05-003646PL Department Of Health, Board Of Medicine vs. Abbey Strauss, M.D. Status: Closed Recommended Order on Wednesday, April 26, 2006.

Summary: Respondent`s chronic pain management of the patient violated Sections 458.331(1)(m), 458.331(1)(g), and 458.331(1)(t), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3646PL

)

ABBEY STRAUSS, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pur suant to notice, a formal hearing was held in this case

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

Division of Administrative Hearings, On December 16, 2005, by

video teleconference between West Palm Beach and Tallahassee,

Florida, and on J anuary 31, 2006, by video teleconference

between Jacksonville and Tallahassee, Florida.

APPEARANCES

For Petitioner: J. Blake Hunter

Diane Kiesling

Assistants General Counsel

Prosecution Services Unit

Office of General Counsel

Department of Health

40 52 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Lawrence E. Brownstein, Esquire

Northbridge Centre

515 North Flagler Drive

Suite 300 - Pavilion

West Palm Beach, Flor i da 33401 - 4326

STATEMENT OF THE ISSUE

The issue in th is case is whether Respondent, Abbey

Strauss, M.D., committed violations of Chapter 458, Florida

Statutes, as alleged in a First Amended Administrative Complaint

issued by Petitioner, the Department of Health, on October 5,

2005, in DOH Case Number 2002 - 15 730; and, if so, what

disciplinary action should be taken against his license to

practice medicine in Florida.

PRELIMINARY STATEMENT

On or about June 28, 2005, the Department of Health filed a

three - count Administrative Complaint against Respondent Abbey

S trauss, M.D., an individual licensed to practice medicine in

Florida, before the Board of Medicine, in which it alleged that

Dr. Strauss had committed violations of Section 458.331(1)(m),

(q), and (t), Florida Statutes (1997 through 2002). 1 Respondent

dis puted the allegations of fact contained in the Administrative

Complaint and, on or about July 19, 2005, executed an Election

of Rights form requesting a formal administrative hearing

pursuant to Sections 120.569(2)(a) and 120.57(1), Florida

Statutes (2005) .

On October 4, 2005, the matter was filed with the Division

of Administrative Hearings with a request that an administrative

law judge be assigned to conduct proceedings pursuant to Section

120.57(1), Florida Statutes (2005). The matter was designated

DO AH Case Number 05 - 3646PL and was assigned to the undersigned.

On October 6, 2005, a Motion to Amend Administrative

Complaint was filed by Petitioner. A First Amended

Administrative Complaint, issued October 5, 2005, was filed with

the Motion. That Motion was granted by an Order Granting Motion

to Amend Administrative Complaint entered October 11, 2005.

The final hearing was scheduled to be held on December 16,

2005, by Notice of Hearing by Video Teleconference entered

October 12, 2005. The hearing was sc heduled to be conducted

between West Palm Beach, Florida, and the offices of the

Division of Administrative Hearings in Tallahassee, Florida.

On November 16, 2005, Petitioner's Motion for Official

Recognition was granted. Official recognition was taken of

S ubs ections 458.331(1)(m), (q), and (t), Florida Statutes (1997

through 2002).

On November 29, 2005, a Joint Prehearing Stipulation was

filed by the parties. The Joint Prehearing Stipulation provides

that "those facts that are admitted" are "[t]hose admi ssions of

Respondent to his Responses to Petitioner's Request for

Admissions." Those admissions have been incorporated into the

Findings of Fact of this Recommended Order.

Prior to the commencement of the final hearing, the

following motions were filed fo r which there was inadequate time

for response and ruling prior to the commencement of the

hearing:

1. Respondent's Motion for Partial Summary Judgment/Motion

in Limine with Respect to Ativan;

2. Respondent's Motion to Add Billing Ledge r to Exhibit

List;

3. Respondent's Motion for Official Recognition;

4. Petitioner's Second Motion for Official Recognition;

and

5. Respondent's Motion in Limine to Exclude Testimony of

Petitioner's Experts.

Argument on most of the Motions was heard at the

commencement of the final hearing but before the court reporter

arrived. The following rulings were entered on the first four

Motions: Respondent's Motion for Partial Summary Judgment/Motion

in Limine with Respect to Ativan was denied; Respondent's Motion

to Add Billing Ledger to Exhibit List was granted without

objection; Respondent's Motion for Official Recognition was

granted without objection; and Petitioner's Second Motion for

Official Recognition was granted to the extent ultimately

determined relevant.

Argument wa s h eard after the court reporter arrived on

Respondent's Motion in Limine to Exclude Testimony of

Petitioner's Experts. A ruling on that Motion was reserved to

give the parties an opportunity to make additional argument in

their proposed recommended order s. Petitioner addressed the

issues raised in Respondent's Motion in Limine to Exclude

Testimony of Petitioner's Experts in its Proposed Recommended

Order. Respondent did not. After consideration of the Motion,

the argument presented at hearing, and the Petitioner's written

argument, the Motion is hereby denied.

On December 16, 2005, Petitioner presented the testimony of

Joseph T. Worden, M.D., an expert in pain management, and, by

deposition, the testimony of James Edgar, M.D., who is hereby

accepted as an expert in pain medicine and pain management.

Petitioner offered and had admitted Petitioner's Exhibits 1

through 4 and 6 through 7. Petitioner's Exhibit 8 is the

Transcript of the deposition testimony of Dr. Edgar.

Petitioner's Exhibit 8 is admitted.

Respondent testified on his own behalf. Respondent offered

and had admitted Respondent's Exhibits 5 through 6 , 2 8, and 10.

A ruling on the admissibility of Respondent's Exhibit 9 was

reserved. That exhibit is hereby rejected. Had it been

admitted, it would not have supported any relevant finding of

fact.

Having been unable to complete the final hearing on

December 16, 2005, the hearing was continued until January 31,

2006. On that date the hearing was reconvened by video

teleconferencing between Jacks onville and Tallahassee, Florida.

During this portion of the hearing, Respondent presented the

testimony of William Jacobs, M.D.

The Transcript of the portion of the final hearing

conducted on December 16, 2005, was filed on February 1, 2006.

On Februar y 17, 2006, the Transcript of the portion of the

hearing conducted on January 31, 2006, was filed. By Notice of

Filing Transcript, entered February 22, 2006, the parties were

informed that the Transcripts had been filed and that their

proposed recommended orders were to be filed on or by March 20,

2006.

Petitioner filed Petitioner's Proposed Recommended Order on

March 20, 2006. Respondent filed Respondent's Proposed

Recommended Order on March 21, 2006, along with Respondent's

Unopposed Motion for One Day Extension of Time to File Proposed

Recommended Order. It appearing that Petitioner has not been

prejudiced by Respondent having filed his proposed order one day

late, the Motion is hereby granted. The proposed orders of both

parties have been fully consi dered in rendering this Recommended

Order.

FINDINGS OF FACT

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 medicine in Florida. § 20.43 and Chs. 456 and 458,

Fla. Stat. (2005).

2. Respondent, Abbey Strauss , M.D., is, and was at the

times material to this matter, a physician licensed to practice

medicine in Florida, having been issued license number ME 45950.

Dr. Strauss has been licensed in Florida since 1985.

3. Dr. Strauss is board - certified in psychiatry by the

American Board of Psychiatry and Neurology.

4. Dr. Strauss has not prev iously been the subject of a

license disciplinary proceeding in Florida.

5. The following description of Dr. Strauss' education and

experience, contained in Respondent's Proposed Recommended

Order, was uncontroverted by the evidence in this case, and is

a ccepted as accurate:

Respondent has significant background and

experience in diagnosing and treating

addiction and substance abuse issues. For

instance, before becoming a physician,

Respondent achieved a Master's Degree in

Psychiatric Social Work from New York

University in 1972. . . . As a social

worker, Respondent gained significant

experience in the areas of drug abuse and

addiction while working for the South

Carolina Department of Mental Health. Part

of his duties was to set up a crisis

intervention center relating to drug abuse

problems. . . . He also took part in the

establishment of the County Drug Abuse

Society as a member of a committee,

established by the governor of South

Carolina, concerning substance abuse issues

in that state. . . .

Res pondent graduated from the Medical

University of South Carolina in 1981 and was

Chief Resident at Beth Israel Medical Center

in New York City. . . . His academic and

clinical experience in addiction and

substance abuse related issues continued.

Upon comp letion of medical school,

Respondent also taught at New York

University in the areas of

psychopharmacology which included issues

relating to substance abuse. . . . While a

psychiatric resident at Beth Israel Medical

Center in New York City, Respondent gai ned

more clinical experience in the area of

addiction at Beth Israel Medical Center . .

. which at that time had one of the largest

addiction units in New York City. . . .

Respondent treated patients at the Methadone

Maintenance Clinic in New York City fo r dual

diagnosis, i.e., people having both

psychiatric and substance abuse problems. .

. . Respondent has also been retained in

the past to study the effects of

medications, including cocaine, on

behaviors.

6. Dr. Strauss is not certified in pain manage ment or

addiction medicine.

B. Patient S.R.

7. At issue in this case is Dr. S trauss' treatment of

S.R., a 51 - year - old male, from November 1997 through August

2002.

8. S.R. has a history of having sustained severe injuries

and having received treatment f or t hose injuries. S.R. was

injured in vehicle accidents in 1987 and 1996. He suffered a

fractured pelvis, a closed - head injury, and a left - leg fracture ,

which required open reduction internal fixation, including the

insertion of three steel screws. As a result of the leg

fracture and resulting surgery, S.R.'s left leg is shorter than

his right leg, causing him to walk with an antalgic gait, which,

in turn puts stress on his spine. Additionally, S.R. is

becoming arthritic and suffers from herniations in the lumbar

and cervical spine.

9. S.R. suffers from chronic pain associated with his

injuries and condition.

10. S.R. has a history of abuse and addiction to heroin

and alcohol. Prior to coming under Dr. Strauss' care, S.R. had

been discharged from a d rug rehabilitation facility due to a

relapse and had, just eight months prior to his first visit to

Dr. Strauss, relapsed for alcohol abuse.

11. At the time that S.R. first saw Dr. Strauss, he was

under the care of a Dr. Porter.

12. More than a year befo re S.R. first saw Dr. Strauss,

S.R. had been treated by Joseph Alshon, D.O., who practices

physical medicine and rehabilitation, for chronic pain. Among

the treatments prescribed by Dr. Alshon were epidural steroid

injections, trigger point injections, an exercise program,

hydroculator therapy, spinal manipulations and small doses of

pain medications. According to Dr. Alshon's medical records,

these treatments helped to control and alleviate S.R.'s pain.

13. S.R. had also previously been under the care o f

others, including a number of surgeons, who were not identified

at hearing. These physicians were responsible for care given to

S.R. as a result of the injuries he sustained in 1987 and 1996.

C. S.R.'s First Visit to Dr. Strauss .

14. On November 11, 1 997, S.R. presented to Dr. Strauss'

office with complaints of chronic back pain and pain of the

lower extremities due to arthritis and the fracture of his left

leg.

15. S.R. indicated that, but for his pain, his life was

adequate and that he understood th at he could not function

without medications to control his pain.

16. Based upon the then used Visual Analog Scale, which

involves a patient giving a subjective measure of his or her

pain, with ten being the worst and zero being "without pain,"

S.R. told Dr. Strauss that he was a "nine" with out medication

and a "three or four" with medication.

17. S.R. was somewhat candid to Dr. Strauss about his

prior addiction history. S.R. also expressed concern about

obtaining future treatment for his chronic pain be cause of his

past history. Dr. Strauss' notes, however, to the extent

legible, only report that S.R. had been involved in Alcoholics

Anonymous for eight years, but had relapsed "8 months ago"; that

he was afraid "that his addiction" history would prevent him

from getting necessary medications; and that "methadone" had

"worked well for pain." There is no indication in Dr. Strauss'

notes what "his addiction history" was or why he was taking

methadone.

18. S.R. also reported to Dr. Strauss that he was

curre ntly taking OxyContin.

19. OxyContin is a semi - synthetic opiate containing

oxycodone hydrochloride, a schedule II controlled substance

listed in Chapter 893, Florida Statutes. OxyContin is used to

giv e relief from moderate to severe pain. It has a high

potential for abuse, which may lead to severe physical and

psychological dependence. 3

20. Physical dependence is an expected and natural result

of the use of OxyContin. See Fla. Admin. Code R . 64B8 -

9.013(2)(b) and (f). Physical dependence is defined in Florida

Administrative Code Rule 64B8 - 9.013(2)(f), as follows:

For the purpose of this rule, “physical

dependence” on a controlled substance is

defined as a physiologic state of neuro -

adaptation which is characterized by the

emergence of a withdrawal syndr ome if drug

use is stopped or decreased abruptly, or if

an antagonist is administered. Physical

dependence is an expected result of opioid

use. Physical dependence, by itself, does

not equate with addiction.

21. During S.R.'s first visit Dr. Strauss di agnosed him as

having "degenerative disc disease." Due to the possible adverse

impact on S.R. if he did not continue to take OxyContin,

Dr. Strauss prescribed two 40 mg tablets of OxyContin, to be

taken twice a day. Dr. Strauss also prescribed Valium and

Flexeril.

22. Valium contains diazepam, a schedule IV controlled

substance listed in Chapter 893, Florida Statutes. It is used

for the management of anxiety disorders and short - term relief of

anxiety. Diazepam has a potential for abuse, which may lead to

physical and psychological dependence.

23. Dr. Strauss did not perform a physical examination of

S.R. during his first visit. Consequently, no medical record of

a physical examination was made on November 11, 1997. Not

having the medical records, inc luding records of any physical

examination, on November 11, 1997, of any other physician from

whom S.R. was currently receiving treatment or had in the past

received treatment, Dr. Strauss relied solely on S.R.'s

representations as to his prior history and condition to

diagnose and treat S.R. on November 11, 1997.

D. S.R.'s Continued Treatment Through August 2002 .

24. After S.R.'s initial visit, Dr. Strauss saw S.R. on

the following dates and prescribed the following medications:

a. December 4, 1997: fo ur 40 mg tablets of OxyContin, to

be taken twice a day, and 20 mg to be taken as needed (a total

of 160 mg twice a day, plus 20 mg "as needed"), and; 2.5 mg of

Valium to be taken three times a day;

b. January 2, 1998: three 80 mg tablets of OxyContin, to

be taken twice a day (a total of 240 mg twice a day); and the

same amount of Valium previously prescribed;

c. January 22, 1998: five 80 mg tablets of OxyContin, to

be taken twice a day (a total of 400 mg twice a day);

d. Between January 22 and March 17 , 1998: seven 80 mg

tablets of OxyContin, to be taken twice a day (a total of 560 mg

twice a day);

e. March 17, 1998: five 80 mg tablets of OxyContin, to be

taken three times a day (a total of 400 mg three times a day);

f. April 9, 1998: 960 mg of Oxy Contin, to be taken twice

a day;

g. April 27, 1998: 80 mg tablets of OxyContin, 12 tablets

to be taken in the morning, six tablets at mid - day, and 12

tablets at bedtime (a total of 30 tablets or 2,400 mg a day);

h. July 30, 1998: 200 mg tablets MS Cont in, 12 tablets to

be taken per day. MS Contin contains morphine, a schedule II

controlled substance listed in Chapter 893, Florida Statutes.

It is indicated for the relief of moderate to severe pain.

Morphine has a high potential for abuse, which may le ad to

severe physical and psychological dependence. Dr. Strauss

failed to discuss with S.R. and, as a consequence, to document

any such discussion, the risks and benefits of taking MS Contin

instead of OxyContin.

i. July 1998 to August 2002: 200 mg tabl ets MS Contin,

ten to 12 tablets, to be taken two or three times a day (a total

of 2,000 to 2,200 mg two or three times a day); 10 mg tablets

Valium, one tablet, to be taken three times a day; and one mg

tablet of Ativan, one tablet to be taken as needed. Ativan

contains lorazepam, a schedule IV controlled substance listed in

Chapter 893, Florida Statutes. It is indicated for management

of anxiety disorders and short - term relief of anxiety.

Lorazepam has a low potential for abuse. Where abuse occurs, it

can lead to limited physical and psychological dependence.

E. S.R.'s Medical History .

25. Subsequent to seeing S.R. on November 11, 1997, Dr.

Strauss obtained some, but not all, of S.R.'s medical records

which had been created by Dr. Alshon. Apparently , Dr. Alshon

was giving S.R. trigger - p oint injections while under

Dr. Strauss' care, but Dr. Strauss did not have any medical

records concerning those injections.

26. Dr. Strauss did not obtain S.R.'s medical records from

Dr. Porter. Although there was a rgument presented at hearing to

suggest that an effort was made to obtain S.R.'s medical records

from Dr. Porter, but that the effort failed because Dr. Porter

was no longer in practice, the evidence failed to prove this

assertion. Dr. Strauss' testimony in this regard was not

convincing, especially in light of the fact that his records

fail to reflect that he obtained a signed consent form from S.R.

allowing him to obtain his records from Dr. Porter. More

importantly, Dr. Strauss was not able to state wi th certainty

whether any effort had been made to obtain Dr. Porter's records:

Q. Why didn't you get Dr. Porter's records?

A. As we sit here, I don't know why we

didn't get them. I know that we certainly

would have tried to, because it would have

been il logical to get records from one

doctor and no t the next. I don't know when

Dr. Porter went out of practice, it was a

long time ago, and we were just unable to

get them .

Transcript of December 16, 2005, page 197, lines 20 to 25, and

page 198, line 1. In essence, Dr. Strauss merely testified

about what he believed should have happened. Given the lack of

signed consent from S.R. to o btain Dr. Porter's records,

Dr. Strauss' testimony that it would have "illogical" to get

records from one doctor an d not Dr. Porter is rejected.

27. Other than Dr. Alshon's records, Dr. Strauss did not

obtain any other relevant medical records, including those

related to S.R.'s treatment for heroin addiction or his

treatment for injuries and the surgery he had undergone prior t o

his treatment by Dr. Alshon. R ather, he relied largely on

Dr. Alshon's diagnosis for the cause of S.R.'s chronic pain.

F. Treatment Plan for S.R.

28. Dr. Strauss' testified at hearing that he indeed had a

treatment plan, including objectives, for S.R. According to

Dr. Strauss his treatment plan included, most significantly,

managing S.R.'s chronic pain. He indicated that he intended to

achieve this goal through increased exercise, weight control,

working on improved personal relationships with, among others,

his daughter, mother, father, and girl friend (whom he

ultimately married), and his ability to remain employed.

29. While there are indeed references to the objectives

outlined by Dr. Strauss during his testimony in his medical

notes for S.R., hi s medical notes do not indicate the type of

treatment plan, including objectives, described by Dr. Strauss

at hearing. Indeed, his medical records do not include anything

which could be considered a well - devised treatment plan.

30. Dr. Strauss failed to prepare a plan which included

the source of S.R.'s pain, a copy of the medical records that

describe and validate previous treatments of S.R., consultations

with specialist s which were, at a minimum, at least considered

and discussed, or any consideration of how S.R.'s pain could be

further controlled and alleviated. Dr. Strauss, whose primary

treatment was to continue increasing the amount of pain

medication prescribed to S.R. until S.R. indicated that he was

doing okay was not even reflected in Dr. Strau ss's notes.

31. Dr. Strauss also failed to document the extent to

which psychiatric issues were contributing to S.R.'s chronic

pain, if at all. Dr. Strauss also failed to document his

conclusions concerning S.R.'s character as it related to his

treatment , something which Dr. Strauss did do during his

testimony as to why he concluded that S.R. was not abusing his

medications.

G. Special Consultations .

32. Throughout the pe riod of S.R.'s treatment by

Dr. Strauss from November 1997 to August 2002, and, mos t

importantly, during the first few months of his treatment of

S.R., Dr. Strauss did not refer S.R. to any other physician for

consultation or additional diagnostic testing. The first few

months of his treatment are significant because it was during

this period of time that he significantly increased the dosage

and frequency that S.R. was to take OxyContin.

H. Justification for S.R.'s Treatment .

33. Based upon that the fact that Dr. Strauss failed to

prepare a treatment plan for S.R., to obtain all of th e

available medical records concerning S.R., and to refer S.R. for

special consultations, Dr. Strauss did not have justification

for the rapid increase in the dose of OxyContin and MS Contin

Dr. Strauss prescribed for S.R.

34. The foregoing finding is som ewhat mit igated, but no

less accurate, by the fact that it appears that Dr. Strauss'

treatment of S.R. has been effective, with S.R. continuing in

Dr. Strauss' care up to the final hearing of this matter. S.R.

has been able to improve his personal relatio nship with his

daughter and his mother and father. S.R. also married while

under Dr. Strauss' care and was able to study to take a real

estate broker's license test. Most significantly, after August

2002, S.R. remained on the same dosage of MS Contin for 35

months and, since then, the dosage has been reduced from 4,800

mg a day to, as of September 2005, 1,400 mg a day. These facts,

however, are based upon hindsight, while the finding in

paragraph 33 is based upon what Dr. Strauss knew during the time

per iod in question when he was increasing S.R.'s medications.

I. The Standard of Care .

35. Dr. Strauss was required to practice medicine in his

care of S.R. with "that level of care, skill, and treatment

which is recognized by a reasonable prudent similar p hysician as

being acceptable under similar conditions and circumstances. . .

." (hereinafter referred to as the "Standard of Care").

36. Dr. Strauss's treatment and care of S.R. as described

in this Recommended Order and based upon the credited opinions

o f Drs. Worden and Edgar, violated the Standard of Care as

hereafter further found.

37. First, Dr. Strauss' failure to perform an adequate

physical examination of S.R. dur ing his first visit on

November 11, 1997, violated the Standard of Care.

38. An adeq uate physical examination of S.R. during his

first visit to Dr. Strauss on November 11, 1997, should have

included observing S.R.'s general demeanor, his speech pattern,

including whether or not he was slurring his words, whether he

looked overdosed, and t he manner in which he walked, including

noting whether he evidenced any limp or whether he favored any

part of his body. An adequate physical examination should also

have included the performance of neurological tests, such as

reflex testing and/or straig ht - leg testing.

39. The purpose for performing and recording a physical

examination on the first visit of a patient is to make sure that

the patient's description of his or her complaints are

corroborated to the greatest extent possible. Additionally, a

physical examination may even help the treating physician to

discover problems which the patient may not be aware of and

other physicians overlooked.

40. Performing a physical examination was crucial on

S.R.'s first visit. 4 S.R. was complaining of chroni c pain,

admitted having a previous history of drug abuse, and expressed

a concern about obtaining continuing medical care for his pain.

As noted in Respondent's Proposed Recommended Order "[t]here is

no way to objectively measure pain. . . ." Therefore t he

physician must "rely on the subjective complaints of pain by the

patient." While this is true, given the circumstances of this

case, Dr. Strauss was obligated to perform a physical

examination of S.R. rather than relying solely on S.R.'s

subjective com plaints to prescribe OxyContin and Valium, both

controlled substances.

41. At hearing, Dr. Strauss and Dr. Jacobs both suggested

that "psychiatrist" by and large do not perform physical

examinations. Both suggested that this practice is common and

that i t is within the Standard of Care for psychiatrist to rely

upon the physical examination findings of other physicians.

This testimony is rejected. First, Dr. Strauss was not simply

providing psychiatric care to S.R; he was also treating him for

chronic pa in. Secondly, and more importantly, Dr. Strauss did

not have any medical records reflecting any physical examination

for S.R. during his first visit on November 11, 1997, a visit

for which he prescribed OxyContin.

42. Secondly, Dr. Strauss violated the S tandard of Care by

failing to make a treatment plan with objectives for S.R. While

Dr. Strauss testified at hearing as to what he believed his plan

was, he should have created a written treatment plan, setting

out objectives, and identifying the sources o f S.R.'s pain, the

medical records that documented and validated treatment by

previous physicians, consultations to evaluate how S.R. was

feeling, and specifically how S.R.'s pain could be further

controlled and alleviated. An adequate plan should have al so

included the discussion of whether any psychiatric issues were

contributing to S.R.'s condition; a description of S.R.'s

character as it related to any attempt on S.R.'s part to obtain

medications, which were more than he needed to control his pain,

his social situation, and any stresses S.R. was experiencing.

43. Thirdly, Dr. Strauss violated the Standard of Care by

failing to adequately justify the changes in the medications and

dosages/frequency of those medications. This finding is based

upon Dr. S trauss' failure to prepare a treatment plan for S.R.,

to obtain all of the available medical records concerning S.R.,

and to refer S.R. for special consultations.

44. Finally, Dr. Strauss violated the Standard of Care by

failing to use specialized consult ations for diagnosis and/or

treatment of S.R.

45. Given S.R.'s prior addiction history, the lack of a

physical examination, and the lack of S.R.'s medical records

other than those of Dr. Alshon, Dr. Strauss should have referred

S.R. to a physician special iz ing in addiction medicine.

Dr. Strauss's treatment of S.R. without referral, although with

perfect 20 - 20 hindsight treatment that turned out to be

beneficial to S.R., relied too heavily on what S.R. told him and

the assumption, uncorroborated at the tim e by Dr. Strauss, that

there was nothing except Dr. Strauss' course of treatment that

would work. Without a physical examination and thorough medical

records, Dr. Strauss lacked adequate reliable information to

conclude that a referral to a pain managemen t specialist or an

expert in addictive medicine would not benefit S.R.

J. Medical Records .

46. Dr. Strauss' notes, especially in light of the more

detailed explanation of his treatment of S.R. provided at

hearing, lack the kind of specificity necessary t o justify his

treatment of S.R.

47. Dr. Strauss' notes also do not memorialize any regular

review of S.R.'s medical needs that Dr. Strauss performed. Such

a review should have included documentation of how S.R. was

being monitored to determine whether he was actually taking the

medications prescribed for him, including the results of drug

urinalysis testing.

48. Regular reviews should have also noted whether S.R.

was suffering any specific side effects to the medications he

was taking. Simply stating th at S.R. reported "no side effects"

was inadequate. Dr. Strauss should have noted, especially when

increasing the dosage of OxyContin and MS Contin, and when

changing his medication to MS Contin , that he had thoroughly

discussed the side effects of the dru gs and that S.R. was not

experiencing those side effects.

49. Dr. Strauss' notes also failed to reflect that he had

discussed with S.R. the dangers of taking OxyContin or MS Contin

other than as prescribed. Although the number of occasions when

S.R. took more medication than prescribed were few and S.R.

apparently candidly reported these incidents to Dr. Strauss,

Dr. Strauss still should made sure S.R. understood the hazards

associated with increasing the dosage on his own. This is

especially true given S.R.'s past abuse history and the other

shortcomings between Novem ber 1997 and August 2002 of

Dr. Strauss' treatment of S.R. noted in this Recommended Order.

50. Without the detailed medical notes and recorded

periodic reviews Dr. Strauss should have made , it appears from

the medical records that it was S.R.'s subjective complaints

that controlled and formed the basis for the decisions made

concerning his treatment with OxyContin and MS Contin.

CONCLUSIONS OF LAW

A. Jurisdiction .

51. The Division of Admi nistrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

456.073(5), Florida Statutes (2005).

B. The Charges of the Administrative Complaint .

52. Section 458.3 31(1), Florida Statutes, authorizes the

Board of 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

medicine in Florida if a physician c ommits one or more acts

specified therein.

53. In its First Amended Administrative Complaint in this

case, the Department has alleged that D r. Strauss has violated

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

C. The Burden and Standard of Proof .

54. The Department seeks to impose penalties against

Dr. Strauss through the First Amended Administrative Complaint

that include suspension or revocation of his license and/or the

imposition of an administrative fine. Therefore, the Department

has the burden of proving the specific allegations of fact that

support its charge that Dr. Strauss violate d Section

458.331(1)(m), (q), and (t), Florida Statutes, by clear and

convincing evidence. Department of Banking and Finance,

Division of Securities and Inv estor 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)(j), Florida Statutes (2005)("Fin dings 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.").

55. 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 testi fy 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 c onviction, 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 Wa lker v. Florida

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

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

D. Count One: Section 458.331(1)(t), Florida Statutes;

The Standard of Care .

56. In Count One of the First Amended Administrat ive

Complaint it is alleged that Dr. Strauss violated Section

458.331(1)(t), Florida Statutes (2001), which defines the

following disciplinable offense:

(t) . . . [T]he failure to practice

medicine with that level of care, skill, and

treatment which i s recognized by a

reasonably prudent similar physician as

being acceptable under similar conditions

and circumstances. . . .

57. The Department has alleged that Dr. Strauss violated

the Standard of Care in "one or more of the following ways":

a) by fa iling to perform an adequate

physical examination fo r Patient S.R. during

his first visit;

b) By failing to make a treatment plan

with objectives;

c) by failing to justify changes in

medications, dosages or frequency; or

d) by failing to use sp ecialized

consultations for diagnosis and/or

treatment.

58. The evidence has clearly and convincingly proved that

Dr. Strauss has violated the Standard of Care as alleged in the

First Amended Administrative Complaint.

E. Count Two: Section 458.331(1)(m ), Florida Statutes;

Medical Records .

59. In Count two of the First Amended Administrative

Complaint it is alleged that Dr. Strauss violated Section

458.331(1)(m), Florida Statutes, which defines the following

disciplinable offense:

(m) Failing to kee p legible, as defined

by department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, orderi ng, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

60. The First Amended Administrative Complaint alleges

that Dr. Strauss' medical records were inadequate because he

failed to keep legible medical records that justify the course

of treatme nt of Patient S.R. in one or more of the following

ways:

a) by failing to record or inadequately

recording a physical examination during

Patient S.R.'s first visit;

b) by failing to make detailed notes and

perform regular reviews of patient needs;

or

c) by failing to document a complete and

proper history of Patient S.R.

61. Obviously, having failed to perform a physical

examination during S.R.'s first visit, Dr. Strauss failed to

record one. He also failed to make the kind of detailed notes,

including memoralizing regular reviews, necessary to justify the

course of medication treatment prescribed for S.R. Finally,

Dr. Strauss' medical history of S.R. was inadequate. It is,

therefore, concluded that Dr. Strauss failed to keep adequate

medica l records in violation of Section 458.331(1)(m), Florida

Statutes.

F. Count Three: Section 458.331(1)(q), Florida Statutes;

Legend Drugs .

62. In Count Three of the First Amended Administrative

Complaint it is alleged that Dr. Strauss violated Section

45 8.331(1)(q), Florida Statutes, which defines the following

disciplinable offense:

(q) Prescribing, dispensing,

administering, mixing, or otherwise

preparing a legend drug, including any

controlled substance, other than in the

course of the physician's p rofessional

practice. For the purposes of this

paragraph, it shall be legally presumed that

prescribing, dispensing, administering,

mixing, or otherwise preparing legend drugs,

including all controlled substances,

inappropriately or in excessive or

inappr opriate 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.

63. The Administrative Complaint alleges that Dr. Strauss

violated Section 458.331(1)(q) , Florida Statutes, with regard to

Patient S.R. in that he

prescribed OxyContin, MS Contin, Valium and

Ativan, all controlled substances, to S.R.

inappropriately or in excessive or

inappropriate quantities, in that Respondent

prescribed controlled substanc es without

medical justification, in quantities which

endangered the patient's health, and were

not in the best interest of the patient and

in a manner not in the course of the

physician's professional practice.

64. Although the evidence proved that Dr. Strauss used

controlled substances to treat S.R. "in the course of the

physician's professional practice , " given the definition of

Section 458.331(1)(q), Florida Statutes, and the findings of

this Recommended Order, the Department proved that Dr. Strauss

v iolated Section 458.331(1)(q), Florida Statutes.

G. The Appropriate Penalty .

65. In determining the appropriate punitive action to

recommend to the Board in this case, it is necessary to consult

the Board's "disciplinary guidelines," which impose restri ctions

and limitations on the exercise of the Board's disciplinary

authority under Section 458.331, Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 1231 (Fla. 5th DCA 1999).

66. The Board's guide lines are set out in Florida

Administrative Code Rule 64B8 - 8.001, which provides the

following "purpose" and instruction on the application of the

penalty ranges provided in the Rule:

(1) Purpose. Pursuant to Section

456.079, F.S., the Board provides w ithin

this rule disciplinary guidelines which

shall be imposed upon applicants or

licensees whom it regulates under Chapter

458, F.S. The purpose of this rule is to

notify applicants and licensees of the

ranges of penalties which will routinely be

imposed unless the Board finds it necessary

to deviate from the guidelines for the

stated reasons given within this rule. The

ranges of penalties provided below are based

upon a single count violation of each

provision listed; multiple counts of the

violated pro visions or a combination of the

violations may result in a higher penalty

than that for a single, isolated violation.

Each range includes the lowest and highest

penalty and all penalties falling between.

The purposes of the imposition of discipline

are t o punish the applicants or licensees

for violations and to deter them from future

violations; to offer opportunities for

rehabilitation, when appropriate; and to

deter other applicants or licensees from

violations.

(2) Violations and Range of Penalties .

In imposing discipline upon applicants and

licensees, in proceedings pursuant to

Section 120.57(1) and 120.57(2), F.S., the

Board shall act in accordance with the

following disciplinary guidelines and shall

impose a penalty within the range

correspondin g to the violations set forth

below. The verbal identification of

offenses are descriptive only; the full

language of each statutory provision cited

must be consulted in order to determine the

conduct included.

67. Florida Administrative Code Rule 64B8 - 8.001(2), goes

on to provide, in pertinent part, the following penalty

guidelines for the violations proved in this case:

a. For a violation of Section 458.331(1)(m), Florida

Statutes, a range of relevant penalties from a reprimand to two

years ’ suspensio n followed by probation, and an administrative

fine from $1,000.00 to $10,000.00;

b. For a violation of Section 458.331(1)(q), Florida

Statutes, a range o f relevant penalties from a one - year

probation to revocation, and an administrative fine from

$1,000. 00 to $10,000.00; and

c. For a violation of Section 458.331(1)(t), Florida

Statutes, a range of relevant penalties from two years ’

probation to revocation, and an administrative fine from

$1,000.00 to $10,000.00.

68. Florida Adminis trative Code Rule 64B8 - 8.001(3)

provides that, in applying the penalty guidelines, the following

aggravating and mitigating circumstances are to be taken into

account:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating facto rs present

in an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patient or public to

injury or potential injury, physical or

othe rwise: none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraints, or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense

or offenses have previousl y been committed

by the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self - gain

inuring to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, Florida Statutes, of the

provision of controlled substances for

trade, barter or sale, by a licensee. In

such cases, the Board will deviate from the

penalties recommended above and impose

suspension or revocation of li censure;

(h) Any other relevant mitigating

factors.

69. In its Proposed Recommended Order, the Department has

requested that it be recommended that the following discipline

be imposed upon Dr. Strauss' license:

a. A letter of concern;

b. An administ rative fine of $15,000.00;

c. Continuing education classes in the

amount and nature to be specified by the

Board;

d. Fifty (50) hours of community service

70. Having carefully considered the facts of this matter

in light of the provisions of Florida Ad ministrative Code Rule

64B8 - 8.001, it is concluded that the Department's suggested

penalty, without the fifty hours of community service, is

reasonable. No explanation of why Dr. Strauss should be

required to provide community service has been given b y th e

Department , and the facts d o not support such discipline.

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 Medicine finding that Abbey Strauss, M.D., has vi olated

Section 458.331(1)(m), (q), and (t), Florida Statutes, as

described in this Recommended Order; issuing him a letter of

concern; requiring that he pay an administrative fine of

$15,000.00; and requiring that he attend continuing education

classes in an amount and of a na ture to be determined by the

Boa rd.

DONE AND ENTERED this 26th day of April, 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

L ARRY 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

Div ision of Administrative Hearings

t his 26th day of April, 2006.

ENDNOTES

1 / The substantive definitions of wrong - doing contained in

Section 458.331(1)(m), (q), and (t), Florida Statutes (1997

through 2002), did not change apprec iably. Therefore,

references to the year of the statute will be excluded from

further citations of those provisions.

2 / The Transcript of the December 16, 2005, hearing, at line 22,

p age 3 , incorre ctly identifies "Petitioner's" E xhibit 6 being

addressed at page 28 of the Transcript. At line 17, p age 28, it

is Respondent's Exhibit 6 that is admitted.

3 / The evidence in this case failed to prove that S.R., at any

time during Dr. Strauss' treatment, was addicted to, or abusing

OxyContin or any other drug . Pet itioner's suggested Finding of

F act number 10, that "[a]t the time Respondent was treating

Patient S.R., Patient S.R. may have been addicted and abusing

the pain medication that was being prescribed to him by th e

Respondent" is rejected as too specul ative and not supported by

the weight of the evidence.

4 / There was also evidence presented at hearing as to the need

to continue to conduct physical examinations of S.R. on

subsequent visits. The First Amended Administrative Complaint

does not allege, however, that the failure to conduct subsequent

physical examinations constituted a violation of Section

458.331(1)(t), Florida Statutes.

COPIES FURNISHED:

J. Blake Hunter

Diane Kiesling

Assistants General Counsel

Prosecution Services Unit

Office of Gen eral Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Lawrence E. Brownstein, Esquire

Northbridge Centre

515 North Flagler Drive

Suite 300 - Pavilion

West Palm Beach, Florida 33401 - 4326

Larry McPherson, Executi ve 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

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, General Counsel

De partment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. M. Rony François , Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties hav e 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 these cases.