05-001640PL Department Of Health, Board Of Medicine vs. Peter N. Brawn, M.D. Status: Closed Recommended Order on Friday, September 2, 2005.

Summary: Respondent dispensed medicine over internet without examination, history, or plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05-1640PL

)

PETER N. BRAWN, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED 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 Key West, Florida, on

July 27, 2005.

APPEARANCES

For Petitioner: Patrick L. Butler

Ephraim D. Livingston

Assistants General Counsel

Prosecution Services Unit

Office of General Counsel

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Sean M. Ellsworth, Esquire

Ellsworth Law Firm, P.A.

404 Washington Avenue, Suite 750

Miami Beach, Florida 33139

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, Peter N.

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

Statutes, as alleged in an Administrative Complaint filed by

Petitioner, the Department of Health, on January 21, 2004, in

DOH Case Number 2002-15991; and, if so, what disciplinary action

should be taken against his license to practice medicine in the

State of Florida.

PRELIMINARY STATEMENT

On or about July 21, 2004, the Department of Health filed

an Administrative Complaint against Peter N. Brawn, M.D., an

individual licensed to practice medicine in Florida, before the

Board of Medicine, in which it alleged that Dr. Brawn had

committed violations of Sections 458.331(1)(m), (q), and (t),

Florida Statutes (2001). Dr. Brawn disputed the allegations of

fact contained in the Administrative Complaint and, on or about

February 17, 2004, requested through counsel a formal

administrative hearing pursuant to Section 120.569(2)(a),

Florida Statutes (2004). On May 6, 2005, the matter was filed

with the Division of Administrative Hearings with a request that

an administrative law judge be assigned the case to conduct

proceedings pursuant to Section 120.57(1), Florida Statutes

(2004). The matter was designated DOAH Case Number 05-1640PL

and was assigned to the undersigned.

The final hearing was scheduled by Notice of Hearing

entered May 18, 2005, for July 13, 2005. By Order Granting

Continuance and Re-Scheduling Hearing, Petitioner's ore tenus

motion for a continuance of the final hearing was granted. The

final hearing was rescheduled for July 27, 2005.

On July 14, 2005, a Joint Pre-Hearing Stipulation was filed

by the parties. The Joint Pre-Hearing Stipulation contains, in

relevant part, stipulated facts. Those facts have been included

in this Recommended Order.

On July 20, 2005, a week before the hearing was scheduled

to commence, Petitioner filed a Motion to Compel Response to

Petitioner's Discovery and/or Restrict Respondent's Testimony.

Argument on the Motion was heard at the commencement of the

final hearing. That argument and the attendant rulings on the

Motion are recorded in the Transcript of the final hearing.

At the final hearing, Petitioner presented the testimony of

Keith Fisher, M.D., an expert in the medical specialty of

pathology, and Evelyn Garrido-Morgan, an investigator for the

Department of Health. Petitioner offered and had admitted

Petitioner's Exhibits 2 through 4 and 6. Petitioner's Exhibit 5

was not admitted. Finally, a ruling was reserved on

Petitioner's Exhibit 1, the Transcript of the July 12, 2005,

deposition testimony of Douglas Lee Howard. The parties were

invited to address the admissibility of Petitioner's Exhibit 1

in their proposed orders. Petitioner's Exhibit 1 is admitted.

Petitioner also offered into evidence a single page from

Respondent's prescription dispensing log. The page listed drugs

dispensed on May 14, 2002. Rather than accept the document in

evidence, which would have required that much of it be redacted

to protect the confidentiality of patients, it was suggested

that the parties stipulate that the log shows that Carisoprodol

was dispensed by Dr. Brawn on May 14, 2002, to an individual by

the name of J.T., whose last name ends in "r." Petitioner

specifically agreed, while Respondent remained silent.

Respondent's silence was taken as a tacit approval of the

alternative to actually making the May 14, 2002, page of the log

an exhibit. Should Respondent subsequently object to this

treatment of the log, then the log should be accepted as

Petitioner's Exhibit 6.

Respondent offered and had admitted one exhibit, his

response to Petitioner's request for admissions.

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

informing the parties that the Transcript of the final hearing

had been filed with the Division of Administrative Hearings on

August 5, 2005, and that they had until August 19, 2005, to file

proposed recommended orders. Petitioner filed a Proposed

Recommended Order on August 19, 2005. Respondent filed his

Proposed Recommended Order on August 22, 2005. It appearing

that Petitioner has not been prejudiced by Respondent having

filed his proposed order three days late, the proposed orders of

both parties have been fully considered 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, Peter N. Brawn, 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 75202.

3. Dr. Brawn is board-certified in pathology.

4. Dr. Brawn has not previously been the subject of a

disciplinary proceeding in Florida.

5. Dr. Brawn's address at the times relevant to this

proceeding was 525 Caroline Street, Key West, Florida 33040.

His telephone number was [phone].

B. Dr. Brawn's Prescription Dispensing Log of May 14,

2002 .

6. Dr. Brawn's prescription dispensing log for May 14,

2002, indicates that Carisoprodol was dispensed to an individual

whose initials are J.T. This individual's name is identical,

except for the last letter of his last name, to Patient J.T.,

the patient at issue in the Administrative Complaint. The last

letter of the individual listed in the log is "r" (hereinafter

referred to as "J.Tr"), while the last letter of the patient in

the Administrative Complaint is a "z" (hereinafter referred to

as "J.Tz").

C. The Events of May 17, 2002 .

7. On or about May 17, 2002, Douglas Lee Howard, a police

officer with the police department of the City of Tustin, Orange

County, California, was serving as a resource officer at Tustin

High School.

8. Officer Howard was summoned to the assistant

principal's office at approximately noon. When he arrived, he

observed a student, J.Tz, who had been removed from his

classroom, leaning against the wall, falling asleep. J.Tz is

the same individual identified in the Administrative Complaint

as Patient J.T. J.Tz was 16 years of age at the time of this

incident. Officer Howard told J.Tz to go into the assistant

principal's office and sit down. J.Tz complied, running into a

lobby counter and the office doorjamb on the way. When he

attempted to sit, he sat on the arm of the chair, nearly tipping

the chair over.

9. When asked if he had taken any drugs, J.Tz produced a

white plastic medicine bottle (hereinafter referred to as the

"Medicine Bottle"), from his pants pocket. The permanent

manufacturer's label on the Medicine Bottle indicates that it

contained 100 350 mg tablets of Carisoprodol, commonly referred

to as "soma." This is the same medication which Dr. Brawn

dispensed on May 14, 2002, to J.Tr.

10. Carisoprodol is a legend drug which acts as a muscle

relaxer and is used for muscle strains. Physiologically, it

causes drowsiness, dizziness, and loss of coordination or

ataxia, all symptoms that were exhibited by J.Tz on May 17,

2002.

11. The Medicine Bottle also contained a printed label

(hereinafter referred to as the "Added Label") which had been

pasted onto it which included the following information:

Peter Nelson Brawn, M.D.

525 Caroline St. Key West Florida 33040

305.292-1917 1-888-491-4545

Patient Name J[] T[] _________________________

Date Dispensed 5/14/02 ______________________

Name & Strength of Drug_________________________

Directions for Use 1 tablet 4X/day ____________

The "Patient Name," "Date Dispensed," and "Directions for Use"

had been written in ink on the Added Label.

12. The last name of the patient name written on the Added

Label can be read as either J.Tz or J.Tr.

13. Officer Howard confiscated the Medicine Bottle from

J.Tz. Officer Howard and a school nurse counted 84 pills

remaining in the Medicine Bottle.

14. Officer Howard, after asking J.Tz where he had

obtained the pills, called the toll-free telephone number listed

on the Added Label, a number listed next to Dr. Brawn's name and

his address and phone number of record. He spoke to an

individual who identified himself as Peter Brawn. The

individual he spoke with indicated that, while he had no record

of dispensing any medication to J.Tz, he did have a record of

having dispensed Carisoprodol to J.Tr on the date in question.

The individual Officer Howard spoke with also indicated that

J.Tr had reported his age to be 18. The information disclosed

to Officer Howard was medical information which would not have

been generally known by anyone other than Dr. Brawn.

15. Officer Howard had never spoken to Dr. Brawn and,

therefore, could not have identified the individual he spoke to

as Dr. Brawn through voice recognition.

16. Based upon the fact that the phone number Officer

Howard called was listed on the Added Label next to Dr. Brawn's

name, address, and phone number, the fact that the individual

identified himself as "Dr. Peter Brawn," and the fact that the

individual disclosed medical information which Dr. Brawn was

privy to, it is found that the individual Officer Howard spoke

to was in fact Dr. Brawn.

16. Dr. Brawn explained to Officer Howard that he had

prescribed the Carisoprodol to J.Tr after being contacted by him

through two e-mails. Dr. Brawn admitted that he had not spoken

to J.Tr and that he had not confirmed any medical history.

Having not spoken to J.Tr, it is found that he also did not

perform any physical examination of J.Tr.

17. Finally, given the foregoing, it is found that J.Tr

and J.Tz are the same individual. It is, therefore, concluded

that the J.Tr Dr. Brawn dispensed Carisoprodol to on May 14,

2002, is the Patient J.T. of the Administrative Complaint.

D. Medical Records .

18. Based upon the admissions against interest made by

Dr. Brawn to Officer Howard during the May 17, 2002, telephone

conversation Officer Howard testified about, it is found that

Dr. Brawn, not having taken any medical history of J.Tr and not

having given him an examination, did not make any medical record

to support his dispensing Carisoprodol to Patient J.T. Without

Dr. Brawn's admissions against interest, the evidence failed to

prove that Dr. Brawn did not have medical records relating to

the medications he provided to J.Tr. No direct evidence, other

than phone conversation, was presented that would support a

finding that such records do not exist.

19. On or about February 27, 2003, the Department had

served a subpoena on Dr. Brawn, through counsel, requesting the

following:

All medical records and reports for J[]

T[z], DOB . . . including but not limited

to, patient histories, examination results,

treatments, x-rays, test results, records of

drugs prescribed, dispensed, or

administered, and reports of consultations

and hospitalizations.

In the "Application Affidavit for Patient Records Subpoena

Without Patient Release" which was used to get permission for

serving the subpoena on Dr. Brawn, J.Tz is also referred to as

"a/k/a Tr." Despite the Department's awareness of the

possibility that J.Tz and J.Tr were the same individuals, the

subpoena actually served on Dr. Brawn did not request any

medical records or other information relating to J.Tr.

20. By letter dated March 12, 2003, Dr. Brawn, through

counsel, informed the Department that he had "no medical records

responsive to th[e] subpoena."

E. The Standard of Care .

21. Keith Fisher, M.D., accepted as an expert, testified

convincingly and credibly that a reasonably prudent physician,

similarly situated to Dr. Brawn, would, before dispensing

Carisoprodol, a legend drug: (a) obtain a complete medical

history of the patient; (b) make a diagnosis, prepare a

treatment plan for the patient, and keep a medical record for

the patient; and (c) perform a physical examination of the

patient to determine that the patient was truly in need of

Carisoprodol.

22. Dr. Brawn failed to take any of the steps Dr. Fisher

opined were necessary before dispensing Carisoprodol.

23. Dr. Brawn dispensed the Carisoprodol to Patient J.T.

based upon two e-mails he received. He did not conduct any

examination of Patient J.T. and he did not obtain a medical

history of Patient J.T. These findings, again, are based upon

the telephone conversation between Dr. Brawn and Officer Howard.

Without those admissions, the evidence in this case failed to

prove, however, that Dr. Brawn did not carry out the

responsibilities described by Dr. Fisher when he dispensed

Carisoprodol to who he believed was J.Tr, but was actually

Patient J.T.

F. The Admissibility of Officer Howard's Deposition .

24. Officer Howard's deposition, Petitioner's Exhibit 1,

was taken by telephone on July 12, 2002, just over two weeks

before the final hearing. Officer Howard's deposition was taken

by telephone because he works and resides in California. No

order was obtained from this forum or any court to take the

deposition by telephone.

25. The Notice of Taking Deposition sent to Dr. Brawn

scheduling Officer Howard's deposition indicates that it was to

be taken by telephone. It also put counsel for Dr. Brawn on

notice of the following: "This deposition is being taken for

purposes of discovery, for use at an administrative hearing, or

any other purpose for which it may be used under applicable laws

of the State of Florida." [Emphasis added].

26. At no time before or during the deposition was any

objection made by counsel for Dr. Brawn to the manner in which

the deposition was taken. In particular, no objection was made

to taking the deposition by telephone. By his silence,

Dr. Brawn gave tacit agreement to the taking of Officer Howard's

deposition by telephone.

27. In addition to the foregoing, the Joint Pre-Hearing

Stipulation filed by the parties only two days after Officer

Howard's deposition was taken does not list Officer Howard as a

witness, and the transcript of Officer Howard's deposition is

listed as a potential Petitioner's exhibit. Given these facts

and the fact that Dr. Brawn was aware that Officer Howard works

and resides in California, it is inferred that Dr. Brawn knew or

should have known that the deposition would be offered in lieu

of Officer Howard's appearance and testimony at hearing. Yet,

counsel for Dr. Brawn waited until hearing to raise any

objection to the admissibility of Officer Howard's deposition

testimony.

28. While part of Officer Howard's testimony constitutes

hearsay testimony, in particular, comments made to him by J.Tz,

no finding of fact has been based upon such testimony. For

example, while Officer Howard testified that J.Tz told him who

he obtained the pills from and how, that testimony has not been

relied upon to make a finding as to how J.Tz got the pills.

29. During Officer Howard's testimony, he referred to

seven photographs which he had taken of the Medicine Bottle.

Those photographs were taken by Officer Howard on May 17, 2002.

While Dr. Brawn objected during the deposition to their

admissibility, he did not state the basis of his objection. At

hearing, Dr. Brawn objected to the admissibility of not only the

photographs, but also to the entire deposition, suggesting that

he had not been able to effectively cross examine Officer Howard

about the photographs because he did not have them before him

while the deposition was being taken. Officer Howard, however,

used the photographs to refresh his memory and described

adequately what they depicted. His testimony alone, without

regard to any consideration of the photographs, supports the

findings made herein. Additionally, the Department's file on

Dr. Brawn, which had been provided to Dr. Brawn, contained a

single-page copy of an e-mail with all the photographs testified

to by Officer Howard. Those smaller photographs, which were

available during the deposition, and Officer Howard's

description of the Medicine Bottle and its labels, were adequate

to eliminate any prejudice to Dr. Brawn.

CONCLUSIONS OF LAW

A. Jurisdiction .

30. The Division of Administrative 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 .

31. Section 458.331(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 commits one or more acts

specified therein.

32. In its Administrative Complaint in this case, the

Department has alleged that Dr. Brawn has violated Sections

458.331(1)(m), (q), and (t), Florida Statutes (2001).

C. The Burden and Standard of Proof .

33. The Department seeks to impose penalties against

Dr. Brawn through the 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. Brawn violated Sections 458.331(1)(m), (q),

and (t), Florida Statutes, by clear and convincing evidence.

Department of Banking and Finance, Division 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)(j), Florida Statutes

(2005)("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.").

34. 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. The Department's Proof .

35. In order to find that Dr. Brawn has committed the

alleged violations contained in the Administrative Complaint,

the Department was required to present competent substantial

evidence sufficient to prove the allegations of fact contained

in the Administrative Complaint. See §120.57(1)(c) and (l),

Fla. Stat. (2005); and Bowling v. Department of Insurance , 394

So. 2d 165 (Fla. 1st DCA 1981).

36. The competent substantial evidence presented by the

Department in this case consisted primarily of Dr. Brawn's

prescription dispensing log for May 14, 2002, (to the extent

stipulated to by the parties) and Officer Howard's testimony.

37. Much of Officer Howard's testimony has not been relied

upon to make findings of fact in this case. Officer Howard's

testimony concerning what Patient J.T. told him on May 17, 2002,

constituted hearsay. As such, it cannot and did not form the

basis of any finding of fact. See §§ 90.801 and 90.802, Fla.

Stat. (2005).

38. Most significant to the ultimate outcome of this case

is the fact that the only evidence as to any direct involvement

between Patient J.T. and Dr. Brawn, consisted of the testimony

of Officer Howard concerning a telephone conversation he had

with an individual who identified himself as Dr. Brawn. If this

conversation is not taken into account, then the Department has

failed to prove facts crucial to the charges they have brought

against Dr. Brawn. In particular, without consideration of the

telephone conversation, the Department failed to prove the

following allegations of fact contained in the Administrative

Complaint:

5. In or about May 2002, Patient J.T., a

16 year-old male wrote Respondent via the

internet, described his symptoms (of falling

and straining muscles in his upper body) and

sent Respondent a money order for

medication.

. . . .

9. Respondent did not conduct a physical

examination of Patient J.T. prior to

prescribing Carisoprodol.

10. Respondent did not obtain a complete

history prior to prescribing Carisoprodol

for Patient J.T.

11. Respondent did not make a diagnosis

or treatment plan for Patient J.T. prior to

prescribing Carisoprodol.

. . . .

39. The Department takes the position that, although

Officer Howard's testimony constitutes hearsay as to what

Dr. Brawn told him over the telephone, it is admissible as an

admission against interest and, therefore, is admissible as an

exception to the hearsay rule. See § 90.803(18), Fla. Stat.

(2005). It must, however, first be concluded that the telephone

conversation constitutes competent substantial evidence that the

person to whom Officer Howard spoke to was indeed Dr. Brawn.

40. Dr. Brawn has argued that Officer Howard's telephone

conversation on May 17, 2002, is not competent substantial

evidence, and that it cannot be found as a matter of fact that

it was Dr. Brawn that Officer Howard spoke to. Dr. Brawn cites

Hargrove v. State , 530 So. 2d 441 (Fla. 4th DCA 1988), in

support of this argument. The court in Hargrove stated the

following:

Appellant's next contention involves

another witness, Leroy Martin, who was

allowed over objection to testify to a

telephone conversation he received in which

the caller identified himself as “Panna Cat”

(Hargrove's nickname). Martin testified

that the caller first claimed he had not

shot anyone, but then stated, “I thought I

shot him in the leg because when I left he

was standing.” The state contends this

statement was admissible as an admission

against interest and well it might be if

Hargrove made it. However, the record is

woefully weak in establishing the identity

of the caller. First of all, the call was

initiated by a third person. Martin

testified, “I received a phone call

supposedly been from Panta Cat [sic]. I

can't swear to him [sic] it was him because

I get crank calls all the time.” He stated

further that he had never spoken to Hargrove

on the phone and that he had only heard

Hargrove's voice “a couple of times in my

lifetime of growing up.” “I would say it

sounded somewhat like it-I can't guarantee

it. I won't swear to it.” Finally, on

cross-examination, Lawson admitted he could

not describe Hargrove's voice because he

really was not sure he ever heard his voice.

By failing to properly connect the

appellant's voice to that of the caller, the

prosecution did not lay a proper predicate

for the admissibility of the telephone

communication and its admission into

evidence was error. Manuel v. State , 524

So. 2d 734 (Fla. 1st DCA 1988).

Id . At 442-443.

41. Dr. Brawn suggests that, like Leroy Martin, Officer

Howard had no way of knowing who the individual was whom he

spoke to. While the individual identified himself as Dr. Brawn,

the individual could have simply lied. Officer Howard had never

spoken to Dr. Brawn and, therefore, would not have been able to

identify precisely who he was speaking to.

42. Unlike the circumstances in the Hargrove case, Officer

Howard initiated the telephone call to a number listed under

Dr. Brawn's name and next to his address and local telephone

number, the person Officer Howard spoke to identified himself as

Dr. Brawn and, most importantly, the individual disclosed

information which would have been known to Dr. Brawn and, as far

as this records proves, only Dr. Brawn. The information which

was disclosed concerned the fact that there was no record of

dispensing Carisoprodol to J.Tz but there was a record of

dispensing Carisoprodol to J.Tr, who it has been concluded is

one and the same individual.

43. After consideration of the foregoing, it has been

concluded that Officer Howard's testimony concerning his

telephone conversation constitutes competent substantial

evidence of a telephone conversation with Dr. Brawn. Although

Dr. Brawn's statements to Officer Howard are hearsay, they are

admissible as admissions against interest. See § 90.803(18),

Fla. Stat. (2005).

E. Count I: Section 458.331(1)(t), Florida Statutes

(2001); The Standard of Care .

44. In Count I of the Administrative Complaint it is

alleged that Dr. Brawn 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 is recognized by a

reasonably prudent similar physician as

being acceptable under similar conditions

and circumstances. . . .

45. In the Administrative Complaint, the Department has

alleged that Dr. Brawn violated the foregoing provision

(hereinafter referred to as the "Standard of Care"), by "doing

one or more of the following":

(a) Failing to perform a physical

examination of Patient J.T. prior to

prescribing Carisoprodol;

(b) Failing to obtain a complete history on

Patient J.T. prior to prescribing

Carisoprodol; or

(c) Failing to make a diagnosis or

treatment plan for Patient J.T. prior

to prescribing Carisoprodol.

(d) Failing to maintain Patient J.T.'s

medical records with sufficient detail

to demonstrate Patient J.T.'s

condition, history, diagnosis and/or

treatment plan such to warrant the

prescription of Carisoprodol.

46. The evidence has clearly and convincingly proved that

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

Administrative Complaint.

F. Count II: Section 458.331(1)(m), Florida Statutes

(2001); Medical Records .

47. In Count II of the Administrative Complaint it is

alleged that Dr. Brawn violated Section 458.331(1)(m), Florida

Statutes (2001), which defines the following disciplinable

offense:

(m) Failing to keep 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, 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 administered; and

reports of consultations and

hospitalizations.

48. The Administrative Complaint alleges that Dr. Brawn's

medical records were inadequate because Dr. Brawn failed:

to keep written medical records justifying

the course of treatment of Patient J.T., in

that Respondent has failed to provide any

medical records that document an adequate

medical history on the patient or that

justify the treatment of Patient J.T. with

Carisoprodol.

49. Although the Department never requested medical

records for J.Tr from Dr. Brawn, based upon the findings

concerning what steps Dr. Brawn took, or, more importantly, did

not take before sending the Carisoprodol to Patient J.T., it is

concluded that Dr. Brawn failed to keep adequate medical records

in violation of Section 458.331(1)(m), Florida Statutes (2001).

G. Count III: Section 458.331(1)(q), Florida Statutes

(2001); Legend Drugs .

50. In Count III of the Administrative Complaint it is

alleged that Dr. Brawn violated Section 458.331(1)(q), Florida

Statutes (2001), 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 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 controlled substances,

inappropriately or in excessive or

inappropriate quantities is not in the best

interest of the patient and is not in the

course of the physician's professional

practice, without regard to his or her

intent.

51. The Administrative Complaint alleges that Dr. Brawn

violated Section 458.331(1)(q), Florida Statutes (2001), with

regard to Patient J.T. in that he "inappropriately prescribed

and/or dispensed Carisoprodol to Patient J.T., a sixteen year-

old male via a single Internet exchange." Although the evidence

proved that Dr. Brawn actually received two e-mails from Patient

J.T., rather than one, his failure to conduct a physical

examination, to take any history, or to do anything other than

send Carisoprodol to Patient J.T. after receiving payment,

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

Statutes (2001).

H. The Appropriate Penalty .

52. 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 restrictions

and limitations on the exercise of the Board's disciplinary

authority under Section 458.331, Florida Statutes (2001). See

Parrot Heads, Inc. v. Department of Business and Professional

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

53. The Board's guidelines 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 within

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 provisions 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 to 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

corresponding 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.

54. 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 (2001), a range of relevant penalties from a reprimand

to two years suspension 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 (2001), a range of 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 (2001), a range of relevant penalties from two years

probation to revocation, and an administrative fine from

$1,000.00 to $10,000.00.

55. Florida Administrative 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 factors 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

otherwise: 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 previously 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 licensure;

(h) Any other relevant mitigating

factors.

56. In its Proposed Recommended Order, the Department has

requested that it be recommended that Dr. Brawn's license be

suspended for a period of two years and that he be required to

pay an administrative fine of $15,000.00.

57. Having carefully considered the facts of this matter

in light of the provisions of Florida Administrative Code Rule

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

penalty is reasonable.

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 Peter N. Brawn, M.D., has violated

described in this Recommended Order; suspending his license for

a period of two years from the date of the final order; and

requiring that he pay an administrative fine of $15,000.00.

DONE AND ENTERED this 2nd day of September, 2005, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of September, 2005.

COPIES FURNISHED:

Patrick L. Butler

Ephraim D. Livingston

Assistants General Counsel

Prosecution Services Unit

Office of General Counsel

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Sean M. Ellsworth, Esquire

Ellsworth Law Firm, P.A.

404 Washington Avenue, Suite 750

Miami Beach, Florida 33139

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Timothy M. Cerio, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Dr. John O. Agwunobi, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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 these cases.