05-000860PL Department Of Health, Board Of Osteopathic Medicine vs. Shelley Wolland, D.O. Status: Closed Recommended Order on Monday, August 22, 2005.

Summary: Respondent violated the Order of Emergency Restriction on her license by administering and dispensing medications to patients.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF OSTEOPATHIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0860PL

)

SHELLY O. WOLLAND, D.O., )

)

Respondent. )

_________________________________)

RECOMM ENDED ORDER

Pursuant to notice, a formal hearing was held in this case

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, in Fort Lauderdale,

Florida, on June 21, 2005.

APPEARANCES

For Petitioner: Diane K. Kie sling

Attorney Supervisor, Litigation

Office of the General Counsel

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Joseph s. Paglino, Esquire

Law Offices of Joseph S. Paglino

12865 West Dixie Highway

North Miami, Florida 33161

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Shelly O.

Wolland, D.O., committed the violations alleged in an

Administrative Complaint dated February 15, 2005, issued b y

Petitioner, the Department of Health, in DOH Case No. 2004 -

50416, and, if so, what disciplinary action should be taken

against her.

PRELIMINARY STATEMENT

In a two - count Administrative Complaint dated February 15,

2005, DOH Case No. 2004 - 50416, Petitioner alleged that

Dr. Wolland violated one statutory provision governing the

practice of health care practitioners in Florida, Section

456.072(1)(q), Florida Statutes (2003 - 2004). The Administrative

Complaint alleged that Dr. Wolland had by certain specified

conduct violated an Order of Emergency Restriction of License

issued by Petitioner in DOH Case No. 2001 - 21687. Dr. Wolland

executed an Election of Rights form disputing the allegations of

material fact contained in the Administrative Complaint and

request ed a formal administrative hearing. The Election of

Rights form was filed wit h Petitioner by counsel for

Dr. Wolland.

On March 8, 2005, Petitioner filed the Administrative

Complaint and Dr. Wolland's request for hearing with the

Division of Administrative Hearings for assignment of an

administrative law judge to conduct an evidentiary hearing. The

matter was designed DOAH Case No. 05 - 0860PL and was assigned to

the undersigned.

On March 17, 2005, a Notice of Hearing was entered

scheduling the final hearing of this matter for May 31 through

June 3, 2005. The final hearing was subsequently rescheduled,

at the request of Respondent, to June 21 through 23, 2005.

Beginning March 14, 2005, and continuing until the final

hearing of this matter, Dr. Wolland filed a series of motions

challenging the Order of Emergency Restriction of License and

Petitioner's conduct since the issuance of the Order. Those

motions included, but are not limited to, a Motion to Vacate

Emergency Restriction of License in DOAH Case No. 20 01 - 21687,

denied by Order entered March 17, 2005; Respondent's Motion to

Dismiss, denied by Order entered March 22, 2005; and a Motion to

Strike Count(s) from Administrative Complaint, denied by Order

entered May 9, 2005. 1

The various pleadings filed by Dr . Wolland challenged the

Order of Emergency Restriction of License essentially alleged

various reasons why the Order, in Dr. Wolland's opinion, is not

a valid order. These efforts were rejected first, because this

forum has no jurisdiction to hear a chall enge to the validity of

the Order of Emergency Restriction and, secondly, because none

of the pleadings suggested that, at the times material to this

case, the order had been declared invalid by any entity.

On April 18, 2005, Dr. Wolland moved for the cons olidation

of this case with DOAH Case No. 05 - 1238PL. The latter case

involves Dr. Wolland's challenge of the Administrative Complaint

issued against her in DOH Case No. 2001 - 22687 which includes

alleged violations which formed the basis for issuance of th e

Order of Emergency Restriction of License. Dr. Wolland argued

that the cases should be consolidated so that she would have an

opportunity to have the Order of Emergency Restriction of

License declared invalid. The Motion was denied by Order

entered Apr il 26, 2005. The Motion was denied because, again,

this forum has no authority to declare the Order of Emergency

Restriction of License "invalid" and, even it did, such a ruling

would not apply retroactively to the times relevant to this

proceeding.

Despi te efforts to explain the limited scope of this case

and the denial of Dr. Wolland's attempts to question the

validity of the Order of Emergency Restriction of License, there

followed a continuing series of motions filed by Dr. Wolland and

Petitioner. Tho se motions were disposed of in an Order on

Outstanding Motions entered May 9, 2005. The Order made clear

that Dr. Wolland's arguments concerning the validity of the

Order of Emergency Restriction of License had been preserved for

appeal and that further a rgument of the issue would not be

considered. Dr. Wolland was also informed that continued

efforts to raise the issue would result in the imposition of an

award of fees and costs to Petitioner.

Despite the foregoing a dmonition, on May 19, 2005,

Dr. Wollan d filed a Motion in Limine raising the same issues

addressed in the Order on Outstanding Motions. The Motion in

Limine was denied by an Order entered May 20, 2005. A ruling on

a Motion for an Award of Attorney's Fees and Costs filed by

Petitioner in resp onse to the Motion was, however, reserved

until the issuance of this Recommended Order. 2 In light of the

recommendation in this Order and, consequently, the likelihood

that the costs associated with Petitioner's prosecution of this

case will be assessed a gainst Dr. Wolland, 3 the Motion for an

Award of Attorney's Fees and Costs is hereby denied.

On June 7, 2005, Petitioner filed a Notice of Intent to

Admit Medical Records. Dr. Wolland filed an Objection to

Petitioner's Notice of Intent to Admit Medical Re c ords on

June 15, 2005. On June 16, 2005, Petitioner filed an Addendum

to Notice of Petitioner's Intent to Admit Medical Records.

Both parties filed unilateral pre - hearing statements. 4

Dr. Wolland admitted certain facts which have been included in

this Re commended Order to the extent relevant.

Immediately before the final hearing, Petitioner filed a

Motion to Strike, seeking an order striking portions of the

deposition testimony of R.S. Power, Petitioner's Agency Clerk,

and Joel B. Rose, D.O. Dr. Wolland filed "objections" to the

Motion on June 23, 2005. The Motion is hereby denied.

At the final hearing, Petitioner presented the testimony of

R.S. Power, Petitioner's Agency Clerk, by deposition; Joel B.

Rose, D.O., an expert witness, by deposition; Christi e Jackson;

Anthony Spine; Thomas Toia, D.C.; Ephraim Livingston, Esquire;

and William Miller, Esquire. Petitioner also had admitted

Petitioner's Exhibits numbered 1 th rough 4, 7 through 8, 10, 11,

and 13. Dr. Wolland testified on her own behalf. She off ered

no exhibits. Dr. Wolland was also given an opportunity to

proffer in writing alleged facts and argument concerning her

argument that the Order of Emergency Restriction of License was

invalidly issued.

Official recognition of Florida Administrative Co de Rule

64B15 - 15.006 was taken at the request of Petitioner.

On July 1, 2005, Dr. Wolland filed Respondent's Request for

Copy of Transcript of Final Hearing. Although it did not appear

that Dr. Wolland was seeking an order from this forum, an Order

Concer ning Request for Copy of Transcript was entered July 8,

2005, informing Dr. Wolland that, if she were making a public

records request from the Division of Administrative Hearings for

a copy of the Transcript, she would have to make her request

through the Clerk of the Division of Administrative Hearings.

On July 25, 2005, Dr. Wolland filed Respondent's Motion for

Official Recognition. On July 29, 2005, Petitioner objected to

the Motion in a Response to Respondent's [Second] Motion for

Official Recognition. Dr. Wolland filed a Reply on August 3,

2005. After consideration of the Motion, it is hereby denied.

A Notice of Filing of Transcript was issued July 8, 2005,

informing the parties that the Transcript of the final hearing

had been filed with the Divisio n on July 7, 2005, and that they

had until July 29, 2005, to file proposed recommended orders.

Both parties timely filed Proposed Recommended Orders, 5 which

have been fully considered in rendering this Recommended Order.

Dr. Wolland also filed Respondent 's Proffer as to the

Unlawfulness of the March 18, 2002 Order addressing issues

previously determined not to be relevant to this matter.

FINDINGS OF FACT 6

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the "Department "), is the agency of the State of

Florida charged with the responsibility for the investigation

and prosecution of complaints involving physicians licensed to

practice osteopathic medicine in Florida. 7

2. Respondent, Shelly O. Wolland, D.O., is, and was a t the

times material to this matter, an osteopathic physician licensed

to practice osteopathic medicine in Florida, having been issued,

on September 30, 1987, license number OS 5378.

3. During the parts of 2003 and 2004 relevant to this

proceeding, Dr. Wo lland worked as an osteopathic physician at

Advanced Integrated Medical Center (hereinafter referred to as

"Advanced"), located at 1655 East Oakland Park Boulevard, Fort

Lauderdale, Florida. She usually worked at Advanced on Tuesdays

and Thursdays.

B. Th e Order of Emergency Restriction of License .

4. On or about March 18, 2002, the Secretary of the

Department issued an Order of Emergency Restriction of License

(hereinafter referred to as the "ERO") in DOH Case No. 2001 -

21687. 8

5. The ERO provides the fo llowing restrictions on

Dr. Wolland's practice of osteopathic medicine:

1. The license of Shelly O. Wolland,

D.O., license number OS 005378, is hereby

immediately restricted in the following

manner:

a. Dr. Wolland's license is hereby

restricted and she is prohibited from

dispensing, administering, or injecting any

medication except for those medicines that

may be required to sustain a patient's life

in a bona fide medical emergency. [Emphasis

added].

. . . .

The ERO clearly prohibits Dr. Wolland from "dispensing . . . any

medication," "administering . . . any medication" OR "injecting

. . . any medication." 9

6. The rationale for issuing the ERO is also explained in

some detail in the Order. In summary, the ERO was issued due to

concerns about D r. Wolland's handling of medications which,

while including pre - filled syringes, also include other

medications which the Department believed were improperly

stored. The Department, while concerned about the pre - filled

syringes, was also concerned about m edications allegedly found

on November 29, 2001, at a clinic allegedly owned by

Dr. Wolland, which could be dispensed or administered other than

by injection. Reading the ERO in its entirety, it is clear that

the Department not only prohibited Dr. Wolland from giving

injections, but it also prohibited Dr. Wolland from

administering or dispensing any medications except in a medical

emergency.

7. The ERO goes on to inform Dr. Wolland of the

consequences of her failure to comply with the restrictions

placed on her practice:

2. Dr. Wolland's failure to comply with

the restrictions placed on her license to

practice osteopathic medicine shall

constitute grounds for a suspension of her

license to practice osteopathic medicine.

3. A proceeding seeking appro priate

discipline, including, but not limited to,

the suspension or revocation of the license

to practice as a physician of Shelly O.

Wolland, D.O. shall be promptly instituted

and acted upon in compliance with Section

120.60(6), Florida Statutes.[ 10 ]

8. The ERO also contains the following "NOTICE OF RIGHT TO

JUDICIAL REVIEW":

Pursuant to Sections 120.60(6), and

120.68, Florida Statutes, the Department's

findings of immediate danger, necessity, and

procedural fairness shall be judicially

reviewable. Rev iew proceedings are governed

by the Florida Rules of Appellate Procedure.

Such proceedings are commenced by filing one

copy of a Petition for Review in accordance

with Rule 9.100, Florida Rules of Appellate

Procedure, with the Department of Health and

a s econd copy of the petition accompanied by

a filing fee prescribed by law with the

District Court of Appeal within thirty (30)

days of the date this Order is filed.

9. The ERO was personally served on Dr. Wolland on

March 26, 2002, by Department Investiga tive Manager Christie

Jackson. Dr. Wolland was, therefore, aware of the ERO during

the times relevant to this matter.

10. The ERO has not been vacated or modified by the

Secretary of the Department; it has not been superseded by a

Final Order of the Boar d of Osteopathic Medicine; and it has not

been overturned by a District Court of Appeal or any other court

of competent jurisdiction.

11. At all times relevant to this proceeding, the ERO has

been in effect.

C. Dr. Wolland's Treatment of E.K.

12. On or about November 20, 2003, a Thursday, E.K.

presented to Advanced for anti - aging treatment by botox 11

injections and to obtain information on testosterone

supplementation. Dr. Wolland made the following diagnosis of

E.K.:

Herniation of L2 and L4 dx by MRI

Lo w back pain, chronic

Left shoulder Capsular shift for chronic

dislocations

History of total knee reconstruction

Decreased libido and erections less full.

Normal again of face, patient wants botox

treatment

13. A treatment plan was established by Dr . Wolland which

included administering or dispensing the following medications:

Depotestosterone, 12 a prescription of Viagra, trigger point

injections 13 on both sides and iliolumbar on both sides, and

botox injections. Except for the Viagra, these medicati ons were

to be administered or dispensed via injection.

14. As ordered by Dr. Wolland, E.K. received an injection

of 200 mg of Depotestosterone intramuscularly; over ten

injections containing Lidocaine, dextrose, and Vitamin B12 on

both sides in the iliol umbar region; two injections to the low

back/sacral region; and botox injections to the glabellar folds

and crows ’ feet area of the eyes.

15. Dr. Wolland signed the examination notes and she

initialed the SOAP notes for E.K.'s treatments of November 20,

2 003. While her signature and initials verify that she ordered

these medications be given via injection and that they were in

fact given, they do not indicate who actually administered the

injections.

16. Diagram notes showing where the injections were gi ven

to E.K. on November 20, 2003, were made by Bach McComb, D.O.,

another osteopathic physician who was employed at Advanced

during the times relevant to this proceeding. Dr. Wolland, at

least on this point, testified credibly and convincingly that it

was Dr. McComb who actually gave the injections, which

Dr. Wolland had ordered and which she actually witnessed.

17. On December 11, 2003, a Thursday, E.K. presented at

Advanced for follow - up treatment. After conducting a physical

examination of E.K., Dr. W olland made the following diagnoses of

E.K.:

Herniation of L2 and L4 dx by MRI

Low back pain, chronic

Decrease of normal lumbar lordosis

curvature.

Left shoulder Capsular shift for chronic

dislocations

History of total knee reconstruction

Decreased libi do and erections less full.

18. A treatment plan was established by Dr. Wolland which

included the administration or dispensing of the following

medications and treatments: Depotestosterone, a testosterone

gel, prescription of Viagra, trigger point injec tions on both

sides and iliolumbar on both sides, and injection therapy to the

lower back. All of these medications and treatments, except the

Viagra and the testosterone gel, were to be administered or

dispensed via injection. E.K. was also scheduled by Dr. Wolland

to return in three weeks "for follow up of botox and

prolotherapy" 14 and "[p]lan prolotherapy to shoulder . . . ."

19. As ordered by Dr. Wolland, E.K. received an injection

of Depotestosterone and trigger point injections on both sides

and the iliolumbar area of his back.

20. Dr. Wolland signed the examination notes and she

initialed the SOAP notes for E.K.'s treatment of December 11,

2003. While her signature and initials verify that she ordered

the medications received by E.K. on December 1 1, 2003, were to

be given via injection and that they were in fact given, they do

not indicate who actually administered the injections.

21. Diagram notes showing where the injections were given

to E.K. on December 11, 2003, were made by Dr. McComb.

Dr. Wolland ordered and actually witnessed the injections.

22. On or about December 30, 2003, a Tuesday, E.K.

presented for follow - up treatment scheduled during his

December 11, 2003, visit. After conducting a physical

examination of E.K., Dr. Wolland made t he following diagnoses of

E.K.:

Herniation of L2 and L4

Low back pain, chronic

Decrease of normal lumbar lordosis

curvature.

Left shoulder Capsular shift for chronic

dislocations

History of total knee reconstruction

Decreased libido and erections less full.

Hypercholesterolemia - 218 LDL is 144, HDL

50

PSA - .7 CBC - normal indices

23. A treatment plan was established by Dr. Wolland which

included the following medications and treatments:

Depotestosterone, intramuscularly, over ten injections

contain ing Lidocaine, dextrose, and Vitamin B12 on both sides in

the iliolumbar region and eight injections to the left shoulder;

and injections containing Lidocaine, dextrose, and Vitamin B 12 to

the low back/sacral region. The medications, dextrose, and

Vitamin B 12 were to be given via injection. All of the

injections ordered by Dr. Wolland were received by E.K. on

December 30, 2003.

24. Dr. Wolland signed the examination notes and she

initialed the SOAP notes for E.K.'s treatment of December 30,

2003. While her signature and initials verify that she ordered

the medications received by E.K. on December 30, 2003, were to

be given via injection and that they were in fact given, they do

not indicate who actually administered the injections.

25. Diagram notes sho wing where the injections were given

to E.K. on December 30, 2003, were made by Dr. McComb.

Dr. Wolland ordered and actually witnessed the injections.

26. On or about March 19, 2004, a Thursday, E.K. presented

for follow - up treatment. 15 After conducting a physical

examination of E.K., Dr. Wolland made the following assessment

of E.K.:

Chronic Low back pain

Herniated lumbar discs

Ligamentous instability of sacroiliac and

lumbar area

right knee knee [sic] instability 2ndry to

acl reconstruction and rep eated injury

left shoulder pain

hypotestosterone level

facial wrinkling

27. A treatment plan was established by Dr. Wolland which

included:

modified injection therapy to sacroiliac

area

bilat

facet injection paravertebral bilat at

lumbosacral level L4 - 5 and L5 S1 #4

Ligament injection sacroiliac and lumbar

bilat iliolumbar and sacroiliac bilat #4

injection sites.

Ozone ot sacroiliac joint bilat

Modified injection therapy of lumbar area

Modified injection therapy of right knee 6

Injection sites t o ligamentous attachments

. . . .

ozone to right knee joint

depotestosterone 200 mg IM

28. Pursuant to Dr. Wollan d's orders, E.K. received a

200 mg injection of Depotestosterone intramuscularly; over ten

injections on both sides in the iliolumbar region; six

injections to the sacroiliac region; four injections to the

right knee; ozone to the right knee and sacroiliac joint; joint

injection to the right knee; and botox injections to the

forehead and other facial areas.

29. Dr. Wolland signed the examinati on notes and she

initialed the SOAP notes for E.K.'s treatment of March 19, 2004.

While her signature and initials verify that she ordered the

medications received by E.K. on March 19, 2004, were to be given

via injection and that they were in fact given, they do not

indicate who actually administered the injections.

30. Diagram notes showing where the injections were given

to E.K. on March 19, 2004, were made by Dr. McComb. Dr. Wolland

ordered and actually witnessed the injections.

31. E.K.'s final vis it to Advanced alleged in the

Administrative Complaint took place on or about September 1,

2004, a Wednesday. The evidence failed to prove who ordered or

actually administered the treatment received by E.K. on this

date. While Dr. Wolland had signed the examination notes and

initialed SOAP notes for prior visits, facts that she readily

admitted, her signature and initials do not appear on any of the

medical records for the September 1, 2004, visit. No credible

evidence was offered that would support a fi nding that Dr.

Wolland saw E.K. on September 1, 2004. 16

D. Dr. Wolland's Treatment of B.K.

32. On or about December 11, 2003, B.K., the wife of E.K.,

presented to Advanced and, in particular, Dr. Wolland for anti -

aging treatment.

33. The following "trea tment plan" was established by

Dr. Wolland for B.K.:

Risks and benefits of botox treatment

Consent signed

Botox treatment given today to crows feet

and glabellar fold area

34. Pursuant to Dr. Wolland's orders, B.K. received

injections of botox to the crows feet and glabellar fold area of

her face.

35. Dr. Wolland signed the examination notes and she

initialed the SOAP notes for B.K.'s treatment of December 11,

2003. While her signature and initials verify that she ordered

the medications received by B.K. on December 11, 2003, were to

be given via injection and that they were in fact given, they do

not indicate who actually administered the injections.

36. Diagram notes showing where the injections were given

to B.K. on December 11, 2003, were made by Dr. McComb.

Dr. Wolland ordered and actually witnessed the injections.

37. On or about December 30, 2003, B.K. again presented to

Advanced and was seen by Dr. Wolland. B.K. made this visit to

receive additional botox injections, which she received afte r

Dr. Wolland conducted a physical examination of her.

38. As in the other visit by B.K. and the visits of E.K.,

Dr. Wolland signed B.K.'s examination notes and she initialed

B.K.'s SOAP notes for the medic ations she received on

December 30, 2003. While her signature and initials verify that

she ordered the medications received by B.K. on December 30,

2003, were to be given via injection and that they were in fact

given, they do not indicate who actually administered the

injections.

39. Diagram notes sho wing where the injections were given

to B.K. on December 30, 2003, were made by Dr. McComb.

Dr. Wolland ordered and actually witnessed the injections.

E. Dr. Wolland's Violation of the ERO .

40. The evidence clearly and convincingly proved that

Dr. Wolla nd conducted examinations of E.K. and B.K. on several

occasions, as discussed, supra , made a diagnosis of their

respective conditions, developed and ordered a treatment plan

for each, which included administering and dispensing of

medications, dextr ose, an d v itamins vi a injections, supervised

and witnessed the injections, and otherwise ensured that her

treatment plan, in particular the administering and dispensing

of the prescribed medications, was carried out. While the

evidence failed to prove that Dr. W olland actually gave any

injection to E.K. or B.K., she admittedly caused the injections

to be given, and, therefore, administered and dispensed the

medications.

41. The foregoing activities constitute "administering . .

. any medication . . ." an activit y prohibited by the ERO except

when "required to sustain a patient's life in a bona fide

medical emergency." None of the medications administered to

E.K. or B.K. were administered to sustain their lives.

42. The common definition of "administer" includes any

activity "to manage or supervise the execution, use, or conduct

of . . . ." Webster's Ninth New Collegiate Dictionary (1984).

With regard to medications, to "administer" means to "give or

apply." Wordnet.Princeton.edu/perl/webwn.

43. Dr. Wolland's activities also constitute "dispensing"

of medications in violation of the ERO. A physician dispenses

medications every time she causes a medication to be given to a

patient. Dr. Wolland should have understood that she was

dispensing medications whether she physically gave the

medications to E.K. or B.K. or, as here, by her action caused

someone else to physically deliver the medications via

injections.

44. While Dr. Wolland may not have directly given or

applied any medications to E.K. or B.K., without her orders,

E.K. and B.K. would not have received any medications. She did,

therefore, by ordering her treatment plans carried out, give,

and, therefore, administer and dispense the medications

specified in her treatment plans. This finding is supported by

Dr. Rose's testimony, which is accepted and credited in this

regard, that a reasonably prudent similar physician would

understand that the ERO limited not only Dr. Wolland's ability

to actually give an injection of medications, but her ability to

order or cause anyone else to do so.

CONCLUSIONS OF LAW

A. Jurisdiction .

45. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Sta tutes (2004).

B. The Charges of the Administrative Complaint .

46. The grounds which may support the Department's

assertion that Dr. Wolland's license should be disciplined are

limited to those specifically alleged in the Administrative

Complaint. See , e .g. , Cottrill v. Department of Insurance , 685

So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State ,

501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Department of

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

47. Section 456.072(2 ), Florida Statutes, authorizes the

Board of Osteopathic Medicine (hereinafter referred to as the

"Board"), to impose penalties ranging from the issuance of a

letter of concern to revocation of a physician's license to

practice osteopathic medicine in Flor ida if a physician commits

one or more of the acts specified in Section 456.072(1), Florida

Statutes.

48. In its Administrative Complaint, the Department has

alleged that Dr. Wolland violated Section 456.072(1)(q), Florida

Statutes, which provides that th e following act constitutes

grounds for disciplinary action by the Board: "Violating a

lawful order of the department or the board, or failing to

comply with a lawfully issued subpoena of the department."

49. The Department has alleged that Dr. Wolland c ommitted

a violation of Section 456.072(1)(q), Florida Statutes , due to

her treatment of B.K. (Count One) and her treatment of E.K.

(Count Two). In particular, it has been alleged that she

violated the ERO by administering or dispensing medications via

in jections to them.

C. The Burden and Standard of Proof .

50. The Department seeks to impose penalties against

Dr. Wolland through the Administrative Complaint that include

suspension or revocation of her license and/or the imposition of

an administrative f ine. Therefore, the Department has the

burden of proving the specific allegations of fact that support

its charge that Dr. Wolland violated Section 456.072(1)(q),

Florida Statutes, by clear and convincing evidence. Department

of Banking and Finance, Divi sion of Securities and Investor

Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); Pou v.

Department of Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d

DCA 1998); and Section 120.57(1)(h), Fl orida Statutes ("Findings

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.").

51. What constitutes "clear and convincing" evidence was

described by the court in Evans Packing Co. v. Department of

Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5

(Fla. 1st DCA 1989), as follows:

. . . [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence 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 the mind of the trier of fact

the firm belief or 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).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

D. Dr. Wolland's Violation of the ERO .

52. The evidence proved clearly and convincingly first ,

that the De partment issued the ERO. Secondly, the evidence

proved that at no time prior to the events which gave rise to

the Administrative Complaint at issue in this proceeding has the

ERO been challenged by Dr. Wolland, withdrawn or modified in any

way by the Depa rtment or any other entity, or declared invalid

by any court of competent jurisdiction.

53. The evidence therefore proved clearly and convincingly

that, during 2003 and 2004 when Dr. Wolland treated E.K. and

B.K., the ERO was "a lawful order of the . . . Department . . .

."

54. The Department also proved clearly and convincingly

that Dr. Wolland, by ordering the medications received by E.K.

on November 20 and December 11 and 30, 2003, and March 19, 2004,

and by B.K. on December 11 and 30, 2003, administer ed and

dispensed medications via injection in violation of the ERO.

55. What the evidence did not prove, however, was that

Dr. Wolland actually gave the injections received by E.K. and

B.K. as argued by the Department. The Department's suggestion

that Dr . Rose's "opinion" testimony that, based upon

Dr. Wolland's initials and signature on the medical records for

E.K. and B.K., Dr. Wolland must have actually administered the

injections, is not persuasive. Whether Dr. Wolland actually

stuck the needles into E.K. and B.K. simply cannot be proved by

opinion testimony, especially where the only eyewitness to the

events to testify at hearing, Dr. Wolland, testified credibly

and convincingly, at least on this point, that she did not

actually give the injections.

56. Additionally, Dr. Rose's suggestion that, since no

other physician's name appears in the medical records other than

Dr. Wolland ’s , she must have given the injections is rejected.

This forum and, no doubt, the Board have seen too many cases

where medi cal records have proven to be less than adequate. It

is, therefore, just as plausible that the person who actually

gave the injections was simply not noted in the medical records.

This is especially true since Dr. McComb gave the shots and, as

alleged, b ut not proved, his license was suspended at the time.

57. Finally, the Department's suggestion that the

statements made during an interview of E.K., which the

Department admitted constitutes hearsay, can be relied upon to

corroborate or further explain Dr . Rose's opinion is rejected

for three reasons.

a. First, Dr. Rose's opinion testimony, as explained,

supra , cannot form the basis of a finding of simple "fact" that

Dr. Wolland gave the injections; whether Dr. Wolland actually

stuck the needle into E.K. and B.K. requires actual knowledge

and not speculation in the guise of "opinion."

b. Secondly, the hearsay evidence, which consists almost

exclusively of comments attributable to E.K., is of such

questionable reliability, that to rely upon the statements in

any fashion would clearly violate Dr. Wolland's due process

right to confront evidence presented against her.

c. Finally, the circumstances surrounding the taking of

the hearsay statement, in particular, the condition of E.K. and

B.K. at the time the s tatement was taken, raise such serious

questions concerning the credibility of E.K. and B.K. at the

time, that the statements are simply not reliable. Both E.K.

and B.K. at the time they were questioned were patients of

Shepherd's Center, a critical care facility located in Atlanta,

Georgia, recovering from having received improper botox

injections. Given their condition, as described by

Mr. Livingston and Mr. Miller, it is concluded that it was

critical for the trier of fact to have observed them while t he

statements were given in order to determine their credibility.

Not having been able to do so, their statements can be given no

weight, even if otherwise admissible.

E. The Appropriate Penalty

58. In determining the appropriate punitive action to

reco mmend to the Board in these cases, it is necessary to

consult the Board's "disciplinary guidelines," which impose

restrictions and limitations on the exercise of the Board's

disciplinary authority. See Parrot Heads, Inc. v. Department of

Business and Prof essional Regulation , 741 So. 2d 1231 (Fla. 5th

DCA 1999).

59. The Board's guidelines are set out in Florida

Administrative Code Rule 64B15 - 19.002, which provides the

following instruction on the application of the penalty ranges

provided in the Rule:

In i mposing discipline upon applicants and

licensees, the board shall act in accordance

with the following disciplinary guidelines

and shall impose a penalty within the range

corresponding to the violations set forth

below. The statutory language is intended

to provide a description of the violation

and is not a complete statement of the

violation; the complete statement may be

found in the statutory provision cited

directly under each violation description.

60. Florida Administrative Code Rule 64B15 - 19.002( 31),

goes on to provide, in pertinent part, a minimum penalty of a

reprimand and a $5,000.00 fine and a maximum penalty of a

suspension followed by a probation and a $7,500.00 fine.

Greater penalties are specified for a second offense, which is

not at iss ue in this case.

61. Florida Administrative Code Rule 64B15 - 19.003,

provides that, in determining the appropriate penalty, the

following aggravating and mitigating circumstances are to be

taken into account in determining the penalty:

(1) The danger to the public;

(2) The length of time since the

violations;

(3) The number of times the licensee has

been previously disciplined by the Board;

(4) The length of time the licensee has

practiced;

(5) The actual damage, physical or

otherwise, caused by the violation;

(6) The deterrent effect of the penalty

imposed;

(7) The effect of penalty upon the

licensee’s livelihood;

(8) Any effort of rehabilitation by the

licensee;

(9) The actual knowledge of the licensee

pertaining to the violation;

(10) Attempts by the licensee to correct or

stop violations or refusal by licensee to

correct or stop violations;

(11) Related violations against licensee in

another state, including findings of guilt

or innocence, penalties imposed and

penalties served;

(12) The act ual negligence of the licensee

pertaining to any violations;

(13) The penalties imposed for related

offenses;

(14) The pecuniary gain to the licensee;

(15) Any other relevant mitigating or

aggravating factors under the circumstances.

Any penalties impos ed by the board may not

exceed the maximum penalties set forth in

Section 459.015(2), F.S.

62. In its Proposed Recommended Order, the Department has

corre ctly suggested that Dr. Wolland should be treated as a

first offender. The Department has recommend ed that her license

be suspended for one year, followed by three years of probation,

and that she be required to pay a $7,500.00 fine.

63. Having carefully considered the facts of this matter

in light of the provisions of Florida Administrative Code Rul e

64B15 - 19.003, it is concluded that the Department's suggested

penalty is excessive. The Department's suggested penalty fails

to take into account the following factors:

a. The evidence failed to prove that Dr. Wolland's actions

placed the public, and i n particular, E.K. and B.K. in danger;

b. The evidence failed to prove that there was any damage,

physical or otherwise, caused by her failure to comply with the

ERO;

c. Her license and, consequently, her ability to freely

practice has been restricted fo r almost two and one - half years;

and

d. A further suspension of her license will cause her

further financial hardship.

64. Based upon the foregoing, it would be appropriate to

place Dr. Wolland's license on probation for a period of three

years and she s hould be required to pay a fine in the amount of

$5,000.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Board

of Osteopathic Medicine finding that Shelly O. Wolla nd, D. O.,

has violated Section 456.072(1)(q), Florida Statutes, as

described in this Recommended Order; requiring that she pay a

fine in the amount of $5,000.00; placing her license on

probation for a period of three years; and requiring that she

complete continuing education in subjects as directed by the

Board of Osteopathic Medicine.

DONE AND ENTERED this 22nd day of August, 2005, in

Tallahassee, Leon County, Florida.

S

______________________________ _____

LARRY J. SARTIN

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 22nd day of August, 2005.

ENDNOTES

1 / An Order Denying Motion to Strike Count(s) entered April 20,

2005, was rescinded on April 28, 2005, to allow further

consideration of the Motion.

2 / Dr. Wolland, who had not timely filed a response to the

Motion as of the date of the final hearing of this matter, filed

Respondent's Reply [sic] to Petitioner's Motion for Attorneys

Fees and Costs on June 29, 2005.

3 / §456.072(4), Fla. Stat.

4 / Both parties also filed addenda to their pre - hearing

statements. Dr. Wolland's addendum indicated that she intended

to call counsel for Petitioner as a witness. An objection to

Dr. Wolland's effort to call counsel for Petitioner was

sustained.

5 / Dr. Wolland filed Respondent's Proposed Recommended Order on

July 25, 2005; Respondent's Corrected Proposed Recommended Orde r

on July 27, 2005; and Respondent's Errata Sheet on August 8,

2005.

6 / Several factual allegations of the Administrative Complaint

have little bearing on the outcome of this case. Those

allegations, even if proved at the final hearing of this matter,

h ave not been included as a findings of fact in this Recommended

Order because they are deemed "material." For example, the

descriptions of the medications administered and dispensed by

Dr. Wolland have little, if any, bearing on the outcome of this

matter . Ultimately, all that matters is whether Dr. Wolland

administered, dispensed, or injected any type medication, which

would constitute a violation of the Order of Emergency

Restriction of License.

7 / See §20.43, and Chs. 456 and 459, Fla. Stat.

8 / An Administrative Complaint which arose out of the events

which were the impetus for issuance of the ERO was signed

April 12, 2002, and is now the subject of DOAH Case No. 05 -

1238PL.

9 / In numbered paragraph 3 of Respondent's Corrected Proposed

Recommended Order, Dr. Wolland has argued incorrectly that the

ERO "prohibited Respondent from dispensing or administering any

medication by injection . . . ." [Emphasis added]. If this

represents Dr. Wolland's belief about the proscription of the

ERO, it may explai n her failure to comply with the ERO.

Dr. Wolland, however, did not explain at hearing how she

interpreted the ERO.

10 / These paragraphs were incorrectly numbered "3" and "4" in

the original ERO. They were correctly renumbered "2" and "3" by

Notice of S crivener's Error entered by the Department on

March 18, 2002.

11 / Botox, which contains Botulinum Neurotoxin, is a legend drug

requiring a physician's prescription for its use.

Depotestoserone is a Schedule III controlled substance under

Section 893.03(3 )(d), Florida Statutes (2003 - 2004).

12 / Depotestoserone is a Schedule III controlled substance under

Section 893.03(3)(d), Florida Statutes (2003 - 2004).

13 / Trigger point injections should only be administered by an

osteopathic or medical physician.

14 / "Prolotherapy" involves the injection of a dextrose solution

into a ligament or tendon where it attaches to the bone. The

injection causes a localized inflammation in these weak areas

which then causes an increase in the blood supply and flow of

nutrient s and stimulates to the tissue which will assist in

repairing the area.

15 / Although the medical notes for this visit cause some doubt

as to whether the visit took place on March 18 or 19, the weight

of the evidence supports the finding that the visit occ urred on

March 19, given the fact that Dr. Wolland's usual practice was

to work on Tuesdays and Thursdays. March 18, 2004, was a

Wednesday, a day that Dr. Wolland did not work at Advanced.

16 / It was suggested, but not proved, at the final hearing of

thi s matter that Dr. McComb's license to practice had been

suspended and, therefore, it has been suggested that Dr. McComb

did not give the injections at issue in this case or see E.K. on

his own on September 1, 2004. The evidence in this case simply

did not prove any of these suggested "facts." The only direct

credited evidence on this point was Dr. Wolland's testimony that

she did not work on Wednesdays and, more specifically, that she

did not see E.K. on September 1, 2004.

The fact that her name appears on the billing record for the

September 1, 2004, visit does not prove she actually saw E.K.

It is more likely that someone at Advanced was aware that Dr.

McComb's license was suspended (assuming it was) and, therefore,

listed the billing under Dr. Wolland 's name, especially in light

of the fact that E.K. was her patient.

COPIES FURNISHED:

Diane K. Kiesling

Attorney Supervisor, Litigation

Office of the General Counsel

Department of Health

Prosec ution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Joseph s. Paglino, Esquire

Law Offices of Joseph S. Paglino

12865 West Dixie Highway

North Miami, Florida 33161

Pamela King, Executive Director

Board of Osteopathic Med icine

Department of Health

4052 Bald Cypress Way, Bin C - 06

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

R.S. Power, Agency Clerk

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 s ubmit 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 these cases.