hibits,

testified on his own behalf, and presented the testimony of

Andrew Miller, Tamara McNamara, and Tina Rivers.

FINDINGS OF FACT

1. Petitioner is the state department responsible for

regulating the practice of medicine in Florida pursuant to

Sections 20.165 and 20.43, and Chapters 456, 458, Florida

Statutes.

2. Respondent is Kanwaljit S. Serai, M.D. At all times

material to this matter he has been a licensed physician in the

State of Florida, having been issued license No. ME 0042038.

His last know n address on record with Petitioner is 5054

Crawfordville Road, Tallahassee, Florida 32310.

3. Respondent was born and educated in India, receiving

his medical and surgical credentials in that country. He came

to the United States in 1979. He has been licensed in the State

of Florida since 1983. Respondent is Board - certified in the

area of family practice.

4. Demerol is a Schedule II narcotic that is indicated for

relief of moderate to severe pain. Demerol carries a high

potential for abuse or addi ction.

5. Dilaudid is a Schedule II narcotic that contains

hydromorphone. Hydromorphone is a powerful narcotic analgesic

indicated for the relief of moderate to severe pain, and carries

a high potential for abuse and addiction. Dilaudid is a heavy -

duty painkiller that should only be used in terminal illnesses.

6. Lorcet contains Hydrocodone bitartrate and

acetaminophen which, when mixed together, is a Schedule III

controlled substance. Lorcet is indicated for the relief of

moderate to moderately sever e pain. Lorcet has a potential for

abuse and addiction.

7. Lortab contains Hydrocodone bitartrate and

acetaminophen (Tylenol) which, when mixed together, is a

Schedule III controlled substance. Lortab is indicated for the

relief of moderate to moderate ly severe pain. Lortab has a

potential for misuse, abuse, dependency, and in the person who

is prone to addiction, it can contribute to and accelerate his

addiction.

8. Methadone is a Schedule II controlled substance.

Methadone is indicated for the rel ief of severe pain, for

detoxification treatment in cases of narcotic addiction, and for

the temporary maintenance treatment of narcotic addiction.

Methadone can produce drug dependence of the morphine type.

Psychological dependence, physical dependence, and tolerance may

develop upon repeated administration of methadone.

9. Oxycontin contains Oxycodone, a Schedule II controlled

substance. Oxycodone is a narcotic analgesic indicated for the

relief of moderate to moderately severe pain and carries a hig h

potential for dependency, producing and feeding into the

addiction of a person who has an addictive behavior.

10. Percocet contains Oxycodone, a Schedule II controlled

substance. Oxycodone is a narcotic analgesic indicated for the

relief of moderate to moderately severe pain and carries a high

potential for abuse and dependence.

11. Valium contains Diazepam, a Schedule IV controlled

substance listed in Chapter 893, Florida Statutes. Diazepam is

a benzodiazepine anxiolytic (anti - anxiety drug) and muscle

relaxant. The abuse of Diazepam can lead to physical or

psychological dependence.

12. Vicodin contains Hydrocodone bitartrate, a

Schedule III controlled substance. Hydrocodone is a narcotic

analgesic indicated for the relief of moderate to severe pain on

a short - term basis. Vicodin is a highly addictive medication.

13. Xanax contains alprazolam, a Schedule IV controlled

substance. Alprazolam is a benzodiazepine anxiolytic, and the

abuse of alprazolam can lead to physical and psychological

dependence. Xanax is indicated for the short - term relief of

symptoms of anxiety and is highly addictive.

14. On January 20, 1999, Patient L.D., a 27 - year - old

female, presented to Respondent at his Family Practice clinic

located at 5054 Crawfordville Road, Tallahass ee, Florida (Family

Practice clinic), with complaints of chronic migraine headaches.

Patient L.D. informed Respondent that a neurologist had

previously treated her for the headaches through prescription of

Lortab 10 mg, 120 tablets per month, and Demerol 100 mg, four

injectable per month. Respondent took a minimal history and

physical and did not obtain an adequate history regarding

Patient L.D.’s substance abuse and her prior experience with

narcotic analgesics.

15. Respondent failed to perform a comple te neurologic

evaluation of Patient L.D. He should have, but did not look in

her eyes to see if there was any indication that she may have

had swelling in the brain. Also, Respondent should have

examined her heart and lungs in regard to possible neurolog ical

problems.

16. On January 20, 1999, Respondent prescribed for

Patient L.D. Lortab 10 mg, 120 tablets and Demerol 100 mg

injectable, without sufficient medical justification.

Respondent continued to prescribe these medications through

February 1999. On March 8, 1999, Respondent admonished

Patient L.D. for obtaining prescriptions from her neurologist,

in addition to the prescriptions that she was obtaining from

Respondent, but continued Patient L.D. on Lortab and Demerol.

17. On March 11, 1999, Patien t L.D. presented to

Respondent with multiple symptoms of narcotic withdrawal.

Respondent began prescribing Methadone 5 mg, to be taken four at

a time, four times a day (80 mg/day) for the migraine headaches.

In general, methadone is not an appropriate drug to use for

migraine headaches.

18. Methadone is primarily used for cancer patients or

drug - addicted patients. Methadone patients have to be monitored

carefully and there must be an abundance of documentation

detailing: evidence of opioid toxicity; functional status, both

physical and psychosocial; and evidence of aberrant behavior,

such as escalating the dose or frequent “loss” of prescriptions.

Respondent’s medical records do not contain this type of

documentation on Patient L.D.

19. Respondent continued to prescribe Methadone in the

same amounts from March 11, 1999, through August 2001.

Respondent prescribed an excessive and inappropriate amount of

Methadone to this patient. In addition, while prescribing the

Methadone, Respondent continued pr escribing Demerol to

Patient L.D. This prescribing practice was inappropriate.

Respondent was not monitoring Patient L.D. on a regular basis or

attempting to wean her off of Methadone.

20. Respondent prescribed medications in an inappropriate

and exces sive manner to Patient L.D.

21. Respondent failed to practice medicine within an

acceptable standard of care for Patient L.D. in regard to his

prescribing practice, his failure to obtain an adequate history

and physical, his failure to obtain appropriate tests, and

obtain appropriate referrals.

22. Respondent failed to keep medical records that

adequately documented the course and scope of treatment for

Patient L.D. in regard to his prescription practice, the history

and physicals for the patient, as well as the decision to not

refer this patient out to the appropriate specialists in pain

management and addiction therapy.

23. On May 6, 1999, Patient V.Y., a 30 - year - old female

presented to Respondent at his Family Practice clinic

complaining of abdominal pa in and exhibiting hepatomegalia

(enlarged liver) secondary to Hepatitis C. Hepatitis C is a

chronic disease which rarely causes pain. Patients with

Hepatitis C are at - risk for primarily liver cancer, and

certainly an enlarged liver that is painful should alert one to

the possibility of cancer or other conditions. Without any

further history or examination, Respondent prescribed Dilaudid

2 mg, two times a day.

24. On November 17, 1999, Patient V.Y. presented to

Respondent with the continued pain. Witho ut further history and

only documenting “same” for the diagnosis, Respondent increased

Patient V.Y.’s prescription to Dilaudid 4 mg, two times a day,

quantity 20.

25. On November 24, 1999, Patient V.Y. presented to

Respondent with the continued pain. With out further history and

only documenting “same” for the diagnosis, Respondent prescribed

Dilaudid 4 mg, two times a day, quantity 20.

26. On December 1, 1999, Patient V.Y. presented to

Respondent with continued complaints of pain. Without further

history and only documenting “same” for the diagnosis,

Respondent prescribed Dilaudid 4 mg, two times a day,

quantity 20. Respondent also noted “pending f/u with We Care.”

We Care is a clinic in Tallahassee that assists with

examinations and tests.

27. On Dec ember 8, 1999, Patient V.Y. presented to

Respondent with the continued pain. Without further history or

examination, Respondent prescribed the normal dosage of Dilaudid

and, in addition, prescribed Valium 10 mg, two times a day. The

only added note was “ stressed out job divorce holidays.” The

record also notes that there was no follow - up contact with We

Care.

28. On January 5, 2000, Patient V.Y. presented to

Respondent again for treatment. Respondent’s notes indicated

that We Care rejected the patie nt without any explanation

concerning the rejection. Respondent prescribed Dilaudid 4 mg,

quantity 20.

29. On June 23, 2000, Respondent noted in his record that

the patient could not cope with a reduction in drugs.

Respondent then increased the amount of drugs he prescribed for

Patient V.Y., prescribing Dilaudid and Valium with increases in

Dilaudid until July 2001.

30. On May 1, 2001, Patient V.Y. was admitted to the

Emergency Room of Tallahassee Memorial Hospital (TMH) with an

overdose of Dilaudid an d Valium. The following notes are

contained in TMH’s medical records:

". . .suggest d/c dilaudid for pain control

of hepatitis – not indicated and cleared by

liver" "She should NOT be on chronic

narcotics for hepatitis pain control"

"Dilaudid is not ind icated for

HepC/Cirrhosis especially since it is

cleared by the liver."

31. Respondent should have never prescribed Dilaudid and

Valium to Patient V.Y. Both Dilaudid and Valium are detoxified

through the liver. If the liver is having problems, as was

evident with this patient, it was contraindicated to prescribe

these drugs to her because her liver was damaged. Respondent

did not appropriately treat the Hepatitis C for Patient V.Y.

32. Although Respondent had previously referred

Patient V.Y. for a ga stroenterology study and for an ultrasound

due to her enlarged, painful liver, he did not follow up on this

referral or test and simply continued to prescribe the same

medication for this patient.

33. During the treatment and care of Respondent for

Patient V.Y., Respondent was having a sexual relationship with

her.

34. Respondent prescribed medications inappropriately and

excessively to Patient V.Y.

35. Respondent did not practice medicine within the

acceptable standard of care for Patient V.Y. by his man ner of

prescribing medication, his incomplete physicals and histories,

as well as his inappropriate sexual relationship with the

patient.

36. Respondent failed to keep appropriate medical records

for Patient V.Y. and failed to adequately document the cou rse

and scope of treatment in regard to the prescription practice,

his treatment of the Hepatitis C and liver problems, his

decision not to seek appropriate referrals, as well as his

failure to follow up or order appropriate tests.

37. On May 3, 1999, Pa tient S.W., a 39 - year - old female

with a history of a mechanical soft tissue injury of the

cervical and lumbar spine with a nine percent permanent

impairment rating, presented to Respondent at his Family

Practice clinic with back, neck, and head pain. With out

rendering a complete history or physical examination, Respondent

prescribed Dilaudid 4 mg, quantity 10, along with other

medications.

38. On June 1, 1999, Patient S.W. presented to Respondent

with the same findings again and Respondent, without render ing a

complete history or physical examination, prescribed Lortab

5/500 mg, quantity 15.

39. On December 11, 2000, Patient S.W. presented to

Respondent with the same findings. Respondent prescribed

Dilaudid and Xanax. Respondent’s notes indicated that t he

patient did not get the Magnetic Resonance Imaging test (MRI)

that he had recommended because her car broke down.

40. On May 3, 2001, Patient S.W. finally presented for an

MRI of her back and neck. This test revealed a bulging disc at

L5 - S1 and one a t C6 - 7. However, these are common findings and

were not the source of her pain.

41. Patient S.W. continued to see Respondent until August

2001. During this period of time, Respondent continued to

prescribe Dilaudid and Lortab, and began prescribing, al ong with

other medications: Xanax .5 mg with a gradual increase to

1 mg., Lorcet Plus, Percocet 10/650 mg, and Oxycontin 40 mg.

42. Patient S.W. was clinically stable during the

treatment and care of Respondent; however, medications were

adjusted and cha nged and increased without adequate explanation.

The medications prescribed by Respondent to Patient S.W. were

excessive amounts of narcotics for a condition that did not

require that much pain medication. Respondent never rendered a

complete history or physical examination and did not perform

sufficient testing and appropriate referrals on this patient.

Respondent should have referred Patient S.W. to a physical

therapist and/or pain management center rather than trying to

take care of her himself.

43. During the treatment and care of Respondent for

Patient S.W., Respondent was having a sexual relationship with

her, which Respondent has admitted to in the prehearing

stipulation. This relationship was inappropriate and Respondent

fell below the applicab le standard of care by engaging in this

sexual relationship.

44. Respondent prescribed medications inappropriately and

excessively to Patient S.W.

45. Respondent did not practice medicine within the

acceptable standard of care for Patient S.W. by his man ner of

prescribing medication, his incomplete physicals and histories

as well as his inappropriate sexual relationship with the

patient.

46. Respondent failed to keep appropriate medical records

for Patient S.W. adequately documenting the course and scop e of

treatment in regard to his prescription practice, the history

and physicals for the patient, as well as the decision to not

refer this patient out to the appropriate specialists.

47. On June 10, 1999, Patient J.M., 37 - year - old male,

presented to Res pondent at his Family Practice clinic for a burn

on his forearm. Respondent appropriately treated this

condition. There is an unsigned note in Respondent’s records

dated June 30, 1999, about this patient running a “scam.” The

scam apparently involved th e patient attempting to get narcotic

medications at every clinic in town.

48. Patient J.M. approached the Leon County Sheriff's

Office (LCSO) with a tip about Respondent prescribing narcotics

without adequate justification.

49. On January 20, 2000, Pat ient J.M., now an undercover

informant with LCSO, presented to Respondent at his Family

Practice clinic with a history of a narcotic addition. Without

any counseling or a referral, Respondent prescribed Vicodin,

quantity 20.

50. On January 26, 2000, Pati ent J.M. presented to

Respondent with the same findings as before. Respondent

proceeded to prescribe Vicodin, quantity 20, without any

counseling or a referral and despite the prior note dated

June 30, 1999.

51. On February 3, 2000, Patient J.M. presente d to

Respondent with the same findings as before. Respondent

proceeded to prescribe Vicodin, quantity 20, without any

counseling or a referral and despite the note in his file dated

June 30, 1999.

52. On February 19, 2001, Patient J.M. presented to

Respo ndent with a tooth abscess. Respondent treated the problem

and prescribed Vicodin for pain. Although Respondent did not

violate the standard of care on this visit, the prescribing of

Vicodin to a known drug addict was unwise.

53. Respondent did not do a complete history, physical

examination, or seek proper testing or consultation of

Patient J.M. before prescribing Vicodin. Respondent should have

referred Patient J.M. to an addiction specialist. The medical

records do not justify prescribing Vicodin t o a patient who was

already addicted to it.

54. Respondent prescribed medications inappropriately and

excessively to Patient J.M.

55. Respondent did not practice medicine within the

acceptable standard of care for Patient J.M. by his manner of

prescribi ng medication, his incomplete physicals and histories

for each of the visits detailed above except the June 10, 1999,

and February 19, 2001 visits.

56. Respondent failed to keep appropriate medical records

for Patient J.M. and failed to adequately documen t and justify

the course and scope of treatment accorded to this patient.

57. On February 5, 2000, Officer Butler/Patient L.P., a

31 - year - old female and undercover officer with LCSO, completed a

brief history and physical form for Respondent. She was ther e

as part of her official duties.

58. On February 24, 2000, Officer Butler/Patient L.P.

presented to Respondent at his Family Practice clinic with a

history of an addiction to pain pills. There was no nurse

present during Respondent's examination of this patient. The

extent of the physical examination of Officer Butler/Patient

L.P. was that Respondent took a light and made an “S” shape

across her face. He lifted her shirt and listened to her heart

then took the palm of his hand and rubbed it across her b reast,

and then checked her abdomen. Respondent then proceeded to kiss

this patient. Without further examination or medical history,

Respondent noted “Drug dependence” in Officer Butler/Patient

L.P.’s medical record and prescribed Vicodin ES, one tablet,

three times a day for one week for the patient.

59. On March 9, 2000, Officer Butler/Patient L.P.

presented to Respondent for additional Vicodin pills. At this

visit, Respondent again checked Officer Butler/Patient L.P.’s

heart and lungs and told her to lift her shirt. When she did

not lift it high enough, he lifted it higher himself. Officer

Butler/Patient L.P. indicated to Respondent that she had

received 21 Vicodin off the street the past week.

60. There was no nurse present during this examination .

Respondent kissed Officer Butler/Patient L.P. and silently

mouthed to Officer Butler/Patient L.P. if she wanted to make

love. She did not respond to this message. Respondent then,

without a complete history and physical examination, and only

indicatin g “Same” in the patient's medical record, prescribed

Vicodin ES, quantity 19.

61. Again, on March 23, 2000, Officer Butler/Patient L.P.

presented to Respondent for additional Vicodin pills. She

indicated to Respondent that she had received 20 Vicodin off the

street during the past week. There was no nurse present during

this examination. Respondent inquired about meeting Officer

Butler/Patient L.P. outside of the clinic on a personal basis.

62. Again, without a complete history and physical

examination , and only indicating “Same” in Officer

Butler/Patient L.P.’s medical record, Respondent prescribed

Vicodin ES, quantity 20, during this visit.

63. During the time Officer Butler/Patient L.P. was under

the treatment and care of Respondent, there was never a referral

to a pain management specialist or drug addiction or rehab

clinic. Notably, Officer Butler/Patient L.P. presented to

Respondent with no alleged chronic pain, only her written

statement that she was a drug addict. As a result, Respondent

launch ed into his own self - prescribed treatment plan to reduce

Officer Butler/Patient L.P. from her dependency, a task which

should be performed under the jurisdiction of a licensed

treatment center.

64. Respondent’s medical records for Officer

Butler/Patient L .P. included a very limited history and

physical, no blood work completed, no prior records, an

incomplete history regarding why she was addicted or what

brought her to the point of addiction, and no explanation as to

why she was drug - dependent. There was no legitimate purpose or

justification for prescribing Vicodin to Officer Butler/Patient

L.P.

65. Respondent made sexual advances towards Officer

Butler/Patient L.P. He inappropriately touched and kissed her.

Also, Respondent suggested to Officer Butler /Patient L.P. that

they have sex. Respondent has admitted to having a sexual

relationship with Officer Butler/Patient L.P. in the prehearing

stipulation form.

66. Respondent prescribed medications inappropriately and

excessively to Officer Butler/Patient L.P., and did not practice

medicine within the acceptable standard of care. This is

exemplified in regard to Officer Butler/Patient L.P. by

Respondent's manner of prescribing medication, his incomplete

physicals and histories, as well as his inappropriate sexual

relationship with the patient.

67. Respondent failed to keep medical records that

adequately documented the course and scope of treatment for

Officer Butler/Patient L.P. This is exemplified by Respondent's

prescription practice, the history and physicals for this

patient, as well as the decision to not refer this patient out

to the appropriate specialists (pain management and addiction

specialists).

68. On January 3, 2002, Respondent presented to a

Physician Recovery Network (PRN) evaluator as a self - referral.

This evaluator was Barbara Stein, M.D. The PRN is the impaired

practitioners program for the Board of Medicine, pursuant to

Section 456.076, Florida Statutes. PRN is an independent

program that monitors the evaluation, care and treatmen t of

impaired healthcare professionals. PRN oversees random drug

screens and provides for the exchange of information between the

treatment providers, PRN, and the Department for the protection

of the public.

69. Raymond M. Pomm, M.D., a Board - certified psychiatrist

and addictionologist, is the medical director of the PRN.

Dr. Pomm is charged with responsibility for the oversight of the

program and documentation of compliance and noncompliance with

PRN monitoring contracts.

70. During the evaluation wit h Dr. Stein, Respondent

admitted his inappropriate relationships with Patients V.Y. and

S.W. Respondent was advised that a doctor - patient relationship

was not being formed and that any conclusions or results from

the evaluation would be sent to the PRN.

71. Respondent underwent various tests, including, but not

limited to, the Minnesota Multiphasic Personality Inventory - 2

and the Millon Clinical Multiaxial Inventory - III tests.

Respondent was defensive and did not provide full disclosure of

his situation on these tests.

72. The Diagnostic Statistical Manual, Fourth Edition

(DSM - IV) is the guidebook that all mental health professionals

refer to when they are applying clinical information to

criteria, diagnostic criteria, and rendering diagnoses.

73. Ut ilizing the DSM - IV, Dr. Stein opined that

Respondent had antisocial and narcissistic personality traits

and could not practice with skill and safety to patients at this

time.

74. Dr. Stein opined that, although Respondent does not

perceive that he has a problem, Respondent should seek

treatment. The treatment should be in an inpatient professional

boundary violation program. Then, Respondent should seek

outpatient weekly - to - biweekly cognitive behavioral therapy

geared towards sexual offenders, professio nal boundary violators

and personality disordered individuals with a licensed

PRN - approved provider for at least two years. He should also

receive a series of courses on professional boundaries and be

re - assessed one year after treatment is initiate d to determine

whether he is safe to practice medicine. Dr. Stein opined that

a PRN contract was premature because Respondent has no

conception whatsoever that he has a problem.

75. Following this evaluation by Dr. Stein, Respondent was

seen during the p eriod March 13, 2002, to April 5, 2002, by

Thomas Hauth, M.D. Dr. Hauth’s final diagnosis for Respondent

establishes that there were no diagnoses under any of the Axes,

which register psychiatric or psychological problems. Dr Hauth

opined that Respondent could return to practice under

appropriate treatment.

76. Respondent has seen Mr. Andrew Miller, a licensed

social clinical worker, during the period April 10, 2002,

through the date of the final hearing. Respondent has been

receiving supportive treatme nt, as opposed to remedial

treatment. The PRN is not aware of Respondent’s treatment with

Mr. Miller. In addition, Respondent did not comply with any of

the other recommendations made by Dr. Stein.

77. Although Respondent sought help from Mr. Miller, h e

did not contact the PRN to seek approval of this therapy. In

fact, after the initial evaluation by Dr. Stein and supplying

the report from Dr. Hauth, Respondent had no other dealings with

the PRN.

78. Dr. Pomm's testimony also establishes a diagnostic

concern regarding Respondent. If there were no diagnoses on

Axis I or II, then there is no psychiatric condition and, in the

case of Respondent, one is dealing strictly with a predatory

sexual violator. Dr. Pomm's testimony further establishes that

such an individual should be dealt with in a legal sense without

involvement from a psychiatric point of view.

79. Respondent can not practice medicine with skill and

safety at this time. Further, he is not an appropriate

candidate for the PRN program because of his diagnoses, or lack

thereof, and his lack of insight and motivation.

CONCLUSIONS OF LAW

80. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Sections 120.569, and 120.57(1 ), and

456.073, Florida Statutes.

81. When the Board finds any person guilty of any of the

grounds set forth in Section 458.331(1), Florida Statutes, it

may enter an order imposing one or more of the following

penalties:

(a) Refusal to certify, or certif ication

with restrictions, to the department an

application for licensure, certification, or

registration.

(b) Revocation or suspension of a license.

(c) Restriction of practice.

(d) Imposition of an administrative fine

not to exceed $5,000 for each count or

separate offense.

(e) Issuance of a reprimand.

(f) Placement of the physician on probation

for such period of time and subject to such

conditions as the board may specify,

including, but not limited to, requiring the

physician to submit to tre atment, to attend

continuing education courses, to submit to

re - examination, or to work under the

supervision of another physician.

(g) Issuance of a letter of concern.

(h) Corrective action.

(i) Refund of fees billed to and collected

from the patien t.

82. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner has the burden

of proof in t his proceeding. To meet its burden, Petitioner

must establish facts upon which its allegations are based by

clear and convincing evidence. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern Company , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1st DCA 1987), and Sections

120.57(1)(j) and 458.331(3), Florida Statutes (2000).

83. Section 458.331(1)( t ), (j), (q), and (m) , Florida

Statutes, provide, in pertinent part, as follows:

Grounds for disciplinary action; action by

the board and department. -

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(t) Gross or repeated malpractice o r 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. The board

shall give great weight to the provisi ons of

s. 766.102 when enforcing this paragraph.

As used in this paragraph, "repeated

malpractice" includes, but is not limited

to, three of more claims for medical

malpractice within the previous 5 - year

period resulting in indemnities being paid

in exces s of $25,000 each to the claimant in

a judgment or settlement and which incidents

involved negligent conduct by the physician.

As used in this paragraph, "gross

malpractice" or "the failure to practice

medicine with that level of care, skill, and

treatmen t which is recognized by a

reasonable prudent similar physician as

being acceptable under similar conditions

and circumstances," shall not be construed

so as to require more than one instance,

event, or act. Nothing in this paragraph

shall be construed to require that a

physician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph.

* * *

(j) Exercising influence within a patient -

physician relationship for purposes of

engaging a patient in sexual activity. A

pati ent shall be presumed to be incapable of

giving free, full, and informed consent to

sexual activity with his or her physician.

* * *

(q) Prescribing, dispensing, administering,

mixing, or otherwise preparing a legend

drug, including any controlled s ubstance,

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 controlle d 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.

* * *

(m) Failing to keep le gible, 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, ordering, 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 admi nistered; and

reports of consultations and

hospitalizations.

84. Rule 64B8 - 9.008, Florida Administrative Code,

provides, in pertinent part, as follows:

(1) Sexual contact with a patient is sexual

misconduct and is violation of Sections

458.329 and 458.33 1(1)(j), Florida Statutes.

(2) For purposes of this rule, sexual

misconduct between a physician and a patient

includes, but is not limited to;

(a) Sexual behavior or involvement with a

patient including verbal or physical

behavior which . . .

* * *

1. may reasonably be interpreted as

romantic involvement with a patient

regardless of whether such involvement

occurs in the professional setting or

outside of it;

2. may reasonably be interpreted as

intended for the sexual arousal or

gratification of the physician, the patient

or any third party; or

3. may reasonably be interpreted by the

patient as being sexual.

* * *

(7) A patient’s consent to, initiation of,

or participation in sexual behavior or

involvement with a physician does not change

the nature of the conduct nor lift the

statutory prohibition.

85. Petitioner has demonstrated by clear and convincing

evidence that Respondent has committed the offenses set forth in

the Administrative Complaint. Respondent has prescribed

inappropriatel y, or in excessive amounts and/or without adequate

medical justification, legend drugs to patients. Respondent has

failed to practice medicine with that level of care, skill, and

treatment which is recognized by a reasonable prudent similar

physician as b eing acceptable under similar conditions and

circumstances. Respondent has failed to keep medical records that

justified his course and scope of treatment for patients.

Respondent has exercised influence within the patient - physician

relationship with pat ients for the purpose of engaging them in a

sexual relationship.

86. In the present case, two significant aggravating

factors exist. The Board of Medicine has disciplined Respondent

two prior times. The Board of Medicine entered a Final Order on

June 15, 1989, disciplining Respondent for violations of

Section 458.331(1)(t), (l), and (n), Florida Statutes.

Additionally, the Board of Medicine entered a Final Order on

June 25, 1992, disciplining Respondent for violations of Section

458.331(1)(c) and (x), Fl orida Statutes.

87. The disciplinary guidelines of the Board of Medicine,

found at Rule 64B - 8.001, Florida Administrative Code, provide a

range of penalties for violations of the provisions of

Section 458.331, Florida Statutes. A violation of Section

45 8.331(1)(t), Florida Statutes, has a range from two (2) years'

probation to revocation or denial, and an administrative fine

from $1,000.00 to $10,000.00. A violation of Section

458.331(1)(j), Florida Statutes, has a range from one (1) year's

suspension a nd a reprimand and an administrative fine of

$5,000.00 to revocation or denial, and an administrative fine of

$10,000.00. A violation of Section 458.331(1)(q), Florida

Statutes, has a range from one (1) year's probation to

revocation or denial, and an adm inistrative fine from $1,000.00

to $10,000.00. A violation of Section 458.331(1)(m), Florida

Statutes, has a range from a reprimand to denial or two

(2) years' suspension followed by probation, and an

administrative fine from $1,000.00 to 10,000.00.

RECOM MENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law and the Recommended Range of Penalty under Rule

64B8 - 8.001(2), Florida Administrative Code, and Aggravating and

Mitigating Circumstances under Rule 64B8 - 8.001(3), Florida

Admi nistrative Code, it is

RECOMMENDED that the Board enter a final order finding

Respondent guilty of the charges set forth in the Administrative

Complaint and revoking Respondent’s license.

DONE AND ENTERED this 21st day of March, 2003, in

Tallahassee, Leo n County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of March, 2003.

COPIES FURNISHED :

Steven R. Andrews, Esquire

Andrews & Walker, P.A.

822 North Monroe Street

Tallahassee, Florida 32303 - 6141

John E. Terrel, Esquire

Department of Health

4052 Bald Cypress Way, Bin C65

Tallahassee, Florida 32399 - 3265

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R.S. Power, Ag ency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, 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.