06-001503PL Department Of Health, Board Of Denistry vs. John Driggers, D.M.D. Status: Closed Recommended Order on Tuesday, April 17, 2007.

Summary: Respondent was unable to practice with reasonable safety and skill due to alcohol use without treatment and monitoring by the Professional Resource Network, which he refused to do.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DEN T ISTRY , )

)

Petitioner , )

)

vs. ) Case No. 06 - 1503PL

)

JOHN DRIGGERS, D.M.D. , )

)

Respondent . )

)

RECOMMENDED ORDER

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

on September 28 and 29, 2006, in Orlando, Florida, before

Susan B. Harrell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: H. Wayne Mitchell, Esquire

Jamie Ito, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: George F. Indest, III , Esquire

Michael L. Smith

The Health Law Firm

220 East Central Parkway, Suite 2030

Altamonte Springs, Florida 32701

STATEMENT OF THE ISSUES

Whether Respondent viola ted Subsection 466.028(1)(s),

Florida Statutes (2000 - 2005), and, if so, what discipline should

be imposed.

PRELIMINARY STATEMENT

On October 17, 2005, Petitioner, the Department of Health

(Department), filed a two - count Administrative Complaint against

Resp ondent, John Driggers, D.M.D (Dr. Driggers), alleging that

he violated Subsection 466.028(1)(s), Florida Statutes (2000 -

2005), and Subsection 456.072(1)(gg), Florida Statutes (2005).

Dr. Driggers requested an administrative hearing, and the case

was forwa rded to the Division of Administrative Hearings on

April 20, 2006, for assignment of an Administrative Law Judge.

The final hearing was o riginally scheduled for July 13

and 14, 2006, but was rescheduled twice with the final hearing

taking place on Septembe r 28 and 29, 2006.

On May 16, 2006, Petitioner filed a Motion to Take Official

Recognition of Section 456.076 and Subsections 466.028(1)(s) and

466.0275(2), Florida Statutes (2005), and the motion was granted

by order dated May 24, 2006.

At the final heari ng, the Department withdrew Count II of

the Administrative Complaint, which alleged a violation of

Subsection 456.072(1)(gg), Florida Statutes (2005).

The Department called the following witnesses at the final

hearing: Dr. Driggers and Martha Eugenia Brow n, M.D. The

Department submitted Petitioner's Exhibits 1 through 12, which

were admitted in evidence.

Dr. Driggers testified and called the following witnesses

at the final hearing: William Marchese, M.D. , and Jeffrey A.

Danziger, M.D. Respondent's Exhi bits 1 through 13 were admitted

in evidence. Respondent's Exhibits 14 through 19 were not

admitted in evidence, but were proffered by Dr. Driggers.

Respondent's Exhibit 20 was admitted as a late - filed exhibit.

The three - volume Transcript was filed on Jan uary 29, 2007.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the Transcript. On February 5,

2007, Dr. Driggers filed a motion to extend the time for filing

proposed recommended orders. The motion was grant ed, and the

parties timely filed their P roposed R ecommended O rders, which

have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. The Department is the state department charged with

regulating the practice of dentistry pursuant to Se ction 20.43

and Chapters 456 and 466, Florida Statutes (2006).

2. Dr. Driggers is a licensed dentist in the State of

Florida, having been issued license number 5473.

3. The Professional Resource Network (PRN) is the impaired

practitioner program for the Board of Dentistry, pursuant to

Section 456.076, Florida Statutes (2006). PRN monitors the

evaluation, care, and treatment of imp aired healthcare

professionals.

4. Dr. Driggers has a long history of problems with

alcohol. On January 15, 1987, he was arr ested for driving under

the influence (DUI). He was adjudicated guilty of that offense.

In 1990, Dr. Ken Thompson did an intervention on Dr. Driggers

based on Dr. Driggers' alcohol abuse. As a result, Dr. Driggers

was admitted to Glenbeigh Hospital of T ampa for a three - day

evaluation of alcoholism and chemical dependency. Dr. Driggers

was diagnosed with alcohol abuse and benzodiazepine abuse.

Dr. Martin Zfaz, who evaluated Dr. Driggers, recommended that

Dr. Driggers attend an outpatient treatment prog ram with Dr. Ken

Thompson five day s a week, attend 90 Alcoholic Anonymous (AA)

and Narcotics Anonymous (NA) meetings in 90 days, and obtain a

sponsor.

5. On December 17, 1990, Dr. Driggers entered into an

Impaired Practitioner Program of Florida Physician s Recovery

Network Advocacy Contract. The contract required that he

"abstain completely from the use of any medications, alcohol,

and other mood altering substances." He agreed to attend a

self - help group meeting such as AA or NA three times per week,

to participate in continuing care group therapy one time per

week, and to attend a 12 - step program of recovering

professionals every other week. The contract was for five

years, with renewal subject to review by PRN.

6. Dr. Driggers did complete an outpati ent treatment

program with Dr. Thompson by February 1991. He did attend some

meetings of recovering professionals.

7. In January 1992, PRN referred Dr. Driggers to Anton M.

Krone, M.D. , for an evaluation of Dr. Driggers' status.

Dr. Driggers told Dr. K rone that he had not completely abstained

from consuming alcohol , but that his consumption had not caused

a problem. He was not attending AA meetings and did not have a

sponsorship. Dr. Driggers did not consider himself to be an

alcoholic and was opposed to attending AA meetings and

abstaining completely from drinking. Dr. Krone opined that "it

would be very difficult to engage [Dr. Driggers] in a recovery

process at this time which is abstinence based." Dr. Krone

suggested that "PRN follow him on an in formal basis and watch to

be sure that he is not getting into future trouble and to be

ready to intervene with him promptly if such trouble begins to

appear."

8. The contract between Dr. Driggers and PRN dated

December 17, 1990, was voided as of February 1992.

9. On October 6, 2000, Dr. Driggers was again arrested for

D UI . He drove his car into the back of a car stopped at a red

light. He was given a breathalyzer test, which showed a blood

alcohol level of .23, which is almost three times the limit for

a presumption of DUI in Florida. 1 Dr. Driggers did not feel like

he was intoxicated and blamed the accident on his leaning over

to prevent carry - out food from falling to the floor. He was

adjudicated guilty of DUI i n October 2001.

10. Dr. Driggers react ivated with PRN and agreed to an

inpatient evaluation. On November 13, 200 0 , he went to Shands

at Vista for the evaluation. Dr. Thompson evaluated Dr.

Driggers and concluded that he was concerned about Dr. Driggers'

ability to practice with reasonable sk ill and safety. He made

the following recommendation for the treatment of Dr. Driggers:

"Return for inpatient detoxification with further assessment. I

do no t believe that in view of his denial, stress, shame, and

anxiety leve l that he would likely be v ery successful in

detoxing himself on an outpatient basis even with supervision."

Dr. Driggers remained at Shands at Vista until he was discharged

on March 9, 2001, with a diagnosis of alcohol dependence,

sedative dependence, and anxiety disorder.

11. On April 1, 2001, Dr. Driggers signed another five -

year Impaired Practitioners Program of Florida Physician

Recovery Network Advocacy Contract. As before, Dr. Driggers

agreed to abstain completely from the use of any medications,

alcohol, and other mood alt ering substances. He agreed to

attend self - help meetings such as AA or NA three to four times

per week. He agreed to attend a PRN monitored professional

support group. Dr. Driggers agreed to participate in a random

urine drug or blood screen program wit hin 12 hours of

notification.

12. On June 23, 2004, Dr. Driggers tested positive for a

metabolite of alcohol based on an ethyl glucuronide test, which

detects metabolites of alcohol in urine. On July 12, 2004,

Dr. Driggers again tested positive for a me tabolite of alcohol

based on an ethyl glucuronide test. His July score was higher

than his June score. Dr. Driggers admits that he had not

completely abstained from the use of alcohol and that he

occasionally had a glass of wine with his new wife.

Dr. Driggers rationalized his consumption of alcohol with the

following comment: "I didn't think that the -- that a glass of

wine on a particular day would -- would not only show in urine,

but I didn't think that it was any major thing at the time. It

was -- it wa s something I did that I regret."

13. On August 16, 2004, Dr. Driggers was referred by PRN

to Martha E. Brown, M.D. , for an evaluation. Dr. Driggers

admitted to Dr. Brown that he had not abstained completely from

alcohol. He told her that he went to PRN group meetings for a

while, but quit going to the meetings. Dr. Brown concluded that

she did "not feel Dr. Driggers can practice with reasonable

skil l and safety. He has been diagnosed with Alcohol Dep e ndency

in the past, yet has again resumed drinking. He appears to have

much minimization of his alcohol use with rationalizations about

it is okay that he has returned to drinking." Dr. Brown

recommended that Dr. Driggers continue to participate in PRN,

follow PRN recommendations, enter into a long - term residential

treatment for chemical dependency, and abstain from all mood

altering substances, including alcohol.

14. In September 2004, Dr. Driggers sought a second

opinion from Chowallur Dev Chacko, M.D., who is board - certified

by the American Board of P sychiatry in general psychiatry,

addiction psychiatry, and forensic psychiatry. Based on

Dr. Driggers' long history of alcohol abuse and his continuing

to drink while under a monitoring contract with PRN, Dr. Chacko

opined that Dr. Driggers was not able to practice his profession

with reasonable skill and safety and recommended that

Dr. Driggers receive long - term residential treatment for his

alcoholism.

15. Dr. Driggers refused to follow the recommendations of

either Dr. Brown or Dr. Chacko. On Novemb er 9, 2004, PRN sent

notice to the Department advising that Dr. Driggers was not in

compliance with his PRN monitoring contract.

16. On June 17, 2005, Dr. Driggers returned to Dr. Brown

for a new evaluation. Dr. Brown was still of the opinion that

Dr. Dr iggers had a substance dependency problem and needed

treatment. During her evaluation of Dr. Driggers, he told her

that he would not be in PRN and would not follow PRN's

recommendations. He was in severe denial concerning his

chemical dependency. Dr. Br own recommended that Dr. Driggers

should participate in PRN and follow the recommendations of PRN;

that Dr. Driggers should minimally enter a partial

hospitalization program with a step - down to an intensive out -

patient program for his chemical dependency; that he should

abstain from all mood altering substances, including alcohol;

that he should attend 90 meetings of a self - help program in

90 days; and that he should turn in a signed list for attendance

at 12 - step meetings for six months to document his re covery.

17. Dr. Driggers was evaluated by Jeffrey A. Danziger,

M.D. , on September 8, 2005, at the request of Dr. Driggers'

attorney. Dr. Danziger opined that Dr. Driggers did not meet

the criteria for alcohol dependence or active alcohol abuse at

the tim e of the evaluation. Dr. Danziger diagnosed Dr. Driggers

with posttraumatic stress disorder, in remission, and alcohol

abuse, in sustained full remission. It was Dr. Danziger's

"opinion that, from a psychiatric standpoint, Dr. Driggers did

not have any s ubstance abuse or psychiatric problems that would

impair his ability to safely function as a dentist."

Dr. Danziger explained that much of his evaluation was focused

on whether Dr. Driggers posed an immediate danger that would

justify an emergency suspen sion.

18. Dr. Brown reviewed Dr. Danziger's evaluation report on

Dr. Driggers and her prior evaluations of Dr. Driggers. On

January 30, 2006, she opined as follows:

I continue to believe that Dr. Driggers has

a diagnosis of Alcohol Dependency as

evidence d by having a BAL [blood alcohol

level] of .2 at the time of one of his

second DUI, indicating tolerance to the use

of alcohol as "social" drinkers at a BAL of

.2 would not have been able to get in their

car to drive; he has been unsuccessful in

his effort s to control his substance use

while in PRN (he had continued to drink

while in PRN) and again, if he was a social

drinker, should have been able to completely

abstain from substance use in PRN without

any difficulty; and he has continued to use

alcohol de spite knowledge of having a

persistent and recurrent problem with

alcohol. Certainly of note is the fact that

he has had not one but 2 DUIs in his past.

He continues to have a great denial about

the disease of chemical dependency and the

need to abstain from all mood altering

substances. This type of thinking poses an

extreme risk to the public for him

practicing without appropriate monitoring of

his status by PRN. Alcohol Dependency is a

permanent medical disease that does not go

away once you develop it. A healthcare

professional that has Alcohol Dependency

must have long - term, appropriate treatment

and monitoring to ensure they do well and

can practice. In the most recent records

you sent, numerous individuals gave

affidavits that they have never se en him

impaired while practicing. However, I would

point out that simply not drinking at work,

or not look ing impaired, does not translate

into whether one can practice their

profession with reasonable skill and safety.

19. Dr. Brown continued to recomm end abstention from

alcohol and mood altering substances, outpatient treatment, and

participation in PRN monitoring. If those recommendations were

followed, she felt that he could practice with reasonable safety

and skill. However, Dr. Driggers has conti nued to refuse to

participate in any PRN monitoring.

20. On September 27, 2006, Dr. Danziger again evaluated

Dr. Driggers. He was still of the opinion that Dr. Driggers had

a diagnosis of alcohol abuse rather than alcohol dependence.

Once you have a dia gnosis of alcohol abuse, you will always have

alcohol abuse, but it can be in remission. He agrees with

Dr. Brown that Dr. Driggers is in need of outpatient treatment

and monitoring.

21. Whether Dr. Driggers' drinking problem is labeled

alcohol abuse or alcohol dependence, the consensus of the

experts in addi c tion psychiatry who evaluated Dr. Driggers is

that Dr. Driggers must have some type of treatment and must be

monitored in order for him to be able to practice dentistry with

reasonable skill and saf ety.

22. Dr. Driggers has been disciplined previously by the

Board of Dentistry in 1989.

CONCLUSIONS OF LAW

2 3 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57 , Fla. Stat. (2006).

24 . The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996). The

Departm ent alleged in the Administrative Complaint that

Dr. Driggers violated Subsection 466.028(1)(s), Florida Statutes

(2004), which provides that a dentist is subject to disciplinary

action if the dentist is "unable to practice her or his

profession with reas onable skill and safety to patients by

reason of illness or use of alcohol, drugs, narcotics,

chemicals, or any other type of material or as a result of any

mental or physical condition."

2 5 . The Department has established by clear and convincing

evidence that Dr. Driggers is unable to practice dentistry with

reasonable skill and safety by reason of his use of alcohol.

Thus, he is in violation of Subsection 466.028(1)(s), Florida

Statutes (2004).

2 6 . Florida Administrative Code Rule 64B5 - 13.005 provides

a range of penalties for violations of Chapter 466, Florida

Statutes:

Unless relevant mitigating factors are

demonstrated the Board [of Dentistry] shall

always impose a reprimand and an

administrative fine of $10,000 per count or

offense when disciplining a licensee for any

of the discipline grounds listed in

subsection (2) or (3) of this rule. The

reprimand and administrative fine is in

addition to the penalties specified in

subsections (2) and (3) for each discipline

ground.

* * *

(3)(w) Bein g unable to practice his

profession with reasonable skill and safety

to patients by reason of illness, or use of

alcohol, drugs or narcotics, chemicals or

any other type of materials or as a result

of any mental or physical condition. The

usual action of the Board shall be to impose

a period of suspension until such time as

the licensee demonstrates rehabilitation

followed by a period of probation under such

terms and conditions as set by the Board

and/or restriction of practice.

RECOMMENDATION

Based on t he foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a f inal o rder be entered finding

that Dr. Driggers has violated Subsection 466.028(1)(s), Florida

Statutes (2004); giving Dr. Driggers a written reprimand;

requiring Dr. Driggers to undergo a new evaluation by a PRN -

approved evaluator; requiring Dr. Driggers to comply with PRN

recommendations; and suspending his license until he undergoes

further evaluation and begins compliance with PRN

recommendations.

DONE AND ENTERED this 17th day of April , 2007 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 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 17th day of April , 2007 .

ENDNOTE

1/ Subsection 316.193(1)(a), Florida Statutes (2000), provides

that a person driving with a blood - alcohol level of .08 grams or

greater per 100 milliliters of blood is guilty of the offense of

driving under the influence.

COPIES FURNISHED :

H. Wayne Mitchell, Esquire

Jamie Ito, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

George F. Indest, III, Esquire

Michael L. Smith

The Health Law Firm

220 East Central Parkway, Suite 2030

Altamonte Springs, Florida 32701

Susan Foster, Executive Director

Board of Dentistry

Department of Healt h

4052 Bald Cypress Way, Bin C08

Tallahassee, Florida 32399 - 1701

R.S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way , Bin A02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed wit h the agency that

will issue the Final Order in this case.